Afghanistan Analysts Network – English

International Engagement

War Without Accountability: The CIA, Special Forces and plans for Afghanistan’s future

Kate Clark 11 min

That US Special Forces are likely to remain in Afghanistan after 2014 and for the long haul, has been discussed for some time. According to The Washington Post, which went to a talk by the former head of US Special Operations Forces (SOF) in Afghanistan, Admiral Bill McRaven, at the National Defence Industrial Association in Washington and also heard from un-named ‘US officials’, the CIA is also, ‘expected to maintain a large clandestine presence, as part of a plan by the Obama administration to rely on a combination of spies and Special Operations forces to protect U.S. interests in the two long-time war zones [Afghanistan and Iraq].’ AAN Senior Analyst, Kate Clark, looks at what all this means for the war and human rights, accountability and Afghan sovereignty.

In Afghanistan, the CIA feels like the most unaccountable organisation of all. Since late 2001/early 2002, it has been headquartered in the old Ariana Hotel, near ISAF headquarters (itself in the old Kabul Army Sports Club). The Agency squats on one of the main east-west routes across Kabul. All normal traffic has been banned from using the thoroughfare for a decade in what was one of the first grabs of public space in post-Taleban Afghanistan. It has always felt symbolic that, while protected from public gaze, the Agency causes bottle necks, traffic jams and bother elsewhere. Those with the right ID can still walk along the road. That includes schoolboys at the nearby Amani High School who get frisked at the check post on their way to school every day. And everyone walking past is scrutinised by the guards in watchtowers set up outside the Ariana Hotel and at the nearby Ariana roundabout, the place where the Taleban strung up Dr Najibullah and his brother in 1996 and where Taleban commander, the late Mulla Dadullah, hanged alleged would-be assassins in 2001.* And that is about as near to the CIA in Afghanistan as you can get.

The Agency’s influence on recent Afghan history is, of course, immense, given its role in funding the 1980s anti-Soviet jihad via the plausibly denial conduit of the Islamist dictator in Pakistan, General Zia ul-Haq. (Old Man Haqqani, among others, was one of their assets back then, according to Steve Coll in his book, Ghost Wars.) The CIA was also, as it likes to boast, the first US group into Afghanistan after 9/11, closely followed by the Special Operations Forces (SOF). The hasty victory they engineered against the Taleban, brought about by their funding and arming of anti-Taleban commanders, has locked Afghanistan into ten years of militia and factional leaders being in power. The CIA’s future in the country may also be bright – although that makes Afghanistan’s future look less so.

The vision floated in Washington this week was of an expanded and collaborative role for the SOF and CIA, as conventional forces withdraw (see reports here and here). Admiral McRaven, a rising star since his Navy Seals killed Osama Bin Laden in 2011, said that the Pentagon was considering handing more of the Afghan war responsibility over to a senior special operations officer and, in the same articles, it was said that an appointment was expected in the summer. The Washington Post, quoting unnamed US officials said that the CIA, like the SOF is, ‘used to doing a lot with a small footprint, using its agility to address a host of national security concerns.’ The Post goes on:

‘… the agency’s paramilitary capabilities are seen as tools for keeping the Taliban off balance, protecting the government in Kabul and preserving access to Afghan airstrips that enable armed CIA drones to hunt al-Qaeda remnants in Pakistan… [It] controls counterterrorism pursuit teams made up of dozens of Afghan fighters funded and trained by the CIA. The CIA has largely bankrolled and built the Afghan intelligence service. And the agency maintains a constellation of bases along the border with Pakistan.’

The scenario presented in Washington this week looks like a continuation of the better working relationship between the SOF and CIA (the Rumsfeld-era rivalry having been smoothed over). The ‘extensive collaboration and overlap’ discussed by the unnamed US officials in the Post can already be seen, for example, in kill or capture operations. At the forward headquarters of the Joint Special Operations Command or JSOC at Bagram, where intelligence from multiple sources – the military, CIA, detainee interrogations, drone footage and intercepts – is collated, a joint targeting working group meets weekly. It has direct input from the Combined Forces Command and its divisional HQ, as well as lawyers, operational command and intelligence units, including the CIA and it places men deemed to be ‘insurgent leaders’ on the Joint Prioritised Effects List (JPEL) for capture or targeted killing. (The existence of the JPEL was confirmed in dispatches published by Wikileaks and reported on by The Guardian here). (For an analysis of how JSOC intelligence failures can lead to civilians being wrongly targeted, see an earlier AAN report.)**

The fact that David Petraeus, former commander of ISAF/US SOF in Afghanistan, has been appointed the director of the CIA looks likely to cement the warm relationship further. Yet, the active involvement of the CIA in the war has already raised troubling questions of accountability and law. Getting information about SOF operations is difficult enough, but, along with ISAF, there is at least an address for journalists, international agencies and Afghan civilians to go to. We can follow up cases of civilian casualties or the killing of wounded or surrendered Taleban who are hors de combatand other alleged violations of the law. The CIA appears to be accountable to no-one except the White House and Senate and House Intelligence Select Committees.

In the late summer of 2011, for example, ISAF and SOF stopped handing over prisoners to NDS and police facilities where the UN had found evidence of torture. The military stopped partnering operations where detainees would end up in those facilities and started inspecting them and pressing for improvements. When I asked whether the CIA was still handing people over, no-one in Kabul – whether the military or the US embassy – could answer. Yet, there were reports that the CIA was still working with the NDS in Kandahar where some of the most serious reports of abuse have come from.

For those interested in preventing abuses and war crimes, it is important to look into two areas of activity: the CIA’s operation of drones for targeting and killing and, along with the SOF, its potential command responsibilities over certain irregular Afghan armed groups.
The status of CIA agents under the law of armed conflict is unclear. When they kill, are they akin to a member of the uniformed armed forces or more like the Taleban, ie civilians directly participating in hostilities? It seems likely the latter, which would mean they could be legally targeted (for example, the killing of CIA agents in Khost in 2011 was likely legitimate). They would also lose their immunity from prosecution for crimes under domestic laws, which means they could be prosecuted for murder in Afghanistan or Pakistan.

Status is important: distinction between civilians and military helps protect civilians and encourages states to only grant the power to kill to trained military personnel with a transparent chain of command. Comparison between the CIA and the military is telling here: all US military personnel undergo training in the laws of armed conflict. All of those deploying to Afghanistan, get special training on preventing civilian casualties. The law is evident in military codes of conduct, training manuals, legal hand-books and some of the tactical directives. We do not know what training CIA agents might have before they use drones or work with Afghan armed groups. Nor do we know what, if any, accountability mechanisms exist to ensure that CIA agents do not commit war crimes or are disciplined if they do. This very lack of transparency encourages breaches of the law. (For discussion of what this all means for the legality of CIA operated drone attacks, see herehere and here).

With both SOF and the CIA there are further concerns about their record of working with anti-Taleban armed groups. The provenance and Afghan chain of command of groups like the Kandahar Strike Force (KSF) and the Afghan Security Guards (ASG), which operate in provinces of Loya Paktia, is murky. They appear to answer primarily to the CIA or SOF – and that carries legal responsibilities if the Afghan fighters commit war crimes or abuses.

Determining command structures and cultures in these militias and the relationship between them and the CIA/SOF and/or Afghan government is important because, under the law of armed conflict, superior officers or officials have command responsibility. In other words, they may be answerable for the actions of their subordinates – if they order or instigate them to carry out illegal actions, such as executions, torture or attacks on civilians, without military necessity. Moreover, and this is more relevant to CIA/SOF allied groups, superior officers or officials may also be held responsible for a failure to prevent or punish illegal acts carried out by subordinates who are in the same chain of command.***

Far from reigning in the KSF and ASF, these groups’ relationship to the CIA and/or SOF has actually given them de facto impunity, ie it encourages abuses because the relationship has meant they are virtually untouchable using Afghan legal structures. Moreover, the Afghan chain of command, if there is one, is frequently unclear or informal.

The Kandahar Strike Force (KSF) used to be, according to many Kandaharis and The New York Times, in the pocket of the president’s late brother, Ahmad Wali Karzai; overseeing the KSF was one of a number of services which The Times alleged he provided to the CIA (before his death, he strongly denied being a CIA agent). This chain of command appeared to be an informal arrangement, by-passing the ministries of interior or defence and with the Afghan forces answering to foreigners as well as Ahmad Wali.

Jules Cavendish of The Independentwho has doggedly followed such groups, has interviewed senior figures within the KSF, including their former leader, Atal Afghanzai. He described how KSF recruits were cherry-picked from regular Afghan army units and trained by US SOF at Mulla Omar’s old house, now known as Camp Gecko (and which was rented out, according toThe New York Times, by Ahmad Wali Karzai):

‘Foreign military advisers at the camp taught hand-to-hand combat and put new recruits through ambush training, as well as teaching them English, said Afghanzai. Everyone, he said, from the cook to the Special Forces advisers, was ‘working for OGA somehow’: an acronym standing for ‘other government agencies’ and generally used to refer to the CIA. ‘We had day raids, night raids. Any time we received intel from the NDS [Afghanistan’s security service] that there were 10, 20, 50 insurgents gathering in a house or a garden, we’d launch an op.’ 

The group’s de facto impunity for crime and abuses partly ended when forty KSF soldiers stormed Kandahar police station in 2009 and killed the police chief in apparent revenge for a murdered KSF fighter. Afghanzai and forty others were convicted of his murder, a rare example, says Cavendish, of ‘the Afghan judiciary coming down on a US bankrolled mercenary – and likely only happened because Afghanzai and his men killed a well-connected Afghan police commander in broad daylight.’ The former KSF commander spoke to Cavendish from Pul-e Charkhi jail, where he is waiting to appeal his conviction.

Revelations of atrocities by another close US ally also emerged through Cavendish’s reporting. The Afghan Security Guards (ASG) – formerly known as the Afghan Guard Force (AGF) – appears to be a generic name used for several SOF/CIA-supported, irregular groups operating in Loya Paktia.**** In Paktika, the ASG is headed up by Commander Azizullah, as Cavendish explains:

‘Azizullah and his Afghan security guards exist to protect Firebase Lilley, a remote outpost in eastern Paktika province that doubles as a listening post for the CIA and a training hub for some of the agency’s 3,000 private troops (known as Counterterrorism Pursuit Teams)***** … [W]hatever the degree of oversight he’s subject to by his military advisers, even Azizullah accepts that his main job is killing Taliban.’

Based on his own interviews and two internal UN reports, Cavendish details allegations of rape, sexual abuse of boys, theft, the desecration of a mosque, detention and indiscriminate killings. Because of the area’s remoteness and the power of his American friends, Azizullah has enjoyed complete impunity and, despite these allegations, was recently appointed head of the Paktika Afghan Local Police or ALP. ******

Groups like the ASG and KSF are a historical hangover from 2001 when suitcases of CIA money funded tens of thousands, maybe more, of ‘anti-Taleban’ Afghan fighters. Both are still funded because they have proved to be fierce and willing fighters against the Taleban in difficult border areas. However, the idea of setting up anti-Taleban militias nationwide has seen a revival in the last two years. The ALP, with which the US SOF is intimately connected, should be vetted and overseen and have a Ministry of Interior chain of command. However, there are multiple allegations of abuse and, in some instances, apparent impunity because of relationships with SOF (for detail, see the excellent Human Rights Watch Report on militias).

So what might the post-2014 military landscape of Afghanistan look like, according to those speaking to the Post?

‘In some scenarios, teams of CIA and Special Operations troops could divide territory and lists of Taliban targets with Afghan forces, although officials said there will probably be extensive collaboration and overlap. As conventional forces depart, officials said, the agency will probably concentrate more of its remaining employees at compounds in Kabul and at the Bagram air base north of the capital. As a result, more territory may be ceded to the Taliban [our emphasis]. “We can lose the countryside, but I don’t think we’re going to lose Kabul and Bagram,” said the former senior CIA officer, who added that the agency could end up adding paramilitary personnel in Afghanistan as the size of the U.S. military deployment shrinks.’

It is a frightening scenario, not least for any Afghan hoping to have some national sovereignty back. If there are any doubts about what it might look like on the ground, note how the language of the Post and AP articles dehumanises the enemy. The JSOC is a ‘terrorist-hunting cell’, those doing the killing are the ‘special operations terrorist hunters’. If there are still doubts, read these quotes from an SOF captain on the ethics of running militias with records of committing atrocities, again as reported to Cavendish:

‘The ugly reality, says Matt, a Green Beret [Special Forces] captain… is that if the US wants to prevail against the Taliban and its allies, it must work with Afghan fighters whose behaviour insults Western sensibilities. “There are no good guys by our standards. There is no standard to begin with. There is no justice system or rule of law to hold people accountable,” Matt says. “The Taliban are not horribly bad and the Afghan farmer is not an innocent victim.”‘

‘In this moral twilight, refusing to work with paramilitaries accused of rights abuses accomplishes nothing, he argues. Instead, as relationships develop, so do the possibilities for altering the ‘moral calculus’ of the Afghan fighters. “I don’t like this reality,” says Matt. “But I do not have the power to make Afghans conduct themselves like Americans in matters of politics and warfare. I can only influence it over time.’ The alternative is to ‘go home now.”‘

* Until early 2002, the Ariana roundabout between the hotel and the Palace perimeter to the south was open to traffic. Until 1992, the road to the south past the Palace was open to pedestrians and bicycles (although this author actually cycled along it in early 2002). You can see Ariana Hotel on Google Earth here, but it is not the building to whitch the red arrow points but the one immediately to the right of Ariana Square, with the silver roof.

** For background on the genesis of JSOC in Iraq and the important roles played by both Stanley McChrystal and David Petraeus, both of whom went on to command US SOF/ISAF in Afghanistan, see Mark Urban’s book,Task Force Black. For some more detail on JSOC in Afghanistan, see this report by Stephen Grey.

*** In order for a commander to be held responsible for the acts of his subordinates, the following requirements must be in place (according to Art. 28 of the Rome Statute of the International Criminal Court):

• The subordinates must be under the effective command and control, or the effective authority or control of the superior;
• The military commander knew or should have known that his forces were committing or about to commit such a crime;
• The military commander failed to take all necessary and reasonable measures to prevent the crimes or to punish them by submitting them to the competent authorities for investigation and prosecution;
• If the superior is a civilian, he will be responsible if he knew or consciously disregarded information which indicated that his subordinates were committing crimes.

**** Northern Alliance and other militias were largely formally incorporated as army or police units in the Ministries of Defence (under Marshal Fahim) and Interior (under Yunos Qanuni) in 2001/2002 and given the old army and police designations. The Disarmament, Demobilisation and Reintegration (DDR) programme, launched in 2003, aimed at standing down most of these fighters and incorporating some into the new Afghan National Army and Afghan National Police. In Khost, US SOF co-opted parts of the 25th Army Division; although it was officially DDR-ed, the soldiers never left their base and were instead re-designated as the Afghan Guard Force, with the divisional commander, General Khialbaz Sherzoi who already had served under the PDPA regime, becoming the AGF commander (he later became Chief of Police in Ghazni and elsewhere).

***** The phrase was used by Bob Woodward in his book Obama’s Wars. He said the teams were 3000 strong. It seems this was a generic term, too, rather than a designated name for groups belonging to a particular CIA-run programme. It also seems possible there is a division of duties, for example, the CIA funds and the SOF train, but again, this is not clear.

****** To give a flavour of the allegations, this is Cavendish’s reporting of one incident:

‘In late September or early October (the Afghan month of Mizan) 2009, they searched a house ‘belonging to Ahmad Gul’ following a clash with insurgents. Gul ‘was killed in his home along with his brother Omer Khan’ and a third person, who had been working the fields nearby. Azizullah strapped ‘their bodies to the hood of [his] vehicles’ and paraded them through the Margha Mandi bazaar — in a country where burial rites hold deep cultural import. ‘The bodies were kept for eight days until they started to rot,’ the U.N. report claims.’

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