OVERSEAS INTEL

NATO mission in Afghanistan unlikely to change

December 16, 2014 | The Danger Zone

KABUL, Afghanistan — President Barack Obama declared this week that the U.S. military has reached a “turning point,” but when NATO’s military coalition begins a new mission in Afghanistan at the end of the month, little is likely to change for the thousands of troops whose deployment extends into next year.

NATO’s International Security Assistance Force — and the U.S. government — have emphasized that the transition from ISAF to Operation Resolute Support marks the end of international troops’ combat mission in Afghanistan, as the new mission is focused primarily on training and advising. But defining the difference between the two missions may be largely semantics.

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For more than a year now, coalition forces have already been transitioning to a more training-centered mission, with progressively fewer and fewer units dedicated to offensive operations. That, combined with Obama’s decision to allow American troops deployed as part of the new Resolute Support mission to engage in combat operations in certain circumstances, means foreign forces here now will see few major changes when the long-awaited transition occurs.

That decision appears to have been motivated in part by the worrying parallels to Iraq, where the U.S.-trained army was left without outside support after the withdrawal of American forces at the end of 2011. The army promptly collapsed last summer in the face of a surprise offensive by a small force of well-armed and well-financed Islamic militants who quickly occupied Mosul, Iraq’s second-largest city, along with wide swathes of territory in the north and west.

“The time of deploying large ground forces with big military footprints to engage in nation building overseas, that’s coming to an end,” Obama told 3,000 troops Monday at New Jersey’s Joint Base McGuire-Dix-Lakehurst, a launching point for deployments to Afghanistan.

Resolute Support, which will have about 12,000 troops, about 10,000 of them American, is aimed at “training, advising, and assisting” Afghan forces.

What exactly “assisting” will look like, however, is not entirely clear. Obama recently signed an order opening the door to continued American combat operations in coming years, such as when troops are threatened. Also, the coalition told Stars and Stripes recently it intends to provide air support to Afghan units if requested. A certain number of special operations units will also be tasked with combating any al-Qaida elements.

U.S. Air Force Capt. Frank Hartnett, an ISAF spokesman, insisted the coalition still intends to “cease combat operations” while focusing on the challenge of advising Afghans in high positions such as in the various ministries.

“Soon, we will case the ISAF colors and remove our ISAF patches and we’ll unfurl the RS banner and replace the patches on our uniforms,” he told Stars and Stripes in an email statement. “Thanks to proper planning and consistent effort, many units are already well on their way to the RSM transition. Due to the size and scope of ISAF’s responsibilities a carefully planned drawdown was needed to ensure a smooth transfer to our next mission.”

Coalition casualties have dropped drastically as offensive combat operations have been curtailed over the past year. But combat, while less of a focus, has remained a constant possibility for the heavily armed NATO servicemembers in Afghanistan. Now, the continuing — and in some areas increasing — violence in Afghanistan, aimed both at Afghan forces and at foreigners, means foreign troops will still face daily risks.

On Sunday, the Department of Defense identified two American soldiers who died Friday in an attack near Bagram Air Field north of Kabul. U.S. Army Spc. Wyatt J. Martin of Mesa, Ariz., and Sgt. 1st Class Ramon S. Morris of New York, N.Y. were killed when a roadside bomb hit their vehicle. At least 2,212 American servicemembers have died in Afghanistan since the U.S.-led invasion in 2001, according to a tally by The Associated Press.

Such incidents, as well as so-called insider attacks by Afghan forces, are likely to remain a daily concern for troops, even if they aren’t engaged in offensive combat operations.

The international military effort will be different than it was during the high points of “the surge” beginning in 2010 when tens of thousands of American and allied troops fought hard battles against entrenched insurgents. Years later, however, that insurgency is still a threat and the roughly 350,000 Afghan forces NATO will be advising are taking fearful casualties.

Standing back and advising as the conflict continues unabated may be a difficult personal transition for some troops who experienced the heated fighting of past years, Army Maj. Gen. John Murray, deputy commander for support at U.S. Forces Afghanistan, said in a statement last week.

“We’ve been in and out of this country for 13 years, and now the biggest change is the mindset,” Murray said. “Soldiers are coming back for their third or fourth rotation, but this is going to be fundamentally different. Those coming to the command need to approach it with a fresh perspective and an open mind.”

By: Josh Smith of the Stars and Stripes (Twitter — @joshjonsmith)

Barko vs. KBR, privilege battle continues

December 16, 2014 | Justice Abroad

A high-profile qui tam suit against Kellogg Brown & Root and Halliburton continues to generate important case law relating to the scope of attorney-client privilege and work product protection given to internal investigations.

In the lawsuit, arising out of alleged false claims to the government under Iraq reconstruction-related contracts, federal judge James S. Gwin in Washington, D.C. held, in March 2014, that internal investigation materials were not protected by the attorney-client privilege because the investigation had been conducted as a matter of regular company policy by internal compliance personnel and as required by federal law. (I wrote about Judge Gwin’s ruling in a blog entitled “When Is An Internal Investigation Not Privileged.”)

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The defendants appealed the ruling, which led to a unanimous decision three months later in In Re: Kellogg Brown & Root, Inc., No. 14-5055 (D.C. Cir. June 27, 2014), in which the U.S. Court of Appeals for the D.C. Circuit vacated the district court decision, holding that an internal investigation is privileged so long as “one of the significant purposes” of the investigation is to obtain or provide legal advice. The Court of Appeals remanded the case to the District Court for further proceedings. (I discussed the D.C. Circuit’s opinion in “D.C. Circuit Upholds Claim of Corporate Attorney-Client Privilege.”) That ruling is now subject to a petition for certiorari to the Supreme Court.

Following the remand, the plaintiff once again sought production of internal investigation materials on a new ground – that the defendants had waived privilege through statements made during the litigation. By way of background, when allegations of fraud and kickbacks surfaced, the defendants conducted an internal investigation and did not report the results of the investigation to the authorities. In its most recent decision, the district court held that, under the doctrine of implied waiver, the defendants’ repeated assertions that the internal investigation had yielded no evidence of fraud waived privilege by placing what otherwise would have been privileged matters into controversy.

The recent decision arises from the plaintiff’s deposition of a corporate representative under Federal Rule of Civil Procedure 30(b)(6). The defendants did not permit the witness to answer questions, on privilege grounds, about reports and evidence underlying a corporate decision not to report potential kickbacks to the Department of Defense. At the same deposition, however, defendants’ attorney examined the witness and elicited testimony that defendants’ normal practice and contract terms required it to report reasonable evidence of kickbacks and that after investigating the allegations of this case made no report. The defendants soon after moved for summary judgment using the testimony to support the inference that the privileged documents did not yield any evidence that fraud or kickbacks occurred.

The district court’s decision highlights two concerns when handling the fruits of internal investigations. First, if such fruits are to be protected, the holder of the privilege must be careful not to make arguments in the litigation about an investigation that might, as a matter of fairness, open the door to inquiry. According to the Court, defendant “placed the contents of the documents in question through its own actions” by seeking “a positive inference in its favor based on what [defendants] claim the documents show” and that “fairness dictates that all the documents in question be produced so that [plaintiff is] able to examine the documents and challenge whether the withheld documents actually support the inferences that [defendants’] attorneys suggested to this Court.”

Second, the holder of the privilege must take care that witness preparation does not open the door to inquiry when review of privileged material is used to refresh a witness’s recollection, or is otherwise central to preparing the witness for testimony. Engaging in a “context-specific analysis,” the court found that the defendants’ use of privileged documents to prepare the Rule 30(b)(6) witness warranted disclosure, on grounds of “fairness,” because the witness had reviewed the privileged documents before testifying; “major discrepancies exist between [the witness’s] testimony and the contents of the writings [he] had reviewed”; the documents predominately consisted of investigator-taken statements and investigator reports rather than attorney opinion materials; and the defendant and the deponent repeatedly suggested that “the documents contain nothing.” The Court noted that its order should “not be understood as a blanket rule. In most cases, Rule 30(b)(6) witnesses who have examined privileged materials before testifying will not waive the privilege.”

The November 20 opinion is unlikely to be the final word in this protracted discovery dispute. Defendants immediately filed a Motion for Reconsideration and the Court temporarily stayed its order compelling production pending its decision.

By Jonathan Sack of Forbes Magazine

CIA critized for contracting out “enhanced interrogation techniques” for $80M

December 11, 2014 | Justice Abroad

We learned a lot from that big Senate Intelligence Committee report on C.I.A. interrogation tactics after 9/11. It was what may be the first time in American history that the term “rectal hydration” appeared in family newspapers throughout the land.

One of the most unnerving parts involves the fact that the waterboarding, ice baths and wall-slamming were conducted under the direction of an outside contractor. It isn’t the first time the government turned to private enterprise and wound up with a human rights disaster — think Abu Ghraib. Or Blackwater. But this seems like an excellent place to demand a cease-and-desist.

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The specialists’ names are James Mitchell and Bruce Jessen. Like many contractors doing work for the government, they’re former government workers themselves — in this case, military psychologists. And like virtually all contractors doing work for the government, they were making a heck of a lot more than they’d have gotten as federal employees. In this case, about $80 million.

Mitchell and Jessen had acquired their expertise by teaching Air Force officers how to resist brutal Cold War-style interrogations. Think pilots who get shot down behind enemy lines and get tortured by Communists. And for all we know, they may have done a great job showing their pupils how to withstand pressure to record a statement denouncing the United States when they crash land in North Korea.

But it’s not precisely the same thing as trying to get a suspected Al Qaeda operative to tell you where Osama bin Laden is hiding. Plus, Mitchell and Jessen had no experience as actual interrogators, did not speak any of the detainees’ languages and had no particular knowledge about Islam or Al Qaeda.

They did have some theories about other psychologists’ work subjecting dogs to random electric shocks until their will to resist was completely broken. Maybe, the two men thought, you could torment human beings into the same state of “learned helplessness.” Worth a try, right? Mitchell and Jessen set about applying the theory to prisoners the C.I.A. had collected. Some of them had already been cooperating with interrogators. Others turned out later to have had no involvement with Al Qaeda whatsoever.

Others, undoubtedly, were bad people with information the C.I.A. needed, who had resisted talking under nonviolent interrogation. The question then becomes whether they cooperated better under “learned helplessness” or simply made up stories to placate their torturers and send the C.I.A. off in the wrong direction.

There’s a lot of precedent for the making-up approach. During World War II, an American pilot was shot down over Japan just after the Hiroshima attack and was tortured repeatedly for information about the atomic bomb, of which he knew nothing. Threatened with beheading, the pilot told his captors that the U.S. had 100 atomic bombs and that Tokyo was next on the target list. The bogus information was immediately shared with the war minister and the Japanese cabinet.

The Intelligence Committee report concludes that all the torturing produced very little information that was useful and possibly quite a bit that was made-up. While we would love to believe that the human rights angle would be most effective in shocking the American people, polls show that when it comes to suspects with possible terror involvement, the public attitude toward torture is kind of meh. So, wisely, the committee’s big point was useless/counterproductive.

“It’s wrong enough that one shouldn’t do it period. But wrong and useless is a tough combination,” said Senator Sheldon Whitehouse of Rhode Island. He was on the Intelligence Committee when the report was being prepared and now leads a Judiciary subcommittee on crime and terrorism.

And why the private contractors? Maybe because the actual government interrogators didn’t believe torture worked either. Some complained that, after Mitchell and Jessen arrived, reasonably cooperative prisoners were suddenly brutalized under the theory that the original approach had been too “sissified.”

What made the C.I.A. decide that these guys were a good plan? Have they not watched “Homeland” this season? (Ever since Saul left the C.I.A. to become a private consultant, he’s been a disaster.) “I do think there’s something about the culture of purchase: ‘We don’t have the answer, but we can buy it,’ ” said Baher Azmy, the legal director at the Center for Constitutional Rights.

Tim Shorrock, the author of “Spies for Hire,” believes it’s just a way to hide things: “The activities of contractors are so easy to conceal in budgets.”

Naturally, defenders of the C.I.A. are rising up to challenge the report’s findings. The Associated Press got hold of James Mitchell himself, who said that the report was “just factually, demonstrably incorrect,” then declined to say exactly what the inaccuracies were.

Citing a secrecy agreement with the C.I.A., Mitchell didn’t share much else, except that beingwaterboarded was still better than being killed by a drone.

By Gail Collins of the NY Times

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