Karen J. Greenberg is the director of the Center on National Security at Fordham Law School and the author, most recently, of “Rogue Justice: The Making of the Security State.”
If all goes according to plan, the next director of the CIA will be 30-year agency veteran Gina Haspel, Trump's pick and the CIA's current deputy director. Haspel may be a CIA loyalist, but her appointment is a slap in the face to the rule of law in the United States, to the reputation of the CIA and to the reputation of the country. Her confirmation would also be just one more sign of the devil’s bargain that Washington has upheld for nearly 15 years when it comes to torture.
There is no way to sugarcoat this: Haspel was actively complicit in the (legal and fully CIA-and-White House sanctioned) torture program that was used against terrorism suspects. In the fall of 2002, she took over running the first CIA detention facility of the so-called “war on terror,” “Detention Site Green” in Thailand. The techniques approved for use in these offshore interrogations included: waterboarding, or mock drowning; sleep deprivation, including at least one period of 47 days; confinement in a coffin like box, and various forms of punching, shackling and humiliation, much of it done to naked bodies.
There is no way to sugarcoat this: Gina Haspel was actively complicit in the (legal and fully CIA-and-White House sanctioned) torture program.
Haspel’s involvement in this “enhanced interrogation program” varies depending on the source. But reports from CIA officials as well as details included in the 2014 Torture Report compiled by Sen. Dianne Feinstein’s Select Committee on Intelligence describe what went on at the facility and attribute it to an unnamed “chief of base.” Haspel was also reportedly complicit in the decision to destroy recordings of the interrogations in 2005. Up until their destruction, these tapes were kept at the black site overseen by Haspel and included the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, detainees who were tortured and whose fates remain in limbo.
The destructive consequences of the CIA’s torture program are undeniable.
Most obviously, the program undermined America’s identity as a nation of law and decency. Americans can no longer tell themselves that they live in a nation that privileges morality over anger, revenge and fear. Along these lines, the U.S. reputation for adhering to human rights laws and standards has been harmed, and with it, the U.S. ability to lead internationally.
The shame and disrepute that the program would reap was clear from the beginning, even to insiders. The treatment of Abu Zubaydah, who says he was subjected to the enhanced interrogation program, was so bad that CIA officials noted that if he died he would have to be cremated, presumably so that no one would know what had been done to his body. If he lived, CIA officials wrote “we need to get reasonable assurances that [the detainee] will remain in isolation and incommunicado for the remainder of his life."
A less well known consequence is that the CIA’s torture of detainees has seriously impeded U.S. attempts to bring terrorists to justice, including 9/11 perpetrators. President George Bush promised that “justice would be done” in retaliation for 9/11. Yet to this day, although the alleged co-conspirators of 9/11 have been in U.S. custody for well over a decade, it has proven almost impossible to bring them to trial — either in federal court or in the military commissions — due to the legacy of torture. Tortured witnesses, tortured defendants and evidence garnered from tortured confessions have continually stymied the court systems.
The fate of Khalid Sheikh Mohammed for example, the alleged mastermind of 9/11, remains in limbo. Similarly, the trial of Abd Al-Rahim al-Nashiri, who was interrogated at Haspel’s Thai black site, has been hampered by the fact of his abusive treatment. Al-Nashri stands accused of masterminding the October 2000 bombing of the USS Cole in the Gulf of Aden that resulted in the deaths of 17 Americans. It’s possible that owing to torture, he may never be successfully tried and convicted in a court of law.
Third, and perhaps most regrettably for our democracy, America’s period of state-sponsored torture continues to haunt the body politic, perverting survivors and perpetrators alike. The legacy of secrecy, and the permutations required to protect it, seems never-ending. The program itself was authorized secretly by the Department of Justice and the White House, and carried out secretly by the CIA. Since its exposure, beginning in 2004, the ends to which two administrations have gone to hide the details of the program have been Herculean. Challenges in court have been thrown out on the grounds that state secrets — national security secrets — would be divulged. Recently, the Trump administration tried to use this argument to keep Gina Haspel from having to testify in a torture lawsuit that was eventually settled.
Feinstein’s Senate report was virtually buried at birth, classified except for a 6,700-page executive summary. Since then, the CIA Inspector General “accidentally” destroyed its copy of the report. Obama agreed to preserve a copy, keeping it from being destroyed but giving no assurances as to its declassification.
And the Trump administration, under the direction of Sen. Richard Burr — now head of the Senate Select Intelligence Committee — has called back the copies that had been distributed to several agencies in a further attempt to keep the brutal cruelty of the program from becoming public.
Defenders of Haspel’s nomination will argue that she was only doing what she was told to do in a program that was ordered by the president and approved by the Department of Justice. “When she was given orders, she had to carry them out,” one former national security official remarked in defense of the nomination. Another former official praised Haspel as “thoughtful and conscientious.”
Rewarding a public servant’s willingness to follow orders that blatantly violated her oath to the Constitution and the values of the country sets a terrible precedent.
But these arguments are not relevant to her confirmation. This is about something much bigger than Haspel herself. Rewarding a public servant’s willingness to follow orders that blatantly violated her oath to the Constitution and the values of the country sets a terrible precedent. And it is particularly dangerous when the president, as candidate, embraced waterboarding and “and a hell of a lot worse.”
Meanwhile, the CIA has not truly reckoned with this chapter of its legacy. The presumably soon-to-be departing head of the agency, Mike Pompeo, refused to firmly back away from the CIA’s torture policy during his confirmation hearing.
For over a decade, America has side-stepped accountability when it comes to creating and implementing these policies. (The Obama administration opined that “we need to look forward as opposed to looking backwards.”) Now, we have a president who muses about reinstating torture while endorsing a former practitioner who has seen no problem following questionable orders in the past. Who’s to say that these orders won’t be issued again?
Haspel’s confirmation to the position of CIA director would be a devastating capitulation to the dark forces that the country ostensibly left behind, and a sign to Americans — and the world — that we have learned nothing from a program that was morally, legally and professionally indefensible.
Karen J. Greenberg is the director of the Center on National Security at Fordham Law, the author of Rogue Justice: The Making of the Security State, and the editor of "The Torture Papers: The Road to Abu Ghraib and The Torture Debate in America."