By Steve Vladeck, professor at the University of Texas School of Law
On Thursday, the Senate voted 54 to 45 to confirm Gina Haspel as the next director of the CIA. Haspel’s nomination has been especially controversial because of her (still not entirely clear) role after 9/11 in both the torture and general mistreatment of terrorism suspects detained at secret CIA “black sites,” as well as the eventual destruction of videotapes of those abuses.
Many opposed her nomination based solely on what’s publicly known of her direct, long-term involvement in the CIA’s Rendition, Detention and Interrogation program; some, most notably President Donald Trump, supported her for the very same reasons.
I was somewhere in the middle. To me, the Haspel nomination presented a unique opportunity for accountability — not only for Haspel personally, but for the CIA and its overseers, more generally. Given how ineffective civil litigation has been at establishing an unassailable historical record, here, finally, was a chance for senators to use their constitutional power as a means of demanding the hitherto absent historical accounting.
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The Haspel nomination presented a unique opportunity for accountability — not only for Haspel personally, but for the CIA and its overseers, more generally.
America deserves an accounting, not only of Haspel’s specific role in torture and the destruction of evidence, but of how the program even got off the ground in the first place. I, at least, thought Haspel’s confirmation was going to turn, and should have turned, on her willingness to be candid about the past. After all, as Santayana famously wrote, “those who cannot learn from history are doomed to repeat it.” Those who can, in contrast, may well deserve a second chance.
Instead, last Wednesday, in one of the shorter Cabinet-level confirmation hearings in recent memory, with each senator getting only one five-minute round of public questioning (and required to submit additional questions for the record before the hearing transcript was available), Haspel was elusive. She vowed not to restart the RDI program, but refused to answer when asked, repeatedly, whether she thought torture was immoral or whether the CIA’s use of it was a mistake.
“I don’t believe torture works,” she said in response to a question from Sen. Kamala Harris, D-Calif., but refused to endorse the Senate Intelligence Committee’s 2014 conclusion that the CIA’s abusive techniques had not in fact yielded meaningful actionable intelligence. And in a follow-up letter to Senator Mark Warner, D-Va., the vice chair of the Intelligence Committee, Haspel said that she “won’t condemn those that made these hard calls,” even though the RDI program “ultimately did damage to our officers and our standing in the world” (to say nothing of its victims), and “is not one the CIA should have undertaken.”
Those platitudes were enough for Warner — who was one of two Democrats on the Senate Intelligence Committee to vote in her favor, and one of six Democratic senators overall. They shouldn’t have been. Haspel never publicly acknowledged her own role in the RDI program. She never took specific responsibility for any of the individual abuses or other mistakes raised by members of the committee, either at the hearing or in written questions submitted thereafter. She never apologized for, well, anything. And, perhaps most controversially, in her capacity as Acting CIA Director she refused to declassify a wide swath of documents requested by the committee that might have shed helpful, further light on her controversial past.
Thus, to whatever extent Haspel’s confirmation process could have been a referendum on past misdeeds, it instead came off to a significant degree as a whitewashing of them. Haspel was perfectly happy to make the right promises about what she won’t do in the future; she was alarmingly unwilling to be even somewhat reflective about the more sordid moments in her (and the agency’s) past. Her confirmation drives home that a majority of the Senate was perfectly content with such indifference toward an accounting of our past.
Thus, to whatever extent Haspel’s confirmation process could have been a referendum on past misdeeds, it instead came off to a significant degree as a whitewashing of them.
In that vein, the federal government’s worst abuses of the 21st century may increasingly come to resemble their 20th century counterpart — the mass expulsion and internment of Japanese Americans during World War II. Although there is widespread agreement today not just that internment was a great wrong, but over the particulars of how it happened and who was responsible, the historical narrative only came to pass thanks to a decades-long effort that culminated in the groundbreaking historical work of the Commission on the Wartime Relocation and Internment of Civilians; Congress’s subsequent enactment of the Civil Liberties Act of 1988; and President George H.W. Bush’s formal apology in October 1991.
Put another way, it took nearly a half-century for the United States to finally come to terms with what is arguably its greatest human rights abuse since slavery. In confirming Gina Haspel, the Senate missed a golden opportunity to help us come to terms with CIA torture far sooner. In turn, this makes it likely that it will both be many more years before we truly reckon with this dark and disgraceful chapter of American history, and that those responsible for the abuses will never be meaningfully subject to accountability.
Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law and national security law. Vladeck is co-editor in chief of the Just Security blog and co-host of the National Security Law podcast.
Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law, and national security law. Steve is co-editor-in-chief of the Just Security blog (@just_security) and co-host of the National Security Law Podcast (@nslpodcast).