The Stain of Torture Endures


Bill Yeomans


Executive Power & Civil Liberties

Gina Haspel appeared before the Senate Intelligence Committee this week seeking confirmation as Director of the CIA.  Her nomination is an eye-popping example of our nation’s failure to reckon with the moral catastrophe of our descent into torturing prisoners of war.  Her confirmation should be unthinkable, but it appears likely.

Haspel has spent over 30 years in the CIA.  In 2002, she ran a CIA black site in Thailand where at least two men were waterboarded and subjected to other forms of torture.  It is confirmed that one man, Abd al-Rahim al-Nashiri, was tortured while she supervised the site.  She then lobbied for destruction of 92 videotapes showing incidents of waterboarding at the Thailand site.  In 2005, as chief of staff to the Director of the National Clandestine Service, the CIA unit in charge of interrogation, she drafted the cable sent by her boss ordering destruction of the tapes, thereby frustrating congressional and later Department of Justice attempts to investigate the conduct.  Although much material remains classified, it has been suggested that she also urged the Bush administration’s reauthorization of torture in 2005.

Nobody was ever held accountable for the CIA’s violations of domestic and international law.  The Bush administration insisted with its final breath that its conduct had been legal.  Michael Mukasey, who was nominated to replace the hapless and torture-friendly Alberto Gonzales as attorney general, almost didn’t make it through the Senate after he adamantly refused to concede that waterboarding was torture.

The Obama Justice Department withdrew the Bush Office of Legal Counsel memos that provided the legal underpinnings for the torture program and issued an executive order prohibiting torture.  But, Obama rejected calls for an independent commission to investigate the use of torture. Eric Holder, his Attorney General, authorized very limited reexamination of incidents for prosecution and declined to pursue any of them.  Obama’s answer was to look forward without holding torturers accountable for past actions.

As I wrote many years ago, the consequences were readily foreseeable.   Without the full accounting and national reckoning that an independent commission (such as the 9/11 Commission) would have produced and the harsh condemnation that prosecutions would have produced, torture moved from taboo to an issue for debate.  Partisan defenders pushed hard to justify its use.  Much debate focused on whether it was effective.  The unthinkable had become a persistent possibility.

Trump promised during his campaign to bring back waterboarding and “much worse.”  That promise alone should have been disqualifying.  It was an announcement that he intended to engage in war crimes.

Now, he has nominated Gina Haspel.  The objection to Haspel is not simply that she was a CIA employee while the agency engaged in torture.  That would not have been disqualifying.  Rather, it is that she was central to the CIA’s torture program.  Her nomination sends a strong message to the country and the world that the United States is not all that concerned about or regretful for its use of torture.  Not only did she oversee torture, she was instrumental in allowing all involved to escape accountability for their actions.

At her hearing, Haspel vowed to keep the CIA out of the interrogation business and said she would not implement an immoral order, even if legal.  But she refused to characterize the past use of torture by the CIA as immoral.

Disturbingly, who can doubt that Trump views Haspel’s past involvement in torture as a plus?  And that he will not hesitate to carry through on his campaign promise to reinstate torture?  And that he doesn’t believe Haspel, who has already demonstrated her moral flexibility, will be the perfect instrument of his lawlessness?  Maybe Haspel will stand up to him, but we shouldn’t give her the opportunity.

The only compelling argument for supporting Haspel is that Trump likely will nominate someone worse if she is rejected.  Before Haspel’s nomination, the front-runner was rumored to be Sen. Tom Cotton (R-Ark.), who has relieved Ted Cruz of his crown as least popular senator.  Cotton is an extreme partisan ideologue, who would be a terrible choice.  But, let’s deal with the next nominee when the time comes.

For now, Gina Haspel’s confirmation would send a final message that there will be no accountability for one of the most shameful chapters in American history.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.