The Senate has recently confirmed Mike Pompeo to be Secretary of State, after Senator Rand Paul (R-KY) dropped his objections and several Democrats indicated that they would support the nominee. The confirmation process for Pompeo’s replacement as head of the Central Intelligence Agency (CIA) is not likely to go so smoothly. It goes without saying that this is an incredibly important appointment. As poignantly conveyed in a recent op-ed by the former Director Michael V. Hayden, having a trustworthy intelligence agency is crucial because it undergirds all of U.S. foreign policy. Although intelligence gathering inevitably involves legal gray areas, the prohibition against torture is a bright line rule. When that line was crossed (repeatedly) during the Bush Administration, it caused acute damage to the Agency itself (and to the Department of Defense) but also to the United States’ standing in the world and to the global commitment to the anti-torture norm. The potential appointment of the next CIA Director will send a strong message: Is the United States truly committed to eradicating the use of torture—which is immoral, illegal, and inefficacious—or are we at risk of backsliding into unlawful and discredited policies and practices of the past?
This brings us to President Trump’s candidate to take the helm of the CIA: Gina Haspel, the current Deputy Director and a 30-year veteran of the Agency. A number of intersecting objections to her nomination have been advanced: (1) she was directly and personally involved in the torture of “War-on-Terror” detainees, particularly in CIA “black sites” around the world; (2) she was instrumental in the destruction of videotapes documenting the interrogation and abuse of detainees in violation of a court order, advice and directives from elsewhere in government, the Federal Records Act, and potentially Title 18, the federal Penal Code; (3) appointing someone so intimately involved in prior policies sends a dangerous message to our allies and the rest of the globe about the durability of the United States’ commitment not to return to the brutal, unlawful, and ineffective interrogation practices that characterized the so-called War on Terror; and (4) her very nomination signals to U.S. intelligence professionals that they can engage in, or cover up, such conduct and face no repercussions at all and even rise in the ranks to positions of leadership.
To be sure, over 50 former national security officials from both sides of the aisle have endorsed Haspel, and Condoleezza Rice recently appeared on Fox & Friends to defend Haspel on the grounds that those of us who were not in government after 9/11 have no idea of the pressures those in government faced to keep us all safe. At the same time, a wide variety of other groups have contested her nomination—including human rights organizations, elected officials, faith communities, torture treatment centers, and former military leaders. Among other such position papers, more than 50 civil society/human rights groups have penned an open letter opposing her candidacy. Similarly, 109 retired generals and admirals expressed their “profound concern” about her involvement in the CIA’s “rendition, detention, and interrogation” (RDI) program. In their letter, they argue:
It would send a terrible signal to confirm as the next Director of the CIA someone who was so intimately involved in this dark chapter of our nation’s history.
Note that retired senior military officers rarely weigh in on political matters on the theory that their status inappropriately and unduly lends the military’s apolitical stature and credibility to political interests; the fact that this letter was issued—and with so many signatories—signals the importance of this nomination, domestically and with respect to the United States’ standing in the world, as well as the gravity of the concerns raised by Haspel’s nomination.
Because of these concerns about her prior involvement in the RDI program, efforts to internally promote Haspel have been blocked before, reputedly due to a strong intervention by Senator Dianne Feinstein (D-CA)). So far, Paul has indicated his opposition to her candidacy, although he is taking heat for not supporting his fellow Kentuckian in an ad paid for by an advocacy group that echoes Rice’s comments on Fox & Friends. Against ominous music, the ad states:
When terror struck on 9/11, America struck back and it was Kentucky’s own Gina Haspel on the front lines, interrogating terrorists. … Haspel did exactly what her country asked of her and what was necessary to keep us safe. Call Rand Paul…
All of this only lends support for the proposition that the Senate must closely examine the full extent of Haspel’s association with the CIA’s RDI program, which involved the mistreatment of at least 119 men in U.S. custody. Properly vetting Haspel as a candidate, however, is proving to be an acute challenge because so much of her background is classified and shrouded in secrecy, and the Agency is refusing to provide members of the Senate Select Committee on Intelligence with the information they have requested. Nonetheless, open source research reveals the following troubling details about her role during the Bush years.
- She Held a Senior Position in “Detention Site Green” (Thailand) Where Al-Nashiri was Tortured
Although the precise chronology of appointments and events remains somewhat murky—itself a source of concern given the need for Congress to conduct a robust vetting process for such a key post—it is known that starting in October 2002, Haspel became Chief of Base in the first extraterritorial CIA detention facility: “Detention Site Green” in Thailand. (All the “black sites” have been, ironically, color-coded; this site compiles press about Detention Site Green).
Two war-on-terror detainees were tortured at Detention Site Green: Abu Zubaydah—the first post-9/11 detainee in CIA custody—and Abd al-Rahim al-Nashiri—accused of “masterminding” the attack on the U.S.S. Cole in Yemen in 2000 even though his mental fitness has been questioned. Both men were also held in Poland, which was found to have violated their human rights by the European Court of Human Rights, and are currently imprisoned in Guantanamo. (This site tracks rendition flights between black sites).
It now appears that Haspel was not Chief of Base in Thailand when Abu Zubaydah was subjected to waterboarding and other forms of torture, as was originally reported in a Pro Publica story that was later retracted. (See our coverage here). Nonetheless, and discussed in more detail below, the Daily Beast has reported that Haspel “was in a position of responsibility” over the early interrogations of Abu Zubaydah, even though she may not have been physically present. Moreover, Abu Zubaydah’s excruciating reaction to the torture to which he was subjected was described in cables—later declassified (and available in excerpted form here)—which Haspel would have received given her leadership position in the Agency at the time.
Although she was not Chief of Base in Thailand during Abu Zubaydah’s torture, Haspel did occupy that position—and was apparently physically present—when al-Nashiri was repeatedly tortured once he arrived at Detention Site Green in November 2002. This included three rounds of waterboarding, a form of torture committed against U.S. POWs in World War II which earned the perpetrators the death penalty, as Senator John McCain has reminded us. Some of the horrific conduct to which al-Nashiri was subjected at Detention Site Green and elsewhere is outlined in this brief filed by his legal counsel and this petition filed before the U.N. Committee Against Torture. Additional details appear prominently in the CIA’s 2004 Inspector General Report on Counterterrorism Detention and Interrogation Activities (particularly in the additional pages released by President Obama) and in the Executive Summary of the Senate Select Intelligence Committee’s (SSCI) still-classified Report on U.S. Detention and Interrogation Program, which was released in redacted form in December 2014. These accounts indicate that CIA detainees were routinely subjected to “rectal feeding,” waterboarding, stress positions, sleep and sensory deprivation, threats of rape and sodomy to themselves and members of their families, sexual assault, mock executions, extreme cold and continuous noise, and long-time standing on broken bones.
As Chief of Base, Haspel would have been empowered to interrupt or stop an interrogation in process. It is not clear if she ever exercised this power. Detention Site Green was closed at the end of 2002, when its existence was discovered by the press. At the time, Haspel apparently told her security officer to “burn everything” to “sanitize” the site. When she asked about videotapes that had been made of the interrogations on site, it has been reported that she was told by her superiors not to destroy the tapes. As we now know, and as discussed below, this directive was not followed.
Incidentally, it is unclear to what extent Detention Site Green was established with the knowledge or complicity of Thailand’s then-Prime Minister, Thaksin Shinawatra (2001-06), an authoritarian leader who was educated in the United States and later ousted by a military coup amidst corruption allegations. In the alternative, some accounts suggest that the facility was discovered by the Thais after it was in already operation. In the highly critical SSCI report, the Committee noted that the Thai government demanded that the site be closed, but caved following continued “lobbying” by the “chief of station,” likely either Haspel or her predecessor or both. (Thaksin was later convicted in absentia and had his assets seized; he remains in exile.)
Regardless, Thailand has denied the existence of Detention Site Green. It should be noted that Thailand did not accede to the Convention Against Torture until 2007, after the events in question, which meant its commitment to the international rules against torture was weaker than other states that had ratified the treaty, including the United States.
Although short-lived, this model of a clandestine detention facility was replicated elsewhere, leading the Daily Beast to call Detention Site Green a “Laboratory for Torture.” The Bureau of Investigative Journalism has described it as the place where
the basic blueprint of the CIA’s detention regime was invented.
- Her Far-Reaching Involvement in the Extraordinary Rendition, Detention, and Torture of U.S. Detainees Throughout the CIA’s Clandestine System
In addition to her involvement in the torture of al-Nashiri, questions have been raised about Haspel’s role in standing up, implementing, and overseeing the RDI program more broadly, before and after her confirmed stint at Detention Site Green.
For example, the CIA’s former General Counsel John Rizzo has stated that Haspel oversaw the entire interrogation program from her capacity reporting directly to, and as protégé of, Jose A. Rodriguez Jr., who admits to running the CIA’s program from his position as Director of the CIA’s Counterterrorism Center (CTC), which had overall responsibility for implementing the CIA’s capture and detention authority. Haspel was also apparently in charge of communicating with black sites around the world. For example, New York Magazine is reporting that Haspel authored a cable dated April 30, 2002, and entitled “IMMEDIATE: Turning up the Heat in AZ Interrogations,” which is available in highly redacted form here in The Torture Database hosted by the ACLU. Although it is impossible to confirm that she is the author, the cable would suggest that she was in direct contact with operators there and was aware of what was happening on the ground in Detention Site Green, and perhaps even directing operations, before her deployment there.
The CTC has been criticized by the CIA’s own Inspector General (IG), with particular opprobrium directed towards personnel who improvised and mistreated detainees in ways that had not been previously “authorized.” In addition, the IG Report on the CIA’s detention and interrogation practices in September 2001 – October 2003, the crucial formative period of the RDI program, notes that requests to superiors by subordinates at black sites were repeatedly ignored and oversight was woefully inadequate. The IG’s Report concluded that the Agency:
faces potentially serious long-term political and legal challenges as a result of the CTC Detention and Interrogation program, particularly its use of EITs [enhanced interrogation techniques]…
tortured just for the sake of torture, not for the sake of gathering information.
In the same interview, Kiriakou indicates that he disagrees with Pompeo politically, but the choice to head the State Department “doesn’t have the kind of baggage that Gina Haspel has.” Another former colleague, Glenn Carle, has described Haspel as
One of the architects, designers, implementers and one of the top two managers of the [torture program] and a true believer, by all accounts, in the ‘Global War on Terror’ paradigm.
Another former colleague is quoted as having said:
“To the best of my understanding, she ran the interrogation program,” the official said. “Her becoming director absolutely terrifies me,” continued the former CIA official. “Once I heard her name, I immediately thought, ‘Oh, God.’”
Incidentally, the unredacted bits of the April 2002 “AZ” memorandum referred to above reveal the degree of power exercised by on-site psychiatrists and psychologists (deemed “experts” in the memo) in recommending interrogation courses of action. Although there may have been others involved, this likely refers to two American psychologists—Dr. James Mitchell and Dr. Bruce Jessen—whose enterprise won a stunningly lucrative contract (it paid out at least $81 million) to help establish the CIA’s RDI program despite their demonstrable lack of experience in interrogation or detention practices. The two were sued by the ACLU on behalf of three of their victims (two detainees and the family of a third—Gul Rahman—who died of exposure/hyperthermia in the CIA’s “Salt Pit” when he was left shackled and mostly naked in 35°F temperatures) for their role in designing and implementing torture in CIA black sites.
This is all relevant to the current nomination because as part of their defense to the claims against them, the defendants sought to depose Haspel, arguing that she was “centrally involved” in the events complained of by the plaintiffs and had information that would be crucial to their case, according to defendants’ witness list. This move was blocked in February 2017 by the DOJ’s assertion of the state secrets defense, although Pompeo has refused to confirm that Haspel was a part of the RDI program and other officials were allowed to give depositions. On the eve of trial in 2017, the two psychologists settled, two years after the American Psychological Association finally joined other medical associations in prohibiting its members from participating in national security interrogations.
- Her Involvement in the Covering Up and Destruction of Evidence of such Mistreatment and Potential Criminal Conduct Contained in CIA Interrogation Videotapes
Haspel has also drawn criticism for her central role in the destruction of over 90 videotapes that apparently documented individuals in U.S. custody being subjected to “aggressive interrogation methods,” including acts of torture and other forms of abuse. The tapes, which likely depicted the interrogations of Abu Zubaydah and al-Nashiri (some reports suggest that the tapes of Khalid Sheikh Mohammed were included, although this seems unlikely since KSM was not captured until 2003), were reportedly produced from April to December 2002 and were then stored in a safe at the CIA station in Thailand until their elimination. BREAKING NEWS: The Daily Beast is reporting that a copy of at least some of the tapes may still exist.
After what has been described as a contentious three-year internal debate, operatives in Thailand fed the videotapes into an industrial-strength shredder on or about November 9, 2005. This occurred at a time when the existence of CIA “black sites” in Europe and Asia had been discovered, after the Abu Ghraib prison scandal had exploded in the press, in the midst of Congressional scrutiny and legal investigations into the United States’ secret detention and interrogation program, and after the CIA received several formal Congressional requests for information about the conduct of CIA interrogators at such sites, including copies of all videotapes of interrogations. The CIA had refused to provide such information at the time. The New York Times first broke the story that the tapes had been shredded on December 7, 2007, which the Agency later confirmed.
The chain of command around this extraordinary event is also somewhat unclear. In November 2005, Haspel had been elevated to Chief of Staff to Jose A. Rodriguez, Jr., the then-Director of the National Clandestine Service (D/NCS), the covert branch of the Agency. In his book, Rizzo recounts that Haspel was one of the “staunchest advocates” for destroying the tapes (Rizzo has described being lobbied by her on a near weekly basis to get rid of the tapes); this observation has been echoed elsewhere. In this capacity, Haspel wrote the cable to go out over Rodriguez’s signature. Rodriguez in his memoir says he asked Haspel to prepare a cable granting permission to colleagues in Thailand destroy the tapes. Despite a long-standing disagreement over what to do with the tapes, then-CIA General Counsel Rizzo was not consulted before the memo went out and was apparently (and understandably) furious. All told, the act caused panic in the CIA.
The articulated rationale for destroying potential evidence was to protect the identity of the interrogators after any intelligence value had been exhausted. However, quotes in the public record indicate that Rodriguez was very much concerned with protecting his staff from criticism or legal action for the harsh conduct depicted in the tapes (“ugly visuals,” in Rodriguez’s words). Rodriguez in a deposition also indicated that he wanted to protect the Agency itself, because the tapes would “make the CIA look bad” and might even “destroy the clandestine service.” Internal CIA cables indicated that the Agency planned to cover up what was happening in the black sites.
There were myriad reasons why the tapes should have been preserved as a matter of law and practice. For one, the decision to eliminate the tapes came at a time when there were court orders in place to preserve evidence of detainee mistreatment. Judge Leonie M. Brinkema, a federal judge in the Eastern District of Virginia, had ordered the CIA to turn over the tapes of any detainees that might be relevant to the 9/11 case against Zacarias Moussaoui (the so-called 20th hijacker). Prosecutors were later forced to admit to the judge that the CIA had wrongly assured her that there were no videotapes of interrogations of detainees. Furthermore, the tapes were destroyed despite the fact that White House and DOJ lawyers advised against it. It also appears that other members of the Agency were either not consulted about, or were angered by, the destruction, including Porter J. Goss, who headed the Agency at the time. Likewise, relevant members of congressional oversight committees, who were at the time involved in a formal inquiry, were not consulted about or informed of the decision to destroy evidence that was responsive to their requests for information, despite initial claims to the contrary. The SSCI report suggests that claims by the CIA that Senator Pat Roberts (R-KS), as Chair of the SSCI, had assented to the destruction of the tapes were false. Finally, the 9/11 Commission had also asked the Agency for all relevant information about the attacks and their aftermath.
In Haspel’s defense on this point, the CIA has recently declassified an 8-page disciplinary review memorandum dated December 20, 2011, and written by then-Deputy Director Michael Morell, who later served as acting CIA Director. The memorandum, produced at the request of then-Director David Petraeus, purports to clear Haspel of any wrongdoing in the destruction of the tapes. The memorandum concludes that Haspel was only acting pursuant to the orders of Rodriguez, who made the ultimate decision to destroy the tapes. In terms of sanction, Rodriguez—then retired—received a mere “letter of reprimand” that remained in his official personnel file for only two years, in part because Morell determined that Rodriguez did not act for personal gain but rather to protect the Agency. The review memorandum indicates that Haspel “incorrectly” believed that Rodriguez had obtained or would obtain approval from the then-head of the Agency, Director Goss.
To be clear: this disciplinary review was finalized 6 years after the tapes’ destruction and after Rodriguez had already retired. Ironically, Morell complains that this accountability exercise came too late to be fair to the protagonists (which begs the question of why such an investigation was not conducted at the time the destruction occurred). It was no doubt launched when it was because in 2007, the SSCI had initiated its own review of the destruction of the tapes. CIA Director Michael Hayden testified before the SSCI that the contemporaneous cables were “a more than adequate representation of the tapes.” The next year, the Department of Justice opened a formal criminal investigation into potential obstruction of justice by the CIA over the tapes at the instigation of President George Bush’s Attorney General, Michael Mukasey. This was the investigation led by Special Prosecutor John Durham, which President Barack Obama’s Attorney General, Eric Holder, eventually expanded to cover all war-on-terror abuses.
Durham concluded in 2010 that he lacked sufficient evidence to bring criminal charges for the destruction of the tapes, days after the statute of limitations would have run. He was undoubtedly concerned with whether this conduct may have violated the Federal Records Act, at a minimum, or even the criminal law. The spoliation, destruction, or concealment of evidence that is relevant to legal proceedings or an ongoing investigation is a crime in many jurisdictions, including under federal law. According to the federal penal code (18 U.S.C. § 1519), it is a crime carrying a penalty of up to 20 years’ imprisonment if a person knowingly:
Alters, conceals, falsifies, or destroys
Any record, document, or tangible object
With the intent to interfere with an investigation, possible investigation, or other proceeding by the federal government.
Nonetheless, the DOJ indicated in 2010 that it would not bring charges.
In August 2012, Durham reached the same conclusion with regard to the death and abuse of detainees in CIA custody. As a result, no charges have been brought for any of the excesses of the RDI program.
Even if Haspel was just “following orders” in any and all of this conduct, as some of her former colleagues have stated in her defense, that claim has been illegitimate since Nuremberg, especially when it comes to orders that are illegal on their face. Principle IV of the Nuremberg Principles states:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
The concern, of course, is that Haspel’s actions reveal that her loyalty is to the Agency rather than to her ultimate superiors, the courts, the political branches, or the rule of law.
As an aside, the precise chronology of when the recordings were produced is significant because at least some of the tapes appear to have been produced prior to the issuance of memoranda dated August 2002 and signed by Jay Bybee (although authored by John Yoo) from the Department of Justice’s Office of Legal Counsel that authorized some of the torture tactics depicted in the tapes. Since these memoranda were issued after CIA personnel committed some of the conduct in question, such operatives would not enjoy ostensible legal cover for their actions. President Obama withdrew these opinions immediately upon taking office in 2009. (Incidentally, ethics investigators with the DOJ’s Office of Professional Responsibility concluded in a 2009 memorandum that Bybee had acted in “reckless disregard” of his duty to exercise independent legal judgment and that Yoo had intentionally violated professional standards. Although the memorandum recommended disciplinary action, the Justice Department declined to pursue additional sanctions or even disbarment).
- Her Nomination Sets a Dangerous Precedent and Sends a Signal that the Promotion and Cover-Up of Torture will be Rewarded
In addition to Haspel’s involvement in the events described above, many oppose her candidacy to lead—and to publicly represent—the CIA on the grounds that she is just too tainted by the now thoroughly discredited RDI program. This argument is even more potent given that President Trump has endorsed torture (although he later walked back his comments upon advice of his Secretary of Defense) and contemplated re-opening black sites abroad. The Center for Victims of Torture, and organization that provides psychosocial assistance to torture survivors, has reasoned in a letter opposing Haspel’s candidacy that:
Endorsing Ms. Haspel would reward torture and send a disastrous message the world over—that there is no accountability whatsoever for those who commit these grave human rights violations.
Promoting someone so deeply enmeshed in the torture program risks further eroding the anti-torture norm. Even more, whistleblower Kiriakou has argued that Haspel’s nomination will embolden ISIL and Al Qaida, which used the RDI program and the detention center at Guantánamo as propaganda and recruitment tools.
Although many accounts of the RDI program focus on the immediate and long-term physical and mental harm to detainees caused by torture, it should not be forgotten that participating in the torture and mistreatment of others can also cause deep psychological and “moral injury” to our own personnel, as detailed in this op-ed and an important new book by the same authors.
- Her Nomination Threatens the United States’ Ability to Work in Coalition with our Allies
The 109 retired generals and admirals stated this concern bluntly in their letter to the Senate:
The torture and cruel treatment of prisoners undermines our national security by increasing the risks to our troops, hindering cooperation with allies, alienating populations whose support the United States needs in the struggle against terrorism, and providing a propaganda tool for extremists who wish to do us harm.
As others have discussed on these pages, the fear is that our allies will refuse to cooperate with the CIA if it is led by someone so closely associated with the Bush Administration torture program. Many states that hosted black sites—including Macedonia, Poland, Italy, Romania, and Lithuania—have been sued before the European Court of Human Rights for their role in allowing U.S. black sites on their territories. Our allies will no doubt be wary of sharing intelligence, conducting joint operations, or even just allowing the Agency to operate on their territories with Haspel at the helm.
- Without the Declassification of Relevant Records, the Senate Cannot Conduct a Full Inquiry into her Suitability to Lead the CIA
Rather than providing Congress with more details about Haspel’s precise role in the RDI program, the CIA has launched a charm offensive in Haspel’s defense, providing all sorts of folksy details about her love of the University of Kentucky Wildcats basketball team (no doubt pandering to Rand Paul (R-KY) even though she only lived there for a handful of years) and playing up the prospect of her being the first woman to lead the CIA. As Senate Martin Heinrich (D-NM) stated to the New York Times:
They are basically running a full-on propaganda campaign but withholding the information that the American people need to be able to make an informed decision about this nominee’s fitness for the job.
Other former CIA officials have described these efforts as “creepy.” At a minimum, it is deeply questionable whether the CIA should even be weighing in with such a heavy hand on a political appointment to head the Agency.
In lieu of this public relations campaign (which Senator Ron Wyden (D-OR) called a “cover-up” of Haspel’s career), the Agency should provide to members of Congress on the relevant committees more complete details of her precise role in the events discussed above. Indeed, the 109 retired generals and admirals have asserted that given the serious allegations against her, members of the Senate must insist on full declassification (with appropriate redactions as necessary) of all information regarding her role in the rendition, interrogation, mistreatment, and torture of detainees during the “War on Terror.”
* * *
It should be noted that all this may be smoke and mirrors. There is one theory that Haspel’s nomination was made on the knowledge that it would fail given her complicity in the torture program. This outcome, it is surmised, would pave the way for President Trump to nominate a political appointee instead. Senator Tom Cotton (R-AK), a staunch ally, is reputedly interested in the job. The Agency, not surprisingly, would rather have an insider at the helm, even one that is tainted by torture. Indeed, another theory, espoused by an anonymous former government official, is that the promotion of Haspel amounted to the C.I.A.’s revenge:
The agency is giving the finger to anyone who was ever critical of the program…
The Daily Beast also quotes a former intelligence officer:
The CIA, and its former officers, are pushing so hard for Ms. Haspel to be director because if she’s confirmed, it essentially exonerates her, the CIA and all of these former senior CIA officials from their involvement in or their defense of the torture program.
Ironically, however, the best way to rehabilitate the image of the Agency and repair the damage that has been done to members of the intelligence community is to be forthright about its prior failings, to unequivocally renounce these practices, and to refrain from promoting individuals who are indelibly implicated in prior excesses.
Regardless of the ulterior motives behind her nomination or the support she has garnered, Congress—and the American people—deserve to know more specifics about Haspel’s prior role in, and current attitudes toward, one of the most shameful chapters in U.S. history.
Haspel’s confirmation hearing is scheduled for May 9, 2018. Just Security has suggested a series of questions she should be asked in the hearing.