Gina Haspel and the Elusive Shadow of CIA Torture: A Response to Ben Wittes

At Lawfare, Ben Wittes has a long post up titled “Why I Support Gina Haspel—Despite a Big Reservation.” It’s worth reading in full, because it makes about as strong a case as can be made for Haspel’s confirmation for folks who are, to put it precisely, less than enthusiastic about the wisdom, morality, or legality of the CIA’s Rendition, Detention, and Interrogation (RDI) program—in which Haspel played a major role. (For those, like President Trump, who see her role in CIA torture as a feature, not a bug, well, that’s another matter.)

But an important aspect of Ben’s post is a point on which he and I have disagreed for about as long as we’ve known each other. And because it’s a disagreement that I suspect goes well beyond the two of us, I decided to pen this response. Ben writes that there are “good arguments for what the CIA did,” even if there are no good arguments in support of re-instituting a similar program today. That’s why it’s easy for Ben to disagree with those who believe that “involvement with the agency’s post-9/11 detention, rendition and interrogation (RDI) program makes a person morally untouchable or unfit for subsequent public service.” To Ben, the RDI program was an unfortunate but understandable lapse, if not blip, at an especially sensitive moment in American national security law. And all that truly matters is promising to never do it again.

Just to say this as clearly as possible, there are no good legal arguments for what the CIA did, and the moral arguments are perhaps even worse. Moreover, as Marty Lederman pointed out on Twitter, even if we bracket the “debate” over whether the horrifying things we did to many of the detainees were lawful (and they most certainly were not), the CIA itself conceded in its response to the Senate Select Committee on Intelligence’s study of the RDI program that, as Marty puts it, the Agency “was woefully unprepared to run the RDI program, that it had no competence for it, and that it was initiated without any ‘exit strategy’ for a covert RDI program—no way to keep it covert (other than to ‘disappear’ the detainees permanently).” And all of this is without regard to the extraordinary rendition program (which Ben does not so much as mention), through which detainees were transferred to third-party countries where they were subjected to even harsher, often unspeakable cruelties. The RDI program involved 119 detainees. We have no idea how many others the CIA relegated to distant dungeons, even though we know that at least some of those cases were based on mistaken identity.

There are three reasons why this sordid history matters, none of which Ben properly grapples with in his post:

First, despite Ben’s effort to portray the RDI program (to say nothing of the CIA’s unmentioned role in extraordinary rendition) as an awkward moment from a turbulent but increasingly distant past, we’re still reaping the consequences of the CIA’s follies. For example, there’s no way to look at the current mess surrounding the Guantánamo military commissions without seeing the continuing shadows of the RDI program—from the pervasive secrecy that continues to dog even basic efforts by the defense lawyers to conduct discovery (or, in one case, to even have a relationship with their client) to the physical and psychological damage suffered by the defendants. Even if we don’t care about the plight of victims of CIA torture and extraordinary rendition, we should at least care about how that torture continues to dramatically complicate (if not altogether undermine) the US government’s effort to obtain justice for the victims of September 11.

Second, even if we don’t treat everyone remotely involved with the RDI program with skepticism, there are numerous credible accounts that Haspel was far more than just a cog in the RDI machine. Separate from her role in supervising the CIA’s black site in Thailand (where she apparently was directly aware of, if not involved in, the torture of Al-Nashiri), former CIA General Counsel John Rizzo has written that Haspel and Jose Rodriguez were “the staunchest advocates inside the building” for destruction of videotapes of some of these abuses. And at least some of those videotapes may have been subject to various judicial preservation orders at the time they were destroyed. That’s not acting under desperate circumstances in the immediate aftermath of the September 11 attacks; that’s taking active steps to shield the CIA’s misconduct in defiance of legitimate legal process. Ben makes a glancing reference to questions Haspel should be asked about her role in the tape-destruction affair, but he fails to recognize how the fact that those questions even need to be asked makes her very much unlike most everyone else involved in the RDI program. That is an enormously important distinction.

Third, and related, as I wrote on Monday, this nomination is also not just about whether Haspel’s CIA colleagues think she’d do a good job as CIA Director; like Ben, I have no doubt that she would. Instead, it’s a referendum on accountability for the CIA’s abuses. That this is so is not entirely Haspel’s fault.  Rather, it’s a culmination of a host of related defects in our political and legal system, all of which have all-but vitiated what could and should have been more effective and more properly calibrated accountability mechanisms. But if we’re going to abide judicial decisions turning away damages suits because the political branches are better situated to impose accountability on these kinds of national security policies, and if the political branches, in turn, are largely going to abdicate a meaningful oversight role, then all we’re left with is the Senate’s power to give advice and consent. Like it or not, that has become the symbolic and historical significance of this nomination, and the President’s shameful (and shameless) marketing of Haspel only reinforces these optics.

What these three threads have in common is the need for a clearer, less contested, public narrative about exactly what the CIA did, and why it was wrong. I provoked some controversy early in the Obama Administration by arguing that it was more important to build such a narrative than to pursue prosecutions of those who were involved. Almost a decade later, we’ve done neither. Indeed, that there’s still even a debate about the legality and wisdom of the RDI program is proof of how little we’ve learned.

To be clear, this doesn’t mean that I am therefore against Haspel’s confirmation. Believe it or not, I remain undecided at this late hour, at least partly for some of the reasons Ben articulates. But I’m undecided because I think her responses to questions about the torture and rendition operations ought to be a key focal point of her confirmation hearing. It can’t be swept under the rug; it is the rug.

It’s not about getting Haspel to promise that the CIA won’t torture any new detainees (as leaked excerpts from her opening statement suggest she will); it’s about asking whether she’ll admit that the CIA made a number of grave mistakes, and that she, herself, played a role in some of them. It’s about asking whether she’ll admit that some of those mistakes reflected fundamental disrespect not only for the rights of other humans, but for the rule of law. And it’s about asking whether she believes that the legislative and judicial branches should have had, and should have, a more meaningful role to play in ensuring that even the CIA is governed by laws, and not by our worst impulses in the heat of the moment. Let’s put it this way, if she takes the same line as Ben with respect to how the country should view this episode in our history, she ought to be defeated.

It’s also not enough to suggest that there won’t be another RDI program; that’s a cheap promise at this point given the laws now on the books. Instead, there has to be an accounting of both what the first one actually entailed (we’re still very much in the dark), and of how we got to a place where it could happen in the first place, let alone thrive. Otherwise, confirming Haspel does nothing to dispel the narrative being advanced by, among others, President Trump—a narrative in which she’s being confirmed because of her (unclear) role in the (still largely secret) RDI program, not despite it, and one in which building a complete, public record of the CIA’s abuses is not only something in which there is no interest, but is actually the opposite of the point.

Ben’s post leaves the impression that he has already decided that Haspel should be confirmed in advance of her hearing. That’s a pity. To me, at least, she (and the CIA) still have a lot of explaining to do—about the past at least as much as the future. And for better or worse, the Senate Intelligence Committee is the only remaining institution in our system that has the leverage (and, hopefully, the wherewithal) to compel such explanations. As a result, for Haspel to be confirmed, the Senate needs to obtain those explanations—and those explanations need to be satisfying.

Photo Credit: Alex Wong / Getty Images 

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Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).