U.S. President Donald Trump’s nomination of career officer Gina Haspel as director of the Central Intelligence Agency has precipitated a debate about whether her alleged role in the so-called enhanced interrogation programs green-lighted by former President George W. Bush in the months and years after 9/11 ought to be disqualifying. Those who oppose Haspel’s nomination have focused on her role in CIA interrogations that used torture—including as the supervisor of a “black site” in Thailand where enhanced interrogation techniques were used—as a prima facie disqualification. “Gina Haspel Is a Torturer. What Else Does the Senate Need to Know?” asked a recent headline for a Politico opinion piece by Alberto Mora. Other critics point out that Haspel’s role in destroying evidence underscores her culpability, as it suggests that she understood that her actions—and those of others who participated in the program—were at least morally or legally questionable. (Despite ProPublica’s retraction of its report that alleged Haspel had overseen the torture of Abu Zubaydah, serious allegations remain with regard to other interrogations conducted at the site she managed.) Meanwhile, Haspel’s defenders have tried to exonerate her of wrongdoing, arguing that she is a career civil servant who was following the instructions of her superiors and operating within the bounds of what had been declared lawful by Bush administration lawyers.
But if Haspel’s pending confirmation process turns into a kind of unofficial public trial, its result is likely to be unsatisfying. A confirmation process is not a judicial proceeding—it can neither indict nor exonerate, and it provides little space for nuance. If she is denied confirmation because of her alleged participation in the interrogation programs, that outcome will be a facsimile of accountability attached to someone who neither created the programs that used torture nor concocted their legal justifications, while those who did have yet to be held accountable. If she is confirmed, it will be because enough senators found the mitigating circumstance of her position persuasive, not because we have reached a well-reasoned conclusion about the moral acceptability of the programs in which she played a part. Either outcome belies the morally complicated reality of her case.
Moreover, to focus mainly on the question of Haspel’s moral culpability is to set the bar too high and the stakes too low. One doesn’t have to pass judgment in the moral case against her personal conduct to see that Haspel’s nomination is a defining moment on torture in the United States and that her confirmation would imperil former President Barack Obama’s carefully executed prohibition of torture. That prohibition—and the delicate implicit political bargain that made it possible—has been under strain since Trump repeatedly touted his support for torture during the 2016 campaign. To confirm Haspel as the CIA director of a president who has stated his support for the use of torture would turn back a page that the country has, with great effort, already turned.
A TACIT POLITICAL BARGAIN
During the first term of the Obama administration, when I was a deputy assistant secretary of state for human rights, there were many in the human rights advocacy community—both domestic and international—who called for prosecution of the Bush-era officials responsible for the use of torture. Indeed, U.S. obligations under the Convention Against Torture also required the government to carry out such investigations and prosecutions.
In the wake of the December 2014 release of the Senate Intelligence Committee’s executive summary of its investigation into the practices of the Bush era, the New York Times editorial board also called for a special counsel to investigate these crimes. “The nation cannot move forward in any meaningful way without coming to terms, legally and morally, with the abhorrent acts that were authorized, given a false patina of legality, and committed by American men and women from the highest levels of government on down,” they wrote. Foreign diplomats also raised with me and others the need for accountability in order for the United States to practice the kind of commitment to the rule of law and human rights that it preached.
A serious effort to hold to account U.S. officials who ordered and committed torture never materialized. In January 2008, the start of the final year of the Bush administration, Attorney General Michael Mukasey ordered Assistant U.S. Attorney John Durham to investigate the destruction of evidence of torture. Obama’s first attorney general, Eric Holder, continued and expanded that work, tasking Durham with looking into the torture itself; but Holder made it clear that people would not be prosecuted for actions that were consistent with guidance from the Bush-era Office of Legal Counsel. (During President Bush’s first term, that office had contorted the law to produce dubious assessments of enhanced interrogation techniques so that they would be considered legal.) This amounted to a de facto amnesty. Indeed, in 2012 Holder announced that the United States would not move forward to prosecutions.
I oppose torture, and I believe torturers must be held to account. Yet I agreed with Obama and Holder’s decision not to investigate and prosecute Bush-era officials, for several reasons. First, in any political system, the prosecution of a predecessor who belongs to a competing political party is likely to be perceived as politically motivated—no matter how warranted the prosecution. This is not to say that political expediency should guide the application of justice, but rather that in certain cases the preservation of fundamental public trust in our institutions and democratic norms is a reasonable consideration when assessing the wisdom of pursuing a particular prosecution (or pardon). Furthermore, I worried that because of the inevitable perception of politically motivated prosecution, torture itself could become a partisan issue, and Republicans could feel the need to defend the practice of torture and even advocate for it. I did not think that the goal of ending torture was well served by reinforcing the idea that support for torture breaks down along party lines.
Finally, my hope was that Obama’s Executive Order 13491 on ensuring lawful interrogations (and on banning the use of torture by the U.S. government), issued on his second full day in office, was the kind of clear statement, reinforced by determined presidential leadership, that could help the country turn a page and establish—over time—a taboo around even contemplating the use of torture. Prosecutions and the public relitigation of the utility and morality of torture that would accompany them would not help consolidate such a taboo. (By late 2015, Congress passed legislation, sponsored by Senators John McCain and Dianne Feinstein, that embedded the prohibitions outlined in Obama’s executive order in law. This seemed to confirm that an effective ban on the use of torture was solidifying.)
In essence, the actions of Obama and his administration amounted to a principled stand, backed by an unspoken political bargain: We will not prosecute Bush-era officials implicated in the program, and in exchange we will all move forward as a country with an unambiguous commitment that torture of any person in U.S. custody, anywhere in the world, is wrong and dangerous.
A PROHIBITION UNDER THREAT
Trump has threatened this prevailing arrangement in several ways. On the campaign trail in 2015 and 2016, he repeatedly stated his intention to reintroduce the use of torture. He went so far as to make the grotesque claim that even if he was wrong about torture’s effectiveness, those who were tortured deserved it. Although the passage of the McCain-Feinstein amendment may have complicated the feasibility of rescinding Obama’s executive order, even after taking office, Trump has reiterated his support for torture. In his first weeks in office, while he said—somewhat bizarrely—that he would allow himself to be “overruled” by Defense Secretary James Mattis (who opposes torture), Trump was careful to restate his own position.
Even after taking office, Trump has reiterated his support for torture.
It’s not just Trump’s embrace of torture that raises concerns. The White House’s chaotic approach to governance and willingness to test (or ignore) the boundaries of legality also endanger the prohibition established by Obama. To take a seemingly unrelated example, Trump’s effort to ban entry to the United States for individuals from several predominately Muslim countries—which multiple judges have ruled unconstitutional—demonstrated his willingness to push an agenda inconsistent with existing law. Neither Trump’s public assurances that he defers to Mattis on torture nor the permanence of Mattis’s position can be relied upon. Unlike the so-called Muslim ban, an order to reinstate torture might be kept secret, making it much more difficult to thwart through legal challenges.
It is in this context that we should consider the Haspel nomination. There is no need to conclude whether she is guilty or innocent. The fact that she managed a site where torture was used is enough to cast doubt on whether she would, as director of the CIA, uphold the prohibition established by Obama. And given Trump’s stated positions and his approach, the defense that so many of her defenders use—that she was just following orders—is especially unpersuasive, because we cannot be sure that the current president would not order the CIA director to use torture.
The broader context also exposes the distinction between Haspel’s case and that of former CIA Director John Brennan. Brennan was a senior official in the CIA during the Bush administration. Later, he was tapped by Obama to lead the CIA. If Haspel’s past is disqualifying, why was John Brennan’s past not? Those who supported Brennan and oppose Haspel appear to be engaging in hypocrisy (and sexism). Obviously, “two wrongs don’t make a right.” And of course there is also the fact that some Haspel opponents also opposed Brennan (and even his supporters lamented his own opaque moral history with regard to torture). But there is another important distinction between the two nominations: even if one admits there are similarities between Brennan and Haspel, one must acknowledge the differences between Obama and Trump. Brennan was the CIA director for a commander in chief who had made an unambiguous formal commitment to banish torture from official practice. Haspel is the nominee of a president who openly supports torture. That’s not Haspel’s fault, but it does make her nomination substantially different from Brennan’s.
If an investigation and prosecution effort had taken place during the Obama era, Haspel may well not have been a subject. The limits of prosecutorial resources and the opportunity for signaling usually mean that one focuses on the top of the pyramid. Investigating and prosecuting key Bush-era figures such as Deputy Assistant Attorney General John Yoo, Attorney General John Ashcroft, vice-presidential counsel David Addington, and former CIA Director George Tenet would have constituted a different approach to dealing with torture, a different way of attempting to seal off the past and move forward. In that sense, Haspel’s nomination may be collateral damage from the collision between the Obama administration’s decision not to pursue accountability through law and Trump’s position on torture. Whatever her personal culpability, it’s not entirely fair that her career is the one that suffers, while others have moved forward in theirs.
But Haspel’s confirmation would put someone who participated in the use of torture in a position to lead the organization that used it and under the direction of a president who believes in it. To move forward with Haspel’s confirmation and think that everything else can stay the same is to misunderstand the stakes. The Obama administration’s decision not to investigate and prosecute torture—in order to be morally defensible—cannot be understood as a decision to “wipe clean” the slate. It was not an absolution.
If Haspel is confirmed, those who oppose torture but supported Obama’s approach would face an obvious conclusion: the deal they tacitly accepted—impunity in exchange for certain prohibition in law and practice—has been undone. In order to banish torture, a moral stain that imperils U.S. standing and security in the world, they must push for prosecutions. (International partners who also quieted calls for accountability because of Obama’s decisive action might also seek to prosecute U.S. officials—not just Haspel—in their domestic courts.) If the deal does not hold now, then under a future anti-torture administration it would be morally indefensible to try the same deal again. There must be a push, however politically challenging, to prosecute those responsible for torture.