Below is my column in USA Today on the nomination Deputy Director Gina Haspel to head the CIA. While Sen. Rand Paul has declared that he will oppose Haspel over torture, some Democrats (who are being criticized for previously failing to act on torture allegations) are again hedging on whether they will oppose a nominee solely due to her involvement in the torture program. However, one promising development is an effort by Sen. Dianne Feinstein to have Haspel’s record on torture declassified. There remains some debate over Haspel’s role on notable cases. Reports still indicate that Haspel oversaw the torture of Abd al-Rahim al-Nashiri at the “Cat’s Eye.” However, it is not clear if she was “Chief of Base” during the torture of Abu Zubaydah. ProPublica issued a correction Thursday that she was not Chief at the time of the Zubaydah torture. There is no debate that Haspel ordered the destruction of evidence of the torture program.
Here is the column (which has been edited since its original posting):
The firing of Rex Tillerson occupied much of the news yesterday as shocked anchors recounted how the Secretary of State was effectively dispatched by a single Trump tweet. The shock, however, should not be over Twitter but torture. Once CIA Director Mike Pompeo replaces Tillerson, President Donald Trump wants Pompeo’s second in command to take over the CIA: Deputy Director Gina Haspel.
Most people have no idea who Haspel is. She is, however, well-known to human rights advocates and civil libertarians around the world. Haspel was not simply a key figure in the torture program run by the Bush administration, she headed one of the infamous foreign black sites and was accused of knowingly destroying evidence of the torture carried out on her watch.
After years of Congress and former Bush officials denouncing the torture program, the confirmation of Haspel would reaffirm that torture as not simply acceptable but a potential path to promotion in the United States. Trump has declared the possible confirmation of the agency’s first female director as a “historic milestone.” Given her role in the torture program, however, Haspel’s confirmation would be equally historic and one milestone we would be wise to avoid.
The torture program approved by former president George W. Bush on Sept. 17, 2001, represented one of the most infamous moments in our history. The Justice Department memo used to justify the program was ultimately denounced by the Justice Departmentas seriously flawed and withdrawn. The program was ultimately closed as both Republicans and Democrats belatedly lined up to pledge to block any such program in the future. On Dec. 30, 2005, the Detainee Treatment Act was passed to reaffirm the long-established fact that waterboarding is torture and torture is a violation of not just international law but United States law.
The shocking accounts of the U.S. torture program destroyed the credibility of the United States and emboldened our enemies in China and other countries in their own use of torture. Among these shocking accounts was the torture of Abu Zubayda. Zubayda was the subject of one of the CIA’s “extraordinary rendition programs” where suspects were taken to foreign locations were they were tortured. Haspel was the “Chief of Base” at the Thai torture site known as CIA’s “Cat’s Eye.”
Zubayda was waterboarded 83 times in one month. He was denied sleep, forced into a small coffin-like box for long periods of time and physically abused, including having his head slammed into walls. The CIA reportedly got nothing from the torture.
Accounts of the torture sessions describe “fluid intake and involuntary leg, chest and arm spasms” and “hysterical pleas.” Zubaydah “became completely unresponsive, with bubbles rising through his open, full mouth.” None of that mattered even when Zubaydah could no longer communicate and lost consciousness. There was only one person who could stop suchh sessions: chief of base Haspel. There is no indication that she used that authority.
Haspel’s defense has always been that she was merely following orders. Putting aside the troubling history of that defense (and the rejection of the defense by the United States in prior war crime prosecutions), Haspel relied on the torture memos by John Yoo and Jay Bybee — later rejected by the Justice Department as seriously flawed because they misrepresented governing legal standards. Haspel made direct reference to that legal cover in one of her dispatches on July 2002:
“Team is ready to move to the next phase of interrogations immediately upon receipt of approvals/authorization from ALEC/Headquarters. It is our understanding that DOJ/Attorney General approvals for all portions of the next phase, including the water board, have been secured, but that final approval is in the hands of the policy makers.”
However, if Haspel was confident of the legality of her actions, it was not evident when she was promoted back at Langley. As the world was learning of the torture program and members of Congress demanded a special prosecutor, Haspel dispatched orders in 2005 for tapes of the torture sessions involving her to be destroyed. Her orders were part of a comprehensive effort to destroy evidence of the programs so neither courts nor Congress could use them against officials like herself.
Virtually all of those members of Congress who are now demanding obstruction investigations and charges in the Russian controversy did nothing. Haspel, her boss Jose Rodriguez, and others got away with destroying evidence of allegedly criminal conduct. Haspel’s role is so notorious that the European Center for Constitutional and Human Rights has been pushing Germany’s public prosecutor to arrest Haspel for violations of international law.
Her use of “enhanced interrogation” may not have produced much actionable intelligence, but certainly enhanced her career. Haspel ultimately received the George H.W. Bush Award for excellence in counterterrorism, the Donovan Award, the Intelligence Medal of Merit and the Presidential Rank Award. (She was not alone on the career fast track: Torture memo author Jay Bybee would be given a lifetime appointment as a Ninth Circuit judge.)
The one thing to Trump’s credit in this controversy is that he is at least honest. Trump has never adopted the euphemism of “enhanced interrogation” for waterboarding. He has called it for what it is: “torture.” During the campaign, Trump declared “torture … works.” It certainly has worked for Gina Haspel.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches constitutional and tort law. Follow him on Twitter: @JonathanTurley.