To Prevent Torture Redux, Look Beyond Haspel

On May 9, CIA Deputy Director Gina Haspel will get her chance to shape–or reshape–the narrative surrounding one particular episode in her 30+ year CIA career: her time running one of the now-infamous Agency “black site” interrogation centers used in the Bush administration’s torture program. Haspel’s challenge will be in getting Senators and the public to look beyond existing media accounts about her alleged role in running the “black site” at which al Qaeda suspect Abd al-Rahim al-Nashiri was repeatedly waterboarded, and her role in carrying out the destruction of videotapes showing the gruesome sessions. 

Despite the benefit of an unprecendeted (and in my view very legally questionable) CIA domestic influence operation on her behalf, Haspel has her work cut out for her. It’s unlikely that the “I was just following orders” line will do anything other than sink her nomination. If she has and claims to Senators, as former CIA Station Chief John Bennett has suggested, that she has learned the proper lessons from the episode (i.e., that torture is wrong, that she would refuse a Trump order to restart a new torture program, etc.), should she get the chance to lead the Agency? Would she actually serve as a check on Trump? On the latter question at least, I think the answer is a resounding “no.” The reason is that America’s first torture program got off the ground because lots of people in government–not just at the CIA–elected to not only go along with it, but facilitated it.

It took a pliant Secretary of State to not make waves about the “black sites” being set up and run outside the control of the local U.S. ambassadors, generally the person in charge of all U.S. government activities, programs, and relationships with the host nation. It took an eager group of lawyers in the Department of Justice’ Office of Legal Counsel (OLC) to write the opinions effectively redefining torture out of existence, thus providing a legal shield for anyone participating in the program. If there’s one issue that is more important than who is running the CIA, it is who is in charge at DoJ, and especially what kind of lawyers populate OLC. Just because the McCain-Feinstein anti-torture amendment is law does not mean the next John Yoo or Jay Bybee won’t try to redefine it for executive branch agencies charged with starting a new torture program. 

In the first torture program’s aftermath, a new and untested president insisted that Americans “….look forward as opposed to looking backward” on the U.S. torture program. Because the CIA is one of the federal agencies exempted from normal Office of Personnel Management rules (i.e., CIA is an excepted service), Obama didn’t actually need to have a federal prosecutor file charges to get rid of CIA personnel involved in the torture program. He could’ve fired them himself. He didn’t, and that’s one reason why Gina Haspel now has a shot to run the CIA. 

To recap: At the State Department, we now have a pliant Secretary who in the past has clearly stated his support for the first torture program, like President Trump. We have a Justice Department that is constantly under siege from a White House that clearly has a “loyalty test” it tries to impose on those working there. And we have a previous manager of America’s first torture program teed up to lead the federal agency that ran that same program. The conditions are certainly ripe for a Torture Redux. The question now is whether the Senate recognizes the danger and will act accordingly. We will know soon enough.