Portside

Last month President Donald Trump signaled another shuffling of key posts: Rex Tillerson was shown the door, CIA boss Mike Pompeo was offered the position of Secretary of State, and the CIA’s second-in-command, Gina Haspel, was proposed to lead the agency. Haspel has subsequently been in the media limelight, and this week will be further scrutinized during her Senate confirmation process, during which senators are sure to question her record on torture and extralegal detention. In the latest twist, over the weekend it was rumored that Haspel was considering withdrawing from consideration. In response Trump dismissed objections against her nomination, tweeting that Haspel had simply been “too tough on Terrorists”—as if to say, “what’s the harm in that?”

Legal and moral queries should dominate the confirmation process. The work carried out by the CIA should be viewed as an exercise of American power, and the officials tasked with running it should therefore be beholden to the same legal and moral order that governs the rest of our democracy. Haspel’s confirmation process is therefore an occasion to reconsider the U.S. torture legacy and what it means for the direction of U.S. leadership on the world stage.

However, in appointing Haspel, it seems clear that the president, to whom the CIA director reports, has no interest in this moral reckoning. On the contrary, it is quite possible that Trump will insist of the next CIA director that the agency return to using torture, a policy he vocally advocated while campaigning. The director would face a clear choice: comply, or resign.

It is precisely this possibility, it seems, that Haspel’s hearing must explore. The question cannot simply be whether she, or anyone else for that matter, is legally prosecutable for past actions. Rather, concerns about her nomination should be concerns about the future and how we as a country wish our public servants to represent our moral vision and adhere to our laws.

The prospect of Haspel heading the CIA drew a quick denunciation from Senator Rand Paul. Paul’s objection centers on Haspel’s involvement with the Bush-era torture program in the war on terror. Yet those aiming to block her promotion find themselves pitted against those who do not deny Haspel’s role in torture, but simply do not believe that it constitutes a fatal flaw. Senate Democrat Dianne Feinstein, for example, declared Haspel “a good deputy director” of the CIA, who possessed the “confidence of the agency.”

The CIA released a two-page biography attempting to “humanize” Haspel in the eyes of the Senate, and they shared many of these details on Twitter. Born in Kentucky, she hoped to study at West Point, but at the time women were not allowed to attend. Instead, she went to University of Kentucky, developing a knack for journalism and foreign languages. This allowed her, after college, to serve as a military contractor in a foreign languages lab. There she learned of opportunities at the CIA to put her skills to work in public service. After joining, she quickly moved overseas in what would become a long career of clandestine operations.

There is a little bit of information from former colleagues. One has offered a glowing review, contending that she is more than just intelligent and hardworking, but a nonpartisan who would command the respect of the agency. And, in addition, she is said to have a solid relationship with Pompeo, which could contribute to better inter-agency coordination.

Others, however, have cast doubt on her moral authority. Karen Greenberg, a scholar specializing in torture and terrorism, claims that her nomination is just an extension of the “devil’s bargain that Washington has upheld for nearly 15 years when it comes to torture.” Indeed, one former CIA agent has said she was known as Bloody Gina because she was willing to take on the task that many knew to be immoral and illegal. While some declined training in the program of enhanced interrogation, Haspel evidently chose to oversee the implementation of these techniques. The extent of her participation, though, remains classified, and this is precisely what raises problems about vetting her for the job.

In the course of the hearing, some senators will seek to have more information declassified, a request the administration can refuse. It has already defended Haspel’s secrecy once, invoking the state secrets privilege to prevent her from testifying in court on issues implicating national security. (The case was never heard.)  Therefore, it is likely that any case against Haspel’s confirmation will have to be built upon information that is already publicly available.

In the wake of 9/11, during the presidency of George W. Bush, torture emerged as a key technique used by the United States in its War on Terror. The administration sought to obfuscate this fact through its choice of language, referring to torture always as “enhanced interrogation.” This euphemism was neither arbitrary nor benign. Naming the activity in question is the first site of conflict, insofar as the name determines what moral and legal standards apply to the government’s actions. The word “torture” obviously carries strongly negative connotations, but the Bush administration was not only or even principally concerned with optics: torture is expressly forbidden by U.S. and international law.

In 1985 the United Nations drew up the Convention against Torture (CAT). In 1994 the United States ratified it and Congress passed Title 18, Part I, Chapter 113C of the U.S. Code, which wrote the rules of the convention into U.S. law. This law was complemented, in late 2005, by the Detainee Treatment Act (DTA), which concerned, among other things, the “cruel, inhuman, and degrading treatment or punishment” of U.S. prisoners.

Articles 4 and 5 of CAT require that all acts of torture be made criminal, regardless of where they take place. For this reason, the above laws pertain to actions done by U.S. personnel regardless of where they are on the planet. Consequently, as John Bellinger has pointed out, there is no loophole for using torture outside of U.S. territories.

Note, also, that Article 2 states unequivocally that there are no exceptions to this injunction, and specifically that no official may cite the order of a superior as justification for carrying out torture. Even Senator Paul ignores this provision of the treaty, for it renders irrelevant the distinction between giving orders and following them. There is no such thing as mere complicity in a torture program, legally speaking. The only way to avoid this obvious conclusion is to argue that the ‘interrogation’ in question did not constitute torture at all.

It is no surprise, then, that the concept of enhanced interrogation was fabricated to evade the utterly plain intention of the law. Human Rights Watch reports that “[f]or years US officials, pointing to Department of Justice memorandums authorizing [enhanced interrogation] techniques, denied that they constituted torture.” One of the memos was the extensive legal analysis written by John C. Yoo, then deputy assistant attorney general, working at the Department of Justice Office of Legal Counsel. Prepared in 2003, this memo was penned to clarify the ways in which the CAT is not binding on the executive branch.

Two of the crucial conclusions of Yoo’s memo are that torture includes “only the most extreme forms of physical or mental harm,” and that the United States is not bound by Article 16 of the CAT, which states that “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.” By arguing that the administration was not bound by Article 16 and that torture does not include all forms of physical or mental harm, Yoo reassured Bush that he was legally allowed to authorize cruel and degrading treatment as forms of interrogation.

It is natural to wonder why this was not immediately stopped upon the passage of the DTA in 2005, which ostensibly eradicated these loopholes. But Bush went out of his way to circumvent precisely this effect. Upon signing the DTA, Bush utilized a little-known presidential power, issuing a “signing statement.” Such statements are often ceremonial, but they can also be used to express the administration’s legal opinion of how the law should be interpreted. The signing statement accompanying the DTA is a remarkable piece of legal history. In it, Bush declared that the law would not bind him in the exercise of his commander-in-chief power. Even though the DTA expressly implemented Article 16 of the CAT, Bush believed the law did not impact the logic of Yoo’s memo, which argued for legal exceptions for interrogations in the name of national security, so long as they were not of the “most extreme” nature. And so torture at the hands of U.S. personnel persisted, especially in “black sites” operated outside U.S. jurisdiction, where the oversight of U.S. law is weak.

It is at such a black site that Gina Haspel oversaw the torture of U.S. prisoners. Namely, in 2002, Haspel moved to oversee a black site in Thailand, where waterboarding was used. Later, she drafted an internal directive, on the orders of her boss Jose Rodriguez, to destroy video evidence of the interrogations. Her role in this affair has recently come under scrutiny. Although she was  exonerated by an internal review, the CIA has only selectively released information, making it so far impossible for the public to thoroughly evaluate what role she played in the destruction of the tapes, and the torture program more broadly.

One wonders at the putative justification for circumventing international and domestic law. Perhaps there is some idea operating in the background that is more moral than legal: if violently interrogating a single detainee will save, say, ten lives, wouldn’t you do it? Now add a further detail. If the detainee is a would-be terrorist, doesn’t the decision become easier? But now add a complication. You cannot be certain that the torture will lead to saving ten lives. How much uncertainty is enough to deter you from giving the go-ahead on the waterboarding? One more complication. What if the interrogation may produce misleading or downright false information?

Here moral philosophy may be of help. If one were to grant that a moral justification for violent interrogation constitutes sufficient cause to subvert the aims of the law, then the central question must be whether such a moral justification is possible. However, it does not take a philosopher to understand that moral dilemmas often involve a host of complicating factors that make any particular moral decision dependent on context.

The moral philosopher wants to suggest a general rule of thinking that should govern how we weigh the context-dependent factors. And most philosophers, it turns out, think that in almost no circumstance whatsoever is it morally acceptable to engage in torture. Jeff McMahan, a professor of moral philosophy at Oxford, contends that even if there are a small number of situations when engaging in torture might be moral—say, if one is extremely confident the information will save lives—this does not mean even these situations should be legal. In other words, McMahan, among others, believes that torture should be absolutely prohibited under the law, even if it is not absolutely morally prohibited.

This may sound strange. Shouldn’t our law reflect our morality? If there are situations where violent interrogation is morally justified, shouldn’t these situations be legal as well? The most popular example is when torture may provide information to save innumerable lives, suggested even by Justice Antonin Scalia. In order to understand why there should be no legal exceptions to the rule, it is necessary to take pragmatic considerations into account. Because it may be the case that even a well-constructed legal exception to a general no-torturing rule would be ineffective, or, worse, an invitation for abuse.

Suppose that the law allowed for waterboarding a prisoner who knows of a terrorist plot aimed at killing, say, twenty or more people. Any plot threatening fewer people cannot justify waterboarding the prisoner in question. It is not difficult to see the problems with such a law: the crucial point is that no one besides the prisoner knows how many people are threatened. So, the very information one would need to decide whether waterboarding is morally, and thus legally, acceptable is itself only accessible via waterboarding. If such a law existed, it would be self-defeating.

But what if we had two prisoners, one of whom divulges the number of people threatened (say, about a hundred), but only the second knows the details of the plot. Doesn’t this look like a scenario where waterboarding the second prisoner is morally, and hence legally, tenable? The answer, again, is no. If this were allowed, it would create exception-seeking behavior. Suddenly every other prisoner would be willing to fib to avoid torture; and every torturer could cook up a story about independent evidence that supposedly demonstrates that more than twenty lives are at stake. This last issue is the most pressing. As the program of enhanced interrogation demonstrates, if you give torturers a legal inch, they will take a moral mile.

Finally, and arguably most importantly, the above considerations fail to mention the dignity of the prisoners. The whole purpose of the UN Universal Declaration of Human Rights and CAT is to embody a conception of human dignity that may not be violated for any reason whatsoever. In other words, arguments about how many lives are at stake instrumentalize human beings as potential information-givers to save lives. But CAT is premised on the idea that humans are not to be treated as means to an end, even if the end is a noble one.

This illuminates the supreme hypocrisy of the Bush-era legal theory on the violent interrogation of detainees. By remaining party to the CAT, the Bush administration was outwardly committed to the moral norm of not just prohibiting torture, but cruel and inhuman acts as well. Yet in its practice, the Bush administration consistently contradicted the idea underlying this norm—human dignity—presumably appealing to the kind of logic that philosophers such as McMahan alert us to.

So despite the efforts of Congress to curtail the Bush administration’s exercise of enhanced interrogation, it was still necessary for President Obama to issue Executive Order 13491, bringing executive branch behavior fully into line with the CAT. This order was an important step toward eliminating ambiguity regarding the U.S. stance on torture. It was followed by two memoranda from the former legal advisor to the State Department and Yale law professor Harold Hongju Koh. In a later open memo to Obama, Koh urged the president to remedy the inconsistency in the U.S. position with regard to torture and cruelty “as illegal tools of American power.” As Koh made clear, the legal behavior of the executive branch is an expression of the moral principles of the country as a whole. For those who believe the United States is supposed to display moral leadership in global politics, achieving moral consistency on the issue of torture and cruel treatment of prisoners should be a principal area of concern.

For those who believe the United States is supposed to display moral leadership in global politics, achieving moral consistency on the issue of torture and cruel treatment of prisoners should be a principal area of concern.

This, then, is what makes the potential promotion of a former CIA black site overseer such an alarming event. This is not a mere administrative position, and the possibility of dangerous directives from President Trump is no mere fancy. The president has not shown interest in pursuing a coherent plan in foreign affairs, much less one guided by the law.

Finally, once this administration has passed, the CIA director will remain. And this will help determine the place of the United States in the rapidly developing realm of international relations. Enough time has passed, perhaps, that young people no longer vividly remember the abuses at Abu Ghraib, where Americans grossly violated the dignity of detainees. This is the U.S. legacy of torture and abuse, of which the black site in Thailand is only a small part. Now is the chance to go beyond debating legal loopholes to justify our policies. Our senators must use the hearing to ensure that Haspel is committed to upholding the law.

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