Taking Bearings

Based on her intelligence, experience, demeanor, and capacity, I think Gina Haspel is the right person to be CIA Director.

I was impressed with her testimony during confirmation hearings. I agree with her that “the C.I.A.’s post-Sept. 11 interrogation program “did damage to our officers and our standing in the world.”

I do not equivocate on denouncing torture. Torture is the resort of the unskilled interrogator, the desperate, the sadistic and the cruel. I do not defend the policy of implementing Enhanced Interrogation Techniques (EITs) post 9/11, nor rendition (all renditions are, btw, extraordinary) to black sites, but I understand why they were implemented.

Arguments about their effectiveness are to me moot because, as I have written, in the long run torture does far more harm to the torturer. It should never be U.S. policy.

As to the role DCI Haspel in running a black site prison while EITs were in practice. At the time, EITs were the law, and EITs were not considered torture. On can debate how severe or mild the EITs were compared to other forms of torture routinely practiced in other parts of the world, but that begins to defend EITs in ways I personally do not wish to defend them…. but they were the law and sanctioned by the DOJ as part of the post-9/11 reaction of a desperate, hurting, fearful and angry nation.

Ultimately, it was officers within the CIA who led the push-back against use of EITs and lobbied for a reversal of DOJ policy and the eventual end to EITs.

Many people missed — or for partisan reasons chose to overlook an important retraction by ProPublica  < https://www.propublica.org/article/cia-cables-detail-its-new-deputy-directors-role-in-torture > ‘Trump’s Pick to Head CIA Did Not Oversee Waterboarding of Abu Zubaydah.’ ProPublica’s retraction also made clear that allegations that Haspel had “mocked the prisoner’s suffering in a private conversation” were also false.

ProPublica admitted that it erred when it reported in 2017 that Haspel was in charge of a secret prison in Thailand during the interrogation of al-Qaida suspect Abu Zubaydah during which EITs, including repeated waterboarding, were used.  On February 9, 2018. the NYT also falsely repeatedly reported that Haspel was in charge during the interrogation of Abu Zubaydah <https://www.nytimes.com/2017/02/02/us/politics/cia-deputy-director-gina-haspel-torture-thailand.html >.

On 16 March, 2018, the day after ProPublica retracted its reporting of Haspel’s role, and more than a month after its initial reporting, the NYT also retracted its reporting that Haspel was in charge of the prison (which closed in December 2002 shortly after Haspel arrived to take charge) during the interrogation of Abu Zubaydah  Haspel did not assume command at the Thailand prison until after the waterboarding of Zubaydah had ended.

The NYT correctly reported that Haspel was in charge during the interrogation of Abd al-Rahim al-Nashir — the accused bomber of the USS Cole in 2000 who killed 17 U.S. Sailors and injured nearly 40 more — who was allegedly waterboarded three times.

Although President Barack Obama immunized anyone against prosecution who had acted based on DOJ policy, critics rightly counter that (1) the Nuremberg trials after World War II eliminated “following orders” as a defense against war crimes and other human rights violations that include use of torture (which is also against the Geneva Conventions), and that (2) faulty legal advice (such as issued by the DOJ) is not a shield from liability for one’s actions. Indeed, military and intelligence officers have a duty to resist and refuse to carry out obviously unlawful orders. However — and this was critically important to President Obama’s decision to immunize, — the DOJs policy at the time muddled what was obviously unlawful conduct. The DOJ specifically considered and ruled on each and every EIT with regard to whether — and under what conditions — each was allowable, legal, and did not constitute torture.

To be effective in the nation’s defense — and in the ultimate defense of democracy, freedom, and enlightened ideals – the CIA is forced to operate is grey world where morality is anything but black and white. Intelligence officers and assets often perform difficult and dangerous duties without the ceremony, medals, praise or even the public acknowledgments granted those in military uniform.

This grey world is not new. Long before post-9/11 EITs, suspected Cold war spies were isolated and harshly interrogated (e.g., techniques outlined in the now declassified KUBARK Counterintelligence Interrogation training manual published in 1963), and CIA officers crossed many legal and ethical lines during Operation Phoenix in Vietnam which resulted in very harsh interrogations (e.g., Nguyen Tai) –and in some cases assassination — of alleged communist spies. The full extent of potential transgression during “dirty wars” in South and Central America is not in the public domain.

I am satisfied that Director Haspel’s public repudiation of torture — especially given the statements about the potential embrace of torture by Trump Administration — will give her a base from which she can courageously stand against any potential future use of practices that — legality and euphemisms aside –constitute torture

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Update: June 2022

On June 3, 2022 the New York Times published an article written by

By Carol Rosenberg and Julian E. Barnes titled, “Gina Haspel Observed Waterboarding at C.I.A. Black Site, Psychologist Testifies.” The story related sworn, and as of this writing on 7 June, 2022, unrebutted testimony offer at pretrial hearings in a Cole bombing case at Guantánamo Bay, In his testimony,  James E. Mitchell, a psychologist who helped develop the CIA EITs  alleged that  a person “whom he referred to as Z9A in accordance with court rules.” {According to the NYTimes,  Z9A is the code name used in court for Ms. Haspel) “personally witnessed waterboarding and other forms of interrogation now deemed torture (as above it was authorized at the time) at oversaw a C.I.A. black site in Thailand before becoming the agency’s director in 2018.” If true it, would contradict prior accounts of former Director Haspel’s duties and station transfers.

Ms. Haspel declined to answer, saying it was part of her classified career.

In reporting subsequent to the writing of this opinion piece there was also reporting about (quotes hereafter are from the above reference NYT article) Haspel’s “oversight of a C.I.A. black site in Thailand where… where Ms. Haspel wrote or authorized memos” about waterboarding (an  authorized EIT technique at the time)

“The C.I.A. has never acknowledged Ms. Haspel’s work at the black site…”

“Former officials long ago revealed that she ran the black site in Thailand from October 2002 until December 2002, during the time” a Saudi prisoner, Abd al-Rahim al-Nashiri was “tortured, which Dr. Mitchell described in his testimony.”

“Defense teams have been asking military judges to exclude certain evidence from the war crimes trials of accused Qaeda operatives as tainted by not just torture but also cruel, inhuman and degrading treatment.”

“The interrogation team shifted to other “coercive techniques,” including forcing the prisoner to spend time in a small confinement box….”

“It was previously known that by the time Mr. Nashiri was waterboarded in late 2002, Ms. Haspel had taken over as the chief of base at the secret prison in Thailand. It has also been reported that she drafted cables relating what happened to Mr. Nashiri and what was learned during his interrogations and debriefings. But Dr. Mitchell’s testimony went further. He testified that the chief of base observed the sessions, though she did not participate in them.”

“The law firm that employs Ms. Haspel, King & Spalding L.L.P., declined to comment and referred questions to the C.I.A., which also declined to comment.”

“And although Ms. Haspel’s role as chief of base at the black site in Thailand is widely known, it is still considered a state secret.”

“The judge, Col. Lanny J. Acosta Jr., agreed to allow Dr. Mitchell to testify because the C.I.A. had destroyed videotapes that defense lawyers argue showed the psychologists torturing and interrogating Mr. Nashiri and another prisoner at the black site in Thailand…. The disclosure that the C.I.A. had destroyed the tapes — most of them showing Abu Zubaydah, the first detainee taken into custody and known to be tortured by the C.I.A. after the Sept. 11 attacks — prompted the Senate Intelligence Committee to investigate the black site program. Ms. Haspel has acknowledged her role in the destruction of those tapes as a chief of staff to the operations chief, Jose A. Rodriguez Jr. At her confirmation hearing, she said, ‘I would also make clear that I did not appear on the tapes.’”

“The Senate Intelligence Committee study of the C.I.A. program, only a part of which is public, said that interrogators wanted to stop using “enhanced interrogation techniques” on Mr. Nashiri because he was answering direct questions, but they were overruled by headquarters….”

“At her confirmation hearing, Ms. Haspel pledged not to set up any similar interrogation programs.”

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Lee Lerner’s portfolio covering science and global issues includes multiple RUSA Book and Media Awards, books named Outstanding Academic Titles, and two global circumnavigations. He serves as an advisor, editor, and contributor to respected international news and academic resources.

Additional information and selected writings are available at scholar.harvard.edu/kleelerner and via harvard.academia.edu/kleelerner

Profile Photo: K. Lee Lerner. Maasai Mara, Kenya. June 2012. ©LMG.

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