Enhanced Evasion Techniques
This piece originally appeared on Just Security.
On Thursday, May 17, after only a few hours of debate, the Senate approved Gina Haspel’s nomination as CIA director by a margin of 54 to 45 votes. The vote broke largely, but not entirely, along party lines. Senators Jeff Flake (R-AZ) and Rand Paul (R-KY) voted against Haspel’s confirmation, and Senator John McCain (R-AZ), although unable to attend the vote, publicly opposed her nomination. Six Democrats, notably including Senator Mark Warner (D-VA), vice chairman of the Select Committee on Intelligence, voted to confirm her. Haspel is being sworn in today.
Haspel was confirmed despite giving extraordinarily evasive answers about her role in the CIA’s rendition, detention and interrogation program and the destruction of videotapes from a CIA prison in Thailand. Haspel, as acting CIA director, had the power to decide what information about her career to disclose and what to keep secret, and she used that authority to avoid public acknowledgment of her role in torture. Senator Ron Wyden (D-OR) said,
I have asked again and again for some justification for Ms. Haspel’s self-serving classification decisions and every response I have received, in classified and unclassified settings, have convinced me further that those decisions have nothing to do with protecting sources and methods, and only to do with protecting her own image.
Wyden called the Senate’s acquiescence in this “an insult to the public and an abdication of this body’s constitutional responsibilities.”
That is harsh language, but it is well supported by a close analysis of Haspel’s confirmation hearing transcript, and her written answers to Senators’ questions beforeand after the hearing.
Haspel’s pledges not to restart a CIA detention or “enhanced interrogation” program may well be sincere, but there are many other unlawful or immoral covert actions that President Donald Trump could authorize. As she assumes office, we have no reason to trust that she will oppose abuses of the CIA’s covert action powers, or preserve evidence that reflects badly on the CIA or the White House. It is also clear that we cannot count on the Senate Intelligence Committee to prevent or uncover such abuses under current leadership—though some committee members and staff will certainly try valiantly.
1. No confirmation, but repeated denials
Throughout her confirmation process, Haspel never actually admitted what role she had in the CIA’s torture program. Instead, she claimed over and over again that the answers to senators’ questions were classified. She refused to give any public answer to the following questions in open session:
- Whether she oversaw the waterboarding of Abd al Rahim al Nashiri in late 2002.
- Whether she advocated for the detention and interrogation program to be continued or expanded between 2005 and 2007.
- Whether she served “in a supervisory or management capacity in connection with the rendition and…interrogation program.”
- Whether she knew of any instances of the United States transferring individuals to torture in foreign custody. (Haspel answered that she was not aware of such a transfer after 2009, and simply did not address the history of renditions to torture before then).
- Whether she was aware “of the means by which the CIA deprived detainees of sleep during the interrogation program—including shackling, nudity, and the use of diapers for prolonged periods,” and whether she ever intervened to stop or limit the use of sleep deprivation.
- Whether she was “in a position of authority to stop, or prevent the future employment of, ‘enhanced interrogation techniques.’”
- Whether she ordered or oversaw the waterboarding of any detainee, and if so, how many times.
- Whether she received instruction on the use of “enhanced interrogation techniques.”
- Whether she had “personal reservations regarding any aspects of rendition, detention, and interrogation program at the time,” and whether she expressed those reservations to anyone.
- Whether she was responsible for supervising CIA contractors James Mitchell and Bruce Jessen, who designed and administered the agency’s “enhanced interrogation techniques”; whether she spoke to them before or after interrogation sessions; and whether she ever questioned their qualifications.
- Whether, as a “senior-level supervisor” in the CIA’s Counterterrorism Center (CTC) from 2003 to 2004, she had “responsibility, supervision, or approval relevant to the rendition, detention, and interrogation program.”
- Whether she “was aware of the conditions of capture and confinement” of CIA detainees during that period, and whether she believed they were humane.
- Whether she had any responsibility for the wrongful capture, rendition and detention of innocent detainees.
(There was a classified session of Haspel’s hearing, but Senator Angus King (I-ME), told NPR that she was “not forthcoming” in that session either, and “I never got a straight answer all day” on certain questions.)
The CIA’s usual response to questions on classified subjects is that the agency “can neither confirm nor deny” reports, but Haspel did repeatedly answer questions on her role in the detention and interrogation program if she could deny or minimize her involvement:
- She denied that she appeared in videotapes of the “enhanced interrogation” of CIA detainees.
- She denied ever watching the interrogation videos.
- She denied a description of her as having “previously run the interrogation program” in a 2014 memoir by former CIA General Counsel John Rizzo, and noted that “Mr. Rizzo has issued a correction.” (This may be a largely semantic dispute. A likely explanation is that Haspel held a high-level position in the CTC from 2003 to 2005 and had a key role in managing the program’s operations, including interrogations it was involved with, but Jose Rodriguez, who led the CTC, and others were above her in the chain of command.)
- Haspel stated that she did not run “the interrogation department.” As The Daily Beast’s Spencer Ackerman noted, this was “a curious and precise formulation, not least of which because there has never been known to be any entity inside the CIA called ‘the interrogation department.’” After the hearing, Haspel declined to clarify publicly exactly what “department” she meant. She has never said whether she worked for the CIA’s Rendition Group (also known as the Renditions, Detentions, and Interrogation Group), which operated out of CTC and is known to have been central to the program.
- She stated that she was not “even read into the interrogation program until it had been up and running for a year.” This claim is hard to reconcile with the public record. Abu Zubaydah, the first detainee in the program, was captured in March 2002. The Justice Department memos approving his “enhanced interrogation” were signed on August 1, 2002. Haspel reportedly oversaw Nashiri’s waterboarding in Thailand only a few months later. In response to a follow-up question, Haspel said that she was read into the program in October 2002, which was over a year after President George W. Bush’s September 17, 2001, signing of a memorandum authorizing the CIA to capture and detain terrorism suspects (and take various other actions against al Qaeda). But this explanation raises more questions, which senators had no opportunity to ask. First, the September 2001 memo did not authorize the use of “enhanced interrogation.” Second, it seems improbable that Haspel worked at the CTC for over a year before she was informed of the foundational legal authority for much of CTC’s response to the September 11 attacks.
- She stated that she was “pretty far down the totem pole” in the CIA hierarchy when the program was created.
2. Excuses for secrecy
Haspel, as acting director of the CIA, had the authority to decide what information about her background would be classified or declassified. Pressed by several senatorsabout whether this was a conflict of interest, she claimed that it was not. Haspel argued that she was simply following existing CIA classification guidance, and that it would be selfish of her to make an exception for the sake of her confirmation process:
There are existing classification guidelines that apply to operational activity of any officer. It has been suggested to me by my team that if we tried to declassify some of my operational history, it would help my nomination. I said that we could not do that. It is very important that the Director of the Central Intelligence Agency adhere to the same classification guidelines that all employees must adhere to, because [there] are very good reason for those classification guidelines….I could not stand before the CIA if I sought for short-term gain to declassify my operational history.
This is not credible. As described above, the CIA has repeatedly declassified information and answered questions that minimized Haspel’s role in the rendition, detention and interrogation program. The only document the agency declassified about her record was a memorandum finding that she “acted appropriately” when she helped orchestrate the destruction of 92 videotapes from a CIA prison. The agency also declassified the Johnny Cash poster in her office and a long-ago meeting with Mother Teresa as part of an aggressive public relations campaign for her confirmation.
The CIA has never explained how, precisely, disclosing Haspel’s role in torture and rendition would endanger or harm any other officer. Many other CIA officials and contractors have disclosed or permitted disclosure of their role in the program; some have published books about it, with the approval of the CIA’s prepublication review board. A nonexhaustive list includes memoirs by George Tenet, Jose Rodriguez, John Rizzo, James Mitchell, Robert Grenier, Michael Hayden, Mike Morell and Michael Scheuer. Asked to explain this discrepancy after the hearing, Haspel simply repeatedher talking points.
3. Destruction of evidence
Haspel did answer some questions about her role in the destruction of videotapes of torture sessions in Thailand, but her answers conflict with a recent account by Jose Rodriguez, the other CIA official most directly implicated in their destruction. The Senate confirmed Haspel without reading the documents that might resolve the contradiction.
It is not disputed that Haspel, on Rodriguez’s instructions, drafted the cable authorizing destruction of the tapes. Haspel acknowledged at her hearing that she was not merely following orders; she said she “absolutely was an advocate” for destroying the tapes if it could be done lawfully.
It is also not disputed that Haspel asked two CIA lawyers, Robert Eatinger and Steven Hermes, whether it was legal for the agency to destroy the tapes and whether Rodriguez had the authority to order the destruction.
Haspel told the Senate several times, though, that she took these steps without realizing that Rodriguez might act on them without authorization from CIA Director Porter Goss.
Rodriguez gave a different version of events in an interview with ProPublica. He said that he had told Haspel that he was going to destroy the tapes himself: “I met with Gina and I told Gina, ‘I’m going to make this decision myself. Who are we kidding? No one is going to make the decision. People are just kicking the can down the road.” Haspel denied to the Senate that this conversation ever took place.
There are some logical problems with Haspel’s account, as noted by Washington Postfact checker Glenn Kessler:
Haspel insists that she thought Rodriguez would not act before discussing the matter with CIA Director Goss. If so, it’s unclear why a draft cable ordering the tapes destroyed was necessary in order for Rodriguez to discuss the issue with Goss. Moreover, why would Haspel need to ask lawyers if Rodriguez had the legal authority to destroy the tapes if he had intended to ask Goss for permission?
Documents from Special Prosecutor John Durham’s investigation of the tapes’ destruction might resolve these questions, and the contradiction between Haspel’s account and Rodriguez’s. The Senate confirmed her without seeing that evidence.
Senators on the intelligence committee were able to review the classified executive summary of Durham’s 723-page report on his investigation. Six members of the Senate Intelligence Committee wrote a letter requesting that the full Senate receive access to the Durham report summary, stating that “no senator can consider Ms. Haspel’s nomination in good conscience without first reviewing this document.” Members of the Senate Judiciary Committee from both parties also requested access, but these requests went unanswered. Even the Senate Intelligence Committee never saw the full 723-page report, or a second report by Durham on whether witnesses in the tape investigation committed perjury or made false statements.
4. “A very strong moral compass” whose direction is set by the Office of Legal Counsel
The most striking evasion during Haspel’s confirmation hearing was her unwillingness to answer a very simple question: Was the CIA’s brutalization of detainees after September 11 wrong? Again and again, Haspel dodged this question, most often by citing the authorization that the CIA received from the Justice Department (the long-discredited Office of Legal Counsel torture memos). “CIA follows the law. We followed the law then, we follow the law today,” she told Warner. In response to a question from Senator Martin Heinrich (D-N.M.) about why she had never objected to the program, she stated “[i]n all of my assignments, I have conducted myself honorably and in accordance with U.S. law.” She had the following exchange with Senator Kamala Harris (D-CA):
HARRIS: So one question I’ve not heard you answer is, do you believe that the previous interrogation techniques were immoral?
HASPEL: Senator, I believe that CIA officers, to whom you referred…
HARRIS: It’s a yes or no answer. Do you believe the previous interrogation techniques were immoral? I’m not asking you [if] you believe they were legal. I’m asking do you believe they were immoral.
HASPEL: Senator, I believe that CIA…
HARRIS: It’s yes or no.
HASPEL:…extraordinary work to prevent another attack on this country given the legal tools that we were authorizing…
Haspel bristled at questions from Senator Jack Reed (D-R.I.) about whether she would consider it moral “[i]f one of your operators were captured, subjected to waterboarding and enhanced techniques” identical to the ones she had supervised. “Senator, I don’t believe the terrorists follow any guidelines or civilized norms or the law. CIA follows the law,” she said. Haspel added, “I don’t think there’s any comparison between CIA officers serving their country, adhering to U.S. law and terrorists who by their very definition are not following anybody’s law.”
After her confirmation hearing, in an apparent bid to secure Warner’s vote, Haspel wrote a letter to him to “amplify my position with regard to the former rendition, detention and interrogation program,” as follows.
While I won’t condemn those that made these hard calls, and I have noted the valuable intelligence collected, the program ultimately did damage to our officers and our standing in the world. With the benefit of hindsight and my experience as a senior Agency leader, the enhanced interrogation program is not one the CIA should have undertaken.
Notably absent from this letter, and from any of Haspel’s responses to senators’ questions, is any sense of regret or recognition of the pain and suffering that the CIA inflicted on prisoners—some of whom were innocent, two of whom were killed, and many of whom suffer ongoing, debilitating physical and psychological damage. Of Haspel’s many evasions and omissions during her confirmation process, her unwillingness or inability to acknowledge the human consequences of her actions may be the most chilling.