There have been, and are now, certain foreign nations with governments…possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.
US Supreme Court, 1 May 1944
On 13 March 2018, at the US naval base in Guantánamo Bay, ‘Abd al-Rahim al-Nashiri began his 800th week in US custody.
On the same day, President Trump tweeted that Gina Haspel “will become” the next Director of the Central Intelligence Agency (CIA). On 17 April, the White House officially sent her nomination to the Senate. The Senate Select Committee on Intelligence (SSCI) has scheduled her to appear before it on 9 May.
The case of ‘Abd al-Rahim al-Nashiri should be one that gives the SSCI pause for thought as it prepares for this hearing. Indeed, as things stand, Senators should vote against Haspel’s confirmation.
For his first four years in US custody, the CIA subjected ‘Abd al-Rahim al-Nashiri to enforced disappearance. During that time, he is believed to have been held at “black sites” in Afghanistan, Cuba, Morocco, Poland, Romania and Thailand. At the latter site – ‘Detention Site Green’, to use the codename adopted in the SSCI’s own 2014 summary report on the CIA secret detention program – he was tortured for information. Then, when his captors feared the location of Detention Site Green might become public, he was secretly transferred in late 2002 to another secret facility, believed to be in Poland, and subjected to further torture.
In 2015, expert Dr Sondra Crosby concluded that “there is no question that Mr Al-Nashiri was tortured at the hands of the CIA”. Of the nearly 1,000 survivors of torture she had examined over the years, “Mr Al-Nashiri presents as one of the most severely traumatized individuals I have ever seen.”
There is evidence that Haspel was Chief of Base at Detention Site Green in late 2002 when ‘Abd al-Nashiri was subjected to the torture technique known as “waterboarding” – mock execution via interrupted drowning – and when he and fellow detainee Abu Zubaydah were subjected to enforced disappearance there.
Enforced disappearance has been recognized as a crime under international law since the judgment of the Nuremberg Tribunal in 1946. Torture has also long been recognized as a crime under international law.
Published accounts by former officials or others involved in the secret detention program indicate that Haspel was not only directly involved in running Detention Site Green for a period, but in shutting it down and “sanitizing” in December 2002. This shuttering was not in order to end torture and enforced disappearance, but in effect to cover them up and to allow the CIA to continue them elsewhere – including against ‘Abd al-Nashiri and Abu Zubaydah, whose transfer to the next “black site” Haspel would have been fully aware of if she was indeed Chief of Base at Detention Site Green.
A broader allegation stems from the fact that Haspel appears to be the individual to whom former CIA chief legal counsel John Rizzo was referring when he wrote in his memoirs that in late 2004, “José [Rodriguez] installed as his chief of staff an officer from the Counterterrorist Center who had previously run the interrogation program” [emphasis added]. By late 2004, more than 100 individuals had been held in the CIA program.
José Rodriguez was himself a key player in the development and operation of the secret detention program, and an individual whose investigation Amnesty International has previously called for. A newly declassified memo outlining a disciplinary review conducted in 2011 by then Deputy Director of the CIA Michael Morell affirms that as Rodriguez’s Chief of Staff, Haspel was involved with him in the destruction in 2005 of videotapes of the detention and interrogation of Abu Zubaydah and ‘Abd al-Nashiri at Detention Site Green in 2002. She was only following Rodriguez’s orders, according to this internal review, which found “no fault” in her conduct in relation to the destruction of the tapes. But concealing evidence of a crime may constitute criminal complicity. Complicity in torture is expressly recognised as a crime under international law. A proper investigation, applying international standards, is called for.
Following his Twitter announcement on 13 March, Amnesty International called on President Trump to withdraw Haspel’s nomination pending the necessary investigation of her alleged role in crimes under international law. Any such possibility would appear to have evaporated entirely on 17 April when the White House transmitted the nomination to the Senate.
The ball is now in the Senate’s court. The SSCI should cancel its 9 May hearing, and demand proper investigation into Haspel’s alleged involvement in crimes under international law and for declassification of any information showing such involvement. The USA’s international law obligations require such an investigation.
If the hearing goes ahead as scheduled, or at any other time before the results of a proper investigation are known, the Committee should vote against advancing the nomination to the full Senate. If the nomination does move forward to that body, Senators should vote it down.
There is a long running mantra associated with the secret detention program, being heard again now, that it was a necessary and effective operation, authorized under the constitutional power of the president for legitimate national security reasons, reviewed and approved by numerous officials, checked by multiple government lawyers, operated in a way that was safe, and so on.
Such assertions are irrelevant to the question of lawfulness. No president can render torture or enforced disappearance lawful; no politician, judge, soldier, police officer, prison guard, doctor, psychiatrist, interrogator, lawyer or any other official can override the prohibitions. Neither war, nor the threat of war, nor a national emergency that threatens the life of the nation, can justify such crimes.
There is clearly a profound human rights deficit at the heart of government when dozens of senior officials actively support their country’s systematic use of secret detention and torture or other cruel, inhuman or degrading treatment. The utter failure to ensure truth, accountability and redress for crimes under international law would indicate that this human rights deficit continues.
Now is a chance for the SSCI and the wider Senate to stop the rot.