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The truth is out there. But not at the Haspel hearing

Law, morality and “American values” were among the topics raised in the US Senate Select Committee on Intelligence on the morning of 9 May 2018. The two-and-a-half hour public hearing was for the Committee to question Gina Haspel, President Trump’s nominee to be the next Director of the Central Intelligence Agency (CIA).

There was some heat generated at the session, but little or no light.

Classification, obfuscation, prevarication, limited time (about an hour of substance according to Lawfare), and some partisan politics left the public in the dark about the extent of Gina Haspel’s role in the CIA secret detention program, in which between 2002 and 2008 more than 100 individuals were subjected to enforced disappearance, a crime under international law, and a number of them subjected to torture, also a crime under international law.

Enforced disappearance? Not a single mention at the hearing. The word torture made a couple of brief appearances, but it seemed to dissipate into the ether as soon as it was aired, like the ghost at the banquet.

The key question of whether Gina Haspel was involved in the torture of ‘Abd al-Nashiri at a CIA “black site” in late 2002 was blocked with “Senator, anything about my classified assignment history throughout my 33 years, we can talk about in this afternoon’s classified session”. It was clear that no more light would be shed on that specific question at this public hearing. Whether Senators got any clearer answers at the closed hearing is not known.

In fact, ‘Abd al-Nashiri’s name came up again at the public session. The Committee’s Chair, Richard Burr, who had opened the hearing by saying he was “looking forward to supporting” Gina Haspel’s nomination, ended it by asking her to share “for the American people’s purpose” who “Nashiri” is.  Haspel thanked the Senator, and responded – with little regard for the presumption of innocence in this case of a man facing a death penalty trial by military commission at Guantánamo – that “Mr Nashiri was the Emir of the attack in 2000 on the USS Cole, in which we lost 17 sailors”.  Senator Burr thanked her in turn, adding “it’s important to put into context when individuals are mentioned; what their role was in terrorism”. Such context cannot hide the ugly reality of ‘Abd al-Nashiri’s torture and enforced disappearance at the hands of the CIA.

After President Trump’s nomination-by-tweet of Gina Haspel on 13 March, Amnesty International stressed that a confirmation hearing was not the forum in which to establish the truth about the allegations against her. The organization called for the nomination to be withdrawn, and for the USA to meet its obligation under international law to conduct a proper investigation (Gina Haspel is but one of many who should be so investigated). This has not happened, and the organization is calling upon Senators to vote against confirmation.

A familiar theme, repeated ad nauseam over the years, was heard again at the hearing. It boils down to a plea to excuse torture and other cruel, inhuman and degrading treatment – euphemized as “enhanced” interrogation techniques (EITs) – on the grounds that decisions were taken and responses improvised in the confusing aftermath of the 9/11 attacks and the fear of further attacks. This plea for understanding is accompanied by the mantra that the CIA’s activities were lawful, because lawyers in the Department of Justice said so.

Both positions are untenable. A lawyer cannot render torture or enforced disappearance lawful. Neither can a President. Not now, and not back then either. And the idea that this program should be cut some slack because it happened in the wake of the 9/11 atrocity falls apart when one considers, for example, the long and detailed (and classified) Justice Department memos on EITs and secret detention conditions written four, five, six years after the attacks. Even if the program was dreamt up in the immediate aftermath of the traumatic events of 9/11, it was operationalized and refined in the cold light of day, in the most calculated manner. This was a sustained assault on basic human rights.

On the question of the longevity of the program, Gina Haspel was asked whether, as it began to receive fewer detainees between 2005 and 2007, she had called for the program “to be continued or expanded”. She responded that “like all of us who were in the Counter Terrorism Center and working at CIA in those years after 9/11, we all believed in our work”, and “had been informed that the techniques in CIA’s program were legal and authorized by the highest legal authority in our country, and also, the President”. Senator Ron Wyden said that he took her somewhat evasive answer to be one that “sure sounds” like she had called for the program to be continued.

Perhaps the most disturbing moment came when the nominee would not answer yes or no to a question from Senator Kamala Harris of whether in hindsight she thought that the CIA’s use of EITs had been immoral, even if she had believed they were technically legal. Detainees, it should be recalled, were subjected among other things to mock execution by interrupted drowning (“water-boarding”), forced nudity, stress positions, cruel use of shackles, prolonged sleep deprivation, and confinement in coffin-sized boxes. All while held incommunicado in solitary confinement in secret facilities.

The refusal to answer the morality question did not sit well with Gina Haspel’s opening statement in which she stressed her “strong sense of right and wrong” or with her insistence later in the session that she has a “strong moral compass”.  And it jarred with her assertion made at the outset that she understood that “what many people around the country want to know about are my views on the CIA’s former detention and interrogation program”. If that is what the public wanted, it is not what they got.

Not only was the law against torture depicted as a shifting landscape – “the CIA followed the law then. We follow the law today” – but morality was portrayed as having been on the move too. The Committee’s Vice Chair, Senator Mark Warner asked whether, in hindsight, she believed that the program had been “consistent with American values”. She responded: “As we sit here today and with some distance between us and the events of 9/11, the Congress, and indeed our nation, have had an opportunity to have a debate about the interrogation standards we want to use as the United States of America. We have decided to hold ourselves to a stricter moral standard… I support the United States holding itself to that stricter moral standard”.

If official morality in the years after 9/11 (which came a decade after the USA ratified the International Covenant on Civil and Political Rights and seven years after ratifying the UN Convention against Torture) was one that could so easily turn to torture and enforced disappearance, who is to say how morality will hold up in the wake of another such catastrophe? While Gina Haspel told Senator Susan Collins that, yes, her views on the program have “evolved in the years” since 9/11, she still pointed to the “extraordinary circumstances at the time” as reason not to judge decisions taken back then, and that at the present time “we’re not fearing another attack”.  Again, under international law, neither war, nor threat of war, nor national emergency that threatens the life of the nation, can justify torture or enforced disappearance.

Gina Haspel’s refusal to answer the question about morality makes it difficult for the public to assess her promise that “I would not allow CIA to undertake activity that I thought was immoral even if it was technically legal… I believe CIA must undertake activities that are consistent with American values.”

Of course, “American values” can mean different things to different people, a concern if they are framed to the exclusion of international norms. A decade and a half ago, on the eve of the first anniversary of the 9/11 attacks, standing outside the Embassy of Afghanistan in Washington, DC, President George W. Bush proclaimed: “I call on every American to uphold the values of America… In our war against terror, we must never lose sight of the values that makes our country so strong”. A few days later, the CIA opened a secret detention facility north of Kabul, under his authority. Detainees were subjected to torture and enforced disappearance there, including ‘Abd al-Nashiri before he was moved to the “black site” that remains at the centre of allegations against Gina Haspel.

Today, nearly four years after President Obama acknowledged that “we tortured some folks”, truth and accountability in relation to this program are still absent, leaving the USA in serious violation of its obligations. The Haspel hearing was the latest unsatisfactory episode in this festering human rights scandal.