The election of President Trump has in effect pushed our country back at least eight years in terms of our human rights policies. This should have not surprised anyone. During his campaign, Donald Trump not only displayed an abysmal lack of knowledge of foreign affairs, but he repeatedly made statements that endorsed “waterboarding and worse”. He promoted extrajudicial killings not only of suspected terrorists, but of members of their families as well. His macho stance in favor of wide-scale punishment of “our enemies”, sometimes generalized to any Muslims almost anywhere, may have been calculated primarily to energize his most radical followers. But in light of his continuing efforts to push ahead on almost all of his campaign promises, no matter how radical or unpopular or unconstitutional, and his expressed disdain for both minority groups and political opponents, his administration must be watched carefully for any actions that violate human rights protections.
The latest indication that the current president doesn’t care about human rights violations comes from his announcement that he wants Gina Haspel to be promoted to the highest leadership position in the CIA. In fact, we have seen this coming. On February 2, 2017, only a few days after Trump’s inauguration, the Trump administration had appointed her to be Deputy Director of the CIA . At that time, several members of the Senate Intelligence Committee protested based on her questionable background, but the Deputy Director position does not require Senate confirmation.
The background facts are that in 2002 Haspel was the head of a CIA “black site” detention and torture center in Thailand. During her time there, many prisoners were “waterboarded and worse”. One “high profile” detainee arrested in Pakistan, Abu Zubaydah, was waterboarded 83 times and subjected to a variety of other techniques including sleep deprivation, stress positions, small-box confinement, and physical assault. Many of these torture sessions were videotaped. In 2004, however, pictures of the horrible treatment of prisoners at the Abu Ghraib prison in Iraq were released, and media coverage expanded to question other CIA torture programs. The next year, in the midst of the resulting storm of coverage, Gina Haspel (according to her superior at the time) drafted a memo ordering the destruction of the videotapes of the torture sessions at the black site in Thailand. All tapes were then destroyed. In short, she not only administered a site where torture was common and frequent, but she acted to destroy significant evidence of these CIA crimes against humanity.
Back when the Abu Ghraib scandal first broke the CIA and its defenders tried to argue that it was a case of an isolated group of jail personnel who went rogue and invented the torture methods on their own. Later investigations, however, demonstrated that the same procedures were common at other military prisons in Iraq and at many CIA black sites across the globe. The personnel at all of these sites told of higher-level CIA operatives and contractors who repeatedly arrived for training sessions and who recommended the use of the same techniques discovered at Abu Ghraib. Even so, only the guards stationed at Abu Ghraib were ever prosecuted and punished for those actions. The CIA leaders and others responsible for promoting and overseeing such torture, including Gina Haspel, were never held responsible.
It is inevitable that one of the first trends following the announcement of Haspel’s pending appointment to CIA Director was a renewal of the arguments for and against not only torture, but for and against the wars in Iraq and Afghanistan. The apologists have been out in full force. Their primary argument is that it is unfair to judge Haspel based on the modified “new” anti-torture interrogation code that was installed in 2006 (actually, restored to the pre-2002 rules). Back in 2002, they say, the nation wanted revenge for the September 11th attack and torture had been declared legal and “everyone” accepted it as an appropriate and effective alternative interrogation method.
Admittedly, it is true that the Bush administration not only made up an entire false reality to justify the war in Iraq, they also developed a very strict legal justification for torture. The set of memos was drafted in 2002 by Deputy Assistant Attorney General John Yoo and signed by Assistant Attorney General Jay S. Bybee. The memos conveniently redefined habeus corpus to allow indefinite detention of “enemy combatants”, who sometimes were U.S. citizens. They also redefined torture so that most of the actions defined as torture under international law were no longer defined as such by the United States. Now, admittedly, much of the Bush storm of false facts and redefinitions was supported, even cheered on, by most of the mainstream media, at least until Abu Ghraib. But acceptance of the Bush administration plans was far from universal, not even within the federal government.
The attack on the World Trade Center in 2001 did help create a sort of national unity against terrorism, but not regarding the programs created by the Bush administration to respond to that event. Across the country prior to the beginnings of the wars in Afghanistan and Iraq there were hundreds of large anti-war protests, in many ways inspired by news commentaries that the justifications for the wars were bogus. There were members of congress who voted against both wars and others who opposed the conclusions of the John Yoo memos.
Under federal law, 18 U.S. Code para. 2318, enacted in 1994, torture is defined in ways that would include most of the procedures applied at CIA black sites, and it is prohibited. Torture is also precluded by the 1948 Universal Declaration of Human Rights and a series of later international agreements signed by the U.S., stating with the 1949 Geneva Conventions. More directly, there was a methodology divide between the CIA and other agencies devoted to intelligence and enforcement. The FBI did not use torture. In fact, the FBI philosophy was that normal interrogation techniques, which included efforts to build rapport with suspects by engaging them in normal conversation. were the only truly effective tools. In the case of Abu Zubaydah, a two-man FBI team arrived at the Thailand site first, and they controlled the discussions with Zubaydah for three months, even after the CIA team arrived. During that period, the suspect divulged several items of useful information about Al Quaeda personnel and activities. Then the CIA team took over, the FBI members were sent packing, and the torture began. There are disagreements about the results, but most impartial observers have concluded that Zubaydah provided almost nothing of value after the CIA took over.
Our interrogations of suspected terrorists would likely have been much more productive if the CIA had followed the rules of the Geneva Conventions, the strictures of U.S. law, and the policies of the FBI. However, effectiveness is only one of the criteria arguing against torture. The fact is that the CIA and its contracted mercenary teams were committing crimes against humanity no less illegal and immoral than many of those for which we prosecuted leaders of the Axis powers after World War II.
The Germans who were arrested and subjected to the trials in Nuremberg, Germany after World War II repeatedly argued that they were “just following orders”, a lawyerly plea that became known as the “Nuremberg defense”. It was soundly rejected not only by the prosecutors and the trial judges but by the media. In the Pacific our government also conducted the Tokyo tribunals (the International Military Tribunal for the Far East) condemning Japanese military leaders for their involvement in torturing allied prisoners. One of the primary methods specifically rejected and defined as torture during that tribunal was waterboarding (“the water treatment”). And yet, the use of the very same techniques during the period 2002 to 2006 are being excused because of the Yoo memos and the predominant pro-torture philosophy of the Bush Administration. Largely because of this modern application of the “Nuremberg defense”, none of the leaders of the CIA nor the Bush team have been either prosecuted or threatened with loss of their positions because of their involvement with illegal procedures such as extraordinary rendition or torture.
So should Gina Haspel have been investigated? Yes. Should she have been prosecuted for war crimes? Possibly, depending on the results of the investigation. Should she be promoted the leadership of the CIA? No, absolutely not, not until her role in the 2002 torture and rendition and the 2005 coverup are thoroughly investigated. In the meantime, the Senate should refuse to confirm her nomination. And the Trump administration should be given a clear signal that torture is not acceptable.