Weighing in on the subject of waterboarding, the notorious practice of simulated drowning widely practiced on suspected terrorists during the George W. Bush administration, President Donald Trump proclaimed that he not only approved of the procedure but was willing to go much further in extracting information from high-value detainees. What he had in mind he left to the imagination.
Now he has a willing functionary with direct field experience to head the Central Intelligence Agency, with its clandestine army of operatives around the globe. On May 17, Gina Haspel, the agency’s deputy director, was confirmed by the U.S. Senate by a 54-45 vote to replace Mike Pompeo as its head. Haspel’s heavily redacted resume included her command in 2002 of a secret torture site in Thailand, known intramurally as the “Cat’s Eye,” which engaged in waterboarding among other so-called “enhanced interrogation” techniques. Three years later, she ordered the destruction of 92 incriminating videotapes from the Cat’s Eye and elsewhere to forestall public inquiry into CIA tortures. The crime and the cover up thus led directly to her door.
Even in the age of Trump, the confirmation of a senior participant in the Bush torture regime as director of the country’s chief intelligence and counterterrorism bureau would seem to be a moral nadir. And it is. But we have essentially been there for a very long time. Torture is what we do. And rewarding those who do it with zeal and commitment — Haspel had received various governmental awards and citations, not to mention her steady promotion to second in command of the CIA prior to her nomination as director — has been longstanding practice.
We do more than torture, of course. In Vietnam, Cambodia and Laos, we practiced and provoked genocide in the 1960s and 1970s. We resumed it against Iraq in the 1990s, and have extended it, directly or by proxy, across a wide belt of territory from Central Asia to North Africa since 2001.
Other states do bad things too. But no state since 1945 has conducted or outsourced torture across as many borders, or conducted wars across as many time zones, as the United States. None has done so, moreover, while proclaiming itself, year in and year out, the global champion of freedom, democracy, human rights and the rule of law.
In 1945, the Allied Powers set up a court in Nuremberg to try the surviving leaders of Nazi Germany, and to put on record the story of its crimes. There was no precedent for such a court, nor any body of international law that recognized the categories of “crimes against humanity” and “crimes against the peace” under which defendants were prosecuted.
The accused attempted to defend themselves by saying that they had acted under the legal authority of an internationally recognized sovereign state. In rejecting this argument, the chief prosecutor at Nuremberg, U.S. Supreme Court Justice Robert Jackson, conceded that the tribunal was in effect making up new law as it went along. The justification for this, he contended, was that the acts of the Nazis were so heinous that failing to bring their perpetrators to account would undermine the moral basis on which all positive — i.e., actually existing — law rested. Jackson added that Nuremberg itself would be ultimately judged by whether the codes and standards it created were as binding on those who sat in judgment as on the defendants.
In Nuremberg’s wake, a body of international law and human rights standards was adopted and refined over what is now nearly three quarters of a century. Wars of aggression and the practice of torture and atrocity were among the crimes it proscribed. America was soon engaged in all of these.
The CIA was set up in 1947, while the Nuremberg trials were still proceeding. During the Vietnam War, it got into the torture business under the so-called Phoenix Program, and even put out a torture manual. Its operation of various black sites across the world after 9/11, including Haspel’s in Thailand, thus built on established practice. As interpreted by the Bush administration, however, the War on Terror was of such scope that it was thought prudent to give it the in-house blessing of the Justice Department’s Office of Legal Counsel.
The memoranda the OLC produced gave torture legal “standing” for the first time, America’s commitment to various human rights conventions notwithstanding. The disclosure of these memoranda prompted their repudiation by the Obama administration. This did not, however, constrain Haspel from raising the Nazi Nuremberg defense at her confirmation hearing. The CIA had at no time done anything wrong, she asserted, because it followed the law as it existed — i.e., as defined by presidential order and the OLC memoranda — during the Bush years, as it followed it now.
Haspel was asked whether she regretted her own participation in, um, enhanced interrogation. She answered that she was sorry for the “damage” the program had done in general to the CIA and its operatives; it had been, for sure, a PR disaster. Would she do it again? The CIA, she replied, would not “restart” such a program on its own; in short, she would await orders like anyone else in a proper chain of command, not initiate them.
This perfectly satisfied Sen. Richard Burr, the chair of the Senate Intelligence Committee, who said that Haspel’s confirmation would “send a signal to the [CIA’s] current workforce and to the workforce of the future that a lifetime commitment to the agency can and will be rewarded.”
We have come a long way indeed from Nuremberg.
A lot of hanged Nazis have to be chuckling in hell.