By Joseph Margulies
May 10, 2018
IDEAS

Margulies is a civil rights attorney, a professor at Cornell University and the author most recently of What Changed When Everything Changed: 9/11 and the Making of National Identity. He is counsel to Abu Zubaydah.

When President Donald Trump announced he would appoint Gina Haspel to replace Mike Pompeo at the Central Intelligence Agency, many of my colleagues on the Left rushed to condemn her. But I cautioned us to withhold judgment. I thought that Haspel’s past association with the “enhanced interrogation” program — including her eventual leadership of the CIA black site where my client, Abu Zubaydah, had been waterboarded 83 times — raised more questions than it answered. “Now of all times,” I wrote, “we need less knee-jerk condemnation and more sober, careful assessment. That is why we have a confirmation process.”

The public portion of that process took place yesterday. I watched Acting CIA Director Haspel testify, and I read the transcript. Frankly, there was much in the hearing that was gratifying. A fair reading of her testimony reveals Haspel to be a thoughtful, experienced champion of the agency. Still, no one who shares my devotion to official transparency and deliberative democracy can be satisfied. Haspel’s equivocations and evasions were inexcusable.

First, there is the matter of her moral judgment. Senator Mark Warner (D-VA) asked whether she would accede if Trump asked her to do something she found “morally objectionable.” She answered, “Senator, my moral compass is strong. I would not allow CIA to undertake activity that I thought was immoral, even if it was technically legal. I would absolutely not permit it.” So far so good — and many rightly take comfort in her response.

But then Senator Kamala Harris (D-CA), who seemed to be the only person on the Committee who has ever set foot in a courtroom, asked Haspel the natural follow-up: whether Haspel believed the enhanced interrogation techniques were immoral. Haspel equivocated. Having just vowed not to permit behavior she thought was personally immoral, she refused to answer a question about what that meant. So Senator Harris, undeterred, repeated the question, again posing it as succinctly and directly as possible. Again, Haspel refused to answer. Harris asked it a third time. And a fourth. Haspel wandered.

Because it is so revealing, and because people should educate themselves and then form their own judgment, here is the entire exchange:

Kamala Harris: So one question I have not heard you answer is, do you believe that the previous interrogation techniques were immoral?

Gina Haspel: Senator, I believe that CIA officers to whom you refer —

Harris: It’s a yes or no answer. Do you believe the previous interrogation techniques were immoral? I’m not asking do you believe they were legal; I’m asking do you believe they were immoral?

Haspel: Senator, I believe that CIA —

Harris: It’s a yes or no answer.

Haspel: — did extraordinary work to prevent another attack on this country given the legal tools we were asked to use.

Harris: Please answer yes or no. Do you believe in hindsight that those techniques were immoral?

Haspel: Senator, what I believe sitting here today is that I support the higher moral standard we have decided to hold ourselves to.

Harris: Can you please answer the question?

Haspel: Senator, I think I’ve answered the request, the question.

Gina Haspel sat before the American people and touted her “moral compass” — but refused to show us which way it points.

Then there is Haspel’s view of the enhanced interrogation program itself. The headline takeaway for many viewers was her insistence that she would not restart the program “under any circumstances,” regardless of what the President wanted. Again, so far so good. But the point of a confirmation process is to dig beneath the superficial, and in that regard, she also made it perfectly clear she thought the program produced useful intelligence, that it was entirely legal and, as far as we can tell given her answers to Senator Harris, completely consistent with her personal morality.

Then why not restart it? No one asked that question, but Haspel gave us some insight when she said she would not endanger CIA officers “by asking them to undertake risky, controversial activity again.” The implication — particularly of that word controversial — seems to be that she would be entirely comfortable with the same or equivalent operations so long as there was no risk of discovery by the American people, since the disclosure of such operations is what brings calumny to the Agency and risk to its officers.

I appreciate the need for secrecy. But throughout its history, this reflexive devotion to operating in the shadows has repeatedly disserved the Agency. It is worth remembering that the “enhanced interrogation program” is merely the latest in a series of operations by the CIA to study, refine and deploy torture, all of which — from Operation Phoenix in Vietnam to covert operations in Latin America under the tutelage of the “Human Resources Exploitation Manual” — were illegal, immoral and secret.

Finally, there is her evident conflict in declassification. Radical transparency means that the person whose laundry may be aired cannot be responsible for deciding what gets hung on the line. Yet we learned yesterday that Haspel alone has been deciding what fraction of her long record as a CIA officer will be disclosed. Naturally, she protests that she is following pre-existing policy and that full disclosure would make her an even more attractive candidate. She may be right. The point, however, is that the public should make that judgment, not her. A default rule which forces the American people to accept blindly the assurances of the person they are asked to assess is always suspect.

Some will inevitably dismiss my criticisms as partisan sniping. Yet this is part of the problem. The idea has taken hold that citizens discharge their obligation to the republic merely by ascertaining the political leaning of the person raising an objection. Once they acquire this knowledge, they believe they have everything they need to exercise the duty of citizenship and make an informed, independent judgment. But especially today, when the foundational institutions of American life are under constant assault and the very idea of truth is called into question by the loudest voices in the public square, we cannot afford to collapse deliberative democracy into partisan branding.

I do not know whether Gina Haspel went along willingly with yesterday’s hearing or whether she acceded to the tutoring of experienced political handlers who assured her that this was the only way to win confirmation. All I know is that because she has the support of so many people I trust, I wanted to support her nomination, notwithstanding her association with my client’s torture. But I cannot. My moral compass will not allow it.

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