By Maha Hilal

From Truthout | Original Article

Gina Haspel prepares to speak while flanked by President Donald Trump and Vice President Mike Pence, after she was sworn in as CIA director at agency headquarters, May 21, 2018, in Langley, Virginia. (Photo: Mark Wilson / Getty Images)

Although Gina Haspel's nomination received the fewest supporting votes of any previous CIA director nominee, on Monday morning she was sworn in to head the agency. Introducing Haspel, Trump stated that "instead of apologizing for our nation, we are standing up for our nation." He spoke these words knowing that Haspel oversaw the CIA's first black site in the "war on terror," where two Muslim prisoners were waterboarded repeatedly. Why? Because torture is American.

Prior to her confirmation, there seemed to be three common mainstream responses to Haspel's nomination: 1) The torture she oversaw wasn't torture/was acceptable under the circumstances; 2) Those who were tortured provided valuable intelligence, therefore justifying this abuse; and 3) Torture is "un-American" because it is morally and legally impermissible.

To those who fell into the third response, including senators and advocates alike, Haspel was seen as unqualified to lead the CIA precisely because of her role in facilitating torture. But to suggest that this disqualifies someone from a position in a particular agency is to say that her actions were deviations from the norm. On the contrary, history strongly suggests that Haspel's atrocious past is just what the CIA is looking for and what the US government will endorse. More specifically, and seen through a systemic lens, the torture she oversaw is completely in line with the violence that is condoned, perpetrated and overseen by the CIA in general.

Torture in the "War on Terror" -- From Bush to Obama

Though torture is a tactic familiar to the CIA, during the "war on terror," its legality became malleable. For instance, take the case of former Deputy Assistant Attorney General John Yoo, who in 2002 wrote  memos authorizing torture. By the standards created by John Yoo's legal gymnastics, in order for abuse to rise to the level of torture, abusive treatment had to result in organ failure or death. Moreover, when asked by Doug Cassel, former director of Notre Dame Law School's Center for Civil and Human Rights, if the president had the authority to crush the testicles of a child and whether anything could prevent him from doing so, Yoo responded that there was no law to prevent him from doing so.

At the same time that Yoo was concocting legal strategies to make torture legal, the CIA began its Rendition, Detention and Interrogation (RDI) program in 2002, which allowed for the capture and detention of prisoners. The Senate Select Committee on Intelligence torture report identified 119 prisoners who went through the CIA's RDI program from 2002-2008, all of whom were Muslim and who were subjected to a use of tactics ranging from stress positions to cramped confinement, to the use of diapers, to mock burials. Given the brutality of these tactics, the CIA sought preemptive immunity from the Justice Department's Criminal Division prior to torturing one of its first prisoners in custody, Abu Zubaydah, who was waterboarded 83 times -- torture that was overseen by Gina Haspel.

The CIA's RDI program lasted until 2008, with its calls for impunity fulfilled. Despite the findings of egregious torture that were revealed in the Senate Select Intelligence Committee report released in 2014, not a single person has been prosecuted for torture.

When Obama became president, there was a push for "transparency" surrounding the torture programs, though at the same time, the administration sent a clear message that those who committed torture need not be afraid of consequences. That's why when President Obama released the "torture memos" in 2009, he stated, "It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution."

Moreover, former US Attorney General Eric Holder ordered an investigation into the CIA's torture program later in 2009, to be conducted by John Durham, who at the time was appointed as special prosecutor to investigate the destruction of tapes with evidence of torture. However, Holder expressly stated that, "the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel (OLC) regarding the interrogation of detainees." But what does "good faith" mean in light of a report that spells out prisoner abuses such as rectal feeding and sleep deprivation? This language suggests that torture isn't "un-American"; accountability for torture is.

Furthermore, the position taken by the Obama administration raises the question: Who is subject to prosecution? And how far does the notion of "good faith" extend? Was Gina Haspel acting in good faith when she oversaw prisoners being waterboarded? Where is the line between good-faith acts and illegal conduct?  Unfortunately, both the national security paradigm post-9/11 and a lack of any accountability of the CIA as a purveyor of mass violence has meant that these lines are often drawn in the sand with little to no weight of law as accountability.

What Gina Haspel's confirmation further reveals is wholesale impunity for torture, but also a renewed case of the "bad apple" syndrome, in which blame for abuse is assigned to one person because of a refusal to address its systemic nature. This approach is only taken when it's more politically viable because addressing a single act of violence is hardly as overwhelming -- or as politically costly -- as trying to address a systemic issue that runs through the veins of the CIA.

Lack of Accountability for Torturers

In the lead-up to Haspel's confirmation, accountability for torture extended only as far as questioning whether she should lead the CIA. Prosecution was never once on the table despite her role in torture. Even the members of the Senate Select Intelligence Committee that produced the torture report did not advocate prosecution. How can we claim that torture is "un-American"? What would it mean if torture were considered American, if torture as "un-American" results in total impunity?

How do we determine what measures of accountability are appropriate for those who broke the law? This question is often challenged because of how the law was rewritten and reworked to legalize torture under the Bush administration. However, the question of torture's legality is not a new one, and there are multiple definitions of what constitutes torture not only in domestic law, but international law. Moreover, what the torture discourse post-9/11 brought squarely to the forefront is that changed laws don't make conduct any more moral or ethical -- and that changed laws can be reversed when it is clear that they were designed to evade accountability, not ensure more protections or enhance national security. For those advocating against torture, what Haspel oversaw fit the crime, and the subpar legal justifications offered by Bush administration officials didn't and don't change the essence of what is widely understood as torture.

Recognizing that the abuse sanctioned under the Bush administration was torture, few were willing to take a strong stand calling for accountability. Even Sen. Dianne Feinstein, who led the Senate Select Committee on Intelligence report on torture, took time to decide on her vote against Haspel despite knowing what she did about her role, and when she did vote no, she stated:

This nomination is bigger than one person. This nomination is about reckoning with our history. It's about grappling with our country's mistakes and making clear to the world that we accept responsibility for our mistakes and they will never be repeated.

But preventing a single CIA officer from being promoted does not count for reckoning with our history. Additionally, Feinstein said:

The bottom line is this: No one has ever been held accountable for the torture program and I do not believe those who were intimately involved in it deserve to lead the agency. What message does it send to the world if we reward people for presiding over what is considered to be one of the darkest chapters in our history?

Perhaps for some, a known torturer leading the CIA sends the world a frightening message, but if there was concern about the message the US was sending by appointing torturers, then Haspel's prior appointment to deputy director should have been worthy of equal concern. Moreover, this assumes that people view the CIA as an otherwise accountable institution that upholds the rule of law while obtaining valuable intelligence. But given the CIA's questionable conduct in the past and present, this view makes no sense, and the CIA's credibility (or lack thereof) cannot hinge only on Gina Haspel's confirmation.

Critically, Haspel's testimony made clear that she neither acknowledges nor expresses remorse for her role in torture. Instead, Haspel stated that she wouldn't "condemn those that made these hard calls," and that while she believed the intelligence information gained was important, "it ultimately did damage to our officers and our standing in the world." In other words, torture is not inherently wrong in Haspel's mind, and whatever harms came from the CIA's torture programs exist only because those tasked with conducting the torture were endangered. Never mind the immense harm done to those who were actually tortured. And when it comes to legality and morality, a country's image should hardly be the driving factor. That Haspel could state these words while knowing she still had a good chance of being confirmed demonstrates just how confident one can be of impunity in the name of "national security."

Haspel wasn't the only person who let herself off the hook; indeed, many made the argument that she was just following orders. But this exposes another problematic aspect of the impunity structure -- namely, that those who ordered the torture aren't held accountable either. That's why the architects of torture post-9/11 haven't received any attention whatsoever. The blame is only shifted temporarily and when it's politically convenient -- not as a matter of uncovering the root causes, exposing the evasion of the law and exploring what could have prevented these abuses from happening in the first place.

The CIA and Torture

Missing from the debate around Haspel's confirmation is the role of the institution in which the torture took place. Indeed, the CIA has emerged from the debate on Haspel's role relatively unscathed. Moreover, rather than broadening the national discourse to reflect critically on an agency that has (and still does) conduct massive acts of state violence, the CIA's foundational structures have escaped public scrutiny.

In his book Killing Hope: US Military and CIA Interventions Since World War II, William Blum documents an extensive history of the CIA's state violence abroad that includes torture. The CIA, far from being just an intelligence-gathering organization, has contributed to massive unrest in other countries and inflicted horrendous violence on them. While some may argue that the torture in a historical context was not done as openly and overtly, and that torture during the "war on terror" was more transparent, when it comes to accountability for the crimes committed, there has been no discernible difference. In other words, being privy to actions of the CIA has had no significant bearing on the extent to which the CIA actually faces consequences.

The CIA's role in political unrest across the globe led the Senate Select Intelligence Committee to conduct an investigation into this intelligence agency and others in 1975. The investigation and subsequent report produced several recommendations such as increased congressional oversight. Though this was clearly a positive attempt to curb the power of intelligence agencies, the brutal torture that occurred decades later and without congressional approval demonstrates just how much power the CIA has amassed. Furthermore, the inability to hold accountable those who actually commit the abuses allows the agent to hide behind the agency and the agency to evade responsibility.

One Step Forward, 10 Steps Back

With Gina Haspel confirmed, a lack of accountability for anyone involved in the torture apparatus thus far, and a president overtly in favor of torture, the question that seems appropriate to ask is: To what extent will this abuse of human rights re-emerge as an explicit counterterrorism tactic? It seems assured that given the circumstances, the question is not if, but when. This doesn't mean that torture will never go accounted for, but that it may be left in the hands of survivors, such as Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud and the estate of the late Gul Rahman, who sued CIA contracted psychologists James Mitchell and Bruce Jessen for their development of the specific torture tactics used by the CIA, to gain some semblance of rights.

In order to actually reckon with torture, we must recognize that US history is riddled with it. Furthermore, if the rule of law is truly a principle that the US adheres to, then it should be noted that forgiveness for crimes against humanity is not what strengthens the rule of law. Rather, accountability is. If the United States is truly interested in reckoning with torture and pursuing justice, then we must continually ask what mechanisms should be implemented to hold torturers accountable, regardless of Haspel's confirmation. And we must ask these questions not only to make our country more ethical, but also because those who have suffered irreparable damage from our actions are owed answers. Perhaps one day, our vision of justice will include our victims, because only then can we truly say we've reckoned with our past.

Dr. Maha Hilal is co-director of Justice for Muslims, an organizer with Witness Against Torture and a council member of the School of the Americas Watch. Dr. Hilal has worked extensively in the anti-torture field and is currently a co-principal investigator with the Torture Treatment Initiative out of Tulane University's Traumatology Institute.

Copyright, Truthout.org. Reprinted with permission.