Why We Don’t Support Gina Haspel for CIA Director: A Response to Benjamin Wittes

In his Tuesday post in support of Gina Haspel’s nomination to be director of the CIA, Benjamin Wittes wrote about “the insulation that Haspel stands to provide for the agency from a president hostile to the task of intelligence gathering and analysis.” For this and other reasons, Wittes argued, Haspel should be confirmed—even though President Trump has linked her nomination to his “enthusiasm for torture.” He also wrote that “barring revelations about her role” in running a Thailand “black site” at which detainees were tortured and in destroying interrogation tapes, he did not feel that Haspel’s involvement in the CIA’s rendition, detention and interrogation (RDI) program was disqualifying. Wittes’s analysis is thoughtful, but we disagree with his conclusion. Gina Haspel should not be confirmed.

Let’s start by putting our foundational disagreement with Wittes on the table: For us, Haspel is disqualified by the fact that she directly facilitated torture and helped destroy evidence of it.

Haspel said at her confirmation hearing that she believed the RDI program was legal during her involvement in it. Does that make her actions any less brutal or immoral? Virtually none of Haspel’s record has been made available to the American people. But no one appears to disputes that Haspel was Chief of Base at the Thailand black site when Abd al-Rahim al-Nashiri was waterboarded and brutalized. A decade after his torture, expert clinician Dr. Sondra Crosby stated that al-Nashiri was "one of the most severely traumatized individuals I have ever seen.” Nor did the Justice Department memos protect other detainees from treatment that left them severely hallucinating or literally begging to be killed.

Haspel was directly, substantially involved in carrying out the brutal interrogation program. And while she stated during her confirmation hearing on Wednesday that she would not reinstate such a program as CIA director, she failed to condemn the agency’s past actions.

Undecided senators have cited Haspel’s role in destroying tapes of Abu Zubaydah’s waterboarding as most troubling to them—and Haspel did nothing to satisfy those concerns at her hearing. (Contrary to Haspel’s claims at her hearing, there is documentary evidence that at least two of the destroyed tapes were of a second detainee—presumably al-Nashiri.) She acknowledged to the Senate intelligence committee that she had lobbied to destroy the tapes, drafted the cable ordering the tapes destroyed and knew of senior-level objections to that course of action. But she continued to claim that she believed that her boss, Jose Rodriguez, intended to obtain permission from then-CIA Director Porter Goss to destroy the tapes. “Mr. Rodriguez indicated to me that he planned to discuss [destroying the tapes] with then-Director Goss,” she said to Sen. Ron Wyden.

Rodriguez has never publicly supported Haspel’s claim that she believed he would not act without Goss’s approval. But just before Haspel testified before the intelligence committee, ProPublica released a substantial article in which Rodriguez—for the first time—directly contradicts her claim. He says that the week he decided to order the tapes destroyed:

“I finally came to the realization that nobody was going to make this decision for us,” he recalled in an interview…. Rodriguez conveyed his realization to Haspel. “I met with Gina and I told Gina, ‘I’m going to make this decision myself. Who are we kidding? No one is going to make the decision. People are just kicking the can down the road.”

The two officials worked out a plan to resolve the problem once and for all, he said.

Haspel was asked during her hearing if such a conversation took place. She replied: “No it did not.” Speaking to ProPublica, Rodriguez went on to describe Haspel’s reaction to his decision: “She was concerned that I was taking this risk on my own — that I was putting myself in this situation,” Rodriguez recalled. “She didn’t say, ‘Don’t do it.’ She may have thought I was going to talk to more people about it before hitting ‘send,’ but I had made up my mind that I was going to follow through.”

It may appear that Rodriguez has left Haspel a little bit of wiggle room (“She may have thought I was going to talk to more people before hitting ‘send.’”) But that is not what Haspel told the Senate. She said no fewer than five times that Rodriguez told her that he was going to speak with Goss—with the clear implication that she had no idea that he might act on his own.

Moreover, every step we know she took is consistent with Rodriguez’s version of events and contradicts her own: she failed to show her draft cable ordering the tapes destroyed to lawyers in the CIA’s Office of the General Counsel (OGC), she left them off the coordination line on the cable, and she sought confirmation from lawyers at the CIA’s Counterterrorism Center (but not OGC) that Rodriguez had the legal authority to act on his own, among other actions.

The ProPublica article also paints a vivid picture of growing crisis and concern about the tapes within the CIA in which Rodriguez was directly involved—to the point of trying to dissuade the Washington Post from running a major story on the black sites. One official told ProPublica that the Post story had an impact at the agency “only a little bit less than a full nuclear explosion.” So it is puzzling that Haspel told Sen. Angus King on Wednesday that she “do[es] not recall being aware of” the Post story in the runup to the destruction of the tapes.

Haspel’s supporters cite the “Morrell Review” as clearing her of wrongdoing in the tape destruction—but the review, the only document released by the CIA in the runup to Haspel’s confirmation hearing, not only does nothing of the sort but is now completely overtaken by Rodriguez's interview with ProPublica. The Morell Review came about some years after the destruction of the tapes: then-CIA Director David Petraeus asked his deputy Michael Morell, a strong supporter of the RDI program, to “chair an accountability board of senior officers to sit in judgment of Rodriguez’s actions.” While a panel might have included some of the RDI’s many critics within the agency, Morell decided to “handle the assignment solo.” As he wrote in his memoir, he then took Rodriguez to a nearby hotel to explain to him “over a drink” how he intended to “handle it.”

Morell’s review blasts the “leadership of the Agency” for having “failed Mr. Rodriguez.” It contains exactly one paragraph on Haspel. Morell writes that “[s]he drafted the cable on the direct order of Mr. Rodriguez; she did not release that cable. It was not her decision to destroy the tapes; it was Mr. Rodriguez’s.” Crucially, the review repeats Haspel's claim that she believed Rodriguez planned to seek approval from Goss before releasing the cable. But he does not say that Rodriguez corroborated her "claims." Now we know why.

Beyond Haspel’s involvement in the destruction of evidence, the fact that the CIA will not declassify Haspel’s record creates an insurmountable objection to her confirmation. The hints about her actions and growing allegations that she was an “enthusiastic” supporter of and participant in the interrogation program are deeply troubling. It is absurd for the Senate to attempt to fulfill its constitutional advice and consent responsibility based on a record that only members of Congress and highly-cleared staff members can review. For this reason, Haspel’s repeated refusal at her hearing to recuse herself from making decisions on declassifying her own record is troubling.

Given the intense controversy about the RDI program, the public is entitled to know much more about Haspel’s record. The last time a covert officer, William Colby, was tapped to lead the agency, his confirmation hearings took three days. Bob Gates’s hearing ran eight days—seven in open session. Haspel had to face one round of open questioning with five minutes allotted to each senator.

Up until now, we have disputed the first half of Wittes’s argument—that there is nothing per se disqualifying about Haspel’s deep involvement with the brutal CIA interrogation program. But Wittes makes another case. He argues that while Trump’s support for torture complicates the argument for supporting Haspel, her ability to “insulate” the agency from political pressure will be particularly valuable given the unique dangers posed by the current president.

This reasoning is backwards. To protect the independence of the CIA, its leader must enjoy strong bipartisan support–and that can only come with a nominee who is not tainted by deep involvement with or support for torture. A nominee who is barely confirmed and who owes that confirmation to the president’s political arm-twisting will be in a very weak position to call on support from the Congress should she need to resist White House pressure. No one supports Haspel’s nomination more than Sen. Tom Cotton. But is he likely to support her in a contest with the president or on a dispute over torture?

Wittes argues that “[t]he alternatives to Haspel … are likely to be people who are much more political, much less steeped in the norms and culture of the intelligence world, and thus much more apt to give the president whatever answers he want”—a particularly concerning prospect given Trump’s views on torture. Yet many such highly qualified, independent and easily confirmable candidates exist, including former Sen. Kelly Ayotte and Deputy Director of National Intelligence Susan Gordon.

If your goal is protecting the CIA’s independence, Haspel mostly looks good precisely when compared to someone like Cotton, the worst-case specter behind the concerns of many of Haspel’s defenders. But it is highly likely that Senate Majority Leader Mitch McConnell would resist Cotton’s nomination, since it would put another Republican Senate seat at risk. Moreover, if Haspel is defeated, any subsequent, even more deeply flawed candidate—like Cotton, who seems quite open in supporting torture—will face a very daunting path to confirmation.

Wittes writes that, reportedly, Haspel’s nomination enjoys wide support within the CIA. But this idea that Haspel will be “good for the building” is in part based on the erroneous assumption that critics of the torture program were all people outside the CIA. On the contrary, there is plenty of evidence of hostility toward the RDI program within the agency: CIA Inspector General John Helgerson said that while he was conducting his review of the program, he “could not walk through the cafeteria” without people coming up to him to offer encouragement. And the Senate intelligence committee report on the program quotes Counterterrorism Center staff complaining about the “corrosive, bullshit mumbling and rumblings” from other parts of the agency, including the view that “the CIA is off the track and rails …that we should not be doing detention, rendition, interrogation.”

For this reason, Haspel’s involvement with the RDI program calls into question her ability not only to stand up to the president but to be an effective leader within the agency. She was promoted to the Deputy Director of the CIA, but, as Sen. Dianne Feinstein has said, “the top position is another matter entirely.” The Senate is evaluating her ability to make sound moral, ethical, and strategic judgments under intense pressure. How, for instance, can Haspel be expected to foster a culture at the CIA where officers are encouraged to resist political pressures or orders to engage in legally and morally dubious conduct if one of her major arguments against her critics is that she was “just following orders” when she helped destroy evidence and facilitated torture?

Haspel is reportedly hard-working, dedicated and effective. But she applied those talents over several years to support and assist Jose Rodriguez, and by all accounts there was never a more gung-ho advocate of brutal interrogations in the agency. She was, as Rodriguez puts it in his memoir, his “right arm.”

That is the wrong person to put in charge of the CIA.

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Editor’s note and disclosure: The Open Society Foundation, with which the Open Society Policy Center is affiliated, is a financial supporter of Lawfare. The Open Society Foundation takes no position on nominations or legislation. This article, as with all articles, underwent Lawfare’s normal editorial process and review.