Thursday, Oct 18, 2018
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Will Tomer

‘Following orders’ is a familiar, but unjustifiable, defense

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    Gina Haspel is sworn in during her confirmation hearing before the Senate Intelligence Committee on May 9. Ms. Haspel was confirmed as the newest CIA director on May 17.


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    Will Tomer

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Gina Haspel, President Donald Trump’s new CIA director, has come under intense scrutiny recently for her involvement in the CIA’s so-called program of “enhanced interrogation,” a euphemism for torture. Ms. Haspel and her defenders have claimed that the program was sanctioned by President George W. Bush’s Department of Justice. But the argument that Ms. Haspel was acting in accordance with U.S. law and following orders ignores history and international law.

After becoming chief of base for a CIA black site prison in Thailand in 2002, Ms. Haspel supervised the waterboarding of one detainee, Abd al-Rahim al-Nashiri. Later, in 2005, she drafted a classified memo ordering the destruction of videotapes of the torture of two detainees, including al-Nashiri.

Read more by Will Tomer

At her confirmation hearing earlier this month, Ms. Haspel said that her involvement in the torture program was in accordance with law at the time. A set of secret legal memos, now known as the Torture Memos, were written by officials within the Bush administration in 2002, crafting a legal justification for the use of torture.

Ms. Haspel is not the only person making this defense.

Michael Hayden, former director of both the CIA and NSA, wrote in a recent op-ed for The Hill that Ms. Haspel “did nothing more and nothing less than what the nation and the agency asked her to do.” On Twitter, Mr. Hayden wrote that Ms. Haspel’s actions were consistent with U.S. law, as defined by President George W. Bush’s Department of Justice.

John Brennan, former director of the CIA, told MSNBC that the torture program had been deemed lawful at the time of Ms. Haspel’s involvement. “She has tried to carry out her duties at CIA to the best of her ability,” he said, “even when the CIA was asked to do some very difficult things in very challenging times.”

James Clapper, the former Director of National Intelligence, stated on CNN that Ms. Haspel’s actions were sanctioned by Mr. Bush and his Justice Department.

However, these defenses stand counter to international law established in the aftermath of World War II.

After the Allied victory in 1945, a series of military tribunals were convened to prosecute prominent members of the Nazi regime for war crimes. At these tribunals, commonly known as the Nuremberg trials, a number of Nazi officials claimed that their participation in the war and the implementation of the Final Solution was not by choice, but at the direction of their superiors.

A series of international laws known thereafter as the Nuremberg Principles were established after the trials. Perhaps the most famous of these reads: “The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” In other words, “following orders” is not recognized as a justifiable defense for violating international law.

Shortly after the Nuremberg trials, tribunals were established to prosecute Japanese war criminals. Among the charges was torture. In an accounting of the torture techniques used by the Japanese during the war, “water-based interrogation,” also known as waterboarding, was at the top of the list.

A recurring theme in defenses of Ms. Haspel’s involvement in the torture program is the notion that the U.S. was in a difficult situation after 9/11. As Rep. Will Hurd (R., Texas) told CNN, “You have to remember where we were at that moment, thinking that another attack was going to happen.”

Yet, it is clear that Ms. Haspel’s actions, as well as the U.S. torture program as a whole, were, according to international law, illegal.

The United Nations Convention Against Torture, signed by the U.S. in 1988 and ratified in 1994, states that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”

It should be noted, too, that had U.S. citizens been captured and subjected to such treatment by another country, there would have surely been calls for those responsible to be held accountable in a court of law.

Ms. Haspel now states that she would not authorize the use of torture, even if such acts were again deemed legal by the Department of Justice.

EDITORIAL: Torture is a blight on the U.S.

Ms. Haspel’s confirmation as CIA director confirms that for many, Ms. Haspel’s willingness to “follow orders” made her an acceptable nominee. The problem is that having squandered her moral authority in the pursuit of terrorists, Ms. Haspel is likely to find it difficult, if not impossible, to reclaim it.

More important, what message does the United States send the world when it turns a blind eye to blatant violations of the law by officials within its own government? How can the United States preach the merits of due process and the rule of law when those who practiced state-sanctioned torture cannot be held accountable for their actions?

“Moral authority” is the ability to make decisions that are right and good. In a realm fraught with moral ambiguity, it may be argued that leadership characterized by a clear sense of right and wrong is essential for the CIA, whether your questions are concerned with legitimacy or the efficacy of the agency’s enterprise.

Just as the international standing of the American intelligence community is vital in the modern era, so too does the status of the intelligence community depend on the integrity of its members, one of the most visible of whom is the director of the CIA.

But however knowledgeable Gina Haspel may be, she is, in the parlance of her trade, a “compromised asset.” The CIA has been compromised further by putting her in charge.

Contact Will Tomer at, 419-724-6404, or on Twitter @WillTomer.

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