Published by The Lawfare Institute
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If Barack Obama had nominated Gina Haspel to head the CIA, supporting her would have been—for me, at least—an easy call. She has had a distinguished career as an intelligence operative, one greatly admired by former senior agency officials of both parties. Her colleagues, current and former, talk about her as one of the best. She has diverse experience across a number of regions and subject-matter areas.
I do not share the belief, held today by many observers, that involvement with the agency’s post-9/11 detention, rendition and interrogation (RDI) program makes a person morally untouchable or unfit for subsequent public service. I didn’t believe that about John Rizzo. I didn’t believe it about John Brennan. I have publicly defended Jonathan Fredman. And I don’t believe it about Haspel either.
There are legitimate questions that Haspel needs to answer about precisely what role she did and did not play in the program—and in the destruction of the Abu Zubaydah interrogation tapes. But barring revelations about her role that change the picture, I would under other circumstances regard a Gina Haspel nominated by a normal president as a highly qualified nominee of a type I have supported in the past. And I would likely defend—energetically so—the proposition that we should not be declaring such people torturers and turning our backs on them.
But Haspel was not nominated by Obama. She was nominated by Donald Trump. And that makes a huge difference—not because I am applying some kind of double standard but because a presidential nomination is not merely a discussion of the character, qualifications and professional history of the nominee. It is also an act by a president that has communicative content and consequences of its own. And Trump’s nomination of Haspel sends a very different message—and is intended to send a very different message—than, say, Obama’s nomination of Brennan. It is not a message I believe that the Senate should condone, let alone endorse.
Ultimately, for reasons I’ll explain, this problem does not change my view that Haspel should be confirmed. But it makes the question hard; it complicates the picture; and it requires a subtler analysis.
When Obama nominated Brennan as CIA director, the president’s opposition to the RDI program was well known and very public. He had shut it down. He consistently referred to the interrogations conducted within the program as torture. Obama also spoke of looking forward, not backward, in thinking about counterterrorism. Brennan, for his part, also made clear his opposition to the program, though he had been a senior policy figure in the agency at the time of its operation. So there was no question of the program continuing or being revived. There was no question of the Obama administration’s message or intent. There was only the question of whether or not people who had played roles in the program would be blacklisted.
When President Trump nominates Haspel, by contrast, something else is going on. Trump has enthusiastically endorsed waterboarding. He has said that this country should do much worse than waterboarding, though waterboarding was at the extreme margin of legality even according to those believed it was legal under the law of the time. He has endorsed targeting the families of terrorists. Trump has linked all of this to toughness. And critically, at least to me, he has made these arguments in a forward-looking context—that is, not as actions he thinks it defensible that the United States once undertook but as actions the country should now be undertaking. What’s more, he has specifically linked his nomination of Haspel to his vision of “toughness”:
My highly respected nominee for CIA Director, Gina Haspel, has come under fire because she was too tough on Terrorists. Think of that, in these very dangerous times, we have the most qualified person, a woman, who Democrats want OUT because she is too tough on terror. Win Gina!— Donald J. Trump (@realDonaldTrump) May 7, 2018
Gina Haspel, my highly respected nominee to lead the CIA, is being praised for the fact that she has been, and alway will be, TOUGH ON TERROR! This is a woman who has been a leader wherever she has gone. The CIA wants her to lead them into America’s bright and glorious future!— Donald J. Trump (@realDonaldTrump) May 8, 2018
Trump is all but explicitly saying that the Senate should confirm Haspel because she was involved in waterboarding a detainee. And he all but talks about her as a part of his ambition to revive, indeed to exceed, interrogation practices that the United States turned away from many years ago.
This is a profoundly objectionable message—objectionable enough that if there were not still more to the story, I would think the Senate should vote down Haspel simply to avoid appearing to accede to it. This would be totally unfair to Haspel, but it would be justified, in my view, for the simple reason that a confirmation is more than a character judgment about the nominee. The Senate is entitled to tell the president, and has a duty to tell the president, that the RDI program has no future role in U.S. counterterrorism policy.
Whatever one thinks of the RDI program at the time the CIA operated it, there is simply no good argument for reviving it—or anything remotely like it—now. There is no appetite at the CIA for doing so, and I would be shocked if at her hearing Haspel expresses any interest in the idea. Many of the people who ran or supervised the program when it was active and defend it to this day would oppose any such attempt. Rizzo, for example, has said this publicly.
The good arguments for what the CIA did—and there are some good arguments for it—are entirely situational. Those arguments rely on the incredible intelligence deficit the United States had with respect to al-Qaeda in the immediate aftermath of the Sept. 11, 2001, attacks, combined with the sudden capture of significant al-Qaeda operational leadership figures in the context of reasonable fears of a wave of devastating attacks that might come at any time. U.S. intelligence is far better today. The threat picture isn’t nearly as menacing. And, in any event, the United States is not capturing al-Qaeda leadership figures in any numbers these days. Morality aside, there simply is no serious argument that this country needs an RDI program now.
All of this would be legitimate grounds for the Senate to vote down Haspel’s nomination—except that the analysis does not stop there either. There is more to the Haspel story than just the message sent by her nomination by Trump. Specifically, the Senate should consider why so many career officers at the CIA are excited by the prospect of her nomination: They see her as an important layer of protection between the agency and the president.
They are not wrong—and this, to me anyway, is the dispositive factor.
Trump’s enthusiasm for torture is not the most realistic threat he poses to the CIA as an institution. This is, after all, the man who stood in front of the agency’s memorial wall and boasted about the crowd size at his inauguration. He rejects intelligence about Russian interference in the 2016 presidential election that is not politically congenial to him. He also complains serially about a “deep state” conspiracy against him—one rooted in the intelligence community. The alternatives to Haspel are not likely to be people with all of her intelligence professionalism and experience and none of the baggage she carries on interrogation. Rather, they 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 wants. They are also, I suspect, more likely to share Trump’s enthusiasm for interrogation abuses than is a woman who saw firsthand the damage the program did to the CIA’s prestige and running room vis-a-vis Congress.
The insulation that Haspel stands to provide for the agency from a president hostile to the task of intelligence gathering and analysis has both a substantive element and a bureaucratic element. The substantive element is ensuring the agency’s ability to deliver serious, dispassionate analysis, not precooked conclusions congenial to a president who already knows the “truth” and just wants validation for it. This is what former CIA director Michael Hayden is talking about when he describes Haspel as someone he is confident will speak truth to power.
The bureaucratic element is important too. It’s what Shane Harris—who profiled Haspel for the Washington Post—is referring to on Tuesday’s Lawfare Podcast when he talks about how Haspel is seen within the agency as someone who can protect the CIA from a president who doesn’t believe in intelligence and has a problem with the intelligence community. It’s that function of absorbing the craziness emanating from the White House so the career folks can do their jobs.
There is one other factor that militates strongly in Haspel’s favor: Russia. For whatever reason, Trump has a dangerous proclivity to ignore and minimize the threat posed by Putin’s Russia. I won’t speculate here about the reason for this inclination on the president’s part. For present purposes, the reason doesn’t matter. What does matter is that Trump’s intelligence community is staffed by people who take the threat seriously, who understand the threat and who don’t give in to the political incentive to minimize the threat in order to please the boss. Haspel, who played a key role in the expulsion of Russian diplomats recently, is clearly one of those people. To my knowledge, and this is admittedly a low bar, she has had no undisclosed contacts with Sergey Kislyak.
In short, assuming that one doesn’t start with a principled opposition to confirming people who played a role in the RDI program, the question becomes how to weigh the value of rejecting Trump’s message in nominating Haspel against the value of having professional CIA leadership that can serve as both a bureaucratic and substantive bulwark for the agency in doing its work and who has a clear-eyed understanding of the activities and intentions of a major foreign adversary. For me, at least, the call of professionalism and analytical seriousness and the desire to insulate a major intelligence component against the predations of the president takes precedence over optimizing senatorial moral and policy messaging on interrogation.
I watched the FBI leadership try to play this insulation role in 2017. I had no doubt at the time that it was critical. It is no less important today at CIA. I would feel better knowing that Gina Haspel were playing it now—even if that means asking the Senate to accept her role more than a decade ago in the CIA’s larger response to a crisis moment.