By David B. Rivkin Jr. and Lee A. Casey
Gina Haspel reportedly offered last week to withdraw her nomination as director of the Central Intelligence Agency. The White House declined and now must stand behind her as she faces an unjustified assault involving the Bush administration’s enhanced-interrogation program.
Shortly after 9/11, the administration concluded that it needed to obtain as much actionable intelligence as possible to avert future attacks. It decided to explore, and ultimately adopted, the use of interrogation methods against some al Qaeda operatives far more rigorous than would have been permissible against lawful prisoners of war.
The administration was properly mindful of U.S. statutes and obligations under the United Nations Convention Against Torture. Even unlawful enemy combatants may not be subjected to torture or to cruel, inhumane or degrading treatment. Where to draw the line? It was not for the CIA, much less Ms. Haspel, to answer that question, but for the Justice Department’s Office of Legal Counsel, which advises federal agencies on the law.
OLC’s guidance, in the form of several memos issued in 2002 and 2003, was communicated through the CIA’s general counsel to agents in the field and was the basis on which the enhanced-interrogation program was carried out. The guidance was precise and unambiguous. It listed all the legally permissible interrogation techniques, backed up by appropriate safeguards. The details of this program were fully and repeatedly briefed to the so-called congressional Gang of Eight—the House and Senate majority and minority leaders and chairmen and ranking members of the intelligence committees. None raised a word of objection.
But as the fear of terrorism receded, one of OLC’s memos was leaked to the press, in June 2004. It ignited a debate, in and out of government, over what the administration’s opponents labeled “torture.” (We supported the administration in these pages.) OLC soon withdrew that memo and issued revised guidance on Dec. 30, 2004. Although narrower and more cautiously reasoned than the original, the new guidance stated unequivocally that “we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”
The CIA program ended in November 2007, and President Obama formally banned coercive interrogations in January 2009. Congress also passed a series of statutes limiting the CIA’s interrogation protocols to the benign techniques featured in the U.S. Army Field Manuals.
To assuage concerns about Ms. Haspel’s career, the CIA has offered to make the relevant materials available to the Senate for review behind closed doors. It should resist the request of some senators to declassify her entire personnel file. Since Ms. Haspel spent almost her whole career in clandestine service, was posted overseas on numerous occasions, and ran covert assets against hard targets, such disclosure would be certain to expose sensitive operations, jeopardize the safety of U.S. and allied intelligence agents, and damage national security.
Ms. Haspel has been criticized for her role in the CIA’s 2005 destruction of videotapes showing interrogations. At the time, she served as chief of staff to Jose Rodriguez, director of clandestine programs, who authorized the destruction. Given the existence of written transcripts, which included descriptions of the specific interrogation techniques being used, retention of the tapes was not required by law or regulation. There was also justifiable concern that the tapes might be leaked someday, revealing the identity of covert CIA operatives. When Mr. Obama’s deputy CIA director, Mike Morrell, investigated the matter, he wrote that he “found no fault with the performance of Ms. Haspel,” who had acted “appropriately.” Mr. Rodriguez was reprimanded only for not obtaining explicit approval of his superiors before destroying the tapes.
What is at stake here is not just the career of a courageous, dedicated public servant. Like other government employees, intelligence officers cannot ignore the policy decisions of their political superiors. Those appointees, and ultimately the president, are accountable for their actions—as are the congressional leaders who raised no objection to enhanced interrogation at the time. If agents are blamed following the directives of their superiors, the CIA’s ability to protect the U.S. will be fundamentally compromised.
The White House is right to stand behind Ms. Haspel—not only because she risked life and limb in the service of her country, but because of the important principles at stake.
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.