by Bruce Thornton
The real background of Trump's CIA pick.
Gina Haspel, Trump’s pick to succeed Mike Pompeo as head of the CIA, is a thirty-year veteran of the agency, one well respected by intelligence professionals from both parties. If confirmed, she will be the first woman to run our most important security agency. But despite this feminist victory, the Dems are likely to muddy the waters at her confirmation hearings by smearing her with allegations she oversaw “torture” at a black site in Thailand in 2002. Typical of what we can expect is the New York Times editorial titled, “Having a Torturer Lead the CIA,” even as the charge about the black site was shown to be untrue.
Once again, the party bereft of ideas and principle resorts to emotional obfuscation and accusation to advance their ideological prejudices. So, once again, it is necessary to lay out the facts and partisan hypocrisy behind the “torture” charge that has damaged our ability to gather the intelligence necessary to defend our safety and security.
Start with the imprecise or even willfully distorted language that always perfumes unsavory ideologies. In everyday use, “torture” can mean anything from a visit to the dentist to the sadistic mayhem of brutal regimes like Iran or North Korea. As a result, indiscriminate, lurid connotations and emotions attend the use of a word like “torture,” which of course is what makes it so useful for partisan smears.
Laws, however, have to be more precise. The statute concerning torture in U.S. law defines it as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” The law further clarifies “severe mental pain or suffering” as “the prolonged mental harm caused by or resulting from . . . the intentional infliction or threatened infliction of severe physical pain or suffering.”
The key words are “intended,” “severe,” and “prolonged.” As John Yoo, who was a deputy assistant to the AG during the Bush administration, wrote in his book on the subject, in passing this legislation “Congress unquestionably intended its prohibition on torture to be narrow, much narrower than many popular understandings of the word. The alleged torturer must have acted with ‘specific intent,’ the highest level of criminal intent known to the law . . . If severe physical or mental pain or suffering results, but was unintentional, or unanticipated, it would not be torture.”
However, the law left vague what “severe” means. That is why, in 2002, the Office of Legal Counsel in the Bush administration’s Department of Justice prepared what the left tendentiously calls the “torture memos.” To clarify the law, the OLC looked to other uses of similar language in U.S. law. “The only other place” Yoo writes, “where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including ‘severe pain’ where an individual’s health is placed ‘in serious jeopardy,’ ‘serious impairment to bodily functions,’ or ‘serious dysfunction of any bodily organ or part.’” So too with “prolonged” regarding “mental harm.” By including this language, “Congress prohibited the causing of posttraumatic stress disorder or chronic depression,” but not the “temporary strain” of a tough interrogation.
This analysis led to the definition of torture in the 2002 legal opinion: “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.” By this analysis of the law, the enhanced interrogation techniques, including waterboarding, are neither “torture” nor “illegal.”
But once the Democrats turned against the Iraq War and began exploiting it for partisan advantage during the 2003 primaries, “waterboarding” became the dog-whistle for those eager to condemn the Bush administration’s use of “torture.” Pandering to their blame-America-first base, the same Democrats who had demanded everything be done to prevent another 9/11 tossed their previous support down the memory hole. When Barack Obama was elected in 2008, one of his first actions as president––and first fulfilled campaign promise––was to issue Executive Order 13491 that rejected waterboarding and other EIT, and stripped our intelligence agents of an invaluable tool.
More important, in 2009 the Obama administration’s own AG, Eric Holder, confirmed the legality of waterboarding. Since tens of thousands of American service members were waterboarded during their SERE (Survive, Evade, Resist, Extract) training, Holder was asked why this training wasn’t torture and hence illegal. Holder correctly replied, “It’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally.” This same logic perforce applies to the CIA interrogators, whose intent was to gather intelligence in order to defend us from terrorist attacks. The lack of intent to harm permanently on the part of the interrogators is confirmed by the carefully calibrated limitations imposed on the techniques, as well as the presence of physicians and psychologists to monitor the proceedings and insure that the subject didn’t suffer permanent physical or mental damage.
In sum, as national security analyst Marc Thiessen wrote in Courting Disaster, “none of the techniques used by the CIA meet the standard of torture in U.S. law. This is for two reasons: first, because the CIA’s interrogators did not specifically intend to inflict severe pain and suffering; and second because they did not in fact inflict severe pain and suffering.”
But despite their earlier recognition that waterboarding was legal and effective, the Democrats continued to peddle the torture lie over the following decade. In late 2014, Senator Dianne Feinstein and the Senate Intelligence Committee’s Democrat members released their “Torture Report.” This sensationalized and duplicitous document allegedly detailed the “brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values,” a crime Feinstein said was “a stain on our values and on our history.”
Conveniently left out was the Dems earlier support of EIT. Despite their later claims they were shocked, shocked by the use of EIT. Jose Rodriguez, a 31-year veteran of the CIA who ran the interrogation program, detailed the hypocrisy and untruths of the report. He reminds us that in the aftermath of 9/11, lawmakers demanded that the intelligence agencies do everything possible to stop another attack. Indeed, Feinstein in May 2002 told the New York Times that “we have to do some things that historically we have not wanted to do to protect ourselves.” In her comments on the Report’s release, however, Feinstein referred to the Geneva Conventions and said, “No exceptional circumstances whatsoever, (including what I just read) whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” No matter that the Geneva Conventions don’t apply to terrorists, or that the EIT are not legally torture. Twelve years later, the political advantages of moral preening had trumped the recognition that hard choices have to be made sometimes to fulfill the federal government’s highest duty––to keep its citizens safe.
Rodriguez also explodes the report’s canard that the enhanced interrogation techniques were not legally sanctioned. They were in fact reviewed in 2002 and 2005 by the DOJ’s Office of Legal Counsel, and in 2009 were also investigated by Eric Holder’s DOJ, which did not file charges against those accused of being illegal torturers. Rodriguez also debunks the claim that the CIA withheld information concerning their use from government officials. Rodriguez should know, since he was there when the CIA briefed Senator Feinstein, House member Nancy Pelosi, and other Congressmen on the techniques.
Indeed, Feinstein tacitly admitted her duplicity when she said that EIT “amount to torture.” But government policy should follow the law as written and established by Congress, not what “amounts” to the law in someone’s subjective estimation. The EIT cited in the report––threats, sleep deprivation, “physical assault,” stripping detainees naked, putting them in “stress positions” ––are all obviously frightening and painful. But they are not “torture” under U.S. law. Nor is waterboarding, Exhibit A in the left’s indictment of U.S. heinous behavior. That’s why Feinstein slyly said that EIT “amount” to torture rather than explicitly calling them torture, and why she cited international conventions on torture rather than the U.S. law.
Gina Haspel is an excellent choice to be the Director of the CIA. Democrats who attack her during confirmation hearings because of the stale “torture” canard will confirm yet again that they are rank partisans of a party that for two decades has put its own political interests ahead of the safety and security of the American people.
Bruce Thornton is a Shillman Journalism Fellow at the Freedom Center, a Research Fellow at Stanford's Hoover Institution, and a Professor of Classics and Humanities at the California State University. He is the author of nine books and numerous essays on classical culture and its influence on Western Civilization. His most recent book, Democracy's Dangers and Discontents (Hoover Institution Press), is now available for purchase.
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