Another Nail in Trump’s Torture Coffin?

Just when you thought things couldn’t get any worse for the Trump administration, it looks like his newly-appointed Deputy CIA Director, Gina Haspel, may have to depose herself in a lawsuit against the two psychologists who designed the agency’s torture program. The administration has refused to allow her deposition, but the judge in the case, Justin Quackenbush, may insist on it, according to a story in The Guardian.

Haspel’s appointment earlier this month was controversial due to her alleged involvement in the CIA torture program. She apparently ran the black site in Thailand where Abu Zubaydah was waterboarded in 2002 and later helped the head of the CIA clandestine service destroy videotapes of Zubaydah’s torture. Some in Congress have objected to her promotion; it is certainly concerning, and could be taken as a sign that Trump’s CIA is gearing up to use torture.

But panic is unwarranted. The Obama administration tried to appoint Haspel as head of the clandestine service in 2013, but Sen Dianne Feinstein stopped it over her alleged participation in the rendition program. If we can infer a pro-torture policy from Trump’s attempt to promote Haspel now, then we should have done likewise with Obama. But, to the best of our knowledge, Obama did not appoint Haspel so she could oversee a return of EITs (a policy he did not continue).

Haspel is clearly a big cheese in the CIA with powerful allies, like former acting director Michael Morell, and a lot of experience. Her appointment probably has more to do with this, than with torture. Besides, we don’t even know what her attitude to enhanced interrogation is now. Presumably she supported it in the past, but does she really want a repeat of the scandal and legal risks? Remember she was part of the tape destruction controversy.

Other former agency personnel who fervently backed the initial torture program, like ex-Director Michael Hayden, have opposed bringing it back. Even though Hayden has defended the intelligence value of EITs, he doesn’t think the CIA would want to suffer another blow to its reputation. The previous CIA Director John Brennan has said the same, and more recently John McLaughlin, who was Deputy CIA Director when the program started, said it should not be restored.

Admittedly, it is striking that Haspel, who seems to have been so closely involved in the detention scandal, would now attain such a high-ranking position at the CIA. But she isn’t the only one. Think of Alfreda Bikowsky, dubbed the Queen of Torture for her role in the program, who rose to a prominent job in the agency’s Counterterrorism Center. Or Stephen Kappes, who became Deputy Director until 2010, having reportedly supervised renditions under Bush.

True, Obama subsequently elevated two individuals to deputy director — Avril Haines and David Cohen — who were not career intelligence officers, and had no role in the CIA interrogation program. But John Brennan, who ran the agency for four years under Obama, was deputy executive director at the CIA from 2001 to 2003 when the most extreme interrogation tactics were being used.

In other words, just because individuals involved in the rendition program kept their jobs or won promotion, that doesn’t, in itself, mean the CIA will return to those policies. While Obama might have done some questionable things — drones being the most controversial — he did not resuscitate EITs, to the best of our knowledge, but formally ended them in early 2009.

Indeed, a new draft of Trump’s Executive Order relating to detainee issues omits any talk of bringing back enhanced interrogation. A previous version implied that the administration was eager to utilize harsher tactics than those currently available. But that section of the first draft has been removed, and the Order now focuses on Guantanamo. Moreover, Trump said at a press conference with the UK Prime Minister recently that torture, presumably meaning EITs, may not be used, after all.

The main problem for Trump is that enhanced interrogation techniques are specifically outlawed by statute, so allowing them could amount to a breach of federal law. And, although I’m no lawyer, even planning to bring them back could possibly amount to a criminal conspiracy, which might explain why Mike Pompeo insisted, at his confirmation hearing, that he “can’t imagine” receiving an order to use them in the first place.

The ongoing lawsuit, in which Haspel may have to give deposition, is the first time a US court will assess the interrogation program on the merits. Previous attempts to sue the agency for torture and rendition were blocked on state secrecy grounds. CIA officers may be deterred from engaging in detainee abuse if they think there is a heightened risk of legal challenge for doing so.

Developments in other courts are no more encouraging. The European Court of Human Rights has ruled twice against the CIA program. Moreover, in January the UK Supreme Court allowed a suit against the British government for alleged complicity in torture and rendition to proceed. Although, as Andrew Tyrie MP, head of the All-Party Parliamentary Group on Extraordinary Rendition, explains in a new piece at Prospect Magazine, the possibility of a secret trial could prevent evidence from seeing the light of day.

Still, fear of legal exposure might stop foreign governments from getting involved in another program of US torture and rendition. And, without international cooperation, it is hard to see how the US could fly prisoners around the world and detain them abroad in secret facilities. As I wrote recently, a return to enhanced interrogation could hamper intelligence-sharing with foreign partners, too, if exchanging information could make them complicit in torture.

It has become very clear in the past week how much opposition Trump now faces in Washington. Attempts to bring back clearly illegal practices, like enhanced interrogation techniques, would surely give his opponents an opportunity to weaken him further. If he does wish to get impeached or investigated by the FBI — or both — then trying to reinstate waterboarding is one way of doing so.