November 15, 2016, after teaching class in Toledo, I had driven overnight from Toledo with a student, Victor Aberdeen, and arrived just in time to change from my road clothes and walk into the session entitled "Panel V - Continuity, Change and Future Challenges in the Use of Force Abroad of the 26th Annual Review of the Field of Law and National Security conference of the ABA Standing Committee on Law and National Security."
Moderated by Laura Donohue, Professor of Law, Director, Center on National Security and the Law at Georgetown Law, the panel included such stars of the national security firmament as John Bellinger, Partner, National Security and Public International Law Practice at Arnold & Porter (formerly of the Bush National Security Council and Legal Adviser at Bush State), Mary DeRosa, Distinguished Visitor from Practice, Co-Director, Global Law Scholars Program, Georgetown Law, Christine Fair, Associate Professor, Security Studies Program, Edmund Walsh School of Foreign Service, Georgetown University, Martin S. Lederman, Associate Professor of Law, Georgetown Law (formerly of the Obama Office of Legal Counsel at Justice), and Charlie Savage, Washington Correspondent for The New York Times.
As they turned to the Q and A, I shot up my hand to ask the question I had held in my head since leaving Toledo. When Laura called on me, I asked whether during the interregnum between the election and the inauguration the Obama Administration might formally apologize on behalf of the United States to the world for the 44 country torture regime that the United States had put in place, and that John Bellinger (while at the Bush White House) had helped organize, and about which Marty Lederman (while at the Obama Office of Legal Counsel) had not been willing to prosecute. Apology is a remedy in international law, and by making such a formal apology the United States would have provided an enormous remedy to the world on behalf of itself and the 43 other countries that had helped the United States put in place the torture regime after 9/11. In addition, for any future Administration, they would be faced with denouncing our own unilateral given remedy of apology in international law - not impossible but a modest constraint on future torturers.
When I was challenged by John Bellinger on my facts about him, I replied that he should read John Rizzo's (former Acting General Counsel of the Central Intelligence Agency) book Company Man, where he describes his role on page 189.
That apology never happened. Gina Haspel got appointed Deputy Director of the CIA in February, 2017 soon after the change of Administration, and this week we are confronted with her nomination to be the CIA Director.
II. Who is Gina Haspel?
Google or Bing her - the list of articles about her role at the Thai black site where Abu Zubaydah and Al-Nashiri were tortured by those mischievous psychologists James E. Mitchell and Bruce Jessen is long (See also here and here). Her role in destroying the 92 videotapes of those torture sessions will rivet you (the October 5, 2011 Opinion and Order Denying Motion to Hold Defendant Central Intelligence Agency in Civil Contempt of Judge Alvin K. Hellerstein takes one through that sordid story). She is a bona fide knuckledragger (slang for torturer), who has managed to still survive and prosper going up the chain of command at the CIA.
III. Ain't it Grand?
With one fell stroke with her nomination, whether consciously or not, President Trump has done something that I want to draw to your attention. Yes, he has revived the discussions about torture, but much more importantly, he has done something else. He has called out the actors in the torture in and out of government to remind us of who they were in that post 9/11 period. Many of them have been very critical of him with respect to the Russia investigation and other Trump misadventures. And it has been remarkable to watch them.
For example, this morning Phillip Mudd (who was in the middle of it), the CNN commentator, did the full throated "it was authorized and we were legal" defense.
There is on CNN (at 3:55) the full throated support of Haspel by James Clapper, Obama Director of National intelligence, up until the issue of torture comes up where one hears him saying that on the human rights issues, "she will have to deal with it."
Jose Rodriguez, in Company Man at several pages, is quoted as saying the destruction was to protect the CIA persons. Former Acting Director of the CIA Michael Morrell (a CIA lifer) sings her praises and on torture presents on her behalf the infamous "just following orders" defense.
And of course Obama era CIA Director Leon Panetta has stepped in to support her, and John Rizzo has chimed in (as he did in his book Company Man with his version of it was proper: "Well, I mean, David, I was in the middle of all that at the time as the chief legal adviser for CIA. First of all, I do not believe that the word torture is what was and is actually legally accurate. They were very harsh, very brutal measures, but not torture.").
Lurking in the background are the dozens if not hundreds of civilians who were the leaders of and the cogs in the machine to make sure the 44 country torture regime was a well-oiled monster that was hidden from the light of day and, once Abu Ghraib occurred, accountability for design and implementation resisted. If you wonder who they were, just read Rizzo's book, the December 3, 2014 declassified summary of the Senate Select Committee on Intelligence's report entitled Committee Study of the Central Intelligence Agency's Detention and Interrogation Program, and/or the Senate Armed Service Committee's November 20, 2008 report entitled Inquiry into the Detainees Treatment in U.S. Custody. The names of all the protagonists (in and out of the Executive and the Legislative branches, and during both the Bush and Obama years) who years later are having a relook at their role in the torture and their obstruction of accountability can be found there. I wonder if Trump was targeting Mueller (head of the FBI at the relevant times) with this choice. All of these types suffered little or no consequences for their role in the torture and even got career improvements, as we can see with Gina Haspel.
IV. Who is left out of this blossoming discussion?
It would be nice, if just once, people would remember that there are four groups of people who have paid a price for the torture. The first one are those lowly soldiers at Abu Ghraib who were court-martialed and/or received administrative discipline for their role in torturing people there. Betraying the Uniform Code of Military Justice by doing the bidding of those who were not subject to its strictures. Played for chumps. Whenever persons say we do not prosecute people for torture, I remind them that we actually do prosecute people for torture - those soldiers who were at least as close to the torture as Gina Haspel. They got court-martialed, she got a promotion. Haspel got the elevator, Lynddie England got the shaft, or at least carried the water for her higher-ups.
The second group are the detainees held at Gitmo (Abu Zubaydah is still alive and has still not seen the light of day; Al-Nashiri is in an interminable military commission - both tortured at Gina Haspel's Thai country club), released, and dead. A 2014 shadow report prepared by the Advocates for U.S. Torture Prosecutions for the UN Committee Against Torture found that no detainee had as of 2014 received relief in the American justice system for their torture. Since then the settlement of the case against James E. Mitchell and Bruce Jessen remains the true exception that proves the rule. Any relief has been abroad.
The third group are those around the world being tortured even as they speak knowing that there is no consequence in terms of world community opprobrium led by the United States. Once the United States was willing to go easy on torture, the knuckledraggers everywhere were let loose.
The fourth group are rainbow coalition of Americans who have rationalized the torture all these years and acquiesced in it. Talk about losing one's soul.
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