Last week, the president nominated Gina Haspel to head the Central Intelligence Agency, and attention quickly focused on her role in the Agency’s torture program. I represent Abu Zubaydah, who was the first person imprisoned at a CIA black site and the first to have his interrogation “enhanced.” Because Haspel supposedly oversaw the black site while Abu Zubaydah was being tortured, an editor at TIME Magazine approached me with a question: Would I be willing to write a column about her nomination? I would.
Perhaps to the editor’s surprise, I wrote that we should withhold judgment about Haspel, and learn the truth rather than assume it. Apart from her supervisory presence, I insisted the record was far too thin to judge her role in the torture scandal. We do not know whether she approved of the torture taking place under her command, or whether her approval was enthusiastic or begrudging. We do not know whether she protested against it. We do not know the limits of her authority at the prison. And most importantly, we do not know her current view of the “enhanced interrogation” program and whether she, like John McCain, considers it one of the Agency’s darkest chapters. In light of the gaps in our knowledge, I took a wait-and-see attitude and advocated for a robust confirmation hearing. “Now of all times,” I said, “we need less knee-jerk condemnation and more sober, careful assessment.”
Many on the Left were disgusted at the timidity of my position. They had taken strong positions against Haspel and thought the record was more than sufficient to condemn her. They also pointed to material that I had left out of my column: In his book, James Mitchell, who is one of the two psychologists who actually tortured my client, said the Chief of Base in Thailand had mocked Abu Zubaydah and supported his torture. Though Mitchell did not identify this person, other reporting had concluded it was Haspel. I had not relied on Mitchell’s sensationalistic account because I did not consider it reliable. For many people, however, Mitchell’s account was proof positive that Haspel was unqualified and they could not understand why I had not taken a much stronger line against her candidacy, especially as Abu Zubaydah’s counsel.
As it turns out, we knew even less than I thought. Haspel did not arrive in Thailand until October, 2002, after the worst of my client’s torture was over. At least, that’s what the CIA now says. For his part, Mitchell claims he was not talking about Haspel in his book. And ProPublica, which had published the most detailed account of Haspel’s supposed presence at my client’s torture, has retracted its reporting and issued an apology. In assuming the truth of at least part of the journalistic record, I made the very mistake I had urged others to avoid. I have corrected my column in TIME.
What is the lesson in all this?
At the very least, I hope this experience has put to rest any suggestion that the record is sufficient to judge either Haspel’s past role in the torture scandal or her present qualifications to be Director of the CIA. Indeed, I hope people have come to accept my original recommendation: We need to learn the truth rather than assume we already know it. If Haspel in fact arrived in October 2002, as the Agency says, then she was not present when Abu Zubaydah was tortured most severely, though she would have been present when a different prisoner was tortured, and that is a serious matter. But as before, we still know almost nothing about her role in the prison apart from the fact that she supervised a site where other people knowingly tortured a fellow human being. Likewise, though it appears she had some hand in the destruction of more than 90 video tapes depicting the torture of my client and another prisoner, we still know almost nothing about the nature of her participation in that destruction, and much of what we think we know comes from sources that we have since learned cannot be trusted.
The CIA claims that almost everything in the public record about Haspel is mistaken. I see no reason to trust them either. Yet we need not be in the dark, and we need not rely on either the untested insistence of a CIA spokesperson or the unnamed sources of a journalist. Both as to Haspel’s role in the prison and her role in the destruction of the tapes, the truth exists and can be readily ascertained. It is contained in contemporaneously prepared CIA cables that document what took place in meticulous detail. We don’t need to choose between blind acceptance of the government and blind acceptance of a journalist. That’s why we have confirmation hearings. In fact, that’s why we have a Senate. More fundamentally, that’s why we have a deliberative democracy. The first lesson of recent events, therefore, is to insist upon a full, careful, patient confirmation process.
But to me, there are two additional lessons that are even more important. This will really put me in hot water with my friends on the Left. First, we have to end the reflexive attacks on the CIA. One of the reasons so many people were so willing to believe the worst about Haspel is because of their deeply ingrained hostility to the CIA. They don’t trust it, and believe that anyone associated with the Agency is, at the very least, tainted.
I have long been troubled by this but have thus far remained silent. The Haspel fiasco has forced me to end that silence. To be sure, anyone who has studied the history of the CIA knows it has made serious, egregious mistakes over the course of its existence, of which the torture scandal is not even the most recent. Some of those mistakes have cost thousands of lives. In addition, the Agency by its nature is given to over-classification and secrecy, which has produced an insular culture that resists oversight and accountability. None of this should be forgotten in any rendering of the Agency.
But the CIA, like the FBI, nonetheless plays an important role in American national security, and by and large is staffed by dedicated public servants. It has also changed a great deal from some of its darkest moments, and we should bear in mind that the psychologists who tortured my client were not CIA agents. They were under contract with the Agency, and when their contract was terminated, many within the CIA were greatly relieved.
In addition, we should recall that the CIA is an enormous government agency with thousands of employees. The idea that we would paint an entire organization with such a broad brush based on the misdeeds of particular actors is a familiar error. People make this mistake all the time. It is a judgment about the many based on the actions of the few and is akin to—not the same as, but related to—the flawed reasoning that leads some to view all Muslims as a threat to national security and all young black men as violent. It is as stupid on the Left as it is on the Right.
This emphatically does not mean we should trust the CIA reflexively. The Agency has made far too many mistakes for that. Indeed, we should not trust any government agency that way. We should always verify. But we should not approach the Agency with such presumptive hostility. What the Agency says and does is where the work of a functioning democracy begins, not ends.
I direct this criticism as much to President Trump and his surrogates on the Right as I do to my friends and colleagues on the Left. The president has subjected the entire Agency to indiscriminate attack. And what I have said about the CIA could be said even more readily of the FBI, which has likewise been on the receiving end of vituperative, indiscriminate vitriol, both by the president and his most conservative allies. The mistreatment of former FBI Deputy Director Andrew McCabe, for instance, was shameful and petty. Enough.
No one should read this and mistake me for a political moderate. On the contrary, I suspect I am farther to the Left than just about anyone reading this column. In fact, I consider myself radical in my attachment to open, transparent government and deliberative democracy. But the Haspel imbroglio has also renewed my commitment to humility, which is the final lesson of this affair. In the interest of a functioning democracy, let’s stop pretending we all know the answers before the questions have even been posed.
Some people think government is the solution to our problems; others think it is the problem to be solved. Let me suggest a different way of looking at our broken political system. In America today, the problem is neither the presence nor absence of government. It is hyper-partisan hubris. It is the reckless insistence that based on a few tidbits about a person’s background, some of which may prove to be inaccurate, we can assume all we need to know about their wisdom, integrity, and commitment to the Constitution.
It is time past time we shelve this hubris and replace it with a dedication to patient, humble, deliberative democracy.
