Vindication of the Nuremberg Defense
Last Thursday, the Senate confirmed Gina Haspel as director of the CIA. Her controversial candidacy was rescued by a last minute bi-partisan effort to ensure appointment of someone much of the West considers a war criminal. The confirmation completed the long journey began by the George W. Bush administration. Torture by federal agents has been transformed from a criminal act into something that’s merely a policy choice by an executive.
To understand the gravity, I think it’s worth recounting the types of torture conducted by clandestine operatives and their private sector auxiliaries in the early days of the War on Terror. What follows isn’t intended to be hyperbolic. Rather it’s an attempt to put into simple clear language the type of conduct that, at the will of the president, is apparently permissible by designated federal employees.
A government agent may grab a detained person by the collar. The government agent may also hold the person’s face immobile, or slap the person in the face. Standing about a foot away, a government agent may slap the person’s stomach with the back of the agent’s hand. The agent is permitted to threaten the individual with a firearm or electric drill. All nourishment while with the government agent may be provided by rectal feeding.
A government agent may force a person to stay awake for 180 hours. For clarity, that’s seven and a half days. If a government agent were to start Monday at 7 AM, you would have to stay awake until the next Monday at 7 PM. A government agent may also put an individual in a box the size of a coffin for up to 18 hours. Smaller boxes can be used for shorter duration. At the government agent’s option, a “harmless” insect may also be put in the box.
A government agent may force a person to stand naked, possibly in shackles, for questioning. It is also permissible to immerse the naked and shackled individual in frigid water. A government agent may force an individual to sit in positions that strain the muscles for prolonged periods. Use of a broomstick to force the position is permitted.
A government agent may strap a person to a table and cover the individual’s face with a rag. The government agent may pour water over the face of the individual, until the individual vomits, convulses, or becomes unresponsive. To reiterate, these are all things that designated employees of the United States government, someone whose salary is taken from your paycheck, may do.
An Attack on Democracy
Torture is of course not currently meted out by the federal government on a regular basis. So far the victims have been foreigners, mostly picked up on battlefields or by foreign military units, militias, and intelligence services (plenty of these individuals turned out to be innocent of any wrongdoing). However, when a president is permitted to assassinate an American citizen abroad with no due process of any kind, there’s no principled reason that anyone in federal custody couldn’t be subjected to torture. It’s unclear that any law prohibiting it would be respected, or that anyone, including the courts could (or would) restrain agents authorized by the executive to torture.
I dislike talking about a “Deep State.” In the age of Trump, the term has both been used by apologists for the administration but also derided as a dangerous undermining of confidence in the hard-working professionals of the American state. However, Haspel’s appointment is a sign that something like a “Deep State” exists. The reality of it is much more banal than some hidden cadre of mustache-twirling spooks and generals. The Deep State is a system where career civil servants and bureaucrats in intelligence, law enforcement, and defense agencies make important public policy decisions behind closed doors, and without real oversight or scrutiny. Those persons are then protected from accountability by a broad bi-partisan consensus, and an obfuscating and pliant press. The result is the effective removal of major decisions about what our government does from the democratic process.
So far the only Americans punished for conduct in the War on Terror similar to some of the crimes described above were low-level enlisted men and women at Abu Ghraib prison in Iraq. I’m tempted to say that accountability was imposed in those instances because a stint in military prison for a few soldiers never risked setting a precedent for people with real authority. It’s possible that there’s some truth to that. However, I think it’s just as important that photos of the abuse at Abu Ghraib were widely published.
For that reason, Haspel’s complicity in the destruction of tapes documenting the torture of prisoners may be more heinous than overseeing a CIA black-site. These tapes would have allowed American citizens to see and understand what was, and for all we know still is being, done in our name. They would have taken those decisions made behind closed doors, and put them into the messy business of democracy where they belong. Maybe I’m naïve to think that seeing screaming, naked, beaten prisoners would change the way Americans view this issue. I know that my moral opposition to torture of any person under any circumstances, citizen or not, is not shared by everyone. But at least we would all know, free of euphemism and partisan spin, what is actually being debated.
The New Normal
The appointment of someone complicit in torture to head one of the United States’ most secretive, unaccountable agencies was made inevitable by the Obama administration’s Orwellian decision to look forward, and not back. All we needed was the right bellicose apologist for all manner of brutality. In 2016 we got one. Now we must prepare ourselves for the day when someone who isn’t foreign, and Muslim, or who can otherwise be compartmentalized in the American imagination as deserving, is tortured by a federal agency. Those torturers will be able to rest completely assured that they won’t be breaking the law. They’ll just be following orders.