The most interesting moment of Gina Haspel's confirmation hearing on Wednesday morning occurred when Sen. Susan Collins (R-Maine), a key swing vote in the Senate, took her turn at grilling President Donald Trump's pick to be the next director of the Central Intelligence Agency.
Collins zeroed in on the most controversial part of Haspel's CIA career: the few months in 2002 that she spent overseeing a secret prison in Thailand where suspected al-Qaeda terrorists (including at least one pregnant woman) were subjected to torture—including waterboarding—in apparent violation of international norms and treaties outlawing such practices. Years later, Haspel drafted a cable ordering other CIA agents to destroy videotaped evidence of interrogations.
Collins began by asking Haspel whether she was involved in the creation of the CIA's so-called "enhanced interrogation program." Haspel said she was not. Collins followed up by asking whether Haspel was a senior executive at the CIA when the program was conceived. Again, no.
And when you did find out about the program, Collins continued, what did you think of it?
"I was told that interrogation experts had designed the program, that the highest legal authority in the United States had approved it, and that the President of the United States had approved it," Haspel replied.
This represents, in a nutshell, the best defense that Haspel and her supporters have been able to offer for her involvement in the CIA's torture program—that she was, in so many words, following the orders of people she trusted at a time when the nation was shaken by terrorism. It was the same line of reasoning offered by Sen. Richard Burr (R-N.C.), chairman of the Select Committee on Intelligence, at the outset of Wednesday's hearing when he praised Haspel for acting "morally, ethically, and legally" throughout her career and said he would not tolerate any significant digging into Haspel's connection to torture.
"Those who have issues with programs or operations conducted years ago should address those concerns and their questions to former presidents, former directors, and former attorney generals," Burr said. "This hearing is about how you'll lead the Central Intelligence Agency into the future, not how you've faithfully executed missions in the past."
Faithfully executed. Approved by the highest legal authorities in the country. Yes, Haspel might have engaged in some questionable activities, her defenders argue, but she was only doing what other people told her was right. The question of whether torture was legal, moral, or even effective should be put to other people. Leave Haspel alone, and vote to give her a promotion.
Collins seemed to be walking Haspel down that same path, letting the nominee parry each question by confirming that, no, she did not have anything to do with designing or approving the torture program. And, reiterating something she had said at the outset of the hearing, Haspel told Collins in no uncertain terms that she "would never permit CIA to resume an interrogation program."
Then, the senator snapped the trap shut.
"As a candidate, President Trump repeatedly expressed his support for waterboarding. In fact, he said we should go beyond waterboarding," Collins pointed out. If the CIA had a high value detainee, and "the president gave you a direct order to waterboard that suspect, what would you do?"
Haspel, for the first time all morning, looked uncomfortable. "I don't believe the president would ask me to do that," she offered, unconvincingly. Several awkward seconds ticked by before Haspel regained her balance and launched into a tangential explanation of current CIA policy about "debriefing" suspects. (The exchange between Collins and Haspel begins at 1:37:30 in the video below; Collins drops the hammer at 1:40:05.)
Moments later, Sen. Martin Heinrich (D-N.M.) pointed out that Haspel had failed to answer the "what if the president told you to do it" hypothetical.
Haspel was more resolute. "Under no circumstances" would the CIA engage in that activity under her watch.
But the point lingers, doesn't it? This is exactly how the "good soldier" defense falls apart. Haspel, we are told, is not responsible for the decisions she made in the past because she was following orders and listening to the legal advice of others. Yet we are also supposed to believe that today she would disobey those same orders and ignore that same advice. Does chain of command no longer matter? Should Haspel have ignored it in Thailand?
Atop the logical problems exposed by Collins' line of questing, there are factual and historical hurdles to advancing Haspel with this reasoning.
For starters, it is untrue that Haspel was obligated to carry out the orders of her superiors while running the "black site" prison in Thailand where waterboarding took place. In fact, she had an obligation to refuse them. American military and intelligence officials have an affirmative obligation not to obey an illegal order, and a prohibition on torture is a fundamental principle of American and international law governing human rights, says Alberto Mora, a former general counsel for the U.S. Navy who reviewed, and opposed, the legal rationale for torture during the Bush administration.
"We should expect every American to know this, particularly highly trained officers in the CIA," he says. "She cannot claim that she was following orders."
The law prohibiting torture existed in 2002, and post-9/11 attempts to create legal loopholes for brutalizing suspected terrorists should have been questioned. Indeed, in some cases, CIA officers did push back against the order to torture, at least in part because—as Haspel pointed out during Wednesday's hearing, too—the CIA did not have an interrogation role historically.
"A lot of people in the CIA would probably agree that they should never have been in the business of detentions and interrogations," Navy Lieutenant Alaric Piette, an attorney for Abdul Rahim al-Nashiri, one of the al-Qeada detainees Haspel tortured, told The Daily Beast this week. "Forcing them to shift that mission is part of the problem. But that is the point when she should have fought back. Other people did. She just didn't."
Even after Wednesday's hearing, it remains fairly unclear exactly how closely involved Haspel was to the waterboarding. The CIA has pushed back against news outlets like The Daily Beast and Propublica that have claimed she directly oversaw his torture, with mixed success in getting the story changed. The only way to know for sure what role Haspel played is to have more information about her time in Thailand declassified so senators—and, more importantly, the general public—can assess what she did or did not do.
Lacking that clarity, we are left with two contradictory messages about Haspel. She is simultaneously presented as being a good soldier who might have done some bad things, but only because she was told to do them—and as someone who would stand up to the president of the United States if asked to do the very same things today. Both of those things can be true, of course, but the limited evidence for the former assertion makes the latter one impossible to believe.