[Congressional Record Volume 164, Number 80 (Wednesday, May 16, 2018)]
[Senate]
[Pages S2719-S2721]
NOMINATION OF GINA HASPEL
Mrs. FEINSTEIN. Mr. President, I rise today in opposition to the
nomination of Gina Haspel to be CIA Director.
Ms. Haspel played a central role in the CIA's rendition, detention,
and interrogation program. This was one of the darkest chapters in our
Nation's history, and it must not be repeated.
Since her nomination, I and my staff have reviewed thousands of
classified documents detailing her role in the program.
The takeaway is this: Ms. Haspel was a strong supporter of the
torture program.
While many CIA operatives expressed hesitation or outright opposition
to the program, such as John Brennan, Ms. Haspel was not one of them.
As I said last week, this nomination is bigger than one person. This
nomination is about reckoning with our history. It is about grappling
with our country's mistakes and making clear to the world that we
accept responsibility for our mistakes and they will never be repeated.
I was struck by Ms. Haspel's repeated insistence at her hearing that
the torture program was ``legal.''
The torture program was illegal at the time based on international
treaties the United States is signatory to, including the Convention
Against Torture and Geneva Convention.
While the Office of Legal Counsel signed off on waterboarding and
other ``enhanced interrogation techniques,'' its flimsy legal analyses
were withdrawn in 2003 and 2004 and should never have taken precedence
over international law.
The bottom line is this: No one has ever been held accountable for
the torture program, and I do not believe those who were intimately
involved in it deserve to lead the agency.
What message does it send to the world if we reward people for
presiding over what is considered to be one of the darkest chapters in
our history?
Of course, supporters of the torture program are constantly trying to
rewrite history, so I think it is important to revisit that history
here today.
After a 5\1/2\ year review of the CIA's detention and interrogation
program, the Senate Intelligence Committee released a 500-page
declassified executive
[[Page S2720]]
summary in December 2014. The summary was backed up by a 6,700-page
classified report with nearly 38,000 footnotes citing to CIA and other
official records. Every finding and conclusion is thoroughly supported
by documentation. The report examined the detention of at least 119
individuals and the use of coercive interrogation techniques--in some
cases amounting to torture.
It is also important to note this was a bipartisan report with each
key vote during the process of the report having both Democrats and
Republicans voting yes. In December 2012, the Intelligence Committee
approved the Report by a 9-6 vote, with one Republican voting yes. In
April 2014, the committee approved the executive summary and findings
and conclusions for declassification and public release by an 11-3
vote, with three Republicans voting yes. The full report remains
classified.
In December 2014, copies of the full, 6,700-page classified report
were sent to parts of the executive branch, including the CIA, to be
used broadly by those personnel with appropriate clearances to ensure
that the abuses documented in the Report would never be repeated. This
report was intended as an important tool to help educate our
intelligence agencies about a dark chapter of our Nation's history.
However, last May, when Ms. Haspel was already the Deputy Director,
the CIA returned its only copy of the report at the request of Chairman
Burr. The CIA Inspector General, the Director of National Intelligence,
and others followed suit and also returned their copies. In fact, only
three copies of the report exist outside of the Senate Intelligence
Committee; all of the others are gone.
Today, two copies of the full report remain under order by Federal
judges, and a third exists because of President Obama's decision in
December 2016 to preserve the full report with the National Archives
under the Presidential Records Act.
During Ms. Haspel's hearing, she stated multiple times that the CIA's
rendition, detention, and interrogation program was ``legal and
authorized by the highest legal authority in our country and also the
President.''
I find Ms. Haspel's statement to be both misleading and incorrect.
While the Office of Legal Counsel wrote several secret legal opinions
used to justify the program, I don't believe those actions were ever
legal, I am not aware of a single court ruling that affirmed those OLC
opinions, and those OLC opinions were in conflict with the multiple
international treaties to which the U.S. is a signatory to.
In fact, the Department of Justice conducted an investigation of the
facts and circumstances surrounding the drafting of these torture memos
and the Department's role in the implementation of interrogation
practices by the CIA.
On June 29, 2009, the DOJ's Office of Professional Responsibility,
the unit charged with investigating allegations of misconduct, issued
its report. That report concluded former Deputy Assistant Attorney
General John Yoo and former Assistant Attorney General Jay Bybee
committed professional misconduct in the drafting of those seriously
deficient legal opinions.
Additionally, Jack Goldsmith, the Assistant Attorney General who led
the Office of Legal Counsel in 2003 and 2004, found that their
memoranda were ``riddled with error.'' He also concluded that key
portions were ``plainly wrong'' and characterized them as a ``one-sided
effort to eliminate any hurdles posed by the torture law.''
Moreover, the CIA program certainly didn't meet the bar set by any of
the four major international legal conventions prohibiting torture.
First, the Geneva Convention, ratified by the U.S. in 1949, common
article 3 provides further protections against torture in times of
conflict. It states that those persons no longer taking active part in
hostilities, including those who are detained, are prohibited from
being subjected to: ``violence of life and person, in particular murder
of all kinds, mutilation, cruel treatment and torture'' as well as
``outrages upon personal dignity, in particular humiliating and
degrading treatment.''
Second, the United Nations Universal Declaration of Human Rights,
ratified by the U.S. in 1948, states in article 5 that: ``no one shall
be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.''
Third, the International Covenant on Civil and Political Rights,
ratified by the U.S. in 1992, repeats verbatim, the outlawing of
torture found in the Universal Declaration of Human Rights.
Additionally article 5 of the International Covenant includes
language meant to prevent states from utilizing legal work-arounds to
overcome the spirit of the condemnation of torture.
Fourth, the United Nations Convention Against Torture, ratified by
the United States in 1994, defines torture in article 1 as: ``any act
by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from
him or a third person information or a confession. . . .''
I also find it appropriate to note for the record that the committee
sought to use pseudonyms created specifically for this report so that
the readers could connect the actions of the same CIA officer
throughout the report, but without their actual name or other
personally identifying information.
To address the CIA's concerns, the committee agreed to reduce the
number of CIA personnel listed in pseudonym from a few hundred
ultimately down to 14 people who were most intimately involved in the
CIA's detention and interrogation program.
The CIA and the White House refused to allow these 14 individuals to
be listed in pseudonym. The lack of pseudonyms and, in many cases, even
a title of a CIA officer, means that connections between a person's
actions and statements cannot be made and that the seniority and
positions of authority of individuals in the report are hidden.
In light of Ms. Haspel's nomination to be Director, we have asked
repeatedly for pertinent records to be declassified, only to be
stonewalled at every turn.
Instead, the CIA, with Ms. Haspel as the Acting Director, has engaged
in a selective declassification campaign to bolster Ms. Haspel's
nomination, while keeping all potentially damaging material under
wraps.
Given the CIA's intransigence on Haspel's records, I am very limited
in what I am able to say about her specifically.
However, I am able to revisit what happened at the CIA ``black
sites,'' which is detailed extensively in the report's summary.
For example, one detainee, Abd al-Nashiri, was interrogated using
CIA's enhanced interrogation techniques, including being waterboarded
at least three times. These tactics were not just morally
reprehensible; they were ineffective.
The committee found, based on a review of CIA interrogation records,
that the use of the CIA's enhanced interrogation techniques on
detainees like al-Nashiri was ineffective in obtaining accurate
information or gaining detainee cooperation.
Contrary to CIA claims, these so-called enhanced interrogation
techniques did not produce intelligence that thwarted terrorist plots
or resulted in the capture of terrorists. That intelligence was already
available from other sources or from the detainees themselves before
they were tortured. In fact, torture often led to false information.
The report also lays out, in excruciating detail, that the program
was grossly mismanaged, and the CIA provided Congress and the public
with inaccurate information.
Again, while I can't speak in depth about Ms. Haspel, our report
makes clear that surprisingly few people were responsible for
designing, carrying out, and managing the torture program.
This was not something that involved the entire Agency. It was
limited to the Agency's top leadership and staff, including Directors,
Deputy Directors for Operations, and senior level management at the
Counterterrorism Center, among others.
As we know from the extremely limited information Ms. Haspel has
publicly provided, she did hold positions including senior level
management at the Counterterrorism Center.
She has declined to answer publically when asked whether she had
responsibility, supervision, or approval relevant to the CIA rendition,
detention, and interrogation program.
[[Page S2721]]
Additionally, because Ms. Haspel as the Acting Director for CIA and
the Director of National Intelligence have refused to declassify any
additional information, I am unable to publically discuss her exact
role in late 2002.
Furthermore, I am also unable to publically discuss the things I know
she approved as a senior level supervisor at the Counterterrorism
Center from 2003 to 2004 or discuss what she worked on as the chief of
staff to the Deputy Director for Operations from 2005 to 2008.
Instead, I can only reference reports by former deputy counsel of the
CIA, John Rizzo, that Ms. Haspel was one of ``the staunchest advocates
inside the [CIA] for destroying the tapes'' of CIA interrogations
conducted under the torture program.
I find the CIA's responses to requests for information about Ms.
Haspel to be wholly inadequate. Ms. Haspel is not an undercover
operative; she is the acting CIA Director seeking a Cabinet-level
position.
It is unacceptable for her or the CIA to hide her behind a wall of
secrecy.
I believe Senators and the American public have the right to know
whether or not the nominee before us was a senior manager for a program
that has been shown to be deeply flawed, as well as a number of other
disturbing facts.
Without the full scope of Ms. Haspel's involvement available for
public review, I do not see how this body can adequately carry out its
constitutionally mandated duty to advise and consent on the president's
nominee.
Proponents of Ms. Haspel's nomination have argued that she was just
doing her job and following orders.
If confirmed, what would Ms. Haspel do? Would she carry out and
enforce the President's directives if they would violate our
Constitution and international treaties?
I am also concerned her leadership could create problems for the CIA
to perform one of its core functions: cooperating with foreign
governments--and European allies in particular.
Specifically, her confirmation could complicate U.S.-German
relations. While the German Government has not made a public position
on Ms. Haspel's nomination, Germany is strongly opposed to torture and
multiple U.S. intelligence actions outlined in the Senate Intelligence
torture report have already caused rifts in U.S.-German relations.
Additionally, when Ms. Haspel was promoted to CIA Deputy Director in
2017, the European Center for Constitutional and Human Rights,
headquartered in Berlin, petitioned German prosecutors to order an
arrest warrant for Haspel due to her participation in the CIA torture
program.
While I understand the German Government is unlikely to issue an
arrest warrant, Germans still remember that U.S. intelligence officials
mistakenly abducted and tortured Khalid al-Masri, a German citizen in
2003.
Mr. Masri, a German citizen, was seized on December 31, 2003, as he
entered Macedonia because he was wrongfully believe to be an Al Qaeda
terrorist traveling on false German passport.
He was then turned over to the CIA, which rendered, detained, and
interrogated him. After 5 months, he was dropped on a roadside in
Albania.
This was a grave mistake that even Ms. Haspel acknowledged in a
prehearing question whether the CIA ever rendered or detained suspects
who were innocent by stating: ``I understand that the CIA's Office of
the Inspector General conducted a review of the rendition of Khalid al-
Masri and determined that CIA did not meet the standard for rendition
under the September 17th, 2001 Memorandum of Notification (MON).''
Even though the CIA acknowledges this mistake, it is incomprehensible
that no one has been held accountable for this and other violations.
If Ms. Haspel is confirmed, it would send the wrong message to the
country and to the world. It would send the wrong message that America
has abdicated its moral authority. It would send the wrong message that
we condone behavior that belies the conscience and the values of this
nation.
When the Obama administration chose not to prosecute those involved
in the CIA's torture program, they claimed we were moving forward, not
backward.
To elevate a person with reportedly intimate involvement in a torture
program to lead our Central Intelligence Agency would signal to our
allies and our enemies that we are looking backward.
This nomination is, in effect, a referendum on whether America
condones the use of torture.
If confirmed, this nominee's decisions will affect the lives and
safety of all Americans.
Our job is to assess whether the nominee has the strength of
character to stand up to her superiors when reckoning with violations
of our rule of law and moral values.
Unfortunately, based on Ms. Haspel's record at the CIA, the lack of
public transparency regarding her tenure, and the implications for
America's reputation at home and abroad, I cannot support this
nomination.
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