The wrong reasons to oppose Gina Haspel’s nomination as CIA Director

Ms. Haspel

Stephen Rickard and Elisa Massimino have a new post on Lawfare (“Why We Don’t Support Gina Haspel for CIA Director: A Response to Benjamin Wittes”) that’s interesting, but the implications of their reasoning ought to be disturbing to supporters of rule of law democracies.

In Rickard’s and Massimino’s minds the interrogation of Abd al-Rahim al-Nashiri, the alleged “mastermind” of the 2000 terrorist attack on the USS Cole which killed 17 Americans, and injured another 39, warrants Haspel’s rejection.  In their opinion “Haspel is disqualified by the fact that she directly facilitated torture and helped destroy evidence of it.”

For her part, Haspel has said that she “would not restart under any circumstances an interrogation program at CIA,” but even that isn’t the whole story.

As the Wall Street Journal reports, the interrogation program Rickard and Massimino complain about “was approved by senior Bush officials and were deemed legal at the time by the Justice Department.”  In other words, based on what we know now, Haspel appears to have been acting in accordance with the then controlling legal advice, which included Office of Legal Counsel (OLC) opinions.

However, that’s of little import to Rickard and Massimino as they contend:

Haspel said at her confirmation hearing that she believed the [interrogation] program was legal during her involvement in it.  Does that make her actions any less brutal or immoral?

Given that Haspel’s belief (and that of some others) about the legality of the interrogation program was based on formal OLC opinions, the fact that she followed them in an effort to do her sworn duty should not be so cavalierly dismissed, even if in hindsight contrary conclusions about legality are drawn about the program.

Nevertheless, Rickard and Massimino evidently believe that back then Haspel should have substituted certain beliefs about morality (that is, I gather, philosophies of righteousness that they personally hold) instead of pursuing an approach then considered to be “lawful, safe, and effective” in an effort to prevent more terrorist attacks.  Actually, when confronted by a savage terrorist act like that of which al-Nashiri is accused, shouldn’t we expect security officials to use all means determined to be lawful by appropriate authorities (as was the case here) to prevent another attack?

In my view, suggesting that government officials substitute their subjective ideas of what is or is not moral for adherence to the law in the performance of their official duties is a dangerously slippery slope that ought to be troubling to rule-of-law democracies.

Why?  Rickard and Massimino seem to assume that there is a consensus as to what is – or is not – moral.  Actually, in a pluralistic nation like the U.S., there are many moral codes, and I would suggest they would not all be to Rickard’s and Massimino’s liking.

This is why military law doesn’t countenance employing personal moral codes to eclipse the law as Rickard and Massimino would seem to want. Specifically, the Manual for Courts-Martial (an executive order authorized by 10 U.S.C. §836) says in ¶14 b (2)(a)(iv) that: “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.”

Roman Catholics comprise the largest faith group in the military, but they cannot substitute key moral tenets of their religion for the law in their official actions.  For example, Catholic doctrine considers gay marriage to be morally wrong, yet commanders are nevertheless obliged to accommodate the law if they must.   Isn’t that what we should expect?

Catholics elsewhere in government are also expected to adhere to the law, even with respect to abortions – which many consider to be the brutal murder of the unborn.  Catholic government officials must separate their duties as public officials from their personal beliefs and follow the law.

Likewise, since waterboarding is now clearly not legally-authorized, we should expect and require government officials to adhere to that, even if doing so conflicts with their personal moral code.  A norm where government officials are encouraged to do otherwise because of whatever personal ideology they happen to follow is – and should be – extraordinarily alarming.  Government decision-making affecting the public as a whole needs to be as creed-neutral as possible.

Let’s recognize that many millions of people might not necessarily share Rickard’s and Massimino’s view of morality in every circumstance.  True, polls show that a slight plurality (49%) of Americans oppose torture under any circumstances, but 48% believe it can sometimes be justified.  Moreover, experts say that the approval rate for torture skyrockets to 80% if a “loved one” is in peril.

Rickard and Massimino seem to think that a personal assessment of immorality should dictate conduct, irrespective of the law.  But isn’t that kind of thinking obviously problematic?  Considering the poll results, is it really unimaginable that a public official might conclude it’s actually immoral to follow the law that now prohibits torture if doing so risks innocents suffering another horrific fate like 9/11?   In a way, couldn’t Rickard’s and Massimino’s approach operate to encourage such officials to yield to just such an impulse?

In that regard, Rickard and Massimino might want to keep in mind that there are still lawyers and others who insist waterboarding (defined as pouring water into the nose and mouth of a person inclined head-downward) is not really “torture.”

In short, if we get into demanding that U.S. government officials employ their personal moral codes as opposed to the law in making difficult decisions, it’s quite possible that doing so will take us to a place where we as a society should not want to be, and likely not to decisions Rickard and Massimino naively assume a recourse to morality would inevitably produce.

Accordingly, if we really want to block waterboarding, better to rely on the law – despite its imperfections and errors – as a guide to decision-making as opposed to an individual’s personal ideology as applied to a particular set of facts.  Haspel certainly seems committed to following the law prohibiting waterboarding.

Rickard and Massimino also seem discomfited because Haspel might have facilitated actions then deemed lawful that they nevertheless find “brutal.”  Simply because something is brutal doesn’t necessarily mean it is illicit or immoral.  A B-52 strike on the Islamic State may be brutal, but certainly not illegal or immoral.  The grim truth is that battling terrorists is a brutal business, and our leaders have to have the fortitude for it.  To paraphrase a famous dictum, people sleep peaceably in their beds at night only because rough men – and women – stand ready to do extreme violence on their behalf.

Of course, there are no doubt ‘lawful but awful’ scenarios that can be imagined where a government official must recoil from participation as a matter of conscience.  And certainly the law doesn’t always get the answers right.  But we need to be very cautious about implying – particularly with the benefit of hindsight – the irrelevance of legal advice in making decisions in extremely difficult circumstances.

Penalizing someone because they relied on the law instead of some subjective concept of rectitude is misguided.  If we think we have the law right now – especially as to a specific matter like waterboarding – the critical issue should be whether or not we believe that the nominee will comply with today’s rules.

Otherwise, we have to explore the myriad of private beliefs about morality in a nation with more than 300 religions and denominations.  It would require a confirmation process to delve into the private religious and other beliefs of a nominee as opposed to how steadfastly that person will adhere to the law as it exists.

This is exactly what John F. Kennedy spoke against in 1960 when “many Protestants questioned whether Kennedy’s Roman Catholic faith would allow him to make important national decisions as president independent of the church.”  Kennedy made it clear that his religious beliefs were a private affair, and that he would make decisions in “the national interest, and without regard to outside religious pressures or dictates.”

If the law is wrong or ill-advised, change it or resign, but don’t replace it with your own belief system in the conduct of the public’s business.

In this instance if it’s shown that Ms. Haspel acted in good faith in accordance with the law as it was then determined to be, disqualifying her for that reason would be a grave mistake, and one with unsettling implications for the future.

But as we like to say on Lawfire, check the facts, assess the law, consider the arguments, and decide for yourself!