The Haspel Constitutional Crisis
Did the United States Senate’s confirmation of Gina Haspel as the next Director of the Central Intelligence Agency avert a constitutional crisis or merely postpone it?
The Senate confirmed Haspel by a 54 to 45 margin on May 17, 2018, amid heated debate about her worthiness for the position. Haspel, now the first female Director of the CIA, has some strong credentials; a long-time spy who began her career engaging in the stuff of spy novels, such as (in her words) “meetings in dusty alleys of Third World Countries.”
But in the wake of the 9/11 terror attacks on the United States Haspel administered a secret CIA detention site in Thailand where suspected al-Qaida terrorists were waterboarded.
Waterboarding involves putting a cloth over a restrained prisoner’s face and pouring water over it to simulate drowning. President George W. Bush approved the process and Congress was fully briefed about its use. Jose Rodriguez, then-Director of the National Clandestine Service, gave the actual orders to waterboard, but Haspel ran the program and later ordered tapes of the process that were recorded at the Thailand facility to be shredded.
Is waterboarding “torture” as many would argue, or is it merely “enhanced interrogation”? Waterboarding has been considered torture since at least as far back as the Spanish Inquisition of the Seventeenth and Eighteenth Centuries. American soldiers have been prosecuted for its use in Vietnam, and dictators such as Augusto Pinochet of Chile have been condemned as torturers for using the technique. But some would argue that extraordinary measures were necessary in the wake of 9/11 and, further, that Haspel was only doing what her President had ordered.
Here’s where the question of the constitutionality of waterboarding comes in. Constitutional scholars are far from in agreement, but the question has to be broken down into two parts. Is waterboarding constitutional within the borders of the United States? Is waterboarding by American agents outside the United States constitutional? In addition, we have to ask whether waterboarding, whether in or out of the United States, violates international agreements signed by the United States by which the United States is legally bound.
At least for waterboarding within the United States, the Fifth (rights guaranteed by English Common Law including protection against self-incrimination), Eighth (cruel and unusual punishments) and Fourteenth Amendments (due process) to the Constitution come into play. The Supreme Court addressed the issue as far back as 1868 in Wilkerson v. Utah. But the late Justice Antonin Scalia famously argued that the Constitution was silent on the issue of torture as a means of extracting information, and only prohibited “cruel and unusual punishments” as a method of punishment. On Scalia’s argument, the government could not waterboard a prisoner as punishment for a crime but could waterboard to acquire information. So what would today’s Supreme Court — minus Scalia but leaning conservative — say if faced with the question? There is no clear-cut answer, but a 5–4 decision in favor of waterboarding would not be a shock.
International law is clear. There are a variety of laws that might apply. For example, The1984 United Nations Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment was approved by the United States Senate. Although no court has unequivocally ruled that waterboarding specifically as practiced against al-Qaida suspects violated this convention, the question is not a debatable one.
During his campaign, Trump said, “I would bring back waterboarding, and I would bring back a hell of a lot worse than waterboarding.” Could Haspel and Trump bring back waterboarding, triggering a possible constitutional crisis? In 2009 President Barack Obama signed an Executive Order that effectively banned waterboarding. Although Trump has already demonstrated a willingness to overturn Obama’s Executive Orders, Congress followed up by enacting the National Defense Authorization Act, which prohibits torture. But that only gets us as far as the semantic argument: waterboarding is illegal if it is “torture” but not if it is merely “enhanced interrogation.”
If Trump were to announce a decision to reinstitute waterboarding, lawsuits would undoubtedly be filed immediately, and a case would make its way up to the Supreme Court rather quickly. So did the Senate’s confirmation of Gina Haspel as the CIA Director avert a constitutional crisis or merely postpone it?
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