[Congressional Record Volume 164, Number 80 (Wednesday, May 16, 2018)]
[Senate]
[Pages S2719-S2721]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       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were withdrawn in 2003 and 2004 and should never have taken precedence 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.

                          ____________________