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Message to Joe Biden: No Torturers in the Next Cabinet

Biden and Harris must eschew anyone complicit in torture or who frustrated oversight.

Reporting indicating that Biden may be considering former Acting CIA Director Michael Morell (above) to replace Haspel is deeply troubling. (Photo: Win McNamee/Getty Images)

Reporting indicating that Biden may be considering former Acting CIA Director Michael Morell (above) to replace Haspel is deeply troubling. (Photo: Win McNamee/Getty Images)

President-elect Joe Biden will soon take office having pledged to “heal” and “unify” the country, possibly signaling a more centrist approach to governing. He also campaigned on a policy platform that former President Barack Obama dubbed the “most progressive … of any major party nominee in history,” and will face either a divided Congress or one with a slim Democratic margin.

We believe that only by holding individuals accountable can the United States signal to the world and its own citizens that executive branch malfeasance and undemocratic behavior will not be tolerated.

There are strong differences of opinion, among both policymakers and the public, about how these factors and associated dynamics should, and ultimately will, shape Biden and Vice President-elect Kamala Harris’s personnel decisions, particularly for the Cabinet and other senior leadership positions. A parallel and also contentious conversation is happening about whether President Donald Trump and those in his administration guilty of wrongdoing should face meaningful consequences.

We believe that only by holding individuals accountable can the United States signal to the world and its own citizens that executive branch malfeasance and undemocratic behavior will not be tolerated.

If the United States is truly to “Build Back Better,” as Biden has promised, the new administration must not nominate, appoint, or otherwise hire for its staff anyone responsible for serious abuses of power – whether during Trump’s presidency or preceding it – especially anyone complicit in torture or who frustrated oversight and accountability for torture.

Most obviously, current CIA Director Gina Haspel should not be part of the new administration. Haspel played a key role in the CIA’s post-9/11 torture program and was one of two senior CIA leaders responsible for destroying videotapes depicting torture.

During her confirmation process, Haspel refused to provide information relevant to her involvement in the CIA torture program. In her capacity as senator, Harris asked Haspel four times whether she believed torture was immoral, and each time Haspel avoided a clear answer, a choice that factored heavily in Harris’ decision to vote against confirming her.

In addition to excluding Haspel, Biden should promptly replace Transportation Department General Counsel Steven Bradbury (whose confirmation Harris also opposed) and Special Envoy for Arms Control Marshall Billingslea.

As acting head of the Office of Legal Counsel in the Justice Department from 2005 to 2009, Bradbury authored several of the now infamous torture memos, including signing off on the CIA’s use of “enhanced interrogation” even after the Senate passed the Detainee Treatment Act (DTA) by a vote of 90-9, legislation that was designed to reinforce the longstanding prohibition on exactly those types of abuses. Billingslea pushed for using torture at Guantanamo and facilitated the interrogation of Mohamedou Ould Slahi, who was tortured until he hallucinated and continued to be tortured notwithstanding that he was cooperating.

We had hoped that the candidate pool for prospective senior national security positions in the Biden administration would exclude those who have defended the torture program, thwarted efforts to hold individuals accountable for their participation in it, or sought to undermine the Senate’s investigation of the CIA torture program. Unfortunately, this may not be the case.

Reporting indicating that Biden may be considering former Acting CIA Director Michael Morell to replace Haspel is deeply troubling. During his time as deputy CIA director, Morell was assigned, as he describes in his book, “to chair an accountability board of senior officers” to review Jose Rodriguez and Haspel for their roles in the above-mentioned videotape destruction, when Rodriguez led the agency’s National Clandestine Service and Haspel was his chief of staff.

According to Morell’s own account, instead of establishing such a board he “elected to handle the assignment solo” and “to break the news to [Rodriguez] over a drink at a nearby hotel,” in part because of “the ordeal [Rodriguez had] gone through while being investigated” criminally by the George W. Bush Administration for his actions during the CIA’s torture program.

Regardless of the fact that Rodriguez and Haspel ordered the torture tapes destroyed against the direction of almost every relevant senior White House official and agency head, and that they did so just as Congress was debating a commission to investigate detainee abuse, Morell – acting alone – cleared Haspel and simply issued a letter of reprimand, without sanctions, to Rodriguez.

Morell was also responsible for the CIA’s response to the Senate Select Committee on Intelligence’s 2014 report on CIA torture (for which one of us, Daniel Jones, was the committee’s chief investigator). Despite having overseen the agency’s defiant response process, Morell later admitted to NBC News that he had not even read the declassified 500-page publicly released executive summary, telling Andrea Mitchell:  “I read the summary conclusions and case studies. That was 300 pages. I skimmed the rest of the report.”

In an interview the following month, Morell said he rejected the description of the CIA program as torture “because to call it torture says my guys were torturers” and “I’m going to defend my guys to my last breath.” He would go on to vocally support Haspel and her candidacy for CIA director.

Biden was right in his Nov. 7 election victory speech, when he said, “America has always been shaped by inflection points – by moments in time where we’ve made hard decisions about who we are and what we want to be,” and that “[w]e stand again at an inflection point.” If the United States is going to be the nation that he and Harris envision – a strong, healthy democracy that eschews its “darkest impulses” and “lead[s] not only by the example of our power, but by the power of our example” – their administration needs to embrace accountability.

Biden knows this. He made a powerful case for accountability around U.S. torture in a 2013 exchange with the late Senator John McCain.  “[D]oesn’t it seem to you,” McCain asked Biden, “that we should expose those abuses of human rights committed by the United States and hold people responsible and make sure this kind of thing never happens again?”

“It’s a profound statement,” Biden replied. He continued, “I think the only way you excise the demons is you acknowledge…exactly what happened straightforwardly.”  Biden then described the Nuremberg trials as “the single best thing that ever happened to Germany,” and the reason “why they became the great democracy they’ve become. The same thing we’re insisting on in Serbia. The same thing we’re insisting on with what happened in the Balkans.”

Biden and Harris need to insist on the same governing philosophy for their own administration, and resist the temptation of Obama’s approach to CIA torture that he once described as a need to “look forward, as opposed to looking backwards.” Accountability is hard, and at times unpopular, but impunity is far more dangerous and damaging — it erodes U.S. credibility, emboldens perpetrators, and increases the likelihood that wrongdoing will happen again.

Of course, accountability shouldn’t stop at post-9/11 torture. There is plenty of Trump administration malfeasance that needs to be addressed, for example – from violations of anti-corruption and public integrity laws, to dishonesty before federal investigators and Congress, to grave immigration-related abuses, like forcibly separating families. Nor should accountability be limited to personnel decisions; criminality and similarly serious misconduct warrants transparent investigation and, when justified, prosecution.

But making sure that the Biden-Harris administration is free of torture perpetrators and those who sought to undermine accountability for torture is a necessary place to start.

Daniel J. Jones

Daniel J. Jones

Daniel J. Jones (@DanielJJonesUS) spent more than a decade leading, managing, and participating in complex investigations for the U.S. Senate and the U.S. Federal Bureau of Investigation, including leading deployments and fact-finding missions to more than a dozen countries. As a staff member of the U.S. Senate Select Committee on Intelligence, Daniel led, managed, and served as the chief author of several prominent Senate investigations, including the “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program” (aka, the “Senate Torture Report”).  The investigation, based on more than 6.3 million pages of classified documents, was described by The Los Angeles Times as the “most extensive review of U.S. intelligence-gathering tactics in generations…”

Scott Roehm

Scott Roehm

Scott Roehm is the Washington Director of the Center for Victims of Torture and chair of the Board of Directors for Refugee Council USA. Prior to this, he was Vice President of Programs and Policy at The Constitution Project, where he oversees the organization’s national security and criminal justice portfolios.  Before joining The Constitution Project, Scott served as the special counsel for pro bono at Orrick, Herrington & Sutcliffe LLP.  In that capacity he litigated federal civil rights and immigration cases and led Orrick’s participation in projects to address abuses arising out of U.S. counterterrorism practices, deficiencies in the immigration system, and a variety of international human rights matters.  Scott has also worked with Truth and Reconciliation Commissions in Monrovia, Liberia and Greensboro, North Carolina.

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