Haspel’s Testimony About CIA Torture Raises New Questions

WASHINGTON — A day after Gina Haspel, President Donald Trump’s nominee to lead the CIA, refused during her confirmation hearing Wednesday to condemn the agency’s torture of al-Qaida suspects, several lawmakers and human rights advocates said aspects of her testimony merited greater scrutiny.

While Haspel, the agency’s acting director, vowed never to start another detention and interrogation program, her testimony was laced with ambiguities about the program and her understanding of limits on the CIA’s powers. For example, she promised to follow “the law” but insisted the agency’s interrogations were legal at the time.

Against that backdrop, her critics pointed with suspicion to several of her comments during her testimony before the Senate Intelligence Committee.

At one point, for example, she told Sen. Dianne Feinstein, D-Calif., that “I was not even read into the interrogation program until it had been up and running for a year.”

Being “read in” means being briefed about classified information. The agency started its torture program in the summer of 2002, months after the capture of Abu Zubaydah, the first detainee the agency took into custody and for whom it initially developed its list of enhanced interrogation techniques, like waterboarding.

By late 2002, Haspel was running a secret CIA prison in Thailand where another detainee in her custody, Abd al Rahim al-Nashiri, was subjected to waterboarding, prolonged sleep deprivation and other such tactics.

Asked about the apparent discrepancy, Ryan Trapani, an agency spokesman, said in a statement, “Acting Director Haspel has said that she was briefed on some of CIA’s more sensitive counterterrorism authorities and activities in October 2002.”

The CIA considered its interrogations to be part of a detention and rendition program that operated under a then-classified memorandum President George W. Bush issued in September 2001. It authorized the agency to capture and detain terrorists, but it did not mention interrogations, enhanced or otherwise.

Haspel later became chief of staff to the head of the CIA’s Counterterrorism Center, Jose Rodriguez. In 2005, as the torture program was coming under investigation, she drafted an order, which he issued, to destroy 92 videotapes of interrogation sessions.

Haspel’s testimony about that episode also attracted scrutiny. For example, she told Feinstein that the destroyed videotapes “were recordings of only one detainee.”

“It was 92 tapes of one detainee,” she said.

But while most of the tapes depicted interrogations of Zubaydah, two were long believed to be of Nashiri, the detainee who was tortured in her custody.

Memoirs by Rodriguez and by John Rizzo, the CIA’s top lawyer during much of the Bush administration, both said Nashiri’s interrogations were videotaped, although by late 2002 the agency had switched to a practice of taping over the previous recording each day.

CIA documents obtained by the American Civil Liberties Union in a Freedom of Information Act lawsuit list two tapes for Nashiri marked “tape and rewind” and “use and rewind.” They do not indicate that their final sessions were taped over or otherwise destroyed, however.

“Gina Haspel supervised the torture of al-Nashiri, which raises the stakes on the question of whether there were or were not remaining tapes of his torture,” said Hina Shamsi, the director of the ACLU’s national security project.

Asked about the apparent discrepancy, the CIA pointed without comment to several pages of another document previously released under the Freedom of Information Act that discussed how the agency logged the contents of the 92 tapes before destroying them. It said 11 were blank, two were blank “except for one or two minutes of recording,” and “two were broken and could not be reviewed.”

Rodriguez and Haspel were later investigated by John Durham, an assistant U.S. attorney. Durham ultimately recommended filing no charges over the tape destruction, but his report laying out his findings and reasoning is secret. (The New York Times lost a Freedom of Information Act lawsuit to make it public.)

The Trump administration has disclosed the executive summary of Durham’s report to the Intelligence Committee, and on Thursday, Sen. Jeff Flake, R-Ariz., wrote to Attorney General Jeff Sessions asking for it to be made available to the full Senate, calling it “critically important” that all lawmakers have access to it. Several Democratic senators had already asked for that step.

Also on Thursday, Sen. Ron Wyden, D-Ore., said he wanted to know more about an apparent discrepancy in how Haspel and Rodriguez have described their discussions about the tape destruction order.

In an interview published on Wednesday by ProPublica, Rodriguez said he told Haspel he was going to take matters into his own hands because he had concluded that the director at the time, Porter Goss, would never approve their destruction. But Haspel said on Wednesday that the conversation never happened. She said Rodriguez instead told her he would discuss the issue with Goss before issuing the order, but then he sent it without having spoken to Goss.

Rodriguez’s comments were ambiguous, however. He also told ProPublica, “She may have thought I was going to talk to more people about it before hitting ‘send,’ but I had made up my mind.” But Wyden said the Senate needed to clarify what happened.

“Gina Haspel has claimed for years that she believed her boss would get signoff before ordering the destruction of the torture tapes,” Wyden said. “But her boss says he told her otherwise. We need to get to the bottom of what Gina Haspel did, and what she knew, before the Senate votes on her nomination.”

Haspel seems likely to be narrowly confirmed. One Republican senator, John McCain of Arizona, said he would oppose her, but a Democrat, Joe Manchin III of West Virginia, said he would support her. The Intelligence Committee is likely to receive written answers to its follow-up questions early next week, after which the panel would vote, leading to a full Senate vote late next week or, more likely, early the following one, congressional aides said.

At that pace, the Senate is unlikely to hear from an unusual voice trying to weigh in: Khalid Sheikh Mohammed, the principal architect of the Sept. 11 attacks, who was also tortured by the CIA. His lawyers have asked a military judge at the Guantánamo Bay wartime prison to grant permission for their client to send six paragraphs of information about Haspel to the Senate.

But on Thursday, one of his defense lawyers, David Nevin, said that the judge had issued a briefing order for the request that requires the government to respond by May 15, with a defense reply due on May 21. Any ruling would come after that.