President Donald Trump’s nomination of Gina Haspel to lead the Central Intelligence Agency and Mike Pompeo to lead the State Department on Tuesday has raised new concerns about the fate of key documents about the country’s torture program.
In 2002, Haspel ran the CIA’s first black site in Thailand, where she oversaw “aggressive” interrogation techniques like wall slams, coffin-like confinement boxes, and controlled drowning. Back at CIA headquarters in 2005, Haspel sent a memo back to Thailand with orders to destroy videos of torture sessions at the black site she oversaw.
Now Haspel’s history of sweeping torture under the rug raises concerns that the CIA could try to erase other evidence of its interrogation program under her leadership, according to Raha Wala, director of national security advocacy at Human Rights First.
“We have a whole host of concerns about her track record with torture and the cover-up of torture,” Wala told ThinkProgress. “So that’s a key question that will need to be asked of her in the confirmation hearing.”
A Senate study and a CIA review
The New York Times revealed the destruction of the torture videos in 2007. Outraged, the Senate Intelligence Committee voted to begin a study of the detention and interrogation program, based on millions of cables between black sites and CIA headquarters.
In 2009, then CIA Director Leon Panetta commissioned his own internal review of those same cables, known as the Panetta Review. The CIA maintains that the Panetta Review is an incomplete draft never cleared by senior leadership. But Feinstein and former Sen. Mark Udall (D-CO) say it proves the agency mislead Congress and the White House.
The CIA has so far declined to provide the full review to either Congress or the public. But an Intelligence Committee staffer removed a partial copy from a CIA facility to the committee’s secure Senate offices in 2013 out of fear the agency might destroy it just as it had destroyed the torture videos years earlier.
Sen. Richard Burr (R-SC) threatened to return that partial copy to the CIA after he took over as chair of the Senate Intelligence Committee in January 2015.
It’s not clear whether Burr has made good on that promise yet. But a CIA spokesperson told ThinkProgress the agency will preserve the Panetta Review whether or not the Senate keeps its copy.
Still, some advocates are skeptical. Jeffrey Light represented journalist Jason Leopold in an unsuccessful Freedom of Information Act lawsuit for the review in 2015. At the time, he said he doubted whether the agency would keep its promise to preserve the document.
“Because of its past actions, we were concerned that the CIA might destroy the review,” Light told Al Jazeera America. “We sought a preservation order, but the court denied it as unnecessary, based on the CIA’s promise to maintain a copy of the review. If the Senate’s copy is returned to the CIA, the only assurance that the document will not be lost forever is the CIA’s word.”
If the Senate confirms Haspel as CIA director, her involvement in the destruction of torture videos renews fears that the CIA will try to erase the Panetta Review permanently — especially if the Senate no longer has its copy. A recent incident where the CIA got permission from a military judge to destroy a former torture site, despite a public protective order and without informing defense lawyers, underscores fear’s about whether the agency can be trusted to deal honestly with its history of torture. (There’s no evidence Haspel was involved in that decision.)
“Given her role in ordering the illegal destruction of videotapes of the torture, including waterboarding at the very prison that she ran, there is no reason to believe that she will be transparent about the CIA’s role in torture and abuse,” Christopher Anders, deputy director of the ACLU’s Washington, D.C., office, said in an email. “In one of the most consequential moments in her career, she chose destruction and coverup over preservation and transparency.”
Katherine Hawkins, an expert on CIA torture at the Project on Government Oversight, told ThinkProgress that while Haspel’s personal history is concerning, the problems with transparency over CIA torture are bigger than one person.
“I am concerned with the entire agency’s track record on preserving documents that portray them in a negative light,” Hawkins said in an email.
Where is the Senate torture study now?
The Senate Intelligence Committee released the unclassified executive summary to its torture study in December 2014. The rest of the nearly 7,000-page study is still classified, but Feinstein sent copies to the White House, the Director of National Intelligence, the CIA, the CIA Inspector General, the Justice Department, the Department of Defense, the State Department, and the FBI.
That left just nine copies of the full study: One belonging to the Senate Intelligence Committee, one belonging to the White House, and seven at the other Executive Branch agencies.
“[T]he full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure this experience is never repeated,” Feinstein wrote in a letter that accompanied the full study.
That attitude wouldn’t last long. In January 2015, Burr asked the seven agencies to return their copies of the full study to the Senate Intelligence Committee. But the Obama administration vowed to maintain the status quo until Freedom of Information Act lawsuits for the study were over, tying Burr’s hands.
President Barack Obama also placed one copy of the full study in his presidential papers at the National Archives before leaving office, but an agency would have to go through Trump to access that copy.
Those public records lawsuits ended last April, when the Supreme Court refused to hear an appeal by the ACLU. A little over a month later, the Office of the Director of National Intelligence’s top lawyer, Bradley Brooker, sent Burr a letter returning copies of the full study Feinstein had sent to the Director of National Intelligence, the CIA, and the CIA Inspector General.
Three copies of the study were outstanding, the letter said. The Department of Defense and Department of Justice’s copies are under protective orders in pending court cases. And Brooker said the State Department was still “in the process of briefing leadership.” The other digital copies of the full study that Feinstein sent out were on their way back to Burr.
The day after Brooker’s letter, The New York Times reported that the Office of the Director of National Intelligence, the CIA, the CIA Inspector General, and the FBI had returned their copies. The Washington Post also reported that the State Department had returned its copy.
Despite Brooker’s public letter and the media reports, officials are still coy about the fate of these classified documents.
An official familiar with the matter confirmed to ThinkProgress that the Office of the Director of National Intelligence returned its copy. Other agencies either declined to comment, referred requests for comment to the Senate Intelligence Committee, or ignored multiple requests for comment. Spokespeople for Burr and Sen. Mark Warner (D-VA), the ranking member on the Senate Intelligence Committee, also declined to comment.
Even with all but three Executive Branch copies now in Burr’s hands, the Senate Study is likely to come up in Pompeo and Haspel’s confirmation hearings. During his confirmation process for CIA director, Pompeo said he would be “happy to review” the Committee Study. Five months later, the CIA sent its copy back to Burr.
“As far as I know, the CIA has still never acknowledged that destroying the [torture videos] was unlawful,” Hawkins, the CIA torture expert, told ThinkProgress. “Pompeo promised during his confirmation hearings that he would preserve and review the CIA’s copy of the torture report; then he broke that promise.”