“Gina [Haspel] has her defenders. Some on the left. Some who are very reputable people. They depict her as being very competent, thorough, and professional. But no one ever accused the Nazis of being sloppy, inept, and amateurish. They were accused of war crimes.”

Larry Beinhart has just penned a thoughtful — yet highly entertaining — analysis of Trump’s pick for head of the CIA which I repost here with his kind permission. Follow us on Twitter: @Intel_Today

Larry Beinhart is an American writer. He is best known as the author of the political and detective novel American Hero which was adapted into the political-parody film Wag the Dog. His novel Salvation Boulevard was also adapted as a movie released in 2011. He has also worked as a producer with Al Jazeera’s TV news show Empire.

Gina, She-Wolf of the CIA

Remember the special 1970s genre that combined Nazisploitation and sexploitation? Perhaps not, as there was only one film that really nailed it: Ilsa, She Wolf of the SS!

Ah, the poster! Visualize Stormy Daniels in a Nazi uniform, blouse unbuttoned to the navel, so it must be only her nipples that keep it from falling fully open, with her hands on her hips and legs spread. Ah, the story! Ilsa is the Kommandant. She performs sadistic experiments on women. She has sex with a new male prisoner every night and when they ejaculate too quickly—as, sigh, they always do—she cuts off their male parts.

Back then, we knew what Nazis were and how they were different from us. They had secret camps. They performed “medical experiments” that were actually torture and ended in murder. There was often an aura of sick sexual sadism about it all.

Then came 9/11.

The Bush administration leapt into action. They set up secret camps. They hired psychologists and doctors to run experiments — “enhanced interrogation”, not torture — specifically conceived to destroy personalities and create helplessness, dependence, and compliance, so that the subjects would reveal all their secrets. These often involved sexual humiliations, amply documented in the prisoner photos from Abu Ghraib.

Gina Haspel, Trump’s nominee to head the CIA, ran one of these black sites. She presided over at least one set of “enhanced interrogations.” According to all known reports, it produced zero useful intelligence.

Many Americans still want to argue over whether these actions were torture and war crimes. Here’s a simple test. If Iraqis or Iranians or Russians treated captured Americans the same way, what would you call it?

Senator Rand Paul stepped up to oppose Haspel. Ah, Rand Paul. He’s special. Even when he’s right, he is factually challenged. He quoted a report that depicted Haspel as taking “joyful glee” in torture, as in a scene from Ilsa. That report existed, but was almost instantly retracted. The important facts were true and they remain. Believe it or not, torture—even of suspected terrorists—is illegal under American law.

In 1994, the US “ratified” the UN Convention Against Torture as a “treaty.”

Regular treaties are simple agreements between nations that can be executed by the president alone. However, according to Article II, Section 2, of the Constitution, when it’s submitted to the “advice and consent” of the Senate, and is approved by two-thirds of the vote, it becomes a “treaty” as the term is used in Article VI, Section 2. Treaties made by that process “shall be the supreme Law of the Land.”

The US helped write the Convention Against Torture. Many members of the Senate hate the idea of giving up even the appearances of sovereignty. Ratification was made contingent on the US passing its own anti-torture laws first. 18 USC §§ 2340, 2340A, made it a crime for a US national or foreigner present in the US to have committed torture outside the US. Torture inside the country was already covered by existing statutes.

18 US Code § 2340A — Torture — is clear and blunt: “Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.”

A person, like Gina Haspel, need not commit hands-on torture. Supervising, directing, aiding, and abetting, all come under section (c) Conspiracy: “A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death).”

Then there’s 18 US Code § 2441, the War Crimes Act of 1996. It defines a “war crime” as any “grave breach” of the Geneva Conventions, including torture, cruel or inhuman treatment, and sexual assault or abuse. The penalty is to be “imprisoned for life or any term of years…if death results to the victim…the penalty of death.”

From reading the law, it’s very hard to see why Gina was hidden away in a very high CIA rather than put on trial. Unless we return to the defenses that the Nazis tried to use at Nuremberg. First, they claimed that the whole idea was invalid. It was simply the vengeance of the victors and had nothing to do with justice.

While America certainly deviated from those standards in practice, it held to them in principle, even prosecuting a few US citizens for war crimes. Until 9/11. The excuse was fear! Antonin Scalia, widely considered to be a “brilliant” Supreme Court justice explained why torture had to be legal! “Jack Bauer saved Los Angeles. He saved hundreds of thousands of lives.” In case anyone doesn’t know Jack, he was a fictional character in the TV show “24.” The “ticking bomb” scenario makes torture seem normal and necessary. It happens in fiction all the time, but there were no real examples for Scalia to call on. For the record, the failure to stop 9/11 was a result of conflicts between the CIA and the FBI, taking place for months, not a failure to torture in a race against time. Torture would only have helped if it had been applied to force US bureaucrats to talk to each other.

The next Nazi defense was that they were only following orders. At Nuremberg, the judges said that people had a positive duty—if it was possible—to refuse orders that were common crimes or crimes against humanity. For decades afterward, “I vas only following or-ders!” became a ubiquitous tag-line and gag line. Conversely, the Nuremberg Principles became the actual standard of the American military and, to a lesser degree, to the intelligence services, which demanded that their missions meet legal rules.

If the Bush Administration wanted torture, they had to find lawyers who would come up with arguments that would convince CIA operators and military personnel that it was legal. The theory they came up with was that while the president was in his “commander-in-chief” role, his orders trumped any law or rule. Anything done at his behest was an extension of his legality. The Nazi defense, “I vas only following or-ders!” was now made valid. Adolf Eichmann’s conviction should have been reversed posthumously.

How much was Gina like Ilsa? There were tapes of the tortures but she had them locked away, then participated in having them destroyed. To the conventional mind, that would appear to be obstruction of justice.

Gina has her defenders. Some on the left. Some who are very reputable people. They depict her as being very competent, thorough, and professional. But no one ever accused the Nazis of being sloppy, inept, and amateurish. They were accused of war crimes.