Lawyers from the Justice Department’s Office of Legal Counsel wrote memos asserting that waterboarding and other forms of torture were legal. But the rationale these memos provided distorted domestic and international law, and the Justice Department later rescinded them. The legal status of those now-abandoned memos has been the source of great confusion, a muddle worsened by President Barack Obama, who immunized anyone against prosecution who had acted based on the memos.
The Nuremberg trials after World War II established that following orders is not a defense for conduct that is patently illegal. Under the Geneva Conventions, torture, like genocide, belongs in that category. A similar principle says that incorrect legal advice cannot shield one from liability when such advice is promoting transparently unlawful conduct. Torture, like genocide, is of such patent illegality that we are entitled to hold all who engage in it responsible, whether they knew it was illegal or not. Under both domestic and international law, a manifestly evil act puts perpetrators on notice they are committing a crime, and they can be held responsible for such knowledge.
This has implications for Ms. Haspel’s role in the agency’s decision to destroy videotapes of C.I.A. interrogations. Mike Morell, then the deputy director, exonerated Ms. Haspel in his 2011 memo, arguing that “it was not her decision to destroy the tapes, it was Mr. Rodriguez’s.” Mr. Morell’s memo, however, should be taken as implicating, not exonerating Ms. Haspel, since it confirms her role in the destruction of the tapes.
Indeed, Mr. Morell said that he “found fault with the performance of Mr. Rodriguez” in the matter, and issued a letter of reprimand against him, though he imposed no sanctions. Mr. Morell explained this slap-on-the-wrist approach was warranted by the laudable motives Mr. Rodriguez had for ordering the destruction of the tapes: namely, to protect against leaks that might set off a backlash similar to the violence that occurred after the release of the photos of torture from the Abu Ghraib prison in Iraq. That kind of reaction might endanger interrogators and damage the C.I.A.’s standing, he asserted.
The destruction of the videotapes looks much less defensible once it is clear that the tapes contained evidence of legal violations, possibly implicating Ms. Haspel herself. That Ms. Haspel acted on Mr. Rodriguez’s orders cannot absolve her from culpability, since it would not be legally or ethically permissible to destroy evidence of known criminal wrongdoing, especially if conducted for the purpose of protecting C.I.A. interrogators who carried out the torture.
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