The ‘Deep State’ Strikes Back—Against Torture

Why generals oppose the nomination of Gina Haspel as CIA director.

Our constitutional form of government, beleaguered as it has always been by the forces of power and money, has come under even more pressure in the 21st century: unprovoked wars, torture, and warrantless surveillance are now defining features of contemporary America. And it’s about to get worse, now that Trump has chosen to nominate career CIA employee Gina Haspel to head the agency.

Of course, the Trump administration, having come into office after losing the popular vote and under a suspicious cloud of foreign influence, has acted as usurpers always do, by loudly (and falsely) claiming a popular mandate while threatening opponents. Part of its strategy came right out of the Joseph McCarthy playbook: fantasizing that there exists within our government “a conspiracy so immense as to dwarf any previous such venture” that is working to undermine Trump.

Shortly after inauguration, the president’s supporters, egged on by Steve Bannon and his minions at Breitbart, started to decry how permanent government bureaucrats constituting a deep state were insidiously undercutting poor, put-upon Donald. Another of the president’s acolytes, Devin Nunes, the Republican chairman of the House Intelligence Committee, has been pulling all manner of political stunts during the past year on Trump’s behalf. As the New York Times put it:

Years before the Russia investigation, [Nunes] was extremely skeptical of — if not paranoid about — the American military and intelligence establishments in a way that presaged Trump’s denunciations of the “deep state.” Now he and Trump are waging war against these foes, real and imagined, together.

A glance at just about any aspect of the Trump administration shows the sketchiness of their theory. As I’ve written, the tell-tale hallmarks of the deep state are the accumulation of personal wealth via the revolving door, influence-peddling, and the more genteel forms of corruption. Ironically, then, Trump’s self-dealing kitchen cabinet pals, the constant revelations of the administration’s ethics problems, and its blatant public-be-damned attitude are indicative of a deep state on steroids.

Trump’s nomination of Gina Haspel comes all the while he has incessantly denounced the purported swamp of professionally incestuous career bureaucrats. While there should have been dozens of other qualified candidates for the job, the president went out of his way to select someone who has been implicated not only in torture, but in the destruction of evidence in order to evade constitutional oversight by Congress. It would seem in this case that Trump overcame his preference for nominating grossly unqualified political groupies in favor of a career official in order to dog-whistle to the Republican base that Bush-era torture is back and oversight is extinct.

Haspel’s prospects are complicated, however, by the fact that 109 retired generals and admirals have written a letter in opposition to her confirmation. According to the common belief of many on the right as well as the left, general officers constitute a core constituency of the deep state, the military-industrial complex, or whatever the phrase of the moment is.

It is certainly true that retired generals and admirals are heavily represented on the boards of military contractors, engage in influential lucrative media consultancies, and even hold prestigious positions at elite (and supposedly liberal) institutions like Harvard and Tufts. Alas, the days of generals like George C. Marshall refraining from cashing in on their service have receded into a quasi-mythical past that recalls Cincinnatus returning to his plow.

But there is another side to the story. Conspiracy mongers desperately need a clear-cut narrative consisting of pure heroes and villains when they are talking about the Washington Swamp, but reality has a way of being more ambiguous. These 109 retired officers, like their active-duty counterparts—who are of course obliged to hold their tongues regarding the administration’s political choices—know one thing by heart: torture is proscribed by the Geneva Convention, the U.S. Code, and the military’s own Uniform Code.

Aside from the strictures of law, they have a very pragmatic reason for opposing those who would advocate or practice torture being placed in command positions in our government. An America that tortures its enemies would not have a moral or practical leg to stand on if in the future a hostile nation or group declares U.S. personnel to be “unlawful combatants” and waterboards them. Our outrage would ring rather hollow to the rest of the world.

Haspel’s excuse for recommending the destruction of documentary evidence of torture—that she was just following orders—sounds similarly unconvincing to the officers signing the letter. They know it is just as wrong (and illegal according to the Uniform Code) to follow such orders as it is to issue them.

The World War II predecessors of these officers participated in one of the greatest manhunts in history, rounding up German civilian and military personnel believed to have been responsible for war crimes. The most notorious of them faced prosecution at the Nuremberg Tribunal, where the Nazis’ rote defense was “we were just following orders.”

The judges at Nuremberg didn’t buy it. Unfortunately, it will be uphill sledding in the present case, for Haspel’s judges sit in a GOP-controlled Senate. That majority comes in two varieties: dog-like devotees of the president, and the more devious types who engage in tortuous public histrionics for the benefit of the press about their “skepticism” and “doubts” regarding the president and his policies, but who in the end always align themselves with Trump, like iron filings attracted to a magnet.

We have already seen this syndrome in action in the Foreign Relations Committee’s deliberations on Mike Pompeo’s nomination to be secretary of state. Rand Paul—the darling of libertarians, principled defender of Congress’s constitutional war powers, and dogged opponent of military intervention—ostentatiously signaled his opposition to Pompeo throughout the hearing process. But when it came time to recommend the nominee to the full Senate, he obediently voted yes, furnishing the deciding affirmative vote.

It is little short of utopian to expect practical politicians to operate under any principle other than that of immediate expediency, but if members of Congress wink at lawbreaking and document destruction that undermine their own constitutional oversight powers, all they end up doing is sawing off the branch on which they sit.

Mike Lofgren

Mike Lofgren is a former career congressional staff member who served on the House and Senate budget committees. His latest book is The Deep State: The Fall of the Constitution and the Rise of a Shadow Government.