Gina Haspel should be confirmed
© Greg Nash

Gina Haspel’s nomination to be the next Director of Central Intelligence is being considered by the U.S. Senate. The first woman, and a career intelligence professional, Haspel promises to be an excellent, apolitical and talented leader. She should be confirmed.

Concerns have been raised that, because of allegations of her involvement in so-called “enhanced interrogation,” Haspel should be rejected. These concerns are misplaced. Whether you believe that “enhanced interrogation” was legal or immoral, necessary or counterproductive, it is critical that we do not look to the CIA or its professional officers to make these judgments for us. Why is this so important? A bit of historical context is necessary.

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In the aftermath of the Second World War, the allied victors prosecuted Nazi officials for an array of horrific crimes. The trials, held at Nuremberg, advanced in the face of a defense asserted by certain members of the Nazis who claimed they were “just following orders,” an argument that came to be named for the city in which the trials were held. That defense failed, and the “Nuremberg Defense” has come, in different contexts, to stand for a general sense of outraged rejection of the idea that simply following orders can excuse shockingly wrongful conduct.

The visceral rejection of the Nuremberg Defense is so ingrained in our politics and culture that it is difficult to even discuss it as legitimate in any context. This wholesale disavowal of the defense in our public discourse should be reexamined, and refined.

Why now? Because in its blunt and unexamined form, it is being applied to our examination (and self-examination) of so-called “enhanced interrogation,” or torture, as practiced by the CIA in the years following the Sept. 11, 2001 attacks. This issue was high-profile after release of the thorough and meticulous report of the Senate Select Committee on Intelligence on Enhanced Interrogation, and it has reemerged in the context of Haspel’s nomination as the next director of the Central Intelligence Agency.

Haspel is a career intelligence officer who is well respected throughout the Agency. According to press reports, she was involved in “enhanced interrogation.” It remains to be seen whether any of these allegations are true. But, even if true, they should not be disqualifying and should not be compared to the horrific crimes during World War II.

First, the easy and frequent comparison of the CIA’s actions with that of Hitler and the Nazis is inappropriate. It diminishes the evil of the Nazi regime, and by inviting easy analogy, warps our assessment of our own actions. There simply is no appropriate comparison between these two sets of events.

Second, we should abandon the dramatic rhetoric that has surrounded the issue of enhanced interrogation since it was first discussed (largely out of the public view), and in the ensuing public discussion. It is foolish for those who defended what the Bush administration called “enhanced interrogations” to characterize opposition or criticism as “soft on terrorism,” or treasonous. It is equally foolish for those who believe that enhanced interrogation is a misleading euphemism for torture to equate these polices with that of Nazi Germany.

Third, we need to add into the debate a reevaluation of the Nuremberg Defense and, as difficult as it is to articulate, accept it as legitimate within bounds – a defense of the Defense. Why is this important? Because some type of Nuremberg Defense is, counterintuitively, essential to our democracy. How can this be so?

In any government system such as our representative democracy, the fundamental concept that elected representatives make policy choices, while government employees defer to the democratic decisions, is critical. This is particularly so in the areas of the military and intelligence services. It has long been well understood that civilian control of the military is necessary to the continued existence of American democracy. The army has the guns and trained personnel who can, if they wish, overturn almost any action of the elected representatives they do not like – it is their deeply engrained forbearance that saves us from the military controlling our government. This same logic applies to our intelligence services, particularly, the CIA.

The CIA, by necessity (and as directed in law and executive order), has the capability to act in secret with less oversight and less constraint than almost any other government entity. Despite the softening of its image in recent times, through both popular culture and its own efforts (take a look at the friendly CIA website), it still has, as its primary mission, two functions that are at odds with the norms of our society. It conducts espionage (“stealing secrets”) and covert action (secretly effecting the course of history). Both of these functions must be conducted in secret.

These necessary characteristics of an entity such as the CIA make it inevitably dangerous to our democracy. It is one of the more difficult and laudable capabilities of our government that we have with great, but imperfect success, managed to balance this tension. It has been tested over time and while there have been failures, those failures have been largely addressed and remedied over the years. It is a tension that will never fully be resolved.

The existence of the Senate Select Committee on Intelligence (and its House of Representatives equivalent, the House Permanent Committee on Intelligence), along with Executive Branch oversight mechanisms too numerous to list, as well as vigorous press (armed with First Amendment protections) have provided the framework for this imperfect success. But one major element rarely discussed is the adoption and acceptance of a variation on the Nuremberg Defense. CIA officers, at the highest and lowest levels, have nearly uniformly accepted the idea that they are subordinate to the directions of elected officials – most importantly, the president, but also the Congress, and they are bound by the Constitution and the law. This acceptance, at the field level, is the product of ideology (we live in a democracy and “following the orders” of elected officials is, in part, what distinguishes the CIA from its historical adversaries, such as the KGB). This ideological acceptance is buttressed by the practical aspects of working in a secret and compartmented profession – field level officers accept orders not only because they should, but because they recognize that they usually do not have enough information to assess whether these orders are “good” or “bad.”

The fundamental point is that this limited acceptance of the Nuremberg principle is critical to our ability to have the CIA and democracy coexist. CIA officials, and most importantly, field officers, should consider rejecting orders as extraordinary and nearly impossible to even consider. The CIA, at no level, should function as a type of court of review for the determinations of elected officials, nor should it hold a veto on those decisions.

Intelligence agencies such as the CIA are a necessary yet dangerous tool for our democracy. These agencies should be led by career intelligence professionals who will follow the direction and guidance of our democratically elected leaders and not substitute their views and preferred policies. They can persuade, argue, complain and even resign in protest. But they cannot serve as our conscience. Haspel should be confirmed.

Steven Cash is Counsel at Day Pitney LLP in its Washington, D.C. and New York offices; former Chief Counsel to Sen. Dianne FeinsteinDianne Emiel FeinsteinSenate moving ahead with border bill, despite Trump Senate moderates hunt for compromise on family separation bill Texas official compares Trump family separation policy to kidnapping MORE (D-Calif.); former CIA Operations Officer and Assistant General Counsel and Former Assistant District Attorney with the New York County District Attorney’s Office.