Much has been made of President Trump’s disregard for rules and norms—boundaries delineated by ethics and morality if not written laws themselves. But transgressing laws, rules, and norms isn’t the only way to destroy them. Another way is simply not to enforce them.
In that regard, the 44th president, Barack Obama, bears a measure of responsibility for the recklessness of his successor, in particular Trump’s decision to appoint Gina Haspel, the Central Intelligence Agency’s deputy director, to run the agency itself. Haspel oversaw a black site during the Bush era where at least one detainee, Abd al-Rahim al-Nashiri, was tortured*.
Despite that, al-Nashiri provided “essentially no actionable information,” according to a CIA interrogator cited in the Senate Intelligence Committee’s torture report. Haspel also then played a role in a decision to destroy recordings of CIA detainees being tortured.
Before Obama even took office, he announced his belief that “we need to look forward as opposed to looking backwards” on torture. That set the standard for Obama’s tenure, as all avenues of accountability for Bush-era torture were curtailed. A Justice Department inquiry into interrogators who broke even the “acceptable torture” guidelines ended with no charges. Civil lawsuits from former detainees were blocked when the Obama-era Justice Department invoked the state secrets doctrine. An internal Justice Department review of the torture memo’s authors concluded they had not committed professional misconduct when they worked backwards to justify the Bush administration’s use of torture in defiance of laws against it. Even a proposal for a South African-style “truth and reconciliation” commission was rejected. All avenues for any form of accountability for torture—criminal, civil, even professional—were blocked by Obama-era officials. Even an episode in which the CIA spied on Senate staff in an effort to stonewall an inquiry that ultimately found CIA torture ineffective, and then lied about having done so, ended with little more than an apology.
Democrats responded to Haspel’s nomination in this vein. California Senator Dianne Feinstein, who railed against the CIA for attempting to stymie the Senate investigation into the agency’s torture program, and reportedly blocked a promotion for Haspel in 2013, said that Haspel had been “a good deputy director of the CIA.” Democrats are often loath to antagonize intelligence agencies, a quality their Republican colleagues do not share. Republicans once widely regarded the idea of investigating torturers as Obama’s “banana-republic notion of investigating his political rivals”; they have spent the last year demanding the investigation of Trump’s political rivals.
The Obama administration’s actions helped entrench a standard of accountability that stretches from beat cops to CIA officials, one in which breaking the law in the line of duty is unpunishable, but those suspected of a crime—particularly if black, Muslim, or undocumented—can be subjected to unspeakable cruelty whether or not they are ultimately guilty. After all, these are public servants who have committed their lives to protecting Americans. Why should they be punished for being overzealous? But this logic is entirely backward. It is precisely because they are imbued with such power and authority that accountability is necessary. The public is not served by lawlessness in those to whom it grants power over matters of life and death. The logic of the war on terror, that no act of brutality carries a cost that is too dear to pay, is one that erases all distinctions between right and wrong. By “looking forward,” Obama has allowed Trump to look backward.
Obama’s decision must have seemed like the obvious one at the time. Picking a fight with the intelligence community in the middle of a recession, in which he needed congressional support to rescue the American economy, install a new financial regulatory regime, and pass health-care reform, probably seemed like a bad idea. But it has had tremendous consequences. And President Trump has shown no such squeamishness for picking messy political fights with intelligence agencies or law enforcement should they threaten his prerogatives, an asymmetry that can only warp the political incentives of entities whose authority must never be wielded in a partisan fashion.
There is no reason for powerful people to follow the rules if they know they cannot and will not suffer any consequences for breaking them. A system in which only the weak are punished is not a two-tiered system of justice, but one in which justice cannot be said to meaningfully exist.
In a country where a CIA official like Haspel can destroy evidence in order to obstruct a federal investigation, and not only escape prosecution but rise to become the head of the agency, it is no wonder that the president and his allies behave as though the possibility of the law catching up to them is not merely remote, but a kind of absurdity.
*Editor’s Note: On Tuesday night, ProPublica retracted the story that first identified Haspell as having overseen the black site during Abu Zubaydah's interrogation. Haspel's tenure began after the Zubaydah episode, ProPublica said, but coincided with at least some of the torture of Abd al-Rahim al-Nashiri. This story has been updated to reflect that reporting.