Wednesday, May 09, 2018

Bomber Harris and the Haspel Nomination

Guest Blogger

John Fabian Witt

Gina Haspel, who testifies today before the Senate seeking confirmation as Director of Intelligence, is not the first American official to confront a past in black ops, torture, and humanitarian law violations.  To the contrary, she stands as the latest in a long line of Americans.  How we deal with such people speaks volumes not just about them, but about us.

The basic conundrum goes back to the very beginnings of the republic.  The frontier world of empire and Indian fighting regularly produced sharp controversies over war tactics.  No one was more controversial than George Washington, who as a young British officer was implicated in a possible massacre of captured French soldiers in the Seven Years War.  Washington himself, perhaps inadvertently, seemed to admit that something untoward had happened; the killings, he admitted, had been “assassinations.”  Soon Washington was a notorious figure, condemned by the Governor of New France.  “There is nothing more unworthy and lower, and even blacker,” wrote the Governor, “than the sentiments and the way of thinking of this Washington.”

Washington was hardly the only prominent American to be tied to an ugly past.  When Andrew Jackson was up for the presidency in the 1820s, he was dogged by claims that he had unlawfully executed two British nationals on his unauthorized raid into Florida.  Colonel John Chivington, commander of a regiment of Colorado Volunteers, killed hundreds of Cheyenne women and children in the infamous Sand Creek Massacre.  Chivington tried to reenter politics despite an Army judge’s conclusion that he had engaged in a “cowardly and cold-blooded slaughter.” 

Perhaps the closest analogy to Haspel is another less prominent figure in history, someone who like Haspel operated mostly in the shadows.  A hundred and twenty years ago, an Army lawyer named Colonel Edwin Glenn operated a secret torture team, not far from the black site in Thailand whose secrets now shape Haspel’s fate.  During the insurgency in the Philippines that followed fast on the Spanish-American War, U.S. forces employed a close cousin of waterboarding to obtain information about the location of insurgents in the hills.  Colonel Glenn organized the effort.  He was convicted at a court martial of illegal torture, but his sentence was a slap on the wrist: suspension from his command for a month and a $50 fine.  And like Haspel (who faced no prosecution at all for her role in the CIA interrogation program), Glenn, too, resumed a career in the military.

Americans have been willing (perhaps all too willing) to welcome back men despite ugly pasts.  But the usual pattern requires renewed commitment to the very standards they violated.  To overcome his early missteps, a more mature Washington held himself out in the War of Independence as complying with the highest ethical standards.  Qualifying as an independent state would mean that the laws of war applied.  And so, along with the upstart republic he served, Washington committed to close compliance with the Enlightenment laws of war.

William Colby is another who followed the Washington pattern.  Colby, who ran the CIA’s so-called “Phoenix Program” of interrogations and torture during the Vietnam War, came clean about the CIA’s role in domestic intelligence gathering.  (Colby volunteered so much information that Henry Kissinger persuaded President Ford to fire him and replace him with George H. W. Bush.)

Most spectacularly, Colonel Edwin Glenn followed the Washington pattern to the letter. A dozen years after running the Army’s torture teams in the Philippines, Glenn took on a new assignment: drafting the U.S. Army’s new field manual on the laws of armed conflict.  The manual, which replaced the outdated Lieber Code from the Civil War, contained clear rules against the very conduct for which Glenn had been convicted at his court martial.  The new field manual updated the Lieber Code and adopted a much more humane approach to the rules of war.  It unequivocally prohibited torture.  The manual would remain in effect for decades.  After World War Two, Glenn’s text was the basis for trials at Nuremberg prosecuting Nazis for war crimes.

There is another pattern in American history, too.  Call it the “Bomber Harris” pattern, after the disgraced leader of the British aerial bombardment campaign in World War Two.

For let’s be clear: not everyone has followed the pattern laid down by Washington. Yet in a remarkable number of instances, the consequence has been a kind of informal shaming.  The paradigm case here, as the philosopher Michael Walzer recounted in his classic Just and Unjust Wars, was from the United Kingdom.  After the Second World War, British authorities denied a peerage to Arthur “Bomber” Harris, the architect of Britain’s high-altitude campaign of aerial bombardment.  The United States has examples, too.  Chivington was drummed out of the militia and shamed when he tried to run for office (years later Colorado named a town after him).  More recently, Alberto Gonzalez became the United States’s own Bomber Harris.  After belittling the Geneva Conventions as quaint and outmoded and participating in the authorization of enhanced interrogations, former Attorney General of the United States Alberto Gonzalez found himself essentially unemployed before taking a position as diversity recruiter at tiny Angelo State University in Texas.

But sometimes Americans have taken a different tack altogether.  Sometimes we have celebrated and championed people with ugly pasts precisely because of their violations of the standards of decency.  Jay Bybee, who helped draft the legal opinions authorizing torture after 9/11, won Senate confirmation to an appellate judgeship on the Ninth Circuit, though the Senate acted before the details of Bybee’s involvement in the torture memos were fully known.  Most prominently, Andrew Jackson survived the challenges based on his conduct in Spanish Florida to become president of the United States.  Jackson’s election was not so much in spite of his conduct in Florida and elsewhere as it was because of that conduct.  Americans who supported Jackson did so in part to stick a thumb in the eye of the very standards Jackson was accused of violating. 

President Trump and his advisors have made no secret of their love for Jackson.  In the Haspel nomination, President Trump and those close to him are championing a dreadful moment in the history of American abuses.  Doing so is not unprecedented in American history.  But it is also not up to the United States’s better legacy.

John Fabian Witt is Allen H. Duffy Class of 1960 Professor of Law and Professor of History at Yale University. You can reach him by e-mail at john.witt at

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