Ahead of her Senate reckoning, Gina Haspel’s defenders in U.S. intelligence circles have adopted the fallback position that she’ll be a check on Donald Trump as his CIA director. But attorneys for a man whose torture Haspel oversaw 15 years ago consider that farcical.

“Obviously, this person should not be the head of the CIA or the head of anything,” Nancy Hollander, who represents Abdul Rahim al-Nashiri, told The Daily Beast.

“Under the Convention Against Torture that the U.S. is a party to, we’re obligated to pursue and prosecute torturers, not give them promotions. What does it say to the world that the person who may have been directly responsible, and certainly was indirectly responsible for this torture, who never stood up and said ‘Don’t do it,’ is now the person who might be leading the very agency we know committed that torture?”

Hollander’s client was tortured at a black site in Thailand that Haspel ran in late 2002. Declassified CIA documents indicate that Nashiri’s torture, which his attorneys say has left lasting mental damage, was controversial within the agency. But those documents provide no indication that Haspel opposed it, let alone stopped it—particularly when CIA headquarters pushed to intensify the torture at a subsequent black site. Interrogators who didn’t work directly for Haspel even engaged in a miniature revolt over torture that they considered egregious.

“The person we know most about, whom the [Senate torture report] called the ‘chief interrogator,’ he’s the only person we’re expressly aware protested Nashiri’s torture—after torturing Nashiri for quite awhile,” said Michel Paradis, a senior counsel with the Pentagon’s Office of Military Commissions who has aided Nashiri’s defense. “That’s the only one we’ve found from the black sites.”

Haspel goes before the Senate intelligence committee Wednesday morning and leaked excerpts of her opening statement indicate she will tell the panel that “under my leadership, CIA will not restart such a detention and interrogation program.” But her nomination is so far from assured, even after an intense and unusual public push from the CIA to confirm the three-decade agency veteran, that she considered quitting late last week. While the agency has emphasized everything about Haspel’s career except torture—pushing her basketball fandom and a pre-torture meeting with Mother Teresa—Trump, a vocal torture enthusiast, indicated that he considered her torture record, or “being too tough on terrorists,” a virtue.

With Senate margins such that Haspel will need to win over at least some Democrats for confirmation, CIA veterans have suggested Haspel will act as a bulwark against Trump.

A letter of support signed by 72 retired agency officers, released Tuesday night, described her as “a person who commits to the highest standards of conduct and ethical behavior” (PDF). Barack Obama’s CIA director, John Brennan, who unsuccessfully fought to make Haspel clandestine-service chief, assured Haspel would provide “unvarnished, apolitical, objective intelligence input to Donald Trump.” A counselor for Eric Holder, Amy Jeffress, called Haspel “committed to the rule of law.” John Bennett, a former senior agency official, recently told The New York Times, “If she’s not confirmed, who knows who the president would turn to as an alternative?”

But when Haspel oversaw the brutality inflicted on Nashiri, torture was “unlawful then as it is unlawful now,” said Hollander. “I don’t think she would stand up to Trump at all.”

“I see this as extremely problematic,” said Navy Lieutenant Alaric Piette, another Nashiri attorney. As an enlisted SEAL on 9/11, Piette, who first expressed doubts about Haspel to the Washington Examiner on Monday, conceded that he “understand[s] the impulse to torture.” But he said he considered Haspel to have failed a critical post-9/11 test.

“At a time when we needed professionalism and leadership, we got torture instead,” Piette told The Daily Beast. “As a defense attorney, I don’t think people should be defined by the worst thing we’ve ever done. We’re all greater than that. But at the same time, that doesn’t mean there shouldn’t be some consequences... I think it should be a bar for her rising up to that level.”

‘ONLY THE MOST EGREGIOUS CONDUCT’

Even under a legal definition concocted to provide the Central Intelligence Agency with maximal leeway to brutalize its captives, what Gina Haspel’s interrogators did to Nashiri qualifies as torture.

In 2002, the year that the torture program began, the law was clear, and it was not on the CIA’s side. “Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both,” reads 18 USC 2340(A)(a). The prohibited acts were meant to apply to people in power—“a person acting under the color of law.”

A further definition contained within the law expressly stipulates that anyone involved in torture, not merely the person directly conducting it, is committing a crime: “A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.”

That summer, the Justice Department’s Office of Legal Counsel considered what the CIA proposed doing to its detainees. To provide the CIA with legal cover, attorneys John Yoo and Jay Bybee redefined torture narrowly, to “only the most egregious conduct,” and then denied that the agency proposals reached that threshold (PDF). Physical pain needed to be equivalent to “organ failure, impairment of bodily function, or even death” to count as torture, Yoo wrote on Aug. 1, 2002. For “purely mental pain or suffering to amount to torture under Section 2340,” he continued, “it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”

That, it turned out, is what happened to Nashiri.

Authorities in the United Arab Emirates seized Nashiri, who carried out the 2000 U.S.S. Cole bombing that killed 17 U.S. sailors, in Dubai in mid-October 2002. By Nov. 15, the CIA took him to the Thailand black site. Haspel was already in charge.

The proposal Yoo signed off on implied that the agency would torture as a last resort. With Nashiri, it was a first resort. After obtaining “the necessary Headquarters authorization,” a 2004 CIA inspector general’s report found that “psychologist/interrogators began al-Nashiri’s interrogation using EITs immediately upon his arrival.” EITs, or enhanced interrogation techniques, are the CIA’s euphemism for torture.

According to that same inspector general’s report, the relationship between cooperation and torture was not inversely proportional at the site Haspel ran. Nashiri provided information “on other terrorists during his first day of interrogation.” Yet it was on day 12, Nov. 26, that the agency waterboarded him.

“A rag was placed over his forehead and eyes and water poured into his mouth until he began to choke and aspirate,” his lawyers told the Supreme Court in 2017. “The rag was then lowered, suffocating him with the water still in his throat, sinuses and lungs.” The black-site interrogators permitted Nashiri to “take 3-4 breaths” before proceeding with another simulated drowning.

“On one occasion,” write Nashiri’s lawyers, Nashiri “was forced to keep his hands on the wall and denied food for three days.” On a different occasion, “they placed a broomstick behind [Nashiri’s] knees as he knelt and then placed his body backwards, pulling his knee joints apart ‘as he started to scream.’” While interrogators attempted “to put al-Nashiri in a standing stress position,” apparently while lifting him “off the floor by his arms while his arms were bound behind his back with a belt,” the CIA inspector general found, there was “concern that al-Nashiri’s arms might be dislocated from his shoulders.” At least one black-site official “said he had to intercede,” but with unspecified results.

For “days,” according to Nashiri’s Supreme Court filing, CIA interrogators kept Nashiri in a “standing stress position” while placing him in “a coffin,” often termed a “large box.” When not locked in the coffin “between interrogations,” Nashiri was stuffed into what his lawyers say was a small box “the size of an office safe.” Amidst stagnant air and total darkness, the safe-sized box forced Nashiri “into a squatting fetal position that caused his extremities to swell.”

Such interrogation “continued through 4 December 2002,” the 2004 CIA inspector-general report found. That date appears to be when the agency shut down the Thailand black site, out of fear of discovery and sent Nashiri, along with previous captive Abu Zubaydah, to a different black site in Poland. (A footnote in the 2014 Senate torture report says Nashiri’s torture resumed from “December 5-8” at a different site.)

Haspel is not known to have gone to Poland. The brief and nonspecific biographical sketch the CIA released recently indicates she instead returned to the Counterterrorism Center (CTC), out of which the torture program operated.

But by mid-December 2002, CTC was enmeshed in an internal argument about what to do with Nashiri.

‘A TRAIN WRECK WAITING TO HAPPEN’

Soon after Nashiri arrived in Poland, interrogators at this post-Haspel black site “judged al-Nashiri's cooperation and compliance by his engagement and willingness to answer questions,” according to the Senate torture report. Adds Paradis, the counsel who has aided in his defense: “Nashiri was cooperative instantly. His cooperativeness was never in doubt.”

There is little evidence that interrogators under Haspel’s command at the Thai black site expressed reluctance or resistance to torture. But the next team of interrogators, which did not work directly for Haspel, promptly expressed both.

The “consensus” of the interrogation team in Poland was that Nashiri was “compliant” and not “withholding important threat information,” December 2002-era CIA cables cited in the torture report said. Yet thousands of miles away, CTC had difficulty believing it, owing to what the Senate report considers an institutional article of faith that Nashiri must have possessed knowledge of forthcoming attacks. The interrogators cabled back a shot across headquarters’ bow: “[A] decision to resume enhanced measures must be grounded in fact and not general feelings.”

CTC won. It deployed an unnamed officer to the black site to intensify Nashiri’s torture. That officer threatened Nashiri with death, racking an empty pistol near his head and revving a power drill while, the CIA inspector general’s report noted, Nashiri “stood naked and hooded.” Even though the other interrogators considered Nashiri to have been cooperating, the CTC-dispatched officer made what the CIA’s own inspector general understood were rape and death threats: “We could get your mother in here,” and “we can bring your family in here.”

By late January 2003, Nashiri’s treatment was too much for an unidentified agency official whom the Senate torture report describes as the CIA’s chief of interrogations. In an email to colleagues titled CONCERNS OVER REFINED INTERROGATION PLAN FOR NASHIRI, the interrogations chief talked about quitting. A man whose presence, the Senate report found, would prompt Nashiri to “tremble in fear” believed the treatment went too far.

“It is the assessment of the prior interrogators that [al-Nashiri] has been mainly truthful and is not withholding significant information. To continue to use enhanced technique[s] without clear indications that he [is] withholding important info is excessive and may cause him to cease cooperation on any level,” wrote the official, who called the torture program “a train wreak [sic] waiting to happen and I intend to get off the train before it happens.” The CIA tortured Nashiri for years before sending him to Guantanamo Bay in 2006, where he remains.

It is unknown whether Haspel was involved in the post-Thailand debate over Nashiri. During the crucial years of 2003 and 2004, the height of the program’s operational tempo, very little is known, and the CIA has publicly acknowledged even less, about Haspel’s specific involvement.

In 2014, when it wasn’t controversial to say so, former CIA top attorney John Rizzo wrote in his memoir that she “ran the interrogation program.” In 2018, a the day after The Daily Beast reported on that—with an on-record quote from Rizzo standing by his account—he suddenly denied the accuracy of his own words.

Last year, attorneys for contract interrogators sought unsuccessfully to depose Haspel in a lawsuit brought by men who survived the torture program, joined by the relatives of one who didn’t. None of those men were kept in the Thailand black site, suggesting that Haspel had a higher-level vantage of their torture—she was “centrally involved,” the contractors’ attorney claimed.

The harm Nashiri experienced from his torture did not end with his torture. Piette said he “clearly suffers from PTSD,” though classification limits Piette’s ability to talk about how that manifests itself. “It’s trust issues, his interpretation of events. The way he interprets events is through the filter of what happened to him, how that affected not just his psychology but straight-up brain physiology,” Piette said.

Nashiri, in other words, has cleared the Justice Department’s 2002 threshold, upon which the CIA relied, that psychological harm had to last “for months or even years” to be illegal torture.

‘SHE SHOULD HAVE FOUGHT BACK’

Only after Haspel became deputy director under Trump in February 17 did her official cover lift. (The contractors had originally sought to depose her under the name “Gina Doe.”) With her biography an official secret, and the risk of CIA selectively declassifying it to secure her confirmation, a host of Democratic senators and human-rights groups has demanded robust public disclosure.

It hasn’t happened. The White House last week committed to providing secret documents about Haspel to only to senators, who are barred from discussing them publicly. The final tranche came to Capitol Hill on Monday. At least one senator who opposes Haspel—and who has warned that even more disturbing aspects of her record remain unknown—was unimpressed.

“I have reviewed the classified materials and nothing I’ve seen has changed my assessment: if it were not for a cover-up by the CIA, Gina Haspel could not win confirmation,” Sen. Ron Wyden, an Oregon Democrat on the intelligence committee, told The Daily Beast on Tuesday.

“If this secret nomination process goes ahead, it will be an out-and-out abandoning of the idea that Congress oversees nominees, and will set a terrible precedent that we’ll see over and over again.”

Haspel’s agency defenders say that her involvement in torture must be understood in the crucible of 9/11. She took “the most demanding and least rewarding assignments in the War on Terror,” ex-CIA official Bennett said in March, because Haspel “felt it was her duty during the time of greatest anxiety and uncertainty for the American people in the immediate aftermath of 9/11.”

Piette, the former Navy SEAL now representing Nashiri, says he can understand making mistakes during the “bad time” shortly after 9/11. “But we shouldn’t have anyone rewarded for those mistakes. We shouldn’t redefine someone’s mistakes as evidence of success. That’s where the danger to the rule of law comes in. It’s shifting the window, normalizing things that shouldn’t be normalized.” Perhaps, he said, Haspel’s nomination was “just a symptom” indicating that the normalization of torture has already occurred.

“A lot of people in the CIA would probably agree that they should never have been in the business of detentions and interrogations,” continued Piette. “Forcing them to shift that mission is part of the problem. But that is the point when she should have fought back. Other people did. She just didn’t.”