Trump CIA Pick Leaves Door Open to Waterboarding, More Spying on Americans

Mike Pompeo appeared to reverse course again on harsh interrogation techniques—causing Human Rights Watch to call for him to be stopped in the Senate.

Photo Illustration by Lyne Lucien/The Daily Beast

Some Democrats want to delay the confirmation vote for President Donald Trump’s pick to lead the CIA, after Rep. Mike Pompeo left the door open to returning to harsh interrogation techniques, and collecting massive amounts of American data.

In newly released written answers to lawmakers’ queries, the Kansas Republican says if confirmed, he’ll ask if the CIA feels current interrogation techniques are producing results—and if not, he’ll consider asking for changes. He also says if CIA officers tell him that recent legal limits on data collection, passed after the Snowden leaks, are making it harder for them to do their jobs, he’ll recommend changes there too.

The answer on interrogating detainees appears to be Pompeo’s third position on the matter in as many years. In 2014, he spoke up in favor of harsh interrogation. In his confirmation hearing, he said he’d never ask his officers do something like that. Now, in his written answers, he’s holding the door ajar for re-introducing the controversial methods.

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Harsh interrogation of detainees—along with the collection of American’s data even if they aren’t involved in a crime—are legislative third rails for Democrats, but are unlikely to derail Pompeo’s eventual confirmation with a full Senate vote scheduled for Monday. But they mark the start of battles to come, as the Trump administration seeks to roll back legislation his supporters say has tied their hands in the fight against terrorists.

The delay of the CIA vote and others drew a rebuke from President Trump, who called on “members of the Senate to fulfill their constitutional obligation and swiftly confirm the remainder of my highly qualified cabinet nominees,” in a statement after his Defense and Homeland Security chiefs were sworn in Friday evening.

Sen. Richard Burr (R-NC), the Senate intelligence committee chairman piled on, aiming his ire at an unnamed senator for delaying a Friday vote to confirm Pompeo. “This will leave the CIA without a permanent director in a period of heightened threats to the United States and our interests abroad,” he said, adding that Pompeo’s vote would proceed on Monday. (Democratic Sen. Chuck Schumer from New York asked the Trump administration to keep CIA chief John Brennan on for the weekend until Pompeo could be confirmed, but the new administration refused, Schumer’s spokesman Matt House emailed to The Daily Beast on Friday.)

President Trump said Pompeo was his only pick for the job, in remarks as he visited CIA headquarters at Langley on Saturday. He also accused the “dishonest media” for making it seem like he was feuding with the intelligence community, putting distance between himself and his comments since winning the election, when he blamed intelligence chiefs for allegedly leaking the unflattering and unverified private intelligence report that claimed Russian agents had gathered “kompromat” – compromising material – on him.

“I think it was disgraceful, disgraceful that the intelligence agencies allowed any information that turned out to be so false and fake out there,” Trump said in his first press conference as president election, adding that it was something Nazi Germany would do.

On Saturday, he told the 400 or so CIA officers assembled before the memorial wall for fallen officers that he’s “with you 1000 percent,” adding that “probably everybody in this room voted for me ... because we’re all on the same wavelength.”

Three senators put tough questions to the Trump nominee—former intelligence committee chair California Democrat Dianne Feinstein, Maine Independent Angus King, and Oregon Democrat Ron Wyden.

Feinstein asked if Pompeo thought waterboarding and other “enhanced interrogation techniques” used by CIA personnel like stress positions, forced nudity, slamming detainees into walls or slapping and hitting them constitute torture.

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At his confirmation hearing, Pompeo had said he would “absolutely not” comply with an order from Trump to resume the use of harsh interrogation techniques like waterboarding, considered torture under international law.

“Moreover, I can’t imagine that I would be asked that,” the Kansas lawmaker said. Past CIA directors have said their officers would never agree to return to the Bush-era interrogation program, because though they were told what they were doing was legal at the time, some of those involved were investigated by the Obama Justice Department and are still fighting legal action by human rights and other activist groups.

In his written answers to the Senate Intelligence Committee, however, Pompeo now says he’ll consult with CIA experts as to whether the methods in the U.S. Army Field Manual—the standard that now governs all federal agencies—are sufficient. Or as he puts it, he’ll ask them if the manual is “an impediment to gathering vital intelligence to protect the country.” If the answer is yes, he says he may work with legal experts and congressional oversees to make changes—though he stressed he’d make sure those changes stay “within the law.”

The field manual is up for review next year.

“He left open the possibility that the army field manual could be changed,” said Laura Pitter, a legal expert at Human Rights Watch. The group is calling for senators to reject Pompeo’s nomination. “He was not unequivocal about disavowing torture in the future. Coupled with his expressed support of enhanced interrogation techniques in the past, it leaves open the possibility that he would be open to the CIA carrying out these practices again in the future.”

James Mitchell, a civilian contractor for the CIA who interrogated — and waterboarded — 9/11 mastermind Khalid Sheikh Mohammed (KSM), argues that going beyond the Army Field Manual makes sense with a small handful of hardened terrorists.

“Rapport building didn’t work on KSM,” Mitchell told The Daily Beast in an interview Saturday. Mitchell argues in his book about the program — as former CIA chiefs like ret. Gen. David Petraeus have argued before him — that lawmakers should help the CIA formulate legal techniques “somewhere between waterboarding and the army field manual” to be used in a “ticking time bomb situation,” so that CIA field teams don’t have to.

“The point I would make to the president in a situation where you have credible intelligence that there is going to be another attack, and you have that person in custody, you have to be able to go beyond the manual,” said Mitchell, who is still being sued by the ACLU for taking part in the interrogation program. “Are we going to stand around a big old smoking hole and congratulate ourselves for our moral high ground?”

That’s a point of view Pompeo is likely to take seriously. In 2014, Pompeo had denounced the end of the interrogation program. “President Obama has continually refused to take the war on radical Islamic terrorism seriously—from ending our interrogation program in 2009 to trying to close Guantanamo Bay,” he said in a statement.

Pompeo has similarly argued against the Obama administration’s rollback of the collection of Americans’ metadata, in a response to the leaks of former NSA contractor Edward Snowden. In a January 2016 Wall Street Journal op-ed he co-authored, Pompeo called on Congress to bring back “the collection of all metadata, and to combine it with publicly available financial and lifestyle date in a comprehensive, searchable database.”

While he told senators in the hearing that he knows that’s illegal—and he voted for the current law that trimmed NSA’s collection of such records—he’d recommend changes to that policy if CIA officers tell him their work is being hampered by current law.

“If agency officials inform me they believe the current programs and legal framework are insufficient to protect the country, I would make appropriate recommendations for any needed changes to laws and regulations,” he writes, in a response to a question from Wyden.

“The answers are deeply disappointing to the point of being evasive,” said Human Rights Watch surveillance researcher Sarah St. Vincent. “They suggest that even though he voted for the USA Freedom Act (which curtailed NSA collection of U.S. metadata), he has every intention of pressing the US government to re-adopt mass surveillance.”

Wyden also pressed Pompeo on whether he’d be open to receiving mass amounts of metadata from a foreign government on U.S. persons. Pompeo had carefully said in the hearing that he wouldn’t ask for it, but not that he would reject it if offered.

“Wyden is concerned that Pompeo is open to receiving large amounts of data that would be an end run around the 4th Amendment,” as that may include not only metadata but actual content (like recorded phone calls or emails), St. Vincent said.

While the Kansas Republican’s answers have troubled some Democrats, the former member of the House Intelligence Committee has been welcomed at the CIA, where insiders say initial meetings have gone well.

One answer that may somewhat mollify his Democratic detractors: Pompeo’s newfound understanding of WikiLeaks’ role in Russia’s campaign to influence the U.S. election. Back in July, the lawmaker tweeted that hacked Democratic National Commitee emails posted by the group were “proof that the fix was in from Pres. Obama on down.”

Since then, the Intelligence Community has released its assessment that Russia was responsible for breaking into the DNC’s email system, and for providing those documents to WikiLeaks. In his written statement, Pompeo said the tweet was “not meant as an endorsement of WikiLeaks or its practices, but rather remarked on the content of the material now in the public domain.”

“The tweet was sent in reference to political issues in the middle of a hard-fought campaign,” he added. “Based on additional briefings and information, including the reports released by the Intelligence Community, I now have a much deeper understanding of WikiLeaks and its harmful activities.”

This story was updated 01/21/17 to add President Trump's visit to the CIA on Saturday, comment from former CIA contractor James Mitchell, and to add that foreign intelligence agencies may share content as well as metadata with U.S. intelligence agencies.