Daniel Levin, a former top official in Bush’s Justice Department, isn’t exactly a household name, but his story is worth considering. As the acting head of the Justice Department’s Office of Legal Counsel in 2004, Levin recognized interrogation techniques approved by the Bush administration were pushing the legal envelope, and became so concerned about waterboarding that he experienced it personally so he could report on its application.
Not surprisingly, Levin concluded that waterboarding is torture, and sought to advise his superiors. He was rewarded for his efforts with a pink slip.
Levin … concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use.
The administration at the time was reeling from an August 2002 memo by Jay Bybee, then the head of the Office of Legal Counsel, which laid out possible justifications for torture. In June 2004, Levin’s predecessor at the office, Jack Goldsmith, officially withdrew the Bybee memo, finding it deeply flawed.
When Levin took over from Goldsmith, he went to work on a memo that would effectively replace the Bybee memo as the administration’s legal position on torture. It was during this time that he underwent waterboarding.
In December 2004, Levin released the first of two memos, explaining, among other things that torture, including waterboarding, is illegal. This did not sit well with Alberto Gonzales, who forced Levin to add a footnote — the revised memo did not make the administration’s previous opinions illegal. (“Just because we embraced illegal techniques before doesn’t mean we were wrong.”)
Levin was preparing a second Justice Department legal memo, outlining tighter controls on specific interrogation techniques, but never got a chance to finish it. Alberto Gonzales became the Attorney General and Levin was forced out of the Justice Department. He was branded “too independent” and “someone who could (not) be counted on” — Levin was not, in other words, a loyal Bushie, so he had to go.
Marty Lederman finds it all hard to accept.
I have been reluctant to say such things before now, but those stubborn facts keep adding up, and, if the Greenburg story is accurate, it’s hard to resist the simple conclusion that Gonzales and others were engaged, not only in an effort to completely distort the proper function of OLC (see generally Jack Goldsmith’s book), but also in a conspiracy to violate the Torture Act and the War Crimes Act (which at the time prohibited such conduct). When responsible, thoughtful lawyers — loyal conservative, Republican lawyers, mind you — told them that what they had approved was unlawful, they got rid of the lawyers, and concocted alternative, and patently ridiculous, legal advice (and rewarded the lawyer who was willing to sign his name to that advice).
I’m trying to avoid hyperbole, honest. But how is this not a huge scandal, in form (but certainly not in degree) directly analogous to what we, at Nuremburg, prosecuted German Justice Department lawyers for having done? (And no, I am not saying that the crimes committed here are analogous to those approved by German lawyers, so please don’t go there in the comments thread.)
During a “special comment” on MSNBC’s Countdown last night, Keith Olbermann was thinking along the same lines.
Waterboarding, [Daniel Levin] said, is torture. Legally, it is torture! Practically, it is torture! Ethically, it is torture! And he wrote it down.
Wrote it down somewhere, where it could be contrasted with the words of this country’s 43rd president: “The United States of America … does not torture.”
Made you into a liar, Mr. Bush. Made you into, if anybody had the guts to pursue it, a criminal, Mr. Bush.
Waterboarding had already been used on Khalid Sheik Mohammed and a couple of other men none of us really care about except for the one detail you’d forgotten — that there are rules. And even if we just make up these rules, this country observes them anyway, because we’re Americans and we’re better than that. We’re better than you.
And the man your Justice Department selected to decide whether or not waterboarding was torture had decided, and not in some phony academic fashion, nor while wearing the Walter Mitty poseur attire of flight suit and helmet.
He had put his money, Mr. Bush, where your mouth was.
So, your sleazy sycophantic henchman Mr. Gonzales had him append an asterisk suggesting his black-and-white answer wasn’t black-and-white, that there might have been a quasi-legal way of torturing people, maybe with an absolute time limit and a physician entitled to stop it, maybe, if your administration had ever bothered to set any rules or any guidelines.
And then when your people realized that even that was too dangerous, Daniel Levin was branded “too independent” and “someone who could (not) be counted on.”
In other words, Mr. Bush, somebody you couldn’t count on to lie for you.
So, Levin was fired. Because if it ever got out what he’d concluded, and the lengths to which he went to validate that conclusion, anybody who had sanctioned waterboarding and who-knows-what-else on anybody, you yourself, you would have been screwed.
And screwed you are.
Olbermann added that this presidency “has now devolved into a criminal conspiracy to cover the ass of George W. Bush.” If there’s a more charitable interpretation of events, it doesn’t come to mind.