Balkinization  

Sunday, November 04, 2007

How Low Can They Go?

Marty Lederman

Last evening a friend asked whether I was going to blog about the really rather unbelievable story Jan Greenburg broke yesterday about Daniel Levin and waterboarding. (Unbelievable in the sense that, when someone described it to me, I assumed he was kidding -- trying to come up with something that would top the Ashcroft hospital story to see if he could get a rise out of me. I obviously have not learned my lesson that in this Administration, when it comes to the law, one should assume that nothing is beyond the pale.)

I responded that I really have nothing to add -- The story speaks for itself, and any commentary ought to be superfluous. Moreover, at this point, what difference does it make? The Democrats will assent to our new American torture regime no matter how grotesque and outrageous the story gets, no matter to what degree the Department of Justice's integrity and independence were compromised.

In short, the story is this: Jack Goldsmith left OLC before he could complete the "replacement" torture opinion. Daniel Levin succeeded him. OLC had previously opined that waterboarding was lawful. Levin apparently (and understandably) was a bit skeptical -- so much so that he asked the military to subject him to waterboarding! (This is not your parents' OLC -- can you imagine what it would take for anyone after this to want to be Assistant Attorney General there?) Naturally, Levin concluded that the procedure was, well, torture, at least "unless performed in a highly limited way," and under guidelines the Administration had failed to implement. (No doubt Levin did suffer severe physical suffering, and that's in a situation far removed from being a detainee.)

At this point, Alberto Gonzales nevertheless insisted that Levin include in his December 30, 2004 opinion the footnote (No. 8) about how the legal analysis did not affect all previously approved techniques! It's not clear why Levin assented to this -- it's an outrageous and inappropriate thing for a White House Counsel to do -- but the footnote was included. (I should add that the December 2004 Levin opinion also included an analysis of "severe physical suffering" that is entirely unpersuasive and that is the basis for the counterintuitive (i.e., patently wrong) conclusion that waterboarding is not torture. I've criticized that portion of the Levin memo previously. Now I wonder whether that, too, was the work of Alberto Gonzales and David Addington, rather than Levin himself, and whether Levin's planned follow-up memo (see below) might have called that analysis into question.)

Levin then set about to write another opinion, one that would cut back on the approved techniques (and that would, at a minimum, repudiate or temper the previous OLC advice on waterboarding).

Unfortunately, at this point Gonzales was confirmed as AG -- and he fired Levin, replacing him with Steve Bradbury, who was more than happy to give Gonzales the legal advice they wanted. (No word -- yet -- on whether Bradbury was waterboarded.)

What can one add to this? And what does it tell us that the story has been met with a collective yawn from the rest of the media? We have become so accustomed, so inured, to what would once have been unthinkable, that a story such as this, right out of a bad B-movie, is seen as business-as-usual, dog-bites-man.

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 functioning of OLC (see generally Jack Goldsmith's book), but also in a conspiracy to violate the Torture Act. When responsible, thoughtful lawyers -- loyal conservative, Republican lawyers, mind you --- told them that what they had approved was unlawful, they insisted that the lawyers change their advice, and then got rid of the lawyers and hired another willing to provide alternative advice that no one could have sincerely believed (and then 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? [More heated remarks removed upon calmer reflection.]

One other thing: I am not the only person who thinks this is so outrageous. Think about who must have leaked this story to Jan Greenburg. I am reliably informed by those who know him that it wasn't Levin. (Greenburg notes that he refused to comment for the story.) But it must have been someone else high up in DOJ at the time who undoubtedly does not relish the idea of revealing confidences, but who was aghast at what transpired, and sickened when Judge Mukasey and the Senate this week effectively whitewashed and ratified our torture regime.

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