By Contrast, Here's an Administration Attorney Who Takes His Public Service Seriously -- Important Revelations from Dan Levin

Marty Lederman

In previous posts on this blog, I have been both highly complimentary of much of Dan Levin's work on the torture question while he was head of OLC (see here and here), and, as to one specific aspect of Levin's analysis, sharply critical. Whatever our substantive differences might be, however (and I imagine there are many), it is hard to escape the conclusion that Dan Levin was an OLC attorney of great integrity, honesty, and rigor -- that he took his public service extremely seriously. Which is why he was fired.

Levin's testimony before the House Judiciary Committee today was, truly, the polar opposite of Jim Haynes's inexcusable performance yesterday. This is fully reflected in his prepared statement. Levin is measured, respectful of the congressional role and the importance of such oversight hearings, self-effacing, courteous, as forthright as he can be in light of the restrictions placed upon him, direct and unambiguous, generous in his praise and gratitude for those who assisted him at DOJ, fully committed to the best practices of OLC (including widespread consultation and internal debate), and willing to fully accept responsibility for, and to defend the substance of, the decisions that he made.

Although the Committee barely took advantage of Levin's presence (they really ought to take a page from the much more sustained investigation and pointed questioning of the Senate Armed Services Committee yesterday -- and from the consistently sharp and effective use of time by Rep. Artur Davis on their own committee), Levin's integrity shined through in his responses to questions, as well, which can be viewed in this C-SPAN video. Even though he was severely (and in my view unjustifiably) constrained in what details he could offer the Committee, Levin tried his best to be direct and responsive to the questions, such that an observer might actually learn things about what happened at DOJ (fancy that).

And learn things we did. Despite the truncated nature of the hearing, Levin testified about several new and important details:

First, as Laura Rozen has already reported, Levin added a codicil to his opening statement that was not included in his written submission, and it's a doozy:

If I could just add one point. As a witness sitting here in a hearing, I feel like I have some obligation to say something about this. I'm very limited, I think, in what I can say. But if the subcommittee has been informed that there was a total of three minutes of waterboarding, I would suggest the subcommittee should go back and get that clarified, because that I don't believe is an accurate statement.

Wow.

Second, when asked "Mr. Levin, . . . do you know of any Administration that has so consistently advanced positions that are at odds with mainstream and judicial opinions regarding the scope of its powers?," he replied:

"I don't."

Third, Levin testified that he was involuntarily pushed out of DOJ, and strongly suggested in response to questions from Rep. Davis that there was no reason for that adverse employment decision other than that the Administration did not appreciate his legal advice concerning issues in the war on terror.

Finally, and most importantly, Levin disabused the Committee and the rest of us of the widely held notion that his December 20, 2004 Opinion, despite its immense differences from the John Yoo Opinion it replaced, did not have any practical, operational effect on the CIA's interrogation practices.

Levin testified that, in fact, his memo did lead to changes in such practices; that anyone who would have relied on the most extreme statutory analysis of the Yoo memo would have violated the law; and that if anyone had acted in reliance upon the defenses (necessity, "self-defense," and the Commander in Chief override) included in Yoo's memo, in Levin’s view they might also have violated the law.

What about footnote 8 of the Levin memo, which led all of us to think that the Levin memo had not altered the status quo with respect to specific CIA interrogation techniques approved in previous OLC memos? That footnote stated that notwithstanding the 2004 memo's "various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum."It was previously reported that Alberto Gonzales insisted on the inclusion of that footnote. (Levin today testified that the White House had also spoken to him about the footnote, but was unable to convey the nature of the discussions.)

Today, Levin explained that the footnote did not mean what we have all understood it to mean -- namely, that Levin was signing off on the legality of all previously approved CIA techniques. Instead, he merely intended to convey that the persons who wrote those previous memos would not have altered their own bottom lines, even if they had used Levin's version of statutory analysis: If one replaced the statutory analysis in the previous OLC opinions regarding specific techniques with Levin’s statutory analysis, he explained, the attorneys writing those previous opinions would not have come to a different conclusion; but footnote 8 "did not mean, as some have interpreted -– and . . . this is my fault, no doubt, in drafting -- that we had concluded that we would have reached the same conclusions as those earlier opinions did. We were in fact analyzing that at the time and we never completed that analysis."

Why wasn't the new analysis of the legality of the CIA techniques completed? Because the Administration replaced Dan Levin with the (apparently much more compliant) Stephen Bradbury.

There is much more explosive information to come, in Jane Mayer's forthcoming book, about the Levin tenure at OLC, his December 30, 2004 memo, and footnote 8 -- including an answer to my question of why Levin acceded to Gonzales's request that the footnote be included.

Until then, we should simply be grateful for today's testimony, and hopeful that there are further occasions to hear from this important witness, perhaps when he afforded more liberty to fill in some further blanks in the story.
Posted 8:34 PM by Marty Lederman [link]