Balkinization  

Wednesday, June 18, 2008

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.

Comments:

On footnote 8, 5 will get you ten the answer is that the President or Cheney insisted it be put in there.

Best,
Ben
 

Your item "First" (in bold) is somewhat confusing. You say that Haynes added a codicil, but in context it seems like Levin might be meant. Laura Rozen's post to which you link says Levin.
 

Thanks for the catch, Mark; I'm frazzled by all the hearings!
 

... they really ought to take a page from the much more sustained investigation and pointed questioning of the Senate Armed Services Committee yesterday ...

Fully agree, that hearing yesterday was exceptional. Colonel Beaver (chief legal person at Gitmo) was a particular treasure, although no surprise there, hopelessly cornered animals strike back any which way they can which in her case was to start talking recklessly. And talk she did including about FBI never having any (legal) problems with her "enhanced techniques", real conditions in Abu Ghraib, routine beating of detainees to death in Bagram, Afghanistan, the internal culture of military legal establishment, etc, etc. A major eye opener for me at least.

--

About the whole thing.

I'm growing ambivalent, on the one hand this country should be extremely proud that these things are publicly aired at all, no nation would go that far even in this day and age. My hat off to Congress and Sen. Levin Committee in particular.

On the other the total willingness of this government to torture and to abuse and its total disregard for human dignity or human rights has really no parallels in any modern western country.

How us!


--

Minor aside - could good people of Alabama do this country a favor and replace Mr. Sessions with somebody else one day please. Anybody, the gentleman is a major embarrassment even by GWB standards.
 

Minor aside - could good people of Alabama do this country a favor and replace Mr. Sessions with somebody else one day please. Anybody, the gentleman is a major embarrassment even by GWB standards.

# posted by wg

Gad, I was yelling not at Sessions but at the so-transparent Lieberman. And Lindsay Graham pissed me off also.

I wasn't impressed by the Admiral. But among the few heroes in this mess is Alberto Mora. His statement lays out the criminal case accurately, completely, and succinctly on the issue of torture and war crimes.

Gen. Taguba is also still making waves needing to be made.
 

Can a future administration allow/force these witnesses to testify to Congress?

Can the current torture memos be replaced and then made public?
 

I find it telling that Bart does not participate in these threads where evidence is actually revealed by credible sources.
 

(re the comment above) I rarely agree with Sen. Graham but he often forces me to reexamine my own positions thus helping me to stay honest and b) Congress wouldn't be what it is supposed to be if we agreed with everybody there so Sen. Graham belongs there very much. Lieberman I ignore, not worth bothering with, no integrity there, the problem with Sessions is there is nothing there of any substance to agree or disagree with. I realize country bumpkins have the right to representation too but he is a little bit too much (or rather too little).
---
A a few centuries back A. de Tocqueville said something that seem to fit well even today: "The greatness of America lies not in being more enlightened than any other nation, but rather in her ability to repair her faults."
---
So let the great repair begin, we are extremely lucky to have a few to fill the large shoes of previous generations: Senators Leahy, Schumer, Whitehouse and others on the Judiciary and Levin, Graham, McCaskill and Reed on the Armed Services. Give your thanks to the Almighty for that.
--
Who cares about dePalma, let him simmer in his own juices for a while.
 

Eric:

The last time I participated on one of Marty's "torture" comment threads, he deleted it.

In any case, the fact that one lawyer disagreed with another on the subject of what constitutes unlawful torture is hardly earth shaking news. Disagreement is to be expected because there is no objective definition for the terms here.

This inconsequential bit of Dem political theater on "illegal torture" reminds me of all the previous bits of theater on "illegal spying on Americans." It is almost comical the way the Dem Party pushes your buttons with these charades and you excitedly post thousands of words about the implications of this or that oversight hearing.

In fact, the Dem Party lied to you about maintaining FISA to stop "spying on Americans." Today, your Dem Congress caved and agreed to gut FISA to allow further "spying on Americans" - just as I predicted months ago.

How much would you like to wager that the Dem Party is also lying to you about doing anything substantive concerning "illegal torture" or terrorists? Your Dem Congress also has every intent to allow the CIA to continue to use coercive techniques to break terrorists.

Don't you Dems ever get tired of playing Charlie Brown to the Dem Party's Lucy?

You can go ahead and delete the thread now Marty.
 

"Bart" DeDicta:

In any case, the fact that one lawyer disagreed with another on the subject of what constitutes unlawful torture is hardly earth shaking news.

You misspelled "consiglieres/lackey/enablers in the employ of the party in question".

If I rob a bank, my shyster's opinion that what I did was perfectly legal is hardly persuasive authority.

The fact that a large number of lawyers even within the maladministration and the military were appalled by the "torture memos" should give pause to the notion that this was just a "disagreement of opinion".

In fact, it's hard trying to fnd a lawyer that will defend such outside of the small cabal of lawyers intimately involved with setting up or perpetuating the project (notwithstanding "Bart" here, but his qualifications are hardly of note, particularly compared to many fine lawyers here who have been involved with this stuff as part of their actual jobs). And as noted elsewhere, when one group of lawyers were going to do an independent analysis of whether this was legal, they were shut down.....

Cheers,
 

The last time I participated on one of Marty's "torture" comment threads, he deleted it.

Baghdad, considering that you censor posts over on your blog, it's really time you stopped whining about how this blog is run.
 

The last time I "participated" on one of Marty's torture comment threads, he deleted it.

There, fixed that for you.

I don't know that Marty has ever deleted your comments, do you have any evidence? Regardless of whether it happened or not, certainly your practice of bad faith debate could cause people to discount your posts, don't you think? And I mean "bad faith" in the classic sense, where you do not seek to engage understanding and you change the subject or fall silent rather than concede any point.
 

"Bart"'s happy that the Constitution is being shredded and the laws of the United States are violated with impunity as long as his party "wins":

In fact, the Dem Party lied to you about maintaining FISA to stop "spying on Americans." Today, your Dem Congress caved and agreed to gut FISA to allow further "spying on Americans" - just as I predicted months ago.

A perfect candidate for the coveted brown shirt. It's all about "power".

Don't you Dems ever get tired of playing Charlie Brown to the Dem Party's Lucy?

Yes. That's why I'm going to do all I can to try and send the so-called "Blue Dogs" down to defeat. We have enough Rethuglicans around to last a detainee's lifetime, thank you.

Cheers,
 

wg --

"I rarely agree with Sen. Graham but he often forces me to reexamine my own positions thus helping me to stay honest and b) Congress wouldn't be what it is supposed to be if we agreed with everybody there so Sen. Graham belongs there very much."

My comment isn't about the fact that Congress, intended to be democratic, means debate, contention, "gridlock," and compromise. My problem with Graham is specific: he is (former) JAG, and yet has been a (careful) booster of the Bushit criminal enterprise, in all particulars, including defense of the kangaroo "court" system established by that enterprise, and of the denial of habeas to the "presumed innocent" detainees. And of the torture policy.

Compare and contrast his views and actions in those regards with the statements by Powell's former chief of staff Wilkerson -- especially as concerns the consequences for the US, and the US military, in the world, of such as Abu Ghraib and Guantanamo, and the violations and denials of human rights supported and defended by Graham, who pretty much gave up trying to appear for rule of law before political party/ideology.

I respected him initially; but not anymore for the foregoing reasons.

"Lieberman I ignore, not worth bothering with, no integrity there, . . . ."

My problem with Lieberman is that he can't open his mouth without at every opportunity propagandizing, demonizing, name-calling abstract characterizations which can be taken as applying to everyone who "fits" his hate-speech profilings.

". . . . the problem with Sessions is there is nothing there of any substance to agree or disagree with."

I prefer a Republican who has no substance, to one who has apparent substance. :)

I don't pretend that necessarily makes sense; but it is about Republicans. (BTW: did you note that Feith, learning that Wilkerson was to testify at the same scheduled hearing, turned tail and ran to do a spot on right-wing radio with Bill Bennett?)

"---
A a few centuries back A. de Tocqueville said something that seem to fit well even today: "The greatness of America lies not in being more enlightened than any other nation, but rather in her ability to repair her faults."
---
"So let the great repair begin, we are extremely lucky to have a few to fill the large shoes of previous generations: Senators Leahy, Schumer, Whitehouse and others on the Judiciary and Levin, Graham, McCaskill and Reed on the Armed Services."

Reed of RI is excellent. And Whitehouse (also of RI) is extraordinary.

Otherwise: does that mean we can now get back to nailing Yoo for his non-academic exercises in non-academic toture memoes for which he's been defended on the inapplicable grounds of academic freedom because academic freedom -- though inapplicable -- has greater value than the lives of detainees who, never having been adjudicated guilty of anything, were murdered -- freedom from the constrains of being alive -- thanks to Yoo?
 

Don't forget, folks, Act Blue. I have been.

Cheers,
 

being obnoxious and rude to one's hosts is hardly behavior consistent with having been trained to be "an officer and a gentleman" and/or appends Esq. to their name ..imo

since i'm certain you were trained better elsewhere ..[taking you at your word you really were an Army infantry officer] what makes you believe it's acceptable behavior here .. better yet.. do you think it's becoming ?

pardon me but...imo.. your field decorum needs some introspective review ..
 

eric:

Marty has every right to control his own threads and he is free to delete them at his discretion. I have no objection to his doing so. You asked why I wasn't posting here and I provided the answer.

I think it is a bit unfair to accuse me of debating in bad faith by not responding to points. To the contrary, I have been accused on more than one occasion of attempting to monopolize some threads simply by answering the questions posed to me.

Finally, like others here, I offer a point of view. I do not expect you to concede to my opinions, so I have no idea why I should concede to yours in order to be considered to have debated in good faith. Folks who expect to "win" internet debates are naive or foolish.
 

Baffle-Bart barks --

"I think it is a bit unfair to accuse me of debating in bad faith by not responding to points."

You have two options you've made clear to everyone here: either "debate" in bad faith, or be silent.

There is a third option -- truthfulness -- but you lack that capacity.

"To the contrary, I have been accused on more than one occasion of attempting to monopolize some threads simply by answering the questions posed to me."

Few questions of you are other than rhetorical because everyone knows you are not capable of truthfulness.

"Finally, like others here, I offer a point of view."

A "point of view" repeatedly shown to be a lie, and therefore repeatedly refuted, its not a "point of view"; it is a LIE.

"I do not expect you to concede to my opinions, . . . ."

An "opinion" is at least plausibly true. Your lies are lies, not "opinions".

". . . . so I have no idea why I should concede to yours in order to be considered to have debated in good faith."

Exercise your other option, as listed above.

". . . . Folks who expect to "win" internet debates are naive or foolish."

Purported lawyers who "debate" in bad faith do so precisely because they expect to "win" by that means.

We agree that you are a fool wholly naive as to the real damage to oneself caused by lying.
 

Free translations from Republican into English:

"I have been accused on more than one occasion of attempting to monopolize some threads simply by answering the questions posed to me."

<*hmmmmmm....bzzzzz...clack*>

"People keep pointing out that my method or argument is assertion by repetition ad nauseam."

Cheers,
 

Who cares about dePalma, let him simmer in his own juices for a while.

I would prefer not to care about Bart. But I respond to him because he is such a persistent advocate for criminality, lawlessness and authoritarianism. As Arne often notes, thank goodness he represents a small minority of "dead-enders."
 

"Who cares about dePalma, let him simmer in his own juices for a while."

"I would prefer not to care about Bart. But I respond to him because he is such a persistent advocate for criminality, lawlessness and authoritarianism. As Arne often notes, thank goodness he represents a small minority of "dead-enders."

"# posted by mattski"

Someone should care about Bart (I'm not volunteering), as he clearly doesn't. He is a "house divided against itself": he defends the exact same criminality and depravity in himself that he condemns in others [who are not also Republican].

It is one thing to defend a client. It is quite another to defend criminality and lawlessness.
 

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