This Tells You Basically Everything You Need to Know . . .

Marty Lederman

. . . about legal interpretation in the Bush Administration:

When Jay Bybee was confirmed to the federal bench in early 2003, Attorney General John Ashcroft sent no fewer than five names to the White House as possible replacements to be Assistant AG for the Office of Legal Counsel:

Adam Ciongoli, Paul Clement, Brett Kavanaugh, Dan Levin and Ed Whelan.

From the White House's perspective, none of these five very accomplished lawyers -- each of whom, I think, it is fair to describe as very conservative and committed to the Bush Administration -- was acceptable, because none was sufficiently reliable. (That is to say: Each might have been expected to think for themselves and interpret the law in ways that diverged from the John Yoo opinions.)

The impasse led to the hiring of Jack Goldsmith, who the White House assumed would be a "safer" choice. Oops.

Jack lasted eight months, during which time he repudiated a series of earlier OLC opinions concerning the war on terror. He was succeeded by Dan Levin, and when Dan began to question the legality of the TSP and the CIA's interrogation techniques, he was jettisoned.

Before he left, Levin issued his replacement torture opinion, on December 30, 2004. Much has been made (including by John Ashcroft this morning in House testimony) about footnote 8 of that memo, which is said to have reconfirmed the legality of the CIA interrogation techniques that OLC had previously approved. But as Levin recently testified, the footnote in question merely indicated that the writers of the 2002 memos -- i.e., John Yoo -- would not have changed their conclusions, even if they had employed Levin's analysis. Levin himself, however, was uncertain about the legality of some of the CIA techniques, and was in the process of reviewing them when he was effectively removed from OLC.

Jane Mayer's new book provides further telling details:

"The footnote [8 of the Levin memo -- the one suggesting that he was approving all the CIA techniques] had a contorted, forced quality. Although few knew it,
there was a reason why." Levin had already antagonized David Addington by adopting the Goldsmith view on the NSA program, and by initiating a reconsideration of whether the CIA interrogation techniques were lawful. At this point, according to Mayer, Alberto Gonzales (then awaiting confirmation as Attorney General) "made clear to Levin that unless he included language in his new legal memo declaring that nothing in the Bush Administration had done in earlier interrogations was illegal, the Justice Department would not accept his opinion." Levin "was worried that unless he gave Gonzales what he wanted, the Bush Administration would scrap his memo, abandoning the whole effort to reform interrogation practices. Under these extraordinary circumstances, Levin agreed to put in the cryptic footnote whitewashing previous practices. He reasoned that if he wrote it carefully enough, it would accurately reflect his thinking."

This is fairly amazing: The White House insisted that OLC include a footnote that would (inaccurately) suggest that the CIA techniques were legal, on the threat that the opinion would not be accepted. (Mayer also notes that the footnote referred only to written OLC advice, not oral -- because Dan Levin had heard rumors that John Yoo had orally approved the use of mind-altering drugs and mock burials, which Levin thought were plainly unlawful.)

Under such pressure, Levin included the footnote, even though he did not believe that the CIA techniques were necessarily lawful, writing the note carefully so that it also could bear his own intended meaning.

To his great credit, Levin then began preparing the follow-up OLC opinion in which he would reconsider the CIA techniques -- at which point he was effectively fired. Mayer reports that Levin warned Gonzales not to choose Stephen Bradbury as head of OLC, because "he won't give you independent advice."

Which they viewed as the best possible recommendation of Steve Bradbury for the job. Nonetheless, they wanted to make sure Bradbury wouldn't be another Goldsmith (or Ciongoli, or Clement, or Kavanaugh, or Levin, or Whelan), so they put Bradbury "on probation," waiting to see if his work product was acceptable before nominating him. Of course, he gave them what they were looking for . . . advice that the CIA could engage many of the previously approved techniques in combination . . . and here we are.
Posted 7:26 AM by Marty Lederman [link]