Daniel Levin, you'll remember, is the former acting assistant attorney general who submitted himself to waterboarding because he was so troubled about the question of whether it constituted torture (the White House insisted it does not). The White House later blocked his appointment. A friend watching Levin's testimony now to the House Judicary Committee hearing notes: "Levin just said, in essence, that anyone who thinks waterboarding was used only for a total of three minutes on detainees should go back and learn more. i.e. that is inaccurate and wrong, though he couldn't say very much more."

Update: In a further observation on today's House Judiciary Committee hearing, this friend notes:

Stunning. Levin's explanation of the infamous Footnote 8 from his December 2004 opinion repudiated the notion that his own opinion results in support for all the interrogation techniques that had been in use. That is a famous celebratory point from conservatives, even including really thoughtful folks like Jack Goldsmith. But now Levin is saying that's not what he intended. Instead, his point was that substituting his arguments for the previous arguments that had been used would not have resulted in different conclusions by the authors of those previous arguments. That is, those arguments would have concluded the same. But Levin repudiated the notion that his own opinion supported all the existing interrogation techniques at the time. That is truly stunning.

And in fact, it undercuts, to some extent, one of the central contentions of Goldsmith's excellent book, which was that [John] Yoo's executive overreach was utterly unnecessary. In a sense that remains the case, but only if one continued to buy into other problematic aspects of Yoo's views, which Levin evidently repudiates. In other words, Levin's new opinion did cause alterations in the actual specific techniques that could be used in interrogation. And in fact I believe Levin suggested as much in his opening statement as well.

More below the fold:

Here's the first passage [of Levin's testimony] alluding to footnote 8, though it's not explicit, that comes later in the transcript: [Rep. Jerrold] NADLER: OK.

Now, John Yoo has written that the December 2004 replacement opinion you drafted was done "for appearance sake," in quotes, and that, quote, "No policies or interrogation techniques changed as a result of the withdrawal of the torture memo," close quote.

Mr. Yoo has also said that, quote, "The OLC's reversal was pure politics," unquote.

NADLER: Now, do you agree that nothing changed as a result of your 2004 memo?

(CROSSTALK)

NADLER: Do you agree that the 2004 memo you authored was pure politics?

LEVIN: I certainly don't agree it was pure politics. And I don't think it's accurate that nothing changed as a result of the change in legal analysis.

NADLER: What do you think was the change?

LEVIN: I'm sorry?

NADLER: How would you characterize the change?

LEVIN: Well, unfortunately, I'm not authorized to discuss certain matters. But I believe it is the case that there were certain changes in practices as a result of the change in legal analysis.

NADLER: So as a result of the change in your memo, you think there were changes in practices. That means required changes in interrogation policies?

LEVIN: I believe that's the case, sir. Yes, sir.

Here's Daniel Levin's opening statement (as printed here and with some extra comments as delivered below):

LEVIN: Thank you for inviting me to testify today. As you can tell, since leaving government in 2005, I've avoided making any public statements on these matters. And, to be perfectly honest with you, I'd rather be keeping that record intact.

But I do believe that a public discussion and debate of the legal issues involved and of the process by which legal opinions were issued and relied upon is important. [...]

It's also important, frankly, to be precise about what you mean by torture. There's a definition under U.S. law where Congress has defined the term, although using words that I believe are very hard to apply.

There's a different definition, or, more accurately, definitions under international law, the Convention Against Torture being perhaps the most prominent.

The definition under U.S. law and under the convention differ in significant respects, in particular when it comes to the nonphysical forms of torture.

LEVIN: There's also the colloquial use of the term, which I believe differs from all these definitions.

And let me apologize for any disruption my daughter causes.

(LAUGHTER)

She's -- but I wanted to bring along her along.

And there are the Geneva Conventions, which use different terms, in addition to torture, but which certainly prohibit torture and much more.

This emphasis on precision and the terms used and the questions asked may sound overly lawyerly. And I suppose, in some sense, it is. But we are talking, here, about legal questions that are being analyzed by lawyers giving legal advice.

And I think that raises one of the most important issues in this area. I think it's critical to remember that the legal analysis should begin and not end the discussion of whether to do something.

If something is illegal, then obviously it's not an option. You simply can't do it. But if it's legal, then it's only that, an option. And there should be a powerful discussion about whether it's a good idea.

And Philip Zelikow gave an interesting talk about this, and I agree with him that, in this area in particular, too often the legal analysis replaced the policy analysis. And the question tended to become, simply, is it legal, and, if so, we'll do it.

I think that may have been understandable in the immediate aftermath of 9/11, but as time went on, it became increasingly clear that many of the steps we were taking, even if legal, had significant costs, and costs which might well outweigh any benefits we were receiving.

LEVIN: And this is just my personal view, but I think that we in the government were sometimes too slow to recognize some of those costs and adjust our policies accordingly. [...]

I'd like to make two final points.

First, there's been reporting about certain steps I may have taken in working on opinions in this area, and some people have said some very flattering things. Some have said some not so flattering things as well.

I'm not authorized to discuss that matter, but I can say that while it's always nice to have nice things said about you, they're completely undeserved.

And I don't say that out of any false sense of modesty. The simple fact is I did nothing that thousands and thousands of members of our military have not done during training. I simply took the steps that I felt I needed to take in order to do the work I was privileged to be assigned, and I deserve no particular credit for that. [...]

I'd be happy to try to answer any questions you would have, but 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. And 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.

Postscript: I think it's striking that Levin brought his child to watch his testimony, which he seemed to be under some constraints about providing. Unlike John Yoo, former top Pentagon lawyer William Haynes, Alberto Gonzales and so many others, history is likely to treat Levin as honorable, and this will mark one of the events that can explain why he did what he did, even at the cost of his job in the Bush administration's Justice Department. As Philippe Sands and others suggest, in the years to come, even when we're not expecting it, who knows if there will be war crimes charges brought against some of the officials who seemed so willing to do what it took to advance their careers just a few years back.

And what is Levin suggesting about the "three-minute" simulated drowning being inaccurate? Is he suggesting other administration officials perjured themselves? Or that the procedure itself is administered differently? Jonah Goldberg thinks he has the answer - it was five minutes, according to Goldberg. (Unlike Levin, presumably Goldberg not willing to put his money where his mouth is, so to speak?) And is that right? And where did "three minutes" come from anyhow? From former CIA official John Kiriakou?

More from former Justice Department Office of Legal Council official Marty Lederman: "In previous posts on this blog, I have been both highly complementary of much of Dan Levin's work at 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. ..."

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.

By contrast to Levin, see this WP profile on former Pentagon lawyer William Haynes, apparently at a lawyer's direction experiencing profound memory loss in his testimony to the Senate Armed Services committee Tuesday. Post: "It was the most public case of memory loss since Alberto Gonzales, appearing before the Senate Judiciary Committee, forgot everything he ever knew about anything. And, like Gonzales, Haynes (who, denied a federal judgeship by the Senate, left the Pentagon in February for a job with Chevron) had good reason to plead temporary senility. [...] In two hours of testimony, Haynes managed to get off no fewer than 23 don't recalls, 22 don't remembers, 16 don't knows, and various other protestations of memory loss. It was an impressive performance, to be sure. But let's see him try to do that with a hood over his head, standing on a crate with wires attached to his arms."

Posted by Laura at June 18, 2008 03:14 PM