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Former Bush DOJer ‘Not Opposed’ to Criminal Investigation


Illustration by: Matt Mahurin

Speaking on the subject for the first time on Tuesday, a former head of the Office of Legal Counsel under President George W. Bush announced that he was not opposed to a criminal investigation of his conduct and the work of his colleagues.

Daniel Levin was acting assistant attorney general in charge of the Office of Legal Counsel after Harvard Law Professor Jack Goldsmith resigned from the post. Although Goldsmith had withdrawn some of the most controversial memos issued by the OLC, the arm of the Justice Department that directly advises the president, many controversial opinions approving extreme interrogation techniques such as waterboarding, stress positions, prolonged sleep and food deprivation, sexual humiliation and confinement in a cramped box with insects remained in effect or were issued again later to justify ongoing CIA or defense department practices. Levin was in charge of the office from 2004 – 2005, just before Steven Bradbury took over in June 2005. Levin is now a partner at the law firm of White & Case.

[Law1]“I personally am not opposed to criminal investigation of my conduct and others during the period in question,” Levin said yesterday at a conference at American University’s Washington College of Law. The conference, titled “The Torture Memos: Lawyers, Ethics and the Rule of Law,” addressed the ethical responsibilities of OLC lawyers during the Bush administration, and whether and how they should be held accountable for authorizing abusive interrogations of detainees in U.S. custody. “Any government employee is appropriately subject to investigation of their conduct while they’re serving in government,” said Levin.

Beginning in 2002, the Office of Legal Counsel issued memos justifying a wide range of extreme interrogation tactics on detainees. Among the most controversial is the one written by John Yoo on August 1, 2002 that defined torture so narrowly as to include only acts that inflict “severe pain or suffering” equivalent to the pain accompanying organ failure or imminent death, or psychological pain that lasts for months or years and results form the threat of imminent death or torture. That memo has been widely criticized, including by former OLC director Jack Goldsmith, who withdrew the memo and later called it “deeply flawed” and “sloppily reasoned”. In a keynote speech yesterday, Sen. Sheldon Whitehouse (D-R.I.) argued, as he has several times before, that to define torture in that manner and to approve the use of waterboarding on detainees was to ignore the most obvious and relevant legal precedents, suggesting an intent to evade rather than apply and analyze the law in good faith.

Most of the other panelists, including Nan Aron, president of Alliance for Justice, and Georgetown Law professor David Luban, agreed that they believe there is sufficient reason to believe wrongdoing occurred to justify an investigation.

Stuart Taylor, on the other hand, the National Journal columnist and Newsweek contributing editor, said on Tuesday at the conference that “sticking to the memos, in my view they’re nowhere near as outrageous as they’re portrayed.” Yes, some of the techniques are “viscerally horrifying,” he admitted, but the lawyers’ job was to determine whether the proposed methods amounted to the crime of torture. The lawyers’ opinions were “defensable, even where I disagree with them,” he said, adding that their conduct could only be criminal if their intent was malicious.

The panelists all appeared to agree, however, that a “truth commission” aimed at discovering how the memos were drafted and the lawyers reached their controversial conclusions would be appropriate. “I could adopt that idea if it were structured to be a genuine inquiry as to facts that are not known as opposed to a big show on television,” said Taylor. Taylor has previously called for a truth commission that would provide immunity for its participants.

Levin, the former OLC official, also agreed that an independent truth commission “would be useful.” “I would agree that if you could have a serious look at this it would be very valuable,” he said.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) in February proposed such a commission, but so far does not appear to have won broad support from his colleagues. He has yet to even introduce legislation proposing the creation of a “truth and reconciliation commission” or “commission of inquiry,” as he has also called it.

House Judiciary Committee Chairman John Conyers, however, in January proposed legislation that would create what he’s called a “Blue-Ribbon Commission” of outside experts to probe the “broad range” of policies pursued by the Bush administration “under claims of unreviewable war powers,” including torture of detainees and warrantless wiretaps. His plan does not propose immunity for participants and does not rule out a criminal investigation or appointment of a special prosecutor.

The conduct of the Office of Legal Counsel’s lawyers has already been investigated by another government body, the Justice Department’s Office of Professional Responsibility, which investigates allegations of professional misconduct by Justice Department lawyers. Although completed by the end of the Bush administration, that office’s report still has not been released.

Upon completion, the OPR report was sent to the targets of the inquiry— including former OLC lawyers John Yoo, Jay Bybee and Steven Bradbury — for their review and comment. It is still under Justice Department and CIA review. It reportedly analyzes the lawyers’ communications with senior government officials and is highly critical of their conduct.

Yesterday, Whitehouse at the conference argued again for full disclosure of how the OLC lawyers came to recommend actions to the president that he said were clearly contrary to established law.

“America as an ongoing education in freedom, teaches us that the vehicle of America’s freedom is process of law, so process matters. It matters a lot. The question how we came to torture is not an idle or prurient one. Something went wrong,” he continued, and “the epicenter of the problem was the office of legal counsel.”

Responding to the frequent objection that investigation of the previous administration officials risks “criminalizing policy differences,” Whitehouse said: “No. Behavior becomes criminal not when it is investigated, not when it is punished, but when it is committed in violation of law. Prosecution vindicates the law; it doesn’t form it.”

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