Daniel Levin Tells Jim Haynes, Again, Not to Torture

We’ve long known that in February 2005, then-acting head of OLC Daniel Levin contacted DOD General Counsel to remind him that the March 14, 2003 Yoo memo on torture had been withdrawn. But I, for one, had never seen a copy of that letter. It turns out the government included it with their Appeals brief in the David Passaro case (see pages 99-100).

The memo is important for several reasons.

First, note the date: February 4, 2005. The memo was written on Levin’s last day as acting OLC head, the day Alberto Gonzales was confirmed Attorney General. Particularly given questions about what authority DOD had for detainee interrogations after Jack Goldsmith purportedly withdrew the memo, the fact that Levin saw the need to formally remind Haynes the memo had been withdrawn on his last day is telling. Remember, too that Levin had real concerns about whether Steven Bradbury–who would take over as acting head of OLC the following day and would go on to write a crazy opinion authorizing DOD’s Appendix M the following year–should be appointed OLC head.

Only, it’s not entirely clear Goldsmith ever did withdraw the memo.

Here is the text of the memo:

In December 2003, then-Assistant Attorney General Jack Goldsmith advised you that the March 2003 Memorandum was under review by his Office and should not be relied upon for any purpose. Assistant Attorney General Goldsmith specifically advised, however, that the 24 interrogation techniques approved by the Secretary of Defense for use with al Qaeda and Taliban detainees at Guantanamo Bay Naval Base were authorized for continued use as noted below. I understand that, since that time, the Department of Defense has not relied on the March 2003 Memorandum for any purpose. I also understand that, to the extent that the March 2003 Memorandum was relied on from March 2003 to December 2003, policies based on the substance of that Memorandum have been reviewed and, as appropriate, modified to exclude such reliance. This letter will confirm that this Office has formally withdrawn the March 2003 Memorandum.

The March 2003 Memorandum has been superseded by subsequent legal analyses. The attached Testimony of Patrick F. Philbin before the House Permanent Select Committee on Intelligence, July 14, 2004, reflects a determination by the Department of Justice that the 24 interrogation techniques approved by the Secretary of Defense mentioned above are lawful when used in accordance with the limitations and safeguards specified by the Secretary. This also accurately reflects Assistant Attorney General Goldsmith’s oral advice in December 2003. In addition, as I have previously informed you, this Office has recently issued a revised interpretation of the federal criminal prohibition against torture, codified at 18 USC 2340-2340A, which constitutes the authoritative opinion as to the requirements of that statute. [citation omitted; my emphasis]

Note that Levin makes it clear that Goldsmith did not withdraw the memo in December 2003, he just advised Haynes not to rely on it (we knew this). But Levin also makes no mention of Goldsmith formally withdrawing the memo, as the OPR Report suggests happened, in spring of 2004. And while Levin makes it clear–as he did in his September 2004 memo summarizing the advice OLC had given on torture–that Pat Philbin’s testimony to HPSCI was understood to serve as OLC advice to DOD, Levin’s statement that he was “confirming” that OLC had withdrawn the memo suggests DOD had not yet received such a written notice before then.

21 replies
  1. Jeff Kaye says:

    Another wonderful sleuthing job, EW. It certainly cements the actions of Goldsmmith in the period Dec. 2003 until he left in July 2004, in terms of giving legal cover for the use of DoD’s abusive interrogation program.

    I’ve read the Philbin testimony to the HPSCI, and a sickening read it is. I suppose you could say it supplies in summary mode the primary arguments of OLC regarding the use of torture (sans EITs). They have constructed their Catch-22 arguments quite tightly, though they truly cannot withstand objective critique, as they are woven together with the most specious lies imaginable. Even the mildly critical OPR (which overlooked so much itself) could not have its results countenanced, and they brought in the Fixer.

    Are you planning any further look at the Philbin testimony, its place in the overall architecture of the OLC’s cover for torture, etc.?

  2. earlofhuntingdon says:

    Actual knowledge that a legal opinion could no longer be relied upon is tantamount to withdrawing it, but only with regard to those that have that knowledge. A failure to withdraw the opinion in writing allows a wider number of players to take the position – credible or not – that they lacked the requisite actual knowledge that the issuer no longer stood behind it.

    Not withdrawing it also avoided the need to find someone to put their imprimatur on the withdrawal. Levin had no problem with that, at least when he had nothing left to lose and was leaving within hours. He knew he could not stay on at OLC with Cheney/Addington’s active opposition and with their boy Gonzales replacing Ashcroft.

    That appointment would have fooled no insiders about who was confirming their hold over the DoJ: Gonzales was a placeholder for Addington/Cheney and their goodling number of minions scattered inside the DoJ.

  3. earlofhuntingdon says:

    Darn, you gave me a haircut there. I hate to be obvious; it saps the strength from one’s arguments.

    • earlofhuntingdon says:

      In reference to Kyle Sampson for those who skipped Sunday school or had better things to do than watch our modern day legal Sampson make a fool of himself, trying to explain how his and others elaborate personnel decisions at the DoJ were coordinated and accomplished with no filing system, no direction from on high, and virtually no e-mail trail.

      Unlike Mr. Gonzales, who has twisted in the unemployment wind since leaving office, barring a modest wingnut welfare gig in West Texas, Mr. Sampson was made partner at an otherwise reputable law firm. He was a law school classmate of Lil’ Liz.

      • 1boringoldman says:

        Kyle Sampson: From 1999 to 2001 Sampson served as Counsel to Senator Orrin G. Hatch (R-Utah) on the Senate Judiciary Committee. After the 2000 election, Sampson “drew on a friendship he had built in law school with Elizabeth Cheney, the daughter of the vice president, to land a job making personnel decisions in the early days of the Bush administration.” Later he worked under Alberto Gonzales as Associate Counsel to the President.

        Utterly remarkable – both that you can retain such a fact, and that Liz Cheney was the one that got Kyle launched on his meteoric rise to resignation.

      • readerOfTeaLeaves says:

        Ummm… I believe you are referring to Kyle, ‘the Aggregator’ Sampson? He denied ever making decisions; he claimed that he merely ‘aggregated’.

        Another Eichmanism: ‘I merely aggregated’.
        If he’d admitted to morphing into vapor, he could not have been more disingenuous.

  4. 1boringoldman says:

    This post put me to scrolling up and down the emptywheel Torture Timeline with renewed awe [both that Marcy created that Timeline brick by brick and that all those people did all those things]. I tried to draw a line to show where the cover-up started, but it was there from the start. In fact, I couldn’t find any way to really break it up into phases other than the line where Yoo leaves and Goldsmith comes.

    We all enjoyed the earlofhuntington “goodling” comment. But there was more:

    Levin had no problem with that, at least when he had nothing left to lose and was leaving within hours. He knew he could not stay on at OLC with Cheney/Addington’s active opposition and with their boy Gonzales replacing Ashcroft. That appointment would have fooled no insiders about who was confirming their hold over the DoJ: Gonzales was a placeholder for Addington/Cheney and their goodling number of minions scattered inside the DoJ.

    Gonzales was a placeholder for Addington/Cheney is a pretty good synopsis. It’s ironic that Gonzales was dethroned over different issue entirely, being another kind of placeholder – one for Rove/Republican in their planned election sheenanigans.

    There is in our future an even more complex, multidimensional Timeline I think. It has at least the Torture Timeline, the Warrantless Surveillance Timeline, the DoJ Attorney firing Timeline, the White House Attorney Timeline, etc. At the top, it says, The Lawyers Timeline. It will tell an amazing story…

    [putting “timeline programs” into Google yields a number of candidates]…

    • bmaz says:

      The coverup started before they took office with the lessons “learned” and experience received in the Nixon and Reagan Administrations.

      • readerOfTeaLeaves says:

        For anyone who doesn’t recall, the ‘lessons’ were listed in an article by Sy Hersh in the New Yorker:

        The key players behind the redirection are Vice-President Dick Cheney, the deputy national-security adviser Elliott Abrams, the departing Ambassador to Iraq (and nominee for United Nations Ambassador), Zalmay Khalilzad, and Prince Bandar bin Sultan, the Saudi national-security adviser. While Rice has been deeply involved in shaping the public policy, former and current officials said that the clandestine side has been guided by Cheney.

        Saudi money was involved in what became known as the Iran-Contra scandal, and a few of the players back then—notably Prince Bandar and Elliott Abrams—are involved in today’s dealings.
        Iran-Contra was the subject of an informal “lessons learned” discussion two years ago among veterans of the scandal. Abrams led the discussion. One conclusion was that even though the program was eventually exposed, it had been possible to execute it without telling Congress. As to what the experience taught them, in terms of future covert operations, the participants found: “
        One, you can’t trust our friends.
        Two, the C.I.A. has got to be totally out of it.*
        Three, you can’t trust the uniformed military,++ and
        four, it’s got to be run out of the Vice-President’s office”—a reference to Cheney’s role, the former senior intelligence official said.#

        * see also: Plame, Valerie; outing of
        ++ see also: Adm. Fallon; Powell, Colinrelated keywords: Blackwater, Erik Prince
        # see also: Cheney, Richard, US Vice President; related keywords: Cheney, Elizabeth, oversaw Middle East at Dept of State while her father was VP. Also, DoD-OVP, Bolton (John), Wolfowitz, Perle, Cambone, Ghorbanifar, Feith, and a whole bunch of names on EW’s Ghorbanifar Timeline…

    • readerOfTeaLeaves says:

      At the risk of blogwhoring, might I simply say that my heart skips a happy little beat whenever anyone links to one of EW’s fine Timelines.

      They are invaluable.

  5. harpie says:

    The above links are not really the testimonies, but only the Statements for the Record.
    Sorry about that.
    Does anyone have links for the actual hearing transcripts?

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