I have said before that Dan Levin’s September 2004 Memo is one of the most interesting documents in Monday’s entire document dump. DOJ describes the document as "OLC’s view on the previous and current guidance it provided to CIA and DOD." As the date implies, it was written some time in September, though given the underscore in place of a date, it’s not clear whether this is more than a draft or even whether it was sent. It was addressed to John Ashcroft and Jim Comey by title.
The document is important and interesting for several reasons. I suspect it reflects ongoing difficulties on the part of DOJ to recover from John Yoo’s free-lancing and generally crappy lawyering. It provides an important marker of the discussions transpiring in fall 2004 on interrogation. And it provides critical insight to the Bradbury memos from spring 2005.
Since the document is heavily redacted, I’ll recreate the entire text of the document, along with my comments below. The original text is in blockquotes with my comments interspersed.
You have asked for an update on the status of interrogation advice.
A. GENERAL ADVICE
1. Previously Given
a. The primary prior general advice was an unclassified August 1, 2002 memorandum from Jay Bybee to Judge Gonzales interpreting the torture statute. It contains discussion of a variety of matters that are not necessary to resolving any issues to date.
This refers to the Bybee One memo–the memo invoking organ failure that Jack Goldsmith had withdrawn on June 22, 2004.
Levin states that this discusses "a variety of matters that are no necessary to resolving any issues to date," which suggests that thus far, the Bybee Two memo was adequate to authorize the interrogations that Levin knew of.
a. [one description redacted]
This redacted pending memo must describe the Levin memo to Comey completed on December 30, 2004. I find it particularly interesting that this is redacted, since the memo itself has been unclassified and available for years. This suggests that Levin, Ashcroft, and Comey may have had a shared understanding about what that memo had to do to replace the Bybee One memo–an understanding that we’re not allowed to know about. As a reminder, the December 2004 Levin memo is the one with the footnote backing off of full renunciation of the Bybee One memo.
B. CIA ADVICE