From Marty Lederman at Balkinzation:
Jack Goldsmith left OLC before he could complete the "replacement" torture opinion. Daniel Levin succeeded him. OLC had previously opined that waterboarding was lawful. Levin apparently (and understandably) was a bit skeptical -- so much so that he asked the military to subject him to waterboarding! (This is not your parents' OLC -- can you imagine what it would take for anyone after this to want to be Assistant Attorney General there?) Naturally, Levin concluded that the procedure was, well, torture, at least "unless performed in a highly limited way," and under guidelines the Administration had failed to implement. (No doubt Levin did suffer severe physical suffering, and that's in a situation far removed from being a detainee.)
At this point, Alberto Gonzales nevertheless insisted that Levin include in his December 30, 2004 opinion the footnote about how the legal analysis did not affect all previously approved techniques! It's not clear why Levin assented to this -- it's an outrageous and inappropriate thing for a White House Counsel to do -- but the footnote was included. (I should add that the December 2004 Levin opinion also included an analysis of "severe physical suffering" that is entirely unpersuasive and that is the basis for the counterintuitive (i.e., patently wrong) conclusion that waterboarding is not torture. I've criticized that portion of the Levin memo previously. Now I wonder whether that, too, was the work of Alberto Gonzales and David Addington, rather than Levin himself, and whether Levin's planned follow-up memo (see below) might have called that analysis into question.)
Levin then set about to write another opinion, one that would cut back on the approved techniques (and that would, at a minimum, repudiate or temper the previous OLC advice on waterboarding).
Unfortunately, at this point Gonzales was confirmed as AG -- and he fired Levin, replacing him with Steve Bradbury, who was more than happy to give Gonzales the legal advice they wanted. (No word -- yet -- on whether Bradbury was waterboarded.)
Let's go over that again. A "loyal conservative, Republican lawyer" cares enough for the law that he has himself waterboarded. He concludes that water-boarding is torture. (This is what everyone with experience says too, not to mention our own legal history.) Torture is a crime. For saying as much, he got fired. The reason is, this administration wants to torture.
The point of this torture is not to extract information; there are better ways to do that, which we have long used. The point of this torture is not to extract confessions; there are no show trials of terrorists or auto-de-fes in the offing. The point of this torture is to exercise unlimited, unaccountable power over other human beings; to negate the very point of our country, to our profound and lasting national shame.
Calling this administration "sadistic" insults thousands of sane, decent, kinky sexual perverts.
Posted at November 04, 2007 11:45 | permanent link