ViaVolokh I was taken aback to see a story about a former colleague being waterboarded. I knew Dan Levin when we were both prosecutors in the U.S. Attorney's Office in Los Angeles. According to ABC, when he was an Acting Assistant Attorney General involved with a DoJ review of interrogation policy, he arranged to be waterboarded himself to help evaluate the procedure.
ABC goes on to report that Levin found the experience terrifying despite the controlled circumstances and concluded that waterboarding could be torture if not performed under very controlled circumstances.
You can probably guess how it goes from here.
The administration at the time was reeling from an August 2002 memo by Jay Bybee, then the head of the Office of Legal Counsel, which laid out possible justifications for torture. In June 2004, Levin's predecessor at the office, Jack Goldsmith, officially withdrew the Bybee memo, finding it deeply flawed.
When Levin took over from Goldsmith, he went to work on a memo that would effectively replace the Bybee memo as the administration's legal position on torture. It was during this time that he underwent waterboarding.
In December 2004, Levin released the new memo. He said, "Torture is abhorrent" but he went on to say in a footnote that the memo was not declaring the administration's previous opinions illegal. The White House, with Alberto Gonzales as the White House counsel, insisted that this footnote be included in the memo.
But Levin never finished a second memo imposing tighter controls on the specific interrogation techniques. Sources said he was forced out of the Justice Department when Gonzales became attorney general.
Dan Levin is an excellent prosecutor and was highly respected for his integrity. If memory serves he went up to San Francisco in the late 1990s to help rebuild that office. Oddly, some news reports suggest that he was on a short list to replace the U.S. Attorney for San Francisco, who was one of the attorneys fired during the notorious and apparently politically motivated firing binge of 2006. That's odd. It means one of three things: (1) the LA Times report that Levin was short-listed in 2006 is incorrect (unlikely, given that this was based on a memo released by DoJ), (2) ABC News' source is incorrect when it says that Dan was forced out for his work on the torture issue, or (3) higher-ups in DoJ were idiots who couldn't keep their political hackery straight. I'd vote for 3 if pressed; the force-out in 2 sounds just too plausible.
Dan would have made a spectacular U.S. Attorney for the Northern District. I'm sorry for the rain of crap he's probably going to take from some segments of the right as a result of this report.
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