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Torture in the Justice Department
A Firsthand Experience Before Decision on Torture by Scott Shane in the NYT 11-7-07
A Firsthand Experience Before Decision on Torture
By SCOTT SHANE Published: November 7, 2007
WASHINGTON, Nov. 6 - The debate over torture here can get heated, as it did this month when a dispute over the legal status of waterboarding threatened to sink the nomination of Michael B. Mukasey as attorney general. Still, it usually remains a matter of strictly abstract legal analysis.
But three years ago, Daniel Levin, then the acting head of the Office of Legal Counsel at the Justice Department, decided to bring reality to bear on his deliberations on the torture question. He went to a military base and asked to undergo waterboarding.
Mr. Levin, 51, a graduate of Harvard and the University of Chicago Law School, had served in several senior posts at the Federal Bureau of Investigation and the Justice Department since the administration of the first President Bush. But he had never served in the military, where American pilots, special operations troops and others for decades have undergone waterboarding to prepare them for possible treatment if captured by an enemy.
Waterboarding has been used in interrogations at least since the Spanish Inquisition and was used by the Central Intelligence Agency on three high-level terrorism suspects in 2002 and 2003, according to officials familiar with the agency's secret detention program. It involves strapping a suspect to a board with feet elevated, covering his face with a cloth and pouring water on it to produce a feeling of suffocation.
Mr. Levin, now a partner with White & Case, declined to comment on the experience, which was first reported Friday by ABC News. A former senior administration official confirmed on Tuesday that it took place.
After his waterboarding, Mr. Levin went on to sign a new legal opinion on the limits of interrogation, released on Dec. 30, 2004, that made news with its ringing opening sentence: "Torture is abhorrent both to American law and values and to international norms." That memorandum replaced a much-criticized opinion written in August 2002, which had defined torture as treatment producing pain equivalent to organ failure or death and had suggested that a president might be able to authorize torture under his constitutional war powers.
A footnote to the 2004 interrogation opinion signed by Mr. Levin, insisted on by the White House and the C.I.A., said that despite the shift in legal reasoning, interrogation techniques authorized under previous Justice Department opinions remained legal. Those techniques included waterboarding.
Mr. Levin became the acting head of the Office of Legal Counsel in June 2004, after the departure of Jack Goldsmith, who had withdrawn the 2002 memorandum on torture and provoked a separate crisis by finding flaws in the legal justification for the National Security Agency's domestic surveillance program. After writing the opinion denouncing torture, Mr. Levin, who had supported Mr. Goldsmith's actions, was told by Alberto R. Gonzales, the incoming attorney general, that he would not be nominated to lead the Office of Legal Counsel.
Instead, Mr. Levin took a job as legal adviser at the National Security Council. He was replaced at the Justice Department by Steven G. Bradbury, who signed a series of new legal opinions in 2005 justifying harsh interrogation methods, including waterboarding, The New York Times reported last month.
In court papers filed Monday in New York, the Justice Department confirmed that the Office of Legal Counsel had issued three legal opinions on detention and interrogation to the C.I.A. in May 2005. The filing does not describe the contents of the opinions, which are being sought in a Freedom of Information Act lawsuit filed by the American Civil Liberties Union.