A former head of the Office of Legal Counsel said on Tuesday he does not oppose a criminal investigation of the office, though he defended the motives of two lawyers who were at the center of the Bush administration’s controversial interrogation program, reports The BLT.
“I personally am not opposed to criminal investigations of myself and others from our time there,” Daniel Levin, who served as acting head of OLC from July 2004 to February 2005, said at a forum at American University’s Washington College of Law.
Levin, now a partner at White & Case, said that such an investigation amounted to a “blunt instrument” but that it could be worthwhile, according to The BLT.
Levin also said he could support the formation of a “truth commission” proposed by Senate Judiciary Chairman Patrick Leahy (D-Vt.) and others, but he had doubts about whether it could be effective.
At the same time, he said believed that former OLC officials Jay Bybee and John Yoo, who have drawn criticism for authoring the so-called “torture memos,” acted in good faith. “I genuinely believe, for what it’s worth, that they genuinely believed the advice they were giving was correct,” Levin said.
Bybee and Yoo are the subjects of a long-awaited Office of Professional Report examining whether the lawyers violated professional standards in their work at OLC. Attorney General Eric Holder said recently the report was near completion.
In August, Holder tapped a career prosecutor, John Durham, to conduct a preliminary inquiry into possible criminal conduct by CIA interrogators. He has not ordered a probe of the OLC lawyers.
While at OLC, Levin was not among the advocates for the use of waterboarding and other harsh interrogation techniques on suspected terrorists. After subjecting himself to water boarding at a military base near Washington, Levin concluded that technique constituted torture unless performed with tight restrictions.
Levin reportedly was pushed out the Justice Department before he could complete a memo imposing more controls on the use of waterboarding and other methods.
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It has become clear that enhanced interrogation techniques were used on Abu Zubaydah before the first legal memos authorizing their use had been written by the Office of Legal Counsel. Zubaydah entered U.S. custody on March 28, 2002. The Justice Department issued its first memo on torture on Aug. 1, over 4 months later.
In April and May, which fall between the capture of Zubaydah and the Bybee memo, “contractors had to keep requesting authorization to use harsher and harsher methods.” That quote is from former FBI agent Ali Soufan’s testimony before the Senate Judiciary administrative oversight and the courts subcommittee last week. Soufan testified that many of the techniques authorized by the Bybee memo were used during this period, including nudity, sleep deprivation, loud noise and extreme temperatures during interrogations.
Newsweek reporter Michael Isikoff received an e-mail last month from a CIA spokesperson saying that:
The Aug. 1, 2002, memo from the Department of Justice wasn’t the first piece of legal guidance for the [interrogation] program.
So where was the CIA getting this legal guidance?
Well, Ari Shapiro at NPR reports that:
One source with knowledge of Zubaydah’s interrogations agreed to describe the legal guidance process, on the condition of anonymity.
The source says nearly every day, [psychologist James] Mitchell [the aforementioned CIA contractor] would sit at his computer and write a top-secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.
A new document is consistent with the source’s account.
The CIA sent the ACLU a spreadsheet late Tuesday as part of a lawsuit under the Freedom of Information Act. The log shows the number of top-secret cables that went from Zubaydah’s black site prison to CIA headquarters each day. Through the spring and summer of 2002, the log shows, someone sent headquarters several cables a day.
“At the very least, it’s clear that CIA headquarters was choreographing what was going on at the black site,” says Jameel Jaffer, the ACLU lawyer who sued to get the document. “But there’s still this question about the relationship between CIA headquarters and the White House and the Justice Department and the question of which senior officials were driving this process.”
Gonzales did not respond to a request for comment through his lawyer.
It’s important to note that Gonzales was not Attorney General at this time, he was White House counsel to President George W. Bush.
You can watch Shapiro’s interview on The Rachel Maddow Show last night below: