Patterico's Pontifications


The Matter of Dolpermann and the Infamous Levin Footnote

Filed under: General — WLS @ 10:24 pm

Posted by WLS:

Ok — after watching the full video video of Jan Crawford Greenberg’s report from ABC News last Friday, I think I know now what the issue is concerning the footnote Levin placed in the new Torture Memo, and Greenberg’s comments abpout Levin telling the WH that waterboarding would not be torture if done according to certain limitations and guidelines — comments that Dolpermann blatantly mischaracterized.

As Jack Goldsmith makes clear in his book, The Terror Presidency, there are actually three Office of Legal Counsel memos on torture and coercive interrogation techniques which were the subject of his review during the 8 months he was Assistant AG for OLC.

The first is the famous Aug. 2002 “Torture Memo” drafted by John Yoo (but signed by Jay Bybee, the Assistant AG for OLC at the time). 

That Memo dealt with torture in the abstract, and reviewed the various sources of law and guidance that provide assistance to policy makers in setting policy on interrogation of unlawful combatant detainees.

The two other memos are drafted specifically to the Department of Defense and to the CIA, and deal with specific methods of coercive interrogation used by each entity.  These Memos state specifically what types of coercive interrogation techniques do not fall within the definition of “torture” set forth in the August 2002 memo, meaning those techniques are lawful and military or civilian personnel that engage in them are not subject to prosecution.  The DOD memo is different than the CIA memo, because the Uniform Code of Military Justice applies to DOD personnel, and has slightly different restrictions than does federal civil law. 

I don’t have my Goldsmith book handy at this moment, so I can’t more precisely describe how he explained these two memos.  I’ll try to do that in the next few days when I retrieve the book (I let a friend borrow it to read).

I suspect — and I’m still trying to pin down the specifics — that Levin was in the process of re-writing the second two memos to more closely conform to the new “Torture” memo he had written that replaced the August 2002 “Torture” memo that Jack Goldsmith had withdrawn.

The concern from the WH was that DOD and CIA personnel engaged in questioning high value detainees had relied upon the two memos which declared certain interrogation techniques not to be “torture” as defined in the August 2002 memo.  The WH wanted Levin to clarify in his new torture memo issued in Dec. 2004 that the judgments made in these two earlier memos — which interrogation practices were “torture” and which were not — was not changed by his new analysis defining “torture.”  I think his judgment to that effect is set forth in FN 8, which states:

“While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”

Dolpermann seems to think this is evidence of a huge conspiracy to cover up the fact that the President ordered that people be tortured.

“The presidency of George W. Bush has now devolved into a criminal conspiracy to cover the ass of George W. Bush…. 

….after one revelation last week, transparently clear for what it is, the pathetic and desperate manipulation of the government, the refocusing of our entire nation towards keeping this mock president and this unstable vice president and this departed wildly self-over rating attorney general and all the others from potential prosecution for having approved or ordered the illegal torture of prisoners being held in the name of our country.”

Now, let me lay this out for Dolpermann and all his fans — none of whom I suspect read this site:

OLC issued an opinion in Aug. 2002 that defined “torture.”  That Opinion was issued not by the President or the VP, but under the name and authority of the Attorney General at the time, John Ashcroft, by his Legal Counsel under the law, the Assistant Attorney General for Legal Counsel, Jay Bybee. 

Lots of people later took issue with this opinion, and a subsequent head of OLC — Jack Goldsmith — withdrew it.  But, during the time it was in effect, two other Memos were issued that specifically authorized the use of certain coercive interrogation techniques on detainees at Gitmo.  I think we can safely assume that one of those techniques was some variation of waterboarding. 

Interestingly, the head of OLC (Goldsmith) that withdrew the August 2002 memo did not at first withdraw the two other memos.  He withdrew one of the memos (the DOD memo) ONLY after he drafted a replacement for that memo, and the replacement memo AUTHORIZED the SAME coercive techniques as had the withdrawn memo, just using different legal analysis and not relying on the withdrawn August 2002 discedited memo. 

Goldsmith never withdrew the CIA authorization memo before resigning because he was never able to draft a replacement for it, and he thought the techniques authorized in the memo — including waterboarding — would not be banned by any replacement memo he drafted.  He thought it was better to leave the CIA memo in place until a replacement was ready rather than to have no CIA memo at all.

That is my best recollection from Goldsmith’s book, and I’ll update this with actual quotes from the book when I get it back.

So, neither the President nor VP ever ordered that anyone be “tortured.”  The CIA and DOD tactics were based on legal memos issued by the Attorney General of the US that said those tactics did not violate the law banning torture. 

That’s it.  Case closed.

Go back to the nutroots and lick your wounds.    

5 Responses to “The Matter of Dolpermann and the Infamous Levin Footnote”

  1. Jay Bybee is a relative. If you would like, I can contact him and see if he is willing to comment on the subject. He is currently serving on the 9th circuit court and I don’t know how much he would feel comfortable mentioning (confidentiality etc) but I’m willing to ask. If you are interested, email me at the address listed in the comment.

    DrT (69c4b2)


    The AG issued an opinion that waterboarding isn’t torture. Correct?

    The AG could issue an opinion that sewer rat tastes like pumpkin pie. That don’t mean I’m gonna eat any of the filthy motherfuckers.


    Fritz (d62210)

  3. While I doubt that the President or VP ever personally ordered that any activity at all be carried out upon any of our POWs or Enemy Combatants, I also don’t think that a legal opinion drafted in the US by the US AG addresses whether waterboarding is torture.

    Judge Evan Wallach, a recognized authority on the laws of war, wrote an op-ed piece in the Washington Post on Nov 4 regarding waterboarding. From that piece:

    The United States knows quite a bit about waterboarding. The U.S. government — whether acting alone before domestic courts, commissions and courts-martial or as part of the world community — has not only condemned the use of water torture but has severely punished those who applied it.
    After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: “I was given several types of torture. . . . I was given what they call the water cure.” He was asked what he felt when the Japanese soldiers poured the water. “Well, I felt more or less like I was drowning,” he replied, “just gasping between life and death.”

    Nielsen’s experience was not unique. Nor was the prosecution of his captors. After Japan surrendered, the United States organized and participated in the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials. Leading members of Japan’s military and government elite were charged, among their many other crimes, with torturing Allied military personnel and civilians. The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding….

    As a result of such accounts, a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the “water cure” to question Filipino guerrillas.

    Additionally, Malcolm Nance, former chief of training at the Navy’s SERE school in San Diego had this to say about waterboarding on the opinion page of the NY Daily News:

    I have personally led, witnessed and supervised waterboarding of hundreds of people. It has been reported that both the Army and Navy SERE school’s interrogation manuals were used to form the interrogation techniques employed by the Army and the CIA for its terror suspects. What is less frequently reported is that our training was designed to show how an evil totalitarian enemy would use torture at the slightest whim.
    Having been subjected to this technique, I can say: It is risky but not entirely dangerous when applied in training for a very short period. However, when performed on an unsuspecting prisoner, waterboarding is a torture technique – without a doubt. There is no way to sugarcoat it.

    I think the larger question is not whether the people who performed the “interrogation” using these techniques are liable under US law, but what will be the US’s response when the international community comes knocking with a subpoena for war crimes.

    Chuck Foxtrot (bec298)

  4. The Thunder Run has linked to this post in the – Web Reconnaissance for 11/08/2007 A short recon of what’s out there that might draw your attention, updated throughout the day…so check back often.

    David M (447675)

  5. The Left has their talking points. Moops was ahead of the curve.

    JD (0c5b67)

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