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conform to the new “Torture” memo he had written that replaced the August 2002 “Torture” memo that Jack Goldsmith had withdrawn.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.    

I Completely Forgot About Dolpermann’s Broadcast Fabrications Concerning Waterboarding and Torture

Filed under: General — WLS @ 9:26 pm

Posted by WLS

I got completely sidetracked in my last blast at Dolpermann, so I’m going to try again.

Ok, this DOJ Policy MEMO on torture was written by Daniel Levin, who took over as Acting Assistant Attorney General For the Office of Legal Counsel, following the resignation of Jack Goldsmith in June 2004. 

Dolpermann made a big deal of the fact that while drafting this policy, Levin decided to have the military subject him to waterboarding so that he might better understand the procedure and the sensation of the person undergoing the technique during interrogation.  Doplermann then had this to say about Levin:

Water boarding is torture, Daniel Levin was to write.    Daniel Levin was an astonishingly patriotic American and a brave man.  Brave not just with words or with stances, even in a dark time when that kind of bravery can usually be scared or bought off.  Charged, as you heard in a story from ABC News last Friday, with assessing the relative legality … Mr Levin decided that the simplest and the most honest way to evaluate them was to have them enacted upon himself. 

Daniel Levin took himself to a military base and let himself be water boarded…  Daniel Levin should have a statue in his honor in Washington right now.  Instead, he was forced out as acting assistant attorney general nearly three years ago…. 

Water boarding, he said, is torture.  Legally it is torture.  Practically it is torture.  Ethically it is torture.  And he wrote it down.  Wrote it down somewhere where it could be contrasted with the words of this country‘s 43rd president.  The United States of America does not torture.  Made you into a liar, Mr. Bush.  Made you into, if anybody had the guts to pursue it, a criminal, Mr. Bush.  Water boarding had already been used on Khalid Sheikh Mohammed and a couple of other men none of us really care about, except, sir for the one detail you had forgotten, that there are rules.    

The only problem with this is that almost none of it is true.  About the only true part is that Levin had himself subject to waterboarding.   But, the same report from ABC News that Doplermann relied upon — written by Jan Crawford Greenberg and Ariane de Vogue — cited the same sources who described Levin’s effort has saying that Levin told the White House:

“waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use.”  

So, I guess maybe Levin didn’t write down anywhere that waterboarding is legally, morally, and ethically torture. 

Oh well — minor drafting error on Keith’s part while banging away on his keyboard.  

There is another issue involved here having to do with a footnote that is said to have been insisted upon by Gonzalez in the new Policy Memo issued by OLC under Levin.  I haven’t nailed that one down yet, but I think Dolpermann might have added 2+2 and come up with 22 again. 

More to follow.

I’ll try to clear that up later.


Now that my “Is Waterboarding Torture” Post has rolled onto the second page, lets add some more to the pot.

Filed under: General — WLS @ 8:48 pm

Posted by WLS:

Its probably not widely known, but the current DOJ Policy Guidance defining what is “torture” under Sec. 2340 is not a secret document as was its predecessor. 

You can read all 16 pages of it here.

This came to my attention when considering the “Special Comment” from Keith Dolpermann this past Monday. I started to watch a video of it, but it was just too painful listening to his sanctimonious prattle for more than 30 seconds.  So I read the msnbc transcript instead.

I’m sure Keith prefers people to watch him rather than read what he has written.  Because if one reads what he has written, the egregious errors are that much more obvious. 

As an aside, I have to mention this one not-quite-so-egregious factual error by Dolpermann because he makes it while accusing someone else of making stuff up.  In making Brit Hume his “Second Worst Person in the World” Monday night for criticizing State Department Foreign Service Officers who are objecting to being sent to work at the US Embassey in Iraq, Dolpermann said this:

Hume claimed this was political and it‘s about the Bush administration and Iraq and the diplomats, quote, do not support the policy and do not think they should be obligated to carry it out, which is contrary to their oath. 

He called one dissenter, quote, a disgrace.  Brit made the stuff about the oath up.  Diplomats must swear to support and defend the Constitution, bear true faith, enter the obligation freely, faithfully discharge the duties.  Nothing about getting themselves killed or supporting moronic policies.  

Well Keith, having taken that oath a couple of time for a couple of different positions, let me say that you are making stuff up.  Here is the oath in its entirety: 

I, [name], do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

So, what are the “duties of the office on which” a Foreign Service Officer enters? 

Well, here’s what the State Department website says:

When making assignments, however, the needs of the Service remain paramount…. Officers who come in with critical language skills should expect to serve in positions using their language skills in their first or second assignment. Later, as mid-career officers, they may be required to serve again in a country which uses that language skill. All officers are considered worldwide available and must be prepared to go where needed.

The need to influence the rapid pace of world change effectively requires more assignments to hardship posts where such change is occurring. Some of these positions are in danger or war zones and a good number involve sending officers without their families, who usually remain in the U.S. for the duration of the particular assignment.

So, Dolpermann, among the “duties” which Foreign Service Officers take an oath to “well and faithfully discharge,” is the duty to be worldwide available and be prepared to go where needed. 

But since muddle-headed cableTV talking heads aren’t sworn to uphold anything other than their egos, I can see where you might have gotten confused. 

“Thank You for Peace”

Filed under: International,War — DRJ @ 6:43 pm

[Guest post by DRJ]

This is great. Here’s the story behind it.


Lifestyles of the Rich and Infamous

Filed under: Miscellaneous — DRJ @ 6:21 pm

[Guest post by DRJ]

Given Britney Spears’ parenting history, this may expose me as a heartless person but this is the worst thing I’ve ever read about Britney:

“The pop princess is a big spender.

Court papers released Thursday in Britney Spears’ custody dispute with Kevin Federline show she spends lavishly on clothes and entertainment, and doesn’t save or invest any of her roughly $737,000 monthly income.”

She makes gross income of $737,000 a month and can’t save anything?

I won’t feign surprise but for a person who depends on youthfulness to make her career work, this is sad. It’s unlikely she will be able to make this amount of money forever. There are more specifics on her budget at the link. Her ex-husband isn’t much better.


Stupid Criminals, Vol. 1

Filed under: Crime — DRJ @ 3:19 pm

[Guest post by DRJ]

Does Patterico have a Stupid Criminals series? I don’t recall seeing one so I’ll make this my first entry:

“A man was arrested and accused of drug possession after telling authorities that two masked gunmen had stolen 150 pounds of marijuana from his home.

Hidalgo County sheriff’s deputies arrived at the home in South Texas to find the door kicked in and nearly 15 pounds of pot on the floor, Sheriff Lupe Trevino said.

Jose Guadalupe Flores, 35, escaped while the men ransacked the house but returned and told the deputies that he had been wrapping the drugs for shipment when the intruders arrived. “The guy walked right up and said the drugs were his,” Trevino said. “That’s not the smartest move.”

Flores, an illegal immigrant from Mexico, was charged with felony possession of marijuana at a hearing Monday. Because of his immigration status, Flores will be jailed until his case is heard. Authorities were still searching for the gunmen.”

Zero tolerance, squared.


The Most Wired Cities in America

Filed under: Miscellaneous — DRJ @ 3:09 pm

[Guest post by DRJ]

No, it’s not a survey on the best internet or Wi-Fi cities. It’s the most caffeinated cities:

“The windy city is also the most wired, according to a survey that showed people in Chicago are the most caffeinated in the United States. Chicagoans eat more chocolate and drink more cola than other U.S. urbanites, and are among the top consumers of energy drinks and coffee. They are also likely to say caffeine is good for you, according to the poll conducted by Prince Market Research.

Tampa, Miami, Phoenix and Atlanta rounded out the top five most caffeinated cities, while residents of San Francisco, Philadelphia, New York, Detroit and Baltimore consumed the least caffeine.

“It’s surprising perhaps that some places you may think have a lot of hustle and bustle like San Francisco, Philadelphia and New York, were the least caffeinated cities,” said Todd Smith, a spokesman for HealthSaver, a healthcare discount service that commissioned the poll.

The survey looked at consumption of coffee, tea, chocolate, sodas, energy drinks and caffeine pills in 20 major cities in the United States by interviewing 2,000 people.”

Seattle residents are the leaders in coffee consumption, which isn’t that surprising given it is the birthplace of Starbucks:

“Seattle took the top spot in just caffeinated coffee consumption. Nearly 60 percent of residents in the city said coffee would be the most difficult caffeine product to give up.”

Now they need a survey to see whether internet addiction is related to caffeine addiction.


About the 60 Minutes Story on “Curve Ball”

Filed under: General — WLS @ 3:08 pm

Posted by WLS

I watched with interest the story on Curve Ball this past Sunday, and the information 60 Minutes compiled for the piece certainly added new and important facts to the historical analysis of the mistakes made by the CIA in the lead-up to the war.  But, CBS found a way to shoot itself in the foot anyway when there was simply no reason to have to editorialize in an otherwise solid factual story.


Teen Who Ran Away with his Teacher can’t go Home (Updated)

Filed under: Immigration — DRJ @ 1:39 pm

[Guest post by DRJ]

Unfortunately, it’s not uncommon to read reports of teachers and students involved in relationships but this Nebraska case looks like it will have an unlikely ending:

“The 13-year-old who fled from Nebraska with a middle school teacher told The Associated Press their friendship led to sex and a rambling journey to nowhere that now has them both facing fates they never wanted.

The boy, an illegal immigrant from Mexico, might not ever be able to return to the U.S., the country he considers home. The 25-year-old teacher, Kelsey Peterson, is in a California jail on charges of crossing state lines with the intention of having sex with a minor.”

No matter how willing he may have been, the student is a minor so I think the only way to view this incident is as an abduction case across international lines. It’s hard to believe there isn’t a humanitarian exception that would allow him to be returned to his Nebraska family.

Having said that, however, now that the family has been identified I think those family members who are here illegally should face immigration proceedings and be deported if appropriate.

Update: More on this story here.


More Election 2007 Results

Filed under: Politics — DRJ @ 12:43 pm

[Guest post by DRJ]

There were other interesting election results yesterday in addition to the Utah school voucher referendum and the Kentucky and Mississippi Governorships discussed in prior posts here and here.

First, the Democrats gained control of the Virginia Senate for the first time in a decade, giving the Democratic Party control of both the Senate and the Governorship, as well as additional seats in the House. The new Senate Majority leader contends the win will be especially important to Northern Virginians:

“Sen. Richard L. Saslaw (D-Fairfax) said the gains in the Senate will be significant for Northern Virginia residents “because virtually every senator up here becomes a committee chairman. That’s huge.”

Saslaw, who will probably be majority leader, also becomes chairman of commerce and labor, for instance. “There will be a heavy urban focus,” he said in an interview, referring to the Senate under new leadership. But he also sought to strike a centrist note, saying: “The state Senate has always governed from the center. That’s what we do.”

Second, there were surprising (to me) results in referendums in New Jersey and Oregon:

“New Jersey: Voters rejected a referendum to authorize the state to borrow $450 million over 10 years for stem cell research.

Oregon: Voters decided against raising the cigarette tax by 84.5 cents a pack — to $2.02 — to fund health insurance for about 100,000 children now lacking coverage.”

In the meantime, Texans approved “$3 billion in bonds to create a cancer research institute.” If I had been handicapping these elections, I would have guessed Texas would vote against public funding/taxes for medical research and/or health insurance, while New Jersey and Oregon would vote for it. It turned out just the opposite. Interesting.


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