The Justice Department’s Culture of Torture

by Scott Horton - Nov 7, 2007

On Friday, Nov. 2, ABC’s World News with Charles Gibson carried a story with a series of stunning accusations. Jan Crawford Greenburg provided a report that cleared up a long-standing mystery: why did Daniel Levin, the acting assistant attorney general in charge of the Office of Legal Counsel who authored the second in the Justice Department’s series of highly controversial “torture memoranda,” suddenly depart his post? The story that unfolded was grotesque, almost impossible to believe. I have been a critic of the Bush Justice Department for some time, but this story even I was reluctant to believe. So I waited, expecting that the Justice Department would denounce ABC’s report as some sort of hoax or falsehood. In the intervening four days, however, the Justice Department has maintained a steady silence on the story which can be explained only one way: the story is true.

A senior Justice Department official, charged with reworking the administration’s legal position on torture in 2004 became so concerned about the controversial interrogation technique of waterboarding that he decided to experience it firsthand, sources told ABC News. Daniel Levin, then acting assistant attorney general, went to a military base near Washington and underwent the procedure to inform his analysis of different interrogation techniques.

After the experience, Levin told White House officials that even though he knew he wouldn’t die, he found the experience terrifying and thought that it clearly simulated drowning. Levin, who refused to comment for this story, concluded 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.

Daniel Levin is a dyed-in-the-wool conservative Republican. Now, recall Michael Mukasey’s suggestion that he didn’t know what waterboarding was. Levin took a logical approach: he decided to experience it firsthand. And he came to a conclusion that, in my mind, shows unacceptable flexibility in accepting the technique. But how did the Bush White House react to this? It was swift and simple: Levin was forced out of office.

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.

The Bush Administration’s swift reaction: any deviation from the torture litmus test results in dismissal.

The matter raises some more very unpleasant questions. Levin was trying to impose some guidelines on the use of waterboarding as a technique. The purpose of the guidelines was to preserve some very questionable basis to argue that the practice was not torture. So why did the administration put a stop to that? I can see one explanation: they wanted complete flexibility. That means that they contemplated practices that would venture into the most extreme, cruel and horrible treatment. No limitations–let the torturer have at it.

Note that Alberto Gonzales insisted on the inclusion of an infamous footnote which stated that, notwithstanding the different analysis, it was not overturning the advice given by the Yoo/Bybee torture memorandum. Although Levin grudgingly included this, that was not enough to save his job. Why did the administration insist on this footnote? Because people had in fact been waterboarded, and this occurred with the authority of some of the seniormost officials of the Administration: Cheney, Addington, Gonzales, and Rumsfeld, for instance. Without this, the door would be open for their criminal prosecution. Senior officials of the Administration were manipulating the issuance of opinions in the Justice Department to shield themselves from criminal prosecution.

This incident dramatically demonstrates the fixation that Gonzales and Cheney’s team in particular have with the torture issue, including waterboarding. Their fixation has nothing to do with the camouflage they generally put up about torture allowing the nation to defuse nuclear bombs like Jack Bauer in “24.” It is directly tied to their own perception that they are guilty of criminal conduct and their determination to abuse the powers of Government to block any effort to prosecute them.

Waterboarding is torture. It has been understood to be torture since the sixteenth century. Waterboarding was used to torture Black slaves in America before the Civil War. American prosecutors have indicted and tried criminal defendants for torture in connection with the use of waterboarding—bringing and succeeding in cases against both Americans and others. Judge Wallach’s excellent law review article, “Drop by Drop,” covers this well-documented history which the Administration insists that all its lawyers forget. Wallach’s op-ed summarizing his conclusions can be found here.

There is no serious or competent basis upon which waterboarding can be claimed to be legal. The persistence of these bogus arguments is just more evidence of the deterioration of public discourse. Our habit as a nation has always been to accept anything that our political leadership states as a respectable contention, even if worthy of criticism. But with the arrival of the Bush Administration this has become an extremely dangerous premise. There is no respectable opinion that can hold waterboarding legal. It is criminal depravity. When we allow its justification as an article of polite conversation, we deal our society and its values a potentially mortal wound.

“Political language. . . is designed to make lies sound truthful and murder respectable,” George Orwell reminded us in “Politics and the English Language.” In the waterboarding debate, Orwell’s warning has found its most literal application.