The View From the Waterboard

Tuesday, November 6, 2007

ATTORNEY GENERAL nominee Michael B. Mukasey may have his doubts about what constitutes waterboarding and whether it is illegal. Daniel Levin has no such questions.

Mr. Levin was acting head of the Justice Department's Office of Legal Counsel in 2004 when he volunteered to be waterboarded, according to a remarkable Nov. 2 report by Jan Crawford Greenburg and Ariane de Vogue of ABC News. In the midst of revising the Justice Department's legal rationale on interrogation methods after the repudiation of the infamous "torture memo," Mr. Levin wanted to experience waterboarding, or simulated drowning, to determine whether it triggered the legal definition of torture. After being subjected to the technique at a Washington area military installation, Mr. Levin concluded that waterboarding could be illegal unless performed under the strictest supervision and in the most limited of ways. Mr. Levin finished drafting the new legal memorandum in December 2004.

According to the ABC report, Mr. Levin's findings did not sit well with the administration. Then-White House Counsel Alberto R. Gonzales insisted that Mr. Levin add a footnote to the memo that made clear that the revised memo did not make the administration's previous opinions illegal. Mr. Levin was forced out of the Justice Department a few months after Mr. Gonzales was confirmed as attorney general in early 2005.

Mr. Levin, now in private practice with a Washington law firm, declined to discuss the matter. But his name can be added to the roster of accomplished conservative lawyers, including former deputy attorney general James B. Comey and former Office of Legal Counsel chief Jack L. Goldsmith, who found themselves fighting to sustain the rule of law in an administration too often eager to suspend it. If Mr. Mukasey is confirmed, as we believe he should be, the eradication of this kind of disregard for principle and law should be his first priority.

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