The Levin Memo

But Bybee’s is not the only torture memo that deserves similar judgments. On the eve of Alberto Gonzales’s confirmation hearing as Attorney General, the Justice Department abruptly withdrew the Bybee Memo and replaced it with another OLC opinion, the Levin Memo.⁶² OLC lawyer Daniel Levin vehe­mently denounced torture, retracted Bybee’s specific intent analysis, rejected the “organ failure” definition of severe pain, and no longer argued that it would be unconstitutional to prosecute Presidentially authorized torturers.

Read closely, however, the Levin Memo makes only minimum cosmetic changes to the bits of Bybee that drew the worst publicity. Levin does not point out the weaknesses in Bybee’s criminal-defense arguments; he simply never discusses possible defenses to criminal charges of torture.⁶³ The memo likewise ducks the presidential-power question rather than changing Bybee’s answer. And, although Levin explicitly contradicts Bybee’s conclusion that pain must be excruciating to be severe, every one of the Memo’s illustrations of “severe pain” is, in fact, excruciating: “severe beatings to the genitals, head, and other parts of the body with metal pipes, brass knuckles, batons, a baseball bat, and various other items; removal of teeth with pliers... cutting off... fingers, pulling out... fingernails” and similar atrocities.⁶⁴ These

and clumsy; it is hard to speak clearly when you are fudging. The next sentence is even worse, bordering on gibberish: “In fact, Congress explicitly removed efforts to remove torture from the weighing of values permitted by the necessity defense.”

⁶² It is reproduced in The Torture Debate, supra note 2, at 361.

⁶³ He does say that “there is no exception under the statute permitting torture to be used for a ‘good reason.’ ” Ibid. at 376. This might be read to suggest that the defenses of necessity and self-defense are unavailable, but the context suggests otherwise.

⁶⁴ Ibid. at 369.

barbaric illustrations are the only operational guidance Levin has to offer on how to tell when pain is “severe,” and they obviously suggest that milder techniques are not torture. While Levin’s legal reasoning marks a return to normalcy, the opinion provides ample cover for interrogators who “merely” waterboard detainees or deprive them of sleep for weeks. Indeed, Levin specifically states that he has “reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do[es] not believe that any of their conclusions would be different under the standards set forth in this memorandum.”^[342] This includes another, still secret, August 2002 OLC opinion on specific interrogation techniques used by the CIA, believed to include waterboarding.^[343]

Indeed, at one point the Levin Memo indulges in the kind of frivolous statutory interpretation that was the hallmark of the Bybee Memo it replaced - and that is a carefully crafted paragraph that reads a nonexistent word into the torture statute which would render it inapplicable to waterboarding.^[344] Recall that the torture statutes define torture to include both severe physical pain and severe physical suffering. Waterboarding, by duplicating the experiences of drowning, would presumably fall under the “suffering” prong of this definition rather than the “pain” prong. And the suffering must indeed be severe: according to CIA sources, Khalid Sheikh Mohammed, the architect of 9/11, “won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before begging to confess”; CIA agents who underwent waterboarding all broke in less than fifteen seconds.^[345]

Enter the Levin Memo, which concludes that “to constitute torture, ‘severe physical suffering’ would have to be a condition of some extended duration or persistence as well as intensity.”^[346] That would exclude any technique that breaks victims in a matter of seconds or minutes, such as waterboarding. But in fact, the torture statute contains no mention whatever of “extended duration or persistence.” This is especially striking because the statute does state that mental pain and suffering must be “prolonged” to count as torture - but it never says that physical pain or suffering must be prolonged. The authors of the Levin Memo simply made up the duration requirement out of whole cloth.