Attorney General

Some DOJ Lawyers Who Questioned Waterboarding Agreed it Was Legal

In 2005, Justice Department lawyers differed over the propriety of waterboarding and other harsh interrogation techniques for terrorism suspects, but all agreed that it was legal.

Even lawyers who raised objections to some of the methods—including James Comey and Daniel Levin—agreed they were legal under a 1994 anti-torture law, the New York Times reports. The newspaper bases its report on previously undisclosed e-mail messages, interviews and recently declassified documents.

“In years of bitter public debate, the department has sometimes seemed like a black-and-white moral battleground over torture,” the story says. “But a closer examination shows a more subtle picture. None of the Justice Department lawyers who reviewed the interrogation question argued that the methods were clearly illegal.”

The lawyers went along with a May 2005 legal opinion that said 13 harsh interrogation methods used by the CIA, including waterboarding and 180 hours of sleep deprivation, were legal, the story says.

While Comey acquiesced in the 2005 legal opinion, he objected to a second opinion allowing multiple techniques to be used in a single interrogation session, the story says. Despite his views on legality, Comey told of ethical objections in an e-mail he he sent to a colleague in 2005. Comey said he told then-Attorney General Alberto Gonzales a case could be made “that some of this stuff was simply awful” and he should not feel compelled to give in to pressure by Vice President Dick Cheney to quickly approve the memos.

“I told him the people who were applying pressure now would not be there when the [expletive] hit the fan,” Comey wrote in another e-mail message. “It would be Alberto Gonzales in the bull’s-eye. I told him it was my job to protect the department and the A.G. and that I could not agree to this because it was wrong. I told him it could be made right in a week, which was a blink of an eye, and that nobody would understand at a hearing three years from now why we didn’t take that week.”

Another Justice Department lawyer, Daniel Levin, had undergone waterboarding and sought limits on its use, according to previous news accounts. But the Times says Levin wrote much of the May 2005 opinion authorizing the 13 methods, even though it was signed by Steven Bradbury.

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