03 May William Ranney Levi on Interrogation Techniques
William Ranney Levi’s paper on interrogation techniques, Interrogation’s Law, is forthcoming in Yale Law Journal, but is up at SSRN. Here is the abstract:
Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal more flexibility than the high-minded legal prohibitions of coercive tactics would suggest: all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before. The conventional wisdom thus elides an intrinsic characteristic of all former and current laws on interrogation: they are vague and contestable, and thus, when context so demands, manipulable.
The paper is starting to circulate beyond academic law circles because, of course, of its relevance to the question of criminality in sanctioning or advising on interrogation techniques. David Shribman, for example, makes note of it in a column this week at RealClearPolitics. I’ve just started reading it, so I can’t comment. But even just starting into it, the paper struck me as one that will occasion much debate, and that OJ readers might be interested in getting word of it sooner rather than later.
Shribman says the following of the article, although I have no idea whether this is an accurate characterization of Levi’s use of elite law professor interlocutors:
But far below the surface of the noisy Washington and cable-television conversation is a quieter but very serious debate, sparked by the circulation in elite legal circles in recent days of an Internet version of a forthcoming article in the Yale Law Journal that argues that “all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before.”
This article, by William Ranney Levi, is significant as much for its intellectual provenance as it is for its contents. Levi, part of one of the most distinguished legal families in the nation, exposed his argument to the rigorous review of several leading legal minds, conservative and liberal, some of whom doubtlessly disagree with him.
He cites consultations with Jack L. Goldsmith, the conservative Harvard law professor who resigned from the Bush Justice Department and later expressed qualms over the Bush anti-terrorism legal rationale; Harold H. Koh, the dean of the Yale Law School and a leading human rights activist who has been nominated by Obama to be legal adviser to the State Department; Mariano-Florentino Cuellar, a Stanford law professor in the Obama inner ring; and Martin S. Lederman, a Georgetown law professor and fierce Bush critic who is the president’s choice for a leadership position in the powerful and prestigious Office of Legal Counsel at the Justice Department.
This article, by William Ranney Levi, is significant as much for its intellectual provenance as it is for its contents.
That struck me as sort of an odd comment to make. When you talk about something’s provenance, you’re talking about where it comes from, its origin, or the record of its ownership. That, in turn, makes it sound like the arguments Levi is making (whatever they turn out to be) are attributable in some measure to people like Koh and Lederman.
I also find it curious that Levi was described as having submitted his article for “rigorous review,” as though conservative and liberal legal scholars alike were confirming that he followed the scientific method properly and didn’t accidentally bleb a cell or something.
But now that I look at his column, I see why he characterizes it this way. He wants to say that because Levi let other scholars read his paper, and they read it and offered their thoughts about it, then therefore Levi’s claims are legally plausible.
I’m sure I don’t need to point out how ridiculous that notion is. If I can get a respected scholar to read a paper of mine, it automatically gains credibility?
The provenance question is important because the media have created an environment where all comment on the ‘techniques’ is partisan and political. The idea of this academic being just that means the reader can take him at his word.
As regard “peer review” – to the uninitiated the point needs to be made that some articles appear like newspaper comment pieces without others even considering the authors contents while others are thoroughly tested by an editorial board before publication. For academics that would denote academic rigour, for laymen this has no meaning so in a rather elaborate and media-friendly way the author explains that process.
The view that, no matter what (not even possible war crimes), a US administration shall never be liable for criminal prosecution appears counterproductive. If the US feels its administration is free to violate human righrs/commit war crimes, on what grounds would it then argue that war criminals from other countries (Yugoslavia, Sudan, et cetera) should be prosecuted. This view does however explain the vehement opposition to the ICC. God forbid that high ranking US officials will be held accountable. Quod licet Jovi non licet bovi?
Benjamin Wittes, Law and the Long War, made the same points as those in the abstract.
Wittes was summarizing Levi — he not only footnotes Levi as authority, but mentions Levi in the text itself.
A summary by Levi for those without time to read the whole article. http://balkin.blogspot.com/2009/04/history-of-coercive-interrogation.html
“Levi, part of one of the most distinguished legal families in the nation”
Uh . . . What possible relevance does this have? To even mention it reveals someone trying a bit too hard to build the case for added weight . . .
This is one more version of the effort to evade criminal prosecution by elite members for elite members. It does seem to overlook the fact that there are people who are in the military who have served or are serving time and been dishonorably discharged or demoted for doing these techniques. That we did not prosecute our own before says only that access to information about these things was extremely restricted. With the advent of the internet times have changed enough so that more average Americans and people in the world can see and insist that the rules in these laws be used to criminally prosecute. Now, I have to read another article by another scholar who is once again going to come to a conclusion that “gee this was what we always did – what’s the big deal”. I went down this path with Patrick O’Donnell talking about the efforts to normalize these things. What is not normal is that our CIA may have done these things or did do these things at different times. The blows are in the body. By the way, the OPR report is alleged to call for state processes for disbarment or discipline for… Read more »
On Benjamin Wittes, I spoke to him at American University Washington College of Law event last spring run by Steve Vladeck about the fundamental error in his method of identifying “true terrorists” based on the publicly available interview information. That is an eminently manipulable source. He did not appreciate that comment, but there we are.
On Goldsmith, I hope that persons here are aware of his “word manipulation” in his own opinion to permit people to be taking out of Iraq to be tortured. This was the subject of Professor Jose Alvarez and Professor Nayla Sadat’s profoundly apropos critique in a Symposium on Torture several years ago in the Case Western International Law Journal. The hagiography given to Goldsmith is repugnant to many of us.
Best,
Ben
Finally, I have read the summary and Levi’s article is the next version of “we need to pass a new law” to solve the problem. What of course is done in this artful dodge is that no one is prosecuted under the old law – that is the heart of the new legislation effort. Not this time.
The question at the heart of this is what was done in the bodies and minds of the persons who were interrogated. Those are the facts and then we can see whether the elements of the rule have been met.
Once again, not good enough.
Best,
Ben