In short, the story is this: Jack Goldsmith left OLC before he could complete the "replacement" torture opinion. Daniel Levin succeeded him. OLC had previously opined that waterboarding was lawful. Levin apparently (and understandably) was a bit skeptical -- so much so that he asked the military to subject him to waterboarding! (This is not your parents' OLC -- can you imagine what it would take for anyone after this to want to be Assistant Attorney General there?) Naturally, Levin concluded that the procedure was, well, torture, at least "unless performed in a highly limited way," and under guidelines the Administration had failed to implement. (No doubt Levin did suffer severe physical suffering, and that's in a situation far removed from being a detainee.)
At this point, Alberto Gonzales nevertheless insisted that Levin include in his December 30, 2004 opinion the footnote about how the legal analysis did not affect all previously approved techniques! It's not clear why Levin assented to this -- it's an outrageous and inappropriate thing for a White House Counsel to do -- but the footnote was included.
Levin then set about to write another opinion, one that would cut back on the approved techniques (and that would, at a minimum, repudiate or temper the previous OLC advice on waterboarding).
Unfortunately, at this point Gonzales was confirmed as AG -- and he fired Levin, replacing him with Steve Bradbury, who was more than happy to give Gonzales the legal advice they wanted. (No word -- yet -- on whether Bradbury was waterboarded.)
November 4, 2007
While I am at it
Marty Lederman has a great, and succinct retelling of the Daniel Levin story. You will love this--especially the part that Al Gonzales plays in making sure we torture people and that Bush/Cheney/Addington simply disregard any information that does not support their claim.