June 19, 2008 — -- Former Attorney General Alberto Gonzales, now under investigation for allegedly politicizing the Justice Department, ousted a top lawyer for failing to adopt the administration's position on torture and then promised him a position as a U.S. attorney to placate him, highly placed sources tell ABC News.
Gonzales, who was just taking over as attorney general, asked Justice Department lawyer Daniel Levin to leave in early 2005, shortly after Levin wrote a legal opinion that declared "torture is abhorrent" and limited the administration's use of harsh interrogation techniques.
At the time, Levin was in the middle of drafting a second, critical memo that analyzed the legality of specific interrogation techniques, like waterboarding.
Gonzales, however, was concerned about how it would be perceived if Levin were ousted immediately after issuing the opinion — and just before he finished another — so he offered Levin a less significant job outside the Department of Justice at the National Security Council, sources tell ABC News.
Gonzales then assured Levin he would, at some point, recommend him for a plum job as the U.S. attorney in Los Angeles, sources tell ABC.
A spokesman for Gonzales, Robert Bork Jr., called it "simply untrue" that Levin was fired for his work on the torture opinion.
"Judge Gonzales denies the contention that Mr. Levin was 'placated' with an offer of the U.S. attorneys slot in Los Angeles," Bork said, adding that Gonzales considered him "extremely well qualified for such a role" and that Levin had expressed an interest in it.
Bork said Levin was appointed to his Justice Department job in a "temporary" capacity for "a short period of time" and was offered a "critical legal position" in the NSC after a "permanent nominee" at Justice was identified. Bork said Gonzales "has the greatest respect" for Levin.
Levin took the NSC job in March 2005. The U.S. attorney position never materialized, and sources close to Levin say he never believed Gonzales was serious. He went on to take a job in private practice.
Testifying before Congress Wednesday, Levin, who had been the Department of Justice's acting head of the Office of Legal Counsel, said he had hoped to remain in the post after writing the torture memo.
"You were asked to go because you were at odds with administration's policies," said Rep. Artur Davis, an Alabama Democrat. "I think there is a pattern here. A lot of the people who got it right have been asked to leave by this administration."
Levin acknowledged in the hearing that he was asked to leave after he wrote the December 2004 memo on torture. He refused to speculate on why Gonzales asked him to leave the Office of Legal Counsel, which issues legal opinions and provides guidance to the White House.
"I would have preferred to have stayed," he said.
The allegation that Gonzales dangled a U.S. attorney's job in front of a top official he was ousting connects two investigations that have monopolized the Justice Department in recent years.
Just a few weeks before Levin was asked to leave, White House Advisor Karl Rove and Gonzales were involved in discussions over the dismissals of several U.S. attorneys. Nine were dismissed the following year, and the matter erupted into a scandal, with critics alleging the administration saw the US attorney posts as patronage positions.
Congress held hearings to explore whether the attorneys had been dismissed for improper political considerations, and the matter now is under investigation by the inspector general of the Department of Justice. Although Gonzales denied ever asking for resignations for "partisan political gain," he and several top officials at the Department of Justice ultimately resigned in the wake of the controversy.
Months later, after Levin left DOJ and took the NSC job, Gonzales' chief of staff wrote a memo that included Levin's name as a possible replacement for the U.S. attorney position in San Francisco, not Los Angeles.
But sources say Levin would never have been a serious contender for that office because of earlier work he had done there. He worked in the office in 1999, as counselor to then-U.S. Atty. Robert Mueller, during an extensive and highly contentious effort to reshape it.
Levin could not be reached for comment.
Late Wednesday, one former senior official says Levin was forced out at DOJ, in part, because the administration believed his torture opinion was too critical.
Levin had criticized an earlier Justice Department opinion on interrogation techniques written by former Office of Legal Counsel Deputy John Yoo. That controversial memo narrowly defined torture as only techniques that result in "death, organ failure or the permanent impairment of a significant body function."
In June 2004, the Justice Department's Jack Goldsmith withdrew Yoo's opinion, finding it flawed and poorly reasoned. When Goldsmith resigned, Levin was tasked to write a new memo on torture policy to replace Yoo's original one.
A former administration official said Levin pulled no punches in his memo — even referencing liberal scholar Anthony Lewis, a harsh administration critic, in a footnote.
Yet, within weeks of releasing it — and while drafting a second, major memo that analyzed whether specific techniques like waterboarding were legal—Levin was asked by Gonzales to leave the Justice Department.
Sources say the administration believed Levin could not be counted on to "come out the right way" on interrogation issues, as well as another controversial anti-terrorism program involving warrantless wiretapping.
Levin, a graduate of Harvard University and the University of Chicago Law School, was seen by some in the administration as too independent, sources said. For example, while analyzing specific interrogation techniques, he went to a military base outside Washington and personally underwent waterboarding, which he concluded qualified as torture, unless done in a narrow way with close supervision.
Levin refused to discuss the waterboarding experience in his congressional testimony Wednesday.
Levin was replaced at DOJ by Stephen Bradbury, who remains today as "acting" head of the Office of Legal Counsel because the Senate has refused to confirm his nomination. Bradbury ultimately wrote the second memo on specific interrogation techniques that Levin had been working on before his ouster.
Former administration officials say Levin's ouster was not an isolated one. Months after Levin was let go, Patrick Philbin, a former top Justice Department lawyer, also was blocked from promotion within DOJ former senior administration officials say.Philbin, too, had sided with moderates in the Department and took issue with some of the legal reasoning used to authorize interrogations and warrantless wiretapping. Ironically, it was Philbin who was the first to alert Goldsmith of possible problems in several legal opinions written in the years after Sept. 11th.Although a solid conservative on national security issues, Philbin, like Levin, was aligned with the more moderate Deputy Atty. General James Comey.
Philbin was at Comey's side during the infamous hospital visit in March 2004, when then-White House Counsel Gonzales and Chief of Staff Andy Card rushed to the hospital room of a gravely ill Attorney General John Ashcroft to persuade him to reauthorize the wiretapping program after Comey refused.
In Senate testimony last year, Comey was asked what person he was referring to when he said, in a farewell address to DOJ, that some people "did pay a price" for their commitment to "getting it right and doing the right thing, whatever the price."
"I had in mind one particular senior staff of mine who's been in the hospital room with me and had been blocked from promotion, I believed, as a result of this particular matter," Comey said, under questioning from Sen. Russell Feingold, the Wisconsin Democrat. "It's Mr. Philbin."
Less than a year after the hospital visit — in early 2005, as Levin was getting shown the door … Paul Clement was nominated solicitor general and sought to make Philbin his principal deputy. The two had gone to Harvard Law School together, clerked for conservative icon Judge Laurence Silberman and gone on to clerk at the Supreme Court, Clement for Justice Antonin Scalia and Philbin for Justice Clarence Thomas.
But David Addington, Vice President Cheney's top legal adviser, furiously objected to the promotion, sources said. Gonzales refused to go against the White House, sources said, and Philbin was denied the post.
The job ultimately went to Gregory Garre, a lawyer in private practice who had clerked for the late Chief Justice William Rehnquist.
Philbin, like Levin, is now in private practice in Washington.