article

05.03.09

Bush's Lawyers Strike Back

In a candid joint interview, ex-Attorneys General Alberto Gonzales and John Ashcroft talk to Dan Abrams about whether torture is illegal, fear of prosecution, and mistakes they made.

In a brutally frank and at times contentious interview, former Attorneys General John Ashcroft and Alberto Gonzales sat down with Dan Abrams to talk about:

•their definition of torture (“Were the interrogations harsh? Yes. Did they save lives? Absolutely.”)
•whether it was illegal (“It was a very close call.”)
•mistakes they made (“Wouldn’t it be great, if all of us in public service, could go back and correct any mistakes that we may have made on behalf of the American public?”)
•when it’s acceptable to fire a U.S. Attorney (“I think it is improper, as I indicated before, to remove a U.S. attorney, because that U.S. attorney failed to prosecute, say, a Democrat.”)
•a fear of prosecution and disbarment (“only a fool wouldn’t worry about it“)
•and who the attorney general really answers to (“I think the Constitution and the American people are your primary clients.“)
.

Our interview, part of a speaker series organized by the American Jewish University on April 27, included a dinner and post-event cocktail “meet and greet.” Maybe I was naïve, but after chatting with the guests, I assumed the audience would be pretty evenly split politically. But on that stage, in front of about 2,500 people, I felt like the visiting team shooting free throws at a crucial moment in the game. I was booed, hissed, and heckled while Ashcroft and Gonzales were regularly applauded. While I occasionally received polite applause, their supporters made sure to have their voices and hands heard.

“I think that the U.S. government provided advice to CIA interrogators based upon the best legal reasoning by the lawyers in the Department of Justice. Was it torture, when that advice was given? No.”

Throughout my career, I have conducted many contentious interviews but they were generally for my show or my network—on my turf. Not this time. The two men fidgeted. I fidgeted. I pushed and they pushed back. They rolled their eyes and I continued to pursue some clearly uncomfortable topics—the definition of torture, who the attorney general actually works for, and under what circumstances U.S. Attorneys can be fired.

You can find a full transcript of the interview on my Twitter page.

Dan Abrams: Let’s start by just talking broadly for a moment. Attorney General Ashcroft, how’s Obama doing?

John Ashcroft: [Laughter] I think he’s done pretty well. I’m glad he hasn’t decided precipitously to close down Guantánamo. Because it’s the national interest that we be able to keep dangerous people who we apprehend on the battlefields from being released. We know that out of the people we have released, hundreds of people that have been released—even the ones that we thought it was OK to release. So I’m glad he made that decision. I don’t want anything to happen that impairs the national interest, particularly in the area of national security. So there are lots of things I’m thankful for. I don’t have quite the same tint in my glasses that you do in yours, but that doesn’t keep me from being grateful.

I just can’t decide, Attorney General Gonzales, if Attorney General Ashcroft is kind of pulling his punches. Do you agree with those comments, or are you more critical?

Alberto Gonzales: I tend to follow President Bush’s model in terms of saying less—as opposed to Vice President Cheney’s [Laughter]. The decisions at this level are so incredibly hard, you can’t even imagine how difficult they are.

Let’s assume they’re hard. Let’s assume the questions are hard. How’s Obama dealt with them. Has he dealt with them well?

AG: I think it’s probably too early to tell. It’s 100 days. The man should be given the opportunity to succeed or fail. He was elected by the American people, and he deserves the benefit of the doubt, and I think it’s just too early to tell. I’m pleased generally with some of his decisions. Some of his decisions I’m not so happy with. But I just think it’s too early to tell.

OK. Speaking of Vice President Cheney. He did have something to say about President Obama. He said: “He’s making some choices that in my mind will in fact raise the risk to the American people of another attack.” Judge Gonzales, do you agree with that?

AG: You know, I’m a lot more interested in the assessments by the intelligence professionals, quite frankly. When I hear Mike Hayden, former CIA director, express concerns that the release of the interrogation memos, for example, has weakened our national security, that concerns me. And so, again, we need time to evaluate.

But can you theoretically say that the release of the four memos is somehow going to lead—is going to make an attack more likely?

JA: Well, whether you elevate the risk by providing more information to the enemy—

That elevates the risk?

JA: Very frequently.

In this case.

JA: No, no—

Do you think the release of these memos elevated the risk?

JA: I don’t know. I haven’t made that decision. I’m talking about the fact that when you provide information to the enemy, and it’s valuable to the enemy, the risk goes up. When you also suggest to the American people that the risk is going down, there’s almost the situation where when people guard against the risk less because they feel more secure, the risk goes up. We’re dealing with an enemy that has sworn that they want to destroy us. And they call us the Great Satan, and they have continued to say that they want to fight us and that they want to injure us, and I take them at their word on that. Without adequate regard at one time it has cost us greatly. So I don’t think it’s reckless to say that if you provide something that assists the enemy.

And I think the difficulty we have here is the idea that we have to somehow hand them an engraved invitation to hit us again before people think it helps them. There are lots of things that could help.

But it sounds like you’re suggesting that the release of these memos is somehow handing them an invitation to attack. Let me read you what President Obama said about this. He said: “the interrogation techniques recorded in these memos have already been widely reported. The previous administration publicly acknowledged portions of the program, and some of the practices of these memos. I’ve already ended the techniques described in the memos through an executive order, therefore withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.”

AG: Let me just say, Dan, that [former CIA director] Mike Hayden and Mike Mukasey, who followed me as attorney general, responded in an Op-Ed to the release of the memos in response to these arguments. It is one thing to say that we engage in these kinds of techniques—

Engaged, past tense.

AG: [Puts his hand up.]

Well I mean, there’s a difference. You can’t just say we engage, because it’s almost like they got an old playbook. Right? From five years ago. And they’re saying, “Hey, we got the playbook! We got the playbook!” And it turns out they got a new coach, and a new play.

AG: The main point, the main point, is—it’s one thing to say that this particular technique, but the level of detail in these memos have never been made public before. In does provide, in my judgment, important information to the enemy.

Like what?

AG: But more importantly, in the judgment of Mike Hayden, and the current CIA director, and four previous CIA directors…

But CIA Director Leon Panetta did not say that it was providing comfort to the enemy or providing information…

AG: I’m not saying comfort to the enemy, but I’m saying it does harm the national security of our country.

He didn’t use that term, but—

AG: And then secondly, to say that we have now discontinued these techniques. They may be necessary in the future. And by disclosing it, means you take them off the table and they can never be used again.

JA: I believe there’s been a law change since some of these memos were originally written. And I think if the president wanted to, he could withdraw and discontinue things, maybe predicated on the change in the statute, which was endorsed, I think, by the Republican candidate for president and in the legislative process as well, as the members of the Senate generally and the House, and signed by the president. So, it may well be that there is a minimization of the potential damage here that could happen based on a discontinuity, but I think that General Gonzales makes a point that’s worth understanding.

Judge Gonzales, I’m going to ask you a very direct question. And it relates to something you just said. Do you believe waterboarding is torture?

AG: Here’s what I’ll say. I think that the U.S. government provided advice to CIA interrogators based upon the best legal reasoning by the lawyers in the Department of Justice. Was it torture, when that advice was given? No. Were the interrogations harsh? Yes. Did they save lives? Absolutely.

[Applause]

Did they get it right? I’m asking your legal opinion. Waterboarding is—they define it in all the memos how waterboarding is defined—and if we need it defined I’m happy to read from it—how torture is defined. Do you think legally that waterboarding is torture?

AG: Dan, when I served in the administration, the position of the administration was that under certain conditions and circumstances, this technique would be lawful.

Now that you’ve had some time to think about it. You’ve been out of office for a while, and you get the opportunity to look back with 20/20 hindsight. Do you look back and do you say to yourself, we got that one right?

AG: Wouldn’t it be great, if all of us in public service, could go back and correct any mistakes that we may have made on behalf of the American public?

Well, you’ve got the opportunity right now.

AG: —We don’t have that opportunity.

You have the opportunity to say you know what, we blew it. We messed this one up, we got this one wrong.

AG: I will say that I made my fair share of mistakes in government. But I will also say that I, and the people that I work with, took actions to the very best of our abilities to protect our country in a very difficult period in our nation’s history. [Applause.]

Let me follow this. The U.S. military prosecuted our own troops for using waterboarding in the Philippines, tried the Japanese for war crimes for using it against the Allies and the U.S. troops in WWII. And yet, we’re suggesting that it’s not torture. [Applause]

JA: First of all, the word waterboarding can be defined in a lot of ways.

Let’s talk about the definition that was used in these memos—this is a legal document—of the definition of waterboarding. “Lying on a gurney that is inclined with an angle of 10-15 degrees from horizontal, with the detainee on his back. . . head toward the head end of the gurney, cloth pasted over the detainees’ face, and cold water poured on the cloth approximately 16-18 inches—this is the definition. The question is—

AG: Dan, the opinions have been withdrawn. There are no longer binding position of the department…

I understand that, but that doesn’t mean, as lawyers, we can’t sit and discuss whether this was a correct legal assessment. Because it seems to me, in my opinion, that it is impossible to explain how this particular procedure would not be considered torture. [Applause]

JA: Members of the department went and underwent the procedure.

Once or twice, not 266 times.

JA: Many members of our military in training undergo the procedure—

Once or twice.

JA: Were you there?

No, the memos explain it. It’s once or twice.

JA: OK. I don’t know how many times they underwent it. Let me just put it this way. We relied—I relied—on the best judgments of the lawyers in the department. There are 110,000 employees in the department, the lawyers are expert, and they came up with an opinion that became part of a memo. Later, some lawyers came to me and said "We’re not confident that that memo best expresses the law here." And I said to myself, "Well, I’m the attorney general, and if we have stuff out there that’s not the best expression, we ought to amend it. We ought to get the best information we can." You know we’re in a war, you give it to the president, you give information to the other individuals, but you say, you know, they deserve the best judgment. They reworked the memo, and they came a second time, these professionals did, and according to the definition of torture, they came to the conclusion that the procedure as provided along with the advice to our personnel did not amount to legal torture.

Did they get it wrong?

JA: I don’t think they got it wrong. It’s different now.

It’s different in what sense?

JA: Because the law has been changed. [John Ashcroft called me after the event to correct a mistake he made. He wanted to let me know that, in retrospect and after conducting more research on the matter, he realized that no such change in the law was ever enacted.]

The definition of torture?

JA: Yes! The definition of torture.

So the answer then, it sounds like, is the only reason you still believe the legal assessment was correct was because there’s been a change in the law?

JA: I believe that the work of the department by these professionals came to the right conclusion.

That waterboarding is not torture.

JA: That, as described, and as commented on in their memorandum, that it was not torture.

Judge Gonzales, are any of the following torture, and these were all things that were in the memo.

AG: Dan, I’m not—

Nudity, facial grasp, facial slapping, abdominal slap, cramped confinement, stress positions, water dousing—including 41-degree water—sleep deprivation, and waterboarding. Are any of those torture?

AG: Dan, as John said, and again I’m [saying] that what you’re reading from represents the work of the department. The lawyers within the department looked very, very carefully at the words of the statute, looked at the conditions and circumstances in which these procedures would be undertaken, and rendered a legal conclusion that under these circumstances, it would not violate the statute. Now, my understanding of the legal positions of the department has now been changed. So we can spend all evening debating the merits of a legal opinion of the Department of Justice, which by the way, opinions get changed—I don’t want to say all the time—but it’s not unusual to have opinions change and be modified as conditions change, as administrations change, as the Supreme Court renders a decision, opinions change.

[Applause]

So let me ask, in your view, this was a close call. It sounds like you’re saying this was a close call because there was a legal judgment made, and you think that they made the right call.

AG: It was a very close call. These are very, very difficult issues.

If in a year from now, Judge Gonzales, Attorney General Eric Holder fired eight or nine U.S. attorneys because they would not pursue, or at least in part, because they wouldn’t pursue certain politically charged cases against Republicans, would that be a problem?

AG: That would be a problem. Assuming if there were no merit. You know.

But what if it was part of the decision?

AG: If it was to interfere with ongoing prosecution or to punish a U.S. attorney for failing to prosecute someone when there’s no reason not to—that would be improper.

Well, take it apart, and let’s assume for a moment that there have been reasons that have been laid out for firing U.S. attorneys, and those stated justifications, there have been some questions about that, but you’d agree—if the primary reason why they were fired was because they wouldn’t pursue politically charged cases, they would not be proper.

AG: What do you mean politically charged cases? For example, if you’re saying one of the president’s priorities is voter fraud. And if we have U.S. attorneys who say "I don’t care about voter fraud, I don’t care what the president thinks, I’m not going to prosecute those kinds of cases," I think it would be legitimate to replace him. They serve at the pleasure of the president.

Well that’s the question, that’s why I’m asking the question.

AG: That would not be an improper reason.

Because voter fraud, you’d agree, is a politically charged issue, and it tends to be something Republicans pursue more than Democrats.

AG: But it also happens to be a crime. It’s stealing someone’s vote. There is a law against it. It is OK to enforce that law. And if a U.S. attorney doesn’t want to enforce it, and it happens to be a priority of the president of the United States—you bet.

So it sounds to me like you are saying it wouldn’t be—let’s use the voter fraud example—that it wouldn’t be improper for nine U.S. attorneys to be fired if they refuse to pursue cases like voter fraud?

AG: If you’re talking about as a general category, I’m fine with that. If you’re talking about specific cases, then I have to look at the facts of the specific case.

So is there any difference to you in appointing a U.S. attorney and firing one? Meaning, that everyone agrees that the appointment of U.S. attorneys is a political position. A president can clean house. When a Democrat comes in, they can appoint an entirely new group of U.S. attorneys that they want. Is there a different standard for firing them than for hiring them?

AG: I think the problem is that people have different definitions of what it means to be a political reason to remove someone. Because everything as you indicated with respect to the appointment is very political.

Should it be for firing?

AG: I think it is improper, as I indicated before, to remove a U.S. attorney, because that U.S. attorney failed to prosecute, say, a Democrat.

Even if that was the president’s—you said the president has a certain set of policies and positions he wants to take—even if that was one of them?

AG: To prosecute Democrats? President Bush would not have had that as a policy. [Laughs]

Let me move to a serious issue that has gotten a lot of, that has been testified to in front of Congress, that has been reported on extensively, and that is an incident that occurred when you were quite ill, Attorney General Ashcroft. And James Comey, the assistant attorney general, testified to this, as has former director of the FBI Mueller. That basically Mr. Gonzales, and [former White House Chief of Staff] Andrew Card had come to your bedside in order to get approval for the NSA spying program. And according to Mr. Comey, that basically you pointed at him and said he’s still the attorney general. And many have said that was a very brave thing to do at the point, particularly in your condition, at the time. And when the spying program was renewed, despite the fact that Mr. Comey had objected to it, that you and a group of others threatened to quit. Is that true?

JA: It’s true that it’s been reported in the papers that way.

Is this one of those times where they got it right?

JA: You know, I consider my health records to be confidential. [Laughter] And I don’t discuss my hospital records.

What about after the hospital? Put aside for a moment what happened at the hospital, what happened in the days after? This, I think very important claim, that you and a group of others threatened to quit.

JA: I’m not going to comment on that. But let me just say this, everybody who serves in the federal government ought to be ready to quit if they need to.

AG: We often want to quit, let me tell you.

DA: Judge Gonzales, you mentioned in your testimony—you mentioned you testified about it—and one of the controversial issues has been that in February 2006, that you had said that there has “not been any serious disagreement about the program the president has confirmed,” referring to the NSA program. And yet, we learned later, through the testimony of Comey and others, that there was real disagreement as is evidenced by what happened in Attorney General Ashcroft’s hospital room. James Comey testified, “I was angry. I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of attorney general because they had been transferred to me.” Mr. Mueller testified that “I had an understanding the discussion was on an NSA program.” Were you candid in your testimony when you said there has not been any serious disagreement about the program?

AG: Dan, I stand by the testimony.

Were you candid?

AG: I stand by the testimony. And subsequent testimony. And believe me, I’ve been asked this question many times. I submitted a letter amplifying, clarifying my testimony. I think that letter was sent August 1, 2007, so there’s a lot already out there on the record about my testimony. I’ve got nothing else to add.

But how could you have said that there was no serious disagreement about this, when there was this major showdown?

AG: Here’s the problem, folks. We’re talking about the sensitive, classified programs of the United States. The president disclosed only one aspect of many things that we do. And so it’s very difficult to talk about these things in a public setting, it really is. So obviously I did that, Dan. I’ve said everything I could say in testimony. In closed hearings, I’ve amplified my remarks, but I can’t say anything more in a public setting. [Laughter]

Did you have any qualms about going to the room of a sick man? [Audience boos] You’ve got the audience’s support.

AG: You know, John is right. What’s really important is that at the end of the day, a very important program on behalf of the United States of America, it continued. There may have been some modifications, there may have been some changes, but the lawyers worked these things out.

Judge Gonzales, as attorney general, is the president your client?

AG: The president is obviously someone who receives legal advice from the attorney general. But I think the Constitution and the American people are your primary clients.

You say primary. Is the president also—is it a shared responsibility?

AG: The president looks to the attorney general for legal advice. He looks to the attorney general for legal opinions. Not just the president, the other executive branch agencies, turn to the Department of Justice, the AG, the Office of Legal Counsel, for legal opinions which represent the legal position of the executive branch. So in a sense, yes, the president, the executive branch agencies, represents one of the clients of the attorney general, but the attorney general takes an oath to defend the Constitution. He has an oath to the Constitution and to the American people.

Because as you know, some have said about you, that as Attorney General, you viewed the president too much as your client, as opposed to the American people.

AG: I think that people have said that because I had a relationship with President Bush that I could not have been an effective attorney general.

Judge Gonzales, and this is something that’s come out in the news as of late, and it relates to Representative Jane Harman. The CQ, and I’m sure you’re familiar with this report, has reported that the Department of Justice lawyers concluded that Rep. Harman, they believed, had actually committed a crime by promising to put in a good word for two AIPAC officials being prosecuted for passing classified information. In exchange, the report says, an Israeli agent pledged to help Harman get chair of the Intelligence Committee, but the investigation was halted, the report says, by you. And the sources who were quoted said because you wanted to maintain her credibility, so she could publicly defend the NSA wiretapping program which had just been exposed. And the quote from the article was “Gonzales said he needed Jane to help support the administration’s warrantless wiretapping program, which was about to be exposed.”

AG: Yeah, I’m not going to comment publicly whether or not there was or was not or is an investigation. I will say that I would not interfere with an investigation for an improper reason. And that’s all I can say about that.

As you know, you’ve become a kind of a target for many on the left. A lot of people say that you should be prosecuted, that you should be disbarred, etc. Do you worry about any of that?

AG: Well you know, Washington being such a political town, and certain groups being so politicized, only a fool wouldn’t worry about it. But I think that if it really is a question of what happened, if it’s a question of the truth, then no, I’m not worried. I did my best, and that’s all that we can do in these positions, in these very difficult positions. I think John’s comment of being grateful for the privilege to serve summed it up well. I too, am very proud of the fact that I played a very small part in the safety of our country following the attacks of 9/11. That’s something that will always be very, very special to me.

Do you believe that if different legal decisions hadn’t been made, then there would have been another terrorist attack?

AG: Well, we’ll never know for sure.

Do you think there’s a real chance that the legal decisions prevented another attack?

AG: The legal decisions?

The choices made by the Department of Justice.

AG: As lawyers, you provide to policymakers an opinion on whether a certain policy which would make America safe is available to them. They then decide if this is something they would want to exercise to make America safer.

JA: Legal decisions sort of suggest that the business of the department is just making decisions. But the Department of Justice includes the FBI, which has not only national intelligence responsibility, but international intelligence responsibility. It’s the universal intelligence agency. I have no doubt that there were very serious contributions made to our safety and security by them.

I want to ask you both one final overall question, and that is, when you both talk about your greatest regret, you talk about your failure to explain. Some people are going to look at that and say, of all the problems this administration has had, you have two attorneys general sitting up there, saying the biggest problem we had is that we failed to explain?

JA: Let me tell you, I’m not talking about problems we had. I’m talking about problems I had. I’m talking about a personal failure. I don’t think it’s a failure of the administration, it’s a failure of mine. I’m not here to apologize, you have to remind me that there’s something else that I need to apologize for. I don’t regret my service to the country. I don’t back up to the pay window to get my pay. Now I do think I should have done a better job there if I were to do a better job there, but I don’t want to do it again, so thank you.

Dan Abrams is CEO of Abrams Research, an attorney, and chief legal analyst for NBC News and MSNBC.