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Ashcroft challenged torture memo, but lauded the interrogations

This article first appeared in the St. Louis Beacon: July 17, 2008 - Former Attorney General John D. Ashcroft testified Thursday that he withdrew a 2002 torture memo because he became convinced its legal reasoning was of "arguable appropriateness." But Ashcroft insisted that U.S. interrogation techniques -- including water boarding -- were legal and had saved lives.

Ashcroft's testimony comes at a time when his role after 9/11 is under reappraisal. Disclosures of differences Ashcroft had with some White House officials have led some to view him as something of a force for moderation within the administration.

On Thursday, a Republican member of the House Judiciary Committee alluded to Ashcroft's improved stature on both sides of the aisle. The former Missouri senator and governor appeared more relaxed than he sometimes was during his confirmation hearings in 2001 or in subsequent charged hearings before Congress.

Ashcroft's good sense of humor surfaced as well. He refused to describe his much publicized sickbed showdown with top White House officials at which he reportedly refused to reauthorize part of the president's warrantless wiretapping program. But he did joke that his hospital stay had left him "both thirsty and hungry so I might have been grouchy. ... what's more, they were poking needles into me all the time."

Democrats tried to persuade Ashcroft to confirm reports that he had remarked after a White House briefing on interrogation techniques "history will not judge this kindly." Ashcroft repeatedly said he couldn't comment because the briefing had been classified. When a Democrat pointed out that confirming the comment would put him in a good light, Ashcroft scowled and responded in exasperation, "Do you think I would break the law if it were to my credit?"

Much of the hearing concerned a series of three Justice Department memos on interrogation techniques - 2002 and 2003 memos authorizing "enhanced" interrogation techniques and a 2004 memo withdrawing some of the legal rationale of the earlier memos. The first two memos were written by controversial Justice Department official John Yoo. Jack Goldsmith, head of the Office of Legal Counsel, wrote the third.

Goldsmith has recently written an account of Ashcroft's willingness to support him in the face of strong opposition from the vice president's office.

Robert M. Chesney, law professor at Wake Forest University and a national security specialist, said Thursday that Goldsmith's account "puts him (Ashcroft) in a relatively positive light on some of these controversial issues." This is helping to drive a reappraisal of Ashcroft's after 9/11, he said.

Kathleen Clark, a law professor at Washington University in St. Louis, says that the revisionism about Ashcroft says less about his moderation than the Bush administration's radicalism.

"I well remember how Ashcroft came out swinging when he testified before congressional committees after 9/11, more or less accusing political opponents of giving aid and comfort to the enemy," she recalled in an email. "So, I wouldn't say that Ashcroft is more moderate than we thought. Instead, it's that the Bush administration was more radical than we realized.

"We simply had no idea -- until the leaks revealed it -- that the U.S. was torturing prisoners and engaging in warrantless surveillance within the U.S. With more facts now apparent, we realize that there were occasions when Ashcroft was fighting the good fight against those who opposed any checks on executive power, such as (Vice President Dick) Cheney."

Ashcroft had approved Yoo's 2002 memo providing the legal justification for the CIA's interrogation techniques. The memo had stated that torture required the physical impairment equivalent to "organ failure" or death. Anything short of that was legal. The memo also claimed that the president's commander-in-chief authority to order harsh interrogation techniques was unbounded by law or treaty.

Ashcroft testified Thursday that Goldsmith's analysis convinced him that the Yoo opinion had defects in its legal analysis and it the scope of power it claimed for the president. But he also insisted that U.S. interrogators had never used all of the legal authority claimed under the 2002 memo. For that reason, interrogators had not violated the law even as it was interpreted in the 2004 Goldsmith memo.

The attorney general likened the memos to speed limit signs. The 2002 memo permitted 85 miles-per-hour but interrogators never went more than the 65 that was later recognized as lawful under the 2004 memo.

A story in the Washington Post this week adds to the subplot over the memos. It reports that Ashcroft submitted five names to the White House for the Office of Legal Counsel position in 2003. The White House rejected all of the suggestions, instead supporting Yoo, a loyalist. Ashcroft wouldn't go along and Goldsmith, friend of Yoo's, was appointed as a compromise. (Goldsmith says Yoo no longer speaks to him.)

Ashcroft acknowledged during the hearing that he could be wrong when he says that water-boarding techniques used by the CIA on three high-value prisoners were legal. "I could not say under oath that I never have had second thoughts about" water boarding, he said.

Still, Ashcroft insisted that the enhanced interrogation techniques had disrupted specific plots and had led to seven-years free of al-Qaida attacks.

But Ashcroft said he would not claim that everything he did was right, just because there had been no attacks. Referring to his electoral career he noted that when candidates win everything they did is seen as right and when they lose everything is seen as wrong. In what sounded like a reference to his failed 2000 re-election campaign, Ashcroft added, "It may have just turned out that you were running in the right year or the wrong year."

William H. Freivogel is a long-time St. Louis journalist who heads the journalism program at Southern Illinois University Carbondale.