Ashcroft disclaims legal reasoning for waterboarding

Former Atty. Gen. John Ashcroft on Thursday disavowed the legal reasoning once used to justify coercive interrogations of terrorism suspects, but defended White House officials who pressured him while he was hospitalized four years ago to approve terrorist surveillance programs.

At the heart of the four-hour hearing before the House Judiciary Committee was whether U.S. interrogators acted legally in using coercive tactics on captured Al Qaeda suspects -- including waterboarding -- after the Sept. 11 terrorist attacks. Waterboarding involves pouring water over a person’s face to create the sensation of drowning. Critics call it torture.

Ashcroft was attorney general when he approved two Justice Department legal opinions in 2002 and 2003 that, essentially, approved the use of waterboarding and other coercive methods so long as they did not “cause pain similar in intensity to that caused by death or organ failure.”

Both memos were written in part by former Deputy Assistant Atty. Gen. John Yoo. Ashcroft agreed to withdraw both memos a few years later after his advisors said they were concerned that the legal reasoning behind them overstepped the limits of executive authority.

“My philosophy is that if we’ve done something that we can improve, why would we not want to improve it? Why would we not want to adjust it?” Ashcroft told the committee, noting that he had relied on Yoo and other Justice Department lawyers for advice when he first approved the opinions.

Said Rep. Zoe Lofgren (D-San Jose): “There seems to be the Constitution, and the Constitution as Mr. Yoo thinks it should be. And the two are remarkably different.”

Yoo, now a professor at UC Berkeley’s law school, declined to respond Thursday.

Republicans on the panel argued that waterboarding and other coercive tactics yielded information that might have saved lives. Ashcroft did not disagree and said he did not think waterboarding or any of the methods allowed under the memos amounted to torture. Both the CIA and the Pentagon two years ago banned interrogators from waterboarding suspects.

“There have been many direct attacks that we’re aware of have been foiled by our interrogation process,” said Rep. Elton Gallegly (R-Simi Valley). “Had we not used those, would the probability of another attack not only be a probability but a certainty?”

“It could well have been,” Ashcroft said.

Asked about the March 2004 hospital visit, Ashcroft demurred from giving many details about the encounter that pitted White House Chief of Staff Andrew H. Card Jr. and White House Counsel Alberto R. Gonzales against Deputy Atty. Gen. James B. Comey and FBI Director Robert S. Mueller III.

Ashcroft said he was “grouchy,” hadn’t eaten in several days and doctors had been “poking needles into me all the time” when Card and Gonzales asked him to approve a classified national security program against Comey’s and Mueller’s advice. Mueller has said the clash was about the government’s warrantless wiretapping; Gonzales and the White House said it was about other intelligence activities.

Ashcroft sided with Comey and Mueller. President Bush agreed to change aspects of the program to satisfy their concerns.

Of the encounter, Ashcroft would say only: “You had a situation where there’s people who have differing legal opinions. And eventually somebody has to decide. And the president comes down on the side of the Department of Justice. What’s wrong with that picture? . . . Eventually you get to the right decision being made. That’s something I would expect a free society to do, involve vigorous debate.”