This was preceded by ten minute opening statements from Abrams, Ashcroft and Gonzales.

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Dan Abrams Interview of Attorneys General Ashcroft and Gonzales

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

JA: [Laughter] Um. I think he’s done pretty well. I agree with a lot of the things you said. I’m glad he hasn’t decided precipitously to close down Guantanamo. 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 okay to release. So I’m glad he made that decision. I agree with you that things could be a lot worse in all of those settings. You talked a lot about the pragmatic things, which I think that really refers to is that he throw some red meat towards the base a little bit, but then he says well consider that we’re going to go on and do other things now, and you mentioned that. So I think that’s what you’d have to understand is a sort of mature politics on his part. I think when you suggested that he really wouldn’t prosecute lawyers that rendered opinions that were different from his opinions or opinions from his supporters, I would just say this: it would be a shame if even the sort of thread of prosecution that the chilling of the kind of excellent advise that a President needs from a wide variety of individuals and if somehow that advice were to be curtailed, or hedged, or otherwise framed in a way that would be thought to be more palatable. 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.

DA: 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?

AG: I tend to follow President Bush’s model in terms of saying less – as opposed to Vice President Cheney’s [Laughter]. I’m often asked the same question.

DA: I thought it was such a creative question!

AG: The decisions at this level are so incredibly hard, you can’t even imagine how difficult they are.

DA: Lets 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 a hundred 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.

DA: Let me ask you – I want to read a famous quote, Attorney General Ashcroft. Richard Nixon. . .when he said “The President does it – [Laughter] that means it’s not illegal.” And the follow up was, “If the President for example approves something because of the national security, or in this case because of the threat of internal peace and the order of significant magnitude, then the President’s decision in that instance is one that enables those who carry it out without violating the law, otherwise, they’re in an impossible position.” Do you agree with Richard Nixon?

JA: There are –

AG: I’m glad he asked you that – [Laughter]

DA: Well, you’re getting it too. [Laughter]

AG: I want to see how he answers that.

JA: There are things that a President only has the authority to do. And no one else has the authority to do.

DA: But when the President does it –

JA: When the President does it. If he has the authority to do it, it means its not a crime.

DA: Take away the caveat there. If has the authority to do it. What President Nixon was saying was “When the President does it, that means its not illegal.”

JA: Well, no. Obviously the President does not have carte blanche to do things – [Applause] that are illegal. And the law –

DA: Even because of national security?

JA: That’s correct, there are certain things the President doesn’t have the right to do, even in national security. But there are significant powers that the President has in national security, and I believe that there are some powers that are “inherent’ in the presidency that come to him in the constitutional designation as Commander In Chief.

DA [to AG]: Do you disagree with President Nixon as well?

AG: I think that the President can make the decision for the executive branch. But the courts have the final say. The framers envisioned a system of checks and balances, and the checks on the executive branch are the decisions by the court. And so if the courts tell President Nixon that he’s done something that’s unlawful –

DA: But if the courts haven’t ruled on it yet. There’ll be times when the President will have to make a decision. President Nixon was saying -- if the President approves something because of national security, or because of the threat to internal peace and order, than the President’s decision in that instance is one that enables those who carry it out to carry it out without violating the law.

AG: I think that’s its dangerous to say that the President would have that kind of authority.

DA: Okay. 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.

DA: Well Vice President Cheney isn’t taking the time.

AG: Well, he’s Vice President Cheney, and it’s his prerogative. But when I hear someone like Mike Hayden – whom I know well—General Ashcroft and I work with him, I very much respect his views, and when he says that, that troubles me.

DA: So when you say it troubles you, meaning his view is then determinative on the issue –

AG: No, what I’m saying is, with respect to the national security of our country, he would know more than I, sitting as the White House counsel, or as the Attorney General of the United States, as to what does or does not jeopardize the national security of our country.

DA: Let’s follow up on that, unless, Attorney General Ashcroft, you want to make a comment on Vice President Cheney’s comments about Obama? Is there something, do you think, that is a bit reckless for the Vice President to be making a comment like that?

JA: Let me just say this. Any time that we do something that provides critical or important information to our opponents, it’s a dangerous thing.

[Applause]

And the most danger comes when we do things and nothing happens, and we think, ‘Oh, that must have been okay.’ But the securing of the democracy against the attack from terror is something that takes a little bit there, and a little bit there, and little things over here and little things over there – and at some point, the terrorist reaches a conclusion that it’s time to launch. That he has enough information to be able to make an assault upon our culture. And it’s hard to say exactly what it is that is the straw that takes it over the tipping point.

DA: 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—

DA: That elevates the risk?

JA: Very frequently.

DA: In this case.

JA: No, no –

DA: 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.

Let me just give you a quick – say somebody is captured, and they have been conditioned on how to resist a particular kind of interrogation, and, as a result of their conditioning, they don’t give you information that they would otherwise give you. Is it possible that that means something? I think it’s very possible that that could mean something. 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.

DA: 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 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 –

DA: Engaged, past tense.

AG: [Puts his hand up.]

DA: 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.

[Applause]

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.

DA: Like what?

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

DA: But the 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.

DA: 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 withdrawal 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.

DA: When you say minimizing the damage – President Obama’s position is that the reason that it’s okay to release them is because they’ve discontinued it. Right?

JA: I’m not sure to speak for President Obama, and he wouldn’t want me to speak for him – [Laughter]—I think he’s got a view on that. What I think is important – that haven’t made clear—is that I don’t think he believes this damages the national interest. I’m not saying the President is acting in bad faith. I’m not even confident that I could make an assessment without these things because I haven’t seen them – but it is possible, when you reveal important, otherwise classified information to those who are seeking to destroy you, that you assist them. And when you assist them, you elevate the risk.

[Applause]

DA: Judge Gonzales, I’m going to ask you a very direct question. And it relates to something you just said. Do you believe water boarding 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]

DA: Did they get it right? I’m asking your legal opinion. Water boarding is – they define it in all the memos how water boarding is defined -- and if we need it defined I’m happy to read from it – how torture is defined. Do you think legally that water boarding 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.

DA: 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?

DA: Well, you’ve got the opportunity right now.

AG: -- We don’t have that opportunity.

DA: 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.]

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

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

DA: Well, let’s define it. I thought we might get into this discussion of how to define water boarding. Let’s define it.

JA: Well is that the way it was defined in the Philippines? Well is that the way it was defined in the Philippines?

DA: This is the way it was defined in the memo –

JA: No, no, answer the question!

DA: Well here’s the answer --

JA: Come on, Mr. Moderator. Are you a moderator, or are you a proponent?

DA: I am both. I have my own opinions. Easy, easy –

JA: No.

DA: I’m taking to these guys. [Motions to crowd] I’m not talking to you.

JA: The law has changed since the opinion was issued.

DA: 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 towards 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…

DA: 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.

DA: Once or twice, not 266 times.

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

DA: Once or twice.

JA: Were you there?

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

JA: Okay. 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.

DA: Did they get it wrong?

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

DA: It’s different in what sense.

JA: Because the law has been changed.

DA: The definition of torture?

JA: Yes! The definition of torture.

DA: 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.

DA: That waterboarding is not torture.

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

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

AG: Dan, I’m not ---

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

AG: Dan, as John said, and again I’m 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]

DA: So the final question I want to ask about this is that – [Applause]

AG: I agree!

DA: Is that in your view. 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. We had a lot of very good lawyers focusing not just on this issue, but on many of the most difficult legal issues that confronted our country. We were confronting legal issues many we had no seen since World War II, some we had not seen before, and we spent a great deal of time, both when I was in the White House, working with John, and then when I became Attorney General, making sure that we were doing it right. That we were doing everything we could to provide the best legal advice to the President of the United States as he worked as hard as he could to defend our country. But always within the limits of the law and the Constitution.

DA: Shouldn’t it matter as a legal matter, Attorney General Ashcroft, if any of these enhanced interrogation techniques began before these legal opinions were written in mid-2002. Meaning if some of these enhanced interrogation techniques were used before the Department of Justice had written these memos, would that make you question their legality?

JA: No, I believe that the conclusions of the Department lawyers were right. And I don’t think we can make something wrong because someone engaged in an activity prior to the opinion being issued. If the opinion and it’s interpreting definitions that are in the law, is issued saying it’s right, it won’t make it wrong that someone did it before the opinion came out.

DA [TO AG]: Do you agree with that?

AG: Yes.

[Applause]

DA: Hypothetical question.

AG: I hate those.

DA: Yea, this is a good one. If in a year from now, Judge Gonzales, Eric Holder fired eight or nine US 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.

DA: But what if it was part of the decision.

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

DA: Well, take it apart, and let’s assume for a moment that there have been reasons that have been laid out for firing US 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 US 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.

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

AG: That would not be an improper reason.

DA: 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 okay to enforce that law. And if a US attorney doesn’t want to enforce it, and it happens to be a priority of the President of the United States – you bet.

DA: 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 US 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.

DA: General Ashcroft, were you troubled at all when you heard about the firing of the US attorneys?

JA: You don’t know enough of the facts about that case to make a judgment. Let me just put this way: if you have US attorneys, for example, in California, that decide that they’re not going to enforce marijuana laws.

[Applause]

JA: And I know there’s a big constituency in this state that thinks we should enforce it, we took a case to the Supreme Court. And it’s a question of whether local US attorneys should nullify the national law by not enforcing it. I think that part of the issue there is something that’s very important in America, it’s called equal protection of the laws, that if you’re going to have federal laws, they should be uniformly enforced across the country. Because if you’re going to allow the US attorney in California not to prosecute marijuana, and you’re going to allow the US attorney in Minnesota not to take death penalty cases, are you going to allow the US attorney in some Southern state not to bring civil rights charges? The idea of allowing local law enforcement to nullify the Federal Law is an issue – hear me out – which we settled before the Civil War. Nullification. Go to the history books on this. If you have a Federal law, I submit that it’s not an option for an Administration to see to it that it’s not enforced across the board, I submit that it’s a duty to see to it that’s it’s equally enforced across the country. And if you don’t want uniform enforcement of the law, I’m going to go on here for a minute. If you don’t want enforcement of the law, don’t pass a federal law. Now for a long time, we didn’t have a federal law against murder, for the first 200 years of the Republic. I happen to believe in a federal law against murder. But when we got a federal law against murder, the Congress of the United States was afraid that it would be differentially enforced. That there would be more black people, or Hispanic people, and so they have asked the Justice Department to be involved in very significant reporting and study projects to tell how we uniformly – whether there’s enforcement disparity. Now that, in my judgment, is a good thing. I was aggressive in working to make sure we had enforcement equality rather than disparity. And so that I just think it’s pretty easy to say well, just let U.S attorneys do what they want to do. I think there is a duty and responsibility that relates to the equal protections of the laws that should be enjoyed by citizen across the country that provides a basis for the management of the justice resources, and I find it a little disconcerting that no one has raised that issue. And I’ve now had my piece, and you guys can talk for the rest of the –

DA: No, no, I want to follow up on that. So even if it – you say there’s got to be uniformity – and if the position of the President is that we need to pursue voter fraud cases, for example, and those are cases that tend to affect democrats negatively -- in the campaign. I mean, we could talk about the law, but prosecutorial discretion is a reality. Prosecutors get to decide which ones they get to pursue, and which ones they don’t. Fair?

JA: No, in some cases they do, and in some cases they don’t. For instance – let me give you the answer now, now that you’ve asked the question. I get to give the answer.

DA: Yes you do.

JA: And we have a system at the Department of Justice that says prosecutors don’t make the final decision on death penalty cases because we want to avoid disparities. Because the disparity shouldn’t allow people in some parts of the country to suspend the law as opposed to it being uniformly across the country.

DA: We’re not talking about the death penalty here. We’re not.

JA: So let me just ask you a question. So is it your view that there are some cases where we ought to have equal protections of the law, but in other cases where we shouldn’t.

DA: And I’ll answer. There are some cases where prosecutors need to be particularly sensitive to the fact that it is politically sensitive and there are political appointees. And as a result, if they decide to pursue or not to pursue a case, they have to know there are going to be ramifications. And the fear is that because eight or nine US attorneys refused to pursue cases that were politically charged they got fired.

AG: Now wait a minute. That is a broad generalization.

JA: Now just a minute. I’m going to disassociate myself from this. He went from trying to explain something that didn’t make sense and then he switched over to a charge against you, and he talked right past me. Come on! Time out!

DA: What aspect of that is unclear?

JA: Let me count the ways.

DA: Go ahead.

JA: Come on!

[Everyone talking at once]

AG: As an example, in California, there were some US attorneys that were removed. We had one that would not respect the President’s priority of immigration laws. And gun enforcement laws. You think those are politically charged? Well the point I’m making is is that the President is elected on a set of law enforcement priorities and policies. The Attorney General’s job is to ensure that those policies and priorities are carried out. The US attorneys represent the field generals for the Attorney General. The Attorney General has to be able to count on his field generals in making sure that those priorities and policies are carried out. If the Attorney General refuses, or is unable, it is perfectly appropriate for the President of the United States to make a change. There is nothing wrong or improper about that.

DA: So you have no regrets? Let’s talk specifically.

AG: What I have regrets are the manner in which the plan of removal was executed. And we could have done a much better job explaining what we were doing. And I accept responsibility for that. We should have done a better job explaining it [Applause] to the American people. To assure them that this was not about punishing U.S. Attorneys because they failed to prosecute some democrats. This is because the attorneys didn’t do their job, didn’t follow the President’s priorities, or we felt needed new energy in a particular office. And let me conclude my comment here by saying that these individuals, I tip my hat to them. They are wonderful public servants, they did a wonderful job for the American people, but the President is authorized to make this kind of change.

DA: So is there any difference to you in appointing a US attorney and firing one. Meaning, that everyone agrees that the appointment of US attorneys is a political position. A President can clean house. When a Democrat comes in, they can appoint an entirely new group of US 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.

DA: Should it be for firing?

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

DA: 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]

DA to JA: I’m sorry, did you want to go after me again?

JA: No no no. Me go after you? You’re the news guy!

DA: But you know this is a different kind of environment, it’s not my show... 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 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.

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

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

DA: 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.

JA: You take an oath, and if you feel you violate the oath by your conduct, you ought to be ready to pack it in. I don’t think that’s heroic, I don’t think that’s a very high standard, I think that’s the lowest standard of all. I’m not going to comment on whether I – and I wouldn’t like the world threaten anyhow – but when I finally resigned, I just resigned. I didn’t threaten anybody. And I resigned on Election Day in 2004, because I figured maybe they would want somebody else. The point is this. I don’t view it as extraordinary for anybody to be sensitive about making good on the oath that they swore. And I think that that’s something we should expect of every public official, and if what you are doing doesn’t leave you comfortable in that respect, you should be prepared to do something else. Too many people hold office as if it’s the be all and end all of life. America has the deepest talent pool of any culture in the world. There are so many people in this country who could be senators, cabinet members and judges. It’s hard work, and it’s very difficult, but I think we have a deep talent pool, and the country can, should, and will go on when people take their responsibilities seriously.

DA: Judge Gonzales, there has been some question whether President Bush instructed you to go to Attorney General Ashcroft’s hospital.

AG: I’ve already testified on this, and I’ll tell you what I said in my testimony. Which is that Andy and I were there on behalf of the President. I, like John, don’t comment on John’s hospital activities.

JA: Thank you.

AG: I do agree with John that—I think it is improper to threaten the President of the United States with a resignation.

DA: So if he did that, that was improper?

AG: I think he resigned. You serve at the pleasure of the President. You’re not happy, you resign. I think that’s the honorable way to do it, and I agree with John.

DA: But if he had threatened –

AG: Well, there are times when you are working at the Department, or even at the White House, when you get angry about something. You get frustrated, you say ‘I’m going to resign!’ That’s one thing to say it like that. It’s another thing to go to the President of the United States and say “I’m going to resign unless you do some of this.”

DA: But that’s what the allegations –

AG: I’m not going to comment on the allegations.

JA: Let me comment on the President here. And that is, if this story is true, that there was a disagreement among lawyers. Is that a shock? No, not really. Lawyers are trained to disagree. So there’s a disagreement, and impasse, and it’s referred to the President. That’s my story, I’m not saying it’s true, it’s a scenario. And the President, encountering the disagreement, sides with the experienced, career people at the Justice Department who are these folks, without regard to political party, operate there as experts, you know I gotta say, that’s a pretty good testimony. If there’s a disagreement, and strongly held positions, offered to the President for resolution, and he takes the advice of his best and most seasoned individuals in resolving it, I’d say that’s the kind of President I would want to have. I did vote for him obviously, on several occasions, but I do admire this President, and I think history will treat him far more kindly than he’s been treated recently.

[Applause]

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.

DA: Were you candid?

AG: I stand by the testimony. And subsequent testimony. And believe me, I’ve been asked this question many times.

DA: As I said when we started, you weren’t going to be asked any questions that were going to be a surprise –

AG: 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.

DA: 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]

DA: Did you have any qualms about going to the room of a sick man?

[Boos]

DA: You 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. And that’s the way it should have been. The President exercised his leadership, and the issue got resolved. And that’s what really important here. The fact that there was a disagreement didn’t surprise anyone. Obviously that is more colorful – the fact that there was a hospital visit.

JA: [Laughs]

DA: But I think that’s part of what leads people to want to know what happened. The idea that there was this showdown at the bed of a man who has already transferred the power to somebody else.

AG: Well, Dan, I’ve testified to that. It’s out there. This is all old news, there’s nothing else I can contribute here.

DA: Okay. Let’s take a broader topic for a moment. Supreme Court Justice. When a president is selecting a Supreme Court justice, if you have to choose between judicial philosophy or experience or qualifications, which is more important?

JA: First of all, you don’t have a very good list. If you have to choose that way. [Laughter] I just got through in the last answer by saying that America has a deep pool of talent, and there are very, very skilled lawyers, and the court reflects this. You’ve got genius-quality people on both ends of the political spectrum on the court, and you have in the culture. So, for me, I reject the idea that in order to get someone who’s liberal, you’ve got to get someone who’s dumb, is simply –

[Laughter]

I just reject that. If that’s your view, I say it’s just not so. I can find a lot of smart liberals.

DA: 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.

DA: 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.

DA: 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. I think that there are many qualifications – qualities – that make someone, a man or a woman, a good and effective Attorney General. I don’t think you should necessarily be disqualified from consideration as Attorney General just because you have a strong relationship with the President of the United States. Sometimes when you have that kind of relationship, it’s easier to have a very frank and candid discussion about what can or can’t be done, when you’re the President of the United States. It can be helpful to have that kind of relationship.

JA [to AG]: Do you think even a President might be able to have his brother as the Attorney General?

[Laughter]

AG: I don’t think it’s even possible!

JA: But not if he’s a Republican.

[Laughter]

DA: It’s funny. The question I asked you before, about the judicial philosophy one, that was supposed to be my softball. Let’s talk about some of the priorities of the office, Judge Gonzales. In retrospect, do you think it was a mistake to divert the sort of the personnel you did to pursue pornography. Meaning not child pornography, but between consenting adults. There were significant resources that were moved to anti-pornography.

AG: I disagree with your characterization. I think the primary focus of our efforts was on child pornography. Computer child pornography. That was the primary focus of a project like Childhood, going after child predators. I’ve heard enough from the parents concerned about the safety of their children from child predators. You have to also, of course, allocate resources to the other very important priorities in the Department.

DA: As you know, many people were critical –

AG: No, I don’t know that.

DA: Really? You’ve never heard people say you guys spent way too much time on anti-pornography. This is the first time?

AG: On Anti-pornography?

DA: Pursuing pornography cases.

AG: All I heard was praise from parents for pursuing child predators.

[Applause]

DA: Well, I will be then, the first to tell you, that there will be many people writing about the fact that the Justice Department was allocating –

AG: Did they write you?

DA: I read about it many, many times.

AG: Where did you read this?

DA: Throughout your tenure.

AG: Where, not when.

DA: I’ll tell you when. When you first put the ad out that the FBI, for example, was seeking a new Justice Department priority – and that’s how it was described in the advertisement – at the time, I believe it was 2005, when the advertisement was placed.

AG: For projects like Safe Childhood?

DA: Well, no. It was for the fact that you were hiring more FBI agents.

AG: Oh please.

DA: Is that not true?

AG: You’re dinging me for an ad that appeared in 2005. I don’t even know who printed out the ad –

DA: But you would agree that this Justice Department spent far more resources pursuing pornography than previous administrations?

AG: I don’t accept that. I don’t know that to be untrue, but I can’t accept it. I do know that I did care very much about protecting our kids from child predators. That was important to me. [Applause]

DA: Can we talk very briefly – and I don’t know how much you know about this case – Jonathan Pollard, who’s served 23 years now for passing classified spying for Israel in effect. His supporters have said that no one has served that kind of time for passing information to an ally.

JA: Well, I’m not in a position now to evaluate the case. This has been, in some quarters, a cause celebre for a long time. And the idea that it is difficult, I think a little bit less more difficult, when one of your closest allies has agents that are involved in stealing vital information about your country. And the judicial system operated, I presume, effectively, and I’m certainly not in the position to substitute my judgment. I wasn’t at the trial.

DA: Well let me ask a separate question of you then, 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 Representative 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 need 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.

DA: And was your reaction to the CQ report when you read it?

AG: I’ve got no comment on that Dan.

DA: Do you want to comment on that for him?

JA: I didn’t even read it. It’s news to me. [Laughter] CQ? Is that Congressional Quarterly?

DA: They used to be. Now they’re hipper and cooler.

JA: I know GQ, the fashion magazine. You look kind of GQ tonight.

DA: Well thank you very much. Broadly, Attorney General Ashcroft, what are you most proud of in your tenure as Attorney General?

JA: Well, the fact of the matter is, I don’t like the word proud. If you’re proud of something, that means you did it. But I’m grateful for the fact that America was not hit again. I believe, and the President has talked about, follow-on attacks that were displaced and were thwarted and didn’t occur. And the attack on 9/11 was just a devastating thing, but nothing compared to what it would have been had we had a follow-on right away that would have just signaled that we were at the mercy, so I’d have to say that the absence of the follow-on attack of significant magnitude is the thing that I’m most grateful for. And I’m grateful for the people of the country, and grateful to a lot of law enforcement officials, and the way America rallied to help us avoid being hit again.

[Applause]

DA: And if there were a regret?

JA: You know, I regret not having explained the Patriot Act better than I did. I was so convinced that it was the right thing to do – and still am – that it got so embroiled, interest groups made great hay about it is. And truth of the matter is, it became something that a lot of effort had to be to get in reenact it when it should have been. And the truth of the matter is it got 88 Senators to vote that it should be reenacted. You can’t get 88 Senators to vote that today is Monday. But the point is, is that when all the politics died down – do we have time for a story?

DA: We’ve got a few minutes.

JA: So I’m out at the 5^th grade class at the Throgmorton School in Alexandria, and I’m telling all these kids what a great job I’ve done to save the country, and Freddy in the back of the room is just waving his hand, so I say “Freddy, what is it?” And he said “I’ve got a 3-part question, Attorney General.” And I said “A three-part question?” And he says, “Yea, a 3-part question.” I said, okay, “What is it?” And he says, “If you’re smart as you say you are, how come you haven’t found Osama Bin Laden?” And I said, “What’s your second question?” And he says “If you’re as hot as think you are how come you haven’t found the Weapons of Mass Destruction? And third, he says, “I’m really concerned about the Patriot Act. I really care about my civil rights, and I want a thorough explanation of my civil rights.” Well just then, the recess bell rings. And the kids all go out to the playground, and 20 minutes later they come back in Lisa is at the back of the room really contorting, and I say, “Lisa, what’s your question?” She says, “I’ve got a 5 part question. She says, “If you’re smart as you say you are, how come you haven’t found Osama Bin Laden? And If you’re as hot as think you are how come you haven’t found the Weapons of Mass Destruction? And third, I’m really concerned about my rights under the Patriot Act and I want a thorough explanation.” And I said, “And your fourth and fifth questions?” And she said, “How come the recess bell went off 20 minutes early, and fifth, where’s Freddy?”

[Laughter]

AG: I think we should end on that Dan!

DA: How’d you know I had my zinger still waiting for you? I’m going to ask you the same two questions, and I’m going to ask you one more question. 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.

DA: 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.

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

AG: The legal decisions?

DA: 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. But also, the other law enforcement agencies of the justice departments that were mobilized early on. After 911, Immigration and Naturalization was still in the Justice Department, way back before the creation of Homeland Security. When Homeland Security referred to an agency in Britain. So I believe that there were more services rendered, there was time devoted, there were things done by individuals, in the justice department that contributed mightily to security in Ameirca. When I watched them working 19 and 20 hour days. When I went to the Justice Department – well, for the first month after 911 I didn’t go back in the Justice Department, I went to the Strategic Information and Operations Center, SIOC, and we were there from – all the time. So the Justice Department does more than just render legal opinions, it was putting feet under those opinions. And it was doing things that were designed to enhance the safety and the security of the country, and to put the terrorists on guard. We were out placing noise in the system, just so the terrorists would know, this isn’t a good time to move forward, these guys are on the alert. Our people worked hard doing it, they deserve a lot of credit, and I thank God we avoided the second attack. [Applause]

DA: Judge Gonzales I just wanted to give you a chance to respond to what you were most proud of, and also, your greatest regret.

AG: I think as a general matter the Bush Administration didn’t a good job in explaining – not just the Patriot Act – but a lot of the things Administration’s doing. The reason is for that is that after is because after the attacks of 911, we realized there was so much we didn’t know. We had these attackers here in our country, what else didn’t we know? I think there was an overabundance of caution in terms of sharing information because we didn’t know what we were dealing with. And as a result, I think the American people, and our friends overseas, probably assumed much worse than what we were doing. We probably should have done a better job at explaining, at least sooner than we did, what we were doing.

Let me make one point which I think is critical and relevant to a lot of the issues, which is that the Administration worked very hard to brief the congressional leadership. Whether it was interrogations, whether it was terrorist surveillance program. The President believed strongly that the congressional leadership was briefed. Because he believed strongly that in a time of emergency, the country is better served when the leadership of the executive branch and the legislative branch are working together. So, it’s important for you to understand despite what you may read or hear, there was a great deal of effort made to ensure that the Congressional leadership was aware of what the executive branch was doing to protect our country.

DA: And I just want to ask you both one final overall question, and that is, when you both talk about your greatest regret, you both 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.

DA: I think our guests deserve a round of applause.