WASHINGTON — Former attorney general John Ashcroft offered the White House a list of five candidates to lead the Justice Department Office of Legal Counsel in early 2003, but top administration officials summarily rejected them in favor of installing a loyalist who would provide the legal footing needed to continue coercive interrogation techniques and broadly interpret executive power, according to two former administration officials.
In an angry phone call hours after Ashcroft’s list reached the White House, President Bush’s chief of staff, Andrew Card Jr., quickly dismissed the candidates, all Republican lawyers with impeccable credentials, the sources said. He and White House counsel Alberto Gonzales insisted that Ashcroft promote John Yoo, a onetime OLC deputy who had worked closely with Gonzales and vice presidential adviser David Addington to draft memos supporting a controversial warrantless wiretapping plan and detainee questioning techniques.
Ashcroft’s refusal created a tense standoff and was the only time in the attorney general’s tenure that Bush was called upon to resolve a personnel dispute, the sources said.
The process led the White House team to introduce a compromise choice — Jack Goldsmith, a Defense Department lawyer then on leave from a teaching post at the University of Chicago Law School.
But Goldsmith’s tenure did not proceed as White House aides had expected. He went on to challenge the administration, rescinding or rewriting several of Yoo’s most sensitive memos after unearthing what he called numerous flaws.
The previously unreported disagreement between Ashcroft and the White House underscores the critical role that the once-obscure Office of Legal Counsel came to play in the administration’s efforts to devise a strategy to bolster its treatment of terrorism suspects after the attacks of Sept. 11, 2001. White House spokesman Tony Fratto had no comment today.
It also offers new insight into Ashcroft’s frustrations in dealing with hard-line administration officials as they tried to use the Justice Department to defend controversial interrogation practices. Once seen as an extremist, Ashcroft, who left his post in 2005 , is now coming to be viewed as a voice of moderation on some of the most sensitive national security issues the nation faced after 9/11.
He is expected to address the incident Thursday at a House Judiciary Committee hearing, the fifth in a series of explorations by Chairman John Conyers Jr., D-Mich., into the underpinnings of the government’s legal strategy for fighting terrorism.
In the spring of 2003, after Office of Legal Counsel chief Jay Bybee departed for a seat on a California appeals court, Ashcroft offered as possible replacements the names of Paul Clement, who later became the administration’s chief representative to the Supreme Court, and Brett Kavanaugh, who now sits on a federal appeals court in the District. Kavanaugh was then serving as a top aide to Gonzales.
He also recommended Adam Ciongoli, a onetime Supreme Court law clerk who counseled Ashcroft; Edward Whelan, a longtime OLC deputy with Republican ties; and Daniel Levin, who went on to serve as acting chief of OLC and a legal adviser to the National Security Council.
But two sources said that Card called to reject the names shortly after the list arrived at the White House.
“The message was that there was only one candidate they wanted, and that was John Yoo,” one source said.
Through a White House liaison, Ashcroft told Bush that Yoo was unacceptable. Former Justice officials have said that the attorney general resented Yoo’s close relationship with Addington and their consultations on sensitive legal advice.
Card and Gonzales “were absolutely determined to have a guy who was going to tell them what they wanted to hear,” said the other source.
The compromise selection of Goldsmith soon proved problematic when he took issue with Yoo’s opinions. Last year, he published an inside account of his stormy tenure at Justice and his disagreements with administration officials.
Since leaving office, Ashcroft, who now leads the Ashcroft Group, a consulting firm, has been tight-lipped about national security issues and internal disputes that occurred during his government service.
One famous episode that eventually broke into public view was a March 2004 showdown in which Gonzales and Card visited Ashcroft while he was in the hospital in an apparent attempt to persuade him to reauthorize a warrantless eavesdropping program over the objections of others at Justice. The strong-arm tactics prompted resignation threats from Ashcroft, deputy James Comey, FBI Director Robert Mueller and others.
Former Justice officials have spoken openly about disagreements with Yoo, who they say routinely avoided the chain of command at the department and held secret meetings with a small war council of lawyers who advocated for expansive presidential powers.
After he was passed over for the top job at OLC, Yoo left Justice in the summer of 2003. But he has staunchly defended his judgments on vexing questions that developed in the aftermath of terrorist strikes.
Yoo drafted secret legal briefs supporting the warrantless wiretapping program and the use of such strategies as sleep deprivation and simulated drowning in questioning terrorism suspects. The documents since have been likened to a “golden shield” that essentially offers legal immunity to contractors, CIA agents and others who interrogated prisoners in Iraq, Afghanistan and at the U.S. detention facility at Guantanamo Bay, Cuba.
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