WASHINGTON Former Attorney General John Ashcroft on Thursday disavowed the now-defunct legal reasoning used to justify harshly questioning terrorism suspects, but dug in his heels to defend White House officials who pressured him while he was hospitalized four years ago to approve terror surveillance programs.
For a House Judiciary Committee hearing focused on a somber subject whether methods used to interrogate al-Qaida plotters amount to torture the four hours of testimony included moments of humor and repeated problems pronouncing the names of terror suspects.
At one point, Ashcroft said he was so moved by the give-and-take with Bush administration colleagues he was near "standing up and singing the national anthem."
At the heart of the hearing was whether U.S. interrogators acted legally in using harsh tactics on captured terror suspects including waterboarding in the years immediately after 9/11. Waterboarding involves strapping a person down and pouring water over his or her cloth-covered 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 harsh 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 attorney general John Yoo. Ashcroft agreed to withdraw both memos a few years later after his advisers 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 attorneys to give him good advice when he first approved the opinions.
He added: "It wasn't a hard decision for me to when they came to me, and I came to the conclusion that these were genuine concerns get about the business of correcting it."
Responded Rep. Zoe Lofgren, D-Calif., "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 Berkeley School of Law, declined to respond Thursday.
Republicans on the panel argued that waterboarding and other harsh tactics yielded information that may have saved lives, and Ashcroft did not disagree. He also said he does not believe waterboarding or any of the methods allowed under the memos amounted to torture. Both the CIA and the Pentagon two years ago banned its 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-Calif. "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 answered.
On the topic of the now-infamous March 2004 hospital visit, Ashcroft demurred from giving many details about the encounter at his bedside that pitted then-White House chief of staff Andy Card and counsel Alberto Gonzales against then-deputy attorney general Jim Comey and FBI Director Robert Mueller.
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 the advice of Comey and Mueller. Mueller has said the clash was about the government's warrantless wiretapping; Gonzales and the White House denied that and said it was about other intelligence activities.
Ashcroft sided with Comey and Mueller, and, ultimately, President Bush agreed to change some aspects of the program to satisfy their concerns.
Of the encounter, Ashcroft would only say this: "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.
"You know, I'm just right now, next to standing up and singing the national anthem," Ashcroft said. "I think that's the way the system ought to work."
The hearing was the House panel's ninth in examining interrogation tactics. Three top al-Qaida detainees Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri are known to have been waterboarded. CIA Director Michael Hayden has said the tactic was used in an effort to get information that would help disrupt more catastrophic attacks that U.S. intelligence officials said were imminent.
During the hearing, the most recent at which the detainees' were discussed, two lawmakers struggled to get their tongues around Zubaydah, which is pronounced "zoo-BY'-dah."
Legislative aides and audience members snickered repeatedly as Rep. Lamar Smith of Texas, the committee's top Republican, called him "zoo-BE-doo." And Rep. Robert Wexler, D-Fla., alternately pronounced it "zah-boo-da" and "za-boo-doo."