WASHINGTON Former Attorney General Alberto Gonzales mishandled highly classified notes about a secret counterterror program, but not on purpose, according to a memo by his legal team.
The memo, obtained by The Associated Press, acknowledges that Gonzales improperly stored notes about the program and might have taken them home at one point.
Removing secret documents from specially secured rooms violates government policy.
Gonzales' lawyers wrote in their memo that there is no evidence the security breach resulted in secret information being viewed or otherwise exposed to anyone who was not authorized.
The classified notes focus on a March 2004 meeting with congressional leaders about a national security program that was about to expire. Efforts to renew the program sparked an intense Bush administration debate that played out at the hospital bedside of then-Attorney General John Ashcroft.
The memo was prepared by Gonzales' legal team as a response to a report being finalized by the Justice Department's inspector general. The report, which could be released as early as Tuesday, is expected to criticize Gonzales' handling of sensitive compartmentalized information, or SCI, according to the memo.
Gonzales agrees with inspector general's findings that his handling of notes and other SCI documents "was not consistent with the department's regulations governing the proper storage and handling of information classified as SCI," concluded the legal team's memo. "Judge Gonzales regrets this lapse."
Sensitive compartmentalized information is one of the highest and most sensitive levels of classified documents and is deemed top secret. It usually relates to national security cases.
Gonzales' lawyers acknowledge that he kept the notes in a safe in his fifth-floor office at the Justice Department, along with a small number of other highly classified papers, instead of in the special facilities accessible only by certain people with top secret security clearances.
He also may have taken the notes home at one point in 2005 as he was moving out of the White House counsel's office, where he served until he was sworn in as attorney general at the start of President Bush's second term, the memo says.
The inspector general's report will be the latest in a series taking Gonzales to task for his management of the Justice Department. He resigned under fire in September 2007. At least two more reports, including one looking at Gonzales' role in the ouster of nine U.S. attorneys, are expected in coming months.
It also could re-ignite a simmering controversy about Gonzales' role in urging an ailing Ashcroft to continue a national security program the Justice Department had deemed illegal.
Preparing for the criticism, Gonzales' legal team fired back with the 12-page memo and a three-page addendum accompanying it. The documents indicate the attorney general was merely forgetful or unaware of the proper way to handle the top secret papers.
Both documents were written by Gonzales attorney George Terwilliger, who served as the Justice Department's No. 2 official between 1991 and 1992.
The classified notes, according to the lawyers' memo, focus on a March 10, 2004 emergency meeting in the White House Situation Room with Gonzales, other high-ranking Bush administration officials and the eight House and Senate leaders and intelligence committee chairmen. It was held to brief the bipartisan group of lawmakers about a sensitive counterterror program that was set to expire the next day.
Then-Deputy Attorney General James Comey, who was running the Justice Department while Ashcroft was hospitalized for pancreatitis, had refused to sign off on the program because he questioned whether parts of it were legal. At the Situation Room meeting, administration officials asked the congressional leaders to consider creating legislation to let the program continue, according to the memo.
The exact nature of the counterterror program is not clear. FBI Director Robert Mueller has said it was a terrorist surveillance program that allowed the government to conduct electronic surveillance on people in the United States without court oversight until 2007. Gonzales has denied that and maintains it involved other intelligence activities.
Gonzales' classified notes themselves remain classified and have not been released. Gonzales took the notes of the meeting at President Bush's request, and kept them in a safe in his White House counsel's office, which is a secure SCI facility, according to his lawyers.
Once he moved to the Justice Department, however, the memo says Gonzales kept the notes in a safe a few steps away from his desk in the attorney general's office which is not considered a secure facility for SCI data.
Gonzales' "best recollection is that he always placed the notes in the most secure place over which he had immediate personal control," the memo states.
He apparently was advised that his office safe was not proper storage for the notes or other highly classified material, the memo shows. However, there's no proof that Gonzales intentionally defied that guidance, the memo states, arguing he acted "without conscious disregard" for the rules.
The memo also takes a shot a Comey, who in Senate testimony last year described the hospital visit as an attempt by Gonzales and then-White House Chief of Staff Andy Card "to take advantage of a very sick man."
In the memo, Terwilliger calls such criticism "demonstrably hyper-inflated rhetoric without basis in fact." He says during the hospital visit Comey was "seeking to interpose himself between the president and a high-level official communication to his attorney general on a vital matter of national security."