Administration Wanted Loyalist As Justice Dept. Legal Adviser

Then-Attorney General John D. Ashcroft refused to promote an administration insider.
Then-Attorney General John D. Ashcroft refused to promote an administration insider. (Alex Wong - Getty Images)
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By Carrie Johnson
Washington Post Staff Writer
Thursday, July 17, 2008

Then-Attorney General John D. 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 H. Card Jr., quickly dismissed the candidates, all Republican lawyers with impeccable credentials, the sources said. He and White House counsel Alberto R. Gonzales insisted that Ashcroft promote John Yoo, a onetime OLC deputy who had worked closely with Gonzales and vice presidential adviser David S. 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 L. 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 yesterday.

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 by many as an extremist, Ashcroft, who left his post in 2005, is coming to be viewed as a voice of moderation on some of the most sensitive national security issues the nation faced after Sept. 11.

He is expected to address the incident today 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 S. Bybee departed for a seat on a California appeals court, Ashcroft offered as possible replacements the names of Paul D. Clement, who later became the administration's chief representative to the Supreme Court, and Brett M. 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 G. Ciongoli, a onetime Supreme Court law clerk who counseled Ashcroft; M. Edward Whelan III, 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 who spoke on the condition of anonymity 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.

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