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One year after his confirmation, Attorney General Alberto Gonzales sat down with Legal Times reporter Jason McLure last week to discuss his tenure at the Justice Department. In his characteristically soft-spoken manner, he answered questions on a range of topics, from the National Security Agency’s domestic eavesdropping program to detention policy at Guant�namo Bay to perceptions that the inner workings of the DOJ have become increasingly politicized. What follows is an edited transcript of that interview.
LT: In your confirmation hearings you said that as attorney general “I will no longer represent only the White House; I will represent the United States of America and its people.” During the NSA [Senate] Judiciary hearing, you referred to the president of the United States as a client. Whom do you view as your client as attorney general? Gonzales: The president is a client; the other agencies are clients. We represent other agencies in litigation. The American people are clients. I represent the United States of America. And so people need to realize that as attorney general, you wear two hats. I was nominated by the president, I serve on the president’s Cabinet; therefore, I’m on the president’s team and I have an obligation and responsibility to push forward the president’s agenda, to advocate for the president’s agenda and his policies as a member of the president’s Cabinet. Now, I’m also the chief law enforcement officer of the country, and so, in connection with investigations and prosecutions, I put aside my team hat and people expect me to act independently and to make prosecution decisions and decisions regarding investigations based upon our best judgment as to what the evidence requires. In that sense I am independent of the White House. LT: Can you name some specific instances over the past year where you’ve taken actions that were at odds with the White House’s political or policy goals? Gonzales: I could, but I won’t, because it is not my role. LT: In the entire year is there one instance? Gonzales: No lawyer is going to get into a discussion or revelations about internal discussions or disagreements or agreements with their clients. So I’m not going to do that. LT: On the NSA surveillance issue you’ve said you were advised that you couldn’t get an amendment to FISA [Foreign Intelligence Surveillance Act] from Congress. I believe your quote was, “That was not something we could likely get.” In hindsight do you think the administration would have been better off getting explicit — specific — congressional approval? Gonzales: I made that statement in the briefing before the White House press corps [on Dec. 19, 2005]. Later on in that same briefing I clarified that what I meant to say was that we could not get legislation. We [were] advised legislation would be difficult to obtain without compromising the existence of the program and the effectiveness of the program. LT: Sure, but looking back in hindsight, now that the cat is out of the bag . . . Gonzales: Well, there’s still many operational details about the program that remain confidential, remain classified, and the concern about pursuing legislation is that it may require a discussion about very sensitive operational details, and so we’d have concerns about that. The president has said that we’re happy to listen to ideas from Congress about this issue. But we still, of course, believe very strongly that the president does already have the authority to authorize this kind of activity. LT: There has been a concern among career lawyers, particularly in the Civil Rights and Civil divisions, about the politicization of the department. The strategy in the tobacco case, changes in the DOJ’s lateral-hiring practice, and political motivations playing a role in hiring into the honors program — those are some of the most commonly cited examples. What do you say to that perception? Gonzales: I’d say it’s an incorrect perception. There have been some stories in the media about this issue, which disappoints me because I care very much about civil rights and the role of the Civil Rights Division in ensuring the American dream is available to every American. So the fact that we have disagreements in any division is not unusual. We encourage healthy debate, and at the end of the day, the fact that there may be disagreement with some of the career folks doesn’t mean that the ultimate decision is the wrong decision. Obviously, the role of the career folks is very important — I respect them tremendously. They represent the spirit of the Department of Justice, and their input is extremely valuable. But at the end of the day, we have to make the best judgment of what the law requires, and I have every confidence that that’s what’s occurring at the Civil Rights Division. LT: Were you at all involved in the civil litigation against the tobacco companies? Were you a part of the decision-making process? Gonzales: Again, this decision is made in the associate’s [Associate Attorney General Robert McCallum] office after hearing the recommendations and views of career lawyers working on this case. But at the end of the day, the associate made the decision as to what was the appropriate course of action. LT: So he [McCallum] didn’t come to you and say, “Look, this is what we’d like to do, but this is a big case . . .” Gonzales: What would normally happen in these kinds of cases — in something that’s very high profile — the associate or any other assistant attorney general or the deputy would come to me and say, “This is my decision, this is the reason for my decision, and I’m letting you know about this decision.” I might ask questions, I might probe, but these folks are nominated by the president for their judgment, they are confirmed by the Senate, representing the Senate’s view that this person is suitable to serve in this position and exercise his or her best independent judgment. My style of management is that you defer to good people, and that’s what happened in this case. LT: Who’s your main point of contact at the White House? How often do you speak to the president? Gonzales: Whenever I need to. Andy Card, the [White House] chief of staff, has a saying that “When you need to speak to the president, you get to speak with the president; when you want to speak to the president, you don’t get to speak to the president.” And so when I need to speak to the president, I get to speak to the president. LT: Janet Reno was well known for communicating directly with the career staff and involving them in the decision-making process . . . her critics would say almost so much so that the priorities of the department became obscured and people were leaving meetings without knowing what the priorities were . . . and John Ashcroft was known for sealing himself off more from the rank and file. Where would you fall along that continuum? Gonzales: Maybe you should talk to the career folks. I’ve indicated I think the career folks are very, very important, and I think they bring a lot to the table, and I value their input. I value their experience. I make it a point to go out and visit with career folks . . . LT: Whom do you meet with daily? Gonzales: . . . throughout the department. I meet with my staff and the assistant attorney generals. There are 120,000 people here; I can’t meet with them all every day or every week or every month or even in a year. Like every good executive, you have to communicate through a group of people and you have to receive information through a group of people. But I’ve worked very, very hard to let the career folks know that I value their role in the Department of Justice. LT: How do you view your relationship with [acting Deputy Attorney General] Paul McNulty? Are your staffs completely integrated? Gonzales: We’ve developed a structure where Paul has more of the operational, day-to-day oversight of the department, and I think that’s the way it should be. We have a much smaller staff within the Office of the Attorney General for that reason, because I think the decisions that come up through the assistant attorney generals should come up through the deputy attorney general’s office, and many of the decisions are made there. The more important decisions, critical decisions, controversial decisions, noteworthy decisions, you know, come up to this office . . . so I’m involved with those kind of decisions. LT: What about with respect to relationships on the Hill? Is that something you see him [McNulty] being a point person on? Gonzales: No, uh-uh. Not at all. We have an office, a legislative affairs office. They have primary responsibility for interfacing with the Hill. But I consider my relationships with the Hill as very, very important. I’ve worked on those relationships very hard when I was in the [White House] counsel’s office . . . working with certain members in the Senate on judicial appointments. So I think it’s important for me to have good relationships, direct relationships, with members of Congress. LT: How do you think you’re a different attorney general from John Ashcroft? Gonzales: I don’t know. I’m often asked this question. But I leave it to others to make comparisons. That’s not what I’m about. We all have our own styles . . . LT: How do you view yourself? Do you view yourself as a reformer or a caretaker of the department? Gonzales: Well, you know, the agenda, what the president expects from the department, didn’t change necessarily from the time that John Ashcroft left to the time I came on board. The No. 1 priority remains terrorism and fighting terrorism, to prevent another attack from happening here in this country. And so a lot of the groundwork for the success that I’ve certainly enjoyed in the past year in connection with the war on terrorism was laid during the Ashcroft years, and so I give him a great deal of credit for that. But, of course, we’re also looking at other issues that have traditionally been the focus of the department. . . . And so civil rights is important to me. I worry about the American dream being denied because of violent gangs and because of drugs, and so, obviously, those continue to be a focus of the department. I think we need to have honesty and integrity in our government and our companies. And so going after public and private corruption is important to me, and so that will continue to be a focus for the department. . . . I’m worried about cybercrime, and that’s why we’ve talked about this new initiative Project Safe Childhood. LT: Let me ask you how you’ve used your bully pulpit, if you will. It seems apparent that you’ve taken a lower public profile than Ashcroft. Was that an intentional political decision, or do you think that’s merely a reflection of your personalities or backgrounds? Gonzales: Well, there was certainly no conscious decision to do that. I go out and talk about issues when I think I need to, when I think it’s important for me to do so. LT: Now, sometimes the comparison I hear made is that Attorney General Ashcroft ran the Justice Department like a senator’s office. He was very political, he was very out in front and fought for his own interests quite aggressively. The comparison with you — to the extent that it’s true — is that the Justice Department is run more like a White House counsel’s office and that you tend to be a more quiet, humble, unassuming personality who defers more to the White House. What would you say to those perceptions? Gonzales: Well, again, I think that people need to understand that the department is part of this administration, is part of the Bush administration, and there is an agenda and there is a policy of this president that we have an obligation as a department to push forward. And as part of that, of course, there are sort of subagendas that are important to the department that we push that are part and parcel of the president’s overall agenda. Then again, when it comes to investigations and prosecutions, we are not part of the White House. We are independent of the White House. And that’s the way I think it always has been and should be — that people all have confidence that the department is going to enforce the law and is going to treat people the same, whether or not they’re political enemies of this president or whether or not they’re political allies of this president. If the people are engaged in conduct that is unlawful, then that’s going to be pursued. LT: Michael Scheuer, the [former] head of the CIA’s bin Laden unit, has said that as of the fall of 2002, fewer than 10 percent of Gitmo’s prisoners were high-value targets. A detailed analysis of files on 132 Guant�namo prisoners by the National Journal concluded that “most” were innocent of any terrorist activity when captured. In light of this and the new U.N. report accusing the U.S. of torture at Guant�namo, why does the administration continue to oppose granting these prisoners access to the courts? Gonzales: Because they were captured on the battlefield fighting against America. And it’s never been the case in the history of the world that when a country is engaged in combat with another country or another entity like al Qaeda that people captured on the battlefield can get to go into court and challenge their detention. That’s never been the case. I think that people have the misperception that this is a law enforcement effort that we’re engaged in. It’s not. It is a war. LT: Do they not deserve an independent, outside review of their cases? Gonzales: It’s never been . . . [the] Geneva [Conventions] doesn’t even require an independent, outside [review] . . . all Geneva requires . . . let’s say you’ve got two countries, it requires an Article Five determination, which means that someone on the battlefield makes a determination that “OK, you’re an enemy combatant,” and that’s it. We provide far more than Geneva requires. We do an assessment there on the spot, and we do multiple levels of screening to ensure that we’ve made the right decision that someone is an enemy combatant. And then once they get to Guant�namo that assessment continues, and there is a yearly evaluation process where a certain determination is made, “OK, you’re an enemy combatant, but you no longer pose a threat to the United States, you no longer have intelligence value, and, therefore, you should be released.” So we provide far more. LT: Well, one point that someone had brought up to me was that at Nuremberg, the captured World War II criminals got both an independent judiciary and free access to lawyers, and that’s something that the prisoners at Guant�namo, they have neither. Gonzales: Well, there at Nuremberg they were being tried for war crimes. This was after the war had been concluded. LT: I guess the question is, Why did they deserve better habeas protections? Gonzales: And it may be that after the end of the hostilities here, some of these folks may be brought up for war crimes, in which case they may be provided further access to the courts or further access to lawyers. But there’s no requirement in connection with our detention that they be provided with all these rights. LT: What role did you play in the selection of Harriet Miers as a nominee for the Supreme Court? Gonzales: All I can say about the recommendations made to the president with respect to nominations to the Supreme Court is that I was part of a group of people involved in providing views to the president as to who would make a worthy Supreme Court justice. LT: Does a part of you regret that you weren’t the one nominated? Gonzales: I think . . . when I look back at the president’s legacy, his greatest legacy will be his nominations to the Supreme Court, and even if it’s not today and there were no more nominations to the Court, I think it is a tremendous legacy for this president to have John Roberts and Sam Alito on the U.S. Supreme Court. LT: So you don’t regret it? Gonzales: Again, that’s a great legacy for this president. LT: Well, given what happened to Harriet, are you maybe happy that you weren’t nominated? Gonzales: Harriet’s a friend of mine. And I have a great deal of respect for Harriet. And I think she was treated unfairly. . . . I think she should have been given an opportunity in a hearing to make her case. And so I wasn’t happy, [I was] disappointed in the way that she was treated. LT: In his budget this year the president asks for substantial cuts in aid to state and local law enforcement. What’s the overall vision behind this? Should local authorities be cutting taxes or cutting money for roads or taking cops off the street to make up the difference? Is this a signal that local law enforcement is less of a priority? Gonzales: No, not at all. It’s a signal that . . . at all levels of government we have to make tough decisions on budgets and we have to make tough decisions on priorities. What we have found after 9/11 is we’re much better today in working with state and local officials. We’re more efficient. We coordinate better. We communicate better. I think we can continue to do the job of protecting the country, respective states, and respective communities with the same amount of money or maybe even with less money, because we are smarter in terms of how we do things. I must say, in certain cases it does create a burden. LT: Well, on this subject, as I understand, you’ve upgraded efforts to crack down on pornography in cyberspace, and that’s something, as I understand, that’s also governed by state and local statutes. Why has that become a federal priority at a time when we’re trying to fight a war on terror? Gonzales: Because there are a lot of families that are worried about it. LT: But why not let the state and local authorities . . . ? Gonzales: And if state and locals can deal with it, then of course they do. But in some cases they can’t. They don’t have the resources or expertise that we can bring on a particular case, and so we view it as a problem that exists out there, and if we can help in addressing that problem, then I think we have an obligation to do so. And we will do so. LT: On the National Security Division, what do you view as the chief drawbacks of creating that? I know that you’ve probably gone through a long process of weighing the benefits and the costs, and this is something that I understand has been met with a lot of internal resistance from within the department from the career staff. Gonzales: Look, everybody is always worried about change and how it may affect their jobs, how it may affect their future. And I think everyone agrees that we ought to have a division that reflects the No. 1 priority for the department, which is fighting terrorism. LT: What about splitting off, I don’t know if you would say tangential prosecutors, but the folks who do, say, money-laundering investigations, things like that, that terrorists also employ? All of a sudden they’re going to be within a different silo, if you will, within the department from the counterterror folk. Gonzales: No, there will not be silos. That will be important not to create silos. We don’t think . . . I’m confident that’s not what’s going to occur here. And I’m also confident that this will not in any way hamper our ability to go after these other kinds of crimes. But it will, in fact, enhance our ability, make us more effective in dealing with terrorism and also those crimes that are related to terrorism. LT: What keeps you awake at night? What gives you nightmares? Gonzales: Another attack in this country. Because as the president says, we are safer today, but we are not yet safe. It’s very, very difficult in a society like ours — in a democracy, in an open democracy like ours — to guarantee safety. . . . And so we’ve done a lot to make America safer, but we have a very determined enemy, a very patient enemy, a very smart enemy, and that worries me. LT: What’s been your biggest professional mistake since you’ve come to Washington? I mean, in looking back at the 2002 torture memo, do you wish that you or somebody else within the department had stood up and said “Stop”? Gonzales: Well, you know, I would say that no one’s perfect. And you know, have I made mistakes? Sure I’ve made mistakes. The key is, do you identify the mistakes quickly? Do you correct the mistakes? And do you learn from the mistakes? And I hope that I have.

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