    [Senate Hearing 109-4]
    [From the U.S. Government Publishing Office]

                                                              S. Hrg. 109-4

      CONFIRMATION HEARING ON THE NOMINATION OF ALBERTO R. GONZALES TO BE
                     ATTORNEY GENERAL OF THE UNITED STATES

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                           ONE HUNDRED NINTH CONGRESS

                                 FIRST SESSION

                                   ----------

                                JANUARY 6, 2005

                                   ----------

                               Serial No. J-109-1

                                   ----------

             Printed for the use of the Committee on the Judiciary

         CONFIRMATION HEARING ON THE NOMINATION OF ALBERTO R. GONZALES
                  TO BE ATTORNEY GENERAL OF THE UNITED STATES

                        U.S. GOVERNMENT PRINTING OFFICE
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                                                              S. Hrg. 109-4

      CONFIRMATION HEARING ON THE NOMINATION OF ALBERTO R. GONZALES TO BE
                     ATTORNEY GENERAL OF THE UNITED STATES

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                           ONE HUNDRED NINTH CONGRESS

                                 FIRST SESSION

                                   __________

                                JANUARY 6, 2005

                                   __________

                               Serial No. J-109-1

                                   __________

             Printed for the use of the Committee on the Judiciary

                           COMMITTEE ON THE JUDICIARY

                     ARLEN SPECTER, Pennsylvania, Chairman
    ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
    CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
    JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
    MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
    JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
    LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
    JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
    SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
    TOM COBURN, Oklahoma
                           David Brog, Staff Director
                         Michael O'Neill, Chief Counsel
          Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
      Delaware.......................................................    69
    Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....    92
    Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma......    98
    Cornyn, Hon. John, a U.S. Senator from the State of Texas,
      prepared statement and attachments.............................   424
    DeWine, Hon. Mike, a U.S. Senator from the State of Ohio.........    66
    Durbin, Hon. Richard J., a U.S. Senator from the State of
      Illinois.......................................................    95
        prepared statement...........................................   470
    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wisconsin......................................................    82
    Feinstein, Hon. Dianne, a U.S. Senator from the State of
      California, prepared statement.................................   478
    Graham, Hon. Lindsey O., a U.S. Senator from the State of South
      Carolina.......................................................    79
    Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    60
        prepared statement...........................................   496
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     4
        prepared statement and attachments...........................   572
    Kennedy, Hon. Edward M., a U.S. Senator from the State of
      Massachusetts..................................................    63
        prepared statement and attachments...........................   527
    Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin...    76
    Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared
      statement......................................................   542
    Schumer, Hon. Charles E., a U.S. Senator from the State of New
      York...........................................................    88
    Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    73
    Specter, Hon. Arlen, a U.S. Senator from the State of
      Pennsylvania...................................................     1

                            STATEMENT OF THE NOMINEE

    Gonzales, Alberto R., of Texas, Nominee to be Attorney General of
      the United States..............................................    12
        Questionnaire................................................    15

                                   PRESENTERS

    Cornyn, Hon. John, a U.S. Senator from the State of Texas
      presenting Alberto R. Gonzales, of Texas, Nominee to be
      Attorney General of the United States..........................     7
    Salazar, Hon. Ken, a U.S. Senator from the State of Colorado
      presenting Alberto R. Gonzales, of Texas, Nominee to be
      Attorney General of the United States..........................    10

                                   WITNESSES

    Hutson, John D., Dean and President of the Franklin Pierce Law
      Center, Concord, New Hampshire.................................   152
    Johnson, Douglas A., Executive Director, Center for Victims of
      Torture, Minneapolis, Minnesota................................   154
    Koh, Harold Hongju, Dean and Gerard C. and Bernice Latrobe Smith
      Professor of International Law, Yale Law School, New Haven,
      Connecticut....................................................   157

                             QUESTIONS AND ANSWERS

    Responses of Alberto R. Gonzales to questions submitted by
      Senator Biden..................................................   171
    Response of Alberto R. Gonzales to a question submitted by
      Senator Coburn.................................................   190
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Durbin.................................................   191
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Feingold...............................................   220
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Feinstein..............................................   240
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Graham.................................................   253
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Grassley...............................................   255
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Hatch..................................................   269
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Kennedy................................................   275
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Kohl...................................................   325
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Leahy..................................................   331
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Leahy on behalf of Senator Levin.......................   361
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Schumer................................................   368
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Sessions...............................................   374
    Responses of Alberto R. Gonzales to questions submitted by
      Senator Specter................................................   379
    Responses of Alberto R. Gonzales to hearing questions posed by
      Senators Specter, Graham, Schumer, Durbin, Kennedy, and
      Feingold.......................................................   381
    Responses of Alberto R. Gonzales to follow-up questions submitted
      by Senators Leahy, Feinstein, and Kennedy......................   388
    Responses of Alberto R. Gonzales to follow-up questions submitted
      by Senator Durbin..............................................   410
    Responses of Alberto R. Gonzales to additional follow-up
      questions submitted by Senator Leahy...........................   417
    Reponses of Harold Hongju Koh to questions submitted by Senator
      Sessions.......................................................   419

                           SUBMISSIONS FOR THE RECORD

    Arizona Daily Star, January 8, 2005, article.....................   420
    Boston Globe:
        January 5, 2005, article.....................................   422
        January 18, 2005, article....................................   423
    Cuellar, Mariano-Florentino, Associate Professor and Deane F.
      Johnson Faculty Scholar, Stanford Law School and Jenny S.
      Martinez, Assistant Professor, Stanford Law School, letter and
      attachment.....................................................   465
    Engelbert, Jo Anne, Professor Emerita, Montclair State
      University, St. Augustine, Florida, letter.....................   477
    Former Office of Legal Counsel attorneys, memorandum and
      attachment.....................................................   482
    Ford, Jack and Delia McGrath, Pacifica, California, letter.......   489
    Gaddy, C. Welton, Reverend, President, Interfaith Alliance,
      Washington, D.C., letter.......................................   490
    Gonzales, Alberto R., of Texas, Nominee to be Attorney General,
      prepared statement.............................................   492
    Guttman, Fred, Rabbi, Temple Emanuel, Greensboro, North Carolina,
      letter.........................................................   494
    Human Rights First, Washington, D.C., statement..................   498
    Human Rights Watch, Washington, D.C., statement..................   500
    Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
      Texas, prepared statement......................................   503
    Hutson, John D., Dean and President of Franklin Pierce Law
      Center, Concord, New Hampshire, prepared statement.............   504
    Johnson, Douglas A., Executive Director, Center for Victims of
      Torture, Minneapolis, Minnesota, prepared statement............   513
    Jones, Scott, Associate Pastor for Youth and Education, Royal
      Lane Baptist Church, Dallas, Texas, letter.....................   526
    Koh, Harold Hongju, Dean and Gerard C. and Bernice Latrobe Smith
      Professor of International Law, Yale Law School, New Haven,
      Connecticut, prepared statement................................   531
    La Raza Centro Legal, Inc., San Francisco, California, statement.   544
    Lawyers' Committee for Civil Rights, San Francisco, California,
      statement......................................................   546
    Lawyers' statement on the nomination of Alberto Gonzales.........   548
    Leadership Conference on Civil Rights, Washington, D.C., letter..   567
    Los Angeles Times, January 6, 2005, article......................   609
    Malinowski, Tom, Washington Advocacy Director, Human Rights
      Watch, Washington, D.C., letter................................   611
    Mayerfeld, Jamie, Associate Professor, Department of Political
      Science, University of Washington, Seattle, Washington, letter.   612
    Mexican American Legal Defense Fund, Los Angeles, California,
      article........................................................   613
    Mexican American Political Association, Los Angeles, California,
      article........................................................   615
    Midwest Coalition for Human Rights, Minneapolis, Minnesota,
      letter.........................................................   617
    Milwaukee Journal Sentinel, January 8, 2005, article.............   621
    Montano, Melvyn, Major General, Retired, USAF National Guard,
      Albuquerque, New Mexico, letter................................   622
    National Lawyers Guild, New York, New York, article..............   623
    Newsweek:
        May 24, 2004, article........................................   624
        June 21, 2004, article.......................................   630
        November 22, 2004, article...................................   633
        December 27, 2004, article...................................   634
    New York Review of Books:
        June 10, 2004, article.......................................   636
        June 24, 2004, article.......................................   644
        October 7, 2004, article.....................................   657
    New York Times:
        February 17, 1987, article...................................   676
        October 24, 2004, article....................................   677
        October 25, 2004, article....................................   690
        January 5, 2005, article.....................................   704
        January 6, 2005, article.....................................   706
        January 26, 2005, article....................................   710
    Physicians for Human Rights, Cambridge, Massachusetts, letter and
      attachment.....................................................   711
    Prendergast, Carol, Managing Director, Refuge, New York, New
      York, letter...................................................   717
    Republican (Western Massachusetts), January 23, 2005, article....   718
    Retired professional military and civilian leaders of the U.S.
      Armed Forces:
        letter to President Bush, Sept. 7, 2004......................   719
        letter to Senate Judiciary Committee.........................   725
    Romero, Anthony, Executive Director, American Civil Liberties
      Union, New York, New York, article.............................   731
    Rushdie, Salman, President, PEN American Center, New York, New
      York, letter...................................................   733
    Schwartz, Bruce S., Attorney at Law, Cherry Hill, New Jersey,
      letter.........................................................   735
    Shalom Center, Committee of Concerned Philadelphia Rabbis,
      Philadelphia, Pennsylvania, joint letter.......................   736
    Slate, January 15, 2005, article.................................   742
    Society of American Law Teachers, New York, New York, letter.....   744
    Sofaer, Abraham D., George P. Shultz Senior Fellow, Hoover
      Institution, Stanford University, Stanford, California, letter.   748
    Specter, Hon. Arlen, a U.S. Senator from the State of
      Pennsylvania, Hon. Mike DeWine, a U.S. Senator from the State
      of Ohio, Hon. Herbert Kohl, a U.S. Senator from the State of
      Wisconsin, Hon. Strom Thurmond, a U.S. Senator from the State
      of South Carolina, Hon. Charles E. Schumer, a U.S. Senator from
      the State of New York, and Hon. Joseph R. Biden, Jr., a U.S.
      Senator from the State of Delaware, April 11, 2000, joint
      letter.........................................................   751
    Specter, Hon. Arlen, a U.S. Senator from the State of
      Pennsylvania, Hon. Herbert Kohl, a U.S. Senator from the State
      of Wisconsin, Hon. Charles E. Schumer, a U.S. Senator from the
      State of New York, Hon. Strom Thurmond, a U.S. Senator from the
      State of South Carolina, and Hon. Mike DeWine, a U.S. Senator
      from the State of Ohio, April 25, 2000, joint letter...........   755
    Star Tribune, January 8, 2005, article...........................   759
    United States-based human rights organizations, letter...........   761
    Washington Post:
        Dana Priest and Dan Eggen, January 6, 2005, article..........   764
        January 6, 2005, article.....................................   767
        January 26, 2005, article....................................   769
    Washington Times:
        January 4, 2005, article.....................................   771
        January 24, 2005, article....................................   773

    NOMINATION OF ALBERTO R. GONZALES TO BE ATTORNEY GENERAL OF THE UNITED
                                     STATES

                                  ----------

                           THURSDAY, JANUARY 6, 2005

                                  United States Senate,
                                    Committee on the Judiciary,
                                                       Washington, D.C.
        The Committee met, pursuant to notice, at 9:30 a.m., in
    room SH-216, Hart Senate Office Building, Hon. Arlen Specter,
    Chairman of the Committee, presiding.
        Present: Senators Specter, Hatch, Kyl, DeWine, Sessions,
    Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy, Biden, Kohl,
    Feingold, Schumer, and Durbin.

     OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
                       THE STATE OF PENNSYLVANIA

        Chairman Specter. The hour of 9:30 having arrived, we will
    proceed with the United States Senate Committee on the
    Judiciary today, to proceed with the hearing of White House
    Counsel Alberto Gonzales, whom the President has nominated for
    the position of Attorney General of the United States. There
    will be opening statements by Senator Leahy and myself, and
    then we will call upon Senator John Cornyn and Senator Ken
    Salazar to introduce the nominee. And then the nominee will
    introduce his family, and then we will proceed with the opening
    statement of Judge Gonzales.
        Preliminarily, it should be noted that White House Counsel
    Gonzales had served on the Supreme Court of Texas and is
    referred to as ``Judge Gonzales,'' and that will be the title
    which I will use during the course of these proceedings.
        Judge Gonzales comes to this nomination with a very
    distinguished career, really a Horatio Alger story: Hispanic
    background; of seven siblings, the first to go to college;
    attended the Air Force Academy for 2 years; and then received
    degrees from Rice and Harvard Law School; became counsel to
    then-Governor George Bush of Texas; was appointed to the State
    Supreme Court and later elected for a full term; and has been
    President Bush's Counsel for the full 4 years of his term.
        Judge Gonzales will take over, if confirmed, the direction
    of the Department of Justice, which is a Department of enormous
    importance in the United States, the fourth Department created
    in 1789, has the responsibility for representing the United
    States in court, civil cases and criminal cases, has oversight
    responsibility for the Federal Bureau of Investigation and its
    enormous responsibilities on the fight against terrorism, and
    law enforcement. And while Judge Gonzales is the appointee of
    the President, he has broader responsibilities representing the
    people of the United States, a key distinction which I am
    pleased to say in advance that Judge Gonzales has noted in the
    statement which he has submitted.
        The focus of media attention has been on the issue of Judge
    Gonzales' roles in analysis and recommendations on the handling
    of the detainees. Judge Gonzales had issued an opinion to the
    President that the Geneva Convention did not apply with respect
    to certain of the combatants. In his memorandum of January 25,
    2000, he said, ``In my judgment, this new paradigm''--referring
    to the war on terrorism--``renders obsolete Geneva's strict
    limitations on questioning of enemy prisoners * *  *'' The
    Committee will seek further amplification on a number of
    substantive issues from that memorandum, including Judge
    Gonzales' statement that, ``In the treatment of detainees, the
    United States will continue to be constrained by its commitment
    to treat the detainees humanely and, to the extent appropriate
    and consistent with military necessity, in a manner consistent
    with the principles of the Geneva Convention.'' This statement
    raises the question of what is the meaning of military
    necessity and what extent, if at all, does military necessity
    impact on the ``commitment to treat'' a detainee humanely.
        Beyond Abu Ghraib and Guantanamo, the Committee will want
    to know Judge Gonzales' plans and views on a wide range of
    matters which will command the attention of the Department as
    we begin a new year and a new Presidential term.
        The most important issue facing our Nation today continues
    to be the threat of terrorism. That is the most important issue
    facing our country and how we deal with it in the balance of
    our civil rights. The Department will have a major impact on
    the implementation of the new legislation for a National
    Intelligence Director with the very heavy responsibilities of
    the Federal Bureau of Investigation and the coordination of
    intelligence, which, if it had been properly implemented, might
    well have prevented 9/11.
        There are a number of other key issues which the Attorney
    General will deal with. We will be interested to know of any
    views on enforcement of the antitrust laws. American consumers
    of oil and gas have been strangled by OPEC and their
    international cartel. They are not immune under the act of
    state doctrine, and we will be interested to know what plans
    the Department of Justice under Judge Gonzales, if confirmed,
    would have on that important issue.
        The Department will have a major role in implementing
    President Bush's proposals to revise our Nation's immigration
    laws and to deal with the 10 million aliens who are in this
    country illegally. The Committee will also be interested to
    know of any new ideas or programs Judge Gonzales has for
    fighting organized and violent crime, cracking down on fraud,
    especially on Federal health programs, and protecting U.S.
    intellectual property rights.
        The Committee will be interested in Judge Gonzales' views
    on the PATRIOT Act since the Attorney General will obviously be
    a central figure in consideration of reauthorization of that
    Act. That Act provided considerable assistance to law
    enforcement by eliminating the so-called wall between the
    gathering of intelligence once obtained for intelligence
    purposes to be used in criminal law enforcement. But there are
    other questions which have been challenged by a wide array of
    people on all facets of the political spectrum with the issue
    of probable cause to obtain records, library records, and the
    so-called sneak-and-peek orders, and we will be interested in
    what Judge Gonzales has to say about that very important
    matter.
        We will also be interested to know Judge Gonzales' views on
    the issue of detention and standards of detention. The Attorney
    General has exercised the authority to overrule conclusions by
    the immigration judge in the Board of Immigration Appeals, and
    this is an issue which lingers after considerable questioning
    of Attorney General Ashcroft as to what standards ought to be
    used. And Attorney General John Ashcroft conceded before this
    Committee that it is not sufficient to simply cite national
    security, and that will be a question which we will want to
    inquire into.
        We will also be looking for commitments from Judge Gonzales
    to appear before this Committee at least twice a year and to be
    responsive to our inquiries. And we will seek his commitment on
    the oversight authority of this Committee as recognized by the
    Supreme Court of the United States, our constitutional
    obligation on oversight.
        As we begin a new term, I pay tribute to my distinguished
    colleague, Senator Hatch, who has chaired this Committee for
    most of the past 10 years and has been responsible for some of
    the most innovative and far-reaching legislation which has ever
    come from the Congress of the United States. And he has handled
    these duties in an atmosphere sometimes contentious, sometimes
    difficult, but always with good cheer and always with aplomb
    and always with a balance. And I have admired especially his
    stamina. We affectionately refer to him as ``Iron Pants,'' as
    he has chaired this Committee with such great distinction. And
    it is an honor to receive the gavel from him, if you will make
    that formal presentation, Senator Hatch.
        Senator Hatch. Well, I am very honored to make that
    presentation to Arlen Specter, who is one of the best lawyers
    we have ever had serve in the United States Senate, among a
    whole raft of very fine lawyers. And so I am very proud to have
    you as our new Chairman, and I appreciate your kind remarks,
    and I appreciate serving with Senator Leahy and all of our
    colleagues on this Committee for such a long period of time. I
    am anxious to serve under you, and I will enjoy sitting beside
    you.
        Chairman Specter. Thank you, Senator Hatch.
        Senator Hatch. Here is the gavel.
        [Applause.]
        Chairman Specter. I commend Senator Leahy for his very
    distinguished service as the long-time ranking Democrat on the
    Committee and Chair of the Committee for most of the 107th
    Congress. Senator Leahy and I have been colleagues going back
    to the late 1960s, when we were district attorneys together.
    Senator Leahy was the district attorney of Burlington, Vermont,
    and I was district attorney of Philadelphia. And we have worked
    together for 24 years on the Judiciary Committee, and in the
    past several weeks, we have talked extensively, we have sat
    down, we have gone over the agenda of the Committee. We are
    obviously keenly aware of the difficulties of gridlock, and we
    are looking for a new beginning with more consultation and an
    effort to avoid some of the contentiousness of the past, if it
    is at all possible, and to avoid, if we can, even consideration
    of the so-called nuclear option.
        So it is with pleasure that I work with Senator Leahy, a
    friend for four decades, and now I yield to you, Senator Leahy,
    for your opening statement.

    OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
                          THE STATE OF VERMONT

        Senator Leahy. Thank you very much, Mr. Chairman, and I do
    welcome you as our new Chairman. People sometimes forget that
    Senator Hatch and I often agree on things, and I absolutely
    agree with him that you are one of the most experienced lawyers
    ever to serve. I have served here for 30 years and I am not
    surprised at the praise. I remember our times together back as
    prosecutors. When I was a young prosecutor, I first met you in
    Philadelphia at a national DAs' meeting, and I have followed
    your career ever since.
        I would say also to Senator Hatch, I compliment him and I
    am glad that he is determined to stay on the Committee. We have
    many people who have chaired this Committee who have stayed
    on--Senator Hatch, of course now Senator Specter, Senator
    Kennedy, Senator Biden--and I think it has helped the Committee
    and improved the Committee with that experience.
        Judge Gonzales, I welcome you to the Senate Judiciary
    Committee. As has been alluded to, we are entrusted by the
    American people and by the Senate, even more importantly by the
    Constitution, to do a thorough and fair job in considering
    nominations for the executive branch of Government. At the
    outset, I want to make clear how inspiring your life story is.
    A recent Washington Post profile of your life's journey in
    particular touched me as few accounts of your life have. The
    road you have traveled from being a 12-year-old boy, just about
    the age of your oldest son, selling soft drinks at football
    games, all the way to the State House in Texas and now the
    White House is a tribute to you and your family. I enjoyed
    meeting with your wife and your sons, your mother--and this has
    to be a very proud day for her--your brother, your mother-in-
    law, and the family.
        I am sure we are going to hear more about your life story,
    but also we will learn about Alberto Gonzales, the Counsel to
    the President. And then we are going to try to glean what kind
    of a portrait we might have of you if you are confirmed to be
    Attorney General of the United States. The Attorney General, of
    course, has to represent the interests of all Americans as the
    Nation's chief law enforcement officer. As Justice James
    Iredell wrote in 1792, the person who serves as Attorney
    General is ``not called Attorney General of the President but
    Attorney General of the United States.''
        Now, the post is quite distinct from the position Judge
    Gonzales has performed for the President. There he acted as a
    spokesman for the administration and appeared as chief defense
    lawyer for the White House on a range of a number of very
    important and many times politically sensitive issues. So a key
    question for this hearing is whether the nominee shares this
    view of the crucial role of the Attorney General.
        When he was designated for this position by the President,
    Judge Gonzales said he was looking forward to continuing to
    work with friends and colleagues in the White House in a
    different capacity on behalf of our President. But, you know,
    there are going to be times--there may well be times when the
    Attorney General of the United States has to enforce the law,
    and he cannot be worried about friends or colleagues at the
    White House. His duty is to all Americans--Republicans,
    Democrats, Independents, all Americans.
        At a time when the Republican Party has control of all
    three branches of the Federal Government, my worry is that our
    system of checks and balances may become short-circuited by too
    few checks on assertions of executive branch authority. My
    concern is that during several high-profile matters in your
    professional career, you have appeared to serve as a
    facilitator rather than as an independent force in the
    policymaking process.
        Now, the job of Attorney General is not about crafting
    rationalizations for ill-conceived ideas. It is a much more
    vital role than that. The Attorney General is about being a
    forceful, independent voice in our continuing quest for justice
    and in defense of the constitutional rights of every single
    American. We have seen what happens when the rule of law plays
    second fiddle to a President's policy agenda. Attorney General
    Ashcroft and with the White House Counsel's office has
    impulsively facilitated rather than cautiously vetted serious
    constitutional issues. The administration has taken one
    untenable legal position after another regarding the rule of
    law as we fight terrorism. The few times Attorney General
    Ashcroft consented to appear before this Senate oversight
    Committee, he brandished intimidation as a weapon, sometimes
    going so far as to say that questioning the administration's
    policy somehow gave aid and comfort to the enemy.
        By contrast, I think your nomination appears to offer a
    different era. But as I told Judge Gonzales when we met within
    days of the announcement of his nomination, these hearings do
    matter. We need to know more about his judgment and actions in
    connection with the tragic legal and policy changes formulated
    in secret by this administration--in secret and still being
    hidden from proper congressional oversight and public scrutiny.
    The policies include this nominee's role in developing
    interpretation of the law to justify harsh treatment of
    prisoners. Harsh treatment is tantamount to torture.
        America's troops and citizens are at greater risk because
    of those actions, with terrible repercussions throughout so
    much of the world. The searing photographs from Abu Ghraib have
    made it harder to create and maintain the alliances we need to
    prevail against the vicious terrorists who threaten us, and
    those abuses serve as recruiting posters for the terrorists.
    The scandal of Abu Ghraib, allegations of mistreatment at
    Guantanamo, charges from cases in Iraq and Afghanistan are
    serious matters, and to date we have unresolved accountability.
        So these hearings are about a nomination, but they are also
    about accountability. From the outset of public disclosure of
    the Abu Ghraib photographs, the Bush administration maintained
    that any wrongdoing was simply a case of a few bad apples. But
    as bits of information have been made public not by the
    administration but by the press over the last year, it has
    become clear to all that these incidents at U.S. facilities
    around the world are not just the actions of a few low-ranking
    members of the military; rather, in the upper reaches of the
    executive branch, a process was set in motion that rolled
    forward to produce scandalous results, almost like somebody
    opening the floodgates in a dam and the water flowed downstream
    until it overwhelmed everybody below.
        The Army Field Manual reflects our Nation's long-held
    policy toward prisoners. My young son was in the Marines, and
    he was called up for Desert Storm, the war that was so quick
    that he was not in harm's way. He was taught these things even
    as a Marine. But the Army Field Manual reflects our Nation's
    long-held policies toward prisoners, and it says, ``The goal of
    any interrogation is to obtain reliable information in a lawful
    manner. U.S. policy expressly prohibits acts of violence or
    intimidation, including physical or mental torture, threats,
    insults, or exposure to inhumane treatment, as a means of or to
    aid interrogation.''
        Now, the policy is in place for a very good reason. The
    Field Manual continues, ``The use of torture is a poor
    technique that yields unreliable results, may damage subsequent
    collection efforts, and can induce the source to say what he
    thinks the interrogator wants to hear.'' It also may place U.S.
    and allied personnel in enemy hands at greater risk. But senior
    officials in the Bush White House, the Ashcroft Justice
    Department, and the Rumsfeld Pentagon set in motion a
    systematic effort to minimize, distort, and even ignore our
    laws, our policies, our international agreements on torture and
    the treatment of prisoners. Defense Secretary Rumsfeld and
    later Lieutenant General Ricardo Sanchez authorized the use of
    techniques that were contrary to both U.S. military manuals,
    but also international law. Former CIA Director Tenet requested
    and Secretary Rumsfeld approved the secret detention of ghost
    detainees in Iraq. They did that so they could be hidden from
    the International Committee of the Red Cross. And still
    unexplained are instances where the U.S. Government delivered
    prisoners to other countries so they could be tortured.
        We have to ask, where is the responsibility and
    accountability for these abuses? We are the most powerful
    Nation on Earth--actually, the most powerful Nation Earth has
    ever known--and a country that has great promise. We are
    blessed with so much. We are a country that cherishes liberty
    and human rights. We have been a beacon of hope and freedom to
    the world. Certainly it was that hope and freedom that brought
    my grandparents to this country not speaking a word of English,
    but coming here for that peace and freedom.
        We face vicious enemies in the war on terrorism, but we can
    and will defeat them without sacrificing our values or stooping
    to their levels. I believe there are several people in the
    audience who are themselves survivors of torture committed by
    the armed forces and secret police of other countries, which do
    not share these values on torture. They continue to struggle to
    overcome those horrifying experiences. And we are very
    concerned that we not retreat from the high standards against
    torture that we have held up to the world in the past.
        So these hearings, if I may conclude, are an opportunity at
    long last for some accountability for this meltdown of
    longstanding U.S. policy on torture. White House Counsel Judge
    Gonzales was at the center of discussions on the applicability
    of the Geneva Conventions to the wars in Afghanistan and Iraq
    and the legality of detention and interrogation methods that
    have been seen as tantamount to torture. He oversaw the
    formulation of this administration's extreme views of
    unfettered executive power and unprecedented government
    secrecy.
        I hope that things will be different if you are confirmed,
    Judge Gonzales. I hope that you will be accessible to members
    of this Committee and be more responsive than your predecessor.
    I know that the President has asked our incoming Chairman to
    proceed expeditiously with these hearings. I have worked with
    him over the end-of-the-year break. We have had a lot of calls
    back and forth between your home and my farm in Vermont. We
    have met several times. And as I told you, we would do
    everything possible to help you move forward, and I will.
        [The prepared statement of Senator Leahy appears as a
    submission for the record.]
        Chairman Specter. Thank you very much, Senator Leahy.
        We will now turn to introductions. We will then hear from
    Judge Gonzales, and then we will, in accordance with the
    practice of the Committee, with opening statements as
    customarily limited to the Chairman and Ranking Member, turn in
    order of seniority for 10-minute rounds of questions. I will
    observe the 10-minute limitation precisely and will ask other
    Committee members to do so, and there will be multiple rounds
    so the Committee members will have a full opportunity to
    question Judge Gonzales.
        We now turn to the Senator from Texas, Senator John Cornyn,
    a distinguished and valued member of this Committee, for an
    introduction of the nominee.

      PRESENTATION OF ALBERTO R. GONZALES, NOMINEE TO BE ATTORNEY
       GENERAL OF THE UNITED STATES, BY HON. JOHN CORNYN, A U.S.
                    SENATOR FROM THE STATE OF TEXAS

        Senator Cornyn. Thank you, Chairman Specter, for convening
    today's hearing and congratulations on your chairmanship.
        Chairman Specter. Thank you.
        Senator Cornyn. I am pleased to be here today to introduce
    Judge Alberto Gonzales to this Committee. He is a talented
    lawyer, a dutiful public servant, and a good man. He is a great
    Texan and an inspiring American success story, as you, Mr.
    Chairman, have already alluded, and I am honored to call him my
    friend.
        I should also mention that Senator Hutchison, the senior
    Senator from Texas, had wanted to be here today to express her
    strong support for this nominee but is away due to a pre-
    existing commitment, and I would ask that her statement of
    support be made part of the record.
        Chairman Specter. Without objection, it will be made a part
    of the record.
        Senator Cornyn. I have known Judge Gonzales for many years,
    and I can tell you that the media is absolutely right when they
    refer to him as the ``Man from Humble.'' For those of you who
    are not from Texas, let me explain. He grew up in Humble,
    Texas, but it also, I think, attests to the fact that he is a
    modest, self-effacing man. The son of migrant workers, his
    childhood home, where his mother still lives today, was built
    by his father and uncle. And as has already been stated, as a
    young man, as a teenager, he sold soft drinks at Rice
    University football games and dreamed of one day when he might
    possibly attend that great institution.
        Judge Gonzales is the first person in his family to have
    gone to college. Because of the love and support of his family
    and his work and determination, he graduated not just from Rice
    University but from Harvard University School of Law, and then
    joined a prestigious international law firm where he became one
    of its first minority partners. He eventually caught the eye of
    a Texas Governor who saw a uniquely talented, yet modest man,
    who then appointed him as his general counsel, his Secretary of
    State, as a member of the Texas Supreme Court, and then as
    White House Counsel.
        Judge Gonzales is truly an inspiration to everyone who
    still believes in the American dream. And so his nomination as
    the Nation's 80th Attorney General, our first Hispanic Attorney
    General, should by all accounts have a perfectly happy ending.
    But that is not necessarily how Washington works. It appears
    that, at least in anticipation of today's hearing, we will see
    once again that this confirmation process can be unnecessarily
    partisan, even cruel to some who selflessly offer themselves
    for public service. I know we will get into the details, but
    let me just say that only in Washington can a good man get
    raked over the coals for doing his job. This must all be a
    little disorienting for one whose very life story testifies to
    the fact that America should always be a place where honesty,
    diligence, and determination are rewarded, not punished.
        Take, for example, the harsh criticism about the Geneva
    Convention. Judge Gonzales has been harshly attacked for
    advising the President that all detainees be treated humanely,
    but that as a legal mater al Qaeda and Taliban fighters are not
    covered by the Geneva Convention.
        Now, I hate to ruin a good story by the President's
    political opponents who are attacking him through this nominee,
    but let me just say there is one important point that needs to
    be made. Judge Gonzales is absolutely right. You do not have to
    take my word for it. First of all, al Qaeda never signed the
    Geneva Conventions, but moreover, the Red Cross' own guidelines
    state that to be entitled to Geneva protection as a prisoner of
    war, combatants must satisfy four conditions: being commanded
    by a person responsible for his subordinates; secondly, having
    a fixed, distinctive sign recognizable at a distance; number
    three, carrying arms openly; and, number four, conducting their
    operations in accordance with the laws and customs of war.
        Does anyone on this Committee, or anywhere else, for that
    matter, seriously argue that al Qaeda terrorists comply with
    the law of war?
        By the way, it is important to note that Judge Gonzales'
    legal advice has also been affirmed by three Federal courts
    throughout this country and has also been endorsed by numerous
    legal scholars and international legal experts across the
    political spectrum, as well as both the 9/11 Commission, by the
    way; the final Schlesinger report, an independent report on DOD
    detention operations; and a brief filed recently in the United
    States Supreme Court by former Carter administration officials,
    State Department legal advisers, judge advocates and military
    commanders, and liberal international law scholars, who
    concluded that ``[t]he President's conclusion that members of
    al Qaeda, and the Taliban, are unlawful combatants'' is clearly
    correct. Even Washington advocacy director for the Human Rights
    Watch, Tom Malinowski, a vocal Bush administration critic, has
    grudgingly conceded that the administration's interpretation
    was ``probably correct.''
        Now, the administration's Geneva position is not just right
    as a legal matter. It is also essential as a matter of national
    security.
        I recently published an op-ed that explained that Geneva
    Convention protections to al Qaeda would threaten the security
    of our soldiers, dramatically disable us from obtaining the
    intelligence needed to prevent further attacks on U.S.
    civilians and soldiers, and badly undermine international law
    itself, and I would ask, Mr. Chairman, that that be made a part
    of the record.
        Chairman Specter. Without objection it will be made part of
    the record.
        Senator Cornyn. Thank you very much.
        Just take a look at all the numerous privileges provided by
    the Geneva Convention for traditional prisoners of war. For
    example, questioners could not entice detainees to answer
    questions by offering them creature comforts or even
    preferential treatment, even though that is the standard
    operating procedure in police stations throughout the United
    States. Because the Convention prohibits the holding of
    detainees in isolation, al Qaeda fighters would be able to
    coordinate with each other in a way that would thwart or could
    thwart effective questioning. POW status, even confers broad
    combat immunity against current criminal prosecution before
    civilian and military tribunals alike.
        Mr. Chairman, surely, no member of the Committee or anyone
    else on our side of this conflict actually believes that an al
    Qaeda terrorist deserves to be treated better than an American
    citizen accused of a crime. I certainly would not think so.
    President Reagan did not think so, neither did each of his
    successors in office. Nearly two decades ago President Reagan
    and every President since that time has rejected a proposed
    amendment to the Geneva Convention known as Protocol 1 of 1977
    to extend that Convention to protect terrorists. As President
    Reagan rightly argued we must not and need not give recognition
    and protection to terrorist groups as a price for progress in
    humanitarian law. Notably even the New York Times and
    Washington Post agreed at the time.
        All of this support from multiple Federal courts, from the
    9/11 Commission, the Schlesinger Report, liberal international
    legal scholars, Carter administration officials, even the New
    York Times and Washington Post, yet Judge Gonzales is
    criticized for taking exactly that same position.
        Take one more issue, the Justice Department memos that have
    been alluded to here construing the Federal torture statute.
    Judge Gonzales is being attacked for a memo he did not write,
    interpreting the law that he did not draft. It was Congress,
    not Judge Gonzales, that enacted a strict definition of
    torture. It was Congress, not Judge Gonzales, that specifically
    provided that only specific intent to inflict severe pain or
    mental pain or suffering would constitute torture.
        As I said, President Bush and Judge Gonzales have both
    unequivocally, clearly and repeatedly rejected the use of
    torture. But is there anyone here today who would fail to use
    every legal means to collect intelligence from terrorists in
    order to protect American lives? I certainly hope not.
        Finally, I know we are going to hear some about Abu Ghraib
    today, we already have, and I think it is safe to say that
    everyone agrees that Abu Ghraib represents a shameful episode
    in this Nation's history, yet some people actually want to
    exploit that tragedy for their own purposes. Abu Ghraib should
    be treated seriously, not politically. The Defense Department
    has been vigorously investigating the misconduct and
    prosecuting the violators. The independent Schlesinger Report
    that I alluded to earlier, concluded that, ``No approved
    procedures called for or allowed the kinds of abuse that in
    fact occurred. There is no evidence of a policy of abuse
    promulgated by senior officials or military authorities.'' So
    if there is no evidence whatsoever that Judge Gonzales was any
    way responsible for the criminal acts that occurred at Abu
    Ghraib by a few, why are we talking about this in Judge
    Gonzales' confirmation hearing? This after all is a
    confirmation hearing to head the Department of Justice, not an
    oversight hearing of the Department of Defense.
        In conclusion, let me just say, Mr. Chairman, that I am
    proud of my friend, Judge Alberto Gonzales. He is the source of
    great inspiration and pride to his family and his friends, and
    all of us who call the great State of Texas home. Time and time
    again Judge Gonzales has done his duty on the war on terrorism.
    It disheartens me to see him held up to ridicule, distortions
    and outright lies for being the patriot that he is.
        So, Mr. Chairman, let me say to you and my colleagues, let
    us confirm this good man from Humble. Thank you very much.
        [The prepared statement of Senator Cornyn appears as a
    submission for the record.]
        Chairman Specter. Thank you very much, Senator Cornyn.
        We now turn to newly elected Senator Ken Salazar.
    Congratulations, Senator Salazar from Colorado, and we look
    forward to your introduction of Judge Gonzales.

      PRESENTATION OF ALBERTO R. GONZALES, NOMINEE TO BE ATTORNEY
       GENERAL OF THE UNITED STATES, BY HON. KEN SALAZAR, A U.S.
                   SENATOR FROM THE STATE OF COLORADO

        Senator Salazar. Thank you, Chairman Specter, and Ranking
    Member Leahy, and Members of the Committee. It is an honor and
    a privilege for me to appear before you this morning.
        It is also an honor and privilege for me to appear before
    you this morning to make an introduction of Judge Alberto
    Gonzales. I do so at the invitation of Judge Gonzales. He and I
    come from very similar backgrounds. We both understand the
    struggles of people as they try to build better lives for
    themselves and for their families in America.
        In a speech at Rice University, Judge Gonzales recently
    recalled his upbringing, and he said, I quote, ``During my
    years in high school I never once asked my friends once over to
    our home. You see, even though my father pored his heart into
    that house, I was embarrassed that 10 of us lived in a cramped
    space with no hot running water or telephone.''
        In another statement, Judge Gonzales said, ``My father did
    not have opportunities because he had only two years of formal
    schooling, and so my memories are of a man who had to work six
    days a week to support his family. He worked harder than any
    person I have ever known.''
        From those humble beginnings, Judge Gonzales has excelled
    academically and professionally. In my view, Judge Gonzales is
    better qualified than many recent Attorneys General. He served
    as a member of the Texas Supreme Court, Secretary of State for
    the State of Texas, Chief Counsel to the Governor or Texas, and
    for the last four years as White House Counsel to the
    President. I have known Judge Gonzales from my days as
    Colorado's Attorney General. In addition, over the last several
    weeks I have met and had several discussions with Judge
    Gonzales about his nomination to serve as this Nation's
    Attorney General. I believe his decision to reach out to me,
    someone who is from a different political party, is an
    indication of his interest in working with all of us in making
    our homeland more secure, and at the same time protecting our
    citizens' rights and liberties.
        I have shared with Judge Gonzales my views on a few
    priority items I would like to work on with the Justice
    Department and with this important Committee under your
    leadership. Judge Gonzales has pledged to me his willingness to
    work on these issues. Among the issues we discussed are the
    following. One, homeland security at the local and State level.
    For those of us, such as Senator Sessions and Senator Cornyn,
    who have served as Attorneys General, we know the importance of
    this issue at the local level. I believe we must do more to
    support our State and local law enforcement officials and other
    first responders as we take on the most significant national
    security challenge of the 21st century, and that is, providing
    security for our homeland against the threats of terrorism.
        I am pleased that if confirmed as Attorney General, Judge
    Gonzales has indicated his willingness to work on this matter,
    and will come to Colorado to meet with local and State law
    enforcement officials and other first responders, to listen to
    their experiences, needs and concerns, and I am certain that he
    will do that in other states as well.
        Secondly, on the PATRIOT Act, I support the PATRIOT Act and
    the necessary reasons for its enactment. I have also expressed
    my support for changes to the Act, as have been discussed and
    proposed by a bipartisan group of leaders in the Congress.
    Judge Gonzales has indicated his willingness to work on this
    important matter so that we might better balance out the needs
    for national security, while at the same time maintaining the
    important fundamental civil liberties of our Nation.
        I know that there are other serious questions that this
    Committee will explore and ask of Judge Gonzales in these
    proceedings. It is appropriate to do so in these confirmation
    proceedings. I am hopeful that Judge Gonzales will
    satisfactorily address the concerns of the Senate, and I am
    hopeful that he will become the next United States Attorney
    General for our Nation.
        Thank you.
        Chairman Specter. Thank you very much, Senator Salazar.
        Judge Gonzales, would you now stand for the administration
    of the oath? Raise your right hand. Do you solemnly swear that
    the testimony you will give before the Senate Judiciary
    Committee will be the truth, the whole truth and nothing but
    the truth, so help you God?
        Judge Gonzales. I swear.
        Chairman Specter. Would you begin, Judge Gonzales, by
    introducing your beautiful family?
        Judge Gonzales. Mr. Chairman, Senator Leahy, distinguished
    Members of the Committee.
        Chairman Specter. Judge Gonzales, a request is pending for
    you to introduce your family before you begin your testimony.
        Judge Gonzales. With me here this morning is my beautiful
    wife, Rebecca.
        Chairman Specter. Ms. Gonzales, would you stand, please?
        Judge Gonzales. As well as our three sons, Jared, Graham
    and Gabriel.
        Chairman Specter. Would you gentlemen please stand? Thank
    you.
        Judge Gonzales. Also here is my mother, Maria.
        Chairman Specter. Thank you.
        Judge Gonzales. My brother Tony, who is a 26-year veteran
    of the Houston Police Department and a SWAT officer, and my
    mother-in-law, Lorinda Turner.
        Chairman Specter. Thank you all for standing, and welcome
    to these proceedings. Thank you.
        Now, Judge Gonzales, we would be very pleased to hear your
    opening statement.

       STATEMENT OF ALBERTO R. GONZALES, NOMINEE TO BE ATTORNEY
                      GENERAL OF THE UNITED STATES

        Judge Gonzales. Mr. Chairman, Senator Leahy, and
    distinguished Members of the Committee, it is the highest honor
    of my professional career to appear before you today as the
    President's nominee to be Attorney General of the United
    States. I owe a debt of deep gratitude to the President for the
    trust he has placed in me.
        I also want to thank Senator Cornyn for his kind
    introduction and for his many years of friendship. Ken Salazar
    was sworn in as a United States Senator just two days ago. I
    want to thank the Senator for his willingness to extend the
    hand of friendship across the political aisle to introduce me
    today. Although Senator Hutchison could not be with us today, I
    appreciate her many years of support as well.
        Mr. Chairman, the highest objective of the Department of
    Justice is the pursuit of justice. This noble objective,
    justice, is reflected in human terms in the hopeful eyes of a
    new citizen voting for the first time; in the quiet gratitude
    of a victim of crime whose rights have been vindicated in the
    courts; and in the pride of a person given the opportunity to
    succeed no matter their skin color or gender or disability. For
    justice, properly understood, cannot in my view be divorced
    from the individual. It always has a human dimension, and if
    confirmed as Attorney General, I pledge that I will always
    remember that.
        With the consent of the Senate, I will no longer represent
    only the White House; I will represent the United States of
    America and its people. I understand the differences between
    the two roles. In the former I have been privileged to advise
    the President and his staff. In the latter I would have a far
    broader responsibility: to pursue justice for all the people of
    our great Nation, to see that the laws are enforced in a fair
    and impartial manner for all Americans.
        Wherever we pursue justice, from the war on terror, to
    corporate fraud, to civil rights, we must always be faithful to
    the rule of law. And I want to make very clear that I am deeply
    committed to the rule of law. I have a deep and abiding
    commitment to the fundamental American principle that we are a
    Nation of laws and not of men. I would not have the audacity to
    appear before this Committee today if that commitment were not
    the core principle that has guided all of my professional
    endeavors.
        Our Government's most basic obligation is to protect its
    citizens from enemies who would destroy their lives and our
    Nation's way of life, and the Department of Justice's top
    priority is to prevent terror attacks against our Nation.
        As we fight the war on terror, we must always honor and
    observe the principles that make our society so unique and
    worthy of protection. We must be committed to preserving civil
    rights and civil liberties. I look forward, if I am confirmed,
    to working with this Committee, the Congress and the public to
    ensure that we are doing all we can do so. Although we may have
    differences from time to time, we all love our country and want
    to protect it, while remaining true to our Nation's highest
    ideals, and working together, we can accomplish that goal.
        While I look forward to answering your specific questions
    concerning my actions and my views, I think it is important to
    stress at the outset that I am and will remain deeply committed
    to ensuring the United States Government complies with all of
    its legal obligations as it fights the war on terror, whether
    those obligations arise from domestic or international law.
    These obligations include, of course, honoring the Geneva
    Conventions whenever they apply. Honoring our Geneva
    obligations provide critical protection for our fighting men
    and women, and advances norms for the community of nations to
    follow in times of conflict. Contrary to reports, I consider
    the Geneva Conventions neither obsolete nor quaint.
        After the attacks of 9/11, our Government had fundamental
    decisions to make concerning how to apply treaties and U.S. law
    to an enemy that does not wear a uniform, owes no allegiance to
    any country, is not a party to any treaties, and most
    importantly, does not fight according to the laws of war.
        As we have debated these questions, the President has made
    clear that he is prepared to protect and defend the United
    States and its citizens and will do so vigorously, but always
    in a manner consistent with our Nation's values and applicable
    law, including our treaty obligations.
        Having said that, like all of you, I have been deeply
    troubled and offended by reports of abuse. The photos from Abu
    Ghraib sickened and outraged me, and left a stain on our
    Nation's reputation. And the President has made clear that he
    condemns this conduct, and that these activities are
    inconsistent with his policies. He has also made clear that
    America stands against and will not tolerate torture under any
    circumstances.
        I share his resolve that torture and abuse will not be
    tolerated by this administration, and commit to you today, that
    if confirmed, I will ensure that the Department of Justice
    aggressively pursues those responsible for such abhorrent
    actions.
        Chairman Specter, if I may add a personal note, I want to
    congratulate you for your chairmanship of this important
    Committee, and I look forward, if confirmed, to the many
    occasions that we will discuss the important issues facing our
    country in the months and years ahead.
        Senator Hatch, I want to thank you for your dedicated
    service as Chairman of this Committee, for the good working
    relationship we have enjoyed, for all the many kindnesses you
    have shown me personally.
        I appreciate the good working relationship I have enjoyed
    with Senator Leahy during my tenure as Counsel to the
    President. I know him to be a person of goodwill and
    dedication, and I have great confidence that if I am fortunate
    enough to be confirmed, we will build upon that as we reach
    across the aisle to work together to serve the American people.
        Mr. Chairman, it is a distinct honor to appear before the
    Committee today. I appreciate the time and attention that
    Members of the Committee and their staffs have dedicated to
    this hearing and to consideration of my nomination, and I look
    forward to answering your questions, not just at this hearing,
    but if I am fortunate enough to be confirmed, in the months and
    years ahead as we work together in the noble and high calling
    of the pursuit of justice.
        Thank you, Mr. Chairman.
        [The prepared statement of Judge Gonzales appears as a
    submission for the record.]
        [The biographical information of Judge Gonzales follows.]

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        Chairman Specter. Thank you very much, Judge Gonzales.
        We will now begin, as stated earlier, 10-minute rounds, and
    I will observe my time limit meticulously, and will ask others
    to do the same. Senators necessarily have other obligations,
    and will have to move in and out of the hearing room, so that
    if it is possible to gage the timing, knowing how long it will
    be before their turn is up, it is very useful in arranging
    schedules, and there will be ample time, as I have said
    earlier, on multiple rounds.
        I am advised that there may be some photos used, and
    obviously Senators have full latitude on the range of
    questioning, but I would ask my colleagues to be sensitive to
    photos. There are children present in the room today, and we
    are being televised, so that while we want to have all of the
    facts and give full latitude to Senators on their rights to
    question, we may want to be in Executive Session or we may want
    to give children a chance to leave, or take whatever other
    precautionary measures that seem appropriate by all concerned
    on a consensus of what the Committee thinks ought to be done on
    that sensitive subject.
        And now, if lights will show to limit my 10 minutes, I will
    begin. At the outset of your testimony, Judge Gonzales, you
    have already covered the matter, but I think it is important to
    have an unequivocal statement and really a repeat of an
    unequivocal statement of the position of the administration and
    your personal views. Do you approve of torture?
        Judge Gonzales. Absolutely not, Senator.
        Chairman Specter. Do you condemn the interrogators--and you
    already answered this in part--at Abu Ghraib and Guantanamo,
    but again, for the record, do you condemn the interrogators'
    techniques at Abu Ghraib shown on the widely publicized
    photographs?
        Judge Gonzales. Let me say, Senator, that as a human being
    I am sickened and outraged by those photos. But as someone who
    may be head of the Department, I obviously don't want to
    provide any kind of legal opinion as to whether or not that
    conduct might be criminal, and obviously, if anyone is involved
    in any kind of conduct that is subject to prosecution, I would
    not want to do anything today to prejudge that prosecution and
    jeopardize that prosecution. But obviously, if that conduct
    falls within the jurisdiction of the Department of Justice, I
    will pursue it aggressively, and you have my word on that.
        Chairman Specter. Having some experience in the prosecution
    of criminal cases, I do not believe a condemnation of that
    conduct would impact on what happens at a later date, but thank
    you for your statement of rejection of that and condemnation of
    those practices. Do you similarly condemn any similar
    interrogation techniques at Guantanamo?
        Judge Gonzales. I am not sure of which specific techniques
    you're referring to, Senator, but obviously, there is a range
    of conduct that would be in clear violation of our legal
    obligations, and those I would absolutely condemn, yes, sir.
        Chairman Specter. There will obviously be a good bit of
    questioning on this subject, and I intend to turn to other
    matters and we will come back to the subject in later rounds to
    the extent that as Chairman I think further amplification is
    necessary, but I do want to move on to what I consider to be
    the number one issue facing the country, and that is the issue
    of the fight on terrorism and the balancing of civil rights
    with some focus on the PATRIOT Act, which we enacted shortly
    after 9/11. Starting with the PATRIOT Act, that I had already
    commented that we had this wall which precluded law enforcement
    from using evidence of crime which had been obtained through
    search and seizure warrants under the Foreign Intelligence
    Surveillance Act, and now that evidence may be used in a
    criminal prosecution. To what extent has that provision and the
    other provisions of the PATRIOT Act been of real importance in
    our fight against terrorism?
        Judge Gonzales. Well, of course, Mr. Chairman, I have not
    been at the Department, so I may not know all of the details of
    specific successes that the United States and the Department of
    Justice have enjoyed as a result of the tools given to us by
    the PATRIOT Act, but I am told that they have been very
    significant, and that for our career prosecutors, for the U.S.
    Attorneys out in the field, they have been very, very
    beneficial in allowing our law enforcement personnel to defend
    this country.
        I believe that in part because of the PATRIOT Act, there
    has not been a domestic attack on United States soil since 9/
    11.
        Chairman Specter. The PATRIOT Act has stimulated the
    National Counterterrorism Center, and that is now part of the
    new legislation formalized on the National Intelligence
    Director, and I will not go into any detail at this time, but I
    would urge you to be very diligent there. And this Committee is
    going to exercise oversight on that issue because it is my own
    view that had we had proper coordination of all the information
    prior to 9/11, 9/11 might well have been prevented, and the FBI
    has the guiding hand on the National Counterterrorism Center,
    and that comes under your purview.
        Let me turn now to the issue of the PATRIOT Act aspects
    which have been the subject of concern, and legislation is
    pending where we have people on both ends of the political
    spectrum, those on the right and those on the left on concern.
    The Act requires the Court to issue an ex parte order, that is,
    on the application of law enforcement for an administrative
    subpoena on a showing which is less than the traditional
    judicial determination of probable cause, and there has been
    concern expressed about access to many records, private
    records, illustrated by the concern over library records. Is
    there any reason in your judgment, Judge Gonzales, why the
    production of those records might not be subjected to the
    traditional standard of probable cause before the issuance of
    the warrant?
        Judge Gonzales. Let me just say, Senator, I am also aware
    of a great deal of debate about the provisions of the PATRIOT
    Act, and there are concerns about possible infringement of
    civil liberties. I welcome that debate. I think that we should
    always question the exercise of the power of our Government.
    The Founders of this country, that is what motivated, in
    connection with the framing of the Constitution, concerns about
    the exercise of Government power, and so I am one of those
    people that is likewise concerned.
        With respect to access to library records, to take a
    specific point, obviously you're referring to Section 215 of
    the PATRIOT Act. 215 relates to obtaining business records. It
    never mentions library records. 215 allows the Government to
    obtain certain types of business records, hotel records, credit
    card records, rental records, transportation records, in
    connection with--it's got to be related to a foreign
    intelligence operation. And the Government cannot do that
    without first going to a judge. The Government goes to the FISA
    Court and obtains a warrant to do that.
        Chairman Specter. But there is no requirement for a showing
    of probable cause before that judicial order is entered, Judge
    Gonzales. And the question is, why can we not have that
    traditional probable cause requirement on the obtaining of
    those records?
        Judge Gonzales. Certainly, Senator, you could do that, but
    right now today, a prosecutor could obtain a grand jury
    subpoena if it was relevant to a criminal investigation without
    meeting that standard, and obtain access to those very same
    library records and--
        Chairman Specter. But when the prosecutor obtains those
    records on a grand jury subpoena--and I have some familiarity
    with that--it is subject to judicial supervision. There can be
    a motion to quash. I do not want to take up all of our time
    there, but we also have the sneak-and-peek issue, and you will
    be here to take a look at that when we have hearings on renewal
    of the PATRIOT Act, but that is a matter which I think has to
    be weighed very carefully in the balance.
        Let me turn now to the standards of detention on aliens.
    Immediately after 9/11, as the Inspector General's report
    showed, some 702 aliens were detained without any showing of
    cause, concerned that they might be terrorists, but no real
    evidence or indications that they were terrorists. We have seen
    the Department of Justice exercise authority after an
    immigration judge has ordered the release of an alien, and that
    has been upheld by the Board of Review for the Department of
    Justice to overrule those two levels of judicial review and
    maintain detention. The issue of standards is really of
    critical importance, and there has never been a delineation by
    the Department of Justice of those standards. At one point
    Attorney General Ashcroft testified that it was not sufficient
    simply to say ``national security,'' but there had to be some
    relationship to the individual on the likelihood of flight or
    on the problem of a criminal record or something relating to
    the individual.
        My yellow light is on now, so I will stop the questioning
    before my red light appears, and give you an opportunity to
    respond as to your views as to what kind of a standard is
    appropriate for the detention of aliens.
        Judge Gonzales. Let me just say, by answering the question,
    Senator, that I do not support or favor the mistreatment, not
    only of aliens, but anyone by the Department of Justice. My
    understanding--you have to recall that these actions taken by
    the Department were shortly after 9/11. There was a great deal
    of concerns that there may be a second wave of attacks. People
    didn't know. And so there were undocumented aliens that were
    rounded up. I am told is that everyone who was rounded up was
    either out of status with respect to their immigration status,
    or had criminal charges pending against them. There was an
    independent basis to hold these people.
        I am aware of the report by the Inspector General. I
    haven't reviewed it in great detail. I understand that the
    Department has made most of the changes recommended by the IG.
    Obviously, it's something that I am concerned about. As to the
    specific two cases you mentioned, I'm not aware of the details
    of those cases, and as to the standard, quite frankly, Senator,
    that would be something I would have to look at and be happy to
    get back to you in the event that I am confirmed.
        Chairman Specter. Thank you.
        Senator Leahy.
        Senator Leahy. Thank you, Mr. Chairman.
        First off, I wanted to thank both Senator Salazar and
    Senator Cornyn for their introduction. Senator Salazar, a
    Democrat, is showing bipartisanship here similar to Senator
    Carnahan coming to introduce Attorney General Ashcroft, even
    though he is the man who had run against her husband.
        I would also note that while al Qaeda does not have POW
    protection, Geneva still applies, as Secretary Colin Powell has
    stated very emphatically. I do not want to leave the impression
    that somehow Geneva does not apply just because it involves al
    Qaeda.
        I would like to ask you a few questions about the torture
    memo that is dated back in August 1st, 2002, signed by
    Assistant Attorney General Jay Bybee, and he is now a Federal
    Appellate Court Judge. The memo is addressed to you, written at
    your request. It is a fairly lengthy memo, and addresses a
    memorandum from Alberto Gonzales, Counsel to the President. It
    concludes--this is actually the memo here--for an act to
    violate the torture statute it must be equivalent in intensity
    to the pain accompanying serious physical injury such as organ
    failure, impairment of bodily function, or even death. In
    August 2002, did you agree with that conclusion?
        Judge Gonzales. Senator, in connection with that opinion, I
    did my job as the Counsel to the President to ask the question.
        Senator Leahy. I just want to know, did you agree--I mean
    we could spend an hour with that answer, but I am trying to
    keep it very simple. Did you agree with that interpretation of
    the torture statute back in August 2002?
        Judge Gonzales. If I may, sir, let me try to--I'm going to
    give you a very quick answer, but I'd like to put a little bit
    of context. Obviously, we were interpreting a statute that had
    never been reviewed in the courts, a statute drafted by
    Congress. We were trying the interpretation of a standard by
    Congress. There was discussion between the White House and the
    Department of Justice as well as other agencies about what does
    this statute mean? It was very, very difficult. I don't recall
    today whether or not I was in agreement with all of the
    analysis, but I don't have a disagreement with the conclusions
    then reached by the Department.
        Ultimately, it is the responsibility of the Department to
    tell us what the law means, Senator.
        Senator Leahy. Do you agree today that for an act to
    violate the torture statute it must be equivalent in intensity
    to the pain accompanying serious physical injury such as organ
    failure, impairment of bodily function or even death?
        Judge Gonzales. I do not, Senator. That does not represent
    the position of the executive branch. As you know--
        Senator Leahy. But--
        Chairman Specter. Let him finish his answer.
        Senator Leahy. But it was the position in 2002--
        Chairman Specter. Wait a minute, Senator Leahy. Let him
    finish his answer.
        Judge Gonzales. Senator, what you're asking the counsel to
    do is to interject himself and direct the Department of
    Justice, who is supposed to be free of any kind of political
    influence, in reaching a legal interpretation of a law passed
    by Congress. I certainly give my views. There was of course
    conversation and a give and take discussion about what does the
    law mean, but ultimately, ultimately by statute the Department
    of Justice is charged by Congress to provide legal advice on
    behalf of the President. We asked the question. That memo
    represented the position of the executive branch at the time it
    was issued.
        Senator Leahy. Well, let me then ask you, if you are going
    to be confirmed as Attorney General--and I will accept what you
    said--the Bybee memo concludes the President has authority as
    Commander in Chief to override domestic and international laws
    prohibiting torture, and can immunize from prosecution anyone,
    anyone, who commits torture under his act. Whether legal or not
    he can immunize them. Now, as Attorney General, would you
    believe the President has authority to exercise a Commander in
    Chief override and immunize acts of torture?
        Judge Gonzales. First of all, Senator, the President has
    said we are not going to engage in torture under any
    circumstances. And so you're asking me to answer a hypothetical
    that is never going to occur. This President has said we're not
    going to engage in torture under any circumstances, and
    therefore, that portion of the opinion was unnecessary and was
    the reason that we asked that that portion be withdrawn.
        Senator Leahy. I am trying to think what type of opinions
    you might give as Attorney General. Do you agree with that
    conclusion?
        Judge Gonzales. Sir, I--
        Senator Leahy. You are a lawyer, and you have held a
    position as a justice of the Texas Supreme Court. You have been
    the President's Counsel. You have studied this issue deeply. Do
    you agree with that conclusion?
        Judge Gonzales. Senator, I do believe there may come an
    occasion when the Congress might pass a statute that the
    President may view as unconstitutional, and that is a position
    and a view not just of this President but many, many Presidents
    from both sides of the aisle. Obviously, a decision as to
    whether or not to ignore a statute passed by Congress is a
    very, very serious one, and it would be one that I would spend
    a great deal of time and attention before arriving at a
    conclusion that in fact a President had the authority under the
    Constitution to--
        Senator Leahy. Mr. Gonzales, I would almost think that you
    had served in the Senate because you have learned how to
    filibuster so well. I asked a specific question. Does the
    President have the authority, in your judgment, to exercise a
    Commander in Chief override and immunize acts of torture?
        Judge Gonzales. With all due respect, Senator, the
    President has said we're not going to engage in torture. That
    is a hypothetical question that would involve an analysis of a
    great number of factors, and the President simply--
        Senator Leahy. How about putting it this way: do you think
    that other world leaders would have authority to authorize the
    torture of U.S. citizens if they deemed it necessary for their
    national security?
        Judge Gonzales. Senator, I don't know what laws other world
    leaders would be bound by. I think it would--I'm not in a
    position to answer that question.
        Senator Leahy. The only reason I ask this is this memo was
    DOJ policy for a couple years. It sat there from sometime in
    2002, until just a couple weeks before 2005, late on a Thursday
    afternoon, it seems to be somewhat overridden. Of course, that
    may just be coincidental since your confirmation hearing was
    coming up. Do you think if the Bybee memo had not been leaked
    to the press, it would still be--because it had never been
    shown to Congress even though we had asked for it--do you think
    it would still be the overriding legal opinion?
        Judge Gonzales. Sir, that I do not know. I do know that
    when it became--it was leaked, we had concerns about the fact
    that people assumed that the President was somehow exercising
    that authority to engage in torture, and we wanted to clarify
    the record that the President had not authorized or condoned
    torture, nor had directed any actions or excused any actions
    under the Commander in Chief override that might otherwise
    constitute torture, and that was the reason that the decision
    was made to delete that portion of the opinion.
        Senator Leahy. Do you think there is any connection
    whatsoever between the policies which actually you had to
    formulate regarding treatment and interrogation of prisoners--
    policies that were sent out to the Department of Defense and
    elsewhere--and the widespread abuses that have occurred? Do you
    acknowledge any accountability for such things, any connection?
        Judge Gonzales. Senator, as I said in my remarks, I
    categorically condemn the conduct that we see reflected in
    these pictures at Abu Ghraib. I would refer you to the eight
    completed investigations of what happened at Abu Ghraib and in
    Guantanamo, and there are still three ongoing. I'm talking
    about the Taguba report, the Fay-Jones-Kern Report, the
    Schlesinger report, the Navy IG, the Army IG, Jacob, Ryder,
    Miller, all of these reports. And if you listened to the press
    briefings given in connection with the roll-out of these
    reports, they do conclude that with respect to the conduct not
    reflected in the photos, not the conduct that we find the most
    offensive, but conduct related to pure interrogations, that
    there was some confusion--
        Senator Leahy. The same reports you talk about say the
    Department of Defense relied on the memo. It is quoted
    extensively in the DOD Working Group report on interrogations.
    That report has never been repudiated. So apparently they did
    rely on the memo. Then we find out about the abuses through the
    press rather than the administration. Is there any
    accountability here anywhere?
        You know, as I mentioned earlier, my son was in the
    military. He was held to very, very strict standards. He is
    trained for combat, held to very, very strict standards. The
    vast majority of the men and women in the military are held to
    those same strict standards. I am just trying to find out where
    the accountability is for this terrible blot that you and I
    both agree is a terrible blot on the United States.
        Judge Gonzales. I believe that is a very good question,
    Senator, and that is why we have these eight completed
    investigations and these three pending investigations, while
    we've had four hearings involving the Secretary of Defense and
    you've had 18 hearings involving the Deputy Secretary, Under
    Secretary of Defense, you've had over 40 briefings with the
    Congress, because we care very much about finding out what
    happened and holding people accountable. Unlike other countries
    that simply talk about Geneva, if there is an allegation that
    we've done something wrong, we investigate it. We're very
    serious about our commitments, our legal obligations in Iraq,
    and if people have done things that they shouldn't have done in
    violation of our legal obligations, they are going to be held
    accountable.
        Chairman Specter. Senator Hatch.

    STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
                                OF UTAH

        Senator Hatch. Thank you, Mr. Chairman.
        Welcome to the Committee, Judge Gonzales, and your family.
    We welcome your family, your wonderful wife, your tremendous
    mother, brother, mother-in-law. We are really happy to have all
    of you here, and I hope that this will be not too unpleasant a
    hearing for you.
        You have acted, I think, with the highest honor as the
    White House Counsel. I know that because I have worked very,
    very closely with you all these years, and I have tremendous
    respect for you, not only as a human being, and for your ethics
    and high standards, but also as an attorney and as someone who
    I believe has tried to give the President the best advice you
    and your staff have been able to give.
        This is one of the highest positions in our country's
    cabinet, in the President's Cabinet. It does require a person
    of deep commitment to the principle of equal justice under the
    law, and I know that you have that commitment and you will make
    it. I have worked so closely with you, I know firsthand the
    competency of Judge Gonzales, and that he does believe in equal
    justice for all. I also know that you have the ability to make
    a very outstanding Attorney General of the United States. Your
    whole life has been a success story. You have already had a
    distinguished career as an attorney, judge and civil servant.
    You made much of the opportunities that you have had by your
    education at Rice University and of course the Harvard Law
    School.
        I think your background and experience enables you to bring
    an important set of perspectives to the administration of
    justice and the Department of Justice. So I stand ready and
    willing to help you, Judge Gonzales, in carrying out your new
    responsibilities, and I think the American people would expect
    nothing less than equal justice for all people and fair justice
    at that.
        I see eye-to-eye with you on many issues. We have had our
    differences, but in every case where we have had differences,
    you have always spoken in a forthright and decent manner, and
    you have been willing to discuss the issues with me and I think
    others on this Committee. You are going to be asked some tough
    questions today, and that is as it should be I suspect.
        I think today's hearing is certainly going to dwell to a
    large degree on ongoing public policy on that debate on how a
    democratic society with a long tradition of protecting civil
    liberties should conduct itself when it finds itself threatened
    and attacked by terrorist groups and individuals who will stop
    at literally nothing to destroy our way of life, and who do not
    represent a particular country, do not wear uniforms, do not
    abide by international principles, and who really are rogue in
    every sense of that term. It is my hope that in addition to
    providing an adequate record about Judge Gonzales'
    qualifications to serve as Attorney General, one of the
    outcomes of today's hearing will be to educate the Committee
    and the public about the facts of what actions were taken and
    were not taken with respect to the treatment and interrogations
    of various classes of individuals who have been detained and
    taken into custody by the United States as part of our response
    to the horrific 9/11 terrorist attacks on America. You have a
    big job ahead, and I personally know that you are capable and
    you are up to doing that job very well.
        Let me just say, before I ask some questions of Judge
    Gonzales, I would just like to take this opportunity to once
    again recognize the hard work, the dedication and many
    accomplishments of our current Attorney General, John Ashcroft.
    He has been a terrific Attorney General. He has done a terrific
    job down there, and I think the way crime has come down, and a
    lot of other things have happened for the betterment of the
    country, frankly, because of his leadership. Frankly, it has
    not been lost on me that many of those who are posing here
    today are people who have in many respect unfairly vilified the
    current Attorney General over the last four years.
        [The prepared statement of Senator Hatch appears as a
    submission for the record.]
        Let me just ask some questions by reviewing some of the key
    points with respect to the treatment of detainees. Like most
    Americans, I was appalled by the abuses at Abu Ghraib. Some
    have stated that the President's February 7th, 2002 memorandum
    is somehow responsible for the abuses at Abu Ghraib, at that
    prison facility in Iraq. But is it not true that the February
    7th, 2002 memorandum actually makes clear that the Geneva
    Conventions do apply in both Afghanistan and Iraq?
        Judge Gonzales. Senator, I don't recall that the memo
    actually talked about Iraq. The President--there was a decision
    by the President that Geneva would apply with respect to our
    conflict with the Taliban. However, and I believe there's
    little disagreement about this as a legal matter, because of
    the way the Taliban have fought against the United States, that
    they forfeited their right to enjoy prisoner of war legal
    protections. There was never any question about whether Geneva
    would apply in Iraq. There was no decision for the President to
    make. Iraq was a signatory to the Geneva Convention, so there
    was no decision for the President to make. There was no
    decision by the Department of Justice as to what kind of
    techniques should be approved with respect to interrogations in
    Iraq, because the understanding throughout the administration
    was the Geneva Conventions apply in Iraq.
        Senator Hatch. Is it not also true that the President's
    February 7th, 2002 memorandum, which is entitled ``Humane
    Treatment of al Qaeda and Taliban Detainees,'' also requires
    American forces to treat all detainees humanely, regardless of
    whether the Geneva Conventions apply; is that not true?
        Judge Gonzales. That is correct. The President gave a
    directive to the military that despite the fact that Geneva may
    not apply with respect to the conflict and the war on
    terrorism, it is that everyone should be treated humanely.
        Senator Hatch. That was more than two years ago.
        Judge Gonzales. That is correct.
        Senator Hatch. Am I correct in my understanding that at no
    time did the President authorize the use of torture against
    detainees regardless of any of the legal memoranda produced by
    various entities of the U.S. Government, including the August
    2002 Department of Justice memo, the so-called Bybee memo?
        Judge Gonzales. Senator, the position of the President on
    torture is very, very clear, and there is a clear record of
    this. He does not believe in torture, condone torture, has
    never ordered torture, and anyone engaged in conduct that
    constitutes torture is going to be held accountable.
        Senator Hatch. And that has never been a problem with
    regard to the President or you as his adviser?
        Judge Gonzales. Absolutely not, Senator.
        Senator Hatch. As Counsel to the President of the United
    States, is it your responsibility to approve opinions issued by
    the Department of Justice?
        Judge Gonzales. No, sir, I don't believe it is my
    responsibility, because it really would politicize the work of
    the career professionals at the Department of Justice. I know
    that some have been critical of my actions in not trying to
    force the opinion a certain way, people that are concerned
    about certain sections of that opinion, but we have to be very,
    very careful here. When you use the White House as a shield, it
    can also be used as a sword. It can be used as a sword to force
    an opinion, to reach an outcome that would be politically
    advantageous to the White House, and we don't want that to
    happen. And so I take my responsibilities very seriously in
    respecting the role of the Department of Justice given to the
    Department by Congress to decide for the executive branch what
    the law requires.
        Senator Hatch. In fact, the Bybee memo was actually
    withdrawn by the Department of Justice in June of 2004; am I
    right on that?
        Judge Gonzales. The opinion was withdrawn, yes, sir.
        Senator Hatch. The Bybee memo was issued, I believe, six
    months after the President issued his February 7th, 2002 memo
    requiring all detainees to be treated humanely; is that
    correct?
        Judge Gonzales. That is correct. It has always been the
    case that everyone should be--that the military would treat
    detainees humanely, consistent with the President's February
    order.
        Senator Hatch. So that memo did not overrule what the
    President's 2002 memo actually said?
        Judge Gonzales. Of course not.
        Senator Hatch. I think my time is up as well, and I just
    want to compliment you. Knowing you personally, and having
    served with you, and having worked intimately with you over the
    last four years, I want to compliment you for the professional
    manner in which you have conducted yourself, and your staff as
    well. You have done a terrific job and I just want to let
    everybody know how I feel about the job you have done.
        Thank you, Mr. Chairman.
        Chairman Specter. Thank you.
        Senator Kennedy.

     STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
                         STATE OF MASSACHUSETTS

        Senator Kennedy. Thank you very much, Mr. Chairman.
        Welcome, Mr. Gonzales, and welcome to your family. I will
    include, if I could, Mr. Chairman, my opening statement and
    comment that recognizes the extraordinary achievements and
    accomplishments of the nominee, which are incredibly
    impressive.
        [The prepared statement of Senator Kennedy appears as a
    submission for the record.]
        Chairman Specter. Without objection, they will be made a
    part of the record.
        Senator Kennedy. In that I said, as I mentioned to the
    nominee, that he understands full well our responsibilities in
    the points of inquiry that we are going to make.
        I sit on the Judiciary Committee and also on the Armed
    Services Committee, and I was a member of the Armed Services
    Committee in the time that all America saw the Abu Ghraib
    photos. And just subsequent to that, we, in the Armed Services
    Committee, had General Taguba, who did the Taguba report that
    was leaked, and we read the report before a copy was actually
    provided to the Congress. And immediately the administration
    claimed during the hearings that we had with General Taguba,
    that the Abu Ghraib was just a few bad apples, there was no
    higher level of support or encouragement for the mistreatment
    of detainees.
        Then we learned that the Defense Department's Working Group
    report of April 2003 had provided the broad legal support for
    the harsh interrogation tactics, and it dramatically narrowed
    the definition of torture, and it recognized the novel defenses
    for those who committed the torture. Then we learned that the
    legal basis for the Working Group report had been provided by
    the Justice Department in the Bybee memo.
        Now, that is what has come up from the administration. That
    is what has come up, including the President of the United
    States. This Committee, the Armed Services Committee has asked
    for these memos. We have depended upon what has been leaked,
    what has been put on the Internet, and what has been obtained
    in the Freedom of Information and by various attorneys. So
    there is a certain kind of sense by many of us here that the
    administration--and you are the point person on the
    administration--has not been forthcoming on the whole issues of
    torture, which not just committed at Abu Ghraib, but is
    happening today.
        The Bybee torture memorandum, written at your request--and
    I would be interested in your reactions to this--made abuse of
    interrogation easier. It sharply narrowed the definition of
    torture and recognized it as new defense for officials who
    commit torture. For two years, for two years, from August 2002
    to June 2004 you never repudiated it. That is the record, you
    never repudiated it. It was written by the CIA's bidding, and
    you can clarify that if that is false. We can assume it was
    probably provided to the CIA as written. Its principles were
    adopted in the Defense Department's Working Group report. I
    have it right here, and I will read the identical provisions in
    the Bybee report that were put in the Defense Department
    Working Group report that has been the document which has been
    made available to the Defense Department about how they ought
    to view torture. This person assumes that the Bybee report has
    already gone to the CIA in his complacency.
        Now, according to the Defense Department's own
    investigation--you referred to Senator Leahy earlier--as to the
    Defense Department, the Working Group report was used to
    justify--this is DOD--was used to justify the many abuses that
    occurred in Afghanistan and Guantanamo. And according to Fay
    and Schlesinger, who testified in the Armed Services Committee,
    the abuse of policies and practice in Afghanistan and
    Guantanamo migrated to Iraq. You have never repudiated the
    Bybee assertion that presidential power overrides all the
    prohibitions against torture enacted and ratified. The
    President's directive to act humanely was hollow. It was vague.
    It allowed for military necessity exception and did not even
    apply to the CIA, did not even apply to the CIA. Abuses are
    still being reported. And you were warned by Secretary Powell
    and other top military leaders that ignoring our longstanding
    traditions and rules would lead to abuse and undermine military
    culture, and that is what has happened.
        I am going to get to how the Bybee amendment was first
    written. As I understand, there is the report in the Washington
    Post that the CIA asked you for a legal opinion about how much
    pain and suffering an intelligence officer could inflict on a
    detainee without violating the '94 anti-torture statute, which
    I might point out was strongly supported by Ronald Reagan and
    Bush I, and passed the Foreign Relations Committee unanimously.
    Republicans have been as concerned about torture as Democrats,
    and we will get into the various statutes that have been passed
    in recent times which would indicate that.
        Now, the Post article states you chaired several meetings
    at which various interrogation techniques were discussed. These
    techniques included the threat of live burial and water-
    boarding, whereby the detainee is strapped to a board, forcibly
    pushed under water, wrapped in a wet towel and made to believe
    he might drown. The article states that you raised no
    objections, and without consulting military and State
    Department experts. They were not consulted. They were not
    invited to important meetings. They might have been important
    to some, but we know what Secretary Taft has said about his
    exclusion from these. Experts in laws of torture and war prove
    the resulting memo gave CIA interrogators the legal blessings
    they sought.
        Now, was it the CIA that asked you?
        Judge Gonzales. Sir, I don't have specific recollection. I
    read the same article. I don't know whether or not it was the
    CIA. What I can say is that after this war began, against this
    new kind of threat, this new kind of enemy, we realized that
    there was a premium on receiving information. In many ways this
    war on terror is a war about information. If we have
    information we can defeat the enemy. We had captured some
    really bad people who we were concerned had information that
    might prevent the loss of American lives in the future. It was
    important to receive that information, and people at the
    agencies wanted to be sure that they would not do anything that
    would violate our legal obligations, and so they did the right
    thing. They asked questions. What is lawful conduct? Because we
    don't want to do anything that violates the law.
        Senator Kennedy. You asked, at their request--if this is
    incorrect, then correct me. I am not attempting, or if there
    are provisions in that comment here that are inaccurate, I want
    to be corrected. I want to be fair on this. But it is my
    understanding, certainly it was in the report, that the CIA
    came to you, asked for the clarification. You went to the OLC.
    Now, I want to ask you, did you ever talk to any members of the
    OLC while they were drafting the memorandum? Did you ever
    suggest to them that they ought to lean forward on this issue
    about supporting the extreme uses of torture, as reported in
    the newspaper?
        Judge Gonzales. Sir, I don't ever recall using the term
    ``leaning forward'' in terms of stretching what the law is.
        Senator Kennedy. You talked to the OLC during the drafting
    of it?
        Judge Gonzales. There is always discussions--not always
    discussions, but there often is discussions between the
    Department of Justice and OLC and the Counsel's office
    regarding legal issues. I think that's perfectly appropriate.
    This is an issue that the White House cared very much about to
    ensure that the agencies were not engaged in conduct--
        Senator Kennedy. What were you urging them? What were you
    urging? They are, as I understand, charged to interpret the
    law. We have the series of six or seven different laws and
    conventions on torture and on the rest of it. They are charged
    to develop and say what the statute is. Now, what did you
    believe your role was in talking with the OLC and
    recommending--
        Judge Gonzales. To understand their views about the
    interpretation--
        Senator Kennedy. Weren't you going to get the document?
    Weren't you going to get their document? Why did you have to
    talk to them during the time of the drafting? It suggests in
    here that you were urging them to go as far as they possibly
    could. That is what the newspaper reported. Your testimony is
    that you did talk to them but you cannot remember what you told
    them.
        Judge Gonzales. Sir, I'm sure there was discussion about
    the analysis about a very tough statute, a new statute, as I've
    said repeatedly, that had never been interpreted by our courts,
    and we wanted to make sure that we got it right. So we were
    engaged in interpreting a very tough statute, and I think it is
    perfectly reasonable and customary for lawyers at the
    Department of Justice to talk with lawyers at the White House.
    Again, it was not my role to direct that we should use certain
    kinds of methods of receiving information from terrorists. That
    was a decision made by the operational agencies, and they said
    we need to try to get this information. What is lawful? And we
    look to the Department of Justice to tell us what would, in
    fact, be within the law.
        Senator Kennedy. Mr. Chairman, I see my time is going to be
    up. What I would like to do is include in the record the Bybee
    memorandum and the Defense Department working group report, the
    analysis where they use virtually word by word the Bybee
    memorandum in the key aspects of the working group report,
    which was the basic document which has been the guide to our
    military about how they should treat prisoners.
        Chairman Specter. Without objection, they will be made part
    of the record.
        Senator DeWine?

    STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
                                  OHIO

        Senator DeWine. Thank you, Mr. Chairman.
        Judge Gonzales, thank you very much for being with us
    today. Judge, every Attorney General is or most Attorneys
    General are known for something. Robert Kennedy was known for
    his crusade in regard to organized crime, and then, of course,
    later on we remember him for civil rights; Attorney General
    Barr for his efforts in regard to guns and gangs; Attorney
    General Reno, her efforts in regard to children, domestic
    violence; Attorney General Thornburgh, internationalization of
    crime in the area of drugs, organized crime. We could go on and
    on.
        Four years from now, what do you want to be remembered for?
        Judge Gonzales. Well, Senator--
        Senator DeWine. Excluding, if I could, excluding the war on
    terrorism.
        Judge Gonzales. Senator, I think the Department of Justice
    is somewhat unique from other agencies. I'm not sure that an
    Attorney General can afford to focus in providing or dispensing
    justice in one area to the exclusion of the other. And so I
    would hope that certainly at the end of 4 years it would be
    said that Al Gonzales did the very best he could, and hopefully
    was successful in ensuring that there was justice provided to
    Americans all across the spectrum on a wide variety of issues.
        It also is my sincere hope that I would be remembered, if I
    am confirmed today, as someone who renewed the vitality, the
    importance of the work that goes on at the Department of
    Justice. I know that there are some--there are wonderful people
    who come to work every day, and they come to work with one goal
    in mind, and that is the pursuit of justice for all Americans.
    And I feel a special obligation, maybe a special, an additional
    burden, coming from the White House, to reassure the career
    people at the Department and to reassure the American people
    that I'm not going to politicize the Department of Justice.
        But with respect to specific areas that I probably would
    like to have special emphasis on, of course, the first one is
    the war on terror. I also, because of my background, believe
    very much in the protection of civil rights, the protection of
    our voting rights, and the protection of our civil liberties. I
    continue to believe that we have far too many drugs in our
    society and that should be a focus.
        I am concerned about violent crime in our society, and I am
    concerned about the use of certain kinds of weapons in
    connection with those crimes. I think obscenity is something
    else that very much concerns me. I've got two young sons, and
    it really bothers me about how easy it is to have access to
    pornography.
        And so those are a few things that I would be focused on,
    but, again, I think the Department of Justice is unique and
    that my goal, as impossible as it may be or may seem, is to try
    to ensure that justice is administered across the spectrum.
        Senator DeWine. Judge, there are never enough resources for
    any prosecutor. I was a county prosecutor. We never had enough
    resources, or we did not think we did, anyway. You pick and
    choose. You make decisions.
        The Attorney General has that problem. U.S. Attorneys have
    that problem every day. Congress really has not helped; we have
    not helped. We have increased the number of Federal crimes. We
    keep doing it every Congress. We have mandatory minimums. Most
    U.S. Attorneys in recent years have said that the U.S.
    Attorneys must charge--most Attorneys General have said that
    the U.S. Attorneys must charge the highest possible offenses.
    So the local U.S. Attorneys are overworked. They have to,
    frankly, pick and choose their cases.
        Then we had September 11th, and we had a whole new
    emphasis--an emphasis on the war on terrorism. From previous
    conversations with your predecessor and with the FBI and with
    published documents from the Attorney General's office, it is
    clear that the Attorney General and the Justice Department is
    not doing some things, not prosecuting certain cases that you
    were prosecuting in the past.
        How are you going to set your priorities? And how are you
    going to deal with the fact that you are not prosecuting some
    things that you were prosecuting in the past? For example, you
    are not putting the emphasis on drug cases that you were able
    to do in the past. And this is not a criticism. I am not saying
    if I was Attorney General I would be doing it any differently.
    But to be Attorney General is to choose. To be Attorney General
    is to make policy. To be Attorney General is to tell every U.S.
    Attorney in this country this is what is important and this is
    what is not so important.
        That is what I am trying to get from you today, and I need
    a little more specifics from you, if I could.
        Judge Gonzales. Senator, I wouldn't be so arrogant as to
    assume today that I have all the information that I would need
    to make that kind of--
        Senator DeWine. No, but, Judge, you have been in the White
    House in a very high position for 4 years. You have been
    involved in the justice system for 4 years, and prior to that
    at the State level you were intimately involved as well. So you
    have a great background for this, and I would like your
    comments, sir.
        Judge Gonzales. Well, an initial comment I would make is
    you talked about the Attorney General being in the role of sort
    of a policymaker. As a member of the President's Cabinet, I am
    a member of the President's team so that he will have certain
    priorities, and obviously his priorities will become my
    priorities in terms of policymaking--not in the area of law
    enforcement or in prosecutions, but in the area of making
    policy.
        I think that once again we will have to call upon our
    continued cooperation with State and locals in order to
    maximize those relationships to ensure that we have sufficient
    resources. And I understand that they have the same problem in
    terms of lack of adequate resources to prosecute all kinds of
    crimes. But I think cooperation not just with State and locals,
    I think there needs to be greater cooperation within the
    Department itself. There need to be more sharing of information
    in order to maximize efficiencies that are possibly there. But,
    Senator, I do not have specific ideas today about what kinds of
    priorities would exist for me. I spoke earlier about the types
    of issues that would have special attraction and appeal to me,
    and I suspect that those would be issues that will ultimately
    become priorities in a Gonzales Department of Justice, if
    confirmed.
        Senator DeWine. Well, Judge, I think one of the things that
    certainly we look for and certainly I look for from the next
    Attorney General is candor. And I think what would be very
    helpful is candor to the American people in explaining as the
    war on terrorism continues, to explain to the American people
    what the Justice Department is not doing and what you do not
    have the ability to do anymore so that we can make policy
    choices. The Congress and the administration and the American
    people can make policy choices and come to Congress and say we
    are not doing this anymore, this is an area we cannot do
    anymore because of the war on terrorism. And you do not have to
    even get into specifics today. I am just asking if you agree
    with that and if you will make a commitment to us today that
    when you come to this Committee and testify, will you be honest
    with us and tell us, Senators, we are not doing this because we
    are doing something else?
        Judge Gonzales. Absolutely, Senator. I will make that
    commitment. Let me tell you that it would be a priority of mine
    to not only inform but educate, not only this Committee but the
    American people about what the Department is doing and why we
    are doing it. There is a great deal of misinformation and
    fiction out there about what the Department is doing, and I
    think that one of my goals should be to educate and inform this
    Committee and the American people about what the Department is
    doing and why we are doing it and why what we are doing is, in
    fact, lawful.
        Senator DeWine. You talked about policy. I understand the
    President sets the policy, and that is absolutely true. But
    ultimately, you know, whether you call it policy or whatever
    you want to call it, the Attorney General and the President,
    you are making choices about what the emphasis is.
        One final question. I see the light is on. The area of
    technology is something that is very near and dear to my heart.
    You and I have talked privately about this. I wonder if you
    could just give us your commitment that the updating of the
    FBI's technology, which we all have heard so much about as
    being such a problem, will be one of your priorities and
    something that when you come in front of this Committee you
    will report to us and that you will give us an accurate
    description of how that updating of the FBI's computer systems
    and its entire technology is coming. It is something that I
    think every member of this panel is very, very concerned about
    and every Member of Congress is concerned about.
        Judge Gonzales. Absolutely, you have my commitment on that.
    Senator, I do know that it is the highest priority for Director
    Mueller. I said earlier that the war on terror really is a war
    about information. We have to have the most updated technology
    in order to gather up that information, to analyze that
    information. So you do have my commitment, Senator.
        Senator DeWine. I appreciate it, and we need to know when
    you don't have the resources to get it done. And, again, in
    regard to candor, you have to be candid with us and say we do
    not have enough money, we do not have the resources, when you
    do not in that area.
        Thank you, Mr. Chairman.
        Judge Gonzales. I won't be shy about that, Senator.
        Chairman Specter. Senator Biden?

    STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE
                           STATE OF DELAWARE

        Senator Biden. Thank you, Mr. Chairman.
        In 10 minutes, the core questions I want to ask will
    probably occur in the second round, Judge. Let me begin,
    though, by saying I congratulate and welcome the new Chairman.
    I think that if anyone was made for this job, it is the Senator
    from Pennsylvania, who I think is the finest constitutional
    lawyer in the country--maybe not the country but in the Senate.
    And I welcome his--
        [Laughter.]
        Senator Biden. Seriously, I think it befits his background
    to chair this very difficult Committee, and I wish him well,
    and he has my cooperation.
        Chairman Specter. Thank you very much, Senator Biden.
        Senator Biden. Judge, we sort of got off--I think we got
    off on sort of an unusual footing here, and I think that our
    colleague in the Committee sort of fired a gun that had not
    been shot yet in terming--I do not know anybody who has
    announced they are against your being the next Attorney
    General. Even those who have doubts say you are going to be
    confirmed. And so this is not about the President and his
    judgment. It is appropriate for us to understand the President
    is not a lawyer. He does not know from shinola about the
    treaty. By the way, nor do previous Presidents. Nor do previous
    Presidents. That is why they have legal advisers. That is why
    they hire brilliant graduates from Harvard Law School and
    former judges to advise them. I am being deadly earnest here.
    It is not a joke.
        So I do not judge the President on whether or not he
    supports or did not support torture, he signed off on a memo
    that may, in fact, in the minds of many, in fact, constitute
    torture, and he says he does not--that is irrelevant here.
        And, Judge, this is not about your intelligence. This
    hearing is not about your competence. It is not about your
    integrity. It is about your judgment, your candor, because you
    are going to be making some very difficult decisions as
    Attorney General, as every Attorney General has, decisions on
    matters we cannot even contemplate now.
        When I got here in 1972, the idea that anybody would be
    making judgments about cloning was bizarre. Within 4 years, you
    are going to make judgments on issues we have not even
    contemplated. So I want to know about your judgment. It is your
    judgment. And you are going to be the AG. You are not going to
    be legal counsel anymore. You are no longer the President's
    lawyer. You are the people's lawyer. Your oath is to the people
    of the United States. I know you know that.
        Judge Gonzales. Yes, sir.
        Senator Biden. And, therefore--and this is not a Supreme
    Court hearing, although some suggest it foreshadows that. As a
    Supreme Court nominee, you could sit there and say, ``I do not
    want to comment on that law or interpret it because I may have
    to judge it.'' As Attorney General, you are responsible to tell
    us now what your judgment is on what the law means. It is your
    obligation now for us to be able to assess your judgment, your
    legal judgment. You are in no way, as you implied to two other
    questioners, you are in no way jeopardizing a future case. That
    is malarkey, pure malarkey.
        So we are looking for candor, old buddy. We are looking for
    you, when we ask you a question, to give us an answer, which
    you have not done yet. I love you, but you are not very candid
    so far.
        [Laughter.]
        Senator Biden. And so please do not use this straw man,
    ``Well, as a future Attorney General, I may not be able to
    comment on what that law''--you are obliged to comment. It is
    your job to make a judgment before a case is taken. That is
    your judgment we are looking at.
        And so it seems to me that--and the other point I would
    like to raise, because I am only going to get to the questions
    in my second round really, is that my good friend from Texas,
    he held up three reports that did not say what he said they
    said. The three reports he held up that I am aware of, maybe
    four, asserting essentially that they confirmed the judgment
    that you made in your recommendations to the President of the
    United States of America relating to torture and other matters.
        Now, the reason why it is appropriate to ask you about Abu
    Ghraib is not to go back and rehash Abu Ghraib, but it is
    relevant as to whether or not what occurred at Abu Ghraib came
    as a consequence of the judgments made and embraced by the
    President that were then essentially sent out to the field. The
    Schlesinger report that was cited, it finds, ``Lieutenant
    General Sanchez signed a memo authorizing a dozen interrogation
    techniques beyond standard Army practice, including five beyond
    those applied at Guantanamo.'' He did so ``using reasoning from
    the President's memo of February 7, 2002.'' So I say to my
    friend from Texas, that is why this is relevant.
        The very reports cited say that--and I will not go through
    them all. The Red Cross report, the Red Cross did not sign off
    and say that, you know, the conduct or the recommendations or
    the memorandum were, in fact, appropriate. And so I will not go
    through it all now, but I will, if we need to, in further
    questioning.
        So, again, I want to sort of clarify here. This is about
    the judgment you have exercised and whether or not the next 4
    years the judgment you are going to give a President, which he
    understandably should rely upon--this is not a man who has your
    legal credentials. That is why he has you, to make a
    recommendation to him. And it is appropriate for him to accept
    that recommendation unless on its face an average citizen or an
    informed President who is not a lawyer would say, no, that
    cannot make any sense.
        So that is why we are worried about this. That is what this
    is about. And there is sort of--there is a split here in the
    Congress, there is a split in the country about what is
    appropriate in this time of dire concern about terror.
        You know, there is that play we have all seen, ``A Man for
    All Seasons,'' and there is an exchange in there where Sir
    Thomas More is engaging Roper, and Roper says--a young man came
    to seek a job, and he said, ``Arrest him. He means you harm.''
    And he said, ``He has broken no law.'' And Roper said, ``But he
    means you harm.'' And if my recollection is correct, you have
    Thomas More turning to Roper and saying, ``This country is
    planted thick with laws, coast to coast, man's laws not God's,
    and if you cut them down, Roper, as you would, what will you do
    when the devil turns 'round on you? Yes, I give the devil
    benefit of law for my own safety's sake.''
        That is the fundamental principle we debate among ourselves
    here, no matter how you cut it. And that is what the debate
    that took place on these torture memos between Taft and Yoo. I
    have a copy of the report, the memo sent by the Secretary of
    State to you all on February 7th, which I am not going to make
    public. But in that memo, he takes significant issue with the
    recommendations coming out of your shop, and Mr. Yoo's. And he
    ends by saying, ``Let's talk. We need to talk.'' And he goes
    into great detail, as other reports do. Powell
    contemporaneously on the 7th says basically--and I have the
    report right here. He says basically, look, you go forward with
    the line of reasoning you guys are using, and you are going to
    put my troops, my former troops, in jeopardy. This is about the
    safety and security of American forces. And he says in here,
    ``What you are doing is putting that in jeopardy.'' You have
    the former head of JAG, the top lawyer in the United States
    military, saying, Hey, man, this is way beyond the
    interrogation techniques you are signing off, way beyond what
    the manual, the military manual for guidance of how to deal
    with prisoners says.
        And so the point I am trying to make here--and I will come
    back with questions, if I have any time--well, I do not have
    any time. This is important stuff because there was a
    fundamental disagreement within the administration. And based
    on the record, it seems to me, although it may not be totally--
    it may not be dispositive, your judgment was not as good as the
    judgment of the Secretary of State. Your judgment was not as
    good or as sound as the chief lawyer from the JAG. Your
    judgment was not as sound. And the question I want to debate
    about is the judgment. How did you arrive at this, different
    than these serious people like you who thought what you were
    doing, recommending to the President in the various memos, was
    jeopardizing the security of American troops? And that is what
    I want to get back to, but I want to explain to the public and
    anybody listening. This is not about your integrity. This is
    not a witch hunt. This is about your judgment. That is all we
    are trying to do.
        And so when I get to ask my questions, I hope you will be
    candid about it because--not that it is relevant--I like you. I
    like you. You are the real deal.
        Chairman Specter. Senator Biden, your red light is on.
        Senator Biden. My red light is on.
        [Laughter.]
        Senator Biden. Thank you.
        Chairman Specter. Judge Gonzales, while Senator Biden is
    awaiting round two to formulate a question--
        [Laughter.]
        Chairman Specter. --I think you ought to be given an
    opportunity to respond to Senator Biden's observations and
    implicit, perhaps, two dozen questions. So the floor is yours.
        Judge Gonzales. Senator Biden, when you are referring to
    the Powell memo, I'm not sure which memo you're referring to.
    And I presume you're referring--
        Senator Biden. Let me give you a copy of it. For the
    record, Mr. Chairman, it is dated January 11, 2002, to John Yoo
    from William Taft, Legal Adviser, and there is overwhelming
    evidence that you saw it. There was discussion about it, and
    that is what I am referring to.
        Judge Gonzales. There was a great deal of debate within the
    administration, as that memo partly reflects, about what was
    legally required and perhaps a policy judgment to be made by
    the President. And the fact that there was disagreement about
    something so significant I think should not be surprising to
    anyone.
        Senator Biden. Of course not.
        Judge Gonzales. Of course not. And reasonable people can
    differ.
        In the end, it is the Department of Justice who is charged
    by statute to provide the definitive legal advice on behalf of
    the executive branch to the President of the United States.
    What I can tell you--
        Senator Biden. With due respect, that does not matter. I do
    not care about their judgment. I am looking at yours.
        Judge Gonzales. Sir, of course, I convey to the President
    my own views about what the law requires, often informed by
    what the Department of Justice says the law is, because, again,
    by statute you have conferred upon them that responsibility.
        I can tell you that with respect to the decision the
    President ultimately made, everyone involved, including the
    Secretary of State, including the Chairman of the Joint Chiefs,
    all of the principals who had equities in the decision about
    the application of Geneva had an opportunity to present their
    views and their concerns directly to the President of the
    United States, and he made a decision.
        Chairman Specter. Thank you, Judge Gonzales.
        Senator Kyl had to depart earlier this morning for his
    leadership role on a congressional delegation going to Israel,
    so he will not be with us today and I wanted to put that
    explanatory note in the record.
        Senator Sessions?

    STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
                               OF ALABAMA

        Senator Sessions. Thank you, Mr. Chairman. I would like to
    join in congratulating you on this office, and you are uniquely
    qualified and capable of handling this docile Committee which
    you inherited.
        Chairman Specter. Thank you.
        Senator Sessions. Judge Gonzales, I would like to get a few
    things straight here. I spent 15 years in the Department of
    Justice and several years as an Attorney General of the State
    of Alabama, and I have some appreciation for the different
    roles that are involved here.
        You are Counsel to the President of the United States. Is
    that correct?
        Judge Gonzales. That is correct, Senator.
        Senator Sessions. You did not supervise the Department of
    Justice, did you?
        Judge Gonzales. That is correct, Senator.
        Senator Sessions. You were not senatorially confirmed.
        Judge Gonzales. That is correct, Senator.
        Senator Sessions. And you just work for the President and
    give him advice whenever he asks for it and help provide him
    assistance whenever he asks you to do so.
        Judge Gonzales. And I will just add--that is correct,
    Senator. I will also add that with respect to significant legal
    decisions that the President has to pass judgment on, my advice
    is always influenced and it always is--well, it is informed by
    the advice given to me by the Department of Justice.
        Senator Sessions. Now, the Department of Justice under the
    Judiciary Act of 1789 is empowered by statute to issue opinions
    on various questions of law.
        Judge Gonzales. That is correct, Senator.
        Senator Sessions. And they have an Office of Legal Counsel.
        Judge Gonzales. Yes, sir.
        Senator Sessions. That really specializes in that on behalf
    of the Attorney General.
        Judge Gonzales. The Office of Legal Counsel has been
    delegated by regulation the authority of the Attorney General
    to provide legal advice to the executive branch.
        Senator Sessions. Now, the President of the United States
    is executing a war on terrorism after 3,000 of our people have
    been killed by what can only be described as unlawful
    combatants. And it is a difficult, tough time, and you were
    concerned and the President was deeply concerned that there may
    be other groups of unlawful combatants, saboteurs that were in
    the United States planning further attacks to kill more
    American citizens. And that is the way it was, isn't it?
        Judge Gonzales. The President was very concerned about
    protecting this country from future attacks and doing
    everything that we could do within the law to protect this
    country from future attacks.
        Senator Sessions. And in the course of all of that,
    agencies that we had out there, their lives at risk--the
    military and other agencies--to serve our people, to protect
    our people, asked the President what the law was with regard to
    their rights and duties and responsibilities of interrogating
    people they have apprehended. That came to your attention, I
    guess, as Counsel to the President.
        Judge Gonzales. My understanding is that people in the
    agencies were very concerned about--they understood that they
    had a direction from the President to do what they could to
    protect this country within the limits of the law, and they
    wanted to clearly understand what those limits were.
        Senator Sessions. And so you did not undertake to give them
    an off-the-cuff opinion, as Senator Biden suggests you ought to
    be able to do today on any question he would desire to ask you,
    I suppose.
        Judge Gonzales. I hope not, Senator. I have been
    criticized, quite frankly, for going too much to the Department
    of Justice and making sure that the legal advice we give to the
    President is the right advice. That is very important to me. I
    understand that the Office of Legal Counsel, they have the
    expertise, the institutional history, the institutional
    knowledge about what the law is. And so I have a great deal of
    respect for that office and rely upon that office in the advice
    that I give to the President of the United States.
        Senator Sessions. And it is staffed with career people who
    have dealt with these issues for many, many years, certainly,
    and when this issue arose, I think you did the absolutely
    proper thing. You asked the entity of the United States
    Government that is charged with the responsibility of making
    those opinions, you asked them to render an opinion.
        Judge Gonzales. Absolutely, Senator. We want to get it
    right. It also provides, quite candidly, as the lawyer for the
    President, protection for the President. We want to make sure
    the President does not authorize or somehow suggest conduct
    that is unlawful. And so I felt that I had an obligation as a
    prudent lawyer to check with the professionals at the
    Department of Justice.
        Senator Sessions. Well, I think you did, and I think that
    was the first step.
        Now, it has been suggested that this was your opinion, that
    it is your opinion, you asked for this opinion, as if you asked
    for them to say precisely what they said. You asked for them to
    give an opinion on the legal question involved. You did not ask
    them to give an opinion that you wanted. Is that correct?
        Judge Gonzales. As I said in my earlier testimony, there
    was give-and-take. There were discussions about the opinion,
    but ultimately the opinion represents the position of the
    Department of Justice. And as such it's a position that I
    supported at the time.
        Senator Sessions. And there is no doubt in anyone's mind,
    the Office of Legal Counsel or the Attorney General, that that
    opinion was one that they worked on, that they debated
    internally, and when they put their name on it, it was their
    opinion. Isn't that correct?
        Judge Gonzales. It was the work of the Department of
    Justice and, again, reflected the position of the executive
    branch.
        Senator Sessions. The official position. Now, the President
    of the United States--well, let me follow this up: Having been
    an Attorney General and been involved in the Department of
    Justice as a part of the executive branch, as you were part of
    the executive branch, and lawyers in the Department of Justice
    have to be very careful, do they not, when they issue an
    opinion that they are not circumscribing legitimate
    constitutional powers that belong to the executive branch. And
    they are going to be careful not to render an opinion that
    would remove constitutional powers that the President
    legitimately has.
        Judge Gonzales. That is correct. But my view about the
    Office of Legal Counsel is to call them as they see them, I
    mean, interpret the law and give us their best judgment about
    what the law is.
        Senator Sessions. Well, I agree with that. But once this
    opinion came in from the Office of Legal Counsel and the
    President and you, I am sure, reviewed it, he issued some
    orders, it seemed to me, that were far less expansive than the
    authority the Legal Counsel said he had.
        Judge Gonzales. Well, I am not sure which orders you might
    be referring to. Let me emphasize for the record that the
    President was not involved personally in deciding which kinds
    of methods could be used to question terrorists who might have
    information that might save American lives. The President was
    not involved personally in connection with that.
        What he expected and what he deserved--and I think what he
    got--was people within the administration trying to understand
    what the law was and conforming their conduct to legal
    requirements.
        Senator Sessions. And the opinion of the Department of
    Justice Legal Counsel really isn't policy, is it? It is just
    the opinion of the Office of Legal Counsel.
        Judge Gonzales. At the end of the day, again, as I
    described to you, I expect the Office of Legal Counsel to give
    me their best judgment, their best interpretation of what the
    law is.
        Senator Sessions. And the President sets the policy based
    on his judgment after having received that advice?
        Judge Gonzales. That is correct.
        Senator Sessions. Now, with regard to al Qaeda, I do not
    think there is anyone on this Committee, on either side of the
    aisle, that would say that al Qaeda represents a lawful
    combatant that is, therefore, entitled to the full protections
    of the Geneva Conventions, would they? I mean, that is pretty
    well undisputed that they are not representatives of an
    organized state and that they do not carry arms openly and that
    they do not--and they clearly do not follow the laws of warfare
    in the surreptitious methods by which they bomb innocent
    civilians?
        Judge Gonzales. Senator, that is correct. Senator Biden
    spoke earlier about my judgment. My judgment was based on just
    reading the words of the Geneva Conventions is that it would
    not apply to al Qaeda. They weren't a signatory to the
    Convention and, therefore, it didn't seem to me that they could
    be--our conflict with al Qaeda could be covered. But
    obviously--
        Senator Sessions. And that would--
        Judge Gonzales. The decision by--if I might just interrupt
    you, the decision by the President as to the fact that Geneva
    would not apply was not just based upon my judgment. That was
    the considered judgment of the Department of Justice.
        Senator Sessions. And it was clearly correct and clearly
    consistent with Ex Parte Quirin, the Supreme Court case during
    World War II.
        Judge Gonzales. That is correct, sir.
        Senator Sessions. President Roosevelt captured some German
    saboteurs inside the United States and had a trial or a hearing
    in the Department of Justice or the FBI building and executed
    them. I do not think the public even knew about it until after
    they had been executed. So an unlawful combatant is a different
    matter.
        Now, in Iraq, you have said the Geneva Conventions would
    apply, basically, as I understand it.
        Chairman Specter. Senator Sessions, your red light is on,
    but if you would go ahead and finish your sentence.
        Senator Sessions. And truth be known, a number of those
    people involved in Iraq really should not qualify, but the
    President has really gone further than the law requires, it
    seems to me, in granting them privileges that he did not
    necessarily have to do as a matter of effecting his policy of
    humane treatment.
        Judge Gonzales. Senator, I think the administration--it is
    more accurate to say that the administration policy is and
    always has been that in our conflict with Iraq, Geneva does
    apply and we are bound by the requirements of the Geneva
    Convention. Iraq is a signatory to the Geneva Conventions, and
    there were never any question, any debate that I'm aware of as
    to whether or not Geneva would apply with respect to our
    conflict in Iraq.
        Senator Sessions. But the Zarqawi people do not strictly
    qualify, in my opinion, as a lawful combatant.
        Chairman Specter. Senator Kohl?

     STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE
                              OF WISCONSIN

        Senator Kohl. Thank you very much, Mr. Chairman, and I too
    want to congratulate you on your ascension to the chairmanship
    of this Committee.
        I have had the privilege of working with Senator Specter
    now for well over a dozen years, and I can attest to his skill
    and his perspective that I believe will enable us to proceed in
    an orderly and in a collaborative fashion.
        Chairman Specter. Thank you.
        Senator Kohl. I also would like to welcome you to this
    Committee, Mr. Gonzales. As you know, we have had an
    opportunity to work together on several different issues over
    the years, and I have come to respect you also. And I believe
    if you are confirmed that you will do a good job as Attorney
    General of the United States.
        Judge Gonzales. Thank you, Senator.
        Senator Kohl. Judge Gonzales, the 9/11 Commission's report
    recognized that winning the hearts and the minds of the Arab
    world is vital to our success in the war on terror. Photographs
    that have come out of Abu Ghraib have undoubtedly hurt those
    efforts and contributed to a rising tide of anti-Americanism in
    that part of the world. Secretary of State Colin Powell and
    others raised concerns about the decision not to apply the
    Geneva Conventions, some even suggesting that it could well
    undermine U.S. military culture. And we now know that those
    concerns in large part or significantly were well founded.
        When drafting your recommendations for the President on the
    application of Geneva Conventions, did you ever consider the
    impact that this could have on winning the hearts and minds of
    the Arab world in the war on terror? And in light of what has
    happened, if you could make the recommendation all over again,
    would you do something different than what you did?
        Judge Gonzales. Senator, that is a very good question and
    thank you for asking that. I think the decision not to apply
    Geneva in our conflict with al Qaeda was absolutely the right
    decision for a variety of reasons. First of all, it really
    would be a dishonor to the Geneva Convention. It would honor
    and reward bad conduct. It would actually make it more
    difficult, in my judgment, for our troops to win in our
    conflict against al Qaeda. It would limit our ability to
    solicit information from detainees. It would require us to keep
    detainees housed together where they could share information,
    they could coordinate their stories, they could plan attacks
    against guards. It would mean that they would enjoy combat
    immunity from prosecutions of certain war crimes. And so for a
    variety of reasons, it makes absolutely no sense.
        In addition to that, Senator, it is contrary to decades of
    executive branch position. There was an attempt in 1977,
    Protocol 1, to provide prisoner of war legal status to
    terrorists. Now, that protocol included some wonderful
    humanitarian provisions dealing with extraditions and hostages
    and things of that nature. But the United States, and many
    other countries, never ratified that protocol, and the reason
    is because the protocol arguably provided prisoner of war legal
    status to terrorists. And so it has been the consistent
    executive branch position since then that we are not going to
    do that because it hurts our soldiers. It is contrary to the
    spirit of Geneva to do so. And so I do believe the decision by
    the President was absolutely the right thing to do.
        Now, that's not to say that we don't--that we are not--that
    we don't operate without legal limitations and that we don't
    treat people consistent with our values as Americans. The
    President was very clear in providing directives that even
    though Geneva would not apply as a matter of law, we would
    treat detainees humanely and subject to military necessity and
    as appropriate, consistent with the principles of Geneva.
        In my judgment, there has been a very strong attempt to do
    so at Guantanamo. There has been never any question, as I said
    in response to earlier questions, about whether or not Geneva
    should apply in Iraq. That's always been the case.
        Do I regret the abuses at Abu Ghraib? Absolutely. I condemn
    them. Do I believe that they may have hurt us in winning the
    hearts and minds of Muslims around the world? Yes. And I do
    regret that. But one of the ways we address that is to show the
    world that we do not just talk about Geneva, we enforce Geneva.
    And so as I said in response to an earlier question, that's why
    we're doing these investigations. That's why you have these
    military court martials. That's why you have these
    administrative penalties imposed upon those responsible,
    because we want to find out what happened so it doesn't happen
    again. And if someone has done something wrong, they're going
    to be held accountable.
        Senator Kohl. Well, let me ask you, do you think that what
    happened at Abu Ghraib was just spontaneous, or do you think
    that those relatively low-level perpetrators got some sort of a
    sign from people above them who got signs from people above
    them that these things would be tolerated? What is your
    opinion?
        Judge Gonzales. Well, we don't know for sure. First of all,
    I'm not--I haven't conducted an independent investigation. We
    know eight have been completed. There are at least three
    ongoing. We know that the Congress is conducting--you know,
    through hearings and briefings, they're looking at this as
    well.
        As I listened to the briefings of Schlesinger and Faye and
    Kearns and people like that about their findings and their
    reports, they divide up the abuses into two categories. One
    category is the violent physical abuse and sexual abuse. That
    is the first category. And the second category are abuses
    related to interrogations and gathering intelligence, stem from
    confusion about what the policies and the strictures were.
        As to the first category, as I read the briefings, they all
    seem to conclude that what you see in the pictures, the most
    horrific of the abuses that we see, the ones that we all, you
    know, condemn and abhor, those do not relate to confusion about
    policies. Those were not related to interrogations or confusion
    about how much you could--what you could do in terms of
    gathering intelligence. This was simply people who were morally
    bankrupt trying to--having fun, and I condemn that.
        As to the second category, the reports seem to indicate
    that there was migration. There was migration between what
    happened in Guantanamo. You had people and standard operating
    policies that migrated from Guantanamo to Afghanistan and then
    into Iraq. And so there was some confusion about what were the
    appropriate standards to use in connection with interrogations
    and in connection with intelligence gathering.
        However, as I read the briefings and the reports, they seem
    to indicate that the reason that the abuses occurred was not
    because of some decision back in 2001 or 2002, but because of
    the fact that you had a prison that was outmanned, under-
    resourced, and focused on fighting an insurgency, and they
    didn't pay enough attention to detainee operations. There
    wasn't adequate supervision. There wasn't adequate training
    about what the limits were with respect to interrogation.
    That's how I read the findings and conclusions of some of these
    reports.
        But it's not done yet. Again, there are still ongoing
    investigations. And so we'll have to wait and see--
        Senator Kohl. That would seem to indicate, although we will
    see what happens, that people above the level of those who
    committed the atrocities are likely--and we will see what
    happens--to escape being held accountable. We will see what
    happens. I know you and I cannot know that right now, but I
    think I am getting a drift from you that those people who
    committed the atrocities were acting on their own. There really
    wasn't anybody at a higher level who understood and approved or
    at least condoned, and the accountability should be held at
    that level.
        I think the American people, by and large, Judge Gonzales,
    believe that accountability should at least be focused on
    people above the level of those at that level who committed the
    atrocities. What do you think, Judge Gonzales?
        Judge Gonzales. I believe that people should be held
    accountable. I do think--and perhaps I misspoke in describing
    how I reviewed the briefings and how I read the reports. The
    reports seem to indicate that there was a failure, there was a
    failure of discipline amongst the supervisors of the guards
    there at Abu Ghraib, and also they found that there was a
    failure in training and oversight at multiple layers of Command
    Joint Task Force 7. And so I think there was clearly a failure
    well above the actions of the individuals who actually were in
    the prison. At least that's what the reports seem to indicate,
    as I review them.
        Senator Kohl. Finally, Attorney General Ashcroft said that
    he does not really believe in torture in the sense that it does
    not produce anything of value. He has said that on the record.
    Do you agree with that?
        Judge Gonzales. Sir, I don't have a way of reaching a
    conclusion on that. All I know is that the President has said
    we are not going to torture under any circumstances.
        Senator Kohl. Well, do you believe that the policy is a
    correct one, that we never should have had any torture at
    Guantanamo or at Abu Ghraib among other reasons because it
    really does not produce anything of value?
        Judge Gonzales. Sir, the United States has never had a
    policy of torture.
        Senator Kohl. I thank you, Mr. Chairman.
        Chairman Specter. Senator Graham?

     STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. SENATOR FROM THE
                        STATE OF SOUTH CAROLINA

        Senator Graham. Thank you, Mr. Chairman. Congratulations--I
    think--for chairing this Committee.
        Monday morning quarterbacking is part of a democracy, so
    just bear with us because what we are trying to do is figure
    out how to correct mistakes. Now, I am a very ardent supporter
    of the war. I really do believe if you are going to win the war
    on terror, you take dictatorships like Saddam Hussein, who was
    part of the problem, and you give people who lived under his
    oppression a chance to be free. That is not easy, and I believe
    we made mistakes along the way.
        But one of the reasons that we are talking about this has a
    lot to do with your confirmation, but really not. I think we
    have dramatically undermined the war effort by getting on a
    slippery slope in terms of playing cute with the law because it
    has come back to bite us. Abu Ghraib has hurt us in many ways.
    I travel throughout the world like the rest of the Members of
    the Senate, and I can tell you it is a club that our enemies
    use, and we need to take that club out of their hands.
        Guantanamo Bay, the way it has been run, has hurt the war
    effort. So if we are going to win this war, Judge Gonzales, we
    need friends and we need to recapture the moral high ground.
    And my questions are along that line.
        To those who think that you can't win a war with the Geneva
    Convention applying, I have another role in life, I am a judge
    advocate. I am a reserve judge in the Air Force. I have never
    been in combat. I had some clients that probably wanted to
    kill, but I have never been shot at. But part of my job for the
    last 20 years, along with other judge advocates, is to advise
    commanders about the law of armed conflict. And I have never
    had a more willing group of people to listen to the law,
    because every Air Force wing commander lives in fear of an air
    crew being shot down and falling into enemy hands. And we
    instill in our people as much as possible that you are to
    follow the law of armed conflict because that is what your
    Nation stands for, that is what you are fighting for, and you
    are to follow it because it is there to protect you.
        Now, to Secretary Powell, he took a position that I
    disagreed with legally but in hindsight might have been right.
    I agree with you, Judge Gonzales, that to give Geneva
    Convention protection to al Qaeda and other people like al
    Qaeda would in the long run undermine the purpose of the Geneva
    Convention. You would be giving a status in the law to people
    who do not deserve it, which would erode the Convention.
        But Secretary Powell had another role in life, too. He was
    a four-star general and Chairman of the Joint Chiefs. And to
    those who think that the Geneva Convention is a nicety or that
    taking torture off the table is naive and a sign of weakness,
    my answer to them is the following: that Secretary Powell has
    been in combat, and I think you weaken yourself as a nation
    when you try to play cute and become more like your enemy
    instead of like who you want to be. So I want to publicly say
    that the lawyers in the Secretary of State's office, while I
    may disagree with them and while I may disagree with Secretary
    Powell, were advocating the best sense of who we are as people.
        Now, having said that, the Department of Justice memo that
    we are all talking about now was, in my opinion, Judge
    Gonzales, not a little bit wrong but entirely wrong in its
    focus because it excluded another body of law called the
    Uniform Code of Military Justice. And, Mr. Chairman, I have
    asked since October for memos from the working group by Judge
    Advocate General representatives that commented on this
    Department of Justice policy, and I have yet to get those
    memos. I have read those memos. They are classified, for some
    bizarre reason. But, generally speaking, those memos talk about
    that if you go down the road suggested, you are making a U-turn
    as a nation, that you are going to lose the moral high ground,
    but more importantly, that some of the techniques and legal
    reasoning being employed into what torture is, which is an
    honest thing to talk about--it is okay to ask for legal advice.
    You should ask for legal advice. But this legal memo I think
    put our troops in jeopardy because the Uniform Code of Military
    Justice specifically makes it a crime for a member of our
    uniformed forces to abuse a detainee. It is a specific article
    of the Uniform Code of Military Justice for a purpose because
    we want to show our troops, not just in words but in deeds,
    that you have an obligation to follow the law.
        And I would like for you to comment, if you could, and I
    would like you to reject, if you would, the reasoning in that
    memo when it came time to give a tortious view of torture. Will
    you be willing to do that here today?
        Judge Gonzales. Senator, there is a lot to respond to in
    your statements. I would respectfully disagree with your
    statement that we're becoming more like our enemy. We are
    nothing like our enemy, Senator. While we are struggling
    mightily to try to find out what happened at Abu Ghraib, they
    are beheading people like Danny Pearl and Nick Berg. We are
    nothing like our enemy, Senator.
        Senator Graham. Can I suggest to you that I did not say
    that we are like our enemy, that the worst thing we did when
    you compare it to Saddam Hussein was a good day there. But we
    are not like who we want to be and who we have been. And that
    is the point I am trying to make, that when you start looking
    at torture statutes and you look at ways around the spirit of
    the law, you are losing the moral high ground. And that was the
    counsel from the Secretary of State's office, that once you
    start down this road, it is very hard to come back. So I do
    believe we have lost our way, and my challenge to you as a
    leader of this Nation is to help us find our way without giving
    up our obligation and right to fight our enemy.
        And the second question--and then I will shut up--is
    Guantanamo Bay. The Supreme Court has rejected this
    administration's legal view of Guantanamo Bay. I believe it is
    a legal chaos down there and that it is not inconsistent to
    have due process and aggressively fight the war on terror.
    Nobody wants to coddle a terrorist, and if you mention giving
    rights to a terrorist, all of a sudden you are naive and weak.
    I can assure you, sir, I am not naive and weak.
        Judge Gonzales. Thank you, Senator.
        With respect to Guantanamo Bay, it is correct that in the
    Rasul decision the Supreme Court did disagree with the
    administration position. We felt, reading Supreme Court
    precedent in Johnson v. Eisentrager, that a non-American enemy
    combatant held outside the United States did not have the right
    to file a habeas challenge.
        Senator Graham. It is a correct position to take, but you
    lost. Now here is my question: What do we do now that you lost?
        Judge Gonzales. We have implemented a process to provide
    the opportunity for people at Guantanamo Bay to know of the
    reasons they're being detained and to have a meaningful
    opportunity to contest the factual basis of their detention
    before a neutral decisionmaker, all in accordance with the
    decision in Hamdi.
        Senator Graham. How is that being worked? Who is working on
    that?
        Judge Gonzales. That is being worked through Secretary
    England, and they have assumed responsibility for--the Navy has
    assumed responsibility for standing at the combatant status
    review tribunals, and I can't tell you today where we are in
    the process, but we are providing a level of process which we
    believe meets the requirements set out by the Supreme Court.
        Senator Graham. Okay. I would like to be informed, if
    possible, in an appropriate way what the executive department
    is doing to fill in that gap. I do not know if we need
    legislative action. But the reason I am going to vote for you
    is because I think I have followed this information enough to
    know that you are a good lawyer, you ask good questions, and it
    was ultimately the President's decision. And I think he was
    right. I think Geneva Convention protection should not be
    applied to terrorists.
        I think humane treatment is the way to go, the only way
    that we can win this war. My problem is that the DOJ memo was
    out there for two years, and the only people I can find that
    spoke against it were professional military lawyers who are
    worried about our own troops. I want you to get that memo, and
    if we need three rounds, we will do three rounds. But I would
    like to get you to comment, if you could.
        Is my time up?
        Chairman Specter. Almost.
        Senator Graham. Okay. Comment if you could. Do you believe
    that a professional military lawyer's opinion that this memo
    may put our troops in jeopardy under the Uniform Code of
    Military Justice was a correct opinion?
        Judge Gonzales. Would you like me to try to answer that
    now, Mr. Chairman?
        Chairman Specter. Yes. Judge Gonzales, the question is
    pending.
        Judge Gonzales. And the question is do I believe that the
    military lawyer's judgment that--
        Senator Graham. The techniques being espoused in the memo
    may put our troops at jeopardy under the Uniform Code of
    Military Justice. And if you want to take some time, that is
    fine.
        Judge Gonzales. Thank you, Senator.
        Senator Graham. I mean I want sometime later for you to
    answer that question, but you do not have to do it right now.
        Chairman Specter. Do you want to think it over, Judge
    Gonzales and respond later?
        Judge Gonzales. I do. Thank you, Mr. Chairman.
        Chairman Specter. Later during the hearing, that is fine.
        Senator Feingold.

    STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
                           STATE OF WISCONSIN

        Senator Feingold. I too want to congratulate you, Mr.
    Chairman. I have long admired your thoroughness and your
    independence and your judgment, and I do look forward to
    working with you and all the members of the Committee again. I
    particularly appreciate the fact that you kicked off the
    questioning today by using a lot of your time to talk about the
    need to carefully look at certain provisions of the USA PATRIOT
    Act, which of course, I agree we need to do, and I am looking
    forward to a bipartisan effort to do it.
        You were specific about concerns about the so-called
    library records provision, Section 215, and the sneak-and-peek
    provisions. Those are some of the ones that need that kind of
    review. And I want to make it clear in the record, because it
    sounded like the nominee was suggesting that somehow Section
    215 does not apply to library records. It does in fact apply to
    library records. Apparently the nominee agrees.
        Judge Gonzales. I do agree.
        Senator Feingold. I just want to say that the previous
    Attorney General referred to librarians in this country as
    being hysterical in their concern with regard to this. They
    were not hysterical about it, and it does need the kind of
    review that the Chairman has called for. I think it could be a
    great moment for the Senate when we take up this legislation
    and look at the problems with it and come together to fix it,
    and I thank the Chairman for that.
        Welcome, Judge Gonzales, and congratulations on your
    nomination. In accepting the President's nomination to be
    Attorney General you said the American people expect and
    deserve a Department of Justice guided by the rule of law. I
    could not agree with you more. One of the things we as Senators
    must decide in considering your nomination is whether as
    Attorney General you will give the American people what they
    expect and deserve from their Government, and I have a few
    questions to follow up on that.
        First I want to follow up on your answer to Senator Kennedy
    and Senator Leahy regarding the OLC memo. You told Senator
    Leahy that you did not want to politicize the work of career
    professionals of DOJ, so you could not weigh in against the
    interpretation of the law that was expressed in that memo. But
    then you told Senator Kennedy that it was totally appropriate
    to have discussions with the DOJ while the memo was being
    prepared because it was a complicated statute that had never
    before been interpreted. I think there is something of a
    contradiction there, which I would like you to comment on, but
    I would like to make two other points first.
        First, the authors of the torture memo, in fact, Judge,
    were political appointees, not career professionals. Second,
    the issue is whether you disagree with that memo and express
    that disagreement to the President. You are the President's
    lawyer. Is it not your job to express your independent view to
    the President if you disagree with the opinion of the Justice
    Department, or do you just simply pass on the DOJ's opinion no
    matter how erroneous or outrageous, and just say to the
    President, in effect, this is what the DOJ says the law is?
        Judge Gonzales. Thank you, Senator, for that question. Let
    me try to clarify my comments regarding my role in connection
    with the memo and my role generally as I view it as Counsel to
    the President.
        It is of course customary, and I think to be expected that
    there would be discussions between the Department of Justice
    and the Counsel's Office about legal interpretation of, say, a
    statute that had never been interpreted before, one that would
    be extremely emotional, say, if you're talking about what are
    the limits of torture under a domestic criminal statute? And so
    there was discussion about that. But I understand, and it is my
    judgment that I don't get to decide for the executive branch
    what the law is. Ultimately, that is the President, of course.
    By statute the Department of Justice is giving me authority to
    provide advice to the executive branch. And so while I
    certainly participate in discussions about these matters, at
    the end of the day, that opinion represents the position of the
    Department and therefore the position of the executive branch.
        Senator Feingold. I am puzzled by that because I think it
    must be your job as Counsel to the President to give him your
    opinion about whether the DOJ document was right before he
    makes a judgment to approve it, and I have always assumed that
    would be the job of the President's lawyer.
        Judge Gonzales. I certainly do of course give the President
    my own opinions about particular matters, but as I said earlier
    in response to a question, my own judgment, my own conclusions,
    very often are informed, and very often influenced by the
    advice given to me by the Department of Justice, and often I
    communicate with the President, not only sort of my views, but
    the views of the Department, which of course, by statute,
    that's their job to do, and so that the President has that
    information in hand in weighing a decision.
        Senator Feingold. I am still puzzled by that. If you were
    my lawyer, I would sure want to know your independent opinion
    about something like that. But let me move on.
        I want to now ask you about the role you had when you were
    counsel to then Governor Bush. You prepared what are referred
    to as clemency memos, summarizing a particular death row
    inmate's case and his plea for clemency from the Governor. As I
    understand it, you and your staff would prepare these memos and
    then present them to the Governor, who would make a final
    decision on whether to deny or grant clemency to the inmate
    with an imminent execution date.
        According to my staff's review of the clemency memorandum,
    it appears that you presented these memos to the Governor
    almost always on the day of execution. Why is that? On such a
    grave matter as life and death, why was the decision left until
    the day of execution?
        Judge Gonzales. The ultimate decision may have been left or
    came close to the time of the execution because that was the
    desire of the Governor. However, those memos reflect a summary
    of discussions that often occur between my office and the
    Governor in connection with every execution. It was not
    unusual, in fact it was quite common, that I would have
    numerous discussions with the Governor well in advance of a
    scheduled execution. We often knew when executions were
    scheduled. If I were in talking to the Governor about a
    particular matter and we had an opportunity, I would say,
    ``Governor, we have an execution coming up in three weeks. One
    of the bases of clemency I'm sure that will be argued is, say,
    something like mental retardation. These are the issues that
    have to be considered.'' And so there would be a rolling series
    of discussions in connection with every execution. But as to
    when the ultimate decision was going to be made, it was often
    the day before or the day of an execution. And an additional
    very important reason for that, is because a Governor, under
    Texas law, has very limited authority under the Constitution to
    grant clemency. He can only grant clemency, he can only grant a
    pardon, he can only grant a commutation, he can only grant a
    reprieve, beyond 30 days upon a recommendation of the Board in
    Pardons and Parole, and often the Board would not meet and
    would not vote until just prior to an execution, and of course,
    the Governor wanted to wait and see what recommendation the
    Board in Pardons and Parole had with respect to a request for
    clemency.
        Senator Feingold. I recognize that. It is true that the
    Texas Governor has a more limited clemency power compared to
    other governors, but the Governor does appoint the members of
    the Board in Pardons and Parole, and I think his grant of a
    reprieve could have signaled to the Board that a case deserved
    closer attention.
        I guess I want to know, in the way you have just described
    the process worked, did you ever seek additional time in order
    to allow the Governor adequate time to review and understand
    the case? In other words, after he read the memo that was
    presented on the day of the scheduled execution, was there ever
    an occasion when more time was requested?
        Judge Gonzales. I don't remember an occasion when more time
    was requested when we presented that final memo. I do remember
    many occasions when I would go to the Governor and talk about
    the facts of a particular case, and the basis of clemency, and
    the Governor would--if I expressed concerns or questions, the
    Governor would direct me to go back and find out and to be
    absolutely sure, because while the Governor believes in the
    death penalty, he believes that it deters crimes and saves
    lives, he also believes very firmly that it should be applied
    fairly and only the guilty should be punished.
        Senator Feingold. On that point, one of the cases involved
    an inmate on death row named Carl Johnson. He was executed in
    September 1995 during the first year that Governor Bush was in
    office and you were his counsel on these matters. Mr. Johnson
    was represented by a lawyer named Joe Cannon, who slept through
    the major portions of the trial, and was apparently notorious
    in legal circles for this behavior. In his challenges appealing
    the trial conviction, Mr. Johnson argued consistently that he
    had had ineffective assistance of counsel, primarily based on
    the sleeping lawyer who represented him at trial.
        In your memo to the Governor discussing this case, and
    impending execution, however, you failed to make any mention
    whatsoever of the basis for Mr. Johnson's appeal. You go to
    great lengths to describe the underlying facts of the murder,
    but there is no mention at all of the fact that this lawyer
    slept through the major portions of the trial. I would like you
    to in a second explain this omission. I want to know how the
    Governor could have weighed the clemency memo fully and
    properly if you had failed to even indicate the basis for the
    clemency request?
        Judge Gonzales. Senator, as I described to you, the
    process--those memos reflected the end of a process of
    educating the Governor about the facts of a particular case.
    And the fact that it may not have been included in the memo, we
    may have had numerous discussions about it. He may have said,
    ``Has that issue been reviewed in the courts carefully and
    thoroughly?'' And we may have gone back--I don't remember the
    facts of this particular case, but we may have gone back, our
    office may have gone back and seen that, yes, in fact this
    question of ineffective assistance of counsel had been reviewed
    numerous times in our courts and had found the allegations
    frivolous.
        Senator Feingold. This is a very famous case. It is hard
    for me to imagine that you do not know the specifics of it, and
    it is almost unimaginable to me that a final formal legal memo
    to the Governor would not have included reference to the fact
    that this man's lawyer slept during the trial.
        Chairman Specter. Senator Feingold's time is up, but Judge
    Gonzales, you may answer the question.
        Judge Gonzales. I don't have a response to the Senator,
    unless there was a question.
        Chairman Specter. If there has not been a question,
    postulate the question, Senator Feingold.
        Senator Feingold. It was a statement. Thank you, Mr.
    Chairman.
        Chairman Specter. Thank you.
        Senator Cornyn.
        Senator Cornyn. Thank you, Mr. Chairman.
        Judge Gonzales, has it been your experience as a lawyer
    that sometimes lawyers disagree?
        Judge Gonzales. That has been my experience, yes, sir.
        Senator Cornyn. That has been my experience too, and I
    guess it is best exemplified by the lawyers on this Committee
    who from time to time will disagree with one another, and
    certainly that is understandable when we disagree about policy
    matters, even inferences to be drawn from facts which we all
    know to be true. But I think perhaps if I heard correctly, the
    Senator from Delaware was questioning whether my facts were
    correct when I presented the opening statement referring to a
    number of acknowledgements of the correctness of your judgment
    and the President's decision that the Geneva Convention does
    not formally apply to terrorists. So I would like to just
    quickly refer specifically to the pages, and I would like to
    ask unanimous consent that they be made part of the record.
        First, page 379 through 380, where the 9/11 Commission says
    that since the international struggle against Islamic terrorism
    is not internal, these provisions do not formally apply.
        And then the Schlesinger report, which studied the
    Department of Defense detention policies, which concluded that
    there were no high level policies or procedures in place that
    would allow for torture or abuse of detainees. On page 81 they
    say the panel accepts the proposition that these terrorists are
    not combatants entitled to the protection of the Geneva
    Convention.
        And then there was the reference I made to the Red Cross
    Manual on the Geneva Convention, which on page 53 sets out the
    three-part test on whether the Geneva Convention actually
    applies under any given circumstances, and I would like to ask
    unanimous consent that those be made part of the record, and I
    am confident they will. But let me ask you this. This has also
    been contested in three separate Federal courts, has it not?
        Judge Gonzales. It has.
        Senator Cornyn. And what has been the result?
        Judge Gonzales. That the President's decision was the
    correct legal decision.
        Senator Cornyn. Even though lawyers can disagree about
    judgments, legal judgments or opinions--here again, I hope we
    do not disagree about certain basic facts, and that is the
    reason I wanted to go over the content of these documents which
    the Senator from Delaware suggested I was mistaken about. Let
    me ask you whether you agree with this proposition. Do you
    agree the that United States Government should use all lawful
    means to gather intelligence from terrorists in order to save
    American lives?
        Judge Gonzales. I do agree with that. Obviously, that is a
    policy decision. I think that that is the position of the
    President of the United States, because as I said earlier, the
    war on terror is a war about information, and we need
    information to be successful in winning this war.
        Senator Cornyn. You will not be the only witness in this
    hearing, and here again we are going to hear, I anticipate,
    since we have had the chance to see their prepared testimony,
    from other witnesses, who may express different opinions than
    you have expressed here, as well as the opinions expressed by
    the 9/11 Commission, the Schlesinger report and those three
    Federal courts. But I for one do think you have been candid in
    response to the questions, and I do not suggest I am the only
    one. I just know there was a suggestion that there had not been
    complete candor on your part, but I do believe you have been. I
    think that this Committee is exercising its constitutional
    responsibility to ask you hard questions, but I trust that
    those questions will always be good faith questions, they will
    not be motivated by some improper purpose, partisanship or
    otherwise.
        So I am glad you are here today. I am glad the Committee is
    asking you hard questions, but I hope that we never cross the
    line into partisanship or improper motive in asking some
    questions.
        Finally, let me just say that there was some suggestion
    that you have been less, or the White House has been less than
    responsive about requests for documents. Let me just hold up
    here what I believe to be part of the response that the White
    House has made to the request by Senator Leahy and others on
    the other side of the aisle with respect to documents of your
    office. Does that look at least like a--I will not have you go
    through them page by page--but have you produced voluminous
    documents? Has the White House produced voluminous documents in
    response to Committee requests?
        Judge Gonzales. Senator, it's hard for me to gage whether
    or not that reflects our response. Because of my nomination, I
    have recused myself from any decisions regarding production of
    documents that this Committee has requested in connection with
    my nomination. Decisions about production of documents are
    being made by others at the White House, as it should be.
        Senator Cornyn. Thank you for that clarification. It is my
    understanding, I have been advised, that the White House has
    complied completely with the request for documents with two
    exceptions. One is a document which the White House is claiming
    wherein the President has received confidential and candid
    advice from senior advisers relating to the memorandum
    concerning the application of the Geneva Convention to al Qaeda
    and the Taliban. The second document that the White House has
    declined to produce is an Office of Legal Counsel opinion dated
    November 6, 2001, and the reason stated is because that is
    currently the subject of litigation.
        I would just say that this Committee last year had the
    occasion to revisit the importance of our ability as Senators
    to receive confidential advice from our own staff, and we
    learned, unfortunately, that there had been a theft of some
    staff memos to Senators, and that now has been referred for
    investigation and possible prosecution.
        But do you recognize the importance as a general principle
    of confidential communications between the President and his
    senior advisers, or for that matter, between the United States
    Senate and our staff?
        Judge Gonzales. I think it is a very important principle,
    Senator, that needs to be respected. I think the principals
    should be able to rely upon candid advice from their advisers.
    I've seen in four years how it does make a difference in
    affecting the way you present advice, if not the advice you
    actually give. And so I think that that is a principle that
    should be respected, and of course, there is a competing
    principle as well, and that is, sometimes there is a strong or
    legitimate Government purpose to try to receive information and
    to look at that information, either as part of some kind of
    criminal investigation, or part of the oversight function of a
    committee, but that always involves a balancing it seems to me.
    It's sort of a case-by-case analysis in terms of where do you
    draw the line as to when to produce deliberative information
    and when not to. But, yes, I think it is a principle that one
    should always be mindful of, is the fact that you don't want to
    inhibit candid advice to principals. Otherwise, in my judgment,
    you do inhibit the decisionmaking of that principal, and I
    don't think that's good for the American people.
        Senator Cornyn. Judge Gonzales, thank you very much for
    your response to those questions and your appearance here
    today. My experience, just in the brief time I have been in
    Washington, is that there are very few secrets because this
    place leaks prolifically, and if you want to find out what is
    going on in Washington at the highest levels of Government, all
    you have to do is pick up the daily newspaper or watch cable
    news, and you will find out almost as much as you do by sitting
    in on classified briefings. That has been my experience. It may
    not be typical.
        Thank you, Mr. Chairman.
        Chairman Specter. Thank you, Senator Cornyn.
        Senator Schumer.

     STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
                           STATE OF NEW YORK

        Senator Schumer. Thank you. And let me, Mr. Chairman, join
    all of my colleagues in congratulating you on achieving
    chairmanship of the Judiciary Committee.
        Chairman Specter. Thank you.
        Senator Schumer. You have all of the good qualifications
    for it, so thank you.
        Thank you, Judge Gonzales. Let me just say that I guess
    many of us, at least on this side of the aisle, have had very
    bad experiences with the Justice Department over the last four
    years.
        The Attorney General, should you be confirmed, is at the
    nexus of what may be the most fundamental and important
    conflict or tension in our Government, and that is between
    security and liberty, and the Founding Fathers paid a lot of
    attention to that, and realized the importance of that tension.
    One thing I think they called for in the structure of the
    Government they set up that these hearings embody and so much
    else, and that there be consultation, that there be discussion,
    and then you come to a conclusion. Obviously, the line moves.
    No one can dispute that we live in a new world after 9/11. No
    one disputes, certainly not me, that old rules should be re-
    examined because the world has changed dramatically, and what
    governed when the War of the Roses was fought does not govern
    today.
        But the previous Attorney General ran the most secretive
    Justice Department in my lifetime. He seemed to make every
    major decision behind closed doors in the dark of night, and
    then when ideas popped out, because there was no consultation,
    because there was no vetting, he had to pull back because he
    had gone too far. That happened in torture, where there has
    been some retraction by the administration. It happened with
    the TIPS program, where originally your predecessor, or
    Attorney General Ashcroft, rather, wanted neighbors to spy on
    neighbors. Another was the Total Information Awareness Program.
    Time and time again proposals were pulled back because they
    were half-baked or not vetted or not discussed, and they would
    have come out much better had there been the kind of dialogue
    that I think Democratic and Republican administrations in the
    past on these key delicate and important issues that have to be
    carefully balanced, there was discussion.
        So my general concern is to know how you are going to
    approach these issues should you be confirmed. Will you be a
    voice for inclusion and consultation, or will you be continuing
    the John Ashcroft ``my way or the highway'' approach that often
    led to embarrassment on his part, on the Department of
    Justice's part, and others? And I have a few questions in this
    regard, some specifics.
        The first is on judges itself, an issue of great concern to
    me. In your position as Counsel, you and I have worked out
    things very well together in New York State. Every vacancy is
    filled. They are filled with moderate or conservative but
    mainstream judges. But we had a real dialogue. You would bounce
    names off of me; I would bounce names off of you. There were
    some each of us said to the other are not acceptable, and they
    were pulled off the table. The judges, make no mistake about
    it, do not mirror my views. Most of them are pro-life and more
    conservative on most issues, but they are mainstream. I really
    believed that they would interpret the law.
        That is not what has happened nationally. We have had on
    most circuits just a throw down the gauntlet, here is who we
    want, you better approve them, and if you do not approve them,
    you are obstructionist, even though we have approved 204 out of
    214, a record, I think, that is better than the first few
    Congresses, where I think one-fifth of all Supreme Court
    nominees, although that may be in the history of all the
    Congresses, have been rejected. And many of us believe that
    some of these nominees were radical. They were not strict
    constructionists. They were not following the law. They wanted
    to get rid of decades and sometimes even centuries of law when
    it came to environment or civil rights or women's rights or
    privacy or property rights.
        And as you know, we are going to have a Supreme Court
    nomination, you know, before long. I hasten to add, by the way,
    parenthetically, that the standard that I am going to use and I
    think most of us are going to use to judge you as Attorney
    General will be different than we would use for Supreme Court
    Justices should you or anybody else be the nominee. No one
    should mistake the votes here as a ratification because it is a
    different job, it is a lower standard. In the executive branch,
    you want the President to have more leeway than in an
    independent judicial branch.
        But I want to ask you, when it comes to Supreme Court
    nominations, which we are likely to get here, will you be a
    real voice for consultation? Will you come to us or will you
    urge the President to come to us and say here are the names I
    am considering, what do you think? Which ones would cause a
    knock-down, drag-out fight? Which ones would be acceptable? Can
    we reach compromise? There may be more than one nomination.
        Can you just give me a little bit of your feeling on how
    that ought to happen and your judgment on what has happened
    thus far in New York versus what has happened in the rest or
    many of the other circuits?
        Judge Gonzales. Thank you, Senator. First of all, let me
    make it clear: I am not a candidate for the Supreme Court.
        Senator Schumer. Right. Just making sure that everyone
    knows in case that should happen, one standard is different
    than the other.
        Judge Gonzales. I'm focused on this position.
        Senator Schumer. I understand that.
        Judge Gonzales. I want to thank you for your work in
    connection with filling Federal judgeships in New York. I agree
    with you, we have been able, in my judgment, to reach
    accommodations where the President is able to put people on the
    Federal bench that he believes should serve as lifetime judges.
    As to why we haven't been able to replicate that around the
    country, I'm still trying to understand that as well.
        You mentioned some circuit court judges that were way, way
    out of the mainstream. We look at these picks very, very
    carefully, and we talk to a lot of people. We bring them in. We
    look at their writings, if they have been judges. They have
    been rated well qualified or qualified by the American Bar
    Association, as you well know.
        Senator Schumer. Yes, but they do not rate on their views.
    They rate on their integrity and demeanor. I mean, a judge who
    believes there should be no zoning laws, which is one of the
    people you nominated, is 1890s.
        Judge Gonzales. Well, I am not going to try to defend every
    single act and every single statement of all of the President's
    nominees. In my judgment, collectively they do come to the job
    with the appropriate character and integrity, professional
    excellence, and with a judicial philosophy--
        Senator Schumer. Will you urge the President to consult
    with us, with our side, in a real way, give us some names, some
    choices, a real dialogue rather than ``We are doing this one''?
        Judge Gonzales. Well, in my judgment, consultation has
    always been good. It has been fruitful. I will certainly make
    the President aware of your request.
        Senator Schumer. The second issue, related, the so-called
    nuclear option. Now, again, the pique of some, some of my
    colleagues and many in the hard right, is, well, we didn't get
    every one of our judges, therefore, we have to change the rules
    by having the Vice President, as he sits as President pro tem,
    rule that a filibuster is unconstitutional. I find it
    confounding. The very same people who urge strict construction
    of the Constitution--find the words, there is no right to
    privacy in the Constitution, it does not say ``right to
    privacy''--are now saying that the Constitution says there
    should only be a majority vote on judges.
        First, are you aware of any words in the Constitution that
    say there should be a majority vote for judges?
        Judge Gonzales. Senator, I have no views as to whether or
    not a filibuster is constitutional. We view that as an internal
    Senate matter--
        Senator Schumer. You know the Constitution. We are asking
    you to be Attorney General. Are there any words that say ``only
    majority vote for judges''?
        Judge Gonzales. I'm not aware of that, Senator, but,
    please, give me the opportunity to go back and check my
    Constitution.
        Senator Schumer. All right. I will ask you to answer that
    in writing and find me those words.
        Second, I would ask you your opinion, and this is
    important: Do you believe filibusters of judicial nominees
    violate the Constitution? And on what basis, if you do?
        Judge Gonzales. Senator, we talked about this in our
    meeting, and my answer--
        Senator Schumer. We did, and you were going to think about
    it. You have had time to think about it.
        Judge Gonzales. My answer today is the same as it was in
    our meeting, and that is, I do not have a view as to whether or
    not it is constitutional. From my perspective, from the
    perspective of the White House, this is a matter, an internal
    Senate matter, to be resolved within the Senate.
        Senator Schumer. Well, you know, I am going to submit--I am
    going to ask you to think about that over the next several
    hours. This is something that I think is important, and I do
    not think you should be able to duck it because the very
    functioning of our Government could be at stake.
        One final question--
        Chairman Specter. Senator Schumer, your red light is on.
        Senator Schumer. We will have a second round, Mr. Chairman?
        Chairman Specter. A second round.
        Senator Schumer. Thank you.
        Chairman Specter. Senator Brownback?

    STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
                               OF KANSAS

        Senator Brownback. Thank you very much, Mr. Chairman. It is
    good to be back on the Committee and to welcome you as
    Chairman. And I welcome Judge Gonzales and am delighted in your
    public service to the State of Texas, the United States, and
    what I believe will be soon as Attorney General of the United
    States. Delighted to have you here. Welcome to your family as
    well. I love the name of the town you are from of Humble,
    Texas. I think that is a great place for a public servant to
    come from, and it reminds you of the proverb that humility
    comes before honor. You come from the right place to be honored
    with this type of position.
        I want to ask you about a couple of areas. We have had a
    lot of questioning about the Geneva Convention, the issues
    surrounding that. I am pleased that those have come out. And on
    your job, I want to follow up on what Senator DeWine was asking
    about on what you hoped to be known for in the position as
    Attorney General. Obviously the primary task is protecting the
    security of the country and the people here, and I don't want
    you ever to take your eye off of that ball, and I am sure you
    won't, that it is the war on terrorism, it is protecting the
    security of the American people, and that has got to be your
    primary focus and function and measure of success of the agency
    is were the American people protected.
        I do want to ask you about a couple of other areas of what
    I hope would be opportunity because it is a large agency and
    there are a number of different functions and areas that go on.
    One--and there is a bill that we put in last year, a bipartisan
    bill that the President spoke about in the State of the Union
    message last year on dealing with prisoner recidivism rates. I
    realize this is off of virtually everybody's radar screen in
    this hearing, but if you look at it for an issue that is
    affecting our country, once a person goes into our court system
    now and is convicted, 70 percent of them are going to commit
    another crime and be convicted again. It is an enormous rate of
    recidivism that we have. It is a huge price tag. I think we are
    spending at State levels $28 billion plus a year, prisons'
    annual operating cost of over $22,000 per inmate, and that is
    as it needs to be. We need to lock people up that commit crime.
        But the President sighted on this, and I agree and put
    forward a bipartisan bill, a bicameral bill with Senator Biden,
    Rob Portman in the House, on targeting reducing that recidivism
    rate, cutting it in half in 5 years. We called the bill ``The
    Second Chance Act,'' and it is just targeting those prisoners
    within 2 to 3 years of getting out for intensive work with
    them, intensive counseling, relationship building for when they
    are in, when they get out, to try to really track that rate.
    Also, children of prisoners are five times more likely to
    commit a crime than the general population, and we need to
    target in on that group.
        I put this forward as a compassionate conservative topic
    because I think this is one where we need to lock people up
    that commit crimes, but we know they are going to come out at
    some point in time, too--most--and we really also need to work
    with them.
        I am hopeful you can work with us on this issue because I
    think this is one of those topics that we can have an agreement
    across the aisle that this needs to be addressed. There are
    ways to address it. We have a faith-based prison in Kansas that
    the recidivism rate is below 10 percent. We have got other
    examples across the country of where this has been attacked and
    addressed quite successfully. And so I am hopeful that can be
    one of your legacies that you work on as well.
        Do you have a short response on that?
        Judge Gonzales. I do. Senator, I believe that it is not
    only smart but it is right. I think that we have an obligation
    to provide some kind of support structure, to provide some kind
    of training to people that are coming out of prison. It is the
    right thing to do. It is certainly smart because we simply do
    not want to have people that come out of prison merely go out
    and commit crimes, they cannot support themselves, and so we
    have to provide some kind of way for these folks to support
    themselves.
        There are a lot of prisons in Texas. Obviously this is a
    problem that Governor Bush was focused on, so he is keenly
    aware of this. That is why he spoke about this in the State of
    the Union. I believe the Department of Justice is doing some
    studies about what--research about what kinds of programs
    really work. And so I look forward to the end of that research
    and sitting down with you and talking to you about what would
    be the most effective way to deal with this problem.
        Senator Brownback. I think the American people want us to
    get outcomes, things that work. Welfare reform was something
    that worked, the country needed. I really think this is a key
    area where we have got a chance to really do something that
    will work, and it is going to help, and I think it is something
    we can work across the aisles to get done.
        A second issue you raised with Senator DeWine during your
    comments about things you want to be known for, and that is the
    issue on obscenity laws and the enforcement of that. I held a
    hearing the last session of Congress on the issue of these--not
    obscenity laws but on addictions to pornography. And it was an
    amazing set of experts that came forward talking about the
    addictiveness of pornography. It has grown much more potent,
    much more addictive, much more pervasive, much more impactful.
    You have cited teenage children that you have and that I have
    in our private conversation.
        There has been criticism of the Department of Justice for
    not enforcing obscenity laws, work on these issues, on
    community standards. I would hope that this would be something
    that you would take a look at, maybe make some personnel shifts
    within the Department of Justice to address this from the law
    standards on community standards, look at the addictiveness and
    the nature of it. There are, obviously, certain guarantees of
    First Amendment rights, but there are also these laws that have
    been upheld by community standards, upheld by the Supreme Court
    that can be and I really think should be enforced given the
    nature of this very potent, what one expect called a delivery
    system in this country. And I hope you can look at that.
        Judge Gonzales. I will commit to you that I will look at
    that, Senator.
        Senator Brownback. I believe you said your wife had some
    interest in this, and I may recruit her on this topic as well,
    even though she is not up for confirmation here, work with her
    as well.
        Finally, there is a topic I wanted to give you a chance to
    address. While you were on the Texas Supreme Court, in June of
    2000--and this came up during Judge Owen's hearing--of a case
    on a parental consent law that you wrote, I believe, the
    majority opinion on, and this was upholding the decision
    regarding the parental notification law where a minor sought an
    abortion. In this particular case, a minor was seeking an
    abortion without, as was required by Texas law, notification of
    her parents. You had some pretty strong words for those in the
    minority opinion and thought the law should be applied as
    written and was affirmed by the trial court.
        I just wanted to give you a chance to express your opinion
    on this case. It came up often during Judge Owen's confirmation
    hearing here. You were cited on the other side of that often.
    And I would like to get your thoughts on that here for the
    record. Do you believe that the interpretation of duly enacted
    legislation is open to interpretation by the courts in a manner
    not consistent with a strict reading of the law, that is, the
    underlying issue involved with this?
        Judge Gonzales. Thank you for that question, Senator. Let
    me just say at the outset regarding Judge Owen, I served with
    Judge Owen on the Texas Supreme Court, and I think she did a
    splendid job, a superb job as a judge. I think she would make a
    superb job on the Fifth Circuit, and that is why her name was
    recommended to the President.
        There were a series of very contentious opinions written in
    connection with six cases, I think involving four minor
    daughters, in the year 2000 while I was on the court. It is
    true that the legislature made a policy judgment that they
    wanted more--they wanted parents more involved with the
    abortion decisions of their minor daughters. But the
    legislature did not make the parental rights absolute. They
    provided three exceptions. And most of the decisions of the
    court revolved around interpreting those exceptions, allowing a
    judicial bypass.
        My comment about an act of judicial activism was not
    focused at Judge Owen or Judge Heck. It was actually focused at
    me. What I was saying in that opinion was that given my
    interpretation of what the legislature intended by the words
    that they used in terms of having a minor not totally informed
    or well informed but sufficiently well informed, and the
    structure of the act, it was in my judgment that the
    legislature did intend the judicial bypasses to be real. And
    given my conclusion about what the legislature intended, it
    would have been an act of judicial activism not to have granted
    the bypass in that particular case.
        If someone like Judge Owen in that case reached a different
    conclusion about what the legislature intended, it would have
    been perfectly reasonable for her to reach a different outcome.
    But as to the words that have been used as a sword against
    Judge Owen, let me just say that those words were related to me
    in terms of my interpretation of what the legislature intended,
    again, through the words of the statute and the way that the
    judicial bypass procedure would actually operate in practice.
        Senator Brownback. I thank you and your family for being
    here--
        Chairman Specter. Senator Brownback, your--
        Senator Brownback. --and I look forward to your
    confirmation.
        Chairman Specter. Senator Brownback, your red light is on.
        Judge Gonzales. Thank you, Senator.
        Chairman Specter. Senator Durbin?

     STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
                           STATE OF ILLINOIS

        Senator Durbin. Thank you, and congratulations, Mr.
    Chairman, on your new appointment. I am looking forward to
    working with you, and I thank you for your phone call over the
    holiday break to talk about some of the big issues we face.
        Chairman Specter. Thank you.
        Senator Durbin. It was a welcome opportunity to discuss a
    lot of things that we will concern ourselves with.
        Judge Gonzales, thank you for being here. My thanks to your
    family for their patience in waiting through all these
    questions and those that will follow.
        I think that Senator Specter has done a great service to
    the White House by moving this hearing as quickly as he has,
    January 6th, two days after the swearing-in of the new Members
    of the Senate. It is understandable this is a critically
    important job for the safety of America, and we need to fill it
    as quickly as we can.
        I am sorry that there has been some breakdown between this
    Committee and the White House about the production of
    documents. As I told you in our office meeting, it is very
    difficult for us to sit on this side of the table and believe
    that we have the whole story when the White House refuses to
    produce documents that tell us what happened about many of the
    issues that we are raising. But based on what we do have, I
    want to try to get into a few specific questions on the issue
    of torture.
        The images of Abu Ghraib are likely to be with us for a
    lifetime and beyond, as many images of war can be. The tragedy
    of Abu Ghraib and the embarrassment and scandal to the United
    States are likely to be with us for decades and beyond.
    Yesterday we paid tribute to our colleague Congressman Robert
    Matsui, not only a great Congressman but particularly great in
    light of the fact that as a Japanese-American, he was sent to
    an internment camp by his Government that did not trust his
    patriotism or the patriotism of his family. That shameful
    chapter in American history is recounted even today more than
    50 years later as we think about it. I am afraid that the
    torture that occurred in Abu Ghraib and Guantanamo will
    similarly be recounted 50 years from now as a shameful chapter
    in American history.
        When you answered Senator Kohl, you said we are going to
    divide what happened in Abu Ghraib into two areas: physical and
    sexual torture, never acceptable; some idea of fun by depraved
    people. And you condemned it. Then a second area, interrogation
    techniques that went too far, and you conceded that those
    interrogation techniques might have migrated or started at
    Guantanamo and somehow made it to Iraq.
        My question to you is: Would you not also concede that your
    decision and the decision of the President to call into
    question the definition of torture, the need to comply with the
    Geneva Conventions, at least opened up a permissive environment
    for conduct which had been ruled as totally unacceptable by
    Presidents of both parties for decades?
        Judge Gonzales. Thank you, Senator, for the question. Maybe
    perhaps I did misspeak. I thought I was clear that I was not
    dividing up the categories of abuse into two categories, that
    that was really--that division had been done within these
    reports themselves. And those reports did indicate that there
    was some migration as to the second category. But the reports
    and the briefings were fairly clear in my judgment, and others
    may disagree, that the reasons for the migration were because
    there was inadequate training and supervision, that if there
    had been adequate training and supervision, if there had been
    adherence to doctrine, then the abuses would not have occurred.
    And that's what I see in the reports and what I see in the
    briefings.
        As to whether or not there was a permissive environment,
    you and I spoke about this in our meeting. The findings in
    these eight reports universally were that a great majority, an
    overwhelming majority of our detention operations have been
    conducted consistent with American values and consistent with
    our legal obligations. What we saw happen on that cell block in
    the night shift was limited to the night shift on that cell
    block with respect to that first category, the more offensive,
    the intentional severe physical and the sexual abuse, the
    subject of those pictures. And this isn't just Al Gonzales
    speaking. This is what, if you look at it, the Schlesinger
    report concludes. And so what you see is that you have got this
    kind of conduct occurring at the night shift, but the day
    shift, they don't engage in that kind of conduct because they
    understand what the rules were.
        And so I respectfully disagree with the characterization
    there was some sort of permissive environment. That's just not
    the case. The facts don't bear that out, sir.
        Senator Durbin. Then let's go to specific questions. Can
    U.S. personnel legally engage in torture or cruel, inhuman, or
    degrading treatment under any circumstances?
        Judge Gonzales. Absolutely no. Our policy is we do not
    engage in torture.
        Senator Durbin. Good. I am glad that you have stated that
    for the record. Do you believe that there are circumstances
    where other legal restrictions like the War Crimes Act would
    not apply to U.S. personnel?
        Judge Gonzales. Senator, I don't believe that that would be
    the case, but I would like the opportunity to--I want to be
    very candid with you and obviously thorough in my response to
    that question. It is sort of a legal conclusion, and I would
    like to have the opportunity to get back to you on that.
        Senator Durbin. I will give you that chance.
        In your August memo, you created the possibility that the
    President could invoke his authority as Commander in Chief to
    not only suspend the Geneva Convention but the application of
    other laws. Do you stand by that position?
        Judge Gonzales. I believe that I said in response to an
    earlier question that I do believe it is possible,
    theoretically possible, for the Congress to pass a law that
    would be viewed as unconstitutional by a President of the
    United States. And that is not just the position of this
    President. That has been the position of Presidents on both
    sides of the aisle.
        In my judgment, making that kind of conclusion is one that
    requires a great deal of care and consideration, but if you're
    asking me if it's theoretically possible that Congress could
    pass a statute that we view as unconstitutional, I'd have to
    concede, sir, that I believe that's theoretically possible.
        Senator Durbin. Has this President ever invoked that
    authority, as Commander in Chief or otherwise, to conclude that
    a law was unconstitutional and refused to comply with it?
        Judge Gonzales. I believe that I stated in my June briefing
    about these memos that the President has not exercised that
    authority.
        Senator Durbin. But you believe he has that authority? He
    could ignore a law passed by this Congress, signed by this
    President or another one, and decide that it is
    unconstitutional and refuse to comply with that law?
        Judge Gonzales. Senator, again, you are asking me whether
    hypothetically does that authority exist, and I guess I would
    have to say that hypothetically that authority may exist. But
    let me also just say that we certainly understand and recognize
    the role of the courts in our system of Government. We have to
    deal with some very difficult issues, very, very complicated.
    Sometimes the answers are not so clear.
        The President's position on this is that ultimately the
    judges, the courts will make the decision as to whether or not
    we've drawn the right balance here. And in certain
    circumstances, the courts have agreed with administration
    positions, and in certain circumstances, the courts have
    disagreed. And we will respect those decisions.
        Senator Durbin. Fifty-two years ago, a President named
    Harry Truman decided to test that premise in Youngstown Steel
    and Tube v. Sawyer in the Supreme Court. The Supreme Court
    said, as you know, President Truman, you are wrong, you do not
    have the authority to decide what is constitutional, what laws
    you like and do not like.
        I am troubled that you would think, as our incoming
    Attorney General, that a President can pick and choose the laws
    that he thinks are constitutional and ultimately wait for that
    test in court to decide whether or not he is going to comply
    with the law.
        Judge Gonzales. Senator, you asked me whether or not it was
    theoretically possible that the Congress could pass a law that
    we would view as unconstitutional. My response was that
    obviously we would take that very, very seriously, look at that
    very carefully. But I suppose it is theoretically possible that
    that would happen.
        Let me just add one final point. We in the executive
    branch, of course, understand that there are limits on
    Presidential power. We are very, very mindful of Justice
    O'Connor's statement in the Hamdi decision that a state of war
    is not a blank check for the President of the United States
    with respect to the rights of American citizens. I understand
    that and I agree with that.
        Senator Durbin. Well, let me just say in conclusion, I am
    glad to hear that. I am troubled by the introduction. The
    hypothetical is one that you raised in the memo relative to
    torture as to whether the President had the authority as
    Commander in Chief to ignore the Geneva Conventions or certain
    other laws. This is not something that comes from our side of
    the table of our own creation. It is your creation, the
    hypothetical you created.
        My concern is this: I do not believe that this Government
    should become a symbol for a departure from time-honored
    traditions where we have said that we will not engage in
    torture, directly or indirectly by rendition--which I hope to
    ask you about in the next round--that we will stand by the same
    standards of Geneva Conventions since World War II and,
    frankly, dating back to Abraham Lincoln and the Civil War, in
    terms of the treatment of prisoners.
        I am concerned that that round of memos that went through
    the Department of Justice, Mr. Bybee, into the Department of
    Defense, into Guantanamo, and then migrated somehow to
    interrogation techniques in Abu Ghraib has stained our world
    reputation. I want to win this war on terrorism, but I do not
    want to do it at the expense of our soldiers who may someday
    become prisoners themselves.
        Thank you, Mr. Gonzales.
        [The prepared statement of Senator Durbin appears as a
    submission for the record.]
        Chairman Specter. Senator Coburn?
        Senator Coburn. Mr. Chairman, thank you very much, and I
    appreciate the opportunity to share this with you, and
    congratulations on your chairmanship. I look forward to working
    with you.
        Chairman Specter. Thank you.

    STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
                                OKLAHOMA

        Senator Coburn. Mr. Gonzales, thank you so much. I enjoyed
    our visit in the office. I think it is very important what has
    not been said here today. We have talked about mistakes that
    have been made. We have talked about problems. But we always
    fail to emphasize the fact that the vast majority of the people
    who serve this country are doing it right, honorably, and in an
    aggressive, tolerable way that represents our values each and
    every day. And to not bring that forward and to always talk
    about the negative does a disservice to our country, our
    heritage, and to our future. And I think we ought to be very
    thankful for the vast majority of Americans that are serving
    our country today and are doing it in an honorable way. And
    that would include you, sir, as you come forward and serve and
    have served our country.
        I want to follow on a couple of things. Number one, I have
    an interest in prison reform as well with Senator Brownback,
    but more specifically in terms of drug possession and drug
    addiction. I am convinced that we are handling that problem
    wrong in this country. As a physician, I believe that we ought
    to be doing drug treatment rather than incarceration, and I
    look forward to working with you in terms of emphasizing that,
    not only in terms of the faith-based ministries in prison but
    also the direction towards drug treatment, because we know we
    can be successful there. And when we fail to do that, we do a
    disservice not only to those people that are incarcerated, we
    do a disservice to our public.
        I am going to be rather short, but I am the only non-
    attorney on this panel, I think. And I am reminded in Article
    I, section 5 of the Constitution, it says, ``Each House may
    determine the rules of its proceedings.'' That is what our
    Founders said. And so I am not confused at all about the
    ability to change the rules in the operation of the Senate even
    though it has a wonderful historical privilege.
        I also am reminded that in the United States v. Balin, the
    Supreme Court unanimously upheld that, and they said two
    things: one, when the Constitution is silent, the rule is
    majority vote; and, number two, a majority of either chamber
    can always retain the power to draft and enact its own rules
    and procedures. So I do not think we ought to allow confusion
    of what the Constitution actually says versus what potential
    may come in the future. And I think we ought to deal with what
    is here.
        The other thing that I think is important is to recognize
    the President's right to nominate and our right to confirm, and
    to do that in a rigorous way. I appreciate the other side of
    the aisle and the questions that they have had of you. I think
    they are pertinent. I think that the questioning that Senator
    Graham had I think raises significant questions for us to learn
    from, especially in terms of the Code of Military Justice that
    has to be inculcated in decisions that go down the line. But I
    also want to ask just a couple of questions.
        Are you aware of any war that this country has been
    involved in in its history in which mistakes of human beings
    have not been made and brought to light?
        Judge Gonzales. Well, as you well know, as I well know,
    human beings are not perfect. Mistakes happen. Abuses occur. We
    know that that's true in all conflicts. Abuses occur not just
    in connection with military operations; abuses occur here in
    our prisons. It is regrettable, and when we find out the abuses
    have occurred, we need to correct them and hold people
    accountable. But it is true that abuses occur and have
    occurred, as far as I know, in all military conflicts.
        Senator Coburn. And is it, to your knowledge, a policy of
    this administration at any time to tolerate torture or inhumane
    behavior towards any of the detainees that we have?
        Judge Gonzales. It is not the policy of the administration
    to tolerate torture or inhumane conduct toward any person that
    the United States is detaining.
        Senator Coburn. And then, finally, I would ask as you look
    at the Geneva Convention in Iraq and the difference that we
    apply to that versus that against the Taliban and al Qaeda, was
    there a consideration for those who are not Iraqis in that
    combatant field? In other words, did the Geneva Convention
    necessarily apply to all combatants in Iraq whether or not they
    were Iraqi citizens or they were foreign mercenaries?
        Judge Gonzales. That question was considered by the
    Department, and there was a fear about creating a sanctuary for
    terrorists if we were to say that if you come and fight against
    America in the conflict with Iraq that you would receive the
    protections of a prisoner of war. And I believe the
    Department--I know the Department issued, I believe some
    guidance, the Department of Justice issued some guidance with
    respect to whether or not non-Iraqis who came into Iraq as part
    of the insurgency, whether or not they would also or likewise
    enjoy the protections of the Geneva Convention. And I believe
    the conclusion was that they would not. But I would need to go
    back and confirm that, Senator.
        Senator Coburn. Thank you.
        I have no additional questions, and I yield back the
    balance of my time.
        Chairman Specter. Thank you very much, Senator Coburn, and
    thank you, Judge Gonzales.
        It is now 12:55. A room has been set aside for Judge
    Gonzales, and we have conferred with him, and he thinks an hour
    would be sufficient for lunch. So the Committee will resume at
    2 o'clock. And for the information of everyone, there is a nice
    cafeteria in the basement of this building.
        See you all at 2:00.
        [Whereupon, at 12:55 p.m., the Committee was recessed, to
    reconvene at 2:00 p.m., this same day.]

        AFTERNOON SESSION[2:00 p.m.]
        Chairman Specter. The hour of two o'clock having arrived,
    we will now proceed with the confirmation hearing on the
    President's nominee, Judge Alberto Gonzales, to be Attorney
    General of the United States.
        In the morning we completed a round of questioning by every
    Senator present, and we will now proceed on round two, again
    with a 10-minute round.
        I pick up on comments made by Senator Brownback and Senator
    Coburn this morning about their concern about what happens in
    our correctional facilities, our prison facilities. Senator
    Brownback is looking for improvements. Senator Coburn made the
    cogent comment about rehabilitation for drug addicts, and this
    is an item which is going to be a priority for the Judiciary
    Committee this year and next year, and into the foreseeable
    future.
        The problem of violent crime is pervasive in America. It is
    a problem which I have been working on since my days as an
    Assistant District Attorney, and I will not mention the year,
    and that is District Attorney of Philadelphia. And then on this
    Committee, the first bill which I introduced was the Armed
    Career Criminal Bill shortly after I was elected to the Senate,
    and as Attorney General Barr described it as one of the most
    effective weapons against violent crime because it deals with
    career criminals, where you have three or more major offenses,
    robbery, burglary, drug sales, kidnapping, and caught in the
    possession of a firearm, and there is a mandatory 15-year to
    life sentence. That has been a very effective weapon.
        I found when I was DA that many defendants would get
    continuances in the State courts and wear out the judicial
    system, but if they ran the risk of going to Federal court with
    a mandatory 15 years to life, you could get them tried and
    perhaps get 5- to 10-year sentences or something substantial,
    and it has been enormously helpful in putting the pressure on
    State court adjudications.
        The other side of the coin from dealing with the violent
    criminals is the issue of realistic rehabilitation. My own
    experience suggests to me that violent crime in America could
    be cut enormously, perhaps by as much as 50 percent. It is
    always hard to quantify. If you take the career criminals and
    put them in jail, you really just throw away the key. Seventy
    percent of all major crimes are committed by career criminals,
    but then there is the other group, where you need literacy
    training, and job training, and detoxification and
    rehabilitation on drugs. It is no surprise when a functional
    illiterate without a trade or skill gets out of jail, they go
    back to a life of crime. So you have two very, very important
    societal interests. One is protecting the law-abiding citizens
    from repeaters, recidivists, and the other is to try to take
    people out of the crime cycle because you know the first
    offenders, juveniles, even second offenders and beyond are
    going to be returning to our streets.
        My question for you, Judge Gonzales, is that if confirmed,
    what kind of a priority would you assign to try to turn our
    correctional system into a system which really corrects with
    realistic rehabilitation?
        Judge Gonzales. Thank you, Senator, for that question. I
    think I agree with you, that for people who commit violent
    crimes and are career criminals, they should remain in our
    prisons, but there is a segment of the prison population,
    juveniles, for an example, as you mentioned, and first-time,
    maybe sometime second-time offenders, who can be rehabilitated.
    And as I said earlier in a response to a question, I think it
    is not only smart but I think it's the right thing to do. I
    think it is part of a compassionate society to give someone
    another chance, and oftentimes, unfortunately, it's a question
    of limited resources, but we have to find a way around this.
    Obviously, it's an issue that's equally important in our State
    criminal justice system, but it's important to me. We need to
    do what we can to enforce the laws, make sure the laws are
    being enforced, and obviously that would be a big priority for
    me as Attorney General.
        Chairman Specter. Well, it is going to require very
    substantial resources to make it work. Literacy training and
    job training and drug rehabilitation are items which are going
    to require some money in advance. I am confident that it would
    pay very major rewards because the cost of crime in America,
    burglaries, robberies, car thefts, homicides, and the tragedy
    of suffering rape and physical abuse and kidnapping, just the
    costs are incalculable, so that is something which this
    Committee and I will be working with you on very closely, and
    we need to get the administration involved because it is a
    matter of resources.
        Let me turn now to a subject which I raised in the opening
    statement, and that is the potential for use of our antitrust
    laws to deal with OPEC and the international oil cartels which
    have engaged in violations of our antitrust laws by limiting
    production in a calculated way, and then raising prices. When
    the supply goes down, the prices go up. And this is a subject
    which I have long been interested in. We have had hearings in
    the Antitrust Subcommittee. It is a subject that I wrote to
    President Clinton about back on April 11th in the year 2000 and
    wrote to President Bush about in the year April 25th, 2001, and
    without objection, these two letters will be made part of the
    record.
        They set forth an approach on enforcing the antitrust laws,
    noting that OPEC is not immune from the act of state doctrine,
    which removes foreign governments from our courts when they are
    engaged in commercial activity. If they are engaged in
    governmental activities, and succinctly stated it is their
    business, but it is not their business if they are engaged in
    commercial matters. We all know the soaring prices at the pump
    and the increase in the cost of heating and the tremendous
    expenses. A subcommittee which I chair on Labor Health Human
    Services and Education, puts up more than a billion dollars a
    year on LIHEAP, low-income energy assistance. I would be
    interested to know your thinking, Judge Gonzales, on the
    potential for using our antitrust laws in this field.
        Judge Gonzales. Senator, I have not had the opportunity to
    review the two letters that you just discussed, and I have not
    spent a great deal of time looking at this issue. I'm sure
    there are folks at the Department of Justice that have done so,
    and obviously, if confirmed, I would like to visit with them.
    It seems to me of course, that we need first of all to promote
    competition. We need to make sure that everyone's operating on
    a level playing field to the extent possible.
        I do have some concerns. I haven't done the analysis it
    appears that you have. I do have some concerns about the
    foreign relations impact, the diplomatic impact, upon taking
    such an antitrust action against OPEC, and so in addition to
    legal considerations it seems to me there are foreign relations
    considerations, and obviously I would be very interested in
    receiving the views of the State Department. But I would look
    forward to working with you and having further discussions with
    you about this.
        Chairman Specter. I am glad you mentioned the foreign
    relations aspects because I think those are exactly the
    considerations we ought to ignore. The Saudis are not our
    friends, and that is a subject which I got very deeply involved
    in when I chaired the Intelligence Committee back in 1995 and
    1996, and regrettably, we make too many decisions on foreign
    policy, where we are having the cost paid by consumers of OPEC
    oil, by the Saudis and by our foreign relations considerations,
    and there is no doubt about the importance of not having Saudi
    Arabia go the way that Iran went, but it seems to me we have to
    segregate these issues and not allow the foreign policy
    considerations to put a heavier burden on one segment of our
    population when it is something that ought to be borne by the
    country as a whole. If it is something in our national interest
    that we have to undertake certain financial and economic
    losses, then so be it. But this is a subject matter going easy
    on the Saudis which applies in fields other than what OPEC oil
    does.
        Judge Gonzales. Senator, if I may respond to that. I'm not
    suggesting that we go easy on the Saudis. What I'm suggesting
    is it seems to me that it should be a consideration what will
    be the ramifications on our foreign relations if we take an
    action against OPEC is all I'm suggesting.
        Chairman Specter. I am about to--no, I am not about to.
    There goes the red light.
        Senator Leahy.
        Senator Leahy. If you want to go further, I am the only one
    waiting.
        Chairman Specter. No, no, no. I am going to stick to 10
    minutes as an example. If it is good for the goose, it is good
    for the gander. As the saying goes, if it is good for the
    Chairman, et cetera.
        Senator Leahy. Judge, I am going to go back to the so-
    called Commander in Chief override. I listened to your answer
    to other Senators, and I checked the transcript, and frankly,
    you never answered my question. I still want to know whether
    you think the President can suspend the laws prohibiting
    torture and thus immunize torturers. I think there is a pretty
    simple answer. I think the answer is just no, the President
    cannot suspend such laws. Your response to me in the earlier
    round, your comments at your June 2004 press conference, show
    you disagree, that you presume such power does exist. Only the
    President has not exercised it yet. I think this is kind of
    fundamental. Your view of the scope of executive power is
    something we need to understand. If you are going to be the
    chief law enforcement officer of this country, and if you have
    this view that there is some extraordinary executive power that
    allows the President to override the laws of the United States,
    especially something so fundamental, we should know because
    that sets in motion a whole lot of other things. We saw this in
    the Nuremberg trials, and I am not in any way equating our
    President with the leaders in Germany. What I am saying though
    is that you had people that said, well, we were just following
    orders. If the President is able to set aside laws that have
    been set in place, those who do things that are wrong can just
    say, well, we were just following orders. But as the United
    States has always said, and every President has said, this is
    not a defense.
        So I am going to ask you again, can the President immunize
    from prosecution those who commit torture under his order? I am
    not suggesting the President has made such orders, but can a
    President immunize from prosecution those who would commit
    torture under his order?
        Judge Gonzales. Senator, one thing that I failed to
    emphasize in the first round is of course if confirmed by the
    Senate, I will take an oath of office to defend the laws of
    this country.
        Senator Leahy. We all do.
        Judge Gonzales.--and that means the laws passed by the
    Congress. So I was responding to a hypothetical question about
    whether or not is it theoretically possible that Congress could
    pass a law that a President would not follow because he
    believed it was unconstitutional, a position that is not unique
    to this President, but a position--
        Senator Leahy. But I am not asking you a hypothetical
    question. I am asking about a particular law, the torture law.
    Can the President ignore that law, say it does not apply, and
    immunize people who then committed torture?
        Judge Gonzales. I believe my earlier response, Senator, was
    that that is a hypothetical situation that is not going to
    happen. This President is not going to order torture. I will
    also say--
        Senator Leahy. Could a President?
        Judge Gonzales. Senator, this President is not going to
    order torture. We don't condone it. I will say with respect to
    the opinion, the August 1st opinion has been withdrawn. I
    reject that opinion. It has been rejected. It does not
    represent the views of the executive branch. It has been
    replaced by a new opinion that does not have that discussion.
    And so as far as I am concerned, it is not an issue in which
    the executive branch has taken a position on it. I am not
    prepared in this hearing to give you an answer to such an
    important question.
        Senator Leahy. Let me say this. The order stayed there for
    a long time until the press got hold of it. Then there is a lot
    of scrambling around, and on the first three-day weekend prior
    to your confirmation, all of a sudden they come up, oh, wait a
    minute, we have a new order. I am not going to be cynical, but
    some might be. Let me put forward another example. The
    President has claimed authority to lock up a U.S. citizen
    arrested in the United States and hold him incommunicado for an
    indefinite period, without access to a lawyer or a family, and
    without real access to the courts. That is not hypothetical.
    The President has claimed that authority. Does the President
    have that authority?
        Judge Gonzales. The Supreme Court in the Hamdi decision
    said yes, the President of the United States does have the
    authority--
        Senator Leahy. Hamdi was the case where he was arrested on
    the battlefield in Afghanistan. What about a case here, an
    American citizen, in the United States?
        Judge Gonzales. Senator, the Supreme Court has not
    addressed that decision straight on, but in Hamdi the Court did
    say that the United States could detain am American citizen
    here in this country for the duration of the hostilities
    without filing charges.
        Senator Leahy. Do you think that here in the United States
    the President has authority to have a citizen arrested, a U.S.
    citizen, held incommunicado for an indefinite period, without
    access to a lawyer or family?
        Judge Gonzales. Senator, the--
        Senator Leahy. I asked you if the President has that. Now,
    in Hamdi of course they were talking about the AUMF, the
    authorization for the use of military force, the Congress had
    voted on for military force in Afghanistan. Hamdi was picked up
    in Afghanistan. We had a second case, Padilla. There the Court
    kind of punted it, they did not answer the question. They have
    said the jurisdiction was wrong, it was brought in the wrong
    court. It should have been brought habeas corpus in another
    court.
        All I am asking, does the President, the President today
    have the authority to hold a U.S. citizen incommunicado for an
    indefinite period of time in the United States?
        Judge Gonzales. Well, the President does have the authority
    under Hamdi. That is what the Court said, is you could hold an
    American citizen. Let me be very, very clear. The United States
    Government never took the position that a U.S. citizen detained
    by its Government could not challenge the detention by the
    Government.
        Senator Leahy. But they are held incommunicado and have no
    access to a lawyer or a court. Is that not kind of saying,
    gosh, you could appeal it everywhere else. We are not going to
    let you out of the cell, we are not going to let you talk to
    anybody, we are not going to let you have the court. We just
    want you to know you got all your rights.
        Judge Gonzales. Senator, respectfully, not only did Hamdi
    have access to the courts, he had such good access and such
    good representation by counsel that his case was heard all the
    way by the highest court in the land. So, the decision as to
    whether or not to provide access to counsel is probably one of
    the most difficult decisions that we have to confront because
    there are competing interests here. As a lawyer, I have a great
    deal of concerns about not providing lawyers to American
    citizens that are being detained by this country. On the other
    hand, there is a competing interest of gathering information
    that this American citizen, this enemy combatant, may have
    information that may save the lives of American citizens, and
    our position has been is that we provide counsel as quickly as
    possible that the American citizen--I'm sorry, Senator, I
    didn't mean to interrupt you.
        Senator Leahy. No, no. I was just going to say we can go
    back there, and we will have to, because we are talking about a
    perfect world. If you do a dragnet, as we have found out, we
    end up holding people for a long time, and then say, whoops, we
    have got the wrong guy. We have--
        Chairman Specter. Judge Gonzales, did you finish your last
    answer? Feel free if you want to.
        Judge Gonzales. That's fine. Thank you, Senator.
        Senator Leahy. Let us take the Bybee memo. It is a lengthy
    document, 50 single-spaced pages, that relies upon a whole wide
    range of sources. I think somebody has already put it in the
    record. It references, for example, health care administrative
    law at least five times, and that is not the issues we are
    rasing with you. But you know one thing it never does? It never
    cites this document, which you would think would be the best
    thing to do, the Army Field Manual on Intelligence
    Interrogation.
        Now, the Army Field Manual on Intelligence Interrogation is
    something that holds all the experience of this Nation for 200
    years, the things we have done right, and the things we have
    done wrong. The memo tells our people what they can do, but not
    once does it mention this, and this is the manual that says
    U.S. policy expressly prohibits acts of violence or
    intimidation including physical or mental torture, threats,
    insults or exposure, inhumane treatment as a means to or aid
    interrogation. You think it is at all troubling that Bybee
    never references it? I mean if it had, if it incorporated this,
    we probably never would have had the issue raised.
        Judge Gonzales. Senator, the work of OLC in connection with
    interpreting the anti-torture statute was an analysis of that
    domestic statute in Title 18. The fact that the opinion covers
    only conduct related to that statute doesn't mean that there
    might not be other legal prohibitions in which our military
    soldiers might be bound. OLC was looking only at an
    interpretation of that domestic statute, and the fact that
    there may be other laws or regulations that might be binding,
    of course, they would not be excused from following those other
    laws and regulations by virtue of the opinion, which again, was
    focused only in interpretation of a statute in Title 18.
        Chairman Specter. Senator Cornyn.
        Senator Cornyn. Thank you, Mr. Chairman.
        Judge Gonzales, I know Senator Durbin has raised the issue
    of whether a President might try to uphold the Constitution by
    declining to enforce statutes that are unnecessary, and I found
    the notion fascinating from a legal standpoint, and so I asked
    staff to look at some of the OLC opinions during the Clinton
    administration during the lunch break, and here is what we
    found.
        In 1994, the Office of Legal Counsel, during the Clinton
    administration, issued an opinion authored by Walter Dellinger,
    who is a well-known constitutional legal scholar, that said,
    ``Let me start with a general proposition that I believe to be
    uncontroversial. There are circumstances in which the President
    may appropriately decline to enforce a statute that he views as
    unconstitutional,'' and of course Presidents of both parties
    famously reject the War Powers Resolution as unconstitutional.
    Moreover, in the Dickerson case the Clinton administration
    refused to defend a Federal statute against constitutional
    attack in the courts. The Supreme Court had to look to special
    counsel to offer a defense of that statute. It seems to me that
    this administration is being attacked for something that the
    Clinton administration did on a--if not a frequent basis, did
    at least more than once. Would you care to comment on that?
        Judge Gonzales. As I said earlier, Senator, I think that we
    should look--the executive branch should always look very
    carefully with a great deal of seriousness and care about
    reaching a decision that a statute passed by Congress is
    somehow unconstitutional and should not be followed. Certainly
    if I were confirmed, I would take my oath very, very seriously
    to try to defend any Act passed by Congress, but it does appear
    to me, based upon my review of history and precedent is that
    Presidents and White Houses on both sides of the aisle have
    taken the consistent position that a President may choose to
    not enforce the statute that the President believes is
    unconstitutional.
        Senator Cornyn. I would like to shift subjects a little bit
    to return to something we have been talking about off and on
    all day, and that is the policy reasons behind the Geneva
    Convention decision, and I hope that I have been able to
    establish the position the administration takes and the
    position that you advocated for enjoys broad support in the
    legal community, and by scholars of international law, and we
    can go back to that again if some of my colleagues still
    disagree with me and the administration on that. But I can
    think of at least four reasons, four important reasons why the
    President's legal determination was correct, and this has to do
    again with giving terrorists, conferring upon them the status
    of prisoners of war as provided for under the Geneva
    Convention.
        First of all, is it not true that the Geneva Convention
    gives prisoners of war rights and protections that could
    directly endanger their captors if given to combatants who do
    not respect the laws of war? And if you agree with that, could
    you please talk about some of them?
        Judge Gonzales. If a determination were made that the
    Geneva Convention applied in our conflict with al Qaeda, we
    would have to provide certain things, certain access to certain
    items of comfort that could be used as weapons against our
    soldiers. Also we would be limited in our ability to put them
    in individual cells. They would have the right to congregate
    together and to talk, to talk about strategy and responding to
    interrogations, to perhaps talk about how to attack a guard, or
    perhaps talk about how to plan an escape. The additional
    problem with providing Geneva protections, prisoner of war
    protections to terrorists who do not abide by the laws of war,
    is that we would in essence provide combat immunity for their
    engaging in war crimes.
        Senator Cornyn. If I can interrupt you briefly, is that not
    what John Walker Lindh tried to do, the ``American Taliban'' I
    believe he was known as? He claimed an immunity by virtue of
    his prisoner of war status against criminal prosecution for
    committing war crimes; is that right?
        Judge Gonzales. That's my recollection.
        Senator Cornyn. When I traveled to Guantanamo Bay about a
    year or so ago to see for myself the facilities and the
    conditions under which detainees were kept, I was interested to
    learn about certain techniques, here again, humane techniques,
    but techniques nonetheless for eliciting cooperation and
    intelligence from some of these detainees. For example, the
    providing of certain incentives, for example, what the food
    that was provided. I remember specifically one instance where
    detainees who cooperated a little more got to cook out on a
    grill, basically, or food cooked out on a grill as opposed to
    the institutional type food they got. They were permitted to
    move from individual cells into group settings where they could
    make more arrangements for their own comfort and convenience.
    Are those the sorts of things that we could do to elicit
    actionable intelligence if the Geneva Convention applied and
    these were conventional prisoners of war?
        Judge Gonzales. Senator, if the Geneva Conventions applied,
    you would be prohibited from providing incentives in order to
    induce cooperation. I, like you, have been down to Guantanamo,
    and much of the operation of the bases at Guantanamo are to
    induce cooperation, and we would not be able to do that if the
    Geneva Conventions applied.
        Senator Cornyn. And indeed, I think it has been recounted
    time and time again, one reason we do not use torture as a
    matter of policy, period, but one pragmatic reason why it does
    not work is because people will say things under those
    circumstances that do not provide good actionable intelligence.
    So I think one of the things I observed and was really
    fascinated to see in practice was the use of some of these
    essentially incentives that provided for greater cooperation,
    but gave us the results we needed, which in fact have saved
    American lives.
        Let me ask you, why would extending the Geneva Convention
    to terrorists, why would that have a negative impact on
    international law? What would that do to any incentive that
    might exist on the part of our enemies to comply with the laws
    of war?
        Judge Gonzales. Senator, it seems to me, it seems logical
    to me that you want to reward good behavior, and if you want
    members of al Qaeda to fight according to the laws of war, you
    don't do that by providing them prisoner of war legal
    protections.
        Now, let me emphasize, and I can't emphasize this strongly
    enough, there are certain basic values that this country stands
    for and this President certainly believes in, and those values
    are reflected in the directives that he has issued regarding
    the treatment of al Qaeda detainees, and those who do not meet
    those standards are going to be held accountable. In addition,
    there are of course other legal restrictions. For example, the
    Convention Against Torture, that would be applicable, Army
    regulations that would be applicable. All those exist to
    conscript the type of conduct that our military can engage in
    with respect to detainees. And so we want to of course meet
    basic standards of conduct with respect to treatment of al
    Qaeda, but information is very, very important, and if there
    are ways we can get that information, for example, through
    inducements, it seems to me that there is a responsibility of
    this government to exercise those needs.
        Senator Cornyn. Finally, let me just say that that opinion
    that you just expressed finds you in pretty good company. I
    have in my hand a legal textbook called ``The Legal Status of
    Prisoners of War'' by Rosas, Alan Rosas, that says on page 344:
    The only effective sanction against perfidious attacks in
    civilian dress is a deprivation of prisoner of war status. And
    I take it you would agree with that conclusion?
        Judge Gonzales. Yes, sir.
        Senator Cornyn. Thank you, Mr. Chairman.
        Chairman Specter. Thank you, Senator Cornyn.
        Senator Kennedy?
        Senator Kennedy. Thank you very much, Mr. Chairman.
        I neglected in my first round to indicate how pleased I am
    with your chairmanship. I hope it is not too late to say that I
    have enjoyed working with Senator Specter over a long, long
    period of time, since he has been on the Committee, and look
    forward to his service on this Committee. I join with those who
    think that this Committee is well served with this Chairman.
        Chairman Specter. Thank you very much, Senator Kennedy.
        Senator Kennedy. Now, Mr. Gonzales, let me, if I could,
    there are sort of three general areas I want to try and cover
    in the time that I have. During my last round of questions, and
    the reason I come back to this is because, when you come right
    down to it, that Bybee memo, and the views expressed in that,
    certainly was policy. It was printed in the working group's
    report. It was reported by those over in Iraq. It has been
    referred to in the Armed Services Committee, in the Schlesinger
    report, as being the policy of the Department of Defense. And
    the change that memorandum gave, in terms of how we were going
    to treat detainees in there, I believe, runs roughshod or did
    run roughshod over the Geneva Conventions. But we have a
    dispute.
        You indicated that this was served up by the Office of
    Legal Counsel, and it is the interpretation that Legal Counsel
    has provided for statutes that we have passed in 1994.
        Judge Gonzales. Senator, if I may, of course, the August 1
    memo has been withdrawn. I mean, in essence, it has been
    rejected. It does not represent the views of the executive
    branch. The views of the executive branch regarding the anti-
    torture statute are now reflected in the December 30th memo
    which, as we know, the deputy attorney general announced in
    June that this was going to happen. It was going to be
    withdrawn. The opinion would be revisited and issued by the end
    of the year, and it was issued before the end of the year at
    the request from a member of this Committee.
        Senator Kennedy. Well, I think that is very good news in
    terms of the future. I think that is very good news. But over
    this period of time, there have been the most extraordinary
    abuses that have been reported by DIA and the FBI. And you say
    now all of that memorandum that was interpreted that way is no
    longer operative. But over a period of time, as has been
    referenced by others in the Committee, there is no question in
    my mind--I have listened to you answer the questions about what
    happened at Abu Ghraib--that there were military personnel that
    bear responsibility, and there is no question that there was a
    lack of training.
        But the third part that you have not referenced in any of
    your answers is that there was also the working group report
    that effectively would have justified and approved those kinds
    of activities. Now, you may say that you differ with that. That
    was the document at DOD, and there is no reason to believe that
    the same kind of document was not given to the CIA. Was it
    given to the CIA--the Bybee memo?
        Judge Gonzales. Sir, first of all, I am not sure what--was
    the memo given to the CIA? I suspect that it was given--it
    represented the administrative branch position, and so it would
    not surprise me, of course, that agencies involved in the war
    on terror--
        Senator Kennedy. Who would have given it to the CIA?
        Judge Gonzales. Sir--
        Senator Kennedy. Was not this memorandum directed to you?
        Judge Gonzales. Sir, it was addressed to me.
        Senator Kennedy. Was it not requested by you?
        Judge Gonzales. Sir, I do not recall if it was requested
    by--
        Senator Kennedy. We can--
        Judge Gonzales. Let me just say, Senator, in practice, how
    this may work. An agency, of course, has its own in-house shop.
    An issue comes up, their lawyers get involved in providing
    legal advice. From time to time, the issues are so complicated
    or so complex it may cut across various agencies that the issue
    gets elevated up to the Office of Legal Counsel. And so it may
    well have been that the CIA or DOD asked OLC, as an initial
    matter, for their views on this, and then, for whatever reason,
    the memo was addressed to me.
        I accept responsibility that the memo is addressed to me.
        Senator Kennedy. Well, do you accept responsibility that
    you requested it?
        Judge Gonzales. Sir--
        Senator Kennedy. Is this such a difficult--
        Chairman Specter. Let him answer the question, Senator
    Kennedy.
        Judge Gonzales. I don't recall specifically whether or not
    I requested this memo or whether or not the initial request
    came from the CIA or the CIA came to me. I don't recall,
    Senator.
        Senator Kennedy. You do not have notes about these various
    meetings? You do not jot these down, so you would not be able
    to know whether this happened? You have no notes, no
    information, no memoranda that would indicate? On an issue of
    this kind of importance and consequence, at the time that this
    country was at war on this and where there is enormous
    pressure, as we understand now, to gain information and
    intelligence from this, you would not be able, even today, to
    be able to respond to the question about how this was
    initiated, particularly when it is against the background where
    OLC indicates that it came from you and from the news reports?
    This is not enormously complicated--I want to get into some
    other kinds of things--the fact that you basically initiated.
        Judge Gonzales. Senator--
        Senator Kennedy. Your answer is you cannot remember.
        Judge Gonzales. Senator, I certainly don't want to be
    argumentative with you. I really do not remember. It seems to
    me what is important here is that we realize, there was a
    recognition within the agencies, and I believe within the White
    House, that this was an important issue and that the Department
    of Justice should play its traditional role of providing legal
    advice about the parameters of this statute.
        Senator Kennedy. I just want to point out, if it is true,
    the Post reported, that you held several meetings at which the
    legality of interrogation techniques, such as threat of live
    burial and water-boarding were discussed; do you remember that?
        Judge Gonzales. Senator, I have a recollection that we had
    some discussions in my office, but let me be very clear with
    the Committee. It is not my job to decide which type of methods
    of obtaining information from terrorists would be most
    effective. That job responsibility falls to folks within the
    agencies. It is also not my job to make the ultimate decision
    about whether or not those methods would, in fact, meet the
    requirements of the anti-torture statute. That would be a job
    for the Department of Justice. And I never influenced or
    pressured the Department to bless any of these techniques. I
    viewed it as their responsibility to make the decision as to
    whether or not a procedure or method of questioning of these
    terrorists that an agency wanted, would it, in fact, be lawful.
        Senator Kennedy. Well, just as an attorney, as a human
    being, I would have thought that if there were recommendations
    that were so blatantly and flagrantly over the line, in terms
    of torture, that you might have recognized them. I mean, it
    certainly appears to me that water-boarding, with all its
    descriptions about drowning someone to that kind of a point,
    would come awfully close to getting over the border and that
    you would be able to at least say today there were some that
    were recommended or suggested on that, but I certainly would
    not have had a part of that as a human being.
        Judge Gonzales. Well--
        Senator Kennedy. But as I understand, you say now that no
    matter what they recommended or what they discussed, there was
    not going to be anything in there that was going to be too bad
    or too outrageous for you to at least raise some objection.
        Judge Gonzales. Senator, of course, we had some discussions
    about it. And I can't tell you today whether or not I said,
    ``That's offensive. That's not offensive.'' But it seems to me
    it's the job of the lawyers to make a determination as to
    whether or not something is lawful or not and then for the
    policymakers, the principals, to decide whether or not this is
    a method of receiving information from terrorists is something
    that we want to pursue, that the lawyers have deemed lawful,
    under the directive of a President, who says that we should do
    everything that we can to win this war on terror, so long as we
    are meeting our legal obligations.
        Senator Kennedy. This is all against a background, as you
    know, Mr. Gonzales, of a series of statutes on torture that the
    Congress has passed in recent times. This is not a new issue.
    We had the Federal Antitorture Statute in 1994 that both
    President Reagan and President Bush, unanimous Committee, the
    Federal War Crimes Act of 1996, the Uniform Code of Military
    Justice goes back to 1950, the Convention Against Torture
    ratified by Congress, one was domestic, the other
    international. The International Covenant on Civil and
    Political Rights, in 1992, provides ``no one shall be subject
    to torture or cruel, inhumane, degrading treatment or
    punishment.'' And then last year Congress reaffirmed, virtually
    unanimously, that the Nation's commitment not to engage in
    torture, cruel, inhumane and degrading.
        So this is a subject matter that Republicans and Democrats
    have spoken out very clearly, and many of us find, and perhaps
    you do--certainly, you do at the present time--that the Bybee
    memo certainly was in conflict with those particular statutes.
        But let me ask you this: In these reports on Guantanamo--
        Chairman Specter. Senator Kennedy, your red light is on,
    but why do you not finish the question.
        Senator Kennedy. What I would be interested in, should you
    be confirmed, is what you are going to do with regards to the
    FBI. They have been involved in many of these reports. It would
    be interesting if you could tell the Committee what you are
    going to do, confirm to do, about the involvement of the FBI in
    this. And I was going to ask, just the two, if the fact that
    this memo has been repealed, whether that information now has
    been communicated to the CIA and the CIA has accepted it and
    DOD, if they are all together. But if you could just let me
    know--
        Judge Gonzales. Senator, my presumption is--
        Senator Kennedy. I thank the Chair.
        Judge Gonzales. --my presumption is it has been
    communicated to the agencies. I have not, myself, communicated
    the new position, but again it does represent administrative
    policy.
        And with respect to FBI involvement, the recent reports
    about these FBI e-mails about abuses in Guantanamo, quite
    frankly, surprised and shocked me because it is certainly
    inconsistent with what I have seen. I have traveled down there.
    And it is certainly inconsistent with other reports I have seen
    with respect to investigations about activities in Guantanamo.
        I would like to sit down with the folks at the FBI and
    other folks within the Department of Justice to make sure that
    the facts are accurate because I know one very important fact
    in these stories, the FBI--much was made of the fact about an
    FBI agent referring to an Executive order by the President
    authorizing certain techniques. That is just--that is just
    plain false. That never occurred. And so if something like that
    is wrong in these e-mails, there may be other facts that are
    wrong in the e-mails. And what I am suggesting is I just need
    to, if confirmed, I need to have the opportunity to go into the
    Department and the FBI and just try to ascertain the facts.
        Chairman Specter. There has just been the call of the roll
    call on the counting of the electoral votes. So we will recess
    very, very briefly. I will go directly to the floor and return,
    and I am going to take Senator Brownback with me. And on
    return, Senator Brownback will commence his next round of
    questions.
        [Recess from 2:43 p.m. to 2:57 p.m.]
        Chairman Specter. The Judiciary Committee will resume the
    hearing on Judge Alberto Gonzales to be Attorney General of the
    United States. We were interrupted for a challenge on the
    counting of the electoral votes, and if you are interested in
    the result, I cannot tell you because we left before the tally
    was up.
        Thank you, Senator Brownback, for returning so that we can
    lose no time and proceed with the hearing.
        Judge Gonzales is en route, so we shall commence
    momentarily.
        Senator Brownback. Sounds good by me.
        Chairman Specter. In the meantime, it might be worth using
    the time, since we have a moment, to notify all Senators, who
    are interested in their second round, that this is a very good
    time to come. Anybody who returns is likely to have priority
    treatment.
        Welcome back, Judge Gonzales.
        Judge Gonzales. My apologies, Senator.
        Chairman Specter. No apology necessary. Did you vote?
        [Laughter.]
        Chairman Specter. Senator Brownback?
        Senator Brownback. Thank you very much, Mr. Chairman. I
    appreciate that.
        Judge Gonzales, I wanted to ask you, on a couple of
    different areas that have come up somewhat, but I wanted to get
    into a little more specific areas. One is on antitrust laws,
    and the other one is on the Solomon amendment. And these are
    contact points and work that the Department of Justice will be
    involved in at any rate, and I think that you will be directly
    involved in as Attorney General.
        The Department of Justice recently approved a major
    telecommunications merger between Cingular and AT&T Wireless.
    And now Sprint, a company that I am familiar with--it is
    headquartered in my State--and Nextel have announced their
    intentions to merge. Many expect more mergers from the
    telecommunications industry to take place in the near future.
    It is an issue that I think a lot of people in the industry
    have anticipated just with the nature of what has taken place.
    It is a very dynamic business. A lot of things are happening
    with this, a number of companies were formed, a number have
    broken up, a number are coming back together.
        I would just like to get, to the degree that you can
    discuss this topic, your view on how DOJ, under you, under your
    leadership, should be allowing these types of mergers, what
    sort of factors you may look at or would consider in these type
    of mergers and would hope that you could explain your views on
    how aggressive or otherwise the Department of Justice should be
    in its antitrust prosecutions.
        Judge Gonzales. Senator, thank you. I believe that
    competition in this industry is important. And as to whether or
    not what factors or standards we would look at, the Department
    of Justice has longstanding regulations regarding mergers and
    how they should be considered. I have not become an expert on
    those regulations, but obviously would talk to the experts in
    this area and would be happy to visit with you at the
    appropriate time and share with you my views after becoming
    more educated about how this process works.
        Senator Brownback. Do you have any thoughts, in particular,
    on the telecommunications industry--it has been a very dynamic
    industry. There have been a number of things that have been
    going on, and these do seem to be queued up--of its
    concentration or lack thereof, its competition or lack thereof?
        Judge Gonzales. I do not, Senator. I really would like the
    opportunity to study this issue more and be happy to visit with
    you at the appropriate time.
        Senator Brownback. I do think that is something we are
    going to see, and it is such a key part of the economy. It is
    the pavement of the superhighway. It is how we communicate. The
    wireless industry has grown so rapidly. The number of people in
    the country that use the cell phone now as their primary phone
    has grown exponentially. It will be a majority, if it is not a
    majority already, of its usage, and it just has been a very
    dynamic field, a lot of new players coming into it to compete
    as well.
        And so it seems to me that it is one of those that has to
    be looked at from the totality of the picture of who all is
    providing telecommunications service. Is it an Internet
    provider? Is it an old-line phone company? Is it somebody
    coming in new with a different satellite or other type of
    wireless service, whether celestial or otherwise? And I think
    it is one that is going to be important for our economic growth
    and vitality in this country. I know it is going to demand some
    of your time.
        There was a letter sent to you, January 4th, from four
    members of this committee regarding the Solomon amendment. This
    may not be something you are familiar with yet. I am sorry. It
    was not sent to you. It was sent to Attorney General Ashcroft.
    That law prohibits institutions of higher learning that receive
    Federal funds from discriminating against military recruiters.
    It has been an issue of some visibility.
        The law was struck down by the Third Circuit Court of
    Appeals in November. The Department of Justice has yet to
    announce whether it will seek further review of that decision.
    As Attorney General, what would you do to defend and enforce
    the Solomon amendment?
        Judge Gonzales. Well, Senator, as Attorney General, I do
    have an obligation to try to defend all congressional statutes
    as a presumption of constitutionality. I will, of course, have
    to confer with the lawyers at the Department of Justice in
    making a decision as to whether or not an appeal should be
    pursued, but beyond that, I have nothing further to add in
    response to your question.
        Senator Brownback. Judge Gonzales, another area that is
    likely to come up is the issue that had a lot of State
    interest, State laws coming forward on the issue of definition
    of marriage coming from the courts in Massachusetts, coming
    from the courts now in a number of places. The Congress had
    previously acted on the Defense of Marriage Act, which the
    lawyers that I have talked to, most have viewed this as
    something that will not stand a constitutional test, a
    constitutional scrutiny, and therefore have pushed the issue of
    a Federal constitutional amendment, defining marriage as the
    union of a man and a woman. A number of States have taken this
    up, I think 13. All have passed the issue of a traditional
    definition in State constitutional law.
        Have you had a chance to think about this issue some, from
    the position of Attorney General, if a challenge to the Defense
    of Marriage Act comes in front of the Federal courts that the
    Attorney General's Office is asked to look at to determine its
    constitutionality and the position that you would take?
        Judge Gonzales. Before offering up a definitive conclusion
    about that, Senator, I, of course, would want to talk to the
    lawyers at the Department of Justice. But, again, the
    presumption is that the statute is constitutional, and my
    presumption is, is that I would do everything I could to defend
    it.
        Senator Brownback. It is an issue that is going to continue
    to be with us, one of those very difficult issues of society to
    deal it, and it continues to be thrown to the courts; one that
    I think legislative bodies are very capable of handling, but,
    nonetheless, the issues migrate to the courts, and I think it
    is one you are going to see quite a bit of.
        Mr. Chairman, thank you very much and, Judge Gonzales, for
    being here.
        Chairman Specter. Thank you, Senator Brownback.
        We turn now to Senator Feingold.
        Senator Feingold. Thank you, Mr. Chairman.
        Judge Gonzales, thank you for your patience in answering
    all of these questions today.
        Chairman Specter. Before you begin, Senator Feingold, might
    I, again, say to any Senators who are looking for a second
    round of questions, that now is a good time to come to the
    hearing room. And I would ask the staff for Senators who are
    interested in a second round to notify your principal, so that
    we can move ahead.
        I think there is a realistic likelihood of finishing up the
    hearing today, if all Senators are present to take the time in
    an orderly sequence.
        Pardon the interruption, Senator Feingold. The floor is
    yours, and we will start the clock at the beginning.
        Senator Feingold. Thank you for the opportunity to ask
    another round of questions. Again, thanks, Judge Gonzales.
        Let me return, first, to the death penalty issue and then
    move on to some other questions.
        We talked earlier about your specific role vis-a-vis George
    Bush and clemency proceedings and about a couple of cases. Let
    me ask you more generally.
        Critics of your clemency memo say you did not make serious
    inquiries into viable claims of innocence. Based on your review
    of the information you gathered in those cases, were you
    certain then, and are you certain today, that all of the
    individuals whose execution you and George Bush approved were,
    in fact, guilty?
        Judge Gonzales. If, in fact, there were questions about
    guilt or innocence or issues raised in a clemency petition that
    had not been reviewed by the courts, then the position of then-
    Governor Bush was that he would not grant clemency.
        Obviously, of paramount concern was whether or not was this
    person guilty of the crime convicted of. And you must
    understand, Senator, that I don't, as counsel, I didn't have
    the kind of resources you would normally find in a DA's office.
    I wouldn't have the opportunity or resources to go out and
    reinterview witnesses and physically examine evidence.
    Oftentimes there were allegations made in a clemency petition
    that had never been made in the trial or had been raised in the
    courts and had been rejected, had been looked at by the courts
    and had been summarily rejected. And so the fact that something
    is raised in a clemency petition and is not mentioned in the
    memo doesn't mean that it was ignored, by any stretch of the
    imagination.
        Senator Feingold. What I am asking here, Judge, is your
    personal opinion, at this point.
        Judge Gonzales. My personal view--
        Senator Feingold. And this is, I am sure you will be the
    first to say, an incredibly difficult process for anyone to be
    involved in. At this point, your own opinion, are you certain
    that all the individuals whose executions you and George Bush
    approved were, in fact, guilty?
        Judge Gonzales. I could not have made a recommendation for
    the President--for the Governor to deny clemency if there was
    any question in my mind about the guilt or innocence of someone
    who had submitted a petition for clemency to this Governor.
        Senator Feingold. I guess I will leave it at that. Thank
    you.
        Would you be in favor of statutes, on the State or Federal
    level, that would permit access to evidence for DNA or other
    forensic testing to determine if an innocent person has been
    executed, if a colorable claim of innocence has been made? As I
    understand it, there is such legislation being considered in
    Texas at this time.
        Judge Gonzales. This is after the fact--
        Senator Feingold. Yes.
        Judge Gonzales. --after someone has been executed?
        Senator Feingold. Yes. Correct.
        Judge Gonzales. Senator, I think that that is something
    that I would want to look at. I hesitate to comment on
    legislation without looking at specific language of the
    legislation. Obviously, the administration speaks with one
    voice about legislation.
        I will say that, if we are going to apply the death
    penalty, we need to make sure, as I said earlier to you, is
    that it should be applied fairly, and only the guilty should be
    punished.
        As technology evolves and the use of DNA has become more
    and more common, I think it is something that we ought to
    consider.
        Senator Feingold. I guess, if you could provide me in
    writing, after you have had a chance to look at the Texas
    legislation, your reaction to it.
        Judge Gonzales. I would be happy to do that, Senator.
        Senator Feingold. Thank you.
        Let me switch to a subject that has come up a lot here
    today. In the August 2002 memorandum, the Justice Department
    concludes that the President, as Commander in Chief, may
    authorize interrogations that violate the criminal laws
    prohibiting torture and that the Congress may not
    constitutionally outlaw such activity when it is authorized by
    the President. This is the claim, essentially, that the
    President is above the law so long as he is acting in the
    interest of national security.
        A December 30 rewrite of the August memorandum does not
    repudiate this view. It simply says the issue is irrelevant
    because the President has prohibited torture.
        Today, in response to questions on this subject, you have
    been unwilling to repudiate this legal theory. You have danced
    around the question a bit. But as I understand your answers so
    far, you have said there may be a situation where the President
    would believe a statute is unconstitutional and would therefore
    refuse to comply with it, but would abide by a court's decision
    on its constitutionality. You, also, I am told, said that many
    Presidents have asserted the power not to enforce a statute
    that they believe is unconstitutional. But there is a
    difference between a President deciding not to enforce a
    statute which he thinks is unconstitutional and a President
    claiming to authorize individuals to break the law by torturing
    individuals or taking other illegal actions.
        So what I want to do is press you on that because I think
    perhaps you have misunderstood the question, and it is an
    important one. It goes to a very basic principle of the country
    that no one, not even the President of the United States, is
    above the law. Of course, the President is entitled to assert
    that an Act of Congress is unconstitutional.
        This President did so, for example, with respect to some
    portions of our McCain-Feingold bill when he signed it, but his
    Justice Department defended the law in court, as it is bound to
    do with every law duly enacted by the Congress. And his
    campaign and his party complied with the law while a court
    challenge was pending. No one asserted that the President had
    the power to ignore a law that he thought was unconstitutional.
        The question here is what is your view regarding the
    President's constitutional authority to authorize violations of
    the criminal law, duly enacted statutes that may have been on
    the books for many years when acting as Commander in Chief?
    Does he have such authority? The question you have been asked
    is not about a hypothetical statute in the future that the
    President might think is unconstitutional. It is about our laws
    in international treaty obligations concerning torture. The
    torture memo answered that question in the affirmative, and my
    colleagues and I would like your answer on that today.
        I, also, would like you to answer this: does the President,
    in your opinion, have the authority, acting as Commander in
    Chief, to authorize warrantless searches of Americans' homes
    and wiretaps of their conversations in violation of the
    criminal and foreign intelligence surveillance statutes of this
    country?
        Judge Gonzales. Senator, the August 30th memo has been
    withdrawn. It has been rejected, including that section
    regarding the Commander in Chief's authority to ignore the
    criminal statutes. So it has been rejected by the executive
    branch. I, categorically, reject it. And, in addition to that,
    as I have said repeatedly today, this administration does not
    engage in torture and will not condone torture. And so what we
    are really discussing is a hypothetical situation that--
        Senator Feingold. Judge Gonzales, I have asked a broader
    question. I am asking whether, in general, the President has
    the constitutional authority, at least in theory, to authorize
    violations of criminal law when there are duly enacted statutes
    simply because he is Commander in Chief? Does he have that
    power?
        Judge Gonzales. Senator, in my judgment, you have phrased
    sort of a hypothetical situation. I would have to know what is
    the national interest that the President may have to consider.
    What I am saying is it is impossible to me, based upon the
    questions you have presented to me, to answer that question. I
    can say that there is a presumption of constitutionality with
    respect to any statute passed by Congress. I will take an oath
    to defend the statutes. And to the extent that there is a
    decision made to ignore a statute, I consider that a very
    significant decision and one that I would personally be
    involved with, I commit to you on that, and one I will take
    with a great deal of care and seriousness.
        Senator Feingold. Well, that sounds to me like the
    President still remains above the law.
        Judge Gonzales. No, sir.
        Senator Feingold. If this is something where you take a
    good look at it, you give a presumption that the President
    ought to follow the law, you know, to me that is not good
    enough under our system of Government.
        Judge Gonzales. Senator, if I might respond to that, the
    President is not above the law. Of course, he is not above the
    law. But he has an obligation, too. He takes an oath as well.
    And if Congress passes a law that is unconstitutional, there is
    a practice and a tradition recognized by Presidents of both
    parties that he may elect to decide not to enforce that law.
    Now, I think that that would be--
        Senator Feingold. I recognize that and I tried to make that
    distinction, Judge, between electing not to enforce as opposed
    to affirmatively telling people they can do certain things in
    contravention of the law.
        Judge Gonzales. Senator, this President is not--it's not
    the policy or the agenda of this President to authorize actions
    that would be in contravention of our criminal statutes.
        Senator Feingold. Finally, will you commit to notify
    Congress if the President makes this type of decision and not
    wait 2 years until a memo is leaked about it?
        Judge Gonzales. I will commit to advise the Congress as
    soon as I reasonably can, yes, sir.
        Senator Feingold. Well, I hope that would be a very brief
    period of time, and I thank you again, Judge Gonzales.
        Judge Gonzales. Thank you, Senator.
        Senator Feingold. Thank you, Mr. Chairman.
        Chairman Specter. Thank you very much, Senator Feingold.
        Senator Schumer?
        Senator Schumer. Thank you, Mr. Chairman.
        Senator Leahy. Mr. Chairman, before we start that, I would
    ask consent that--Senator Feinstein has the flu, and she would
    like to submit some questions. She thought rather than
    contaminate the whole Committee, she could submit a couple
    questions.
        Chairman Specter. Well, of course, we will await Senator
    Feinstein's questions, and I am sure that Judge Gonzales will
    submit them promptly. We are making every effort--and it may be
    worth just a public statement very briefly--to move ahead with
    the process so that if confirmation is possible in advance of
    the Inauguration Day, we will try to meet that schedule. It may
    be difficult because Senators will not be here. We will have to
    have an executive session. But when written questions are
    submitted, Judge Gonzales is aware of the timetable that we are
    trying to meet to accommodate the President's request to the
    extent we can. But the Committee has its procedures, and we
    will give due deliberation. But when written questions are
    submitted, the earlier they are received, the better chance
    there is of expediting Senate consideration.
        Judge Gonzales. Thank you, Mr. Chairman.
        Chairman Specter. Senator Schumer?
        Senator Schumer. Thank you, Mr. Chairman, and thanks for
    your courtesy here with the votes and everything else.
        I just want to first go back to that nuclear option we
    talked about. My friend from Oklahoma was speaking about this.
    Unfortunately, I was not here. Now I will speak about it and he
    is not here. But from what I understand, he said, well, the
    Constitution says the Senate can make its own rules.
        That is not the point. That misses the point entirely. The
    overruling of this, what would happen in the chair is the
    Senate rules would be overruled by the Vice President on the
    basis that it is unconstitutional to require more than a
    majority for a judge. The Senate rules are very clear. You need
    two-thirds to change the rules. And just by the stroke of a
    pen, what the Vice President and those who are urging him are
    attempting to do is say on his own that is unconstitutional,
    and I ask and I challenge my friend from Oklahoma, anyone from
    the other side who claims to be a strict constructionist, or,
    in all due respect, you, Mr. Counsel, to find the words in the
    Constitution that say that. Everywhere else we want to define
    the Constitution narrowly as could be, only the words, no
    expansive reading. But all of a sudden because 10 out of 214
    judges have not been approved, we are going to say, oh, well,
    we divine in it in the Constitution.
        Well, that is a Pandora's box if there ever was one, and
    the sophistry in the thinking to try and achieve an end to me
    does not rise to the dignity, wisdom, and majesty that this
    body has shown itself capable of. But that is my answer to my
    friend from Oklahoma. Well, the Constitution says the Senate
    can make its own rules. We have a rule, two-thirds. Can the
    Vice President overrule it on a constitutional basis? And if
    you are strict constructionist, you better find the words in
    the Constitution that says he can.
        Now, what I would like to ask you, again, Mr. Counsel,
    because you have had a little time to think about this, and I
    asked you in all due respect--I guess we met about 3 weeks ago.
    We had a very nice, friendly meeting. You know, on too many of
    these issues we are not getting answers. And, again, as I said,
    there is a higher standard for judges. A couple of our judge
    nominees did not get approved because they would not answer any
    questions. I do not know if it rises to that level with the AG,
    but I certainly think it is better for the Republic if there
    are answers.
        You did tell me that you couldn't find words in the
    Constitution that said you needed a majority to vote on judges.
    That is clear. I went back and just checked the Constitution
    for the 48th time myself. You can check it again if you want.
    But what is your view on saying that it is unconstitutional for
    the Senate to require more than a majority to approve judges?
        Judge Gonzales. Senator, I appreciate your question.
        Senator Schumer. It is going to be a very important
    question over the next 6 months.
        Judge Gonzales. Senator, again, respectfully, my answer
    remains the same. I don't have a view as to whether or not such
    a procedure would be constitutional. My judgment, and others'
    within the White House, is that this is a Senate internal
    matter to be worked out amongst the Members of the Senate.
        Senator Schumer. Then that would follow we should follow
    the Senate rules, which say you need two-thirds.
        Judge Gonzales. Sir, I will let the Senators debate that.
        Senator Schumer. Okay.
        Judge Gonzales. Of course.
        Senator Schumer. Let me ask you another question, and that
    is this: We have had a lot of talk about the Geneva Convention
    and what has happened in the past. I want to ask you a
    prospective question about the Geneva Convention. Do you think
    that we should seek revisions of the Geneva Convention in the
    future? I do not know if that is right or wrong, but do you
    think we should? Have there been any discussions in your office
    as Counsel or in the White House or in the administration as to
    whether we should seek those revisions? And if there is a
    determination that we should seek certain revisions--and I do
    not know what they would be; they might be reasonable--should
    Congress be include in that discussion?
        Judge Gonzales. Thank you, Senator, for that question. I
    think it's a very good question because we are fighting a new
    type of enemy and a new type of war.
        Senator Schumer. Sure.
        Judge Gonzales. Geneva was ratified in 1949, Geneva
    Conventions, and I think it is appropriate to revisit whether
    or not Geneva should be revisited.
        Now, I'm not suggesting that the principles of Geneva
    regarding basic treatment, basic decent treatment of human
    beings, should be revisited. That should always be our
    polestar. That should always be the basis on which we look at
    this. But I am aware--there has been some very preliminary
    discussion as to whether is this something that we ought to
    look at. I'm also aware that certain academicians and
    international law scholars have written on this subject as to
    whether or not should we revisit Geneva and asked whether or
    not the Senate should play a role or the Congress should play a
    role. Obviously, if you're talking about modifications of
    Geneva or a new treaty, the Senate would play a very important
    role in the ratification process.
        Senator Schumer. I understand that, but what I am saying is
    if the new administration were to begin internal discussions on
    whether Geneva should be modified and in what way, would they
    include the Senate in those discussions rather than saying here
    is what we recommend? You know, I mean, obviously this needs to
    be negotiated in a multilateral way. But would you include us
    in those--or would you recommend to the President that we be
    included in those discussions?
        Judge Gonzales. Before answering a question, I want to
    emphasize, when I indicate that there's been some discussion
    within the White House or the administration, it's not been a
    systematic project or effort to look at this question, but
    some--I know certainly with the people that I deal with, the
    lawyers have questioned maybe this is something that ought to
    be looked at. So I do not want to leave the impression--
        Senator Schumer. I do not hold any brief against that.
    Obviously, you can re-examine these things.
        Judge Gonzales. And it seems to me that it's probably
    always better to consult with the Senate since the Senate is
    going to have a role in the ratification process. I think
    consultation is usually better than not consulting.
        Senator Schumer. Okay. And there is no proposal you know
    that is being formulated right now, is there?
        Judge Gonzales. Not that I'm aware of, Senator.
        Senator Schumer. Thank you.
        Thank you, Mr. Chairman.
        Chairman Specter. Thank you very much, Senator Schumer.
        Senator Durbin?
        Senator Durbin. Thank you, Mr. Chairman.
        I think this has been asked earlier, Judge Gonzales, but at
    the risk of repeating, over the last 4 years Attorney General
    Ashcroft has appeared before the Judiciary Committee five
    times. His appearances before the Committee are as rare as
    humility and brevity in the Senate. And I am hoping that we
    will see a new approach and a new dialogue between our new
    Attorney General and this Committee.
        I believe the Chairman has already asked you this, but for
    the record, is it your plan to come see us a little more often
    than five times in four years?
        Judge Gonzales. Senator, as I said in my meeting with you,
    I enjoy dealing personally face-to-face with the Senators.
        Senator Durbin. Still?
        Judge Gonzales. Even after this hearing. Yes, that would be
    my commitment. I think in order for the Department to be
    successful, I need the cooperation--if confirmed, I need the
    cooperation of this Committee, and I would certainly endeavor
    to be more available, provide greater--be available to the
    Committee, yes, sir.
        Senator Durbin. Thank you. My gifted legal staff listened
    closely to your answers to my questions and believe you gave a
    very carefully worded lawyer answer to a question, which I
    missed. And so for the record, I want to make certain that I
    understand your position again on this torture issue. Can U.S.
    personnel legally engage in torture under any circumstances?
        Judge Gonzales. I'm sorry. Can U.S. military personnel--
        Senator Durbin. U.S. personnel. Of course, that would
    include military as well as intelligence personnel, or other
    who are under the auspices of our Government.
        Judge Gonzales. Senator, there are obligations under the
    treaty against torture and there are obligations under the
    anti-torture statute. There are obligations, legal obligations
    in the UCMJ. And so I suppose without--I don't believe so, but
    I'd want to get back to you on that and make sure that I don't
    provide a misleading answer. But I think the answer to that is
    no, that there are a number of laws that would prohibit that.
        Senator Durbin. I would like if you would give me a
    definitive answer.
        Judge Gonzales. Yes, sir.
        Senator Durbin. And then the follow-up question which they
    tell me I did not ask was whether or not it is legally
    permissible for U.S. personnel to engage in cruel, inhuman, or
    degrading treatment that does not rise to the level of torture.
        Judge Gonzales. Senator, our obligations under the
    Convention Against Torture with respect to cruel, inhumane, and
    degrading conduct, as you know, is under Article 16, I believe.
    As Counsel to the President--
        Senator Leahy. I am sorry. I cannot hear you. I am sorry,
    Judge.
        Judge Gonzales. I am sorry, Senator. As Counsel to the
    President, my job was to ensure that all authorized techniques
    were presented to the Department of Justice, to the lawyers, to
    verify that they met all legal obligations, and I have been
    told that that is the case.
        As you know, when the Senate ratified the Convention
    Against Torture, it took a reservation and said that our
    requirements under Article 16 were equal to our requirements
    under the Fifth, Eighth, and 14th Amendment. As you also know,
    it has been a long-time position of the executive branch and a
    position that has been recognized and reaffirmed by the Supreme
    Court of the United States that aliens interrogated by the U.S.
    outside the United States enjoy no substantive rights under the
    Fifth, Eighth, and 14th Amendment. So as a legal matter, we are
    in compliance. But let me just emphasize, we also believe that
    we are in--we want to be in compliance as a substantive matter
    under the Fifth, Eighth, and 14th Amendment. I know Jim Haynes
    wrote a letter to Senator Leahy about whether or not we were
    meeting our obligations, and the response certainly would lead
    one to conclude that what we were saying was that we were
    meeting our substantive obligations under the Fifth, Eighth,
    and 14th Amendment. And no one has told me otherwise. My
    understanding is that we are meeting our obligations under
    Article 16.
        Senator Durbin. It is your belief that we are legally bound
    to do that; is that correct?
        Judge Gonzales. Well, subject to the reservations taken by
    the Senate in ratifying the treaty--
        Senator Durbin. Just by definition, which definitions we
    use.
        Judge Gonzales. We are meeting our legal obligations, yes,
    sir.
        Senator Durbin. And so this morning we read in the paper
    about rendition, an argument made that we took a prisoner whom
    we could not, should not torture legally, and turned him over
    to a country that would torture him. That would be illegal as
    well, would it not?
        Judge Gonzales. Under my understanding of the law, yes,
    sir, that we have an obligation not to render someone to a
    country that we believe is going to torture them. That is
    correct.
        Senator Durbin. All right. Now, let me ask you quickly
    about your situation as counsel to the Governor of Texas when
    the President served in that capacity. I know a lot of
    questions have been asked about the memos that you wrote. I
    want to go to a more fundamental question. It is clear to me,
    having served on this Committee and by human experience, that
    if you are black or brown in America, you are more likely to be
    detained, arrested, convicted--prosecuted and convicted and
    serve time for many crimes in this country. I think that is a
    sad reality, but that is the reality of America today.
        I would like to ask you your observation of that. I can
    give you statistics--I will not bore you or fill the record
    with them--about the disproportionate number of black and brown
    people who are in prison today and on death row. I would like
    to hear your sentiments as our aspiring Attorney General on
    this obvious injustice in America.
        Judge Gonzales. Senator, I have a vague knowledge about the
    statistics that you refer to. I believe that if we are going to
    have the death penalty--and this is consistent with the
    President's beliefs--that it should be administered fairly and
    only the guilty are punished.
        If, in fact, the case is that only minorities--Hispanics
    and African-Americans--are receiving the death penalty, it
    would be hard for me to conclude that that is a fair system.
    And if that were indeed the case, I think that we would--we
    should re-examine the application of the death penalty.
        I personally do believe in the death penalty. I do believe
    that it deters crime and saves lives. But I fundamentally
    believe that it has got to be administered fairly.
        Senator Durbin. I am afraid I believe the challenge goes
    beyond death penalty issues. Drug crimes are another
    illustration where disproportionately black and brown people
    are imprisoned over drug crimes, where many, if not most, of
    the customers are white and do not face the same penalties. So
    I hope that as you set that standard, it would apply to non-
    death penalty situations which also raise these serious issues
    of justice.
        Judge Gonzales. I will commit to you that I will look at
    that, Senator.
        Senator Durbin. The other thing I would like to talk to you
    about for a moment is mandatory minimum sentencing. You are
    familiar with it, as every member of the Committee might be. I
    will tell you that judges that I have spoken to tell me that we
    have created an impossible situation for them in many
    circumstances where they are required to imprison for
    extraordinarily long periods of time people who frankly are no
    threat to society and may have been bargained into prison by
    other criminals seeking a better treatment.
        I visited the women's prison in Illinois to find hundreds
    of middle-age and elderly women knitting afghans and playing
    pinochle who will serve 10-, 15-, and 20-year sentences because
    a drug-dealing boyfriend ratted them out.
        What is your feeling about mandatory minimum sentencing in
    this country?
        Judge Gonzales. Well, of course, Senator, we have to apply
    the law. My judgment is that the sentencing should be tough,
    but it should be fair, and it should be determinant. And
    whether or not we have enough discretion or too much
    discretion, I mean, the key is finding the right balance. It
    shouldn't be the case that you have so much discretion that
    someone who commits a crime in one State gets a much tougher
    sentence than someone who commits the same crime in another
    State. But this is a very difficult issue, as everyone in the
    Committee knows. The Sentencing Guidelines are subject to
    litigation, being reviewed now by the Supreme Court, and so we
    are all waiting to see whether or not under Booker and Fanfan
    that the Court is going to apply the Blakey decision to the
    Sentencing Guidelines. And if that happens, I suspect you and I
    and other--if I am confirmed, and other members of the
    Committee will be spending a lot of time talking about
    sentencing issues.
        Senator Durbin. The last question is a brief one, and it
    may have been touched on earlier. But when Senator Ashcroft in
    your position aspired to this Cabinet-level appointment, he was
    asked about Roe v. Wade, which he disagreed with on a political
    basis, and his argument was he would enforce, in his words,
    ``settled law'' and Roe v. Wade was settled law in America.
        I do not want to put words in your mouth, but could you
    articulate in a few words your position about the enforcement
    of Roe v. Wade or any other Court decision that you personally
    or politically disagree with.
        Judge Gonzales. Thank you, Senator. Of course, the Supreme
    Court has recognized the right of privacy in our Constitution,
    and in Roe the Court held that that right of privacy includes a
    woman's right to choose to have an abortion. A little over a
    decade ago, the Court in Casey had an opportunity to revisit
    that issue. They declined to overturn Roe and, of course, made
    a new standard that any restriction that constituted an undue
    burden on the woman's right to choose could not be sustained.
        My judgment is that the Court has had an opportunity, ample
    opportunities to look at this issue. It has declined to do so.
    As far as I'm concerned, it is the law of the land, and I will
    enforce it.
        Senator Durbin. Thank you. Thank you, Judge Gonzales.
        Thank you, Mr. Chairman.
        Chairman Specter. Senator Graham?
        Senator Graham. Thank you, Mr. Chairman.
        Judge, you still want the job?
        [Laughter.]
        Judge Gonzales. Yes, sir.
        Senator Graham. Okay. That is good. I know you have been
    asked a bunch of questions. The working group that was formed
    in the Pentagon, as I understand it, occurred in the January
    time frame of 2003, and one of the documents the working group
    was working off of was the now infamous August DOJ memo. And I
    asked you a question before about whether or not you believe
    that the techniques in the August memo being espoused, whether
    or not that would put some of our troops at risk for court
    martial. And I do not expect you to answer that off the cuff,
    but there was a series of JAG memos as part of this working
    group that suggested that might be the case.
        Have you ever seen those memos?
        Judge Gonzales. I don't recall. I don't believe so, sir.
    Let me just say that I don't believe it's the case that our
    office had anything to do with the work of the working group. I
    might also say that with respect to your question, the work of
    the Department of Justice in reviewing--or in that August 1
    opinion was related to a review of the anti-torture statute, a
    particular statute. I don't believe--I mean, if there were
    other provisions, other restrictions upon people in the
    military, the fact that the Department has given guidance about
    the scopes of the anti-torture statute doesn't mean that
    somehow other binding regulations wouldn't apply. And so it is
    possible that you could engage in conduct that would satisfy
    that statute, according to the memo, but be inconsistent with
    other obligations that would remain binding upon members in our
    military.
        Senator Graham. I think that is probably what happened, and
    I am try to learn from this process because you have one
    Department of the Government suggesting techniques that I think
    run afoul of the way the military is organized. And what I am
    trying to get us to look at is to make sure we don't go down
    that road again. And if you didn't see the memos, that to me is
    a bit disturbing because you are sort of out of the loop. And I
    think I better understand your role in this. You are trying to
    collect information. The working group is trying to implement
    policy.
        Judge Gonzales. If I could just interrupt you, Senator, you
    said something--if I've said--if I've given the impression that
    the Department of Justice was suggesting techniques, they never
    were. What was happening is the Department of Defense, I
    believe, was suggesting the use of certain methods of obtaining
    information from the terrorists, and that was presented to the
    Department of Justice, and the Department then gave its opinion
    as to whether or not such methods were, in fact, lawful.
        Senator Graham. Well, what actually happened, as I
    understand it, is that the Department of Justice memo in August
    talks about the torture statutes in ways that I think you and
    I--I think you have said that you disagree with that original
    legal reasoning. I can assure you that I do, and it got us into
    a situation of where we are getting our troops potentially in
    trouble. And that memo launched a thought process in the
    Department of Defense that divided the Department. And I think
    you need to know this and go back and study how this happened
    because there were 35 techniques suggested, I believe is the
    number. And when the judge advocates were finally consulted,
    they looked at the underlying memo from the Department of
    Justice and said, Whoa, if you go down this road and you look
    at this definition of what it takes to commit an assault and,
    you know, the pain level involved, that is totally inconsistent
    with how we are going to govern our troops when it comes time
    to regulate detainees because there is a specific article in
    the Uniform Code of Military Justice that makes it a crime to
    assault a detainee.
        And here is the good news. After Secretary Rumsfeld
    understood that there was a debate within the Department
    between civilian lawyers and military lawyers, he stopped and
    required a re-evaluation in April of 2004. The techniques were
    changed.
        The only reason I bring this out is that it illustrates to
    me, Judge, that when you try to cut corners, it always catches
    up with you. And I think it has caught up with us. And what I
    am looking for you to hopefully do is bring us back on the
    right road. And the new memo coming out of the Department of
    Justice to me is a step in the right direction.
        Do you believe that was a necessary thing to have done?
        Judge Gonzales. Sir, first of all, let me--your
    characterization that we're cutting corners, I believe we have
    good people at the Department of Justice who did the very best
    they could interpreting, in my judgment, a difficult statute.
    So I think they did the very best they could.
        Senator Graham. Well, that is where me and you disagree. I
    think they did a lousy job.
        Judge Gonzales. That opinion and the analysis has now been
    withdrawn. It is rejected. It is no longer the position of the
    executive branch.
        Senator Graham. Okay. Well, it was withdrawn for whatever
    reason. I am glad it was, and I am glad that you see that it
    needs to be withdrawn.
        Now to Gitmo. I am very encouraged by the efforts to fill
    this legal vacuum because once the Supreme Court decided that
    Gitmo was not Mars and it was part of the American legal system
    as far as habeas corpus relief, you are confident that this
    working group now headed by the Navy is going to come up with
    some due process standards that will meet international
    scrutiny?
        Judge Gonzales. Well, I am not sure it will meet
    international scrutiny, Senator. What I can say is based upon
    what I've been told by the lawyers at the Department, what is
    in place now at Guantanamo should meet our legal obligations as
    described in the recent Supreme Court cases.
        Senator Graham. And maybe the word ``international
    scrutiny'' was a bad word, trying to say that there is a French
    standard that I am trying to adhere to, and that is not it. The
    point is that the world is watching.
        Judge Gonzales. Senator, if I might just comment on that,
    because I want to emphasize to the Committee how important I
    think treaties like Geneva are for America, because they do
    represent our values. And in many way and at many times they
    have protected our troops. And it is true that part of winning
    the war on terror is winning the hearts and minds of certain
    communities. And to the extent there is a perception--and I
    think it's a wrong perception, but there's a perception out
    there that as a matter of policy the United States is ignoring
    its legal obligations, I think it makes it more difficult to
    win the hearts and minds of certain communities and, therefore,
    more difficult to win the war on terror.
        Senator Graham. That is encouraging to me, that thought
    process, but it is not enough, I am afraid, to talk about it
    unless there are deeds to follow. So what I would suggest--and
    this is one junior Senator suggesting--is that we do have an
    international image problem, partly unfair, partly of our own
    making, that it would serve us well to maybe get Congress
    involved, maybe not through legislation but to try to form some
    working environment where we can have input, you can tell us
    what you think, we can tell you what we think, and the world
    can see that our country is on the road to correction. I would
    encourage you to include us where you think we can be fairly
    included to make sure that what comes out as the new policy at
    Gitmo is something that kind of achieves the best of who we are
    and still aggressively fights the war on terror.
        One last thought. The tsunami victims have been through
    hell, those who have survived, and the children apparently are
    going to through a new kind of hell. One thing I have been
    working on with the Chairman and other members of this
    Committee in a bipartisan way is dealing with human
    trafficking. We are hearing reports every day, Judge Gonzales,
    that the children who are orphaned are being preyed upon by
    sexual predators, that people are going to the region claiming
    to be family members of these orphan children with the worst of
    motives. I along with Senator Cornyn and others are going to
    try to come up with some way to address this in the disaster
    relief bill.
        I would ask you, if you could, put your thinking hat on and
    see what we can do in the short term and in the long term to
    deal with this, and I look forward to working with you on that.
    And if you have any thoughts, now would be a good time.
        Judge Gonzales. Well, I think preying on children is sort
    of the worst kind of violation of civil rights. It would be a
    priority for me, if I am confirmed, Senator. I would look
    forward to the opportunity to work with you on this issue.
        Senator Graham. Thank you.
        Chairman Specter. Thank you very much, Senator Graham.
        Let us make an assessment here as to how many more rounds
    we are going to need. I think we have a realistic chance of
    concluding the hearing today. Following Judge Gonzales, we have
    three witnesses requested by Senator Leahy. May I ask, Senator
    Kennedy, do you think one more round will do? Or do you want
    more than one more?
        Senator Kennedy. Well, Mr. Chairman, I think I would need
    one more round generally on this OLC. I would like to ask about
    OLC and these ghost detainees and Article 49 of the Geneva
    Convention. I think that is an enormously important area that I
    do not think we have gotten into.
        Then after that, I was interested in visiting with our
    nominee on some of the immigration issues, that is, the
    enforcement issues on immigration with local and State
    authorities. I have talked about civil rights issues, the
    changes in the Civil Rights Division and the prosecution in
    several different areas of civil rights laws that we have seen
    in the last 3 years, and some in the Criminal Division. I do
    not intend to be dilatory in any way, but I think these are
    important areas.
        Chairman Specter. Senator Kennedy, do you think a 15-minute
    round would be sufficient?
        Senator Kennedy. I will do the best that I can, Mr.
    Chairman, but I would prefer not to agree just to a 15-minute
    round at this time, but I will move along. You have been kind
    to let me complete the questions which I had the last time. I
    think there are important questions with regards to the change
    in the Geneva Conventions with regards to ghost detainees,
    which the Central Intelligence Agency has been involved in. OLC
    wrote a long memorandum. I think I want to question about this
    issue.
        So I will move along as rapidly as possible, but I think I
    would like to inquire on that and also about civil rights,
    which is enormously important, just on immigration issues. I
    talked to Mr. Gonzales about those items on civil rights, civil
    rights enforcement, also on immigration, some of the
    immigration issues. I don't intend to be lengthy. I have
    indicated to Mr. Gonzales the areas that I would be going into
    so that he would have some idea about these. But I think they
    are extremely important and--
        Chairman Specter. Well, this is a very important hearing,
    and we want to give you every opportunity. Three rounds is more
    than customary. It is extensive. It is hard to go back on old
    custom. Senator Leahy, the Ranking Member, I know wants an
    additional round. Senator Hatch, would you like an additional
    round?
        Senator Hatch. No, I think we have--I think the witness has
    acquitted himself tremendously well, and other than Senator
    Leahy and Senator Kennedy, I think we ought to wind it up if we
    can.
        Chairman Specter. Senator Cornyn, do you care for an
    additional round?
        Senator Cornyn. I just have probably three or four
    questions, is all that I have, Mr. Chairman.
        Chairman Specter. Okay. Senator Graham?
        [No response.]
        Chairman Specter. Well, let us proceed this way. I have an
    additional round. Let us yield to Senator Kennedy to see if
    he--
        Senator Kennedy. Why doesn't Pat go?
        Senator Leahy. No. Go ahead. You are former Chairman. Mr.
    Chairman, before we do yield--and you have been absolutely fair
    in setting this up, but you also know we have cooperated in
    every way possible to move forward on this hearing within 2
    days of the new Congress coming in. I will as usual, of course,
    put a number of things in the record, including a number of
    letters I have sent to Judge Gonzales, including ones where I
    laid out what some of the questions were that I was going to
    ask today. I do it out of frustration because I really feel
    most of those letters have never been answered and probably
    never will be. Once he is confirmed, if he is, I am sure he
    will never feel he has any duty to answer them. But I will put
    them in the record, in any event, that and some other letters
    and material.
        Chairman Specter. Thank you very much, Senator Leahy. You
    certainly have been cooperative.
        I am going to yield on my third round at this point to
    Senator Kennedy with the request that 15 minutes be allocated
    to Senator Kennedy.
        Senator Kennedy. Thank you.
        Chairman Specter. And perhaps it would suffice, if there
    are questions beyond the additional 15 minutes on round three,
    that the questions be submitted in writing. There are still
    other Senators who have not had round two, so let the word go
    out and put them on notice. If they want to come for round two,
    the hearing will remain.
        Now, Senator Kennedy, the floor is yours.
        Senator Kennedy. Thank you. Thank you, Mr. Chairman.
        Mr. Gonzales, on March 19th, the Office of Legal Counsel
    provided you with a memorandum to allow the CIA to relocate
    certain prisoners from Iraq for the purpose of ``facilitating
    interrogation.'' The memo interprets Article 49 of the Fourth
    Geneva Convention which prohibits the forcible transfer or
    deportations of protected persons from occupied countries like
    Iraq, and violations of Article 49 are considered to be grave
    breaches of the Convention and thereby constitute war crimes
    under our Federal law.
        The cover letter from OLC states that the legal opinion was
    requested by Judge Gonzales. In the newspaper--I do not know
    whether it was the Times or the Globe or Post--one of them
    reported that one intelligence official familiar with the
    operation said the CIA had used the March draft memo as legal
    support for secretly transporting as many as a dozen detainees
    out of Iraq in the last 6 months. The agency has concealed the
    detainees from the International Committee of the Red Cross and
    other authorities, the official said. In other words, this
    memorandum is being used to justify the secret movement and
    interrogation of ghost detainees.
        In his report on the prisoner abuse at Abu Ghraib, General
    Taguba--and as I mentioned, the members of the Armed Services
    Committee listened to General Taguba testify on this very
    subject matter--criticized the CIA practice of maintaining
    ghost detainees as deceptive--this is General Taguba--saying
    that the policy of the CIA maintaining ghost detainees in Iraq
    is deceptive and contrary to army doctrine and in violation of
    international law.
        Do you agree or disagree with General Taguba's view of the
    practice?
        Judge Gonzales. Senator, I have not reviewed this opinion
    in quite some time. I believe based on--I believe that we are
    honoring our legal obligations with respect to these detainees.
    There was a concern that by the application of Geneva that
    terrorists would come into Iraq and we would create a safe
    haven for them, and that's why the opinion was solicited, so
    that we would not create such a safe haven for al Qaeda, who
    are not entitled to prisoner of war legal protections. But in
    terms of the actual facts or specifics of what is actually
    being done, I don't have any knowledge about what the CIA or
    DOD is doing. And I am presuming--again, I don't have any
    knowledge--that they have solicited legal advice as to what
    constitutes--what would constitute a violation of our legal
    obligations.
        Senator Kennedy. Well, the memo applies to protected
    persons, as I understand it. As I understand, it was the CIA
    that actually requested you to request the memorandum, and I
    think any logical conclusion one would draw is in order to
    protect their agents from being prosecuted. At least that would
    certainly be my conclusion.
        Now, this is what the memorandum from the Office of Legal
    Counsel interprets Article 49 of the Geneva Convention. The
    Geneva Convention states, ``Individual or mass forcible
    transfers as well as deportations of protected persons from
    occupied territory to the territory of the occupying power or
    to that of any other country, occupied or not, are prohibited,
    regardless of their motive.'' And in spite of the clear and
    unequivocal language of the provision, the OLC concluded that
    Article 49 does not, in fact, prohibit the temporary removal
    from Iraq of protected persons who have not been accused of a
    crime to reason that both the words ``deportations'' and
    ``transfers'' imply a permanent uprooting from one's home, and
    that because a different provision in the Fourth Geneva
    Convention prohibits the relocation of persons accused of
    crime, it follows that persons who aren't accused of crime may
    be temporarily relocated for interrogation.
        Do you believe that this legal advice is sound?
        Judge Gonzales. Senator, I really would like the
    opportunity to re-review this memo. My recollection is that
    this was a genuine concern, that we had members of al Qaeda
    intent on killing Americans flooding into, coming into Iraq,
    and the question was legitimately raised in my judgment as to
    whether or not--what were the legal limits about how to deal
    with these terrorists. And I believe--certainly that opinion
    represents the position of the executive branch.
        Senator Kennedy. Well, do you know why the request came
    from the Agency? Why did the request come from the CIA? Do you
    know why they requested this? Did they explain why they wanted
    it? And do you remember what the CIA actually asked for?
        Judge Gonzales. I do not, sir.
        Senator Kennedy. The language--and I will move on--from the
    OLC clearly contradicts the plain language of the Convention.
    And there are many that conclude that this was in order to
    allow the CIA to engage in the unlawful practice.
        Did you form any opinion about the whole policy of ghost
    detainees, the fact that the CIA was moving individuals, ghost
    detainees, around to different prisons in different parts of
    the world in terms of interrogating them, as was found and
    mentioned in the Taguba report and in the Red Cross reports?
    Have you drawn any personal conclusions yourself as to whether
    this was sound policy or whether it contradicted the Geneva
    Conventions?
        Judge Gonzales. Quite candidly, Senator, my objective as
    the Counsel to the President would be to try to ensure that
    questions were being asked as to whether or not what kind of
    conduct someone felt was appropriate or necessary was, in fact,
    lawful. And I don't think I would have considered it my role
    necessarily to second-guess whether or not that represented a
    good policy judgment.
        Senator Kennedy. Well, it does appear to some that the CIA
    is looking out and asking, you know, for the legal authority to
    do whatever they want to do and be protected from war crimes
    and other kinds of prosecutions and protections by the
    Commander in Chief provisions. That certainly has been a
    conclusion that has been drawn by many authorities, and it
    certainly would appear that way to many.
        Judge Gonzales. Sir, if I may, that is the reason why we
    categorically rejected it, that analysis, when the existence of
    the memo became public, because we were concerned that someone
    might assume that, in fact, the President was exercising that
    authority. That has never been the case, and we have said that
    there has been no action taken in reliance upon that authority.
        Senator Kennedy. Well, you know, we hear now about the
    recent decision and judgment that was made recently in terms of
    the Bybee memo. But I asked you at the end what you have done
    about this since it is so offensive. Clearly you have to feel
    that given the fact the administration does that it is not
    longer operative. And I was interested, since it wasn't, what
    was done with the Agency and what was done with DOD. And then I
    asked just at the end what you were going to do with the FBI
    should you be appointed, and you indicated that with the FBI
    you are going to consult, find out the facts, and take action.
        But I am just wondering what you have done to implement the
    more recent decision to say that this Bybee memo is no longer
    operative since it continues to be a part of the working
    document that has been made available to DOD.
        Judge Gonzales. Sir, as far as I'm concerned, the December
    30th opinion from the Office of Legal Counsel represents the
    executive branch position with respect to the interpretation of
    the anti-torture statute. The August 1 OLC memo has been
    withdrawn. It has been rejected and does not represent the
    position of the executive branch.
        Senator Kennedy. That is your position now, but when you
    first saw it and for a 2-year period when it was in effect, you
    did not object to it, as I understand.
        Judge Gonzales. Sir, there was, of course, as with many
    decisions, tough legal decisions, discussions between the
    Department of Justice and the Counsel's Office. Ultimately, as
    I've said repeatedly during this hearing, it is the
    responsibility of the Department of Justice to make the final
    call. Ultimately, it is their decision as to what the law
    requires. And it was accepted by us as the binding
    interpretation of that statute.
        Senator Kennedy. If I could come back to the unprecedented
    expansion of executive power contained in the Bybee memo, which
    you seem to have adopted at the time it was issued, so we are
    clear, the Bybee memo concluded that the law of the land cannot
    prevent the President from carrying out his Commander in Chief
    authority in any way he sees fit, even if the directives and
    actions violate clearly established law.
        Judge Gonzales. Senator, that old opinion, as I've said,
    has been withdrawn. That analysis has been rejected, and I
    consider it rejected.
        Senator Kennedy. But at the time when you first saw it, it
    still was put into--it was effectively the law of the
    administration's position for some 2 years.
        Judge Gonzales. Well, that certainly reflected the position
    of the Office of Legal Counsel, but, again, let me re-emphasize
    that that authority was never exercised. As far as I know, the
    President was never advised of that authority. And so no
    actions were taken in reliance upon that authority.
        Senator Kennedy. That has been repealed. He hasn't
    exercised it. Your view whether it is legitimate, whether it is
    a legitimate statement of fact.
        Judge Gonzales. Sir, respectfully, it doesn't represent the
    position of the executive branch.
        Senator Kennedy. I understand that, but it did for a period
    of time, and I was just interested in what your view on that is
    as a legal issue. It has important implications in the
    separation of powers. It has very important implications on it.
    We are entitled to understand your view about the separation of
    powers. This has very important implications on it, and that is
    why I am asking the question.
        Judge Gonzales. Sir, and I appreciate that, Senator, thank
    you. Whether or not the President has the authority in that
    circumstance to authorize conduct in violation of a criminal
    statute is a very, very difficult question, as far as I'm
    concerned. And I think that any decision relating to this line
    of reasoning would be one that I would take with a great deal
    of seriousness, because there is a presumption that the
    statutes are, in fact, constitutional and should be abided by.
    And this President does not have a policy or an agenda to
    execute the war on terror in violation of our criminal
    statutes.
        Senator Kennedy. Let me move on. The Bybee memorandum made
    up out of whole cloth a necessity defense application to
    torture. It argued that such a defense is viable because
    Congress did not make a determination on values vis-a-vis
    torture. However, the Congress categorically banned the torture
    when it enacted the statute in 1994. The Convention Against
    Torture, which the U.S. ratified in 1994, specifically states
    that no exceptional circumstances whatsoever, whether a state
    of war or threat of war, internal political instability, or any
    other public emergency may be invoked as a justification of
    torture.
        What did you think when you read the memorandum's section
    on the necessity provision? Did you realize right away that
    this was bad law and bad guidance for our military and
    intelligence?
        Judge Gonzales. Sir, I don't recall today my reaction to
    the line-by-line analysis in that opinion. What I did realize,
    being a former judge, trying to interpret a statute that may
    not be as clear as one would normally want to see on an issue
    this important, was that that was an arguable interpretation of
    the law. They were relying upon the definition of severe
    physical pain in other statutes passed by the Congress. And I'm
    sure we had discussions about it, and ultimately it was
    accepted because that was the ultimate decision and position of
    the Office of Legal Counsel.
        Senator Kennedy. Well, just to reach the conclusion that
    torture must involve the kind of pain experienced with death or
    organ failure, the Bybee memorandum relied on unrelated Federal
    statutes that define emergency medical conditions for purposes
    of avoiding health benefits, Medicaid statute. I have gone
    through it. I am not going to take the time on this. But that
    is how far they went.
        As the revised OLC memo on December 30th--
        Chairman Specter. Senator Kennedy, the red light is on for
    your 15 minutes. Will you proceed with this last question? Then
    the Chair is going to rule that we would ask you to submit the
    balance of your questions in writing.
        Senator Kennedy. Well, I would like to finish this, and
    then I would hope that I would have--I have attending the
    hearings. It is 4 o'clock. I know others want to inquire. I am
    glad to remain here and take my turn. I know there are some
    others that have to have a second or third, but I would
    certainly like to try to get into something on the civil rights
    issues, which are enormously important, and also something on
    the immigration issues. I don't intend to take a great deal of
    time, but I--
        Chairman Specter. Senator Kennedy, we talked about multiple
    rounds. We would like to finish the hearing today. How much
    more time do you need?
        Senator Kennedy. Well, I would think this is probably the
    last question I would have--I had hoped to ask about
    extraordinary rendition on the definition of torture, and then
    I have some--I need a round in which I would combine the
    immigration and the civil rights and criminal justice into one
    round.
        Chairman Specter. Well, can you conclude your questions
    with an additional 10 minutes?
        Senator Kennedy. Senator, with all respect to you, Mr.
    Chairman, I was on the Committee when the Senators asked an
    Attorney General for two and a half days about civil rights.
    You know, it is 4 o'clock in the afternoon. I am ready to
    comply with the rules on this, but these issues are
    extraordinarily important. We have not been dilatory. I think
    we are entitled to ask these questions. I know the process. I
    have other questions I am going to submit in writing. But I do
    think that we ought to be entitled to ask about civil rights
    and about immigration issues. I will wait my turn. I will be
    the last one. I will not be dilatory, but I would like to try
    to get responses on these issues.
        Chairman Specter. Well, the latitude has been extensive.
    Everyone else has taken two rounds, some only one. I do not
    think it is unreasonable to ask for an approximation as to how
    much time you will need so that an evaluation can be made as to
    whether we can conclude today. It is true that I said there
    would be multiple rounds, but that is within the realm of
    reason, and you have had 35 minutes so far, and I am prepared
    to give you an additional reasonable amount of time. I would
    just like to know what it is so we can plan.
        Senator Kennedy. Well, if I can conclude this one and then
    do 15 minutes, that would be fine.
        Chairman Specter. Conclude in 15 minutes?
        Senator Kennedy. If I can do this, the definition of
    torture, and then that will be the end on this subject, and
    then I will do--try to do it in less than 15 minutes. If I
    could get 15 minutes, it would wind me up.
        Chairman Specter. All right. Then take the last question,
    and the green light will go on for 15 more minutes.
        Senator Kennedy. After this one.
        As I mentioned in defining torture, the OLC used the
    description of ``severe pain'' contained in a Medicaid
    regulation on health benefits, which is completely unrelated to
    the whole question on torture. Now, as the revised OLC memo of
    December 30th explains, the statutes relied on by the Bybee
    memorandum do not define severe pain even in that very
    different context, and so they do not state that death or organ
    failure or impairment of bodily function caused severe pain.
    Clearly, the reasoning was unsound, and I guess what we
    conclude at this time, I would have thought it would be fairly
    obvious to you that someone can suffer severe physical pain
    without being in danger of organ failure.
        When I hear this kind of activity, I always remember
    meeting President Duarte of El Salvador, and when he was in
    prison, what they did is cut off a joint every week of his
    fingers. When he shook hands with you, he had four parts of
    fingers that were left on that part. But every week they used
    to tell him--they would leave it unattended. It got infected
    and caused him enormous kinds of health hazards on these parts.
    But I am always mindful about what I have seen with some
    individuals, as one, like others in this Committee,
    Republicans, who care about human rights and the excesses that
    have taken place.
        The question that I have is: Wasn't it obvious to you that
    someone can suffer severe physical pain without being in danger
    of organ failure? Wouldn't the removal of fingers, for example,
    fall outside the definition of torture and why wouldn't we have
    expected that you would have raised some kind of objection to
    it?
        Judge Gonzales. Senator, if I may answer your question, I
    don't recall reading that analysis to conclude that it would
    have to be that kind of pain in order to constitute torture.
    Obviously, things like cutting off fingers, to me that sounds
    like torture.
        Let me just remind you, Senator, that the Office of Legal
    Counsel was trying to interpret a statute written by the
    Congress. The Foreign Relations Committee, in making
    recommendations to the Congress regarding ratification of the
    Convention Against Torture, described torture as the top of the
    pyramid in terms of inflicting pain upon a human being. It
    described it, the Committee described torture as extreme cruel,
    extreme inhumane, extreme degrading conduct. This is what the
    Congress said. And I think the people at the Office of Legal
    Counsel were simply doing their best to interpret a statute
    drafted by Congress.
        Senator Kennedy. Well--
        Chairman Specter. Well, now, that is your question, Senator
    Kennedy. This round now has gone in excess of 22 minutes, and
    now we are going to start the clock again for 15 minutes, which
    under our discussion will conclude your allotted time. Start
    the time clock at 15 minutes.
        Senator Kennedy. I would be glad if Senator Leahy wanted to
    go, whatever way you want to proceed.
        Chairman Specter. Senator Leahy wants to intervene before
    starting Senator Kennedy's last 15-minute round.
        Senator Leahy. Senator Cornyn was waiting.
        Senator Cornyn. I am going to be here for the duration, Mr.
    Chairman, but I do have about 5 minutes or less.
        Chairman Specter. Senator Kennedy, why--
        Senator Leahy. Why don't I go?
        Chairman Specter. You want to go.
        Senator Leahy. Yes.
        Chairman Specter. Senator Leahy.
        Senator Leahy. And I probably will take about 15.
        One, I was glad to hear you say--and correct me if I
    misunderstood you--to Senator Durbin that it is wrong if a U.S.
    personnel turns somebody over to another country knowing they
    are going to be tortured. Did I understand you correctly on
    that?
        Judge Gonzales. I believe that is a law. That's certainly
    U.S. policy.
        Senator Leahy. And so they would be prosecuted, people who
    did that.
        Judge Gonzales. Yes.
        Senator Leahy. Now, President Bush signed a memorandum on
    February 7, 2002, which went through you, in which he directed
    U.S. armed forces to treat al Qaeda and Taliban prisoners
    humanely. You have said publicly this was the only formal
    written directive from the President regarding treatment of
    detainees. Is it your testimony the President has issued no
    other directive regarding the treatment of detainees? It is not
    a trick question. I want to make sure you understand it very
    clearly because you are under oath. My question is meant to
    include a directive in any form, to any government personnel,
    regarding any category of detainee from any theater of
    operations, regarding any aspect of detainee treatment,
    including interrogation.
        Judge Gonzales. Senator, I don't have any firsthand
    knowledge about the President giving directions regarding, say,
    specific techniques. That was not--in my judgment, in the
    Schlesinger report, he concluded it would be sort of out of the
    question to expect the President would be involved in making
    individual determinations--
        Senator Leahy. I am just going by your statement publicly
    that this was the only formal written directive from the
    President regarding treatment of detainees. Do you have any
    firsthand or secondhand knowledge of any other directive?
        Judge Gonzales. Sir, other than the directive by the
    President that we're not going to engage in torture and that
    we're going to abide by our legal obligations, I'm not aware of
    any other directive by the President.
        Senator Leahy. You have been at the center of many
    administration battles to keep Government information secret,
    from the Executive order that I believe gutted the Presidential
    Records Act, to the initial attempt to refuse to allow Dr. Rice
    to testify before the 9/11 Commission, to the question of
    keeping secret the Vice President's Energy Task Force. Now, I
    have always found that every administration, Republican or
    Democratic, would love to keep a whole lot of things from the
    public. They do something they are proud of, they will send out
    100 press releases. Otherwise, they will hold it back. We have
    the FOIA, Freedom of Information Act, which is a very good
    thing. It keeps both Democratic and Republican administrations
    in line. Historically the Government has established two broad
    categories of restricted Government information, classified
    information governed by Executive orders, and nonclassified
    information controlled by exemptions in the Freedom of
    Information Act. Now, recently there has been several new
    quasi-secret designations, sensitive but unclassified, or
    sensitive security. They seem to be done by ad hoc agency
    directive.
        If you are confirmed as Attorney General will you take
    steps to create a uniform standard to ensure material should be
    kept from public disclosure only to the extent necessary to
    prevent harm?
        Judge Gonzales. Senator, I will commit that that would be
    something that I would certainly look at.
        Senator Leahy. In September 2001, a speech in Houston, you
    talked about the work your office does vetting the personal
    background of every Bush appointee. You told your audience that
    after reviewing the FBI background report on an individual, you
    determine that person's suitability for the position, then the
    President makes a determination to go forward and nominate
    them. But numerous stories, news stories have reported that
    Bernard Kerik's name was publicly announced as nominee for the
    Department of Homeland Security before the FBI background
    report was begun, and this was not an uncommon practice in the
    White House. We know that he was a strong political supporter
    of the President, but it seems that the move was in haste here.
    It was reported that he withdrew his nomination because he
    discovered he had employed an illegal nanny, whose Social
    Security taxes he had not paid, this even though nobody seems
    to know the name of this nanny or what country she was from or
    whether she even existed. But there are a lot of other problems
    that were there, and apparently anybody was aware of them.
        I would like to know when you first learned about his being
    a defendant in a civil suit over unpaid debts; about reported
    extramarital relationship; about his use of a donated apartment
    for those involved in the aftermath of the 9/11 disaster in New
    York City, especially if it was used for adulterous situation,
    it would be a little illegal; and about gifts and ties to
    Interstate Industrial and its executives. Now, a White House
    spokesman said the White House was aware that many of these
    issues had been reported. My question, were you aware? What
    were you aware of before the President announced a plan to
    nominate Mr. Kerik to one of the most sensitive, important jobs
    of our Federal Government, the head of the Homeland Security,
    where he would handle the most sensitive classified material in
    this country?
        Judge Gonzales. Well, of course, Senator, there was no
    actual nomination of Mr. Kerik. There was an announcement of an
    intent to nominate. And before an actual nomination occurs,
    there is an FBI background check that is completed, and the
    reason you announce it as an intent to nominate is because you
    want to see the results of an FBI background check to see
    whether or not there is anything there that would somehow
    otherwise disqualify a potential nominee.
        Senator Leahy. But, Judge Gonzales, according to the press
    accounts, you were the one who personally, at some length, went
    over questions with Mr. Kerik. Were you aware of the apartment,
    the so-called 9/11 apartment?
        Judge Gonzales. Senator, my conversation with Mr. Kerik I
    would prefer not to discuss today, what is in my judgment--
        Senator Leahy. Are you claiming executive privilege?
        Judge Gonzales. No, sir, I'm not claiming executive
    privilege. The President had a desire to nominate Bernie Kerik
    to a very important position, someone I think by most accounts
    is well qualified, would have been well qualified to serve as
    Secretary. For a variety of reasons there was a desire to
    announce a potential nomination. That was done. There was, of
    course--there was some vetting in connection with Mr. Kerik's
    background, but the actual vet was--it was never intended that
    the vet would be--
        Senator Leahy. Let me ask you a hypothetical then. In this
    administration, would something, such as the so-called 9/11
    apartment, as referenced by the press by itself disqualify
    somebody from a position of enormous security clearance as Mr.
    Kerik's?
        Judge Gonzales. Senator, I have no idea whether or not
    those kind of allegations are true.
        Senator Leahy. Would the question of his extramarital
    relationship that had been in the press, would that disqualify
    him?
        Judge Gonzales. Senator, would that disqualify him? I can't
    say that it would definitely disqualify someone from
    consideration for a position.
        Senator Leahy. Do you know whether there ever was a nanny?
        Judge Gonzales. Senator, again, Mr. Kerik is no longer
    under consideration for Secretary of Homeland Security.
        Senator Leahy. The reason I ask this, there is some concern
    that if the President wants something you are going to go ahead
    and make it work, which--if I might, and I will give you all
    the time you want to respond--works against the idea of the
    independence of the Attorney General who is there, not as the
    President's Attorney General, but, as I said in my opening
    statement, the Attorney General for the whole United States.
    Then you have this whole list of things that were out there,
    apparently a lot of people knew about it, and suddenly he is
    withdrawn when Newsweek sends a copy of a story to the White
    House, look, we are going to publish all these things. Do you
    want to comment? You know, you are going to be vetting a whole
    lot of people if you are Attorney General, in some of the
    highest positions--the Assistant Attorney General in charge of
    the Criminal Division, Assistant Attorney General who handles
    intelligence matters and so on. I am just wondering what are
    the standards?
        Judge Gonzales. Senator, I hope as Attorney General that I
    would have and would commit to this Committee to have the
    highest standards regarding ethics. Let me just also say that I
    do very much understand that there is a difference in the
    position of Counsel to the President and as Attorney General of
    the United States. As Counsel to the President, my primary
    focus is on providing counsel to the White House and to White
    House staff and the President. I have a very limited staff. The
    staff doesn't have the expertise or the experience in a great
    many of substantive legal issues. All of those reside in the
    Department of Justice. I do have a client who has an agenda,
    and part of my role as counsel is to provide advice that the
    President can achieve that agenda lawfully. It is a much
    different situation as Attorney General, and I know that. My
    first allegiance is going to be to the Constitution and to the
    laws of the United States.
        My responsibility, by statute, is to provide legal advice
    to the executive branch. I know it is very important that there
    not be this idea or perception that somehow the Department of
    Justice is going to be politicized by virtue of the fact that
    someone who has served in the Counsel's Office for four years
    is now the Attorney General of the United States. I am very
    sensitive to that. I am committed to working hard that there
    are no accusations that that is happening to the Department.
        There are several ways that I can achieve that. One is to--
    again, as I have done today, is recognize and announce to this
    Committee that I do understand the difference between the two
    jobs. Secondly, talk to the career staff, work with the career
    staff to make them understand that I'm coming in to this
    department with a clear understanding of the distinct roles
    between the two jobs.
        Finally, I would just say that there is a very restrictive
    contacts policy between the Department and the White House,
    limiting who from the White House can contact the Department of
    Justice, because what we don't want to have is people from
    various divisions within the White House calling the Department
    about an ongoing investigation, and so that is something that I
    would look at and make sure that it is as strong as it should
    be, and would commit to the Committee that we would obviously
    honor any kind of contacts policy.
        Chairman Specter. Senator Leahy, how much more time would
    you like?
        Senator Leahy. Probably about 10 minutes, and then I will
    submit anything else for the record.
        Chairman Specter. Reset the clock for Senator Leahy for 10
    minutes, and beyond that he will submit questions in writing.
        Senator Leahy. Judge Gonzales, I do not raise the question
    of Mr. Kerik to pick on Mr. Kerik. I met him a few times. I
    have no feelings one way or the other. And certainly I have no
    objection to the President putting people into positions whom
    he wants and feels comfortable with. I used that example
    because it is like Abu Ghraib in a sense in that the
    administration knew about this torture. They have been asked
    questions by me, by Republican Senators and others that they
    refuse to answer about the torture before it became public.
    Nobody said, oh, my gosh, this is horrible. We're all against
    torture or anything else. When the pictures started appearing
    on the front page of the newspapers or on television, then
    everybody scrambles around and takes memos and policies that
    have been in place for some time, and they start changing it.
    We have talked about the memo on torture that was changed at
    the beginning of a three-day weekend just before New Year's,
    coincidentally, just before your coming here to testify.
        I mention the Kerik thing because apparently everybody in
    New York knew all these things. He had gone through all kinds
    of scrutiny, initial scrutiny by you. According to press from
    your office you gave him a very strenuous talking to. You know
    there are certain questions that are asked to elicit background
    information, yet it was only when Newsweek said, oh, yeah, we
    are going to print some stuff on this, that we suddenly find a
    convenient nanny. Maybe there was such a nanny. I do not know.
    But you see what I am getting at? I want to be more proactive,
    not just because the press finds something out, in what is a
    very, very secretive administration, but that people like
    yourself and others will say, wait a minute, do not go there.
    We have a problem.
        I will tell you, November 2003 we learned that for more
    than a year a Republican staff member named Manny Miranda had
    stolen computer files from a Democratic staff person on the
    Judiciary Committee, especially on matters relating to judicial
    nominations. Did you know about that file theft before it was
    publicly uncovered in November 2003?
        Judge Gonzales. No, sir, I did not.
        Senator Leahy. Do you know of anybody at the White House
    who received copies of those stolen memos?
        Judge Gonzales. No, sir, I do not.
        Senator Leahy. I know that--I do not think that anybody at
    the White House has denounced the theft of these memos on
    nominations from stolen memos from Democratic staffers. I would
    assume that you are not, by not making a denouncement, you are
    not endorsing what Mr. Miranda did.
        Judge Gonzales. Absolutely not, Senator.
        Senator Leahy. Now, the U.S. Attorney for the Southern
    District of New York is currently investigating the matter.
    Insofar as it involves the White House, I would assume that is
    an issue that you would consider recusing yourself from?
        Judge Gonzales. I would consider recusing myself, yes, sir,
    but of course, Senator, the actual decision would be made based
    upon examination of the facts and talking to the career
    professionals at the Department of Justice who have a great--of
    history in these kinds of issues, but of course I would be very
    sensitive about the appearance of a conflict of interest.
        Senator Leahy. You mentioned the sentencing guidelines
    earlier, specifically the Blakely case, which struck down the
    sentencing system in the State of Washington and cast serious
    doubts on the constitutionality of the Federal Sentencing
    Guideline. After that decision came down, I would hate to be a
    Federal prosecutor anywhere because a whole lot of plea
    bargains or other things are going to be revisited. From a
    defense point of view it is a great decision, but from a
    prosecutor's point of view it is terrible. There are a lot of
    Senators on both sides of the aisle here who would like to fix
    this situation. Would you, and the Department of Justice, work
    with an open mind with those Senators--Senator Specter and I
    were both prosecutors, and there are a number of others here
    who were as well--and to try to fix the situation in Blakely,
    try to constitute something that can be acceptable to the
    courts?
        Judge Gonzales. I will commit to that, Senator.
        Senator Leahy. I appreciate that. And in October last year
    the Congress passed and the President signed the Justice For
    All Act. It included the Innocence Protection Act. That is a
    death penalty reform initiative I have championed for many
    years, and is supported by people who are strong advocates of
    the death penalty, Ray LaHood of Illinois, for example, and the
    leadership, the Republican leadership in the House. It sets
    procedures for courts to consider requests for DNA testing by
    Federal inmates, but it also authorizes grants to States to
    help improve the quality of counsel in capital cases. We have
    had some discussion of this, and you know and I know in many
    instances, whether it is your own State of Texas or others, the
    counsel often are not qualified in capital cases, whether it is
    the sleeping counsel, or the drunk counsel, the $100 a day
    counsel. Other states do a very good job of it. Will you work
    with me to help make sure the IPA is properly implemented?
        Judge Gonzales. I will commit to you that I will do that,
    Senator.
        Senator Leahy. I would like to raise a concern about
    nominees and religion. Althout I object to some of the
    President's nominations, for most of them I have absolutely no
    idea of what their religion are. Yet I saw that somebody from
    the White House or White House connected, apparently denounced
    me as being anti-Catholic on a Sunday morning program. I did
    not happen to see it because my wife and I were at Mass at the
    time.
        [Laughter.]
        Senator Leahy. I would hope that whether it is Boyden Gray
    or anybody else who does this kind of thing, try to move them
    off that. You have people who care very deeply about their
    faith up here, and they are trying to do their job, no matter
    what religion they are.
        Judge Gonzales. I have no doubt about that, Senator.
        Senator Leahy. My religion means a great deal to me. I do
    not try to impose it on anybody else, but I also resent such
    charges.
        Here is a softball for you. When he announced your
    nomination, the President noted that your sharp intellect and
    sound judgment have helped shape our policies on the war on
    terror. Looking back on that, were any mistakes made, and were
    they corrected?
        Judge Gonzales. Any mistakes made in the war on terror?
        Senator Leahy. Involving you, and were they corrected?
        Judge Gonzales. Involving me, Senator, I will be the first
    to admit I am not perfect, and I make mistakes.
        Senator Leahy. Glory, hallelujah, you are the first one in
    the administration who has said that.
        Judge Gonzales. Hopefully, I learned from those mistakes. I
    think I have learned during these past four years Washington is
    a different type of environment than the one I am used to. And
    could I have done things better? Yes. And hopefully I have
    grown and I have learned. I think if confirmed it will make me
    a more effective Attorney General for the people of this
    country.
        Senator Leahy. It is a different town than many other
    places. You have had to look at those photographs of the
    mountains and the fields and whatnot from my farm in Vermont,
    and I can assure you I feel a lot different about the world
    when I am sitting there.
        Mr. Chairman, anything else I will submit for the record.
    As I told you before, I would work with you to try to keep
    things on schedule, and I believe I have done just that.
        Chairman Specter. Yes, you have, Senator Leahy. Thank you
    very much.
        Senator Leahy. You have been very fair.
        Chairman Specter. Thank you. I try to be fair.
        Senator Cornyn, you have five minutes more. Senator Kennedy
    has 15 minutes, and then we will submit whatever else he has in
    writing. Senator Sessions, would you care for another round?
        Senator Sessions. Please, that would be great.
        Chairman Specter. Senator Cornyn, the floor is yours.
        Senator Cornyn. Thank you, Mr. Chairman.
        Really just two matters. I know Senator Kennedy was asking
    about the memo, I believe it was a draft of March 19th, 2004.
    This was the memo that was I guess leaked regarding
    permissibility of relocating certain protected persons from
    occupied Iraq. It was leaked, was it not?
        Judge Gonzales. I believe that's correct.
        Senator Cornyn. I will just go back to what I said earlier
    about very few secrets in Washington, D.C., and I guess this
    helps to--is further evidence of that. But let me just ask. I
    see this is a draft memo; is that right?
        Judge Gonzales. I believe that is correct.
        Senator Cornyn. So it was not a final determination or a
    final statement of policy or a final legal conclusion, was it?
        Judge Gonzales. The draft is a draft.
        Senator Cornyn. I also see that the last footnote of the
    draft--and of course lawyers like footnotes, but they are
    important--says that protected persons ``ordinarily retain
    Convention benefits.'' So I guess in a strict sense these are
    not ghost detainees because the conclusion at least of this
    draft is that they retain, essentially retain protections under
    the Convention. Would you agree with that?
        Judge Gonzales. I believe so, Senator, but I would want the
    opportunity to look at that again before agreeing without any
    kind of reservation.
        Senator Cornyn. Fair enough. That just struck me as a
    contradiction with the suggestions we had heard earlier that
    somehow that this is a lawless enterprise, that indeed the
    conclusion at least of the draft was that ordinarily these
    detainees retain Convention benefits.
        And finally, as you know, because we worked together in
    Texas when I was Attorney General, I have a deep and abiding
    faith in the cause of open government, and as Attorney General
    I was responsible for ruling on open records requests and
    writing legal opinions on open meetings laws. Well, Senator
    Leahy and I have joined cause, and I hope will be able to come
    up with some improvements to the Freedom of Information Act. I
    hope we can count on you to work with us in that cause. Here
    again, as we have observed, Washington operates a little
    differently from what at least my experience had been in Austin
    and elsewhere, but the fundamental proposition about the
    people, the legitimacy of Government flowing from the consent
    of the governed, seems to be in a principle that I hope would
    apply here, as well as it applied in Austin, and I am being
    somewhat facetious there.
        But let me get to my question. As you know, Justices Scalia
    and Breyer both testified during the last Congress that the
    Administrative Conference of the United States is a great
    agency with a long track record of promoting good government,
    and that it deserves to be renewed. Indeed President Bush
    recently signed legislation renewing the Conference, and I am
    confident did so after soliciting your input. I am particularly
    interested in the Administrative Conference because of its
    previous role in improving Agency performance under the Freedom
    of Information Act. If confirmed, will you commit to working
    with me and the Committee and the Congress generally to ensure
    that the Administrative Conference has a strong role to play in
    enhancing Agency performance under the Freedom of Information
    Act?
        Judge Gonzales. I would commit to you, Senator, that I
    would look forward to working with you on that issue.
        Senator Cornyn. Thank you very much.
        Thank you, Mr. Chairman.
        Chairman Specter. Senator Sessions.
        Senator Sessions. Thank you, Mr. Chairman.
        Judge Gonzales, I congratulate you. It has been a long day,
    but you have handled yourself with skill, integrity and good
    humor, and that is a valuable trade in the difficult job you
    undertake. My experience is that the Department of Justice is
    such a wonderful institution, but it is big, it is complex. It
    has agencies and departments do not realize within its ambit,
    such as the Federal Bureau of Prisons, the Drug Enforcement
    Administration, the FBI, the U.S. Marshals Service. Those are
    tremendous entities of great importance to our country. I hope
    that you will spend some time looking at all of those agencies
    and departments and making recommendations to how to make them
    more efficient.
        Senator DeWine asked you about what if you run short. I
    think that is possible in certain areas. But I also think, from
    my experience in the Department, there will probably be some
    areas that are overstaffed. You could have a circumstance in
    which there are more Assistant United States Attorneys than
    there are FBI and DEA agents to bring them cases, or vice
    versa, too many agents for the prosecutors to prosecute the
    cases effectively. So I hope you will look at that and work
    toward the efficiencies.
        Judge Gonzales. I will do that, Senator.
        Senator Sessions. You know, you were asked about saying
    some of the language of the Conventions are quaint. I remember
    when I was in law school at Alabama, my wife and I lived at
    Northington Campus, and that was where the German prisoners of
    war were held. I do not think they had much more than a fence.
    They had a recreation grounds. I am told that they interfaced
    with the people in the community, and even went to church and
    played the organ or sang in choirs.
        But this is a different type of prisoner from the World War
    II group that we were looking at, and we do need to--some of
    the things are not quite as logical, such as guaranteeing them
    scientific instruments or giving them pay, paying them while
    they are prisoners, or athletic equipment and clothes. But I
    guess also the President--and you have been with him--feels
    deeply the responsibility he has and had during this post 9/11
    time to protect the American people. That had to be on his mind
    whenever he made a decision. Is that correct?
        Judge Gonzales. That was his number one objective, Senator,
    to do so, consistent with the legal obligations of this
    country.
        Senator Sessions. And I know that in October of this past
    year, we released close to 150 detainees at Guantanamo Bay. I
    guess ACLU or somebody sued over that or whatever, and they
    were released. Here are some of the headlines that have
    occurred since. ``Freed detainees rejoin fight; Ten ex-
    Guantanamo inmates have been caught or killed,'' headline in
    the Washington Post of October 2004. ``Detainees back in
    battle. At least eight ex-Guantanamo inmates fighting again in
    Afghanistan,'' Pittsburgh Post Gazette. ``Ten freed from Cuba
    return to fighting,'' Chicago Tribune. ``Freed detainees return
    to jihad, at least 10 militants captured or killed Gitmo
    captors of intent,'' Orlando Sentinel.
        So it is easy to say why do we not just err in the side of
    being lenient and let people go, but you knew and the President
    knew and the people supervising Guantanamo Prison knew that
    there were risks when you did that; is that not true? And that
    makes you cautious?
        Judge Gonzales. Of course, Senator, we don't want to detain
    anyone that shouldn't be detained, and not for a minute longer
    than we need to detain someone. There are multiple screening
    processes in place with respect to detainees that go to
    Guantanamo. There are multiple screens when they are captured,
    when they're moved into Bagram into a central holding facility.
    There's a multiple screen--I mean there's a screen with respect
    to deciding whether or not they should go to Guantanamo. Then
    when they arrive at Guantanamo, there's an additional screen to
    see whether or not they should be at Guantanamo. And then there
    are annual review screens. We've now implemented a process to
    ensure that if we no longer need to hold someone, that we
    should release them. But it is true that some have been
    released that we've now discovered have come back to fight
    against Americans, and that of course is the danger. We
    obviously don't want to hold anybody longer than we have to,
    but we don't want to be releasing people that are going to end
    up killing American soldiers. So it's been a challenge.
        I think the good people within DOD have exercised, have
    addressed that challenge in the very best way they can. It
    hasn't worked perfectly, but they've done a good job in my
    judgment.
        Senator Sessions. And by the way, this was a Department of
    Defense decision, is that correct, on releasing there at
    Guantanamo?
        Judge Gonzales. Oh, of course. That's not a decision made
    by the White House. That would be a decision ultimately made by
    Department of Defense. But they would also consult with the
    CIA. They would also consult with the Department of Justice to
    see whether or not those agencies had any information about the
    detainee. And so it would be a collaborative effort to gather
    up the intelligence information about a detainee, but
    ultimately the Department of Defense would make the decision
    that this is someone that it would be okay to go ahead and
    release.
        Senator Sessions. Well, you did not run the Department of
    Defense or have any supervisory control over anybody at the
    Department of Defense, did you?
        Judge Gonzales. Absolutely not.
        Senator Sessions. Now, of course, so we have 10 rearrested.
    I think we can logically conclude that more than 10 have
    returned to terrorist activities, they just have not been
    caught, maybe twice or three times that many. So that is a
    pretty good number out of the 150 we took a change on
    releasing, who have returned to the battlefield. They were
    released while the war is continuing. And I just want people to
    note that this is not just an academic exercise. Lives are at
    stake. You had to make tough decisions and recommendations to
    the President. The President had to make them. Secretary
    Rumsfeld had to make them. He let some of these go, and some of
    them returned to battle right away, and we know that is true.
        Judge Gonzales, I have offered, and Senator Hatch has
    joined me, in the first real piece of legislation that would
    modify the sentencing guidelines that are very, very tough on
    crack cocaine possession and distribution. In fact, I have
    concluded, as a prosecutor who utilized those guidelines
    completely, and fairly, and aggressively, that they are tougher
    than we need them to be.
        The Department of Justice has not signed on to that as of
    this date. We have not gotten some of our Democratic members. I
    do not know where they are. But we need this year to bring up
    some legislation that is fully vetted by the Department of
    Justice to make sure we do not make any mistakes. And I do not
    take a back seat on anybody in my belief that criminals and
    drug dealers need to be punished. But I honestly believe that
    we could improve these guidelines and that there is disparity
    between crack and powder, and we can narrow that substantially.
        Will you work with us on that to see if we cannot gain the
    support of the Department of Justice?
        Judge Gonzales. I will commit to you that I will look at
    that, Senator.
        Senator Sessions. Thank you, Mr. Chairman.
        Chairman Specter. Thank you very much, Senator Sessions.
        Now, we turn to Senator Kennedy for his final 15-minute
    round, with additional questions to be submitted for the
    record.
        Senator Kennedy?
        Senator Kennedy. Thank you very much, Mr. Chairman.
        Let me just underline what Senator Sessions has mentioned
    on crack cocaine. We have tried to work together on this with
    the Sentencing Commission, and we worked with former Deputy
    Attorney General Wayne Budd, who, after he left the Justice
    Department, took an interest in it. It is probably the most
    difficult part of the Sentencing Guidelines, but it is also one
    of the most offensive and unfair aspects of it. So we
    appreciate it. We will try and work with Senator Sessions as
    well and see if we cannot come up with a common position.
        Senator Sessions. Thank you, Senator Kennedy. I believe
    that, if studied, you would feel comfortable that this would be
    a good step.
        Senator Kennedy. Thank you.
        I wanted to talk, in the time that is available, abut
    immigration issues and some civil rights issues and then
    quickly on the death penalty what you are going to do. Those
    are the three areas I would like to try and cover. One which we
    have talked about is the State and local law enforcement of
    immigration laws. You are familiar with this. In 2002, the
    Department of Justice reversed longstanding policy of support
    of the inherent authority of States to enforce Federal
    immigration laws. This reversal was based upon an Office of
    Legal Counsel opinion that has not been made public. I have
    asked for a copy of the opinion, so have others of the
    Congress. Interested parties have asked for it, too. Their
    refusal to disclose has been the subject of a lawsuit.
        The Department's response failed to provide the opinion,
    but simply offered its conclusion without any discussion. I
    have difficulty in finding a good reason why the Department
    continues to keep the opinion and its legal analysis secret,
    especially since it reverses a longstanding policy that scores
    of police chiefs, police departments around the country,
    including many in your home State of Texas have denounced the
    idea of involving State and local police in Federal immigration
    enforcement.
        Last month, the International Association of Chiefs of
    Police issued a report expressing concern. They and others
    believe it will destroy the remarkable progress they have made
    with community policy, in which police work closely with the
    public, including immigrant communities and develop productive
    bonds of trust. Concerns raised by law enforcement, shared by
    many conservative security experts--I cannot believe I am
    quoting Grover Norquist, Bob Barr of the Heritage Foundation--
    all say this could be an unmanageable burden on the law
    enforcement officials.
        So could you tell us why the secrecy on the OLC memo, and
    can you tell us whether you support releasing the OLC opinion
    on the authority to--
        Judge Gonzales. Senator, thank you for that question. You
    and I did talk about that in your office. This matter is in
    litigation, as you indicated. There is FOIA litigation about
    the release of the memo. The conclusions are known. It is the
    analysis, the deliberations that went into the opinion I think
    that the Department is seeking to protect.
        Let me just emphasize, though, or try to provide
    reassurance about this. There is no requirement, of course,
    upon State and locals to enforce Federal immigration laws. This
    is truly voluntary and, in fact, of course, some States have
    prohibitions. They could not do it even if they wanted to. In
    some cases, the Department, as I understand it, has run into,
    with State or local departments, in terms of memoranda of
    understanding, in order to enforce this.
        I am certainly sensitive to the notion that some local law
    enforcement people don't want to exercise this authority. Well,
    we are not saying that they have to. But if they want to and
    can assist in fighting the war on terror, that is what this
    opinion allows us to do.
        Personally, I would worry about a policy that permits
    someone, a local law enforcement official, to use this
    authority somehow as a club, to harass. They might be
    undocumented aliens, but otherwise lawful citizens. That would
    be troubling. That would be troubling to the President, who, as
    the former Governor of a border State understands and
    appreciates the roles that immigrants and undocumented aliens
    play in our society. But it is in litigation, and it would
    probably be better if I didn't speak more about that.
        Senator Kennedy. All right. Well, I am going to move on to
    some of these other areas, but we can come back.
        One, considers the actions on the Arabs, Muslim, and other
    immigrant communities. After September 11th, thousands of
    immigrant men from Arab Muslim countries were fingerprinted,
    photographed, interrogated under various Justice Department
    programs. Individuals were targeted based on their religion and
    national origin, instead of evidence of dangerousness. The
    result was massive fear in many Muslim and Arab communities,
    and cooperation with antiterrorism efforts were frustrated. At
    a time when we needed critical intelligence, members of the
    Arab and Muslim communities were unfairly stigmatized and
    discouraged. I think part of the result was an increase in the
    hate crimes as well against them. I am going to try and come
    back to that.
        Do you believe that targeting persons, based on their
    religion or national origin, rather than specific suspicion or
    connection with terrorist organizations is an effective way of
    fighting terrorism? And can we get interest from you, as
    Attorney General, that you would review the so-called
    antiterrorism programs that have an inordinate and unfair
    impact on Arab and Muslims?
        Judge Gonzales. I will commit to you that I will review it.
    As to whether or not it is effective, will depend on the
    outcome of my review.
        Senator Kennedy. On the issues of civil rights enforcement,
    civil rights is still the unfinished business of America. If
    you are confirmed, you will be overseeing the Civil Rights
    Division. Unfortunately, that progress has been sometimes
    stalled by the administration. It is very important that the
    Committee know that you are committed to that progress. I would
    like to get into some specific questions about it.
        In 2004, the Civil Rights Division did not file a single
    case alleging racial or ethnic discrimination against minority
    voters, not one. In 2003, the division filed only one such
    case. That is not very satisfactory, given the widespread
    discrimination against minorities in State, local, even Federal
    elections across the country.
        So, if you are confirmed, will you review those particular
    statutes and find out what the Department is doing or should do
    in terms of ensuring that the law is complied with?
        Judge Gonzales. I will commit to you that I will do that,
    Senator.
        Senator Kennedy. I am going to move on from Section 2 of
    the Voting Rights Act, which prohibits voting practices that
    discriminate based on race, color or membership in a language
    minority.
        I would ask you to take a very close look at this issue,
    given, again, the Department's record on it. The Civil Rights
    Division has actually opposed voters' interest in several court
    cases. The division opposed attempts by the Michigan NAACP and
    others to ensure that all provisional ballots by eligible
    Michigan voters were counted in the November election. That is
    the Bay County Democratic Party v. Land. And the division
    argued that the Help America Vote Act's creation of provisional
    ballots did not give private citizens any legal rights that
    they could enforce in court.
        In fact, the Department was supporting attempts by States
    not to count votes of some of the actual eligible voters. And
    this provision I think disregards the fact that Congress passed
    the Act, including the provisional ballot requirement,
    precisely because they were concerned about violations of the
    2000 election. And the division's argument that individuals had
    no right to enforce the provisional ballot provisions in the
    Help America Vote Act had been rejected by every court that
    heard it. So I am troubled the Department used limited
    resources to discourage and prevent citizens from enforcing the
    right to vote, and the Civil Rights Division has been the
    champion for civil rights not opposing the voting rights in
    keeping votes from being counted.
        So I would hope that you would have a chance to review that
    particular activity in the Department.
        Judge Gonzales. You have my commitment on that, Senator.
        Senator Kennedy. Thank you.
        A third area in civil rights is the pattern and practice on
    job discrimination. Many of us are concerned that the Civil
    Rights Division reduce the enforcement of the landmark law
    against employment discrimination. This is Title VII of the
    1964 Act. The division has filed few cases alleging a pattern
    or practice of discrimination. This is in spite of the fact, I
    believe, that the Equal Employment Opportunity Commission has
    record sort of numbers. So there are some that say, well, this
    is not such a problem today, but you have another Government
    agency indicating that it really is a problem. I would
    appreciate it very much if you could review that section of the
    Civil Rights Act and--
        Judge Gonzales. I will commit to you that I will do that,
    Senator.
        Senator Kennedy. And also on the disparate impact laws and
    job discrimination. That is the 1991 Civil Rights Act that we
    have had.
        I would appreciate the review of those. We will have an
    opportunity to talk with you about it. We can submit questions
    in more precision, but having your assurance in this is good
    enough for me.
        The death penalty. General Ashcroft had repeatedly rejected
    the recommendations by U.S. attorneys not to seek the death
    penalty. In fact, on some occasions, the Federal prosecutors
    had been required to seek the death penalty, even though
    defendants were willing to plead guilty in return for life
    imprisonment.
        General Ashcroft required his approval in all cases in
    which the death penalty is taken off the table. He required
    notice to him in all prosecutions where the death penalty was a
    possibility, even if the local U.S. attorney believed the case
    did not merit it. As of last September, the Attorney General
    had directed U.S. attorneys to pursue the death penalty in 41
    cases in which U.S. attorneys had specifically recommended
    against it. Of these 41, only three resulted in the penalty
    actually being imposed.
        We have seen the Attorney General deal with the death
    penalty issues in different ways in the Department. I
    mentioned, when we talked, that Janet Reno dealt with it one
    way, in terms of the reviews. Other Attorneys General have done
    so as well.
        I do not know whether you are prepared to make any comments
    about how you might set up some kind of a process or procedure
    in terms of the Department, in reviewing recommendations or how
    you might proceed.
        Judge Gonzales. Senator, I am not prepared at this time,
    but I understand that this is a very important issue for you
    and, if confirmed, I would look forward to the opportunity to
    visit with you more about it.
        Senator Kennedy. I would like to mention, also, the hate
    crimes. The Chairman of the Committee, myself, and others have
    been strong supporters. We have had strong support for it in a
    bipartisan way in the Senate, in the past. We have been unable
    to gain support in the administration. This is extremely
    important. The number has increased. I think many of us look at
    hate crimes as sort of the domestic terrorism, and we believe
    that, in fighting the hate crimes, which are focused not just
    on the individuals, but individuals representing a group, that
    we ought to be able to have the full force of the Federal
    Government on the side of the victims on this issue.
        I do not expect that you are able to give us a definitive
    answer on this issue this afternoon, but I would ask if you
    would be willing to work with us at least to try and see if we
    can. Senator Hatch has been interested in this. He has got a
    somewhat different approach than we have had, but if we could
    have some assurance that you would review this issue as well
    and work with us, to the extent that you can.
        Judge Gonzales. I am happy to look at this issue, Senator.
        Senator Kennedy. Mr. Chairman, I have a limited number of
    additional, which I will file with the--
        I want to point out what we had, and this will be my final
    comment, we had 22 days of hearings with Mr. Kleindienst for
    his Attorney Generalship. We are doing this with Mr. Gonzales
    in rapid form, as we might. So I thank the Chair. I appreciate
    Mr. Gonzales' visit in the office and also his responses today.
        I will submit a limited number of questions on some
    additional areas: a gun show loophole and some other issues
    which are of importance.
        I thank the Chair.
        Chairman Specter. Thank you very much, Senator Kennedy. I
    agree with you, the Judiciary Committee hearings on Mr.
    Kleindienst were not long enough.
        [Laughter.]
        Chairman Specter. We have tried to accommodate all of the
    questions. We were prepared to have, and did have, multiple
    rounds. And as witnessed, most of the Senators took one or two
    rounds, and I think we have had a very full hearing. And if it
    is required more days, if more Senators had been here, more
    time was necessary, we were prepared to do what was necessary.
        I have some concluding questions on my third round. I want
    to give you an opportunity, Judge Gonzales, to respond to a
    story in the Washington Post today, where the lead comment is
    about a case involving a Mr. Henry Lee Lucas, who was an
    applicant for clemency. And the Post makes a comment that left
    out of the summary you made was any mention in 1986 of an
    investigation by the Texas attorney general that concluded that
    Mr. Lucas had not killed the woman, and Jim Maddox, the
    attorney general, was critical, saying that he would not have
    wanted to see a decision on such partial information.
        What response would you care to make to that?
        Judge Gonzales. Sir, I don't recall, I don't have the text
    of that summary in front of me. And as to whether or not--I
    have recollection that there was some discussions about the
    issue you just raised, and my views are that, if, in fact, I
    had knowledge about that, that certainly would have been
    information that would have been communicated to the Governor.
    As I indicated, in response to an earlier question, those
    summaries were just summaries. There were, in virtually every
    case, numerous conversations with the Governor about a
    particular case before an execution actually went forward.
        Chairman Specter. Just one question about the so-called
    Bybee memorandum, and it is do you agree with the statement in
    the memo, ``Congress may no more regulate the President's
    ability to detain and interrogate enemy combatants than it may
    regulate his ability to direct troop movements on the
    battlefield''?
        Judge Gonzales. I reject that statement, Senator.
        Chairman Specter. You reject that statement.
        Do you agree with the decision by U.S. District Judge James
    Robertson, handed down on November 24th of last year, when he
    stopped the military tribunals, ruling that detainees' rights
    are guaranteed by the Geneva Conventions?
        Judge Gonzales. Sir, I haven't studied the rulings. That
    decision is on appeal. I believe, generally, we respectfully
    disagree with the judge.
        Chairman Specter. Do you believe that the CIA and other
    governmental intelligence agencies are bound by the same laws
    and restrictions that constrain the operations of the U.S.
    armed forces engaged in detention and interrogations abroad?
        Judge Gonzales. Certainly, some of the laws, sir. UCMJ, for
    example, would be a limitation on military forces that would
    not be applicable to the CIA.
        Chairman Specter. Well, in what circumstances would the CIA
    have a broader latitude? Why do you not think about that one
    and give us a response in writing. That is a fairly involved
    question.
        Judge Gonzales. I appreciate that, Mr. Chairman.
        Chairman Specter. Do you support affording the
    International Committee of the Red Cross access to all
    detainees in U.S. custody?
        Judge Gonzales. As a general matter, I very much support
    the work of the Red Cross and, as a general matter, would agree
    that they should be provided access. I think the Red Cross
    serves a very, very important function. They have, in the past,
    been responsible for the safe treatment and health of U.S.
    soldiers who are captured by our enemy and so, yes, as a
    general matter, that is true.
        Chairman Specter. Your answer is, yes, to that question.
        Judge Gonzales. As a general matter, yes, sir.
        Chairman Specter. The final subject that I want to take up
    with you is one on congressional oversight. A fair amount of
    concern with Attorney General Ashcroft, and I have a very high
    personal regard for Attorney General Ashcroft. I served with
    him. I sat next to him for 6 years on the Judiciary Committee.
    And when he came in for oversight hearings, I commented, from
    time to time, how different his opinion was, as a Senator on
    the oversight committee, questioning the Attorney General than
    in reverse.
        And one of the items which I would urge you to do is when
    you are scheduled for oversight to allow sufficient time so
    that it is not a matter of coming in and having another
    commitment at noon or 2 o'clock to give the members the
    opportunity to question you. You have certainly been very
    forthcoming here today. I think it is a very healthy sign when
    Senator Leahy and Senator Kennedy ask a series of questions or
    are working with you in the future, that does not commit them
    to their vote or does not commit them to what is going to
    happen, but it is nice to hear that they want your commitment
    as to future activities, if confirmed.
        But I would like your assurance that you would be
    responsive to the invitation from the Committee twice a year.
        Judge Gonzales. Certainly, my goal would be to be as
    responsive as I reasonably can, and certainly two times a year
    certainly sounds reasonable to me, Mr. Chairman.
        Chairman Specter. And on the question of responding to
    letters, that is not an easy job. It has been very hard, from
    time to time, in fact, most of the time, not just the current
    Attorney General, but preceding Attorneys General, for getting
    responses to Committee questions. We would like your commitment
    that you will see to it that these letters do receive your
    attention. There are not so many of them. On one subject
    matter, I had to write to the Attorney General five times and
    still have not gotten an answer. So I ask you the question here
    today.
        Judge Gonzales. I will certainly look at that, Mr.
    Chairman.
        Chairman Specter. A final subject matter is one which gives
    the scope of congressional authority on oversight, and I wrote
    to you on December 27th, so you would have a specific notice
    that I wanted to talk to you about it. And this is on the
    Congressional Research Analysis, which was done in 1995, and I
    quote in material part, a ``review of congressional
    investigations over the past 70 years demonstrates that DOJ has
    been consistently obliged to submit to congressional oversight
    regardless of whether litigation is pending.'' And I have
    omitted irrelevant parts. And then going on, this covers ``the
    testimony of subordinate DOJ employees, such as line attorneys
    and FBI field agents, and included detailed testimony about
    specific instances of the Department's failure to prosecute
    alleged meritorious cases. In all instances, investigating
    committees were provided with documents respecting open or
    closed cases that included prosecutorial memoranda, FBI
    investigative reports, summaries of FBI interviews, memoranda
    and correspondence prepared during the pendency of cases.''
        Do you agree with that generalized statement as to the
    authority of congressional oversight?
        Judge Gonzales. Certainly, I respect the fact that, if
    confirmed as Attorney General, I will be at a Department, and
    as Attorney General, I am accountable to the American people
    for the oversight of this Committee. It is a different
    situation than over in the White House, where there are perhaps
    different views about oversight of the White House.
        I look forward to working with the Committee. I think, as I
    said earlier, in response to another question, my goal is to
    have a good working relationship with this Committee. I respect
    the oversight role of this Committee. I do have some concern
    because I want to be very candid with you about whether or not
    the release of information may somehow impinge upon an ongoing
    investigation. I do have concerns about whether or not the
    release of information may somehow jeopardize national
    security. But my goal, Mr. Chairman, is to work with the
    Committee and to try to find a way that we can reach an
    accommodation, so that your goals are met, and the
    institutional interests of the executive branch are met.
        Chairman Specter. Judge Gonzales, that is your first answer
    that I find insufficient. The oversight issue is one which is
    really of vital importance. This Committee wants to be helpful
    to you, and there is a lot of experience on this Committee. You
    have Senator Cornyn, who is gaining more experience by the
    minute because he has been so diligent in attending these
    hearings, and I commend you especially, Senator Cornyn. Senator
    Sessions was a U.S. attorney and an Attorney General. And there
    are very experienced members of this Committee. Senator Leahy
    was the district attorney of Burlington, and others on the
    Democratic side have very extensive experience, and I have had
    some myself.
        And we are in a position to be helpful to you. And it may
    be that we will be asking you some matters that you can only
    show Senator Leahy and myself when they are pending matters.
    That is the practice in the Intelligence Committee, where
    matters are not given to the full membership of the Committee,
    but only to the Chairman and Vice Chairman.
        Judge Gonzales. Mr. Chairman, if I may--
        Chairman Specter. Yes.
        Judge Gonzales. --I am not saying, no, to any kind of
    request. My commitment is to work with this Committee. I
    understand about your oversight responsibility, and I will do
    my very best to work with this Committee.
        Chairman Specter. On our oversight, we are going to be
    very, very diligent, and we are going to be asking you for a
    lot of tough material on pending litigation, which we have the
    authority to do and to talk to line attorneys. We had an issue
    a few years back where we had a very difficult time and finally
    got the line attorneys, and FBI field agents, and detailed
    testimony about specific cases of the Department's failure to
    prosecute alleged meritorious cases, and documents respecting
    open or closed cases, which include prosecutorial memoranda,
    FBI investigative reports, summaries of FBI interviews,
    memoranda and correspondence prepared during the pendency of
    cases.
        There has been a long history, Judge Gonzales, of requests
    being made by this Committee and not being honored, and we
    intend to pursue that.
        Judge Gonzales. I understand, Mr. Chairman.
        Chairman Specter. And we intend to pursue them in a very,
    very helpful way.
        Judge Gonzales. And I appreciate that.
        Chairman Specter. And if we ask you for something which is
    pending or something which is confidential, and you want to
    make it available only to Senator Leahy and myself, we will
    understand that. I think we have established our
    trustworthiness. Well, I will not go beyond, but we have great
    respect for the position of Attorney General of the United
    States, and there is a very, very close working relationship
    with the Judiciary Committee. And we think we could have been
    helpful to the Department on what happened at Guantanamo early
    on, very sensitive as to what the Government's response was
    after 9/11. And, again, the first responsibility of the
    Government is to protect its citizens. But I think, had there
    been a little oversight and a few inquiries as to what was
    going on, on Guantanamo, we could have been very helpful to
    you.
        And had we known about the Bybee memo and what was
    happening with the transmission and the migration, I think we
    could have been helpful to you again on taking a look at that
    memo and giving you the advantage of our experience. And by
    hindsight, there is no doubt that the Bybee memo was not what
    it should have been, without getting into it or characterizing
    it in any way. But we are in a position to be helpful to you.
        So, in taking up this subject, I have laid it on the line
    as to what we are going to be looking for.
        Judge Gonzales. Thank you, Mr. Chairman.
        Chairman Specter. Judge Gonzales, I repeat I think you have
    been very responsive. I think the fact that there were not more
    Round Two of questions is a tribute to the answers which you
    gave to Round One. And where we had Round Three and a half and
    Round Four and Four and a half, and about an hour of
    questioning from one of our very diligent Senators, whom I
    respect very, very much, and the extended questioning of
    Senator Leahy, I think you have been very responsive.
        So thank you very much, and there will be questions
    submitted to you in writing in a number of directions, and your
    prompt responses would be very much appreciated.
        Judge Gonzales. Thank you, Mr. Chairman, and I thank the
    Committee.
        Chairman Specter. As the expression goes, Judge Gonzales,
    you are excused.
        Judge Gonzales. Thank you.
        Chairman Specter. Thank you.
        Senator Cornyn. Mr. Chairman, may I make a brief UC
    request?
        Chairman Specter. Of course, Senator Cornyn.
        Senator Cornyn. Thank you, Mr. Chairman.
        I neglected earlier, when I was asking about the written
    response to the document request that Senator Leahy had made to
    the White House, I neglected to ask unanimous consent that the
    three letters that were written, I believe authored by David
    Leitch, in response to Senator Leahy's request, dated December
    the 17th, 30th, and January the 5th, be made part of the
    record.
        Chairman Specter. Without objection, they will be made--
        Senator Leahy. If we might, could we, also, then put as
    part of the record my response letter, pointing out that those
    were not responsive and my concern that those letters were not
    responsive.
        Chairman Specter. Both requests for and inclusion into the
    record will be honored without objection.
        I would offer, for the record, a letter to me, dated
    December 26th, 2004, from the Committee of Concerned
    Philadelphia Rabbis.
        Under the Committee rules, we have one week for the
    submission of written questions.
        I would like to call our next witnesses, a panel, Dean
    Hutson, Mr. Johnson and Dean Koh.
        Our first witness, in alphabetical order, is Dean John
    Hutson.
        Senator Kennedy. Mr. Chairman, just while the witness is
    coming, could I extend a warm welcome to Dean Koh--the whole
    panel. But Dean Koh has a brother who ran the Public Health
    Service in Massachusetts and was just, I would say, under
    Republican governors, but his outreach was extraordinary, and
    his leadership was just exemplary. And he is just a very highly
    regarded and respected member of our Massachusetts community.
    So I am sure the good dean has seen him more recently than I
    have, but I just wanted to point out that service and
    commitment to the public good runs long and deep in this
    family, and I appreciate the chance to add a warm welcome to
    him.
        Senator Leahy. If I could, also, note for the record, too,
    Mr. Chairman, Dean Koh's daughter Emily is here, too, as a
    freshman at Yale. And I thought someday, in the Koh archives,
    they will go back to this record, and she will be able to see
    her name is in there.
        Chairman Specter. Well, thank you very much, Senator
    Kennedy and Senator Leahy, for those comments.
        As I had started to outline, our first witness,
    alphabetically, is Dean John Hutson, dean and president of the
    Franklin Pierce Law Center in Concord, New Hampshire. Dean
    Hutson has a record as a rear admiral, a graduate of the
    University of Minnesota Law School, and has had a long and
    distinguished naval career, including being the Navy's judge
    advocate general during the administration of President Bill
    Clinton.
        We are allotting 10 minutes for the testimony of each of
    you gentlemen, and then it will be followed by questioning from
    the panel.
        Dean Hutson, we look forward to your testimony, and the
    floor is yours.

    STATEMENT OF JOHN D. HUTSON, DEAN AND PRESIDENT OF THE FRANKLIN
               PIERCE LAW CENTER, CONCORD, NEW HAMPSHIRE

        Admiral Hutson. Thank you, Mr. Chairman, Senator Leahy,
    Senator Kennedy, Senator Cornyn. Thank you for inviting me. I
    request that my written statement be made a part of the record.
        Chairman Specter. Your statement will be made a part of the
    record in full, as will the statements of Dean Koh and Mr.
    Johnson.
        Admiral Hutson. Thank you, sir.
        As Americans, we have been given many gifts by our Creator
    and our forbearers, and we hold these gifts in trust for our
    progeny and for mankind, generally. One of these gifts is great
    military strength. This military prowess is enhanced by our
    legacy of our strong advocacy for human rights for all human
    beings by virtue of their humanity alone and by our long
    history of unwavering support and adherence to the rule of law.
        These gifts come with a string attached. Like all gifts,
    there is a responsibility to husband them. We must not squander
    them; rather, we must nurture them, refine them and pass them
    on in even better condition than they were given to us.
    Generations of Americans have understood this responsibility
    and have accepted it.
        In the wake of World War II, Truman, Eisenhower, Marshall,
    Senator Vinson and others fulfilled their part of that sacred
    trust. They had seen the horror of war, a horror that few of us
    have seen, but have only read about. They responded with
    programs like the Marshall Plan and with international
    commitments like the Geneva Conventions. I believe that the
    Geneva Conventions are part of our legacy not unlike the Bill
    of Rights, the Fourteenth Amendment, and Brown v. Board of
    Education. They demonstrate the goodness of the United States.
    They also demonstrate our strength and our military might. Even
    in the midst of that most awful of human endeavors--war--we
    should treat our enemies humanely, even when we have captured
    them. To do so is a sign of strength, not weakness. To not do
    so is a sign of desperation.
        I come here to speak in opposition to the confirmation of
    Judge Gonzales because he appears not to understand that. He
    finds the Geneva Conventions to be an impediment, a hindrance
    to our present efforts, quaint and obsolete in important
    respects. His analysis and understanding of the Geneva
    Conventions, which I discuss in detail in my written statement,
    is shallow, shortsighted and dangerous. It is wrong legally,
    morally, diplomatically, and practically. It endangers our
    troops in this war and future wars, and it makes our Nation
    less safe.
        My 28 years in the Navy tells me that his analysis of the
    Geneva Conventions and their applicability to the war in
    Afghanistan and the war on terror is particularly disturbing
    because it indicates an utter disregard for the rule of law and
    human rights. Those are the reasons American fighting men and
    women shed their blood and why we send them into battle. But if
    we win this battle and lose our soul in the process, we will
    have lost the war, and their sacrifices will have been for
    naught.
        The Geneva Conventions have protected American troops from
    harm for many years. Our forces are more forward deployed than
    any other Nation's in terms of numbers of deployments,
    locations to which they are deployed, and the number of forces
    deployed. This has been the case since World War II and will
    continue to be true. Because of that there is no country for
    which adherence to the rule of law and to the Geneva
    Conventions is more important than it is to the United States.
    It is our troops that benefit. The original U.S. proponents of
    the Conventions saw them as a way to protect U.S. troops from
    the enemy not the enemy from U.S. troops.
        It is not good for our military if we now throw them over
    the side just because some people believe they are inconvenient
    to the present effort. This is only the present war. It is not
    the last war. It is not even the next-to-last war.
        Another important aspect of the Geneva Conventions is that
    it prepares us for the peace that will ensue. We cannot so
    alienate our allies that they will not fight alongside us again
    nor should we embitter our enemies so that they will fight on
    longer and harder than they otherwise would or be unwilling to
    relent, even though their cause is hopeless. Abrogating the
    Geneva Conventions imperils our troops and undermines the war
    effort. It encourages reprisals. It lowers morale.
        I believe that the prisoner abuses that we have seen in
    Iraq, as well as in Afghanistan and Gitmo, found their genesis
    in the decision to get cute with the Geneva Conventions. At
    that point, it became a no-holds-barred unlimited warfare not
    just in Abu Ghraib, but around the country. I remind the
    Committee that we are conducting 40 or more death
    investigations in the course of the war on terror for detainees
    at the hands of their U.S. captors.
        Our military doctrine has long been, and I quote from the
    Department of the Army pamphlet, ``The United States abides by
    the laws of war in spirit and letter. Cruelty on enemy
    prisoners is never justified.''
        Twenty-eight years in the military taught me there are two
    indispensable aspects to military good order and discipline.
    They are the chain of command and the concept of
    accountability. Accountability means that you can delegate the
    authority to take an action, but you may never delegate the
    responsibility for that action. Young, fresh-caught judge
    advocates know that Government lawyers cannot hide behind their
    adviser role to evade accountability for the actions that they
    recommend.
        The value of the chain of command is that what starts at
    the top of the chain of command drops like a rock down to the
    bottom of the chain of command, and subordinates execute the
    orders and adopt the attitudes of their superiors in the chain
    of command. It has always been thus, and that is the way we
    want it to be.
        Government lawyers, including Judge Gonzales, let down U.S.
    troops in a significant way by their ill-conceived advice. They
    increased the dangers that they face. At the top of the chain
    of command, to coin a phrase that we have heard in the past,
    they set the conditions so that many of those troops would
    commit serious crimes. Nomination to Attorney General is not
    accountability.
        Only recently, in the face of the confirmation process, has
    the administration attempted to undo the damage. I have three
    thoughts on that:
        One is that I applaud the administration for doing that.
        The second is that it is a little late. We have had several
    years under the other policy.
        And last is that I do not see this as an exoneration of
    Judge Gonzales; rather, it is somewhat of an indictment. It is
    an acknowledgment of error. Damage has been done, but it is
    never too late to do the right thing. If Judge Gonzales goes on
    to be the chief law enforcement officer in the United States
    after his involvement in this, we will have failed to undo a
    wrong, but will have only exacerbated it.
        We are at a fork in the road. Somewhat ironically, this
    nomination has given the United States Senate an opportunity to
    tell the world what you think about those issues. What you do
    here will send a message, good or bad, to the world and,
    importantly, to American armed forces and fighting men and
    women.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Hutson appears as a
    submission for the record.]
        Chairman Specter. Thank you very much, Dean Hutson.
        We turn now to Mr. Douglas Johnson, executive director of
    the Center for Victims of Torture in Minneapolis. Previously,
    he served as a consultant to the Human Rights Organization in
    Latin America and to UNICEF and to World Health Organization.
        We welcome you here today, Mr. Johnson, and look forward to
    your testimony.

    STATEMENT OF DOUGLAS A. JOHNSON, EXECUTIVE DIRECTOR, THE CENTER
             FOR VICTIMS OF TORTURE, MINNEAPOLIS, MINNESOTA

        Mr. Johnson. Thank you, Mr. Chairman and members of the
    Committee, for the opportunity to be here to testify.
        It is a particular pleasure to testify to you, Senator
    Specter, because you were the primary champion of the Torture
    Victims Protection Act, which a couple of American clients of
    the Center for Victims of Torture worked with you on that and
    are great admirers of your commitment to human rights. The
    Torture Victims Protection Act has been welcomed by human
    rights advocates around the world as a model of a new tactic in
    the arsenal of torture prevention.
        The Center for Victims of Torture was established in 1985
    as the first specialized institution in the United States to
    provide rehabilitation to victims of Government-sponsored
    torture and to work for abolition of torture. As CVT's
    executive director for 16 years, I offer to you our expertise
    and experience about the realities of torture.
        It is CVT's policy, however, not to comment on the
    qualifications of specific individuals for Government posts,
    but I think it is appropriate to be here because, in the
    general global human rights effort and global human rights
    campaign, there is a particular focal point on the Minister of
    Justice or the Attorney General of countries who have at least
    three important roles in the prevention of torture:
        First, is to establish policies and procedures that
    diminish the incentive to use torture, such as regulating the
    role that confessions play in the overall administration of
    justice;
        Secondly, to prosecute or sanction torturers or persons or
    ill treat detainees;
        And, third, to eliminate both the reality and the
    appearance of impunity among interrogators.
        These roles require a clear understanding of what torture
    is and why it is wrong, as well as very practical ideas on how
    to prevent its use.
        I just want to note that the position against torture has
    been a very strong bipartisan effort by this Congress and by
    administrations for many years. And one very notable measure of
    that was that the Convention Against Torture was passed by this
    Congress, and no other human rights treaty has been ratified so
    promptly. That is an important measure because torture has a
    very human cost.
        The Center for Victims of Torture has provided care for
    more than 7,500 people from 60 different nations. Although
    there are different physical symptoms associated with the form
    of torture they endured, there is a remarkably common pattern
    of profound emotional reactions and psychological symptoms that
    transcends cultural and national differences. The effects can
    include, but are not limited to, besides organ failure and
    death, emotional numbing, depression, disassociation,
    depersonalization, atypical behavior, such as impulse control
    problems and high-risk behavior, psychosis, substance abuse,
    neurophysiological impairment such as the loss of short-term
    and long-term memory, perceptual difficulties, the loss of
    ability to sustain attention or concentration and the loss of
    the ability to learn. The main psychiatric disorders associated
    with torture are post-traumatic stress disorder and major
    depression.
        While it is important to recognize that not everyone who
    has been tortured develops a diagnosable mental disorder, it is
    equally important to recognize that for many survivors the
    symptoms and aftereffects of torture endure for a lifetime.
    Torture is said to be one of the most effective weapons against
    democracy as survivors usually break their ties with their
    community and retreat from public life. And in that regard, I
    would like to acknowledge the presence of a number of victims
    of torture here in the room today and the organization they
    have pulled together called TASC, which represents a counter to
    that often frequent retreat from public life.
        Now, the memoranda written by and also apparently solicited
    by White House Counsel Gonzales are replete with legal errors,
    which the other two members of the Committee will describe, but
    also, we believe, with political miscalculations and moral
    lapses. They disregard the human suffering caused by torture
    and inhumane treatment. They are based on faulty premises, even
    fantasies about the benefits and payoffs of torture. What is
    striking about all of these memoranda is the lack of the
    recognition of the physical and psychological damage of torture
    and inhumane treatment.
        The assumption behind the memoranda, and particularly the
    Bybee memorandum, and the later Report of the Working Group on
    Interrogation, is that some form of physical and mental
    coercion is necessary to get information to protect the
    American people from terrorism. These are unproven assumptions
    based on anecdotes from agencies with little transparency, but
    they have been popularized in the American media by endless
    repetition of what is called a ticking time bomb scenario.
        Based on our experience at the center with torture
    survivors and understanding the systems in which they have been
    abused, we believe it is important that these discussions not
    be shaped by speculation, but rather through an understanding
    of how torture is actually used in the world. From our
    understanding, we have derived eight broad lessons.
        And those are, first of all, torture does not yield
    reliable information;
        Secondly, torture does not yield information quickly;
        Third, torture has a corrupting effect on the perpetrator;
        Fourth, torture will not be used only against the guilty;
        In fact, fifth, torture has never been confined to narrow
    conditions. Once it is used, it broadens.
        Psychological torture results in long-term damage;
        Stress and duress techniques are forms of torture;
        And, finally, number eight, we cannot use torture and still
    retain the moral high ground.
        The cost to America of abandoning strict opposition to all
    forms of torture are far-reaching; from the disillusionment and
    fear of individuals, on the one hand, to complications in our
    ability to conduct foreign policy on the other. It is up to all
    of us, as Americans, but particularly to members of the Senate
    and to U.S. Attorney General, to be clear that torture is a
    line we will not cross under any circumstances or for any
    purpose. It is imperative that the Attorney General is in
    agreement with American values and will use the full scope of
    American and international law to prevent torture and prosecute
    torturers.
        To that end, I respectfully call on the Senate Judiciary
    Committee to keep torture on its agenda and to require a
    routine report from the Department of Justice on its work to
    stop and prevent the use of torture. I ask the Committee to be
    vigilant in your oversight until it is clear, in both our tacit
    and explicit policies, and in our actions, that the U.S. is
    back on course and is in full compliance with national and
    international law and American values.
        When speaking on the Senate floor in support of
    ratification of the Convention Against Torture, Kansas Senator
    Nancy Kassebaum said, ``I believe we have nothing to fear about
    our compliance with the terms of this treaty. Torture is simply
    not accepted in this country and never will be.''
        Let us also make it true today.
        Thank you.
        [The prepared statement of Mr. Johnson appears as a
    submission for the record.]
        Chairman Specter. Thank you very much, Mr. Johnson.
        We now turn to Dean Koh, the dean of the Yale Law School,
    having been named there earlier, well, in July of last year. He
    has taught at the Yale Law School since 1985 in international
    law, served as assistant secretary of state, was a U.S.
    delegate to the United Nations Human Rights Commission and the
    U.N. Committee on Torture.
        Welcome, Dean Koh, and we look forward to your testimony.

    STATEMENT OF HAROLD HONGJU KOH, DEAN AND GERARD C. AND BERNICE
     LATROBE SMITH PROFESSOR OF INTERNATIONAL LAW, YALE LAW SCHOOL

        Mr. Koh. Thank you, Mr. Chairman. Thank you members of the
    Committee and especially thank you, Senator, for your kind
    remarks about my family.
        Let me say, in particular, Mr. Chairman, we, at Yale Law
    School, are very delighted to have you in this important
    constitutional role in our country.
        Chairman Specter. I am just sorry I was not there to take
    your course, Dean Koh. I would have been better prepared for
    the job.
        [Laughter.]
        Mr. Koh. Thank you. Well, let me give you a little synopsis
    of what you might have gotten had you taken it.
        [Laughter.]
        Mr. Koh. As I mentioned, I have twice been in the U.S.
    Government. I served in the Clinton administration as the
    assistant secretary for Human Rights. But previously I was in
    the Reagan administration as an attorney at the Office of Legal
    Counsel, which is the very office which has generated these
    memoranda.
        Let me say that I do not appear today to advise you on how
    to vote. Your decision as to whether this candidate deserves
    confirmation turns on many factors on which you are the experts
    and may involve qualifications and positions that I have not
    reviewed.
        But I do appear today because I want to comment on Mr.
    Gonzales' positions regarding three very important issues. I
    think these are issues of the highest significance in American
    life, and these are issues on which I do have legal expertise
    and Government experience.
        They are, first, the clear and absolute illegality of
    torture and cruel, inhumane and degrading treatment;
        Second, the nonexistence of the President's constitutional
    powers to authorize torture and cruel treatment by U.S.
    officials--what Senator Leahy has been calling the Commander in
    Chief override. It does not exist as a matter of constitutional
    law;
        And, third, the broad applicability of the Geneva
    Conventions on the laws of war to alleged combatants held in
    U.S. custody. This broad applicability has been for the benefit
    of our soldiers. The more that we ensure broad applicability of
    the conventions to others the more our own soldiers are
    entitled to protection.
        With regard to each of these, I think the legal position is
    clear. As Attorney General, Mr. Gonzales has said that his
    first allegiance would be to uphold the Constitution and laws
    of the United States. That would mean he would strictly enforce
    the laws banning torture, he would strictly enforce the
    ratified treaties regarding torture and the Geneva Conventions,
    and he would ensure that the President abides by the
    constitutional principle of checks and balances. But I think
    more fundamentally he has to assure that no one is above the
    law, including the President, and that no one is outside the
    law, whether they are an enemy combatant or held in a place
    like Guantanamo or outside the United States.
        And I think that there has been a concern raised about Mr.
    Gonzales' record and which continues through the hearing today.
    It is that some of the statements he has made and some of the
    things that he has tolerated have created the impression that
    the President is above the law or that certain individuals live
    outside the law as extralegal persons because they are called
    enemy combatants or because they are being held in rights-free
    zones such as Guantanamo.
        Let me just address these three issues, starting first with
    the torture memo--the Bybee memo.
        As you mentioned, Senator Specter, I presented the United
    States report on our compliance with torture in Geneva in 1999
    and 2000. And at that presentation, I told the United Nations,
    as a country, we are unalterably committed to a world without
    torture. We had cleared through all the agencies at the U.S.
    Government a statement of zero tolerance, of zero tolerance
    policy. And the real question is how did we move from the zero
    tolerance policy of 2000 to the permissive environment that
    seems to have been created in the last few years.
        Now, I think the answer is partly shown by the Bybee memo,
    and having worked in the Office of Legal Counsel, I am very
    sympathetic with the pressures that people are under in
    drafting opinions like this. Nevertheless, in my professional
    opinion, as a law professor and a law dean, the Bybee
    memorandum is perhaps the most clearly legally erroneous
    opinion I have ever heard. It has five obvious failures.
        First, it asks, ``How close can we get to the line,'' when,
    in fact, it is supposed to be enforcing a zero tolerance
    policy.
        Second, the way that it defines torture would permit many
    of the things that Saddam Hussein's forces did during his time
    as not torture. Just for example, the White House website lists
    that beating, pulling out of fingernails, burning with hot
    irons, suspension from ceiling fans were all acts of torture
    committed by Saddam Hussein's forces. Nevertheless, under the
    Bybee memorandum, if they did not cause serious organ failure
    or death, they would not constitute torture.
        Third, as I said, the memo grossly overreads the
    President's constitutional power to order torture. If the
    President has a constitutional power to order torture in the
    face of a criminal statute preventing it passed by Congress, it
    is not clear why he could not similarly order genocide or other
    kinds of acts.
        Fourth, the memorandum says that executive officials can
    escape prosecution if they carrying out the President's orders
    as Commander in Chief. This is the ``following orders'' defense
    which was rejected in Nuremberg and is the very basis of our
    international criminal law.
        And, finally, an important point, the Bybee memo
    essentially is very tolerant with regard to cruel, inhuman or
    degrading treatment. A convention against torture, and cruel,
    inhuman and degrading treatment is read to permit various kinds
    of cruel, inhuman, and degrading treatment. And even today
    there was some lack of clarity in Mr. Gonzales' answer about
    whether U.S. officials are barred from cruel, inhuman or
    degrading treatment.
        I think that if this kind of reasoning is left
    unchallenged, it could be used to justify atrocities of the
    kind we saw at Abu Ghraib, where lower executive officials felt
    a license to be cruel, inhuman or degrading to people in their
    custody.
        Now, some have said that the August 1st memo is a lawyer
    setting out options for their client. But I think, as lawyers,
    those of you who have served know that if a client asks a
    lawyer to do something which is flatly illegal, the answer is,
    no; not here is how we can justify it.
        So I believe that this is a stain on our law, a stain on
    our national reputation, a legal opinion that is so contrary to
    a zero tolerance policy, which has a definition of torture that
    would have exculpated Saddam Hussein, that reads the Commander
    in Chief power to remove Congress as a check on torture that
    turns Nuremberg on its head and that gives Government officials
    a license to be cruel is wrong from the beginning.
        If the counsel for the President had received such an
    opinion, you would have expected him to do at least one of two
    things: First, reject it on the spot and send it back or,
    second, send it to other parts of the Government and have them
    give a second opinion, particularly the State Department, which
    I believe, following the policies in the U.S. Report on the
    Convention Against Torture, would have said that the opinion is
    flatly wrong.
        Instead, what happened, as you heard, was that that opinion
    was allowed to become executive branch policy, was incorporated
    into the DOD working group report, and remained as executive
    branch policy for some two and a half years, during which time
    I believe that a permissive environment was inevitably created.
        Now, I welcome the very strong statements that Mr. Gonzales
    made in finally repudiating this analysis. But I think he also
    was begging the question of whether the parts of the memo that
    were not explicitly replaced, namely about the President's
    constitutional powers to order his subordinates to commit
    legal--to commit torture, should be repudiated. At the
    beginning of the testimony, Mr. Gonzales said those parts had
    been withdrawn; by the end, he said he repudiated it. I think
    he should say, I rejected--I reject them because they are
    legally wrong and they never should have been put out there in
    the first place. I do not think our Nation's chief law
    enforcement officer should tolerate ambiguity on a matter that
    is so central to our national values. I think that Mr. Gonzales
    should repudiate all elements of the memorandum, ask for
    withdrawal of the Defense Department's working group report,
    and I also agree with Mr. Johnson that it is a very good idea
    to have a regular report about what we are doing to root out
    torture within the executive branch.
        With regard to the commander in chief power, a very simple
    point. The statement is made, ``Any effort by Congress to
    regulate the interrogation of battlefield combatants would
    violate the Constitution's vesting of the commander in chief
    power in the President.'' If that were strictly true, large
    sections of the Uniform Code of Military Justice would also be
    unconstitutional. I think that is an over-broad position, I do
    not think it is sustainable as a matter of law, and I think it
    should be repudiated definitively.
        Remember that the Attorney General has a duty not just to
    serve his client, but to preserve the Constitution's system of
    checks and balances. I think that to ensure that the President
    is not above the law, Mr. Gonzales should repudiate the
    constitutional theory that is put out there. A very simple
    question which you could have asked him today was--
        Chairman Specter. Dean Koh, your red light is on. If you
    would conclude your current thought, we would appreciate it.
        Mr. Koh. A simple question you could have asked him today
    is, Is the anti-torture statute constitutional? If the answer
    to that question is yes, then it cannot be overridden by the
    President's commander in chief powers.
        And the final thought, the Geneva Conventions, I believe
    that this point has been made very well. The Geneva Conventions
    do apply broadly. And the fact that the administration chose, I
    think, through Mr. Gonzales's recommendation not to apply the
    Geneva Conventions in Afghanistan was an error which I think
    that Secretary Powell properly challenged.
        Thank you.
        [The prepared statement of Mr. Koh appears as a submission
    for the record.]
        Chairman Specter. Thank you, Dean Koh.
        We will now proceed with a round of 10 minutes each. It is
    late in the afternoon and we have had extensive testimony from
    Attorney General-designate Gonzales dealing with the specifics
    of the issues which he faced, which the country faced. And now,
    with three individuals who are more, perhaps, academicians, or
    at least in part academicians, we could explore a subject which
    we have not taken up, a delicate subject, and that is the issue
    of a so-called ticking bomb case on torture.
        There are some prominent authorities, and I do not
    subscribe to this view but only set it forth for purposes of
    discussion, that if it was known, probable cause, that an
    individual had a ticking bomb and was about to blow up hundreds
    of thousands of people in a major American city, that
    consideration might be given to torture. Judge Posner, a very
    distinguished judge on the Seventh Circuit has commented that
    this is worth considering, or perhaps even more positively than
    that. Professor Dershowitz has written extensively on the
    subject, has come up with a novel idea of a torture warrant.
    And there runs through some of the considerations on
    interrogation techniques, not to be decided by the people at
    the base level but when dealing with higher officials trying to
    get something out of the ranking al Qaeda person, that an
    escalation of tactics ought to be left to more mature
    authorities, perhaps even--well, higher authorities in the
    Federal chain of command.
        The Israeli Supreme Court has opined on the subject by way
    of dictum. As they put it, recognizing in certain circumstances
    Israeli interrogators may be able to use torture--not saying
    they ought to, but those who do may be able to employ the
    defense of necessity to save lives of a so-called ticking time
    bomb or other such imminent threat.
        Dean Koh, start with you. Are considerations for those
    tactics ever justifiable even in the face of a ticking bomb
    threat?
        Mr. Koh. Well, Senator, you are a former prosecutor. I
    think that my approach would be to keep the flat ban, and if
    someone, the President of the United States, had to make a
    decision like that, someone would have to decide whether to
    prosecute him or not. But I do not think that the answer is to
    create an exception in the law. Because an exception becomes a
    loophole and a loophole starts to water down the prohibition.
        I think what we saw at Abu Ghraib is the reality of
    torture. I have had the misfortune to visit many torture dens
    in my life. Many of them, I am sure, were justified on
    emergency national security concerns, and at the end of the
    day, you have places where they are just places where people
    are routinely mistreated. And not for any broad national
    security purpose.
        Chairman Specter. That sounds essentially like the
    hypothetical question defense--if the President does it, then
    it is a prosecution matter. I do not know about that.
        Dean Hutson, what do you think? Ever? On occasion? To even
    consider that?
        Admiral Hutson. I agree with Dean Koh that it is always
    illegal. Now, you may decide that you are going to take the
    illegal action because you have to, but two points: One is that
    that is not necessarily the situation--or, not ``necessarily,''
    it is not at all the situation we are talking about here with
    Gitmo or Abu Ghraib or other prisons. There is no implication
    that there was a ticking bomb anyplace. The other is that you
    pose a question in which there is by definition in the question
    not sufficient time to use more effective methods of getting
    information--the good guy/bad guy, rewards and punishments,
    those kinds of things where you are much more capable of
    getting valuable information.
        A third difference is that, by the hypothetical, you are
    dealing with a particular individual. You are not dealing with
    550 people at Gitmo or however many people at Abu Ghraib. So
    that it is an interesting academic question. We have all
    debated it. But I do not think that it is the sort of question
    that the Bybee amendment--or, excuse me, the Bybee memo, for
    example, addresses.
        Chairman Specter. Dean Hutson, there is no doubt that it
    was not involved at Abu Ghraib for any of the issues which we
    have taken up. But anybody who has watched on C-SPAN since
    9:30, we are off on a long day, might deserve a little academic
    discussion even if it is only highly theoretical. And it is
    pretty tough to advocate torture under any circumstances, even
    with a ticking bomb, so I can understand the reticence of the
    witnesses because I have the same reticence.
        What are your views, Mr. Johnson?
        Mr. Johnson. Well, the Israeli Supreme Court concluded that
    the necessity was a defense in prosecution, it could never be
    turned on its head to be made a policy moving forward. And of
    course the Bybee memo has the same problem. It takes a question
    of law about how to prosecute someone for torture and turns it
    into proactive advice on what is allowed and what is not. And
    that is the moral problem with that Bybee memorandum.
        On the specifics of the ticking time bomb, I think that it
    is very overblown in our imaginations and it is very right with
    what I could only call fantasy and mythology. The number one
    issue, as I said, is that torture is unreliable to get
    information. We look at our clients. Nearly every client we had
    confessed to something. They confessed to some crime, they gave
    up some information, they gave up the name of an innocent
    friend. What they said was, I would do anything, I would say
    anything to get it to stop. And one of the major problems with
    torture from a legal perspective, and especially from an
    interrogation perspective, is it produces so much extraneous
    information that it actually distracts from good investigation.
        But secondly, the second part of this which is often the
    question of fantasy, is that we have to do it because the bomb
    will go off in the next hour, and if I do not agree for the
    next hour, it will go off in the next five minutes--would you
    do it there? It actually takes time to make someone break. It
    takes strategy to make someone break. One of the very
    disturbing things I find in the memorandum is to know that some
    of the techniques that were used in Gitmo, such as water-
    boarding, were being used on our own troops, supposedly to
    train them to resist torture. I have talked to American
    soldiers who have gone through that training and who have been
    required to be engaged in that kind of activity, and they tell
    me that it has taken them 15 years of therapy to get over it.
        So I am very disturbed to think that it is any part of the
    practice of our soldiers at this point, in this day and age.
    But at the same time, we know it happens. I know of stories in
    Argentina, where supposedly the professional criminals go
    through training to resist torture over the 48 hours they need
    before they get access to their lawyer. Everything I have heard
    about the operational sophistication and the commitment of al
    Qaeda would lead me to believe that they go through the same
    training. So the notion that torture acts quickly to deal with
    the ticking time bomb is also a fantasy.
        Chairman Specter. Well, it may well be fantasy, and we hope
    that it never arises.
        Mr. Koh. Senator, might I just add--
        Chairman Specter. Excuse me, I am in the middle of a
    sentence, Dean Koh.
        Let us hope it is fantasy. And as we have examined
    interrogation techniques, we really have not gotten into the
    subject matter today of the suspect as--or the person subject
    to interrogation as a relevant factor, or the quality of the
    information that that person might have, or the sophistication
    and judgment if it went to the Secretary of Defense or the
    Under Secretary, where there is more time to have an
    interrogation technique. And let us hope that no President ever
    has to face the decision or any official at any level, but
    there are gradations and complications here which do not
    provide any easy answers far beyond the scope of what we have
    heard today.
        My red light is on, so I ask no more questions. But you
    were in the middle of a sentence, Dean Koh.
        Mr. Koh. I was just saying that the new OLC opinion of last
    week withdraws the necessity defense, and so it would not
    function to permit the invocation of necessity as a reason for
    torture.
        Chairman Specter. Senator Leahy?
        Senator Leahy. Thank you, Mr. Chairman.
        Admiral Hutson and Dean Koh and Mr. Johnson, I want to
    thank you for being here. You have sat through a long day. I
    hope, though, it has been of interest.
        I would also hope--and I apologize for my voice, which is
    just about gone--I would hope that the Senators would read the
    material you have submitted. I have read it; I found it
    fascinating to go through. And I have learned from it. I will
    be sending most of it around to members of my staff. Those who
    have not read it, they might read it. It is well worthwhile.
        And Dean Koh, you heard Judge Gonzales's testimony today. I
    asked him a number of questions regarding his views of
    executive power. I asked him if he agreed with the legal
    conclusion in the August 1, 2002, memo by Assistant Attorney
    General Jay Bybee--the President has authority as commander in
    chief to suspend the torture laws and immunize those who commit
    torture on his order.
        I never really did get a yes or no answer on that. But can
    a President override our laws on torture and immunize the
    person who did the torture?
        Mr. Koh. No.
        Senator Leahy. That is a good answer. I happen to agree
    with it.
        Now, I asked Judge Gonzales about the administration's
    claims regarding enemy combatants. The President has claimed
    unilateral authority to detain a U.S. citizen whom he suspects
    of being a terrorist, hold him indefinitely, incommunicado, no
    access to a lawyer, and so on. He says he has this authority
    with respect to U.S. citizens both abroad and here. Judge
    Gonzales said the Supreme Court upheld this in Hamdi. Of
    course, in Hamdi the Court did not decide that, they simply
    reached the conclusion that the Congress had authorized this.
        Do you believe that the President has authority as
    commander in chief to lock up a U.S. citizen arrested in the
    United States, and hold him indefinitely without access to
    counsel or the courts?
        Mr. Koh. No, and not when a civilian court is open. I was
    surprised by the answer, because I think that if you look at
    the Hamdi decision, the opinion that he was citing, Justice
    O'Connor's opinion, is a plurality decision. It does not say
    that he has a right to hold someone indefinitely. That very
    issue is being litigated before the District of South Carolina
    in the Padilla case on remand. And also, I think at the oral
    argument in those cases, Justice Stevens asked the solicitor
    general, How long would you hold the person? And the answer
    was, For the duration of the war. And he said, What if it was a
    hundred years war? And then the Government lawyer backed away
    from the assertion.
        So I do not think they were claiming at the time that there
    was a right to indefinite detention, and I do not think the
    Supreme Court gave them a right to indefinite detention.
        Senator Leahy. Following a question one of the other
    Senators asked, let us say the President followed Secretary
    Powell's advice--declared the Geneva Conventions applied to the
    conflict in Afghanistan. What effect would that have had on our
    ability to prosecute captured al Qaeda and Taliban fighters for
    war crimes?
        Mr. Koh. Well, I think what was proposed, which I think
    would have made sense, was for everyone to get a hearing, as
    required by Article 5 of the Geneva Conventions. Everyone who
    is taken into captivity ordinarily gets a hearing under the
    Geneva Conventions, and thousands of these hearings have been
    given in Iraq and were also given in Vietnam. That is what was
    not done. I think, particularly with regard to the Taliban,
    they were acting as essentially the army of Afghanistan, and I
    believe that they should have been given POW status. I think
    that there was some confusion in the questioning today about
    whether, quote, Geneva applies or not. Geneva may apply, in the
    sense that everybody gets a hearing to find out what their
    status is, but some of them may not be POWs.
        Senator Leahy. Well, that is what--thank you. That is what
    I was looking for. We follow certain standards. Whether the
    other side does or not, we do. We need to comply with Geneva
    whether our enemies do or not. Is that not the logic of Geneva?
        Mr. Koh. Broad applicability is the logic. We have been the
    ones who are saying it should apply broadly because we want our
    troops to have a strong presumption of protection. Afghanistan
    was the first time in which we said that it did not apply to a
    conflict. You were also asking questions about rendition. Once
    it was said that Geneva Conventions did apply in Iraq, there
    was the danger that people would then be removed from Iraq as a
    way of bringing them outside of the scope of the Geneva
    Conventions.
        The bottom line, Senator, is we have tried not to create
    ways in which people can be taken in and out of the protections
    of the Convention, because that might happen to our troops.
        Senator Leahy. Well, and if we have somebody who is
    treating our troops inhumanely, or others, we can also
    eventually bring about prosecutions of them as war criminals,
    can we not? And there is a lot of tradition of that.
        Admiral, the January 2002 draft memo for the President--
    this was the one signed by Judge Gonzales--argued the war
    against terrorism is a new paradigm, renders obsolete the
    Geneva Convention's, quote, strict limitations in questioning
    of enemy prisoners. But we have talked about the Army Field
    Manual. That makes it perfectly clear that POWs can be
    interrogated, is that not correct?
        Admiral Hutson. That is absolutely right, Senator. A couple
    of thoughts. One is that all the wars are new paradigms when
    you first start to fight them. You know, there's new weapons
    systems, there's new enemies, there's new tactics, there's new
    strategy. So that the fact that it is a new paradigm does not
    necessarily change things.
        The other thing is that the Geneva Conventions place on the
    detainee an obligation to provide certain information. It does
    not place on the capturer a limitation on the questions or the
    numbers of questions or the numbers of times to question. You
    know, this is not a Miranda kind of situation. You can keep
    asking questions. It does limit the torture, cruel, inhuman,
    degrading kinds of ways that you may ask questions. If by
    ``obsolete'' Judge Gonzales meant that we are going to have to
    use more kinds of techniques, harsher techniques, more
    aggressive techniques, tortuous techniques, then I disagree
    with him very strongly on that. If he is just saying that we
    need to throw it over the side because we are dealing with
    terrorists and we cannot ask any question beyond name, rank,
    serial number, then he is just wrong on the law. You know, it
    is one or the other. He is either wrong on the law or he is
    advocating techniques that I would not support.
        Senator Leahy. From a military lawyer's perspective, could
    we have avoided what we see in Afghanistan, Iraq, and
    Guantanamo?
        Admiral Hutson. Absolutely. It goes back, Senator, to what
    I think I said in my statement, written and oral statement,
    about the chain of command. You know, those soldiers that we
    saw in the pictures, the people that are being investigated
    otherwise have picked up the attitude that started at the top
    of the chain of command. And if the attitude that started at
    the top of the chain of command was, they may be terrorists,
    they may be evildoers, but they are human beings and we will
    treat them with the dignity and respect that Americans treat
    human beings, we would not have seen what we saw. Rather, the
    attitude at the top was, they are terrorists so different rules
    apply--without really explaining what the rules were that
    applied. And as Dean Koh said, they ended--or I guess Mr.
    Johnson--they ended up in this never neverland where nothing
    applied, and then we saw what happened.
        Senator Leahy. Well, we have some members of Congress in
    both parties who have suggested we have some kind of an
    independent, truly independent, investigation of what happened
    here. Is that your position, too?
        Admiral Hutson. Absolutely, it is, Senator. Judge Gonzales
    referenced several times the number of investigations that are
    going on, as if that somehow fixed the problem. And, you know,
    if 10 investigations is good, then 20 would be even better, and
    30 better than that.
        That is not the point. The point is that we need an
    investigation, a comprehensive investigation not unlike the
    investigation that perhaps Admiral Gammon did in the Challenger
    disaster, in which the investigating body has subpoena power,
    the power to administer oaths, which raises the specter of
    perjury, and is told to go wherever their nose leads it--not to
    look at the few bad apples, you know, atrocities have been
    committed by a few bad apples, now go out and demonstrate how
    that happened. And if it goes to the E ring, then it goes to
    the E ring; and if it goes to the Office of Legal Counsel, then
    it goes to the Office of Legal Counsel. But when you put them
    in a box with a series of investigations to look at junior
    enlisted personnel, you are never going to find what happened.
        Senator Leahy. Thank you. And Mr. Chairman, you asked the
    question of Mr. Johnson I was going to ask, basically how
    effective torture is. And I think he gave a very good answer
    from his experience. Most people being tortured are going to
    say whatever you want to stop the torture.
        Thank you, Mr. Chairman. And again, I compliment you for
    the hearing you held today.
        Chairman Specter. Thank you very much, Senator Leahy.
        Senator Cornyn?
        Senator Cornyn. Thank you, Mr. Chairman.
        Mr. Johnson, Mr. Koh, Mr. Hutson, thank you for being here
    with us today. I wanted to just ask whether you agree or
    disagree with this proposition--to begin with, and then we will
    get into more questions.
        Do you agree or disagree that all lawful means to gather
    actionable intelligence that is likely to save American lives
    should be permitted?
        Let me say that again. Do you agree or disagree that the
    United States Government should use all lawful means to gather
    actionable intelligence that is likely to save American lives?
    Dean Hutson?
        Admiral Hutson. I agree.
        Senator Cornyn. Mr. Koh?
        Mr. Koh. I agree with ``lawful means,'' not including
    torture or cruel, inhuman, or degrading treatment.
        Senator Cornyn. Exactly. That is implicit in the question,
    but thank you for being specific.
        Mr. Johnson?
        Mr. Johnson. I agree, and my concern is that there has been
    such a fascination with the supposed effectiveness of forms of
    torture and duress that all lawful means in fact have not been
    used.
        Senator Cornyn. But as far as the proposition goes, ``all
    lawful means,'' as qualified--as amplified, I should say, by
    Dean Koh and you, Mr. Johnson, and Dean Hutson, you would agree
    with that proposition, would you not, sir?
        Mr. Johnson. Yes.
        Senator Cornyn. Well, that is the thing. I think we all
    agree with that. I mean, certainly we do on the Committee, and
    as I heard Judge Gonzales testify today, that is what he said
    his position was and what he believed the President's position
    was.
        But let me get to an area where maybe there is--well, I
    know there is disagreement because we have already talked about
    it some here today, not with you, but these witnesses. But
    first of all, and I would like to maybe start with Dean Koh and
    then Dean Hutson and then ask Mr. Johnson some other questions.
        First of all, Mr. Johnson, let me just be--just as a
    background matter, are you a lawyer by profession, sir?
        Mr. Johnson. No.
        Senator Cornyn. Okay. Well, I will not ask you any legal
    questions.
        Mr. Johnson. Please.
        Senator Cornyn. It is not every day that you get to ask the
    legal questions of the deans, of a couple of law school deans.
    And Mr. Chairman, they would not let me into Yale Law School,
    so I did not even bother trying to apply, because I was not
    qualified. So it is a great honor to be here with such--
        Admiral Hutson. We would have been glad to have you at
    Franklin Pierce Law Center, Senator.
        Senator Cornyn. Well, it is great to be here with such
    distinguished legal minds. But, you know, I asked earlier Judge
    Gonzales--I think it was--whether lawyers disagree about even
    the matters as important as what you have testified here today,
    Dean Koh and Dean Hutson. And we already, I believe, have
    established that there are legal scholars and international law
    experts who hold a contrary opinion to the one you have
    expressed today, for example, Dean Koh, with regard to the
    applicability of the Geneva Convention to terrorists. Would you
    concede the point that there are respectable legal scholars who
    hold a contrary opinion?
        Mr. Koh. Yes. And I think that you have to define exactly
    what you mean--the applicability to al Qaeda, the applicability
    to Taliban. There is a different nose count on each one.
        Senator Cornyn. I understand your distinction. But let us
    talk about al Qaeda first. But do you--and you take the
    position that Geneva applies to al Qaeda. Is that correct, sir?
        Mr. Koh. I take the position that Geneva applies to people
    who are captured and a tribunal could quickly determine that
    someone is al Qaeda. And, as for example in the case of
    Mousawi, he could then be turned over to a criminal proceeding.
        Senator Cornyn. But for example, if there is a status
    hearing to determine the status of an enemy combatant, and they
    are determined to be, at that status hearing, a member of al
    Qaeda, would they be entitled to the protections of the Geneva
    Convention, in your opinion, Dean Koh?
        Mr. Koh. Well, they fall under Geneva, but they are not
    POWs, and they should then be treated as common criminals and
    prosecuted.
        Senator Cornyn. But nevertheless entitled to humane
    treatment. Is that correct?
        Mr. Koh. Yes.
        Senator Cornyn. Okay. And Dean Hutson, do you have a
    contrary view, or do you take the same position?
        Admiral Hutson. I take the same view. You know, one of the
    issues, I think, here, Senator, at least in my mind one of the
    issues here is that--I do not want to sound pedantic, so
    forgive me, but, you know, law is not practiced in a vacuum. It
    is practiced in real life. And sometimes, whether or not
    lawyers agree or disagree about the gray areas in the middle--
    and I do not think this is necessarily a gray area in the
    middle--there are other factors, like protecting U.S. troops,
    that have to be taken into consideration in making the decision
    about whether or not you are going to apply the Geneva
    Conventions or the role that the Conventions are going to take.
    And I think it is naive to say, well--not you are, but that
    others, naive on the part of others to say, well, we are going
    to very narrowly limit this because we are clever lawyers and
    we can figure out a way to get around this. Because I think
    that that, in the end, risks U.S. troops in this or future
    wars.
        Senator Cornyn. Well, Dean Hutson, let me pursue that just
    a second. Is it not naive to assume that al Qaeda, people who
    employ suicide bombing attacks, who attack innocent civilians,
    will have any regard whatsoever for the international norms of
    conflict?
        Admiral Hutson. I do not think that they will have any
    regard for the international norms of conflict, nor do I think
    that they are suddenly going to say, oh, gee, if we start
    conducting our behaving in other ways, we will get the benefit
    of being POWs; if we start wearing uniforms, everything is
    going to be okay. You know, I do not think it makes a
    difference particularly one way or the other.
        Senator Cornyn. So it would not influence their decision to
    treat our troops, were they captured, in any particular humane
    way, or when they complied with the Geneva Convention.
        Admiral Hutson. I think it may. I think Senator McCain said
    that he thought that it did in Vietnam. I think that it--
        Senator Cornyn. Vietnam is--obviously we were at war with
    another nation state and one that wore a uniform with insignia
    and they had a chain of command--all the criteria by which the
    Geneva Convention is determined to apply--did we not?
        Admiral Hutson. They did not necessarily comply with the
    law of war, which is one of the factors that is determinative
    of POW status.
        Senator Cornyn. Well, let me get back, before we digress
    too much, to my earlier point, and that is that lawyers
    disagree. I mean, that is one of the things that attract some
    of us to the law, either as law professors, as practitioners,
    or as judges. For example, Dean Koh, you have a colleague at
    Yale Law School, Ruth Wedgwood, do you not?
        Mr. Koh. She has left Yale and gone to Johns Hopkins.
        Senator Cornyn. Okay. But at one time she was at Yale. Do
    you regard her as an expert in international law, including
    some of the issues we are talking about here, the applicability
    of Geneva?
        Mr. Koh. She is a friend and colleague of mine with whom I
    often disagree on points of law.
        Senator Cornyn. Exactly. That is really my point. And you
    do know that she has filed--she joined, along with former
    Carter administration officials, an amicus brief in Shafiq
    Rasul v. George Bush and argued, for example, that the
    President's conclusion that members of al Qaeda and the Taliban
    are unlawful combatants is clearly correct.
        Therein lies your disagreement, is that correct?
        Mr. Koh. But I think you make an important point, Senator,
    which is disputes among lawyers are often resolved at the
    Supreme Court. In that case, the Bush administration's position
    in Rasul was rejected definitively by the Supreme Court.
        Senator Cornyn. Certainly not on the basis of Geneva
    Convention applicability?
        Mr. Koh. The issue was sent to a habeas corpus proceeding,
    and Justice Souter, in another opinion issued that day,
    suggested the question that the issue of Geneva could be raised
    there.
        Senator Cornyn. Sure. And one judge does not make a
    disposition on a controlling issue of law. You would agree with
    that, would you not?
        Mr. Koh. I think we are moving to a definitive resolution
    of these issues, but I think that these issues are going to
    continue to be disputed and resolved in the courts.
        Senator Cornyn. Well, let me just mention a group of other
    distinguished lawyers: Professor W. Thomas Malison, who has
    written in Case Western Reserve Journal of International Law;
    Professor Alan Rosos, who has written on this subject;
    Professor Ingrid Dieter; Professor Gregory M. Travaglio--and I
    hope I pronounced that name correctly. And I will not go
    through a whole long list. But you would acknowledge that there
    are others who--other legal scholars, people who have written
    in this area, who agree with Professor Wedgwood and disagree
    with you on the application of Geneva to al Qaeda. Would you
    concede that, Dean Koh?
        Mr. Koh. I think the question, Senator, is whether
    Afghanistan can be removed from the scope of the Geneva
    Conventions. And I do not know that anybody agrees with that.
        Senator Cornyn. So you would not concede that there is a
    fairly lengthy list of distinguished legal scholarship that
    holds that al Qaeda fighters are not entitled to the
    protections of the Geneva Convention? You would not concede
    that?
        Mr. Koh. I think this was a point that was made in your
    Washington Times op ed quoting Mr. Malinowski from Human Rights
    Watch. But as I think he pointed out in his letter of response,
    the danger is an assertion that an entire conflict is outside
    the scope of the Geneva Conventions. If that were true, then
    the U.S. soldiers participating also would not enjoy Geneva
    Convention protections. So I think the solution is to bring all
    the combatants who are captured in, to give them hearings,
    decide who are POWs and who ought to be treated as common
    criminals, and that al Qaeda members could well be among those
    who are treated as common criminals.
        Chairman Specter. Senator Cornyn, would you like one more
    round?
        Senator Cornyn. I would like two more minutes and I will be
    through.
        Chairman Specter. Deal.
        Senator Cornyn. Thank you, sir.
        Well, gentlemen, you know, regardless of the disagreement
    among lawyers on this particular issue with regard to the
    application of the Geneva Convention, and regardless of whether
    you say Geneva does not apply or that Geneva does apply but al
    Qaeda fighters are exempted from the requirement of Geneva's
    protections with regard to POW status, would each of you--would
    you agree, Dean Koh, for example, that, you know, some very
    important lawyers, namely Federal judges, have decided in three
    different cases that the President's position and Judge
    Gonzales's position on the Geneva Convention is correct? Are
    you aware of that?
        Mr. Koh. If one of those cases is the Padilla case, that
    case was reversed by the Second Circuit. If another case--
        Senator Cornyn. But for lack of jurisdiction, right? And it
    is not one of the ones I was referring to.
        Mr. Koh. And I think you also need to include into the mix
    Judge Robertson's opinion in the D.C. Circuit, which has in
    part suspended the military commission proceeding precisely
    because of the Geneva Conventions. And--
        Senator Cornyn. Is that the one that is on appeal right
    now?
        Mr. Koh. Yes. And then--
        Senator Cornyn. Well, for the record, the ones I am
    referring to are the Arnot case, the John Walker Lindh case,
    the American Taliban--
        Mr. Koh. Which is a plea bargain.
        Senator Cornyn. Well, I beg your pardon, sir. It is 212
    F.Supp.2d 541. It is not a plea bargain. This is the one where
    he claims immunity from prosecution by virtue of his being
    protected by the Geneva Convention and a POW, but the court
    held he was not entitled to the protection of the Geneva
    Convention.
        Mr. Chairman, given the late hour and my commitment to you
    not to go much farther than a couple of more questions, we will
    save all these interesting discussions perhaps for a later
    time. But thank you.
        Chairman Specter. Senator Cornyn, if Yale had an
    opportunity to consider your application nunc pro tunc and had
    seen you spar with the distinguished dean of the Yale Law
    School, I think you would have been admitted, beyond any
    question. But I do not know that, had you gone to Yale, you
    would have been the superb questioner that you are today.
    Senator Leahy and I are sort of chained to the mast--that is
    the role of being ranking and chairman--but you are a free
    agent. So your presence here is extraordinarily commendable.
    And I think, including your introduction, you may have
    outranked Senator Kennedy on tenure of speeches.
        That concludes the hearing. Thank you very much, gentlemen.
        [Whereupon, at 6:24 p.m., the hearing was concluded.]
        [Questions and answers and submissions for the record
    follow.]
        [Additional material is being retained in the Committee
    files.]

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