[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


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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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