[Congressional Record Volume 151, Number 4 (Monday, January 24, 2005)]
[Senate]
[Pages S128-S129]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        THE PRESIDENT'S NOMINEES

  Mr. KENNEDY. Mr. President, Jay Bybee, William Haynes, Condoleezza 
Rice, Alberto R. Gonzales--these four persons have three things in 
common. They were all high officials in President Bush's first 
administration. They were all key participants in the shameful decision 
by the administration to authorize the torture of detainees at 
Guantanamo and in Iraq and they have all been nominated by President 
Bush for higher office.
  Jay Bybee, head of the Justice Department's Office of Legal Counsel, 
was nominated for a lifetime appellate court judgeship in the spring of 
2002, before he wrote the now notorious legal memorandum redefining 
torture so narrowly that virtually the only victims who could complain 
would be dead victims. Mr. Bybee even went so far as to state that the 
President could simply decree that any action taken as the Commander in 
Chief was immune from challenge. Most people who later read that memo 
immediately rejected its conclusions. But not the White House.
  Instead, when the Bybee nomination was not acted on by the Senate in 
the 107th Congress, President Bush renominated him for the same 
judgeship in the 108th Congress. Although we asked for Bybee's OLC 
writings we received nothing, thus the Senate knew nothing about the 
Bybee memorandum on torture, and his nomination was confirmed.
  William Haynes was, and still is, General Counsel to the Secretary of 
Defense. As such, he had a personal role in deciding how far Defense 
Officials could go in interrogating detainees. But he had a problem. 
High-level military officers and top State Department lawyers were 
experienced in these issues and the treaties that governed them, and 
they were adamantly opposed to the extreme change in policy that he and 
the Secretary and the White House were seeking.
  So he formed a ``working group'' of lawyers that excluded these 
dissenters. That working group's report adopted verbatim some of the 
most outrageous parts of the Bybee memorandum. In one memo, for 
example, Mr. Haynes told Secretary Rumsfeld that waterboarding, forced 
nudity, the use of dogs to create stress, threats to kill the 
detainee's family, and other extreme tactics not only do not violate 
the Uniform Code of Military Justice, but are ``humane.''
  After he did that, the White House also nominated him to a lifetime 
judgeship on a Federal court of appeals. Fortunately, by the time the 
Judiciary Committee was ready to vote on his nomination in late 2003, 
we had become aware of some of his other controversial legal views, and 
the Senate did not confirm him. President Bush has chosen to renominate 
him, however, so the Senate will have another chance to review his role 
in support of torture.
  Condoleezza Rice has been nominated to be Secretary of State, and we 
will consider her nomination later this week. As national security 
adviser she was clearly involved in the prisoner abuse issues, but 
because of the nature of her position, we know less about her role. Two 
of the members of the Foreign Relations Committee have voted against 
her nomination, and we will hear their full report in the coming 
debate.
  White House Counsel Alberto Gonzales, as the President's chief in-
house lawyer, was at the heart of the debate, inside the 
administration, on prisoner detention and interrogation. Although he 
says he can't remember it very well, he apparently was the person the 
CIA contacted when they wanted to use extreme interrogation methods on 
those whom our troops and intelligence agents detained in Afghanistan 
and Iraq and elsewhere. He was the one who went to Mr. Bybee at the 
Department of Justice to obtain the notorious Bybee memorandum 
justifying the use of torture. He keeps saying he doesn't recall, but 
his office obviously helped Mr. Bybee develop the memorandum.
  When Mr. Gonzales received the memorandum, he disseminated it far and 
wide in the military and elsewhere, although he can't remember how. For 
almost 2 years, Mr. Gonzales allowed this policy guideline to stand 
throughout the Government as the administration's formal policy on 
prisoner abuse. For almost 2 years it remained in effect, producing a 
system of detention and interrogation that the International Committee 
of the Red Cross, the FBI, the Defense Intelligence Agency itself found 
abhorrent to the rule of law. When the Bybee memorandum finally became 
public last summer, Mr. Gonzales attempted to distance himself and the 
President from it, but he didn't quite withdraw it.
  Suddenly last month, the night before New Year's Eve, so late that 
most newspapers could not get the story in the next day's paper, Mr. 
Gonzales and his Justice Department and White House colleagues decided 
that the memo was so clearly erroneous and its standards so extreme, 
that it should be withdrawn altogether and replaced by a gentler 
version.
  Members of the Senate have asked repeatedly for the relevant 
documents on all this. But we have not received a single one of the 
documents we need.
  Four Senate committees have now considered some part of this issue. 
The Foreign Relations Committee had a brief opportunity to question Ms. 
Rice last week, but apparently not enough information on her 
involvement was available to assess her responsibility. The 
Intelligence Committee is still waiting to hear from the CIA on its 
role in the prisoner abuses, but as far as I know nothing has been 
forthcoming. Despite the initiatives and hard work of the chairman, the 
ranking member and many other members of the Armed Services Committee, 
Secretary Rumsfeld and his deputies have managed to stonewall and slow-
walk us right through the election, and have used a series of separate 
investigations to propagate the original message that it was just a few 
bad apples on the night shift who committed the abuses.
  We now are told that there was confusion and lack of clarity in the 
rules on interrogation without any indication of who was ultimately 
responsible, and without any accountability by those we know were 
involved, such as Mr. Haynes and Mr. Gonzales.

[[Page S129]]

  That leaves the Judiciary Committee, which is now considering Mr. 
Gonzales's nomination to be Attorney General. What standard should we 
apply to him? We know that rejection of a cabinet nominee is rare. In 
all of U.S. history, although hundreds of nominees have been stopped in 
committee or withdrawn by the President, only 9 of over 700 cabinet 
nominees have actually been rejected by the Senate. Two of them have 
been nominees for Attorney General. President Calvin Coolidge's nominee 
for Attorney General was rejected not once but twice and both times by 
a Senate of his own party.
  Mr. Gonzales's case is a rare case in which a nominee may have been 
directly responsible for policies and resulting practices that have 
been counter-productive, contrary to international standards and 
practices, harmful to our troops' safety, legally erroneous, and 
plainly inconsistent with the rule of law and the basic values which 
this administration prides itself on defending.
  President Bush's Inaugural Address resounded with those values last 
week. ``From the day of our Founding,'' he said:

     we have proclaimed that every man and woman on this earth has 
     rights, and dignity, and matchless value, because they bear 
     the image of the Maker of Heaven and earth.

  The choice before every ruler and every nation, he said, is:

     the moral choice between oppression, which is always wrong, 
     and freedom which is eternally right.
       America's belief in human dignity will guide our policies,

  he said.

       Americans move forward in every generation by reaffirming 
     all that is good and true that came before--ideals of justice 
     and conduct that are the same yesterday, today, and forever.

  Those are lofty values, and all of us agree with them wholeheartedly. 
But they were abandoned by the White House in its decision on the use 
of torture, and our credibility in the world as a leader on human 
rights and respect for the rule of law has been severely wounded. The 
cruelest dictators can now cite America's actions in their own defense.
  How can we be true to our own oath to defend the Constitution, if we 
confirm as the highest legal officer in the land a person who may well 
have encouraged our basic values to be so grossly violated?
  So far, Mr. Gonzales has not been responsive to our questions in the 
Judiciary Committee about his role. He still has time to clear the air, 
and I urge him to do so.
  The position of Attorney General and the issues involved in this 
nomination go to the heart of our Nation's commitment to the rule of 
law. A nominee whose record raises serious doubts about his own 
commitment to the basic principle should not be confirmed as Attorney 
General of the United States.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER (Mr. Burr). Without objection, it is so 
ordered.

                          ____________________