Congressional Record, Volume 151 Issue 8 (Tuesday, February 1, 2005)

[Congressional Record Volume 151, Number 8 (Tuesday, February 1, 2005)]
[Senate]
[Pages S688-S705]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NOMINATION OF ALBERTO R. GONZALES TO BE ATTORNEY GENERAL

The PRESIDING OFFICER. Under the previous order, the hour of 10:45
a.m. having arrived, the Senate will proceed to executive session for
the consideration of Executive Calendar No. 8, which the clerk will
report.
The assistant legislative clerk read the nomination of Alberto R.
Gonzales, of Texas, to be Attorney General.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, we are proceeding at the moment to the
nomination of White House Counsel Alberto Gonzales to be Attorney
General of the United States of America. He had served as a judge on
the Supreme Court of Texas and has been commonly referred to as Judge
Gonzales, which I shall do during the course of my presentation.
Judge Gonzales, 49, comes to this nomination to be the chief law
enforcement officer of the United States with an extraordinary record.
He was one of eight children, sharing a two-room living quarters with
their parents. They had no hot water, no telephone. He pursued an
academic career, first at the military academy; then at Rice
University, where he graduated; and then at the Harvard Law School.
He went into the private practice of law and then was asked by then-
Governor George Bush to work with him in the Governor's office.
Judge Gonzales then, as noted, was a justice of the Supreme Court of
Texas. With the election of Governor Bush to the White House, Judge
Gonzales has been White House Counsel for the last 4 years.
It is not irrelevant to note that Judge Gonzales would be the first
Hispanic to be Attorney General of the United States. That is quite a
dramatic rise in the legal community.
When I was elected district attorney of Philadelphia some time ago,
in 1965, there was not a single Hispanic lawyer in Philadelphia. At
that time, I made an effort of outreach to bring minority
representation into the district attorney's office as assistants and
could not find a single Hispanic. So there has been a great deal of
progress. Now there are Hispanic Federal judges in Philadelphia, State
court judges, city solicitors, prominent attorneys, but Judge Gonzales
would be the first Hispanic to be Attorney General of the United
States, if confirmed.
He will bring, I think, a unique perspective because of his minority
status. I think he would have a broader view, a different view on civil
rights. We have an issue which is subject to some congressional
oversight where some 762 alien detainees were rounded up after

9/11, and according to a report by the Inspector General of the
Department of Defense, there was never any showing of connection to
terrorism or to al-Qaida or to any reason for their detention.
While we know we live in a very dangerous world, there has to be some
reason--it may not be as strong as probable cause for an arrest, or
probable cause for search and seizure, or even sufficiency for stop and
frisk--but there has to be a reason for detention. That is something of
which I think Judge Gonzales might have some greater perspective.
Judge Gonzales, I think, also would be expected to have a broader
view on the immigration laws, being Hispanic, being from Texas, seeing
the kinds of problems which are present both from the point of view of
stopping illegal immigrants and also from the point of view of
immigrants who come to this country who seek a better way of life.
Similarly, I think he might have some greater insights into voting
rights. He took a position broadly viewed as divergent from the
administration on affirmative action in the controversial cases
involving the University of Michigan. Affirmative action, always a
complicated, controversial subject, but one where differing views and a
broader perspective is a quality that would be well served in the
Attorney General of the United States.
He also took a broader view on the issue of what was required on
parental notification under the Texas statute, drawing opposition from
some on the so-called right of the party. There again, a little
different view and a little broader view reflective of his background
and his own attitudes.
A great deal of the hearing process on Judge Gonzales has been
involved on the issue of compliance with the Geneva Convention, on
compliance with the statutes of the United States which prohibit
torture. A great deal has been made of a statement made by Judge
Gonzales with respect to the Geneva Conventions. He has been broadly
quoted on a statement that some of the Geneva Convention's limitations
are obsolete or quaint. In an opinion which he circulated, he said
this:

In my judgment, this new paradigm--

referring to what has happened after 9/11--

renders obsolete Geneva's strict limitations on questioning
of enemy prisoners and renders quaint some of its provisions.

That part of the statement is the one always quoted, and the comment
on ``quaint'' and the comment on ``obsolete'' have drawn a lot of
criticism. But almost nowhere has there been a followup on what he was
referring to. But what he said, continuing:

. . . renders quaint some of its provisions requiring that
captured enemy be afforded such things as commissary
privileges, scrip--i.e., advances of monthly pay--athletic
uniforms and scientific instruments.

Well, when you see the reference here to ``items like commissary
privileges,'' I don't know that that would be exactly something to be
concerned about on a prisoner, or scrip or advances of monthly pay or
athletic uniforms or scientific instruments. So in that context, to say
it is ``quaint'' or ``obsolete'' is not to challenge the underlying
provisions of the Geneva Convention on its important substantive
provisions.
In Judge Gonzales's statements and testimony before the Judiciary
Committee, he has been very emphatic about his personal opposition to
torture and about the opposition of the administration to torture. He
has been emphatic on his opposition to transporting detainees to other
countries which permit torture to enable detainees to be tortured in
other countries where they could not be under the auspices of the
United States. He has been explicit in articulating the view that the
CIA is bound by the same rules prohibiting torture as anyone else.
He has come under considerable criticism for the so-called Bybee
memorandum which was issued in August of 2002, signed by Jay Bybee,
then Assistant Attorney General of the United States, where the
memorandum was requested so that there would be a full

[[Page S689]]

statement and an understanding of what the law required to comply with
the statutes prohibiting torture in the United States.
That memorandum was erroneous in its legal conclusions, as has been
generally agreed to, and has been withdrawn by the Department of
Justice. The interpretation of what constituted torture was very
extreme, referring to the kind of excruciating pain and loss of bodily
function, certainly not a realistic or an adequate or a definition of
torture which would withstand legal analysis or legal scrutiny.
The memorandum was extreme and excessive in a statement, an
articulation of executive power. One example was the statement that the
President of the United States had as much authority on questioning of
detainees as the President had on battlefield decisions, which
obviously makes no sense. When you talk about a battlefield decision,
that is a prerogative of the Commander in Chief, as it is delegated
down through field commanders. But that kind of authority does not
reside in the President on an issue such as the questioning of
detainees.

The memo went quite far in suggesting that the President had
authority to ignore statutes if he felt they were unconstitutional.
There has been some question raised, although it is not explicit in the
Bybee memo, about the authority of the President to immunize those who
violate the law. That certainly is not lawful. When you talk about
immunizing, you talk about judicial action in the context where there
is a statute by the Congress of the United States authorizing immunity
in a given context, immunity from criminal prosecution to disclose some
information, but there is no suggestion anywhere that the President has
the authority to immunize executive branch officials from noncompliance
with the law.
We find Judge Gonzales essentially working as White House counsel,
working for the President in a role which he was very emphatic in
distinguishing from the role of the Attorney General of the United
States. As Attorney General he has a responsibility to represent all of
the people. As counsel to the President, as White House counsel, his
responsibility is limited only to the President.
The memorandum by the Department of Justice was requested in order to
have the legal interpretation as to what the appropriate line of
questioning could be in order to be in compliance with the law. That
was the role of the Department of Justice. It was not the role of Judge
Gonzales. Then the decision as to what the questions would be, what the
interrogation would be is the role of the Department of Defense, again,
not the role of Judge Gonzales.
Judge Gonzales has been very forthcoming, being available and meeting
with some 27 Senators, which is said to be a record in being available
to everyone on the Judiciary Committee and beyond, submitting to up to
four rounds of questioning, 10 rounds each, and then in some cases the
third round of 15, and in one case the fourth round of 22 minutes, and
then responding to very broad questions, with the New York Times
commenting that the responses of more than 200 pages of answers to
questions was the most expansive view by the administration of its
techniques and procedures on the questioning of detainees. So there is
no doubt that Judge Gonzales has responded very broadly to the
inquiries made of him.
There has been a challenge that he has not answered all the questions
because he could not recall specific conversations which were held
years before, but that is entirely understandable.
There were questions about discussions where representatives of the
executive branch got together to discuss the specifics of the
Department of Justice memorandum and the interrogation techniques to be
employed by the Department of Defense. One of his answers to one of the
written questions propounded gives a fair summary in a fairly
abbreviated form as to Judge Gonzales's role. These are his words:

Shortly after September 11, 2001, until the present, the
administration has been involved in conducting the war on
terror by gathering as much information from terrorists as we
possibly can within the bounds of law. During that time, I
have participated in several meetings at which possible uses
of methods of questioning were discussed. These meetings may
have included from time to time representatives from the
National Security Council, the Department of State, the
Department of Justice, the Department of Defense, the Central
Intelligence Agency, and others. In the meetings I attended,
agencies' representatives raised concerns that certain
terrorists had information that might save American lives.
The participants shared a desire to explore whether there
existed methods of questioning these terrorists that might
elicit that information. It was always very clear that we
would implement such methods only within the bounds of the
law.

That would bear repeating, ``always very clear that we would
implement such methods only within the bounds of the law.'' Judge
Gonzales continues:

As counsel to the President, my constant emphasis and
interest was on the last factor, ensuring compliance with the
law. It would not have been appropriate for me to comment on
issues such as whether a particular individual may have
information that would be helpful to the effort to save
American lives or to defeat terrorists or whether a certain
procedure for questioning that individual would be effective
in eliciting that information. Others with more relevant
experience, expertise, and information were responsible for
making those judgments. Instead it was my responsibility to
ensure that any method they deemed appropriate and effective
from an operational point of view was considered lawful by
the Department of Justice. To the extent I was involved in
recommendations, results, and assignments arising out of such
meetings, my activities were directed toward ensuring that
those with operational responsibilities would act only after
receiving the judgment of the Department of Defense that a
proposed course of action was lawful.

That is the end of Judge Gonzales's statement on that. His role was
reasonably, clearly delineated. He represented the President. He was
responsible for saying what were the outlines of the law, or what was
lawful. Those practices were defined by the Department of Justice
Office of Legal Counsel, which has the responsibility to do that. And
then anything beyond the legal techniques of the questions would lie
with those who have the expertise, as he described it, and the
experience, and the responsibility from the Department of Justice or
from the Central Intelligence Agency.
There was one other statement by Judge Gonzales in response to a
question by Senator Kennedy, which I think is a summary, which
delineates his own role. When asked about a specific newspaper article
and about events that occurred several years before, Judge Gonzales
replied:
Sir, I don't have any specific recollection. I read the same article.
I don't know whether or not it was the CIA [that was in reference as to
whether it was a CIA request]. 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, so they
did the right thing; they asked questions--what is lawful conduct,
because we don't do anything that violates the law.
So here again is a capsule statement of Judge Gonzales's role. He is
representing the President. He is not looking to determine what the
appropriate scope of conduct is. That is a matter to be determined by
those who are involved in questioning the detainees.
That is the essence of what I believe--to be succinct and to the
point of the issue. There are a great many other responses that could
be read, a great many other arguments that could be advanced. I will
reserve further responses on this matter as the course of the argument
develops.
I thank my colleague, Senator Hatch, for coming early in the
proceedings to make a cogent argument.
Mr. President, I have sought recognition today to state my support
for the nomination of Alberto Gonzales to be Attorney General of the
United States.
First, I would like to describe Judge Gonzales's personal background.
He has had an extraordinary life and career. His personal story is one
of dedication and courage--the sort of story

[[Page S690]]

that is possible only in America, where the dreams of even the most
humble citizens can be achieved through hard work and discipline.
Judge Gonzales was born in San Antonio, Texas, and raised in the
small town of Humble, just outside of Houston. Although he and his
seven siblings shared a two-room house that lacked either a telephone
or hot running water, Judge Gonzales refused to be deterred by his
difficult circumstances. He journeyed through Texas public schools,
graduating from a Texas high school. Judge Gonzales then chose to serve
his country by joining the Air Force and serving for approximately 2
years before entering the United States Air Force Academy for a 2-year
stint. Shortly thereafter, he accomplished his childhood dream of
graduating from Rice University. Following his graduation from Rice,
Judge Gonzales went on to graduate from the Harvard Law School.
In June of 1982, he joined the law firm of Vinson & Elkins in
Houston, TX, where he later became a partner. Not content merely to
practice law without giving back to the profession, Judge Gonzales also
taught law as an adjunct professor at the University of Houston Law
Center.
The opportunity for service arose again when then-Governor Bush asked
Judge Gonzales to leave his law firm to become the Governor's General
Counsel. Thereafter, Judge Gonzales embarked upon a distinguished
career in public service, including service as Texas's 100th Secretary
of State from December 2, 1997 to January 10, 1999.
In what would be a capstone for many lawyers' careers, in 1999 Judge
Gonzales was appointed a Justice of the Supreme Court of Texas--a job
he loved, and the reason he is still today known as Judge. Although he
enjoyed his job on the Texas Supreme Court, the President called upon
him to serve his country as the White House Counsel, a position he
filled throughout the administration's first term.
Mr. President, no one in the Senate could take issue with Judge
Gonzales's remarkable rise to prominence, and the obvious talent and
ability that fueled it. Indeed, I think we are all in agreement about
that. Nevertheless, Judge Gonzales finds himself confronting
substantial opposition from my colleagues across the aisle. The
purported reasons do not justify the opposition.
First, the opponents of Judge Gonzales have succeeded in confusing
the public about his views on torture. To listen to Judge Gonzales's
critics, one would think that the policy of the United States was to
promote or sanction torture, and that Judge Gonzales somehow
established such a policy. Last week, for example, the senior Senator
from Massachusetts stood on the Senate floor and accused Judge Gonzales
of being a participant ``in the shameful decision by the administration
to authorize the torture of detainees at Guantanamo and in Iraq.'' That
charge is simply false. In fact, the White House has made very clear
that the United States policy and law prohibit torture, and the
President himself has insisted upon humane treatment for detainees.
Judge Gonzales has been emphatic in his agreement with this position.
When asked, point blank, by the senior Senator from Illinois whether
U.S. personnel can legally engage in torture under any circumstances,
Judge Gonzales answered: ``Absolutely no. Our policy is we do not
engage in torture.'' To which my colleague replied: ``Good. I am glad
that you have stated that for the record.''
Despite that exchange, and others like it, some critics, including
the editors of the Washington Post and New York Times, have
mischaracterized Judge Gonzales's answers to the committee's questions.
In its editorial of January 26th, the Post claimed that Judge Gonzales
had asserted the administration's right to, among other things,
``transport [foreigners] to countries where torture is practiced.'' In
response to a question on this topic posed by my colleague from
Massachusetts, however, Judge Gonzales wrote: ``The policy of the
United States is not to transfer individuals to countries where we
believe they likely will be tortured, whether those individuals are
being transferred from inside or outside the United States.'' He added,
``I am not aware of anyone in the Executive Branch authorizing any
transfer of a detainee in violation of that policy.''

In case this was not clear enough, Judge Gonzales reiterated to the
Senator from Massachusetts: ``United States policy is clear--the
President has directed that the United States is not to engage in
torture anywhere in the world and is not to transfer detainees from
anywhere in the world to other countries where they likely will be
tortured.''
In the New York Times editorial, also dated January 26th, it is
argued that the ``biggest strike against Mr. Gonzales'' is the fact
that a ``now repudiated'' Justice Department memorandum giving a
``narrow definition of torture'' was addressed to him. This ignores
several facts: First, Congress--not the Administration--enacted the
definition of ``torture.'' In 1994, Congress defined torture as ``an
act committed by a person acting under the color of law specifically
intended to inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions) upon another
person within his custody or physical control.''
The now repudiated Justice Department memorandum suggested that
``severe physical pain,'' as used in the torture statute, should be
construed narrowly to mean the type of pain ordinarily ``associated
with a sufficiently serious physical condition or injury such as death,
organ failure, or serious impairment of body functions--in order to
constitute torture.'' But, Judge Gonzales was not the author of this
offending language, and--as I will discuss at greater length later--he
has rejected this narrow view of what constitutes torture.
Moreover, while the memo has now been repudiated and replaced by one
widely acknowledged to be more appropriate, neither memo altered the
President's policy that detainees are to be treated humanely.
The Times editorial also cites a leaked draft memorandum from Judge
Gonzales to the President. Some on the Judiciary Committee, including
the Ranking Minority Leader from Vermont and the senior Senator from
Massachusetts, have mischaracterized this draft memo as a disavowal of
the Conventions. Again, this ignores what Judge Gonzales has written
and said. The language from the leaked memorandum is often taken out of
context. The relevant passage reads as follows:

The nature of the new war [against terrorism] places a high
premium on other factors, such as the ability to quickly
obtain information from captured terrorists and their
sponsors in order to avoid further atrocities against
American civilians, and the need to try terrorists for war
crimes such as wantonly killing civilians. In my judgment,
this new paradigm renders obsolete Geneva's strict
limitations on questioning of enemy prisoners and renders
quaint some of its provisions requiring that captured enemy
be afforded such things as commissary privileges, scrip
(i.e., advances of monthly pay), athletic uniforms, and
scientific instruments.

At his hearing, Judge Gonzales reasserted his commitment to the
Geneva Conventions as a whole. He told the Judiciary Committee in no
uncertain terms: ``I consider the Geneva Conventions neither quaint nor
obsolete.'' And he stressed that, ``[t]he President has repeatedly
condemned torture and made clear that the United States will not
condone torture.'' When asked about potential changes to the
Conventions, he noted: ``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.''
Further, in response to another Democratic Judiciary Committee Member,
Judge Gonzales reiterated, ``Yes, I do denounce torture, and if
confirmed as Attorney General, I will prosecute those who engage in
torture.''
Finally, none of those standing in opposition to Judge Gonzales has
come close to articulating a viable case for linking the actions of
Judge Gonzales to the so-called ``migration'' of a flawed interrogation
policy to the atrocities committed at Abu Ghraib, and perhaps
elsewhere. Despite multiple investigations, including several discussed
at our hearing, no one has established a link--even an attenuated one--
between Judge Gonzales and improper interrogation techniques in the
field; I have yet to see anything other than supposition and
conjecture.
So, Mr. President, I think that Judge Gonzales has been clear about
the United States' policy and his own views against torture, leaving no

[[Page S691]]

meaningful basis to oppose his nomination on such grounds.
As I have already indicated, another issue that has been
misrepresented by Judge Gonzales' opponents is his stance with respect
to the Office of Legal Counsel's memorandum on the anti-torture
statute, the so-called Bybee memo.
At the Judiciary Committee's last Executive Meeting, the senior
Senator from Massachusetts suggested that Judge Gonzales had failed to
reject the memorandum. The record established the contrary. For
example, Judge Gonzales has rejected the Bybee Memorandum's overbroad
statement of Executive authority. In response to the Committee's
questions about the memorandum, Judge Gonzales said:

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.

During his hearing, I asked Judge Gonzales: ``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 answered: ``I reject that statement, Senator.'' This is a
clear and unequivocal answer.
Moreover, Judge Gonzales has explicitly recognized that Presidential
authority in this area is indeed limited. Among other things, he has
noted:

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.

In addition, at his confirmation hearing, Judge Gonzales testified
that he did not agree with the portion of the Bybee Memorandum stating
that severe physical pain, as used in the torture statute, was limited
to pain equivalent to organ failure, impairment of bodily function, or
even death. In response to a question from the Committee's Ranking
Member, for example, Judge Gonzales agreed that horrific conduct, such
as cutting off someone's finger, would be considered torture.
Nevertheless, at the Executive Meeting, the Senator from Massachusetts
continued to suggest that Judge Gonzales might somehow condone conduct
such as, ``[b]eating you, suffocating you, ripping out your
fingernails, burning you with hot irons, suspending you from hooks,
putting lighted cigarettes in your ear.''
Such hyperbole, Mr. President, serves to highlight the fact that
arguments against Judge Gonzales have ignored significant statements by
this nominee. Judge Gonzales has taken important steps towards
accommodating the legislative branch of government through his
rejection of the Bybee dicta and his concessions on the limits of
presidential power. Ignoring such efforts is the wrong way to approach
such an important nomination and the wrong way to assess such a fine
and worthy nominee.
On a related note, my colleague from Massachusetts and other critics,
including the New York Times, have seized upon the fact that the
President's February 2002 directive regarding the humane treatment of
prisoners is addressed to the Nation's Armed Forces to suggest that
somehow the CIA has been operating without legal constraints. The
senior Senator from Massachusetts, for example, has alleged that Judge
Gonzales ``evaded answers to questions about whether the CIA can abuse
prisoners, even if the military is prohibited from doing so.'' This is
directly contradicted by Judge Gonzales's responses to the Judiciary
Committee's written questions. For example, Judge Gonzales has written:

The CIA and other intelligence agencies are fully bound by
the prohibition on torture contained in 18 U.S.C. Sec. 2340
and Sec. 2340A and, depending on the circumstances, by other
criminal statutes such as those defining crimes in the
special maritime and territorial jurisdiction of the United
States. Those statutes prohibit, for example, assault (18
U.S.C. Sec. 113) and maiming (18 U.S.C. Sec. 114). These
criminal prohibitions prevent abuse of detainees by
intelligence officers. In fact, the Department of Justice is
currently prosecuting a CIA contract employee for various
charges of assault under 18 U.S.C. Sec. 113.

Despite such answers, my colleague from Massachusetts continues to
accuse the administration of sending ``the message that anything goes
to our troops and intelligence officers in the field.'' To the
contrary, Judge Gonzales has stressed that the ``CIA and other
intelligence agencies are fully bound'' by the laws against torture.
And, as further noted by Judge Gonzales, the CIA and other agencies
have sought Department of Justice guidance concerning the boundaries
emanating from U.S. obligations under, for example, Article 16 of the
Convention Against Torture.
In fact, let me take a moment to address Article 16 directly. Some
have suggested that the administration's interpretation of Article 16
has been used to justify or facilitate the cruel, inhumane or degrading
treatment of aliens overseas. Just last week, for example, the senior
Senator from Massachusetts accused Judge Gonzales of saying ``that the
CIA is not bound by the prohibition on cruel, inhumane and degrading
treatment in Article 16 of the Convention Against Torture.'' Again,
this ignores the testimony of Judge Gonzales. At our hearing, Judge
Gonzales noted that, when the Senate ratified the Convention Against
Torture, it took a reservation equating the requirements under Article
16 with the requirements under the Fifth, Eighth, and 14th Amendments.
Judge Gonzales further acknowledged that, when interpreting these
requirements, the Administration has looked to Supreme Court precedents
holding that aliens interrogated by U.S. personnel outside the United
States enjoy no substantive rights under the Fifth, Eighth, and 14th
Amendment. Nevertheless, regardless of the debate about the strict
legal requirements of Article 16, Judge Gonzales testified that the
administration has sought ``to be in compliance as a substantive matter
under the Fifth, Eighth, and 14th Amendment.'' He also testified that,
to the best of his knowledge, the United States has met its substantive
obligations under the Fifth, Eighth, and 14th Amendments. This
commitment has often been overlooked by the Judge's opponents.

Contrary to the claims of his critics, Judge Gonzales also
acknowledged that, based on his review of the relevant investigations,
the responsibility for what happened at places like Abu Ghraib extends
further up the chain than the culpable guards. The Senator from
Massachusetts accuses Judge Gonzales and others in the administration
of a ``continuing effort to pin the blame for the torture scandal on a
few bad apples among our solders.'' In reality, however, Judge Gonzales
testified:

The reports [by Schlesinger, Faye, Kearns and others] 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.

At the same time, he rejected the notion that inhumane treatment was
tolerated or encouraged as a matter of course. He pointed out, for
example, that, even within Abu Ghraib, the gross misconduct of the
night shift was aberrant:

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.

Once again, on this point as with others, the Judge's own words
refute the accusations of his critics.
Some of my colleagues have also seized upon Judge Gonzales's
inability to recall certain details of meetings that occurred more than
2\1/2\ years ago

[[Page S692]]

to suggest that we lack sufficient information to make an informed
decision about his nomination or that Judge Gonzales is being less than
forthcoming when he asserts he cannot recall a matter. Last week, for
example, the senior Senator from Massachusetts told the Judiciary
Committee that Judge Gonzales ``refuses to tell us anything about those
meetings.''
In fact, the Senator from Massachusetts had several exchanges with
Judge Gonzales on this topic at our confirmation hearing. The Senator
queried, for example: ``I just want to point out, if it is true, as 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
responded:

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.

Given the passage of time, his inability to recall precise details is
understandable. Moreover, it must be viewed in the context of what he
has recalled and provided to the committee. Among other things, he has:
acknowledged his participation in meetings where the questioning of
detainees was discussed; explained the genesis and purpose of such
meetings; described the limited nature of his role; and explained the
result of these meetings. In one lengthy written answer to a question
posed by my colleague from Massachusetts, for instance, he explained:

Since shortly after September 11, 2001 until the present,
the Administration has been involved in conducting the War on
Terror by gathering as much information from terrorists as we
possibly can within the bounds of law. During that time, I
have participated in several meetings at which the possible
use of methods of questioning were discussed. These meetings
may have included, from time to time, representatives from
the National Security Council, the Department of State, the
Department of Justice, the Department of Defense, the Central
Intelligence Agency, and others. In the meetings I attended,
agencies' representatives raised concerns that certain
terrorists had information that might save American lives;
the participants shared a desire to explore whether there
existed methods of questioning these terrorists that might
elicit that information; and it was always very clear that we
would implement such methods only within the bounds of the
law. As Counsel to the President, my constant emphasis and
interest was on the last factor--ensuring compliance with the
law. It would not have been appropriate for me to comment on
issues such as whether a particular individual may have
information that would be helpful to the effort to save
American lives or defeat terrorists, or whether a certain
procedure for questioning that individual would be effective
in eliciting that information. Others with more relevant
experience, expertise, and information were responsible for
making those judgments. Instead, it was my responsibility to
ensure that any method they deemed appropriate and effective
from an operational point of view was considered lawful by
the Department of Justice. To the extent I was involved in
recommendations, results, and assignments arising out of such
meetings, my activities were directed toward ensuring that
those with operational responsibility would act only after
receiving the judgment of the Department of Justice that a
proposed course of action was lawful.

That answer provides a good deal of information. The fact that he
cannot recall details of those meetings is understandable. It is
commonplace to forget details of meetings, particularly when years have
passed. It is certainly not, given the responses that have been made, a
reason to oppose someone who is universally praised for his ability and
integrity.
Since his nomination, the White House has offered every Committee
member a personal, private meeting with Judge Gonzales. To date, the
Judge has met personally with 14 members of the Judiciary Committee,
and more than a dozen other Senators.
At his hearing, Judge Gonzales testified for nearly 6 hours,
answering multiple rounds of questions. There were three rounds of
questions, and I encouraged Senators to participate in each round.
After a complete and lengthy first round, 9 Senators participated in a
second round of questions. After that, 4 Senators including myself took
advantage of the third round. I made sure every Senator had ample
opportunity to question Judge Gonzales. Indeed, one Senator was
ultimately granted a fourth round of questions.
Contrary to the assertion by the Senator from Massachusetts that
Judge Gonzales was unresponsive and he made ``a mockery of the notion
of congressional oversight and accountability,'' Judge Gonzales's
answers to the committee's written questions, contained in 221 single-
spaced pages, provided nearly 450, often detailed, responses on issues
ranging from the war on terrorism to intellectual property. So thorough
was Judge Gonzales's response that the New York Times (January 19,
2005) stated that Judge Gonzales's answers to the committee's written
questions comprised ``one of the administration's most expansive
statements of its positions on a variety of issues, particularly
regarding laws and policies governing C.I.A. interrogation of terror
suspects.''
The questions kept pouring in even after the committee's hearing
record closed on Thursday, January 13th, with 4 Senators submitting
more than 40 additional questions for the nominee. Judge Gonzales has
now responded to all of those supplemental questions. In 27 additional
pages of questions and answers, Judge Gonzales has further clarified
his position on several issues. He also furnished a remarkable 93-page
memorandum on the Geneva Conventions prepared by the State Department
as well as a letter reiterating his role in a court appearance for
then-Governor Bush.
These facts refute the claims that Judge Gonzales has failed to
provide us with sufficient information to evaluate his nomination.
Nevertheless, the Judge's opponents continue to clamor for more. At
the executive meeting, for example, the senior Senator from
Massachusetts complained that Judge Gonzales had ``not conducted a
search for . . . requested documents.'' In fact, my colleague said it
would be ``hard to imagine a more arrogant insult to this Committee's
oversight responsibility.''
I requested that a search be conducted for any draft or final
memoranda or other documents written by Judge Gonzales and relevant to
the subject of interrogation techniques or torture. The White House
responded by conducting a search.
On January 19, 2005, at the direction of the White House Chief of
Staff, David Leitch, Deputy Counsel to the President, supervised a
search of certain electronic records available in the Office of Counsel
to the President. Specifically, he searched for word processing
documents containing the words ``torture'' or ``interrogation'' that
were located on (1) the shared Counsel's Office directory, (2) the
personal and network directories used by Judge Gonzales and his
assistants, or (3) the hard drive of Judge Gonzales's computer.
According to the White House, based on the practices concerning
documents created by Judge Gonzales, there is a very high probability
that any document of the sort described would have been identified as a
result of this search. I have been advised, however, that no such
documents were identified by the administration.
Moreover, the White House has represented, and Judge Gonzales
confirmed, that he has no notes reflecting discussions at any meetings
concerning these topics, nor does the White House believe there are any
notes taken by Judge Gonzales in the files of the office.
Finally, I have been advised that, during Judge Gonzales's tenure as
counsel to the President, there have never been any audio recordings or
transcriptions of any meetings in the White House Counsel offices
concerning these topics, or any others, so far as the White House is
aware.
Judge Gonzales and the White House have undertaken appropriate
efforts to accommodate the Senate by providing relevant information.
Between his written answers and his testimony, Judge Gonzales has
addressed his role in the solicitation and provision of legal advice,
as well as his personal views on the contested issues--such as

[[Page S693]]

the treatment of detainees. There is an ample record to evaluate his
nomination. I urge Senators to review the voluminous materials that
have been produced before coming to any conclusion.
Mr. President, another argument used by the Gonzales critics is that
he refused to answer certain hypothetical questions during his hearing.
Using the rejected language of the Bybee memo about a postulated
Commander-in-Chief override of the torture statute, certain Judiciary
Committee members repeatedly asked Judge Gonzales whether he believed
the President could authorize torture in extreme and hypothetical
circumstances. Judge Gonzales refused to engage in scenarios about
when, if ever, torture might be sanctioned, because the President has
rejected torture under any circumstances.
So, when the ranking minority member asked, ``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 answered:

[T]he 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.

Given the administration's clear policy, this response is
appropriate. Judge Gonzales has explained that the Bush administration
will not engage in torture under any circumstance, so his reluctance to
contradict the President's policy is perfectly understandable.

In fact, even the distinguished witnesses on the second panel of our
confirmation hearing, including two law school deans and an advocate
for victims of torture, were unwilling to engage in hypothetical
debates about what set of circumstances--if any--might justify a
presidential decision to approve torture. One witness even
characterized the hypothetical about a ticking time bomb as ``fantasy''
and part of the ``mythology'' of torture. Such reticence is
understandable, especially for someone, like Judge Gonzales, who serves
a President who has rejected the use of torture under any
circumstances.
Another of the anti-Gonzales shibboleths is that he is too close to
the President to be independent. This argument ignores what Judge
Gonzales, an honorable and credible man, told the Judiciary Committee.
During his opening statement, and several times thereafter, Judge
Gonzales acknowledged the difference between his role as White House
Counsel and the job of Attorney General. At the outset of our hearing,
he noted:

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.

That is a clear statement that he recognizes the difference between
his current job and the job of Attorney General. Judge Gonzales has
been the lawyer for one person--the President--and is now going to
serve as a lawyer for all Americans. Judge Gonzales knows the
difference and will serve honorably as the next Attorney General.
Before I conclude, Mr. President, I want to emphasize a few of the
positive comments my Democratic colleagues on the Judiciary Committee
have made about this nominee. At his confirmation hearing, the senior
Senator from Wisconsin told Judge 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.'' At our Executive Meeting, the senior senator from Delaware
noted: ``My vote, to state the obvious, is not about his character or
his compelling personal story, which is compelling. He has overcome
great adversity in his life, and I believe he is an intelligent, decent
and honorable man.'' The senior senator from New York said, ``I like
Judge Gonzales. I respect him. I think he is a gentleman and I think he
is a genuinely good man.'' Such comments do not surprise anyone who has
gotten to know Judge Gonzales.
As I have noted, Judge Gonzales has taken a strong stand against
torture, rejected suggestions that the President is above the law, and
recognized the important distinctions between the position of White
House Counsel and Attorney General. So, what is behind the votes
against him? Not his personal story. Not his character. Not his
willingness to work with Congress. There may well be a large overhang
of politics clouding this nomination. Politics, however, is a poor
reason for denying the President his choice to be Attorney General. I
urge my colleagues to consider this nomination based on the facts.
Regardless of what administration is in power, that is a standard we
should all honor.
Mr. President, the bottom line is that Judge Gonzales is a remarkable
American, well-suited for the position of Attorney General, who has
been forthcoming with the Senate and the American people about his role
in some very difficult decisions during a very important time. He is a
good man. Even his opponents acknowledge that. I urge my colleagues to
support Judge Gonzales to be Attorney General.
I yield the floor.
The PRESIDING OFFICER (Mr. Sununu). The Senator from Vermont is
recognized.
Mr. LEAHY. Mr. President, I will not at this point speak quite as
long. Because I will not use the same amount of time now, I ask
unanimous consent that the Senator from California, Mrs. Feinstein, be
allowed to follow my remarks.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. LEAHY. Mr. President, I ask unanimous consent to have printed in
the Record a number of recent editorials regarding the nomination of
Alberto Gonzales.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Los Angeles Times, Jan. 6, 2005]

A Window on a Man's Morality; Alberto R. Gonzales' Record Raises
Questions About His Fitness To Serve as Attorney General

The Republicans' comfortable majority in the Senate means
that Alberto R. Gonzales will almost certainly be confirmed
as the next attorney general. With hearings on his nomination
set to start today, many Democrats think the best they can do
is wound Gonzales enough with questions about his notorious
torture memos to disqualify him for any future Supreme Court
seat. In the end, however, they will feel pressure to support
him or face retaliation from Republicans.
They should resist.
The eight Democrats and a smattering of moderate
Republicans who voted for John Ashcroft four years ago
probably felt the same pressure.
No one now can doubt the enormous power the attorney
general wields or the lasting harm the person who holds that
office can do. Gonzales may not share his predecessor's zeal
in hounding X-rated moviemakers or cancer patients who smoke
marijuana, but as the president's chief lawyer, he has been
every bit as reckless.
As a leading architect of Bush's ends-justifies-means war
on terror, Gonzales pushed to justify torturing terror
suspects in violation of international law, promoted military
tribunals that echo Stalin's show trials, helped write the
Patriot Act (which, among other powers, gives government
agents vast new snooping authority) and excused the limitless
imprisonment of American citizens whom the president merely
suspects of terror activity.
Three years into that war, much of Gonzales' handiwork has
been rejected by courts, damned by the world community and
disavowed by the administration--as in the Justice Department
memo quietly released last week declaring that ``torture is
abhorrent to both American law and values and to
international norms.''
Gonzales' defenders argue that, as White House counsel, he
was simply a passionate advocate for his client. But the most
devoted counselor knows that, even in wartime, there are
legal and moral lines this nation crosses at peril to its own
citizens and those of other countries. Gonzales'
justifications opened the door to the abuse at Abu Ghraib
prison and the Guantanamo Bay detention facility. The
mistreatment and prisoner deaths that occurred have raised
fears of retaliation against captured Americans. Those
concerns prompted a dozen retired generals and admirals,
along with civil rights groups, to oppose Gonzales'
nomination.
Our justice system relies on an attorney general willing to
defend civil liberties as ardently as he pursues criminals
and terrorists. That person must be someone who respects both
the power and the limits of law.

[[Page S694]]

Gonzales' record as White House counsel is not just a
series of unfortunate missteps; rather, it is a troubling
window into the man's morality and his fitness to be the
nation's chief lawyer. Democratic senators will surely ask
Gonzales sharp and embarrassing questions about the
principles that guided his tenure in the Office of Legal
Counsel. These lawmakers then ought to demonstrate that they
understand the principles at stake by actually voting no.
____

[From the Arizona Daily Star, Jan. 8, 2005]

Wrong for the Job

George W. Bush understandably wants a trusted adviser to be
his next attorney general. White House Counsel Alberto
Gonzales enjoys that trust, but the President's nominee is
the wrong man for the job.
With Republicans outnumbering Democrats by 55-45 in the
Senate, Gonzales is likely to win approval for the position.
Yet, the man who advocated the use of torture as an
interrogation tool is not only unqualified, he is a threat to
the rights of Americans.
Before Thursday's Senate hearing on his nomination,
Gonzales was merely a legal adviser who was unqualified. But
during the hearing he showed himself to be a man of
questionable morality and ethics.
For example, his 2002 memo to the president stated that the
war on terror ``renders obsolete Geneva's strict limitations
on questions of enemy prisoners and renders quaint some of
its provisions.'' The Geneva Conventions outline how
prisoners of war should be treated.
But when questioned by the Senate on Thursday, Gonzales
said this: ``Contrary to reports, I consider the Geneva
Conventions neither obsolete nor quaint.'' He said his early
interpretation applies only to organizations like al-Qaida
that have no national affiliation and do not ``fight
according to the laws of war.'' And he said the Geneva
Conventions' protections for terrorists would ``honor and
reward bad conduct.'' And he pledged to prosecute those who
tortured terrorism suspects.
However, he noted that the White House is looking to change
some of the Geneva Conventions' guidelines. There again, one
has to question whether Gonzales is saying the right things
in order to win the job.
His statements now and in the past are inconsistent at
best. But more important, the legal opinion he forwarded to
the president and this administration cannot be separated
from the scandals of torture and death at Abu Ghraib prison
in Iraq.
It is significant that among his Senate supporters,
Gonzales' legal abilities and his leadership skills are
hardly mentioned as top qualifications. Supportive senators
instead promote the nominee's rags-to-riches story. Second
among his qualifications is that he would become the nation's
first Hispanic attorney general.
This administration has an affinity for those kinds of
stories. But it should have learned from the Bernard Kerik
nomination that they don't always make for good national
leadership. Kerik withdrew his nomination as head of Homeland
Security after questions arose about the immigration status
of a housekeeper and nanny he employed.
Gonzales' ethnicity, his accomplishments and his role as
adviser to the president for nine years are admirable but
irrelevant. His background makes for great political theater
but does not qualify him to be attorney general. And one
would hope that Hispanics would not rush to blindly support a
man who is clearly wrong for the job.
Alberto Gonzales has a history of bending the law to fit
policy and the wishes of the president. Eagerness to please
makes him a great adviser and confidant.
But as head of the Justice Department, the attorney general
should answer only to the law.
____

[From the Milwaukee Journal Sentinel, Jan. 8, 2005]

Editorial: Don't Confirm Gonzales

Thursday's Senate confirmation hearing provided Alberto R.
Gonzales with an opportunity to confront some of the nagging
questions that have been raised about his nomination to be
attorney general. So important is the office to which
Gonzales aspires that the Senate and the American people
needed to hear convincing answers to these questions. They
deserved assurances that Gonzales had the judgment, the
temperament and the integrity necessary for this cabinet
position.
Far from supplying this reassurance, Gonzales proved to be
consistently weak and evasive. So intellectually sterile was
his testimony that it showed Gonzales to be unfit for the
important office he seeks, and for this reason the Senate
should reject his nomination.
Realistically, of course, this will almost certainly not
happen; Democrats on the Judiciary Committee signaled
Thursday that, despite reservations about Gonzales, they will
support the nomination. Indeed, they make a respectable case,
which is that presidents are entitled to broad leeway in the
selection of their cabinet members. But there are limits to
the discretion to which presidents are entitled; otherwise,
the entire confirmation process becomes meaningless.
Unfortunately, Gonzales's views put him beyond even these
broad limits. As White House counsel, he was largely
responsible for, or at least acquiesced in, a repudiation of
some of this country's most precious ideals, such as the
notion that human beings should not be tortured.
In January 2002, Gonzales told President Bush that the war
on terror ``renders obsolete'' some of the strict limitations
imposed by the Geneva Conventions as applied to al-Qaida and,
in some cases, Taliban fighters. Arguably, one can make that
legal case but elsewhere in that letter, and more disturbing,
was the tone Gonzales adopted when he dismissed as merely
``quaint'' some of the convention's human rights provisions.
In August 2002, Gonzales received a Justice Department
memorandum that a president could suspend Geneva Convention
protections at will and that some forms of torture ``may be
justified.''
On Thursday, Gonzales disavowed the use of torture. A week
earlier, the Justice Department had repudiated its August
2002 memo. But why did this reversal take this long? In light
of Gonzales's four-year record, his disavowal of terrorism
seemed merely rhetorical and tactical. Efforts to elicit
Gonzales's views were met with vagueness and equivocation.
Gonzales said he couldn't remember key details of his
involvement with the August 2002 memo. He wasn't even sure
whether Americans could legally engage in torture under any
circumstances.
Ordinarily, even these gross deficiencies might be
tolerable. But these are not ordinary times. The threat to
civil liberties posed by the fight on terror requires an
attorney general with a demonstrated record of sound
judgment, independent temperament and unquestioned integrity.
Gonzales's rags-to-riches personal story is an inspiration
to all Americans. But his story is not the issue. He has not
demonstrated the judgment and integrity to be the nation's
chief law enforcement officer at this pivotal time in our
history.
____

[From the Star Tribune (Minneapolis, MN), Jan. 8, 2005]

Gonzales; Democrats Should Reject Him

Democrats in the U.S. Senate have many well-founded reasons
to oppose with all their might President Bush's nomination of
Alberto Gonzales to be attorney general. But one reason
stands out above all others, and Democrats should pound it
home: Gonzales believes the president of the United States
has the power, as commander in chief, to permit the use of
torture by American forces by immunizing from prosecution
anyone who does it.
This reasoning was put forward in an August 2002 memo,
called the Bybee memo, from the Department of Justice to the
White House. Gonzales testified before the Senate Judiciary
Committee Thursday that he, as the president's lawyer, simply
passed the memo along. It wasn't his job, he said, to warn
the president of the memo's implications or to disagree with
it. Gonzales has a peculiar notion of his role as the
president's attorney; others quite rightly characterize his
behavior as a dereliction of duty. In fact, there's good
reason to believe Gonzales was an active participant in the
memo's construction.
But whatever his role, Gonzales clearly agreed with the
memo, and does to this day.
Sen. Patrick Leahy, D-Vt., the ranking Democrat on the
committee, tried every way he could to get Gonzales to answer
``yes'' or ``no'' to a simple question: ``Now, as attorney
general, would you believe the president has the authority to
exercise a commander-in-chief override and immunize acts of
torture?'' Gonzales tried all kinds of tacks to avoid
answering: The question is hypothetical because Bush opposes
the use of torture, etc. Leahy persisted, and finally
Gonzales said, ``Senator, I do believe there may come an
occasion when the Congress might pass a statute that the
president may view as unconstitutional,'' and therefore he
can ignore it. The answer was disingenuous because the issue
isn't laws Congress might pass, but established U.S. and
international laws that prohibit the use of torture. Thus,
the only reasonable way to interpret Gonzales' answer in the
context it was asked is that, indeed, the president has the
power to permit torture by immunizing those who do it.
The White House has done its darnedest to frustrate
Judiciary Committee inquiries into Gonzales' role in the
torture scandal. Leahy Thursday held aloft a hefty file of
unanswered questions and letters he had sent to the White
House seeking information on Gonzales' views about torture
and his role in framing policies that led to the Abu Ghraib
scandal and the abuse of prisoners at Guantanamo Bay. Despite
that, Leahy and his colleagues got Gonzales on the record
saying that he does believe the president has the power to
override U.S. laws.
That's all the Democrats need to oppose Gonzales'
confirmation en masse, and they should. Torture is always out
of bounds, no matter the circumstance; it is immoral,
ineffective and puts captured American forces at risk.
Previous congresses and presidents have enacted laws and
ratified international treaties to that effect.
The United States does not need an attorney general who
believes that this president has the right to override those
laws and treaties at his whim. Even if Gonzales is eventually
confirmed, as it appears he will be, Senate Democrats must be
on the record upholding the powerful principle that the
United States unequivocally rejects torture.

[[Page S695]]

____
[From the Slate (South Carolina), Sat. Jan. 15, 2005]

Torture Taint Should Disqualify Nominee Gonzales

After last week's confirmation hearing for Alberto
Gonzales, even senators who disliked the nomination said he
would be confirmed, for no other reason than he is the one
President Bush asked for. ``There's a lower standard,
frankly, for attorney general than for judge, because you
give the president who he wants,'' said Sen. Charles Schumer,
D-N.Y.
There's a sad symmetry in this. Mr. Gonzales's work as
legal counsel to the president on the issue of torture has
been rejected by the U.S. Supreme Court and disowned by the
White House--only after it backfired politically and legally.
His principal qualification is unambiguous loyalty to the
president. In short, his selection reflects what sadly seems
to be the overriding attribute this president wants in his
subordinates. That might be good enough for the president,
but it does not make him the right choice to be the nation's
top lawyer; in fact, in this case it should mean just the
opposite.
Mr. Gonzales has helped this administration pursue the
human equivalent of the hiddenball trick. Guantanamo Bay,
Cuba, was chosen as the U.S. detention facility for ``enemy
combatants'' under the assumption that it could be defined as
a legal no-man's-land, a place where the laws of the United
States do not apply. It would be years before the U.S.
Supreme Court ruled, as Sen. Lindsey Graham put it, that
``Gitmo is not Mars.'' The administration took other actions,
including denying legal counsel to detainees, that it thought
were unlikely to withstand court scrutiny, so it endeavored
instead to stall definitive rulings as long as it could.
Few of these actions can rise to the appropriately high
standard delineated by Sen. Graham during the confirmation
hearing: ``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.''
But will Mr. Gonzales lead the Justice Department to meet
that standard?
His answers during the confirmation hearing showed less of
the firm moral base the position requires, and more of a
tendency to look at things in a lawyerly way, in the
Clintonian sense of the term. He said his new zeal to keep to
the legal straight-and-narrow on torture stems from a new
understanding that he would represent not just the president
anymore, but the whole United States. But shouldn't advising
the president have been enough of a guide for Mr. Gonzales to
strive to uphold bedrock American principles? He treats the
now-discredited legal opinions as if they have been
vaporized. But they had, and are still having, real-world
effects, some of them disastrous to the U.S. cause (such as
Abu Ghraib). And which represents the real Alberto Gonzales:
the man who appeared before the Senate or the one who advised
President Bush?
This administration, and far more importantly this nation,
must make a clean break from the policies identified with Mr.
Gonzales. Making him attorney general of the United States
accomplishes the opposite.
This nomination tells the world that no minds have been
changed in this country about the use of torture; it says
America sees no conflict between detaining suspects without
legal counsel and trying to hold our constitutional democracy
aloft as an example to the world.
Sen. Graham seems to understand that Alberto Gonzales is
not the best choice. Both he and Sen. Jim DeMint have a duty,
if they truly see the problems with this nomination, to vote
against it, as loyal Republicans and as Americans. Only when
they and others do so might this president finally see the
need for change in key elements of his war strategy, and
start making top personnel decisions based on that new
understanding. This must happen, for the sake of the nation.
____

[From the Boston Globe, Jan. 18, 2005]

Unfit as Attorney General

Two memos on the US treatment of detainees from Afghanistan
and Iraq stand in the way of Alberto Gonzales becoming the
next attorney general of the United States. At his
confirmation hearing earlier this month, he neither disavowed
the memos nor showed an understanding of how their denial of
international protections to detainess could lead to the many
cases of prisoner abuse reported by both the FBI and the
International Red Cross. The Senate should reject his
nomination.
In his testimony, Gonzales made frequent reference to the
much-photographed instances of prisoner humiliation and abuse
at Abu Ghraib, as though the naked-body pyramid and other
abuses that Specialist Charles Graner was justifiably
convicted of Friday were the worst of what has occurred. But
the FBI and Red Cross reports as well as the military's own
investigations of killings of prisoners make clear that some
interrogators and guards crossed the line into torture or
homicide. It is disingenuous of Gonzales not to acknowledge
the link between permissive torture policies from Washington
and acts of abuse that occurred not just at Abu Ghraib but in
Afghanistan and Guantanamo as well.
In 2002 as White House counsel, Gonzales wrote a memo in
which he called provisions of the Geneva Conventions
regarding prisoners of war ``obsolete'' and ``quaint'' and
said the United States could operate as though the
conventions did not apply to the Afghan war. Indeed, some of
the fighters captured during the 2001 war against the Taliban
and Al Qaeda in Afghanistan might not have deserved the
status of POWs.
But the Geneva Conventions--and American law--make clear
that any battlefield detainee has that status until a
``competent tribunal'' puts him in the less protected
category of ``enemy combatant.'' As US Judge James Robertson
noted in a ruling last November, the Geneva Conventions do
not give any individual, including the president, the
authority to say who deserves POW status. The White House
counsel certainly lacks that authority.
The second memo that has damaged the US reputation
worldwide was written in 2002 by a Justice Department
official as a guide to interrogation techniques. The memo,
which Gonzales discussed with administration officials, said
a president has the power to authorize torture despite a 1994
US law banning it. At the confirmation hearing, Gonzales
declined chances to repudiate that view.
The Sept. 11, 2001, attacks thrust the United States into a
new kind of conflict in which useful intelligence from
detainees is crucial. But Gonzales has been at the center of
administration policy-making that set aside tried and true US
and international rules governing the collection of this
information. His blindness to the consequences of those
policies makes him a poor choice for chief law enforcement
officer of the nation.
____

[From the Republican (Western Massachusetts), Jan. 23, 2005]

Gonzales Nomination Leaves Many Questions

When Alberto Gonzales appeared before the Senate Judiciary
Committee earlier this month, some of his answers to
questions about the treatment of prisoners in Iraq,
Afghanistan and elsewhere left some Democratic committee
members wanting more. So they asked a series of follow-up
questions to be answered in writing. And when Gonzales
provided his answers, those same senators still found
themselves wanting more.
So they decided to delay--for at least one week--a
committee vote on his nomination to succeed John Ashcroft as
attorney general. It was the right move.
There are real questions about Gonzales's fitness to serve
as attorney general. His nomination should not move forward
until those questions are answered.
He has written that certain provisions of the Geneva
Conventions--which provide for the treatment of enemy
prisoners--are ``quaint'' or ``obsolete.'' Gonzales approved
a memorandum saying that the president ``wasn't bound by laws
prohibiting torture and that government agents who might
torture prisoners at his direction couldn't be prosecuted by
the Justice Department.''
Gonzales has said he believes that the president of the
United States has the authority to order the detention of
enemy combatants indefinitely during wartime. He has
repeatedly backed the provisions in the USA Patriot Act that
infringe most broadly on civil liberties and the fundamental
right of the citizens to be left alone.
When he was attorney general of Texas--while George W. Bush
was governor--he wrote a memo directly contradicting a
federal law that grants foreign nationals access to American
courts when they are accused of a crime.
And the list goes on and on.
The president has nominated Alberto Gonzales to be the
chief law enforcement officer in the United States. The
attorney general sits at the very top of the U.S. Department
of Justice. The person in that position must possess a
scrupulousness that is beyond question.
Gonzales has not, to date, demonstrated that he has the
qualities that an individual needs to be elevated to one of
the most significant positions in this nation.
____

[From the New York Times, Jan. 26, 2005]

The Wrong Attorney General

Alberto Gonzales's nomination as attorney general goes
before the Senate at a time when the Republican majority is
eager to provide newly elected President Bush with the
cabinet of his choice, and the Democrats are leery of
exposing their weakened status by taking fruitless stands
against the inevitable. None of that is an excuse for giving
Mr. Gonzales a pass. The attorney general does not merely
head up the Justice Department. He is responsible for
ensuring that America is a nation in which justice prevails.
Mr. Gonzales's record makes him unqualified to take on this
role or to represent the American justice system to the rest
of the world. The Senate should reject his nomination.
The biggest strike against Mr. Gonzales is the now
repudiated memo that gave a disturbingly narrow definition of
torture, limiting it to physical abuse that produced pain of
the kind associated with organ failure or death. Mr.
Gonzales's attempts to distance himself from the memo have
been unconvincing, especially since it turns out he was the
one who requested that it be written. Earlier the same year,
Mr. Gonzales himself sent President Bush a letter telling him
that the war on terror made the Geneva Conventions' strict
limitations on the questioning of enemy prisoners
``obsolete.''
These actions created the legal climate that made possible
the horrific mistreatment of Iraqi prisoners being held in
Abu

[[Page S696]]

Ghraib prison. The Bush administration often talks about its
desire to mend fences with the rest of the world,
particularly the Muslim world. Making Mr. Gonzales the
nation's chief law enforcement officer would set this effort
back substantially.
Other parts of Mr. Gonzales's record are also troubling. As
counsel to George Bush when he was governor of Texas, Mr.
Gonzales did a shockingly poor job of laying out the legal
issues raised by the clemency petitions from prisoners on
death row. And questions have been raised about Mr.
Gonzales's account of how he got his boss out of jury duty in
1996, which allowed Mr. Bush to avoid stating publicly that
he had been convicted of drunken driving.
Senate Democrats, who are trying to define their role after
the setbacks of the 2004 election, should stand on principle
and hold out for a more suitable attorney general.
Republicans also have reason to oppose this nomination. At
the confirmation hearings, Senator Lindsey Graham, Republican
of South Carolina, warned that the administration's flawed
legal policies and mistreatment of detainees had hurt the
country's standing and ``dramatically undermined'' the war on
terror. Given the stakes in that war, senators of both
parties should want an attorney general who does not come
with this nominee's substantial shortcomings.
____

[From the Washington Post, Jan. 26, 2005]

A Degrading Policy

Alberto R. Gonzales was vague, unresponsive and misleading
in his testimony to the Senate Judiciary Committee about the
Bush administration's detention of foreign prisoners. In his
written answers to questions from the committee, prepared in
anticipation of today's vote on his nomination as attorney
general, Mr. Gonzales was clearer--disturbingly so, as it
turns out. According to President Bush's closest legal
adviser, this administration continues to assert its right to
indefinitely hold foreigners in secret locations without any
legal process; to deny them access to the International Red
Cross; to transport them to countries where torture is
practiced; and to subject them to treatment that is ``cruel,
inhumane or degrading,'' even though such abuse is banned by
an international treaty that the United States has ratified.
In effect, Mr. Gonzales has confirmed that the Bush
administration is violating human rights as a matter of
policy.
Mr. Gonzales stated at his hearing that he and Mr. Bush
oppose ``torture and abuse.'' But his written testimony to
the committee makes clear that ``abuse'' is, in fact,
permissible--provided that it is practiced by the Central
Intelligence Agency on foreigners held outside the United
States. The Convention Against Torture, which the United
States ratified in 1994, prohibits not only torture but
``cruel, inhumane or degrading treatment.'' The Senate
defined such treatment as abuse that would violate the Fifth,
Eighth or 14th amendments to the Constitution--a standard
that the Bush administration formally accepted in 2003.
But Mr. Gonzales revealed that during his tenure as White
House counsel, the administration twisted this
straightforward standard to make it possible for the CIA to
subject detainees to such practices as sensory deprivation,
mock execution and simulated drowning. The constitutional
amendments, he told the committee, technically do not apply
to foreigners held abroad; therefore, in the administration's
view the torture treaty does not bind intelligence
interrogators operating on foreign soil. ``The Department of
Justice has concluded,'' he wrote, that ``there is no legal
prohibition under the Convention Against Torture on cruel,
inhuman or degrading treatment with respect to aliens
overseas.''
According to most legal experts, this is a gross distortion
of the law. The Senate cited the constitutional amendments in
ratifying the treaty precisely to set a clear standard that
could be applied to foreigners. Nevertheless, Mr. Gonzales
uses this false loophole to justify practices that contravene
fundamental American standards. He was asked if there were
any legal prohibition against U.S. personnel using simulated
drowning and mock executions as well as sleep deprivation,
dogs to inspire fear, hooding, forced nudity, the forced
injection of mood-altering drugs and the threat of sending a
detainee to another country for torture, among other abuses.
He answered: ``Some might. . . be permissible in certain
circumstances. ``
This is not a theoretical matter. The CIA today is holding
an undetermined number of prisoners, believed to be in the
dozens, in secret facilities in foreign countries. It has
provided no account of them or their treatment to any outside
body, and it has allowed no visits by the Red Cross.
According to numerous media reports, it has subjected the
prisoners to many of the abuses Mr. Gonzales said ``might be
permissible.'' It has practiced such mistreatment in Iraq,
even though detainees there are covered by the Geneva
Conventions; according to official investigations by the
Pentagon, CIA treatment of prisoners there and in Afghanistan
contributed to the adoption of illegal methods by military
interrogators.
In an attempt to close the loophole, Sen. Richard J. Durbin
(D-Ill.), Sen. John McCain (R-Ariz.) and Sen. Joseph I.
Lieberman (D-Conn.) sought to attach an amendment to the
intelligence reform legislation last fall specifying that
``no prisoner shall be subject to torture or cruel, inhumane
or degrading treatment or punishment that is prohibited by
the Constitution, laws or treaties of the United States.''
The Senate adopted the provision unanimously. Later, however,
it was stripped from the bill at the request of the White
House. In his written testimony, Mr. Gonzales affirmed that
the provision would have ``provided legal protections to
foreign prisoners to which they are not now entitled.''
Senators who supported the amendment consequently face a
critical question: If they vote to confirm Mr. Gonzales as
the government's chief legal authority, will they not be
endorsing the systematic use of ``cruel, inhumane and
degrading'' practices by the United States?
Mr. LEAHY. Mr. President, today we are beginning the debate on the
nomination of Alberto Gonzales to be Attorney General of the United
States.
When I first heard of this nomination last November, I was hopeful. I
saw this nomination as a chance for some long missing accountability on
some of the most pressing issues facing our Nation. I noted at the time
that I like and respect Judge Gonzales. I met with him soon after his
designation and wrote to him, following up on that meeting, to inform
him in advance of his confirmation hearing about issues that would be
raised about several key issues. I listened carefully to him during our
confirmation hearing.
The road he has traveled from being a 12-year-old boy selling soft
drinks at football games, all the way to the State House in Texas and
to the White House, is a tribute to him and to his family. In spite of
our disagreements on issues, I have sought to maintain a cordial
personal working relationship with Judge Gonzales during his years as
President Bush's counsel. As Senator Kennedy has said, I dearly wish
that we could vote for that compelling story, and not for the nominee
whose record is before us. In my case, I will vote based on the record.
It saddened me to call Judge Gonzales last week and tell him that I
could not in good conscience vote to confirm his nomination to be
Attorney General, the chief law enforcement officer of the Nation. He
is not the person for this job.
My reasons for voting against Judge Gonzales arise from the need for
accountability and derive from the nominee's involvement in the
formulation of a number of policies that have tarnished our country's
moral leadership in the world and put American soldiers and American
citizens at greater risk.
When President Bush announced this nomination he said that he chose
Judge Gonzales because of his ``sound judgment'' and role in shaping
the Administration's policies in the war on terrorism. Based on the
glimpses of secret policy formulations and legal rationales that have
come to light, I believe his judgments not to have been sound. On the
contrary, several of this Administration's legal policies have been
exceedingly harmful to our national interests.
As Attorney General, the nominee's judgment about our laws would be
of enormous consequence.
This is a different type of Cabinet position than many others. In
many Cabinet positions, such as the Secretary of State, the Secretary
of Treasury, and others, the Cabinet member states the President's
position. They state the President's position and carry out the
President's policies. The Attorney General is different. The Attorney
General is not the Attorney General of the President; he is the
Attorney General of the United States. This is a position where the
cabinet member has enormous flexibility to carry out decisions--to
bring prosecution or withhold it, to begin an investigation or to
withhold an investigation, to determine to go into a place where he
believes there may have been a voting rights violation or to say there
is none. This individual must be independent of the President.
Judge Gonzales has championed policies that are in fundamental
conflict with decades of laws, sound military practice, international
law, and human rights. He remained silent for almost 2 years about a
deeply flawed and legalistic interpretation of our Nation's torture
statute. He also accepted a patently erroneous interpretation of the
torture convention and apparently believes that the President, when
acting as Commander in Chief, is above the law.
When I asked Judge Gonzales if he agreed with the Bybee memo's very
narrow reading of the law, he replied: ``I don't recall today whether
or not I was in agreement with all of the analysis, but I don't have a
disagreement

[[Page S697]]

with the conclusions then reached by the Department.'' This is the memo
which concludes that ``physical pain amounting to torture must be
equivalent in intensity to the pain accompanying serious physical
injury, such as organ failure, impairment of bodily function, or even
death.'' Even the Justice Department repudiated this legal memorandum,
once it became public.
Under his restrictive redefinition such practices as threatening a
prisoner with a firearm in a mock execution, ``waterboarding'' a person
to make him experience the suffocating effects of drowning, and, as
Senator Kennedy noted, perhaps even cutting off a person's fingers one
joint at a time would not amount to ``torture.'' But surely we consider
these practices torture when done to a member of the U.S. military or
to an American citizen.
How can we, the greatest Nation on Earth, stand up and say such acts
are not torture if committed against foreign detainees?
Perhaps most disturbing of all as a legal matter is the nominee's
positing of the President as above the law. Nothing is more fundamental
about our constitutional democracy than our basic notion that no one is
above the law. Yet at his June 2004 news conference and again in his
testimony before the Judiciary Committee he indicated that he views the
President to have the power to override our law and, apparently, to
immunize others to perform what would otherwise be unlawful acts. This
is about as extreme a view of executive power as I have ever heard. I
believe it is not only dead wrong as a constitutional matter but
extremely dangerous. The rule of law applies to the President, even
this President.
From the time of George Washington to George W. Bush, we have always
maintained that in our Nation no one is above the law--not the
President, not a Senator, not a judge, not anyone in our country.
Ironically, it was the administration of this President's father that
urged the Senate to ratify the torture convention. It did so to make
clear that the United States condemns torture and to protect Americans
from this barbaric practice. But if the U.S. President does not feel
bound by the torture convention, then neither will other foreign
leaders.
Ultimately, the Attorney General's duty is to uphold the Constitution
and the rule of law--not to work to circumvent it. Both the President
and the nation are best served by an Attorney General who gives sound
legal advice and takes responsible action, without regard to political
considerations--not one who develops legalistic loopholes to serve the
ends of a particular administration.
The Attorney General appointed by the President's father remarked:
``Nothing would be so destructive to the rule of law as to permit
purely political considerations to overrun sound legal judgment.''
Judge Gonzales demonstrates a lack of independence from the President,
something that we cannot have in the chief law enforcement officer in
the nation. He cannot interpret our laws to mean whatever the President
wants them to mean. To do so would deny us the constitutional
protections upon which this nation was founded. The Attorney General is
supposed to represent all of the American people, not just one of them.
We have seen what happens when the rule of law plays second fiddle to
the President's political agenda. This Administration has taken one
untenable legal position after another regarding the rule of law in the
war against terror. It will not admit to making mistakes. It takes
action only after mistakes are made public and become politically
indefensible.
Given the Republican Party's leadership in Congress, the Federal
courts have provided what little check there has been on this
President's claim of unfettered Executive power. The Congress has
failed to do any real oversight of that use of power.
Judge Gonzales's nomination initially seemed like a breath of fresh
air. I have noted how much I personally like him. I think most people
do. But as I told the nominee when we met within days of the
announcement of his nomination, these confirmation proceedings matter.
The proceedings matter because it is the responsibility of this Senate
to explore Judge Gonzales's judgment and actions in connection with the
tragic legal and policy changes formulated in secret by this
administration and still cloaked from congressional oversight and
public scrutiny. Part of it is the fault of the Congress which has not
conducted vigorous oversight, but a large part of this problem is due
to an administration that has not answered the questions asked by both
Republicans and Democrats.
America's troops and citizens are at greater risk because of those
actions and their terrible repercussions throughout so much of the
world. America's moral standing and leadership have been undercut. The
searing photographs of Abu Ghraib have made it harder to create and
maintain the alliances we need to prevail against the vicious
terrorists who threaten us, including those who struck America 9 months
into this President's first term.
Those abuses at Abu Ghraib have served as recruiting posters for the
terrorists. That is why this process matters. The confirmation process
shows that on the question of judgment, Judge Gonzales is the wrong man
for this job.
After his recent inaugural address, I praised President Bush for the
eloquent words he said about the United States' historic support for
freedom. But to be true to that vision, we need a government that leads
the way in upholding human rights, not one that secretly develops
legalistic rationalizations for circumventing human rights.
To reclaim our moral leadership in the world, and to become a true
messenger of hope instead of a source of resentment, we need to
acknowledge wrongdoing and show accountability for mistakes that have
been made.
We have seen departures from our country's honorable traditions,
practices, and established law in the use of torture, originating at
the top ranks of authority and emerging at the bottom. At the bottom of
the chain of command, we have seen a few courts martial. But at the
top, we have seen medal ceremonies, pats on the backs, and promotions.
Between these two dissonant images, there is a growing accountability
gap. The administration's handling of this confirmation process, which
could have helped to narrow the gap, has served to widen it.
I believe in redemption in public life, as in spiritual life, but to
get to redemption, first there has to be accountability. This
administration has a large and growing accountability deficit. Judge
Gonzales, who could have become a part of the solution, remains a part
of the problem.
Now more than ever we need an Attorney General to serve all
Americans. There is much that has gone wrong that this administration
has stubbornly refused to admit or correct. For this democratic
Republic to work, we need greater openness and accountability. It is
with those critical considerations in mind that I must vote against
this nomination.
I believe under the earlier order, the Senator from California is now
going to be recognized.
The PRESIDING OFFICER. Under the previous order, the Senator from
California is recognized.
Mr. HATCH. Mr. President, reserving the right to object, and I will
not object.
The PRESIDING OFFICER. The unanimous consent has already been agreed
to.

Mr. HATCH. I understand. I ask unanimous consent that I immediately
follow the Senator from California.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Then, Mr. President, I ask unanimous consent that
following Senator Hatch, Senator Schumer be recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, I understand we are coming back at 2:15
p.m. after the caucuses?
The PRESIDING OFFICER. The Senator is correct.
Mr. LEAHY. I ask unanimous consent that we lock in 10 minutes at 2:15
p.m. for the Senator from Maryland, Ms. Mikulski.
The PRESIDING OFFICER. Is there objection?
Mr. SPECTER. That will be agreeable.
The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S698]]

Mr. LEAHY. I thank the distinguished senior Senator from
Pennsylvania, and I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I thank the ranking member.
I rise today to explain why I deeply regret I cannot vote to confirm
Alberto Gonzales to be the next Attorney General.
I believe as a general rule the President is entitled to the Cabinet
of his choice. But one Department, the Department of Justice, always
deserves special attention from Congress because it does not exist
solely to extend the President's policies.
Though the Attorney General serves under the President, he must
independently interpret the laws as written by Congress and be truly
the country's chief law enforcement officer.
I cannot emphasize this enough. The Department of Justice must be
independent from the White House. The FBI must be independent. The U.S.
attorneys must be independent. The Criminal Law Division, the
Environmental Law Division, the Civil Law Division must all be
independent. The Solicitor General's Office, which argues before the
Supreme Court, must be independent. The Office of Legal Counsel, which
is charged with interpreting the law of the executive branch, must be
independent. The Civil Rights Division must be independent.
These departments are charged with nothing less than following,
interpreting, and implementing the law of the United States of America.
The Department of Justice is in charge of defending the Nation in
court. It is in charge of advising the rest of the Government about
what the law means. It is in charge of overseeing the investigations of
the FBI, and it is in charge of deciding when to prosecute criminals
and send them to prison. This is obviously a big portfolio.
The head of the Department of Justice is the chief law enforcement
officer of the United States. As such, the Attorney General is in
charge of 59 separate divisions within the Department of Justice, which
cover more than 110,000 employees. In my view, before we vote to
confirm to put someone in charge of all this awesome power--and it
truly is awesome--it is important for us to know what that individual
thinks about the major policies the Department will be implementing.
And that is where I have been disappointed by the confirmation process
for Judge Gonzales.
When President Bush nominated Judge Gonzales, I think many of us were
prepared to give him the benefit of the doubt. But the hearings
crystallized how little we knew about his own policy views, how little
we knew about his qualities for leadership, his policy views, his
management style, his strength of character, and his personal beliefs
in those areas where he sets the tone and the policy. I think this was
a great missed opportunity.

John Ashcroft served 6 years in the Senate. We knew his service on
the Judiciary Committee. We knew about his views. One could decide
about his personal views, yes or no. Judge Gonzales has spent so many
years serving President George Bush. If confirmed, this will be the
fifth job George Bush appointed Judge Gonzales to over the past decade.
The hearings were his first real opportunity to show his own views. I
think this is why the hearing process became so important in many of
our views.
This was a crucial opportunity for Judge Gonzales. Many of us were
prepared to vote for him. If there is a single issue that defines this
confirmation process, it is what Judge Gonzales thinks about torture
and brutal interrogation practices.
He reminded us again and again that both he and the President condemn
torture. But as we know from the Bybee memo of August 2002, for at
least 2 years, the Federal Government followed a definition of torture
that was excessively narrow. In fact, it was considered so incorrect
that the Department of Justice revoked it on the eve of Judge Gonzales'
hearing.
That memo defined torture as:

Equivalent in intensity to the pain accompanying serious
physical injury, such as organ failure, impairment of bodily
function, or even death.

For me, in addition to its clear legal and moral importance, the
issue of torture became the main way for assessing this next Attorney
General. And it was very important for him to state in unambiguous
terms what he thought. It was as important a way for us to assess how
he approaches a problem as any.
In his opening statement, Judge Gonzales offered a clear, absolute
condemnation of torture. He said flatly:

Torture and abuse will not be tolerated by this
administration.

At this point, at the beginning of his testimony, there were no ifs,
ands, or buts. But after that, his testimony, both verbal and in
writing, was full of ambiguities. It seemed intended not to make his
views clear, but to shield his views, and it seemed to narrow the
definition of what counts as torture.
For instance, at the hearing, at one point, Judge Gonzales told
Senator Leahy, our ranking member, ``I reject that opinion,'' referring
to the Bybee opinion. But at another point in the hearing, he told the
same Senator, Senator Leahy:

I don't have a disagreement with the conclusions then
reached by the department.

Those statements are clearly in conflict, and leave me with no idea
what he thinks about the Bybee memo.
I also note that Judge Gonzales clearly did not do everything he
might have done to try to answer the questions put to him.
In his written testimony, especially to Senator Kennedy, Judge
Gonzales refused to provide the answers or the documents requested. He
even refused to conduct a search that would have refreshed his memory.
Let me quote the multiple times Judge Gonzales refused to answer
Senator Kennedy's questions, and these are all quotes:

I do not know what notes, memoranda, e-mails or other
documents others may have about these meetings, nor have I
conducted a search.

Point 2:

I have no such notes, and I have no present knowledge of
such notes, memoranda, e-mail, or other documents and I have
not conducted a search.

Point 3:

I have no present knowledge of any non-public documents
that meet that description. However, I have conducted no
search.

Point 4:

I have no present knowledge that there are any documents of
the sort requested in the question, although I have not
conducted an independent search for such documents.

Point 5:

I have no present knowledge of any such documents or
materials, although I have not conducted a search.

Point 6:

I have no present knowledge of any such records, although I
have not conducted a search.

The last formulation he repeated in two additional instances.
These are not adequate answers to satisfy the nomination process for
the confirmation of a person to be the next Attorney General, nor do
they bode well for the Judiciary Committee's and this Congress's
oversight responsibilities for the Department of Justice.
Judge Gonzales also refused to provide many documents that we
requested. In specific, I asked him to provide me with a copy of the
final version of his January 2002 memo to the President. That is very
important because earlier memos that he had written were different. It
was important, if this was his final opinion, that we have an
opportunity to look at it, because that opinion was definitive and
dispositive.
The January memo is a well known one, where he wrote that the war on
terror ``renders obsolete Geneva's strict limitations on questioning of
enemy prisoners.'' If that was only a draft, as he said, as he had
emphasized, then I believe it is imperative for us to see the final
version, and he refused me that opportunity. He wouldn't provide the
memo, saying the White House had declined to allow it.

To tell you the truth, because of the prior history, that simply is
not good enough for me.
Also of importance in the questions that he did answer, he seemed to
continually narrow, again, the definition of torture. I saw this as a
retreat from his original condemnation of torture and abuse and I
thought it showed that he was trying more to defend the President's
policies than to demonstrate his own views.
That, in my view, is the nub of the problem. Here he was no longer
the President's man, he was going to be the

[[Page S699]]

chief law enforcement officer, independent, head of 110,000 people,
with all kinds of major departmental responsibilities--environmental
law, civil rights law, the Solicitor General, as I stated earlier in my
remarks. I saw this narrowing as a retreat from his original
condemnation of torture and abuse, and I thought it showed that he was
trying, again, more to defend the President than to talk for himself.
Let me give an example.
At the hearing he told Senator Durbin that even under the laws
implementing the Convention Against Torture:

aliens interrogated by the United States outside the United
States enjoy no substantive rights under the 5th, 8th, and
14th Amendments.

If this is Judge Gonzales's view, it is a significant gap in the
prohibition against abuse.
I gave him the opportunity to clarify this issue. In written
testimony he confirmed the thrust of the answer, stating to me:

There is no legal prohibition under the Convention Against
Torture on cruel, inhuman or degrading treatment with respect
to aliens overseas.

In another written question, I asked Judge Gonzales to specify his
own views again on specific harsh interrogation methods. I wrote to
him:

Putting aside legal interpretations, in your own personal
opinion, should the United States use forced nudity, the
threatening of detainees with dogs, or ``water-boarding''
when interrogating detainees?

That was my question in writing. He began his answer by stating:

I feel that the United States should avoid the use of such
harsh methods of questioning if possible.

I was asking for a statement by the man. ``If possible'' is a major
loophole, and I truthfully don't know what it means. I don't know how
big that loophole is intended to be.
As I was reviewing the correspondence, I was struck, in particular,
by a letter that the committee received from a group of 12 esteemed
former military leaders--generals, admirals, even a former chairman of
the Joint Chiefs of Staff.
This letter was signed by Brigadier General David M. Brahms, Retired,
U.S. Marine Corps; Brigadier General James Cullen, Retired, U.S. Army;
Brigadier General Evelyn P. Foote, Retired, U.S. Army; Lieutenant
General Robert Gard, Retired, U.S. Army; Vice Admiral Lee F. Gunn,
Retired, U.S. Navy; Rear Admiral, Retired, U.S. Navy; General Joseph
Hoar, Retired, U.S. Marine Corps; Rear Admiral John D. Hutson, Retired,
U.S. Navy; Lieutenant Claudia Kennedy, Retired, U.S. Army; General
Merrill McPeak, Retired, U.S. Air Force; Major General Melvyn Montano,
Retired, U.S. Air Force National Guard; and General John Shalikashvili,
former Chairman of the Joint Chiefs of Staff.

Let me paraphrase the letter. They write as retired military
professionals in the U.S. Armed Forces to express their deep concern
about the nomination of Alberto Gonzales and they urge us in the
hearing to detail his views concerning the role of the Geneva
Conventions in U.S. detention and interrogation policy and practice.
They go on to say:

Mr. Gonzales appears to have played a significant role in
shaping U.S. detention operations. . . . It is clear that
these operations have fostered greater animosity toward the
United States, undermined our intelligence gathering efforts,
and added to the risks facing our troops around the world.

They then talk about the memo Judge Gonzales wrote to the President
on January 25, 2002, advising him the Geneva Conventions don't apply to
the conflict then underway in Afghanistan. They say more broadly that
he wrote the war on terrorism presents a new paradigm that renders
obsolete the Geneva protections.
Then they go on to say, and I think this is important:

The reasoning Mr. Gonzales advanced in this memo was
rejected by many military leaders at the time, including
Secretary of State Colin Powell who argued that abandoning
the Geneva Conventions would put our soldiers at greater
risk, would ``reverse over a century of U.S. policy and
practice in supporting the Geneva Conventions,'' and would
``undermine the protections of the rule of law for our
troops, both in this specific conflict [Afghanistan] and in
general.''

That is a huge problem out there because at best, these hearings and
the written questions and answers which are voluminous are really
unable to clarify any of the positions of Alberto Gonzales, the man,
Alberto Gonzales, head of one of the largest and most powerful agencies
of the American Government, the U.S. Department of Justice.
We look at the Department of Justice one way, but most Americans look
at it as being a major citadel of power in the United States. And on
occasion, we have seen that power exercised. If you are going to set
the policy, if you are going to set the tone, if you are going to be
the head of this Department, I want to know what you as a man, or as a
woman, think, and particularly at this time.
Yes, it is clear that the problems we will face in the future are
most likely to be with respect to non-state actors, and with respect to
torture, which I am speaking about now. Therefore, it is
extraordinarily important to know what this man thinks. If you ask me
today, despite the hearings, despite 200 pages of questions and
answers, I cannot really tell you. I cannot really be sure that if the
White House says one thing, the head of the Department of Justice would
be willing to stand up and say another. I just do not know, based on
the past jobs he has had and his past performance, if he is prepared to
be independent.
I have to say to this body that is important. Every one of us knows
that Janet Reno was an independent Attorney General. I do not know that
Alberto Gonzales will be. I don't know his management style. I don't
know the vision he has for this Department. I don't know the goals he
would set.
I know he is an extension of the President. I know that he can
legally enable the President. I know he gives the President advice, and
I think much of that advice has brought us into a terrible place where
our military could well in the future be jeopardized.
I am one, frankly, who believes the Military Code of Justice has
stood the U.S. military in good stead. I am one who believes the Geneva
Convention--the Convention Against Torture--is the right thing. I am
one who believes we should follow those, even in this non-state war.
I want to comment on one other issue, and then I will yield the
floor.
I think Judge Gonzales is going to be confirmed. He is a talented
lawyer and has a compelling life story. I certainly want to work with
him.
I want to say one thing about some who may say this is a qualified
Hispanic, and indeed he is. Nobody should think that the Hispanic
community is unified on this nomination. I will put into the Record, if
I may, letters from the Congressional Hispanic Caucus, certain
editorials from newspapers, the statement of the Mexican-American Legal
Defense and Education Fund, a statement of the Mexican-American
Political Association, a letter from Major General Melvyn Montano, and
other letters.
I ask unanimous consent to have them printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Albuquerque, MN,

January 25, 2005.
Hon. Members of the Committee on the Judiciary,
U.S. Senate, Committee on the Judiciary, Dirksen Senate
Office Building, Washington, DC.
Dear Senators: I am writing to urge that you reject the
nomination of Alberto Gonzales for Attorney General. I
understand that some Hispanic groups support Judge Gonzales'
nomination and have urged you to confirm him. I write, as a
Hispanic and as a military officer and veteran, to offer a
different perspective.
I know what it feels like to be the first Hispanic named to
an important leadership position in this country. I was the
first Hispanic Air National Guard officer appointed as an
adjutant general in the United States. I am a Vietnam veteran
and served 45 years in the military, including 18 years in a
command position. I welcome the prospect of more Hispanics
serving in leadership positions in the government, and I
respect Judge Gonzales' inspiring personal story. But I
reject the notion that Hispanics should loyally support the
nomination of a man who sat quietly by while administration
officials discussed using torture against people in American
custody, simply because he is one of our own.
I was among 12 retired Admirals and Generals, including
former Chairman of the Joint Chiefs of Staff, General John
Shalikashvili (Ret. USA). who wrote to you urging that you
closely examine Judge Gonzales' role in setting U.S. policy
on torture during his confirmation hearing.

[[Page S700]]

At that hearing, Judge Gonzales did not allay concerns
about his record. To the contrary, his evasiveness and memory
lapses raised even more concerns. Judge Gonzales continues to
maintain he can't remember how the infamous torture memo was
generated. He has refused to explain the language in his own
memo which implied that rejecting the applicability of the
Geneva Conventions would insulate U.S. personnel from
prosecution for war crimes they might ``need'' to commit. And
he asserts that the Convention Against Torture's prohibition
on cruel and inhuman treatment doesn't apply to aliens
overseas.
In my view, these positions put our service men and women--
already facing enormous danger--at even greater risk. In my
capacity as Major General of the National Guard, I oversaw
4,800 National Guard personnel. When I think about how many
of our troops fighting in Iraq today are drawn from the
National Guard, it angers me that the danger they face has
been increased as a result of the policies Judge Gonzales has
endorsed. I wonder, if Judge Gonzales' children grow up to
serve in the military, would he be so cavalier in dismissing
the Geneva Conventions as obsolete?
Some have cynically suggested that Americans who question
Judge Gonzales' record on these issues do so because they are
anti-Hispanic. I reject this view. My own concerns about
Judge Gonzales' fitness to serve as Attorney General grow
from a deep respect for American values and the rule of law.
Judge Gonzales should be evaluated on his record, not his
ethnicity. On the basis of that record, I urge you to reject
his nomination.
Sincerely,

Melvyn Montano,

Major General (Ret.),
Air National Guard.
____

An Open Letter to the Senate Judiciary Committee

Hon. Members of the Senate Judiciary,
U.S. Senate, Committee on the Judiciary, Dirksen Senate
Office Building, Washington, DC.
Dear Senator: We, the undersigned, are retired professional
military leaders of the U.S. Armed Forces. We write to
express our deep concern about the nomination of Alberto R.
Gonzales to be Attorney General, and to urge you to explore
in detail his views concerning the role of the Geneva
Conventions in U.S. detention and interrogation policy and
practice.
During his tenure as White House Counsel, Mr. Gonzales
appears to have played a significant role in shaping U.S.
detention and interrogation operations in Afghanistan, Iraq,
Guantanamo Bay, and elsewhere. Today, it is clear that these
operations have fostered greater animosity toward the United
States, undermined our intelligence gathering efforts, and
added to the risks facing our troops serving around the
world. Before Mr. Gonzales assumes the position of Attorney
General, it is critical to understand whether he intends to
adhere to the positions he adopted as White House Counsel, or
chart a revised course more consistent with fulfilling our
nation's complex security interests, and maintaining a
military that operates within the rule of law.
Among his past actions that concern us most, Mr. Gonzales
wrote to the President on January 25, 2002, advising him that
the Geneva Conventions did not apply to the conflict then
underway in Afghanistan. More broadly, he wrote that the
``war on terrorism'' presents a ``new paradigm [that] renders
obsolete Geneva's'' protections.
The reasoning Mr. Gonzales advanced in this memo was
rejected by many military leaders at the time, including
Secretary of State Colin Powell who argued that abandoning
the Geneva Conventions would put our soldiers at greater
risk, would ``reverse over a century of U.S. policy and
practice in supporting the Geneva Conventions,'' and would
``undermine the protections of the rule of law for our
troops, both in this specific conflict [Afghanistan] and in
general.'' State Department adviser William H. Taft IV agreed
that this decision ``deprives our troops [in Afghanistan] of
any claim to the protection of the Conventions in the event
they are captured and weakens the protections afforded by the
Conventions to our troops in future conflicts.'' Mr.
Gonzales's recommendation also ran counter to the wisdom of
former U.S. prisoners of war. As Senator John McCain has
observed: ``I am certain we all would have been a lot worse
off if there had not been the Geneva Conventions around which
an international consensus formed about some very basic
standards of decency that should apply even amid the cruel
excesses of war.''
Mr. Gonzales's reasoning was also on the wrong side of
history. Repeatedly in our past, the United States has
confronted foes that, at the time they emerged, posed threats
of a scope or nature unlike any we had previously faced. But
we have been far more steadfast in the past in keeping faith
with our national commitment to the rule of law. During the
Second World War, General Dwight D. Eisenhower explained that
the allies adhered to the law of war in their treatment of
prisoners because ``the Germans had some thousands of
American and British prisoners and I did not want to give
Hitler the excuse or justification for treating our prisoners
more harshly than he already was doing.'' In Vietnam, U.S.
policy required that the Geneva Conventions be observed for
all enemy prisoners of war--both North Vietnamese regulars
and Viet Cong--even though the Viet Cong denied our own
prisoners of war the same protections. And in the 1991
Persian Gulf War, the United States afforded Geneva
Convention protections to more than 86,000 Iraqi prisoners of
war held in U.S. custody. The threats we face today--while
grave and complex--no more warrant abandoning these basic
principles than did the threats of enemies past.
Perhaps most troubling of all, the White House decision to
depart from the Geneva Conventions in Afghanistan went hand
in hand with the decision to relax the definition of torture
and to alter interrogation doctrine accordingIy. Mr.
Gonzales's January 2002 memo itself warned that the decision
not to apply Geneva Convention standards ``could undermine
U.S. military culture which emphasizes maintaining the
highest standards of conduct in combat, and could introduce
an element of uncertainty in the status of adversaries.'' Yet
Mr. Gonzales then made that very recommendation with
reference to Afghanistan, a policy later extended piece by
piece to Iraq. Sadly, the uncertainty Mr. Gonzales warned
about came to fruition. As James R. Schlesinger's panel
reviewing Defense Department detention operations concluded
earlier this year, these changes in doctrine have led to
uncertainty and confusion in the field, contributing to the
abuses of detainees at Abu Ghraib and elsewhere, and
undermining the mission and morale of our troops.
The full extent of Mr. Gonzales's role in endorsing or
implementing the interrogation practices the world has now
seen remains unclear. A series of memos that were prepared at
his direction in 2002 recommended official authorization of
harsh interrogation methods, including waterboarding, feigned
suffocation, and sleep deprivation. As with the
recommendations on the Geneva Conventions, these memos
ignored established U.S. military policy, including doctrine
prohibiting ``threats, insults, or exposure to inhumane
treatment as a means of or aid to interrogation.'' Indeed,
the August 1, 2002 Justice Department memo analyzing the law
on interrogation references health care administration law
more than five times, but never once cites the U.S. Army
Field Manual on interrogation. The Army Field Manual was the
product of decades of experience--experience that had shown,
among other things that such interrogation methods produce
unreliable results and often impede further intelligence
collection. Discounting the Manual's wisdom on this central
point shows a disturbing disregard for the decades of hard-
won knowledge of the professional American military.
The United States' commitment to the Geneva Conventions--
the laws of war--flows not only from field experience, but
also from the moral principles on which this country was
founded, and by which we all continue to be guided. We have
learned first hand the value of adhering to the Geneva
Conventions and practicing what we preach on the
international stage. With this in mind, we urge you to ask of
Mr. Gonzales the following:
(1) Do you believe the Geneva Conventions apply to all
those captured by U.S. authorities in Afghanistan and Iraq?
(2) Do you support affording the International Committee of
the Red Cross access to all detainees in U.S. custody?
(3) What rights under U.S. or international law do
suspected members of Al Qaeda, the Taliban, or members of
similar organizations have when brought into the care or
custody of U.S. military, law enforcement, or intelligence
forces?
(4) Do you believe that torture or other forms of cruel,
inhuman and degrading treatment--such as dietary
manipulation, forced nudity, prolonged solitary confinement,
or threats of harm--may lawfully be used by U.S. authorities
so long as the detainee is an ``unlawful combatant'' as you
have defined it?
(5) Do you believe that CIA and other government
intelligence agencies are bound by the same laws and
restrictions that constrain the operations of the U.S. Armed
Forces engaged in detention and interrogation operations
abroad?
Signed,
Brigadier General David M. Brahms (Ret. USMC).
Brigadier General James Cullen (Ret. USA).
Brigadier General Evelyn P. Foote (Ret. USA).
Lieutenant General Robert Gard (Ret. USA).
Vice Admiral Lee F. Gunn (Ret. USN).
Admiral Don Guter (Ret. USN).
General Joseph Hoar (Ret. USMC).
Rear Admiral John D. Hutson (Ret. USN).
Lieutenant General Claudia Kennedy (Ret. USA).
General Merrill McPeak (Ret. USAF).
Major General Melvyn Montano (Ret. USAF Nat. Guard).
General John Shalikashvili (Ret. USA).

Resolution Opposing The Appointment of Alberto Gonzales To Be Attorney
General of the United States by the Mexican American Bar Association of
Ventura County

Whereas, the Mexican American Bar Association of Ventura
County was formed in 1980 and is composed of attorney members
and auxiliary members who for the past 25 years have promoted
access to justice for all, respect for the rule of law, equal
protection and due process of law.
Whereas, under other circumstances, the Mexican American
Bar Association of Ventura County would have been proud to
endorse and applaud the nomination of a fellow

[[Page S701]]

Mexican American attorney to the highest law enforcement
position in our country; and so it is with sadness and
regret, that our organization finds itself in strong
opposition to the nomination of Mr. Alberto Gonzales, White
House Counsel for United States Attorney General.
Whereas, Alberto Gonzales, has rendered opinions proposing
that the United States of America and our sitting president
George W. Bush, can disregard the Geneva Convention; to wit,
Mr. Gonzales advised the President in a January 2002
memorandum that the Geneva Convention did not apply to
detainees at Guantanamo Bay, Cuba. This opinion has been
roundly criticized and been condemned in our country and
around the world, including by members of the State and
Defense Departments, as well as U.S. Military lawyers,
fearing that this policy would undermine respect for U.S. Law
and International law, exposing the United States' own
military service members to torture and abuse.
Whereas, it is now well known that at various military
detention centers at Guantanamo Bay, Cuba, in Afghanistan, in
Iraq, including Abu Ghraib prison, detainees were subjected
to cruel, humiliating, degrading treatment and torture,
leading to the injury and even death of detainees, by U.S.
Military officers and civilian contractors operating under
the auspices of the United States Department of Defense.
Whereas, Mr. Gonzales authored memos that condoned the Use
of Torture, by relaxing the definition of torture, describing
the prohibition contained in the Geneva Convention as
``quaint'' and ``obsolete'', permitting and thereby causing
our nation to be shamed and disrespected, and these
``opinions'' have contributed to the our country's loss of
the good will and the respect of a significant segment of the
people and countries of the world.
Whereas, Mr. Gonzales, advised the President that he was
empowered to order the detention of anyone, citizen or non-
citizen for indefinite periods of time, without charges being
presented, without access to counsel or to an impartial
tribunal, thus violating the most sacred requirements of due
process of law enshrined in the U.S. Constitution. This
position was later rejected by the U.S. Supreme Court in the
case of Rasul vs. Bush, in July of 2004, upholding the
principle that no one is beyond the reach of the law and
judicial scrutiny.
Whereas, it is documented that Mr. Alberto Gonzales, as
Counsel to Governor George W. Bush of Texas, also failed to
provide Governor Bush with adequate information to properly
review clemency requests by prisoners on death row, that
might have compelled commutation of the death penalty or
further judicial review, and thus failed in his duty to act
as competent counsel to his client and to the People of the
State of Texas.
Whereas, Mr. Alberto Gonzales by his actions and legal
opinions rendered throughout his career in public positions
and in his current position as White House Counsel, has
violated his obligation to support the stated mission of
lawyers in the United States and specifically the mission of
the State Bar of Texas, his home state, which is to ``support
the administration of the legal system, assure to all the
equal access to justice, foster high standards of ethical
conduct for lawyers, ``and educate the public about the rule
of law,'' be it therefore
Resolved, That the Mexican American Bar Association of
Ventura County strongly opposes the confirmation of Alberto
Gonzales to the position of United States Attorney General,
and furthermore, strongly urges California's Senators Diane
Feinstein and Barbara Boxer, as well as all other members of
the United States Senate to vote against the confirmation of
Mr. Gonzales based upon his demonstrated poor judgment in
legal matters and his lack of commitment to the rule of law
and the Constitution of the United States of America.
____

MALDEF Statement on the Likely Confirmation of White House Counsel
Alberto Gonzales to the Position of United States Attorney General

MALDEF, the nation's premier Latino civil rights
organization, released a statement today regarding the likely
confirmation of White House Counsel Alberto Gonzales to the
Cabinet post of Attorney General. Below is the statement
released today by Ann Marie Tallman, MALDEF President and
General Counsel.
``The United States Attorney General upholds the laws that
define the very democracy of our Nation. The Attorney General
enforces all federal criminal and civil laws. The office
holder has the responsibility to determine how to use Federal
resources to prosecute violations of individual civil
liberties and civil rights--such protective laws have
profound impact on the daily lives of American citizens and
those living in the United States. Finally, the Attorney
General has the authority to appoint a special counsel to
investigate and, if appropriate, prosecute matters when the
Attorney General concludes that extraordinary circumstances
exist such that the public interest would be best served by
removing the matter from the Justice Department.
MALDEF acknowledges that Judge Alberto Gonzales can fulfill
his duties as Attorney General as defined by the United
States Constitution, the U.S. Code and various federal
Statutes. Judge Gonzales' personal history is compelling. He
has overcome significant obstacles to achieve his success.
His past professional experience speaks to his capabilities.
MALDEF remains encouraged that President Bush would make an
historic appointment of such a diligent individual.
MALDEF acknowledges Judge Gonzales' adherence to precedent
in the area of individual privacy rights as defined by the
constitutional right to privacy. We also recognize his
perspectives on diversity and equal opportunity in higher
education and employment.
MALDEF is America's premier Latino civil rights
Organization, and from this unique position, we have serious
questions and concerns about Judge Gonzales' record in three
important areas of the law. First, Judge Gonzales' public
statements and past record demonstrate support and deference
to our Federal Government's Executive branch. It will be
imperative for the Attorney General to question and challenge
unilateral exercise of executive authority when matters of
constitutional concern and violations of our federal laws
demand that the Attorney General protect individual civil
liberties or civil rights. In addition, there remains a
concern about Judge Gonzales' unique position and
transition--from Counsel to the President of the United
States to the United States Attorney General--and his ability
to determine when to appoint a special counsel. There is a
question whether Judge Gonzales can fairly and independently
determine in a matter he previously gave advice to the
President as the President's attorney, if a special counsel
should be appointed. A possible inherent conflict of interest
based upon his on-going attorney-client duties to the
President may impede his ability to be independent.
Second, due process under the law is an important
Constitutional protection. Judge Gonzales's past record in
the Texas Death Penalty cases and his association with
memoranda setting aside the application of international war
conventions as applied to enemy combatants raises concerns
about whether he may set aside constitutionally guaranteed
due process protections in various domestic circumstances.
Third, the federal government has sole authority and
responsibility to uphold our nation's immigration policies
while working to keep our homeland safe and secure. MALDEF is
concerned that Judge Gonzales, as Attorney General, may
delegate such important federal civil and criminal
immigration authority to state and local law enforcement
already overburdened with responsibilities to protect and
serve at the local level without the appropriate due process
protections that must remain guaranteed at the federal level.
We acknowledge that Judge Gonzales is likely to be
Confirmed as the next Attorney General of the United States
and the first Latino to hold this important post. MALDEF
stands ready to work with Judge Gonzales as he carries out
his duties and continues his public service. However, because
of our specific concerns regarding apparent primacy of
executive authority; a potential conflict of interest in the
transition from Counsel to the President to Attorney General
in enforcing the special counsel law; setting aside due
process protections; and, uncertainty about whether inherent
authority exists at the state and local level to enforce
federal immigration policy, MALDEF cannot support his
confirmation.
____

Congress of the United States,

Washington, DC, January 26, 2005.
Hon. Patrick J. Leahy,
Ranking Member, Senate Judiciary Committee, Dirksen Senate
Building, U.S. Senate, Washington, DC.
Dear Senator Leahy, As the Senate considers the nomination
of Alberto Gonzales to be the next Attorney General of the
United States, we, on behalf of the Congressional Hispanic
Caucus (CHC), wish to inform you that the CHC has not
endorsed Mr. Gonzales.
Since its inception almost three decades ago, the CHC has
served to advance the interests of the Hispanic community,
which includes promoting the advancement of Latinos into high
levels of public office. We have taken this responsibility
seriously, and have accordingly developed a process to
evaluate candidates for positions in the executive branch of
the federal government. Such a process is critical to
determining which candidates seek to hold office to serve the
public interest rather than to promote their own personal
interest. Our process has enabled us to endorse many
exceptional Hispanic candidates. During the past four years,
the CHC has proudly endorsed many judicial and executive
branch nominees selected by President George W. Bush.
One simple step in our process is a meeting with the
nominee. Upon hearing of Mr. Gonzales' nomination for
Attorney General, we invited him to meet with the CHC to
provide him with the opportunity to meet our Members, discuss
issues important to the Latino community, and to seek our
endorsement. We were informed that he wanted our support and
for the past two months, we made every attempt to accommodate
his schedule. However, Mr. Gonzales ultimately chose not to
avail himself of the courtesies we extended to him. We were
last advised that Mr. Gonzales was simply too occupied with
responding to written questions from the Senate Judiciary
Committee and that we would instead have to wait to until
after he was confirmed as Attorney General before being
granted a meeting.
Let us be clear, our concern is not about whether the CHC
is granted a meeting--it is

[[Page S702]]

about Mr. Gonzales' unwillingness to discuss important issues
facing the Latino community. His answers to these questions
would give our community the information needed to form an
informed opinion of his nomination. With so little time left
before a Senate vote on Mr. Gonzales' nomination, the Latino
community continues to lack clear information about how the
nominee, as Attorney General, would influence policies on
such important topics as the Voting Rights Act, affirmative
action, protections for persons with limited English
proficiency, due process rights of immigrants, and the role
of local police in enforcing federal immigration laws.
We are disappointed and surprised that Mr. Gonzales has
refused to meet with the CHC during the confirmation process.
Much has been said about the historic nature of Mr. Gonzales'
nomination, as the first Hispanic to serve as U.S. Attorney
General. However, the historic nature of this nomination is
rendered meaningless for the Hispanic community when the
nominee declines an opportunity to meet with the group of
Hispanic Members of Congress who have worked for so many
years to open the door of opportunity to fellow Hispanics. If
he is not willing to meet with the CHC, how responsive can we
expect him to be to the needs of the Hispanic community?
We provide you this information as the reason for our lack
of endorsement of Mr. Gonzales.
Sincerely,
Grace Flores Napolitano,
Chair, Congressional Hispanic Caucus.
Robert Menendez,
Chair, CHC Nominations Task Force.
Charles A. Gonzalez,
Chair, CHC Civil Rights Task Force.

Mrs. FEINSTEIN. Mr. President, in summary, I very much regret this,
but I think the U.S. Department of Justice is a unique Department. I
think whoever is the head of it has to stand on his own two feet, has
to be totally independent of Congress, of the White House, and has to
be willing to submit to rigorous oversight by the Senate, by the
Judiciary Committee, and has to set a tone which enables the Department
of Justice to function as a fair and independent voice of the American
people, as its chief law enforcement officer.
I very much regret that I will vote no on this nomination.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER (Mr. Burr). The Senator from Utah.
Mr. HATCH. Mr. President, I have heard the remarks of my
distinguished colleagues, and I want to say I have some grave
disagreements with some of the things that have been said.
I rise in support of the President's nomination of Alberto Gonzales
to be the next Attorney General of the United States.
We all know who Judge Gonzales is. Today is a remarkable day in our
country's history and a momentous day for the American Hispanic
community.
Today, we are considering the nomination of Judge Alberto Gonzales
who, when confirmed, will become the first Hispanic-American Attorney
General of the United States. That is very significant. He will be
eighth in line of succession to the Presidency.
In 1988, President Ronald Reagan appointed the first Hispanic Cabinet
member, Secretary of Education Lauro F. Cavazos. Two years later,
President George Herbert Walker Bush continued to make history by
appointing the first woman and first Hispanic Surgeon General of the
United States, Antonia C. Novello. Dr. Novello used to work with me as
a fellow before she succeeded Dr. Koop as Surgeon General of the United
States.
Just last week, the Senate confirmed President Bush's nomination of
Carlos Gutierrez as Secretary of Commerce. And today, President George
W. Bush sets yet another first. As Chairman of the Republican
Senatorial Hispanic Task Force, I am well aware of the significance of
this appointment and this moment in our Nation's history. Every
Hispanic American in this country is watching how this man is being
treated today and throughout this debate as we discuss the nomination.
This nomination is just that important.

I know Judge Gonzales's life story. It has been laid out many times
in the media and was described during the confirmation hearing. This is
a story that bears repeating in the Senate. He is an American success
story. He shows that no matter where anyone comes from, in America,
there is no limit on how far they can go.
As many Americans know, Judge Gonzales was the second of eight
children. His father and two uncles built a small two-bedroom home with
no running hot water in Humble, TX, where all 10 members of this family
lived, a truly humble family. His parents had no more than a few years
of elementary school education, and his father was a migrant worker.
Growing up in a working poor household, his family never even had a
telephone.
In a story familiar to many whose parents and grandparents were
immigrants, his parents knew the importance of an education for their
son. After serving honorably in the U.S. Air Force, Judge Gonzales
became the first person in his family to go to college. He attended the
Air Force Academy and graduated from Rice University and Harvard Law
School. Since then, Judge Gonzales has worked at one of the finest law
firms in Texas and this country, Vincent & Elkins, he served for 3
years as the general counsel for the Governor of Texas, served as
secretary of state for the State of Texas, served as a justice on the
Texas Supreme Court, and became as we all know, White House Counsel for
President Bush.
Yet his resume tells only part of the story. His accomplishments
include many professional and civic honors. He was voted the Latino
Lawyer of the Year by the Hispanic National Bar Association. He was
inducted into the Hispanic Scholarship Fund Alumni Hall of Fame. He has
received various awards from Harvard and Rice Universities, the United
Way, the United States-Mexico Chamber of Commerce, the League of United
Latin American citizens, just to name a few. He has been a pillar of
every community in which he has lived.
Despite these incredible personal achievements, Judge Gonzales
remains one of the most unassuming, humble, and decent individuals I
have ever had the privilege of meeting, let alone work with in
government. I know firsthand that he is well qualified to be Attorney
General of the United States, and I commend the President of the United
States on his choice of such an outstanding individual.
I am not the only person to think this. Judge Gonzales has the
support of the National Council of La Raza, one of the largest Hispanic
organizations in the country. He has the support of the Hispanic
National Bar Association, the Latino Coalition, the League of United
Latin American Citizens, the National Association of Latino Leaders,
Congressional Hispanic Conference, the United States Hispanic Chamber
of Commerce, the Hispanic Alliance for Progress Institute, the National
Association of Latino Elected and Appointed Officials, the National
Association of Hispanic Publishers, Minority Business Roundtable, the
Texas Association of Mexican American Chamber of Commerce, the Congress
of Racial Equality, the Jewish Institute for National Security Affairs,
the Fraternal Order of Police, the National District Attorneys
Association, the FBI Agents Association, the Recording Industry
Association of America--just to mention a few. Anyone who says he does
not have the vast majority support of all Hispanics in this country and
most all other people who understand decency and honor just do not know
what they are talking about.
He has garnered support from both Democrats and Republicans. The
former Secretary of Housing and Urban Development, under President
Clinton, Henry Cisneros, wrote an article in the Wall Street Journal in
January praising Judge Gonzales, and Senator Ken Salazar, the newly
elected Democrat from Colorado, testified in favor of Judge Gonzales in
our Judiciary Committee. I commend Senator Salazar for sharing his
opinion of the nominee.

Judge Gonzales is also supported by the former Solicitor General of
the United States of America, Ted Olson, as well as members of the
Heritage Foundation, the conservative institution in Washington. The
philosophical, religious, and ethnic diversity of this support speaks
volumes of his qualifications.
Let me take a few minutes to read from some of these letters. Janet
Murguia, president and CEO of the National Council of La Raza, the
largest constituency-based Hispanic organization, has given a strong
recommendation of Judge Gonzales.

Not only is Judge Gonzales a compelling American success
story, it is also clear that

[[Page S703]]

few candidates for this post have been as well qualified. He
has served as Texas' secretary of state, as a member of the
Texas Supreme Court, and as White House counsel, and has been
deeply involved in his community throughout his life.
We are encouraged that in response to questioning, Judge
Gonzales agreed to review the Administration's positions on
sentencing reform and articulated some reservations about the
practice of ``deputizing'' local police to enforce
immigration laws.
If confirmed, Gonzales would be the first Hispanic attorney
general and the first Latino to serve in one of the four
major cabinet posts--Secretary of State, Treasury, Defense,
and Attorney General.
While we have had our policy differences with the Bush
Administration, we are confident that Judge Gonzales is
someone who will serve his country with distinction and who
will also be accessible and responsive to the concerns of the
Hispanic community. We urge the Senate Judiciary Committee
and the U.S. Senate to confirm him as soon as possible.

She speaks for the vast majority of Hispanics in America.
Similarly, the Latino Coalition strongly supports Judge Gonzales. In
a press release dated November 11, 2004, it states:

Judge Gonzales is the perfect choice for the next U.S.
Attorney General. The Judge has been an instrumental part of
the legal efforts to boost the war on terrorism and keep
America safe and secure, while upholding the highest
standards in government ethics. Judge Gonzales brings to the
Office of the U.S. Attorney General a distinguished legal
record based on his many years of work in the public and
private sector. He also brings a unique perspective and human
experience understood only by those whose families have
migrated to a foreign land with little resources and not
knowing the language. It is for this cultural depth and his
unique legal qualifications that we urge the Senate Judiciary
Committee and all members of the U.S. Senate to put partisan
politics aside so that Hispanics are no longer denied
representation in this important post. . . . We have been
honored to work with the Judge for many years now, and have
personally witnessed his ability to unite people of all
different backgrounds to get things done. He is an extremely
qualified and intelligent attorney who will serve with
distinction and make every Latino proud. We endorse his
nomination without any reservations.

He will make every Latino proud. He has up to this time everywhere he
has been. He has set a good example and has done what is right in his
government work.
The FBI Agents Association wrote to the committee last December:

We write to express the support of the FBI Agents
Association for the nomination of Judge Alberto Gonzales for
Attorney General of the United States. . . . We believe
Judge Gonzales' practical life experiences, his legal
training and education, his judicial expertise and his
close proximity to and involvement with many of the most
difficult jurisprudence issues associated with the ongoing
war against terror make him a nominee fully worthy of
confirmation by the U.S. Senate. We are also confident
that Judge Gonzales' experience in and firm appreciation
of the issues in today's national criminal justice system
will serve him and the nation well as the next Attorney
General.

I can guarantee the FBI Agents Association does not send
recommendations like that in the case of people who are not worthy.
The National District Attorneys Association also expressed strong
support for Judge Gonzales in a letter dated December 17, 2004. This is
a bipartisan association of all the national district attorneys of the
country:

During Judge Gonzales' tenure as Counsel to the President
our leaders have had frequent opportunities to meet with him
and to discuss with him issues challenging our public safety.
Through these meetings we have come to recognize both his
commitment to protecting the American public and to ensuring
closer working relationship between federal, state and local
law enforcement organizations.
With the increasingly complex challenges facing us in our
fights against both organized gangs and terrorists he brings
the skills and legal acumen necessary for this position of
responsibility. We are confident that his confirmation will
enhance the safety of our citizens from threats, domestic and
international, while safeguarding those liberties that we all
treasure.
As leaders for the only national organization representing
the local prosecutors of this nation we have the utmost
confidence in his ability to master this most challenging
position and pledge to do everything within our ability to
ensure that the working relationship between the Department
of Justice and America's prosecutors grows even stronger.

Finally, let me read excerpts from a Wall Street Journal article
written by Henry Cisneros, who was the Secretary of Housing and Urban
Development in the Clinton administration and was the mayor of San
Antonio for 8 years. This is what Mr. Cisneros had to say:

The last four years have posed harrowingly difficult
dilemmas, especially those related to the 9/11 terrorist
attack on our nation and the military and security actions
that resulted from it. There have been successes and
failures, there have been good judgments and misjudgments--
all in the context of war, that is, a context of military
organizations under stress, of imperfect information, of
life-and-death concerns. The American people decided in
November, for better or for worse, to see this conflict
through. It would be unseemly at this juncture to use the
forum of a Senate confirmation process to try to find a
scapegoat for a war that is at a very difficult stage. In any
event, Alberto Gonzales has done nothing to alter the basic
facts that he is a seasoned legal professional, is needed by
the president, and is a person of sterling character.

Mr. Cisneros goes on to say:

As an American of Latino heritage, I also want to convey
the immense sense of pride that Latinos across the nation
feel because of Judge Gonzales's nomination. I had the high
honor of serving in a president's cabinet, as have five other
American Hispanics, but we all served in what might be called
``outer circle departments.'' The historic character of this
nomination is that Judge Gonzales has been nominated to one
of the big four--State, Defense, Treasury, and Justice. This
is a major breakthrough for Latinos, especially since it is
so important to have a person who understands the framework
of legal rights for all Americans as attorney general.
Judge Gonzales has demonstrated a nuanced understanding of
the struggles people face as they try to build a life for
their families in our country. Perhaps that appreciation
comes from remembrances of his own family's struggle. In the
Commencement Address at his alma mater, Rice University,
earlier this year, he recalled: ``During my years in high
school, I never once asked my friends over to our home. You
see, even though my father poured his heart into that house,
I was embarrassed that 10 of us lived in a cramped space with
no hot running water or telephone.''

As an aside, I understand that. We had a humble home like that. We
did not have indoor facilities at first. I knew what it was like to not
be ashamed of my home but not wanting to bring people there. I
understand Judge Gonzales. I was there, too.
I will continue on with Henry Cisneros's comment. Remember, he was a
Cabinet member in the Clinton administration, and he strongly supports
Judge Gonzales. This is what Mr. Cisneros said:

On another occasion, [Judge Gonzales] said: `` . . . my
father did not have many 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.''

That is what Judge Gonzales said.
Mr. President, this is the person who my Democratic colleagues are
trying to defeat--a man who has bipartisan support throughout the
country, and big-time support; a man who represents the American dream
to so many of us; the man who deserves to be the next Attorney General.
But to listen to these comments by our colleagues--and I think over the
next couple days to listen to them--they act as if somebody has to be
perfect to be a Cabinet member in any administration. But certainly in
the Bush administration, they must be perfect. Not only do they say
that, but you will find there are many distortions of his record. They
take things out of context and blow them out of proportion.

I worked closely with Judge Gonzales during President Bush's first
term, and I have found him to be a man of his word. Unfortunately, in a
misguided attempt to bring this fine individual down, some people,
somehow, blame Judge Gonzales for the abuses that have occurred at Abu
Ghraib. As many Americans, I, too, am concerned about the alleged
abuses of detainees apprehended in the war on terror. When I saw the
pictures in the media of detainees at Abu Ghraib, I was simply
disgusted. I think all decent Americans were disgusted. They understand
the abuses that occurred there were repugnant and inconsistent with our
renewed commitment to promoting liberty and democracy. There is
absolutely no debate about that.
In addition, there are more allegations in the media recently about
individuals being subjected to water-boarding, or suffering from
cigarette burns, and other acts of physical intimidation that must be
taken seriously as well. I take these allegations very seriously--very
seriously. Regardless of what the precise legal definition of
``torture'' is,

[[Page S704]]

when you see or hear about acts of physical abuse of prisoners, even in
a time of war, it is very disturbing.
It should be obvious enough that it does not need to be said, but I
condemn the torturous acts that occurred at Abu Ghraib. The President
condemns torture. My colleagues on both sides of the aisle condemn
torture. Make no mistake about it, Judge Gonzales condemns torture.
Judge Gonzales must have said that dozens of times before and after his
hearing, both orally and in writing. He opposes torture, period. He
could not have been clearer on this issue. To have his record distorted
is hitting below the belt.
There are many Americans who believe someone in the Government should
be held responsible for these abuses. I agree. All of the individuals
responsible for those atrocious acts should be punished. And they are
being punished. The military immediately investigated. They have
immediately prosecuted. Some of them have been sentenced, and the
others will be. There is no question about it; they should be punished.
However, these convictions do not get as much attention from the press
as the photos themselves.
The fact is, the convictions do not provide the political ammunition
for those who oppose the President and this administration.
Nonetheless, just earlier this month, Charles Graner was convicted
for his role in detainee abuse. He was sentenced to 10 years of
imprisonment. He also received a military demotion and was dishonorably
discharged, as he should have been.
He is not the only person who has been convicted. The military has
disciplined four members of a special operations unit for abusing
detainees in Iraq, including at least one case of the use of a Taser
stun gun. It has also subjected two individuals to administrative
punishments and four others to nonjudicial punishments. The Department
of Defense has completed eight investigations and has three additional
ongoing investigations.
Lest we forget, the scandal of Abu Ghraib was the subject of an
internal Government investigation well before the media broke the
story. I am sure that as time goes on, there will be more
investigations and more prosecutions of these people who acted as non-
Americans, as far as I am concerned. In the global war against
terrorism, American soldiers and employees must conduct themselves
honorably, and we will insist they do so--and so has Judge Gonzales
insisted that they do so.
Congress takes this oversight role very seriously. I was a cosponsor
to S. Res. 356, which we passed last May, condemning the abuse of Iraqi
prisoners at Abu Ghraib prison, urging a full and complete
investigation to ensure justice is served, and expressing support for
all Americans serving nobly in Iraq.
In August, the Defense Department Appropriations Act became law. It
reaffirmed Congress's view that torture of prisoners of war and
detainees is illegal and does not reflect the policies of the U.S.
Government or the values of the people of the United States.
In December, the Consolidated Appropriations Act for Fiscal Year 2005
became law. This law includes a prohibition on the use of funds by the
Justice Department to ``be used in any way to support or justify the
use of torture by any official or contract employee of the United
States Government.''
In addition, at least five committees have held hearings on Abu
Ghraib in the 108th Congress. Since May, the Armed Services Committees
of both Houses took testimony from numerous Defense Department
officials. Secretary Rumsfeld himself testified four times. Other
witnesses include GEN Richard Myers, Chairman of the Joint Chiefs of
Staff; Acting Secretary of the Army, Les Brownlee; U.S. Army Chief of
Staff, GEN Peter Schoomaker; and Central Command Deputy Commander, LTG
Lance Smith.
The committees Interviewed General Taguba, the author of the Taguba
Report, which investigated the photos of abuse at Abu Ghraib. They held
hearings and heard testimony from general officers who conducted a
formal investigation into the allegations of abuse, known as the Fay
investigation and from James Schlesinger and Harold Brown, who were
appointed by the Secretary of Defense to head the Independent Panel to
Review DOD Detention Operations--otherwise known as the Schlesinger
Report. The Senate also interviewed the Army Inspector General about
his investigation, and interviewed Stephen Cambone, Undersecretary of
Defense for Intelligence. The Senate Armed Services Committee took
testimony from Central Command Commander General John Abizaid,
Lieutenant General Ricardo Sanchez, who commanded the Multi-national
Force-Iraq; Major General Geoffrey Miller, Deputy Commander for
Detainee Operations in Iraq, and Colonel Marc Warren, Army Judge
Advocate General.
Despite all this, there are some people who believe that not enough
has been done. And I respect their views. But it seems that now, a
small but vocal group of those individuals have attempted to create an
almost mob mentality--looking for any high level official in the Bush
administration to take the blame. And Judge Gonzales has become the
favorite scapegoat for some. People who cannot even bring themselves to
speak optimistically about our prospects in Iraq in the days before and
now after the day of the historic election itself, surely have no
qualms about creating a scapegoat out of Judge Gonzales. This man--a
committed public servant, a veteran of our Armed Forces--deserves
better.
Let us not lose focus here. Judge Gonzales has been nominated to be
the Attorney General--not the Secretary of Defense.
And when these abuses occurred, Judge Gonzales was not the Secretary
of Defense. It was not his responsibility to tell soldiers which
specific interrogation tactics to use.
In fact, it was not even his responsibility to provide legal advice
to the Secretary of Defense on torture or any other subject. Providing
legal advice to executive branch departments and agencies is the role
of the Department of Justice. His primary role was to provide legal
advice to the President of the United States and other White House
officials.
Now if Judge Gonzales is confirmed, it will become his responsibility
to become the Nation's principal law enforcement official and help see
that each American receives equal justice under the law.
But it is inappropriate and unfair to blame Judge Gonzales for legal
advice given by somebody else in the Department of Justice years before
he was even nominated to work in the White House.
For example, some opponents of Judge Gonzales have gone on at length
about the so-called Bybee memo. Before I get into the specifics of this
memo, let me bring you back to the months following September 11, 2001.
All of us here remember exactly where we were when the planes crashed
into the World Trade Center towers and the Pentagon and in Pennsylvania
that morning. None of us will forget the feelings of vulnerability we
all felt in the days, weeks and months following the attack.
President Bush has rightly made preventing another terrorist attack
on U.S. soil his No. 1 priority. I know that my fellow citizens in Utah
share the President's priorities when it comes to fighting terrorism.
In fact, the first major international event that took place after 9/11
was held in Salt Lake City when my community hosted the winter Olympic
games.
Here in the Senate, a mere month after the attack, we were terrorized
by a letter sent to Senator Daschle's office containing anthrax. The
distinguished ranking member of the Judiciary Committee was mistreated
and threatened. Staffers, workmen, and visitors stood in line all day
to be screened for anthrax, and hundreds of individuals took strong
antibiotics as a preventative measure. I recall that time period where
every day you would wake up wondering whether something terrible was
going to happen that day.
The Bush administration, too, was facing difficult questions. We all
thought that another terrorist attack could come at any moment, and it
would be incredibly difficult to predict when or where such an attack
would occur because our enemy acted in a clandestine manner. They
dressed as civilians, not as soldiers. They did not attack our military
but tens of thousands of innocent civilians, urban centers, and
government buildings. These

[[Page S705]]

individuals did not come from one specific country. They were a
fanatic, ideological enemy with international reach. They could be
anywhere. And they had the money to finance their terrorist activities.
It was during these early months that the administration explored
what its options were and how they should act in confronting this
unique enemy, one that fought not in uniforms on battlefields, not for
a particular nation but in blue jeans and American civies.
Some are claiming that the President relied on the Bybee memo in
formulating his policy with respect to interrogation techniques at Abu
Ghraib. Let's take a look at these documents. First, the so-called
Bybee memorandum was not written by Judge Gonzales, in spite of the
implications by some. It was written by Jay Bybee who, at that time,
was the Assistant Attorney General of the Office of Legal Counsel at
the Department of Justice, and is now a distinguished judge on the
Circuit Court of Appeals for the Ninth Circuit. That is why some people
call it the Bybee memo. They could not call it the Gonzales memo. It is
not the Gonzales memo, has never been the Gonzales memo.
The memo is dated August 1, 2002. Remember that date. The memo
addresses the Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment. It does not analyze the Geneva
Convention. Let me just mention that this is a scholarly piece of
analysis. Regardless of whether you agree or disagree with its legal
conclusion, there can be little doubt that this 50-page, single-spaced
document with 26 footnotes is a thoughtful and thorough analysis.
Let me also say that this memo does not tell the President to use
torture in Iraq. Rather it tries to define what torture is from a
purely legal perspective.
Let's compare the Bybee memo with the President's actual memorandum
on the treatment of detainees. The subject of this memo is the humane
treatment of al-Qaida and Taliban detainees. The President's memo was
written on February 7, 2002. This is 6 months before the Bybee
memorandum. So there is absolutely no way the President could have
relied on the August 1, 2002, Bybee memo because it did not exist at
the time he issued his definitive February 7 directive, the one that he
and others followed.
Let me be clear: I am not saying the Justice Department never
considered the Convention Against Torture prior to August 1, 2002. In
fact, given the voluminous length of the analysis, it probably took
some time to write. But to suggest this Bybee memo, which addresses a
different statute, a statute that is nowhere mentioned in the
President's memorandum, was indispensable in crafting the President's
decision is simply false for the simple reason it did not exist at the
time.

What some of my Democratic colleagues are trying to do is hold Judge
Gonzales responsible for a memorandum he did not write and that came
from the Justice Department which he did not direct.
The Bybee memo asks an important question: What is torture? This is a
critical question to ask in the middle of a war on terror in which our
enemies have made it clear that they will not observe the Geneva
Conventions or any other rule of civilized conduct. Judge Gonzales
received the Bybee memo, but some of my friends across the aisle are
almost suggesting that he actually wrote it. He did not. He had nothing
to do with it. In fact, they criticize him because they believe he did
not object to the memo at the time he received it. But the fact is, we
do not know what his private legal advice was to the President on the
Bybee memo because that advice is privileged advice. And Presidents do
not want their counsel divulging privileged advice.
In fact, we should think twice before we ever proceed down the path
of attempting to require the White House Counsel to divulge to the
Congress in an open hearing precisely what legal advice he gave to the
President on an inherently sensitive matter such as those that directly
relate to national security.
When all is said and done, Judge Gonzales did not supervise Jay
Bybee. He did not supervise Attorney General Ashcroft. It was not his
job as White House Counsel to approve of memos written by the Justice
Department. And that memo of February 7 said the detainees should be
treated humanely. That was the President's position.
I have a lot more I want to say about this, but I notice the
distinguished Senator from New York is here and wanted to say a few
words before we break for lunch. I will interrupt my remarks. I
couldn't interrupt a few minutes earlier. I will come back to this
subject.
I hope the Chair will allow the senior Senator from New York to have
a few extra minutes. I would be happy to sit in the chair, if needed.
But I will relinquish the floor and ask unanimous consent if I can
finish my remarks after the luncheon; is that possible?
Mr. SPECTER. Mr. President, we have consent following the lunch. I
think the Senator from----
Mr. HATCH. Immediately after the consent order.
Mr. SPECTER. The Senator is entitled to finish.
Mr. HATCH. Especially being interrupted and accommodating colleagues
on the other side. I would like to finish.
Mr. SPECTER. There had been a request for Senator Mikulski for 10
minutes right after lunch.
Mr. LEAHY. Yes, at 2:15. We don't have to break at 12:30. We could
continue on. I was off the floor. What was the request?
Mr. SCHUMER. Will my colleague yield for a minute?
Mr. LEAHY. I don't have the floor.
Mr. SPECTER. Mr. President, will the Senator from Utah be willing to
await the completion of the remarks of Senator Mikulski for 10 minutes
at 2:15 and Senator Schumer at 2:15 and then he will resume his
remarks?
Mr. HATCH. Following Senator Mikulski?
Mr. LEAHY. If the Senator will withhold, how much longer does the
Senator from Utah have?
Mr. HATCH. I have a little bit more. It could be as long as a half
hour.
Mr. SPECTER. My unanimous consent request is that at 2:15, when we
resume, Senator Mikulski be recognized for 10 minutes and Senator
Schumer be recognized for 10 minutes and then Senator Hatch be
recognized to conclude his remarks, then Senator Cornyn be recognized,
and then Senator Kennedy be recognized.
The PRESIDING OFFICER. Is there objection?
Mr. LEAHY. Reserving the right to object, it would be Senators
Schumer, Hatch, Cornyn, and Kennedy?
Mr. SPECTER. It would be Senators Mikulski, Schumer, Hatch, Cornyn,
and Kennedy.
Mr. LEAHY. I have no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. I thank the Chair.

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