[Congressional Record Volume 151, Number 8 (Tuesday, February 1, 2005)]
[Senate]
[Pages S705-S732]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Social Security
Mr. NELSON of Florida. Mr. President, I have just returned from a
weekend in three different parts of my State and of the State of the
Presiding Officer. I was conferring with many of our constituents
regarding what is anticipated to be the President's proposal that he
will give in his speech tomorrow night regarding Social Security. Of
course, this is of enormous importance to us, not only in America but
especially in Florida because of the high percentage of our population
who are senior citizens. In fact, it is 3 million Floridians, retirees,
survivors, and people with disabilities who depend on monthly Social
Security benefits.
Social Security provides a guaranteed benefit, and it helps retirees
live independently and with dignity. It is also the sole source of
income for one-fifth of our Nation's seniors.
In this day and age when you read daily in the newspaper about
employer pensions becoming scarce, Social Security provides a lifeline
to retirees such as Lucille Solana, a 57-year-old retiree from Davie in
Broward County. She worked for United Airlines for nearly 36 years and
retired when the company's bankruptcy cut her pay and her office in
Miami was closed. She had done what she was supposed to do. She
followed the rule of savings: one-third personal savings, one-third
corporate pension, and one-third Social Security for her retirement.
But it hasn't all gone according to plan. United Airlines is going to
terminate her pension, and her personal savings have suffered with the
market. About all she has left is her Social Security.
I think we have a moral obligation to help people such as Lucille and
our society's elderly citizens.
Social Security also helps us provide financial security to spouses
and dependent children if a worker becomes disabled or dies.
Listen to this: 38 percent of all Social Security benefit dollars are
paid to disabled Americans. That is 18 million individuals, their
spouses, dependent children, and survivors. Without disability
benefits, over half of the families with disabled workers would have
incomes below the poverty line.
I hasten to add that when we are talking about the spouses and
dependent children and survivors, what does the Good Book tell us is
one of the highest necessities? It has been told to us in both the Old
Testament and the New Testament in Isaiah and James. The widows and the
orphans are at the top of our list to be taken care of.
Most families in America know what an important program Social
Security is to all Americans. We don't have to convince anyone.
But you also ought to hear the story by Gene and Lynda Christie of
Beverly Hills, FL, two of our constituents who are concerned about the
President's Social Security plan. They read about his projected plan in
the papers. What they read and how it would be calculated, their senior
benefits would be cut by $500 a month. They simply can't afford that
kind of reduction. I will bet
[[Page S723]]
that some of you would have a difficult time accepting such a cut.
I believe changes to Social Security cannot include cuts to benefits.
But that is what privatization would do. That is what the President is
expected to propose on Wednesday night as a central part of his plan.
I will oppose diverting money from the Social Security trust fund,
but I believe we should do something to keep Social Security solvent
just as we have done successfully in the past.
Two decades ago, when I was in the House of Representatives, Social
Security faced a real crisis. It truly was on the brink of insolvency.
You know what happened. Instead of this approach, ``it is my way or the
highway,'' Tip O'Neill and Ronald Reagan got together and they formed a
bipartisan commission. On that commission, leadership was given to
Senator Bob Dole, to Congressman former Senator Claude Pepper. And the
work of that bipartisan commission saved the system and built up the
trust fund for the retirement of the baby boomers.
When you put this into context, over the next three-quarters of a
century, 75 years into the future, when you compare now with the
projected insolvency, lo and behold, we find that the recent tax cuts
that have been enacted will cost three times as much as the shortfall
that Social Security is projected to face.
According to the Social Security Trustees Report last year, Medicare
expenditures are now projected to surpass Social Security spending in
2024. With Medicare expenditures over the next 75 years being far in
excess of the shortfall in Social Security, the Medicare deficit will
be three times as much as the shortfall in Social Security. Based on
these numbers, it is clear that a more real crisis lies in the
exploding health care costs.
Privatization will not fix Social Security. In fact, it will actually
worsen the country's overall fiscal health. When money is taken out of
Social Security to pay for private investment accounts, you won't have
enough to pay for current beneficiaries.
Some have suggested that the Government should borrow $2 trillion to
plug this hole.
I just came from the Budget Committee. When we are facing upwards of
$430 billion and more in deficits in this particular year, and you take
another $2 trillion over the next 10 years and add it to it, that would
swell the Federal debt and increase our dependence on foreign creditors
such as the banks in Japan and China.
Rather than cut the benefits or borrow trillions of dollars, I
believe we should pursue other ways to help Americans supplement Social
Security and save for their retirement.
Social Security was intended to be a social safety net. Social
Security was not intended and never was meant to be an investment
program. By linking benefits to the volatile stock prices,
privatization shifts the risk to seniors and it weakens Social
Security's guaranteed safety net.
Look at the wake of cases recently of corporate wrongdoing. We all
know too well the dangers of relying on the stock market for
retirement. Just listen to Michael Pesho of Sanford, FL, who wrote to
me this December. He says:
Dear Senator, I am a 56-year-old who had to work since the
age of 14. I lost both my parents when I was 16, and I have
had to provide for myself all these years. I am also a victim
of the WorldCom fiasco.
I was laid off at WorldCom and lost my entire retirement
portfolio when it was converted into worthless WorldCom
stock. I'm tired and would very much like to retire in 9 or
10 years but in order for me to do that Social Security will
have to be in place for me to have any kind of retirement
foundation to work off of.
He says:
I implore you to ensure Social Security benefits will be
there when I need them.
Michael doesn't want his Social Security entrusted to the same market
that devastated his retirement savings. It is too risky.
I intend to fight for people who worked hard and played by the rules.
I will fight against cuts to Social Security benefits. I will fight
against any plan that relies on massive borrowing and increases in
debt. I take the fiscally conservative position and I will fight to
protect this program that provides a safe and reliable source of
retirement income for millions of Americans. I intend to work with the
President, not to cut, but to strengthen Social Security. I agree with
him that we have a moral obligation to fix it for future generations.
Currently, I am working with other Members of the Senate to put
together a moderate and more sensible plan that strengthens Social
Security and expands opportunities for all Americans to save for their
retirement. This plan would give workers additional tax breaks to save
for retirement on their own with a personal account over and above
Social Security.
Now is the time to reach out and to bring the various factions
together. Now is the time to be conciliators and in the spirit of
Ronald Reagan and ``Tip'' O'Neill who saved the Social Security system
in a bipartisan fashion back in the early 1980s. We need to bring the
factions together. We need to build mutual consent on how to protect
Social Security for the retirees of today and future generations. I am
very hopeful this can be achieved.
I yield the floor.
The PRESIDING OFFICER (Mr. Alexander). The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I ask unanimous consent that the time
until 8:15 this evening be equally divided for debate between the
chairman and ranking member or their designees; provided further that
the Senate then resume consideration of the nomination at 9:30 a.m.
tomorrow, with the time until 4:30 again being equally divided as
previously mentioned; provided that the further hour be under the
control of the majority and that every 60 minutes alternate. Further, I
ask that from 2:30 to 4:30 be under the control of the minority, with 4
o'clock to 4:30 under the control of the majority. I further ask
consent that when the Senate convenes on Thursday morning, immediately
following the time for the two leaders, there be a period of morning
business for 2 hours, with the first hour under the control of the
Democratic leader or his designee and the second hour under the control
of the majority leader or his designee. I further ask consent that
following the morning business time, the Senate resume consideration of
the Gonzales nomination and there be an additional 8 hours of debate
equally divided again between the chairman and ranking member or
designees. Finally, I ask consent that following the use or yielding
back of time the Senate proceed with a vote on the confirmation of the
nomination with no intervening action or debate, and that following the
vote the President be immediately notified of the Senate's action.
Mr. DURBIN. Reserving the right to object, if I could suggest to the
chairman, Senator Specter, I think he misspoke on one line. I believe
in the consent which we are considering it says that ``further, I ask
that from 2:30 to 4 o'clock be under the control of the minority and 4
to 4:30 under the control of the majority.'' If that is the way
his version reads, I would like to amend his statement.
Mr. SPECTER. 2:30 to 4 under the control of the minority and 4 to
4:30 under the control of the majority? That is acceptable.
Mr. DURBIN. I have no objection.
Mr. DAYTON. Reserving the right to object.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. DAYTON. I ask the chairman, does he intend, then, to proceed now,
and is it the understanding that this side will have the next speaker,
and I will follow that individual?
Mr. SPECTER. Mr. President, it is my intention to speak next in
rebuttal.
Mr. DURBIN. If I might ask through the Chair, I advise my colleague
from Minnesota I will make a unanimous consent request about the lineup
for Democratic speakers. He will be the first on our side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Mr. President, I ask unanimous consent the order of
speakers on the Democratic side for today be as follows: Senator Dayton
of Minnesota, Senator Stabenow of Michigan, and Senator Johnson of
South Dakota.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, reserving the right to object, and I do
not intend to object, I believe implicit in what the Senator from
Illinois said is
[[Page S724]]
that there be an alternating of speakers, and I will present a list of
Republican speakers to integrate with what Senator Durbin has stated.
Mr. DURBIN. Mr. President, both implicit and explicit.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, today we have heard quite a ring of
castigation against Judge Gonzales, virtually all of it misdirected,
virtually all of it factually incorrect. We have heard the Senator from
Massachusetts castigate the Bybee memorandum in torrid prose, claiming
the Bybee memorandum was exactly wrong. He asserted that the Bybee
memorandum did not have a sensible interpretation, or a legal
interpretation of torture. He further claimed that the Bybee memorandum
vastly overstated executive authority, and that it said the President
had as much authority on the question of detainees as he did on
battlefield control. These claims are palpably erroneous.
The Senator from Massachusetts then cited the Goldsmith memo, and
said it certainly was a smoking gun. But Judge Gonzales did not hold
that gun, did not have anything to do with that gun. The Senator from
Massachusetts said Judge Gonzales was sent a copy of that memorandum.
During the course of Judge Gonzales's questioning by the Senator from
Massachusetts, the Senator from Massachusetts never once, to my
recollection, ever viewed the transcript, or said anything about the
Goldsmith memorandum.
So what we have is the castigation of Judge Gonzales for matters
which were totally beyond his control. Judge Gonzales was the lawyer
for the President as White House Counsel. As such, he sat in on a
series of meetings. Those meetings were convened to find out what was
the law on how detainees could be appropriately questioned to avoid any
implication of the torture statute. When there is a determination of
what the law is, that is up to the Department of Justice. And that is
what Judge Gonzales testified to. And while there appears to be
instances in which the Bybee memorandum was off-base, Judge Gonzales
was not involved with the drafting of that memorandum.
Then when the question comes up as to what questions the detainees
were going to be asked, that is a matter for the experts. As Judge
Gonzales responded to questions from the Senator from Massachusetts at
the hearing, it is up to the CIA and up to the Department of Defense.
It is not up to the Counsel for the President.
When the Senator from Massachusetts castigates Judge Gonzales for not
being able to remember what happened years ago, or what conversations
may have taken place, he is being unfairly critical. The Department of
Justice was responsible to provide the memo. Whether it was for the CIA
or the Department of Defense is something that was not recollected, but
who can recollect everything that happened several years ago?
When the Senator from Massachusetts castigates Judge Gonzales for not
conducting a search and for not knowing certain information, he is
mistaken. A search was conducted.
When the Senator from Massachusetts raised that issue in the
executive session, I then asked the White House to conduct a search.
That search was conducted, and immediately a memorandum was circulated
disclosing what that search was.
When the Senator from Massachusetts, last night--I got it this
morning--asked for some more information from the White House, I again
forwarded the request and got a reply today. It was not a reply that
the Senator from Massachusetts liked, but there has been nothing about
this entire proceeding that the Senator from Massachusetts has agreed
with. And that is his prerogative. He does not have to agree with it.
He does not have to vote for Judge Gonzales. And he can express his
views on oversight responsibilities. But there are others of us on this
committee who have been here a while who understand our oversight
responsibility and who have made a very strong effort to provide the
information which the Senator from Massachusetts has asked for.
Judge Gonzales was available to more than a dozen Members of the
Senate, available to all members of the Judiciary Committee--not that
all asked to see him--and provided more than 250 pages of voluminous
answers. So extensive were the answers that they were complimented, in
effect, by the New York Times, saying it was the most comprehensive
statement made as to what was the policy of the U.S. Government on
these very important subjects.
But aside from the rhetoric, what are the facts? What does the
testimony show? What do the documents show?
Senator Feinstein says she still does not understand what Judge
Gonzales thinks about torture. Well, what Judge Gonzales thinks about
torture he has said on quite a number of occasions.
Let me remind all Senators who have to vote on this matter what Judge
Gonzales said about torture.
No. 1:
[T]he President has said we're not going to engage in
torture.
No. 2:
The President gave a directive to the military that despite
the fact that Geneva may not apply with respect to the
conflict and the war on terrorism, it is that everyone should
be treated humanely.
No. 3, this is in the record, according to his testimony:
[T]he position of the President on torture is very, very
clear, and there is a clear record of this. He does not
believe in torture, condone torture, has never ordered
torture, and anyone engaged in conduct that constitutes
torture is going to be held accountable.
No. 4:
All I know is that the President has said we are not going
to [have] torture under any circumstances. . . . the United
States has never had a policy of torture.
No. 5, further testimony:
Our policy is we do not engage in torture.
No. 6:
It is not the policy of the administration to tolerate
torture or inhumane conduct toward any person that the United
States is detaining.
No. 7, more testimony:
The President is not going to order torture.
No. 8:
[T]his President is not going to order torture. We don't
condone it.
No. 9:
Now, let me emphasize, and I can't emphasize this strongly
enough, there are certain basic values that this country
stands for and this President certainly believes in, and
those values are reflected in the directives that he has
issued regarding the treatment of al Qaeda detainees, and
those who do not meet those standards are going to be held
accountable.
This is all testimony or responses in the Record:
In addition, there are of course other legal restrictions.
For example, the convention against torture, that would be
applicable, Army regulations that would be applicable. All
those exist to conscript the type of conduct that our
military can engage in with respect to detainees. And so we
want to of course meet basic standards of conduct with
respect to treatment of al Qaeda[.]
No. 10, again, testimony:
[A]s I have said repeatedly today, this administration does
not engage in torture and will not condone torture. And so
what we are really discussing is a hypothetical situation. .
. .
No. 11:
[O]ther than the directive by the President that we're not
going to engage in torture and that we're going to abide by
our legal obligations, I'm not aware of any other directive
by the President.
No. 12: Judge Gonzales also reiterated his own opposition to torture
in numerous responses to written questions submitted by Judiciary
Committee Senators following the hearing.
No. 13:
The President has repeatedly stated that his Administration
does not authorize or condone torture under any circumstances
by U.S. personnel. I, of course, fully support the
President's policy. . . .
No. 14:
I do denounce torture, and if confirmed as Attorney
General, I will prosecute those who engage in torture.
No. 15:
The President has made clear that the United States remains
committed to adhering to its obligations under the Geneva
Conventions and the Convention Against Torture and has
unequivocally condemned torture. I have repeatedly emphasized
the President's statement of these commitments on behalf of
the United States, and will continue to do so if confirmed as
Attorney General.
As chairman of the committee, I had the first round of questions, and
the first question I asked Judge Gonzales
[[Page S725]]
was: What is your position on torture? And his words were to the
effect: I condemn torture. Now, I do not know how much more explicit a
witness, a nominee, can be than Judge Gonzales has been, but if someone
does not understand Judge Gonzales's position after this kind of an
emphatic, definitive statement, it is plain and clear for the record.
The contention has been made that Judge Gonzales agrees with a Bybee
memorandum's conclusion that severe pain, for purposes of the torture
statute, must be equivalent in intensity to the pain accompanying organ
failure, impairment of bodily function, or even death. This has been a
source of contention throughout the hearings in the executive session
and on the Senate floor. Judge Gonzales responded to the ranking
member, who said:
Do you agree today that for an act to violate the torture
statute it must be equivalent in intensity to the pain
accompanying serious physical injury such as organ failure,
impairment of bodily function or even death?
Judge Gonzales answered:
I do not. That does not represent the position of the
Executive Branch.
So Judge Gonzales categorically repudiated the Bybee memorandum in
that respect.
There has been a source of argument about what the Bybee memorandum
meant and what Judge Gonzales's position was about it. Judge Gonzales
was deferential to the determinations by the Department of Justice.
There is a complicated issue here as to whether the White House is
going to be overly determinative in what the Department of Justice's
position should be, and the White House has been very cautious. This is
traditional--not just with this White House but with prior White
Houses--not to tell the Department of Justice what to say or not to
appear to tell the Department of Justice what to say because that would
be politicization of a Department of Justice by the White House. The
White House's role, as we have emphasized it, is not to tell the
Department of Justice what to do, and the Department of Justice and the
Attorney General's role is to represent all of the American people and
not just the President.
There was discussion between the White House and the Department of
Justice, as well as other agencies, about what the torture statute
meant. Judge Gonzales testified to that and said, in effect, that it
would be natural to have those kinds of discussions. Judge Gonzales
said:
It was very, very difficult. I don't recall today whether
or not I was in agreement with all of the analysis, but I
don't have a disagreement with the conclusions then reached
by the Department. Ultimately, it is the responsibility of
the Department to tell us what the law means, Senator.
In the very next question, however, we clarified his views on the
narrow definition of torture in the Bybee memo. The ranking member
asked:
Do you agree today that for an act to violate the torture
statute it must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure,
impairment of bodily function or even death?
And as noted previously, Judge Gonzales said he did not. Later, in
another response to the ranking member, Judge Gonzales agreed that it
would be horrific conduct--I think you would agree to this, and Judge
Gonzales did, to what Senator Leahy asked--that cutting off someone's
finger would be considered torture.
Judge Gonzales also explained his agreement with the conclusion of
the Justice Department based on respect for the Department's
independence. This is what Judge Gonzales had to say on that facet of
the issue:
Senator, what you're asking the counsel to do is to
interject himself and direct the Department of Justice, who
is supposed to be free of any kind of political influence, in
reaching a legal interpretation of a law passed by Congress.
I certainly give my views. There was of course conversation
and a give and take discussion about what does the law mean,
but ultimately, ultimately by statute the Department of
Justice is charged by Congress to provide legal advice on
behalf of the President.
Well, it is apparent from the totality of the context of what Judge
Gonzales had to say that aside from giving deference to the role of the
Department of Justice in interpreting the law, the Bybee memo was not
accepted by Judge Gonzales.
When it came to the critical question of the assertion in the Bybee
memorandum that the President had as much authority on the questioning
of detainees as the President had on battlefield decisions, Judge
Gonzales said he disagreed with that. When the question came up about
the scope of the President's authority to immunize people who would
violate Federal law, of course, any suggestion in the Bybee memo or
otherwise would be contrary to a basic understanding of the law of the
United States, where nobody is above the law.
At his confirmation hearing, Judge Gonzales specifically rejected the
portion of the August 1, 2002, Bybee memorandum, which asserted that
the President, as Commander in Chief, possessed the constitutional
authority in certain circumstances to disregard the Federal criminal
prohibition against torture. He stated that the memo has been
``withdrawn.''
It has been rejected, including that section regarding the
Commander in Chief's authority to ignore the criminal
statutes. So it has been rejected by the Executive Branch. I,
categorically, reject it . . . [T]his administration does not
engage in torture and will not condone torture.
A question was raised about a reservation to the Convention Against
Torture under article 16, which provided that aliens interrogated by
U.S. personnel outside of the United States did not enjoy the
substantive rights of the 5th, 8th and 14th amendments, a technical
reservation for international law purposes.
Judge Gonzales responded that this is a legislative issue that may
perhaps require additional consideration. Nevertheless, regardless of
the debate about the strict requirements of article 16, Judge Gonzales
testified that the administration had sought to be in compliance as a
substantive matter under the 5th and 18th amendments. He also testified
that to the best of his knowledge, the U.S. has met its obligations
under the 5th, 8th, and 14th amendments.
A major question was raised about Judge Gonzales's independence. He
was emphatic, saying that:
If confirmed, I will no longer represent only the White
House. I will represent the United States of America and its
people. I understand the difference between the two roles. In
the former, I have been privileged to advise the President
and the 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.
Both Senator Leahy and I, in our opening statements, emphasized this
issue, and this was a matter which Judge Gonzales had thought about and
had included in his opening statement and was prepared to affirm the
very fundamental difference in his duty as Attorney General to the
American people, contrasted with his responsibilities as White House
Counsel to the President.
We have seen a rather dramatic turnabout in the course of the
hearings on Judge Gonzales, the issue of the esteem in which he had
been held and what Senators had to say about him and what they have
said about him since in executive session.
Senator Kohl had this to say about Judge Gonzales:
We have had an opportunity to work together on several
different issues over the years, and I have come to respect
you. And I believe if you are confirmed, you will do a good
job as Attorney General of the United States.
Senator Durbin said:
I respect him and his life story very much.
Senator Leahy said:
When this nomination was first announced, I was hopeful. I
noted at the time that I like and respect Judge Gonzales.
Senator Schumer said:
I like Judge Gonzales. I respect him. I think he is a
gentleman and I think he is a genuinely good man. We have
worked very well together, especially when it comes to
filling the vacancies on New York's Federal bench. He has
been straightforward with me and he has been open to
compromise. Our interactions haven't just been cordial; they
have been pleasant. I have enjoyed the give-and-take we have
engaged in.
Senator Schumer later said:
I was inclined to support Judge Gonzales. I believed, and I
stated publicly early on, that Judge Gonzales was a much less
polarizing figure than Senator Ashcroft had been. . . . Even
if you are, as Judge Gonzales is, a good man, a good person
with top-notch legal qualifications, you must still have the
independence necessary to be the Nation's chief law
enforcement officer.
[[Page S726]]
He continues:
I still have great respect for Judge Gonzales. He has the
kind of Horatio Alger story that makes us all proud to be
Americans. It is an amazing country when a man can rise from
such humble beginnings to be nominated for Attorney General.
So the question arises, as we are engaging in floor debate on the
nomination of Judge Gonzales to be Attorney General of the United
States, what happened here? We know of the atrocities of Abu Ghraib,
and although there have been some efforts in some of the speeches to
identify Judge Gonzales with Abu Ghraib, they are not substantial.
There have been some criticisms regarding Guantanamo. Those matters are
under investigation. But Judge Gonzales is not the interrogator; he is
not the questioner; he is not the person who made up the questions; he
is not the person who has defined the torture statute. He has been one
individual in a series of meetings, where his role has been defined as
being the representative of the President.
But the role of the Department of Justice is clearly delineated. They
are to interpret what the statutes mean. The experts in the CIA and in
the Department of Defense have their own responsibilities.
So what is happening here? Is it the constant Washington search for
political advantage that goes around this town every day? During the
course of our discussion on Judge Gonzales, we heard a speech about
Social Security. It surprised me a little, in the middle of the
proceedings. We have questions on political advantage on so many
subjects that I am not going to digress. But there is no doubt that the
air is very heavy with politics in this town.
We had the nomination proceedings as to Secretary of State
Condoleezza Rice. She was challenged in a way that was highly unusual
in the Senate of the United States--challenged as to her integrity. Not
was she wrong about weapons of mass destruction, but did she falsify,
was her testimony deliberately false and misleading. Dr. Rice had more
negative votes than any nominee for Secretary of State since John Jay
in 1824. That says something about the atmosphere in Washington and the
constant Washington search for political advantage.
Senator Schumer has raised a contention repeatedly in the course of
the proceedings on Judge Gonzales about the so-called nuclear option.
He asked Judge Gonzales for his opinion as to whether the so-called
nuclear option is constitutional. That is quite a cloud hanging over
the Senator--potentially hanging over the Senate--as to whether the
rules of the Senate require only 51 votes on the confirmation of a
Federal judge as opposed to the requirement of cloture of 60 votes.
Senator Schumer has raised that issue. I don't think he is looking for
a commitment there as a condition to his vote, so why question Judge
Gonzales about that collateral matter that has no bearing on his
fitness for the post to which he has been nominated?
So there is some sense on my part that we have found a wedge issue.
It is certainly true that Judge Gonzales has not been the most artful
of witnesses. To say he has a generalized agreement with the Bybee
memorandum was not the most artful of answers, after it had been
universally condemned and withdrawn by the Department of Justice. But
he made that reference as a theoretical matter as to how the
White House respects the Department of Justice's role in interpreting
the law so that if the Department of Justice came down with an
interpretation, Judge Gonzales was not going to say it was wrong to
appear to be having undue influence, or to be politicizing the process.
But that wasn't the most artful of answers.
When asked hypothetical questions about was there any circumstance
where the President of the United States might not follow a statute,
again, it wasn't the most artful of answers. There is no doubt that Abu
Ghraib and Guantanamo and the horrors of torture are overwhelming to
the American psyche.
Back in 1991, I introduced legislation to protect victims of torture,
to have rights of actions in Federal courts. I spoke out about the
torture issue before it became a matter for legislation for the
Congress generally. The legislation I introduced in 1991 was adopted,
so that people who are subjected to torture in foreign countries can
sue in U.S. courts. So the issue of torture has always been on the mind
of this Senator. It is on the minds of the American people.
But Judge Gonzales is not responsible for what went on in Abu Ghraib
or Guantanamo. Judge Gonzales is not responsible for actions by the
CIA, or the Department of Defense, or for legal opinions by the
Department of Justice.
If you look at his record and his qualifications as a lawyer, his
academic qualifications as a Harvard Law graduate, his qualifications
for practicing law with a big firm, his qualifications for being a
supreme court justice in Texas, his qualifications for being White
House Counsel for 4 years, where Judge Gonzales has had contact with
many Senators--I dare say in that capacity, my colleagues in the Senate
would share my views that he was always courteous, always relevant,
always on top of the issues in discussing judicial nominees, where most
of us have had some role to confirm a judge in his or her State. I
think the comments would be uniform, as the ones I quoted, about how
pleasant it was and how effective it was and how professional it was to
deal with Judge Gonzales.
So if the winds of Abu Ghraib and Guantanamo had not blown across
this hearing, I think we would have had perhaps a unanimous vote in
favor of Judge Gonzales. In this highly charged political atmosphere,
one has to wonder whether he is not, himself, a torture victim. He is
clearly a victim of Washington politics.
Judge Gonzales is still highly likely to be confirmed. He was voted
out of committee on a party-line vote. It had been my hope and
expectation at an earlier stage that it would have been a strong
bipartisan vote. It is still my hope and expectation he will be
confirmed with some bipartisanship, but it will not be the kind of
strong vote that would have given him a much stronger position as
Attorney General absent the Bybee memo, Abu Ghraib, and Guantanamo. But
on the basis of his academic, professional, and public service record,
there was much, and still is much, on which to recommend him to be the
Attorney General of the United States.
Mr. President, I have taken some more time. I made a very short
opening statement to begin debate today and have listened to the
arguments made by Senators from the other side of the aisle and find
factually that they are off the mark; that in terms of what Judge
Gonzales has had to say out of his own mouth have come very forceful
denunciations of torture, very forceful denunciations of the Bybee
memorandum, and a strong statement as to why he ought to be the next
Attorney General of the United States.
Mr. President, I ask unanimous consent that the following list be
next in order of Republican speakers: Senator Coburn, Senator Sessions,
Senator Brownback. Before the Chair rules, I will add that we will
continue to alternate between Republican and Democratic speakers.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. SPECTER. I wanted to put this on the record so the people who are
next up would know it, and would be in a position to come to the
Chamber in a timely fashion.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. DAYTON. Mr. President, I highly respect the distinguished
chairman of the Senate Judiciary Committee. He has been noted with his
own stellar examples of bipartisanship, working with colleagues on both
sides of the aisle. But I must say I have to respond to his remarks
about those of us who oppose Judge Gonzales as being engaged in nothing
other than political partisanship. I suggest that term could be applied
to those who support these nominees because they are of the same
political party as the President as much as they could be applied to
those of us who are on the other side of the aisle.
If the Founders of this country did not intend for the Senate to
exercise an independent judgment about the nominees to these high
offices, such as Attorney General and Secretary of State, they would
not have provided for a separate Senate confirmation of the President's
nominees.
These individuals are not employees of the President, even though
they are
[[Page S727]]
nominated by him and serve as members of his Cabinet and serve at his
pleasure, as are his employees in the White House, who are not subject
to Senate confirmation. These men and women become public officials who
represent the United States of America within our country, before the
Supreme Court, as Secretary of State in the seats of government around
the world. They have to meet an American standard, and it is that
standard that each of us has the independent responsibility to apply
according to our own best judgments, but one the Constitution clearly
intends we should apply independent of the President's judgment and
independent, one would hope, of our own respective political parties.
I think ultimately, in the light of this debate, it is for the
American people to decide whether this nominee, or any of the
President's nominees, meet the standards for those who will represent
this Nation in the highest public offices in the land.
I rise today to oppose the nomination of Judge Gonzales to be our
Nation's next Attorney General, and I cite, as have other colleagues,
the key role that he played in what is certainly one of the darkest
disclosures about this administration: Its secret decisions to
disregard the principles of the Geneva Convention for the humane
treatment of prisoners of war who Judge Gonzales and others
conveniently renamed ``enemy combatants.''
This role and its consequences were described in graphic detail in a
recent Sunday New York Times review of a couple of books, including the
International Commission of the Red Cross's documents regarding the
abuse of prisoners in Iraq by American service men and women. I would
like to quote to some extent from the New York Times report because it
expresses both the severe consequences of the decisions that were made
in which Judge Gonzales, unfortunately, played a key role as White
House Counsel.
The reviewer cites part of the memorandum that the President approved
that was written by Judge Gonzales in that role which states:
As a matter of policy, the United States Armed Forces shall
continue to treat detainees humanely and, to the extent
appropriate and consistent with military necessity, in a
manner consistent with the principles of Geneva.
The article reporter goes on to say:
Notice the qualifications. The president wants to stay not
within the letter of the law, but within its broad
principles, and in the last resort, ``military necessity''
can overrule all of it. According to his legal counsel at the
time, Alberto R. Gonzales, the President's warmaking powers
gave him ultimate constitutional authority to ignore any
relevant laws in the conduct of the conflict. Sticking to the
Geneva Convention was the exclusive prerogative of one man,
George W. Bush; and he could, if he wished, make exceptions.
As Assistant Attorney General Jay S. Bybee argues in another
memo, ``Any effort to apply Section 2340A in a manner that interferes
with the President's direction of such core war matters as the
detention and interrogation of enemy combatants thus would be
unconstitutional. (Section 2340A refers to the United States law that
incorporates the international Convention Against Torture.)
Bybee asserted that the president was within his legal
rights to permit his military surrogates to inflict ``cruel,
inhuman or degrading'' treatment on prisoners without
violating strictures against torture. For an act of abuse to
be considered torture, the abuser must be inflicting pain
``of such a high level intensity that the pain is difficult
for the subject to endure.'' If the abuser is doing this to
get information and not merely for sadistic enjoyment, then
``even if the defendant knows that severe pain will result
from his actions,'' he's not guilty of torture. Threatening
to kill a prisoner is not torture; ``the threat must indicate
that the death is `imminent.' '' Beating prisoners is not
torture either. Bybee argues that a case of kicking an inmate
in the stomach with military boots while the prisoner is in a
kneeling position does not by itself rise to the level of
torture.
Bybee even suggests that full-fledged torture of inmates
might be legal because it could be construed as ``self-
defense,'' on the grounds that ``the threat of an impending
terrorist attack threatens the lives of hundreds if not
thousands of American citizens.'' By that reasoning, torture
could be justified almost anywhere on the battlefield of the
war on terror. Only the president's discretion forbade it.
These guidelines were formally repudiated by the
administration the week before Gonzales's appearance before
the Senate Judiciary Committee for confirmation as attorney
general.
In this context, Secretary Rumsfeld's decision to take the
gloves off in Guantanamo for six weeks makes more sense. The
use of dogs to intimidate prisoners and the use of nudity for
humiliation were now allowed. Although abuse was specifically
employed in only two cases before Rumsfeld rescinded the
order, practical precedents had been set; and the broader
mixed message sent from the White House clearly reached
commanders in the field. Lt. Gen. Ricardo S. Sanchez, in
charge of the Iraq counterinsurgency, also sent out several
conflicting memos with regard to the treatment of prisoners--
memos that only added to the confusion as to what was
permitted and what wasn't. When the general in charge of
Guantanamo was sent to Abu Ghraib to help intelligence
gathering, the ``migration'' of techniques (the term used in
the Pentagon's Schlesinger Report) from those reserved for
extreme cases in the leadership of Al Qaeda to thousands of
Iraqi civilians, most of whom, according to the intelligence
sources, were innocent of any crime at all, was complete.
Again, there is no evidence of anyone at a high level
directly mandating torture or abuse, except in the two cases
at Gitmo. But there is growing evidence recently uncovered by
the ACLU . . . that authorities in the FBI and elsewhere were
aware of abuses and did little to prevent or stop them.
Then there were the vast loopholes placed in the White House torture
memos, the precedents at Guantanamo, the winks and nods from
Washington, and the pressure of an Iraqi insurgency that few knew how
to restrain. It was a combustible mix.
The article continues:
What's notable about the incidents of torture and abuse is
first, their common features, and second, their geographical
reach. No one has any reason to believe any longer that these
incidents were restricted to one prison near Baghdad. They
were everywhere from Guantanamo Bay to Afghanistan, Baghdad,
Basra, Ramadi and Tikrit and, for all we know, in any number
of hidden jails affecting ``ghost detainees'' kept from the
purview of the Red Cross.
I will might add that is in direct contradiction to what we have been
told, those of us like myself who sit on the Senate Armed Services
Committee, who have been told repeatedly by this administration's
representatives, and by military leaders, that these abuses were
restricted to one prison, Abu Ghraib, in Iraq. I commend Senator
Warner, the chairman of the Armed Services Committee, who has done his
utmost, by holding these hearings and pressing the military and
pressing the administration, to bring the full scope of what occurred
there to public light through those hearings. To have sat through all
those, as I have, and now hear that contradicted directly by the facts
as they become known is greatly distressing and confirms my own
unfortunately necessary judgment that this administration has not been
candid with this Congress or with the American people about the conduct
of the war in Iraq in this and other very important respects.
Going back to the New York Times article, they, meaning the abuses of
prisoners in Iraq:
were committed by the Marines, the Army, the Military Police,
Navy Seals, reservists, Special Forces and on and on. The use
of hooding was ubiquitous; the same goes for forced nudity,
sexual humiliation and brutal beatings; there are examples of
rape and electric shocks. Many of the abuses seem
specifically tailored to humiliate Arabs and Muslims, where
horror at being exposed in public is a deep cultural
artifact.
An e-mail message recovered by Danner from a captain in
military intelligence in August 2003. . . . In the message,
he asked for advice from other intelligence officers on which
illegal techniques work best: a ``wish list'' for
interrogators. Then he wrote: ``The gloves are coming off
gentlemen regarding these detainees, Col. Boltz has made it
clear that we want these individuals broken.''
The article continues:
How do you break these people? According to the I.C.R.C.,
one prisoner ``alleged that he had been hooded and cuffed
with flexicuffs, threatened to be tortured and killed,
urinated on, kicked in the head, lower back and groin, force-
fed a baseball which was tied into the mouth using a scarf
and deprived of sleep for four consecutive days.
Interrogators would allegedly take turns ill-treating him.
When he said he would complain to the I.C.R.C. he was
allegedly beaten more. An I.C.R.C. medical examination
revealed hematoma in the lower back, blood in urine, sensory
loss in the right hand due to tight handcuffing with
flexicuffs, and a broken rib.''
That is only one of several incidents of that kind of horrible abuse
this article contains. It continues:
And the damage done was intensified by President Bush's
refusal to discipline those who helped make this happen. A
president who truly recognized the moral and strategic
calamity of this failure would have fired everyone
responsible. But the vice president's response to criticism
of the defense secretary in the wake of Abu Ghraib was to
say, ``Get off his back.'' In fact, those with real
[[Page S728]]
responsibility for the disaster were rewarded. Rumsfeld was
kept on for the second term, while the man who warned against
ignoring the Geneva Conventions, Colin Powell, was seemingly
nudged out. The man who wrote a legal opinion maximizing the
kind of brutal treatment that the United States could legally
defend, Jay S. Bybee, was subsequently rewarded with a
nomination to a federal Court of Appeals. General Sanchez and
Gen. John P. Abizaid remain in their posts. Alberto R.
Gonzales, who wrote memos that validated the decision to
grant Geneva status to inmates solely at the president's
discretion, is now nominated to the highest law enforcement
job in the country: attorney general. The man who paved the
way for the torture of prisoners is to be entrusted with
safeguarding the civil rights of Americans. It is astonishing
he has been nominated, and even more astonishing that he will
almost certainly be confirmed.
I conclude my citation of that article. The abuses it describes are
terrible, however limited in number they may be. Obviously almost all
of our American service men and women serving so heroically in Iraq,
Afghanistan, and around the world were not involved in those abuses. In
fact, they paid the price for them. They become the targets of
relatives and friends of those abuse victims who swear revenge. Our
troops are placed at greater risk if, God forbid, they are captured,
because we cannot demand that their captors practice standards of
humane treatment which we do not practice ourselves.
But there is something that runs even deeper here and that is even
more dangerous to our democracy. It is Judge Gonzales's advice that
``the President's warmaking powers gave him ultimate constitutional
authority to ignore any relevant law in the conduct of the conflict.''
This is, I suspect, only the tip of the iceberg. Early in the
administration's campaign, in the fall of 2002, to stampede Congress
and scare the American people into the Iraq war, the White House stated
their legal view that the President didn't actually need congressional
authorization to invade Iraq. Members of this body on the other side of
the aisle were instrumental in persuading him nevertheless to seek that
authority.
Secretary Rumsfeld's legal advisers have reportedly reinterpreted
existing law to permit him to set up his own CIA-type operations
without informing Congress. They reinterpreted another law, purportedly
to authorize military counterterrorist commando units to operate within
the United States. Who knows how many other laws this administration's
legal advisers have reinterpreted or decided that the President or
others can ignore entirely, reinterpret or ignore without informing
Congress, without informing the American people?
The Attorney General of the United States is entrusted to uphold the
laws of this Nation and to apply them consistently and fairly to every
American citizen, whether he agrees with them, whether they are
convenient, whether the President or anyone else tells him otherwise.
He cannot reinterpret them or ignore them or instruct the President or
anyone else that they can reinterpret or ignore them. Change them? Yes,
through the public process prescribed by the Constitution, by our
Constitution: by an act of Congress signed into law by the President
himself, reviewed if necessary by the judiciary. No exclusions and no
exceptions, not for this President or any President; not for this
administration or any administration, whether Republican, Democrat, or
anything else. There are no special circumstances. There is no election
mandate for secretly ignoring or reinterpreting laws of this Nation, or
acting contrary to the rule of those laws or in violation of the
Constitution of the United States.
Unfortunately, there is tragic precedent in this country's proud
history for the demise of administrations who deviated from the rule of
law, who considered themselves above the law or beyond the law or
justified in reinterpreting or ignoring the law. Their hubris did great
damage to themselves and they did great damage to our country.
They occurred more often than not during second terms, even after
receiving that most special of electoral mandates: reelection. What a
profound affirmation of the public trust, the most sacred political
trust we have in this country: reelection of the President of the
United States of America.
For the next 4 years, this President is our President. He is my
President. I pray that he succeeds. Where he succeeds, our country
succeeds. If he fulfills that sacred trust inferred upon him by the
American people, the faith of all Americans in their Government is
fulfilled.
We can have policy disagreements here in the Senate, in the House of
Representatives, and with the administration. This is what a great
Democratic leader, Senator Tom Daschle, called the ``noise of
democracy.'' They were intended by this country's Founders, who
designed our system of government to allow them, to address them, and
resolve them, publicly, lawfully, and constitutionally. When those
principles are followed publicly, lawfully and constitutionally, our
Nation is strengthened. When they are not, our Nation is almost always
weakened, regardless of what those leaders intended at the time.
I respectfully urge this administration to stop reinterpreting and
ignoring existing laws and to stop ignoring and misleading Congress and
the American people and to nominate an Attorney General who will not
advise it, not hide it, and not condone it. That Attorney General I
will gladly vote to confirm; this nominee, I will not.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. Mr. President, I am struck as a newly-elected Senator
from the State of Oklahoma. I must say I am extremely disappointed that
my first opportunity to speak on the floor of this body is on the basis
to refute the claims that are being made against a gentleman that I
believe has already served our country miraculously and has been an
example in this country of what can happen from very humble beginnings
if somebody applies hard work, great effort, and perseverance.
I am also struck by the claims that are made which don't have
anything to do with history.
I was sitting here asking myself this question: Were President
Kennedy, President Johnson, and President Nixon responsible for My Lai,
Vietnam? Was it their policies that caused that to happen? The
atrocities that occurred during the Korean conflict, was that the fault
of President Truman? The atrocities that occurred during World War II,
was that the fault of President Roosevelt? No.
And to make the reach and to make the claim that Alberto Gonzales, in
his role as adviser to the President, as a legal counsel, to do what is
expected of him in that position and to do that in a way that gives the
President of the United States the advice, the knowledge, and the legal
opinion of the Justice Department--not his opinion but the legal
opinion of the Justice Department--that he somehow has disqualified
himself from the position of Attorney General.
I come to the floor today to make a statement in support of Alberto
Gonzales's nomination to be the Attorney General of the United States.
I believe an injustice is being carried out against him, both
personally and professionally. Instead of looking at his
qualifications, many have used him as a lightning rod for their
complaints about the administration's handling of the war on terror.
Specifically, many blame him for the administration's policies on the
treatment of detainees and for its inquiries about the definition of
torture. I am reminded that the President stated in 2002 that we would
offer humane treatment to all prisoners. I am also reminded of how
important it was for him to have a definition of what that was
according to the Geneva Convention, but also according to our own law.
What have the President and Judge Gonzales done to deserve the
criticism they received? We saw Monday the results of Sunday's
elections in Iraq.
The allegations against him are based on two sets of advice that were
given to the administration by the Attorney General and Department of
Justice.
First, the President made a decision based on the legal advice that
he received from the Attorney General and the Department of Justice
that certain detainees should not receive prisoner-of-war status while
they were held in U.S. custody.
Second, Judge Gonzales asked the Department of Justice Office of
Legal Counsel under its statutory authority
[[Page S729]]
to render legal opinions to determine the precise meaning of the U.S.
anti-torture statute. The Department of Justice responded to this
request August 1, 2002, and December 30, 2004.
I must say that torture is not a pleasant subject for us to discuss,
but one might ask why the President and his top lawyer needed a
clarification on an issue as unsettling as torture. I believe it is
good to repeat the words of Senator Cornyn in his discussion. Why would
we not use every legal means which are appropriate to protect this
country? Finding out the definition of appropriateness is well within
the purview of what Alberto Gonzales did.
It is remarkable how quickly we forget. Just 3 years, 4 months, and
21 days ago, this Nation came under attack. We all watched helplessly
as more than 3,000 of our fellow Americans were murdered, and nearly an
equal number were severely injured in an assault that we had never seen
before in this country.
As the horrors of September 11, 2001, unfolded before our eyes, we
quickly realized that we were not under the attack of another country,
we were not assaulted by a nation that respects and obeys the laws of
war and international order. We were ripped from a world paradigm that
we understood, one where states follow rules while fighting each other,
and thrust into a new world where a nonstate enemy infiltrates society
and targets our citizens. Our enemy does not acknowledge that while at
war soldiers must wear uniforms, carry their weapons openly, obey a
chain of command, and treat captives--especially civilian captives--
humanely. What they do is cut their heads off. They don't hide the
fact.
The nightmare that began on September 11 has not ended. We watch
daily as our enemy attacks our soldiers who are risking their lives and
limbs to better the lives of the citizens of Iraq and Afghanistan and
drive out terrorist cells. Gone are days when our soldiers were able to
face the enemy on the battlefields, eye-to-eye. Today, enemy combatants
launch surprise attacks by hiding among civilians and behind the bodies
of the wounded. Gone are the days when combatants understood how
important it was to protect civilians from harm. Enemy combatants today
brutally and repeatedly behead innocent civilians.
As our leaders first faced the aftermath of September 11, a dark
reality set in: Our enemy would not play by the rules that civilized
people and nations have developed over the course of history. Our
leaders needed to understand exactly what our laws required and what we
needed to do to survive in this new world we faced. They needed to make
strong policy decisions based on our country's domestic laws and
international obligations.
First, our leaders needed to understand who we were fighting. Under
customary international law, civilians are not allowed to engage in
combat. Because soldiers are not supposed to target civilians in
battle, it is essential that civilians are distinguishable from
combatants. If civilians wish to be protected from harm, they must look
different than combatants; therefore, every person who wishes to engage
in combat and if captured receive the protections accorded to prisoners
of war by the Third Geneva Convention, they must fulfill four
conditions: that of being commanded by a person responsible for his
subordinates; that of having a fixed distinctive sign recognizable at a
distance; that of carrying arms openly; and that of conducting their
operations in accordance with the laws and customs of war. We saw none
of that.
If someone engaged in combat does not follow these rules, he or she
is an illegal combatant. Illegal combatants have long been recognized
by state practice in the law of war field. In Ex parte Quirin, the U.S.
Supreme Court held that ``by universal agreement and practice the law
draws a distinction between the Armed Forces and the peaceful
populations of belligerent nations and also between those who are
lawful and unlawful combatants.''
Furthermore, the state practice of the United States does not
evidence any understanding of a customary international law norm
extending the Geneva Convention and prisoner-of-war treatment to
combatants who commit terrorist acts. Instead, international law
regards such individuals as illegal combatants who cannot claim the
protection of the laws of war that extend to legal combatants.
Only lawful combatants, members of fighting units who comply, again,
with the four conditions--being commanded by a person responsible for
subordinates; having a fixed distinctive sign, recognizable at a
distance; carrying arms openly; and conducting their operations in
accordance with the laws and customs of war--are license to engage in
military hostilities. Only those who comply with these four conditions
are entitled to the protections afforded to captured prisoners of war
under the laws and usages of war.
In fact, the denial of protected status under the laws of war has
been recognized as an effective method of encouraging combatants to
comply.
As we hear those opine about what has gone on, I ask the American
people to think about it. Who are these people who are killing our
soldiers? Who are these people who are blowing people up? Who are they?
They meet none of the criterion for a legal combatant.
How has the President applied these principles to the War on Terror?
In the February 7, 2002, Order on the Humane Treatment of al-Qaida and
Taliban Detainees, President Bush stated unequivocally that all
detainees are to be treated humanely, ``including those who are not
legally entitled to such treatment.'' Therefore, even though many of
the fighters our soldiers encounter are not entitled to prisoner-of-war
treatment, they are still being treated humanely.
Furthermore, the President has unequivocally stated the Third Geneva
Convention applies to detainees captured in Iraq. Even those Iraqi
prisoners who do not meet the four requirements to receive POW status
are subject to an appearance before a Third Geneva Convention Article 5
tribunal to determine their status. Prior to that, they must receive
POW protection until their status is determined.
Second, while the President agrees with the Department of Justice
that he has the authority under the Constitution to suspend Geneva, as
between the United States and Afghanistan, he has declined to do so and
has stated that the provisions of Geneva apply to our present conflict
with the Taliban. However, common Article 3 of Geneva, and article 4,
POW status, do not apply to the Taliban because they are unlawful
combatants.
Finally, none of the provisions of Geneva apply to the conflict with
al-Qaida in Afghanistan or elsewhere. Al-Qaida detainees are not
prisoners of war but are unlawful combatants.
Next, the administration officials acknowledge that there could be
circumstances where detainees hold information that could literally be
a matter of life or death for thousands or even millions of American
citizens. Judge Gonzales needed to understand what we are allowed to do
under the laws of our Nation to save the lives of our people.
Therefore, Judge Gonzales sought the legal expertise of the Department
of Justice--not his opinion, but the Department of Justice's opinion--
to understand the definition and meaning of torture in the United
States anti-torture statute.
This request by Judge Gonzales did not in any way indicate the desire
of the administration to use torture. It is a far reach to claim it. As
a matter of fact, it is absolutely untrue to claim it. In fact, the
official position of the administration is that neither torture nor
inhumane treatment are to be used against anyone by the United States
regardless of whether they have prisoner-of-war status or not. Because
the administration's position is so strong, it was critical that the
President and his advisers fully understand what constitutes torture so
that no lines would be crossed.
What does all this mean? Members of the Taliban and al-Qaida
detainees do not receive the luxuries afforded prisoners of war because
they are unlawful combatants. Iraqi fighters, even if they are
terrorists, and most are, receive prisoner-of-war status until they
receive a hearing before an article 5 tribunal to determine their
status. None of these detainees are to be tortured or otherwise treated
inconsistently with U.S. constitutional principles.
It would have been irresponsible for Judge Gonzales to have not
sought to understand the legal rights of enemy combatants and the law.
He had a duty
[[Page S730]]
to the President and to the United States to understand these concepts
and pass those on to the President in his private executive position as
legal counsel to the President.
We all went to sleep in a different world on September 11, 2001, very
different than the one we lived in the night before. Our leaders needed
to understand our domestic and international obligations well to
respond to the new needs of our country. Alberto Gonzales should not be
faulted for doing his duty for his client, the President of the United
States. He is well qualified to serve as a U.S. Attorney General, and
he should be confirmed.
I also conclude by saying the following: In late November, I came to
Washington to go through a process of orientation as a new Senator in
this body. The message I heard from the other side of the aisle is, We
want cooperation. We want bipartisanship. We do not want to politicize.
The opposite of that is happening at this very moment in this body.
Here is a good man who has demonstrated tremendous ability through his
life. Everyone says he is well qualified. Everyone knows he will make a
great Attorney General. The fact is, politics is getting in the way of
his confirmation.
I urge my fellow Members in this body to support and confirm him as
the next Attorney General of the United States.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the Senator from
Michigan is recognized.
Ms. STABENOW. Mr. President, I rise today to oppose the nomination of
Judge Alberto Gonzales to be the Attorney General of the United States.
The Attorney General is the chief law enforcement officer for our
country with tremendous legal powers. He or she is responsible for
enforcing our laws and for making important decisions on how they will
be interpreted. The Attorney General can decide what person will be
charged with a crime or detained. This is a job that requires sound
legal judgment and impartiality because the Attorney General's duty is
to uphold the Constitution and the rule of law.
But this job is not just about our laws; it is also about the ideals
of our country. It is about what we stand for. It is about our freedom
and liberty and justice as embodied in our Constitution. It is about
representing these fundamental types of democracy, not just to
Americans but to the world.
During the inauguration, we heard the wonderful words from President
Bush about the cause of freedom. I was pleased to hear him talk about
our history as a country that has led the world in the cause of
freedom. These are the ideals that our children learn about every day.
We should be proud of our history. But our words must match our deeds.
I am deeply concerned not only about Mr. Gonzales's judgment, but
that his confirmation would send the wrong message to the world about
the value we place on our basic constitutional rights. Judge Gonzales
has played a prominent role in shaping this administration's policy on
detention and torture. Some of these policies have not only damaged our
country's reputation and moral leadership, but they have also placed
our troops in greater danger. Judge Gonzales holds legal positions that
violate treaties the United States has ratified and supported, and he
helped to provide the justification for the treatment of prisoners that
led to the abuses at Abu Ghraib.
He also advocated and advised the President on legal positions that
circumvented the Geneva Conventions. In following Judge Gonzales's
advice to circumvent the Geneva Conventions, this administration
clearly set the stage for the abuses at Abu Ghraib, the torture
scandal, and this opinion ignored decades of U.S. support for humane
treatment of prisoners. Such a reckless disregard for human rights laws
not only violates international law but, again, it puts our own troops
at additional peril.
The Convention Against Torture, which was ratified by the United
States in 1994, prohibited torture and cruel, inhumane or degrading
treatment. The Senate defined such treatment as abuse that would
violate the 5th, the 8th, or 14th amendment to our Constitution. This
standard was formally accepted by the Bush administration.
During Judge Gonzales's testimony it became clear that under his
watch the administration twisted this straightforward standard to make
it possible for the CIA to subject detainees to practices such as
simulated drowning and mock execution. The standard he approved defined
torture as inflicting pain equivalent to ``serious physical injury,
such as organ failure, impairment of bodily function or even death.''
In his testimony he told the committee that these constitutional
amendments do not apply to foreigners held abroad; therefore, in his
view, the torture treaty does not bind intelligence interrogators
operating on foreign soil.
Such a distortion is unacceptable and, again, is dangerous to our
troops who are serving us on foreign soil.
How can someone who has sought to find the loopholes in the law be
entrusted to be the chief law enforcement officer of our land?
These attempts to circumvent the very laws he will be called upon to
enforce not only show a reckless disregard for the law, put our troops
in further danger, but they have damaged our position in the world.
Since World War II, the United States has been a moral authority in the
world, an effective leader on the world stage. Such damage not only
tarnishes our reputation in the world, but it negatively affects our
very ability to enlist our allies in the critical war on terror. How
can we hope to reclaim the moral leadership we once had with this
person as our chief law enforcement officer? What signal does this send
to the world?
For more than 10 years, Judge Gonzales has served as President Bush's
legal counsel, but now he must represent a higher authority, the
Constitution of the United States of America, and he must do so with
integrity and independence from his former long-term client.
The Attorney General of the United States cannot be a spokesperson
for the President. The Attorney General is the highest ranking law
enforcement officer in the land. The Attorney General has
responsibilities for enforcing, interpreting, and creating the laws
that govern our democratic way of life in the United States. It is,
therefore, imperative that the person who holds this position be
someone who has the confidence of the American people. Our laws must
come first. He or she must look not for the political rationale or the
loophole but, rather, always seek the appropriate legal path, as guided
by the U.S. Constitution. This is the people's attorney.
I was disturbed that during the confirmation hearings Judge Gonzales
restated his belief that the Commander in Chief can override--can
override--the laws of our country and immunize others to perform what
would otherwise be unlawful acts. This is wrong. No one person can
stand above the laws that govern our Nation. The rule of law applies to
every one of us, including the President of the United States.
I had hoped that during his testimony before the Senate Judiciary
Committee, Judge Gonzales would have used the opportunity to address
these questions and concerns, and that he would have also used it as an
opportunity to demonstrate an understanding that the Attorney General
does not represent the President but, rather, the American people, the
laws of our Nation, and the Constitution of the United States.
I am troubled by the many questions that remain by his refusal to
state categorically that the President may not authorize the use of
torture in violation of U.S. law and the Geneva Conventions.
On Sunday, Iraqis took an important step toward democracy by holding
their first free elections in decades. We applaud and celebrate with
them. Let's not take a step backwards now in America by confirming a
nominee who does not represent the fundamental rights that the word
``democracy'' represents.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
[[Page S731]]
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BROWNBACK. Mr. President, I rise in support of Judge Gonzales,
President Bush's nominee to serve as our Nation's 80th Attorney
General. I want to address a few points that have been brought up today
and discuss those a little bit. We will be able to vote on this nominee
this week. I think he is going to make an outstanding Attorney General.
He has been an outstanding lawyer in various capacities throughout his
professional career already. He is going to continue to show that. I
want to articulate why that is going to be the case.
His background is well known. I serve on the Judiciary Committee. We
had lengthy hearings with Judge Gonzales. We had multiple rounds.
Everybody on the committee got to ask and have answered every question
they asked. This is a nominee who has been through the question-and-
answer process on a lengthy basis. It is time we move forward. The
President needs an Attorney General. This is the office that heads so
many of our functions that are very important in the war on terrorism,
and we need to move forward with this.
It is well known to people who have been watching this debate. As the
son of migrant workers from a family of seven children, the first to go
to college, he is the epitome of the American dream. He has a law
degree from Harvard. He could have done anything, yet he chose a path
of public service. And he is an extraordinarily good public servant--
humble, wise, has a tremendous ability to persevere through difficulty.
Through his work as chief counsel to the President, Judge Gonzales
has become seasoned in national security issues and legal challenges
that are essential to the job of Attorney General. He is unquestionably
qualified for the position, and I have no doubt he will be confirmed by
the Senate this week and should be confirmed and should be given our
strong support.
I am deeply saddened by many distortions and unjustified criticisms
of Judge Gonzales's nomination that he has had to go through and to
face. Even if you disagree with the administration in the war on
terror, Judge Gonzales should have been treated during the nomination
process with a level of dignity and respect by this body in going
through the discussion. One can say: I believe that this is a good
nominee, that this is a good person, and they should look at those
criteria and those qualifications and not say: I am voting against him
because I have a disagreement with the administration on a policy
issue.
Undoubtedly, there are disagreements on policy issues. Undoubtedly,
there are a number of people who disagree with Judge Gonzales on how he
would view policy issues. But that is not the issue in the confirmation
process. The issue is, is this person qualified to hold this job? Will
he do a good job? The President, in winning the election, does need to
have his people in key positions to be able to carry out policies that
he put forward, that the American public has passed on in the election
process.
In the past few weeks, there are some who have done all they can to
associate Judge Gonzales with the word ``torture'' and the disturbing
pictures from Abu Ghraib because he offered a legal memorandum stating
that the Geneva Conventions do not apply to members of al-Qaida. These
kinds of accusations are factually inaccurate and only serve to bring
down the reputation and morale of our Armed Forces who are serving
honorably and nobly in defense of this Nation. As we saw over this past
weekend, there was an incredible vote by the Iraqi people that was so
heartening to myself and to all of America because this is something we
have fought for, that our young men and women have died for, to give
them freedom. Now they have it, and they are expressing it.
Clearly, there are going to be problems ahead and difficulties, and
it is not going to be anything close to a perfect democracy. Ours isn't
yet, although we continue to aspire and are moving closer and closer
toward that end. They are going to have difficulties. Yet they have
made a step that would not have happened had our young men and women
not put their lives on the line and the President made bold decisions
that this body authorized to go to war to remove Saddam Hussein from
power. Judge Gonzales has been part of the Bush team and the White
House. He has done a good job there, and he will do an excellent job as
Attorney General.
I wanted to take a few minutes to set the record straight on some key
issues. Some have questioned Judge Gonzales's independence from the
President. Judge Gonzales understands that his role as Attorney General
of the United States will be very different from his role as counsel to
the President. He has made that quite clear in his confirmation
hearing. He stated:
I do very much understand that there is a difference in the
position of Counsel to the President and [that of] Attorney
General of the United States. . . . As counsel to the
President, my primary focus is on providing counsel to the
White House and to White House staff and the President. I do
have a client who has an agenda, and part of my role as
counsel is to provide advice that the President can achieve
that agenda lawfully. It is a much different situation as
Attorney General, and I know that. My first allegiance is
going to be to the Constitution and to the laws of the United
States.
Upon confirmation, Judge Gonzales will be ready and able to take on
the independent responsibilities of the Attorney General. His service
as a Texas Supreme Court justice proved his ability to be independent
from then-Governor and now-President Bush. At his confirmation hearing,
he indicated he would be very sensitive to any perception that law
enforcement was being politicized by the White House and would seek to
avoid such perceptions by ``talk[ing] to the career staff . . . to make
them understand that [he's] coming to th[e] department with a clear
understanding of the distinct roles between the two jobs.
Remember, this is a gentleman who earlier in his professional career
served on the Texas Supreme Court, a Supreme Court of one of the States
of United States. He understands a different position. He has been in
an independent position. He understands these different roles and the
places they serve in Government. And he understands how they work and
he will abide by them.
Also at his hearing he emphasized the ``very restrictive contacts
policy between the [Justice] Department and the White House, limiting
who from the White House can contact the Department of Justice,''
saying that ``what we don't want to have is people from various
divisions within the White House calling the Department about an
ongoing investigation.''
He offered his commitment to ensure that the contacts policy is as
strong as it should be. He also offered his commitment to abide by that
policy. Judge Gonzales has stated his commitment to respecting and
fostering the professionalism of the career employees of the Department
of Justice. In response to written followup questions from the Senator
from Massachusetts, Judge Gonzales said he would ``do everything in
[his] power to reassure the career professionals at the Department and
the American people that [he] would not politicize the Department.''
There is a direct statement from Judge Gonzales of how he would
operate.
Judge Gonzales emphatically endorsed the proposition that ``all
government lawyers should always provide an accurate and honest
appraisal of the law, even if that will constrain the administration's
pursuit of desired policies.''
Again, that is another direct quote from Judge Gonzales in response
to a question by a Member of the Senate.
Judge Gonzales also suggested in his response to the Senator from
Massachusetts that his close personal relationship with the President
would make it easier for him to be honest and forthright with the
President. So he has a personal relationship that he can build on as
well, but he understands the professional relationship. He is a lawyer,
and he understands the role in which he would be serving.
I would like to make it clear that on the issue of the Geneva
Conventions, despite what you are hearing today, the United States is
committed to complying with the governing law and treaty obligations in
the war on terrorism.
There have been some criticisms of Judge Gonzales regarding the
Geneva Conventions. Some have claimed that
[[Page S732]]
Judge Gonzales finds the Geneva Conventions to be an impediment, a
hindrance to our present efforts, quaint and obsolete in important
respects. Others are claiming that the administration had refused to
apply the Geneva Conventions to the conflict in Afghanistan:
Afghanistan was the first time in which we said that it did
not apply to a conflict.
Senators have accused the administration of taking its obligations
under the Geneva Conventions lightly.
The administration has fully and faithfully adhered to its
obligations under the Geneva Conventions. Judge Gonzales's critics meld
together two different issues: First, whether the Geneva Conventions
apply to a particular armed conflict and, second, whether particular
individuals in that conflict are entitled to a particular protected
status under one of the Geneva Conventions. The mere fact that the
Geneva Conventions apply to a conflict between two nations does not
mean that all persons involved in that conflict qualify for a
particular status, such as prisoner-of-war status, under the terms of
the conventions.
The administration and Judge Gonzales have been very clear in
separating the two issues. But as demonstrated in the claims made
above, Judge Gonzales's critics have sought to confuse the issue by
mixing the two questions.
The administration did not determine that the Geneva Conventions did
not apply in enemy conflict in Afghanistan. Rather the President
determined that the Geneva Conventions do, indeed, apply to the
conflict in Afghanistan, but that neither al-Qaida terrorists nor
Taliban fighters qualify for prisoner-of-war protections under the
Geneva Conventions.
This obvious distinction is grounded in the very text of the Geneva
Conventions. This has been ignored by Judge Gonzales's critics. The
judge explained the distinction quite clearly in his testimony before
the Judiciary Committee. He stated this:
There was a decision by the President that Geneva would
apply with respect to our conflict with the Taliban.
However--and I believe there is little disagreement about
this as a legal matter--because of the way the Taliban fought
against the United States, they forfeited their right to
enjoy prisoner-of-war legal protections.
Judge Gonzales has repeatedly affirmed his respect for the Geneva
Conventions. He has worked to ensure that we protect Americans from the
threat of terrorism, while treating al-Qaida and Taliban detainees
humanely and, to the extent appropriate and consistent with military
necessities, in keeping with the principles of the Geneva Conventions.
Judge Gonzales has also stated further at the hearing:
I consider the Geneva conventions neither obsolete nor
quaint.
In closing, we have an outstanding nominee in judge Gonzales. His
personal background is one of incredible accomplishments. His ability
and his legal mind are excellent. His commitment to public service is
tremendous. The faith that people have in him is there and is what we
need in a person who is Attorney General of the United States. We need
to have a person there that people look up to and say this is a person
who will uphold the law, who is an upright individual, and will do all
he can to make this a better place. Judge Gonzales will do all of those
things and he will do it in a tremendous fashion.
I don't think this is a particularly helpful or good debate, where we
question a person's ability to stand independent, or to do these other
things, when that person stated clearly he would and his past track
record has shown that he will.
For those reasons, I hope we can move expeditiously through this
debate. Let people question his ability if they choose, but let's have
the vote and get Judge Gonzales approved to serving this country in
this important time and in this very important job.
Mr. KOHL. Mr. President, in many ways, Judge Gonzales's life story is
the American dream--rising from humble beginnings to being nominated to
be our Attorney General. Yet, Judge Gonzales must be evaluated on more
than his life story; indeed, the decisions he has made in his public
capacity must be closely scrutinized. We are, after all, being asked to
confirm him as the Nation's chief law enforcement officer.
We begin with a standard of granting deference to the President to
surround himself with the people he chooses for his Cabinet. But that
deference is not absolute. The Attorney General is not the President's
lawyer, but the people's lawyer. As I listened to the nominee's answers
at his confirmation hearing, read his responses to our additional
questions, and examined the facts, I found that my deference was
challenged. Indeed, we are being asked to confirm the administration's
chief architect of its legal policies in the war on terror--policies
with questionable legal support that have proven harmful to the conduct
of the war and injured our reputation abroad.
We must expect more from our Attorney General. The war on terrorism
has proven more clearly now than ever before that the Justice
Department's mission is too central to our democracy to be entrusted to
someone who leaves us with such doubt. As the President's chief legal
officer in the White House, Judge Gonzales's advice sadly fell short
time and again. For these reasons, I must vote no.
A closer examination of the administration's legal policies
demonstrates why we have reached this conclusion. Over the strong
objections of Secretary of State Powell, career military lawyers, and
others with great expertise, Judge Gonzales advised the President to
deny prisoners the protections of the Geneva Conventions. Others warned
Judge Gonzales that this advice could undermine military culture,
generate confusion about how to treat detainees, and ultimately lead to
abuse. We now know that their worst fears were warranted.
His role in shaping the policy on torture was similarly regrettable.
The ``torture memo'' that was drafted at Judge Gonzales's request stood
as administration policy for 2 years. The Defense Department used the
memo's disturbing conclusions to justify abusive interrogation
techniques.
These policies have consequences. To defeat terrorism, the 9/11
Commission concluded that we must win the war of ideas in the Muslim
world. The importance of this recommendation cannot be emphasized
enough. Undermining our fundamental commitment to due process, failing
to honor our international agreements, and flouting our laws
prohibiting torture and war crimes harms that effort.
Judge Gonzales's performance at the hearing did little to alleviate
our concerns. We heard him condemn torture, generally, but refuse to
discuss what he thought constituted torture. We heard him commit to
honor our international agreements but waffle when asked when they
apply. We heard him denounce the abuses that were committed in Iraq but
refuse to discuss whether they might be illegal. We heard him commit to
hold anyone involved responsible for their actions but repeat
predetermined conclusions about what happened and who was to blame.
When asked by members of the Judiciary Committee about his views on
these policies and his roll in shaping them, Judge Gonzales either
could not remember or was nonresponsive. When asked about whether he
thought torture was ever productive, after more than 2 years of
participating in discussions on the subject, he told the Committee, ``I
have no way of forming an opinion on that.'' He admits to attending
meetings where specific methods of torture were discussed but told the
committee that he cannot recall anything that was said. His evasiveness
was not an encouraging preview or his ability to be candid with the
American people about the basis of the decisions he will be responsible
for making as our Attorney General.
This has not been an easy decision to reach. We hope that if Judge
Gonzales is confirmed, he will prove us wrong. For now, however, our
doubts are too great to support his nomination.
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