[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.

                          ____________________