[Congressional Record Volume 151, Number 9 (Wednesday, February 2, 2005)]
[Senate]
[Pages S834-S873]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


        NOMINATION OF ALBERTO R. GONZALES TO BE ATTORNEY GENERAL

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
resume executive session for the consideration of Executive Calendar 
No. 8, which the clerk will report.
  The bill clerk read the nomination of Alberto R. Gonzales, of Texas, 
to be Attorney General.
  The PRESIDENT pro tempore. Under the previous order, the time until 
4:30 p.m. shall be equally divided for debate between the Senator from 
Pennsylvania, Mr. Specter, and the Senator from Vermont, Mr. Leahy, or 
their designees.
  The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, the division basically is going to be 
from 9:30 we will have Republican speakers and from 10:30 to 11:30 
there will be Democratic speakers and then we will be going back and 
forth.
  I am pleased to be able to open today's discussion on the nomination 
of my friend, Alberto Gonzales. I am pleased because I know Alberto 
Gonzales personally and have been able to work with him both during the 
time he was a distinguished supreme court justice in my home State of 
Texas, and as White House Counsel.
  As the senior Senator from Texas and formerly the junior Senator from 
Texas, I have had a lot of commerce with Alberto Gonzales. I can tell 
the American public without reservation: He is honest. He is a straight 
shooter. He has told me some things I didn't want to hear on more than 
one occasion. But I was absolutely assured that he was doing what he 
said he was going to do and that he had reasons for what he did.
  On the other hand, I have been able to persuade him on issues where 
our views differed, because he listened. He is not rigid and 
impenetrable, as some people have described him. Again, he is a person 
who listens, who is thoughtful, who is a straight shooter, and someone 
for whom I have the utmost respect.
  I am proud to be able to start the floor debate today on Alberto 
Gonzales, who was nominated and is to be confirmed as Attorney General 
of the United States.

[[Page S835]]

  Alberto Gonzales is the American story. He is the American dream. He 
is the American dream, not because he wants his piece of the pie. He is 
the American dream because he worked hard, never complained. Without 
many advantages growing up, he persevered, maintained a positive 
spirit, and it is fair to say, Alberto Gonzales made it. He made it on 
his own because he prepared himself and because he didn't act like a 
victim. He understood that this country is filled with opportunities 
and he took responsibility and seized that opportunity.
  He grew up in Humble, TX. Alberto Gonzales was one of seven siblings 
living in a two-bedroom house that was built by his father and his 
uncles. His father was a migrant worker, as was his mother. They did 
not have an education beyond elementary school. But Judge Gonzales 
learned through his parents' example that, with dreams and commitment 
and hard work, you can be rewarded in this country.
  He excelled in the public schools around Houston, TX. He was a star. 
He was a star on his own merit because he studied, worked hard, and was 
always looking for that extra thing he could do to make himself better. 
Because of that, he was accepted into one of our Nation's most 
prestigious universities, Rice University in Houston, TX.
  He was not only a graduate of a great university, he was the first 
person in his family to graduate from college and from a great 
university such as Rice. From there he went on to Harvard Law School, 
where he earned his law degree. He served in the Air Force. He was a 
partner at Vinson & Elkins, a prestigious international law firm. He 
then became general counsel to Governor George W. Bush, and that is 
where they came to have the bond that has been so important in their 
relationship through the years.

  Then-Governor Bush appointed Alberto Gonzales to be secretary of 
state of Texas. The secretary of state is the person in charge of 
running elections, making sure we have fair elections in Texas and that 
the elections are well publicized so we would have a strong voter 
turnout. He also served as Governor Bush's liaison to Mexico.
  It has become a tradition of Governors in our State to have a 
secretary of state who will work on border issues and issues with 
Mexico, because that is such an important bilateral relationship for 
our State as well as our Nation.
  Then Governor Bush appointed Alberto Gonzales to the Supreme Court of 
Texas. He had a distinguished career. He gained experience and respect 
every step of the way. When the George W. Bush became the President, he 
brought Alberto Gonzales with him to Washington to be his White House 
Counsel.
  As White House Counsel, the President wanted someone he could trust 
and someone who knew the law, someone he knew was smart, would do 
thorough research, would not shoot from the hip. He wanted someone who 
could be a steady hand at the wheel in the White House Counsel's 
Office. So, Alberto Gonzales came to the White House with the President 
and did an outstanding job as White House Counsel, and adviser to the 
President. He made sure the President knew all of the options and his 
perspective, but also provided him with the views and perspectives of 
others. This is very important.
  I think Alberto Gonzales sometimes, because he is so fair-minded, 
would give the President options even though he personally disagreed 
with some of them. That is what made him such a trusted lawyer for the 
President. He wanted the President to make the decisions and he wanted 
the President to make the decisions with the best possible information 
he could have--whether he believed in that particular option or not. 
His loyalty to the President was, of course, absolute.
  Judge Gonzales answered a very important question about his service 
as White House Counsel as opposed to the different role he would have 
as Attorney General. I think it is important because I think some of 
the criticism that has been made in the Senate Judiciary Committee and 
on the floor has revolved around the role of a White House Counsel and 
the very different role that the Attorney General of the United States 
would play. Alberto Gonzales understands the difference. He knows there 
is a difference. He agrees that there is a difference.
  As White House Counsel he had one role, loyal adviser to the 
President of the United States, and he fulfilled that role superbly. He 
gave the advice; he gave different options; he let the President make 
the decisions. But he knows that the Attorney General of the United 
States is not just loyal to the President. Of course, he is in the 
President's Cabinet. Of course, he will be loyal to the President. But 
that is not his primary function. I want to read his response because 
it addresses exactly what the Attorney General's role should be, in my 
opinion. I agree with Alberto Gonzales, and I think he is right on the 
mark.

       I do very much understand that there is a difference in the 
     position of Counsel to the President and that of the 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 so 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 the laws 
     of the United States.

  Judge Gonzalez in a written response later said: ``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.''
  Judge Gonzales said if he becomes Attorney General, he will no longer 
represent only the White House, he will represent the American people. 
He is absolutely right on that point. That is what all of us expect and 
that is what he intends to deliver.
  I think it is the most important point.
  As we look at history and as we look at past Attorneys General, 
sometimes the impression is that an Attorney General is only loyal to 
the President. Of course, the Attorney General will be loyal to the 
President, but that will not override his loyalty to the Constitution, 
the law, and the American people.
  Of course, the President too wants to do what is right for the 
American people. But the Attorney General is the one who will make the 
determination if something is lawful. And I know that Judge Gonzales 
will do a great job in representing the law and the American people.
  I am disappointed some have suggested that maybe Judge Gonzales has 
not been responsive enough in his confirmation hearings about his role 
as White House Counsel. He was at the committee hearings for over 6 
hours of questioning, and 450 questions were submitted to him after the 
hearings. He answered all of them--over 200 pages of single-spaced 
responses to Senators.
  To put this in context, President Clinton's nominee, Janet Reno, 
received 35 questions. Alberto Gonzales received 450 questions.
  I think it is a very important point to make that Judge Gonzales has 
been forthcoming. He has answered every question, either in the open 
forum, or in 6 hours of hearings, or in the 200 pages of written 
answers to questions that were submitted after the hearings by 
Senators. No one can claim this man has not been forthcoming.
  In an article in the December 25, 2004, Christmas Day, Houston 
Chronicle entitled, ``A Dem on Gonzalez,'' a Democrat and former 
colleague of Judge Gonzales, Lynne Liberato, now a partner in the 
Houston office of Haynes and Boone wrote: `` . . . in the back of my 
mind [over the past four years] I have taken solace in the fact that 
the President had an adviser like Al. Certainly, I wish he were a 
Democrat, appointed by a Democratic President. But we lost. This 
President has the right to appoint the attorney general, and I do not 
think the President could have done better.''
  In addition, I have to say how very impressed I am with the new 
Senator Salazar from Colorado, who I am told made a speech in his 
caucus yesterday in which he said, Please vote for Alberto Gonzales. I 
do not know firsthand what he said or exactly what his words were, but 
Senator Salazar has taken a position on principle. He took a position 
on principle on behalf of Dr. Condoleezza Rice and has done so with 
Alberto Gonzales. I must say I respect and admire his willingness to 
step up to the plate and talk about the record

[[Page S836]]

and the principle of giving the President his nominee, and I commend 
Senator Salazar for that bipartisan effort.
  I hope my colleagues will not use this debate to continue to attack 
the President. I hope today is filled with speeches about Alberto 
Gonzales, about his qualifications, and about his background. I hope we 
will stay on the issue of Attorney General of the United States. I have 
seen the rhetoric go in a different direction, both for Secretary of 
State Dr. Condoleezza Rice and for our nominee for Attorney General, 
Alberto Gonzales. I don't think this is the time to be attacking the 
President. There is plenty of opportunity to disagree with the 
President of the United States. Our duty today in this body is to give 
advice and consent on the nomination of Judge Alberto Gonzales to be 
Attorney General of the United States.

  I am very hopeful we will be able to take this opportunity to do the 
right thing, to confirm Judge Gonzales as Attorney General of the 
United States, the first Hispanic American who will hold the office of 
Attorney General. He is a remarkable leader. He has shown great 
strength and resolve during a difficult time for our country. 
Furthermore, he has a record of public service over years that shows 
his remarkable character. He is a man who will be a great Attorney 
General of the United States.
  I think it is going to be a very important vote that we will see 
tomorrow.
  I hope during the debate yesterday the Democratic colleagues decided 
they will say their peace, hopefully on the merits or whatever they 
think of the qualifications of Judge Gonzales, and I hope the vote will 
come soon. We need to allow the President to fill his Cabinet so they 
can take over in a reasonable time frame.
  I hope we can have the full debate today. It would be my hope we 
would have an early vote tomorrow. If people do not have anything else 
to say, let us have a vote. Let us allow Alberto Gonzales to be 
confirmed and take the oath of office and get about the business of our 
country.
  There is no reason to hold him up. He is going to be confirmed. I 
think it was a mistake to hold Condoleezza Rice for hours and hours and 
hours. It was not the right thing for our country. I hope that for 
Alberto Gonzales we realize there is going to be a huge responsibility 
on his shoulders and he needs to be able to start. He needs to put a 
deputy in place, to see what is happening in the Department and have 
the time to make the appropriate adjustments. The Attorney General of 
the United States is essential to an efficient Justice Department. 
There are many issues he faces. The sooner he gets started, the better.
  I hope the President's State of the Union speech tonight will allow 
him to lay out his case for the future of our country, and then I hope 
we can early tomorrow confirm Alberto Gonzales to be Attorney General 
of the United States.
  I am very pleased one of our new Senators from the State of Florida 
has arrived on the floor. He is certainly a person, having served in 
the President's Cabinet, who knows how important it is to have a fair 
discussion and then go forward.
  I would like to yield the floor to Senator Martinez.
  The PRESIDING OFFICER (Mr. Vitter). The Senator from Florida is 
recognized.
  Mr. MARTINEZ. Mr. President, good morning.
  I ask unanimous consent to deliver a portion of my remarks in 
Spanish, and that a copy of my speech in English and in Spanish appear 
in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MARTINEZ. Mr. President, I rise today in support of the 
nomination of Judge Alberto Gonzales to be our next Attorney General of 
the United States.
  As a freshman Senator, I was frankly hoping to wait a little longer 
before speaking for the first time on the Senate floor. It is a 
privilege I take very seriously. However, I could not fail to speak in 
defense of Judge Gonzales. I am disappointed that he has been the 
subject of such partisan attack, and today I rise in the defense of a 
good man and a good friend.
  Al Gonzales is a very dedicated public servant and exceptionally 
qualified to serve our Nation as our next Attorney General.
  In January of 2001, President Bush chose Judge Gonzales to be Counsel 
to the President, and he has served his Nation well in that position.
  Judge Gonzales was appointed to the Texas Supreme Court in 1999, and 
from December of 1997 to January of 1999, he served as Texas's 100th 
Secretary of State.
  I am so proud.
  Judge Gonzales also has received a number of awards. He was inducted 
into the Hispanic Scholarship Fund Alumni Hall of Fame in 2003, and he 
was honored with the Good Neighbor Award from the United States-Mexico 
Chamber of Commerce.
  I was honored when he and I both received the President's awards from 
the United States Hispanic Chamber of Commerce and from the League of 
United Latin American Citizens, probably the largest Hispanic 
organization in America.
  These are just a handful of many professional accolades Judge 
Gonzales has been awarded over the course of his very distinguished 
career.
  I know a lot has been said about Judge Gonzales's life story. It is a 
story of the fulfillment of the American dream. It is a story that 
resonates with all Americans, but especially with Hispanic Americans. 
We view his story with pride and many view it with hope for their own 
lives.
  As a fellow Hispanic American, I want to put this nomination of Judge 
Alberto Gonzales in a very specific perspective. Our Hispanic community 
has broken key racial barriers in both Government and industry. I am so 
proud to have been part of that progress, thanks to the help of many 
who have opened doors and others who have been enlightened enough to 
make opportunities available to Hispanic people in America.
  I was honored to serve as this Nation's twelfth Secretary of Housing 
and Urban Development. I am thrilled to represent the great State of 
Florida as our Nation's first Cuban-American Senator. It is a wonderful 
honor, but I also feel a tremendous weight of responsibility from that 
very important opportunity.
  In the case of Attorney General, no Hispanic American has ever been 
in the position of Government at that level. No Hispanic American has 
ever served in one of the four premier Cabinet positions. I have sat at 
that Cabinet table, and I know what an immense privilege it is to sit 
in with the Counsel of the President of the United States. But I also 
know very well that there are four seats at that Cabinet table that 
have never before been occupied by a Hispanic. They are the Secretary 
of State, Secretary of the Treasury, Secretary of Defense, and Attorney 
General. These are the original Cabinet positions. These are the 
positions that are at the heart of the most important positions of our 
Government. Never in the history of our Nation has the Hispanic 
American or Latino had the opportunity to occupy that seat. Judge 
Gonzales will be the first Hispanic American to serve in one of the 
Cabinet's top four positions when he becomes our next Attorney General. 
This is a breakthrough of incredible magnitude for Hispanic Americans 
and should not be diluted by bipartisan politics.
  Judge Gonzales is a role model for the next generation of Hispanic 
Americans in this country--a role model to our young people who, 
frankly, have too few.
  Just this past weekend, Congresswoman Sue Kelly was relating a story 
to me of something that happened with her recently at a school she was 
visiting in her district. She told me of something that I know to be a 
fact; it has happened in my own life. She said, While I was visiting 
there, one of the young people came to me, a Latino, a Hispanic, a 
young person, and said to me, Do you know we now have our own Senator. 
That young person was speaking of me or perhaps of Senator Salazar from 
Colorado. But this young person knew and took pride in the fact that we 
were here as role models for them, as someone who could signal the 
opportunities that lie ahead in their own life. Attorney General 
Gonzales will resonate through the Hispanic community just as he has 
resonated throughout our community; that he has been the President's 
lawyer--not an insignificant thing for him to have done.
  He is already and will continue to be an inspiration to these young 
students.

[[Page S837]]

There will be Hispanic boys and girls across the country who will now 
aspire to be lawyers because of Judge Gonzales's example of what is 
possible and how it is possible that someone with his very humble 
beginnings could achieve all he has achieved if only they dare to dream 
in our great Nation.
  And to Hispanic Americans throughout our Nation:
  Y a los Hispano-Americanos a lo largo y ancho de esta gran nacion: 
tanto a nuestros ninos, como a nuestros estudiantes de Derecho y los 
padres y abuelos que han venido a America a crear una vida mejor para 
ellos y sus familias, hoy les tengo un mensaje:
  El Juez Gonzales es uno de nosotros. El representa todos nuestros 
suenos y esperanzas para nuestros hijos. Debemos reconocer la 
importancia de este momento--sobre todo para nuestra juventud. No 
podemos permitir que la politiqueria nos quite este momento que nos 
enorgullece a todos. Apoyemos a Alberto Gonzales.
  From our schoolchildren, to law students, to parents and grandparents 
who came to America to create a better life for themselves and their 
families in the United States, I have this message for you today: Judge 
Gonzales is one of us. He represents all of our hopes and dreams for 
our children and for all of us as Hispanic Americans. Let us 
acknowledge the importance of this moment, especially for our young 
people. We cannot allow petty politicking to deny this moment that 
fills all with such pride. Let us all support Alberto Gonzales.
  I am honored to have my first remarks on the Senate floor be in 
praise of a friend, Alberto Gonzales, to be our next and I think 
exceptional Attorney General. Not only have I known Mr. Gonzales as a 
colleague in government service where I have known of his incredible 
dedication, the incredibly long hours he has put in, the very difficult 
days we all faced in the days following the tragic moments after 
September 11 when our Nation was attacked, the tremendous weight of 
responsibility that fell on him in the months and years that came after 
that, but I look forward to casting my vote in the Senate for our 
Nation's first, and in this historic moment, our next Attorney General, 
the first Hispanic to occupy that office.
  I urge my colleagues to vote in favor of Judge Gonzales's nomination. 
I urge them to rise above the moment to see the greatness of this 
opportunity, to not lose this moment that we can all make history.
  We can all make history. I look forward to being a part of that with 
my vote for Judge Gonzales.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. McCONNELL. I congratulate our new colleague, Senator Martinez, on 
his initial speech in the Senate. I bet the Senator will be cited by 
Senator Byrd who is an encyclopedia of statistics. I am sure this is 
the first time we have had a bilingual speech in the Senate.
  I say to my colleagues, the Senator could not have picked a more 
important topic upon which to first speak on the Senate floor. We are 
grateful he is here. We listened carefully to every word, and we thank 
you for what you are doing for the nominee.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, while the Senator from Florida is still in 
the Senate Chamber, I congratulate him for his first speech in the 
Senate. I have come to know him as an exceptional public servant. It is 
fitting he should speak to this issue, the nomination of Judge Alberto 
Gonzales to be Attorney General of the United States in his first 
speech. Frankly, I am honored to follow his remarks. They will be not 
nearly as eloquent, but I hope, nevertheless, persuasive in support of 
Judge Gonzales's nomination.
  This is a historic opportunity for America, and especially for me and 
the constituents in my State, so many of whom are Spanish, are 
Hispanic, and can understand how significant it is for a young man to 
rise literally from Humble, TX, where Alberto Gonzales grew up, to 
reach the pinnacles of power in American Government. They know it does 
not come easy. Many of them have suffered the same kind of background 
that could limit a person like Alberto Gonzales but in his case did not 
because of the support and love of his family and the strength and 
fortitude that he characterizes and the hard work that enabled him to 
progress from these humble beginnings, literally in Humble, TX, all the 
way through our finest educational institutions into one of the finest 
law firms of this country, and eventually into government when then-
Governor George Bush discovered this fine young lawyer and asked him to 
fill a number of appointed positions in the State of Texas.
  I was struck by one of the stories that has probably been repeated. 
It bears repeating. Senator Salazar, in introducing Alberto Gonzales to 
the Judiciary Committee, on which I sit, for his hearing, related the 
story of how Judge Gonzales had recalled in his upbringing the fact 
that during his high school years he never asked his friends to come 
over to his house because, he said: Even though my father poured his 
heart into that house, I was embarrassed that 10 of us lived in a 
cramped space with no hot running water or telephone.
  That is the situation in which this young man grew up. Yet, as I 
said, he was the first person in his family to go to college. He ended 
up graduating from Rice. As a young man he sold pop in the grandstands, 
dreaming one day of attending that university and graduated from 
Harvard Law School. After joining a prestigious law firm in Texas, he 
caught the eye of George Bush, who appointed him general counsel and 
then secretary of state, and eventually to the Supreme Court of the 
State of Texas and, of course, as counsellor to the President of the 
United States when he was elected President.
  President Bush has had the opportunity to take the measure of this 
man and to work with him over many years and to appreciate the talents 
he can bring to the Department of Justice of the United States. 
Frankly, it is for that reason I think even though some on the other 
side of the aisle have reservations about Judge Gonzales, they 
certainly ought to give this man the benefit of the doubt. If anyone 
deserves the benefit of the doubt it is a person like Alberto Gonzales.
  Is he perfect? No; none of us are. It seems to me the President, 
having known this man for so long and having relied upon him 
personally, would be given some deference in the selection of his 
nominee, especially given the fact that against great odds Alberto 
Gonzales has achieved so much in his life.

  One word about some of the opposition. I don't think people who are 
watching should be overly concerned about the attacks relating to the 
subject of terror with respect to Judge Gonzales. They have nothing to 
do with Judge Gonzales. Their way of articulating frustration and 
opposition to the President's policies with respect to the war in 
Iraq--and it is unfortunate that sometimes these political statements 
and opposition are reflected in the context of a nominee for office--
this is an opportunity for members of the opposition to make their case 
against the President when they have an opportunity to speak to the 
Secretary of State's nomination or the Attorney General's nomination or 
other public officials.
  But it is too bad for those public officials because, as I said in 
the case of Alberto Gonzales, most of what has been said has nothing to 
do with him. He is accused in one case of offering advice to the 
President with respect to a treaty, and that advice was absolutely 
correct. In the other case, he is accused regarding the content of a 
memo he did not author, and therefore it is not his responsibility.
  Do not be deceived by some of these discussions that might cause you 
to wonder what does this subject of terror have to do with Judge 
Gonzales. In this case, the answer is essentially nothing.
  Back to the point that was the central theme of the Senator from 
Florida, there are a lot of people in this country who are qualified to 
be Attorney General of the United States--a relatively small number but 
nevertheless a lot of people the President could have chosen. It is 
significant he chose Alberto Gonzales. He is clearly qualified. When 
someone is qualified and has the confidence of the President, as 
Alberto Gonzales does, it seems to me those in this body--unless there 
is some highly

[[Page S838]]

disqualifying factor brought to our attention--should accede to the 
President's request for his nomination and confirm the individual.
  There is an extra special reason this is meaningful to me. That is 
because of the number of Hispanics in my State of Arizona and their 
aspirations and their pride at the achievements they have accomplished.
  As the Senator from Florida pointed out, it is important for this 
country to recognize the kind of talent Alberto Gonzales represents and 
to hold that up as an inspiration to young people to let them know, 
regardless of their race or ethnicity, if they work hard, even when 
they come from humble beginnings, this country offers opportunities 
that are not available in any other country, and regardless of their 
background they have the opportunity to become the Attorney General of 
the United States of America.
  That is a tremendous testament to this country. It is a testament to 
the Senate which has allowed people like Alberto Gonzales to have an 
opportunity, to the President for his perspicacity in nominating such 
an individual for Attorney General. It would be a very strong message 
not only around this country but around the world for the Senate to 
confirm the nomination of Alberto Gonzales as Attorney General of the 
United States.
  Mrs. HUTCHISON. Mr. President, I thank the distinguished Senator from 
Arizona, a member of the Judiciary Committee, who has done a wonderful 
job on that committee. It is a tough committee, but he has done a 
terrific job. That was an outstanding statement on behalf of Alberto 
Gonzales.
  Looking at this man's incredible background and how far he has come 
clearly shows the great country that America is and the great 
perseverance and intellect that Alberto Gonzales has.
  I yield the time he may consume to the Senator from New Hampshire, 
Mr. Gregg.
  Mr. GREGG. Mr. President, it is a pleasure to rise today in support 
of a native son of Texas. The Senator represents Texas so well in this 
Chamber.
  Alberto Gonzales, as has been outlined by many of the speakers, is an 
American success story. What an incredible story. There is no point in 
plowing ground that has already been plowed numerous times, but still 
it is nice to see this happen. It is nice to see someone of such 
extraordinary capability rise to such success. It is the American way 
to reward ability. We as a nation open our arms to people who are 
productive, concerned citizens who are willing to give of themselves 
not only to produce a better life for them and their family but also to 
produce a better life for their fellow citizenry, which is exactly what 
Judge Gonzales has done.
  With his talent he could have simply gone out and made a huge amount 
of money. The dollars that might have been available to him in private 
practice, it is hard to anticipate how much that would be, but it would 
have been considerable. Instead, at considerable financial sacrifice, I 
suspect, he has been willing to participate in public service. He has 
excelled at it both as a judge in Texas and as a counsel to the 
President in Washington.
  Now he has been put forth as the nominee of the President to serve as 
Attorney General. I think it is an unfortunate reflection of the 
partisanship on the other side, to be very honest, that his character 
has been impugned, that his purposes have been impugned, that his 
integrity has been questioned, and that his record of commitment to 
public service has been brought into question, not necessarily, I 
think, because of what he has done, because what he has done has been 
as an extraordinarily successful public servant and exceptional 
justice, an exceptional counsel to the President, but simply because I 
believe Members on the other side wish to highlight their political 
differences, using Judge Gonzales as their stalking-horse to accomplish 
that, and have been willing to attempt to undermine such an American 
success story for the purposes of promoting what amounts to petty 
political gain.
  It is unfortunate, unfortunate indeed, because the office of Attorney 
General has a tradition in this Nation, and especially in the post-
World War II period, of being an office which has always had appointed 
to it high-quality individuals who have been very close to the 
Presidency. That also is a logical choice.
  I think it is important to focus on that fact, that the Attorney 
General's position, in the post-World War II period at least, has been 
a position which has come to play a little different role than maybe it 
has historically played in the sense that it has been a position where 
Presidents have chosen people who they have had absolute personal 
confidence in, not people who necessarily are chosen because they 
balance a political ticket or political theme or regional need. The 
importance of having an Attorney General in whom a President has 
confidence has been the critical element of choosing that individual.
  I guess the best example of that, of course, is the Presidency of 
John Kennedy, when he chose his brother Robert Kennedy, who clearly had 
very little experience. He had, of course, been counsel for hearings 
here in the Senate dealing with corruption and labor corruption issues 
involving the Teamsters Union, but he had not had a great breadth of 
experience. He was a fresh face, to be kind, in the area of public 
policy. He was chosen by President Kennedy, which was a choice of 
significant implications in that the President of the United States 
would actually choose his brother to serve as Attorney General.
  It turned out to be a great choice. Robert Kennedy was probably one 
of the strongest and most effective Attorneys General, certainly of 
that period, who drove a great deal of the important issues that were 
decided in the area of civil rights and in the area of fighting 
corruption, especially organized crime, organized crime in labor union 
activity.
  The reason that Robert Kennedy is sort of the prototypical 
appointment in the post-World War II period is because it reflected the 
fact that the President, President John Kennedy, felt so strongly that 
he needed in the Attorney General's position someone in whom he had 
absolutely unequivocal confidence and who was going to be there as an 
assistant and as a force to carry forward his policies.
  That attitude has moved forward throughout this period. Attorney 
General Reno, who I had the opportunity to work with extensively during 
her term in office, initially started out in that role also, I believe. 
Certainly John Ashcroft has had that position. Now, in sort of a 
restatement, in a way, of the Robert Kennedy role, President Bush has 
chosen his closest legal adviser, Alberto Gonzales, who has a much 
stronger resume than Robert Kennedy had but who has the same historic 
position in that he is going to be able to carry forth the decisions of 
this President and operate as a confidant of this President in a manner 
which is uniquely important to the Attorney General's role.

  Obviously, the Attorney General has an obligation to be the law 
enforcement officer of our Nation, to be a fair arbiter, to be a 
spokesperson who has integrity on issues, and to speak clearly to the 
administration of what is right and wrong, and how it should move 
forward effectively on issues, in a way that does not compromise the 
administration. Judge Gonzales has done that. He has done that time and 
time again in his role as White House Counsel. He understands his new 
role as Attorney General in that context.
  But the attacks on Judge Gonzales do not go to this role, they go 
more to a disagreement which people from the other side have over this 
administration's policy relative to Iraq in an attempt to bootstrap 
Judge Gonzales's nomination into a major confrontation on the issues of 
whether we are doing correct things in Iraq. That, to me, is 
inappropriate relative to the confirmation process.
  There is no question we should debate Iraq. That should be a matter 
of open and continuous debate in this Senate. It is the most important 
international policy issue we have going on today. I have no hesitation 
about debating it. But I do not believe we should use an individual who 
is a nominee for a major office within the Cabinet as a stalking-horse 
for the purposes of making attacks on the Presidency, unless there is 
some clear relationship there. In this case there is none that is so 
substantive and appropriate that it rises to the level of opposition of 
the

[[Page S839]]

Attorney General nominee, in my opinion.
  The individual we have before us as a nominee, Judge Gonzales, is 
such a unique and extraordinary success story, who so eloquently 
defines the American dream, as we all love to profess to our different 
constituencies, to talk about how people succeed in attaining the 
American dream. Whenever I go into a classroom, especially an 
elementary or middle school classroom, I talk about how you can be 
anything. All you have to do is work hard, stay in school, study hard, 
and make a commitment to being an honest person, a person who has high 
values, and a person who is committed to working hard, and you can 
accomplish just about anything.
  That is what we say to our youth in this country. That is what we say 
to people who come to our land as immigrants. Judge Gonzales 
personifies that statement. For some Members of this Senate to be 
taking such a negative approach in addressing his nomination, and 
defining his individual characteristics as not fulfilling those 
concepts of the American dream is, I think, a disservice to the people 
who, like Judge Gonzales, have succeeded in America.
  This is a unique person whom we are very fortunate to have as a 
nominee to be Attorney General of the United States. His confirmation 
will stand as a statement of opportunity to tens of thousands, hundreds 
of thousands, potentially millions of Americans, especially Americans 
who have come here from Hispanic cultures, that America is a land of 
opportunity, that the American dream does exist for you, that if you 
work hard, that if you are a person of integrity, that if you commit 
yourself to your goals, you can succeed, and America will reward you in 
that success and acknowledge it.
  So I believe very strongly that the choice of Judge Gonzales is an 
extraordinarily strong one, that it is consistent with the tradition of 
Attorney General choices in the post-World War II period, and that, 
more importantly, it is a statement by this President that he 
understands the American dream is personified in Judge Gonzales, and 
that it should be rewarded and should be respected.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, I yield the remainder of the 
Republican time to the distinguished Senator from Georgia, Mr. 
Chambliss, and I ask unanimous consent that he be allowed to speak 
until 10:32 or until the Democrats arrive.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Georgia is recognized.
  Mr. CHAMBLISS. Mr. President, I thank the Senator from Texas for her 
great leadership on this issue, particularly organizing the support on 
the floor this morning for Judge Gonzales.
  I do rise in support of Alberto Gonzales to be confirmed as the next 
Attorney General for the United States. I had the pleasure of serving 
on the Judiciary Committee for the past 2 years, having gone off at the 
beginning of this session. But during the course of my 2 years as a 
member of the Judiciary Committee, I had the opportunity to be involved 
in the hearings, the discussions, and the review of a number of issues 
to which Judge Gonzales has spoken during the course of his 
confirmation process.
  One of those issues is the administration's policy on torture, for 
which the judge has been unduly criticized by folks who are in 
opposition to his nomination. I want to respond to some of the 
ridiculous accusations of those who are opposed to this confirmation, 
and talk about some of the actual facts involved, which seem to be 
missing from the conversations on the floor coming from his critics and 
from those who are opposed.
  I do not think Judge Gonzales nor could the administration be more 
clear than they have been on the policy and the subject of torture. As 
President Bush stated at his January 26, 2005, press conference:

       Al Gonzales reflects our policy, and that is we don't 
     sanction torture.

  In all of his statements and responses, Judge Gonzales has emphasized 
that there is a distinct difference between what the law would allow 
and what the administration policy is. No matter how the obligations of 
the United States under the Constitution, treaties, and various 
statutes have been interpreted, the President has said he would never 
order or condone torture. That is the policy. That is what Alberto 
Gonzales has represented and does represent today.
  President Bush's February 7, 2002, memorandum to, among others, the 
Vice President, the Secretary of State, the Secretary of Defense, the 
Attorney General, and the Director of Central Intelligence 
unequivocally required those detained by the U.S. Armed Forces to be 
treated humanely. The President stated:

       Of course, our values as a Nation, values that we share 
     with many nations in the world, call for us to treat 
     detainees humanely, including those who are not legally 
     entitled to such treatment. Our Nation has been and will 
     continue to be a strong supporter of Geneva and its 
     principles. 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. . . . I 
     hereby reaffirm the order previously issued by the Secretary 
     of Defense to the United States Armed Forces requiring that 
     the detainees be treated humanely and, to the extent 
     appropriate and consistent with military necessity, 
     consistent with the principles of Geneva.

  It could not be clearer. It absolutely could not be clearer. And it 
is not something that he said which is the subject of interpretation; 
it is something which the President committed to writing and for which 
Judge Gonzales stands.
  Judge Gonzales has unmistakably, forcefully, and consistently made 
clear before, during, and after his confirmation hearing that it is not 
the policy of the United States to condone torture and that he 
personally does not condone torture.
  At a June 22, 2004, press briefing, before his confirmation hearing--
indeed, well before he was even a nominee--Judge Gonzales stated:

       The administration has made clear before, and I will 
     reemphasize today that the President has not authorized, 
     ordered or directed in any way any activity that would 
     transgress the standards of the torture conventions or the 
     torture statute, or other applicable laws.

  He continued later:

       [I]f there still remains any question, let me say that the 
     U.S. will treat people in our custody in accordance with all 
     U.S. obligations including federal statutes, the U.S. 
     Constitution and our treaty obligations. The President has 
     said we do not condone or commit torture. Anyone engaged in 
     conduct that constitutes torture will be held accountable.
       The President has not directed the use of specific 
     interrogation techniques. There has been no presidential 
     determination of necessity or self-defense that would allow 
     conduct that constitutes torture. There has been no 
     presidential determination that circumstances warrant the use 
     of torture to protect the mass security of the United States.

  I have several more pages of statements that were made by Judge 
Gonzales in his confirmation hearing that directly apply to this issue. 
They have been consistent. They have been very clear. They have been 
concise to the effect that Judge Gonzales has never condoned the use of 
torture. It is not the administration policy to condone torture. Why in 
the world folks on the other side continue to criticize this man for 
something he has not said or has not condoned should be pretty obvious 
to the American people. There is a reason for it, but the reason simply 
doesn't hold water.
  Who is this man? That is the more important question. Who is Alberto 
Gonzales? Is he qualified to become Attorney General of the United 
States? Judge Gonzales grew up as a humble man. He is a Hispanic 
American who grew up, interestingly enough, in a two-bedroom house in 
Humble, TX, that his father and uncle built and where his mother still 
resides. His parents were never educated beyond elementary school, and 
he was the first person in his family to go to college. He is a 
graduate of Texas public schools, Rice University, and Harvard Law 
School.
  Judge Gonzales served in the U.S. Air Force between 1973 and 1975 and 
attended the U.S. Air Force Academy between 1975 and 1977. He is 
married and has three sons. While his family lived in Houston, TX, he 
practiced with one of the best firms in America, and having practiced 
law for 26 years myself

[[Page S840]]

and having associated with the firm of which he was a member, not 
knowing that in fact he was, I am very familiar with the firm. It is 
not just one of the best firms in Texas; it is one of the best firms in 
America. They don't hire lawyers who are not competent and capable to 
get the job done. That is exactly what Judge Gonzales is--competent and 
capable.
  He was commissioned as Counsel to President George W. Bush in January 
of 2001, obviously showing what kind of confidence the President of the 
United States has in the man. Prior to serving in the White House, he 
served as a justice of the Supreme Court of Texas. Before his 
appointment to the Texas Supreme Court in 1999, he served as Texas's 
100th secretary of state; that being from December of 1997 to January 
of 1999.
  Among his many duties as secretary of state, he was a senior adviser 
to then-Governor Bush, chief elections officer, and the Governor's 
liaison on Mexico and border issues.
  Simply stated, this man, unlike a lot of folks coming out of the same 
kinds of conditions in which he grew up, made a decision that he wanted 
to improve the quality of life for himself and for his family. He 
worked hard. He studied hard. He became a lawyer, something that nobody 
else in his family could ever do before him. He practiced law in one of 
the largest States in our country with one of the largest law firms in 
that particular State. He was a dadgum good lawyer. Obviously the 
President of the United States has confidence in him from the 
standpoint of looking to him for legal advice.
  All of the criticisms directed at him have nothing to do with his 
ability to operate and practice as a lawyer, and in his capacity as 
Attorney General, he will be the No. 1 lawyer in the country. I submit 
to all of my colleagues that he is qualified for this job. I ask for 
their support of Judge Gonzales to be confirmed as the next Attorney 
General of the United States.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, after every war, history is written. There 
are stories of courage, compassion, and glory, and stories of cruelty, 
weakness, and shame.
  When history is written of our war on terrorism, it will record the 
millions of acts of heroism, kindness, and sacrifice performed by 
American troops in Iraq, Afghanistan, and other nations. And it will 
record as well the stunning courage of Iraqi men and women standing in 
line last Sunday, defying the terrorist bullets and bombs to vote in 
the first free election of their lives.
  But sadly, history will also recall that after 9/11, and after the 
invasion of Iraq, some in America concluded our Nation could no longer 
afford to stand by time-honored principles of humanity, principles of 
humane conduct embodied in the law of the land and respected by 
Presidents of both political parties for generations.
  Next to the image of Saddam Hussein's statue dragged from its 
pedestal to the dirt below will be the horrifying image of the hooded 
prisoner at Abu Ghraib, standing on a makeshift pedestal, tethered to 
electrical wires.
  Alberto Gonzales is a skilled lawyer. His life story is nothing short 
of inspiring. I have the greatest respect for his success, for what he 
has achieved, and for the obstacles he has overcome.
  But this debate is not about Mr. Gonzales's life story. This debate 
is about whether, in the age of terrorism, America will continue to be 
a nation based on the rule of law, or whether we, out of fear, abandon 
time-tested values. That is what is at issue.
  The war in Iraq is more dangerous today because of the scandal at Abu 
Ghraib prison. Our conduct has been called into question around the 
world. Our moral standing has been challenged, and now we are being 
asked to promote a man who was at the center of the debate over 
secretive policies that created an environment that led to Abu Ghraib.
  What happened at Abu Ghraib? What continues to happen at Guantanamo? 
What happened to the standards of civilized conduct America proudly 
followed and demanded of every other nation in the world?
  Some dismiss these horrible acts as the demented conduct of only a 
few, the runaway emotions of renegade night shift soldiers, the 
inevitable passions and fears of men living in the charnel house of 
war. But we now know that if there was unspeakable cruelty in those 
dimly lit prison cells, there was also a cruel process underway in the 
brightly lit corridors of power in Washington.
  At the center of this process, at the center of this administration's 
effort to redefine the acceptable and legal treatment of prisoners and 
detainees was Alberto Gonzales, Counsel to President George W. Bush. 
And with the skill that only lawyers can bring, Mr. Gonzales, Assistant 
Attorney General Jay Bybee and others found the loopholes, invented the 
weasel words and covered the whole process with winks and nods.
  At the very least, Mr. Gonzales helped to create a permissive 
environment that made it more likely that abuses would take place. You 
can connect the dots from the administration's legal memos to the 
Defense Department's approval of abusive interrogation techniques for 
Guantanamo Bay, to Iraq and Abu Ghraib, where those tactics migrated.
  Blaming Abu Ghraib completely on night shift soldiers ignores 
critical decisions on torture policy made at the highest levels of our 
Government, decisions that Mr. Gonzales played a major role in making. 
If we are going to hold those at the lowest levels accountable, it is 
only fair to hold those at the highest levels accountable as well.
  Let's review what we know.
  First, Mr. Gonzales recommended to the President that the Geneva 
Conventions should not apply to the war on terrorism. In a January 2002 
memo to the President, Mr. Gonzales concluded that the war on terrorism 
``renders obsolete'' the Geneva Conventions. This is a memo written by 
the man who would be Attorney General.

  Colin Powell and the Joint Chiefs of Staff objected strenuously to 
this conclusion by Alberto Gonzales. They argued that we could 
effectively prosecute a war on terrorism while still living up to the 
standards of the Geneva Conventions.
  In a memo to Mr. Gonzales, Secretary of State Colin Powell pointed 
out that the Geneva Conventions would allow us to deny POW status to 
al-Qaida and other terrorists and that they would not limit our ability 
to question a detainee or hold him indefinitely. So, contrary to the 
statements by some of my colleagues on the other side of the aisle, 
complying with the Geneva Conventions does not mean giving POW status 
to terrorists. Colin Powell knew that. The Joint Chiefs of Staff knew 
that. Alberto Gonzales refused to accept that.
  In his memo to Mr. Gonzales, Secretary Powell went on to say that if 
we did not apply the Geneva Conventions to the war on terrorism, ``it 
will reverse over a century of U.S. policy and practice . . . and 
undermine the protections of the law of war for our own troops . . . It 
will undermine public support among critical allies, making military 
cooperation more difficult to sustain.''
  The President rejected Secretary Powell's wise counsel and instead 
accepted Mr. Gonzales's counsel. He issued a memo concluding that ``new 
thinking in the law of war'' was needed and that the Geneva Conventions 
do not apply to the war on terrorism.
  And then what followed? Mr. Gonzales requested, approved, and 
disseminated this new Justice Department torture memo. This infamous 
memo narrowly redefined torture as limited only to abuse that causes 
pain equivalent to organ failure or death, and concluded that the 
torture statute which makes torture a crime in America does not apply 
to interrogations conducted under the President's Commander in Chief 
authority. That was the official Government policy for 2 years.
  Then relying on the President's Geneva Conventions determination and 
the Justice Department's new definition of torture, Defense Secretary 
Rumsfeld approved numerous abusive interrogation tactics for use 
against prisoners in Guantanamo Bay, even as he acknowledged that some 
nations may view those tactics as inhumane. These techniques have 
Orwellian names such as ``environmental manipulation.''
  The Red Cross has concluded that the use of these methods at 
Guantanamo

[[Page S841]]

was more than inhumane. It was, in the words of the Red Cross, ``a form 
of torture.''
  We have recently learned that numerous FBI agents who observed 
interrogations at Guantanamo Bay complained to their supervisors about 
the use of these methods, methods which began at the desks of Alberto 
Gonzales and the Department of Justice, moving through the Department 
of Defense to Guantanamo Bay. In one e-mail that has been released 
under the Freedom of Information Act, an FBI agent complained that 
interrogators were using what he called ``torture techniques.'' This is 
not from a critic of the United States who believes that we should not 
be waging a war on terrorism. These are words from the Federal Bureau 
of Investigation.
  Let me read the graphic language in an e-mail written by another FBI 
agent about what he saw:

       On a couple of occasions, I entered interview rooms to find 
     a detainee chained hand and foot in a fetal position to the 
     floor, with no chair, food or water. Most times they urinated 
     or defecated on themselves, and had been left there for 18-24 
     hours or more. On one occasion, the air conditioning had been 
     turned down so far and the temperature was so cold in the 
     room, that the barefooted detainee was shaking with cold. . . 
     . On another occasion, the [air conditioner] had been turned 
     off, making the temperature in the unventilated room well 
     over 100 degrees. The detainee was almost unconscious on the 
     floor, with a pile of hair next to him. He had apparently 
     been literally pulling his hair out throughout the night. On 
     another occasion, not only was the temperature unbearably 
     hot, but extremely loud rap music was being played in the 
     room, and had been since the day before, with the detainee 
     chained hand and foot in the fetal position on the tile 
     floor.

  These are the words of an agent of the Federal Bureau of 
Investigation, who viewed the interrogation techniques at Guantanamo, 
techniques that flowed from the memo that came across Mr. Gonzales's 
desk to the Department of Defense down to these dimly lit cells. And 
the Red Cross and the FBI agree that they are torture.
  I asked Mr. Gonzales: Of the 59 clemency cases he coordinated, how 
many times did he either recommend clemency, a stay of execution, or 
further investigation to resolve any doubts about a condemned inmate's 
guilt?
  He replied that he could not recall what advice he may have given 
then-Governor Bush on any of the 59 cases.
  He also said he never once recommended clemency because he believed 
that he and the Governor were obligated to follow the recommendations 
of the State Board of Pardons and Paroles.
  Relying so heavily on the Texas Board of Pardons and Paroles might 
not be troubling if the board's record itself was not so troubling. 
Between 1973 and 1998, the Texas Board of Pardons and Paroles received 
more than 70 appeals of clemency denials. In all those cases, the board 
never once--not one time--ordered an investigation or held a hearing or 
even conducted a meeting to try to resolve any possible doubts about a 
case.
  In fact, according to a 1998 civil suit, some board members do not 
even review case files or skim correspondence they are required to read 
before voting on clemency petitions. U.S. District Court Judge Sam 
Sparks, who presided over that lawsuit, found, in his words:

       There is nothing, absolutely nothing--that the Board of 
     Pardons and Paroles does where any member of the public, 
     including the Governor, can find out why they did this. I 
     find that appalling.

  Typically, Mr. Gonzales presented a clemency memo to Governor Bush on 
the day that the inmate was scheduled to be executed. Mr. Gonzales 
would spend about 30 minutes at some point during the day briefing the 
Governor before this person was led to execution--30 minutes.
  Let me tell you about 2 of the 59 people whose clemency requests Mr. 
Gonzales handled.
  Irineo Tristan Montoya was a Mexican national executed in 1997. In 
1986, in police custody, Mr. Montoya signed what he thought was an 
immigration document. In fact, it was a murder confession. Mr. Montoya 
could not read a word of it. He spoke no English.
  Under the Vienna Convention of Consular Affairs, which the U.S. 
ratified in 1969 and accepted as our law of the land, Mr. Montoya 
should have at least been told that he had the right to have a Mexican 
consular officer contacted on his behalf. He was never informed of this 
right.
  Mr. Gonzales's clemency memo mentioned none of these facts--not one. 
News accounts say Mr. Montoya was convicted almost entirely on the 
strength of this confession, a confession which he signed that he could 
not read or understand.
  Then there is the case of Carl Johnson. It has become infamous. Mr. 
Gonzales's memo on Mr. Johnson's clemency request neglected to mention 
that Mr. Johnson's lawyer had literally slept through much of the jury 
selection.
  Mr. Gonzales claims that omission of critical facts such as these do 
not matter because ``it was quite common that I would have numerous 
discussions with the Governor well in advance of a scheduled 
execution.''
  However, Governor Bush's logs generally show one, and only one, 30-
minute meeting for each execution. Thirty minutes for each life. And 
that meeting generally took place on the scheduled day of the 
execution.
  At the Judiciary Committee hearing, Mr. Gonzales said: If I were in 
talking to the Governor about a particular matter and we had an 
opportunity, I would say, ``Governor, we have an execution coming up in 
3 weeks. One of the bases of clemency I'm sure that will be argued is, 
say, something like mental retardation. These are the issues that have 
to be considered.''
  The Texas death house was a busy place when Mr. Gonzales was general 
counsel. In the 6 days from December 6 to December 12, 1995, for 
example, there were four executions. In the 9 days from May 13 to 
May 22, 1997, there were six executions. In the 8 days from May 28 to 
June 4, 1997, there were five executions. In the week from June 11 to 
June 18, 1997, there were four executions. And during one 5-week period 
from May 13 to June 18, 1997, in the State of Texas, there were 15 
executions.

  Even if Mr. Gonzales found an opportunity, as he says, to mention 
critical details of upcoming executions during meetings on other 
topics, is that an appropriate or sufficient way to provide a Governor 
with information he needs to make a life-or-death decision?
  Did Mr. Gonzales really expect the Governor to be able to keep track 
of these details that were discussed weeks in advance of a decision on 
clemency? Is that reasonable when a person's life is hanging in the 
balance?
  Regardless of how one feels about the death penalty, no one--
absolutely no one--wants to see an innocent person executed. That is 
not justice.
  Over 2,000 years ago, Roman orator Cicero said: Laws are silent in 
time of war. The men and women who founded this great Nation rejected 
that notion. They understood that freedom and liberty are not 
weaknesses; they are, in fact, our greatest strengths.
  In times of war or perceived threat, we have sometimes forgotten that 
basic truth. And when we have, we have paid dearly for it.
  In the late 1700s, a war with France seemed imminent. Congress 
responded by passing the Alien and Sedition Acts. These patently 
unconstitutional laws empowered the President to detain and deport any 
non-citizen with no due process and made it illegal to publish 
supposedly ``scandalous and malicious writing'' about our Government.
  President Lincoln, whom I regard as the greatest of all American 
Presidents, suspended the great writ of habeas corpus during the Civil 
War.
  The first red scare during World War I accelerated into the Palmer 
raids after a series of bombings on Wall Street and in Washington, DC. 
Palmer, the U.S. Attorney, ordered roundups of suspected ``reds'' and 
summarily deported thousands of aliens, often with little evidence of 
wrongdoing and no due process.
  We all know the tragic story of Japanese immigrants and U.S. citizens 
of Japanese ancestry being rounded up and placed in internment camps 
during World War II.
  Another moment that I recall, as I stand here today, is when I served 
in the House of Representatives and heard two of my colleagues who were 
Congressmen at the time, Japanese Americans, come forward to explain 
what happened to them, how they were literally told the night before in 
their homes in California by their parents to pack up their little 
belongings, put them in a suitcase, and be prepared to

[[Page S842]]

get on a train in the morning. Bob Matsui was one of those. He just 
passed away a few weeks ago.
  Bob Matsui understood what discrimination could really be. What was 
his sin? He was born of Japanese American parents. That is a fact of 
life, and it was a fact that changed his life dramatically. He and 
others were taken off to internment camps without a trial, without a 
hearing, simply because they were suspected of being unpatriotic.
  During the Cold War, our Nation, fearful of communism, descended into 
a red scare of McCarthyism, witch hunts, and black lists that destroyed 
the lives of thousands of decent people.
  In the 1960s, the Government infiltrated many organizations and 
compiled files on its own citizens simply for attending meetings of 
civil rights or antiwar organizations.
  Some on the other side of the aisle have compared Mr. Gonzales to one 
of our great Attorneys General, Robert Kennedy. With all due respect to 
Mr. Gonzales, he is no Robert Kennedy. Unlike Mr. Gonzales, Robert 
Kennedy understood the importance of respecting the rule of law to 
America's soul and our image around the world.
  Listen to this quote from a speech that Robert Kennedy gave at the 
height of the Cold War and the civil rights movement. This is what he 
said:

       We, the American people, must avoid another Little Rock or 
     another New Orleans. We cannot afford them. It is not only 
     that such incidents do incalculable harm to the children 
     involved and to the relations among people, it is not only 
     that such convulsions seriously undermine respect for law and 
     order and cause serious economic and moral damage. Such 
     incidents hurt our country in the eyes of the world. For on 
     this generation of Americans falls the burden of proving to 
     the world that we really mean it when we say all men are 
     created equal and are equal before the law.

  Those were the words of Robert Kennedy, and if you replace Little 
Rock and New Orleans with Abu Ghraib and Guantanamo, those words ring 
true today. Mr. Gonzales does not seem to understand, as Robert Kennedy 
did, the impact such scandals have on America's soul and image.
  Today is a critical moment for our Nation. Overseas, our Nation's 
actions and character are being questioned by our critics and our 
enemies. Here at home, we want to feel safer and more secure.
  There are some who want to repeat the mistakes of our past. They 
think the best way to protect America is to silence the law in this 
time of war.
  Let me tell you about one man who disagrees. His name is Fred 
Korematsu. More than 60 years ago, Mr. Korematsu was a 22-year-old 
student and was one of the 120,000 Japanese-American citizens and 
immigrants who was forced from their homes into these prison camps, 
internment camps.
  After Pearl Harbor, Mr. Korematsu tried everything he could think of 
to be accepted as American. He changed his name to Clyde, and even had 
two operations to make his eyes appear rounder. He was still forced 
into Tule Lake, an internment camp in California.
  He challenged his detention, taking his case all the way to the U.S. 
Supreme Court. In a decision that remains one of the most infamous 
decisions in the Court's history, the Supreme Court rejected Mr. 
Korematsu's claim and failed to find the internment of Japanese 
Americans unconstitutional.
  It would be another 40 years until an American President, Ronald 
Reagan, officially apologized for that terrible miscarriage of justice 
and offered small restitution to its victims.
  Today, Mr. Korematsu is nearly 85 years old. He is recovering from a 
serious illness, but he still loves America and is deeply concerned 
that we not again abandon our most cherished principles and values. So 
he has raised his voice, warning his fellow Americans we should not 
repeat the mistakes of the past.
  I respect and admire Alberto Gonzales for his inspiring life story 
and the many obstacles he has overcome. Some of my colleagues suggested 
his life story embodies the American dream. But there is more to the 
American dream than overcoming difficult circumstances to obtain 
prominence and prosperity. We also must honor Fred Korematsu's dream 
that our country be true to the fundamental principle upon which it was 
founded: the rule of law.
  Some of my colleagues have suggested that the opposition to Al 
Gonzales's nomination is all about partisan politics. That could not be 
further from the truth. This is about our ability to win the war on 
terrorism while respecting the values that our Nation represents.
  I cannot in good conscience vote to reward a man who ignored the rule 
of law and the demands of human decency and created the permissive 
environment that made Abu Ghraib possible.
  When the history of these times are recorded, I believe that Abu 
Ghraib and Guantanamo will join the names of infamous Japanese-American 
internment camps such as Manzanar, Heart Mountain, and Tule Lake where 
Fred Korematsu and over thousands of others were detained. I cannot in 
good conscience vote to make the author of such a terrible mistake the 
chief law enforcement officer of our great Nation and the guardian of 
our God-given and most cherished rights.
  So, Mr. President, I will vote no on the nomination of Alberto 
Gonzales to serve as Attorney General of the United States. I yield the 
floor.
  The PRESIDING OFFICER (Mr. Graham). The Senator from Vermont.
  Mr. JEFFORDS. Mr. President, I rise today to oppose the nomination of 
Alberto Gonzales to be the next United States Attorney General.
  It is disappointing to have to oppose this nomination, but based on 
his record, I believe there is no other choice.
  Judge Gonzales's life story is a shining example of the American 
dream.
  From humble beginnings he rose to serve on the Texas Supreme Court, 
become counsel to the President of the United States, and has now been 
nominated for one of the three highest Cabinet positions in the United 
States.
  His life story is compelling and admirable, but that alone is not 
enough to support someone for the position of Attorney General of the 
United States.
  The Attorney General is the chief law enforcement officer of the 
Federal Government, and serves as the face for truth and justice in 
this country.
  This individual should and must be committed to the sanctity of the 
law, protecting the rights and liberties of all people, and ensuring 
that the laws are obeyed.
  I believe Judge Gonzales's work as counsel to the President shows him 
to be unfit to perform the duties of the Attorney General.
  My concern centers on three events during Judge Gonzales's tenure as 
counsel to the President.
  His actions during these times cause me to question whether he can 
fulfill the duties of the Attorney General as I just outlined.
  The first event involves Judge Gonzales asking the United States 
Department of Justice to prepare a legal opinion on acceptable 
interrogation standards that would be allowed under the Convention 
Against Torture.
  This memo became the basis for the standards developed by the Defense 
Department's working group on detainee interrogation, which 
subsequently have been used in Afghanistan, Guantanamo Bay, and Iraq.
  The Justice Department memo ignores significant contrary case law, a 
plain reading of the statute, and the legislative history of the law.
  In doing so, the memo created such a narrow definition of torture 
that only actions that cause ``equivalent in intensity to the pain 
accompanying serious physical injury, such as organ failure, impairment 
of bodily function, or even death'' would be considered torture.
  The analysis included in the memo has been called weak and reckless 
by other lawyers, human rights groups, former officials from this 
administration, military officers, and military lawyers.
  However, it appears that Judge Gonzales had no misgivings with the 
memorandum at the time.
  In fact, it appears that Judge Gonzales continues to have no concerns 
with the conclusions of this memo, even though prior to his Senate 
Judiciary Committee hearing, the Department of Justice issued another 
superseding memorandum that reaches a much different conclusion.
  According to the new memorandum, torture is defined as physical 
suffering ``even if it does not involve severe physical pain.''

[[Page S843]]

  Second, in a memo Judge Gonzales wrote to the President, he advised 
that the Geneva Conventions did not apply to captured members of al-
Qaida and the Taliban.
  This was a reversal of longstanding United States policy and practice 
of adhering to the Geneva Conventions.
  This conclusion is a misstatement and misinterpretation of the Geneva 
Conventions.
  The Geneva Conventions require humane treatment of all captives, 
whether soldiers, insurgents, or civilians.
  Additionally, Judge Gonzales also requested a memo concerning the 
Geneva Conventions' effect on the transfer of protected persons from 
occupied territory.
  This memo led to the creation of the ``ghost detainee program'' in 
Iraq, a practice that is against the spirit, plain reading, and any 
interpretation of the Geneva Conventions.
  Finally, and most disturbingly, Judge Gonzales has advised the 
President that if a legal statute infringes on the authority of the 
President as the Commander-In-Chief, then that statute should be 
considered unconstitutional and the President could refuse to comply 
with the law.
  Such a position is contrary to settled separation of powers case law, 
and has most recently been repudiated by the United States Supreme 
Court in its decision last year on the rights of detainees.
  These events lead me to question the willingness of Judge Gonzales 
to, as required, protect the sanctity of the law; protect the rights 
and liberties of all people, not just some, but all; ensure that 
Federal laws are obeyed, and, effectively perform the duties of 
Attorney General of the United States.
  I am truly saddened to have to oppose the nomination of an Attorney 
General for the first time in my career.
  However, the Nation's chief law enforcement officer must be required 
to show, beyond any doubt, the utmost respect for the law and an 
unwavering determination to defend the law.
  Instead, Judge Gonzales's record as counsel to the President points 
to repeated attempts to skirt the law rather than uphold it.
  I must conclude that given the record before us, Judge Gonzales is 
not qualified for the job.
  Following the Iraq prison scandal, Secretary Rumsfeld stated that 
people should not base their opinion of the United States on the events 
that occurred there, but on the actions we take thereafter.
  Therefore, what will be the world's opinion of the United States if 
we elevate one of the architects of the policies that led to the Iraq 
prison abuses to the position of chief law enforcement officer of our 
country?
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, this morning we have heard many excellent 
speeches. I commend my colleague from Vermont, Mr. Jeffords, for his 
statement. Yesterday I listened to Senators Feinstein, Schumer, 
Kennedy, Mikulski, Dayton and Stabenow on our side, and I thought their 
statements were very good. Both Senator Durbin of Illinois and I were 
at a hearing this morning and left to come over here. I think his 
statement was straightforward and comprehensive and compelling. I 
appreciate what has been said.
  I have also listened to the statements of those who support this 
nominee, most from the other side. I would say one thing, I am glad 
that none of them are defending torture. I never expected they would. 
None of them defend what happened at Abu Ghraib. I didn't expect they 
would. None of them are defending the Bybee memorandum, with its narrow 
legalistic interpretation of the torture statute. I never thought any 
of them would.
  None of them defend the outrageous claim that the President of the 
United States is above the law. I don't know how anybody could defend 
that position. One of the things we have learned, from the first George 
W., George Washington, to the current President, is that no President 
is above the law, not even this one. None of us are. Senators are not. 
Judges are not. Nobody is.
  In fact, some of the people who have spoken have been explicitly 
critical of the Bybee memo. Unfortunately, the nominee has not joined 
in that criticism. Instead, he told me at his hearing that he agreed 
with its conclusions. We know that for at least 2 years he did not 
disagree with the secret policy of this administration.
  Water flows downhill and so does Government policy in this 
administration. Somewhere in the upper reaches of this administration a 
process was set in motion that rolled forward until it produced 
scandalous results.
  We may never know the full story. The administration circled the 
wagons. They stonewalled requests for information from both Republicans 
and Democrats. What little we do know, we know because the press has 
done a far, far, far better job of oversight than the Congress itself. 
We know it from international human rights organizations because they 
have done a far better job of oversight than Congress has. We owe it to 
a few internal Defense Department investigations, and of course the 
Freedom of Information Act litigation. Thank goodness we have the 
Freedom of Information Act, because Congress, this Congress especially, 
both bodies, has fallen down for years on their oversight 
responsibility. It failed, actually refused, to do oversight of an 
administration of their own party. It is fortunate the Freedom of 
Information Act is there.
  Every administration, Democrat and Republican, will tell you all the 
things they believe they have done right. None will tell you the things 
they believe they have done wrong. Normally it is the job of the 
Congress to root that out. We have not been doing our job. Fortunately 
the press and others, through the Freedom of Information Act, have.
  Despite repeated requests both before and during and after judge 
Gonzales's confirmation hearing, there is much we still do not know. We 
gave this nominee every possibility before, during, and after his 
hearing to clarify this. I even sent to him and to the Republicans on 
the committee, well in advance of the hearing, a description of the 
types of questions I would ask on this particular matter so there would 
be no surprises and so that he would have a chance to answer them. He 
didn't.
  We do know that he was chairing meetings and requesting memos and 
checking up on those memos as various Government agencies were being 
tasked with eroding long-established U.S. policy on torture.
  Just this week, the New York Times reported the Justice Department 
produced a second torture memo to address the legality of specific 
interrogation techniques proposed by the CIA. So much for the 
proponents' argument that these memoranda were research memos with 
little real-world impact.
  That second torture memo, which the administration refused to provide 
to the Judiciary Committee, reportedly used the very narrow and thus 
permissive interpretation of the torture statute outlined in the first 
memorandum. The administration will not come clean from behind the 
stone wall it has constructed to deter accountability for its actions. 
Does anyone believe this memo was generated without knowledge of the 
White House, without its approval?
  The President said he chose Judge Gonzales because of his sound 
judgment in shaping the administration's terrorism policies. But the 
glimpses we have seen of secret policy formulations and legal 
rationales that have come to light show that his judgements have not 
been sound.
  Look at his role with respect to the Bybee memo. This is the memo 
that noted legal scholar Dean Koh of the Yale Law School called, 
``perhaps the most clearly erroneous legal opinion I have ever read.'' 
He went on to say it is ``a stain upon our law and our national 
reputation.''
  In remarks yesterday, Republican Senators, quite correctly in my view 
and the view of many others who studied it, said the Bybee memo was 
``erroneous in its legal conclusions. . . .'' They call the memo's 
interpretation of what constitutes torture ``very, very extreme . . . 
certainly not a realistic or adequate definition of torture which would 
withstand legal analysis or legal scrutiny.''
  I commend them for doing that. I commend them for saying the 
memorandum was ``extreme and excessive in its statement and 
articulation of executive power.'' I would feel far better if

[[Page S844]]

the man who they are supporting for Attorney General had taken the same 
position, as have many of my colleagues in the Senate, on both sides of 
the aisle.
  Even supporters of Judge Gonzales distance themselves from the Bybee 
memo's conclusion that the President has authority to immunize those 
who violate the law knowing that ``certainly is not lawful.''
  These are the statements of Republican Senators, but they should not 
be confused with the statements of Judge Gonzales, who has refused to 
criticize its legalistic excuses for recalibrations of decades of law 
and practice.
  I ask unanimous consent to have printed in the Record a number of 
newspaper articles and editorials that bear on this nomination, 
including one that appears in today's Rutledge Herald, a prize-winning 
newspaper in Vermont.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Rutland Herald, Feb. 2, 2005]

                             No on Gonzalez

       One of the best ways the U.S. Senate could assure the world 
     that the United States is serious about democracy and human 
     rights would be to reject the nomination of Alberto Gonzalez 
     as attorney general.
       The Democrats on the Senate Judiciary Committee were united 
     in opposing Gonzalez, who received a vote of 10-8 from the 
     committee. Sen. Patrick Leahy, ranking Democrat on the 
     committee, was firm in opposition to Gonzalez. Democrats have 
     flirted with the idea of a filibuster to block Gonzalez's 
     confirmation, but on Tuesday they rejected that idea.
       It is a difficult to understand how the Arab world or 
     anyone else could take seriously President Bush's high-flown 
     rhetoric on behalf of freedom or democracy if Gonzalez became 
     part of his cabinet. Gonzalez has become known as Mr. 
     Torture. His low-key, equable manner before the committee 
     should not disguise the fact that during long hours of 
     testimony he refused to say that it was illegal for the 
     president to authorize torture of prisoners in the hands of 
     the U.S. military.
       It is well known that Gonzalez was the author of memos 
     defining the ways that it was permissible for U.S. troops to 
     torture their captives. He was behind numerous policies since 
     ruled unconstitutional and illegal, such as the detention of 
     prisoners without charge and without access to a lawyer. He 
     was behind the military tribunals established to deal with 
     prisoners at the Guantanamo naval base, which have also been 
     thrown out by the courts.
       Continuing revelations reveal that torture and other 
     mistreatment were the work of more than a few miscreants at 
     Abu Ghraib in Iraq. The International Red Cross has charged 
     that torture of prisoners is widespread. New reports continue 
     to emerge, such as that describing the sexual taunting of 
     prisoners by female interrogators. It is degrading for the 
     prisoners and for the U.S. military, and it shows the world a 
     face of the United States that ought to shame all Americans.
       Is Alberto Gonzalez responsible for these violations? Yes. 
     He is not alone, of course. President Bush bears ultimate 
     responsibility, and Secretary of Defense Donald Rumsfeld is 
     culpable as well. But Gonzalez was responsible for the 
     twisted interpretations that gave a legal gloss to policies 
     that spread from Guantanamo to Iraq and Afghanistan.
       Gonzalez is likely to win approval from the Senate. As 
     Leahy noted at the time of Gonzalez's nomination, the present 
     Senate would probably give the nod to Attila the Hun. But a 
     strong voice of disapproval by senators concerned about the 
     way that Gonzalez and Bush have abused our democratic ideals 
     would remind the world that America is not unanimous in 
     support of the inhumane policies of the Bush administration.
       Bush has pledged his support for democratic movements all 
     around the world. A no vote on the Gonzalez nomination would 
     show the world the United States, too, is struggling to be a 
     democracy.
                                  ____


             [From the Wall Street Journal, Nov. 26, 2002]

                     Gonzales Rewrites Laws of War

                          (By Jeanne Cummings)

       Washington.--Most people assume Attorney General John 
     Ashcroft is the Bush appointee responsible for legal 
     decisions that critics say place national security above 
     civil liberties. But the real architect of many of those 
     moves is someone most Americans have never heard of: White 
     House Counsel Alberto Gonzales.
       Since the Sept. 11 attacks, the former commercial-real-
     estate attorney from Texas has been rewriting the laws of 
     war. From his corner office in the White House, he developed 
     the legal underpinnings for presidential orders creating 
     military commissions, defining enemy combatants and dictating 
     the status and rights of prisoners held from Afghanistan 
     battles. And he may well hold the most sway in President 
     Bush's coming decision on whether to begin appointing 
     military commissions to prosecute Afghanistan war prisoners.
       He believes he is striking the right balance between 
     American security and personal liberties. But his methods 
     have evoked outrage from the State Department and even the 
     Pentagon, which say they resent being cut out of the process.
       Career Pentagon lawyers in the Judge Advocate General's 
     Office were furious that they read first in news reports that 
     Mr. Gonzales had devised the legal framework for military 
     commissions. National Security Council legal advisers 
     unsuccessfully tried in January to stall his controversial 
     decision asserting that the Geneva Convention didn't apply to 
     Afghanistan detainees. And Secretary of State Colin Powell 
     launched an intense internal campaign to undo that decision.
       ``Essentially, a bunch of strangers are deciding the issues 
     and you're outside the door not being heard,'' complains 
     retired Rear Adm. John Hutson, who served as the Navy's judge 
     advocate general until 2000 and who remains close to his 
     former colleagues at the Pentagon.
       The 47-year-old Harvard Law School graduate remains secure 
     in his post mainly for one reason: President Bush. ``I love 
     him dearly'' was how Mr. Bush introduced his former Texas 
     chief counsel last year. Because of that bond, Mr. Gonzales 
     is considered a likely candidate for nomination to the U.S. 
     Supreme Court.
       What makes the San Antonio native's role remarkable is his 
     willingness to go toe-to-toe against Defense Secretary Donald 
     Rumsfeld's department lawyers and Mr. Powell himself--to try 
     to bend powerful insiders to the will of his client, Mr. 
     Bush. Mr. Gonzales is the president's final sounding board 
     on issues that in previous administrations were largely 
     handled by experts in the National Security Council or the 
     departments of State and Defense. ``There is a reason you 
     have trusted aides in key positions. It's to get their 
     judgment after hearing everyone else's judgment,'' says 
     Dan Bartlett, the president's communications director.
       The way Mr. Gonzales sees it, the war on terrorism requires 
     a re-examination of the conventional rules, and it is his job 
     to push Congress, the courts, and the international community 
     to do that. ``Some of these principles have never been 
     addressed in a court of law,'' says Mr. Gonzales. ``People 
     think it is obvious that an American citizen, for example, 
     would have a right to counsel if detained as an enemy 
     combatant. But that's not so obvious.''
       Before Sept. 11, Mr. Gonzales's only brush with the Geneva 
     Conventions was in death-penalty appeals, such as the 1997 
     case of Mexican native Tristan Montoya. Under the Geneva 
     agreement, Mr. Montoya had a right to contact his consulate 
     office, but Texas authorities failed to inform him of that 
     right. Mr. Gonzales argued that omission wasn't significant 
     enough to overturn Mr. Montoya's murder-robbery conviction. 
     He asserted Texas was under no obligation to enforce the 
     agreement anyway since the state wasn't a party in ratifying 
     it. Mr. Montoya was executed and the U.S. State Department 
     sent a letter of apology to Mexico for the agreement's 
     violation.
       After the terrorist attacks, Mr. Gonzales took a new look 
     at those agreements. The reference book ``The Laws of War'' 
     is the newest addition to his research shelf. It was given to 
     him by John Yoo, a former University of California, Berkeley 
     professor now serving in the Justice Department's Office of 
     Legal Council. Mr. Yoo built a formidable reputation in elite 
     international law academic circles--the ``academy'' as they 
     call themselves--for his provocative writings asserting 
     profound presidential powers during time of war. He quickly 
     became the White House counsel office's ``go to guy,'' says 
     Mr. Gonzales.
       But the Gonzales team's first venture into the 
     international-law arena was a rocky one. On Nov. 13, 2001, 
     Mr. Bush announced his intention to revive World War II-style 
     military commissions. He released a framework that excluded 
     explicit assurances of unanimous verdicts, rights to appeal, 
     public trials, and a standard of proof beyond a reasonable 
     doubt. The legal community--particularly military experts--
     exploded.
       Over the next four months, Pentagon attorneys, who had 
     complained about being kept out of the loop, wrote 
     regulations for the commissions that guaranteed most of those 
     rights. Still lacking, critics say, is the right to appeal to 
     an outside court. ``Our political leaders just can't have the 
     ultimate say on guilt and innocence,'' says Tom Malinowski, a 
     Washington advocate and director of Human Rights Watch.
       Mr. Gonzales was ``surprised'' by the sharp reaction to the 
     commission ruling, but acknowledged it may have been written 
     and released too hastily. He says he conducts wide-ranging 
     consultations, but that there are times when others within 
     the administration just don't agree with his final 
     recommendation for action.
       Two months after the commission order, Mr. Gonzales was 
     readying another critical wartime recommendation--that the 
     president deny Geneva Convention coverage to detainees housed 
     in a makeshift prison in Cuba's Guantanamo Bay Naval Base. 
     National Security Council lawyers tried to slow the order, 
     but, on Jan. 18, Mr. Bush adopted that stand. ``They are not 
     going to become POWs,'' Mr. Gonzales said.
       The move immediately drew objections from the State 
     Department. Mr. Powell, fearing captured U.S. servicemen or 
     spies could face reprisals, demanded the president

[[Page S845]]

     reconsider the ruling. The secretary's discomfort was 
     compounded by a Jan. 25 memo written by Mr. Gonzales that 
     misstated Mr. Powell's position and concluded that the 
     secretary's arguments for ``reconsideration and reversal are 
     unpersuasive.''
       Mr. Powell argued that while the detainees didn't deserve 
     prisoner-of-war status, the administration must use the 
     Geneva Conventions to reach that conclusion. After two 
     intense NSC meetings, Mr. Bush opted to reverse course--but, 
     for Mr. Gonzales, it was only a technical loss.
       Today, federal judges are grappling with Mr. Gonzales's 
     interpretation of the rights of U.S. citizens, the ``enemy 
     combatants,'' who have been held for months without charges 
     or access to attorneys. That is an issue that is unlikely to 
     be resolved until it reaches the Supreme Court.
       Mr. Gonzales readily admits the White House might lose some 
     ground in those court cases. While being ``respectful'' of 
     constitutional rights, the administration's job ``at the end 
     of the day'' is ``to protect the country,'' he says. 
     ``Ultimately, it is the job of the courts to tell us whether 
     or not we've drawn the lines in the right places.''
                                  ____


               [From the National Journal, Nov. 13, 2004]

          Opening Argument--The Problem With Alberto Gonzales

                         (By Stuart Taylor Jr.)

       White House Counsel Alberto Gonzales is an amiable man with 
     an inspiring personal story. One of eight children of 
     uneducated Mexican-American immigrants, he grew up in a Texas 
     house with no hot water or telephone. He would be the first 
     Hispanic attorney general. He has the complete trust of the 
     president, whom he has loyally served for four years in 
     Washington, and in Texas before that. He is far less divisive 
     and confrontational than the departing John Ashcroft.
       The problem with Gonzales is that he has been deeply 
     involved in developing some of the most sweeping claims of 
     near-dictatorial presidential power in our nation's history. 
     These claims put President Bush literally above the law, 
     allowing him to imprison and even (at least in theory) 
     torture anyone in the world, at any time, for any reason that 
     Bush associates with national security. Specifically:
       Gonzales played a central role in developing Bush's claim 
     of unlimited power to seize suspected ``enemy combatants''--
     including American citizens--from the streets or homes of 
     America or any other nation, for indefinite, incommunicado 
     detention and interrogation, without meaningful judicial 
     review or access to lawyers.
       He presided over the preparation of the poorly drafted 
     November 2001 Bush order establishing ``military 
     commissions'' to try suspected foreign terrorists for war 
     crimes.
       He signed the January 25, 2002, memo to the president 
     arguing that the 1949 Geneva Conventions offer no protection 
     to any prisoners seized in Afghanistan; the memo dismissed 
     some of the Geneva provisions as ``quaint.'' This memo 
     signaled Bush's break--over vigorous objections from 
     Secretary of State Colin Powell--with the generous 
     interpretation of the Geneva Conventions used under every 
     president from Harry Truman through Bill Clinton. It also led 
     to Bush's refusal to provide the individual hearings 
     required, both by Geneva and by Army regulations, for the 
     hundreds of alleged ``unlawful combatants'' at his Guantanamo 
     Bay prison camp.
       He was the addressee of, and apparently had a role in 
     vetting, the August 1, 2002, Justice Department memo 
     asserting that the commander-in-chief has virtually unlimited 
     power to authorize indiscriminate use of torture in wartime 
     interrogations--tearing off fingernails, branding prisoners' 
     genitals with red-hot pokers, you name it.
       Here is how these profoundly unwise claims have worked out:
       The no-due-process ``enemy combatant'' policy brought Bush 
     an 8-1 rebuff from the Supreme Court on June 28, in Hamdi v. 
     Rumsfeld. The majority asserted that ``a state of war is not 
     a blank check for the president.'' Antonin Scalia, the 
     justice whom Bush has said he most admires, stressed in a 
     concurrence that ``the very core of liberty secured by our 
     Anglo-Saxon system of separated powers has been freedom from 
     indefinite imprisonment at the will of the executive.''
       The ``military commissions'' have been a fiasco in practice 
     (as detailed in my September 11, 2004, column) and were held 
     to be unlawful in important respects on November 8 by Judge 
     James Robertson of the U.S. District Court for the District 
     of Columbia. (The administration plans to appeal.)
       Bush's spurning of the Geneva Conventions and refusal to 
     provide hearings for Guantanamo detainees probably explain 
     his 6-3 defeat in another June 28 Supreme Court decision, 
     Rasul v. Bush, which rejected Bush's claim of power to detain 
     non-Americans at Guantanamo without answering to any court. 
     And Judge Robertson wrote that the administration ``has 
     asserted a position starkly different from the positions and 
     behavior of the United States in previous conflicts, one that 
     can only weaken the United States' own ability to demand 
     application of the Geneva Conventions to Americans captured 
     during armed conflicts abroad.''
       The Justice Department torture memo, together with a 
     similar Pentagon memo in March 2003 and the Abu Ghraib 
     photos, have brought the United States worldwide opprobrium 
     for authorizing torture as official policy (which Bush did 
     not do) while making the CIA and the military newly wary of 
     using even mild, legally defensible forms of coercion to 
     extract information from captured terrorists.
       If Senate Democrats (and Republicans) are not too cowed by 
     Bush's election victories to do their jobs, the confirmation 
     proceeding for Gonzales will drag us more deeply than ever 
     through the torture memos, Abu Ghraib, the evidence of 
     torture and killing of prisoners by U.S. forces in 
     Afghanistan, and all that. Will that be good for Gonzales? 
     For Bush? For the country?
       At the very least, Democrats should demand a full 
     accounting of Gonzales's role in the development of these 
     torture memos. And when Bush claims confidentiality, the 
     answer should be: If you must cloak in secrecy your counsel's 
     role in shaping your own grandiose claims of power, then 
     don't ask us to confirm him.
       Here is a far-from-complete history of the torture memos, 
     as reconstructed from anonymous sources and news reports:
       The CIA began using various forms of duress to extract 
     information from captured Qaeda leaders overseas in late 2001 
     and early 2002. But agency officials were concerned that they 
     might be prosecuted by some future administration or 
     independent counsel, and that the CIA itself might be 
     attacked for abusing its powers, as it was during the 1970s. 
     So CIA Director George Tenet requested a legal memo assuring 
     interrogators and their superiors sweeping presidential 
     protection from any future prosecution under an anti-torture 
     law that Congress had adopted in 1994 to comply with the 
     United Nations Convention Against Torture and Other Cruel, 
     Inhuman, or Degrading Treatment or Punishment.
       The task was assigned to the Justice Department's Office of 
     Legal Counsel. The Bush-appointed head of OLC, Jay Bybee, now 
     a federal judge, and some other Justice Department and White 
     House lawyers were reluctant to make such a bold and 
     unprecedented claim of presidential power. But under apparent 
     pressure from their superiors, Bybee and his staff produced 
     the August 1, 2002, memo, addressed to Gonzales. Earlier 
     drafts had been carefully vetted by the offices of Gonzales, 
     Ashcroft, and David Addington, Vice President Cheney's 
     counsel.
       I have been unable to determine how deeply Gonzales was 
     involved in the details. The Senate should demand to know.
       Aside from the OLC memo's indefensible claims of 
     presidential power to order torture, it also claims that 
     rough treatment of prisoners does not even fit the definition 
     of torture unless ``equivalent in intensity to the pain 
     accompanying serious physical injury, such as organ failure, 
     impairment of bodily function, or even death.''
       There is no evidence that the administration ever approved 
     ``torture,'' as thus defined, as a matter of policy. It did 
     approve a number of highly coercive, still-classified 
     interrogation methods, such as feigning suffocation and 
     subjecting prisoners to sleep deprivation and ``stress 
     positions,'' which apparently helped extract valuable 
     information from Qaeda leaders. And in 2003, the Pentagon 
     adopted the Justice Department's analysis--initially devised 
     for CIA interrogations of a few high-level terrorists--to 
     justify coercive interrogations of prisoners at Guantanamo 
     and, later, in Iraq. This came despite strong objections from 
     top military lawyers, based on their long-standing view that 
     rough interrogation methods are ineffective, arguably 
     illegal, and likely to become indiscriminate and excessive.
       How much all of this had to do with bringing about the now-
     documented torture, abuses, and killings of prisoners in Iraq 
     and Afghanistan is in dispute. What's clear is that the 
     leaked torture memos, as well as the Abu Ghraib photos, 
     disgraced our nation--so much so that Gonzales and other 
     White House officials, at a June 22 news conference, sought 
     to blame the OLC lawyers for what Gonzales called their 
     memo's ``overbroad'' and ``unnecessary'' passages. The Senate 
     should now explore whether (as has been suggested to me) the 
     OLC lawyers had only been following orders from the same 
     White House officials who later ran for cover.
       This is not to deny the difficulty of the issues presented 
     to Gonzales and his colleagues by the unprecedented magnitude 
     of the terrorist threat. Nor is it to deny the need for 
     judicious use of preventive detention and coercive 
     interrogation techniques (short of torture) to prevent mass 
     murders. But the torture memos are emblematic of a Bush White 
     House that has consistently failed to strike a wise balance 
     between the demands of security and of liberty.
       Gonzales's role in all of this appears to be to tell Bush 
     what Bush wants to hear. With the dubious benefit of such 
     advice, Bush has not only shown little appreciation for civil 
     liberties but also provoked a judicial and international 
     backlash that has hurt the war on terrorism. Gonzales does 
     have many fine qualities. But is this the attorney general we 
     need?
                                  ____


               [From the Washington Times, Jan. 24, 2005]

                       Abu Ghraib Accountability

                            (By Nat Hentoff)

       Although there was considerable media coverage of Alberto 
     Gonzales's confirmation hearing for attorney general, a look 
     at the full transcript still raises, for me, serious 
     questions about his fitness to be our chief law enforcement 
     officer.

[[Page S846]]

       At the start, Mr. Gonzales told the senators and the rest 
     of us: ``I think it is important to stress at the outset that 
     I am and will remain deeply committed to ensuring that the 
     United States government complies with all of its legal 
     obligations as it fights the war on terror, whether those 
     obligations arise from domestic or international law. These 
     obligations include, of course, honoring Geneva Conventions 
     whenever they apply.''
       Sen. Ted Kennedy asked the nominee if the media reports 
     were accurate that Mr. Gonzales had chaired meetings that 
     covered specific ways to make detainees talk. For example, 
     having them feel they were about to be drowned or buried 
     alive. Mr. Gonzales answered: ``I have a recollection that we 
     had some discussions in my office.'' But, he said, ``it is 
     not my job to decide which types of methods of obtaining 
     information from terrorists would be most effective. That job 
     falls to folks within the agencies.''
       So, ``the agencies,'' including the CIA, can do whatever 
     they consider effective; and Mr. Gonzales suggests that he 
     had no role as to the lawfulness of those methods when he was 
     counsel to the president, our commander in chief? Should he 
     not have told the president that the Geneva Convention 
     Against Torture and Other Cruel, Inhuman, or Degrading 
     Treatment or Punishment forbids ``any act by which severe 
     pain or suffering, whether physical or mental, is 
     intentionally inflicted on a person for such purposes as 
     obtaining from him or a third person information or a 
     confession''? And should he not have been interested in 
     trying to find out how many of those detainees had been 
     sufficiently screened when captured in order to indicate 
     whether they actually were terrorists or suspects or 
     indiscriminately rounded up?
       Sen. Russ Feingold asked Mr. Gonzales whether the president 
     has ``the authority to authorize violations of the criminal 
     law under duly enacted statutes (by Congress) simply because 
     he's commander in chief.'' Mr. Gonzales said: ``To the extent 
     that there is a decision made to ignore a statute, I consider 
     that a very significant decision, and one that I would 
     personally be involved with . . . with a great deal of care 
     and seriousness.'' ``Well,'' Mr. Feingold said, ``that sounds 
     to me like the president still remains above the law.'' When 
     Mr. Kennedy asked the same question, Mr. Gonzales said it was 
     ``a very, very difficult question.'' So, what does he believe 
     about the separation of powers?
       Another question from Mr. Kennedy: ``Do you believe that 
     targeting persons based on their religion or national origin 
     rather than specific suspicion or connection with 
     terrorist organizations is an effective way of fighting 
     terrorism? And can we get interest from you [that[, as 
     attorney general, you'd review the so-called anti-
     terrorism programs that have an inordinate and unfair 
     impact on Arab and Muslim?'' Mr. Gonzales responded: ``I 
     will commit to you that I will review it. As to whether or 
     not it's effective will depend on the outcome of my 
     review.'' But Mr. Gonzales didn't answer the first crucial 
     part of the question: Is targeting people based on 
     religion, without specific suspicion, effective? And, I 
     would add, isn't it broadly discriminatory?
       Asked by Sen. Patrick Leahy about increasing reports of 
     abuse of detainees in Iraq and Guantanamo Bay, Mr. Gonzales 
     said: ``I categorically condemn the conduct that we see 
     reflected in these pictures at Abu Ghraib.
       ``I would refer you to the eight complete investigations of 
     what happened at Abu Ghraib and Guantanamo Bay, and there are 
     still three ongoing,'' he added. But none of the 
     investigations have gone so far up the chain of command as 
     the Defense Department and the Justice Department to 
     determine the accountability of high-level policy-makers 
     there.
       As The Washington Post noted in a lead editorial on Jan. 7, 
     ``The record of the past few months suggests that the 
     administration will neither hold any senior official 
     accountable nor change the policies that have produced this 
     shameful record.'' Nor did the senators ask themselves about 
     Stuart Taylor's charge in the Jan. 8 National Journal that 
     ``Congress continues to abdicate its constitutional 
     responsibility to provide a legislative framework'' for the 
     treatment of detainees. The White House strongly resists 
     Congress' involvement.
       ``No longer,'' Mr. Taylor insisted, ``should executive fiat 
     determine such matters as how much evidence is necessary to 
     detain such suspects (and) how long they can be held without 
     criminal charges.'' As U.S. attorney general, will Mr. 
     Gonzales move to reinstate the constitutional separation of 
     powers to prevent further shame to the United States for the 
     widespread abuses of detainees under the executive branch's 
     parallel legal system of which Alberto Gonzales was a 
     principal architect?

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, I rise this morning to speak about a man 
whose life and career embody principles that are uniquely, and proudly, 
American. He is the grandson of immigrants who overcame language and 
cultural barriers to carve out an existence through manual labor and 
faith. Through his commitment to education, his firm belief in the law, 
and a dedication to public service, he has risen to the top of his 
profession and now seeks to serve his country at the highest level. Mr. 
President, I rise this morning to speak about Alberto Gonzales and to 
urge bipartisan support for his confirmation as Attorney General of the 
United States.
  Alberto Gonzales's qualifications speak for themselves. He is a 
graduate of Harvard Law. He served as Secretary of State for the State 
of Texas and as a justice on Texas' Supreme Court before being named 
White House Counsel by President Bush in 2001. Mr. Gonzales was 
recently inducted into the Hispanic Scholarship Fund Alumni Hall of 
Fame and has been honored with the Good Neighbor Award from the United 
States-Mexico Chamber of Commerce.
  Henry Cisneros, the former Secretary of Housing and Urban 
Development, calls Alberto Gonzales a person of sterling character and 
says that Mr. Gonzales's confirmation by this body will be part of 
America's steady march toward liberty and justice for all.
  It is a march that, for Alberto Gonzales, started in a two-bedroom 
house shared by ten people with no hot running water or telephone. But 
what Alberto Gonzales and his family lacked in comfort they made up for 
in vision and hard work.
  Alberto was the first person in his family to go to college. He 
served in the United States Air Force and attended the United States 
Air Force Academy.
  But Alberto Gonzales is about more than an impressive resume. Each 
experience in his life has prepared him for the great honor of serving 
as the next Attorney General of the United States--a job he is 
extremely qualified for and a job that I know he will perform with 
honor and dignity.
  As the Nation's chief law enforcement officer, Alberto Gonzales will 
take the lessons from his positions as Counsel to the President, Texas 
Supreme Court Justice, Texas Secretary of State, and General Counsel to 
the Governor and work to protect Americans from terrorism while 
protecting our Constitutional rights. He will also work to reduce 
crime, reform the FBI, and protect Americans from discrimination.
  Alberto Gonzales has come a long way since his days growing up in 
Humble, Texas. He has accomplished so much, but he has never forgotten 
from where he came. He has been committed to the Latino community 
throughout his career, and they have recognized him for his community 
service and the impact he has made. Today, many of the largest national 
Latino organizations are standing in staunch support of his nomination 
and looking forward with great anticipation to the swearing-in of the 
first Latino Attorney General for the United States.
  For Alberto Gonzales, the march toward liberty and justice started in 
Humble, TX, and continued through many ambitious goals. Alberto 
Gonzales has defied the odds and surpassed expectations time and time 
again. His successes have created a foundation that will serve our 
Nation well and inspire a new generation to aspire and conquer.
  I urge my colleagues to join me as we continue the march toward 
liberty and justice by voting to confirm Alberto Gonzales as the next 
Attorney General of the United States.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank the Senator from Nevada for his 
fine comments about Judge Gonzales.
  We have gotten to know Judge Gonzales over the years. He is a good 
and decent man, a fine lawyer who respects the rule of law, who is 
proud to be an American. He wants to see our country strong and free. 
He led the effort in the fight against terrorism. He did the things we 
wanted him to do.
  He has a background that excites our pride. We are pleased to see how 
much he has achieved. He went to Harvard and was hired by one of 
America's great law firms. He served the Governor of Texas, was a judge 
in Texas--and all of his credential are wonderful.
  We know he is a good, decent, honorable, and honest man.
  If you listen to the comments made here today, by some Democrats, 
about him, you would not recognize the man we know.
  It is not right. What has been done here is wrong.
  If you have a disagreement with the policy of the President of the 
United States, OK, we will talk about it and

[[Page S847]]

we will see what the differences are. But it is not right to demean and 
mischaracterize the nature of Judge Gonzales. I feel strongly about 
that.
  I served in the Department of Justice for 15 years. I would like to 
share a few thoughts to give us some perspective about the role Judge 
Gonzales has played.
  Judge Gonzales was legal counsel to the President. He was the 
President's lawyer. Of course, everyone who is a lawyer--I am a lawyer 
and a good number in this body are lawyers--knows that lawyers protect 
the legal prerogatives of their clients. You do not want to in 
memorandum and public statements make statements that constrict the 
ultimate power of the institution of the Presidency of the United 
States. That is a fundamental thing. That is what you have to do. That 
is what you are there for.
  When 9/11 happened and we were taken aback by the viciousness of the 
attacks, we were worried, rightly, that throughout this country there 
would be terrorist cells continuing to plot as they were perhaps in 
Arizona, or in other places, as we have learned. We wanted to be sure 
we were defending this country well. We had to make some decisions.
  We went after al-Qaida in Afghanistan. A lot of legal questions 
arose.
  I serve on the Judiciary Committee. We had hearing after hearing 
regarding these issues.
  Let me tell you what I think Judge Gonzales did not do. Not I think; 
I know he did not do. He did not approve of torture. He has always 
steadfastly opposed it. His position has consistently been that we 
comply with the laws of the United States and our treaty obligations. I 
will talk about that in a minute.
  But that was not his call at that point in time. He did not privately 
tell the President, or call up the Secretary of Defense, or call the 
guard at Abu Ghraib and say torture these prisoners. He sought a formal 
legal opinion concerning the powers and responsibilities of the 
President of the United States as a lawyer for the President. He made 
that request of the Office of Legal Counsel, a senatorial-confirmed 
position of the U.S. Department of Justice, a position that is given 
the responsibility to opine on matters of this kind. They are not to 
set policy. They are not to say what torture is other than what the law 
says. They do not express their own views. But he asked them what the 
legal responsibilities and powers of the President were. They 
researched the law. They sent back a memo. That is the memo being 
complained of, a memo not written by Judge Gonzales, a memo written by 
the Office of Legal Counsel of the U.S. Department of Justice and their 
staff that worked on it at some great length. We have had complaints 
about it.
  Judge Gonzales later on said: There have been complaints about this 
memorandum. You need to redo it.
  He suggested that, I guess, on behalf of the President, and they 
rewrote it. They constricted the issues they discussed. They didn't 
speculate on what the ultimate powers of the President might be. They 
did that less in the second memorandum than they did in the first.
  That is how this came about. It was their opinion, not his. They say 
he circulated it. Well, do you want him to circulate his personal 
views? Do you want him to circulate some politician's views? Or do you 
want him to circulate the duly drafted opinion of the Office of Legal 
Counsel of the U.S. Department of Justice which researched our history, 
the treaties, the Constitution, and the court cases of the United 
States?
  We need to get our mind in the right perspective and remember the 
circumstances we are operating under. I will repeat, Judge Gonzales has 
never supported torture. We have Members who have said Judge Gonzales 
advised the President of the United States that torture was acceptable. 
That is false, inaccurate, and wrong. Anyone who said that ought to 
apologize for it. Do we have no sense of responsibility in what we say? 
Are we irresponsible, that we can attack this fine man, a son of 
immigrants who worked his way up through the entire legal system to be 
now nominated to that great office of Attorney General of the United 
States? He deserves a fair shake. He has not been getting it.
  They say he abandoned the rule of law. He did not do that. He sought 
a legal opinion from the duly constituted Office of Legal Counsel which 
is supposed to render those opinions. He disseminated those opinions 
and now they blame him for it. It is not the right thing to do. As 
President Bush said on more than one occasion, but on the eve of the G-
8 summit in June of last year:

       The authorization I issued was that anything we did would 
     conform with United States law and would be consistent with 
     international treaty obligations.

  That has been the position. In a letter to Senator Leahy, Assistant 
Attorney General Will Moschella in the legislative affairs division of 
the Justice Department rejected categorically ``any suggestion that the 
Department of Justice has participated in developing policies that 
would permit unlawful conduct.''
  In a special piece submitted to USA Today, Judge Gonzales, in his 
capacity then as White House Counsel, stated ``in all aspects of our 
Nation's war on terror, including the conflict in Iraq, it is the 
policy of the United States to comply with the governing laws and 
treaty obligations.'' I will talk more about that because it is 
important legally to understand what has been occurring.
  We as a nation do not approve of torture. We reject it. We prosecute 
and discipline those who are participating in it or carry it out and we 
have been committed to that as a country. We ought to ask ourselves, 
has this Congress stated any position on terrorism? What did they say?
  I remember not too many months ago when Attorney General John 
Ashcroft was before the Judiciary Committee. They were bombarding him 
with the allegations that he was responsible for Abu Ghraib, he was 
responsible for any misbehavior throughout our entire command, and that 
he had approved torture, and they quoted things they said he approved. 
In frustration, Attorney General Ashcroft, looking at his former 
colleagues, said ``Well, the problem I have with you, Senator, is, it 
is not my definition of torture that counts. It's the one you enacted 
into law.''
  Do you know we have a law that defines torture and sets forth what it 
amounts to and how it should be defined? It is that definition that was 
made a part of the OLC, Office of Legal Counsel memorandum, and it is 
that memorandum and that language our colleagues across the aisle are 
complaining about, and some of them were here when that statute passed 
and they voted for it.
  Let's take a look at that. This statute, part of the United States 
Code, says:

       Torture means an act specifically intended to inflict 
     severe physical or mental pain or suffering upon another 
     person. Severe mental pain or suffering means the prolonged 
     mental harm caused by or resulting from the intentional 
     infliction or threatened infliction of severe physical 
     pain or suffering. The threat of imminent death or the 
     threat that another person will imminently be subjected to 
     death, severe physical pain or suffering, or the 
     administration or application of mind-altering substances 
     or procedures calculated to disrupt profoundly the senses 
     or personality.

  These words were used--and I know the Presiding Officer is a skilled 
JAG officer from South Carolina--those were the words discussed in the 
OLC memorandum. They used those kinds of words. The same kind of words 
passed by a number of Democrat Members in this body. The authors of the 
OLC memo simply discussed the meaning of these words passed by the 
Congress. Now some are arguing that because of this memo we approve 
these horrible things.
  I suppose a person could misinterpret deliberately some of that and 
carry out things that are not legitimate. I suppose some of these 
things would be legitimate. We said they were when we passed the 
statute, or at least we did not prohibit them when we passed the 
statute.
  Who defines torture? The Office of Legal Counsel? Judge Gonzales? The 
President of the United States? Or the U.S. Congress? We have enacted a 
definition of torture, the one I just read. It might offend some 
people, but as it is, that is the definition of torture, I submit, and 
I don't see how it can be disputed.
  We did have activities that occurred. This memorandum fundamentally 
was

[[Page S848]]

advice to the President on what his ultimate powers were. But the 
President's orders, the policies of the U.S. military, were much more 
constrained than possibly would have been allowed under this statutory 
definition. Not that the President ultimately did not have that power. 
But we have not utilized that power or approved it. In fact, we have 
disciplined people who have not followed those rules and regulations.
  First, it is always going to be the President's fault, during an 
election year. Then it was Secretary Rumsfeld, and then Condoleezza 
Rice. At some point they decided to quit blaming Secretary of State 
Rice during her confirmation proceedings and start blaming it all on 
Judge Gonzales. So now we have been through the President, the 
Secretary of State, National Security Adviser, the Secretary of 
Defense, and now we are down on Judge Gonzales. It is all his fault. 
Now he cannot be confirmed because somebody at Abu Ghraib violated 
policy. They have been tried. Some have already been convicted. They 
have been removed from office.
  We had the situation--do you remember it?--when a full colonel in the 
Army, in the heat of battle, concerned for the safety of his troops, 
fired a gun near the head of an Iraqi terrorist to induce him to give 
information that would protect the lives of his soldiers. And we 
drummed him out of the service for it long before a lot of this 
happened.

  Remember, it was the military that brought forth the abuses at Abu 
Ghraib. They recognized that some had violated the laws of the United 
States and that those activities should not be allowed. They have 
disciplined people systematically since. They are continuing to do so. 
If anybody higher up is implicated, these lower guys are going to tell 
about it. They are going to pursue that, I have absolute confidence. 
And we will pursue that.
  But I think it is unhealthy for our country, dangerous to our troops, 
undermining of our mission to suggest that it was the policy of the 
U.S. Government to do this. How can that help us gain respect in the 
world when Senators in this body allege that the President's own 
counsel is approving what went on in Abu Ghraib, that his policies 
legitimized what was going on in Abu Ghraib? I do not believe that is 
true. It is not true. We should not be saying it. We had a big enough, 
bad enough problem in Abu Ghraib. It was an embarrassment to us. We 
were painfully hurt by it. And it should not have occurred. But I will 
say, with confidence, that Judge Gonzales does not bear the blame for 
that.
  Discipline in war is hard to maintain. I mentioned the example of how 
a highly decorated colonel was removed from the service for his failure 
of discipline, even in a tough time. I remember back in the Pacific, in 
those island campaigns, neither side took prisoners. It was a battle to 
the death. We are facing an enemy unlike enemies we have faced before. 
They are a ferocious, suicidal, murderous, sneaky bunch that for most 
of them, hopefully not all, but for most of them they simply have to be 
defeated, they have to be captured, they have to be killed, they have 
to be restrained because they will not stop. If we are successful in 
doing that, I believe the glory that some of these terrorists have 
attained will be diminished, and it will be seen that they represent a 
small, backward, insular, violent mentality, not conducive to progress, 
peace, and democracy in the Middle East or anyplace else in the world.
  I think we are going to make progress on that. We need to hold our 
standards high. I certainly agree with that. But war is a difficult 
thing. People do make mistakes. We have abuses in the Federal prison 
systems and in State prison systems. Senator Kennedy and I offered 
legislation to prohibit sexual abuse in prisons by guards and 
prisoners, and to investigate it, to identify it, and stop it. But we 
know we have abuses in our prisons, and we need attention from the top 
and discipline from the top.
  I will note a recent article about Abu Ghraib. Soldiers were 
interviewed in a Washington Post article, and they all said this was 
unacceptable behavior; it should have never occurred. It is clear that 
the soldiers who are there today fully understand their 
responsibilities to treat these people humanely, and that they will do 
so.
  I want to mention one more thing about some of the details of this 
issue. First, I think it is indisputable that al-Qaida and such 
terrorists who are about and loose in the world today do not qualify 
under the Geneva Conventions. They simply are not covered by it because 
they are not the kind of lawful combatants the Geneva Conventions 
protect.
  Now, the President says we are going to treat them humanely in any 
case, and we are going to treat them fairly. In many instances he says 
we are going to provide them the protections of the Geneva Conventions 
even though they are not entitled to them.
  For example, it is the position of the White House that no detainee 
should be subjected to sleep deprivation. Now, I think under the 
torture statutes, sleep deprivation, at least to some degree, would not 
qualify as a severe kind of pain or the psychological impairments that 
were referred to in the statute Congress passed defining torture. But 
the President said that we would not deprive them of sleep anyway. Nor 
should they be deprived of food and water during any period of 
interrogation. Soldiers and interrogators were even prohibited from the 
act of pointing a finger at the chest of a detainee. That was declared 
an unacceptable technique by Secretary of Defense Rumsfeld 2 years ago, 
January 15, 2003. Well, we have gone a pretty good ways in trying to 
ensure that our behavior is good. We have prosecuted people at Abu 
Ghraib. We have disciplined a lot of people in Iraq and Afghanistan who 
have exceeded their authority. In the course of furthering our intense 
war against terrorism, we have tried to maintain control over our 
decency and our morality. I do not think Members of this body should be 
suggesting that we do not or that it is our policy to violate 
international law or the rights under our own statutes concerning 
torture and other rules.

  I heard it pointed out we all have things that do not work out right 
in our lives. We do things we thought were right at the time and 
justified them, and they maybe turn out to be wrong. Nobody who ever 
comes before this body for confirmation is perfect. I know my 
colleague, Senator Durbin, has stated that Judge Gonzales is no Robert 
Kennedy. And they are different people in different times. Robert 
Kennedy was appointed Attorney General by his brother. How much closer 
can you be than that? But we now know from many of the histories that 
have been written that on a number of occasions Robert Kennedy, as 
Attorney General, clearly violated the legal and constitutional rights 
of people he was investigating for criminal activities. I do not think 
that is disputed.
  Well, let me tell you, what would have happened if that had been true 
of Judge Gonzales? How far would he get along in this process? He would 
not get to first base.
  I would say this: Judge Gonzales was at the right hand of the 
President of the United States when we were deliberately attacked by an 
al-Qaida organization that had announced they were at war with the 
United States, that they were authorized and empowered, and it was 
legitimate for them to attack and murder civilians of the United 
States. We needed to respond to that. We did not need the legitimate 
power of the President to be constrained by some politically correct 
memorandum, a memorandum that he requested from the Department of 
Justice, which was written by them and which represented a statement of 
policy of the United States with regard to the powers of the Presidency 
and those in the military.
  I think, all in all--there have been bumps in the road--but, all in 
all, our Government, from the President throughout the executive 
branch, including the military, has done its best to fight this 
vicious, despicable, violent enemy, an enemy that does not meet the 
standards of a lawful combatant but is clearly, in fact, unlawful 
combatants not entitled to the protections of the Geneva Conventions. 
We have treated them humanely, with a number of exceptions for which 
discipline has been applied. And we have striven in every way possible 
to tighten up since the beginning of this war our discipline with 
regard to our soldiers and our policies to make sure we have the least 
possible errors that

[[Page S849]]

would occur in this process of fighting this war on terrorism. I 
believe that deeply.

  Soldiers have placed their lives at risk. They have placed the lives 
of their associates and comrades at risk, adhering to the highest 
ideals of American values of life. They have not pulled triggers, 
subjecting themselves to risk, because they were not sure. They have 
held back and shown restraint time and time again. That has not been 
sufficiently appreciated. We have spent almost all of our time having 
Members of the Congress attack and blame the whole Government for 
failures in these hostilities of a few.
  I believe Judge Gonzales is not the person to blame for all this. I 
do not believe the Counsel to the President is responsible for Abu 
Ghraib. He is not responsible for an opinion written by an independent 
agency of the Government, legally empowered and directed by this 
Congress to write it.
  He is a good man, a decent man, a man we have seen up close and 
personal for quite a number of years. I find in him the highest 
standards of Americanism and decency. He is a superb lawyer. He has had 
a ringside seat on how the Justice Department works without being a 
part of it. It will allow him to move into it with a fresh look and be 
able to do good things.
  I believe strongly he should be confirmed. I am disappointed in the 
nature of the attacks put on him. I believe they have been unfair and 
do not do justice to his character and the effectiveness of his 
service.
  It is a pleasure to speak on behalf of this fine American. He will 
make a great Attorney General. I look forward to his confirmation and 
all of us working with him.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Murkowski). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SESSIONS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Madam President, I believe it is important that we 
discuss more carefully what our responsibilities are as a nation under 
the Geneva Conventions. We have had a lot of things said here, smeared 
over, slopped over, vague allegations of misconduct on behalf of this 
President and our country. Our soldiers are out fighting for us. We 
need to understand what it is.
  They have alleged repeatedly that all this is in violation of the 
Geneva Conventions, all this amounts to torture. I previously have gone 
into some depth about what the congressional act was that prohibited 
torture and how this Congress defined torture and what it meant. It 
does not mean someone can't be deprived of some sleep or have an 
interrogator raise his voice during questioning. That is not torture.
  I would make clear this basic fact--it is so basic we often don't 
think about it--this group al-Qaida has declared war on the United 
States. Not only have they declared it in a traditional lawful manner 
of nation states that they have done over the years, at least quasi-
lawful; they have done it as a group of unlawful combatants, and they 
have done it in a way that is not justified under the Geneva 
Conventions or international law of any kind, shape, or form. When our 
soldiers go out and they are engaging al-Qaida, they don't give them a 
trial. They don't read them their Miranda rights. They don't sit down 
and see what they can do to ask them if they would change their heart. 
They shoot them. We are at war with them. They are a hostile enemy, and 
we do that.
  When you capture a hostile enemy who a few moments before, you could 
have killed lawfully as a soldier of the United States executing the 
policy of the United States against a person who has declared war 
against you and has publicly stated they are justified in killing 
innocent American civilians, men, women and children, if you can do 
that, if you capture them, they don't then become entitled to every 
right that an American citizen has when he is tried in the U.S. 
district court for tax evasion or bank robbery or drug dealing. It is 
not the same. Everybody knows that, if they have given any thought to 
war and treaties over the years.

  What is a controlling authority with regard to international 
agreements? It is the Geneva Convention. There have been a series of 
them. They have been amended over the years. The most pertinent one in 
this area is the Third Geneva Convention. This is in addition to the 
original Convention.
  It provides strict requirements--four, to be exact--that must be 
fulfilled by an individual should he seek the protections afforded by 
the treaty.
  In other words, everybody is not entitled to protection under the 
treaty. You have to do certain things, and you have to be what we have 
come to refer to as a lawful combatant.
  What are those requirements? He must be commanded by a person 
responsible for his subordinates. He should have a chain of command. He 
cannot be a single murdering bomber and claim he is a lawful combatant, 
having no authority in a chain of command and not acting on orders from 
some lawful entity.
  No. 2: He must, the exact words are, have a ``fixed, distinctive sign 
recognizable at a distance.'' What does that mean? It means you wear a 
uniform, basically. That is what it has always meant traditionally. So 
if you catch somebody in your country sneaking around not in uniform, 
they are spies, and they are hung. That is what happened historically. 
The Geneva Convention never changed that fundamentally.
  Carrying arms openly--the treaty considers that lawful combatants, 
such as a member of the U.S. Army, will carry their arms openly. They 
will have a distinctive uniform, and they will carry their arms openly, 
evidence of the fact that they are soldiers. This is important for a 
lot of reasons.
  One reason is that the people who are fighting against our soldiers 
are supposed to direct their fire at soldiers, not innocent civilians. 
So if they are wearing a uniform and carrying their arms openly, they 
know the target at which they are firing. The whole goal of the Geneva 
Conventions is to eliminate the loss of life of innocent people and to 
minimize loss of life in general and minimize the horror of war as much 
as possible.
  If they are to be considered as one who has the protections of the 
Geneva Conventions, they must be conducting their operations in 
accordance with the laws and customs of war. Sneaking around, hijacking 
airplanes, flying them into buildings, putting explosive devices under 
vehicles, throwing them at people in line to vote--those actions are 
not consistent with the laws and customs of war, for Heaven's sake.
  So there is no doubt whatsoever in my view that al-Qaida and the 
terrorist groups who do not wear uniforms, who go around bombing 
innocent people, are not acting according to the rules of war, who do 
not wear a uniform, who are not carrying their arms openly--they do not 
qualify for the protections of the Geneva Conventions. No counsel to 
the President, no counsel in the U.S. Department of Justice should 
render an opinion that says otherwise.
  The President can say: We are going to give the protections, anyway, 
which he has done, and we are going to treat the people in Iraq 
according--I think he said we will treat them according to the Geneva 
Conventions. I do not think we said that explicitly with regard to 
Afghanistan and al-Qaida, but these Iraqi guys who sneak around and 
bomb are not much different to me. We have provided more protections, I 
would say with absolute certainty, than international law or U.S. 
statutes provide.
  Al-Qaida is not a nation state. It has not signed the treaties of the 
Geneva Convention. Members of al-Qaida have no uniforms or distinctive 
signs. Al-Qaida has declared war on us, however, and they are quite 
capable through their sneaky, devious, murderous activities of sneaking 
into our country and killing Americans right now. If they are able to 
do so, they will.

  One reason they have not been able to do so is because we have been 
hunting them down with the finest military the world has ever known, 
that is using discipline, humanity, and the proper execution of 
violence against these people. That is just the way it is. We have gone 
after them. We have put them on the run. If they could have attacked us 
in our election, if they could have attacked us any time since 9/11, I 
submit they would have. We have had an Attorney General, John Ashcroft,

[[Page S850]]

who utilized the powers and laws provided to this country and our 
leadership to go after them.
  These people are entitled to certain rights, but not the same rights 
that exist for an American citizen. They represent a different kind of 
threat. They are unlawful combatants. They are an unlawful enemy which 
rejects and despises law. They reject our Constitution. They reject 
democracy. They see it as a threat. They want to rule their people 
according to their narrow definition of law. They want to oppress 
women. They do not want progress. They do not want freedom. They do not 
want the things the whole world needs. And those societies and that 
kind of mentality are what cause wars, not democracies.
  I feel strongly about this. It is important for us to be clear: We as 
a nation do not support, justify, or condone torture. We are 
disciplining people who have done so. We are putting people in jail who 
have done so. Guardsmen who came out of our communities, went to Iraq, 
worked midnight to 6 a.m., were away from home, lost their discipline 
and conducted themselves in ways that brought disrepute on the United 
States and violated our rules and standards of the military are being 
tried and convicted and put in jail, as they should be. It is sad we 
see that happen, and I know we will continue to punish those who 
violate our standards. As a result of those prosecutions and those 
actions, our military will show even greater discipline.
  I see the Senator from Idaho in the Chamber. I am sure he wishes to 
speak. I want to yield to him because I respect his insight on these 
matters.
  I will say, I am disappointed--deeply disappointed--in the unfair 
attacks that have been placed on Judge Gonzales. He is being blamed for 
every single thing about which people have complaints in the war 
against terrorism. They are saying he is responsible for everything 
that may have gone wrong, some of which was wrong, some of which 
probably was not wrong, but is being characterized as wrong. It is not 
right. He was counsel to the President. He did his duty. He sought the 
opinion from the proper people to give legal opinions on terrorism and 
war, and he conducted himself consistent with those principles. He 
steadfastly and continuously has condemned torture. He should be 
confirmed.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Madam President, I associate myself with the remarks of 
the Senator from Alabama. Over the last several years, I have had the 
privilege of serving with Senator Sessions on the Judiciary Committee. 
I have gained such phenomenal respect for his keen intellect and bright 
legal mind. When one listens to him, as those who might be watching 
today have, they get the truth, direct, clear, understandable, and 
unvarnished. That is what it is all about.
  The obfuscation of the truth sometimes finds its way to the Senate 
floor, and my guess is that it is finding its way to the Senate floor 
in the debate on the nomination of Alberto Gonzales.
  I rise in support of the nomination of Alberto Gonzales to be our 
next Attorney General. It seems to me that some of our colleagues are 
interested in not the true man and his qualifications but more in what 
they perceive to be the politics and the policies of this 
administration.
  In the last Congress, I had the privilege of serving as a member of 
the Senate Judiciary Committee and I witnessed this tactic used against 
judicial nominees time and time again, a tactic of equating a lawyer's 
performance as legal counsel with his likely performance to the very 
different role of being a judge. We saw that argued time and time again 
for a political purpose, not a reasonable analysis of the character of 
the individual and how he or she might perform in the new role in which 
they were being asked to participate.
  Likewise, in this debate some have argued we should evaluate Judge 
Gonzales's fitness for the post of Attorney General, the Nation's top 
cop, based on a politically driven examination of his work product as 
the President's Counsel. I urge my colleagues to abandon that tactic, 
reject that argument, and look at the lifetime achievement of the 
nominee if my colleagues truly want to understand who Judge Gonzales is 
and what he is qualified to do in the role he is now being asked to 
play by our President.
  I feel strongly that the Senate should vote to confirm this man. I 
had the privilege of getting to know Judge Gonzales and work with him 
firsthand while I served on the Judiciary Committee and in a variety of 
other settings.
  First, Judge Gonzales's past experiences have prepared him for the 
position to serve honorably in that position, in my opinion, without 
question. As Counsel to the President, he has been instrumental in 
coordinating our Nation's law enforcement in the heightened security 
environment. Following 9/11, as Senator Sessions has just referred to, 
while serving as Counsel to the President, Judge Gonzales paid 
particular attention to protecting our Nation from terrorism, while not 
forgetting the importance of doing so under the Constitution, in order 
to safeguard our rights as free citizens.
  Also, President Bush has acknowledged the great help Judge Gonzales 
has been to him in helping to select the best nominees for our Federal 
courts during the past few years. Before serving as White House 
Counsel, Judge Gonzales was distinguished as a justice of the supreme 
court of the State of Texas, at which time he was known as a careful 
jurist who was opposed to judicial activism and who recognized the 
limited role that the judiciary plays in our unique system of 
government.
  Additionally, Judge Gonzales advised then-Governor Bush as his chief 
counsel in Texas. Judge Gonzales served there as both a secretary of 
state and chief elections officer of that great State. Furthermore, 
Judge Gonzales had a successful career in the private legal sector 
prior to entering public service. What combination do we need to get 
the very best top cop in the country? He has not only a keen legal mind 
but is one who has had administrative experience, one who has worked 
with large systems of government and one who knows the limit of the law 
and the limit and the capacity of the position in which he is now being 
asked to serve.

  Finally, Judge Gonzales has led a life filled with many other 
activities and honors that helped to prepare him to be an outstanding 
Attorney General, and I will name just a few of them. Judge Gonzales 
served his country as a member of the U.S. Air Force from 1973 to 1975. 
He was also elected to the American Law Institute in 1999 and he served 
on the board of trustees of the Texas Bar Foundation for several years 
and as the president of the Houston Hispanic Bar Association from 1990 
to 1991. Later in 1999, Judge Gonzales was chosen as the Latino Lawyer 
of the Year by the Hispanic National Bar Association.
  As a number of my colleagues have pointed out, when Judge Gonzales is 
confirmed, he will be this great Nation's first Hispanic Attorney 
General. Through all of this, Judge Gonzales has found time to help the 
less fortunate of our country. He served on the board of directors of 
the United Way of the Texas Gulf Coast, and finally in 1997 he received 
the Presidential Citation from the State Bar of Texas for his work in 
addressing the legal needs of indigent citizens.
  Clearly, Alberto Gonzales is an accomplished practitioner of the law 
and he is unquestionably qualified to be our Nation's No. 1 law 
enforcement officer.
  The second reason I support Judge Gonzales, and the nomination that 
we are arguing in his behalf today, is the man himself and his views on 
issues facing our country and what our country needs and what his role 
is. He is very realistic, honest, and straightforward about it.
  In the last Congress when I served on the Judiciary Committee, I 
participated in debates on many of these issues that we see reignited 
by this nomination. Those experiences convinced me that Judge Gonzales 
has the necessary outlook to protecting our country from all of those 
who would do us and our citizens harm.
  I will talk a little bit about his views on some of these important 
issues regarding the war on terror. Judge Gonzales recognized that 
after the attacks of September 11, the United States was at war, a new 
and unique and different kind of war that we had

[[Page S851]]

never experienced before. As Senator Sessions said, a war of ideas but 
a war of violence, a war in which al-Qaida was the enemy but in a way 
that we had never experienced before. It was a unique and different 
legal paradigm in which Judge Gonzales found himself, dealing with 
terrorists and not recognizing them merely as criminals.
  That is why we had to change the character of some of our laws. We do 
not wait until after the fact and go out and collect the evidence and 
decide who may or may not have caused the violence or perpetrated a 
crime. It is too late then, and we all know it is too late. We act 
before, and we act decisively, as our President did.
  Judge Gonzales advised our President in that, and the constitutional 
consequences, and how we work our way through and the reasonable nature 
and character of protecting human rights and being fair and 
responsible, while all the time recognizing we were dealing with an 
enemy who in no way would deal that way or comprehend that they had any 
responsibility to deal with us as we might deal with them.

  Judge Gonzales has also worked to ensure that those detained in war 
as terrorists were treated humanely. While that allegation goes forth 
today, working to keep the principles of the Geneva Convention were 
clearly understood and all of that was well sought after.
  My time is about up. My colleagues on the other side have gathered to 
speak to this nomination.
  In closing, I support Judge Alberto Gonzales's nomination to be our 
next Attorney General because of his lifetime of hard work and his 
accomplishments. There is no question this man is qualified. That 
really is not the debate today. Others are trying to divert us off into 
a debate of policy or a debate of issues well beyond the character of 
the man and his ability to serve in the role that this President has 
cast him into as nominee for Attorney General of the United States.
  I believe he will be confirmed, and I believe he will serve honorably 
in that position. I strongly support this nomination. I ask my 
colleagues to step beyond the politics of the day, look at the reality 
of who we place in these key roles of Government to be effective 
administrators on behalf of all of the people, to be an Attorney 
General that is fair, who understands the role of the Constitution and 
the boundaries we placed on law enforcement and the legal community in 
the character of building and sustaining a civil society of the kind 
that we as Americans have come to know and appreciate, and that which 
we would hope the rest of the world can understand.
  Judge Gonzales understands it. Judge Gonzales will make a great 
Attorney General. I support him strongly.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, I am only going to take a few moments. I 
have colleagues on this side of the aisle who wish to speak during the 
hour.
  I hear so many of the statements on the other side speak of Judge 
Gonzales's personality, his upbringing, and his inspirational life 
story. If we were just voting on his personality, his upbringing, and 
his life story, I would vote for him with wholehearted support. 
However, we are not voting on the life, we are voting on the record. It 
is an enormous difference. Equally important, we are not voting on an 
Attorney General to serve only the President, we are voting on the 
Attorney General for the United States.
  So many of the supporters of Judge Gonzales have said that they abhor 
the idea of torture. They say that they believe the Bybee memo was 
wrong. They say that these policies are wrong.
  Of course they are wrong, but these are the policies that were held 
in place by the administration for as long as they remained secret. The 
Bybee memo was sought by Judge Gonzales. It was agreed to by him. He 
apparently still takes the position that there are circumstances where 
the President of the United States is above the law.
  I don't want someone to serve as Attorney General who will be a good 
soldier for the President. I would have said the same thing, whether it 
was a Democratic President or Republican President. I want someone for 
Attorney General who will be independent, who will give the best 
possible advice and protect the rights of all of Americans.
  I am the parent of a former Marine. My son has now fulfilled his duty 
for the Marines, but if he were serving, I would worry for him as I 
worry for all the thousands of men and women serving overseas. The 
torture policies of this administration did nothing to enhance the 
security of our Americans fighting bravely. In fact, the policies put 
soldiers and civilians in greater danger.
  The truth is that the Bybee memo was disavowed only when the press 
found out about it. Unfortunately, the people at the center of the 
development of these policies, who could have disavowed the memo upon 
its publication, who could have stopped it, including Judge Gonzales, 
did nothing.
  I see the distinguished Senator from Louisiana and the distinguished 
Senator from Rhode Island. I don't know which one seeks recognition, 
but I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Madam President, every 4 years an individual chosen by the 
American people steps forward to assume the awesome responsibilities as 
President of the United States. His first act is to take this oath:

       I do solemnly swear that I will faithfully execute the 
     office of the President of the United States and I will, to 
     the best of my ability, preserve, protect, and defend the 
     Constitution of the United States.

  George W. Bush took this oath on January 20, 2001, and again a few 
days ago on January 20, 2005. His overarching responsibility is to 
preserve, protect, and defend the Constitution. In order to protect, 
preserve, and defend the Constitution, you must understand what it 
says. As such, a President must rely on the advice of his legal 
counsel.
  Alberto Gonzales has served as President Bush's legal counsel since 
2001. In this capacity, he has provided advice to him that, in my view, 
ignores both the letter and spirit of the Constitution and the 
President's critical responsibility to preserve, protect, and defend 
it. Through his advice, he has set in motion policies that have harmed 
our interests at home and abroad.
  Our Nation was founded by men and women fleeing severe political and 
religious persecution. Wary of authoritarian government or religious 
leaders, they created a nation by and for the people, a nation 
committed to the rule of law and the notion that every person has 
certain inalienable rights. Our Founding Fathers very deliberately did 
not create a new monarchy. They did not crown a king. Instead, they 
created a new system of government that relied on the rule of law that 
was agreed upon by representatives of the people.
  As article VI of the Constitution states so eloquently:

       This Constitution, and the Laws of the United States which 
     shall be made in Pursuance thereof, and all Treaties made, or 
     which shall be made, under the Authority of the United 
     States, shall be the supreme Law of the Land. . . .

  The Constitution is the supreme law, not the word of the President. I 
would also emphasize the language here includes all treaties, including 
the Geneva Conventions and the Convention Against Torture.
  They are not extrajudicial. They are part of the Constitution. They 
are part of the responsibility of all of us to defend.
  In the United States of America, the Constitution, our Federal laws 
and our treaty obligations are the means by which we as a people, in 
this grand experiment we call democracy, have agreed to rule ourselves.
  The President, all Senators, all Representatives, the members of our 
state legislatures, and all executive and judicial officers, both of 
the United States and the individual states, are bound by an oath to 
support our Constitution.
  This oath to defend and support our Constitution was also taken by 
Judge Gonzales in his current position as counsel to the President.
  Now, Judge Gonzales is being considered to serve as the Attorney 
General of the United States, the chief law enforcement officer of the 
United States.
  It is Judge Gonzales's failure to defend and support our 
Constitution, our federal laws, and our treaty obligations that leads 
me to believe he does not have the wisdom or judgment to be our next 
Attorney General.

[[Page S852]]

  Our Nation's Attorney General must ensure that no person is above the 
law--including the President of the United States--and that no person 
is outside the law, whether that person is deemed an enemy combatant, 
or held outside the United States.
  Judge Gonzales's record does not justify such an appointment.
  I recognize that much of the advice that Judge Gonzales gave was in 
the aftermath of the attacks of 9/11 and the emergence of the al-Qaida 
network as a grievous threat to the United States. Small terrorist 
cells dispersed worldwide and committed to suicide attacks producing 
mass casualties represented a new and disturbing threat to our country. 
The possibility that al-Qaida or other terrorist cells might acquire 
weapons of mass destruction, including nuclear devices, added an even 
more frightening element to the dangers we faced. We had to face this 
threat realistically. The policies of deterrence that served us well in 
the Cold War are difficult, if not impossible, to apply to these 
ruthless groups of terrorists. With respect to al-Qaida, we had to take 
preemptive action. And, we did in Afghanistan.
  But the nature of this threat did not relieve us of our 
responsibilities to the Constitution and the structure of international 
treaties embodied in the Constitution. This is not being naive or 
sentimental. The durability of the Constitution testifies to both its 
strength and its wisdom. The structure of international treaties 
reflects hard won agreements based on experience. The Constitution 
requires careful and sincere interpretation when new challenges arise. 
It cannot be ignored or trivialized.
  When it comes to the issue of the conduct of war, legal guidance must 
be particularly clear and it must recognize that the fury of war too 
often brings out the worst.
  Ages ago, Thucydides wrote:

       War, depriving people of their expected resources, is a 
     tutor of violence, hardening men to match the conditions they 
     face . . . Suspicion of prior atrocities drives men to 
     surpass report in their own cruel innovations, either by 
     subtlety of assault or extravagance of reprisal.

  Shakespeare captured the essence of this visceral violence in his 
immortal phrase, ``Cry Havoc, and let slip the dogs of war.''
  Abraham Lincoln understood the passions and emotions that grip the 
warrior. Writing to a friend in the midst of our Civil War, President 
Lincoln declared:

       Thought is forced from old channels into confusion. 
     Deception breeds and thrives. Confidence dies, and universal 
     suspicion reigns. Each man feels an impulse to kill his 
     neighbor, lest he be first killed by him. Revenge and 
     retaliation follow. And all this, as before said, may be 
     among honest men only. But this is not all. Every foul bird 
     comes abroad, and every dirty reptile rises up.

  Yet, the guidance provided by this Administration was confused at 
best and relied on the fine parsing of legal terms which may pass 
muster in the contemplative chambers of a judge but fails miserably in 
the crucible of war. This advice was a disservice to the men and women 
of the Armed Forces.
  It is clear that as White House counsel, Judge Gonzales has been one 
of the architect's of the Administration's post 9/11 policies. In 
particular, he has helped craft or agreed to policies regarding the 
treatment of individuals captured and detained in the wars in 
Afghanistan and Iraq. These policies have denied detainees the 
protections of the Geneva Conventions, permitted them to be 
interrogated under a dramatically narrowed definition of torture, and 
denied them access to counsel or judicial review.
  In at least one memorandum, Judge Gonzales apparently agreed that the 
President has the ability to override the U.S. Constitution and 
immunize acts of torture.
  Although supporters of Judge Gonzales will point out that only one of 
five memoranda discussed at his nomination hearing were written by 
Judge Gonzales, he clearly acquiesced to the conclusions in the other 
memos.
  As White House counsel, Judge Gonzales's role was to decide what 
legal advice was needed from the Department of Justice and then to 
weigh and distill that advice before giving his opinion to the 
President.
  It is clear from the record that Judge Gonzales either agreed with 
the legal advice dispensed in these memoranda, or allowed poor legal 
advice to be passed onto the President.
  Either way, I believe Judge Gonzales has been deeply involved in 
policies that have undermined our standing in the world and our 
historic commitment to the rule of law.
  I think we must first put these memos and decisions in historical 
context.
  The issue of the treatment of detainees in war is not a new one and 
an extensive legal framework has been developed to guide a nation's 
behavior during conflict.
  The most well known and comprehensive are the Geneva Conventions, 
created in 1948, to mitigate the harmful effects of war on all persons 
who find themselves in the hand of a belligerent party. 192 countries, 
including the United States and Afghanistan ratified the treaty.
  The Geneva Conventions were created in the aftermath of World War II 
and the Nuremberg Trials, by a world which had just experienced warring 
armies, the systematic rounding up and extermination of millions of 
innocent civilians, squalid POW camps, death marches, resistance 
movements and the aftermath of two nuclear bombs. Those who drafted the 
Geneva Conventions had pretty much seen it all, and they accounted for 
all of it in the Conventions.
  The United States clearly took the Conventions seriously and made 
them the part of the law of our land by incorporating them as part of 
our legal system.
  The War Crimes Act, passed by Congress and signed by the President in 
1996, makes ``a grave breach'' of the Geneva Conventions a crime 
punishable by prison and even the death penalty.
  Adding to this legal structure, the United States ratified the United 
Nation's International Covenant on Civil and Political Rights in 1992. 
The ICCPR prohibits arbitrary detention and ``cruel, inhuman or 
degrading treatment.'' The United States notified the UN that it 
interprets ``cruel, inhuman or degrading treatment or punishment'' to 
mean cruel and unusual treatment or punishment prohibited by the First, 
Eighth and/or Fourteenth Amendment to the Constitution.
  Furthermore, in 1998, the United States ratified the Convention 
Against Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment. The Convention requires parties to take measures to prevent 
torture from occurring within any territory under their jurisdictions, 
regardless of the existence of ``exceptional circumstances'' such as a 
war or threat of war, internal political instability or other public 
emergency. The U.S. Congress implemented the treaty by enacting 18 
U.S.C. sections 2340-2340A. Torture is defined in this statute as ``an 
act committed by a person acting under the color of law specifically 
intended to inflict severe physical or mental pain or suffering upon 
another person within his custody or control'' outside the United 
States. Offenders can be subject to imprisonment and the death penalty.
  The laws of warfare are also an integral part of military training 
and conduct. The Uniform Code of Military Justice, or UCMJ, was a law 
enacted by Congress in 1950. The mistreatment of prisoners may be 
punishable as a crime under article 93, UCMJ, which forbids a soldier 
to act with ``cruelty toward, or oppression or maltreatment of, any 
persons subject to his orders.'' Article 97 prohibits the arrest or 
confinement of any person except as provided by law. The UCMJ also 
punishes ordinary crimes against persons such as assault, rape, sodomy, 
indecent assault, murder, manslaughter, and maiming. Article 134 also 
punishes ``all disorders and neglects to the prejudice of good order 
and discipline in the armed forces'' and ``all conduct of a nature to 
bring discredit upon the armed forces.''
  The Army also has regulations implementing the laws of war, including 
regulation 190-08, which implements the Geneva Conventions. All 
soldiers are expected to abide by Army regulations and if a soldier 
violates a regulation, he or she is subject to punishment under the 
Uniform Code of Military Justice.
  Despite the Constitution's clear prohibition on cruel and unusual 
punishment, despite law after law, treaty after treaty prohibiting 
torture, the President's chief counsel, Judge

[[Page S853]]

Gonzales, requested a series of legal memos regarding the applicability 
of treaty provisions and permissible interrogation techniques in the 
war on terrorism.
  One of these memos, the August 1, 2002, Bybee Memorandum, was 
apparently written to explore what coercive tactics U.S. officials 
could use without being held criminally liable.
  This memo created a new and radically narrow definition of torture. 
It stated that torture would require interrogators to have specific 
intent to cause physical pain that ``must be equivalent in intensity to 
the pain accompanying serious physical injury, such as organ failure, 
impairment of bodily function or even death.'' Mental torture is 
defined in the statute but the Justice Department memo states that 
mental torture must result in ``significant psychological harm lasting 
for months or even years.''
  According to Harold Koh, Dean of the Yale Law School, former 
Assistant Secretary of State for Democracy, Human Rights and Labor, and 
an international law expert, this memo is ``the most clearly erroneous 
legal opinion'' he has ever read. In testimony before the Judiciary 
Committee he stated:

       In sum, the August 1, 2002 OLC memorandum is a stain upon 
     our law and our national reputation. A legal opinion that is 
     so lacking in historical context, that offers a definition of 
     torture so narrow that it would have exculpated Saddam 
     Hussein, that reads the Commander-in-Chief power so as to 
     remove Congress as a check against torture, that turns 
     Nuremberg on its head, and that gives government officials a 
     license for cruelty can only be described--as my predecessor 
     Eugene Rostow described the Japanese internment cases--as a 
     ``disaster.''
       One would have expected the Counsel to the President to 
     have immediately repudiated such an opinion. Judge Gonzales 
     did not.

  Instead, this memo was endorsed by Judge Gonzales as the legal 
opinion of the Justice Department on the standard for torture.
  Now, over 30 years ago, the U.S. Navy vessel USS Pueblo was sent on 
an intelligence mission off the coast of North Korea. On January 23, 
1968, it was attacked by North Korean naval and air forces. Eighty-one 
surviving crewmembers of the USS Pueblo were captured and held captive 
for 11 months. One survivor, Harry Iredale, related his experiences 
with a North Korean interrogator named, ``The Bear:''

       The Bear proceeded to yell at me to confess. He had me 
     kneel on the floor while two guards placed a 2-inch diameter 
     pole behind my knees and other guards jumped on each end of 
     it several times. Then the Bear picked up a hammer handle and 
     proceeded to smash it onto my head, completely encircling my 
     head with lumps as I screamed in pain.

  I think most of us would consider this graphic description one of 
torture. But under the Bybee memorandum's definition, this would not 
constitute organ failure or death, so it would not be considered 
torture.
  More importantly, perhaps, is that the North Korean regime still 
exists and thousands of American soldiers line the border. Our soldiers 
could still be captured. And now we cannot hold the North Koreans to a 
higher standard of conduct, because ours is the same.
  The August Bybee memorandum also enumerated reasons that American 
officials could not be held criminally liable for coercive 
interrogation tactics that fell outside of this new narrow definition 
of torture.
  It also posits that officials can invoke ``necessity'' or ``self-
defense'' as a defense against prosecution for such acts, despite the 
fact the Convention Against Torture clearly states there are no 
``exceptional circumstances'' that may be invoked as justification for 
torture.
  Although the torture provisions of the August 2002 Bybee memo were 
rescinded and replaced four weeks ago by a new December 30, 2004 memo, 
the Bybee memo was Administration policy for almost 2\1/2\ years and 
has had extremely harmful effect on both our military and intelligence 
communities.
  If this memo with its narrow definition of torture was so wrong on 
its face that it had to be rescinded, why didn't Judge Gonzales know it 
was wrong at the time he requested and endorsed it?
  One of the most disturbing parts of the August Bybee memorandum is 
the suggestion that the President and other executive officials can 
escape prosecution for torture on the ground that ``they were carrying 
out the President's Commander-in-Chief powers.''
  By adopting the doctrine of ``just following orders'' as a valid 
defense for United States soldiers and officials, the opinion 
undermines the very underpinnings of individual criminal responsibility 
set forth after World War II, and now embodied in the basic instruments 
of international criminal law.
  This memorandum basically puts the President, and his subordinates, 
above the law, as it states, ``any effort to regulate the interrogation 
of battlefield combatants would violate the Constitution's sole vesting 
of the Commander-in-Chief authority in the President.''
  This is antithetical to everything we know about our founding 
document and the rule of law.
  It ignores the fact that the Convention Against Torture and other 
treaties have been approved by Congress, elucidated by statute and 
become the law of the land.
  The Bybee memo's reading of the President's powers as Commander-in-
Chief essentially would allow him to ignore or order that the criminal 
prohibition against torture in the United States code be set aside. The 
President could trump Congress' power under Article I, section 8, 
clause 10 to ``define and punish . . . offenses against the law of 
nations'' such as torture.
  Interestingly, nowhere does the August Bybee memorandum mention the 
landmark Youngstown Steel & Tube Co. v. Sawyer decision in which the 
Supreme Court explained why the President's Commander-in-Chief or 
inherent executive power were not enough to allow him to take over the 
American steel industry during a time of crisis. In his concurring 
opinion, Justice Jackson eloquently discussed the limits on such 
Presidential powers, especially when the ``President takes measures 
incompatible with the express or implied will of Congress.''
  In fact, Bybee cites no precedent for his unique enhancement of the 
President's Commander-in-Chief power other than:

       In light of the President's complete authority over the 
     conduct of war, without a clear statement otherwise, we will 
     not read a criminal statute as infringing on the President's 
     ultimate authority in these areas. We have long recognized, 
     and the Supreme Court has established a canon of statutory 
     construction that statues are to be construed in a manner 
     that avoids constitutional difficulties so long as a 
     reasonable alternative construction is available.

  This is nonsense. There are statutes on the book outlawing torture. 
There is no precedent cited because scant precedent exists, it any.
  Now if this Commander in Chief override exists, if the President can 
exercise his Commander-in-Chief power to ask his subordinates to engage 
in torture to protect the national security of our country, how would 
this be done? One would think the Commander-in-Chief would have to 
order his subordinates to engage in such conduct for it to be legal. So 
where are the orders? And if there are no orders, aren't U.S. soldiers 
and intelligence officers still subject to the supreme law of our 
land--our Constitution, our statutes and our treaty obligations--and 
can they not be prosecuted for violations of this law? How would Judge 
Gonzales approach this dilemma, created by his own legal reasoning, if 
he is nominated-confirmed Attorney General? Would he prosecute 
subordinates of the President who engaged in what most rational people 
would consider torture during the past 2\1/2\ years and then defend 
themselves with the reasoning in the Bybee memorandum?
  In addition, at this time there are over 20,000 private contractors 
in Iraq. Many of them are engaging in ``military functions'' in support 
of U.S. forces. These civilians are currently liable for prosecution in 
U.S. courts for various offenses, under the U.S. laws implementing the 
Convention on Torture. In addition, persons who are ``employed by or 
accompanying the armed forces'' may be prosecuted under the Military 
Extraterritorial Jurisdiction Act. Now, many such offenses are 
permitted by the Bybee memorandum but are prohibited by other U.S. law.
  Again, would Judge Gonzales vigorously prosecute violations of law 
that, either through his advice or the legal reasoning he deemed were 
acceptable practices activities?
  Now the creation of this so-called Commander-in-Chief override power 
has created some consternation in

[[Page S854]]

legal circles. But neither Judge Gonzales nor the Justice Department 
has backed away from it.

  The December 30, 2004, memo declares that it supersedes the August 
2002 Bybee memo in its entirety. However, the Office of Legal Counsel 
has not yet clearly and specifically renounced the parts of the August 
2002 memorandum concerning the Commander in Chief's power stating:

       Consideration of the bounds of any such authority would be 
     inconsistent with the President's unequivocal directive that 
     United States persons not engage in torture.

  Judge Gonzales's own public statements have also urged a broad view 
of the President's power to conduct the war on terror. In a June 2004 
speech before the American Bar Association's Standing Committee on Law 
and National Security, Judge Gonzales stated:

       [The President] has not had to--as I indicated, in terms of 
     what he has done or has not done, he has not exercised his 
     Commander-in-Chief override, he has not determined that 
     torture is, in fact, necessary to protect the national 
     security of this country.

  But it seems that Judge Gonzales's statement is at least providing 
for a situation in which the President could make that determination, 
but under what constitutional principle I do not know.
  Furthermore, Judge Gonzales was unwilling to repudiate the Commander 
in Chief override power when asked directly about it during his 
confirmation hearing, saying that it was a hypothetical question about 
a hypothetical situation and he was ``not prepared in this hearing to 
give you an answer to such an important question.''
  Now, I always assumed the purpose of a hearing to confirm a Cabinet 
official was that he would answer, after preparation, important 
questions involving his proposed responsibilities. Apparently, Judge 
Gonzales did not believe that was the role of the hearing. He provided 
no answer.
  In addition, in responding to a followup question submitted by 
Senator Leahy, Judge Gonzales refused to answer in the affirmative that 
the President could not override the Convention Against Torture and any 
implementing legislation and immunize the use of torture under any 
circumstances, stating again:

       [T]he President does not intend to use any authority he 
     might conceivably have to authorize the use of torture.

  I guess it is one of those situations where torture is in the eye of 
the beholder. Much of what seems to have happened to those crew members 
of the Pueblo looks to us as torture, but I guess it was not torture 
under the Bybee memorandum.
  As Attorney General, Judge Gonzales will be responsible for enforcing 
the laws of our land. But he himself created an exception to these laws 
for the President. He not only allowed torture to be redefined, he also 
agreed to a new, unchecked power for the President that no President 
before ever had.
  Now, I would like to discuss two memoranda Judge Gonzales requested 
from the Department of Justice Office of Legal Counsel regarding U.S. 
treaty obligations in the war in Afghanistan. Specifically, he asked if 
treaties forming part of the laws of armed conflict applied to 
conditions of detention and procedures for trials of members of al-
Qaida and the Taliban militia. He also asked that if the Geneva 
Conventions did apply in Afghanistan, would the Taliban, the military 
force of Afghanistan, qualify for prisoner-of-war status.
  As I noted earlier, after World War II, the United Nations drafted, 
and most of the world, including the United States and Afghanistan, 
ratified the Geneva Conventions. There are four conventions. The third 
convention defines six classes of persons who, if captured, should be 
considered as prisoners of war. The most protected class under the 
Geneva Conventions is the prisoner-of-war category. Civilians and spies 
are protected as other classes in the fourth Geneva Convention. Running 
through all of these conventions is common article 3, which prohibits:

       [O]utrages upon personal dignity, in particular, 
     humiliating and degrading treatment.

  Most experts would agree this is the minimum standard for the 
treatment of all detainees.
  As I stated in the beginning of my remarks, September 11 did usher in 
a new era. It was reasonable for Judge Gonzales to wonder if perhaps a 
group such as al-Qaida was one of those categories of individuals or 
groups that was not authorized automatic protection under the Geneva 
Convention. However, the Geneva Conventions maintain if the status of a 
captured individual is in doubt, a competent tribunal must decide that 
status. Furthermore, the Geneva Conventions are only one part of the 
law of armed conflict. The Convention Against Torture and the assurance 
of basic human rights remain in place at all times.
  On January 22, 2002, the Justice Department sent a memo to Judge 
Gonzales regarding treaty obligations. Also signed by Jay Bybee, the 
Assistant Attorney General, the memo analyzed the War Crimes Act and 
the Geneva Conventions and concluded:

       [N]either the federal War Crimes Act nor the Geneva 
     Conventions would apply to the detention conditions of al-
     Qaida prisoners. We also conclude that the President has the 
     plenary constitutional powers to suspend our treaty 
     obligations toward Afghanistan during the period of conflict.

  A memo sent 2 weeks later concluded that the Taliban did not qualify 
for prisoner-of-war status.
  Now, legal experts can and have disagreed about the conclusions 
reached by the Department of Justice. But what I find deeply disturbing 
is the questionable judgment and cavalier attitude Judge Gonzales used 
outlining his recommendations as White House legal counsel.
  On January 25, 2002, Judge Gonzales drafted a memorandum to the 
President agreeing with the January Bybee memorandum. He states two 
positive aspects of this decision. First, he finds that suspending 
these treaty obligations ``preserves flexibility,'' which, I would 
note, is not a legal conclusion. He then states that the war on 
terrorism is a new kind of war, a ``new paradigm that renders obsolete 
Geneva's strict limitation on questioning of enemy prisoners and 
renders quaint some of its provisions.'' A second positive aspect Judge 
Gonzales concluded is that since the Geneva Conventions do not apply to 
al-Qaida and the Taliban, it ``substantially reduces the threat of 
domestic criminal prosecution under the War Crimes Act.''
  Judge Gonzales then goes on to list seven negative points about 
suspending the War Crimes Act and the Geneva Conventions in these 
circumstances, including:
  The U.S. had abided by the Geneva Conventions since their creation in 
1948.
  The U.S. could then not invoke the Geneva Conventions for U.S. forces 
captured or mistreated in Afghanistan.
  The War Crimes Act could not be used against the enemy.
  The position would ``likely provoke widespread condemnation among our 
allies and in some domestic quarters.''
  In the future, other countries may look for ``loopholes'' to avoid 
complying with the Geneva Conventions.
  The determination ``could undermine U.S. military culture which 
emphasizes maintaining the highest standards of conduct of combat, and 
could introduce an element of uncertainty in the status of 
adversaries.''
  Remarkably, after weighing the pros and cons, Judge Gonzales found 
the negatives of such a decision by the President were 
``unpersuasive.'' He concurred in the Justice Department's decision 
that the Geneva Convention did not apply to al-Qaida and the Taliban.
  On January 26, 2002, Secretary of State Powell objected to the 
presentation and conclusions in the Gonzales memo. Secretary Powell 
sent his own memo to Gonzales, stating:

       I am concerned that the draft does not squarely present to 
     the President the options that are available to him. Nor does 
     it identify the significant pros and cons of each option.

  Secretary Powell lists as cons, in his words:

       It will reverse over a century of U.S. policy and practice 
     in supporting the Geneva Conventions and undermine the 
     protections of the law of war for our troops; it is a high 
     cost in terms of negative international reaction, with 
     immediate adverse consequences for our conduct of foreign 
     policy; it will undermine public support among critical 
     allies, making military cooperation more difficult to 
     sustain; and Europeans and others will likely have legal 
     problems with extradition.

  At a February 4, 2002, National Security Council meeting to decide 
this issue and make recommendations to the President, the Department of 
State, the Department of Defense, and

[[Page S855]]

the Chairman of the Joint Chiefs of Staff were in agreement that all 
detainees would get the treatment they are or would be entitled to 
under the Geneva Conventions.
  Now Judge Gonzales was faced with two opposing opinions: one, from 
the Department of Justice, which offered a new and untried approach to 
international law; and the other which was supported by decades of 
precedent and the entire military establishment, which was actually 
going to be on the front lines of the conflict. Judge Gonzales had to 
choose what he was going to advise the President.
  On February 7, 2002, President Bush, presumably following the legal 
advice of his counsel, issued a memorandum stating that the Geneva 
Conventions did not apply to al-Qaida, and that while the Taliban were 
covered by the Geneva Conventions, they did not qualify for POW status. 
The fact that the third Geneva Convention requires a competent tribunal 
to determine this fact was ignored. Furthermore, President Bush stated 
that the Geneva Conventions' common article 3, the minimum standard of 
human rights for noncombatants, including prisoners, did not apply to 
either al-Qaida or the Taliban.
  Mr. President, these questionable decisions of Judge Gonzales have 
profound effects. What he found unpersuasive was the most correct 
statement in his memo--that his advice would, in his words, ``undermine 
U.S. military culture which emphasizes maintaining the highest 
standards of conduct in combat and could introduce an element of 
uncertainty in the status of adversaries.''
  In January 2004, the Pentagon announced that they were investigating 
reports of abuse of prisoners in Iraq. In May 2004, the world was 
horrified when pictures of some of the abuses at Abu Ghraib prison 
became public. Now for many months, DOD officials have maintained that 
such abuses were the acts of a few depraved, low-ranking individuals, 
but reports of abuses in other prisons, such as Guantanamo and the 
Adhamiya Palace in Baghdad, are coming to light.
  To date, the Pentagon has initiated several investigations into these 
abuses. Only some of the investigations have been completed, and they 
all concern Abu Ghraib. However, they have startlingly similar 
findings. President Bush's February 7, 2002, memorandum set new policy 
that conflicted with longstanding Army doctrine based on established 
laws of war, and this conflict caused confusion and ultimately a 
corrosion of standards.
  The Schlesinger report, released on August 24, 2004, was written by 
an independent panel chaired by the former Secretary of Defense, Jim 
Schlesinger, to review DOD detention operations. In fact, the report 
was essentially commissioned by the present Secretary of Defense, Mr. 
Rumsfeld. Dr. Schlesinger pointedly blamed the administration for 
confusion in the ranks. The Schlesinger report found ``Lieutenant 
General Sanchez signed a memo authorizing a dozen interrogation 
techniques beyond standard Army practice, including five beyond those 
applied at Guantanamo . . . using reasoning from the president's memo 
of February 7, 2002.''
  Another report, completed by Lieutenant General Jones, stated that 
confusion over different standards for detainee treatment and 
interrogation, dictated by the administration and followed through by 
the Army, led to ``a permissive and compromising climate for 
soldiers.''
  In order to overcome these problems, the Schlesinger report 
recommended that ``the United States should further define its policy 
applicable to both the Department of Defense and other Government 
agencies, on the categorization and status of all detainees as it 
applies to various operations and theories. It should define their 
status and treatment in a way consistent with U.S. jurisprudence and 
military doctrine and with the [United States] interpretation of the 
Geneva Conventions.''
  It is a fact of life that there are always going to be abuses of 
human rights in time of war. But the abuses I have discussed above, and 
that are still, unfortunately, coming to light, are systemic. I would 
argue that they are the result of a corrosive trend started by the 
President's February 7 memo, which was based on advice given by Judge 
Gonzales in consultation with the Department of Justice. This is not 
the type of legal thinking and judgment that I find suitable for the 
Office of Attorney General.
  There is one final issue that needs to be mentioned. That is the 
deeply disturbing issue of ``ghost detainees.'' The Bush administration 
has always maintained that the Geneva Conventions are in force in Iraq. 
Article 49 of the fourth Geneva Convention prohibits ``individual or 
mass forcible transfers, as well as deportations of protected persons 
from occupied territory . . . regardless of their motive.''
  Yet an October 24, 2004, Washington Post story states that a 
confidential March 19, 2004, Justice Department memorandum granted 
permission to the CIA to take Iraqis out of their country to be 
interrogated for a ``brief but not indefinite period.'' It also said 
the CIA can permanently remove ``illegal aliens.'' Other reports state 
that as many as a dozen detainees were moved under this policy.
  In addition, the third and fourth Geneva Conventions maintain that 
international organizations such as the Red Cross must have access to 
prisoners. Two generals investigating the abuses of Abu Ghraib, Major 
General Taguba and General Kern, noted in their reports that the U.S. 
hid prisoners from Red Cross teams. General Kern stated that the number 
of ghost detainees ``is in the dozens, perhaps up to 100.''

  The role of Judge Gonzales in the production and approval of this 
memo is yet unknown. But given his participation in other decisions 
made about the wars in Iraq and Afghanistan, it is not irrational to 
assume that he had some participation.
  The existence of ghost detainees is a violation of the Geneva 
Convention. Someone is responsible for this decision and must be held 
accountable. If Judge Gonzales is confirmed as Attorney General, will 
he pursue these types of investigations and potential prosecutions?
  Some of my colleagues will likely state that opposition to Judge 
Gonzales is partisan politics. But we are not alone in opposing this 
nomination. Twelve retired admirals and generals sent a letter to the 
Judiciary Committee expressing deep concerns about the nomination of 
Judge Gonzales. This letter includes the following statement:

       During his tenure as White House Counsel, Judge Gonzales 
     appears to have played a significant role in shaping U.S. 
     detention and interrogation operations in Afghanistan, Iraq, 
     Guantanamo Bay, and elsewhere. Today it is clear that these 
     operations have forced a greater animosity towards the 
     [United States], undermined our intelligence gathering 
     efforts, and added to the risks facing our troops serving 
     around the world.

  These are the words of distinguished general officers who have served 
their country in uniform upwards of 30 or more years.
  A group of 17 religious leaders and organizations also sent a letter 
to the Judiciary Committee expressing concern about Judge Gonzales's 
nomination and his role, in their words, in ``sanctioning torture.'' 
Another group of more than 200 religious leaders sent a letter to Judge 
Gonzales stating:

       We fear that your legal judgments have paved the way to 
     torture and abuse.

  Even his colleagues in the legal community have doubts. A group of 
329 prominent lawyers sent a letter to the Judiciary Committee stating 
that Judge Gonzales's purported role in deciding the treatment of 
detainees ``raises fundamental questions about Judge Gonzales's 
fidelity to the rule of law, about his views concerning the 
responsibility of a government lawyer, and about the role of the 
Department of Justice.''
  Much has been made and much should be made about Judge Gonzales's 
rise from very humble beginnings. There is no disputing this fact. 
There is no disputing that the nomination of a Latino to such an August 
position is a significant, notable moment in our Nation's history. 
Indeed, there are many people in my State who see their deepest hopes 
and dreams for their children and grandchildren in the story of Judge 
Gonzales's rise. Such a sense of pride is no small thing. But our duty 
as Senators is to advise and consent on the fitness and skills of 
nominees. And there are few positions in the Cabinet that are as 
sensitive and important as that of Attorney General.

[[Page S856]]

  As heartening as Judge Gonzales's personal story is, like the 
congressional Hispanic caucus and a number of civil rights groups such 
as the Mexican American Legal Defense Fund, I believe that Judge 
Gonzales has left too many important questions unanswered.
  Indeed, as The congressional Hispanic caucus has pointed out:

       [T]he Latino community continues to lack clear information 
     about how the nominee, as Attorney General, would influence 
     policies on such important topics as the Voting Rights Act, 
     affirmative action, protections for persons of limited 
     English proficiency, due process rights of immigrants, and 
     the role of local police in enforcing federal immigration 
     laws.

  The right to vote, protection from discrimination, and assistance for 
those who have yet to master the English language are issues of great 
importance to Latinos in my State, and they deserve real answers. 
Despite Judge Gonzales's superb academic credentials and his record of 
achievement, I have too many concerns about his decisions made on legal 
matters, particularly in his role of the past 4 years as White House 
Counsel, to vote for his confirmation.
  The genius of our Founding Fathers was not to allow power to be 
concentrated in the hands of a few. They were particularly concerned 
about a concentration of power in the President. Although they made the 
President the Chief Executive Officer of our Government and the 
Commander in Chief, the Founding Fathers constrained the President 
through the very structure of our Government, through both law and 
treaty. The Attorney General has a duty not just to serve the President 
but, also and ultimately, to support, protect, and defend the 
constitutional commitment to a system of checks and balances. I do not 
feel comfortable with Judge Gonzales's ability to do this.
  After studying his record, I do not believe that Judge Gonzales has 
demonstrated the judgment necessary to perform the duties of the 
highest law enforcement officer of our land.
  Mr. President, I ask unanimous consent to have printed in the Record 
a number of articles bearing on Judge Gonzales's role in torture 
policies, as well as recent statements by the Leadership Conference on 
Human Rights and the Center for Constitutional rights opposing this 
nomination.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    LCCR Opposes Gonzales Confirmation: Vote ``No'' February 2, 2005

       Dear Senator: On behalf of the Leadership Conference on 
     Civil Rights (LCCR), the nation's oldest, largest and most 
     diverse civil and human rights coalition, we write to express 
     our opposition to the confirmation of White House Counsel 
     Alberto R. Gonzales as United States Attorney General. The 
     Leadership Conference recognizes the historic significance of 
     Mr. Gonzales's appointment as the first Hispanic American to 
     serve as Attorney General, and so the action we urge today is 
     not undertaken lightly. Regrettably, however, Mr. Gonzales's 
     failure to properly address concerns with his past record and 
     clearly explain his positions on critical civil and human 
     rights issues compels us to urge the Senate to reject his 
     confirmation.
       Earlier this month, LCCR sent the Senate Judiciary 
     Committee a letter, signed by more than four dozen national 
     civil and human rights leaders, that expressed numerous 
     concerns with Mr. Gonzales's record and urged close scrutiny. 
     Despite a day-long hearing before the Committee, the 
     submission of written questions by Committee members, and 
     numerous inquiries by the press and the public, Mr. Gonzales 
     and the Administration have not yet provided the Senate 
     either with the critical information on his record or with 
     the commitment to accountability and transparency that are 
     prerequisites to the Senate exercising its constitutional 
     duty of advise and consent on this nomination. We remain 
     unconvinced that Mr. Gonzales would independently enforce the 
     law, rather than continue to simply rationalize it, as he did 
     while serving then-Governor George W. Bush.


 mr. gonzales has not addressed serious concerns involving the use of 
                           the death penalty

       The Leadership Conference on Civil Rights opposes the death 
     penalty under all circumstances, but recognizes that it is 
     the law of the land in many states and at the federal level. 
     As the ultimate--and the only irreversible--sanction for 
     criminal conduct, capital punishment must never be 
     administered if a government has not exercised every 
     reasonable precaution at its disposal to avoid putting an 
     innocent person to death. A failure to ensure that every 
     death penalty case receives fair and balanced treatment can 
     easily lead to severe miscarriages of justice.
       As General Counsel to then-Governor George W. Bush from 
     1995 to 1997, Mr. Gonzales advised the Governor on pending 
     clemency petitions in death penalty cases. While Governor 
     Bush exercised ultimate authority to grant or deny a clemency 
     petition, his decision in each case was based on the 
     information he received from Mr. Gonzales. It was Mr. 
     Gonzales's legal responsibility to present the Governor with 
     a full and balanced summary of each case, including any and 
     all significant mitigating factors.
       To date, the only known physical records that document the 
     information that Mr. Gonzales provided to Mr. Bush regarding 
     clemency petitions are brief memoranda, ranging from one-and-
     a-half to seven pages in length. Most of these memoranda were 
     dated either the day before or the day of a scheduled 
     execution.
       The clemency memoranda are, in many cases, extremely 
     troubling. A number of them omit evidence that was presented 
     in clemency petitions such as outstanding claims of 
     innocence, allegations that a jury had failed to consider 
     material evidence, signs of mental impairment, and personal 
     mitigating factors such as severe childhood abuse. For 
     example, in the case of Carl Johnson, the clemency memorandum 
     prepared by Mr. Gonzales does not even refer to the fact that 
     Mr. Johnson had claimed he received ineffective assistance of 
     counsel because his lawyer slept through portions of his 
     trial. In the case of Terry Washington, a mentally retarded 
     33-year-old, Mr. Gonzales barely mentioned that Mr. 
     Washington's limited mental capacity (and the failure of his 
     counsel to raise it during trial) formed the central basis of 
     his thirty-page clemency petition. Instead, Mr. Gonzales 
     referred the issue of Mr. Washington's mental capacity only 
     as a piece of ``conflicting information'' about Mr. 
     Washington's background.
       Mr. Gonzales has claimed, during questioning before the 
     Committee, that the memoranda were only ``summaries'' of the 
     death penalty cases he handled for Governor Bush, and that 
     they were typically provided at the end of a ``rolling series 
     of discussions'' about each case. Yet to date, Mr. Gonzales 
     has produced no tangible evidence of such discussions or any 
     other communications with the Governor about any death 
     penalty case, leaving serious and very troubling questions 
     remaining about whether, under Mr. Gonzales's tenure, justice 
     was properly administered in every case.
       Mr. Gonzales's responses to questions about how he would 
     handle death penalty cases as Attorney General, if confirmed, 
     also cause significant concern. When asked about a recent 
     Justice Department report that revealed striking racial and 
     ethnic disparities in the imposition of the federal death 
     penalty, Mr. Gonzales expressed only a ``vague knowledge'' of 
     the problem. While he stated a willingness to examine the 
     application of the death penalty if he were convinced that 
     such disparities existed, he did not commit to address 
     already-documented concerns at the federal level. In 
     addition, while Mr. Gonzales was unfamiliar with Attorney 
     General Ashcroft's policy of overriding decisions by federal 
     prosecutors to not seek the death penalty, which in itself is 
     not indicative of a problem, he failed to commit to formally 
     review the practice, including its potential for racial 
     disparities.
       In sum, as evidenced by both his past record and his 
     answers to questions about what he would do if confirmed as 
     Attorney General, Mr. Gonzales has clearly failed to assure 
     the Senate and ultimately the American people that he will 
     administer death penalty cases fairly and in accordance with 
     the law.


mr. gonzales has failed to fully answer important questions about civil 
                          rights and liberties

       In his confirmation hearing, Mr. Gonzales testified that 
     civil rights enforcement would be among his top priorities. 
     Yet while some of his responses to questions reflect some 
     level of consultation with the Justice Department (see 
     response #5 to Senator Biden, p. 2; response #3 to Senator 
     Durbin, p. 20), we are very troubled that his responses to 
     questions on many extremely important civil rights issues 
     were vague and were neither well-informed nor well-developed. 
     For example:
       In response to questions about Title VI of the Civil Rights 
     Act, which prohibits racial and gender discrimination in 
     federally funded programs and activities, Mr. Gonzales failed 
     to commit to the enforcement of the Title VI regulations, as 
     distinguished from the Title VI statute itself. This is 
     troubling given the longstanding recognition that the 
     regulations have a scope and application that extend beyond 
     the limits of the statute itself. Because the Supreme Court 
     in Sandoval prohibited individuals from bringing private 
     actions to enforce the Title VI regulations, the government 
     was left as the only entity with the capacity to do so. 
     Important protections against discrimination in the areas of 
     language rights, educational discrimination, environmental 
     justice, and others will be entirely lost unless the 
     Administration commits itself to bring enforcement actions. 
     However, Mr. Gonzales's failure to make such a commitment 
     suggests a substantial narrowing of the historic reach of one 
     of our fundamental civil rights laws.
       Mr. Gonzales responded to questions by Senator Kennedy 
     about mandatory minimum sentencing by stating simply that 
     ``mandatory minimums provide a clear deterrent and have been 
     effective.'' His answers

[[Page S857]]

     on this topic ignore evidence, including statements from many 
     current and former judges such as Supreme Court Justice 
     Anthony Kennedy, that mandatory minimum sentences, by 
     depriving judges of their traditional discretion to tailor a 
     sentence based on the culpability of the defendant and the 
     seriousness of the crime, render our nation's criminal 
     justice system unjust, unfair, and counter-productive. And, 
     as Justice Kennedy also observed, mandatory minimum 
     sentencing has its most disproportionate impact on 
     communities of color.
       Mr. Gonzales was asked about the disparity in sentences for 
     defendants convicted of crack vs. powder cocaine offenses. 
     Under current law, draconian statutory and guideline 
     penalties are triggered by possession or sale of a small 
     amount of crack cocaine--one hundred times less than the 
     amount of powder cocaine that triggers the same penalties. 
     Because African Americans almost exclusively have been 
     targeted by federal authorities for crack cocaine offenses, 
     they and other racial and ethnic minorities serve far longer 
     prison sentences for drug dealing than whites convicted of 
     similar offenses involving powder cocaine. The U.S. 
     Sentencing Commission has twice concluded that there is no 
     empirical basis for the 100 to 1 ratio, but it persists. Yet 
     after being presented with this information in written 
     questions following his hearing, Mr. Gonzales failed to even 
     acknowledge the racial disparities that the current policies 
     have produced.
       Mr. Gonzales played a critical role in shaping the 
     administration's ``enemy combatants'' policy, which places 
     individuals beyond the reach of the law and subjects them to 
     indefinite, incommunicado detention. He publicly argued that 
     the President's authority was constrained not so much by the 
     rule of law but ``as a matter of prudence and policy''--a 
     view so radical that it was eventually rejected by an 8-1 
     majority of the U.S. Supreme Court. In his responses to 
     questions about this policy, following the ruling, Mr. 
     Gonzales has still not made it clear that he, as Attorney 
     General, would be fully committed to respecting the time-
     honored and vital role of judicial review of executive 
     actions--a matter of grave concern to citizens and 
     noncitizens alike.


   mr. gonzales has failed to clarify his role in policies regarding 
                  torture, interrogation and detention

       As White House Counsel, Mr. Gonzales oversaw the 
     development of detention, interrogation, and torture policies 
     for handling prisoners in Afghanistan, Iraq, and elsewhere. 
     He wrote a 2002 memorandum disparaging the Geneva Conventions 
     and arguing that they do not bind the United States in the 
     war in Afghanistan. He urged the President to reject warnings 
     by U.S. military leaders that such policies would undermine 
     respect for the law in the military, with catastrophic 
     results. He requested and reviewed legal opinions that 
     radically altered the definition of torture and claimed U.S. 
     officials were not bound by laws prohibiting torture. He even 
     made the radical suggestion that the President has the power 
     to disregard Congressional enactments. Changes made as a 
     result to long-established U.S. policy and practices appear 
     to have paved the way for the recent horrific incidents at 
     Abu Ghraib and Guantanamo.
       The Administration continues to withhold critical documents 
     that could show the extent of Mr. Gonzales's involvement in 
     setting the above policies. We believe that all relevant 
     documents should be disclosed to the American people, and 
     that the President should clarify or waive any purported 
     claims of privilege. We strongly believe that the Senate 
     cannot meet its constitutional obligations in this nomination 
     without full disclosure and review of these materials.
                               conclusion
       In sum, the record before you regarding the Alberto 
     Gonzales nomination is woefully incomplete, at best, in spite 
     of repeated efforts by the Committee and other stakeholders 
     to obtain all relevant information. At worst, it raises 
     profound questions about Mr. Gonzales' commitment to civil 
     and human rights and the rule of law.
       The record is very troubling because nowhere is the 
     Senate's constitutional role in reviewing a presidential 
     cabinet nominee more important than in the case of a 
     prospective Attorney General. It is even more troubling 
     because Mr. Gonzales, in response to questions by Chairman 
     Specter and other members of the Judiciary Committee during 
     his recent confirmation hearing, had repeatedly pledged far 
     greater cooperation with the Committee than his predecessor 
     had extended. Mr. Gonzales and the Administration have 
     utterly failed to deliver on this promised level of 
     cooperation, leaving numerous questions remaining about his 
     suitability for the position of Attorney General and about 
     the impact his tenure would have on civil and human rights in 
     this country and elsewhere. For this reason, we must urge you 
     to not confirm Mr. Gonzales. Please note that LCCR intends to 
     include how Senators vote on this issue in the upcoming 109th 
     Congress LCCR Voting Record.
       Thank you for your consideration. If you have any 
     questions, please feel free to contact LCCR Deputy Director 
     Nancy Zirkin at (202) 263-2880, or LCCR Policy Analyst Rob 
     Randhava at (202) 466-6058.
           Sincerely,
                                            Dr. Dorothy I. Height,
                                                      Chairperson.
                                                   Wade Henderson,
     Executive Director.
                                  ____


             CCR Opposes the Nomination of Alberto Gonzales


                                Synopsis

       ``The best way for the American people to send a message to 
     the Bush administration and the world that `we the people' of 
     the United States do not condone torture is to mobilize to 
     reject the nomination of Alberto Gonzales.''--Ron Daniels, 
     Executive Director, the Center for Constitutional Rights


                         Description and Status

       The Center for Constitutional Rights (CCR) strongly opposes 
     the nomination of White House Counsel Alberto Gonzales for 
     the office of Attorney General of the United States. While we 
     applaud the effort of recent Presidents to achieve greater 
     diversity in their Cabinets and would be delighted to see the 
     first person of Latino descent be elevated to this high 
     office, the issue at hand is not about diversity, it is about 
     the conduct of someone who has fundamentally aided and 
     abetted efforts by those in the White House to disregard the 
     rule of law.
       We believe that at the behest of President Bush, Mr. 
     Gonzales knowingly and willingly provided counsel and 
     advocated policies calculated to evade or circumvent domestic 
     and international laws prohibiting the use of torture to 
     extract information from soldiers or detainees held in U.S. 
     custody. We believe that the person entrusted to be the 
     highest law enforcement officer in our country must not be 
     someone who has shown such blatant disdain for the rule of 
     law as Chief Counsel to the President of the United States. 
     To confirm Mr. Gonzales would send the wrong signal to the 
     nation and the world. It would be tantamount to condoning 
     torture.
       The evidence of Mr. Gonzales's efforts to evade or 
     circumvent domestic and international laws dealing with the 
     use of torture is overwhelming. As White House counsel, he 
     has consistently treated the law as an inconvenient obstacle 
     to be ignored whenever it conflicted with the wishes of the 
     President. Mr. Gonzales is the author of a leaked memo, dated 
     January 25, 2002, that justified the suspension of the Geneva 
     Conventions in the war in Afghanistan, calling these 
     universally recognized international laws ``obsolete'' and 
     ``quaint.''
       In the same year, Mr. Gonzales requested a memo from the 
     Justice Department, inquiring as to whether the Bush 
     Administration could evade current treaties and laws in its 
     treatment of Al Qaeda and Taliban detainees without being 
     open to prosecution for war crimes. Moreover, he drafted the 
     original military commission order signed by President Bush 
     on November 14, 2001, which would have allowed suspects 
     apprehended in the global campaign against terrorism to be 
     charged, tried, and even executed without the most basic due 
     process protections. Gonzales also argued that U.S. citizens 
     could be held incommunicado and stripped of the right to 
     counsel and the right to challenge their detention in a court 
     of law for as long as the President deemed necessary. [CCR 
     successfully challenged this position in the milestone case 
     Rasul v. Bush, where the Supreme Court ruled that the 
     detainees at Guantanamo have a right to challenge their 
     detention in U.S. courts.]
       Furthermore, Mr. Gonzales and his colleagues approved the 
     use of dogs, hooding, and extreme sensory deprivation, all 
     forbidden by Geneva Convention and International Covenant 
     Against Torture. They redefined torture to limit it to only 
     those actions that lead to organ failure, death or permanent 
     psychological damage. They justified this relaxed definition 
     of torture on the grounds that in a time of war, 
     interrogators need to extract information from prisoners 
     quickly to save American lives. However, it has long been 
     established by experts in the field that torture leads to 
     false confessions and bad intelligence. None of this seems to 
     have mattered to Mr. Gonzales and the higher ups in the White 
     House. Indeed, there is little doubt that the memos written 
     and commissioned by Gonzales paved the way for the abuse and 
     torture of detainees at Guantanamo Bay, Abu Ghraib, Bagram 
     Air Force base, and elsewhere--many of whom are represented 
     by the Center for Constitutional Rights.
       The verdict is clear; there is no question but that there 
     is a causal link between the memoranda and other directives 
     devised by Mr. Gonzales and the terrible infractions 
     committed by officers and functionaries in the field. The 
     images and information about the horrific acts committed 
     against prisoners at Abu Ghraib, (80% of were innocent of any 
     crimes according to the International Red Cross), has 
     severely damaged the reputation of the U.S. in the world as a 
     standard bearer for justice and the rule of law. The 
     arrogance that abounds in the White House is such that they 
     seem impervious to world opinion. But ``we the people'' have 
     the opportunity, obligation and power to let the President 
     and the world know that we will not tolerate intolerable acts 
     committed in our name!
       Many organizations and members of Congress are content to 
     simply ask ``tough questions'' of Mr. Gonzales but not oppose 
     his nomination. At the Center for Constitutional Rights, we 
     firmly believe that a man who helped destroy our nation's 
     moral standing in the eyes of the world, endangered our 
     troops and dismantled centuries of carefully developed 
     international standards of law must not be rewarded with a 
     promotion. Tough questions are not enough. We have a

[[Page S858]]

     duty to save the soul of our country. Accordingly, we call 
     upon Americans of all political persuasions who oppose 
     torture and are eager to restore our nation's good name in 
     the world to join in a massive mobilization to stop the 
     confirmation of Alberto Gonzales as Attorney General of the 
     United States.


                           More on Gonzales:

       According to Newsweek, Mr. Gonzales convened a series of 
     meetings with Defense Department General Counsel William 
     Hayes, Vice Presidential Counsel David Addington, and counsel 
     from the CIA and the Justice Department, where they discussed 
     specific torture techniques they deemed acceptable for use 
     against Al Qaeda leadership, including mock burial, ``water 
     boarding''--where the victim is made to feel that they are 
     drowning--and the threat of more brutal interrogations at the 
     hands of other nations. Indeed, the latter, a practice known 
     as ``extraordinary rendition'' has sent many suspects to 
     countries like Egypt, Jordan and Syria, previously far more 
     experienced in the techniques of torture than the U.S.
       The Center for Constitutional Rights has seen the effects 
     of Mr. Gonzales's policies in all too much detail. We 
     represent many of the men, women and children held and 
     tortured at the hands of U.S. personnel at Abu Ghraib, 
     Guantanamo Bay, and elsewhere. In addition, the U.S. has an 
     unknown number of ghost detainees, hidden from the 
     International Red Cross, at spots around the globe: we can 
     only imagine the treatment they are receiving.
       In their scathing critique of Mr. Gonzales's writings, The 
     Washington Post linked him directly to the tortures at Abu 
     Ghraib and called his legal positions ``damaging and 
     erroneous.'' Making Alberto Gonzales the Attorney General of 
     the United States would be a travesty. It would mean taking 
     one of the legal architects of an illegal and immoral policy 
     and installing him as the official who is charged with 
     protecting our constitutional rights.
                                  ____


               [From the Washington Post, Oct. 24, 2004]

                Memo Lets CIA Take Detainees Out of Iraq

                            (By Dana Priest)

       At the request of the CIA, the Justice Department drafted a 
     confidential memo that authorizes the agency to transfer 
     detainees out of Iraq for iterrogation--a practice that 
     international legal specialists say contravenes the Geneva 
     Conventions.
       One intelligence official familiar with the operation said 
     the CIA has used the March draft memo as legal support for 
     secretly transporting as many as a dozen detainees out of 
     Iraq in the last six months. The agency has concealed the 
     detainees from the International Committee of the Red Cross 
     and other authorities, the official said.
       The draft opinion, written by the Justice Department's 
     Office of Legal Counsel and dated March 19,2004, refers to 
     both Iraqi citizens and foreigners in Iraq, who the memo says 
     are protected by the treaty. It permits the CIA to take 
     Iraqis out of the country to be interrogated for a ``brief 
     but not indefinite period.'' It also says the CIA can 
     permanently remove persons deemed to be ``illegal aliens'' 
     under ``local immigration law.''
       Some specialists in international law say the opinion 
     amounts to a reinterpretation of one of the most basic rights 
     of Article 49 of the Fourth Geneva Convention, which protects 
     civilians during wartime and occupation, including insurgents 
     who were not part of Iraq's military.
       The treaty prohibits ``[i]ndividual or mass forcible 
     transfers, as well as deportations of protected persons from 
     occupied territory . . . regardless of their motive.''
       The 1949 treaty notes that a violation of this particular 
     provision constitutes a ``grave breach'' of the accord, and 
     thus a ``war crime'' under U.S. federal law, according to a 
     footnote in the Justice Department draft. ``For these 
     reasons,'' the footnote reads, ``we recommend that any 
     contemplated relocations of `protected persons' from Iraq to 
     facilitate interrogation be carefully evaluated for 
     compliance with Article 49 on a case by case basis.'' It says 
     that even persons removed from Iraq retain the treaty's 
     protections, which would include humane treatment and access 
     to international monitors.
       During the war in Afghanistan, the administration ruled 
     that al Qaeda fighters were not considered ``protected 
     persons'' under the convention. Many of them were transferred 
     out of the country to the naval base in Guantanamo Bay, Cuba, 
     and elsewhere for interrogations. By contrast, the U.S. 
     Government deems former members of Saddam Hussein's Baath 
     Party and military, as well as insurgents and other civilians 
     in Iraq, to be protected by the Geneva Conventions.
       International law experts contacted for this article 
     described the legal reasoning contained in the Justice 
     Department memo as unconventional and disturbing.
       ``The overall thrust of the Convention is to keep from 
     moving people out of the country and out of the protection of 
     the Convention,'' said former senior military attorney Scott 
     Silliman, executive director of Duke University's Center on 
     Law, Ethics and National Security. ``The memorandum seeks to 
     create a legal regime justifying conduct that the 
     international community clearly considers in violation of 
     international law and the Convention.'' Silliman reviewed the 
     document at The Post's request.
       The CIA, Justice Department and the author of the draft 
     opinion, Jack L. Goldsmith, former director of the Office of 
     Legal Counsel, declined to comment for this article.
       CIA officials have not disclosed the identities or 
     locations of its Iraq detainees to congressional oversight 
     committees, the Defense Department or CIA investigators who 
     are reviewing detention policy, according to two informed 
     U.S. Government officials and a confidential e-mail on the 
     subject shown to The Washington Post.
       White House officials disputed the notion that Goldsmith's 
     interpretation of the treaty was unusual, although they did 
     not explain why. ``The Geneva Conventions are applicable to 
     the conflict in Iraq, and our policy is to comply with the 
     Geneva Conventions,'' White House spokesman Sean McCormick 
     said.
       The Office of Legal Counsel also wrote the Aug. 1, 2002, 
     memo on torture that advised the CIA and White House that 
     torturing al Qaeda terrorists in captivity abroad ``may be 
     justified,'' and that international laws against torture 
     ``may be unconstitutional if applied to interrogations'' 
     conducted in the war on terrorism. President Bush's aides 
     repudiated that memo once it became public this June.
       The Office of Legal Counsel writes legal opinions 
     considered binding on federal agencies and departments. The 
     March 19 document obtained by The Post is stamped ``draft'' 
     and was not finalized, said one U.S. official involved in the 
     legal deliberations. However, the memo was sent to the 
     general counsels at the National Security Council, the CIA 
     and the departments of State and Defense.
       ``The memo was a green light,'' an intelligence official 
     said. ``the CIA used the memo to remove other people from 
     Iraq.''
       Since the Sept. 11, 2001, attacks, the CIA has used broad 
     authority granted in a series of legal opinions and guidance 
     from the Office of Legal Counsel and its own general 
     counsel's office to transfer, interrogate and detain 
     individuals suspected of terrorist activities at a series of 
     undisclosed locations around the world.
       According to current and former agency officials, the CIA 
     has a rendition policy that has permitted the agency to 
     transfer an unknown number of suspected terrorists captured 
     in one country into the hands of security services in other 
     countries whose record of human rights abuse is well 
     documented. These individuals, as well as those at CIA 
     detention facilities, have no access to any recognized legal 
     process or rights.
       The scandal at Abu Ghraib, and the investigations and 
     congressional hearings that followed, forced the disclosure 
     of the Pentagon's behind-closed-doors debate and classified 
     rules for detentions and interrogations at Guantanamo Bay and 
     in Afghanistan and Iraq. Senior defense leaders have 
     repeatedly been called to explain and defend their policies 
     before Congress. But the CIA's policies and practices remain 
     shrouded in secrecy.
       The only public account of CIA detainee treatment comes 
     from soldier testimony and Defense Department investigations 
     of military conduct. For instance, Army Maj. Gen. Antonio M. 
     Taguba's report on Abu Ghraib criticized the CIA practice of 
     maintaining ``ghost detainees''--prisoners who were not 
     officially registered and were moved around inside the prison 
     to hide them from Red Cross teams. Taguba called the practice 
     ``deceptive, contrary to Army doctrine and in violation of 
     international law.''
       Gen. Paul J. Kern, who oversaw another Army inquiry, told 
     Congress that the number of CIA ghost detainees ``is in the 
     dozens, to perhaps up to 100.''
       The March 19, 2004, Justice Department memo by Goldsmith 
     deals with a previously unknown class of people--those 
     removed from Iraq.
       It is not clear why the CIA would feel the need to remove 
     detainees from Iraq for interrogation. A U.S. Government 
     official who has been briefed on the CIA's detention 
     practices said some detainees are probably taken to other 
     countries because ``that's where the agency has the people, 
     expertise and interrogation facilities, where their people 
     and programs are in place.''
       The origin of the Justice Department memo is directly 
     related to the only publicly acknowledged ghost detainee, 
     Hiwa Abdul Rahman Rashul, nicknamed ``Triple X'' by CIA and 
     military officials.
       Rashul, a suspected member of the Iraqi Al-Ansar terrorist 
     group, was captured by Kurdish soldiers in June or July of 
     2003 and turned over to the CIA, which whisked him to 
     Afghanistan for interrogation.
       In October, White House counsel Alberto R. Gonzales asked 
     the Office of Legal Counsel to write an opinion on 
     ``protected persons'' in Iraq and rule on the status of 
     Rashul, according to another U.S. Government official 
     involved in the deliberations.
       Goldsmith, then head of the office, ruled that Rashul was a 
     ``protected person'' under the Fourth Geneva Convention and 
     therefore had to be brought back to Iraq, several 
     intelligence and defense officials said.
       The CIA was not happy with the decision, according to two 
     intelligence officials. It promptly brought Rashul back and 
     suspended any other transfers out of the country.
       At the same time, when transferring Rashul back to Iraq, 
     then-CIA Director George J. Tenet asked Defense Secretary 
     Donald H. Rumsfeld not to give Rashul a prisoner number and 
     to hide him from International Red Cross officials, according 
     to an account provided by Rumsfeld during a June 17 Pentagon 
     news conference. Rumsfeld complied.

[[Page S859]]

       As a ``ghost detainee,'' Rashul became lost in the prison 
     system for seven months.
       Rumsfeld did not fully explain the reason he had complied 
     with Tenet's request or under what legal authority he could 
     have kept Rashul hidden for so long. ``We know from our 
     knowledge that [Tenet] has the authority to do this,'' he 
     said.
       Rashul, defense and intelligence officials noted, had not 
     once been interrogated since he was returned to Iraq. His 
     current status is unknown.
       In the one-page October 2003 interim ruling that directed 
     Rashul's return, Goldsmith also created a new category of 
     persons in Iraq whom he said did not qualify for protection 
     under the Geneva Conventions. They are non-Iraqis who are not 
     members of the former Baath Party and who went to Iraq after 
     the invasion.
       After Goldsmith's ruling, the CIA and Gonzales asked the 
     Office of Legal Counsel for a more complete legal opinion on 
     ``protected persons'' in Iraq and on the legality of 
     transferring people out of Iraq for interrogation. ``That 
     case started the CIA yammering to Justice to get a better 
     memo,'' said one intelligence officer familiar with the 
     interagency discussion.
       Michael Byers, a professor and international law expert at 
     the University of British Columbia, said that creating a 
     legal justification for removing protected persons from Iraq 
     ``is extraordinarily disturbing.''
       ``What they are doing is interpreting an exception into an 
     all-encompassing right, in one of the most fundamental 
     treaties in history,'' Byers said. The Geneva Convention ``is 
     as close as you get to protecting human rights in times of 
     chaos. There's no ambiguity here.''

  Mr. REED. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BUNNING. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BUNNING. Mr. President, I rise to support the nomination of Judge 
Alberto Gonzales to be Attorney General of the United States.
  Judge Gonzales is a dedicated public servant and a legal professional 
who has earned the trust of the President, and he deserves to be 
confirmed. I have worked personally with Judge Gonzales since he joined 
the administration, and I have a great deal of respect for him.
  In 2001 and 2002, Kentucky had an urgent need to fill several 
district court vacancies in the eastern district of Kentucky, and Judge 
Gonzales was very helpful and worked with Senator McConnell and myself 
to quickly fill those vacancies. This ensured that our courts in 
Kentucky continued to function and serve the people well.
  Judge Gonzales has an impressive and broad legal and public service 
background. After a distinguished academic career, including a degree 
from Harvard Law School, Judge Gonzales joined one of Houston's most 
reputable law firms. His hard work and intelligence helped him quickly 
to become a partner in that law firm. That feat is even more impressive 
because he was one of the first two minority lawyers to become a 
partner in that firm.
  He also took time from his private practice to teach law classes at 
the University of Houston. Judge Gonzales then left behind a well-
paying private practice to become general counsel to President Bush 
when he was Governor of Texas. As general counsel, Judge Gonzales 
earned the trust and confidence of the Governor, who then appointed him 
secretary of state. After serving as secretary of state, Judge Gonzales 
was appointed to the supreme court of the great State of Texas. He 
heard cases on that court until Governor Bush was elected President and 
asked Judge Gonzales to serve him as White House Counsel, one of the 
most important legal jobs in this Nation. That job as White House 
Counsel became even more important after September 11 when our 
Government had to rethink our approach to fighting terrorism and 
terrorists and securing the homeland.

  It is clear that Judge Gonzales has strong experience in all legal 
areas. As a practicing lawyer, he learned the private side of the 
justice system and what it was like to deal with the Government on a 
regular basis. As secretary of state and general counsel to the 
Governor of Texas, he received executive experience and learned 
management skills that will serve him well as head of the Department of 
Justice. As a judge, he learned the workings of the third branch of the 
Government and what the Department will have to confront when dealing 
with the courts.
  Finally, as White House Counsel, Judge Gonzales participated in the 
creation of our strategies for fighting terrorism and terrorists at 
home and abroad, and he will carry that vision and experience into our 
Nation's top law enforcement job.
  This is the unique part of the Judge Alberto Gonzales story. It is 
not just his legal experience and public service; it is also a story of 
hard work and living the American dream.
  Judge Gonzales is the first Hispanic nominated to be Attorney 
General. This is noteworthy and a great accomplishment, and it reveals 
not just the greatness of Judge Gonzales's life, but it also reveals 
the opportunities our country provides to those willing to work hard 
and dare to achieve.
  He was raised as one of eight children of migrant workers who barely 
spoke English. His parents did not graduate from high school. He began 
working at age 12 to help the family get by.
  College seemed like a distant dream in his youth, so he joined the 
Air Force. He was then accepted to the Air Force Academy and then moved 
to Rice University. After that came law school and his distinguished 
career.
  The fact that young Alberto was able to raise himself out of such 
underprivileged beginnings is a testament to his hard work and values 
he learned as a child.
  It is not easy to graduate from one of America's most admired law 
schools, even for the children of wealthy or middle-class families. It 
is also not easy to become a partner in a law firm or to serve in high-
ranking Government positions, no matter what your background happens to 
be. But Judge Gonzales overcame all the hurdles in his past and 
achieved what few have achieved.
  I hope that his story is noticed by all who want to achieve great 
things in our country. In America, opportunities are boundless, and 
Alberto Gonzales is proof of that.
  I am glad to support Judge Gonzales's nomination to be Attorney 
General. I may not agree with him on every issue in the future, but I 
am confident that President Bush has chosen an honorable and 
distinguished lawyer and public servant whom he can trust to be our 
Nation's top law enforcement officer.
  This is a critical and opportunistic time for America. We need the 
best of the best to serve in this Cabinet, particularly at the Attorney 
General level as the chief law enforcement officer in these United 
States. Judge Alberto Gonzales is that person. I urge my colleagues to 
support his nomination.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Ensign). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I have been listening closely to my 
colleagues, and I fear that sometimes in this debate we may just be 
missing the forest for the trees. By focusing almost exclusively on 
allegations regarding the Convention Against Torture, which is an 
important issue, to be sure, Judge Gonzales's critics seem to have 
forgotten that we are debating a nomination for the position of 
Attorney General of the United States of America.
  One would think, for example, that all of my colleagues would join me 
in being supportive of the prospect of our Nation's civil rights laws 
being enforced by a citizen who grew up on the wrong side of the tracks 
and has worked his way up the hard way. I am one of many who is pleased 
at the prospect of Judge Gonzales enforcing our civil rights laws.
  It was not that long ago that we did not even have a Civil Rights 
Division at Justice. Today, the public servants there do very important 
work. Whether they are working to guarantee the right to vote, 
protecting the freedom of worship, or preventing human trafficking, the 
21st century version of slavery, these career lawyers are determined to 
extend the principle of equality under the law to all Americans 
regardless of race, creed, or color.
  Alberto Gonzales shares that commitment to the principle of equal 
justice under the law. Instead of launching unfounded accusations that 
Judge

[[Page S860]]

Gonzales in some attenuated fashion somehow supports the inhumane 
treatment of prisoners, one would think we would join together to 
support Judge Gonzales as the enforcer of our Nation's civil rights 
laws.
  As a child of immigrants, the diversity of experience that he would 
bring to this position is remarkable. His personal story is a testament 
to the opportunity afforded in this great country by the guarantees of 
freedom and equality.
  Through his role in the judicial nominations process as White House 
Counsel, Judge Gonzales has made it clear that diversity in Government 
is a desirable goal. I worked with him for 4 years on judicial 
nominations, so I know firsthand of his thoughts and actions on 
bringing diversity to our Federal bench. When working on behalf of the 
American people, a personal appreciation of their everyday trials and 
dreams can only make one a better public servant. For that reason, I 
suppose, he explained at the National Hispanic Leadership Summit, that 
we must ``go the extra mile'' when seeking diversity in public service. 
Certainly this administration has been doing that, and he has been a 
pivotal part of that.
  There is no doubt that Judge Gonzales will bring these experiences to 
bear at his new job. Lynne Liberato, a partner in the Houston office of 
Haynes & Boone, and a former president of the State bar of Texas and 
the Houston Bar Association has said that Judge Gonzales:

     . . . has always been a person of good judgment, kindness, 
     and moderation. He has experienced the prejudice endured by 
     Mexican Americans. These experiences enhanced his judgment 
     and fueled his compassion.

  Now this is not lost on groups representing Hispanic Americans. It is 
certainly not lost on LULAC, the League of United Latin American 
Citizens, which has strongly supported Judge Gonzales and believes that 
he will uphold the 1965 Voting Rights Act making certain that all 
Americans can fully participate in the Democratic process. To me, that 
is the most important civil rights act in history.
  Listening to Judge Gonzales's personal story, one discovers a person 
committed to the idea that if people are only treated equally, the 
opportunities afforded by America are boundless. His father built their 
house with his own hands. My dad did ours. His dad worked any job that 
was available to him in order to support his family. So did my dad. He 
picked crops as a migrant worker, worked in construction, as my dad 
did, and was part of a maintenance crew at a rice mill.
  One gets the sense from listening to Judge Gonzales that his father 
did these things knowing that if only he and his family were given a 
fair shake they would find success in America. Let me just say that my 
father never met Judge Gonzales's father but it sounds to me that they 
would have had a lot in common given their belief and faith in the 
American dream. So it was hardly a surprise when Judge Gonzales 
defended the rights of labor even in the face of the Supreme Court's 
2002 decision in Hoffman Plastics Compounds, Inc., v. NLRB.
  The Court held that employees who present false documents to their 
employers in order to establish employment eligibility are not entitled 
to the remedy of backpay when their employers violate Federal labor 
law. Yet Judge Gonzales insisted that the decision:

     . . . will not prevent the administration from fully 
     enforcing core labor protections against employers, 
     regardless of the status of their employees.

  When he made this statement at a meeting of MALDEF, the Mexican 
American Legal Defense and Education Fund, I am told that one could 
sense the passion of a person with a genuine appreciation of the noble 
sacrifice and the hard labor of the working poor.

  Judge Gonzales is going to lead the Justice Department.
  His personal commitment to justice is deeply rooted. I know the time 
pressures that attorneys face and yet Judge Gonzales has never let the 
demands of his profession or his career stand in the way of his 
voluntary service to his community.
  Somehow, in the midst of building a successful law practice and 
second career as a public servant, he found time to serve as director 
of Catholic Charities and of Big Brothers Big Sisters. As Lynne 
Liberato explained in the Houston Chronicle:

       As a young lawyer, Al was committed to the education of 
     minority kids. While a young associate at Vinson & Elkins he 
     was instrumental in establishing the Vinson & Elkins Minority 
     Scholarship. When asked by local Hispanic leaders to work on 
     a committee to address the issue of the large number of 
     Hispanic dropouts, Al devoted his time to the establishment 
     of the Hispanic Career and Education Day. Both of these 
     programs are still helping kids.

  Judge Gonzales is committed to civil rights and the establishment of 
justice for all of our citizens, and so it is unfortunate that some of 
my colleagues have allowed their opposition to the President's 
prosecution of the war on terror to cloud their judgment in this case. 
Judge Gonzales will be our Nation's chief law enforcement officer. As 
such, he will be called upon to enforce our civil rights statutes and 
his long track record leaves no doubt that he will do so vigorously. 
His nomination is a milestone in American history and his confirmation 
will be remembered in our Hispanic communities for generations.
  As a proud member of the party of Abraham Lincoln, I remain committed 
to a serious civil rights agenda. I wish my friends across the aisle 
would put partisanship aside and recognize that Judge Gonzalez would 
make a historic contribution to our Nation's continuing struggle to be 
a more just political community.
  Some Senators on the other side of the aisle are desperately 
searching, fishing, and hunting to find something, anything, with which 
to attack Judge Alberto Gonzales. I reviewed some of the issues 
yesterday, including their attempt to hold Judge Gonzales responsible 
for a memo that he did not write, prepared by an office he did not run, 
in a Department in which he did not work, that provided legal advice 
that President Bush did not follow. That argument is a very thin brew. 
But some of my friends across the aisle are still throwing political 
spaghetti at the wall hoping something will stick.
  The senior Senator from New York, for example, wants to drag Judge 
Gonzales into our internal Senate debate over filibusters of majority-
supported judicial nominations. In the Judiciary Committee hearing on 
January 6 and the markup on January 26 and again on this floor 
yesterday, the distinguished Senator from New York has demanded to know 
Judge Gonzales's opinion on whether these filibusters are 
constitutional.
  Senator Schumer says the answer will ``weigh heavily in my decision 
whether to support his confirmation.'' Judge Gonzales's answer has been 
clear and consistent, and it is both clearly and consistently correct. 
He said in the hearing that this issue is ``an internal Senate 
matter.''
  Now, that is the right answer, because it is what the Constitution 
says. In article 1, section 5, the Constitution gives each House of the 
Congress the power to ``determine the rules of its proceedings.''
  Judge Gonzales did not remind us of the at least four instances where 
the constitutional option was utilized in the Senate to stop an unjust, 
unconstitutional filibuster. No, he did not do that. He just said it is 
up to the Senate; the Senate should set its rules. That is what the 
Constitution says.
  As the Supreme Court unanimously held more than a century ago, in 
exercising this authority we may not ignore constitutional restraints. 
That is a given. But both the authority to determine our rules and our 
responsibilities to meet constitutional standards are entirely ours so 
long as our rules do not contravene another constitutional requirement.
  The House of Representatives has nothing to say about our rules in 
the Senate, and the executive branch does not either, and Alberto 
Gonzales recognized these principles.
  Judge Gonzales is not like the professors who opined in hearings on 
this issue. Nor does he work for the Senate legal counsel or for the 
Parliamentarian waiting in the wings to give his opinion on any issue 
any Senator might raise. He is Counsel to the President of the United 
States of America. He comes before us wearing that hat. He has been 
nominated to be the next Attorney General of the United States of 
America. Both positions are in the executive branch, which has no role

[[Page S861]]

whatsoever in determining how the Senate sets its internal procedural 
rules.
  So Judge Gonzales's answer was not only correct on its face, but it 
demonstrated his respect for the fundamental principle of the 
separation of powers. In my view, he correctly believes it is not 
appropriate to accept any invitation that comes along to speculate and 
postulate about issues that the Constitution expressly removes from his 
jurisdiction.
  In his January 6 hearing, Senator Schumer asked Judge Gonzales about 
the filibusters, after insisting that the words of the Constitution 
should be our standard on such issues. Keep in mind these are the first 
filibusters of judges, of Federal judges, in the history of this 
country in over 200 years.
  If the words of the Constitution matter, then nothing could be more 
compelling than the Constitution's assignment of rulemaking authority 
right here in the Senate. Judge Gonzales's answer was grounded 
correctly in the text of the Constitution. For this reason, I was more 
than a little surprised yesterday to hear the distinguished Senator 
from New York, Mr. Schumer, say on this floor that Judge Gonzales's 
principled answer to this politically motivated question suggests that 
he would not be independent as Attorney General.
  Give me a break. Frankly, as one who believes that my colleagues 
across the aisle are using the current rules of the Senate to 
filibuster judicial nominations in an unwise, unfair, unprecedented, 
and unconstitutional manner, there may have been some short-term 
political benefits to have the next Attorney General publicly side with 
me on this important issue. But Judge Gonzales wisely did not join in 
this fray, even though it could have been politically advantageous to 
the President and Republican Senators if he just came out on our side.
  I asked those who questioned his independence and his ability to 
separate himself from the political interests of the President, what 
could be more independent than insisting that the constitutional 
separation of powers takes precedence over the politics of the moment?
  This is an odd way to look at independence. On the one hand, Senator 
Schumer wants Judge Gonzales as Attorney General to be independent from 
the President at whose pleasure any Cabinet member serves. Then on the 
other side, Senator Schumer objects when Judge Gonzales, as Counsel to 
the President, shows a little independence from Senator Schumer by 
refusing to be pulled into a political dispute entirely outside the 
jurisdiction of the executive branch.
  What is even more disheartening to me is that even though the 
distinguished Senator from New York has worked closely and 
cooperatively with Judge Gonzales in resolving their differences with 
respect to filling judicial vacancies in New York, he somehow finds 
Judge Gonzales to be unfit for the office of Attorney General. 
Selecting judges has been one of the most vexatious issues that any 
President and any Senate face. Judge Gonzales has a proven track record 
of working effectively with Senator Schumer on New York judicial 
vacancies.
  I think it is fair to call Senator Schumer one of the most energetic 
Members of the Senate with respect to judicial nominations, whether you 
agree with him or not. It seems to me that Judge Gonzales's ability to 
work with my friend from New York so successfully on these contentious 
issues bodes well for his abilities to continue to work closely with 
the Senate once he is confirmed.
  Several of my colleagues have stood on this floor and suggested--
sometimes even flatly asserted--that Judge Gonzales lacks or will lack 
the necessary independence from the White House if he were to become 
Attorney General of the United States of America.
  I cannot reach into the hearts and minds of those making these 
statements, but to me this suggestion is unadulterated bunk, sheer 
hokum. It is asking us to disprove a negative. It is the type of 
argument that is made when meritorious arguments are unavailable.
  The charge that Judge Gonzales will not exercise his best judgment on 
behalf of the American public is groundless. Judge Gonzales is an 
accomplished lawyer, one recognized by the alumni association at his 
alma mater, the Harvard Law School, one of the greatest law schools in 
the country. He practiced at one of the most prestigious and respected 
law firms in the United States of America, Vinson and Elkins. He was a 
partner there.

  As many speakers before me have noted, including Senator Specter and 
Senator Sessions, a good lawyer is one who knows who his client is and 
represents him well. What is it about Judge Gonzales that makes some 
people believe that he is somehow incapable of making the simple 
distinctions, distinctions made by lawyers every day? Is it prejudice? 
Is it a belief that a Hispanic American should never be in a position 
like this--because he will be the first one ever in a position like 
this? Is it a belief that only liberal Hispanics should be confirmed? 
Or is it because he has been an effective Counsel to the President of 
the United States, who many on the other side do not like? Or is it 
because he is constantly mentioned for the Supreme Court of the United 
States of America? Or is it that they just don't like Judge Gonzales? I 
find that that is not possible because you can't help but like him. He 
is a fine, enjoyable, friendly man.
  I do not agree with those who insinuate that he cannot handle this 
job or that he will not do it in the best possible manner. I believe 
every Hispanic in America who is interested in this country and who 
understands what is going on here is watching this with a great deal of 
interest. It is amazing how some can be so in favor of minorities and 
yet whenever the minority might be--in this case moderate, but 
representing a conservative President--that for some reason or other, 
they are just not worthy to hold these positions?
  It was explained in the Judiciary Committee, Judge Gonzales 
understands the differences between the role of the White House Counsel 
and the role of Attorney General. Over the course of our history there 
have been several individuals who have been close advisers and friends 
of the President and have gone on to serve successfully as Attorney 
General. In President Reagan's administration, Attorney General Meese 
wore both hats with great distinction. Earlier than that, Robert 
Kennedy, brother of the President of the United States, proved capable 
of separating his role of serving the American people from his unique 
relationship with his brother, President John F. Kennedy.
  Frankly, I doubt that any Attorney General was closer to the 
President than Attorney General Robert Kennedy was to President John F. 
Kennedy. The historical record reveals that this issue was a matter of 
debate and concern by some prior to the confirmation of Attorney 
General Kennedy. In the same way that Robert Kennedy did not allow his 
closeness to the President to interfere with his legal judgment, I am 
fully confident, and I think everybody who knows Alberto Gonzales is 
confident, that Alberto Gonzales's relationship with President Bush 
will not impede his ability to serve as a fair and effective Attorney 
General of the United States of America.
  In fact, that Judge Gonzales has the President's ear and full 
confidence can only help achieve the Department of Justice's priorities 
in the same way that the Department of Justice played a prominent role 
in the Kennedy administration.
  I am quite confident that Judge Gonzales will serve the American 
public and enforce the law in a fair manner for all of our citizens. I 
am not certain why anybody would suggest that Judge Gonzales is somehow 
incapable of distinguishing his role as Attorney General of the United 
States from his role as Counsel to the President. He made it quite 
clear in his confirmation hearing that he understood the obligations of 
his new office. Here is what he said:

       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 the 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

[[Page S862]]

     is going to be to the Constitution and to the laws of the 
     United States.

  You know, I think he ought to be taken at his word. We have done it 
for countless others whom we have confirmed here in this body. But for 
some reason some on the other side actually believe that he might not 
be capable of doing this job. Or if he is, then he might not do it 
properly. Or, if he doesn't do that, then he might be so much in his 
President's pocket that he won't uphold the law, which he has always 
done.
  It is ridiculous. What is the reason for this opposition? I don't 
know what it is. But I have listed a few things it could be. Judge 
Gonzales's service on the Texas Supreme Court should prove to anyone 
interested his ability to be independent from then-Governor and now-
President Bush.
  In response to questions for the record from Senator Kennedy, the 
distinguished Senator from Massachusetts, Judge Gonzales stated that he 
``would enforce the law fairly and equally on behalf of all 
Americans.''
  Senator Kennedy raised all of these torture memoranda as though Judge 
Gonzales wrote them.
  He wasn't in the Justice Department. He wasn't in the office of legal 
counsel. He wasn't the person who wrote them. He didn't represent the 
Justice Department. But he did have a relationship to the February 7, 
2002, memorandum where the President said that all prisoners, whether 
or not they were subject to the Geneva Conventions, had been treated 
``humanely.''
  People can have different views on the Bybee memoranda, and other 
memoranda that have been quoted here as though Judge Gonzales had 
anything to do at all with them, but Judge Gonzales's opinion, which he 
gave the President, was that they should be treated humanely.
  Why do they insist on these points? Why has torture become the big 
point of debate on the floor of the Senate? There is only one reason: 
to undermine the President of the United States.
  Just think about it. Why would we do that publicly as Senators? Why 
would we do that, especially since we all know that these were rogue 
elements who have done these awful things? We all condemn them. But why 
would we do this? Some people think that these statements are so bad, 
that they give comfort to the enemy. I do not go that far. But why have 
they used distortions to try to stop Judge Gonzales? Why would they do 
that?
  He is a moderate man. He is an accomplished man. He is a decent man. 
We have had 4 years of experience with him. He has done a great job 
down there as White House Counsel. He has been up here before every 
Senator on the Judiciary Committee, eight of whom voted against him, 
and he accommodated them in every way he possibly could. Sometimes he 
couldn't do what they wanted him to do, but the fact is he was always 
accommodating. He was always reasonable, he was always moderate in his 
approach, and he always listened--exactly what we would hope the 
Attorney General of the United States would be like.
  Further, during his opening statement at his confirmation hearing, 
Judge Gonzales indicated that ``[with] the consent of the Senate, [he] 
w[ould] no longer represent only the White House; [he] w[ould] 
represent the United States of America and its people.''
  Knowing Judge Gonzales, he meant that.
  Finally, Judge Gonzales explained at his hearing that his 
responsibility as Attorney General would be to ``pursue justice for the 
all the people of our great Nation, to see the laws are enforced in a 
fair and impartial manner for all Americans.'' I believe it is clear 
that Judge Gonzales understands the obligations associated with the 
position of Attorney General of the United States, and he is uniquely 
qualified to follow in the footsteps of the able and distinguished men 
and women who have preceded him.
  I know the other side does not want any Republican on the Supreme 
Court of the United States of America. I cannot blame them for that. We 
do not share the same philosophy, by and large, as the liberal 
philosophy they espouse. On the other hand, in times past Republicans 
have confirmed liberals to the U.S. Supreme Court without putting them 
through these types of machinations that have despoiled their 
character. We have supported the President of the United States. We 
have not filibustered judges. We did not smear great legal 
intellectuals like Robert Bork. I can name many others, including the 
current Chief Justice of the United States, one of the finest men who 
ever served in the judiciary of this country, who had a distinguished 
public service record before his nomination but was smeared during the 
Judiciary Committee hearings and on the floor of the Senate. My party 
did not resort to these tactics. I would be disappointed if we did.
  Here we have a chance to confirm a man who is a decent man, who is of 
Hispanic origin, the first Hispanic ever to be nominated to one of the 
big four Cabinet positions. Why can't my friends who oppose him 
recognize that and recognize the historic nature of this nomination, 
recognize his great ability, recognize his decency, recognize his 
fairness in working with them, and recognize that this man will make 
a difference for all Americans, as he has as White House Counsel?

  Is the hatred for the President so bad they transfer it to somebody 
as decent as Judge Gonzales after years of complaints about John 
Ashcroft? He has been a wonderful Attorney General, in my eyes. After 
years of complaining about him because he is too conservative, all of a 
sudden you have a moderate Hispanic man who has a distinguished public 
service record, who has a distinguished career as a lawyer, who came 
from poverty to the heights of strength and success in this greatest of 
all nations, and he too gets treated like dirt. And I personally resent 
it.
  Let me conclude these remarks by restating my support for Alberto 
Gonzales. He has the education, he has the experience, and he has the 
character to be the next Attorney General of the United States, and he 
deserves the support of the Senate.
  I believe that those who vote against him--I hope nobody does, I 
would be so pleased if nobody did, but those who vote against him, I 
believe people throughout this country have to look at what they have 
done with disdain, with concern, and with intelligent eyes and 
determine why they voted against somebody of this quality. Why would 
they make some of these arguments that are clearly fallacious with 
regard to Judge Gonzales?
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALLARD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.
  Mr. ALLARD. Mr. President, it is with great pride that I rise today 
in support of the President's nominee for Attorney General, Judge 
Alberto R. Gonzales. Judge Gonzales is an honorable man who will bring 
great integrity to the office of Attorney General. Few nominees have 
come before this body who have demonstrated the intelligence, 
commitment, and virtue of Judge Alberto Gonzales.
  The biography of Judge Alberto Gonzales reads like a blueprint of the 
true American success story. He was born August 4, 1955 in San Antonio, 
TX. The second of eight children, a young Alberto was raised in a warm, 
family environment. His parents, a scant 8 years of formal education 
between them, taught their kids the value of hard work and persistence. 
It was in Humble, TX, a small town north of Houston, that Alberto 
Gonzales watched his father Pablo, a migrant worker, and two of his 
uncles build the two-bedroom house in which he and his siblings grew 
up. It is the same house in which his mother resides today.
  Gonzales graduated from public high school in Houston in 1973. Having 
never considered college a realistic possibility and full of desire to 
learn and see the world, Alberto Gonzales enlisted in the Air Force. He 
was assigned to Ft. Yukon, AK, where he became inspired to apply for an 
appointment to the United States Air Force Academy. Special 
arrangements were made for Gonzales to take his ACT and the Academy's 
required physical examination while still stationed in Alaska. Gonzales 
was rewarded with orders to report to the Academy at Colorado

[[Page S863]]

Springs, CO in 1975 to pursue his dream of becoming a pilot in the 
United States Air Force.
  Alberto Gonzales excelled in his first year at Colorado Springs but 
found he was more interested in politics and law than the engineering 
and science curriculum required by the Academy. After much deliberation 
and consideration of the effort put forth to earn his appointment to 
the Academy, he decided to pursue a career in the law. Gonzales started 
at Rice University his junior year of college, graduating from Rice in 
1979. After Rice, Gonzales attended Harvard Law School where he 
graduated in 1982. Gonzales returned to Houston as an associate at the 
law firm of Vinson & Elkins where he later became one of the firm's 
first two minority partners. While in private practice, Gonzales also 
taught as an adjunct law professor at the University of Houston Law 
Center and was actively involved in numerous civic organizations.
  It was at a meeting of Houston area minority leaders in 1994 that 
Alberto Gonzales first met President George W. Bush during the 
President's first gubernatorial campaign. Several weeks after being 
elected Governor, Bush asked Gonzales to join his administration as his 
General Counsel, where he served for 3 years. On December 2, 1997, 
Gonzales was appointed Texas' 100th Secretary of State, serving as 
chief elections officer, the State's leading liaison on Mexico and 
border issues, and senior adviser to the Governor. Gonzales was 
appointed to the Texas State Supreme Court in 1999, and was elected to 
a full 6-year term on the court in 2000 with 81 percent of the vote. In 
January of 2001, Alberto Gonzales again heeded President Bush's call to 
service and was commissioned as counsel to the President.
  This is an incredible journey from Humble, TX, to Ft. Yukon, AK, to 
the Air Force Academy in Colorado to the Ivy League. From private 
business and civil leadership in Texas to being recruited to serve in 
the administration of President Bush, Alberto Gonzales has led a life 
full of challenge, accomplishment, and great success. As if this 
weren't enough, Alberto Gonzales has given back to his community and 
his fellow Americans along the way.
  Alberto Gonzales was a trustee of the Texas Bar Foundation from 1996 
to 1999, a director for the State Bar of Texas from 1991 to 1994, and 
President of the Houston Hispanic Bar Association from 1990 to 1991. He 
was a director of the United Way of the Texas Gulf Coast from 1993 to 
1994, and President of Leadership Houston. In 1994, Gonzales served as 
Chair of the Commission for District Decentralization of the Houston 
Independent School District, and as a member of the Committee on 
Undergraduate Admissions for Rice University. Gonzales was Special 
Legal Counsel to the Houston Host Committee for the 1990 Summit of 
Industrialized Nations, and a member of delegations sent by the 
American Council of Young Political Leaders to Mexico in 1996 and to 
the People's Republic of China in 1995. He served on the board of 
directors of Catholic Charities, Big Brothers and Big Sisters, and the 
Houston Hispanic Forum.
  Judge Gonzales has been the fortunate recipient of many professional 
and civic honors, including his 2003 induction into the Hispanic 
Scholarship Fund Alumni Hall of Fame, and the Good Neighbor Award from 
the United States-Mexico Chamber of Commerce for his dedication and 
leadership in promoting a civil society and equal opportunity. Gonzales 
also received in 2003 the President's Awards from the United States 
Hispanic Chamber of Commerce and the League of United Latin American 
Citizens. In 2002, he was recognized as a Distinguished Alumnus of Rice 
University by the Association of Rice Alumni and was honored with the 
Harvard Law School Association Award. Gonzales was recognized as the 
1999 Latino Lawyer of the Year by the Hispanic National Bar 
Association, and he received a Presidential Citation from the State Bar 
of Texas in 1997 for his dedication to addressing basic legal needs of 
the indigent. He was chosen as one of the Five Outstanding Young Texans 
by the Texas Jaycees in 1994, and as the Outstanding Young Lawyer of 
Texas by the Texas Young Lawyers Association in 1992. Gonzales was 
honored by the United Way in 1993 with a Commitment to Leadership 
Award, and received the Hispanic Salute Award in 1989 from the Houston 
Metro Ford Dealers for his work in the field of education.

  When I began my remarks I suggested that Alberto Gonzales was one of 
the most accomplished and qualified individuals ever to stand before 
this body for confirmation. In recent weeks this body, and particularly 
the Senate Judiciary Committee, has engaged in a rigorous, often 
exaggerated, examination of Judge Gonzales life, his work, and 
character. Like all things that take place inside the beltway, this 
examination has bordered on the dramatic, the overblown, and the 
overtly political.
  Most of the criticism Judge Gonzales has endured has not been related 
to his background, academic and professional accomplishment, or his 
competency to serve as this Nation's highest law enforcement official. 
Indeed, the criticism has focused on very recent American history. 
Judge Gonzales, like countless millions of Americans, was effectively 
called to service in a way previously unimagined when a small group of 
radical murderers attacked this Nation on September 11, 2001. September 
11, 2001 was an act of war by a group of men who recognize no law and 
represent no nation. Terrorists who would attack innocent people around 
the world and Americans here at home sign no treaties, engage in no 
civil discourse, and disregard all bodies of democratic government. 
This is an ugly thing. These are difficult times. We are engaged in a 
war without borders against a foe that knows no bounds in its cruelty. 
Innocents killed for going to work on a sunny September morning, kidnap 
victims beheaded for publicity and fear, an entire civic system 
indicted for having the nerve to believe in the liberty of the 
individual. I find it hard to believe, but Judge Alberto Gonzales is 
being treated by some in this chamber as if he was somehow responsible 
for the senseless and violent acts of terrorists. More reasonable yet 
equally baseless are the criticisms that Judge Gonzales somehow 
supports the use of barbaric and medieval treatment of those 
apprehended by the United States and suspected of engaging in terrorist 
activities.
  A good example of the ludicrous criticisms of Judge Gonzales, and one 
my friend from Texas, Senator Cornyn has rightly sighted in recent 
floor statements, is the flimsy assertion that Judge Gonzales in 
advising President Bush to deny prisoner of war status to al-Qaida and 
Taliban terrorists is somehow a violator of the human rights principles 
so essentially a part of the American ethic. In his role advising the 
President on legal matters in the war on terror Alberto Gonzales has 
never provided council regarding prisoners without insisting that their 
treatment be humane in all instances.
  According to the very Geneva Convention these critics pretend to 
defend, only lawful combatants are eligible for POW protections. Lawful 
combatants must pass the smell test. They must look like combatants. 
They do not hide their weapons or their affiliations. They wear 
uniforms and they conduct their operations in accordance with the laws 
and customs of war. Civilians are to be treated as innocents. No 
stretching or distorting of this definition can turn terrorists in to 
lawful combatants. In their eagerness to demean Judge Gonzales his 
critics fail to acknowledge that neither al-Qaida nor the Taliban 
militia are legally entitled to the Convention's protections. They do 
not adhere to the required conditions of lawful combat and are not a 
party to the Geneva Convention. This is not some arbitrary and 
convenient conclusion. This is based in the very text and structure of 
the text, the history of the convention, and has been affirmed by 
several Federal courts across the country. And this is what they offer 
as evidence that Judge Gonzales is somehow unfit to serve as Attorney 
General?
  Judge Gonzales and President Bush have repeatedly affirmed their 
respect for the humane but aggressive prosecution of the war this 
country was dragged in to. Specific to the Geneva Convention Judge 
Gonzales testified, ``honoring the Geneva Conventions wherever they 
apply . . . I consider the Geneva Conventions neither obsolete or 
quaint.'' The administration has fully applied the Geneva Conventions' 
protections in Iraq because Iraq is a

[[Page S864]]

High Contracting Party to the Conventions. There was never any question 
about whether Geneva would apply in Iraq, Judge Gonzales testified 
recently, so there was no decision for the administration to make. Yet 
in committing to the legal study of engagement with the Taliban militia 
and al-Qaida fighters somehow Judge Gonzales is labeled as a radical 
and accused of maliciousness only fairly attributed to the enemies of 
America.

  But the truth is not enough when there are political axes to grind. 
Members of the Senate Judiciary Committee and others have loudly 
asserted that the treatment of prisoners at Abu Ghraib somehow 
represents U.S. and administration policy. Like everyone else in this 
Chamber I was startled by the photographs of prisoner mistreatment at 
Abu Ghraib, but again we see a logical failure in connecting this 
incident of abuse with any policy set by the Department of Justice, 
Judge Gonzales or the President. ``I have been deeply troubled and 
offended by reports of abuse,'' Judge Gonzales testified. ``The photos 
from Abu Ghraib sickened and outraged me, and left a stain on our 
Nation's reputation.'' Judge Gonzales testified at length on this 
matter and the administration has been nothing but clear that these 
isolated acts were those of a small group of misguided soldiers. These 
acts were wrong and completely inconsistent with the policies and 
values of this country. The Independent Panel to Review DoD Detention 
Operations found that the abuses depicted in Abu Ghraib photographs 
were not part of authorized interrogations but a representation of 
deviant behavior and a failure of military leadership and discipline.
  And still the critics of Judge Gonzales demand he be linked to these 
roundly condemned and isolated acts. While I am proud to rise in 
support of Judge Gonzales, I am dismayed at the atmosphere in which 
this nomination has been made and received by the Senate. As millions 
of Americans know, in recent years we have witnessed a historical 
hijacking of the President's power to appoint judges. While controversy 
may not be new to the appointment process, the unprecedented filibuster 
of judges in this Chamber last year flies boldly in the face of both 
the Founders' intent expressed in Article II, Section II of the 
Constitution, as well as a distortion of the Senate's rich tradition of 
providing advise and consent without filibuster.
  In my opinion the tenor of this confirmation process reeks of last 
year's series of senseless cloture votes on nominees of high stature. 
Unfair and unsubstantiated claims have been made and half-truths and 
lies of omission have dominated the rhetoric of those opposing Judge 
Gonzales. I am not here today to impugn those who have contributed to 
this false advertising, though it is worth saying that the nature and 
intensity of these false arguments in light of this nominees 
extraordinary record and dedication may reveal more about the opponents 
than the nominee. Upon his confirmation Judge Gonzales will become the 
first Hispanic American to serve in this high post, yet another 
historic appointment by President George W. Bush. Judge Gonzales is a 
man of great character who has and will continue to serve this Nation 
with distinction. I urge my fellow Americans to look at Judge 
Gonzales's record and draw their own conclusions as to why some in this 
body find him to be so disagreeable to their aims. It is clear to me 
what has been happening here, just as it is clear to me that Judge 
Gonzales will be confirmed despite the overtly political and shallow 
opposition he faces.
  I am proud to rise in support of Judge Alberto Gonzales. His record 
of service is indicative of the character, integrity and energy he will 
bring to the demanding and thankless job of Attorney General. I look 
forward to working with Attorney General Gonzales, and I thank my 
colleagues for their time.
  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. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, we have had a lot of complaints on the 
floor about one of America's most decent, fine public servants, Judge 
Gonzales, who served as Counsel to the President of the United States. 
It has been really painful to hear what has been said. I, just for the 
record, would like to take a few minutes to respond to some of these 
allegations that are not fair, represent distortions, and really 
misrepresent him and attack his character unfairly.
  Senator Kennedy, for example, says that Judge Gonzales was at the 
``epicenter'' of a torture policy. As I have indicated earlier, Judge 
Gonzales has repeatedly and consistently opposed torture. He has said 
it is not proper and not justified and has publicly stated that we, as 
a nation, are committed to the rule of law, to following our treaty 
obligations, and the statutory requirements that deal with torture. The 
President, of course, has said the same.
  There is no policy of torture in the United States. We have a statute 
that deals with that and prohibits it. It defines what torture is and 
what it is not. Sometimes that has been the problem. Congress's 
definition has been ignored. Things that are not included in our 
definition have been said to be torture.
  Indeed, some of the people who complained about the memorandums 
written by the Department of Justice officials actually voted for the 
statute that defined torture; and that memorandum quoted extensively 
from it and was framed by that American statute.
  Senator Stabenow has contended that Judge Gonzales has a reckless 
disregard for human rights--this decent man, who has seen 
discrimination in his life--that he has a reckless disregard for human 
rights and has twisted the law to allow torture.
  The truth is, Judge Gonzales has stated that every detainee should be 
treated humanely. In the only memorandum Judge Gonzales ever wrote, he 
provided prisoner-of-war status to Iraqi soldiers captured in Iraq, 
allowing them the additional protections of a prisoner of war under the 
Geneva Conventions, even though they do not qualify.
  The soldiers caught and captured right after the conclusion of 
hostilities, wearing a uniform, operating in units, they qualify as 
prisoners of war. But these people who are sneaking around, not in 
uniform, placing bombs against civilian people, against Iraqi citizens, 
against American soldiers, they do not meet the definition of the 
Geneva Conventions. Therefore, they really are not entitled legally to 
those protections. But Judge Gonzales has said, and the President has 
agreed, that they will be given those protections.
  Senator Feinstein says Judge Gonzales did not answer the committee's 
questions properly, her questions. He really did answer them. I think 
the truth is that the Senator was unsatisfied with his answers because 
they were, she said, not independent of the President.
  Let me ask, isn't it most likely the fact that Judge Gonzales and the 
President agreed on these positions? This issue has been taken to the 
American people in the President's reelection campaign. All these 
issues were debated and the American people affirmed his leadership and 
his guidance in the war on terrorism. To say there is not enough 
distance between the President's lawyer and the President is really an 
odd statement to make. Of course, the lawyer and the President are 
together, I am sure not only legally and professionally together on 
these issues, but they share deep values together.

  Senator Mikulski claims that Judge Gonzales was not cooperative in 
the nomination of judges to the Maryland bench. The truth is, Maryland 
Senators have played a role in obstructing the judge's nominees. They 
have argued that one nominee, a lawyer born in Maryland and educated in 
Maryland, was not a Marylander and could not be confirmed. I think it 
was driven by their disagreement with his conservative judicial 
philosophy, but they objected on that basis, and there was a big 
disagreement on it. But that is not Judge Gonzales's decision to make. 
Ultimately, that is the decision of the President.
  One Senator complained about his support for Claude Allen for the 
court of appeals, an African-American judicial nominee of excellent 
reputation,

[[Page S865]]

and I don't think that is fair. He simply supported Claude Allen, a 
judge that I supported and a majority of this Senate supports but has 
been blocked through dilatory tactics from the other side. But that is 
not a basis to vote against him for Attorney General.
  Senator Schumer complained that Judge Gonzales refused to answer his 
question on the so-called nuclear option, which is a political issue, a 
legislative branch issue of this Congress to deal with. It is a matter 
that involves rules in the Senate, how they are changed, and that kind 
of debate. This issue has nothing to do with running the Department of 
Justice. It is not any role for Judge Gonzales, a lawyer for the 
President of the United States, to start opining on what he thinks 
about Senate rules.
  Senator Schumer is leading filibuster after filibuster of the 
President's nominees in an unprecedented use of the filibuster 
systematically against judicial nominees, something that has not 
happened in the history of this Republic. But for these filibusters, 
the nuclear question would not exist.
  These complaints have been unfair. They have oftentimes relied on 
information taken out of context, information that is misleading. The 
truth is, Judge Gonzales is a sound lawyer, a decent man who believes 
in the rule of law. He believes in following the law. He will be a 
terrific Attorney General. He has been nominated by the President. I 
believe he will be confirmed. I am excited for him and his good, fine 
family. It is going to be a special day for them.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the hour of 2:30 
having arrived, the Senator from West Virginia is recognized for 1 
hour.
  Mr. BYRD. I thank the Chair.
  Mr. President, Alberto Gonzales is Counsel to the President of the 
United States. For the past 4 years, Mr. Gonzales has served as the 
chief legal adviser to President Bush, housed in the west wing of the 
White House, a stone's throw from the Oval Office.
  The official biography of Alberto Gonzales on the White House Web 
site states that before he was commissioned to be White House Counsel, 
Judge Gonzales was a justice on the Texas Supreme Court. Prior to that, 
he served as the one-hundredth Secretary of the State of Texas, where 
one of his many duties was to act as a senior adviser to then-Governor 
George W. Bush. Before that, he was general counsel to Governor Bush 
for 3 years.
  So for over a decade, Alberto Gonzales has been a close confidant and 
adviser to George W. Bush, and the President has confirmed his personal 
and professional ties to Judge Gonzales on many occasions.
  The President has described him as both ``a dear friend'' and as 
``the top legal official on the White House staff.'' When the President 
nominated Mr. Gonzales to be the next Attorney General of the United 
States, the President began by asserting:

       This is the fifth time I have asked Judge Gonzales to serve 
     his fellow citizens, and I am very grateful he keeps saying 
     ``yes'' . . . as the top legal official on the White House 
     staff, he has led a superb team of lawyers.

  In praising his nomination of Alberto Gonzales, the President 
specifically stressed the quintessential ``leadership'' role that 
Alberto Gonzales has held in providing the President with legal advice 
on the war on terror. The President stated specifically that it was his 
``sharp intellect and sound judgment'' that helped shape our policies 
in the war on terror. According to the President, Mr. Gonzales is one 
of his closest friends who, again in the words of the President, 
``always gives me his frank opinion.''
  I am not a member of the Senate Committee on the Judiciary and so I 
have come to my conclusions by reading from the record. Not hearing 
directly the testimony, not being able to ask questions during the 
hearings, but from my reading of the testimony, I speak now.
  Imagine how perplexing and disheartening it has been to review the 
responses--or should I say lack of responses--that were provided by Mr. 
Gonzales to members of the Senate Judiciary Committee at his 
confirmation hearing on January 6. It seemed as if once seated before 
the committee, Judge Gonzales forgot that he had, in fact, been the 
President's top legal adviser for the past 4 years.
  It was a strangely detached Alberto Gonzales who appeared before the 
Senate Judiciary Committee. Suddenly this close friend and adviser to 
the President simply could not recall forming opinions on a great 
number of key legal and policy decisions made by the Bush White House 
over the past 4 years. And this seemed particularly true when it came 
to decisions which in retrospect now appear to have been wrong.
  When asked his specific recollection of weighty matters, Judge 
Gonzales could provide only vague recollections in many instances of 
what might have been discussed in meetings of quite monumental 
importance even during a time of war.
  He could not remember what he advised in discussions interpreting the 
U.S. law against torture or the power of the President to ignore laws 
passed by Congress, discussions that resulted in decisions that 
reversed over 200 years of legal and constitutional precedents relied 
on by 42 prior Presidents. That is pretty hard to believe. In fact, if 
one did not know the true relationship between the President and this 
nominee, or if one had never heard the President refer to the ``frank'' 
advice he has received from Judge Gonzales, one would think from 
reading his hearing transcript that Alberto Gonzales was not really the 
White House Counsel.
  Instead, one might think that he is simply an old family friend who, 
yes, is happy to work near the seat of power but makes no really big 
decisions, has no legal opinions of his own, and certainly feels no 
responsibility to provide independent recommendations to the President.
  I find it hard to believe that the top legal adviser to the President 
cannot recall what he said or what he did with respect to so many of 
the enormous policy and legal decisions that have flowed from the White 
House since September 11 in particular. It is especially difficult to 
comprehend the sudden memory lapse when the consequences of these 
decisions have had, and will continue to have, profound effects on 
world events for years, and even decades, to come.
  Judge Gonzales was asked whether he had chaired meetings in which he 
had discussed with Justice Department attorneys such interrogation 
techniques as strapping detainees to boards and holding them under 
water, as if to drown them. He testified that there were such meetings, 
and he did remember having had some discussions with Justice Department 
attorneys, but he could not recall what he told them in those 
discussions.
  When Senator Kennedy asked if he ever suggested to the Justice 
Department attorneys that they ought to ``lean forward'' to support 
more extreme uses of torture, as reported by the Washington Post, he 
said:

       I don't ever recall having used that term.

  He stated that, while he might have attended such meetings, it was 
not his role, but that of the Justice Department, to determine which 
interrogation techniques were lawful. He said:

       It was not my role to direct that we should use certain 
     kinds of methods of receiving information from terrorists. 
     That was a decision made by the operational agencies. . . . 
     And we look to the Department of Justice to tell us what 
     would, in fact, be within the law.

  He said he could not recall what he said when he discussed with 
Justice Department attorneys the contents of the now-infamous 
``torture'' memo of August 1, 2002, the one which independent 
investigative reports have found contributed to detainee abuses, first 
at Guantanamo and, then, Afghanistan and, later, Iraq.
  When asked whether he agreed with the now repudiated conclusions 
contained in that torture memo at the time of its creation on August 1, 
2002, Mr. Gonzales stated:

       There was discussion between the White House and the 
     Department of Justice, as well as other agencies, about what 
     does this statute mean. . . .I don't recall today whether or 
     not I was in agreement with all of the analyses, but I don't 
     have a disagreement with the conclusions then reached by the 
     Department.

  He went on to add that, as Counsel to the President, it was not his 
responsibility to approve opinions issued by the Department of Justice. 
He said:

       I don't believe it is my responsibility, because it really 
     would politicize the work of

[[Page S866]]

     the career professionals at the Department of Justice.

  Mr. President, one must wonder what the job of White House Counsel 
entails, if it does not involve giving the President the benefit of 
one's thinking on legal issues.
  Perhaps one reason Judge Gonzales says he does not remember what he 
said in those meetings is because, as soon as the torture memo was 
leaked to the press, he had to disavow it. Once it became clear that 
the White House believed--based on those meetings--that only the most 
egregious acts imaginable could be prohibited as torture, the memo 
received universal opprobrium. Thus, the administration had little 
choice but to repudiate it and, in June 2004, Mr. Gonzales announced 
its withdrawal. He then directed the Justice Department to prepare new 
legal analyses on how to interpret prohibitions against torture under 
U.S. and international law.

  Strangely, however, that new analysis was not available to the public 
for 6 more months. Finally, on December 30, just 1 week prior to the 
Gonzales nomination hearing, a memorandum containing the 
administration's most recent take on the subject was issued by the 
Justice Department.
  With the benefit of 20/20 hindsight, together with a keen desire to 
be confirmed as the next Attorney General of the United States, Judge 
Gonzales told the committee on January 6 that the analysis of the 
August 1, 2002, memo no longer represents the official position of the 
executive branch of the United States.
  If Judge Gonzales didn't see fit to question the Justice Department's 
official position on torture in 2002, what made the administration 
change its mind in 2004? Was it a careful review of the legal issues, 
or was it simply political backpedaling in light of the public 
knowledge of what its policies had brought about in Abu Ghraib and 
elsewhere?
  I note in passing that the ``torture'' memo was written in 2002 by 
then-Assistant Attorney General Jay Bybee, who is now a Federal judge 
on the Ninth Circuit Court of Appeals. God help the Ninth Circuit Court 
of Appeals. I would like the record to reflect that 18 other Senators 
and I voted to reject the nomination of Jay Bybee to be a Federal 
judge, a decision I, for one, do not regret.
  The Bybee memo drew universal condemnation and scorn for at least two 
of the legal opinions that were included in its text. First, it 
described torture as being prohibited under U.S. law in only very 
circumscribed circumstances. It defined torture so narrowly that 
horrific harm could be inflicted against another human being in the 
course of an interrogation overseas and not be prohibited. According to 
the memo, unless such acts resulted in organ failure, the impairment of 
a bodily function, or death, they could be considered legal. In fact, 
the first page of the memorandum states:

       We conclude that the statute [the statute against torture], 
     taken as a whole, makes plain that it prohibits only extreme 
     acts. . . . This confirms our view that the criminal statute 
     penalizes only the most egregious conduct.

  The second but equally shocking and erroneous legal conclusion 
reached in the so-called torture memorandum states:

       We find that in the circumstances of the current war 
     against al-Qaida and its allies, prosecution under section 
     2340A [the relevant provision of U.S. law prohibiting 
     torture] may be barred because enforcement of the statute 
     would represent an unconstitutional infringement of the 
     President's authority to conduct war.

  As the Commander in Chief. Where have we heard that before, the term 
``Commander in Chief''?
  This means the White House believed that a President can simply 
override the U.S. law prohibiting torture, just because he disagrees 
with it. In other words, he can ignore the law by proclaiming, in his 
own mind, that the law is unconstitutional. Not because a court of the 
United States has found the law to be unconstitutional but because a 
wartime President decides he simply does not want to be bound by it.
  What an astounding assertion. Think of it. A President placing 
himself above the constitutional law--in effect, crowning himself king.
  This outrageously broad interpretation of Executive authority is so 
antithetical to the carefully calibrated system of checks and balances 
conceived by the Founding Fathers it seems inconceivable that it could 
be seriously contemplated by any so-called legal expert, much less 
attorneys of the U.S. Justice Department or the White House Counsel.
  Has the White House no appreciation for the struggle that the Nation 
endured upon its creation? Can it really believe that a President can 
circumvent the will of the people and their legislature by adopting and 
disseminating a legal interpretation that would, in the end, protect 
from prosecution those who commit torture in violation of U.S. law?
  Alexander Hamilton, in Federalist No. 69, described in detail exactly 
how the American system can and must be distinguished from the British 
monarchy. Hamilton wrote:

       There is no comparison--

  Hear that again--

       There is no comparison--

  None--

       There is no comparison between the intended power of the 
     President and the actual power of the British sovereign. The 
     one can perform alone, what the other can only do with the 
     concurrence of a branch of the Legislature.

  Mr. President, no one man or woman, no President, not his White House 
Counsel, nor all the attorneys in the Office of the Legal Counsel in 
the Justice Department can, on their own, act in contravention of a law 
passed by Congress.
  No President--no President--can nullify or countermand a U.S. law to 
shield from prosecution those who would commit or attempt to commit 
torture. But that was the result sought by this White House.
  When asked by Senator Durbin if he still believes that the President 
has the authority as Commander in Chief to ignore a law passed by 
Congress, to decide on his own whether it is unconstitutional, or to 
simply refuse to comply with it, Judge Gonzales stated that, yes, he 
believes it is theoretically possible for the Congress to pass a law 
that would be viewed as unconstitutional by a President and, therefore, 
to be ignored.

  And even though the torture memo was replaced by a new memorandum on 
December 30, the replacement memorandum does not reject the earlier 
document's shockingly overly expansive interpretation of the 
President's Commander-in-Chief power. Instead, the new memo states that 
because that portion of the discussion in the earlier memo was 
``unnecessary,'' it has been eliminated from the new analysis.
  Particularly disturbing is the fact that although the new analysis 
repudiates the earlier memo's conclusion that all but extreme acts of 
torture are permissible, Judge Gonzales could not tell us whether this 
repudiation of prior policy has been communicated to those who are 
today doing the interrogating.
  This is important because there is language contained in the now-
repudiated torture memo that was relied on in Guantanamo and parts of 
which were included word for word in the military's Working Group 
Report on Detainee Interrogations in the Global War on Terrorism. This 
report, dated April 2003, has never been repudiated or amended and may 
be relied upon by some interrogators in the field.
  When asked whether those who are charged with conducting 
interrogations have been apprised of the administration's repudiation 
of sections of the Bybee memo and the administration's attendant change 
in policy, Judge Gonzales did not know the answer.
  Mr. Gonzales continues to deny responsibility for many of the 
policies and legal decisions made by this administration. But the Fay 
report and the Schlesinger report corroborate the fact that policy 
memos on torture, ghost detainees, and the Geneva Conventions, which 
Judge Gonzales either wrote, requested, authorized, endorsed, or 
implemented, appear to have contributed to detainee abuses in 
Afghanistan, Guantanamo Bay, and Iraq, including those that occurred at 
Abu Ghraib.
  The International Committee of the Red Cross has told us that abuse 
of Iraqi detainees has been widespread, not simply the wrongdoing of a 
few, as the White House first told us, and the abuse occurred not only 
at Abu Ghraib. Last week, the Los Angeles Times reported that documents 
released last

[[Page S867]]

Monday by the Pentagon disclosed that prisoners had lodged dozens of 
abuse complaints against U.S. and Iraqi personnel who guarded detainees 
in another location, a little known palace in Baghdad that was 
converted into a prison.
  The documents suggest, for the first time, that numerous detainees 
were also abused at one of Saddam Hussein's former villas in eastern 
Baghdad. The article noted that while previous cases of abuse of Iraqi 
prisoners had focused mainly on Abu Ghraib, allegations of abuse at 
this new location included that guards had sodomized a disabled man and 
killed his brother, then tossed his dying body into a cell, on top of 
his sister.
  Judge Gonzales admits that he was physically present at discussions 
regarding whether acts of this nature constitute torture, but do not 
expect him to take responsibility for them. Do not hold me accountable, 
he says. It was not I. And he does not just point fingers at the 
Justice Department. He also spreads the blame around. While he admitted 
he had made some mistakes, he attempted to further deflect 
responsibility for his actions by saying the operational agencies also 
had responsibility to make decisions on interrogation techniques--Not 
him. This is exactly what he said:

       I have recollection that we had some discussions in my 
     office, but let me be very clear with the committee. It is 
     not my job to decide which types of methods of obtaining 
     information from terrorists would be the most effective. That 
     job responsibility falls to folks within the agencies. It is 
     also not my job to make the ultimate decision about whether 
     or not those methods would, in fact, meet the requirements of 
     the anti-torture statute. That would be the job for the 
     Department of Justice. . . . I viewed it as their 
     responsibility to make a decision as to whether or not a 
     procedure or method would, in fact, be lawful.

  One wishes that Judge Gonzales could have told us what his job was 
rather than, telling us only what it was not. Talk about passing the 
buck.
  At the end of the day one can only remember or wonder then what legal 
advice, if any, he actually gave to the President of the United States. 
Does Judge Gonzales or the President have an opinion on the question of 
what constitutes torture? Does he or the President have an opinion on 
the related question of whether it is legal to relocate detainees to 
facilitate interrogation? Do they believe it is morally or 
constitutionally right? Do we know? No.
  According to article II, section 3, of the U.S. Constitution, as head 
of the executive branch, the President has a legal duty to take care 
that the laws be faithfully executed. The Constitution does not say 
that the President should or may undertake that responsibility. It 
clearly states that the President shall take care that the laws be 
faithfully executed.
  He is duty bound to undertake that responsibility under the 
Constitution of the United States, and the President and his Counsel 
must be held accountable for not only failing to faithfully execute our 
laws but also for trying to undermine, contravene, and gut them.
  With such a track record, how can we possibly trust this man to be 
Attorney General of the United States? What sort of judgment has he 
exhibited?
  As I stated a few days ago with respect to Dr. Condoleezza Rice, 
there needs to be accountability in our Government. There needs to be 
accountability for the innumerable blunders, bad decisions, and warped 
policies that have led the United States to the position in which we 
now find ourselves, trapped in Iraq amid increased violence; disgraced 
by detainee abuses first in Guantanamo, then in Afghanistan, Iraq, and 
probably in locations we have yet to discover; shunned by our allies; 
perceived by the world community, rightfully, as careening down the 
wrong path.
  I do not believe our Nation can rely on the judgment of a public 
official with so little respect for the rule of constitutional law. We 
cannot rely on the judgment of someone with so little regard for our 
constitutional system of government. I simply cannot support the 
nomination of someone who despite his assertions to the contrary 
obviously contributed in large measure to the atrocious policy failures 
and the contrived and abominable legal decisions that have flowed from 
this White House over the past 4 years. For all of these reasons, I 
have no choice but to vote against the nomination of Alberto Gonzales 
to be the next Attorney General of the United States.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Martinez). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SALAZAR. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SALAZAR. Mr. President, I rise in relation to the nomination of 
Judge Alberto Gonzales to be the next Attorney General of the United 
States.
  Before making my comments about Judge Gonzales, I also want to say 
that earlier this afternoon I had a highly enlightening and very 
rewarding discussion with the distinguished Senator from West Virginia, 
Mr. Byrd. Senator Byrd spoke just before me. He is a man of tradition 
and hard work. I am very grateful for his leadership and his 
inspiration.
  As I make my comments about Attorney General-nominee Gonzales, I want 
to tell you that I do so because my brothers and sisters in law 
enforcement have endorsed him. I do so as well because he has given me 
his written commitment to fight for civil rights. I do so because Judge 
Gonzales has given me his written pledge that he opposes torture in all 
of its forms and will use the power of his office to prosecute any 
American--anywhere--who uses torture.
  Many of my colleagues and citizens across America have spoken 
eloquently about their concerns with Judge Gonzales. The most grave of 
those concerns has been the flawed legal analysis and conclusions 
regarding torture. That analysis and those conclusions were wrong and 
they have been rejected.
  Any policy that condones torture is reprehensible for three reasons. 
First, a torture policy violates U.S. law and the cornerstone of the 
Geneva Conventions. Second, a torture policy endangers our men and 
women in uniform. And, third, a torture policy diminishes America's 
standing around the world.
  Because of these concerns, I have had numerous conversations and 
meetings with Judge Gonzales, and I am confident that as Attorney 
General he will not sanction torture in any form and will uphold the 
laws of the United States and the international accords that make 
torture illegal.
  In fact, I specifically asked Judge Gonzales to respond to my 
concerns and the concerns of the American public in writing. In his 
letter to me of January 28, 2005, Judge Gonzales wrote:

       I do not condone torture in any form. I confirm to you that 
     the United States of America does not condone the torture of 
     anyone by our country or by anyone else. The laws of the 
     United States and the international obligations of the United 
     States prohibit torture in all its forms. These international 
     obligations include the Geneva Conventions, which I consider 
     binding upon the United States. I reaffirm to you that, if 
     confirmed as Attorney General, I will enforce these laws and 
     international obligations aggressively to prohibit torture in 
     all its forms.

  He continues in his letter:

       I pledge to do so for two reasons. These are the laws of 
     the United States, and I am obligated to uphold those laws. 
     And secondly, any action by the United States that undermines 
     the Geneva Conventions threatens the safety and security of 
     our troops.

  Judge Gonzales's statement is clear and unequivocal. Simply stated, 
torture is illegal and wrong and that will be the position of Judge 
Gonzales as Attorney General. As the Nation's top law enforcement 
officer, Judge Gonzales will be accountable for this position as he 
denounces torture, and I and the American people will make sure this 
is, in fact, the case.
  Before proceeding further, I ask unanimous consent Judge Gonzales's 
letter to me be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              The White House,

                                     Washington, January 28, 2005.
     Hon. Ken Salazar,
     U.S. Senate,
     Washington, DC.
       Dear Senator Salazar: I have appreciated our ongoing 
     conversations, and I thank you for the dialogue we have had 
     about my nomination by the President to serve as Attorney 
     General. I am pleased to

[[Page S868]]

     reaffirm for you my positions on several issues I know are 
     important to you.
       I understand, I agree with, and I will act in accord with 
     the principle that the Attorney General of the United States 
     is the nation's chief law enforcement officer, with client 
     responsibilities and other important duties to the people of 
     the United States. If confirmed, I will lead the Department 
     of Justice and act on behalf of agencies and officials of the 
     United States. Nevertheless, my highest and most solemn 
     obligation will be to represent the interests of the People. 
     I know that you understand this solemn duty well from your 
     prior service as Chief Counsel to the Governor and as 
     Colorado Attorney General.
       I do not condone torture in any form. I confirm to you that 
     the United States of America does not condone the torture of 
     anyone by our country or by anyone else. The laws of the 
     United States and the international obligations of the United 
     States prohibit torture in all its forms. These international 
     obligations include the Geneva Conventions, which I consider 
     binding upon the United States. I reaffirm to you that, if 
     confirmed as Attorney General, I will enforce these laws and 
     international obligations aggressively to prohibit torture in 
     all its forms.
       I pledge to do so for two reasons. These are the laws of 
     the United States, and I am obligated to uphold those laws. 
     And, secondly, any action by the United States that 
     undermines the Geneva Conventions threatens the safety and 
     security of our troops.
       Also, I agree with you that our country should continue its 
     broad and healthy debate about the provisions of the USA 
     Patriot Act, particularly with regard to the necessary 
     balance between civil liberties and the ability of law 
     enforcement and other officials to protect public safety. I 
     keep an open mind on these issues. I welcome your views on 
     these matters, and I look forward to our continued 
     discussions.
       I understand your concern about increased funding for state 
     and local law enforcement. As Attorney General, I will work 
     with you and our state and local law enforcement community to 
     do the best job we can to make our communities safer.
       Finally, I understand the importance of civil rights and 
     equal opportunity for all Americans. I will work to uphold 
     those rights and opportunities as Attorney General.
       Thank you for the opportunity to explain my position on 
     these matters for you. I appreciate your friendship and your 
     support.
           Sincerely,
                                              Alberto R. Gonzales,
                                         Counsel to the President.

  Mr. SALAZAR. Mr. President, I have spent the last 6 years of my life 
as the attorney general of the great State of Colorado working with 
people I consider to be my brothers and sisters in law enforcement. I 
have met with the widows of fallen officers, and I led our State 
efforts to train Colorado's 14,000 peace officers.
  I have deep respect for the 750,000 men and women in law enforcement 
who risk their lives every day to keep each of us and our communities 
safe. These men and women will be the backbone of our Nation's Homeland 
Security efforts. I respect their judgment and opinion. In that regard, 
I stand with the Fraternal Order of Police, the National District 
Attorneys Association, the FBI Agents Association, and the Law 
Enforcement Alliance of America, all of whom have endorsed Judge 
Gonzales as Attorney General.
  I have spoken to Judge Gonzales about the needs of law enforcement 
around the country. He has pledged his support and has pledged to come 
to Colorado to meet and learn from Colorado's heroic law enforcement 
officers about their experiences and their needs.
  Finally, Judge Gonzales, I believe in his heart, knows about the 
importance of civil rights and liberties. He knows first hand of the 
indignities of a society that turns a blind eye to discrimination and 
prejudice. Because he knows that reality of the American experience, I 
expect him, as Attorney General, to help lead the way for the creation 
of an America that despises hate and bigotry and recognizes that every 
human being deserves a government that will fight for the dignity and 
equality of all.
  I will vote to confirm Judge Alberto Gonzales to be the next Attorney 
General of the United States.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I am disturbed that even though there are 
some Democrats who support Judge Gonzales, and some who oppose, I have 
heard some Senators on the other side of the aisle imply that those who 
oppose this nomination are biased against him based on his ethnic 
background. I resent that charge.
  For somebody to say that those opposed are biased against Judge 
Gonzales because of his ethnicity is preposterous and deeply offensive.
  We have stood here for 2 days explaining our positions. Many of us 
have said if we were voting on the story and on the achievements of 
Judge Gonzales, which are commendable, we would be voting for him. If 
we were voting on what he has overcome in his life and career, we would 
be voting for him. What we have said clearly, however, is that we are 
voting against him based upon his conduct as Counsel to the President. 
We have come to this decision based upon his record.
  Let us talk about that record. Judge Gonzales has argued that the 
Convention Against Torture and Other Cruel, Inhuman and Degrading 
Treatment or Punishment does not prohibit cruel, inhuman, or degrading 
treatment or punishment with ``respect to aliens overseas.'' Reaching 
this conclusion requires such twisted reasoning that even those who 
support Judge Gonzales must part company with him on this point.
  I am also disturbed by his interpretation of the Geneva Conventions. 
Judge Gonzales did not follow the advice he received from Secretary of 
State Powell, the former Chairman of the Joint Chiefs of Staff, or of 
the State Department lawyers. He did not stand up for the military and 
interpret our obligations consistent with the Army Field Manual and the 
decades of sound practice and counsel from the Judge Advocate General's 
Corps.
  That is why I object to this nominee.
  I ask unanimous consent to have printed in the Record an article 
describing Judge Gonzales's interrogation policies, written by Jeffrey 
Smith and Dan Eggen.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, Jan. 5, 2005]

    Gonzales Helped Set the Course for Detainees--Justice Nominee's 
           Hearings Likely To Focus on Interrogation Policies

                  (By R. Jeffrey Smith and Dan Eggen)

       In March 2002, U.S. elation at the capture of al Qaeda 
     operations chief Abu Zubaida was turning to frustration as he 
     refused to bend to CIA interrogation. But the agency's 
     officers, determined to wring more from Abu Zubaida through 
     threatening interrogations, worried about being charged with 
     violating domestic and international proscriptions on 
     torture.
       They asked for a legal review--the first ever by the 
     government--of how much pain and suffering a U.S. 
     intelligence officer could inflict on a prisoner without 
     violating a 1994 law that imposes severe penalties, including 
     life imprisonment and execution, on convicted torturers. The 
     Justice Department's Office of Legal Counsel took up the 
     task, and at least twice during the drafting, top 
     administration officials were briefed on the results.
       White House counsel Alberto R. Gonzales chaired the 
     meetings on this issue, which included detailed descriptions 
     of interrogation techniques such as ``waterboarding,'' a 
     tactic intended to make detainees feel as if they are 
     drowning. He raised no objections and, without consulting 
     military and State Department experts in the laws of torture 
     and war, approved an August 2002 memo that gave CIA 
     interrogators the legal blessings they sought.
       Gonzales, working closely with a small group of 
     conservative legal officials at the White House, the Justice 
     Department and the Defense Department--and overseeing 
     deliberations that generally excluded potential dissenters--
     helped chart other legal paths in the handling and 
     imprisonment of suspected terrorists and the applicability of 
     international conventions to U.S. military and law 
     enforcement activities.
       His former colleagues say that throughout this period, 
     Gonzales--a confidant of George W. Bush's from Texas and the 
     president's nominee to be the next attorney general--often 
     repeated a phrase used by Defense Secretary Donald H. 
     Rumsfeld to spur tougher antiterrorism policies: ``Are we 
     being forward-leaning enough?''
       But one of the mysteries that surround Gonzales is the 
     extent to which these new legal approaches are his own 
     handiwork rather than the work of others, particularly Vice 
     President Cheney's influential legal counsel, David S. 
     Addington.
       Gonzales's involvement in the crafting of the torture memo, 
     and his work on two presidential orders on detainee policy 
     that provoked controversy or judicial censure during Bush's 
     first term, is expected to take center stage at Senate 
     Judiciary Committee hearings tomorrow on Gonzales's 
     nomination to

[[Page S869]]

     become attorney general. The outlines of Gonzales's actions 
     are known, but new details emerged in interviews with 
     colleagues and other officials, some of whom spoke only on 
     the condition of anonymity because they were involved in 
     confidential government policy deliberations.
       On at least two of the most controversial policies endorsed 
     by Gonzales, officials familiar with the events say the 
     impetus for action came from Addington--another reflection of 
     Cheney's outsize influence with the president and the rest of 
     the government. Addington, universally described as 
     outspokenly conservative, interviewed candidates for 
     appointment as Gonzales's deputy, spoke at Gonzales's morning 
     meetings and, in at least one instance, drafted an early 
     version of a legal memorandum circulated to other departments 
     in Gonzales's name, several sources said.
       Conceding that such ghostwriting might seem irregular, even 
     though Gonzales was aware of it, one former White House 
     official said it was simply ``evidence of the closeness of 
     the relationship'' between the two men. But another official 
     familiar with the administration's legal policymaking, who 
     spoke on the condition of anonymity because such 
     deliberations are supposed to be confidential, said that 
     Gonzales often acquiesced in policymaking by others.
       This might not be the best quality for an official 
     nominated to be attorney general, the nation's top law 
     enforcement job, the administration official said. He added 
     that he thinks Gonzales learned from mistakes during Bush's 
     first term.
       Supporters of Gonzales depict him as a more pragmatic 
     successor to John D. Ashcroft, and a cautious lawyer who 
     carefully weighs competing points of view while pressing for 
     aggressive anti-terrorism efforts. His critics have expressed 
     alarm at what they regard as his record of excluding 
     dissenting points of view in the development of legal 
     policies that fail to hold up under broader scrutiny and give 
     short shrift to human rights.
       His nomination has, in short, become another battleground 
     for the debate over whether the administration has acted 
     prudently to forestall another terrorist attack or 
     overreached by legally sanctioning rights abuses.
       One thing is clear: Gonzales, 49, enjoys Bush's trust. He 
     has worked directly with the former Texas governor for more 
     than nine years, advising him on sensitive foreign policy and 
     defense matters that rarely--if ever--fell within the purview 
     of previous White House counsels.
       For example, when the Justice Department formally 
     repudiated the legal reasoning of the August 2002 
     interrogation memo last week in another document that 
     Gonzales reviewed, it was overturning a policy with 
     consequences that Gonzales heard discussed in intimate 
     detail--to the point of learning what the physiological 
     reactions of detainees might be to the suffering the CIA 
     wanted to inflict, those involved in the deliberations said.
       The White House said Gonzales and Addington, a former 
     Reagan aide and Pentagon counsel, were unavailable to be 
     interviewed for this article. But asked to comment on whether 
     Gonzales acquiesced too easily on legal policies pushed by 
     others, spokesman Brian Besanceney responded that Gonzales 
     had ``served with distinction and with the highest 
     professional standards as a lawyer'' in private practice, 
     state government and the White House, and he ``will 
     continue to do so as attorney general.''


                            a success story

       Bush has told people that he was attracted by Gonzales's 
     rags-to-riches life story. A Texas native and the son of 
     Mexican immigrants, Gonzales served for two years in the Air 
     Force before graduating from Rice University and Harvard Law 
     School. He met Bush during his 1994 gubernatorial campaign, 
     while Gonzales was a partner at the politically connected 
     Houston law firm Vinson & Elkins.
       Upon election, Bush appointed him as his personal counsel, 
     later as Texas secretary of state and eventually as a justice 
     on the Texas Supreme Court. Within weeks of the 2000 
     presidential election, Bush tapped Gonzales to be his White 
     House counsel, and Gonzales set about creating what officials 
     there proudly described as one of the most ideologically 
     aligned counsel's offices in years.
       Bringing only one associate to Washington from Texas, 
     Gonzales forged his staff instead from a tightknit group of 
     Washington-based former clerks to Supreme Court or appellate 
     judges, all of whom had worked on at least one of three 
     touchstones of the conservative movement: the Whitewater and 
     Monica S. Lewinsky inquiries of former president Bill 
     Clinton, the Bush-Cheney election campaign, and the Florida 
     vote-counting dispute.
       ``It was an office of like-minded'' lawyers and ``strong 
     personalities,'' said Bradford A. Berenson, a criminal 
     defense lawyer appointed as one of eight associate counsels 
     in Gonzales's office. ``There was not a shrinking violet in 
     the bunch.''
       ``Federalist Society regulars'' is the way another former 
     associate counsel, H. Christopher Bartolomucci, described the 
     Gonzales staff and its ideological allies elsewhere in the 
     government, such as Deputy Assistant Attorney General John 
     Yoo and Defense Department General Counsel William J. Haynes 
     II. All were adherents to the theory that the Constitution 
     gives the president considerably more authority than the 
     Congress and the judiciary.
       One of the clearest examples of this ambition was 
     Gonzales's long-running and ultimately futile battle with the 
     independent commission that investigated the Sept. 11, 2001, 
     terrorist attacks. Gonzales's office, acting as the liaison 
     between the White House and the 10-member bipartisan panel, 
     repeatedly resisted commission demands for access to 
     presidential documents and officials such as national 
     security adviser Condoleezza Rice, prompting angry and public 
     disputes.
       Gonzales is ``a good lawyer and a nice guy, and maybe he 
     was a decent judge for a year, but he didn't bring a lot of 
     political judgment or strategic judgment to their dealings 
     with the commission,'' a senior commission official said. 
     ``He hurt the White House politically by antagonizing the 
     commissioners . . . and all of it for no good reason. In 
     the end, the stuff all came out.''
       Each morning, Gonzales convened round tables at which his 
     staff--as well as Addington--related their legal conundrums. 
     Gonzales was ``not a domineering personality . . . and he 
     gave us a chance to speak our minds,'' said Helgi C. Walker, 
     a former clerk for Clarence Thomas who was an associate 
     counsel from 2001 to 2003.
       ``There was often a lively debate, but at the end it was 
     not clear where Gonzales was,'' another former colleague 
     said. A second former colleague recalls that in interagency 
     meetings, Gonzales sat in the back and was ``unassuming, 
     pleasant and quiet.'' So discreet was Gonzales about his 
     opinions that one official who worked closely with him for a 
     year said ``he never made an impression on me.''
       But Berenson says Gonzales was hardly pushed around by 
     officials who thought they had a monopoly on wisdom. ``I 
     didn't have the sense that he was whipping his horses or that 
     they were dragging him along behind them,'' he said, adding 
     that Gonzales was ``neither the tool of an aggressive staff 
     nor the quarterback of a reluctant team.''
       Current and former White House officials interviewed for 
     this article listed only a few episodes in which Gonzales 
     forcefully pressed a position at odds with ideological 
     conservatives. None was in the terrorism field.
       Walker said she is aware of criticism that Gonzales 
     ``should have been saying `I believe this or that' '' about 
     some of the provocative issues presented to him. ``He did not 
     see his job as being about him'' but about advocating Bush's 
     interests, she explained. ``The judge is not consumed with 
     his own importance, unlike some others in Washington.''


                            detainee policy

       Unlike many of his predecessors since the Reagan era, 
     Gonzales lacked much experience in federal law and national 
     security matters. So when the Pentagon worried about how to 
     handle expected al Qaeda detainees in the days after the 
     Sept. 11 attacks and the Oct. 7 U.S. attack on Afghanistan, 
     Gonzales organized an interagency group to take up the matter 
     under the State Department's war crimes adviser, Pierre-
     Richard Prosper.
       Former attorney general William P. Barr suggested to 
     Gonzales's staff early on that those captured on the 
     battlefield go before military tribunals instead of civil 
     courts. But Ashcroft and Michael Chertoff, his deputy for the 
     criminal division, both adamantly opposed the plan, along 
     with military lawyers at the Pentagon. The result was that 
     the process moved slowly.
       Addington was the first to suggest that the issue be taken 
     away from the Prosper group and that a presidential order be 
     drafted authorizing the tribunals that he, Gonzales and 
     Timothy E. Flanigan, then a principal deputy to Gonzales, 
     supported. It was intended for circulation among a much 
     smaller group of like-minded officials. Berenson, Flanigan 
     and Addington helped write the draft, and on Nov. 6, 2001, 
     Gonzales's office secured an opinion from the Justice 
     Department's Office of Legal Counsel that the contemplated 
     military tribunals would be legal.
       That office, historically the government's principal 
     internal domestic law adviser, was also staffed by advocates 
     of expansive executive powers; it had told the White House in 
     a classified memo five weeks earlier that the president's 
     authority to wage preemptive war against suspected terrorists 
     was virtually unlimited, partly because proving criminal 
     responsibility for terrorist acts was so difficult.
       After a final discussion with Cheney, Bush signed the order 
     authorizing military tribunals on Nov. 13, 2001, while 
     standing up, as he was on his way out of the White House to 
     his Texas ranch for a meeting with Russian President Vladimir 
     Putin. It provided for the military trial of anyone suspected 
     of belonging to al Qaeda or conspiring to conduct or assist 
     acts of terrorism; conviction would come from a two-thirds 
     vote of the tribunal members, who would adjudicate fact and 
     law and decide what evidence was admissible. Decisions could 
     not be appealed.
       Cut out in the final decision making were military lawyers, 
     the State Department and Chertoff, as well as Rice, her 
     deputy, Stephen J. Hadley, and Rice's legal adviser, John 
     Bellinger. ``I don't think Gonzales felt he was acting 
     precipitously, but he realized people would be surprised,'' 
     Flanigan said. It amounted to a decision that the president 
     could act without ``the entire staff's blessing. As it turned 
     out, they [National Security Council officials] just weren't 
     involved in the process.''
       Berenson, who left the White House for private practice in 
     2003, said ``there were such

[[Page S870]]

     strong shared assumptions at the time [that] we had a 
     powerful sense of mission.'' He attributes the haste to worry 
     about another terrorist attack.
       But David Bowker, then a State Department lawyer excluded 
     from the process and now in private practice, called the 
     order premature and politically unwise. ``The right thing to 
     do would have been an open process inside the government,'' 
     he said.
       The tribunals were halted by U.S. District Judge James 
     Robertson, who ruled on Nov. 24, 2004, that detainees' rights 
     are guaranteed by the Geneva Conventions--which the 
     administration had argued were irrelevant.


                           Rebellion at State

       Four weeks after Bush's executive order, a similarly 
     limited deliberation provoked more determined rebellion at 
     the State Department and among military lawyers and officers. 
     The issue was whether al Qaeda and Taliban fighters captured 
     on the battlefield in Afghanistan should be accorded the 
     Geneva Conventions' human rights protections.
       Gonzales, after reviewing a legal brief from the Justice 
     Department's Office of Legal Counsel, advised Bush verbally 
     on Jan. 18, 2002, that he had authority to exempt 
     the detainees from such protections. Bush agreed, 
     reversing a decades-old policy aimed in part at ensuring 
     equal treatment for U.S. military detainees around the 
     world. Rumsfeld issued an order the next day to commanders 
     that detainees would receive such protections only ``to 
     the extent appropriate and consistent with military 
     necessity.''
       Secretary of State Colin L. Powell--whose legal adviser, 
     William H. Taft IV, had vigorously tried to block the 
     decision--then met twice with Bush to convince him that the 
     decision would be a public relations debacle and would 
     undermine U.S. military prohibitions on detainee abuse. Gen. 
     Richard B. Myers, chairman of the Joint Chiefs of Staff, 
     backed Powell, as did the leaders of the U.S. Central Command 
     who were pursuing the war.
       The task of summarizing the competing points of view in a 
     draft letter to the president was seized initially by 
     Addington. A memo he wrote and signed with Gonzales's name--
     and knowledge--was circulated to various departments, several 
     sources said. A version of this draft, dated Jan. 25, 2002, 
     was subsequently leaked. It included the eye-catching 
     assertion that a ``new paradigm'' of a war on terrorism 
     ``renders obsolete Geneva's strict limitations on questioning 
     of enemy prisoners.''
       In early February 2002, Gonzales reviewed the issue once 
     more with Bush, who reaffirmed his initial decision regarding 
     his legal authority but chose not to invoke it immediately 
     for Taliban members. Flanigan said that Gonzales still 
     disagreed with Powell but ``viewed his role as trying to help 
     the president accommodate the views of State.''
       Thirty months later, a Defense Department panel chaired by 
     James R. Schlesinger concluded that the president's resulting 
     Feb. 7 executive order played a key role in the Central 
     Command's creation of interrogation policies for the Abu 
     Ghraib prison in Iraq.
       A former senior military lawyer, who was involved in the 
     deliberations but spoke on the condition of anonymity, 
     complained that Gonzales's counsel's office had ignored the 
     language and history of the conventions, treating the 
     question ``as if they wanted to look at the rules to see how 
     to justify what they wanted to do.''
       ``It was not an open and honest discussion,'' the lawyer 
     said.
       For Gonzales's aides, however, the experience only 
     reinforced a concern that the State Department and the 
     military legal community should not be trusted with 
     information about such policymaking. State ``saw its mission 
     as representing the interests of the rest of the world to the 
     president, instead of the president's interests to the 
     world,'' one aide said.


                        The Debate Over Torture

       This schism created additional problems when Gonzales 
     approved in August 2002--after limited consultation--an 
     Office of Legal Counsel memo suggesting various stratagems 
     that officials could use to defend themselves against 
     criminal prosecution for torture.
       Drafted at the request of the CIA, which sought legal 
     blessing for aggressive interrogation methods for Abu Zubaida 
     and other al Qaeda detainees, the memo contended that only 
     physically punishing acts ``of an extreme nature'' would be 
     prosecutable. It also said that those committing torture with 
     express presidential authority or without the intent to 
     commit harm were probably immune from prosecution.
       The memo was signed by Jay S. Bybee, then an assistant 
     attorney general and now a federal appellate judge, but 
     written with significant input from Yoo, whom Gonzales had 
     tried to hire at the White House and later endorsed to head 
     Justice's legal counsel office. During the drafting of the 
     memo, Yoo briefed Gonzales several times on its contents. He 
     also briefed Ashcroft, Bellinger, Addington, Haynes and the 
     CIA's acting general counsel, John A. Rizzo, several 
     officials said.
       At least one of the meetings during this period included a 
     detailed description of the interrogation methods the CIA 
     wanted to use, such as open-handed slapping, the threat of 
     live burial and ``waterboarding''--a procedure that involves 
     strapping a detainee to a board, raising the feet above the 
     head, wrapping the face and nose in a wet towel, and dripping 
     water onto the head. Tested repeatedly on U.S. military 
     personnel as part of interrogation resistance training, the 
     technique proved to produce an unbearable sensation of 
     drowning.
       State Department officials and military lawyers were 
     intentionally excluded from these deliberations, officials 
     said. Gonzales and his staff had no reservations about the 
     legal draft or the proposed interrogation methods and did not 
     suggest major changes during the editing of Yoo's memo, two 
     officials involved in the deliberations said.
       The memo defined torture in extreme terms, said the 
     president had inherent powers to allow it and gave the CIA 
     permission to do what it wished. Seven months later, its 
     conclusions were cited approvingly in a Defense Department 
     memo that spelled out the Pentagon's policy for ``exceptional 
     interrogations'' of detainees at Guantanamo Bay, Cuba.
       When the text was leaked to the public last summer, it 
     attracted scorn from military lawyers and human rights 
     experts worldwide. Nigel Rodley, a British lawyer who served 
     as the special U.N. rapporteur on torture and inhumane 
     treatment from 1993 to 2001, remarked that its underlying 
     doctrine ``sounds like the discredited legal theories used by 
     Latin American countries'' to justify repression.
       After two weeks of damaging publicity, Gonzales distanced 
     himself, Bush and other senior officials from its language, 
     calling the conclusions ``unnecessary, over-broad 
     discussions'' of abstract legal theories ignored by 
     policymakers. Another six months passed before the Office of 
     Legal Counsel, under new direction, repudiated its reasoning 
     publicly, one week before Gonzales's confirmation hearing.
  Mr. LEAHY. Mr. President, I want to set the record straight on 
something that the senior Senator from Utah said yesterday regarding 
the President's February 2002 directive on the treatment of al-Qaida 
and Taliban detainees. According to Senator Hatch, ``the President 
[said] unequivocally that detainees are to be treated humanely.'' In 
fact, the President's directive said only that ``the U.S. Armed 
Forces'' should treat detainees humanely. The President's directive 
pointedly did not apply to the CIA and other nonmilitary personnel.
  I asked Judge Gonzales:

       Does the President's February 7, 2002, directive regarding 
     humane treatment of detainees apply to the CIA or any other 
     non-military personnel?

  He replied:

       No. By its terms, the February 7, 2002, directive 
     ``reaffirm[s] the order previously issued by the Secretary of 
     Defense to the United States Armed Forces.''

  In other words, contrary to what he have heard, and continue to hear, 
from Judge Gonzales's supporters, the President's oft-quoted directive 
regarding the humane treatment of detainees is carefully worded to 
permit the occasional inhumane treatment of detainees. Indeed, that is 
one of the legal loopholes that concerns so many of us.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Coburn). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Mr. President, I rise today in support of the nomination 
of Alberto Gonzales to be Attorney General of the United States.
  Judge Gonzales's story is truly inspirational. A man from humble 
beginnings--Humble, TX, to be precise--he grew up in a modest home 
built by his father and uncle where he lived with his parents and seven 
brothers and sisters with no hot water and no telephone. His parents 
were migrant workers who never even finished elementary school, but 
they believed in the American dream. They worked hard to give their 
children an education and to instill in them the American values of 
personal responsibility and hard work.
  At the age of 12, Alberto Gonzales had his first job selling soft 
drinks at Rice University football games where he dreamed of one day 
going to college. Through determination, intelligence, and hard work, 
he achieved his dream. He graduated from Rice University, the first in 
his family to earn a college degree, and went on to excel at Harvard 
Law School.
  Alberto Gonzales is a dedicated public servant. He has served his 
country in many capacities, including his service in the U.S. Air 
Force, as a judge on the Texas Supreme Court, and as Texas secretary of 
state. Judge Gonzales knows well that holding a public office involves 
a bond with the American people.

[[Page S871]]

  He has proven himself as a man of integrity and with the highest 
professional qualifications. That is why Judge Gonzales has broad 
support from groups and individuals across our country. His nomination 
is supported by the Hispanic National Bar Association, the League of 
United Latin American Citizens, the Fraternal Order of Police, the 
National District Attorneys Association, and the FBI Agents 
Association, to name just a few of these groups.
  He also has bipartisan support from those who know him best, 
including leading Democrats, for example, Henry Cisneros, who served as 
Secretary of Housing and Urban Development under President Clinton. Mr. 
Cisneros, a former mayor of San Antonio, writes:

       In the 36 years that I have voted, I have supported and 
     voted for only one Republican. That was when Alberto Gonzales 
     ran for election to the Texas Supreme Court. I messaged 
     friends about this uncommonly capable and serious man [and] I 
     urged them to support his campaign. . . . He is now President 
     Bush's nominee to be Attorney General of the United States 
     and I urge his confirmation.

  I have had the personal opportunity to meet with Judge Gonzales to 
discuss many issues over the last few years on many different 
occasions. I have always found him to be a man who honored his 
commitments, who kept his promises. I know he is a leader who is 
dedicated to protecting America, to following the Constitution, and to 
applying the rule of law.
  The position of the Attorney General is as challenging a job as ever 
given the post-9/11 environment, but I am confident that as our 
Nation's chief law enforcement officer, Judge Gonzales will continue 
the progress we have made in fighting the war against terrorism, in 
combating crime, in strengthening the FBI, and in continuing to protect 
our cherished civil liberties.
  As Judge Gonzales himself said regarding his nomination:

       The American people expect and deserve a Department of 
     Justice guided by the rule of law, and there should be no 
     question regarding the Department's commitment to justice for 
     every American. On this principle there can be no compromise.

  Alberto Gonzales, the man from Humble, is committed to ensuring 
justice for each and every American. He is committed to the rule of 
law. He deserves our confirmation, and I urge my colleagues to join me 
in voting for his confirmation.
  I thank the distinguished senior Senator from New Mexico for allowing 
me to precede him.
  Mr. DOMENICI. Mr. President, I thank the Senator for her good words. 
Needless to say, I agree with the Senator and I hope that sometime 
tomorrow an overwhelming number of Senators from both sides of the 
aisle will do likewise.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I rise in behalf of the President's 
nominee for Attorney General, Alberto Gonzales. I have read as much as 
I could about his background and his life. Most importantly, I have 
read what those who have lived and worked with him during his life have 
had to say about him, and I will read what they have had to say about 
him shortly.
  From everything I have read and learned, I have concluded that some 
on that side of the aisle oppose him for totally personal, partisan, 
and political reasons, no question about it. I do not want to speculate 
as to why because it is really inconceivable to me that Democrats would 
do what they are doing to this man.
  For decades, they used to talk about the Democrat Party being the 
party of Hispanics, as if it were just as natural and normal as day 
follows night that Hispanics, that minority which is growing, just 
ought to be Democrats.
  Well, something has happened a little bit. Some change is occurring, 
and sure enough this President is tinkering with that toy of theirs. He 
is appointing more qualified Hispanics to high office than any of their 
Presidents ever have. My colleagues cannot say Alberto Gonzales was 
nominated just because he is a minority with the name Gonzales, because 
every single qualification that one would require he has met.
  Did the American Bar Association approve? Absolutely. What did the 
bar of Texas think about him? They named him to one of their highest 
offices before we ever thought of him. What about law firms in Texas? 
He has been a member of the best law firms there are. What about 
judicial temperament? He sat on the highest civil and criminal court in 
the big, great State of Texas. Now, they did not all do that because 
his name is Gonzales, but it just happens that it is.
  Nor did they approve of him because he was born in poverty, because 
his parents did not speak English, or because he lived in a house 
without running water. They did not approve of him because of that. 
They approved of him because he was qualified.
  So then one might ask, what is all this objection about? It seems as 
if there is an idea that for some reason or another he has had a bad 
impact on our country's name because he is for torturing prisoners, or 
if I am reading too much into that then maybe it is he set a bad 
example which hurt America because people perceived he was for 
torturing prisoners and he did not do anything about it.
  Based on the record, based on the law, based on the interpretation of 
the law, that is about as flimsy a reason as one could ever have for 
not approving this man to be Attorney General.
  First, I do not want to take a lot of time. It is late. We have heard 
a lot. I did not come here without checking a few things. I find that 
most authentic and reliable discerners, interpreters of the legal 
consequences of the Geneva Convention conclude that the Geneva 
Convention does not apply to these kinds of captives.
  I do not know how else to say it. There is opinion after opinion, 
interpretation after interpretation, that the title which talks about 
the care and how one must treat prisoners of war does not apply to 
terrorists. I will insert in the Record three different leading 
scholarly statements that say that is the case. Now, that is logical.
  One might say, well, is America for torture? No. That is not logical. 
What is logical is when the Geneva Conventions were drawn, we were 
talking about prisoners of war such as those in the First and the 
Second World Wars, where literally thousands of soldiers belonging to 
an army of another nation were gathered and this was to say that you 
have to treat them a certain way. They belong to a country. Terrorists 
do not belong to any country. They are not fighting a war for a 
country. They are not part of an organized military that you capture.

  I don't need to go into all that. I can just say, that is a bum rap, 
to say he should not be Attorney General because he might have said or 
signed a memo that said we do not need to apply the Geneva Conventions 
to these captives. If that were the case, that should not disqualify 
him because that is the predominant law, interpretive law of that 
convention.
  Then we say: Senator, you are not saying, since that is not the case, 
you are free to do whatever you want to prisoners? Not at all. There 
still is a rule of law regarding the treatment of prisoners. I do not 
think anybody can rightfully get up and say Alberto Gonzales promoted 
or implicitly promoted treating these kind of captives any old way you 
want. I do not believe that is the case.
  So I don't know what we are talking about. There might be something. 
There might be something. It might be that there has been a decision on 
that side of the aisle to just make every appointment of the President 
difficult, or anyone they can find the least thing about, make it 
difficult. Let me say, I don't think it does them any good. I don't 
think the American people, 2 weeks from now, are going to think this 
effort on their part did anything to hurt this man or hurt our 
President. What I am concerned about is whether the Democratic Party 
thinks it is going to help them because I do think it is another 
opportunity for Hispanics to say, Why should we be Democrats? I think 
that is giving that nail another nice pound with a nice strong hammer. 
I do not think there is any question about that.
  I do think there is a growing concern on that side of the aisle as to 
who is going to be the next Supreme Court Justice. I know some might 
say: Senator Domenici, get off that.
  No, no, every time you get in corners, little corners where people 
are talking up here, the subject is, who do you think the President can 
appoint

[[Page S872]]

who can get by the Senate? There was a lot of talk up here that maybe 
Alberto Gonzales was that person. I don't know that. It looks to me, 
based on his history, based on his background, based on his 
relationship with the President, he might be. But maybe, if you make 
enough noise about him and attempt to stick enough signs up on a 
billboard saying he is this, that, or the other, maybe he will not be a 
candidate, a probable candidate anymore. That could be what some people 
think. I do not know. I hope it is not, and I hope, in spite of what 
has happened, it doesn't.
  I am not here as his champion for that job. That is the President's 
job. But I think it would be terrific if the President of the United 
States followed up on all the things he has done to prove that he has 
no discrimination about his personal being and no discrimination that 
stems from his party, or Republicans. He is open. He has, in his 
Cabinet, we all know, a distinguished group of Americans who are 
minorities. This would be another one.
  I want to close by saying I am very pleased that a lot of 
organizations in this country, and a lot of distinguished people have 
not bought the arguments made by the other side because they know him, 
they like him, they are familiar with him, they trust him, and they 
want him to be Attorney General.

  Let me say first, about Henry Cisneros--a lot of Americans and a lot 
of Hispanic Americans know who he is. He had a little downfall in his 
career, but he is a very considerate, intelligent, concerned Hispanic 
American from the State of Texas. He is the former mayor of San Antonio 
and a former Cabinet member, Democratic Presidential appointee.
  I will not make his letter part of the Record since it has already 
been printed in the Record. It is dated January 5, 2005, to the Wall 
Street Journal.
  This is a tremendous examination of who this nominee is, what he has 
done, what he has demonstrated, and the conclusion that it will be good 
for America to have an Attorney General who has memories like those--
having stated his upbringing and the like--

       . . . because he can rely on those memories to understand 
     the realities that many Americans still confront in their 
     lives. I believe he will apply those life experiences to the 
     work ahead. His confirmation by the Senate can be part of 
     America's steady march toward liberty and justice for all.

  That is not a Republican, that is not the President, that is Henry 
Cisneros. He signs it: Secretary of Housing and Urban Development under 
President Clinton, mayor of San Antonio, TX, from 1981 through 1989.
  Mr. Gonzales, in 1989, was recognized as the Latino Lawyer of the 
Year by the Hispanic National Bar Association and received a 
Presidential citation from the State Bar of Texas in 1997 for his 
dedication in addressing the basic legal needs of the indigent. He was 
chosen as one of the five outstanding young Texans by the Texas JCs, 
and an Outstanding Young Lawyer of Texas. He was also suggested as the 
Texas Young Lawyer by their association.
  There are many more. I merely read these, and you know that they all 
are giving accolades, and that those who are giving accolades or giving 
awards are Hispanic. They are Hispanic organizations, Hispanic 
individuals. I think that means something. We are very proud as 
Republicans that the minority Hispanics in America are thrilled with 
this appointment.
  I looked very carefully at a couple of organizations that have been 
cited or if not should be cited as being opposed to him. I would be 
remiss if I didn't tell you I would expect that they would be because 
they are so Democratic, I don't think they could be for a Republican 
Felix Frankfurter to be U.S. Attorney General if he were Republican. A 
couple of these Spanish organizations are so devoted to Democrats, they 
could not be for a Hispanic U.S. Attorney General if he were Republican 
no matter what his name is. So it doesn't bother me that two of them 
are.
  But the League of United Latin American Citizens--LULAC, they are for 
him. The National Council of La Raza--whether you agree with any of 
these or not--is for him. The Hispanic National Bar Association is for 
him. The National Association of Latino Elected and Appointed 
Officials, they are for him. The U.S. Hispanic Chamber of Commerce is 
for him.
  I can go on. There are eight more. I ask unanimous consent the list 
in its entirety be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           Gonzales Nomination--Positions of Hispanic Groups


                                Support

     League of United Latin American Citizens (LULAC)
     National Council of La Raza (Kerry)--Presidential Endorsement
     Hispanic National Bar Associations
     National Association of Latino Elected and Appointed 
         Officials
     Hispanic Association of Colleges and Universities (HACU)
     United States Hispanic Chamber of Commerce
     Hispanic Alliance for Progress
     The Latino Coalition (Bush)
     Hispanic Business Roundtable (Bush)
     New American Alliance
     MANA (national latina women's organization)
     National Association of Hispanic Publishers
     National Association of Hispanic Firefighters (Bush)


                          Withheld Endorsement

     Mexican American Legal Defense and Educational Fund


                                 Oppose

     Congressional Hispanic Caucus (Kerry)
     Mexican American Political Association
     National Latino Law Students Association

  Mr. DOMENICI. There is a congressional Hispanic caucus which was 
among those that I was mentioning a while ago. They endorsed Senator 
Kerry, supported him, campaigned for him. I wouldn't expect them to be 
for this nominee.
  I think I said most of what I wanted to say to the Senate for those 
who are interested in the other side of the coin from what the 
Democrats--small in number but by sufficient numbers--want to make a 
lot of people in the country think, that this man should not have this 
job.
  I think they are wrong. I think the Hispanic community of America 
should know that they are wrong. I think the Hispanic community of 
America should know that most people who are concerned about them--
Hispanic Americans--are for him. I think they could rightfully conclude 
that those who are not for him don't care about Hispanic Americans 
because most of them overwhelmingly think he is the right man for this 
job.
  I thank the Senate for the few moments I have had to discuss this 
matter and hope that my few words will have something to do with adding 
to the chorus of support for this candidate, and for some of those who 
listened to that which is said against him will at least think if they 
were leaning toward believing that, that there really is another side; 
and that real side is probably somewhere close to what I said in the 
last 10 minutes.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask unanimous consent to speak as if in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I have listened carefully to the remarks 
of the Senator from New Mexico, and I would like to say two or three 
things for the Record.
  The criticism has been leveled that the Democrats are somehow 
obstructionists; that we are standing in the path of the President to 
filling his Cabinet. The Senator from New Mexico knows this is the 
second rollcall on the nominees of the President. Six nominees for the 
Cabinet positions asked for by President Bush have been approved by 
voice vote--without even a recorded vote having been taken. Only one 
remains: Mr. Chertoff. To suggest that somehow we are delaying, 
obstructing, standing in the road of progress for this administration 
is to overlook the obvious.
  We have cooperated with this administration. We have done our best to 
expedite the hearings on these nominees.
  There are only two of the highest positions--Secretary of State and 
Attorney General--that have evoked any substantive floor debate.
  As I listen to my Republican colleagues, it appears that their advice 
to the Democratic minority is to sit down and be quiet; you lost the 
election. But, as I understand it, each of us has been elected to 
represent a State and to stand up for the values in which we believe. 
To ask for a few moments on

[[Page S873]]

the floor to debate an important nomination for Secretary of State or 
Attorney General I don't think is being impudent. I think it is what we 
were elected to do.
  The Constitution not only empowers us and authorizes us; it commands 
us to advise and consent--not just consent. If we want to spend a day 
or two debating something as serious as Judge Gonzales's involvement in 
rewriting the torture policy in America, I don't think that is 
inappropriate. In fact, I think our silence would be inappropriate.
  Those on the other side--and even some on this side--may disagree 
with the conclusions reached earlier. I think you will find when the 
rollcall comes that there will be Senators on both sides of the aisle 
voting for Judge Gonzales. So be it. But to say we are somehow stepping 
out of line by even debating a nominee for the Cabinet is just plain 
wrong.
  Second, this is exactly the same argument that was used on the issue 
of judges. If you listened to the commentaries, particularly from some 
sources on radio and television, you would think that the Democrats had 
found a way to stop most of the judges nominated by President Bush over 
the last 4 years. But look at the cold facts. Two-hundred and four of 
President Bush's judicial nominees were approved. They went through 
this Congress, under both Democratic and Republican committee 
leadership. Only 10 nominees were held up. The final score in that game 
was 204 to 10. It is clear the President won the overwhelming 
percentage of judicial nominees he sent to the floor of the Senate. If 
you listen to our critics, you would think it was the opposite--that we 
only approved 10 judges and turned down 204.
  That wasn't the case at all. When people come to the floor critical 
of the Democrats for even wanting to debate a Cabinet nominee, I think 
they are overstating the case.
  Let me address the last point made by the Senator from New Mexico.
  Mr. DOMENICI. Mr. President, will the Senator yield for 1 minute?
  Mr. DURBIN. I would be happy to yield for a question.
  Mr. DOMENICI. I don't want to take the Senator's right to the floor 
under any circumstances.
  First, I ask to speak to ask the Senator a question right now, 
because I can't stay. I want the Senator to know that I always 
appreciate his remarks. They always stimulate me, whatever the Senator 
thinks that means. Maybe it stimulates me to answer; maybe it makes me 
get red in the face. I don't know.
  Anyway, I don't think my remarks were principally devoted to--in 
fact, only mildly devoted to--the delay that may be taking place with 
regard to some nominees. I stand on that premise--that there have been 
delays that were uncalled for. But that was the principal point.
  I hope that nobody would let the distinguished Senator kind of avoid 
the issue. That is not the issue Senator Domenici raises.
  The issue is that this man is totally qualified; that those who know 
him best say he is qualified. It appears that those on the other side 
of the aisle want to see him defeated, or put upon by their arguments 
such that he doesn't go into that office strong and full of support 
but, rather, nicked by attacks that are meaningless and without any 
merit. That is the argument.
  I tried to tell everybody who is for him. Frankly, they knew him a 
lot better than any Senators knew him. Many of them like Cisneros knew 
him for 15 years--and what he said about him on January 5, not 10 years 
ago, what he was, what he wasn't, how good he was.
  That was my argument. My argument and question was, Why? Maybe that 
is my question. I thank the Senator for yielding.
  Mr. DURBIN. Mr. President, I thank the Senator from New Mexico. I 
will make it a practice to always yield the floor whenever I possibly 
can because I think dialog between two Senators runs perilously close 
to debate which we have very little of on the floor of the Senate.
  I welcome the comments of the Senator from New Mexico. I may disagree 
on this issue, but I hope we have respect for one another and what we 
bring to this Chamber.
  The point I would like to make is this: I do not know him personally. 
I met him in my office for a brief meeting, the first time we ever sat 
down together.
  I read his life story. I couldn't help but be impressed. Here is a 
man who came from a very modest circumstance, who served his Nation in 
the Air Force, who went to law school, who became general counsel to 
the Governor of Texas, a member of the Texas Supreme Court, and then 
legal counsel to the President of the United States. It is an amazing, 
extraordinary life story.
  Some of my colleagues, including the Senator from Colorado, Mr. 
Salazar, have talked about their origins and their upbringing and how 
difficult it is to overcome with discrimination in many quarters. Thank 
goodness that is changing in America but not fast enough.
  The point I would like to make is, I don't know a single Member of 
the Senate who has taken exception to Judge Gonzales because he is 
Hispanic or because he comes from humble origins. That is not the 
issue. The issue we believe, simply stated, is what did he do as 
general counsel to the President? Did it qualify him or disqualify him 
to have the highest law enforcement position in the United States of 
America? I think that is the issue.
  When I came to the floor to speak earlier--and I will not recount my 
remarks--it related to the torture policy of which he was a part. I 
think in 10 or 20 years of history we will look at this war on 
terrorism and judge us harshly for having sat down to rewrite the 
policies and principles--the human principles--that guided this country 
for decades when it came to the treatment of prisoners and detainees. 
That is why I have reservations about Judge Gonzales. That is why I 
raised these questions, both in a public hearing and in written 
questions to him personally. That is why I am opposing his nomination, 
simply stated.
  I have the greatest respect for what he has achieved personally in 
life, but I have a responsibility to go beyond that personal 
achievement and ask from a professional and governmental viewpoint, Is 
he the best person for this job? That is why many of us have risen in 
opposition to his nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky.

                          ____________________