Congressional Record, Volume 151 Issue 9 (Wednesday, February 2, 2005)

[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.

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