Congressional Record, Volume 151 Issue 10 (Thursday, February 3, 2005)

[Congressional Record Volume 151, Number 10 (Thursday, February 3, 2005)]
[Senate]
[Pages S923-S961]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE SESSION

______

NOMINATION OF ALBERTO R. GONZALES TO BE ATTORNEY GENERAL OF THE UNITED
STATES

The PRESIDING OFFICER. Under the previous order, the Senate will
resume executive session for the consideration of Executive Calendar
No. 8, which the clerk will report.
The legislative clerk read the nomination of Alberto R. Gonzales, of
Texas, to be Attorney General.
The PRESIDING OFFICER. Under the previous order, there will be 8
hours of debate equally divided between the Senator from Pennsylvania,
Mr. Specter, and the Senator from Vermont, Mr. Leahy, or their
designees.
Under the previous order, time shall alternate every 30 minutes
between the majority and minority for the first 2 hours, with the first
30 minutes under the control of the majority.
The Senator from Kentucky.
Mr. McCONNELL. Mr. President, I rise to support a man of remarkable
achievement, Judge Alberto Gonzales, to be the next Attorney General of
the United States.

Judge Gonzales is proof that in America, there are no artificial
barriers to success. A man or a woman can climb to any height that his
or her talents can take them. For Judge Gonzales, that is a very high
altitude indeed. And luckily for his country, he is not finished
climbing yet.
Judge Gonzales is quite literally from humble beginnings. He was
raised in the town of Humble, with seven siblings. The eight of them,
and their mom and dad, lived in a small two-bedroom house that Judge
Gonzales's father and uncles built from scratch.
Judge Gonzales's parents were both migrant workers of Mexican
descent. They met while picking crops in the fields of south Texas.
Both spoke little English, and had only 8 years of schooling between
them. The house they raised Al in had no hot water or telephone.
But by teaching their gifted young son the value of perseverance and
hard work, Pablo and Maria Gonzales raised a man who has been one of
the most trusted advisors to the President of the United States.
Judge Gonzales got his first job when he was 12. He sold Cokes at
Rice University football games. No one in his family had ever gone to
college, and at that age Al didn't expect to either. When each football
game ended, and the Rice students streamed out of the gates and back to
their dorms, Al wondered about the world of education they were going
back to.
He graduated from MacArthur Senior High School, a Houston public
school, after challenging himself in college preparatory classes. He
enlisted in the Air Force and was stationed north of the Arctic Circle
at Fort Yukon, AK.

[[Page S924]]

Those North Pole winds must have been a lot colder than anything he
ever felt in Texas. It was probably a shock to young Al.
At the urging of his officers, Judge Gonzales applied and was
accepted into the United States Air Force Academy. Our armed services
are superb at finding and grooming talented Americans, and they
succeeded again by pushing Judge Gonzales to the fore.
And then, in one of the moments where life begins to come full
circle, Al transferred from the Air Force Academy to the very
prestigious Rice University--the same Rice University where he had sold
Cokes at football games as a boy. He fulfilled his 10-year dream of
attending his hometown's preeminent institution.
He excelled at Rice and immediately entered Harvard Law School.
Before the ink on his Harvard Law diploma was dry, he was recruited by
the number-one law firm in Houston, one of the most esteemed firms in
the Nation.
Judge Gonzales built himself from very modest beginnings to become
one of the most distinguished attorneys in the country. A lot of us
here are lawyers. We can tell the good ones from the mediocre ones, and
Judge Gonzales is one of the best.
He could have stayed a highly paid Houston attorney. But he has
answered the call to serve his country. Not just once, but again and
again.
First he served as General Counsel to Governor Bush in Texas. Then
the Governor appointed him as Texas's Secretary of State. Next, he was
selected as a Justice of the Supreme Court of Texas. Then, he was asked
to serve as Counsel to the President. Now he has been selected to be
the 80th Attorney General of the United States--the first Hispanic-
American to be the Nation's top law-enforcement officer.
But some in this body have made it clear they don't care about Judge
Gonzales's exemplary record of service.
I want to rebut some galling allegations a few of my Democratic
friends have made about Judge Gonzales. For instance, that he supports
torture. I even saw one outrageous ad that juxtaposed Judge Gonzales's
face with a picture of prisoner abuse at Abu Ghraib. Attempts to tar
Judge Gonzales with this dirty brush are despicable.
Let me be clear: Judge Gonzales, President Bush, and the
administration have never supported torture or the inhumane treatment
of terrorist prisoners. Never.
Anybody who tries to tie Judge Gonzales to the depraved acts of a few
twisted renegades ought to be ashamed.
Judge Gonzales has stated repeatedly that he does not support
torture. He has stated repeatedly that no matter the answer to the
question of whether al-Qaida terrorists deserve the privileges accorded
to lawful combatants under the Geneva Conventions, it is the policy of
this President that every prisoner will be treated humanely. And he has
been repeating this long before he was the Attorney General nominee.
I am very disappointed that some of my colleagues refuse to
acknowledge the frightening situation that President Bush faced after
September 11. That a determined gang of terrorists could so easily kill
3,000 Americans. That many more terrorist cells may be poised to
strike. Were our schools, our sports stadiums, our city halls safe?
Even the postal system couldn't be trusted.
In that environment, Judge Gonzales aggressively explored every
possible lawful means of gaining information about the terrorists, and
their plots to murder innocent Americans. He was absolutely right to do
so. He was fighting on behalf of his client, the United States of
America. With the lives of his countrymen at stake, any less would have
been a dereliction of duty.
Judge Gonzales doesn't owe anybody an apology for his record. But
some owe him an apology, for rimracking him with phony allegations
instead of honoring his willingness to serve his country.
Some have also criticized Judge Gonzales for supposedly not being
sufficiently forthcoming with answers to questions from the Judiciary
Committee. This is demonstrably untrue: Judge Gonzales has been
extremely cooperative, and he has been asked far more questions than
other Attorney General nominees in recent memory.
Judge Gonzales answered every question put to him at the committee's
hearing, and then received hundreds of written questions afterward.
Within days, he returned to the committee over 440 responses. I repeat:
Within days, he returned to the committee over 440 responses. Then the
committee asked Judge Gonzales even more questions, despite the fact
that the deadline for questions imposed by the chairman had already
passed. And still, Judge Gonzales graciously provided an additional 54
responses to every question that the Judiciary Committee could think
of.

By contrast, Attorney General Janet Reno got only 35 questions from
the Judiciary Committee in 1993. And records show she responded a
whopping 9 months after she was confirmed. Let me repeat that. Janet
Reno got 35 questions from the Judiciary Committee in 1993, and records
show she responded 9 months after she was confirmed. I wish I had that
plan when it came time to pay my bills.
Even the New York Times made the right call when it admitted Judge
Gonzales has been very forthcoming. From January 19 of this year:

His written responses totalling more than 200 pages on
torture and other questions . . . offered one of the
administration's most expansive statements of its position on
a variety of issues.

That is the New York Times, not exactly a bastion of conservative or
Republican supporters.
The position of the Attorney General, as we know, is a position of
very high trust. After the President, he is the supreme law enforcement
officer in the land. Like the President, he is charged with defending
the Constitution. The office is reserved for those of great character.
I don't have any doubt that Alberto Gonzales will fight to protect this
country from terrorists with every bit of his power, while guarding the
civil rights of every single American.
In short, he is supremely qualified to be the next Attorney General
of the United States. I look forward to giving him my vote, and I am
confident a vast majority of the Senate will, as well.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I commend the Senator from Kentucky for
his excellent remarks, which I heard in my office, and the wrap-up I
heard here. I congratulate all who have come forward in support of
Judge Gonzales for their excellent statements and, I am prompted to
say, in his defense.
It is a sad situation that a man of his integrity, of his
accomplishments, of his skills, of his background, has to be defended
in the Senate. This discussion we have had in committee and in the
Senate is further evidence that the system of bringing not just
Attorney General nominees but judicial nominees and other nominees--
Secretary of State--has some serious problems. We have allowed the
partisan politics to enter into some of these debates and discussions
when we should be looking at the qualifications of the person, the
integrity of the person, the skills of the person, the trustworthiness
of the person, and whether they can do and execute the jobs faithfully.
Judge Gonzales has shown throughout his career, whether in his career
as a lawyer, whether in his career as a counsel to the Governor,
whether in his career as supreme court justice and elected official in
the State of Texas, secretary of state, he has shown the highest degree
of integrity and the skills necessary to do the job. He has proven to
be trustworthy when given authority, taking that authority seriously
and handling it with great responsibility.
I personally have worked with him on many occasions, and in some very
difficult situations, and I have always found him to be completely
forthright, brutally honest--in some cases telling me things I did not
want to hear but always forthright, always honest, sincere, serious.
This is a serious man who takes the responsibilities that have been
given to him as a great privilege and a great honor which he holds very
carefully and gently in his hands.
There is a wonderful spirit in this man of understanding the
positions he has held, certainly the position he holds now as Counsel
to the President, and the awesome responsibility that

[[Page S925]]

comes with that. He has never given me any indication in any dealings I
have had with him that he would do anything but faithfully execute his
duties to the President and to the country, first and foremost.
Knowing the man--he is not a friend; I don't know him socially--
having dealt with him on many occasions in my time in the Senate, to
see this man being portrayed as someone who would condone torture in
spite of all the statements to the contrary, someone who would not
faithfully execute the laws of this country despite endorsements from
every law enforcement agency there is out there--not just endorsements
but glowing endorsements from law enforcement agencies and
prosecutors--to see this man's integrity questioned, his forthrightness
questioned, is a sad commentary on the questioners because this man's
history, this man's record of service for the State of Texas and this
Government is spectacular, as was Dr. Rice's service.
The sad part of this is that ultimately it is less about the
individual and more about the politics. More and more we see that. We
saw that last session of Congress with judicial nominations where it
was more about the politics, the partisanship, than about the
individual. Looking from afar and observing the political scene, as
many people do in America, we see that, and that is just part of the
game. Everyone is making their points when they have the opportunity
and trying to drive the message. Maybe I can understand that a few
months before an election, if you want to drive a pledge and position
yourself on the wedge issues.

It is the first week of February. It is 3 months after the last
election. Don't you think we can take a little time around here to
treat people decently, people who serve this country well and have been
role models and examples? Dr. Rice, Judge Gonzales--what two better
stories in America of people who have achieved, from very humble
beginnings, achieved at the highest level, and then to be treated as
partisan pawns in this political process barely 3 months after an
election. The Senate deserves better than that. More importantly, these
are individuals. We are not debating a bill. This is not a piece of
paper with words on it. If we say this language is bad or that language
is bad, that is one thing. But to impugn the character of individuals,
when you go after someone on a personal basis, when you say things and
accuse people of things that are not supported by any of the evidence
out there, and you do so principally not because you believe this
person actually holds those characteristics but you do so for a grander
political motivation, I argue that is something the Senate should not
condone, and hopefully today we will see the votes in the Senate in a
very strong and overwhelming bipartisan fashion.
There are a lot of people I commend on the other side of the aisle
who have stood and spoken of their own experiences with this man. They
have spoken about their review of the record and the facts and have
given this extremely qualified nominee their support. It shows there
are some on that side of the aisle who still are positioning themselves
as if we are in the last week of October of last year instead of beyond
that and moving on to try to do something that is positive for the
future of our country.
I would argue Alberto Gonzales is going to be a great, positive
contribution to the war on terror, to the crime-fighting obligation
that he will have, to the integrity of our laws in this country. There
is no question in my mind he will faithfully uphold the Constitution of
the United States, and he will serve with great honor and distinction.
It is my pleasure to speak in support of him.
Mr. President, 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. DODD. 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. DODD. Mr. President, as I understand it, there are several
minutes left for the majority at this particular moment. I inquire if I
could begin my remarks--I think it has been agreed that I will be the
first speaker on the minority side--and reserve whatever time the
majority has for some point later so they do not lose their time. I ask
unanimous consent that be the order.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. DODD. Mr. President, I rise, late this morning, to speak on the
nomination of Alberto Gonzales to serve as the Attorney General of the
United States.
I would, as an initial matter, note that I know one of our colleagues
came to the floor yesterday and spoke some words in Spanish in support
of this nomination. And as someone who speaks Spanish, I was urged by
some of my colleagues to do the same. I would not want to complicate
the life of our reporters here. It is hard enough to understand us in
English from time to time, and doing so in Spanish might make things
more difficult.
I take great pride in the fact that I lived in a Spanish-speaking
country as a Peace Corps volunteer, and that I have been a long-time
member of the Senate subcommittee that concerns itself with Latin
America. I understand this nomination is certainly a matter of ethnic
pride to many. I understand that. But I would further suggest that to
consider this nomination as only or even principally as a matter of
ethnic pride does a disservice to the Latino, the Hispanic community.
As far as I can tell, members of that community are no different than
people throughout our great Nation. They want to know not only who you
are and what you are, but also what you think and what you believe in.
They want to know if a person nominated to be this Nation's chief law
enforcement officer will uphold the rule of law.
The outcome of this nomination at this hour is not in doubt. It
appears quite likely, if not altogether certain, that Mr. Gonzales will
be confirmed by the Senate of the United States as our country's next
Attorney General. So what I am about to say is of little, if any,
consequence to the ultimate outcome of this particular nomination. If,
in fact, this nominee is confirmed, I hope what I have to say might
have some impact on his thinking as he assumes this office.
I have asked for time to participate in this debate because of the
important questions that this nomination raises, for not only this body
but for our Nation. I thank the two leaders for allotting time for a
full debate on these questions.
I am going to oppose this nomination. I say that with deep regret.
Like all or nearly all of my colleagues, I had very high hopes for this
nomination when it was first announced. When Mr. Gonzales was nominated
for this position several weeks ago, I didn't know a single Member who
expressed any intention to vote against this nominee. That is certainly
the case for this Senator. However, I also said at the time that I
would reserve an ultimate decision until after the nomination was
considered by the Judiciary Committee and put before the full Senate.
In the interim, the committee chairman and ranking member have done a
tremendous job of holding a careful, thorough, and substantive set of
hearings. They have given members of the committee every opportunity to
ask questions of the nominee. Just as importantly, if not more, they
have given every opportunity to the nominee to answer those questions
fully.
As many of my colleagues may know, particularly those with whom I
have served over the past almost quarter of a century, I have long
adhered to the practice of according Presidents great deference in
their nominations of term-limited appointees. Those who campaign for
and win the highest office in our land deserve to name their team to
the President's Cabinet. Accordingly, my standard of review for
nominations such as this is different than it is for lifetime
appointments.
There are two basic questions that must be answered. First, does the
nominee have the personal qualities required to discharge the duties of
the office to which he or she has been nominated? And secondly, has the
nominee demonstrated an understanding of the duties that he or she will
be required to discharge if confirmed?
Based on that standard of review and only that standard, I have
supported overwhelmingly a number of Cabinet appointees during the
quarter of a century I have served in this body. That

[[Page S926]]

includes nominees of this President, including the current Attorney
General, as many of my colleagues may recall 4 years ago. It also
includes nominees proposed by Presidents and opposed by a majority of
members of my own party, including, in at least one instance, a nominee
opposed by a majority of the Senate. But I have, on rare occasions,
less than five in my 24 years here, through all five Presidents during
that time, opposed only a handful of Cabinet nominees, including
nominees supported by the majority of Members of the Senate and a
majority of members of my own party.
There is no question that this nominee possesses a number of
admirable personal qualities. He has demonstrated considerable
intellectual ability. He is an experienced and accomplished attorney.
He has by all indications been a responsible member of his profession.
And he has demonstrated commitment to public service. Like our
colleagues, I have been deeply impressed with his proud family history.
But this nomination is not simply about Alberto Gonzales's impressive
personal qualities. If it were, then he would be unanimously confirmed.
What is at stake is whether he has demonstrated to the Senate that he
will discharge the duties of the office to which he has been nominated,
specifically whether he will enforce the Constitution and laws of the
United States and uphold the values upon which those laws are based.

Regrettably and disturbingly, in my view, Alberto Gonzales has fallen
short of meeting this most basic and fundamental standard. Let me
explain why I take this position for two reasons: One, because in a
nation founded on the principle of human freedom and dignity, he has
endorsed, unfortunately, the position that torture can be permissible.
And two, in a nation dedicated to the proposition that all are equal
and none is above the law, he has suggested that the President of the
United States, acting as Commander in Chief, has the right to act in
violation of the laws and treaties prohibiting torture and may
authorize subordinates to do the same. I will address briefly each of
these issues in turn.
The issue of torture is relatively straightforward. Is it acceptable
for the United States of America ever to effect or permit the torture
or cruel, inhuman, degrading treatment of human beings? The
Constitution clearly says no. The eighth amendment explicitly prohibits
``cruel and unusual punishments.'' The Geneva Conventions say no. They
prohibit the torture and abuse of detainees and prisoners of war.
The Universal Declaration of Human Rights says no. Article 5 states:

No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.

The International Convention Against Torture also says no to torture.
This document, signed by President Reagan, supported by former
President Bush, and approved by the Senate Foreign Relations Committee
under Chairman Helms with a unanimous committee decision, says:

No exceptional circumstances whatsoever, whether a state of
war or a threat of war, internal political instability or any
other public emergency, may be invoked as a justification for
torture.

Lastly, the Army Field Manual says no to torture as well. This manual
contains the knowledge, insight, and wisdom gathered by American
soldiers over decades of hard experience.
It says:

U.S. policy expressly prohibit[s] acts of violence or
intimidation, including physical or mental torture, threats,
insults, or exposure to inhumane treatment as a means of or
to aid interrogation.

So this document, relied on for decades by U.S. military personnel in
the theater of war to protect their lives and to do their duty,
expressly prohibits torture. Why? Because, to again quote from the Army
Field Manual:

The use of torture is a poor technique that yields
unreliable results, may damage subsequent collection efforts,
and can induce the source to say what he thinks the
interrogator wants to hear. . . . It also may place U.S. and
allied personnel in enemy hands at greater risk.

From the very earliest days of our Republic, the right to be free
from torture has been a fundamental value of our Nation. Other values
and rights have evolved or been won by the deprived and dispossessed:
the emancipation of slaves, civil and voting rights for racial and
ethnic minorities, equal rights for women, the right of privacy, just
to name a few. But the right to be free from torture or similar
treatment has never been in doubt, has never been seriously debated in
our Nation. It has always been considered intrinsic to a nation such as
ours, founded, as it is, upon the belief that all people are endowed
with certain inalienable rights.
Yet, unfortunately, this nominee has in crucial aspects stood against
the overwhelming and unequivocal weight of precedent and principle.
He has instead stood on the side of policies that are in direct
conflict with the laws, treaties, and military practices that have long
guided our Nation and its citizenry. Moreover, the record strongly
suggests that he, in fact, helped shape those policies to the great
detriment of our Nation's moral standing in the world.

Indeed, as the White House Counsel, he is one of the chief architects
of those policies. Let me review the record.
In January of 2002, Mr. Gonzales wrote a memorandum to the President
of the United States regarding the applicability of the Geneva
Conventions to the conflict in Afghanistan. He concedes in the memo
that:

Since the Geneva Conventions were concluded in 1949, the
United States has never denied their applicability to either
the United States or opposing forces engaged in armed
conflict, despite several opportunities to do so.

But then Mr. Gonzales argues that the war on terror presents a ``new
paradigm [that] renders obsolete Geneva's strict limitations on
questioning of enemy prisoners.'' He urged a blanket exclusion of the
Afghanistan war from the Geneva Conventions.
This position was strenuously opposed by Secretary of State Colin
Powell. Powell pointed out:

It will reverse over a century of U.S. policy and practice
in supporting the Geneva Conventions and undermine the
protections of the rule of law for our troops, both in the
specific conflict and in general.

He goes on to say:

It will [also] undermine public support among critical
allies, making military cooperation far more difficult to
sustain.

Secretary Powell's legal adviser added that Mr. Gonzales's view that
Geneva did not apply to Afghanistan was inconsistent with the plain
language of the treaty, the unbroken practice of the United States over
the previous half century, the practice of all other parties to the
Conventions, and the terms of the U.N. Security Council resolution
authorizing the intervention in Afghanistan.
Ultimately, in February 2002, President Bush ordered that all
detainees captured by U.S. forces be treated in ``a manner consistent
with'' the Geneva Conventions. But it has been pointed out that the
treatment of detainees at places such as Abu Ghraib and Guantanamo
raised questions about whether this order was effective in actually
according detainees the protections of the Geneva Conventions.
What is most troubling to this Senator is that Mr. Gonzales argued
for a view of the Geneva Conventions that was inconsistent with
American law, American values, and America's self-interests.
Nor was this an isolated event. This administration's policy on
torture was largely established in August of 2002. At that time, a
memorandum regarding standards of conduct of interrogations was
prepared at Mr. Gonzales's request by the Justice Department Office of
Legal Counsel. This memorandum was accepted by the administration as
policy until December 2004, when it was repudiated, at least in part,
by the Justice Department on the eve of Mr. Gonzales's nomination
hearing. The memorandum is 50 pages long. I will not dwell on it.
Others among our colleagues have already thoroughly discussed it. I
will only touch on two aspects of it.
One is its novel and absurdly narrow definition of torture. The only
conduct it recognizes as torture is where the interrogator has the
precise objective of inflicting ``physical pain . . . equivalent in
intensity to the pain accompanying serious physical injury, such as
organ failure, impairment of bodily function, or death.'' Any other
conduct implicitly would not, as defined by this document, constitute
torture--and thus would be allowed.

[[Page S927]]

Mr. President, this is a truly stunning and offensive reading of the
law, not to mention plain English. It twists and contorts the meaning
of the word ``torture''--so much so that the word is drained of any
meaning whatsoever.
It would allow all manner of mistreatment, including the acts of
brutality and degradation committed by Americans against Iraqis in
places like Abu Ghraib prison. Incredibly, it would even excuse the
beatings, rapes, burnings, and deprivations of food and water
perpetrated at the behest of Saddam Hussein himself.
A second aspect of this memorandum that deserves mention is its
discussion of the powers of the President of the United States when
acting as Commander in Chief. The memorandum says that the criminal
prohibition against torture ``does not apply to the President's
detention and interrogation of enemy combatants pursuant to its
Commander in Chief authority.'' Under this reasoning, executive branch
officials can escape prosecution for torture if ``they were carrying
out the President's Commander in Chief powers.''
Here again, this legal reasoning is stunning in its implications. It
suggests that an American acting on behalf of the United States of
America can commit heinous acts of torture without the slightest fear
of prosecution. All he or she needs to do to avoid sanction is to show
that he or she was ``just following orders.'' Whether the law prohibits
torture is of no consequence. The President and anyone acting under his
authority are in effect above the law.
This memorandum has been rightly condemned by legal experts. One is
Harold Koh, a professor of law at Yale Law School. He served in the
Reagan Justice Department and the Clinton State Department. In
testimony before the Judiciary Committee last month, he called the
August 2002 memorandum ``perhaps the most clearly erroneous legal
opinion that I have ever read,'' and ``a stain upon our law and our
national reputation.''
Yet while condemned as beyond the pale of American law and American
values, these ideas were accepted and even embraced by the nominee to
become the Attorney General of the United States of America. There is
no evidence in the record that he even questioned them, much less
disagreed with them. Apparently, he had them shared with the Department
of Defense.
At his confirmation hearing, Senator Leahy asked Mr. Gonzales whether
he agreed with the memorandum's legal reasoning on the issue of
torture. Mr. Gonzales replied, ``I don't have a disagreement with its
conclusions.''
Our colleague, Senator Kohl from Wisconsin, asked if the nominee
agreed with Attorney General Ashcroft's statement that he does not
believe in torture because it doesn't produce anything of value. The
nominee replied, ``I don't have a way of reaching a conclusion of
that.''

Don't have a way of reaching a conclusion? Mr. President, that is an
astounding admission for someone seeking to become the Nation's top law
enforcement officer. If he cannot reach a conclusion about the
illegality or immorality of torture, what can he reach a conclusion
about? What other legal principles are open to similar legal
evisceration and repeal? What does it say about our Nation's commitment
to the rule of law that this nominee will not say torture is against
the law? What does it say about our Nation's commitment to equal
justice under the law that this nominee would have the President and
his subordinates be above the law?
How do we explain this to the citizenry of our Nation, to the
citizenry of other nations, particularly our allies, and most
especially to the citizens of tomorrow, our young people who will
inherit this country as we leave it to them? Will we tell them that
torture is wrong--unless the President orders it? Will we teach them
that America stands for life, liberty, and the pursuit of happiness--
depending upon who you are?
Almost 60 years ago, this very day, the first allied forces liberated
the condemned people of Auschwitz. On that day, the full horror of the
Nazi genocide was laid bare, and all doubt about it was laid to rest.
Within weeks of that event, my father and a group of other attorneys
in this country were on a plane to a place called Nuremberg, Germany.
There, he, along with others from our allies, began what would perhaps
be the most formative experience of my father's professional life at
that time: serving as executive trial counsel at the trials of Nazi war
criminals.
At that time, there were loud calls against trying the Nazi leaders.
Many called not for due process of law, but for summary executions. In
fact, Winston Churchill, a person we revered, who had great values,
strongly suggested that summary executions would be the way to deal
with the people responsible for the incineration of 6 million Jews and
5 million other civilians, not to mention the millions of combatants
who lost their lives as a result of Nazi terror.
Yet the United States stood up for something different 60 years ago,
in the summer of 1945 through the fall of 1946. As members of the
allied powers, we insisted that the rule of law, rather than the rule
of the mob, would rule. Even these most despicable and depraved human
beings were given an opportunity to retain counsel and to testify in
their own defense.
We were different. It did not depend on who the enemy was. It
depended on what we stood for. If we begin to tailor our values and
principles based on who our adversaries are, what do these laws mean?
What do these bedrock principles stand for, if we can tailor them based
on who we look across a battle line at? You cannot do that if you
believe in these principles.
At that moment in history, the world learned something very important
about the United States of America. It learned that this Nation would
not tailor its eternal principles to the conflict of the moment. It
learned that, as far as the United States of America is concerned, even
the mightiest cannot escape the long arm of justice. And it learned
that our Nation will recognize the words ``I was just following
orders'' for what they really are--a cowardly excuse, which has no
place in a nation of free men and women.
Mr. President, as I said, the outcome of this nomination is in little
doubt at this hour. I understand that. My argument is not going to
persuade anybody to vote differently. I want to be on the record saying
that there have been only a handful--two or three cases in 24 years--
where I have stood in the Chamber to oppose a Cabinet nominee. I
supported and voted for the nominations of John Ashcroft and John
Tower. My colleagues who served with me know that I generally believe
that Presidents deserve to have their Cabinets--except in rare
circumstances.
While I admire the personal story of this nominee, when he walks away
from these critical principles, I cannot in good conscience give my
vote to him to be Attorney General of the United States--the chief law
enforcer of our country--when I know how important the rule of law is
to this country, its history, and our reputation.
As I said earlier, the outcome of the nomination is not in doubt. I
do not expect that the nominee in question is paying attention to these
proceedings or what I have to say. But I hope Mr. Gonzales will pay
heed to the lessons of history, if not to this Senator. In his second
State of the Union Address, Abraham Lincoln said that in giving or
denying freedom to slaves, ``We shall nobly save or meanly lose the
last, best hope of earth.''
The issue then was how our Nation treats the enslaved. The issue
today is, in some respects, no less profound: how our Nation treats its
enemies and captives, including those in places such as Abu Ghraib
prison and Guantanamo Bay.
By treating them according to our standards, not theirs--our
standards, not theirs--we feed the flame of liberty and justice that
has rightly led our Nation on its journey over these past two and a
quarter centuries.
I strongly oppose this nomination, and I hope the President will come
up with a better choice.
I yield the floor.
The PRESIDING OFFICER (Mr. Graham). The Senator from Illinois.
Mr. OBAMA. Mr. President, a few days ago, the world watched as the
seeds of democracy began to take root in Iraq. As a result of the sheer
courage of the Iraqi people and the untold sacrifices of American
soldiers, the success of the elections showed just how

[[Page S928]]

far people will go to achieve self-government and rule of law.
As Americans, we can take enormous pride in the fact that this kind
of courage has been inspired by our own struggle for freedom, by the
tradition of democratic law secured by our forefathers and enshrined in
our Constitution. It is a tradition that says all men are created equal
under the law and that no one is above it.
That is why even within the executive branch there is an office
dedicated to enforcing the law of the land and applying it to people
and to Presidents alike.
In this sense, the Attorney General is not like the other Cabinet
posts. Unlike the Secretary of State, who is the public face of the
President's foreign policy, or the Secretary of Education, whose job it
is to carry out the President's education policy, the Attorney
General's job is not just to enforce the President's laws, it is to
tell the President what the law is. The job is not simply to facilitate
the President's power, it is to speak truth to that power as well.
The job is to protect and defend the laws of freedoms for which so
many have sacrificed so much.
The President is not the Attorney General's client; the people are.
And so the true test of an Attorney General nominee is whether that
person is ready to put the Constitution of the people before the
political agenda of the President. As such, I cannot approach this
nomination for Attorney General the same way I approached that of
Secretary of State Rice or Veterans Affairs Secretary Nicholson or any
other Cabinet position. The standard is simply higher.

Like the previous speaker, Senator Dodd, I wanted to give Alberto
Gonzales the benefit of the doubt when we began this process. His story
is inspiring, especially for so many of us--like me--who shared in
achieving the American dream. I have no question that as White House
Counsel, he has served his President and his country to the best of his
ability. But in my judgment, these positive qualities alone are not
sufficient to warrant confirmation as the top law enforcement officer
in the land.
I had hoped that during his hearings, Judge Gonzales would ease my
concerns about some of the legal advice he gave to the President, and I
had hoped he would prove that he has the ability to distance himself
from his role as the President's lawyer so that he could perform his
new role as the people's lawyer.
Unfortunately, rather than full explanations during these hearings, I
heard equivocation. Rather than independence, I heard an unyielding
insistence on protecting the President's prerogative.
I did not hear Judge Gonzales repudiate 2\1/2\ years of what appears
to be official U.S. policy that has defined torture so narrowly that
only organ failure and death would qualify, a policy that he himself
appears to have helped develop and at least has condoned.
Imagine that, if the entire world accepted the definition contained
in the Department of Justice memos, we can only imagine what atrocities
might befall our American POWs. How in the world, without such basic
constraints, would we feel about sending our sons and daughters off to
war? How, if we are willing to rationalize torture through legalisms
and semantics, can we claim to our children and the children of the
world that America is different and represents a higher moral standard?
This policy is not just a moral failure, it is a violation of half a
century of international law. Yet while Judge Gonzales's job was White
House Counsel, he said nothing to that effect to the President of the
United States. He did not show an ability to speak with responsible
moral clarity then, and he has indicated that he still has no intention
to speak such truths now.
During his recent testimony, he refused to refute a conclusion in the
torture memo which stated that the President has the power to override
our laws when acting as Commander in Chief. Think about this. The
Nation's top law enforcement officer telling its most powerful citizen
that if the situation warrants, the President can break the law from
time to time.
The truth is, Mr. Gonzales has raised serious doubts about whether,
given the choice between the Constitution and the President's political
agenda, he would put our Constitution first. And that is why I simply
cannot support his nomination for Attorney General.
I understand that Judge Gonzales will most likely be confirmed, and I
look forward to working with him in that new role. But I also hope that
once in office, he will take the lessons of this debate to heart.
Before serving in this distinguished body, I had the privilege of
teaching law for 10 years at the University of Chicago. Among the
brilliant minds to leave that institution for Government service was a
former dean of the law school named Edward Levi, a man of impeccable
integrity who was committed to the rule of law before politics.
Edward Levi was chosen by President Ford to serve as Attorney General
in the wake of Watergate. The President courageously chose to appoint
him not because Dean Levi was a yes man, not because he was a loyal
political soldier, but so that he could restore the public's confidence
in a badly damaged Justice Department, so that he could restore the
public's trust and the ability of our leaders to follow the law.
While he has raised serious doubts about his ability to follow this
example, Judge Gonzales can still choose to restore our trust. He can
still choose to put the Constitution first. I hope for our country's
sake that he will, and part of the reason I am speaking in this Chamber
today is to suggest three steps that he can take upon assuming his role
that would help restore that trust.
First, he can immediately repudiate the terror memos in question and
ensure that the Department of Defense is not using any of its
recommendations to craft interrogation policies.
Second, Judge Gonzales can restore the credibility of his former
position as legal counsel by appointing an independent-minded,
universally respected lawyer to the post.
And third, he can provide this Congress regular detailed reports on
his efforts to live up to the President's stated zero tolerance policy
with respect to torture.
Today we are engaged in a deadly global struggle for those who would
intimidate, torture, and murder people for exercising the most basic
freedoms. If we are to win this struggle and spread those freedoms, we
must keep our own moral compass pointed in a true direction. The
Attorney General is one figure charged with doing this, but to do it
well, he must demonstrate a higher loyalty than just to the President.
He must demonstrate a loyalty to the ideals that inspire a nation and,
hopefully, the world.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. ALLEN. Mr. President, I rise today in strong support of the
President's nominee for Attorney General, Judge Alberto Gonzales. Judge
Gonzales is a gentleman whom I have had the opportunity to work with in
his role as counsel to President Bush. I have found him to be
intelligent, steady, discreet, and honest in all our dealings. He is
well qualified to be Attorney General. One should look at someone's
record of performance. He served with skill and integrity as an
effective counsel to the President. He has served as a distinguished
jurist on the Supreme Court of Texas, as the 100th Secretary of State
and chief elections officer in Texas and then as chief counsel to then-
Governor Bush.
People say he has a life story that is inspirational and then dismiss
all of that. I say to my colleagues, if one looks at someone's
background, how they were raised, their life experiences tell a great
deal about how a person is as an adult and as a leader with
responsibility.
Alberto Gonzales was one of eight children, born to parents who were
migrant workers. He was the first person to go to college in his
family. He was a graduate of Rice University and Harvard Law School. He
unequivocally has demonstrated that hard work and integrity will earn
dividends no matter who one is in this country. He will not tolerate
discrimination or limits on the ability of Americans to exercise their
God-given rights or restrain any citizen in their equal opportunities
and due process in the law.

[[Page S929]]

He was raised in the way of achieving those goals and achievements in
life that one aspires to regardless of one's race, ethnicity, or
religious beliefs. With any nominee, it seems there have to be a number
of accusations that Senators and others will level against them, but I
believe Mr. Gonzales has clearly, forcefully, and consistently made
clear his position on a number of issues. In fact, he is one of the
most responsive nominees in recent history.
Judge Gonzales received hundreds of questions from 14 Senators who
serve on the Judiciary Committee and one member not on that committee.
Within 3 days, Judge Gonzales provided the committee with over 440
responses encompassing 221 single-spaced pages, in comparison to prior
Attorney General nominees who received far fewer questions. Former
Attorney General Janet Reno received only 35 questions for the record
from five Senators. Records show that she responded to those questions
9 months after the Senate confirmed her.
Even the New York Times took note of Judge Gonzales's responsiveness.
In a January 19, 2005, article, it stated:

His written responses totaling more than 200 pages on
torture and other questions . . . offered one of the
administration's most expansive statements of its positions
on a variety of issues, particularly regarding laws and
policies governing the CIA interrogation of terror suspects.

If this is an indication of how Judge Gonzales responds to his job as
Attorney General, I am fully confident he will make an excellent and
fair Attorney General.
Some will say he has not answered questions. Maybe they have not
heard one of his many responses to this question about torture. But I
think his statement in the Judiciary Committee that he ``denounces
torture and if confirmed as Attorney General he will prosecute those
who engage in torture,'' says it all. Maybe he can say it 12 more times
and maybe 1 or 2 more Senators might understand it, but that is the
record.
There is obviously a relatively small number of people who oppose
this nomination, but there is a strong majority who support his
nomination and from all sides, Republicans, Democrats, men and women
from all ethnic groups. Henry Cisneros, former HUD Secretary under
President Clinton, opined that he has voted only once for a Republican
in his life and Judge Gonzales was that person. He felt confirming
Judge Gonzales as Attorney General would be good for America because
``he understands the realities many Americans still confront in their
lives.''

Mr. Cisneros goes so far as to say:

As an American of Latino heritage, I also want to convey
the immense sense of pride that Latinos across the Nation
feel because of Judge Gonzales's nomination . . . to one of
the big four--State, Defense, Treasury and Justice. This is a
major breakthrough for Latinos, especially since it is so
important to have a person who understands the framework of
legal rights for all Americans as Attorney General.

Lynne Liberato, a self-proclaimed partisan Democrat and former
president of the State Bar of Texas and the Houston Bar Association,
stated the first good result of President Bush's reelection was that he
nominated Alberto Gonzales to become Attorney General and that the only
downside is he will not be nominated to the U.S. Supreme Court. She
goes on to opine that she can say with complete confidence he is a good
man with a good heart.
Judge Gonzales's commitment to the betterment of America as a whole
and its citizens has led to all sorts of accolades and awards. He has
received many honors. In 2003, he was inducted into the Hispanic
Scholarship Fund Alumni Hall of Fame. The United States-Mexico Chamber
of Commerce honored him for the Good Neighbor Award. He received
presidential awards from the U.S. Hispanic Chamber of Commerce and the
League of United Latin American Citizens. We should strongly support
the President's nomination of Judge Gonzales to become Attorney General
of the United States. He is the embodiment of the American dream, a man
of hard work, of legal sense and intellect, and that has lifted him to
some of the highest positions in our Nation.
I like the fact that the President has nominated people who are good
role models. I thought the fact that Dr. Rice had grown up in the
segregated South. She applied and educated herself to obviously hold a
very important position as Secretary of State--beyond her intellect and
capabilities, it is a great life story that should be something for
young people to be inspired by. The same with Judge Gonzales to become
Attorney General of the United States.
We have other heroes, such as our new Senator from Florida, Mel
Martinez, a modern-day American dream coming from Castro's repressive
Cuba. All Senators should aspire to be role models, and to the extent
that people who have led the American dream, modern-day Horatio Algers
stories should be an added plus to all their intellect, capabilities,
and experiences.
I say to my colleagues: Adelante con Alberto Gonzales. Let's move
forward with this nomination.
Mr. WARNER. Mr. President, I would like the record to reflect that I
now have the privilege to speak to my colleagues with regard to the
nomination of Alberto Gonzales to serve as U.S. Attorney General. I do
so with a great sense of pride. I compliment our distinguished, strong
President for having selected this outstanding American to serve in
this exceedingly important position.
Article II of the Constitution provides that the President:

. . . shall nominate, and by and with Advice and Consent of
the Senate, shall appoint . . . Judges of the supreme Court,
and all other Officers of the United States. . . .

Thus the Constitution provides a role for both the President and the
Senate in the process. And that is precisely what this August body is
now undertaking, their constitutional responsibilities of giving advice
and consent of a President's nomination of a principal Cabinet officer.
In fulfilling the constitutional role of the Senate, I have tried
throughout my career to give fair and objective consideration to both
Republican and Democratic Presidential Cabinet level nominees. There
are times when I have voted for nominees whom I, frankly, perhaps, if I
had been in the position, would have picked others. But the leader of
the opposition party, the President, in those instances chose those
individuals. I searched in my heart to find those qualifications which
I felt justified the President's decision. I have no difficulty
whatsoever finding in my heart and knowledge more than adequate reasons
to support this distinguished nominee.
His personal story is a compelling one. He was of seven children that
were raised in a two-bedroom household in Humble, TX, that his family
built and in which his mother still lives.
From these modest roots, Mr. Gonzales became the first in his family
to go to college, graduating from Rice University and then later
graduating from Harvard law school.
Throughout his life, Alberto Gonzales has demonstrated a strong
commitment to public service, beginning with his service in the United
States Air Force between 1973 and 1975. Then, after a number of years
in private practice at a Houston, TX law firm, Mr. Gonzales served as
Texas' Secretary of State from 1997 to 1999. In 1999, he was appointed
to serve as a Justice on the Supreme Court of Texas.
In 2001, Judge Gonzales left the Texas bench and was commissioned as
Counsel to President Bush. In this capacity, I have had the opportunity
to work with Judge Gonzales on a number of matters, particular matters
related to the Department of Defense. I have come to know him as a
conscientious, soft-spoken man with a brilliant legal mind.
While our next Attorney General will continue to face the unique
challenges that many in law enforcement have faced since September 11,
2001, I am confident that Judge Gonzales will meet these challenges
head on with a respect for our Constitution, and the laws and
traditions of the United States.
I look forward to voting in support of Judge Gonzales's nomination
and look forward to working with him on the challenges that lay ahead.
I say to those who have spoken in opposition, I respect that right
and on the whole I feel this debate has been a good one, a proper one,
and shortly we are going to vote. I am confident a strong majority of
the Senate will approve this distinguished American for this post.
I would like to talk about some personal experiences I have had with
this

[[Page S930]]

distinguished nominee. I go back, with a sense of modesty in my humble
career--I guess it was in the late 1950s and 1960s. I was privileged to
be an Assistant U.S. Attorney. I met literally the first Attorney
General I had ever met, having been summoned to his office with regard
to some matters. I remember walking up into that vast chamber in the
upper floors of the Department of Justice, and there was Bill Rogers,
the Attorney General of the United States under President Eisenhower. I
got to know him. As a matter of fact, he had a great deal to do with
influencing me to remain in public office and I am everlastingly
grateful to him. In the ensuing years I had the privilege of working
with a classmate at the University of Virginia Law School. Although he
was a year or so ahead of me, that classmate, Robert Kennedy, later
became Attorney General.
So I have been privileged through my modest career in public office
to have had an association with many Attorneys General. What stands out
in my mind about Alberto Gonzales is this interesting observation. When
we debate on this floor, as we are obligated to do, and do so often
with a sense of fairness, we talk about judicial temperament. In many
respects, you can go into the dictionaries and into the case studies,
you can look wherever you want and there isn't any precise definition
of what judicial temperament is. But it is an essential quality of
those individuals who ascend to the bench.
I have had a number of meetings over the years with Judge Gonzales,
some in the White House. Often he would say, Senator, I will come to
your office. In addition, Judge Gonzales has always given me, and I am
sure others in the Congress, the courtesy of promptly returning my
telephone calls. That is something sometimes members of the executive
branch don't do often with Members of Congress. But he returned the
calls and returned them promptly. Throughout my interactions with Judge
Gonzales, he always manifested to me in his mannerisms, the courtesies
that he extended to me, and I presume other Members of Congress, the
quiet manner in which he would listen to your points of view, or
express his point of view. To me, his thoughtfulness and the courtesy
emulate the very essence of what judicial temperament should be and the
qualities an Attorney General should have.

It is so important that I bring that forward because he is
instrumental in advising, and as Attorney General he will continue to
be instrumental in advising, the President of the United States with
regard to his Constitutional power with respect to judicial and
executive branch nominees. I often say, yes; the power, but it is a
responsibility that the Constitution places on the President to fill
the vacancies in the third branch of Government, the judicial branch.
I can't think of a more important framework of appointments than the
members of the Federal judiciary. So often they continue in office long
after a President's term has been completed--or terms, as the case may
be--and expound upon interpretations of the law. They often continue
some of the goals for the President--not writing, hopefully, new law,
which a jurist should not do, that is the function of the Congress, but
interpreting the law within the framework of the Constitution and the
several statutes of our Government.
But this man, to me, stands out as one who brings a great sense of
dignity, a great sense of inspiration, particularly to those in the
Department of Justice who continue and come to serve. I am confident
that in his continuing interactions with the Congress of the United
States he will not change what I view as the extraordinary and, indeed,
magnificent manner in which he performs his duties, formally as chief
counsel to the President, and hopefully soon to be, with the advice and
consent of this distinguished body, as Attorney General of the United
States of America.
I wish him and his family well. I thank them for their continued
public service. I recount the other portions of my remarks today about
his extraordinary background. He overcame such impediments and hardship
to receive and to be grateful for what this country offered to him and
his family by way of opportunities of education and public service.
This has been a very important moment in the history of the Senate as
we begin to give our advice and consent on an Attorney General, one who
is imminently qualified and able to fulfill this office with that
degree of dignity and intellect, fairness, and firmness that is needed
to serve our President, but most importantly to serve Congress and the
Nation.
We are a nation of laws. That separates us from so many other nations
in the world. We believe in the fairness of the law as it relates to
every citizen--I repeat, every citizen.
I am proud to have the privilege to give these brief remarks on his
behalf and indicate my strong support. I hope I encourage others to
likewise support this important nomination.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. COLEMAN. Mr. President, I rise to also express my strong support
for the confirmation of Alberto Gonzales to be Attorney General of the
United States.
I would like to say to my colleague from Virginia, the senior Senator
from Virginia, before he leaves, what a great honor it is for me to
serve with him, to listen to his experience--his experience in this
body, his experience serving this country as Secretary of the Navy, and
experience which allows him to bring judgment on matters such as this.
I have also served under one President. If I have an opportunity to
serve under a President of a different party, I want to bring the same
kind of judgment here--judgment that the senior Senator from Virginia
has already talked about. It is not about politics. It is not about
what jersey you wear. We have had an election. The President then gets
to pick his team. We look at character, we look at intellect, we look
at integrity, and all of those factors. That should be the judgment we
bring every time.
That is what the senior Senator from Virginia, with his experience,
has brought to the table. I would like him to know that I intend to
follow that in my time here. I think it is the right standard.
Mr. WARNER. Mr. President, I am deeply humbled by the comments of the
Senator. It has been a privilege. I have had an awful lot of good luck,
and a lot of people have given me the wisdom and counsel in which I
have put together this modest career. I thank the Senator for his
service and I enjoy working with him.
Mr. COLEMAN. Mr. President, I enjoyed the statement I heard the other
day, that a pessimist is someone who complains when opportunity knocks.
Opportunity is knocking--a unique opportunity to send a message that
America belongs to us all. It is a chance to prove that hard work and
character can take you wherever you want to go in this country, no
matter where you came from.
I urge my colleagues not to major in the minors today, and to take
this historic opportunity to confirm Alberto Gonzales by an
overwhelming vote.
This is a land of opportunity--a place where anything can happen. It
is a place where a Jewish kid from Brooklyn can grow up to be a Senator
from Minnesota; a place where a young man from South Carolina takes on
a lot of responsibility at a young age to take care of his family and
finds himself presiding over the Senate; a place where success is not
defined by who your parents are or what they did or were able to do but
how hard you work. Judge Alberto Gonzales is such a person.
The son of migrant workers--we have heard the story again and again.
I will repeat part of it--he grew up with seven siblings in a small
house in Texas that his father built with his own two hands. As a
child, Mr. Gonzales often stood outside of Rice University football
games selling soft drinks to earn a few extra dollars. It was while
standing outside of one of those Rice football games that he promised
himself that he would one day attend that university and make the
American dream his own.
He not only graduated from Rice University, but he went on to attend
Harvard Law School, and to eventually become the first Hispanic partner
in a prestigious international law firm.
However, Mr. Gonzales's story does not end there. He chose to enter
public

[[Page S931]]

service. He was general counsel to Governor Bush in Texas, served as
secretary of state in Texas, a member of the Texas Supreme Court, and
for the last 4 years served as chief counsel to President Bush.
Alberto Gonzales embodies the American dream, and he should be
confirmed for Attorney General.
I have served as an attorney myself. The Presiding Officer has had
that same honor, that same distinction. I was Solicitor General of the
State of Minnesota and served 17 years in the attorney general's
office.
I can tell you from that experience that there are two types of
lawyers. A good lawyer will tell you what the law is, while a lesser
lawyer might be tempted to tell you what you might want it to say.
Mr. Gonzales is a good lawyer. And part of that controversy
surrounding his nomination comes from his strict interpretation of what
the law actually says, and not what some might want it to say.
According to article 4 of the 1949 Geneva Convention, only lawful
combatants are eligible for POW protection. When Mr. Gonzales
determined that as a legal matter al-Qaida and the Taliban represented
uncharted legal territory for which the Geneva Convention was never
intended, he did his job as Counsel to the President.
In fact, the Red Cross, a world-respected humanitarian organization,
states that in order to earn POW status, combatants must be commanded
by a person responsible for his subordinates, have a fixed distinctive
sign recognizable at a distance, carry arms openly and conduct their
operations in accordance with the laws and customs of war--
qualifications that do not easily fit al-Qaida or the Taliban, do not
fit at all.
Now, this is not to say al-Qaida fighters should not be treated
humanely, but only that Alberto Gonzales's interpretation of the
convention was well grounded in the letter of the law and strictly
adhered to the structure and history of the convention.
Alberto Gonzales did what any good lawyer should have done. He
informed President Bush of the letter of the law. He did what is
expected of a good attorney.
I serve on the Homeland Security Governmental Affairs Committee. We
were in the process of hearing testimony yesterday from the new head
and Secretary of Homeland Security, Judge Chertoff. Questions came up
with Judge Chertoff about a memo that defined torture. He was pressed
before the committee about his definition. He came back and said he
exercised his legal judgment to let people know that if you move
forward in this area, which is not clear, you better be careful. He did
what was expected of a good lawyer.
I note that his nomination was put forth from two Senators across the
aisle, both my friends, my Democrat colleague from New Jersey, standing
side by side with Judge Chertoff, who did what a good lawyer should do,
as Judge Gonzales has done.
I take a moment to remind my colleagues Article II, Section 2 of the
Constitution states the President ``shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors, or other
public Ministers and Counsels, Judges of the Supreme Court and all
other offices of the United States . . . '' That provision creates a
special responsibility for this body.
While the Constitution does not spell out the criteria by which
Members of the Senate determine whether to approve nominations, we can
all agree our standards should be consistent, regardless of who is in
the White House. That is what the senior Senator of Virginia talked
about a while ago.
I have made it clear I do not believe it is appropriate for the
Senate to use the nomination process as a referendum on the policies of
the administration. Our democratic system has a method for determining
the basic policy thrust of the President. It is called an election.
Those who lose the election should not use the nomination process to
rehash the issues the people have already decided. We went through this
with the nomination of Condoleezza Rice for Secretary of State. Some
chose to rehash some of the issues that were before the public in the
election. The President has a right to appoint his team. Are they
competent? Do they have integrity? Do they have the intellectual
capacity to do the job? The American people have heard the argument and
made their choice. It is time to move on.
The appropriate questions for the Senate are, Is the nominee
qualified? Does the nominee have any ethical lapses in his or her
public record? And does he or she possess the necessary temperament to
serve the Nation well? It would also do some of my colleagues well to
remember the approval of the nominee is not the same as approving every
position the nominee has taken. Checks and balances remain after the
advice and consent. No matter what the outcome of the vote, we will
still maintain oversight of the Justice Department.
Thomas Edison once said:

Most people miss opportunity because it shows up in
overalls and is disguised as hard work.

Alberto Gonzales saw an opportunity and worked hard to capitalize on
it. He makes me proud to be an American. He is an exceptional attorney
and a good man and eminently qualified to be the top law enforcement
officer of the land. I enthusiastically support the nomination of
Alberto Gonzales to be Attorney General of the United States of
America.
I yield the floor.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, I ask unanimous consent my half hour be
divided, with the first 10 minutes for myself, the second 10 minutes
for the Senator from Washington, and the third 10 minutes to the
Senator from New Mexico, Mr. Bingaman.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, we are not voting today on just any
appointment. We are voting today on a nominee to be Attorney General of
the United States, historically one of the most important positions of
power in our Government. The position is more important today than it
has ever been as we wage the war on terror. At a time with
unprecedented tension between the goals of security and liberty, we
must be absolutely certain the person we confirm as Attorney General is
right for the job.
The Attorney General stands apart from all other Cabinet officers.
For those other Cabinet officers, simply carrying out the President's
agenda is enough. The Attorney General, on the other hand, has to be
someone who will follow the law, not just toe the party line. He must
be someone who will do justice for all people, not just push the
President's program. There are many times that demand independence from
the President, when the Attorney General is asked, for instance, to
approve a wiretap of an entire group. The Attorney General must make
that decision based on the law and the precedent, not on loyalty to the
President. The Attorney General owes his ultimate loyalty to the law on
many of the decisions he makes, not to the person who nominated him.
There will be times when the legal weight of precedent is more
important than the political weight of the President. That is the nub
of why the Attorney General is not a typical Cabinet position. At such
times the country needs an Attorney General who can stand the heat and
do the right thing.
Independence is not such a critical quality in other Cabinet
positions. The position of Attorney General requires more neutrality
and independence than, for example, the Secretary of State, whose
obligation is to advance the President's interests abroad. We must be
absolutely sure that an Attorney General nominee not only has the right
experience but the right view of the proper role of an Attorney
General, to be an independent, nonpartisan chief enforcer of the laws.
For that reason, it is with great sadness and some heartache, because
I so like and respect Judge Gonzales as a person and as an inspiration
to so many, that I report I am unsure Judge Gonzales is the right man
for this crucial job.
As I have said before, Judge Gonzales has many impressive qualities.
He is a good person. He has impeccable legal qualifications. He has a
breadth of legal experience, including time as a lawyer, a judge, and a
White House Counsel. And, of course, Judge Gonzales has the kind of
Horatio Alger

[[Page S932]]

story that makes us proud to be Americans. But excellent credentials
and an inspiring story are not enough, not in these times. One must
also have the independence necessary to be the Nation's chief law
enforcement officer.
When the White House asks the Justice Department for legal advice, on
the other hand, the Justice Department is charged with giving an
objective answer, not one tailored to achieve the President's goals.
The Attorney General is supposed to provide sound legal advice in many
of the decisions he or she renders, not political cover. As I have said
before, it is hard to be a straight shooter if you are a blind
loyalist.

I like Judge Gonzales. I respect him. I think he is a genuinely good
man. I was initially inclined to support his nomination. I also
believed, and I said publicly, that Judge Gonzales was a much less
polarizing Attorney General than Senator Ashcroft has been. As I also
said, being less polarizing than John Ashcroft is not enough to get my
vote.
There are two models for an Attorney General, loyalist and
independent. We know there are Attorneys General over the years who
have been close to the President. There is no better example than
Robert F. Kennedy, who served his own brother. That said, no one ever
doubted in the confines of the Oval Office Bobby Kennedy would oppose
his brother if he thought the President was wrong. Judge Gonzales is
more of the loyalist type of Attorney General nominee than an
independent type of Attorney General nominee, which does not alone
disqualify him, but it raises serious questions.
After an extensive review of the record, unfortunately and sadly,
despite my great personal affection for the judge, his testimony before
this committee turned me around and changed my vote from yes to no. He
was so circumspect in his answers, so allied with the President's
position on every single issue, there was almost an eagerness to say, I
will do exactly what the President wants, that I worry Judge Gonzales
will be too willing to toe the party line even when the Attorney
General is supposed to be above party. The Attorney General and the
President are not supposed to be peas in the pod but, in short, Judge
Gonzales still sees himself as chief counsel to the President rather
than as chief law enforcement officer in the land, a very different
type position.
Time and time again, this administration has gotten itself in trouble
by going at it alone, by not seeking new opinions, by not reaching out,
by doing things behind closed doors in the Justice Department, whether
it was the total information awareness project, the TIPS Program, or
torture. This Justice Department has been burned by a curious
commitment to secrecy. I encouraged Judge Gonzales to be candid with
the committee when discussing these issues. I encouraged him to give us
some hope that he would run a very different Justice Department than
John Ashcroft. But, unfortunately, even a cursory review of his
answers--and I reviewed them more than once--reveals strict adherence
to the White House's line and not a scintilla of independence. If his
answers are any indication, once again, Judge Gonzales still sees
himself as White House Counsel rather than a nominee to be Attorney
General.

When push comes to shove, the Attorney General needs to stand up to
the White House. We live in critical times and face crucial tests. The
age-old struggle between security and liberty, which defines so many of
the Founding Fathers' debates is alive and kicking. In fact, at no time
since the internment of Japanese citizens in World War II has it been
more relevant. We should have open debate about where the line should
be drawn. We should not be afraid to confront the difficult questions
that face us.
I have gotten in trouble with some of my friends on the left for
suggesting there should be a reexamination of how we interrogate terror
subjects. If a terrorist knew where a nuclear bomb was in an American
city, and it was about to go off in 30 minutes, my guess is everyone in
the room would say, do what it takes to find out. But we just cannot
remake these rules behind closed doors.
Judge Gonzales's hearing was an opportunity for real debate on those
issues. Instead, we got canned answers. I have great respect for the
judge. The story of his life and the record of his achievements are
inspirations to all of us. I am mindful of the fact that if he is
confirmed, as I anticipate he will be, Judge Gonzales will become the
Nation's first Hispanic Attorney General. It is a tremendous success
story that makes this vote even more difficult.
When I called Judge Gonzales, last week, to tell him how I would be
voting, it was one of the more painful phone calls I have had to make
in a long time. He was understandably disappointed, but he was, as
always, a total gentleman. He assured me we would be working together
to solve our Nation's problems. He assured me he would prove me wrong.
I hope he does. But this is just too important a job at too critical a
time to have an Attorney General about whom I have such severe doubts.
I really have no choice but to, with sadness, vote no.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the Senator from
Washington is recognized.
Ms. CANTWELL. Mr. President, last week, I announced that I would
oppose the nomination of Alberto Gonzales to be the Attorney General. I
share many of the views on and reasons for opposing this nominee that
my other colleagues have detailed--among them, the very grave concerns
raised about Judge Gonzales's role in producing the so-called ``torture
memos.''
But, I rise today to share with the Senate a reason for opposing this
nominee that is particularly important to my home State of Washington.
It is a reason that has not gotten much attention, but it is an issue I
want to highlight because I feel Senators should know about it when
they cast their vote on this nominee.
Among the reasons I am opposing Mr. Gonzales is his connections to
Enron and his failure to commit to recuse himself from the Department
of Justice's ongoing Enron investigation.
The Attorney General of the United States, as the chief law
enforcement officer in the land, holds a special independent place in
the government. After carefully listening to Judge Gonzales during his
Senate hearings and reading his responses to questions, I do not have
confidence that a Justice Department under his leadership will conduct
the Enron investigations with sufficient vigor and independence.
We want our Attorney General to uphold the law no matter who the
criminal is no matter how politically inconvenient and no matter who
asks for his advice.
This administration's ties to Enron are common knowledge. In
audiotapes released last summer, we heard Enron traders bragging about
Enron's status as the number one contributor to the President's
election campaign in 2000. We know that former Enron executives even
had a hand in bankrolling the President's Inaugural festivities last
month. So I think it's important for my colleagues to also realize that
Judge Gonzales himself also had substantial ties to Enron while he was
an attorney in private practice and then a candidate for the Texas
Supreme Court.
Given the significance of this case and the past recusal of the
outgoing Attorney General, Judge Gonzales should have made clear his
intention to recuse himself from that investigation. Let me repeat this
important point. Attorney General Ashcroft knew to recuse himself
because of similar political ties to Enron.
Before his confirmation, I wanted the same assurances from Gonzales,
or at least an explanation of why these former professional and
political ties to Enron do not constitute grounds for recusal. I got
none.
Let me make a few comments about the status of Federal investigations
into the Enron mess, and why I believe it is so troubling that Judge
Gonzales has to date refused to recuse himself from this matter.
It's my belief that, to date, the Department of Justice has done a
good job in pursuing the case against Enron. I stood on this floor
about seven months ago and applauded the work of the Enron Task Force
when it handed down indictments of top executives including Ken Lay and
Jeff Skilling last summer.
And the U.S. Attorneys in Northern California have been equally
successful in bringing charges and securing guilty pleas from some of
the Enron traders

[[Page S933]]

implicated in the conspiracy to manipulate our Western power markets.
But this investigation is not finished. The Enron investigation must
be allowed to proceed, free from any potential political interference
from special interests, particularly the interests under investigation.
I would also note that we have not seen the same vigor--the same
pursuit of justice--by other departments and agencies within the
Administration, and in particular the Federal Energy Regulatory
Commission. FERC is charged with protecting American consumers from
precisely the types of fraud Enron perpetrated in our Nation's energy
markets.
FERC is also run by three Bush administration appointees who had ties
to Enron. In fact, the Senate Government Affairs Committee uncovered
Enron memos recommending their appointment to the White House.
To date, these FERC appointees have failed to take any meaningful
action to provide the victims of Enron's power market manipulations
with any measure of relief. At every step of the way, it has taken
public embarrassment to get FERC to pursue an Enron investigation of
any integrity. Or in the words of a November 2002 report by the Senate
Governmental Affairs Committee, ``Over and over again, FERC displayed a
striking lack of thoroughness and determination with respect to key
aspects of Enron's activities.'' Since then, the situation has only
deteriorated. FERC's Enron investigation to date has been marked by a
lack of aggressive action.
In fact, I'm going back to my office in just a few minutes to
participate in a conference call with officials from the Snohomish
Public Utility District in my home State of Washington. We are going to
air publicly, for the first time, new Enron audiotapes. Shockingly,
these Enron tapes were just discovered sitting in one of Enron's
Houston warehouses. They were left behind by the same Federal
regulators that are supposed to be defending our Nation's consumers
from the types of fraud Enron perpetrated in our energy markets.
Only a small portion of these new tapes have been processed.
But on these tapes, the American public will hear Enron employees
during the company's collapse bemoaning the fact they couldn't get
promoted unless they ``cooked the books;'' speculating that ``everyone
knew,'' and that ``nothing happened at Enron that Ken Lay didn't
bless.'' This is evidence that was left behind.
New evidence will also show Enron traders fabricating excuses to shut
down a power plant--on the very same day that rolling blackouts hit
California and disrupted the Western power market. The blackouts
affected at least half a million people that day. As we learned with
the recent Northeast/Midwest blackout, these are serious matters. Not
only do blackouts cost hundreds of millions of dollars in lost economic
activity, they pose serious risks to human health and safety. They are
no laughing matter. In my mind, this represents a whole new level of
callousness.
But what Enron did was not just disgraceful on a human level--it was
also illegal. It was a direct violation of power market rules and a
direct violation of a DOE emergency order issued by former Secretary
Bill Richardson the very same day.
And yet, our Federal agencies are not unearthing this new evidence.
The FERC remains content to sit on its hands, more than four years
after the Enron collapse. Utilities in the West are actually being sued
by Enron for even more money. Yet FERC stands by, while Washington
State ratepayers wait for the other shoe to drop.
The consumers in my State, in the States of Nevada and California,
deserve justice. But what they've gotten are years of process--a
procedural shell game.
We need more aggressive action from our Nation's top law-enforcement
officer.
This is why I was so deeply troubled to read Judge Gonzales's answers
to questions posed by Members of the Judiciary Committee in this
matter. I want to thank my colleague, the Senator from Wisconsin, Mr.
Feingold, for asking these important questions. In his answers, Judge
Gonzales would not state whether he would recuse himself, and he would
not be specific about how his former ties to Enron might impact the
Department of Justice's investigation of that company.
In his responses, Mr. Gonzales stated, ``I did some legal work for
Enron over 10 years ago. I am told the work was totally unrelated to
the collapse of the company.'' He added that ``it would be premature
for me to commit to recuse myself from ongoing Enron prosecutions.''
Mr. Gonzales was clearly asked to provide more specificity, more
details and more of a commitment on what Americans can expect from the
Justice Department leadership on the Enron investigation. These answers
of the nominee were not satisfactory.
I find this particularly troubling, given the fact Judge Gonzales has
a clear history of employment related and political ties to Enron, and
a track-record that leads me to question his judgment and his
independence from the President.
As I stated at the outset, we want our Attorney General to uphold the
law no matter who the criminal is no matter how politically
inconvenient--and no matter who asks for his advice.
So I will vote against Judge Gonzales's nomination today, for this
and other important reasons. But I am also here to note that the
Federal Enron investigation is not over. It is likely that Judge
Gonzales may be confirmed as Attorney General later today. Perhaps
Judge Gonzales will recuse himself after he is confirmed.
But whatever his decision, I am here today to put Judge Gonzales on
notice. If there is any hint whatsoever that the Enron Task Force is
being undermined, underfunded, or otherwise hindered, this Senator will
not stand for it. The Enron investigations must be allowed to proceed.
And this Senator will be watching every single step of the way.
This Senate deserves straight answers from the President's nominees.
Corporate criminals deserve to be prosecuted to the full extent of the
law. And the victims of Enron's fraud in our Nation's power markets
deserve relief.
What Enron did to my constituents in Washington and to countless
others across the Nation was disgraceful.
Given these issues, I have substantial lingering questions about
whether Mr. Gonzales would exercise independent judgment, especially
when a clear commitment to conduct investigations and uphold a strict
standard of conduct is needed.
I also have serious concerns about Judge Gonzales's legal judgment.
As White House Counsel, his office generated a legal opinion on whether
the President is bound by domestic and international law on torture,
which the government recently repudiated as legally faulty.
Such a repudiation calls Judge Gonzales's judgment into question,
judgment that is critically important for our country's top attorney.
It also suggests he is not independent of the President, which is
essential for his new Cabinet role. Further, Judge Gonzales's changed
position on the torture memos in the weeks before his confirmation
hearings appears to demonstrate political convenience, not a truly
self-reflective change in his thinking on these matters.
Had Judge Gonzales recognized the serious problems with the judgments
he made on these issues and given convincing assurances that he
understands that his new role will require a different approach and a
new allegiance to the law, I might have been convinced to defer to the
President on this nomination. Without those assurances, and a clear
commitment to ensure that there is no appearance that the Justice
Department may take a difference course on the Enron investigation, I
cannot support his nomination to be the next Attorney General of the
United States.
In conclusion, many of my colleagues have spoken about this
nomination. They have talked about a variety of issues, and certainly
one of those issues is the independence of the Attorney General. That
is clearly an issue that is at the forefront of my interest today.
The reason is because ongoing in the Department of Justice, and I
wish ongoing in the Federal Energy Regulatory Commission, is an
investigation of Enron and Enron fraud. This is an issue that Attorney
General Ashcroft decided, when taking office--and the evidence started
to pour in of market

[[Page S934]]

manipulation--he basically looked at his record and background of
having taken contributions from Enron and he recused himself from the
Enron investigation and task force.
Now we have before us a new Attorney General nominee who not only has
accepted campaign contributions from Enron, he actually worked to
represent them at the law firm in his private practice, specifically
working for the Enron company as an outside counsel.
If our past Attorney General clearly identified a conflict of
interest and basically stepped aside to make sure he was not in any way
unduly influencing the Enron investigation, why should not this nominee
have clearly done the same thing--in particular, giving answers to the
Judiciary Committee that he would recuse himself?
I am not a member of the Judiciary Committee. I am a past member of
that committee, but I certainly asked my colleagues to submit questions
to Judge Gonzales asking him if, in fact, he would recuse himself and
to be explicit about any other ways in which he could ensure that this
Enron investigation continued with its independence. Judge Gonzales
would not commit to recusing himself from this situation.
Because he will not recuse himself, I cannot, today, give him my vote
knowing that he will achieve the independence this agency so much needs
to have when it comes to this investigation.
Just today, this very day, Snohomish County PUD will be releasing new
information, new audiotapes from Enron employees that just happened to
be left behind at the Enron Houston facility that investigators forgot
to claim. These tapes actually have Enron employees discussing the fact
that superiors, Enron traders, had asked them to cook the books.
We also will see other tapes and information that basically says that
various, what are called, cogeneration facilities, that Enron had
business relationships with, were actually asked to take generation
offline, to come up with a scheme of why they should stop production of
these powerplants. The result was a blackout in California in the next
few days following this time period--something that is very troubling
to us in the Northwest.
We have spent billions of dollars of economic impact, and we want an
investigation to continue to take place. We want the independence that
the Federal Energy regulators should have in this case in determining
that just and reasonable rates have not been charged by Enron. We want
the Department of Justice to do its job, unfettered by any kind of
influence, and continue to pursue all those involved with the Enron
case until justice is given and ratepayers have relief in the West.

So it is unfortunate that we cannot get Judge Gonzales to make a
commitment up front about where he is going to be in recusing himself
on this very important matter that has had great fiscal consequence to
the people of the Northwest.
I wish, given all the other aspects of this nomination, I could
overlook this issue or other questions that some of my colleagues have
brought up, but I cannot.
As a young woman, when I first learned about our Attorney General, at
a time and era when a White House and President and outside influence
said that the Attorney General should just follow the line of what was
happening in the White House, we had Attorneys General who decided,
instead of not carrying out the law, they were not going to be
influenced by the White House; that they would rather resign than not
carry out the law. That is the kind of independence we want to see in
an Attorney General.
The case is clear against Enron. The case for recusing himself is
clear. Unfortunately, I cannot support the nomination of Alberto
Gonzales today because I am not sure he will recuse himself in this
case.
The ratepayers of Washington State need relief. We do not want to
continue to have to be the policemen on the beat investigating this
case, finding new evidence, proving that wrongdoing has happened,
continuing to prove how much we have been hurt. We want Federal
regulators to do their job and give us relief.
I ask unanimous consent that Mr. Gonzales's written responses to
Judiciary Committee questions be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Ethical Issues

1. During your service as Justice of the Supreme Court of
Texas, it has been reported that you on occasion accepted
donations from parties interested in cases before you. For
example, in 2000, you reportedly accepted a $2,000 donation
from the Texas Farm Bureau, which ran the defendant insurance
company in Henson v. Texas Farm Bureau Mutual Insurance, in
the period between oral arguments and decision. You also
reportedly accepted a $2,500 donation from the law firm
defending the insurer in another case, Embrey v. Royal
Insurance, just before oral arguments.
a. Are these reports accurate:
Response: In Texas, the voters elect the Justices of the
Supreme Court. My contributors, as well as those of every
other Justice, are a matter of public record. I am confident
that during my service as a Justice on the Supreme Court of
Texas, I complied with all legal and ethical requirements
regarding acceptance of campaign contributions.
b. Do you think it is ethical or appropriate for a judge to
accept donations from parties appearing before him?
Response: Please see my response to 1a, above.
2. The Department of Justice is currently pursuing multiple
prosecutions related to Enron's collapse into bankruptcy.
Currently, voluminous evidence related to Enron's
manipulation of Western electricity markets remains under a
Department of Justice sought protective order, out of public
view. This includes thousands of hours of Enron audiotapes as
well as reams of emails from the files of traders and senior
executives. Based on the small amount of materials publicly
released thus far, it is reasonable to conclude this evidence
will provide more insight into the inner-workings of Enron's
schemes to manipulate Western power markets. While there may
be reasons to withhold some of this evidence in light of
ongoing Department criminal prosecutions, this material is
also of extreme importance to regulatory agencies such as the
Federal Energy Regulatory Commission and to parties
attempting to secure financial relief from power prices
resulting from Enron's schemes. Likewise, it is of interest
to Congress, as we attempt to craft legislation that would
prohibit future Enrons from defrauding American investors and
ratepayers.
a. Please detail your previous contacts with Enron Corp.
and its executives, both in your previous career in Texas as
well as in your role as White House Counsel?
Response: As an attorney at Vinson & Elkins, I did some
legal work for Enron over ten years ago. I am told the work
was totally unrelated to the collapse of the company seven
years later. I had contacts with certain Enron executives in
connection with my election to the Texas Supreme Court. I
also had contact with Enron officials in connection with my
civic work in the Houston community. I do not recall any
contacts with Enron and its executives in my role as White
House Counsel.
b. Given these contacts, do you plan to recuse yourself
from involvement in ongoing Enron prosecutions?
Response: If confirmed, I would take very seriously my
obligation to recuse myself from any matter whenever
appropriate. I would also treat with equal seriousness the
charge that the Attorney General has to enforce the law
fairly and equally on behalf of all Americans. It would be
premature for me to commit to recuse myself from ongoing
Enron prosecutions without knowing all of the facts and
without consulting with Department personnel about recusal
practice and history.
c. If you do intend to recuse yourself, who will be the
point of contact for Members of the Senate interested in
exercising oversight of the Department's handling of this
matter?
Response: If confirmed, I would consult the attorneys at
the Department handling this matter regarding congressional
oversight.
d. Will you commit to releasing to Congress and the public
the maximum amount of evidence now under seal at the earliest
possible date?
Response: If confirmed, I would consult the attorneys at
the Department handling this matter regarding the release to
Congress of any sealed evidence.

The PRESIDING OFFICER. The Senator from New Mexico is recognized.
Mr. BINGAMAN. Mr. President, there are strong reasons that cause me
to want to support the nomination of Alberto Gonzales. He is clearly
well educated. He has the experience and credentials to be our Attorney
General. He clearly has the confidence of the President, and, as a
general matter, the President should be given broad discretion in
choosing his Cabinet.
Alberto Gonzales's personal history, as the son of immigrant parents,
is truly inspiring, and he would be the first Hispanic Attorney General
in our Nation's history.
So under any normal circumstances, these reasons would be more than
adequate to gain my support for this nomination.

[[Page S935]]

But the fact is that the policies of this administration, which in
some cases Judge Gonzales has championed, and in other cases he has
willingly acquiesced in, have constituted a sad chapter in our Nation's
history. This administration's willingness to evade and sidestep our
historic commitment to the rule of law is unfortunate, indeed, and I
fear that a vote for the nominee would be interpreted as condoning
those reprehensible policies.
In July of 2003, I spoke on the Senate floor about my concerns with
the policies and practices of the administration with regard to the
detention of three categories of individuals: immigrants, persons
detained as material witnesses, and persons detained as enemy
combatants.
This morning I reviewed those comments, and I believe today my
concerns regarding the failure to afford basic due process rights that
I discussed then are well founded.
The administration, in reaction to the terrorist attacks of September
11, 2001, chose to argue against any and all legal protections against
arbitrary and abusive exercise of the power of the Government to
incarcerate individuals. It made those arguments by using the rationale
that we were a nation at war and that the law of war overrode the rule
of law as we have known it.

Judge Gonzales played a key role in developing the legal
justifications for some of those policies. He strongly supported the
decision to hold individuals unilaterally deemed enemy combatants by
the President, including American citizens, indefinitely without
judicial review. He advised the Judiciary Committee that he accepted
the views in the Department of Justice memo that significantly limited
the definition of torture and drastically expanded the President's
power to overrule Federal and international restrictions to its use.
In remarks to the Standing Committee on Law and National Security of
the American Bar Association in February 2004, Alberto Gonzales argued
that the ``law of war'' justified the administration's position that
the President has virtually unfettered authority to designate
individuals as ``enemy combatants'' and then to incarcerate those
individuals ``for the duration of hostilities.''
He went on to state:

They need not be guilty of anything; they are detained
simply by virtue of their status as enemy combatants in war.

Since that speech was given, the Federal courts have soundly rejected
the proposition that the Government could hold individuals without
according them the right to challenge the basis of their detention. In
two cases decided this last June, Rasul v. Bush and Hamdi v. Rumsfeld,
the Supreme Court reaffirmed the right of all individuals detained
within the territorial jurisdiction of the United States to file a
petition for a writ of habeas corpus and inquire into the legality of
their detention. Indeed the right to challenge the Government's
deprivation of a person's liberty is fundamental to our Nation's
commitment to justice.
In the Hamdi case, the administration maintained that the President's
authority to hold enemy combatants included American citizens and that
Federal courts could provide minimal judicial oversight. The Government
argued that a simple affidavit by a Department of Defense official
alleging that Hamdi was involved in hostilities in Afghanistan was
sufficient to indefinitely deprive an American citizen of his liberty.
According to this administration, it was neither proper nor necessary
to hold any factual or evidentiary hearing or to give Hamdi an
opportunity to rebut the Government's assertions.
The Supreme Court disagreed and held that an American detained as an
enemy combatant must be given a meaningful opportunity to contest the
factual basis for his detention before a neutral arbiter. In
reaffirming ``the fundamental nature of a citizen's right to be free
from involuntary confinement by his own government without due process
of law,'' the Court sent a clear message to the administration that ``a
state of war is not a blank check for the President when it comes to
the rights of our Nation's citizens.''
In Rasul, which involved the cases of foreign nationals held in
Guantanamo for over 2 years, the administration argued that despite the
fact the United States has exercised exclusive jurisdiction over
Guantanamo since 1903, Federal courts have no jurisdiction to hear
their claims because Cuba technically retained sovereignty in the area.
Once again, the Supreme Court disagreed and granted the detainees the
right to demonstrate that they were being held contrary to domestic and
international law.
Our failure to afford these individuals a right to be heard and to
assert their innocence has in certain cases resulted in the unnecessary
and lengthy detention of people who were merely in the wrong place at
the wrong time. According to a Wall Street Journal article dated
January 26 of this year:

Commanders now estimate that up to 40% of the 549 current
detainees probably pose no threat and possess no significant
information.

Whether or not this number is completely accurate, it demonstrates
the importance of providing individuals with the right to challenge the
Government's claims and the right to refute the basis for their
detention.
As many of my colleagues have pointed out, the administration's
position regarding the treatment of detainees is as troubling as its
position on its unfettered right to incarcerate. The Justice
Department, through its Office of Legal Counsel, on August 1, 2002,
issued its now discredited and withdrawn memorandum regarding standards
of conduct for interrogation. That document provided legal sanction for
abuse of prisoners by narrowing the definition of what we would
recognize as torture under the Convention against Torture and other
Federal law. It is true that this memorandum was prepared for Alberto
Gonzales and not by him, but there is no indication that he disagreed
with its conclusions. In fact, when asked about the memorandum in his
confirmation hearing, he stated:

I don't have a disagreement with the conclusions that were
reached by the Department.

Removing the bright line that has guided our troops for the last 60
years increases the chances that other countries will refuse to afford
our troops legal protections in future conflicts and enhances the
likelihood that they will be made subject to harsh interrogation
techniques.
MG Mel Montano, former head of the National Guard in the State of New
Mexico, in his letter to the Judiciary Committee eloquently gave voice
to those concerns. He said:

I was among 12 retired Admirals and Generals . . . who
wrote to you urging that you closely examine Judge Gonzales's
role in setting US policy on torture during the confirmation
hearing.
At that hearing, Judge Gonzales did not allay concerns
about his record. To the contrary, his evasiveness and memory
lapses raised even more concerns. Judge Gonzales continues to
maintain that he can't remember how the infamous torture memo
was generated. He has refused to explain the language in his
own memo which implied that rejecting the applicability of
the Geneva Convention would insulate US personnel for
prosecution of war crimes they might ``need'' to commit. And
he asserts that the Convention Against Torture's prohibition
on cruel and inhuman treatment doesn't apply to aliens
overseas.
In my view these positions put our servicemen and women--
already facing enormous danger--at even greater risk. . . .

The Constitution is clear that the President ``will take care that
the laws be faithfully executed.'' The obvious first responsibility of
the Counsel to the President is to advise him concerning what is meant
by that obligation.
As regards the basic protections in our Constitution and laws against
incarceration and abuse of individuals by the Government, both the
President and his legal counsel have failed in that duty. I am
compelled to vote no on the nomination.
I ask unanimous consent that the full letter from Major General
Montano to the Judiciary Committee be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Major General Melvyn Montano,

Ret. USAF National Guard,

Albuquerque, NM, January 25, 2005.
Hon. Members of the Committee on the Judiciary,
U.S. Senate Committee on the Judiciary, Washington, DC.

An Open Letter to the Senate Judiciary Committee

Dear Senators: I am writing to urge that you reject the
nomination of Alberto

[[Page S936]]

Gonzales for Attorney General. I understand that some
Hispanic groups support Judge Gonzales's nomination and have
urged you to confirm him. I write, as a Hispanic and as a
military officer and veteran, to offer a different
perspective.
I know what it feels like to be the first Hispanic named to
an important leadership position in this country. I was the
first Hispanic Air Nationa1 Guard officer appointed as an
adjutant general in the United States. I am a Vietnam veteran
and served 45 years in the military, including 18 years in a
command position. I welcome the prospect of more Hispanics
serving in leadership positions in the government, and I
respect Judge Gonzales's inspiring personal story. But I
reject the notion that Hispanics should loyally support the
nomination of a man who sat quietly by while administration
officials discussed using torture against people in American
custody, simply because he is one of our own.
I was among 12 retired Admirals and Generals, including
former Chairman of the Joint Chiefs of Staff, General John
Shalikashvili (Ret. USA), who wrote to you urging that you
closely examine Judge Gonzales's role in setting U.S. policy
on torture during his confinnation hearing.
At that hearing, Judge Gonzales did not allay concerns
about his record. To the contrary, his evasiveness and memory
lapses raised even more concerns. Judge Gonzales continues to
maintain he can't remember how the infamous torture memo was
generated. He has refused to explain the language in his own
memo which implied that rejecting the applicability of the
Geneva Conventions would insulate U.S. personnel from
prosecution for war crimes they might ``need'' to commit. And
he asserts that the Convention Against Torture's prohibition
on cruel and inhuman treatment doesn't apply to a1iens
overseas.
In my view, these positions put our service men and women--
already facing enormous danger--at even greater risk. In my
capacity as Major General of the National Guard, I oversaw
4,800 National Guard personnel. When I think about how many
of our troops fighting in Iraq today are drawn from the
National Guard, it angers me that the danger they face has
been increased as a resuIt of the policies Judge Gonzales has
endorsed. I wonder, if Judge Gonzales' children grow up to
serve in the military, would he be so cavalier in dismissing
the Geneva Conventions as obsolete?
Some have cynically suggested that Americans who question
Judge Gonzales's record on these issues do so because they
are anti-Hispanic. I reject this view. My own concerns about
Judge Gonzales' fitness to serve as Attorney General grow
ftom a deep respect for American values and the rule of law.
Judge Gonzales should be evaluated on his record, not his
ethnicity. On the basis of that record, I urge you to reject
his nomination.
Sincerely,
Major General Melvyn Montano.

Mr. NELSON of Florida. Mr. President, while it is true, as many of my
colleagues have pointed out, that Alberto Gonzales has chartered an
impressive path, the son of migrant workers rising from humble
beginnings to establish an impressive record as a judge and a lawyer, I
do not cast my vote because of his life story.
I cast my vote in favor of Judge Gonzales because of two reasons: I
believe it is the prerogative of the President to choose who is to
serve in his Cabinet, and I believe Judge Gonzales is a smart and
qualified lawyer.
Judge Gonzales served in the U.S. Air Force, graduated from Harvard
Law School, was a partner in a prestigious law firm, a justice on the
Texas Supreme Court, and the chief lawyer for Governor Bush and
President Bush.
As a justice on the Texas Supreme Court, I have seen evidence of his
independence and commitment to the rule of law in reaching decisions on
controversial issues like parental notification for a minor seeking to
terminate a pregnancy. While he may oppose it personally, he was able
to set those feelings aside and issue a ruling based on the law. I
believe that this is the Judge Gonzales who will serve as this Nation's
Attorney General. I believe that this Judge Gonzales will appreciate
the very important role he is to play as the top law enforcer who is
charged with the duty of being the ``people's lawyer.''
The U.S. Attorney General serves at the pleasure of the President,
but he does not serve to please the President. I believe that Judge
Gonzales, the man I have met several times, is able to appreciate this
important difference and will be faithful to fulfilling his
responsibilities to enforce our laws and protect our freedoms.
I, as many of my colleagues were, was very troubled by the ``Bybee
memo'' submitted by the Department of Justice and the memo Judge
Gonzales drafted advising the White House as to the inapplicability of
the Geneva Conventions.
As the President's lawyer, Judge Gonzales's responsibility was to
represent the President and to provide legal advice in light of
questions presented to him by the President.
I believe that Judge Gonzales understands the different role he is to
play as Attorney General in representing the people's interest as a
nation that honors the rule of law.
Mr. DORGAN. Mr. President, although Congress has the responsibility
to advise and consent on the confirmable posts of Cabinet Secretaries,
I have historically cast my vote in a manner that provides wide
latitude for a President to select his Cabinet team. I have voted for
Cabinet nominees with whom I have very substantial and deep
disagreements because I believe a President should be able to select a
team of his choice to pursue his administration's goals.
But there are those occasions where it is important for the Congress
to express its independent judgment about the record and the
qualifications of a Cabinet nominee.
That is the case with the nominee the President has sent us for the
post of Attorney General.
I have met with Judge Gonzales on a number of occasions, and I think
he is smart and capable and has served the President loyally for a long
period of time. But I am very troubled by the results of the Judiciary
Committee hearings on the nomination of Judge Gonzales. I believe there
are serious questions about the role of Judge Gonzales in the
development of guidelines defining ``torture'' in the war on terror
that should be unsettling to all Americans. Judge Gonzales was evasive
in answering direct questions about these issues and refused to release
all of the information that has been requested by the Judiciary
Committee.
With respect to civil liberties and issues relating to how our
Government conducts itself, I want an Attorney General who will follow
the law and not look for cracks or crevices in the law that will enable
an administration to pursue its own course. Frankly, and regrettably, I
think that Judge Gonzales in his work in the White House has not
demonstrated the willingness to be independent, nor has he shown the
concern about civil liberties that I want to see in an Attorney
General.
These are difficult and uncertain times for our country. The war on
terrorism is difficult and will likely be lengthy. It is important we
have the tools available to combat terrorism, but it is also equally
important for us to preserve our civil liberties and protect the
constitutional rights of our citizens even as we wage the war on
terrorism. For that reason, I believe it is critical to have an
Attorney General who will understand that his responsibility is not to
the administration, but rather to the Constitution.
Because of my concern for all of these issues, I cannot vote to
confirm Judge Gonzales for the post of Attorney General. It is unusual
that I vote against a President's choice for a Cabinet post, but I
believe this an unusual time and circumstance, and I believe it is
critical that we have an Attorney General who can resist the efforts of
those who would diminish our civil liberties as we wage this war on
terrorism.
Mr. KERRY. Mr. President, today we consider the nomination of Judge
Alberto Gonzales--President Bush's selection for Attorney General of
the United States. I will oppose this nomination for several reasons.
Judge Gonzales's deep involvement in formulating the administration's
detention and interrogation policies and his refusal to candidly answer
questions about these matters concern me.
As White House Counsel, Judge Gonzales played a pivotal role in
shaping the administration's policies on the detention and
interrogation of enemy prisoners. In 2002 Judge Gonzales advised the
President that the Geneva Conventions did not apply to terror suspects,
and described some of the treaty's provisions as ``quaint.'' This
dismissive approach to our international commitments laid the basis for
President Bush's decision to treat terror suspects as ``unlawful enemy
combatants.'' In casting aside the Conventions, Judge Gonzales opened a
Pandora's Box that brought the country and American troops less
security.
Separately, the Department of Justice circulated a memo it had
written--

[[Page S937]]

at Judge Gonzales's request--that provided an extremely narrow
definition of torture. The memo was widely condemned and contrary to
the plain language of the U.S. anti-torture statute and all legal
precedents. When asked about this memo at his confirmation hearing,
Gonzales said he did not recall, ``whether or not I was in agreement
with all of the analysis.''
Do these revelations necessarily mean that Judge Gonzales is directly
responsible for the prisoner abuse scandal that has damaged our
national security and tarnished our Nation? Of course not. But his
actions--at the very least--helped to create the environment in which
the Abu Ghraib scandal took place. The result is less certain
intelligence and more danger for American forces around the world.
I was struck during the hearings on Judge Gonzales's nomination when
Senator Leahy asked if leaders of foreign governments could torture
U.S. citizens if they thought it necessary to protect their own
national security. Judge Gonzales replied: Senator, I don't know what
laws other world leaders would be bound by. And I think it would--I'm
not in a position to answer that question.
I wrote to Judge Gonzales asking him to clarify his answer. He
responded, in fact that: international law forbids the use of torture.
All parties to the Convention Against Torture have committed not to
engage in torture and to ensure that all acts of torture are offenses
under their criminal law. But it does not address the heart of the
issue. Judge Gonzales interpreted U.S. and international law to suggest
that U.S. citizens could conduct torture when the President of the
United States gave them authority to do so. In doing so, he undermined
the legitimacy of the very international norms he asserts would protect
U.S. citizens. His assertions collapse under the weight of their own
flawed logic.
This is not simply my judgment alone, but the judgment of some of
America's most distinguished, retired military officers--including
General John Shalikashvili, the former Chairman of the Joint Chiefs of
Staff, General Joseph Hoar, former Commander-in-Chief of U.S. Central
Command, and Lt. General Claudia J. Kennedy, the former deputy Chief of
Staff for Army Intelligence. In an open letter to the Senate Judiciary
Committee, they wrote:

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

Judge Gonzales's interpretation of our commitments under U.S. and
international law has been widely condemned in the United States and
abroad, including by members of the State and Defense Departments. He
is not an appropriate selection for the Attorney General of the United
States.
Judge Gonzales's confirmation process presented him with an
opportunity to reassure the country that as Attorney General he would
uphold and enforce the laws that prohibit torture. Instead he offered
evasive and overly legalistic answers. Judge Gonzales's refusal to
answer questions about administration policy--either in oral testimony
or in written responses to questions--raises doubts about his
commitment to the rule of law.
His lack of candor before the Judiciary Committee leaves many
outstanding questions about his role in determining administration
policy. One can only conclude that either he lacks a fundamental
understanding of U.S. and international law, which I believe to be
untrue, or he is dismissive of its applicability as it relates to the
President.
We have seen this approach taken by this administration before. They
do not consult, they do not confer, they do not exercise good judgment
and that is the end of the story. The rest of us are left to deal with
the consequences. The policies Judge Gonzales favored have tarred the
image of America in the world--not made us safer. They have placed our
troops at even greater risk--not protected them. The choices he made as
White House Counsel showed unacceptable judgment.
Mrs. CLINTON. Mr. President, there has been a lot of discussion
throughout this debate of the personal story of White House Counsel
Alberto Gonzales, who has been nominated by President Bush to serve as
the next Attorney General of the United States.
I agree that Judge Gonzales's life story embodies the American dream.
Judge Gonzales is the son of immigrants, and lived in a home with his
parents and eight brothers and sisters that I am sure had a lot of love
but that did not have a lot of comfort, with no running water and no
telephone. Thanks to his hard work and dedication, he went on to
graduate from Rice University and Harvard Law School; he served as the
Texas Secretary of State and a Justice on the Texas Supreme Court; and
of course he became White House counsel in 2000.
This is an extremely impressive record of personal accomplishment,
and I admire Judge Gonzales for his life story, which proves that hard
work can take you anywhere in this country, no matter where you start
out on the economic ladder. It is inspiring not only for Hispanic
Americans, but for all Americans.
But while a Cabinet nominee's personal story is relevant to our
consideration of whether that nominee should be confirmed, I believe
that our constitutional responsibility to advise and consent requires a
more thorough look.
We in the Senate owe an obligation to the American people to consider
and evaluate fully an Attorney General nominee's current policy and
legal views, as well as his or her prior views and actions taken
concerning relevant issues.
I have reviewed Judge Gonzales's record and his responses, or lack of
responses, to the many thoughtful questions posed by members of the
Senate Judiciary Committee. On the basis of his professional record and
his unwillingness to answer critical questions, I am compelled to
oppose his nomination.
Judge Gonzales's record as White House counsel contains misjudgments
and misreadings of U.S. and international law that were so grievous as
to have shaken the conscience of our Nation and the bedrock of the most
fundamental aspects of our democracy.
Judge Gonzales advised President Bush in January 2002 that the Geneva
Conventions did not apply to the conflict in Afghanistan. He wrote that
the ``war on terrorism'' offers a ``new paradigm [that] renders
obsolete'' the Geneva Convention's protections. Memos prepared under
his direction that same year recommended official authorization of
cruel interrogation methods including: waterboarding, feigned
suffocation, and sleep deprivation.
In response to a draft memorandum prepared and circulated by White
House Counsel Gonzales on the applicability of the Geneva Convention to
the conflict in Afghanistan, then-Secretary of State Colin Powell, who
served our Nation for decades with distinction both in and out of
uniform, prepared a memo outlining his deep concerns with both Judge
Gonzales's assertions and his reasoning.
Secretary Powell wrote that he was ``concerned that the draft
[memorandum] 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.'' The Secretary also noted a number of
significant inaccuracies in the draft memorandum, concerning previous
applications of the Geneva Convention.
In discussing the option of declaring that the Geneva Convention does
not apply, Secretary Powell noted a number of key concerns, including
that doing so ``would 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, both in this specific
conflict and in general.''
Secretary Powell also noted many other major disadvantages of
pursuing such a position, including the high cost in terms of a
negative international reaction, which would hinder the ability of the
United States to conduct its foreign policy, and noting that the policy
would undermine public support among critical allies.

Judge Gonzales dismissed out-of-hand these concerns, as well as
others raised by senior members of the military, and recommended that
the Geneva Conventions do not apply.

[[Page S938]]

I believe that all Members of this body strongly support our men and
women in the military. As a member of the Armed Services Committee,
however, I feel a particular personal obligation to do my utmost to
ensure that our government does not do anything that unnecessarily puts
our troops in harm's way; that diminishes our standing among our
allies, from whom we have asked and will continue to ask much in
helping us fight the global war on terror; or that blurs the values
that distinguish us from our enemies, whose depraved actions and
nihilistic morality stand in stark contrast to our Nation's historic
values and conduct.
In serving as the President's top legal adviser on matters of both
domestic and international policy and law, Judge Gonzales had that
obligation as well. Unfortunately, I believe he fell short of meeting
that obligation and let the American people, and especially America's
men and women in uniform, down.
These are not just my views but the views of some retired senior
members of our military. In an open letter to the Senate Judiciary
Committee, this group of retired military leaders expressed their deep
concern with this nomination. They noted his significant role in
shaping U.S. detention and interrogation policies and operations in
Afghanistan, Iraq, Guantanamo Bay and elsewhere and concluded, ``it is
clear that these operations have fostered greater animosity toward the
United States, undermined our intelligence gathering efforts, and added
to the risks facing our troops serving around the world.'' Their open
letter went on to say,

[p]erhaps most troubling of all, the White House decision to
depart from the Geneva Conventions in Afghanistan went hand
in hand with the decision to relax the definition of torture
and to alter interrogation doctrine accordingly. Mr.
Gonzales' January 2002 memo itself warned that the decision
not to apply the Geneva Convention standards ``could
undermine U.S. military culture which emphasizes maintaining
the highest standards of conduct in combat, and could
introduce an element of uncertainty in the status of
adversaries.'' Yet Mr. Gonzales then made that very
recommendation with reference to Afghanistan, a policy later
extended piece by piece to Iraq. Sadly, the uncertainty Mr.
Gonzales warned about came to fruition. As James R.
Schlesinger's panel reviewing Defense Department detention
operations concluded earlier this year, these changes in
doctrine have led to uncertainty and confusion in the field,
contributing to the abuses of detainees at Abu Ghraib and
elsewhere, and undermining the mission and morale of our
troops.

Almost as troubling to me as the advice Judge Gonzales gave the
President as White House counsel is his unwillingness to respond to
important questions posed by members of the Senate Judiciary Committee.
During his nomination hearing before the Committee, Judge Gonzales was
presented with repeated opportunities to repudiate his prior positions,
and to respond to legitimate concerns. He consistently refused to do
so. He also refused to respond freely to important written questions
submitted by Judiciary Committee members that remained unanswered after
the hearing.
Judge Gonzales's unwillingness to answer questions or to submit
himself fully to the nomination process has extended beyond his
dealings with the Judiciary Committee. The Congressional Hispanic
Caucus has announced that it will not support his nomination, because
Judge Gonzales refused to meet with the Caucus or address their
questions. According to the White House, Judge Gonzales was ``too
busy'' to meet with the CHC.
The CHC has determined that ``the Latino community continues to lack
clear information'' about how Judge Gonzales would influence policies
important to the Latino community. It is for this same reason that the
New York-based Puerto Rican Legal Defense & Education Fund has withheld
its endorsement from Judge Gonzales. PRLDEF signed a letter prior to
Judge Gonzales's hearing before the Judiciary Committee, identifying
serious concerns about his nomination. PRLDEF reports that Judge
Gonzales has still not adequately addressed these concerns.
I believe the Congress and the American people deserve much more from
a nominee who seeks to become the Nation's chief law enforcement
officer.
What saddens me the most is that Judge Gonzales is an accomplished
and bright public servant, and the circumstances that have forced me to
oppose his nomination were eminently avoidable, had Judge Gonzales
simply met his basic obligations as a lawyer and as a nominee.
Underlying my opposition to Judge Gonzales's nomination as Attorney
General is the fact that as White House Counsel, one of the most
important legal positions in the Nation, Judge Gonzales had a firm
duty, as do all lawyers, to advise his client in this case President
Bush with independent, professional judgment grounded in law, and based
upon standards of morality and decency.
Indeed, the American Bar Association's Model Rules of Professional
Conduct speak explicitly to the role of lawyers as counselors and
advisors. One of those rules states that ``[i]n representing a client,
a lawyer shall exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law
but to other considerations such as moral, economic, social and
political factors that may be relevant to the client's situation.''
The duty to exercise independent judgment and provide informed advice
to one's client is a duty that all lawyers must uphold; lawyers are
compelled to speak the truth as they independently see it, and not
simply parrot back what they believe their clients want to hear.
I believe that as White House counsel, Judge Gonzales breached that
duty, not only to his client President Bush, but to the American
people. He advised that the President adopt a number of incorrect legal
positions that were wrong on the law and wrong morally. And he did so
on some of the most important issues confronting our Nation, at a time
when thousands of young Americans fighting to promote democracy and
freedom in Afghanistan and Iraq and around the world were at risk of
mistreatment if captured. We cannot control the behavior of our
enemies, but we can avoid giving them any excuse or rationale to
mistreat Americans. And we can avoid giving them any basis on which to
claim there is no difference between us and them.
For all of these reasons, I must oppose this nomination and ask my
colleagues to do the same.
Mrs. BOXER. Mr. President, I begin by thanking my colleagues on the
Judiciary Committee who did the hard work of exhaustively examining the
nominee's record. They have done what the Constitution requires of us
and the Founders intended--that Senators take seriously their role in
giving advise and consent on members of the President's Cabinet.
The Attorney General is our Nation's chief law enforcement officer,
tasked with upholding the Constitution and our laws.
While I believe Mr. Gonzales has a truly remarkable personal story,
the poor judgment he has exercised in his role as White House Counsel
has resulted in a serious consequences that cannot simply be overlooked
when considering his nomination.
I will be voting against Mr. Gonzales for two main reasons.
First, Mr. Gonzales was the legal architect of the administration's
policies on torture.
In 2002, when the intelligence community sought legal guidance about
interrogation techniques, Mr. Gonzales asked the Justice Department to
come up with legal justification for abusive interrogation tactics. The
torture memo was drafted at his request and tacitly accepted by Mr.
Gonzales. The Defense Department then used that memo to justify
horrific and abusive interrogation tactics in Iraq, Afghanistan, and
elsewhere.
This memo sets forth a position so outlandish that even the Dean of
Yale Law School has said that much of Saddam's Hussein's horrific
abuses--like cutting off fingers, electrical shock, branding and
burning of skin--would not meet the memo's definition of torture.
Mr. Gonzales has never clearly repudiated this memo even though it
has been a stain on our law and national reputation. Mr. Gonzales was
asked about this memo at his confirmation hearings before the Judiciary
Committee. Senator Leahy specifically asked him if he agreed with the
memo's very narrow reading of the law about what constitutes torture.
Mr. Gonzales replied: ``I don't recall today

[[Page S939]]

whether or not I was in agreement with all of the analysis, but I don't
have a disagreement with the conclusions then reached by the
Department.'' Mr. Gonzales's response was completely unacceptable.
It was his acceptance of this memo that formed the basis of
administration policy for 2 years until the Department of Justice
repudiated it on December 30, 2004, 1 week before Mr. Gonzales's
hearings.
Second, Mr. Gonzales played a central role in shaping the Bush
administration's policy toward detainees.
He called the Geneva Conventions ``quaint'' and ``obsolete''. And he
advised President Bush to deny prisoners the protections under the
Geneva Conventions, which had been the unbroken practice of the United
States for over 50 years, and which have protected our soldiers since
1949.
He did this over the objection of Secretary Powell and State
Department legal counsel. They warned that this advice could undermine
military culture, generate confusion about how to treat detainees, and
ultimately lead to abuse. Tragically, this is exactly what happened.
The torture and other abuses of prisoners in Iraq and Afghanistan
have done immeasurable damage to America's standing in the world, have
undermined our military rules and traditions, and exposed our own
soldiers and citizens to greater risks.
I cannot support a nominee who has done so much damage to America's
fundamental values and moral leadership in the world, and has taken
actions and positions that put our soldiers and citizens at greater
risk.
Mr. CORZINE. Mr. President, today we are considering the nomination
of Alberto Gonzales to be the next Attorney General of the United
States. Like many of my colleagues, I was inclined to support Judge
Gonzales's nomination. I have had several dealings with Judge Gonzales
and each time I have found him to be both cooperative and a gentleman.
He has been extremely helpful and gracious in our mutual effort to fill
the vacancies on the New Jersey Federal bench, and for that I am
thankful.
Unfortunately, I cannot in good conscience support his nomination.
Even though my personal interactions with Judge Gonzales have always
been positive and productive, I have serious reservations and concerns
about his role in the administration's attack on our laws and, more
importantly, our sensibilities of what is right and just.
My vote against Judge Gonzales is not a vote against the man. In many
ways, Judge Gonzales's story is the American success story. He grew up
of modest means, the son of immigrants who came to this country in
search of a better life. Judge Gonzales would not disappoint his
parents. He has persevered academically and professionally, displaying
a work ethic that would see him rise to the upper echelons of his
profession and earn the trust and confidence of a President.
Yet while Judge Gonzales has ably served President Bush as his
Counsel, as Attorney General his duty will be to the American people.
And therein lies my concern.
As White House Counsel, Judge Gonzales played an integral role in
formulating the Bush administration's policy on coercive interrogations
in its war on terror. He advised the President to suspend the
application of the Geneva Conventions, calling these international
standards for humane treatment of detainees ``quaint'' and
``obsolete.'' He then tasked the Department of Justice with the job of
identifying legal authority to justify the harsh interrogation tactics
that became an international stain on our country's once proud moral
standing in the world.
The ramifications of this abhorrent policy condoning torture cannot
be downplayed. The United States has the most to lose by turning its
back on the Geneva Conventions. Not only does the position advocated by
the administration prevent the United States from claiming the moral
high ground in future international entanglements, it also compromises
our Nation's ability to build international coalitions. Finally, and
perhaps most importantly, it signals to other countries that all bets
are off, endangering U.S. troops who might be captured in future
conflicts.
As many legal observers have noted, Judge Gonzales's advice was not
only flawed from a legal standpoint, it also spoke to a larger failure.
A client--even when he is the President--cannot always be deferred to.
This is especially true when a client seeks justification for a
position that runs contrary to the law. Judge Gonzales advocated for
the administration's reversal of longstanding U.S. policies and
practices supporting application of the Geneva Conventions and
antitorture laws. He urged their suspension, relying on convoluted
legal reasoning in order to justify an end. This willingness to skirt
international law demonstrates a lack of independence from an
administration committed to violating international principles of
justice and humanity.
The job of Attorney General, unlike other Cabinet positions that
advocate the President's agenda, requires independence. The Attorney
General is tasked with enforcing the laws of the land, whether they
advance or impede the President's policies. Judge Gonzales has not
demonstrated a willingness to break from the President's agenda, and I
fear his penchant for deferring to the President would hamper the
Department of Justice in its mission to uphold the law. The need for
independence is especially important in an administration that time and
time again has demonstrated a cavalier attitude toward civil rights and
civil liberties.
Should he eventually be confirmed, the challenges facing Judge
Gonzales are numerous and daunting. And it is against this backdrop
that I ask him to take on remedial efforts to restore not only
America's moral standing in the world, but to restore the civil rights
and liberties trampled on by this administration.
We need to strive to curb this administration's overreaching and to
reinstate constitutionally protected civil liberties sacrificed by the
administration in the name of fighting terrorism. I believe strongly
that we can protect our Nation while preserving our cherished freedoms.
Indeed, we can be both safe and free. Measures like racial profiling,
which make people suspect because of their ethnicity or religion--
rather than because of suspicious activity--are repugnant to our
citizens, divert valuable resources from finding real terrorists, and
ignore our Nation's commitment to freedom. I am certain that we can
fight terrorism without resorting to hateful tactics such as racial
profiling that cast a cloud of immorality over our country.
I sincerely hope that, if confirmed, Judge Gonzales takes up these
challenges and provides an independent voice for the Department of
Justice.
I know Judge Gonzales to be a gentleman and a patriot. And while I
regrettably must oppose his nomination, I know that his confirmation is
assured and pledge to work with him to ensure that our laws are
enforced and our freedoms protected.
Mr. INOUYE. Mr. President, the nomination by President George W. Bush
of Mr. Alberto Gonazales to serve as the Attorney General of the United
States has stirred strong opposition. Although my first instinct is to
support the prerogative of any President to select his own Cabinet, I
have concluded upon a thorough review of Mr. Gonzales's record that I
must oppose his nomination.
The Constitution confides in the Senate the duty of advice and
consent. This means that my colleagues and I have the responsibility of
considering the men and women the President nominates for high
Government offices, and either confirming or rejecting them. Although
many consider advice and consent to be a Senate right, I think of it as
a duty that carries an obligation of fairness and due diligence. The
power to reject a nominee should only be invoked where there is
substantial doubt as to a nominee's fitness for office--not when there
is a simple difference in political philosophy.
I do not personally agree with some of the positions that Mr.
Gonzales has advocated, but that should come as no surprise, because I
do not agree with many of the proposals made by the man who nominated
him, President Bush. Most strikingly, I am appalled that he has
professed only a ``vague knowledge'' of the racial and ethnic
disparities in the imposition of the death penalty in Federal cases.
These

[[Page S940]]

very disparities in the State of Hawaii's penal system led me to
champion the abolition of the death penalty in our territorial
legislature many years ago, and I have remained opposed to this
ultimate and irreversible sentence ever since.
Our philosophical disagreement over issues such as the death penalty,
do not, in my mind, constitute a sufficient basis for opposing his
nomination. His lack of candor and forthrightness in answering simple
questions about his record does.
A January 2002 memorandum from Mr. Gonzales to the President
advocated abandoning the Geneva Convention and its prohibitions on
torture and inhumane treatment of prisoners of war. As a former officer
in our Nation's military, I find this conclusion horrifying and
repugnant. As a Senator, I find Mr. Gonzales's refusal to clarify his
role in the subsequent development of a U.S. policy for torturing POWs
inexcusable.
His decision--supported by the refusal of the Bush administration to
turn over key documents--to stonewall efforts to bring this matter to
the light of public scrutiny strikes to the very foundation of our
Nation's democratic government. Our citizens have a right to openness
and transparency in their public officials. Clandestine maneuvers under
the ever-growing cloak of ``national security'' and ``executive
privilege'' disenfranchises the electorate and deprives them of the
information they need in order to make their choices at the polls.
Mr. Gonzales's failure to respond to questions legitimately posed to
him by the Senate raises grave doubts in my mind as to his fitness to
serve the people of the United States as their Attorney General. Mr.
Bush may have the privilege of choosing his own ``team'' for his
Cabinet, but American citizens have an unqualified right to be served
by public officials who will answer candidly for their actions.
Accordingly, I must reluctantly oppose this nomination.
Mr. HARKIN. Mr. President, almost 35 years ago, in July of 1970, when
I was a staff person in the House of Representatives, I was sent with a
commission to Vietnam. My commission was to investigate reports about
the South Vietnamese military using tiger cages to imprison, torture
and kill people. Our State Department denied the existence of the
cages, and our military denied the existence of the cages, calling
reports of their existence Communist conspiracy stories.
Thanks to the courage of Congressman William Anderson of Tennessee
and Congressman Augustus Hawkins of California, we were able to uncover
the notorious tiger cages on Con Son Island. When the pictures I took
appeared in LIFE magazine, the world saw North Vietnamese, Vietcong,
and civilian opponents of the war in South Vietnam all bunched into
these tiger cages, in clear violation of human rights, and in clear
violation of the Geneva Conventions. The reaction was overwhelming. The
pictures presented evidence of the cruel, torturous conditions in these
tiger cages, how people had been tortured and killed, and how we, the
U.S. Government, had provided not only the funding but the supervision
for these prisons.
I thought that we had learned from that experience. So it was with a
terrible sense of deja vu that I saw the pictures of abuse at Abu
Ghraib prison last year.
Since the Vietnam era, as a Government and as a society, we have
taken strong measures against torture. We have passed a Federal law
banning torture, and ratified an international treaty banning torture.
The Army field manual today reads: ``The use of torture is a poor
technique that yields unreliable results, may damage subsequent
collection efforts, and can induce the source to say what he thinks the
interrogator wants to hear. . . . It also may place U.S. and allied
personnel in enemy hands at greater risk.''
Yet, it was in an extraordinary document prepared at the request of
Alberto Gonzales, the nominee for Attorney General, that the groundwork
for the abuses at Abu Gharib was laid. That document reaches three
conclusions:
That the President has the inherent constitutional power as Commander
in Chief to override the prohibitions against torture enacted by
Congress;
That only acts that inflict the kind of pain experienced with death
or organ failure amount to torture and that the interrogator must have
the ``precise objective'' of inflicting severe pain even if he knew
``that severe pain would result from his actions''; and
That government officials can avoid prosecution for their acts of
torture by invoking the defenses of ``necessity'' or ``self-defense''
even though the Convention Against Torture says the opposite.
Because he had never spoken publicly about his involvement in the
development of these policies, Alberto Gonzales's confirmation hearing
took on unusual importance. The hearing was his opportunity to explain
his role in the preparation of this document and to step away from its
conclusions. Instead, when asked about the memo, Gonzales stated ``I
don't recall today whether or not I was in agreement with all of the
analysis, but I don't have a disagreement with the conclusions then
reached by the Department.'' Gonzales also reasserted his view that the
President has the power to override laws passed by the Congress and to
immunize others to perform what would otherwise be unlawful acts. These
positions are wrong as a matter of law and wrong as a matter of
conscience. The torture memo laid the groundwork directly for the
abuses at Abu Ghraib and has done great harm to our stature in the
international community.
As the nominee for Attorney General, Alberto Gonzales is the person
with the single greatest responsibility to uphold and defend the rule
of law. Not only is the torture memo a reprehensible document that
sanctioned engaging in illegal acts of torture in violation of basic
human rights, it is also a prime example of a legal analysis that
twists, turns and makes far-fetched leaps of logic in order to justify
a policy end sought by the administration. This sort of willingness to
circumvent the law, to treat it as an obstacle to be negotiated around,
shows a fundamental lack of independence. It calls into question Mr.
Gonzales's fitness to be the Attorney General. Because of this, but
even more because of his fundamental lack of respect for basic human
rights, I cannot support him to be the chief law enforcement officer of
this country.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. JOHNSON. Mr. President, I rise today in opposition to President
Bush's nomination of Alberto Gonzales to be Attorney General of the
United States. While I have long held that any President deserves a
presumption in favor of his nominees for Cabinet positions, the advice
and consent role of the Senate should never be regarded as a mere
formality.
The Attorney General, in particular, is far more than simply another
political appointee or adviser to a President. The Attorney General
plays a key role in the provision of justice for all Americans, and
nominees to this enormously important office must be reviewed with
senatorial scrutiny which is fair and not political but demanding.
I am profoundly troubled that Mr. Gonzales's promotion of torture
flies in the face of deeply held American values, undermines our
Nation's reputation around the world, and places American troops and
other citizens abroad in great danger. As the father of a soldier who
served in combat in both Afghanistan and Iraq, I am particularly
concerned that our Nation's utilization of torture creates an
environment where other nations and other organizations feel they have
justification for torturing our troops and our citizens. There is
little wonder why Mr. Gonzales's position was strongly opposed by the
U.S. Army's legal corps and by the U.S. State Department.
Mr. Gonzales oversaw and approved the decision to disregard the
Geneva Conventions for detainees from Afghanistan, he endorsed
interrogation methods that military and FBI professionals regarded as
illegal and improper, and he supported the indefinite detention of both
foreigners and Americans without due process. It was only after the
Supreme Court's intervention, which ruled that the prisoners were
entitled to appeal their detentions in Federal courts, that some of the
harmful policies were reversed. The Court also ruled that an American
citizen could not be detained and held as an ``enemy combatant''
without court

[[Page S941]]

review or the right to counsel, invalidating Mr. Gonzales's position in
the cases of Yaser Esam Hamdi and Jose Padilla.
Mr. Gonzales made a second horrible judgment about the Geneva
Conventions--that their restrictions on interrogations were
``obsolete.'' Quite apart from the question of POW status for
detainees, this determination invalidated the Army's doctrine for
questioning enemy prisoners, which is based on the Geneva Conventions
and had proved its worth over decades. Regarding this issue, Mr.
Gonzales ignored advice from the Army's own legal corps to Secretary of
State Colin L. Powell. Why is this so alarming? The President's
promotion of torturous interrogation practices, such as
``waterboarding,'' would likely invite retaliation against Americans
beyond what already exists. This could have grievous effects on our men
and women serving abroad. I can think of few things worse, as the
father of a soldier, than to know America's own torture policies would
increase the likelihood of more torture directed at our American
troops.
Mr. Gonzales had an opportunity to clarify this issue while
testifying in front of the Senate Judiciary Committee. During that
hearing, Judge Gonzales refused to reject a narrow definition of
torture and directly answer whether he thought the President has the
authority to overrule the statute that condemns torture and provide
immunity for those who commit torture based on the directive of the
President.
Turning to another issue of importance, it is incumbent upon me to
point out that while Mr. Gonzales was serving as counsel to then-
Governor George W. Bush, he provided questionable advice regarding
clemency of inmates. It appears Mr. Gonzales failed in his duty to
provide complete information regarding death row inmates in the State
of Texas. In some of the 57 memos he composed for Governor Bush, Mr.
Gonzalez failed to include all mitigating circumstances that should be
considered in clemency for death row inmates. Some of these mitigating
circumstances include inmates' ability to have qualified representation
as well as the questionable mental status of some of the death row
inmates.
Mr. Gonzales faced rigorous questioning by members of the Senate
Judiciary Committee. Despite the opportunity to explain away concerns
the American public had pertaining to his record and his beliefs, Mr.
Gonzales did not convince me that he is the proper person to serve as
our Attorney General, the chief law enforcement officer of the United
States.
The New York Times correctly observed that the Attorney General does
not merely head up the Justice Department; he is responsible for
ensuring that America is a nation in which justice prevailed. Mr.
Gonzales's record makes him unqualified to take on the role to
represent the American justice system to the rest of the world.
Mr. President, I ask unanimous consent to have printed in the Record
editorials from the Washington Post and the New York Times wherein
these highly respected newspapers contend that the confirmation of Mr.
Gonzales would be counter to fundamental American values. I share those
views.
There being no objection, the material was ordered to be printed in
the Record, as follows:

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

The Wrong Attorney General

(Editorial)

Alberto Gonzales's nomination as attorney general goes
before the Senate at a time when the Republican majority is
eager to provide newly elected President Bush with the
cabinet of his choice, and the Democrats are leery of
exposing their weakened status by taking fruitless stands
against the inevitable. None of that is an excuse for giving
Mr. Gonzales a pass. The attorney general does not merely
head up the Justice Department. He is responsible for
ensuring that America is a nation in which justice prevails.
Mr. Gonzales's record makes him unqualified to take on this
role or to represent the American justice system to the rest
of the world. The Senate should reject his nomination.
The biggest strike against Mr. Gonzales is the now
repudiated memo that gave a disturbingly narrow definition of
torture, limiting it to physical abuse that produced pain of
the kind associated with organ failure or death. Mr.
Gonzales's attempts to distance himself from the memo have
been unconvincing, especially since it turns out he was the
one who requested that it be written. Earlier the same year,
Mr. Gonzales himself sent President Bush a letter telling him
that the war on terror made the Geneva Conventions' strict
limitations on the questioning of enemy prisoners
``obsolete.''
These actions created the legal climate that made possible
the horrific mistreatment of Iraqi prisoners being held in
Abu Ghraib prison. The Bush administration often talks about
its desire to mend fences with the rest of the world,
particularly the Muslim world. Making Mr. Gonzales the
nation's chief law enforcement officer would set this effort
back substantially.
Other parts of Mr. Gonzales's record are also troubling. As
counsel to George Bush when he was governor of Texas, Mr.
Gonzales did a shockingly poor job of laying out the legal
issues raised by the clemency petitions from prisoners on
death row. And questions have been raised about Mr.
Gonzales's account of how he got his boss out of jury duty in
1996, which allowed Mr. Bush to avoid stating publicly that
he had been convicted of drunken driving.
Senate Democrats, who are trying to define their role after
the setbacks of the 2004 election, should stand on principle
and hold out for a more suitable attorney general.
Republicans also have reason to oppose this nomination. At
the confirmation hearings, Senator Lindsey Graham, Republican
of South Carolina, warned that the administration's flawed
legal policies and mistreatment of detainees had hurt the
country's standing and ``dramatically undermined'' the war on
terror. Given the stakes in that war, senators of both
parties should want an attorney general who does not come
with this nominee's substantial shortcomings.
____

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

A Degrading Policy

Alberto R. Gonzales was vague, unresponsive and misleading
in his testimony to the Senate Judiciary Committee about the
Bush administration's detention of foreign prisoners. In his
written answers to questions from the committee, prepared in
anticipation of today's vote on his nomination as attorney
general, Mr. Gonzales was clearer--disturbingly so, as it
turns out. According to President Bush's closest legal
adviser, this administration continues to assert its right to
indefinitely hold foreigners in secret locations without any
legal process; to deny them access to the International Red
Cross; to transport them to countries where torture is
practiced; and to subject them to treatment that is ``cruel,
inhumane or degrading,'' even though such abuse is banned by
an international treaty that the United States has ratified.
In effect, Mr. Gonzales has confirmed that the Bush
administration is violating human rights as a matter of
policy.
Mr. Gonzales stated at his hearing that he and Mr. Bush
oppose ``torture and abuse.'' But his written testimony to
the committee makes clear that ``abuse'' is, in fact,
permissible--provided that it is practiced by the Central
Intelligence Agency on foreigners held outside the United
States. The Convention Against Torture, which the United
States ratified in 1994, prohibits not only torture but
``cruel, inhumane or degrading treatment.'' The Senate
defined such treatment as abuse that would violate the Fifth,
Eighth or 14th amendments to the Constitution--a standard
that the Bush administration formally accepted in 2003.
But Mr. Gonzales revealed that during his tenure as White
House counsel, the administration twisted this
straightforward standard to make it possible for the CIA to
subject detainees to such practices as sensory deprivation,
mock execution and simulated drowning. The constitutional
amendments, he told the committee, technically do not apply
to foreigners held abroad; therefore, in the administration's
view the torture treaty does not bind intelligence
interrogators operating on foreign soil. ``The Department of
Justice has concluded,'' he wrote, that ``there is no legal
prohibition under the Convention Against Torture on cruel,
inhuman or degrading treatment with respect to aliens
overseas.''
According to most legal experts, this is a gross distortion
of the law. The Senate cited the constitutional amendments in
ratifying the treaty precisely to set a clear standard that
could be applied to foreigners. Nevertheless, Mr. Gonzales
uses this false loophole to justify practices that contravene
fundamental American standards. He was asked if there were
any legal prohibition against U.S. personnel using simulated
drowning and mock executions as well as sleep deprivation,
dogs to inspire fear, hooding, forced nudity, the forced
injection of mood-altering drugs and the threat of sending a
detainee to another country for torture, among other abuses.
He answered: ``Some might . . . be permissible in certain
circumstances.''
This is not a theoretical matter. The CIA today is holding
an undetermined number of prisoners, believed to be in the
dozens, in secret facilities in foreign countries. It has
provided no account of them or their treatment to any outside
body, and it has allowed no visits by the Red Cross.
According to numerous media reports, it has subjected the
prisoners to many of the abuses Mr. Gonzales said ``might be
permissible.'' It has practiced such mistreatment in Iraq,
even though detainees there are covered by the Geneva
Conventions; according to official investigations by the
Pentagon, CIA treatment of prisoners there and in Afghanistan
contributed to the adoption of illegal methods by military
interrogators.
In an attempt to close the loophole, Sen. Richard J. Durbin
(D-Ill.), Sen. John McCain

[[Page S942]]

(R-Ariz.) and Sen. Joseph I. Lieberman (D-Conn.) sought to
attach an amendment to the intelligence reform legislation
last fall specifying that ``no prisoner shall be subject to
torture or cruel, inhumane or degrading treatment or
punishment that is prohibited by the Constitution, laws or
treaties of the United States.'' The Senate adopted the
provision unanimously. Later, however, it was stripped from
the bill at the request of the White House. In his written
testimony, Mr. Gonzales affirmed that the provision would
have ``provided legal protections to foreign prisoners to
which they are not now entitled.'' Senators who supported the
amendment consequently face a critical question: If they vote
to confirm Mr. Gonzales as the government's chief legal
authority, will they not be endorsing the systematic use of
``cruel, inhumane and degrading'' practices by the United
States?
____

[From the Washington Post, Jan. 16, 2005]

The Vote on Mr. Gonzales

Despite a poor performance at his confirmation hearing,
Alberto R. Gonzales appears almost certain to be confirmed by
the Senate as attorney general. Senators of both parties
declared themselves dissatisfied with Mr. Gonzales's lack of
responsiveness to questions about his judgments as White
House counsel on the detention of foreign prisoners. Some
expressed dismay at his reluctance to state that it is
illegal for American personnel to use torture, or for the
president to order it. A number of senators clearly believe,
as we do, that Mr. Gonzales bears partial responsibility for
decisions that have led to shocking, systematic and ongoing
violations of human rights by the United States. Most
apparently intend to vote for him anyway. At a time when
nominees for the Cabinet can be disqualified because of their
failure to pay taxes on a nanny's salary, this reluctance to
hold Mr. Gonzales accountable is shameful. He does not
deserve to be confirmed as attorney general.
We make this judgment bearing in mind the president's
prerogative to choose his own cabinet, a privilege to which
we deferred four years ago when President Bush nominated John
D. Ashcroft to lead the Justice Department. In some important
respects, Mr. Gonzales is a more attractive figure than Mr.
Ashcroft. His personal story as a Hispanic American is
inspiring, and he appears less ideological and
confrontational than the outgoing attorney general. Mr.
Gonzales is also not the only official implicated in the
torture and abuse of detainees. Other senior officials played
a larger role in formulating and implementing the policies,
and Mr. Bush is ultimately responsible for them. It is
nevertheless indisputable that Mr. Gonzales oversaw and
approved a decision to disregard the Geneva Conventions for
detainees from Afghanistan; that he endorsed interrogation
methods that military and FBI professionals regarded as
illegal and improper; and that he supported the indefinite
detention of both foreigners and Americans without due
process. To confirm such an official as attorney general is
to ratify decisions that are at odds with fundamental
American values.
Mr. Gonzales's defenders argue that his position on the
Geneva Conventions amounted to a judgment that captured
members of al Qaeda did not deserve official status as
prisoners of war. If that had been his recommendation, then
the United States never would have suffered the enormous
damage to its global prestige caused by the detention of
foreigners at the Guantanamo Bay prison. In fact, the White
House counsel endorsed the view that the hundreds of
combatants rounded up by U.S. and allied forces in
Afghanistan, who included members of the Taliban army,
foreign volunteers and a few innocent bystanders, as well as
al Qaeda militants, could be collectively and
indiscriminately denied Geneva protections without the
individual hearings that the treaty provides for. That
judgment, which has been ruled illegal by a federal court,
resulted in hundreds of detainees being held for two years
without any legal process. In addition to blackening the
reputation of the United States, the policy opened the way to
last year's decision by the Supreme Court, which ruled that
the prisoners were entitled to appeal their detentions in
federal courts. The court also ruled that an American
citizen could not be detained and held as an ``enemy
combatant'' without court review or the right to counsel,
invalidating Mr. Gonzales's position in the cases of Yaser
Esam Hamdi and Jose Padilla.
Mr. Gonzales made a second bad judgment about the Geneva
Conventions: that their restrictions on interrogations were
``obsolete.'' Quite apart from the question of POW status for
detainees, this determination invalidated the Army's doctrine
for questioning enemy prisoners, which is based on the Geneva
Conventions and had proved its worth over decades. Mr.
Gonzales ignored the many professional experts, ranging from
the Army's own legal corps to Secretary of State Colin L.
Powell, who told him that existing interrogation practices
were effective and that setting them aside would open the way
to abuses and invite retaliation against Americans. Instead,
during meetings in his office from which these professionals
were excluded, he supported the use of such methods as
``waterboarding,'' which causes an excruciating sensation of
drowning. Though initially approved for use by the CIA
against al Qaeda, illegal techniques such as these quickly
were picked up by military interrogators at Guantanamo and
later in Afghanistan and Iraq. Several official
investigations have confirmed that in the absence of a clear
doctrine--the standing one having been declared
``obsolete''--U.S. personnel across the world felt empowered
to use methods that most lawyers, and almost all the
democratic world, regard as torture.
Mr. Gonzales stated for the record at his hearing that he
opposes torture. Yet he made no effort to separate himself
from legal judgments that narrowed torture's definition so
much as to authorize such methods as waterboarding for use by
the CIA abroad. Despite the revision of a Justice Department
memo on torture, he and the administration he represents
continue to regard those practices as legal and continue to
condone slightly milder abuse, such as prolonged sensory
deprivation and the use of dogs, for Guantanamo. As Mr.
Gonzales confirmed at his hearing, U.S. obligations under an
anti-torture convention mean that the methods at Guantanamo
must be allowable under the Fifth, Eighth and 14th amendments
of the U.S. Constitution. According to the logic of the
attorney general nominee, federal authorities could deprive
American citizens of sleep, isolate them in cold cells while
bombarding them with unpleasant noises and interrogate them
20 hours a day while the prisoners were naked and hooded, all
without violating the Constitution. Senators who vote to
ratify Mr. Gonzales's nomination will bear the responsibility
of ratifying such views as legitimate.

Mr. JOHNSON. Mr. President, while I have voted in favor of President
Bush's other Cabinet nominees, I stand in strong principled opposition
to the confirmation of Mr. Gonzales.
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. 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 rise in support of the nomination of
Judge Alberto Gonzales to be the next Attorney General of the United
States of America. Based on my relationship with him over the last 4
years, I am certain he will make an outstanding Attorney General for
all of the people in the United States.
Judge Gonzales has the education, experience, and character to make
an excellent Attorney General. I know this to be the case because I
have worked closely with him virtually every week, and many times every
day, for 4 years on many issues, including terrorism and judicial
nominations. I can tell my colleagues that he is a good man, and he is
more than up to facing this challenging assignment.
Before making a few remarks in support of this nomination, I want to
again commend the many contributions of Attorney General Ashcroft. We
all owe him a debt of gratitude for working so hard over the last 4
years to make America safer for all of our citizens.
Unfortunately, but perhaps not unexpectedly, the Gonzales nomination
has become as contentious as the nomination of Attorney General
Ashcroft. I can only hope that once Judge Gonzales is sworn in as
Attorney General, his opponents will work with him in good faith in the
interest of the American people.
I have been here over the last 2 days as some of my colleagues have
gone on at great length about what they misleadingly allege is the Bush
administration torture policy and how Judge Gonzales acted to condone
torture. Nothing could be further from the truth.
They attempt to make him responsible for a memo he did not write,
prepared by an office he did not run, in a department in which he did
not work, and they claim he gave advice that President Bush did not
follow, which, of course, he did not.
In fact, the memo Judge Gonzales did not write was written by a
person he did not supervise in a department in which he did not work
and which was ultimately rescinded in July of 2004 and later replaced
by a new memorandum.
In his effort to oppose the Gonzales nomination, my good friend from
Massachusetts has now even tried to give a new name to the Bybee
memorandum. This week, for the first time, the senior Senator from
Massachusetts actually called it the Bybee-Gonzales memo.
I said it before, and I will say it again. Judge Gonzales did not
write the memo. Yet his name is added to Bybee as if he were a
coauthor. Somehow holding Judge Gonzales responsible for a memo he
received is not fair.

[[Page S943]]

Apparently, all Judge Gonzales did was ask a very important question
of the entity within the Department of Justice, the Office of Legal
Counsel, whose job it is to answer such inquiries. Is that a crime?
Just because you ask for information does not mean you will agree with
the information you receive.
Most importantly, we know the administration's policy. They have been
very clear. The President has been clear. Judge Gonzales has been
clear: No torture. That is their position. It has always been their
position. Treat all detainees humanely, even those such as captured al-
Qaida suspects who are not covered by the Geneva Conventions.
Regardless of what the rescinded and replaced Bybee memo says about
the law, the bottom line is that the President never authorized or
acquiesced in the use of torture. He never ordered torture. The
February 7, 2002, memorandum that precedes the Bybee memo by months
makes that clear. Judge Gonzales also never recommended torture.
The President made clear that regardless of whether there might be a
theoretical right to override the Convention Against Torture, he was
not and is not authorizing torture.
Several Senators correctly argued that no one is above the law. I
agree with that. Judge Gonzales has also made clear that no man,
including the President, is above the law. The President and Judge
Gonzales never said the President could override the Convention Against
Torture.
There has been some discussion at the nomination hearing in the
Judiciary Committee and on the floor of the Senate about whether a
President's independent duty to preserve, protect, and defend the
Constitution of the United States might one day require a President not
to enforce a statute enacted by Congress but viewed by the President
as unconstitutional.

I want to discuss this matter a little further.
Although President Bush has clearly not to date exercised this
authority--if it, indeed, does exist--some are criticizing Judge
Gonzales's views of this power saying they are somehow out of the
mainstream, dangerous, or even reflecting a profound disrespect for the
rule of law.
Let me respond to the arguments made by several Judiciary Committee
Democrats who say Judge Gonzales somehow believes the President is
above the law, or that the President can pick and choose the laws or
standards he will follow.
Specifically, my esteemed colleague from Vermont, the ranking
minority leader of our committee, has asserted that Judge Gonzales has
``indicated that he views the President to have the power to override
our law and, apparently, to immunize others to perform what would
otherwise be unlawful acts. This is about as extreme a view of
Executive power as I have ever heard. I believe it is not only dead
wrong, as a constitutional matter, but extremely dangerous. The rule of
law applies to the President, even this President.''
I have looked closely at Judge Gonzales's opinion on this issue, and
I can tell you he is being wrongly criticized.
Let me talk about Judge Gonzales's position on Presidential
authority.
It should go without debate that Judge Gonzales has specifically
rejected that portion of the August 1, 2002, Office of Legal Counsel
memorandum which asserted that the President, as Commander in Chief,
possessed the constitutional authority in certain circumstances to
disregard the Federal criminal prohibition against torture. He
emphatically stated in his confirmation hearing that the memorandum has
``been withdrawn. It has been rejected, including that section
regarding the Commander in Chief's authority to ignore the criminal
statutes. So it has been rejected by the executive branch. I
categorically reject it. . . . [T]his administration does not engage in
torture and will not condone torture.''
That is what Judge Gonzales has already said, and every member of the
committee knows that. So why would they come here and say he said
otherwise when, in fact, that is explicit?
I should also point out that Judge Gonzales made it very clear that
no man, including the President, is above the law. If confirmed as
Attorney General, I have no doubt that he will remain faithful to his
oath to defend the laws of the United States.
At the same time, however, Judge Gonzales has appropriately
recognized that the President, consistent with his oath to preserve,
protect, and defend the Constitution of the United States, as well as
longstanding historical practice, may in rare circumstances conclude
that a statute is unconstitutional. This is not new or even surprising.
What is significant to me is that Judge Gonzales recognizes the gravity
and limitation of this practice.
When my colleagues learn more about Judge Gonzales's views on this
matter, I believe most will agree with him.
In his written answers to questions posed by Senators, Judge Gonzales
noted that a decision to disregard a statute on constitutional grounds
is an extremely serious matter and should be undertaken with
considerable caution and care and only in extraordinary circumstances.

In response to my friend from Vermont, Senator Leahy, Judge Gonzales
emphasized:

I would be reticent to conclude that statutes passed [by
Congress] are unconstitutional and would make every
reasonable effort if I am confirmed as Attorney General to
uphold and defend those statutes.

That is what a good lawyer would do.
Similarly, in responding to a question from my learned friend on the
committee, the Senator from Illinois, Judge Gonzales stated:

For a President to consider whether or not to ignore a
particular law as unconstitutional, however, would pose a
question of extraordinary gravity and difficulty. I would
approach such a question with a great deal of care.

During his confirmation hearing, Judge Gonzales rendered his opinion
on this delicate issue when he stated the following:

I think that . . . the executive branch should always look
very carefully with a great deal of seriousness and care
about reaching a decision that a statute passed by Congress
is somehow unconstitutional and should not be followed.
Certainly if I were confirmed, I would take my oath very,
very seriously to try to defend any act passed by Congress,
but it does appear to me, based upon my review of the history
and precedent . . . that Presidents and White Houses on both
sides of the aisle have taken the consistent position that a
President may choose to not enforce [a] statute that the
President believes is unconstitutional.

He goes on to say:

The President is not above the law. Of course, he is not
above the law. But he has an obligation, too. He takes an
oath as well. And if Congress passes a law that is
unconstitutional, there is a practice and a tradition
recognized by Presidents of both parties that he may elect to
decide not to enforce that law.

Again he goes on to say:

Whether or not the President has the authority in that
circumstance to authorize conduct in violation of a criminal
statute is a very, very difficult question, as far as I'm
concerned. And I think that any discussion relating to this
line of reasoning would be one that I would take with a great
deal of seriousness, because there is a presumption that the
statutes are, in fact, constitutional and should be abided
by. And this President does not have a policy or an agenda to
execute the war on terror in violation of our criminal
statutes.

That is what he said.
These are the statements of a man who understands that no one,
including the President, is ``above the law,'' and that history and
legal precedent allows, on the most serious and rarest of occasions, a
President, if he believes a law is unconstitutional, to veto or even
disregard such a law. Judge Gonzales appropriately described what we in
this body have known for many years and through many administrations,
both Republican and Democratic.
What if Congress passed a law that was discriminatory against a
particular group of people? Now, I do not think Congress is going to do
that, but what if it did? Should a President enforce that law knowing
it is unconstitutional? I think most of us would conclude, no, he
should not.
Now I want to go through the history and precedents that support
Judge Gonzales's views regarding Presidential authority. Let me begin
by pointing out that the Department of Justice's view that the
President, in rare circumstances, may decline to enforce statutes that
he finds to be unconstitutional is consistent with the position taken
by the Justice Department in administrations of both parties for over
100 years.

[[Page S944]]

In the 19th century, both James Buchanan's and Abraham Lincoln's
Attorneys General argued that the President possesses the authority,
under certain circumstances, to decline to enforce or disregard
statutory provisions he views as unconstitutional. In 1860, Attorney
General Jeremiah S. Black explained that ``[e]very law is to be carried
out so far forth as is consistent with the Constitution, and no
further.'' Thus, ``[t]he sound part of it must be executed, and the
vicious portion of it suffered to drop.''
In 1861, Attorney General Edward Bates echoed this view when, in
answering a question from the Secretary of the Interior as to whether
the executive branch had the power ``to examine and decide upon the
validity of an act of Congress, and to disregard its provisions,'' he
advised that in cases where the conflict between the Constitution and a
statute is ``plain and obvious,'' officials in the executive branch
``must disregard [the] statute.'' They may not, Attorney General Bates
explained, ``disregard the Constitution, for that is the supreme law.''
In the 20th century, Democratic and Republican administrations
consistently maintained that the President, in rare circumstances, may
decline to enforce statutes he believes to be unconstitutional.
In 1918, Acting Attorney General John W. Davis of the Wilson
administration agreed with the advice given by Attorney General Bates
more than 50 years earlier that the President may decline to enforce a
statute when its conflict with the Constitution is ``plain and
obvious.''
My gosh, this is elementary law. I think almost anybody would have to
agree with these conclusions, except somebody who just does not know
elementary law or does not know constitutional law at all.
The Carter administration also took the position that the President
may decline to enforce in certain circumstances statutes he viewed as
unconstitutional. Carter administration Attorney General Benjamin
Civiletti recognized that ``the Executive's duty to execute the law
embraces a duty to enforce a fundamental law set forth in the
Constitution as well as a duty to enforce the law founded in the Acts
of Congress, and cases arise in which the duty to the one precludes the
duty to the other.''
He therefore instructed in 1980 that the Education Department could
implement regulations that Congress had already disapproved through the
use of the legislative veto because the administration believed the
statute authorizing the legislative veto to be unconstitutional.
Attorney General Civiletti, a Democrat in a Democratic
administration, even went so far as to advise that the President could
disregard a statutory provision forbidding the executive branch from
expending money to implement regulations disapproved by legislative
veto. Now, this is very significant because disregarding such a
provision would constitute a violation of the Antideficiency Act, which
carries with it criminal penalties.

The Carter administration's Office of Legal Counsel also took the
position that ``the President's duty to uphold the Constitution carries
with it a prerogative to disregard unconstitutional statutes.'' It
therefore advised that if the unconstitutionality of a statute was
certain, then ``the Executive could decline to enforce the statute for
that reason alone.''
During the Reagan administration, Attorney General William French
Smith also took the position that the President possesses the authority
to disregard statutes he viewed as unconstitutional deviations from the
separation of powers set forth in the Constitution.
In explaining President Reagan's decision to disregard certain
provisions in the Competition in Contracting Act that he believed to be
unconstitutional, Attorney General Smith stated the President's
decision was ``based on the fact that in addition to the duty of the
President to uphold the Constitution in the context of the enforcement
of Acts of Congress, the President also has the constitutional duty to
protect the Presidency from encroachment by the other branches.''
In the George H. W. Bush administration, the Office of Legal Counsel
concluded in three separate opinions that the President could choose to
disregard statutes that infringed on his constitutional authority.
First, in 1990 the Office of Legal Counsel noted that ``[t]he
Department of Justice in modern times has . . . consistently advised
that the Constitution authorizes the President to refuse to enforce a
law that he believes is unconstitutional.''
In another issue that occurred in 1992 which involved a statute that
limited the President's ability to issue more than one passport to U.S.
Government personnel, the Office of Legal Counsel concluded that the
President was ``constitutionally authorized to decline to enforce
[it]'' because it ``interfere[d] with the `plenary and exclusive' power
of the President to conduct foreign affairs.''
In the Clinton administration, the Office of Legal Counsel in 1994
reaffirmed the view that ``there are circumstances in which the
President may appropriately decline to enforce a statute that he views
as unconstitutional.'' In particular, that Clinton Office of Legal
Counsel in the Justice Department explained that ``[w]here the
President believes that [a statute] unconstitutionally limits its
powers,'' ``he has the authority to defend his office and decline to
abide by [the statute], unless he is convinced that the [Supreme] Court
would disagree with his assessment.''
In the Clinton administration, the Office of Legal Counsel noted that
the Department of Justice in the Carter, Reagan, and Bush
administrations had consistently advised that ``the Constitution
provides [the President] with the authority to decline to enforce a
clearly unconstitutional law,'' and we reaffirm that ``this advice
[was] consistent with the views of the Framers.''
Let me also point out that the view that the President, in rare
occasions, may decline to enforce a law that unconstitutionally
restricts his authority has also been consistently embraced by
Presidents of both parties. Let me give a few examples.

In 1920, President Wilson announced that he would refuse to carry out
a provision in the Jones Merchant Marine Act directing him to terminate
certain tariff-related treaty provisions because he considered such a
requirement to be unconstitutional.
President Dwight D. Eisenhower, in signing an appropriations act in
1955 that contained a legislative veto provision, stated that any
legislative veto would ``be regarded as invalid by the executive branch
of the Government . . . unless otherwise determined by a court of
competent jurisdiction.''
Similarly, Presidents John F. Kennedy, Lyndon B. Johnson, Jimmy
Carter, and Ronald Reagan later issued similar signing statements
regarding the invalidity of legislation containing legislative veto
provisions.
Moreover, Presidents Richard M. Nixon and Gerald R. Ford announced in
signing statements that they would disregard legislative provisions
requiring that a congressional committee approve the exercise of
Executive authority, and they should have. In fact, according to one
historian's survey, it is estimated that from 1789 to 1981, there were
at least 20 instances where Presidents had failed to comply with
statutory provisions they viewed as unconstitutional.
In these cases, Presidents have disregarded statutes that they
believed intruded on, among other powers, their Appointments Clause
powers, Recommendations Clause powers, removal powers, foreign affairs
powers, pardon powers, and powers as Commander in Chief. Such
Presidents include James Buchanan, Chester Arthur, Grover Cleveland,
William Howard Taft, Woodrow Wilson, Franklin Roosevelt, Dwight
Eisenhower, Lyndon Johnson, Gerald Ford, Jimmy Carter and Ronald
Reagan.
In at least four of these cases, Presidents refused to follow the law
because they believed it to infringe their powers as Commander in
Chief. In 1860, President Buchanan disregarded a law requiring an Army
Corps of Engineers project to be supervised by a particular captain,
reasoning that this requirement intruded on his powers as Commander in
Chief. Likewise, Presidents Ford, Carter, and Reagan disregarded
various provisions of the War Powers Act, arguing that certain
consultation, notification, and termination provisions contained in the
act infringed upon their constitutional authority as Commander in
Chief.

[[Page S945]]

Finally, I want to draw particular attention to the holdings of the
U.S. Supreme Court which has implicitly agreed with the view that the
President, in extraordinary circumstances, has the authority to decline
to enforce statutes that he views as unconstitutional when he believes
that such statutes intrude upon the constitutional prerogatives of the
Presidency. In 1926, the U.S. Supreme Court upheld President Wilson's
decision to remove a postmaster from office in violation of a statute
requiring him to first obtain the Senate's consent. The Court held that
the statute in question constituted an unconstitutional limitation on
the President's power to remove executive officers, and thus that the
removal of the postmaster without the Senate's consent was legal. This
is the teaching of the case of Myers v. United States, 272 U.S. 52
(1926).
Most notably, not a single member of the Court in Myers found or even
suggested that the President had exceeded his authority or acted
improperly by refusing to comply with what he viewed as an
unconstitutional statute. As a result, the Clinton administration's
Office of Legal Counsel concluded that:

[t]he [Supreme] Court in Myers can be seen to have implicitly
vindicated the view that the President may refuse to comply
with a statute that limits his constitutional powers if he
believes it is unconstitutional.

More recently, four Supreme Court Justices have explicitly endorsed
the position that the President may refuse to obey statutes he believes
to be unconstitutional. In the 1991 case of Freytag v. Commissioner,
Justice Scalia, in an opinion joined by Justices O'Connor, Kennedy, and
Souter, explicitly stated that ``the means [available to a President]
to resist legislative encroachment'' upon his power include ``the power
to veto encroaching laws, or even to disregard them when they are
unconstitutional.''
Consequently, there should be no hesitation regarding Judge
Gonzales's responses to and analyses of this area of the law. He would
be derelict were he to not acknowledge that there was indeed, in rare
circumstances, precedents for a President to find a statute
unconstitutional. It is unfair and unjustified to criticize this
nominee for his accurate and, as I have just pointed out in some
detail, traditional legal analysis of this issue. On top of that, these
criticisms have ignored Judge Gonzales's very firm resolve that no man
is above the law and that the President himself is not above the law.
Sooner or later in this body we have to take people at their word.
Having spent 4 years working with Judge Gonzales, I think you can take
him at his word. I know you can.

I hope that this discussion puts to rest the erroneous suggestion
that somehow Judge Gonzales holds some perverted view of the reach of
the power of the President. President Bush certainly has never felt the
need to assert this authority over the last 4 years which makes it hard
to understand why it has become an issue in the Gonzales confirmation.
Of course, Judge Gonzales respects the law. Here is a man who was a
justice on the Texas Supreme Court, where it was his job every day to
uphold the law and mete out justice. He practiced law with one of the
most prestigious law firms in the United State, Vinson and Elkins.
Here is a man who served honorably for his Country in the United
States Air Force. Here is a man who was Texas's Secretary of State. And
some of my colleagues say they will vote against him because he does
not have the proper respect for the law. I simply do not understand
this.
We know that Judge Gonzales is fully capable of acting independent of
the President. It is not as if this will be the first time Judge
Gonzales will be in a job that requires independence from President
Bush. When he was a justice of the Texas Supreme Court, he was
independent. At that time, he was no longer representing the interests
of a Governor, he was representing the judicial system. He was
upholding the law for those in Texas.
To suggest that he does not know how to exert his own opinions is
offensive. He has done it before and he will do it again.
To those who criticize Judge Gonzales's responsiveness to questions
submitted by the committee, let me just say this. When President
Clinton nominated Janet Reno for the position of the next Attorney
General, she was presented with 35 questions by the committee. We
confirmed her--and I personally voted for her even though she did not
respond to any of those questions prior to the vote. In fact, she did
not submit her responses until 8 months after she was confirmed. We
didn't rake her over the coals. We didn't send her 500 questions that
required 250 pages of single-spaced answers. In contrast, Judge
Gonzales responded to over 450 questions within 2 business days. He
then responded to several series of additional questions over the next
weeks. In total, he submitted 250 pages of single-spaced written
responses to 500 questions posed by members of the Judiciary Committee.
To claim that we do not know enough about his policy views simply is
not supported by the voluminous record.
We didn't know anything about Janet Reno's policy views. We supported
her because she was the nominee of the President and we believed her to
be a good person and that she could do the job.
There is no excuse for people not supporting Judge Gonzales as the
nominee of the President, because he is a good person and he has more
than convinced any reasonable person that he can do this job.
Judge Gonzales is someone with whom I have worked very closely on
many difficult issues during President Bush's first term. I didn't know
him before President Bush was elected--at least I don't remember having
met him. But I know him very well since he was appointed as White House
Counsel. He is a first rate attorney. He is a straight shooter. He has
always told it like it is, and he will tell it like it is. He is
honest, hard working, intelligent, and experienced and he has said that
he understands these principles.
He understands the difference between being Attorney General and the
White House Chief Counsel. He understands that he represents all the
people in America as Attorney General.
He came up the hard way and he is his own man. I am proud to know
him. I am proud to have worked with him. I believe in the man. I
believe he will do a great job. And I believe it is time for us to
treat him with a little more respect than we have in the past.
I thank my colleague from Michigan. I know he probably wants to
speak. I spoke at length. I apologize for that. But I thank him for his
graciousness as he always listens to me, and to others as well.
I yield the floor.
The PRESIDING OFFICER (Mr. Alexander). The Senator from Michigan.
Mr. LEVIN. Mr. President, I thank my friend from Utah.
Mr. President, I will vote against the nomination of Alberto Gonzales
today because of the central role he played in establishing the legal
framework that set the stage for the torture and mistreatment of
persons in U.S. custody. That framework ignored prohibitions in our law
and our international obligations. Of immense significance, this legal
framework endangered American troops by making them more vulnerable to
like treatment.
The shocking photographs of prisoner abuse at Abu Ghraib prison--
images of a hooded man connected to electric wires, prisoners on dog
leashes, naked men in so-called stress positions, and beaten,
humiliated, or murdered prisoners--are now linked with American
behavior. Prisoner abuse in Iraq, Afghanistan, and elsewhere has
deepened the anger and resentment that some feel toward our country and
has given a propaganda club to our enemies.
Longstanding legal prohibitions against torture and inhumane
treatment are pivotal to the protection of American troops engaged in
combat outside the United States, because upholding our commitments to
international prohibitions against torture and inhumane treatment gives
us the moral and legal standing to demand that others refrain from
torturing or mistreating American service men and women in their
custody and to enforce those demands.
Our top military lawyers, including the Legal Adviser to the Chairman
of the Joint Chiefs of Staff and the Army's Judge Advocate General,
expressed reservations and concerns at various times during the
development of the administration's legal policies

[[Page S946]]

regarding the handling of detainees. Military lawyers warned against
deviating from the standards of the Geneva Conventions. Military
lawyers also reportedly argued against tough interrogation techniques
advocated by civilian attorneys saying such tactics would violate
established military practice and, if revealed, would provoke public
condemnation both at home and abroad. In the end, Judge Gonzales sided
with the civilian attorneys in opposing the recommendations of our
Senior military lawyers.
Also, a group of 12 retired senior military officers, including
former Chairman of the Joint Chiefs of Staff, retired Army General John
Shalikashvili, took the highly-unusual step of writing the Senate
Judiciary Committee a letter critical of Judge Gonzales. They expressed
deep concern in particular over his role ``in shaping U.S. detention
and interrogation operations in Afghanistan, Iraq, Guantanamo Bay, and
elsewhere.'' Those retired military officers stated, ``Today, it is
clear that these operations have fostered greater animosity toward the
United States, undermined our intelligence gathering efforts, and added
to the risks facing our troops serving around the world.'' They also
stated that Judge Gonzales's positions were ``on the wrong side of
history.''
Judge Gonzales's personal history is inspiring. However, it is not
enough to qualify someone to hold the office of Attorney General of the
United States. The Attorney General is our chief law enforcement
officer, the leader of the Department of Justice, and the first arbiter
of our laws. We rely on the Attorney General to help maintain the rule
of law in this country.

The rule of law seriously broke down in our treatment of prisoners.
The Defense Department's own investigations show that abuses of
detainees were not restricted to the acts of a few lower-ranking
Reservists working the night shift at Abu Ghraib prison. They were
widespread. The panel chaired by former Secretary of Defense James
Schlesinger which examined the causes of these abuses found in their
August 2004 report that ``There is both institutional and personal
responsibility at higher levels.''
At two critical decision points, Judge Gonzales was at the center of
the administration's development of an overly aggressive legal
framework for the interrogation of detainees. Their policies broke with
long-standing legal doctrine regarding the treatment of detainees and
exceeded the limits of the law regarding permissible interrogation
techniques. In doing so, Judge Gonzales contributed to creating an
environment in which the systematic and abusive behavior toward
detainees in U.S. custody was either permitted or was perceived to be
permitted.
The first critical point at which Judge Gonzales played a role was in
formulating the Administration's policy regarding the status of al-
Qaida and Taliban combatants under the Geneva Conventions on the
Treatment of Prisoners of War.
Judge Gonzales's view of the Geneva Conventions was revealed in his
January 25, 2002, draft memorandum to the President. In that
memorandum, Judge Gonzales advised the President against agreeing to
Secretary of State Powell's request that the President reconsider his
determination that the Geneva Convention on the Treatment of Prisoners
of War does not apply to either al-Qaida or the Taliban. The State
Department's position at the time, according to the Schlesinger panel
report, was that the Geneva Conventions' legal regime was
``sufficiently robust'' for effectively waging the Global War on
Terrorism. The Schlesinger panel also stated, ``The Legal Adviser to
the Chairman, Joint Chiefs of Staff and many service lawyers agreed
with'' the State Department.
Judge Gonzales, on the other hand, argued that the situation America
faced after September 11th rendered ``obsolete Geneva's strict
limitations on questioning of enemy prisoners . . .'' and that other
provisions of the Convention were rendered ``quaint.''
Judge Gonzales's January 25, 2002, memo could have simply advised
that the protections of the Geneva Conventions do not apply to al-Qaida
and Taliban fighters, if that were his conclusion. He went beyond that.
Instead he denigrated the Geneva Conventions where they do apply.
To say that the Geneva Conventions are obsolete and quaint is wrong
and dangerously so. Judge Gonzales tried to evade the impact of his own
memo when he told the Senate Judiciary Committee at his confirmation
hearing, ``Contrary to reports, I consider the Geneva Conventions
neither obsolete nor quaint.'' But these were not ``reports.'' These
were Judge Gonzales's own words in his own memo. The tone set by those
words and the approach of that memo helped put in place an environment
which spawned prisoner abuse. It was a tone that was heard around the
world.
Consistent with Judge Gonzales's January 2002 memo, the President
determined on February 7, 2002, that the Geneva Convention on the
Treatment of Prisoners of War does not apply to the conflict with al-
Qaida, and that because Taliban combatants were ``unlawful combatants''
they were not entitled to POW status under the Convention and would not
be protected by the Geneva Conventions. The President determined
instead that ``to the extent appropriate and consistent with military
necessity,'' detainees would be treated ``in a manner consistent with
the principles of Geneva.''
The President's February 7, 2002, determination created a legal
vacuum--a never-never land for detainees in our custody. His
determination and implementing procedures did not identify which
principles of the Geneva Conventions would continued to be followed.
Furthermore, the President's decision that the principles of Geneva
would be followed was qualified by the words ``to the extent
appropriate and consistent with military necessity,'' a qualification
so broad and vague as to render the pledge to follow the principles of
Geneva nearly meaningless. Major General George Fay, who investigated
detainee abuses by military intelligence personnel at Abu Ghraib
prison, found in his August 2004 report that, ``Specific regulatory or
procedural guidance concerning either `humane' treatment or `abuse' was
not available in the context of [the Global War on Terrorism] and the
recently promulgated national policies.'' The vacuum General Fay
referred to was created at the top. Judge Gonzales has a major role in
that creation. He was present at the creation.
Judge Gonzales has adamantly denied any relationship between his
advice to the President, and the Presidential decision which followed,
and the horrendous abuses at Abu Ghraib prison. But the Defense
Department's own investigations found a connection to the abuses in
Iraq.
The Schlesinger panel found that the Command Headquarters in Iraq,
Combined Joint Task Force-7, used ``reasoning from the President's
Memorandum of February 7, 2002'' in approving the use of
additional, ``tougher'' interrogation techniques beyond those approved
under existing Army doctrine. Major General Fay's August 2004 report
said that ``National policy and DOD directives were not completely
consistent with Army doctrine'' on detainee treatment and
interrogation, ``resulting in CJTF-7 interrogation . . . policies and
practices that lacked basis in Army interrogation doctrine.'' He added
that ``as a result,'' interrogators at Abu Ghraib used non-standard
interrogation techniques that ``conflicted with other DOD and Army
regulatory, doctrinal and procedural guidance.''

Clearly, there was a change in signals from the top about the
treatment and interrogation of captured adversaries. This, combined
with the failure of ``national policies'' to provide specific guidance
on ``humane'' treatment, helped produce a more lawless environment
which contributed to the mistreatment of enemy prisoners at Abu Ghraib
and elsewhere.
The second point at which Judge Gonzales played a central role was
the administration's effort to push the limits regarding permissible
interrogation techniques for use against enemy prisoners. It was Judge
Gonzales who requested the flawed legal memorandum by the Justice
Department's Office of Legal Counsel, or OLC, interpreting the scope of
the Federal anti-torture statute, 18 U.S.C. 2430-2430A. Congress had
enacted this criminal statute in 1994 to implement U.S. obligations as
a party to the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. The anti-torture statute prohibits
any person from committing or attempting to

[[Page S947]]

commit torture, which is defined in the statute as ``an act . . . under
the color of law specifically intended to inflict severe physical or
mental pain or suffering . . . upon another person within his custody
or physical control.''
But the OLC memorandum provided in response to Judge Gonzales's
request, the so-called ``Torture Memorandum'' of August 1, 2002,
significantly weakened the prohibition in the statute by asserting in
effect that ``Physical pain amounting to torture,'' doesn't count as
torture unless it is ``equivalent in intensity to the pain accompanying
serious physical injury, such as organ failure, impairment of bodily
functions or even death.'' Mental pain or suffering amounting to
torture doesn't count unless it causes ``significant psychological harm
of significant duration,'' that is, months or years. The memorandum
also interpreted the ``specific intent'' requirement in the statute to
mean that even if a person knows ``that severe pain will result from
his actions, if causing such harm is not his objective,'' then he is
not guilty of torture.
The legal reasoning employed by the Office of Legal Counsel has no
basis in military law, the legislative history of the Federal anti-
torture Statute, or the Convention Against Torture.
More importantly, it should have been apparent when the OLC
Memorandum was received by Judge Gonzales in the summer of 2002 that
its definition of torture, as well as other sections, were flawed. At
his confirmation hearing, Judge Gonzales was asked, ``Wasn't it obvious
to you that someone can suffer physical pain without being in danger of
organ failure? . . . Wouldn't the removal of fingers, for example, fall
outside the [memorandum's] definition of torture . . . ?'' Judge
Gonzales responded, ``Obviously, things like cutting off fingers, to me
that sounds like torture. . . .'' That is the Judge Gonzales at his
confirmation hearing--very different from the Judge Gonzales in 2002,
when the tone was set in memos to him and from him.
When the Torture Memorandum was finally leaked to the press in early
June 2004, it shocked the American people and the world. The
administration quickly disavowed the memorandum and the Department of
Justice undertook to review all of the OLC's legal advice relating to
interrogations. Finally, on December 30, 2004, shortly before Judge
Gonzales's nomination hearings, the OLC issued a legal opinion
superceding the 2002 memorandum.
What impact did the Office of Legal Counsel's August 1, 2002
Memorandum have on the interrogation of enemy prisoners in U.S. custody
during the nearly 2 years that it was official U.S. policy? The
investigative reports received by the Armed Services Committee show
that OLC's legal opinions provided the legal framework for the Defense
Department's approval of a number of additional interrogation
techniques, beyond those in standard Army doctrine, for use with enemy
combatants at Guantanamo Bay. These additional, more aggressive
techniques eventually migrated to Afghanistan and Iraq, and contributed
to the prisoner abuse at Abu Ghraib.

On December 2, 2002, Secretary Rumsfeld approved the use of a range
of ``aggressive'' non-doctrinal interrogation techniques at Guantanamo
Bay, including stress positions, isolation for up to 30 days, 20-hour
interrogations, nudity and use of dogs to induce stress. However, in
response to concerns raised by the Navy General Counsel, 1 month later
Secretary Rumsfeld rescinded his approval and in January 2003
established an internal Defense Department Working Group to review
interrogation techniques for use in the Global War on Terrorism.
According to the Schlesinger panel report, this Defense Department
Working Group ``relied heavily'' on the OLC's legal opinions for the
legal framework for its review of interrogation techniques. Much of the
legal analysis in the Working Group's April 4, 2003 report was drawn
directly from the OLC Torture Memorandum.
The Defense Department Working Group reviewed and recommended
approval of 35 interrogation techniques for use against unlawful
combatants outside the United States, all of which it deemed legally
available subject to certain conditions. Eighteen of these were
techniques not found in the standard Army doctrine of Field Manual 34-
52. Of this group, the Working Group designated nine to be
``exceptional'' techniques that should only be used with the approval
of the Secretary of Defense. These included isolation, prolonged
interrogations, sleep deprivation, nudity, and increasing anxiety by
the use of a detainee's aversions, for example, the use of dogs. Many
of these are the same techniques that had been approved by Secretary
Rumsfeld for use at Guantanamo Bay in December 2002.
Secretary Rumsfeld issued a new memorandum on April 16, 2003,
approving 24 interrogations techniques for use on unlawful combatants
at Guantanamo Bay, 7 more than contained in standard Army interrogation
doctrine. Even though Secretary Rumsfeld approved only one
``exceptional'' technique from the Working Group's report, specifically
isolation, other ``exceptional'' interrogation techniques recommended
by the Working Group migrated to Afghanistan and Iraq. According to the
report of General Fay, military officers at the Combined Joint Task
Force Headquarters in Iraq, CJTF-7, ``relied heavily'' on Guantanamo
Bay operating procedures, provided by Major General Geoffrey Miller, in
revising CJTF-7 interrogation policies for the conflict in Iraq.
Major General Fay found that, ``By October 2003, interrogation policy
in Iraq had changed three times in less than thirty days and it became
very confusing as to what techniques could be employed and at what
level non-doctrinal approaches had to be approved.'' He went on to say
that interrogation techniques beyond those in Army doctrine ``came from
documents and personnel in Afghanistan and Guantanamo. The techniques
employed in JTF-GTMO [Joint Task Force-Guantanamo] included the use of
stress positions, isolation for up to thirty days, removal of clothing,
and the use of detainees' phobias.''
So the prisoner abuse and mistreatment at Abu Ghraib, can be traced
back to the various Defense Department memoranda approving
``exceptional'' interrogation techniques and these Defense Department
memoranda relied, in turn, on the legal framework set up in the
opinions of the Justice Department's Office of Legal Counsel, including
the August 1, 2002 Memorandum. As the Defense Working Group report
stated regarding the standards applied in evaluating specific
interrogation techniques, ``Generally, the legal analysis that was
applied is that understood to comport with the views of the Department
of Justice.''
The OLC August 1, 2002 memorandum was addressed to Judge Gonzales. In
his testimony, Judge Gonzales initially said that he was doing his
``job as Counsel to the President to ask the question'' regarding the
definition of torture. However, when pressed on the issue later on in
the hearing, Judge Gonzales claimed that he couldn't remember if he
requested the memo, even though, again, the memo says it is addressed
to him and was requested by him.
At his confirmation hearing, Judge Gonzales disclosed that
discussions leading to the August 2002 memorandum on torture took place
in his office, that he participated in those discussions, and that he
gave his views to the OLC, although he could not recall at the hearing
what those views were. When I asked Judge Gonzales in post-hearing
questions to consult with his staff or other documents relating to his
views at the time of these discussions to refresh his recollection, he
declined to do so, claiming that to do so would involve ``predecisional
deliberations'' that he was not free to disclose.

Judge Gonzales was asked at his confirmation hearing whether he
agreed with the definition of torture in the August 2002 memorandum on
torture. He replied, ``I don't recall today whether or not I was in
agreement with all of the analysis, but I don't have a disagreement
with the conclusions then reached by the Department.'' Later in the
hearing, he said, ``it's a position that I supported at the time.'' In
other words, Judge Gonzales concurred in the torture definition and the
other legal conclusions in the August 2002 memo at the time it was
circulated. So, it was only after the memorandum became public and
elicited outrage that the OLC withdrew it, and the White House, with
Judge Gonzales out front, withdrew support.

[[Page S948]]

When asked during his confirmation hearing what were his views on
whether specific interrogation techniques might constitute torture
within the meaning of our laws, Judge Gonzales was evasive. He
acknowledged that he discussed specific interrogation techniques with
the OLC. He said that, ``As Counsel to the President, my job was to
ensure that all authorized techniques were presented to the Department
of Justice, to the lawyers, to verify that they met all legal
obligations, and I have been told that that is the case.'' He also
said, ``It is of course customary . . . that there would be discussions
between the Department and the Counsel's Office about legal
interpretation of, say, a statute that had never been interpreted
before, one that would be extremely emotional, say, if you're talking
about what are the limits of torture . . . . And so there was
discussion about that.''
When asked what his views were on specific techniques, however, he
did everything but give a direct answer. In response to a written
question about what methods he considered to be torture Judge Gonzales
wrote, ``I do not think it would be prudent for me to address
interrogation practices discussed in the press and attempt to analyze
them under the prohibitions of [the federal anti-torture statute]. . .
.'' At another point he said, ``we had some discussions [about specific
interrogation techniques] . . . [a]nd I can't tell you today whether or
not I said, `That's offensive. That's not offensive.' ''
Judge Gonzales was also repeatedly evasive and nonresponsive to
Senators' requests for clarifications regarding his record on specific
interrogation techniques. I submitted post-hearing questions to Judge
Gonzales asking him to refresh his recollection by consulting with his
staff. He declined. When asked by other Senators to refresh his
recollection by examining relevant documents, Judge Gonzales responded
that he had not conducted a document search. Period. To my knowledge,
he has since taken no actions to obtain or review documents that could
refresh his recollection.
One of the reasons given by Judge Gonzales for his refusal to provide
the Senate with requested documents relating to his views on torture
and specific interrogation techniques was that such disclosures would
involve ``predecisional deliberations that I am not at liberty to
disclose.'' For instance, when asked how many meetings took place prior
to development of the 2002 memo and who was present, he gave that
dismissive answer. When asked whether any of his staff attended the
meetings or recalled his reactions to the legal issues, Judge Gonzales
again for the same reason. His stonewalling of legitimate requests for
information under the claim of some newly-created ``predecisional
deliberation'' privilege to withhold information relevant to the Senate
confirmation process, is totally unacceptable. It is extraordinary that
the ACLU and other groups have had more success in obtaining
administration documents through the Freedom of Information Act than
the U.S. Senate has through the confirmation process. Does the U.S.
Senate have to file Freedom of Information requests to get information
from nominees?
The Senate has a right and a responsibility under its
constitutionally assigned role in the nomination process to know what
positions Judge Gonzales took with respect to any specific
interrogation techniques which violated our laws. In his testimony and
responses for the record, Judge Gonzales repeatedly refused to say what
position he had taken on certain interrogation techniques, including
simulated drowning (``waterboarding''), stress positions, sexual
humiliation, or use of dogs, as constituting either torture or cruel,
inhuman or degrading treatment. He claims it is the responsibility of
the Justice Department to make such determinations. How Judge Gonzales
addressed those issues and his views on these issues go to the very
heart of the matter before us--whether the Senate should give consent
made necessary by the Constitution before he assumes the office of
Attorney General.
In the end, we are left with Judge Gonzales's memo stating that
provisions of the Geneva Conventions have been rendered ``obsolete''
and other provisions ``quaint.'' We are left with his statement that he
supported the legal position that physical pain amounting to torture is
only prohibited if it is equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment
of bodily function, or even death. We are left with his insistence that
he cannot remember important meetings and discussions relative to
specific interrogation techniques, while refusing to take steps to
refresh his recollection.

The record is clear that Judge Gonzales played a central role in the
development of U.S. legal policy in 2002 that set the stage for torture
and inhumane treatment.
By undermining the importance of the Geneva Conventions and by
refusing to acknowledge ``waterboarding,'' stress positions, sexual
humiliation, or use of dogs, as violations of our anti-torture statute,
Judge Gonzales falls short of the high standards needed in an Attorney
General, whose office is at the pinnacle of the rule of law.
Finally, just as there must be accountability for those who carried
out the acts of detainee abuse and mistreatment, there must be some
accountability for the people who set the policies and established the
legal framework that set the stage for those abuses.
To vote in favor of confirmation of Judge Gonzales for Attorney
General would be to mean endorsement of the discredited legal theories
which have endangered the safety of our Armed Forces, caused severe
damage to the moral standing of the U.S. and to our efforts to promote
freedom throughout the world.
Our troops deserve better. The American people deserve better. For
these reasons, I will vote against the nomination of Judge Gonzales.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Is there a time allocation, as a matter of inquiry, Mr.
President?
The PRESIDING OFFICER. The two sides are dividing 8 hours today.
Mr. KENNEDY. I will not take long, but I welcome the opportunity to
address this issue in the final moments before the Senate will make an
extremely important judgment.
We face a fundamental choice in the Senate today. The nominee for
Attorney General of the United States is a good person, with an
extraordinary life story that reflects, in many ways, the best of the
American dream. If we were voting on that story, Mr. Gonzales would be
confirmed in an instant.
But our vote today is not a vote on whether he is a good person or
whether we admire and respect his life story. It is a vote on whether
his performance in the highest reaches of our Government has shown that
he should be entrusted with the Department of Justice. It is a vote on
whether we mean what we say when we express our commitment to America's
fundamental ideals, for abhorrence to torture is a fundamental value,
and the world is watching us and watching what we do on this
nomination.
Torture is an issue that cannot be wished away. Our attitude toward
torture speaks volumes about our national conscience and our dedication
to the rule of law.
Mr. Gonzales was at the heart of the Bush administration's notorious
decision to authorize our forces to commit flagrant acts of torture in
the interrogations of detainees in Afghanistan, Guantanamo, and Abu
Ghraib. The war room in the White House became the torture room. Under
this policy, our own agents burned detainees with lighted cigarettes.
They bound them hand and foot and made them lie down in their own urine
and feces. They administered forced enemas. They exploited our own
female agents by ordering them to humiliate and degrade their male
Muslim prisoners. They terrorized prisoners with unmuzzled dogs.
How did this start? Where did it start? Who is responsible?
We do not know everything because the administration refuses to come
clean. But what we do know gives us some clear answers. And those
answers should disqualify Mr. Gonzales from becoming Attorney General.
It started when those who wanted to use extreme methods of coercion
approached the White House and asked for legal cover. They went to the
Office

[[Page S949]]

of the White House Counsel, the President's lawyer, Mr. Gonzales.
Mr. Gonzales went to Jay Bybee in the Justice Department and asked
him for a legal opinion on torture. Mr. Gonzales helped Mr. Bybee write
that opinion. And when Mr. Gonzales received it, he thought it was
appropriate, and he allowed it to be disseminated throughout the
Government. Its words appeared in the Defense Department's guidelines
for military interrogation. Its standards were used by the Justice
Department to advise the CIA and other agencies on the legality of
extreme methods of interrogation.
When Mr. Gonzales received the Bybee memorandum he did not ask for it
to be rewritten; he did not object to it; he did not ask for a second
opinion. He agreed with the conclusions.
And so for over 2 years the Bybee-Gonzales memorandum--which
shamefully narrowed the definition of torture almost to nothingness--
was a roadmap to torture.
In the year since we first heard about prisoner abuses, no one has
suggested any other source for our torture policy. If President Bush
wants to take responsibility, let him do so. If Secretary Rumsfeld
wants to take responsibility, let him do so. If the CIA wants to take
responsibility, let it do so. But so far, they have let Mr. Gonzales
take full responsibility, and the facts make clear that he was at the
epicenter of the government's torture policy.
Many Senators, many military lawyers, and lawyers throughout the
world knew the minute they saw the Bybee memorandum when it first came
to light--2 years after it was written--that it was a political
document, not a legal document. It was a document designed to reach a
preordained result, not a document to say what the law really is.
Dean Harold Koh of Yale Law School, a former official in both the
Clinton and Bush administrations, told our committee that it was ``the
most clearly legally erroneous opinion'' he has ever read.
Yet it remained the administration's policy on torture for over 2
years.
In our Senate committee, Senator Graham called the Bybee Gonzales
memorandum, ``a lousy job''. On the floor Tuesday, Chairman Specter
called it unacceptable and wrong.
Yet Mr. Gonzales did not share that view, and for more than 2 years,
the memorandum remained in force as the administration's roadmap to
torture.
The administration rewrote the law, twisted legal interpretations,
and turned a blind eye to the predictable consequences. This set in
motion events that have stained our Nation by authorizing and
encouraging the commission of cruel, inhumane, and degrading acts,
including torture.
The issue is now beyond dispute. Abu Ghraib tells us some of the
truth. The FBI e-mails tell us some of the truth. The many Defense
Department reports tell us some of the truth. There are too many
reports of torture and abuses committed by too many people to be
dismissed as the work of a few bad apples on the night shift, as the
administration has tried so hard to do.
The Defense Department is now investigating over 300 cases of
torture, sexual assault and other abuse of detainees. When the head of
the Defense Intelligence Agency reports that DIA personnel were
threatened and confined to their base by Special Forces agents because
they had seen and tried to report interrogation abuses, we as a nation
have lost our way. When senior FBI agents are forced to complain about
abuses committed in their presence, we as a nation have lost our way.
It happened on Mr. Gonzales's watch, but that is only the beginning.
It happened in Mr. Gonzales's office. Mr. Gonzales was an active
participant. He was the principal enabler. Yet Mr. Gonzales can't
remember much of any of this. He won't search for his torture-related
documents. The White House won't give us the documents that exist. Yet,
on this incriminating record, his supporters continue to ask us to look
the other way, and ignore his central role in this scandal.
It is a sad day for the Senate, for our constitutional role in our
system of government, and for our responsibility to advise and consent
on presidential nominations, if we consent to the nomination for
Attorney General of the United States of a person who was at the heart
of the policy on torture that has so shamed America in the eyes of the
whole world and has so flagrantly violated the values we preach to the
world.
Surely the administration can find a person who is capable, who is
trusted, and who has not had such a central role in undermining our
Nation's fundamental dedication to the rule of law.
The President had countless candidates to choose from. Yet of all the
respected men and women available, he chose Mr. Gonzales. He sent a
message to the country and the world that the rule of law came in a
distant second to his desire to reward Mr. Gonzales for his
unquestioning loyalty.
The debate today is what we in the Senate do about it now. We know
the country is engaged in a continuing, public debate about values. We
have debated ``family values,'' ``religious values,'' ``social
values,'' and ``fundamental values.'' All too often, the words are used
as code words for a political agenda.
All too often, we shy away from having a true discussion about our
values as a nation, our character as a society, the legacy we wish to
leave our children; and our role in the world community. Too often,
stating noble words becomes a cover for committing ignoble acts.
Today's debate and today's vote give us the opportunity to
demonstrate our commitment to our core values. We need to show that our
commitment to ``human dignity'' is a reality, not a slogan. We need to
show that respect for law is an obligation, not an option.
We are a nation of laws, not hypocrites. This country is strong, and
our constitutionl system has endured, because it permits us to do great
things and still ensure that we treat people fairly and humanely. To
suggest that the two are mutually exclusive is a failure of faith in
the American people, and in our proud tradition of justice. We respect
international law. If we do not, who will? The provisior1s of the
Geneva Conventions and the Convention Against Torture serve us well,
because they protect our own soldiers who go off to war. They proclaim
that we are more than just the sum of our fears.
Mr. Gonzales's supportes claim it's just politics if we vote against
him, but statesmanship if we vote for him. But on this record the only
reason to vote for him is politics. Conscience and principle demand
that we vote against him. All of our statements about values will have
a hollow ring if we ignore this record and promote Mr. Gonzales to the
position of Attorney General of the United States.
We have a choice--do we stand for the rule of law, or do we stand for
torture? This vote will speak volumes about whether our specific
actions in the Senate match our lofty rhetoric about fundamental
values. That is why we should vote to reject this nomination.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, the decision on whether to vote to
confirm Alberto Gonzales to be the next Attorney General of the United
States has been difficult. As all of my colleagues know, I believe that
Presidents are entitled to a great deal of deference in their cabinet
nominations. I have voted in favor of a number of this President's
nominees, including the current Attorney General, with whom I had
serious disagreements on matters of policy and general ideology. My
votes may not have always pleased my political supporters or my party's
leadership. But in carrying out my part in the constitutional scheme,
as one who is asked to advise on and consent to a President's
nominations, I am guided by my conscience, and by the history and
practices of the U.S. Senate. Rejecting a Cabinet nominee is a very
rare event. The decision to do so must never be taken lightly.
After a great deal of thought and careful consideration, I reached
the conclusion that I could not support Judge Gonzales's nomination.
Let me take a few minutes to explain my decision.
The Attorney General of the United States is the Nation's chief law
enforcement officer. The holder of that office must have an abiding
respect for the rule of law. A formative experience for me, and for
many of my generation, was the Watergate scandal, and particularly the
Saturday night massacre

[[Page S950]]

on October 20, 1973. On that night, Attorney General Elliot Richardson
and his deputy William Ruckelshaus both resigned from office rather
than carry out President Nixon's order to fire special prosecutor
Archibald Cox. Those acts of courage remain for me a shining example of
the role that the Attorney General plays in our government. They give
me the unshakeable conviction that his or her ultimate allegiance must
be to the rule of law, not to the President.
As Judge Gonzales himself said as he stood next to the President on
the day he was nominated

The American people expect and deserve a Department of
Justice guided by the rule of law.

I am pained to say that Mr. Gonzales's performance as White House
Counsel and, particularly, his appearance before the Judiciary
Committee and his responses to our questions, have given me grave
doubts about whether he meets that test.
Judge Gonzales too often has seen the law as an obstacle to be dodged
or cleared away in furtherance of the President's policies.
Judge Gonzales has held the position of White House Counsel since the
beginning of this administration and through a very difficult and
challenging period in our history. The response of the administration
to the September 11 attacks and the fight against terrorism have
brought some very difficult legal issues to his desk. Some of these
issues touch on the very core of our national identity. What kind of
nation are we going to be during times of war? How will we treat those
we capture on the battlefield? How will we live up to our international
treaty obligations as we fight terrorism?

Time after time, Judge Gonzales has been a key participant in
developing secret legal theories to justify policies that, as they have
become public, have tarnished our Nation's international reputation and
made it harder, not easier, for us to prevail in this struggle. He
requested and then disseminated the infamous Office of Legal Counsel
memo that for almost 2 years, until it was revealed and discredited,
made it the position of the Government of the United States of America
that the International Convention Against Torture, and statutes
implementing that treaty, prohibit only causing physical pain
``equivalent in intensity to the pain accompanying serious physical
injury; such as organ failure, impairment of bodily function, or even
death.'' Under that standard, the images from Abu Ghraib that revolted
the entire world would not be considered torture, nor, according to
some, would the shocking interrogation technique called
``waterboarding.''
Judge Gonzales advised the President that he could declare the entire
legal regime of the Geneva Conventions inapplicable to the conflict in
Afghanistan. Secretary of State Powell rightly pointed out the danger
of this course, but Judge Gonzales persisted. This theory could
actually have given greater legal protection to terrorists, by taking
away a key part of the legal regime under which war crimes can be
prosecuted. The idea that the Geneva Conventions protect terrorists who
commit war crimes, which Judge Gonzales repeated in his hearing, is a
dramatic misunderstanding of the law, and it was very troubling to hear
it from the person who would coordinate our legal strategy in the fight
against terrorism.
Judge Gonzales was also an architect of the administration's position
on the legal status of those it called ``enemy combatants,'' a position
that was soundly rejected by the Supreme Court of the United States
last year.
In all of these areas, Judge Gonzales served as the President's
lawyer, and facilitated the President's policies. I believe that he
failed the President and the Nation badly. But these past mistakes need
not have been conclusive in my assessment of his suitability for the
office of Attorney General. For example, I also have serious concerns
about the role that the national security adviser--and now Secretary of
State--Dr. Condoleezza Rice, played in crafting and implementing the
administration's badly flawed foreign policy. But I do not think that
taking part in a policy I strongly oppose is sufficient grounds for me
to oppose a cabinet nomination. As I have indicated, the President--any
President--is entitled to be advised by those who share his beliefs and
confidence.

Had Judge Gonzales in his testimony before this Committee recognized
the serious problems with the judgments he made on these issues and
given convincing assurances that he understands that his new role will
require a different approach and a new allegiance to the rule of law, I
might have been convinced to defer to the President once again.
Attorney General Ashcroft, for example, was unequivocal in expressing
his commitment, under oath, to enforcing laws with which he disagreed
as a Senator--laws and court decisions that he, I think, abhored, but
he made it very clear that his role was to uphold the law as it stands.
But Judge Gonzales's appearance before the Judiciary Committee was
deeply disappointing. When given the opportunity under oath to show
that he would be adequately committed to the rule of law as our
Nation's chief law enforcement officer, he failed to do so. He
indicated that the infamous OLC torture memo is no longer operative,
but that he does not disagree with the conclusions expressed in it. He
reiterated erroneous interpretations, of the effect that applying the
Geneva Conventions to the war on Afghanistan would have on the
treatment of members of al-Qaida captured in combat. Most disturbingly,
he refused time after time to repudiate the most far-reaching and
significant conclusion of the OLC memo--that the President has the
authority as Commander-in-Chief to immunize those acting at his
direction from the application of U.S. law.
This failure goes directly to the question of his commitment to the
rule of law. Under our system of government, the Attorney General of
the United States may be called upon to investigate and even prosecute
the President. We cannot have a person heading the United States
Department of Justice who believes that the President is above the law.
I and other members of the Judiciary Committee questioned Judge
Gonzales closely about this issue. He hid behind an aversion to
hypothetical questions, he conjured up his own hypothetical scenarios
of unconstitutional statutes, but he simply refused to say, without
equivocation, that the President is not above the law.
On the torture issue in particular, Judge Gonzales repeatedly told us
that he opposes torture and that the President has never authorized
torture. Thus, he indicated, the question of whether the President
acting as Commander in Chief can authorize torture has never and will
never come up. I certainly hope that we can rely on those assurances,
but the Founders of this Nation designed a system where even the
President is bound by our laws--precisely so that we would not have to
rely on trust alone that the President will act in accordance with
them. I think the Judiciary Committee, and the American people,
deserved to hear whether the next Attorney General agrees that the
President has the power to disobey laws as fundamental to our national
character as the prohibition on torture. Judge Gonzales refused to
address this question unequivocally, and that left me deeply troubled.
Mr. President, Judge Gonzales has a compelling personal story, and
many fine qualities as a lawyer. If he is confirmed by the Senate,
there are many issues on which I hope we can work together for the good
of the country. But I cannot support his nomination. Not because he is
too conservative, or because I disagree with a specific policy position
he has taken, but because I am not convinced that he possesses the
abiding respect for the rule of law that our country needs in these
difficult times in its Attorney General. I will vote ``No.''
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. THOMAS. 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. THOMAS. Are we in Republican time at this time?
The PRESIDING OFFICER. That is correct.
Mr. THOMAS. Mr. President, I am pleased to hear that we may bring
this

[[Page S951]]

debate to a conclusion shortly. Certainly it seems to me we have had
plenty of time to talk about it. We have heard the same things over and
over. Of course, everyone has a perfect right to have a different point
of view, and I understand that. They also have a right to share that
point of view. However, there does come a time when we ought to come to
the snubbing post and vote, and I hope that can happen soon.
I come to the floor to express my support for the nomination of
Alberto Gonzales. It occurs to me the President should have the right
and does have the right and the responsibility to surround himself with
people with whom he can work the best, people who reflect his point of
view. After all, we are talking about a manager surrounding himself
with people who will carry out his programs. Obviously, he is going to
have people who fit that order.
If something is found that is disingenuous or disagreeable about the
nominee, of course, it is legitimate to talk about that. I do think it
is interesting, however, that people from the other side of the aisle
on the Judiciary Committee have gotten up and talked about all these
difficult issues on the memos. The fact is, the same committee members
on this side of the aisle have not mentioned that at all. One has to
think if there is a little bit of politics here. That would not be a
brand new idea, of course.
It is time to go forward. Certainly lots of people have had lots of
good things to say about Judge Gonzales. They talked about his legal
career, which is very impressive. He entered Harvard Law School. That
is a good thing. He certainly has had military service, which does not
have any direct involvement with this job, but it is something he
should be recognized for having done. He served in Texas as the
secretary of state. He was a distinguished jurist in Texas, and the
people from Texas from whom we hear are all very complimentary of what
has happened there with respect to Judge Gonzales.
We ought to consider those comments from people such as Senator
Cornyn who worked with him in the same government in Texas and who has
nothing but good things to say. Certainly no one has suggested that
this jurist is one who is an activist judge who is seeking to make law
as opposed to interpret it. That is one of the questions we have had,
of course, in this whole series of debates, but it does not seem to be
part of this one.
Judge Gonzales has been complimented for issuing his opinions based
on the facts, on interpretation of the law rather than his personal
interests which, of course, is one of the keys to a successful
judgeship.
As I say, it is perfectly legitimate for people to have a different
point of view. However, there is a limit to how long we need to keep
talking about it. We have been here all week. I hope now most of us can
come to the decision that it is time to move on.
I frankly do not know the judge. I have not worked with him, as many
people have. But I was impressed listening to those who have,
particularly about his Texas experience. He certainly seems to have
worked on cases diligently and has done a great job. He has not been
influenced outside the courtroom. Those are excellent qualifications
for someone in this job.

Certainly, there has also been the opportunity to serve with the
President as White House Counsel. It is a very important job that has
given him experience in Federal Government so he can move right into
this position. He remained steadily at the helm, despite the tough
times we had during 9/11 and following in terms of terrorism in which
this Department and these judges and attorneys had the real challenge
of what to do to deal with terrorism. He was instrumental in
coordinating the law enforcement efforts post-9/11 and ensuring the
rights of Americans at the same time.
It is interesting to have reports on what Mr. Gonzales has done with
homeland security consistent with the Constitution and the laws. He
demonstrated independence as Counsel at the White House, resisting from
time to time the Department of Justice.
The transition from where he is as White House Counsel to the Justice
Department will be a relatively easy one. The Justice Department is
very interesting. A very good friend of mine has been Assistant
Attorney General for Public Lands, a gentleman who at one time was, in
fact, my staff director. He has about 700 people who work for him. It
is a tough job and one that does require a background and knowledge.
As I read it--I am not on the committee of jurisdiction but those who
are from this side have said he demonstrated a will to honor and uphold
the Constitution, which, of course, all of us need to do. He is
independent enough to make decisions that have to be done
independently, and that is excellent.
Again, we will have differences of view. That is all right. We have
differences of view on almost everything. It is time to draw the line.
It is time to go. It is time to get this job done.
I certainly urge support for Judge Gonzales and hope we can go
forward and give him an opportunity and then give us an opportunity to
move forward with what we ought to be doing.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. SALAZAR. Mr. President, I rise today because I want to address
the allegation that we have heard in this Chamber over the last several
days that the debate around the nomination of Judge Gonzales to be the
next U.S. Attorney General is somehow occurring because of the fact
that he is Hispanic. I want to let the President, the Members of this
Chamber, and the people of the United States know that in my view, that
is not at all the case, and it is a notion that we should, in fact,
reject. We should reject it because it is divisive.
Instead, what we ought to be doing in the United States of America is
moving forward with a sense of unity and a celebration of diversity
that can unite us as a country.
The fact is, the debate that has occurred in this Chamber over the
last several days concerning Judge Alberto Gonzales is an appropriate
debate. We do not have a king in these United States. We have a
President who appoints, subject to the advice and consent of the
Senate. And for the Senate to have engaged in the debate and dialog, as
it has over the last several days, is the appropriate constitutional
role for this Senate.
The questions that have been raised about Judge Gonzales are
questions that are very serious about international law and
international accords and the laws of these United States.
For my colleagues who have stood up and who have raised questions
about Judge Gonzales's role with respect to these issues, they have
been carrying out their constitutional duty. I believe that
constitutional duty should be respected.
I, for one, after doing my constitutional duty and reviewing the
record and meeting with Judge Gonzales, talking to him about civil
rights, talking to him about his opposition to torture, concluded that
I would cast my vote in support of Judge Gonzales's nomination, and I
will do so in a few minutes. That vote will not change. But I think it
is a mistake for this Chamber to allow the race card of being Hispanic
to be used to destroy or erode the institutions that we have in the
Senate.
As I say that, I say it because I have seen the journey of civil
rights in America. That journey of civil rights in America is one which
has taken us a long time to get to where we are today. When we think
about the history of our country, for the first 250 years from the
founding of Plymouth Rock and Jamestown to the civil war, we were a
country that divided ourselves by the race of our skin, so that if one
was one race, they were able to own as property members who were from
another race. It took a very bloody civil war--in fact, the bloodiest
of all wars that this country has been engaged in--to end that system
of slavery and to usher in the 13th, 14th and 15th amendments that said
we are equal in this Nation.
Notwithstanding that bloodiest of wars and notwithstanding the fact
that we had amended the Constitution in those ways, it took another 100
years for us to legally end the system of segregation in this country
because it was not until 1954 and the decision written by Justice
Warren in Brown v. The Board of Education that we said that segregation
was wrong and that we would not tolerate it under our system of law.
As we have evolved in our relationships within groups over the last
half a

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century, there have been leaders, both Democrats and Republicans, who
have embraced the doctrines of diversity and an inclusive America. In
the 1960s, that effort was lead by Democrats, such as John Kennedy,
Robert Kennedy, and Lyndon Johnson. It was the Civil Rights Act of the
1960s that created opportunities for all of us in America to recognize
that we are, in fact, one Nation.
But it was not just the Republicans or the Democrats who were in the
lead in that role. There were also others who were involved,
Republicans like President Gerald Ford. A few years ago, President Ford
wrote an article in the New York Times which was entitled, ``An
Inclusive America.'' In that article in the New York Times, President
Ford talked about the importance of bringing all of our community
together and giving everybody an equal opportunity, regardless of their
background.
So as we move forward to making this decision on Judge Gonzales,
which I anticipate and fully expect is going to be a decision to affirm
his nomination as the Attorney General of the United States of America,
let us not use this moment to divide this country and let us not use
this moment to divide this Chamber.
My view is that those Democratic colleagues of mine, who are people I
admire, are very much champions of diversity and champions of civil
rights and, in my view, they were exercising their appropriate role and
their duty to make sure that the scrutiny of the Senate of one of the
President's nominees was, in fact, exercised.
I yield the floor, and 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. LIEBERMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Coleman). Without objection, it is so
ordered.
Mr. LIEBERMAN. Mr. President, I rise to speak in regard to the
nomination of Judge Gonzales to be the Attorney General of the United
States. Since this is about justice, in reviewing the record on Judge
Gonzales and in considering what my own conclusion about it would be,
particularly since it was all about justice, I thought I should try to
reach a result that seemed just to me. Each of us, in the fullness of
our heads and hearts, has to decide what is appropriate.
I was reminded of that famous saying from the Bible: Justice, justice
shalt thou seek. I remember asking a teacher of mine once why the
repeat of the word ``justice,'' and I was told, well, it not only means
you should pursue justice but you should pursue it in a just way.
I have had that in mind as I have considered this nomination and
others over my 16 years in the Senate. Throughout my tenure I have
voted on hundreds of Presidential nominations. In each case I have
adhered to a broadly deferential standard of review. To me, that seems
to be the just process to follow.
As I explained in my very first speech on the Senate floor which, for
better or worse, was in regard to the nomination of John Tower to serve
as Secretary of Defense, a nomination which I opposed, the history of
the debates of the constitutional convention makes clear to me that the
President is entitled to the benefit of the doubt in his appointments
to his Cabinet. The question I concluded I should ask myself in
considering nominees is not whether I would have chosen the nominee
but, rather whether the President's choice is acceptable for the job
for which the nominee has been chosen.
That, obviously, does not mean the Senate should always confirm a
President's nominees. Were that the case, the Framers would have given
the Senate no role in the appointments process, no power to advise and
consent. Instead, the Senate's constitutional advice and consent
mandate obliges us to serve, if you will, as a check, in my opinion, at
the margins on the President's power to appoint, a power that a sitting
President wins by virtue of his selection by the people of the country.
As I put it in my statement on Senator Tower's nomination, I believe
this requires this Senator to consider several things: First, the
knowledge, experience, and qualifications of the nominee for the
particular position for which he or she has been nominated; second, the
nominee's judgment as well as his personal behavior; third, the
nominee's ethics.
In unusual circumstances Senators can also, it seems to me, consider
fundamental and potentially irreconcilable differences of policy
between the nominee and the mission of the agency he or she is called
upon to serve.
As a result of that personal process that I follow in nominations, on
a very few occasions--I would guess, although I haven't looked back,
maybe just over 5 during my 16 years in the Senate--I have determined
that the views of certain nominees, usually on one end of the political
spectrum or the other, fell sufficiently outside the mainstream to
compel me to oppose their nominations. In other words, I give a
presumption in favor of the nominee unless there is a reason to decide
otherwise.
In this case I have met with Judge Gonzales, I have reviewed his
record throughout his career, I am familiar with his life story, I have
reviewed the proceedings before the Judiciary Committee, the comments
made by many on the committee in describing their votes, his testimony
there, and I have concluded that this nominee deserves to be confirmed
and therefore I will vote to confirm the nominee.
I need not labor on the details of the first three points--knowledge,
experience, qualifications, judgment and personal behavior, and
nominee's ethics. I believe this nominee, as everyone said, including
those who are opposed to the nomination, has a remarkable life story
that speaks to his strength, to his balance, to his values. He has
acted under pressure and gives me the confidence that he would do the
same as Attorney General.
He has spoken quite eloquently in his testimony before the Judiciary
Committee that he understands his accountability, his first
accountability as Attorney General will be to the Constitution and to
the people of this country. I know there are some who question his
independence of opinion and judgment because he has had a close
relationship with the President of the United States. But, as others
before me in this debate on the Senate floor about this nomination have
said, more often than not a President chooses as Attorney General
someone close to him. President Kennedy obviously chose his brother
Robert, who was a great Attorney General. President Reagan, if I
remember correctly, chose his personal lawyer to be his Attorney
General. President Carter chose Griffin Bell, who was extremely close
to him, from Atlanta. And so it goes throughout most of our history.

It seems to me, as I followed the debate in the committee and on the
floor, that there are two or three elements that have troubled my
colleagues enough to decide to vote against this nomination. I believe
in fairness I have to consider these seriously, but consider them in
the context of Judge Gonzales's entire career. The two most significant
points of contention are Judge Gonzales's work as White House Counsel
early in 2002, in the memo he wrote and the involvement he had in the
policy with regard to the application of the Geneva Conventions; and,
second, what relationship he had with the memo of Mr. Bybee, head of
the Office of Legal Counsel at the Justice Department, with regard to
the definition of torture under the Convention Against Torture.
In both of these cases, it seems to me, as I listen to my colleagues
who are opposed to the nomination, they take Judge Gonzales's work in
both of these areas to be indications of perhaps his lack of
independence, lack of good judgment which they believe disqualifies him
for this position. And some--I am trying to be fair here--raise
questions about whether both of these memos, certainly the second one,
the Bybee memo, in any way or in some way contributed to the horrific
behavior we saw in the prison abuse scandals at Abu Ghraib. I want to
briefly speak to both.
The first is the work that Judge Gonzales did early in 2002, within
months after the attack against us of September 11 and the initiation
of our own war against terrorism in Afghanistan. I know people have
quoted from the memo he wrote with some derision.

[[Page S953]]

I think you have to appreciate the context. As I look back post-
September 11, it seems to me in Judge Gonzales's memo and the memos
submitted by the State Department, by the Defense Department and
others, there is a very serious and classical American debate going on
about how to handle al-Qaida and the Taliban, and prisoners taken from
their membership, and what is the relevance of the Geneva Convention to
those people. It is an argument by a nation that cares about the rule
of law. You can agree with Judge Gonzales's position in this matter or
not. I happen to agree with the ultimate decision made. And the
decision was, in my opinion, a reasonable one and ultimately a
progressive one. The decision was that under the terms of the Geneva
Conventions, al-Qaida simply is not a state party to a convention, it
is a terrorist group, and as such its members were not entitled to
prisoner-of-war status.
There is a sentence in Judge Gonzales's letter that was quoted with
great derision, laughter, as if it were over the edge. ``In my
judgment, this new paradigm,'' which is the post-September 11 war on
terrorism, ``renders quaint some of the provisions requiring that
captured enemy''--we are talking here about al-Qaida--``be afforded
such things as commissary privileges, scrip advances of monthly pay,
athletic uniforms and scientific instruments.''
I think, respectfully, Judge Gonzales was being restrained and
diplomatic in using the word ``quaint.'' To offer these benefits--
access to a canteen to purchase food, soap and tobacco, a monthly
advance of pay, and the ability to have and consult personal financial
accounts, the ability to receive scientific equipment, musical
instruments or sports outfits--to Khalid Shaikh Mohammed, who planned
the attacks against us on September 11, would not be quaint, It would
be offensive.
It would be offensive. It would be ridiculous. It would be ultimately
unjust.
A different conclusion was reached about the Taliban. A summary of
the opinion says, although we never recognized the Taliban as a
legitimate Afghan government, Afghanistan is a party to the Geneva
Conventions, and therefore the President has determined that the
Taliban is covered by the conventions.
But then they cite that under the terms of the conventions, Taliban
detainees do not qualify for prisoner-of-war status.
Then the progressive part of this opinion, coming out in February
2002, says that even though the detainees are not entitled to prisoner-
of-war privileges, they will be provided many POW privileges as a
matter of policy. All detainees in Guantanamo are being provided three
meals a day that meet Muslim dietary laws, water, medical care,
clothing and shoes, shelter, showers, soap and toilet articles, foam
sleeping pads, blankets, towels, washcloths, the opportunity to
worship, correspondence materials and a means to send mail, and the
ability to receive packages of food and clothing subject to security
screening. Detainees will not be subjected to physical or mental abuse
or cruel treatment.
That is the policy that Judge Gonzales helped them form. That is the
policy that our Government issued. To me, it is a remarkably just
policy.
I see no basis in anything in the record of Judge Gonzales's
participation in this that would lead me to override presumption in his
favor.
The Bybee memo--the memo from the Office of Legal Counsel in August
of 2002 interpreting the Convention Against Torture and the American
statute implementing the conventions--is a separate matter. It is very
important to say that this memo was written by the independent Office
of Legal Counsel at the Department of Justice with a proud record of
independence of opinion.
You may disagree with its conclusions. I disagree with a lot of its
content and conclusions. But it is a lengthy, 50-plus pages, single-
spaced document, quite scholarly, with over 25 footnotes, as I recall--
and offered to Judge Gonzales in his role as Counsel to the President.
I want to repeat again: This was not Judge Gonzales's memo. It was
the Office of Legal Counsel's memo.
It is not clear what Judge Gonzales did with this memo. He refused at
his hearing before the Judiciary Committee to reveal exactly what he
advised the President about the memo. That was frustrating to the
committee members, and I understand that. But I must say as a former
attorney general, as a lawyer, I respect the right of the Counsel to
the President to keep private for reasons of precedent and executive
privilege the private counsel he gives to the President of the United
States.
I repeat that there are parts of that Bybee memo which I find
profoundly offensive. But it was not the Gonzales memo. On the record,
we do not know what he advised the President as a result of it.
In questions and answers before the committee, he said he agreed with
the conclusion but not all of the analysis in it. It is hard to know
what that means. What we do know is that in June of last year,
presumably after the Abu Ghraib scandal broke, the Attorney General and
White House Counsel were asked to reconsider and withdraw the opinion
of August 2002, and reissued the opinion in December of 2004 with just
about all of the objectionable matter--to me objectionable--being taken
out of it and presumed objectionable to most others. So it is no longer
a prevailing memo.

Again, Judge Gonzales said repeatedly at the hearing he would not
countenance torture--repeated what is the fact; that the administration
made very clear, presumably with his counsel, that the rules of the
Geneva Conventions applied to the Iraq war because Iraq was a duly
formed government, a sovereign state, and a party to the Geneva
Conventions.
What happened at Abu Ghraib was embarrassing, was hurtful to our
cause in the world, was offensive, and it is being dealt with within
the military justice system as we have seen.
Questions are raised about the connection, I suppose, between the
Bybee memo and whatever involvement Judge Gonzales had entered in the
events of Abu Ghraib. There is simply no evidence to make the
connection, certainly between Judge Gonzales and what happened at Abu
Ghraib in any of the independent reviews that have gone on, most
particularly Mr. Schlesinger's independent review which said there was
no connection between so-called higher-ups and what happened at Abu
Ghraib.
In the end, I have to ask myself, because of a memo written by
somebody else, Mr. Bybee at the Office of Legal Counsel, which has in
it material that I find, as I said, profoundly offensive, that Judge
Gonzales received and did something with, am I prepared to vote to deny
him confirmation as Attorney General of the United States? To me
personally that would be an unjust result. That is why I will vote to
confirm.
I understand the frustration of members of the Judiciary Committee
about some of the answers--many of the answers that Judge Gonzales gave
at the hearing. Some of them were evasive and some were legalistic. But
that wouldn't be, would it, the first time the committee had a witness
before it that proceeded in that particular way, particularly one who
has privileges that he occupies and lives under as Counsel to the
President of the United States.
That is why I am going to vote for Judge Gonzales--to confirm his
nomination. Nothing that I see in the report rises to a level high
enough to overcome the presumption in favor of him as a nominee of the
President.
He has many outstanding qualities. I don't know if others have
mentioned this in this debate. He has a certain independence of spirit
which I don't think has been very much commented on.
I remember reading in the press a moment ago when his name was
mentioned as a potential nominee for Supreme Court, some people--I will
be explicit--thought he wasn't a likely nominee because there were
people in the Republican Party who thought he had too much independence
on some issues that were central. I think that should be remembered as
we cast the vote.
The final point I wanted to make is this: I would like to believe
this. I will state that it has nothing to do with the standard that I
apply to voting on confirmation of a nomination, but to me it is a kind
of bonus associated with this

[[Page S954]]

nomination. Judge Gonzales, if confirmed, will be the first Hispanic
Attorney General in the history of the United States. That is a fact.
It is not reason, of course, to vote for him, nor is it a reason to
vote against him. But to me it is both a bonus and an extra measure of
encouragement about the kind of Attorney General he will be.
I have been in positions myself when I have had the chance in the
true spirit of the American dream to break some barriers. I probably
have a special sensitivity to others who have had the opportunity to
break barriers. When I had that opportunity myself, somebody said to me
of another ethnic group--in fact, another racial group--that they were
thrilled about what had just happened to me because they believed in
America when a barrier falls for one group, the doors of opportunity
would open wider for every other American. I believe that. I think that
is the bonus that comes with this nomination.
I can't help but also note the broad base of support that Judge
Gonzales has received from the Hispanic community, from elected
officials, and generally nonpartisan Hispanic organizations. They speak
to the significance beyond the merits, but build on the merits that
this nomination has to a group of Americans who are playing an
increasingly important role in the life of this country.

It encourages me about the kind of job he will do, because I think
the experiences he has had, the road he walked to get to where he is,
the extraordinary hard work he did to do that, the pride he has in his
family, in his heritage, will quite simply make him sensitive to the
most fundamental values of equal opportunity, of the rule of law, of an
absence of discrimination of any kind.
For all of those reasons, I shall vote yea on the nomination of Judge
Gonzales to be our next Attorney General.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. Mr. President, I am very fortunate. I did not plan it
this way, but I was here for most of what Senator Lieberman had to say.
I am very glad I had that opportunity. Even though I have never been a
member of the Judiciary Committee, I am a lawyer, although I have not
practiced for a long time, but I am very pleased I had a chance to
listen to an analysis given by the Senator with reference to the memos
and what might be taken from them in terms of what it means if we
nominate, if we accept his nomination or send him signals about what we
think about torture.
Does that mean because he was involved in all of this activity at a
time of turmoil, when there were a lot of things we did not know, a lot
of legal definitions had not yet been completely determined, that are
still out there being litigated and discussed, that he is disqualified
from being a good Attorney General? That is hogwash.
As a plain, simple person looking at this, I say: What if I were a
lawyer and I decided that the law meant A, B, C, D and that was
logical, there were legal opinions and a lot of people supporting it,
but after the fact things occurred, and D, E, F said that wasn't right.
Does that mean whatever you said was right, as a matter of law? Does it
mean since that is not what the court says, you are not a good lawyer,
or in some way that disqualifies you from a job?
We have lawyers arguing against each other with legal briefs that
have innumerable citations supporting a position. Somebody wins,
somebody loses, right? And that does not mean that either side did
anything but research the law as best they could, come up with
conclusions as best they could.
These very narrow arguments on legal niceties totally miss the point.
None of those justify saying he has given America a black eye in terms
of torture, and if he is Attorney General, we approve of this kind of
person, that would be part of such activity. That has got to be
nonsense. I say it different from the Senator. You say it is nonsense
but you never say it is nonsense; you just go through and pick it
apart.
Of the people who know him, who have known him for longer thin
anybody on that side of the aisle, who have practiced with him, who
were in the State bar with him, who were there when he got great awards
in the Texas bar for his minority, in terms of his culture, but for his
excellence in terms of the law, one is Henry Cisneros. He has known him
for years and wrote a letter January 5, a tremendous letter. He knew
this man. What did he say? Well, he is not saying he shouldn't be
Attorney General because he has been reading about what happened with
regard to prisoners of war. He didn't say that. He said: I know all
about him. He is a terrific lawyer, a wonderful man, and a great
success story, and he is Hispanic like I am. Henry Cisneros said: I am
proud of him. That is Democratic Henry Cisneros. I think he should
become the first Hispanic to be Attorney General.
Other Senators--I hate to say which ones--come down here and argue
these legal niceties. I don't want to discredit them. I don't want to
say this is an excuse because probably some of them really believe what
they have said. I think there is something to the fact that there are a
lot of Senators who want to forget the fact that George Bush won. They
can't believe he is President again, so, wherever they can, they want
to vent their feelings about this.

This man should have every vote in the Senate. He is more qualified
than most. He is, in a sense, a better example of somebody who should
get this job, a success in America, because of the signal it tells
about the American way of life. And success can be achieved by
minorities.
His experience as a lawyer is as much or better than most who have
been Attorneys General of the United States. Everything you look at,
his decisions about this whole business of al-Qaida and whether they
should be deemed to be protected by Geneva or not, whether the Taliban
up there in Afghanistan should be treated as prisoners of war. There is
no question he is not on the edge of a group of people who do not care
about humanity, who want to do anything. He is not on that side. In
fact, he is pretty much correct, that the ones I just described
shouldn't be covered by the Geneva Conventions. Maybe the Iraqi
soldiers, but there is nothing that says the Taliban terrorists should
or the terrorists in Iraq should, for sure. There is lots of legal
opinion. That is not the subject matter of the Geneva Conventions. You
still have to have rules about torture. I understand.
I thought I would try to answer some of the allegations that have
been made today with reference to the subject matter, but I will not. I
am absolutely convinced for many people who are active Democrats,
including some in the Senate, they cannot envision that this man,
Hispanic, with his upbringing, should be a Republican nominee for
Attorney General.
I lived through it all. I come from a State with a large population
of Hispanics, huge numbers of them elected to every office in my State,
predominantly Democrat. One can almost feel it, a Republican just
shouldn't be doing that. That should not be a nominee of a Republican
President. They have a lot to learn. He is not the first one. He will
not be the last one. And Hispanics are not going to be natural
constituents for the Democratic Party or naturally Democratic. It will
just not happen anymore.
I commend the President for doing what he did. I commend this man for
his successes, his family for the sacrifices, and the Senate for
confirming him by an overwhelming vote today. I look toward to his
being sworn in.
I conclude by saying I know him, I have worked with him--not as long
as former Secretary Cisneros or some others I put in the Record
yesterday who worked with him in Texas, but when it is all finished, he
will be a very good Attorney General.
Frankly, for those who think they might have bruised him up so he
cannot be a nominee for the Supreme Court of the United States, which
some might have hoped for, I think they missed it because it comes out
in the end of being a very frivolous attack. He might be the logical
candidate. He might be the kind of person who will clear the Senate. At
least when he started a few weeks ago he clearly was in that category.
I hope they haven't changed it by what they have done on the other
side.
Instead of simply saying we oppose President Bush or we are against
the war in Iraq, many of my colleagues on

[[Page S955]]

the other side of the aisle have chosen to make Judge Alberto Gonzalez
a scapegoat for their own frustrations.
We have heard numerous allegations such as not treating al Qaeda
terrorists like prisoners captured during previous wars means the
United States is not following the rule of law.
Since 9/11, Judge Gonzalez and countless other Government lawyers
have attempted to respond to war that America had never fought. This is
a ``War Against Terror.''
All of these lawyers had to make very difficult decisions to protect
America from a new and deadly threat while not knowing if more attacks
were imminent.
This is a case of second guessing at its absolute worst.
The allegation is that Judge Gonzalez supports the torture and abuse
of terrorists during interrogations.
Judge Gonzalez has repeatedly stated that it is not the policy of the
United States to condone torture and that he does condone torture.
The allegation is that Judge Gonzalez does not believe in the Geneva
Convention.
The Geneva Convention applies when a combatant meets the following
four criteria: is commanded by a person responsible for his
subordinates; has a fixed distinctive sign recognizable at a distance;
carries arms openly; and conducts operations in accordance with the
laws and customs of war.
Clearly the Geneva Conventions do not apply to Taliban fighters or
al-Qaida terrorists.
Yet there are still those who insist that Judge Gonzales completely
disregarded the Geneva Conventions and through his legal memoranda
encouraged torture and mistreatment.
Let me provide just a small sampling of the overwhelming body of
evidence that completely refutes Judge Gonzales's opponents.
The final 9/11 Commission Report stated:

The United States and some of its allies do not accept the
application of the treatment of prisoners of war to captured
terrorists. Those conventions establish a minimum set of
standards for prisoners in internal conflicts. Since the
international struggle against Islamist terrorism is not
internal, those provisions do not formally apply . . .

The U.S. Court of Appeals for the 4th Circuit in the John Walker
Lindh case stated:

The President's decision denying Lindh lawful combatant
immunity is correct.

Legal scholars agree. In her treatise on The Law of War, Professor
Ingrid Detter noted that ``[u]nlawful combatants . . . are not, if
captured, entitled to any prisoner of war status.''
Professor Gregory M. Travalio has written that ``terrorists would not
qualify under Article 4 of Geneva Convention III as Prisoners of War.''
Moving beyond what can only be described as a smoke and mirrors
argument, I believe there are other forces at work that have absolutely
nothing to do with the Geneva Convention.
Partisan, political, and personal pretty well sums up the opposition
to the nomination of Judge Alberto Gonzales to be the next United
States Attorney General.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. On behalf of the leader, I ask consent that there be 60
minutes remaining for debate on the pending nomination, with the time
divided as follows: 15 minutes to the distinguished ranking member,
Senator Leahy; I, as chairman, the next 15 minutes; then the Democratic
leader, Senator Reid, 15 minutes; and the majority leader, Senator
Frist, the final 15 minutes.
Finally, I ask consent that after the use or yielding back of time
that the Senate proceed to a vote on the nominee as the previous order
provides.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Vermont.
Mr. LEAHY. Mr. President, for the most part, this has been a
substantive debate. Actually, it has been a necessary debate. Now,
partisans on the other side of the aisle at times have tried to smear
anyone who has voiced concern about this nomination, notwithstanding
that anyone who listened to the statements of those of us who oppose
this nomination know that each of us has praised the journey Alberto
Gonzales and his family have taken.
I am a grandson of immigrants who came to this country not even
speaking the language, so I have unbounded respect for all that he and
his family have accomplished. In fact, I am the first Leahy to get a
college degree; my sister is the second. So I applaud anybody who takes
such a journey.
On Tuesday, the Senate heard from Senators Feinstein, Schumer,
Kennedy, Mikulski, Dayton, and Stabenow. Yesterday, the debate on this
side of the aisle included eloquent and powerful statements by Senators
Byrd, Durbin, Jack Reed, and Jeffords, all stating their reasons for
opposing this nomination on the merits. No one should be accusing these
Senators of doing anything except their constitutional duty. Today, we
heard as well from Senators Dodd, Obama, Cantwell, Bingaman, Johnson,
Levin, and Feingold. Each has spoken from conviction. They are voting
their conscience.
We have also made time to hear from one of our newer Democratic
Senators, Mr. Salazar of Colorado, regarding the assurances and
commitments he has obtained from the nominee and on which he is relying
in his vote. I also note that today he returned to the Senate floor to
make another important statement that rejected those who have tried to
play a divisive ethnic card. He spoke about the true meaning of
diversity and our national journey toward equal rights for all. Senator
Salazar spoke to me before he spoke on the floor. I commend him for
what he has done. I thank him for his remarks. It is what I would have
expected from a man of his integrity and quality.
Senator Biden observed during the confirmation hearing that none of
us came to that hearing having determined to vote against the
nomination. In fact, most of us, I would say, if not all of us on the
Democratic side of the aisle in the Judiciary Committee came there
assuming we were going to vote for him. We listened. We asked
questions. We sought answers. We weighed the record.
It was not an easy decision for any of us. Each of us would have
liked to have supported the first Hispanic nominee to be Attorney
General. We each made a decision on the merits of the nomination. We
did not ignore his judgments that contributed to the scandals in the
war against terror and the mistreatment of detainees around the world.
Some have said that some of those positions were embarrassing. They
were a lot more than embarrassing; they were a complete scandal.
When this nomination was announced last year, many of us were
inclined to support Judge Gonzales. But as the confirmation process
unfolded, one by one, members of the Judiciary Committee began to have
doubts. Many were troubled by the nominee's refusal to engage with us
in an open discussion of his views on a wide range of issues.
I was particularly concerned because I had actually sent to him and
to the Republicans in the committee a number of the questions I was
going to ask so he would have plenty of time to prepare to answer.
Instead, he did not answer.
For some, the key question was how Judge Gonzales interprets the
scope of Executive power and his belief that the President possesses
authority to ignore our laws when acting as Commander in Chief. No
President of the United States can ignore our laws, no President of the
United States is above the law any more than any of us are above the
law. For others, the tipping point was the nominee's continued
adherence to flawed legal reasoning regarding torture, a stubborn
commitment betraying seriously poor judgment. Finally, and
deeply troubling to many of us, is the nominee's lack of independence
from the President.

In the end, after serious consideration of the record, each of us
arrived at the same conclusion: In good conscience, we could not vote
for this nomination.
Now, some have talked about the legal memos he was involved in as
legal niceties. Well, Mr. President, torture is not a legal nicety,
especially if you are the person being tortured. Those of us who have
been in the military or who have had members of our family in the
military have always hoped we would hold to the highest standards so we
could demand that other countries do the same.
It is wrong for partisans to castigate Senators for debating this
nomination

[[Page S956]]

and for considering the critical role this nominee played in the
development of legal policies that were kept hidden for a couple years,
but when they were brought forward by the press, not in answer to
questions by Members of Congress--the press did our work and brought
them forward--those so-called legal niceties could not stand the light
of day.
Consistent with my oath of office, the commitment I have had to the
people of Vermont for over 30 years, I will vote my conscience again
today. I urge each and every Senator to do the same. Review the record,
truly review the record and the actions of this nominee over the past 4
years and vote accordingly.
I do not think I have ever been on the floor of this Senate and
predicted vote totals. I am not going to today. But I will predict
this: Democratic Senators will not vote as a block. Some will vote
against this nomination; some will vote in favor of this nomination.
They will do so not on the basis of some party caucus position but as
individual Senators. I urge all Senators--Republicans and Democrats and
Independent--to approach this vote in that way, on the merits, after
you review the record in good conscience. This should not be a party-
line vote on either side of the aisle but one where each Senator votes
his or her best judgment.
Many Senators here today no doubt believe that the President is owed
a high degree of deference in his Cabinet choices. I feel that way. But
that does not erase our constitutional obligations as Senators. We have
a duty to advise and consent, not to listen and rubberstamp. I take
that responsibility very seriously, especially in the case of the
Attorney General. The Attorney General is unique among Cabinet
officers. You can give a lot more flexibility to other Cabinet
officials whose main purpose is simply to state the position of the
President of the United States. Whether you agree with the position,
that is their duty. So you give a lot more deference, and you say:
Well, they are going to state the position of the President. We can
vote for them.
But the Attorney General is different. He or she is the top Federal
law enforcement officer in the land. The power and discretion of the
Attorney General is enormous. The Attorney General has to have
sufficient independence to uphold the law and enforce the law, even if
doing that serves to embarrass or disadvantage the President, even if
it means taking a position contrary to what the President may want,
because you have to enforce the law.
Now, when Judge Gonzales was designated and appeared in the White
House with the President, he offered a very significant insight into
how he views the role of the Attorney General. He emphasized how much
he looked forward ``to continuing to work with friends and colleagues
in the White House in a different capacity on behalf of our
President.''
During his confirmation hearing, he appeared to continue to serve as
a spokesman for the administration and to be its chief defense lawyer
on a wide variety of important matters. His defenders here on the
Senate floor have excused his answers by characterizing them as the
views of the administration.
We are voting on the Attorney General of the United States, not the
Attorney General of the President. The Attorney General must represent
the interests of all Americans and is the nation's chief law
enforcement officer.
One of the key questions raised by this nomination is whether, if
confirmed as Attorney General, the nominee will serve not just this
President but all the American people, and whether he will show the
independence necessary to enforce the law. We have to know that he is
there to represent all of us. We have to know that he can enforce the
law and not be worried about friends, colleagues, or benefactors at the
White House. The Attorney General's duty is to uphold the Constitution
and the rule of law, not try to find ways to circumvent it to fit the
desires of any President.
Actually, the President, when you come right down to it, as well as
the Nation, are best served by an Attorney General who gives sound
legal advice and takes responsible action without regard to political
considerations. Others in the Cabinet are there to just voice the
opinions of the President. The Attorney General has to be a lot more
independent.
I raised this matter of independence with Judge Gonzales when he
testified, and I reiterated it in a letter I sent to him before his
hearing. I ask unanimous consent that letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Senate,

Committee on the Judiciary,

Washington, DC, December 3, 2004.
Hon. Alberto R. Gonzales,
Counsel to the President,
The White House, Washington, DC.
Dear Judge Gonzales: I enjoyed our preliminary meeting and
look forward to your confirmation hearings. In following up
on our meeting, and to give you and your staff ample
opportunity to prepare for the hearings, I write to reiterate
several concerns that I have raised in prior discussions and
correspondence. When we met on November 17, 2004, I said that
these issues will be raised, by myself and other members of
the Senate Judiciary Committee, during the upcoming hearings.
Based on our conversation, I am encouraged by your
willingness to answer questions about your role and your
views in these matters.
Photographs and reports of prisoner abuse in Iraq and other
locations show an interrogation and detention system
operating contrary to U.S. law and the Geneva Conventions. In
addition to the abhorrent images from the Abu Ghraib prison
that were published last spring, actions that have occurred
with Administration approval include the forcible rendition
of individuals to nations where they may face torture, and
the hiding of ``ghost detainees'' from the International
Committee of the Red Cross. Reports of abuse continue to
emerge. Just this week, The New York Times reported that the
Red Cross has charged U.S. military authorities with using
physical and psychological coercion ``tantamount to torture''
on prisoners at Guantanamo Bay. The Washington Post is
reporting that in December 2003 Army generals in Iraq were
warned in a confidential report that members of an elite
military and CIA task force were abusing detainees. According
to The Post, the report concluded that certain arrest and
detention practices could be deemed to be ``technically''
illegal.
In letters dated May 17 and June 15 of this year, I asked
you to describe your role in both the interpretation of the
law and the development of policies that led to what I and
many others consider to have been a disregard for the rule of
law. These letters remain unanswered.
My concerns regarding the abuse of prisoners in U.S.
custody did not begin with these letters. I have been seeking
answers from the Administration for well over a year, before
the abuses at Abu Ghraib came to light. In a very few cases
my questions were answered, but with information that later
proved to be less than accurate. For example, in a news
conference on June 22, 2004, you stated, ``In Iraq, it has
always been U.S. position that Geneva applies. From the early
days of the conflict, both the White House and the
Department of Defense have been very public and clear
about that.''
However, an October 24, 2004, article in The Washington
Post revealed yet another Justice Department memo authorizing
actions that potentially violate the Geneva Conventions. The
draft memo, dated March 19, 2004, apparently was written to
authorize the CIA to transfer detainees out of Iraq for
interrogation--a practice expressly prohibited by the Geneva
Conventions. According to the memo's cover letter, it was
drafted at your request.
In another example, a June 25, 2003, letter from Department
of Defense General Counsel William Haynes stated that the
United States was adhering to its international obligations
including those under the Convention Against Torture. We
later learned of an August 1, 2002, Department of Justice
memorandum that twisted the definition of torture in
unrecognizable ways. That memo was addressed to you. We also
learned months later of the rendition of a Canadian-Syrian
citizen to Syria, despite his fear of being tortured there,
and despite the Syrian government's well-documented history
of torture. Unnamed CIA officials told the press that this
man was in fact tortured in Syria.
The Committee and the Senate will want to know your role in
these situations and your views with regard to the
development of the legal justifications that appear to
underlie so many of these actions. You will be called upon to
explain in detail your role in developing policies related to
the interrogation and treatment of foreign prisoners. The
American public and the Senate that will be called upon to
confirm your appointment deserve to know how a potential
Attorney General, the chief law enforcement officer in the
nation, will interpret and enforce the laws and how you will
develop policy.
We want to know what the current policy on torture is, but
since the Administration disavowed the August 1, 2002, memo,
no public statement of policy has replaced it. Questions
remain unanswered on a host of issues. Requests to the White
House and the Department of Justice for relevant documents--
including my requests to you in May and June of this year--
have been ignored or rejected. I

[[Page S957]]

urge you and the Administration to provide the documents that
have been requested by myself and others without further
delay so that the hearings will be well informed.
Another key concern you will be called upon to discuss is
how you view the duties and responsibilities of the Attorney
General. As we discussed, I view the White House Counsel
position and that of the Attorney General as quite distinct.
You may well have viewed this President as your ``client''
while serving him at the White House, although the courts do
not recognize an attorney-client privilege in that setting.
We will want to know how differently you will act and view
your responsibilities as the Attorney General of the United
States. finally, I encourage you to commit to cooperating
with all members of the Judiciary Committee on issues of
oversight and accountability. In the 108th Congress, the
Judiciary Committee failed to fulfill its oversight
responsibilities. Accountability and improving government
performance are sound and long established purposes of
congressional oversight, and accountability has been lacking
on these and other crucial issues. With a new Congress, and a
new Attorney General, I expect a return to the diligent
oversight envisioned by our Founders to ensure that the
Executive Branch remains accountable to the American people.
Our meeting was a constructive beginning at the start of
the confirmation process, and I look forward to your hearing
early next month. In the meantime, Marcelle and I send our
best wishes to you and your family and hope that you have a
restful and rewarding holiday season.
Sincerely,
Patrick Leahy,
Ranking Democratic Member.

Mr. LEAHY. I was not surprised to hear him say that the
responsibilities of the Attorney General are different than those as
White House Counsel. But I did not see that during the hearings. He
deferred to the official policies of this administration throughout the
Judiciary Committee proceedings.
When asked about the Bybee memo, he said:

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

And he stated a patently false reading of the torture convention that
would allow for foreigners captured overseas to be subjected to cruel,
inhuman, and degrading treatment at the hands of American captors or
surrogates. He appeared to accept the notion that the President has the
authority to immunize somebody to commit torture under his command.
A letter signed by a number of high-ranking former military officers,
including the former head of the Joint Chiefs, GEN John Shalikashvili,
said the interrogation policies that Judge Gonzales helped to define
``have fostered greater animosity toward the United States, undermined
our intelligence-gathering efforts, and added to the risks facing our
troops serving around the world.''
The best evidence we have is that he rejected the advice of Secretary
Powell and career military officers when he recommended to the
President the Geneva Conventions should not apply to the conflict in
Afghanistan. Admiral John D. Hutson, the former Judge Advocate General
of the Navy, testified to the Judiciary Committee that the advice given
by Judge Gonzales to the President on this point was ``shallow in its
legal analysis, short-sighted in its implications, and altogether ill-
advised. Frankly, it was just wrong.''
These military men are joined in opposition to this nomination by a
large number of organizations, including the Leadership Conference on
Civil Rights, the La Raza Centro Legal, and the Mexican-American
Political Association. Three leading human rights organizations, Human
Rights Watch, Human Rights First, and Physicians for Human Rights, none
of which have ever opposed a nomination before, did so for the very
first time. They acknowledge that the struggle to stamp out torture
around the world ``has been made harder by the legal positions adopted
by the Bush Administration, including Mr. Gonzales's refusal to state
that a President could not lawfully order torture.'' The Congressional
Hispanic Caucus and the Mexican American Legal Defense and Educational
Fund both issued statements stating that they cannot support this
nomination. I ask unanimous consent to include in the Record a list of
organizations opposing or not supporting the nomination.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Organizations Opposed to the Confirmation of Alberto R. Gonzales

Alliance for Justice
Americans for Democratic Action
Center for American Progress
Center for Constitutional Rights
Friends Committee on National Legislation
Global Rights: Partners for Justice
Human Rights First
Human Rights Watch
International League for Human Rights
La Raza Centro Legal
Leadership Conference on Civil Rights
The Mexican-American Political Association (MAPA)
Minnesota Advocates for Human Rights
National Alliance for Human Rights
People for the American Way
Physicians for Human Rights
Physicians for Social Responsibility
Plainfield Meeting of the Religious Society of Friends
(Plainfield, VT)
REFUGE (Torture survivors program)
RFK Memorial Center for Human Rights
The Shalom Center
Veterans for Common Sense
Mr. LEAHY. While I have heard partisan attacks from the other side of
the aisle, I have not heard Republicans offer a strong defense of Judge
Gonzales's actions and judgment. What they come back to again and again
is his inspirational life story. Having an Hispanic American serve as
Attorney General is overdue and something to which I look forward.
Having an African American serve as Attorney General is, likewise,
overdue. In his letter to the Judiciary Committee, retired Major
General Melvyn Montano may have said it best: ``Judge Gonzales should
be evaluated on his record, not his ethnicity.''
At particular moments in our history, the Senate at its best can be
the conscience of the Nation. The history books and our children and
grandchildren will look back on these times and make their own
judgments about how worthily the Senate has served that role as we
confront any number of difficult issues in these challenging times. But
I do believe that, whatever the outcome of this confirmation
proceeding, it is worthy of the Senate that we at least held this
debate. It is worthy of the Senate that these issues were deemed
important enough to discuss for several days on the floor of the United
States Senate. To have wished them away or to have just glossed over
them would have been a disservice not only to today's generations of
Americans, in and out of uniform, but also to tomorrow's generations of
Americans. And it would have been a disservice to the Senate that we
all so deeply respect.
I have deeply believed that it should concern the Senate that we have
seen departures from our country's honorable traditions, practices, and
established law in the use of torture, originating at the top ranks of
authority and emerging at the bottom. At the bottom of the chain of
command, we have seen a few courts-martial, but at the top we have seen
medal ceremonies, pats on the back, and promotions.
At his recent inaugural address, I praised President Bush for his
eloquent words about our country's historic support for freedom. But to
be true to that vision, we need a government that leads the way in
upholding human rights, not one secretly developing legalistic
rationalizations for circumventing them. We need to climb our way back
to the high moral ground that has distinguished our great country and
that has been an inspiration to the whole world.
Members of the Senate have a solemn obligation to uphold the law and
the Constitution. Each of us has to decide whether the nominee has the
sound judgment and the independence required to be Attorney General. I
would have been willing to vote for Judge Gonzales in a number of
different positions of Government, but not in this one. I wish we could
vote for his life story and not for the actual record. Unfortunately,
we are voting on the record. I ask each Senator to consider it.
I know that each will consult his or her conscience in reaching a
decision, and that is in keeping with the best traditions of the
Senate.
If I have time remaining, I yield it back.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, it has been a long month for Judge
Gonzales, starting with his hearing on January 6, through today. It has
been a long month for the Senate, as we have considered his testimony,
heard him, deliberated about him, and now 3 days of

[[Page S958]]

argument on the Senate floor about Judge Gonzales. What is striking to
me is how little there has been about the 49 years of this man's life
contrasted with a few meetings where the contents have been grossly
distorted.
This is a man who has an extraordinary record, but it has not been
the subject of analysis or discussion today as to whether he has the
qualifications to be Attorney General of the United States.
What are those qualifications? A man of intellectual achievement, a
graduate of Rice University, a graduate of Harvard Law School,
professional competence demonstrated by practicing law, a distinguished
career as a state supreme court justice in Texas, his work for Governor
George W. Bush in Texas, his work for 4 years as White House Counsel
where he has come into contact with so many Members of the Senate, and
quite a few of those Members have spoken out about him before the
misrepresentations of what happened in a few meetings, which have led
people to inappropriately blame Judge Gonzales for what happened at Abu
Ghraib or Guantanamo.
But what have Members of the Senate had to say about Judge Gonzales
on their work with him?
Senator Kohl said:

We have had an opportunity to work together on several
different issues over the years, and I have come to respect
you also. And I believe if you are confirmed that you will do
a good job as Attorney General of the United States.

Senator Durbin:

I respect him and his life story very much.

Senator Leahy:

. . . I like and respect Judge Gonzales.

Senator Biden:

He has overcome great adversity in his life, and I believe
he is an intelligent, decent, and honorable man.
Senator Schumer, who has had very extensive contact with Judge
Gonzales because the State of New York has a great many Federal judges,
had this to say:

I like Judge Gonzales. I respect him. I think he is a
gentleman and I think he is a genuinely good man. We have
worked very well together, especially when it comes to
filling the vacancies on New York's Federal bench. He has
been straightforward with me and he has been open to
compromise. Our interactions haven't just been cordial; they
have been pleasant. I have enjoyed the give-and-take we have
engaged in.
I was inclined to support Judge Gonzales. I believed and I
stated publicly early on that Judge Gonzales was a less
polarizing figure than Senator Ashcroft had been.
I still have great respect for Judge Gonzales. He has the
kind of Horatio Alger story that makes us all proud to be
Americans. It is an amazing country when a man can rise from
such humble beginnings to be nominated for Attorney General.

And what Senator Schumer was referring to was the fact that there
were seven siblings, a mother and father, two-room accommodations, no
hot water, referring to his Horatio Alger story, up from the bootstraps
without even boots.
When Senator Lieberman took the floor this afternoon, there was for
the first time, except for Senator Salazar, at least as I recollect,
comments from the other side of the aisle about the man's character and
about the man's background.
Well, what happened? There was a memorandum which has been quoted
against Judge Gonzales repeatedly where, referring to the Geneva
Convention, the words ``quaint'' and ``obsolete'' were used. But what
was the context? This is what he said:

This new paradigm--that is, after 9/11--renders obsolete
Geneva's strict limitations on questioning of enemy prisoners
and renders quaint some of its provisions requiring that the
captured enemy be afforded such things as commissary
privileges, scrip--that is, advances of monthly pay--athletic
uniforms, and scientific instruments.

Well, nobody is going to say that al-Qaida or the Taliban would have
any commissary privileges--not an issue. Whether there would be
advances of monthly pay--not an issue. Athletic uniforms--not an issue.
Scientific instruments--not an issue. So there is simply a recognition
that it was quaint, that it didn't apply to the situation at hand.
The charges against Judge Gonzales have been that he was the
architect of what happened at Abu Ghraib and Guantanamo, which is a
stretch beyond any conceivable justification from the record in this
case. What did Judge Gonzales do? Judge Gonzales asked that the
Department of Justice prepare a legal memorandum on the law. That is
the responsibility of the Department of Justice. Then he participated
in several meetings, and he was candid about what happened in those
meetings, as best he or anybody could recall on meetings that happened
several years ago. And then, understandably, he said it was a matter
for the Department of Defense and the Central Intelligence Agency,
where they had the expert questioners, to decide what questions to
propound to the detainees. And from that participation, he has been
charged with monstrous offenses.
The so-called Bybee memorandum of August 2002 has been denounced. It
was denounced by Judge Gonzales. I asked him the specific question
about the assertion in the Department of Justice memorandum that the
President had as much authority on questioning detainees as he had on
battlefield decisions--an absolutely preposterous assertion--and Judge
Gonzales said, no, he disagreed with that. There had been a comment
that he respected the authority of the Department of Justice to render
a legal opinion because of the continuing concern not only from this
President, but prior Presidents, that if the White House tried to tell
the Justice Department what the words were, or to control it, the White
House could be guilty of politicization. Judge Gonzales understandably
steered away from that.
In terms of being deferential to the role of the Department of
Justice, but not to the August 2002 memorandum, which he denounced and
which he said was incorrect when it asserted great powers to the
President, with the suggestion that the President have the power to
ignore the law, or which suggested inferentially, very tenuously about
the President having the authority, were explicit on granting immunity,
which, of course, the President doesn't have the authority to do.
Mr. President, how much time remains of my 15 minutes?
The PRESIDING OFFICER. There is 6 minutes.
Mr. SPECTER. I thank the Chair.
The essence of Judge Gonzales's role was summarized by one of his
statements, consistent with his entire testimony. It is this:

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

There you have Judge Gonzales's role. He listened to the Department
of Justice, which had the responsibility to interpret the law on what
the appropriate conduct was. When it was off the wall or over the top,
he disagreed with it. It is up to the Department of Defense and CIA--
the experts on questioning--to make decisions on those matters.

Judge Gonzales was explicit in his opening statement. He didn't wait
for anybody to ask him any questions about the scope and role of the
Attorney General--that it was much broader than being Counsel to the
President.
On the totality of this record, I suggest to my colleagues that Judge
Gonzales is qualified to be Attorney General of the United States. When
you look at his life, some 49 years, and at the values which he
demonstrated in many lines, values he demonstrated as a young man
facing great adversity and achieving a college education at Rice--that
is not easy--going to the Harvard Law School--that is not easy--
practicing law with a prestigious firm and distinguishing himself;
taking on a responsibility for the Governor of Texas; being a justice
on the State Supreme Court; and his positions as White House counsel
were very progressive and independent. He took a

[[Page S959]]

stand in opposition to the White House, favoring affirmative action on
the University of Michigan lawsuit, a very controversial matter. It is
not easy for White House Counsel to stand up in the midst of a great
deal of polarized contentions and be in favor of affirmative action.
When the Texas statute came up--the so-called bypass--on what a young
woman had to do to obtain an abortion with respect to satisfying the
requirements for an order of the court allowing a bypass, Judge
Gonzales took a position which was sharply criticized by those on the
far right of the party, showing independence, showing values, showing
judgment. You can contrast that with a few meetings where Judge
Gonzales played an appropriate role, except to the extent that there
have been representations and attenuations and inferences that are far
beyond any of the testimony or anything that has been said.
So if you take the scanty fathoms, scanty ideas, scanty speculation--
I guess that is the best word--from those meetings, it is totally
unsubstantiated by the record; and everything on the record shows Judge
Gonzales is worthy of being confirmed as Attorney General of the United
States.
I thank the Chair and yield the floor. I am sure the leaders will
appear shortly to take the remainder of their time. In the absence of a
Senator seeking recognition, I 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. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. CHAFEE). Without objection, it is so
ordered.
Mr. REID. Mr. President, our great Nation was founded on the idea of
human rights. From the very beginning, we were designed to be a place
where men and women could live free, a place where no man was above the
law, a place where the state would never trample on the rights of
individuals.
We did not always live up to our ideals. Along the way, we stumbled.
We have made mistakes. But we always worked to correct our mistakes. We
worked to uphold the core values that formed our national soul.
Because of our unshakable belief in human rights, we became a ray of
light, a beacon for people in other parts of the world. America has
been that beacon because we are a nation governed by laws, not by men.
We are a nation where no one, not even the President of the United
States, is above the law. We are a nation where our military is bound
by the uniform Code of Military Justice and the laws of war. And we are
a nation that even at war stands for and upholds the rule of law.
There is no question gathering intelligence from suspects in our war
on terror is critical to protecting this great Nation. No one in this
Chamber would argue otherwise, I would think. These are very bad people
with whom we are dealing. But when interrogation turns to torture, it
puts our own soldiers at risk. It undermines the very freedoms
Americans are fighting to protect.
We are a nation at war--a war in Iraq and a war against terrorism--
but this war does not give our civilian leaders the authority to cast
aside the laws of armed conflict, nor does it allow our Commander in
Chief to decide which laws apply and which laws do not apply. To do so
puts, I repeat, our own soldiers and our Nation at risk.
But that is what has occurred under the direction and coordination of
the man seeking to be Attorney General of the United States, Alberto
Gonzales, a man I personally like, but whose judgment on these very
serious matters was flawed and is flawed.
I have heard a great deal on this Senate floor about Judge Gonzales's
background over the last few days, how his parents were migrant farm
workers, and how he worked his way up from poverty. It is an inspiring
story, and it is one that resonates with me.
I met with Judge Gonzales after the President sent his nomination to
the Senate. We talked about our childhoods, about coming from small
rural towns, some would say without many advantages. The fact that
someone from a place called Humble, TX, and someone from a place called
Searchlight, NV, have had an opportunity to achieve their dream is what
America is all about.
But, embodying the American dream is not a sufficient qualification
to be Attorney General of the United States.
The Attorney General is the people's lawyer, not the President's
lawyer. He is charged with upholding the Constitution and the rule of
law. The Attorney General must be independent, and he must be clear
that abuses by our Government will not be tolerated.
Judge Gonzales's appearance before the Judiciary Committee raised
serious questions about his ability to be that force in the Justice
Department. That is why I am going to vote against him.
In 2002, Judge Gonzales provided legal advice to the President of the
United States calling parts of the Geneva Conventions obsolete and
quaint--that is what he said, they were obsolete and quaint--opening
the door for confusion and a range of harsh interrogation techniques.
What are the Geneva Conventions? At the end of the Civil War, people
from around the world decided there should be some semblance of order
in how war is conducted. Starting in 1864, there was a convention
adopted, and there have been four revisions to the Geneva Convention.
That is why it is referred to as the Geneva Conventions because it is,
in effect, four treaties.

This is basically an agreement concerning the treatment of prisoners
of war, of the sick, wounded, and dead in battle. These are treaties
that relate to what happens to human beings in war. These conventions
have been accepted by virtually every nation in the world.
A former Navy judge advocate general, RADM John Hutson, said:

When you say something down the chain of command, like `the
Geneva Conventions don't apply,' that sets the stage for the
kind of chaos we have seen.

The President signed an order accepting the reasoning of the Gonzales
memo. The Presidential order was the legal basis for the interrogation
techniques and other actions, including torture, which simply took as
fact that the Geneva Conventions did not apply.
Can you imagine that, the United States saying the Geneva Conventions
do not apply? But that is what took place.
Our military lawyers, not people who are retired acting as Monday-
morning quarterbacks, but our military lawyers who are working today,
who are experts in the field, have said the interrogation techniques
authorized as a result of the Presidential order and allowed under the
Gonzales reasoning were in violation of the U.S. military law, the U.S.
criminal law, and international law.
According to RADM Don Guter, a former Navy judge advocate general:

If we--we being the uniformed lawyers--that is, the lawyers
who are in the U.S. military--had been listened to and what
we said put into practice, then these abuses would not have
occurred.

So the people who serve in our military who gave legal advice said
this should never have happened.
After the scandal at Abu Ghraib and the recent allegations of abuse
at Guantanamo, I expected at this hearing before the Judiciary
Committee to hear Judge Gonzales discuss the error of the
administration's policies and the legal advice he provided the
President.
When he came before the committee, Judge Gonzales stood by his legal
reasoning and the policy of his reasoning. Judge Gonzales called the
President's Geneva determination ``absolutely the right decision.''
With regard to the legal opinion Judge Gonzales solicited in the
Justice Department so-called ``torture memo,'' he stated at his
hearing, ``I don't have a disagreement with the conclusions then
reached by the Department,'' even though the Department itself has now
disavowed this legal reasoning.
I heard Senator Kennedy state that the dean of Yale Law School,
probably the No. 1 law school in the entire country, has said he has
never seen legal reasoning as bad as the Gonzales memo. That is pretty
bad.
For example, military lawyers who are experts in the field have said
without the order issued by the President, at Mr. Gonzales's behest,
they would take the position that the interrogation techniques used
against Taliban prisoners and later in Iraq would be violations of U.S.
military law, U.S. criminal law, and international law.

[[Page S960]]

So who are we to believe? These people who are dedicated to making
sure that they, as the legal officers of the U.S. military, do what is
right? They say we should follow the Geneva Conventions. Gonzales
said--not necessary.
I will say a word about the interrogation techniques that were
authorized. They included forced nakedness, forced shaving of beards,
and the use of dogs, just to name a few. Many are specifically designed
to attack the prisoner's cultural and religious taboos.
In describing them, the similarities to what eventually happened at
Abu Ghraib are obvious. Once you order an 18-year-old, a young man or
woman, to strip prisoners naked, to force them into painful positions,
to shave their beards in violation of their religious beliefs, to lock
them alone in the dark and cold, how do you tell him to stop? You
cannot.
We have seen the pictures of naked men stacked on top of each other
in the so-called pyramid; rapes of men, rapes of women, leading in some
cases to death. How does one tell an American soldier that torture is a
valid treatment as long as the Government says the prisoner is not
covered by the Geneva Conventions?
Any student of history would know that the North Vietnamese said
captured U.S. pilots were not protected as prisoners of war because
there was no declared war. That is what happened in the Vietnam war.
They kept our men in solitary confinement for months, sometimes years
at a time.
I will tell my colleagues about one of our men and what that man said
about his treatment by the Vietnamese:

It's an awful thing, solitary. It crushes your spirit and
weakens your resistance more effectively than any other form
of mistreatment. . . .

Here, I would make an editorial comment that this man knows about any
other kind of treatment. He was brutally beaten, limbs broken, limbs
already broken rebroken. So he knows what he is talking about. So I
repeat, a direct quote:

It's an awful thing, solitary. It crushes your spirit and
weakens your resistance more effectively than any other form
of mistreatment. Having no one else to rely on, to share
confidences with, to seek counsel from, you begin to doubt
your judgment and your courage.

The man who said these words was a Navy pilot, LCDR John McCain. For
John McCain and all our soldiers serving across the globe, we need to
stand against torture because of what it does to us as a country, to
those serving now, to the future servicemen of our country, and what it
does to us as a nation.
If we fail to oppose an evil as obvious as torture--it is an evil and
it is obvious it is wrong--then as President Thomas Jefferson said, I
will ``tremble for my country when I reflect that God is just.''
I 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. FRIST. 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. FRIST. Mr. President, the Senate is about to vote on the
nomination of Judge Alberto Gonzales for Attorney General. We have had
3 days of spirited debate. I am gratified that my colleagues on the
other side of the aisle decided not to block an up-or-down vote on his
nomination.
Judge Gonzales is eminently qualified to serve as our Nation's top
law enforcement officer. He is an outstanding candidate who deserves
our strong support.
Unfortunately, during the course of this process a number of
groundless criticisms have been unfairly leveled against Judge
Gonzales, many of them based on exaggeration or quotations taken out of
context. I will take this opportunity to very briefly address them for
the record.
First, President Bush does not have, nor has his administration ever
had, an official Government policy condoning or authorizing torture or
prisoner abuse.
Let me restate for the record an excerpt from a Presidential memo
dated February 7, 2002:

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. . . .As a matter of policy, the United States
Armed Forces shall continue to treat detainees humanely and,
to the extent appropriate and consistent with the military
necessity, in a manner consistent with the principles of the
Geneva Conventions governing the laws of war.

Second, neither Judge Gonzales nor the President have condoned,
advocated, or authorized torture of prisoners. In fact, on numerous
occasions both have explicitly condemned torture as an abhorrent
interrogation technique.
Third, Judge Gonzales was not the author but the recipient of memos
focusing on interrogation methods of captured terrorists. The research
memos that have been the focus of so much attention and criticism were
written by the Office of Legal Counsel of the Department of Justice to
Judge Gonzales as White House Counsel. The memos explored the legal
interpretation of a Federal law. They did not set administration
policy. The Department of Justice has since categorically withdrawn
this controversial legal analysis, stating unequivocally:

Torture is abhorrent, both to American law and to
international norms.

These are the facts, straight and simple. Judge Gonzales has acted
with total professionalism and high regard for the law. Suggestions to
the contrary are baseless and a slur against an honorable man. Judge
Gonzales is highly qualified to be America's next Attorney General.
Judge Gonzales is a man of keen intellect, high achievement, and
unwavering respect for the law. He will continue to build on the
success of the last 4 years in reducing crime, fighting corporate
fraud, and upholding our civil rights. As our first Hispanic-American
Attorney General, Judge Gonzales will stand as an inspiration to all
Americans. I urge my colleagues to offer their full support to Alberto
Gonzales as our next Attorney General.
Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Alberto R. Gonzales, of Texas, to be Attorney General?
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent--the
Senator from Montana (Mr. Burns).
Further, if present and voting, the Senator from Montana (Mr. Burns)
would have voted ``yea.''
Mr. DURBIN. I announce that the Senator from Montana (Mr. Baucus),
the Senator from North Dakota (Mr. Conrad), and the Senator from Hawaii
(Mr. Inouye) are necessarily absent.
I further announce that, if present and voting, the Senator from
Hawaii (Mr. Inouye), would vote ``nay.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 60, nays 36, as follows:

[Rollcall Vote No. 3 Ex.]

YEAS--60

Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burr
Chafee
Chambliss
Coburn
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Landrieu
Lieberman
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Salazar
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner

NAYS--36

Akaka
Bayh
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Clinton
Corzine
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Jeffords
Johnson
Kennedy
Kerry
Kohl
Lautenberg
Leahy
Levin
Lincoln
Mikulski
Murray
Obama
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Wyden

NOT VOTING--4

Baucus
Burns
Conrad

Inouye

The nomination was confirmed.
Mr. McCONNELL. Mr. President, I move to reconsider the vote and I
move to lay that motion on the table.

[[Page S961]]

The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The President will be notified of the Senate's
action.

____________________