[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

[[Page S952]]

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.

                          ____________________