[Congressional Record (Bound Edition), Volume 151 (2005), Part 1]
[Senate]
[Pages 1112-1130]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

        NOMINATION OF ALBERTO R. GONZALES TO BE ATTORNEY GENERAL

  The PRESIDING OFFICER. Under the previous order, the hour of 10:45 
a.m. having arrived, the Senate will proceed to executive session for 
the consideration of Executive Calendar No. 8, which the clerk will 
report.
  The assistant legislative clerk read the nomination of Alberto R. 
Gonzales, of Texas, to be Attorney General.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, we are proceeding at the moment to the 
nomination of White House Counsel Alberto Gonzales to be Attorney 
General of the United States of America. He had served as a judge on 
the Supreme Court of Texas and has been commonly referred to as Judge 
Gonzales, which I shall do during the course of my presentation.
  Judge Gonzales, 49, comes to this nomination to be the chief law 
enforcement officer of the United States with an extraordinary record.
  He was one of eight children, sharing a two-room living quarters with 
their parents. They had no hot water, no telephone. He pursued an 
academic career, first at the military academy; then at Rice 
University, where he graduated; and then at the Harvard Law School.
  He went into the private practice of law and then was asked by then-
Governor George Bush to work with him in the Governor's office.
  Judge Gonzales then, as noted, was a justice of the Supreme Court of 
Texas. With the election of Governor Bush to the White House, Judge 
Gonzales has been White House Counsel for the last 4 years.
  It is not irrelevant to note that Judge Gonzales would be the first 
Hispanic to be Attorney General of the United States. That is quite a 
dramatic rise in the legal community.
  When I was elected district attorney of Philadelphia some time ago, 
in 1965, there was not a single Hispanic lawyer in Philadelphia. At 
that time, I made an effort of outreach to bring minority 
representation into the district attorney's office as assistants and 
could not find a single Hispanic. So there has been a great deal of 
progress. Now there are Hispanic Federal judges in Philadelphia, State 
court judges, city solicitors, prominent attorneys, but Judge Gonzales 
would be the first Hispanic to be Attorney General of the United 
States, if confirmed.
  He will bring, I think, a unique perspective because of his minority 
status. I think he would have a broader view, a different view on civil 
rights. We have an issue which is subject to some congressional 
oversight where some 762 alien detainees were rounded up after

9/11, and according to a report by the Inspector General of the 
Department of Defense, there was never any showing of connection to 
terrorism or to al-Qaida or to any reason for their detention.
  While we know we live in a very dangerous world, there has to be some 
reason--it may not be as strong as probable cause for an arrest, or 
probable cause for search and seizure, or even sufficiency for stop and 
frisk--but there has to be a reason for detention. That is something of 
which I think Judge Gonzales might have some greater perspective.
  Judge Gonzales, I think, also would be expected to have a broader 
view on the immigration laws, being Hispanic, being from Texas, seeing 
the kinds of problems which are present both from the point of view of 
stopping illegal immigrants and also from the point of view of 
immigrants who come to this country who seek a better way of life.
  Similarly, I think he might have some greater insights into voting 
rights. He took a position broadly viewed as divergent from the 
administration on affirmative action in the controversial cases 
involving the University of Michigan. Affirmative action, always a 
complicated, controversial subject, but one where differing views and a 
broader perspective is a quality that would be well served in the 
Attorney General of the United States.
  He also took a broader view on the issue of what was required on 
parental notification under the Texas statute, drawing opposition from 
some on the so-called right of the party. There again, a little 
different view and a little broader view reflective of his background 
and his own attitudes.
  A great deal of the hearing process on Judge Gonzales has been 
involved on the issue of compliance with the Geneva Convention, on 
compliance with the statutes of the United States which prohibit 
torture. A great deal has been made of a statement made by Judge 
Gonzales with respect to the Geneva Conventions. He has been broadly 
quoted on a statement that some of the Geneva Convention's limitations 
are obsolete or quaint. In an opinion which he circulated, he said 
this:

       In my judgment, this new paradigm--

  referring to what has happened after 9/11--

     renders obsolete Geneva's strict limitations on questioning 
     of enemy prisoners and renders quaint some of its provisions.

  That part of the statement is the one always quoted, and the comment 
on ``quaint'' and the comment on ``obsolete'' have drawn a lot of 
criticism. But almost nowhere has there been a followup on what he was 
referring to. But what he said, continuing:

     . . . renders quaint some of its provisions requiring that 
     captured enemy be afforded such things as commissary 
     privileges, scrip--i.e., advances of monthly pay--athletic 
     uniforms and scientific instruments.

  Well, when you see the reference here to ``items like commissary 
privileges,'' I don't know that that would be exactly something to be 
concerned about on a prisoner, or scrip or advances of monthly pay or 
athletic uniforms or scientific instruments. So in that context, to say 
it is ``quaint'' or ``obsolete'' is not to challenge the underlying 
provisions of the Geneva Convention on its important substantive 
provisions.

[[Page 1113]]

  In Judge Gonzales's statements and testimony before the Judiciary 
Committee, he has been very emphatic about his personal opposition to 
torture and about the opposition of the administration to torture. He 
has been emphatic on his opposition to transporting detainees to other 
countries which permit torture to enable detainees to be tortured in 
other countries where they could not be under the auspices of the 
United States. He has been explicit in articulating the view that the 
CIA is bound by the same rules prohibiting torture as anyone else.
  He has come under considerable criticism for the so-called Bybee 
memorandum which was issued in August of 2002, signed by Jay Bybee, 
then Assistant Attorney General of the United States, where the 
memorandum was requested so that there would be a full statement and an 
understanding of what the law required to comply with the statutes 
prohibiting torture in the United States.
  That memorandum was erroneous in its legal conclusions, as has been 
generally agreed to, and has been withdrawn by the Department of 
Justice. The interpretation of what constituted torture was very 
extreme, referring to the kind of excruciating pain and loss of bodily 
function, certainly not a realistic or an adequate or a definition of 
torture which would withstand legal analysis or legal scrutiny.
  The memorandum was extreme and excessive in a statement, an 
articulation of executive power. One example was the statement that the 
President of the United States had as much authority on questioning of 
detainees as the President had on battlefield decisions, which 
obviously makes no sense. When you talk about a battlefield decision, 
that is a prerogative of the Commander in Chief, as it is delegated 
down through field commanders. But that kind of authority does not 
reside in the President on an issue such as the questioning of 
detainees.
  The memo went quite far in suggesting that the President had 
authority to ignore statutes if he felt they were unconstitutional. 
There has been some question raised, although it is not explicit in the 
Bybee memo, about the authority of the President to immunize those who 
violate the law. That certainly is not lawful. When you talk about 
immunizing, you talk about judicial action in the context where there 
is a statute by the Congress of the United States authorizing immunity 
in a given context, immunity from criminal prosecution to disclose some 
information, but there is no suggestion anywhere that the President has 
the authority to immunize executive branch officials from noncompliance 
with the law.
  We find Judge Gonzales essentially working as White House counsel, 
working for the President in a role which he was very emphatic in 
distinguishing from the role of the Attorney General of the United 
States. As Attorney General he has a responsibility to represent all of 
the people. As counsel to the President, as White House counsel, his 
responsibility is limited only to the President.
  The memorandum by the Department of Justice was requested in order to 
have the legal interpretation as to what the appropriate line of 
questioning could be in order to be in compliance with the law. That 
was the role of the Department of Justice. It was not the role of Judge 
Gonzales. Then the decision as to what the questions would be, what the 
interrogation would be is the role of the Department of Defense, again, 
not the role of Judge Gonzales.
  Judge Gonzales has been very forthcoming, being available and meeting 
with some 27 Senators, which is said to be a record in being available 
to everyone on the Judiciary Committee and beyond, submitting to up to 
four rounds of questioning, 10 rounds each, and then in some cases the 
third round of 15, and in one case the fourth round of 22 minutes, and 
then responding to very broad questions, with the New York Times 
commenting that the responses of more than 200 pages of answers to 
questions was the most expansive view by the administration of its 
techniques and procedures on the questioning of detainees. So there is 
no doubt that Judge Gonzales has responded very broadly to the 
inquiries made of him.
  There has been a challenge that he has not answered all the questions 
because he could not recall specific conversations which were held 
years before, but that is entirely understandable.
  There were questions about discussions where representatives of the 
executive branch got together to discuss the specifics of the 
Department of Justice memorandum and the interrogation techniques to be 
employed by the Department of Defense. One of his answers to one of the 
written questions propounded gives a fair summary in a fairly 
abbreviated form as to Judge Gonzales's role. These are his words:

       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 law. During that time, I 
     have participated in several meetings at which possible uses 
     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, the 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 a 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.

  That would bear repeating, ``always very clear that we would 
implement such methods only within the bounds of the law.'' Judge 
Gonzales continues:

       As counsel to the President, my constant emphasis and 
     interest was on the last factor, ensuring compliance with the 
     law. It would not have been appropriate for me to comment on 
     issues such as whether a particular individual may have 
     information that would be helpful to the effort to save 
     American lives or to defeat terrorists or whether a certain 
     procedure for questioning that individual would be effective 
     in eliciting that information. Others with more relevant 
     experience, expertise, and information were responsible for 
     making those judgments. Instead it was my responsibility to 
     ensure that any method they deemed appropriate and effective 
     from an operational point of view was considered lawful by 
     the Department of Justice. To the extent I was involved in 
     recommendations, results, and assignments arising out of such 
     meetings, my activities were directed toward ensuring that 
     those with operational responsibilities would act only after 
     receiving the judgment of the Department of Defense that a 
     proposed course of action was lawful.

  That is the end of Judge Gonzales's statement on that. His role was 
reasonably, clearly delineated. He represented the President. He was 
responsible for saying what were the outlines of the law, or what was 
lawful. Those practices were defined by the Department of Justice 
Office of Legal Counsel, which has the responsibility to do that. And 
then anything beyond the legal techniques of the questions would lie 
with those who have the expertise, as he described it, and the 
experience, and the responsibility from the Department of Justice or 
from the Central Intelligence Agency.
  There was one other statement by Judge Gonzales in response to a 
question by Senator Kennedy, which I think is a summary, which 
delineates his own role. When asked about a specific newspaper article 
and about events that occurred several years before, Judge Gonzales 
replied:
  Sir, I don't have any specific recollection. I read the same article. 
I don't know whether or not it was the CIA [that was in reference as to 
whether it was a CIA request]. What I can say is that after this war 
began against this new kind of threat, this new kind of enemy, we 
realized that there was a premium on receiving information. In many 
ways, this war on terror is a war about information. If we have 
information, we can defeat the enemy. We had captured some really bad 
people who we were concerned had information that might prevent the 
loss of American lives in the future. It was important to receive that 
information, and people at the agencies wanted to be sure that they 
would not do anything that would violate our legal obligations, so they 
did the right thing; they

[[Page 1114]]

asked questions--what is lawful conduct, because we don't do anything 
that violates the law.
  So here again is a capsule statement of Judge Gonzales's role. He is 
representing the President. He is not looking to determine what the 
appropriate scope of conduct is. That is a matter to be determined by 
those who are involved in questioning the detainees.
  That is the essence of what I believe--to be succinct and to the 
point of the issue. There are a great many other responses that could 
be read, a great many other arguments that could be advanced. I will 
reserve further responses on this matter as the course of the argument 
develops.
  I thank my colleague, Senator Hatch, for coming early in the 
proceedings to make a cogent argument.
  Mr. President, I have sought recognition today to state my support 
for the nomination of Alberto Gonzales to be Attorney General of the 
United States.
  First, I would like to describe Judge Gonzales's personal background. 
He has had an extraordinary life and career. His personal story is one 
of dedication and courage--the sort of story that is possible only in 
America, where the dreams of even the most humble citizens can be 
achieved through hard work and discipline.
  Judge Gonzales was born in San Antonio, Texas, and raised in the 
small town of Humble, just outside of Houston. Although he and his 
seven siblings shared a two-room house that lacked either a telephone 
or hot running water, Judge Gonzales refused to be deterred by his 
difficult circumstances. He journeyed through Texas public schools, 
graduating from a Texas high school. Judge Gonzales then chose to serve 
his country by joining the Air Force and serving for approximately 2 
years before entering the United States Air Force Academy for a 2-year 
stint. Shortly thereafter, he accomplished his childhood dream of 
graduating from Rice University. Following his graduation from Rice, 
Judge Gonzales went on to graduate from the Harvard Law School.
  In June of 1982, he joined the law firm of Vinson & Elkins in 
Houston, TX, where he later became a partner. Not content merely to 
practice law without giving back to the profession, Judge Gonzales also 
taught law as an adjunct professor at the University of Houston Law 
Center.
  The opportunity for service arose again when then-Governor Bush asked 
Judge Gonzales to leave his law firm to become the Governor's General 
Counsel. Thereafter, Judge Gonzales embarked upon a distinguished 
career in public service, including service as Texas's 100th Secretary 
of State from December 2, 1997 to January 10, 1999.
  In what would be a capstone for many lawyers' careers, in 1999 Judge 
Gonzales was appointed a Justice of the Supreme Court of Texas--a job 
he loved, and the reason he is still today known as Judge. Although he 
enjoyed his job on the Texas Supreme Court, the President called upon 
him to serve his country as the White House Counsel, a position he 
filled throughout the administration's first term.
  Mr. President, no one in the Senate could take issue with Judge 
Gonzales's remarkable rise to prominence, and the obvious talent and 
ability that fueled it. Indeed, I think we are all in agreement about 
that. Nevertheless, Judge Gonzales finds himself confronting 
substantial opposition from my colleagues across the aisle. The 
purported reasons do not justify the opposition.
  First, the opponents of Judge Gonzales have succeeded in confusing 
the public about his views on torture. To listen to Judge Gonzales's 
critics, one would think that the policy of the United States was to 
promote or sanction torture, and that Judge Gonzales somehow 
established such a policy. Last week, for example, the senior Senator 
from Massachusetts stood on the Senate floor and accused Judge Gonzales 
of being a participant ``in the shameful decision by the administration 
to authorize the torture of detainees at Guantanamo and in Iraq.'' That 
charge is simply false. In fact, the White House has made very clear 
that the United States policy and law prohibit torture, and the 
President himself has insisted upon humane treatment for detainees. 
Judge Gonzales has been emphatic in his agreement with this position. 
When asked, point blank, by the senior Senator from Illinois whether 
U.S. personnel can legally engage in torture under any circumstances, 
Judge Gonzales answered: ``Absolutely no. Our policy is we do not 
engage in torture.'' To which my colleague replied: ``Good. I am glad 
that you have stated that for the record.''
  Despite that exchange, and others like it, some critics, including 
the editors of the Washington Post and New York Times, have 
mischaracterized Judge Gonzales's answers to the committee's questions. 
In its editorial of January 26th, the Post claimed that Judge Gonzales 
had asserted the administration's right to, among other things, 
``transport [foreigners] to countries where torture is practiced.'' In 
response to a question on this topic posed by my colleague from 
Massachusetts, however, Judge Gonzales wrote: ``The policy of the 
United States is not to transfer individuals to countries where we 
believe they likely will be tortured, whether those individuals are 
being transferred from inside or outside the United States.'' He added, 
``I am not aware of anyone in the Executive Branch authorizing any 
transfer of a detainee in violation of that policy.''
  In case this was not clear enough, Judge Gonzales reiterated to the 
Senator from Massachusetts: ``United States policy is clear--the 
President has directed that the United States is not to engage in 
torture anywhere in the world and is not to transfer detainees from 
anywhere in the world to other countries where they likely will be 
tortured.''
  In the New York Times editorial, also dated January 26th, it is 
argued that the ``biggest strike against Mr. Gonzales'' is the fact 
that a ``now repudiated'' Justice Department memorandum giving a 
``narrow definition of torture'' was addressed to him. This ignores 
several facts: First, Congress--not the Administration--enacted the 
definition of ``torture.'' In 1994, Congress defined torture as ``an 
act committed by a person acting under the color of law specifically 
intended to inflict severe physical or mental pain or suffering (other 
than pain or suffering incidental to lawful sanctions) upon another 
person within his custody or physical control.''
  The now repudiated Justice Department memorandum suggested that 
``severe physical pain,'' as used in the torture statute, should be 
construed narrowly to mean the type of pain ordinarily ``associated 
with a sufficiently serious physical condition or injury such as death, 
organ failure, or serious impairment of body functions--in order to 
constitute torture.'' But, Judge Gonzales was not the author of this 
offending language, and--as I will discuss at greater length later--he 
has rejected this narrow view of what constitutes torture.
  Moreover, while the memo has now been repudiated and replaced by one 
widely acknowledged to be more appropriate, neither memo altered the 
President's policy that detainees are to be treated humanely.
  The Times editorial also cites a leaked draft memorandum from Judge 
Gonzales to the President. Some on the Judiciary Committee, including 
the Ranking Minority Leader from Vermont and the senior Senator from 
Massachusetts, have mischaracterized this draft memo as a disavowal of 
the Conventions. Again, this ignores what Judge Gonzales has written 
and said. The language from the leaked memorandum is often taken out of 
context. The relevant passage reads as follows:

       The nature of the new war [against terrorism] places a high 
     premium on other factors, such as the ability to quickly 
     obtain information from captured terrorists and their 
     sponsors in order to avoid further atrocities against 
     American civilians, and the need to try terrorists for war 
     crimes such as wantonly killing civilians. In my judgment, 
     this new paradigm renders obsolete Geneva's strict 
     limitations on questioning of enemy prisoners and renders 
     quaint some of its provisions requiring that captured enemy 
     be afforded such things as commissary privileges, scrip 
     (i.e., advances of monthly pay), athletic uniforms, and 
     scientific instruments.

  At his hearing, Judge Gonzales reasserted his commitment to the 
Geneva Conventions as a whole. He told the

[[Page 1115]]

Judiciary Committee in no uncertain terms: ``I consider the Geneva 
Conventions neither quaint nor obsolete.'' And he stressed that, 
``[t]he President has repeatedly condemned torture and made clear that 
the United States will not condone torture.'' When asked about 
potential changes to the Conventions, he noted: ``I'm not suggesting 
that the principles of Geneva regarding basic treatment, basic decent 
treatment of human beings, should be revisited. That should always be 
our polestar.'' Further, in response to another Democratic Judiciary 
Committee Member, Judge Gonzales reiterated, ``Yes, I do denounce 
torture, and if confirmed as Attorney General, I will prosecute those 
who engage in torture.''
  Finally, none of those standing in opposition to Judge Gonzales has 
come close to articulating a viable case for linking the actions of 
Judge Gonzales to the so-called ``migration'' of a flawed interrogation 
policy to the atrocities committed at Abu Ghraib, and perhaps 
elsewhere. Despite multiple investigations, including several discussed 
at our hearing, no one has established a link--even an attenuated one--
between Judge Gonzales and improper interrogation techniques in the 
field; I have yet to see anything other than supposition and 
conjecture.
  So, Mr. President, I think that Judge Gonzales has been clear about 
the United States' policy and his own views against torture, leaving no 
meaningful basis to oppose his nomination on such grounds.
  As I have already indicated, another issue that has been 
misrepresented by Judge Gonzales' opponents is his stance with respect 
to the Office of Legal Counsel's memorandum on the anti-torture 
statute, the so-called Bybee memo.
  At the Judiciary Committee's last Executive Meeting, the senior 
Senator from Massachusetts suggested that Judge Gonzales had failed to 
reject the memorandum. The record established the contrary. For 
example, Judge Gonzales has rejected the Bybee Memorandum's overbroad 
statement of Executive authority. In response to the Committee's 
questions about the memorandum, Judge Gonzales said:

       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. And, in addition to that, as I have 
     said repeatedly today, this administration does not engage in 
     torture and will not condone torture.

  During his hearing, I asked Judge Gonzales: ``Do you agree with the 
statement in the memo, `Congress may no more regulate the President's 
ability to detain and interrogate enemy combatants than it may regulate 
his ability to direct troop movements on the battlefield'?'' Judge 
Gonzales answered: ``I reject that statement, Senator.'' This is a 
clear and unequivocal answer.
  Moreover, Judge Gonzales has explicitly recognized that Presidential 
authority in this area is indeed limited. Among other things, he has 
noted:

       We in the executive branch, of course, understand that 
     there are limits on Presidential power. We are very, very 
     mindful of Justice O'Connor's statement in the Hamdi decision 
     that a state of war is not a blank check for the President of 
     the United States with respect to the rights of American 
     citizens. I understand that and I agree with that.

  In addition, at his confirmation hearing, Judge Gonzales testified 
that he did not agree with the portion of the Bybee Memorandum stating 
that severe physical pain, as used in the torture statute, was limited 
to pain equivalent to organ failure, impairment of bodily function, or 
even death. In response to a question from the Committee's Ranking 
Member, for example, Judge Gonzales agreed that horrific conduct, such 
as cutting off someone's finger, would be considered torture. 
Nevertheless, at the Executive Meeting, the Senator from Massachusetts 
continued to suggest that Judge Gonzales might somehow condone conduct 
such as, ``[b]eating you, suffocating you, ripping out your 
fingernails, burning you with hot irons, suspending you from hooks, 
putting lighted cigarettes in your ear.''
  Such hyperbole, Mr. President, serves to highlight the fact that 
arguments against Judge Gonzales have ignored significant statements by 
this nominee. Judge Gonzales has taken important steps towards 
accommodating the legislative branch of government through his 
rejection of the Bybee dicta and his concessions on the limits of 
presidential power. Ignoring such efforts is the wrong way to approach 
such an important nomination and the wrong way to assess such a fine 
and worthy nominee.
  On a related note, my colleague from Massachusetts and other critics, 
including the New York Times, have seized upon the fact that the 
President's February 2002 directive regarding the humane treatment of 
prisoners is addressed to the Nation's Armed Forces to suggest that 
somehow the CIA has been operating without legal constraints. The 
senior Senator from Massachusetts, for example, has alleged that Judge 
Gonzales ``evaded answers to questions about whether the CIA can abuse 
prisoners, even if the military is prohibited from doing so.'' This is 
directly contradicted by Judge Gonzales's responses to the Judiciary 
Committee's written questions. For example, Judge Gonzales has written:

       The CIA and other intelligence agencies are fully bound by 
     the prohibition on torture contained in 18 U.S.C. Sec. 2340 
     and Sec. 2340A and, depending on the circumstances, by other 
     criminal statutes such as those defining crimes in the 
     special maritime and territorial jurisdiction of the United 
     States. Those statutes prohibit, for example, assault (18 
     U.S.C. Sec. 113) and maiming (18 U.S.C. Sec. 114). These 
     criminal prohibitions prevent abuse of detainees by 
     intelligence officers. In fact, the Department of Justice is 
     currently prosecuting a CIA contract employee for various 
     charges of assault under 18 U.S.C. Sec. 113.

  Despite such answers, my colleague from Massachusetts continues to 
accuse the administration of sending ``the message that anything goes 
to our troops and intelligence officers in the field.'' To the 
contrary, Judge Gonzales has stressed that the ``CIA and other 
intelligence agencies are fully bound'' by the laws against torture. 
And, as further noted by Judge Gonzales, the CIA and other agencies 
have sought Department of Justice guidance concerning the boundaries 
emanating from U.S. obligations under, for example, Article 16 of the 
Convention Against Torture.
  In fact, let me take a moment to address Article 16 directly. Some 
have suggested that the administration's interpretation of Article 16 
has been used to justify or facilitate the cruel, inhumane or degrading 
treatment of aliens overseas. Just last week, for example, the senior 
Senator from Massachusetts accused Judge Gonzales of saying ``that the 
CIA is not bound by the prohibition on cruel, inhumane and degrading 
treatment in Article 16 of the Convention Against Torture.'' Again, 
this ignores the testimony of Judge Gonzales. At our hearing, Judge 
Gonzales noted that, when the Senate ratified the Convention Against 
Torture, it took a reservation equating the requirements under Article 
16 with the requirements under the Fifth, Eighth, and 14th Amendments. 
Judge Gonzales further acknowledged that, when interpreting these 
requirements, the Administration has looked to Supreme Court precedents 
holding that aliens interrogated by U.S. personnel outside the United 
States enjoy no substantive rights under the Fifth, Eighth, and 14th 
Amendment. Nevertheless, regardless of the debate about the strict 
legal requirements of Article 16, Judge Gonzales testified that the 
administration has sought ``to be in compliance as a substantive matter 
under the Fifth, Eighth, and 14th Amendment.'' He also testified that, 
to the best of his knowledge, the United States has met its substantive 
obligations under the Fifth, Eighth, and 14th Amendments. This 
commitment has often been overlooked by the Judge's opponents.
  Contrary to the claims of his critics, Judge Gonzales also 
acknowledged that, based on his review of the relevant investigations, 
the responsibility for what happened at places like Abu Ghraib extends 
further up the chain than the culpable guards. The Senator from 
Massachusetts accuses Judge Gonzales and others in the administration 
of a ``continuing effort to pin the blame for the torture scandal on a 
few bad apples among our solders.'' In reality, however, Judge Gonzales 
testified:


[[Page 1116]]

       The reports [by Schlesinger, Faye, Kearns and others] seem 
     to indicate that there was a failure, there was a failure of 
     discipline amongst the supervisors of the guards there at Abu 
     Ghraib, and also they found that there was a failure in 
     training and oversight at multiple layers of Command Joint 
     Task Force 7. And so I think there was clearly a failure well 
     above the actions of the individuals who actually were in the 
     prison. At least that's what the reports seem to indicate, as 
     I review them.

  At the same time, he rejected the notion that inhumane treatment was 
tolerated or encouraged as a matter of course. He pointed out, for 
example, that, even within Abu Ghraib, the gross misconduct of the 
night shift was aberrant:

       The findings in these eight reports universally were that a 
     great majority, an overwhelming majority of our detention 
     operations have been conducted consistent with American 
     values and consistent with our legal obligations. What we saw 
     happen on that cell block in the night shift was limited to 
     the night shift on that cell block with respect to that first 
     category, the more offensive, the intentional severe physical 
     and the sexual abuse, the subject of those pictures. And this 
     isn't just Al Gonzales speaking. This is what, if you look at 
     it, the Schlesinger report concludes. And so what you see is 
     that you have got this kind of conduct occurring at the night 
     shift, but the day shift, they don't engage in that kind of 
     conduct because they understand what the rules were. And so I 
     respectfully disagree with the characterization there was 
     some sort of permissive environment.

  Once again, on this point as with others, the Judge's own words 
refute the accusations of his critics.
  Some of my colleagues have also seized upon Judge Gonzales's 
inability to recall certain details of meetings that occurred more than 
2\1/2\ years ago to suggest that we lack sufficient information to make 
an informed decision about his nomination or that Judge Gonzales is 
being less than forthcoming when he asserts he cannot recall a matter. 
Last week, for example, the senior Senator from Massachusetts told the 
Judiciary Committee that Judge Gonzales ``refuses to tell us anything 
about those meetings.''
  In fact, the Senator from Massachusetts had several exchanges with 
Judge Gonzales on this topic at our confirmation hearing. The Senator 
queried, for example: ``I just want to point out, if it is true, as the 
Post reported, that you held several meetings at which the legality of 
interrogation techniques, such as threat of live burial and water-
boarding were discussed; do you remember that?'' Judge Gonzales 
responded:

       Senator, I have a recollection that we had some discussions 
     in my office, but let me be very clear with the Committee. It 
     is not my job to decide which type of methods of obtaining 
     information from terrorists would be most effective. That job 
     responsibility falls to folks within the agencies. It is also 
     not my job to make the ultimate decision about whether or not 
     those methods would, in fact, meet the requirements of the 
     anti-torture statute. That would be a job for the Department 
     of Justice. And I never influenced or pressured the 
     Department to bless any of these techniques. I viewed it as 
     their responsibility to make the decision as to whether or 
     not a procedure or method of questioning of these terrorists 
     that an agency wanted, would it, in fact, be lawful.

  Given the passage of time, his inability to recall precise details is 
understandable. Moreover, it must be viewed in the context of what he 
has recalled and provided to the committee. Among other things, he has: 
acknowledged his participation in meetings where the questioning of 
detainees was discussed; explained the genesis and purpose of such 
meetings; described the limited nature of his role; and explained the 
result of these meetings. In one lengthy written answer to a question 
posed by my colleague from Massachusetts, for instance, he explained:

       Since 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 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, the 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 a desire to explore whether there 
     existed methods of questioning these terrorists that might 
     elicit that information; and 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 emphasis and 
     interest was on the last factor--ensuring compliance with the 
     law. It would not have been appropriate for me to comment on 
     issues such as whether a particular individual may have 
     information that would be helpful to the effort to save 
     American lives or defeat terrorists, or whether a certain 
     procedure for questioning that individual would be effective 
     in eliciting that information. Others with more relevant 
     experience, expertise, and information were responsible for 
     making those judgments. Instead, it was my responsibility to 
     ensure that any method they deemed appropriate and effective 
     from an operational point of view was considered lawful by 
     the Department of Justice. To the extent I was involved in 
     recommendations, results, and assignments arising out of such 
     meetings, my activities were directed toward ensuring that 
     those with operational responsibility would act only after 
     receiving the judgment of the Department of Justice that a 
     proposed course of action was lawful.

  That answer provides a good deal of information. The fact that he 
cannot recall details of those meetings is understandable. It is 
commonplace to forget details of meetings, particularly when years have 
passed. It is certainly not, given the responses that have been made, a 
reason to oppose someone who is universally praised for his ability and 
integrity.
  Since his nomination, the White House has offered every Committee 
member a personal, private meeting with Judge Gonzales. To date, the 
Judge has met personally with 14 members of the Judiciary Committee, 
and more than a dozen other Senators.
  At his hearing, Judge Gonzales testified for nearly 6 hours, 
answering multiple rounds of questions. There were three rounds of 
questions, and I encouraged Senators to participate in each round. 
After a complete and lengthy first round, 9 Senators participated in a 
second round of questions. After that, 4 Senators including myself took 
advantage of the third round. I made sure every Senator had ample 
opportunity to question Judge Gonzales. Indeed, one Senator was 
ultimately granted a fourth round of questions.
  Contrary to the assertion by the Senator from Massachusetts that 
Judge Gonzales was unresponsive and he made ``a mockery of the notion 
of congressional oversight and accountability,'' Judge Gonzales's 
answers to the committee's written questions, contained in 221 single-
spaced pages, provided nearly 450, often detailed, responses on issues 
ranging from the war on terrorism to intellectual property. So thorough 
was Judge Gonzales's response that the New York Times (January 19, 
2005) stated that Judge Gonzales's answers to the committee's written 
questions comprised ``one of the administration's most expansive 
statements of its positions on a variety of issues, particularly 
regarding laws and policies governing C.I.A. interrogation of terror 
suspects.''
  The questions kept pouring in even after the committee's hearing 
record closed on Thursday, January 13th, with 4 Senators submitting 
more than 40 additional questions for the nominee. Judge Gonzales has 
now responded to all of those supplemental questions. In 27 additional 
pages of questions and answers, Judge Gonzales has further clarified 
his position on several issues. He also furnished a remarkable 93-page 
memorandum on the Geneva Conventions prepared by the State Department 
as well as a letter reiterating his role in a court appearance for 
then-Governor Bush.
  These facts refute the claims that Judge Gonzales has failed to 
provide us with sufficient information to evaluate his nomination.
  Nevertheless, the Judge's opponents continue to clamor for more. At 
the executive meeting, for example, the senior Senator from 
Massachusetts complained that Judge Gonzales had ``not conducted a 
search for . . . requested documents.'' In fact, my colleague said it 
would be ``hard to imagine a more arrogant insult to this Committee's 
oversight responsibility.''
  I requested that a search be conducted for any draft or final 
memoranda or other documents written by Judge Gonzales and relevant to 
the subject of interrogation techniques or

[[Page 1117]]

torture. The White House responded by conducting a search.
  On January 19, 2005, at the direction of the White House Chief of 
Staff, David Leitch, Deputy Counsel to the President, supervised a 
search of certain electronic records available in the Office of Counsel 
to the President. Specifically, he searched for word processing 
documents containing the words ``torture'' or ``interrogation'' that 
were located on (1) the shared Counsel's Office directory, (2) the 
personal and network directories used by Judge Gonzales and his 
assistants, or (3) the hard drive of Judge Gonzales's computer.
  According to the White House, based on the practices concerning 
documents created by Judge Gonzales, there is a very high probability 
that any document of the sort described would have been identified as a 
result of this search. I have been advised, however, that no such 
documents were identified by the administration.
  Moreover, the White House has represented, and Judge Gonzales 
confirmed, that he has no notes reflecting discussions at any meetings 
concerning these topics, nor does the White House believe there are any 
notes taken by Judge Gonzales in the files of the office.
  Finally, I have been advised that, during Judge Gonzales's tenure as 
counsel to the President, there have never been any audio recordings or 
transcriptions of any meetings in the White House Counsel offices 
concerning these topics, or any others, so far as the White House is 
aware.
  Judge Gonzales and the White House have undertaken appropriate 
efforts to accommodate the Senate by providing relevant information. 
Between his written answers and his testimony, Judge Gonzales has 
addressed his role in the solicitation and provision of legal advice, 
as well as his personal views on the contested issues--such as the 
treatment of detainees. There is an ample record to evaluate his 
nomination. I urge Senators to review the voluminous materials that 
have been produced before coming to any conclusion.
  Mr. President, another argument used by the Gonzales critics is that 
he refused to answer certain hypothetical questions during his hearing. 
Using the rejected language of the Bybee memo about a postulated 
Commander-in-Chief override of the torture statute, certain Judiciary 
Committee members repeatedly asked Judge Gonzales whether he believed 
the President could authorize torture in extreme and hypothetical 
circumstances. Judge Gonzales refused to engage in scenarios about 
when, if ever, torture might be sanctioned, because the President has 
rejected torture under any circumstances.
  So, when the ranking minority member asked, ``Now, as Attorney 
General, would you believe the President has authority to exercise a 
Commander in Chief override and immunize acts of torture?'' Judge 
Gonzales answered:

       [T]he President has said we are not going to engage in 
     torture under any circumstances. And so you're asking me to 
     answer a hypothetical that is never going to occur. This 
     President has said we're not going to engage in torture under 
     any circumstances, and therefore, that portion of the opinion 
     was unnecessary and was the reason that we asked that that 
     portion be withdrawn.

  Given the administration's clear policy, this response is 
appropriate. Judge Gonzales has explained that the Bush administration 
will not engage in torture under any circumstance, so his reluctance to 
contradict the President's policy is perfectly understandable.
  In fact, even the distinguished witnesses on the second panel of our 
confirmation hearing, including two law school deans and an advocate 
for victims of torture, were unwilling to engage in hypothetical 
debates about what set of circumstances--if any--might justify a 
presidential decision to approve torture. One witness even 
characterized the hypothetical about a ticking time bomb as ``fantasy'' 
and part of the ``mythology'' of torture. Such reticence is 
understandable, especially for someone, like Judge Gonzales, who serves 
a President who has rejected the use of torture under any 
circumstances.
  Another of the anti-Gonzales shibboleths is that he is too close to 
the President to be independent. This argument ignores what Judge 
Gonzales, an honorable and credible man, told the Judiciary Committee. 
During his opening statement, and several times thereafter, Judge 
Gonzales acknowledged the difference between his role as White House 
Counsel and the job of Attorney General. At the outset of our hearing, 
he noted:

       With the consent of the Senate, I will no longer represent 
     only the White House; I will represent the United States of 
     America and its people. I understand the differences between 
     the two roles. In the former I have been privileged to advise 
     the President and his staff. In the latter I would have a far 
     broader responsibility: to pursue justice for all the people 
     of our great Nation, to see that the laws are enforced in a 
     fair and impartial manner for all Americans.

  That is a clear statement that he recognizes the difference between 
his current job and the job of Attorney General. Judge Gonzales has 
been the lawyer for one person--the President--and is now going to 
serve as a lawyer for all Americans. Judge Gonzales knows the 
difference and will serve honorably as the next Attorney General.
  Before I conclude, Mr. President, I want to emphasize a few of the 
positive comments my Democratic colleagues on the Judiciary Committee 
have made about this nominee. At his confirmation hearing, the senior 
Senator from Wisconsin told Judge Gonzales: ``As you know, 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.'' At our Executive Meeting, the senior senator from Delaware 
noted: ``My vote, to state the obvious, is not about his character or 
his compelling personal story, which is compelling. He has overcome 
great adversity in his life, and I believe he is an intelligent, decent 
and honorable man.'' The senior senator from New York said, ``I like 
Judge Gonzales. I respect him. I think he is a gentleman and I think he 
is a genuinely good man.'' Such comments do not surprise anyone who has 
gotten to know Judge Gonzales.
  As I have noted, Judge Gonzales has taken a strong stand against 
torture, rejected suggestions that the President is above the law, and 
recognized the important distinctions between the position of White 
House Counsel and Attorney General. So, what is behind the votes 
against him? Not his personal story. Not his character. Not his 
willingness to work with Congress. There may well be a large overhang 
of politics clouding this nomination. Politics, however, is a poor 
reason for denying the President his choice to be Attorney General. I 
urge my colleagues to consider this nomination based on the facts. 
Regardless of what administration is in power, that is a standard we 
should all honor.
  Mr. President, the bottom line is that Judge Gonzales is a remarkable 
American, well-suited for the position of Attorney General, who has 
been forthcoming with the Senate and the American people about his role 
in some very difficult decisions during a very important time. He is a 
good man. Even his opponents acknowledge that. I urge my colleagues to 
support Judge Gonzales to be Attorney General.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Vermont is 
recognized.
  Mr. LEAHY. Mr. President, I will not at this point speak quite as 
long. Because I will not use the same amount of time now, I ask 
unanimous consent that the Senator from California, Mrs. Feinstein, be 
allowed to follow my remarks.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I ask unanimous consent to have printed in 
the Record a number of recent editorials regarding the nomination of 
Alberto Gonzales.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page 1118]]



               [From the Los Angeles Times, Jan. 6, 2005]

   A Window on a Man's Morality; Alberto R. Gonzales' Record Raises 
        Questions About His Fitness To Serve as Attorney General

       The Republicans' comfortable majority in the Senate means 
     that Alberto R. Gonzales will almost certainly be confirmed 
     as the next attorney general. With hearings on his nomination 
     set to start today, many Democrats think the best they can do 
     is wound Gonzales enough with questions about his notorious 
     torture memos to disqualify him for any future Supreme Court 
     seat. In the end, however, they will feel pressure to support 
     him or face retaliation from Republicans.
       They should resist.
       The eight Democrats and a smattering of moderate 
     Republicans who voted for John Ashcroft four years ago 
     probably felt the same pressure.
       No one now can doubt the enormous power the attorney 
     general wields or the lasting harm the person who holds that 
     office can do. Gonzales may not share his predecessor's zeal 
     in hounding X-rated moviemakers or cancer patients who smoke 
     marijuana, but as the president's chief lawyer, he has been 
     every bit as reckless.
       As a leading architect of Bush's ends-justifies-means war 
     on terror, Gonzales pushed to justify torturing terror 
     suspects in violation of international law, promoted military 
     tribunals that echo Stalin's show trials, helped write the 
     Patriot Act (which, among other powers, gives government 
     agents vast new snooping authority) and excused the limitless 
     imprisonment of American citizens whom the president merely 
     suspects of terror activity.
       Three years into that war, much of Gonzales' handiwork has 
     been rejected by courts, damned by the world community and 
     disavowed by the administration--as in the Justice Department 
     memo quietly released last week declaring that ``torture is 
     abhorrent to both American law and values and to 
     international norms.''
       Gonzales' defenders argue that, as White House counsel, he 
     was simply a passionate advocate for his client. But the most 
     devoted counselor knows that, even in wartime, there are 
     legal and moral lines this nation crosses at peril to its own 
     citizens and those of other countries. Gonzales' 
     justifications opened the door to the abuse at Abu Ghraib 
     prison and the Guantanamo Bay detention facility. The 
     mistreatment and prisoner deaths that occurred have raised 
     fears of retaliation against captured Americans. Those 
     concerns prompted a dozen retired generals and admirals, 
     along with civil rights groups, to oppose Gonzales' 
     nomination.
       Our justice system relies on an attorney general willing to 
     defend civil liberties as ardently as he pursues criminals 
     and terrorists. That person must be someone who respects both 
     the power and the limits of law.
       Gonzales' record as White House counsel is not just a 
     series of unfortunate missteps; rather, it is a troubling 
     window into the man's morality and his fitness to be the 
     nation's chief lawyer. Democratic senators will surely ask 
     Gonzales sharp and embarrassing questions about the 
     principles that guided his tenure in the Office of Legal 
     Counsel. These lawmakers then ought to demonstrate that they 
     understand the principles at stake by actually voting no.
                                  ____


              [From the Arizona Daily Star, Jan. 8, 2005]

                           Wrong for the Job

       George W. Bush understandably wants a trusted adviser to be 
     his next attorney general. White House Counsel Alberto 
     Gonzales enjoys that trust, but the President's nominee is 
     the wrong man for the job.
       With Republicans outnumbering Democrats by 55-45 in the 
     Senate, Gonzales is likely to win approval for the position. 
     Yet, the man who advocated the use of torture as an 
     interrogation tool is not only unqualified, he is a threat to 
     the rights of Americans.
       Before Thursday's Senate hearing on his nomination, 
     Gonzales was merely a legal adviser who was unqualified. But 
     during the hearing he showed himself to be a man of 
     questionable morality and ethics.
       For example, his 2002 memo to the president stated that the 
     war on terror ``renders obsolete Geneva's strict limitations 
     on questions of enemy prisoners and renders quaint some of 
     its provisions.'' The Geneva Conventions outline how 
     prisoners of war should be treated.
       But when questioned by the Senate on Thursday, Gonzales 
     said this: ``Contrary to reports, I consider the Geneva 
     Conventions neither obsolete nor quaint.'' He said his early 
     interpretation applies only to organizations like al-Qaida 
     that have no national affiliation and do not ``fight 
     according to the laws of war.'' And he said the Geneva 
     Conventions' protections for terrorists would ``honor and 
     reward bad conduct.'' And he pledged to prosecute those who 
     tortured terrorism suspects.
       However, he noted that the White House is looking to change 
     some of the Geneva Conventions' guidelines. There again, one 
     has to question whether Gonzales is saying the right things 
     in order to win the job.
       His statements now and in the past are inconsistent at 
     best. But more important, the legal opinion he forwarded to 
     the president and this administration cannot be separated 
     from the scandals of torture and death at Abu Ghraib prison 
     in Iraq.
       It is significant that among his Senate supporters, 
     Gonzales' legal abilities and his leadership skills are 
     hardly mentioned as top qualifications. Supportive senators 
     instead promote the nominee's rags-to-riches story. Second 
     among his qualifications is that he would become the nation's 
     first Hispanic attorney general.
       This administration has an affinity for those kinds of 
     stories. But it should have learned from the Bernard Kerik 
     nomination that they don't always make for good national 
     leadership. Kerik withdrew his nomination as head of Homeland 
     Security after questions arose about the immigration status 
     of a housekeeper and nanny he employed.
       Gonzales' ethnicity, his accomplishments and his role as 
     adviser to the president for nine years are admirable but 
     irrelevant. His background makes for great political theater 
     but does not qualify him to be attorney general. And one 
     would hope that Hispanics would not rush to blindly support a 
     man who is clearly wrong for the job.
       Alberto Gonzales has a history of bending the law to fit 
     policy and the wishes of the president. Eagerness to please 
     makes him a great adviser and confidant.
       But as head of the Justice Department, the attorney general 
     should answer only to the law.
                                  ____


          [From the Milwaukee Journal Sentinel, Jan. 8, 2005]

                   Editorial: Don't Confirm Gonzales

       Thursday's Senate confirmation hearing provided Alberto R. 
     Gonzales with an opportunity to confront some of the nagging 
     questions that have been raised about his nomination to be 
     attorney general. So important is the office to which 
     Gonzales aspires that the Senate and the American people 
     needed to hear convincing answers to these questions. They 
     deserved assurances that Gonzales had the judgment, the 
     temperament and the integrity necessary for this cabinet 
     position.
       Far from supplying this reassurance, Gonzales proved to be 
     consistently weak and evasive. So intellectually sterile was 
     his testimony that it showed Gonzales to be unfit for the 
     important office he seeks, and for this reason the Senate 
     should reject his nomination.
       Realistically, of course, this will almost certainly not 
     happen; Democrats on the Judiciary Committee signaled 
     Thursday that, despite reservations about Gonzales, they will 
     support the nomination. Indeed, they make a respectable case, 
     which is that presidents are entitled to broad leeway in the 
     selection of their cabinet members. But there are limits to 
     the discretion to which presidents are entitled; otherwise, 
     the entire confirmation process becomes meaningless.
       Unfortunately, Gonzales's views put him beyond even these 
     broad limits. As White House counsel, he was largely 
     responsible for, or at least acquiesced in, a repudiation of 
     some of this country's most precious ideals, such as the 
     notion that human beings should not be tortured.
       In January 2002, Gonzales told President Bush that the war 
     on terror ``renders obsolete'' some of the strict limitations 
     imposed by the Geneva Conventions as applied to al-Qaida and, 
     in some cases, Taliban fighters. Arguably, one can make that 
     legal case but elsewhere in that letter, and more disturbing, 
     was the tone Gonzales adopted when he dismissed as merely 
     ``quaint'' some of the convention's human rights provisions. 
     In August 2002, Gonzales received a Justice Department 
     memorandum that a president could suspend Geneva Convention 
     protections at will and that some forms of torture ``may be 
     justified.''
       On Thursday, Gonzales disavowed the use of torture. A week 
     earlier, the Justice Department had repudiated its August 
     2002 memo. But why did this reversal take this long? In light 
     of Gonzales's four-year record, his disavowal of terrorism 
     seemed merely rhetorical and tactical. Efforts to elicit 
     Gonzales's views were met with vagueness and equivocation. 
     Gonzales said he couldn't remember key details of his 
     involvement with the August 2002 memo. He wasn't even sure 
     whether Americans could legally engage in torture under any 
     circumstances.
       Ordinarily, even these gross deficiencies might be 
     tolerable. But these are not ordinary times. The threat to 
     civil liberties posed by the fight on terror requires an 
     attorney general with a demonstrated record of sound 
     judgment, independent temperament and unquestioned integrity.
       Gonzales's rags-to-riches personal story is an inspiration 
     to all Americans. But his story is not the issue. He has not 
     demonstrated the judgment and integrity to be the nation's 
     chief law enforcement officer at this pivotal time in our 
     history.
                                  ____


        [From the Star Tribune (Minneapolis, MN), Jan. 8, 2005]

                 Gonzales; Democrats Should Reject Him

       Democrats in the U.S. Senate have many well-founded reasons 
     to oppose with all their might President Bush's nomination of 
     Alberto Gonzales to be attorney general. But one reason 
     stands out above all others, and Democrats should pound it 
     home: Gonzales believes the president of the United States

[[Page 1119]]

     has the power, as commander in chief, to permit the use of 
     torture by American forces by immunizing from prosecution 
     anyone who does it.
       This reasoning was put forward in an August 2002 memo, 
     called the Bybee memo, from the Department of Justice to the 
     White House. Gonzales testified before the Senate Judiciary 
     Committee Thursday that he, as the president's lawyer, simply 
     passed the memo along. It wasn't his job, he said, to warn 
     the president of the memo's implications or to disagree with 
     it. Gonzales has a peculiar notion of his role as the 
     president's attorney; others quite rightly characterize his 
     behavior as a dereliction of duty. In fact, there's good 
     reason to believe Gonzales was an active participant in the 
     memo's construction.
       But whatever his role, Gonzales clearly agreed with the 
     memo, and does to this day.
       Sen. Patrick Leahy, D-Vt., the ranking Democrat on the 
     committee, tried every way he could to get Gonzales to answer 
     ``yes'' or ``no'' to a simple question: ``Now, as attorney 
     general, would you believe the president has the authority to 
     exercise a commander-in-chief override and immunize acts of 
     torture?'' Gonzales tried all kinds of tacks to avoid 
     answering: The question is hypothetical because Bush opposes 
     the use of torture, etc. Leahy persisted, and finally 
     Gonzales said, ``Senator, I do believe there may come an 
     occasion when the Congress might pass a statute that the 
     president may view as unconstitutional,'' and therefore he 
     can ignore it. The answer was disingenuous because the issue 
     isn't laws Congress might pass, but established U.S. and 
     international laws that prohibit the use of torture. Thus, 
     the only reasonable way to interpret Gonzales' answer in the 
     context it was asked is that, indeed, the president has the 
     power to permit torture by immunizing those who do it.
       The White House has done its darnedest to frustrate 
     Judiciary Committee inquiries into Gonzales' role in the 
     torture scandal. Leahy Thursday held aloft a hefty file of 
     unanswered questions and letters he had sent to the White 
     House seeking information on Gonzales' views about torture 
     and his role in framing policies that led to the Abu Ghraib 
     scandal and the abuse of prisoners at Guantanamo Bay. Despite 
     that, Leahy and his colleagues got Gonzales on the record 
     saying that he does believe the president has the power to 
     override U.S. laws.
       That's all the Democrats need to oppose Gonzales' 
     confirmation en masse, and they should. Torture is always out 
     of bounds, no matter the circumstance; it is immoral, 
     ineffective and puts captured American forces at risk. 
     Previous congresses and presidents have enacted laws and 
     ratified international treaties to that effect.
       The United States does not need an attorney general who 
     believes that this president has the right to override those 
     laws and treaties at his whim. Even if Gonzales is eventually 
     confirmed, as it appears he will be, Senate Democrats must be 
     on the record upholding the powerful principle that the 
     United States unequivocally rejects torture.
                                  ____


         [From the Slate (South Carolina), Sat. Jan. 15, 2005]

            Torture Taint Should Disqualify Nominee Gonzales

       After last week's confirmation hearing for Alberto 
     Gonzales, even senators who disliked the nomination said he 
     would be confirmed, for no other reason than he is the one 
     President Bush asked for. ``There's a lower standard, 
     frankly, for attorney general than for judge, because you 
     give the president who he wants,'' said Sen. Charles Schumer, 
     D-N.Y.
       There's a sad symmetry in this. Mr. Gonzales's work as 
     legal counsel to the president on the issue of torture has 
     been rejected by the U.S. Supreme Court and disowned by the 
     White House--only after it backfired politically and legally. 
     His principal qualification is unambiguous loyalty to the 
     president. In short, his selection reflects what sadly seems 
     to be the overriding attribute this president wants in his 
     subordinates. That might be good enough for the president, 
     but it does not make him the right choice to be the nation's 
     top lawyer; in fact, in this case it should mean just the 
     opposite.
       Mr. Gonzales has helped this administration pursue the 
     human equivalent of the hiddenball trick. Guantanamo Bay, 
     Cuba, was chosen as the U.S. detention facility for ``enemy 
     combatants'' under the assumption that it could be defined as 
     a legal no-man's-land, a place where the laws of the United 
     States do not apply. It would be years before the U.S. 
     Supreme Court ruled, as Sen. Lindsey Graham put it, that 
     ``Gitmo is not Mars.'' The administration took other actions, 
     including denying legal counsel to detainees, that it thought 
     were unlikely to withstand court scrutiny, so it endeavored 
     instead to stall definitive rulings as long as it could.
       Few of these actions can rise to the appropriately high 
     standard delineated by Sen. Graham during the confirmation 
     hearing: ``I do believe we have lost our way, and my 
     challenge to you as a leader of this nation is to help us 
     find our way without giving up our obligation and right to 
     fight our enemy.''
       But will Mr. Gonzales lead the Justice Department to meet 
     that standard?
       His answers during the confirmation hearing showed less of 
     the firm moral base the position requires, and more of a 
     tendency to look at things in a lawyerly way, in the 
     Clintonian sense of the term. He said his new zeal to keep to 
     the legal straight-and-narrow on torture stems from a new 
     understanding that he would represent not just the president 
     anymore, but the whole United States. But shouldn't advising 
     the president have been enough of a guide for Mr. Gonzales to 
     strive to uphold bedrock American principles? He treats the 
     now-discredited legal opinions as if they have been 
     vaporized. But they had, and are still having, real-world 
     effects, some of them disastrous to the U.S. cause (such as 
     Abu Ghraib). And which represents the real Alberto Gonzales: 
     the man who appeared before the Senate or the one who advised 
     President Bush?
       This administration, and far more importantly this nation, 
     must make a clean break from the policies identified with Mr. 
     Gonzales. Making him attorney general of the United States 
     accomplishes the opposite.
       This nomination tells the world that no minds have been 
     changed in this country about the use of torture; it says 
     America sees no conflict between detaining suspects without 
     legal counsel and trying to hold our constitutional democracy 
     aloft as an example to the world.
       Sen. Graham seems to understand that Alberto Gonzales is 
     not the best choice. Both he and Sen. Jim DeMint have a duty, 
     if they truly see the problems with this nomination, to vote 
     against it, as loyal Republicans and as Americans. Only when 
     they and others do so might this president finally see the 
     need for change in key elements of his war strategy, and 
     start making top personnel decisions based on that new 
     understanding. This must happen, for the sake of the nation.
                                  ____


                 [From the Boston Globe, Jan. 18, 2005]

                       Unfit as Attorney General

       Two memos on the US treatment of detainees from Afghanistan 
     and Iraq stand in the way of Alberto Gonzales becoming the 
     next attorney general of the United States. At his 
     confirmation hearing earlier this month, he neither disavowed 
     the memos nor showed an understanding of how their denial of 
     international protections to detainess could lead to the many 
     cases of prisoner abuse reported by both the FBI and the 
     International Red Cross. The Senate should reject his 
     nomination.
       In his testimony, Gonzales made frequent reference to the 
     much-photographed instances of prisoner humiliation and abuse 
     at Abu Ghraib, as though the naked-body pyramid and other 
     abuses that Specialist Charles Graner was justifiably 
     convicted of Friday were the worst of what has occurred. But 
     the FBI and Red Cross reports as well as the military's own 
     investigations of killings of prisoners make clear that some 
     interrogators and guards crossed the line into torture or 
     homicide. It is disingenuous of Gonzales not to acknowledge 
     the link between permissive torture policies from Washington 
     and acts of abuse that occurred not just at Abu Ghraib but in 
     Afghanistan and Guantanamo as well.
       In 2002 as White House counsel, Gonzales wrote a memo in 
     which he called provisions of the Geneva Conventions 
     regarding prisoners of war ``obsolete'' and ``quaint'' and 
     said the United States could operate as though the 
     conventions did not apply to the Afghan war. Indeed, some of 
     the fighters captured during the 2001 war against the Taliban 
     and Al Qaeda in Afghanistan might not have deserved the 
     status of POWs.
       But the Geneva Conventions--and American law--make clear 
     that any battlefield detainee has that status until a 
     ``competent tribunal'' puts him in the less protected 
     category of ``enemy combatant.'' As US Judge James Robertson 
     noted in a ruling last November, the Geneva Conventions do 
     not give any individual, including the president, the 
     authority to say who deserves POW status. The White House 
     counsel certainly lacks that authority.
       The second memo that has damaged the US reputation 
     worldwide was written in 2002 by a Justice Department 
     official as a guide to interrogation techniques. The memo, 
     which Gonzales discussed with administration officials, said 
     a president has the power to authorize torture despite a 1994 
     US law banning it. At the confirmation hearing, Gonzales 
     declined chances to repudiate that view.
       The Sept. 11, 2001, attacks thrust the United States into a 
     new kind of conflict in which useful intelligence from 
     detainees is crucial. But Gonzales has been at the center of 
     administration policy-making that set aside tried and true US 
     and international rules governing the collection of this 
     information. His blindness to the consequences of those 
     policies makes him a poor choice for chief law enforcement 
     officer of the nation.
                                  ____


      [From the Republican (Western Massachusetts), Jan. 23, 2005]

               Gonzales Nomination Leaves Many Questions

       When Alberto Gonzales appeared before the Senate Judiciary 
     Committee earlier this month, some of his answers to 
     questions about the treatment of prisoners in Iraq, 
     Afghanistan and elsewhere left some Democratic committee 
     members wanting more. So

[[Page 1120]]

     they asked a series of follow-up questions to be answered in 
     writing. And when Gonzales provided his answers, those same 
     senators still found themselves wanting more.
       So they decided to delay--for at least one week--a 
     committee vote on his nomination to succeed John Ashcroft as 
     attorney general. It was the right move.
       There are real questions about Gonzales's fitness to serve 
     as attorney general. His nomination should not move forward 
     until those questions are answered.
       He has written that certain provisions of the Geneva 
     Conventions--which provide for the treatment of enemy 
     prisoners--are ``quaint'' or ``obsolete.'' Gonzales approved 
     a memorandum saying that the president ``wasn't bound by laws 
     prohibiting torture and that government agents who might 
     torture prisoners at his direction couldn't be prosecuted by 
     the Justice Department.''
       Gonzales has said he believes that the president of the 
     United States has the authority to order the detention of 
     enemy combatants indefinitely during wartime. He has 
     repeatedly backed the provisions in the USA Patriot Act that 
     infringe most broadly on civil liberties and the fundamental 
     right of the citizens to be left alone.
       When he was attorney general of Texas--while George W. Bush 
     was governor--he wrote a memo directly contradicting a 
     federal law that grants foreign nationals access to American 
     courts when they are accused of a crime.
       And the list goes on and on.
       The president has nominated Alberto Gonzales to be the 
     chief law enforcement officer in the United States. The 
     attorney general sits at the very top of the U.S. Department 
     of Justice. The person in that position must possess a 
     scrupulousness that is beyond question.
       Gonzales has not, to date, demonstrated that he has the 
     qualities that an individual needs to be elevated to one of 
     the most significant positions in this nation.
                                  ____


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

                       The Wrong Attorney General

       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 (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?

  Mr. LEAHY. Mr. President, today we are beginning the debate on the 
nomination of Alberto Gonzales to be Attorney General of the United 
States.
  When I first heard of this nomination last November, I was hopeful. I 
saw this nomination as a chance for some long missing accountability on 
some of the most pressing issues facing our Nation. I noted at the time 
that I like and respect Judge Gonzales. I met with him soon after his 
designation and wrote to him, following up on that meeting, to inform 
him in advance of his confirmation hearing about issues that would be 
raised about several key issues. I listened carefully to him during our 
confirmation hearing.
  The road he has traveled from being a 12-year-old boy selling soft 
drinks at

[[Page 1121]]

football games, all the way to the State House in Texas and to the 
White House, is a tribute to him and to his family. In spite of our 
disagreements on issues, I have sought to maintain a cordial personal 
working relationship with Judge Gonzales during his years as President 
Bush's counsel. As Senator Kennedy has said, I dearly wish that we 
could vote for that compelling story, and not for the nominee whose 
record is before us. In my case, I will vote based on the record.
  It saddened me to call Judge Gonzales last week and tell him that I 
could not in good conscience vote to confirm his nomination to be 
Attorney General, the chief law enforcement officer of the Nation. He 
is not the person for this job.
  My reasons for voting against Judge Gonzales arise from the need for 
accountability and derive from the nominee's involvement in the 
formulation of a number of policies that have tarnished our country's 
moral leadership in the world and put American soldiers and American 
citizens at greater risk.
  When President Bush announced this nomination he said that he chose 
Judge Gonzales because of his ``sound judgment'' and role in shaping 
the Administration's policies in the war on terrorism. Based on the 
glimpses of secret policy formulations and legal rationales that have 
come to light, I believe his judgments not to have been sound. On the 
contrary, several of this Administration's legal policies have been 
exceedingly harmful to our national interests.
  As Attorney General, the nominee's judgment about our laws would be 
of enormous consequence.
  This is a different type of Cabinet position than many others. In 
many Cabinet positions, such as the Secretary of State, the Secretary 
of Treasury, and others, the Cabinet member states the President's 
position. They state the President's position and carry out the 
President's policies. The Attorney General is different. The Attorney 
General is not the Attorney General of the President; he is the 
Attorney General of the United States. This is a position where the 
cabinet member has enormous flexibility to carry out decisions--to 
bring prosecution or withhold it, to begin an investigation or to 
withhold an investigation, to determine to go into a place where he 
believes there may have been a voting rights violation or to say there 
is none. This individual must be independent of the President.
  Judge Gonzales has championed policies that are in fundamental 
conflict with decades of laws, sound military practice, international 
law, and human rights. He remained silent for almost 2 years about a 
deeply flawed and legalistic interpretation of our Nation's torture 
statute. He also accepted a patently erroneous interpretation of the 
torture convention and apparently believes that the President, when 
acting as Commander in Chief, is above the law.
  When I asked Judge Gonzales if he agreed with the Bybee memo's very 
narrow reading of the law, 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.'' 
This is the memo which concludes that ``physical pain amounting to 
torture must be equivalent in intensity to the pain accompanying 
serious physical injury, such as organ failure, impairment of bodily 
function, or even death.'' Even the Justice Department repudiated this 
legal memorandum, once it became public.
  Under his restrictive redefinition such practices as threatening a 
prisoner with a firearm in a mock execution, ``waterboarding'' a person 
to make him experience the suffocating effects of drowning, and, as 
Senator Kennedy noted, perhaps even cutting off a person's fingers one 
joint at a time would not amount to ``torture.'' But surely we consider 
these practices torture when done to a member of the U.S. military or 
to an American citizen.
  How can we, the greatest Nation on Earth, stand up and say such acts 
are not torture if committed against foreign detainees?
  Perhaps most disturbing of all as a legal matter is the nominee's 
positing of the President as above the law. Nothing is more fundamental 
about our constitutional democracy than our basic notion that no one is 
above the law. Yet at his June 2004 news conference and again in his 
testimony before the Judiciary Committee he 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.
  From the time of George Washington to George W. Bush, we have always 
maintained that in our Nation no one is above the law--not the 
President, not a Senator, not a judge, not anyone in our country.
  Ironically, it was the administration of this President's father that 
urged the Senate to ratify the torture convention. It did so to make 
clear that the United States condemns torture and to protect Americans 
from this barbaric practice. But if the U.S. President does not feel 
bound by the torture convention, then neither will other foreign 
leaders.
  Ultimately, the Attorney General's duty is to uphold the Constitution 
and the rule of law--not to work to circumvent it. Both the President 
and the nation are best served by an Attorney General who gives sound 
legal advice and takes responsible action, without regard to political 
considerations--not one who develops legalistic loopholes to serve the 
ends of a particular administration.
  The Attorney General appointed by the President's father remarked: 
``Nothing would be so destructive to the rule of law as to permit 
purely political considerations to overrun sound legal judgment.'' 
Judge Gonzales demonstrates a lack of independence from the President, 
something that we cannot have in the chief law enforcement officer in 
the nation. He cannot interpret our laws to mean whatever the President 
wants them to mean. To do so would deny us the constitutional 
protections upon which this nation was founded. The Attorney General is 
supposed to represent all of the American people, not just one of them.
  We have seen what happens when the rule of law plays second fiddle to 
the President's political agenda. This Administration has taken one 
untenable legal position after another regarding the rule of law in the 
war against terror. It will not admit to making mistakes. It takes 
action only after mistakes are made public and become politically 
indefensible.
  Given the Republican Party's leadership in Congress, the Federal 
courts have provided what little check there has been on this 
President's claim of unfettered Executive power. The Congress has 
failed to do any real oversight of that use of power.
  Judge Gonzales's nomination initially seemed like a breath of fresh 
air. I have noted how much I personally like him. I think most people 
do. But as I told the nominee when we met within days of the 
announcement of his nomination, these confirmation proceedings matter. 
The proceedings matter because it is the responsibility of this Senate 
to explore Judge Gonzales's judgment and actions in connection with the 
tragic legal and policy changes formulated in secret by this 
administration and still cloaked from congressional oversight and 
public scrutiny. Part of it is the fault of the Congress which has not 
conducted vigorous oversight, but a large part of this problem is due 
to an administration that has not answered the questions asked by both 
Republicans and Democrats.
  America's troops and citizens are at greater risk because of those 
actions and their terrible repercussions throughout so much of the 
world. America's moral standing and leadership have been undercut. The 
searing photographs of Abu Ghraib have made it harder to create and 
maintain the alliances we need to prevail against the vicious 
terrorists who threaten us, including those who struck America 9 months 
into this President's first term.

[[Page 1122]]

  Those abuses at Abu Ghraib have served as recruiting posters for the 
terrorists. That is why this process matters. The confirmation process 
shows that on the question of judgment, Judge Gonzales is the wrong man 
for this job.
  After his recent inaugural address, I praised President Bush for the 
eloquent words he said about the United States' 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 that secretly develops 
legalistic rationalizations for circumventing human rights.
  To reclaim our moral leadership in the world, and to become a true 
messenger of hope instead of a source of resentment, we need to 
acknowledge wrongdoing and show accountability for mistakes that have 
been made.
  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 backs, and promotions.
  Between these two dissonant images, there is a growing accountability 
gap. The administration's handling of this confirmation process, which 
could have helped to narrow the gap, has served to widen it.
  I believe in redemption in public life, as in spiritual life, but to 
get to redemption, first there has to be accountability. This 
administration has a large and growing accountability deficit. Judge 
Gonzales, who could have become a part of the solution, remains a part 
of the problem.
  Now more than ever we need an Attorney General to serve all 
Americans. There is much that has gone wrong that this administration 
has stubbornly refused to admit or correct. For this democratic 
Republic to work, we need greater openness and accountability. It is 
with those critical considerations in mind that I must vote against 
this nomination.
  I believe under the earlier order, the Senator from California is now 
going to be recognized.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
California is recognized.
  Mr. HATCH. Mr. President, reserving the right to object, and I will 
not object.
  The PRESIDING OFFICER. The unanimous consent has already been agreed 
to.
  Mr. HATCH. I understand. I ask unanimous consent that I immediately 
follow the Senator from California.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Then, Mr. President, I ask unanimous consent that 
following Senator Hatch, Senator Schumer be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I understand we are coming back at 2:15 
p.m. after the caucuses?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. LEAHY. I ask unanimous consent that we lock in 10 minutes at 2:15 
p.m. for the Senator from Maryland, Ms. Mikulski.
  The PRESIDING OFFICER. Is there objection?
  Mr. SPECTER. That will be agreeable.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I thank the distinguished senior Senator from 
Pennsylvania, and I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I thank the ranking member.
  I rise today to explain why I deeply regret I cannot vote to confirm 
Alberto Gonzales to be the next Attorney General.
  I believe as a general rule the President is entitled to the Cabinet 
of his choice. But one Department, the Department of Justice, always 
deserves special attention from Congress because it does not exist 
solely to extend the President's policies.
  Though the Attorney General serves under the President, he must 
independently interpret the laws as written by Congress and be truly 
the country's chief law enforcement officer.
  I cannot emphasize this enough. The Department of Justice must be 
independent from the White House. The FBI must be independent. The U.S. 
attorneys must be independent. The Criminal Law Division, the 
Environmental Law Division, the Civil Law Division must all be 
independent. The Solicitor General's Office, which argues before the 
Supreme Court, must be independent. The Office of Legal Counsel, which 
is charged with interpreting the law of the executive branch, must be 
independent. The Civil Rights Division must be independent.
  These departments are charged with nothing less than following, 
interpreting, and implementing the law of the United States of America. 
The Department of Justice is in charge of defending the Nation in 
court. It is in charge of advising the rest of the Government about 
what the law means. It is in charge of overseeing the investigations of 
the FBI, and it is in charge of deciding when to prosecute criminals 
and send them to prison. This is obviously a big portfolio.
  The head of the Department of Justice is the chief law enforcement 
officer of the United States. As such, the Attorney General is in 
charge of 59 separate divisions within the Department of Justice, which 
cover more than 110,000 employees. In my view, before we vote to 
confirm to put someone in charge of all this awesome power--and it 
truly is awesome--it is important for us to know what that individual 
thinks about the major policies the Department will be implementing. 
And that is where I have been disappointed by the confirmation process 
for Judge Gonzales.
  When President Bush nominated Judge Gonzales, I think many of us were 
prepared to give him the benefit of the doubt. But the hearings 
crystallized how little we knew about his own policy views, how little 
we knew about his qualities for leadership, his policy views, his 
management style, his strength of character, and his personal beliefs 
in those areas where he sets the tone and the policy. I think this was 
a great missed opportunity.
  John Ashcroft served 6 years in the Senate. We knew his service on 
the Judiciary Committee. We knew about his views. One could decide 
about his personal views, yes or no. Judge Gonzales has spent so many 
years serving President George Bush. If confirmed, this will be the 
fifth job George Bush appointed Judge Gonzales to over the past decade. 
The hearings were his first real opportunity to show his own views. I 
think this is why the hearing process became so important in many of 
our views.
  This was a crucial opportunity for Judge Gonzales. Many of us were 
prepared to vote for him. If there is a single issue that defines this 
confirmation process, it is what Judge Gonzales thinks about torture 
and brutal interrogation practices.
  He reminded us again and again that both he and the President condemn 
torture. But as we know from the Bybee memo of August 2002, for at 
least 2 years, the Federal Government followed a definition of torture 
that was excessively narrow. In fact, it was considered so incorrect 
that the Department of Justice revoked it on the eve of Judge Gonzales' 
hearing.
  That memo defined torture as:

       Equivalent in intensity to the pain accompanying serious 
     physical injury, such as organ failure, impairment of bodily 
     function, or even death.

  For me, in addition to its clear legal and moral importance, the 
issue of torture became the main way for assessing this next Attorney 
General. And it was very important for him to state in unambiguous 
terms what he thought. It was as important a way for us to assess how 
he approaches a problem as any.
  In his opening statement, Judge Gonzales offered a clear, absolute 
condemnation of torture. He said flatly:

       Torture and abuse will not be tolerated by this 
     administration.

  At this point, at the beginning of his testimony, there were no ifs, 
ands, or

[[Page 1123]]

buts. But after that, his testimony, both verbal and in writing, was 
full of ambiguities. It seemed intended not to make his views clear, 
but to shield his views, and it seemed to narrow the definition of what 
counts as torture.
  For instance, at the hearing, at one point, Judge Gonzales told 
Senator Leahy, our ranking member, ``I reject that opinion,'' referring 
to the Bybee opinion. But at another point in the hearing, he told the 
same Senator, Senator Leahy:

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

  Those statements are clearly in conflict, and leave me with no idea 
what he thinks about the Bybee memo.
  I also note that Judge Gonzales clearly did not do everything he 
might have done to try to answer the questions put to him.
  In his written testimony, especially to Senator Kennedy, Judge 
Gonzales refused to provide the answers or the documents requested. He 
even refused to conduct a search that would have refreshed his memory.
  Let me quote the multiple times Judge Gonzales refused to answer 
Senator Kennedy's questions, and these are all quotes:

       I do not know what notes, memoranda, e-mails or other 
     documents others may have about these meetings, nor have I 
     conducted a search.

  Point 2:

       I have no such notes, and I have no present knowledge of 
     such notes, memoranda, e-mail, or other documents and I have 
     not conducted a search.

  Point 3:

       I have no present knowledge of any non-public documents 
     that meet that description. However, I have conducted no 
     search.

  Point 4:

       I have no present knowledge that there are any documents of 
     the sort requested in the question, although I have not 
     conducted an independent search for such documents.

  Point 5:

       I have no present knowledge of any such documents or 
     materials, although I have not conducted a search.

  Point 6:

       I have no present knowledge of any such records, although I 
     have not conducted a search.

  The last formulation he repeated in two additional instances.
  These are not adequate answers to satisfy the nomination process for 
the confirmation of a person to be the next Attorney General, nor do 
they bode well for the Judiciary Committee's and this Congress's 
oversight responsibilities for the Department of Justice.
  Judge Gonzales also refused to provide many documents that we 
requested. In specific, I asked him to provide me with a copy of the 
final version of his January 2002 memo to the President. That is very 
important because earlier memos that he had written were different. It 
was important, if this was his final opinion, that we have an 
opportunity to look at it, because that opinion was definitive and 
dispositive.
  The January memo is a well known one, where he wrote that the war on 
terror ``renders obsolete Geneva's strict limitations on questioning of 
enemy prisoners.'' If that was only a draft, as he said, as he had 
emphasized, then I believe it is imperative for us to see the final 
version, and he refused me that opportunity. He wouldn't provide the 
memo, saying the White House had declined to allow it.
  To tell you the truth, because of the prior history, that simply is 
not good enough for me.
  Also of importance in the questions that he did answer, he seemed to 
continually narrow, again, the definition of torture. I saw this as a 
retreat from his original condemnation of torture and abuse and I 
thought it showed that he was trying more to defend the President's 
policies than to demonstrate his own views.
  That, in my view, is the nub of the problem. Here he was no longer 
the President's man, he was going to be the chief law enforcement 
officer, independent, head of 110,000 people, with all kinds of major 
departmental responsibilities--environmental law, civil rights law, the 
Solicitor General, as I stated earlier in my remarks. I saw this 
narrowing as a retreat from his original condemnation of torture and 
abuse, and I thought it showed that he was trying, again, more to 
defend the President than to talk for himself. Let me give an example.
  At the hearing he told Senator Durbin that even under the laws 
implementing the Convention Against Torture:

     aliens interrogated by the United States outside the United 
     States enjoy no substantive rights under the 5th, 8th, and 
     14th Amendments.

  If this is Judge Gonzales's view, it is a significant gap in the 
prohibition against abuse.
  I gave him the opportunity to clarify this issue. In written 
testimony he confirmed the thrust of the answer, stating to me:

       There is no legal prohibition under the Convention Against 
     Torture on cruel, inhuman or degrading treatment with respect 
     to aliens overseas.

  In another written question, I asked Judge Gonzales to specify his 
own views again on specific harsh interrogation methods. I wrote to 
him:

       Putting aside legal interpretations, in your own personal 
     opinion, should the United States use forced nudity, the 
     threatening of detainees with dogs, or ``water-boarding'' 
     when interrogating detainees?

  That was my question in writing. He began his answer by stating:

       I feel that the United States should avoid the use of such 
     harsh methods of questioning if possible.

  I was asking for a statement by the man. ``If possible'' is a major 
loophole, and I truthfully don't know what it means. I don't know how 
big that loophole is intended to be.
  As I was reviewing the correspondence, I was struck, in particular, 
by a letter that the committee received from a group of 12 esteemed 
former military leaders--generals, admirals, even a former chairman of 
the Joint Chiefs of Staff.
  This letter was signed by Brigadier General David M. Brahms, Retired, 
U.S. Marine Corps; Brigadier General James Cullen, Retired, U.S. Army; 
Brigadier General Evelyn P. Foote, Retired, U.S. Army; Lieutenant 
General Robert Gard, Retired, U.S. Army; Vice Admiral Lee F. Gunn, 
Retired, U.S. Navy; Rear Admiral, Retired, U.S. Navy; General Joseph 
Hoar, Retired, U.S. Marine Corps; Rear Admiral John D. Hutson, Retired, 
U.S. Navy; Lieutenant General Claudia Kennedy, Retired, U.S. Army; 
General Merrill McPeak, Retired, U.S. Air Force; Major General Melvyn 
Montano, Retired, U.S. Air Force National Guard; and General John 
Shalikashvili, former Chairman of the Joint Chiefs of Staff.
  Let me paraphrase the letter. They write as retired military 
professionals in the U.S. Armed Forces to express their deep concern 
about the nomination of Alberto Gonzales and they urge us in the 
hearing to detail his views concerning the role of the Geneva 
Conventions in U.S. detention and interrogation policy and practice. 
They go on to say:

       Mr. Gonzales appears to have played a significant role in 
     shaping U.S. detention operations. . . . 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 around the world.

  They then talk about the memo Judge Gonzales wrote to the President 
on January 25, 2002, advising him the Geneva Conventions don't apply to 
the conflict then underway in Afghanistan. They say more broadly that 
he wrote the war on terrorism presents a new paradigm that renders 
obsolete the Geneva protections.
  Then they go on to say, and I think this is important:

       The reasoning Mr. Gonzales advanced in this memo was 
     rejected by many military leaders at the time, including 
     Secretary of State Colin Powell who argued that abandoning 
     the Geneva Conventions would put our soldiers at greater 
     risk, would ``reverse over a century of U.S. policy and 
     practice in supporting the Geneva Conventions,'' and would 
     ``undermine the protections of the rule of law for our 
     troops, both in this specific conflict [Afghanistan] and in 
     general.''

  That is a huge problem out there because at best, these hearings and 
the written questions and answers which are voluminous are really 
unable to clarify any of the positions of Alberto Gonzales, the man, 
Alberto Gonzales, head of one of the largest and most powerful agencies 
of the American

[[Page 1124]]

Government, the U.S. Department of Justice.
  We look at the Department of Justice one way, but most Americans look 
at it as being a major citadel of power in the United States. And on 
occasion, we have seen that power exercised. If you are going to set 
the policy, if you are going to set the tone, if you are going to be 
the head of this Department, I want to know what you as a man, or as a 
woman, think, and particularly at this time.
  Yes, it is clear that the problems we will face in the future are 
most likely to be with respect to non-state actors, and with respect to 
torture, which I am speaking about now. Therefore, it is 
extraordinarily important to know what this man thinks. If you ask me 
today, despite the hearings, despite 200 pages of questions and 
answers, I cannot really tell you. I cannot really be sure that if the 
White House says one thing, the head of the Department of Justice would 
be willing to stand up and say another. I just do not know, based on 
the past jobs he has had and his past performance, if he is prepared to 
be independent.
  I have to say to this body that is important. Every one of us knows 
that Janet Reno was an independent Attorney General. I do not know that 
Alberto Gonzales will be. I don't know his management style. I don't 
know the vision he has for this Department. I don't know the goals he 
would set.
  I know he is an extension of the President. I know that he can 
legally enable the President. I know he gives the President advice, and 
I think much of that advice has brought us into a terrible place where 
our military could well in the future be jeopardized.
  I am one, frankly, who believes the Military Code of Justice has 
stood the U.S. military in good stead. I am one who believes the Geneva 
Convention--the Convention Against Torture--is the right thing. I am 
one who believes we should follow those, even in this non-state war.
  I want to comment on one other issue, and then I will yield the 
floor.
  I think Judge Gonzales is going to be confirmed. He is a talented 
lawyer and has a compelling life story. I certainly want to work with 
him.
  I want to say one thing about some who may say this is a qualified 
Hispanic, and indeed he is. Nobody should think that the Hispanic 
community is unified on this nomination. I will put into the Record, if 
I may, letters from the Congressional Hispanic Caucus, certain 
editorials from newspapers, the statement of the Mexican-American Legal 
Defense and Education Fund, a statement of the Mexican-American 
Political Association, a letter from Major General Melvyn Montano, and 
other letters.
  I ask unanimous consent to have them printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              Albuquerque, MN,

                                                 January 25, 2005.
     Hon. Members of the Committee on the Judiciary,
     U.S. Senate, Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Senators: I am writing to urge that you reject the 
     nomination of Alberto Gonzales for Attorney General. I 
     understand that some Hispanic groups support Judge Gonzales' 
     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 National 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' 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' role in setting U.S. policy 
     on torture during his 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 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 aliens 
     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 result 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' 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 
     from 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,

                                               Melvyn Montano,

                                             Major General (Ret.),
     Air National Guard.
                                  ____


            An Open Letter to the Senate Judiciary Committee

     Hon. Members of the Senate Judiciary,
     U.S. Senate, Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Senator: We, the undersigned, are retired professional 
     military leaders of the U.S. Armed Forces. We write to 
     express our deep concern about the nomination of Alberto R. 
     Gonzales to be Attorney General, and to urge you to explore 
     in detail his views concerning the role of the Geneva 
     Conventions in U.S. detention and interrogation policy and 
     practice.
       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. Before Mr. Gonzales assumes the position of Attorney 
     General, it is critical to understand whether he intends to 
     adhere to the positions he adopted as White House Counsel, or 
     chart a revised course more consistent with fulfilling our 
     nation's complex security interests, and maintaining a 
     military that operates within the rule of law.
       Among his past actions that concern us most, Mr. Gonzales 
     wrote to the President on January 25, 2002, advising him that 
     the Geneva Conventions did not apply to the conflict then 
     underway in Afghanistan. More broadly, he wrote that the 
     ``war on terrorism'' presents a ``new paradigm [that] renders 
     obsolete Geneva's'' protections.
       The reasoning Mr. Gonzales advanced in this memo was 
     rejected by many military leaders at the time, including 
     Secretary of State Colin Powell who argued that abandoning 
     the Geneva Conventions would put our soldiers at greater 
     risk, would ``reverse over a century of U.S. policy and 
     practice in supporting the Geneva Conventions,'' and would 
     ``undermine the protections of the rule of law for our 
     troops, both in this specific conflict [Afghanistan] and in 
     general.'' State Department adviser William H. Taft IV agreed 
     that this decision ``deprives our troops [in Afghanistan] of 
     any claim to the protection of the Conventions in the event 
     they are captured and weakens the protections afforded by the 
     Conventions to our troops in future conflicts.'' Mr. 
     Gonzales's recommendation also ran counter to the wisdom of 
     former U.S. prisoners of war. As Senator John McCain has 
     observed: ``I am certain we all would have been a lot worse 
     off if there had not been the Geneva Conventions around which 
     an international consensus formed about some very basic 
     standards of decency that should apply even amid the cruel 
     excesses of war.''
       Mr. Gonzales's reasoning was also on the wrong side of 
     history. Repeatedly in our past, the United States has 
     confronted foes that, at the time they emerged, posed threats 
     of a scope or nature unlike any we had previously faced. But 
     we have been far more steadfast in the past in keeping faith 
     with our national commitment to the rule of law. During the 
     Second World War, General Dwight D. Eisenhower explained that 
     the allies adhered to the law of war in their treatment of 
     prisoners because ``the Germans had some thousands of 
     American and British prisoners and I did not want to give 
     Hitler the excuse or justification for treating our prisoners 
     more harshly than he already was

[[Page 1125]]

     doing.'' In Vietnam, U.S. policy required that the Geneva 
     Conventions be observed for all enemy prisoners of war--both 
     North Vietnamese regulars and Viet Cong--even though the Viet 
     Cong denied our own prisoners of war the same protections. 
     And in the 1991 Persian Gulf War, the United States afforded 
     Geneva Convention protections to more than 86,000 Iraqi 
     prisoners of war held in U.S. custody. The threats we face 
     today--while grave and complex--no more warrant abandoning 
     these basic principles than did the threats of enemies past.
       Perhaps 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 accordingIy. Mr. 
     Gonzales's January 2002 memo itself warned that the decision 
     not to apply 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.
       The full extent of Mr. Gonzales's role in endorsing or 
     implementing the interrogation practices the world has now 
     seen remains unclear. A series of memos that were prepared at 
     his direction in 2002 recommended official authorization of 
     harsh interrogation methods, including waterboarding, feigned 
     suffocation, and sleep deprivation. As with the 
     recommendations on the Geneva Conventions, these memos 
     ignored established U.S. military policy, including doctrine 
     prohibiting ``threats, insults, or exposure to inhumane 
     treatment as a means of or aid to interrogation.'' Indeed, 
     the August 1, 2002 Justice Department memo analyzing the law 
     on interrogation references health care administration law 
     more than five times, but never once cites the U.S. Army 
     Field Manual on interrogation. The Army Field Manual was the 
     product of decades of experience--experience that had shown, 
     among other things that such interrogation methods produce 
     unreliable results and often impede further intelligence 
     collection. Discounting the Manual's wisdom on this central 
     point shows a disturbing disregard for the decades of hard-
     won knowledge of the professional American military.
       The United States' commitment to the Geneva Conventions--
     the laws of war--flows not only from field experience, but 
     also from the moral principles on which this country was 
     founded, and by which we all continue to be guided. We have 
     learned first hand the value of adhering to the Geneva 
     Conventions and practicing what we preach on the 
     international stage. With this in mind, we urge you to ask of 
     Mr. Gonzales the following:
       (1) Do you believe the Geneva Conventions apply to all 
     those captured by U.S. authorities in Afghanistan and Iraq?
       (2) Do you support affording the International Committee of 
     the Red Cross access to all detainees in U.S. custody?
       (3) What rights under U.S. or international law do 
     suspected members of Al Qaeda, the Taliban, or members of 
     similar organizations have when brought into the care or 
     custody of U.S. military, law enforcement, or intelligence 
     forces?
       (4) Do you believe that torture or other forms of cruel, 
     inhuman and degrading treatment--such as dietary 
     manipulation, forced nudity, prolonged solitary confinement, 
     or threats of harm--may lawfully be used by U.S. authorities 
     so long as the detainee is an ``unlawful combatant'' as you 
     have defined it?
       (5) Do you believe that CIA and other government 
     intelligence agencies are bound by the same laws and 
     restrictions that constrain the operations of the U.S. Armed 
     Forces engaged in detention and interrogation operations 
     abroad?
           Signed,
       Brigadier General David M. Brahms (Ret. USMC).
       Brigadier General James Cullen (Ret. USA).
       Brigadier General Evelyn P. Foote (Ret. USA).
       Lieutenant General Robert Gard (Ret. USA).
       Vice Admiral Lee F. Gunn (Ret. USN).
       Admiral Don Guter (Ret. USN).
       General Joseph Hoar (Ret. USMC).
       Rear Admiral John D. Hutson (Ret. USN).
       Lieutenant General Claudia Kennedy (Ret. USA).
       General Merrill McPeak (Ret. USAF).
       Major General Melvyn Montano (Ret. USAF Nat. Guard).
       General John Shalikashvili (Ret. USA).

Resolution Opposing The Appointment of Alberto Gonzales To Be Attorney 
General of the United States by the Mexican American Bar Association of 
                             Ventura County

       Whereas, the Mexican American Bar Association of Ventura 
     County was formed in 1980 and is composed of attorney members 
     and auxiliary members who for the past 25 years have promoted 
     access to justice for all, respect for the rule of law, equal 
     protection and due process of law.
       Whereas, under other circumstances, the Mexican American 
     Bar Association of Ventura County would have been proud to 
     endorse and applaud the nomination of a fellow Mexican 
     American attorney to the highest law enforcement position in 
     our country; and so it is with sadness and regret, that our 
     organization finds itself in strong opposition to the 
     nomination of Mr. Alberto Gonzales, White House Counsel for 
     United States Attorney General.
       Whereas, Alberto Gonzales, has rendered opinions proposing 
     that the United States of America and our sitting president 
     George W. Bush, can disregard the Geneva Convention; to wit, 
     Mr. Gonzales advised the President in a January 2002 
     memorandum that the Geneva Convention did not apply to 
     detainees at Guantanamo Bay, Cuba. This opinion has been 
     roundly criticized and been condemned in our country and 
     around the world, including by members of the State and 
     Defense Departments, as well as U.S. Military lawyers, 
     fearing that this policy would undermine respect for U.S. Law 
     and International law, exposing the United States' own 
     military service members to torture and abuse.
       Whereas, it is now well known that at various military 
     detention centers at Guantanamo Bay, Cuba, in Afghanistan, in 
     Iraq, including Abu Ghraib prison, detainees were subjected 
     to cruel, humiliating, degrading treatment and torture, 
     leading to the injury and even death of detainees, by U.S. 
     Military officers and civilian contractors operating under 
     the auspices of the United States Department of Defense.
       Whereas, Mr. Gonzales authored memos that condoned the Use 
     of Torture, by relaxing the definition of torture, describing 
     the prohibition contained in the Geneva Convention as 
     ``quaint'' and ``obsolete'', permitting and thereby causing 
     our nation to be shamed and disrespected, and these 
     ``opinions'' have contributed to the our country's loss of 
     the good will and the respect of a significant segment of the 
     people and countries of the world.
       Whereas, Mr. Gonzales, advised the President that he was 
     empowered to order the detention of anyone, citizen or non-
     citizen for indefinite periods of time, without charges being 
     presented, without access to counsel or to an impartial 
     tribunal, thus violating the most sacred requirements of due 
     process of law enshrined in the U.S. Constitution. This 
     position was later rejected by the U.S. Supreme Court in the 
     case of Rasul vs. Bush, in July of 2004, upholding the 
     principle that no one is beyond the reach of the law and 
     judicial scrutiny.
       Whereas, it is documented that Mr. Alberto Gonzales, as 
     Counsel to Governor George W. Bush of Texas, also failed to 
     provide Governor Bush with adequate information to properly 
     review clemency requests by prisoners on death row, that 
     might have compelled commutation of the death penalty or 
     further judicial review, and thus failed in his duty to act 
     as competent counsel to his client and to the People of the 
     State of Texas.
       Whereas, Mr. Alberto Gonzales by his actions and legal 
     opinions rendered throughout his career in public positions 
     and in his current position as White House Counsel, has 
     violated his obligation to support the stated mission of 
     lawyers in the United States and specifically the mission of 
     the State Bar of Texas, his home state, which is to ``support 
     the administration of the legal system, assure to all the 
     equal access to justice, foster high standards of ethical 
     conduct for lawyers, ``and educate the public about the rule 
     of law,'' be it therefore
       Resolved, That the Mexican American Bar Association of 
     Ventura County strongly opposes the confirmation of Alberto 
     Gonzales to the position of United States Attorney General, 
     and furthermore, strongly urges California's Senators Diane 
     Feinstein and Barbara Boxer, as well as all other members of 
     the United States Senate to vote against the confirmation of 
     Mr. Gonzales based upon his demonstrated poor judgment in 
     legal matters and his lack of commitment to the rule of law 
     and the Constitution of the United States of America.
                                  ____


  MALDEF Statement on the Likely Confirmation of White House Counsel 
   Alberto Gonzales to the Position of United States Attorney General

       MALDEF, the nation's premier Latino civil rights 
     organization, released a statement today regarding the likely 
     confirmation of White House Counsel Alberto Gonzales to the 
     Cabinet post of Attorney General. Below is the statement 
     released today by Ann Marie Tallman, MALDEF President and 
     General Counsel.
       ``The United States Attorney General upholds the laws that 
     define the very democracy of our Nation. The Attorney General 
     enforces all federal criminal and civil laws. The office 
     holder has the responsibility to determine how to use Federal 
     resources to prosecute violations of individual civil 
     liberties and civil rights--such protective laws have

[[Page 1126]]

     profound impact on the daily lives of American citizens and 
     those living in the United States. Finally, the Attorney 
     General has the authority to appoint a special counsel to 
     investigate and, if appropriate, prosecute matters when the 
     Attorney General concludes that extraordinary circumstances 
     exist such that the public interest would be best served by 
     removing the matter from the Justice Department.
       MALDEF acknowledges that Judge Alberto Gonzales can fulfill 
     his duties as Attorney General as defined by the United 
     States Constitution, the U.S. Code and various federal 
     Statutes. Judge Gonzales' personal history is compelling. He 
     has overcome significant obstacles to achieve his success. 
     His past professional experience speaks to his capabilities. 
     MALDEF remains encouraged that President Bush would make an 
     historic appointment of such a diligent individual.
       MALDEF acknowledges Judge Gonzales' adherence to precedent 
     in the area of individual privacy rights as defined by the 
     constitutional right to privacy. We also recognize his 
     perspectives on diversity and equal opportunity in higher 
     education and employment.
       MALDEF is America's premier Latino civil rights 
     Organization, and from this unique position, we have serious 
     questions and concerns about Judge Gonzales' record in three 
     important areas of the law. First, Judge Gonzales' public 
     statements and past record demonstrate support and deference 
     to our Federal Government's Executive branch. It will be 
     imperative for the Attorney General to question and challenge 
     unilateral exercise of executive authority when matters of 
     constitutional concern and violations of our federal laws 
     demand that the Attorney General protect individual civil 
     liberties or civil rights. In addition, there remains a 
     concern about Judge Gonzales' unique position and 
     transition--from Counsel to the President of the United 
     States to the United States Attorney General--and his ability 
     to determine when to appoint a special counsel. There is a 
     question whether Judge Gonzales can fairly and independently 
     determine in a matter he previously gave advice to the 
     President as the President's attorney, if a special counsel 
     should be appointed. A possible inherent conflict of interest 
     based upon his on-going attorney-client duties to the 
     President may impede his ability to be independent.
       Second, due process under the law is an important 
     Constitutional protection. Judge Gonzales's past record in 
     the Texas Death Penalty cases and his association with 
     memoranda setting aside the application of international war 
     conventions as applied to enemy combatants raises concerns 
     about whether he may set aside constitutionally guaranteed 
     due process protections in various domestic circumstances.
       Third, the federal government has sole authority and 
     responsibility to uphold our nation's immigration policies 
     while working to keep our homeland safe and secure. MALDEF is 
     concerned that Judge Gonzales, as Attorney General, may 
     delegate such important federal civil and criminal 
     immigration authority to state and local law enforcement 
     already overburdened with responsibilities to protect and 
     serve at the local level without the appropriate due process 
     protections that must remain guaranteed at the federal level.
       We acknowledge that Judge Gonzales is likely to be 
     Confirmed as the next Attorney General of the United States 
     and the first Latino to hold this important post. MALDEF 
     stands ready to work with Judge Gonzales as he carries out 
     his duties and continues his public service. However, because 
     of our specific concerns regarding apparent primacy of 
     executive authority; a potential conflict of interest in the 
     transition from Counsel to the President to Attorney General 
     in enforcing the special counsel law; setting aside due 
     process protections; and, uncertainty about whether inherent 
     authority exists at the state and local level to enforce 
     federal immigration policy, MALDEF cannot support his 
     confirmation.
                                  ____



                                Congress of the United States,

                                 Washington, DC, January 26, 2005.
     Hon. Patrick J. Leahy,
     Ranking Member, Senate Judiciary Committee, Dirksen Senate 
         Building, U.S. Senate, Washington, DC.
       Dear Senator Leahy, As the Senate considers the nomination 
     of Alberto Gonzales to be the next Attorney General of the 
     United States, we, on behalf of the Congressional Hispanic 
     Caucus (CHC), wish to inform you that the CHC has not 
     endorsed Mr. Gonzales.
       Since its inception almost three decades ago, the CHC has 
     served to advance the interests of the Hispanic community, 
     which includes promoting the advancement of Latinos into high 
     levels of public office. We have taken this responsibility 
     seriously, and have accordingly developed a process to 
     evaluate candidates for positions in the executive branch of 
     the federal government. Such a process is critical to 
     determining which candidates seek to hold office to serve the 
     public interest rather than to promote their own personal 
     interest. Our process has enabled us to endorse many 
     exceptional Hispanic candidates. During the past four years, 
     the CHC has proudly endorsed many judicial and executive 
     branch nominees selected by President George W. Bush.
       One simple step in our process is a meeting with the 
     nominee. Upon hearing of Mr. Gonzales' nomination for 
     Attorney General, we invited him to meet with the CHC to 
     provide him with the opportunity to meet our Members, discuss 
     issues important to the Latino community, and to seek our 
     endorsement. We were informed that he wanted our support and 
     for the past two months, we made every attempt to accommodate 
     his schedule. However, Mr. Gonzales ultimately chose not to 
     avail himself of the courtesies we extended to him. We were 
     last advised that Mr. Gonzales was simply too occupied with 
     responding to written questions from the Senate Judiciary 
     Committee and that we would instead have to wait to until 
     after he was confirmed as Attorney General before being 
     granted a meeting.
       Let us be clear, our concern is not about whether the CHC 
     is granted a meeting--it is about Mr. Gonzales' unwillingness 
     to discuss important issues facing the Latino community. His 
     answers to these questions would give our community the 
     information needed to form an informed opinion of his 
     nomination. With so little time left before a Senate vote on 
     Mr. Gonzales' nomination, the Latino community continues to 
     lack clear information about how the nominee, as Attorney 
     General, would influence policies on such important topics as 
     the Voting Rights Act, affirmative action, protections for 
     persons with limited English proficiency, due process rights 
     of immigrants, and the role of local police in enforcing 
     federal immigration laws.
       We are disappointed and surprised that Mr. Gonzales has 
     refused to meet with the CHC during the confirmation process. 
     Much has been said about the historic nature of Mr. Gonzales' 
     nomination, as the first Hispanic to serve as U.S. Attorney 
     General. However, the historic nature of this nomination is 
     rendered meaningless for the Hispanic community when the 
     nominee declines an opportunity to meet with the group of 
     Hispanic Members of Congress who have worked for so many 
     years to open the door of opportunity to fellow Hispanics. If 
     he is not willing to meet with the CHC, how responsive can we 
     expect him to be to the needs of the Hispanic community?
       We provide you this information as the reason for our lack 
     of endorsement of Mr. Gonzales.
           Sincerely,
     Grace Flores Napolitano,
       Chair, Congressional Hispanic Caucus.
     Robert Menendez,
       Chair, CHC Nominations Task Force.
     Charles A. Gonzalez,
       Chair, CHC Civil Rights Task Force.

  Mrs. FEINSTEIN. Mr. President, in summary, I very much regret this, 
but I think the U.S. Department of Justice is a unique Department. I 
think whoever is the head of it has to stand on his own two feet, has 
to be totally independent of Congress, of the White House, and has to 
be willing to submit to rigorous oversight by the Senate, by the 
Judiciary Committee, and has to set a tone which enables the Department 
of Justice to function as a fair and independent voice of the American 
people, as its chief law enforcement officer.
  I very much regret that I will vote no on this nomination.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER (Mr. Burr). The Senator from Utah.
  Mr. HATCH. Mr. President, I have heard the remarks of my 
distinguished colleagues, and I want to say I have some grave 
disagreements with some of the things that have been said.
  I rise in support of the President's nomination of Alberto Gonzales 
to be the next Attorney General of the United States.
  We all know who Judge Gonzales is. Today is a remarkable day in our 
country's history and a momentous day for the American Hispanic 
community.
  Today, we are considering the nomination of Judge Alberto Gonzales 
who, when confirmed, will become the first Hispanic-American Attorney 
General of the United States. That is very significant. He will be 
eighth in line of succession to the Presidency.
  In 1988, President Ronald Reagan appointed the first Hispanic Cabinet 
member, Secretary of Education Lauro F. Cavazos. Two years later, 
President George Herbert Walker Bush continued to make history by 
appointing the first woman and first Hispanic Surgeon General of the 
United States, Antonia C. Novello. Dr. Novello used to work with me as 
a fellow before she succeeded Dr. Koop as Surgeon General of the United 
States.

[[Page 1127]]

  Just last week, the Senate confirmed President Bush's nomination of 
Carlos Gutierrez as Secretary of Commerce. And today, President George 
W. Bush sets yet another first. As Chairman of the Republican 
Senatorial Hispanic Task Force, I am well aware of the significance of 
this appointment and this moment in our Nation's history. Every 
Hispanic American in this country is watching how this man is being 
treated today and throughout this debate as we discuss the nomination. 
This nomination is just that important.
  I know Judge Gonzales's life story. It has been laid out many times 
in the media and was described during the confirmation hearing. This is 
a story that bears repeating in the Senate. He is an American success 
story. He shows that no matter where anyone comes from, in America, 
there is no limit on how far they can go.
  As many Americans know, Judge Gonzales was the second of eight 
children. His father and two uncles built a small two-bedroom home with 
no running hot water in Humble, TX, where all 10 members of this family 
lived, a truly humble family. His parents had no more than a few years 
of elementary school education, and his father was a migrant worker. 
Growing up in a working poor household, his family never even had a 
telephone.
  In a story familiar to many whose parents and grandparents were 
immigrants, his parents knew the importance of an education for their 
son. After serving honorably in the U.S. Air Force, Judge Gonzales 
became the first person in his family to go to college. He attended the 
Air Force Academy and graduated from Rice University and Harvard Law 
School. Since then, Judge Gonzales has worked at one of the finest law 
firms in Texas and this country, Vincent & Elkins, he served for 3 
years as the general counsel for the Governor of Texas, served as 
secretary of state for the State of Texas, served as a justice on the 
Texas Supreme Court, and became as we all know, White House Counsel for 
President Bush.
  Yet his resume tells only part of the story. His accomplishments 
include many professional and civic honors. He was voted the Latino 
Lawyer of the Year by the Hispanic National Bar Association. He was 
inducted into the Hispanic Scholarship Fund Alumni Hall of Fame. He has 
received various awards from Harvard and Rice Universities, the United 
Way, the United States-Mexico Chamber of Commerce, the League of United 
Latin American citizens, just to name a few. He has been a pillar of 
every community in which he has lived.
  Despite these incredible personal achievements, Judge Gonzales 
remains one of the most unassuming, humble, and decent individuals I 
have ever had the privilege of meeting, let alone work with in 
government. I know firsthand that he is well qualified to be Attorney 
General of the United States, and I commend the President of the United 
States on his choice of such an outstanding individual.
  I am not the only person to think this. Judge Gonzales has the 
support of the National Council of La Raza, one of the largest Hispanic 
organizations in the country. He has the support of the Hispanic 
National Bar Association, the Latino Coalition, the League of United 
Latin American Citizens, the National Association of Latino Leaders, 
Congressional Hispanic Conference, the United States Hispanic Chamber 
of Commerce, the Hispanic Alliance for Progress Institute, the National 
Association of Latino Elected and Appointed Officials, the National 
Association of Hispanic Publishers, Minority Business Roundtable, the 
Texas Association of Mexican American Chamber of Commerce, the Congress 
of Racial Equality, the Jewish Institute for National Security Affairs, 
the Fraternal Order of Police, the National District Attorneys 
Association, the FBI Agents Association, the Recording Industry 
Association of America--just to mention a few. Anyone who says he does 
not have the vast majority support of all Hispanics in this country and 
most all other people who understand decency and honor just do not know 
what they are talking about.
  He has garnered support from both Democrats and Republicans. The 
former Secretary of Housing and Urban Development, under President 
Clinton, Henry Cisneros, wrote an article in the Wall Street Journal in 
January praising Judge Gonzales, and Senator Ken Salazar, the newly 
elected Democrat from Colorado, testified in favor of Judge Gonzales in 
our Judiciary Committee. I commend Senator Salazar for sharing his 
opinion of the nominee.
  Judge Gonzales is also supported by the former Solicitor General of 
the United States of America, Ted Olson, as well as members of the 
Heritage Foundation, the conservative institution in Washington. The 
philosophical, religious, and ethnic diversity of this support speaks 
volumes of his qualifications.
  Let me take a few minutes to read from some of these letters. Janet 
Murguia, president and CEO of the National Council of La Raza, the 
largest constituency-based Hispanic organization, has given a strong 
recommendation of Judge Gonzales.

       Not only is Judge Gonzales a compelling American success 
     story, it is also clear that few candidates for this post 
     have been as well qualified. He has served as Texas' 
     secretary of state, as a member of the Texas Supreme Court, 
     and as White House counsel, and has been deeply involved in 
     his community throughout his life.
       We are encouraged that in response to questioning, Judge 
     Gonzales agreed to review the Administration's positions on 
     sentencing reform and articulated some reservations about the 
     practice of ``deputizing'' local police to enforce 
     immigration laws.
       If confirmed, Gonzales would be the first Hispanic attorney 
     general and the first Latino to serve in one of the four 
     major cabinet posts--Secretary of State, Treasury, Defense, 
     and Attorney General.
       While we have had our policy differences with the Bush 
     Administration, we are confident that Judge Gonzales is 
     someone who will serve his country with distinction and who 
     will also be accessible and responsive to the concerns of the 
     Hispanic community. We urge the Senate Judiciary Committee 
     and the U.S. Senate to confirm him as soon as possible.

  She speaks for the vast majority of Hispanics in America.
  Similarly, the Latino Coalition strongly supports Judge Gonzales. In 
a press release dated November 11, 2004, it states:

       Judge Gonzales is the perfect choice for the next U.S. 
     Attorney General. The Judge has been an instrumental part of 
     the legal efforts to boost the war on terrorism and keep 
     America safe and secure, while upholding the highest 
     standards in government ethics. Judge Gonzales brings to the 
     Office of the U.S. Attorney General a distinguished legal 
     record based on his many years of work in the public and 
     private sector. He also brings a unique perspective and human 
     experience understood only by those whose families have 
     migrated to a foreign land with little resources and not 
     knowing the language. It is for this cultural depth and his 
     unique legal qualifications that we urge the Senate Judiciary 
     Committee and all members of the U.S. Senate to put partisan 
     politics aside so that Hispanics are no longer denied 
     representation in this important post. . . . We have been 
     honored to work with the Judge for many years now, and have 
     personally witnessed his ability to unite people of all 
     different backgrounds to get things done. He is an extremely 
     qualified and intelligent attorney who will serve with 
     distinction and make every Latino proud. We endorse his 
     nomination without any reservations.

  He will make every Latino proud. He has up to this time everywhere he 
has been. He has set a good example and has done what is right in his 
government work.
  The FBI Agents Association wrote to the committee last December:

       We write to express the support of the FBI Agents 
     Association for the nomination of Judge Alberto Gonzales for 
     Attorney General of the United States. . . . We believe Judge 
     Gonzales' practical life experiences, his legal training and 
     education, his judicial expertise and his close proximity to 
     and involvement with many of the most difficult jurisprudence 
     issues associated with the ongoing war against terror make 
     him a nominee fully worthy of confirmation by the U.S. 
     Senate. We are also confident that Judge Gonzales' experience 
     in and firm appreciation of the issues in today's national 
     criminal justice system will serve him and the nation well as 
     the next Attorney General.

  I can guarantee the FBI Agents Association does not send 
recommendations like that in the case of people who are not worthy.
  The National District Attorneys Association also expressed strong 
support for Judge Gonzales in a letter dated

[[Page 1128]]

December 17, 2004. This is a bipartisan association of all the national 
district attorneys of the country:

       During Judge Gonzales' tenure as Counsel to the President 
     our leaders have had frequent opportunities to meet with him 
     and to discuss with him issues challenging our public safety. 
     Through these meetings we have come to recognize both his 
     commitment to protecting the American public and to ensuring 
     closer working relationship between federal, state and local 
     law enforcement organizations.
       With the increasingly complex challenges facing us in our 
     fights against both organized gangs and terrorists he brings 
     the skills and legal acumen necessary for this position of 
     responsibility. We are confident that his confirmation will 
     enhance the safety of our citizens from threats, domestic and 
     international, while safeguarding those liberties that we all 
     treasure.
       As leaders for the only national organization representing 
     the local prosecutors of this nation we have the utmost 
     confidence in his ability to master this most challenging 
     position and pledge to do everything within our ability to 
     ensure that the working relationship between the Department 
     of Justice and America's prosecutors grows even stronger.

  Finally, let me read excerpts from a Wall Street Journal article 
written by Henry Cisneros, who was the Secretary of Housing and Urban 
Development in the Clinton administration and was the mayor of San 
Antonio for 8 years. This is what Mr. Cisneros had to say:

       The last four years have posed harrowingly difficult 
     dilemmas, especially those related to the 9/11 terrorist 
     attack on our nation and the military and security actions 
     that resulted from it. There have been successes and 
     failures, there have been good judgments and misjudgments--
     all in the context of war, that is, a context of military 
     organizations under stress, of imperfect information, of 
     life-and-death concerns. The American people decided in 
     November, for better or for worse, to see this conflict 
     through. It would be unseemly at this juncture to use the 
     forum of a Senate confirmation process to try to find a 
     scapegoat for a war that is at a very difficult stage. In any 
     event, Alberto Gonzales has done nothing to alter the basic 
     facts that he is a seasoned legal professional, is needed by 
     the president, and is a person of sterling character.

  Mr. Cisneros goes on 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. I had the high 
     honor of serving in a president's cabinet, as have five other 
     American Hispanics, but we all served in what might be called 
     ``outer circle departments.'' The historic character of this 
     nomination is that Judge Gonzales has been nominated 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.
       Judge Gonzales has demonstrated a nuanced understanding of 
     the struggles people face as they try to build a life for 
     their families in our country. Perhaps that appreciation 
     comes from remembrances of his own family's struggle. In the 
     Commencement Address at his alma mater, Rice University, 
     earlier this year, he recalled: ``During my years in high 
     school, I never once asked my friends over to our home. You 
     see, even though my father poured his heart into that house, 
     I was embarrassed that 10 of us lived in a cramped space with 
     no hot running water or telephone.''

  As an aside, I understand that. We had a humble home like that. We 
did not have indoor facilities at first. I knew what it was like to not 
be ashamed of my home but not wanting to bring people there. I 
understand Judge Gonzales. I was there, too.
  I will continue on with Henry Cisneros's comment. Remember, he was a 
Cabinet member in the Clinton administration, and he strongly supports 
Judge Gonzales. This is what Mr. Cisneros said:

       On another occasion, [Judge Gonzales] said: `` . . . my 
     father did not have many opportunities because he had only 
     two years of formal schooling, and so my memories are of a 
     man who had to work six days a week to support his family. . 
     . .He worked harder than any person I have ever known.''

  That is what Judge Gonzales said.
  Mr. President, this is the person who my Democratic colleagues are 
trying to defeat--a man who has bipartisan support throughout the 
country, and big-time support; a man who represents the American dream 
to so many of us; the man who deserves to be the next Attorney General. 
But to listen to these comments by our colleagues--and I think over the 
next couple days to listen to them--they act as if somebody has to be 
perfect to be a Cabinet member in any administration. But certainly in 
the Bush administration, they must be perfect. Not only do they say 
that, but you will find there are many distortions of his record. They 
take things out of context and blow them out of proportion.
  I worked closely with Judge Gonzales during President Bush's first 
term, and I have found him to be a man of his word. Unfortunately, in a 
misguided attempt to bring this fine individual down, some people, 
somehow, blame Judge Gonzales for the abuses that have occurred at Abu 
Ghraib. As many Americans, I, too, am concerned about the alleged 
abuses of detainees apprehended in the war on terror. When I saw the 
pictures in the media of detainees at Abu Ghraib, I was simply 
disgusted. I think all decent Americans were disgusted. They understand 
the abuses that occurred there were repugnant and inconsistent with our 
renewed commitment to promoting liberty and democracy. There is 
absolutely no debate about that.
  In addition, there are more allegations in the media recently about 
individuals being subjected to water-boarding, or suffering from 
cigarette burns, and other acts of physical intimidation that must be 
taken seriously as well. I take these allegations very seriously--very 
seriously. Regardless of what the precise legal definition of 
``torture'' is, when you see or hear about acts of physical abuse of 
prisoners, even in a time of war, it is very disturbing.
  It should be obvious enough that it does not need to be said, but I 
condemn the torturous acts that occurred at Abu Ghraib. The President 
condemns torture. My colleagues on both sides of the aisle condemn 
torture. Make no mistake about it, Judge Gonzales condemns torture. 
Judge Gonzales must have said that dozens of times before and after his 
hearing, both orally and in writing. He opposes torture, period. He 
could not have been clearer on this issue. To have his record distorted 
is hitting below the belt.
  There are many Americans who believe someone in the Government should 
be held responsible for these abuses. I agree. All of the individuals 
responsible for those atrocious acts should be punished. And they are 
being punished. The military immediately investigated. They have 
immediately prosecuted. Some of them have been sentenced, and the 
others will be. There is no question about it; they should be punished. 
However, these convictions do not get as much attention from the press 
as the photos themselves.
  The fact is, the convictions do not provide the political ammunition 
for those who oppose the President and this administration.
  Nonetheless, just earlier this month, Charles Graner was convicted 
for his role in detainee abuse. He was sentenced to 10 years of 
imprisonment. He also received a military demotion and was dishonorably 
discharged, as he should have been.
  He is not the only person who has been convicted. The military has 
disciplined four members of a special operations unit for abusing 
detainees in Iraq, including at least one case of the use of a Taser 
stun gun. It has also subjected two individuals to administrative 
punishments and four others to nonjudicial punishments. The Department 
of Defense has completed eight investigations and has three additional 
ongoing investigations.
  Lest we forget, the scandal of Abu Ghraib was the subject of an 
internal Government investigation well before the media broke the 
story. I am sure that as time goes on, there will be more 
investigations and more prosecutions of these people who acted as non-
Americans, as far as I am concerned. In the global war against 
terrorism, American soldiers and employees must conduct themselves 
honorably, and we will insist they do so--and so has Judge Gonzales 
insisted that they do so.
  Congress takes this oversight role very seriously. I was a cosponsor 
to S. Res. 356, which we passed last May, condemning the abuse of Iraqi 
prisoners at Abu Ghraib prison, urging a full and complete 
investigation to ensure justice is served, and expressing

[[Page 1129]]

support for all Americans serving nobly in Iraq.
  In August, the Defense Department Appropriations Act became law. It 
reaffirmed Congress's view that torture of prisoners of war and 
detainees is illegal and does not reflect the policies of the U.S. 
Government or the values of the people of the United States.
  In December, the Consolidated Appropriations Act for Fiscal Year 2005 
became law. This law includes a prohibition on the use of funds by the 
Justice Department to ``be used in any way to support or justify the 
use of torture by any official or contract employee of the United 
States Government.''
  In addition, at least five committees have held hearings on Abu 
Ghraib in the 108th Congress. Since May, the Armed Services Committees 
of both Houses took testimony from numerous Defense Department 
officials. Secretary Rumsfeld himself testified four times. Other 
witnesses include GEN Richard Myers, Chairman of the Joint Chiefs of 
Staff; Acting Secretary of the Army, Les Brownlee; U.S. Army Chief of 
Staff, GEN Peter Schoomaker; and Central Command Deputy Commander, LTG 
Lance Smith.
  The committees Interviewed General Taguba, the author of the Taguba 
Report, which investigated the photos of abuse at Abu Ghraib. They held 
hearings and heard testimony from general officers who conducted a 
formal investigation into the allegations of abuse, known as the Fay 
investigation and from James Schlesinger and Harold Brown, who were 
appointed by the Secretary of Defense to head the Independent Panel to 
Review DOD Detention Operations--otherwise known as the Schlesinger 
Report. The Senate also interviewed the Army Inspector General about 
his investigation, and interviewed Stephen Cambone, Undersecretary of 
Defense for Intelligence. The Senate Armed Services Committee took 
testimony from Central Command Commander General John Abizaid, 
Lieutenant General Ricardo Sanchez, who commanded the Multi-national 
Force-Iraq; Major General Geoffrey Miller, Deputy Commander for 
Detainee Operations in Iraq, and Colonel Marc Warren, Army Judge 
Advocate General.
  Despite all this, there are some people who believe that not enough 
has been done. And I respect their views. But it seems that now, a 
small but vocal group of those individuals have attempted to create an 
almost mob mentality--looking for any high level official in the Bush 
administration to take the blame. And Judge Gonzales has become the 
favorite scapegoat for some. People who cannot even bring themselves to 
speak optimistically about our prospects in Iraq in the days before and 
now after the day of the historic election itself, surely have no 
qualms about creating a scapegoat out of Judge Gonzales. This man--a 
committed public servant, a veteran of our Armed Forces--deserves 
better.
  Let us not lose focus here. Judge Gonzales has been nominated to be 
the Attorney General--not the Secretary of Defense.
  And when these abuses occurred, Judge Gonzales was not the Secretary 
of Defense. It was not his responsibility to tell soldiers which 
specific interrogation tactics to use.
  In fact, it was not even his responsibility to provide legal advice 
to the Secretary of Defense on torture or any other subject. Providing 
legal advice to executive branch departments and agencies is the role 
of the Department of Justice. His primary role was to provide legal 
advice to the President of the United States and other White House 
officials.
  Now if Judge Gonzales is confirmed, it will become his responsibility 
to become the Nation's principal law enforcement official and help see 
that each American receives equal justice under the law.
  But it is inappropriate and unfair to blame Judge Gonzales for legal 
advice given by somebody else in the Department of Justice years before 
he was even nominated to work in the White House.
  For example, some opponents of Judge Gonzales have gone on at length 
about the so-called Bybee memo. Before I get into the specifics of this 
memo, let me bring you back to the months following September 11, 2001. 
All of us here remember exactly where we were when the planes crashed 
into the World Trade Center towers and the Pentagon and in Pennsylvania 
that morning. None of us will forget the feelings of vulnerability we 
all felt in the days, weeks and months following the attack.
  President Bush has rightly made preventing another terrorist attack 
on U.S. soil his No. 1 priority. I know that my fellow citizens in Utah 
share the President's priorities when it comes to fighting terrorism. 
In fact, the first major international event that took place after 9/11 
was held in Salt Lake City when my community hosted the winter Olympic 
games.
  Here in the Senate, a mere month after the attack, we were terrorized 
by a letter sent to Senator Daschle's office containing anthrax. The 
distinguished ranking member of the Judiciary Committee was mistreated 
and threatened. Staffers, workmen, and visitors stood in line all day 
to be screened for anthrax, and hundreds of individuals took strong 
antibiotics as a preventative measure. I recall that time period where 
every day you would wake up wondering whether something terrible was 
going to happen that day.
  The Bush administration, too, was facing difficult questions. We all 
thought that another terrorist attack could come at any moment, and it 
would be incredibly difficult to predict when or where such an attack 
would occur because our enemy acted in a clandestine manner. They 
dressed as civilians, not as soldiers. They did not attack our military 
but tens of thousands of innocent civilians, urban centers, and 
government buildings. These individuals did not come from one specific 
country. They were a fanatic, ideological enemy with international 
reach. They could be anywhere. And they had the money to finance their 
terrorist activities.
  It was during these early months that the administration explored 
what its options were and how they should act in confronting this 
unique enemy, one that fought not in uniforms on battlefields, not for 
a particular nation but in blue jeans and American civies.
  Some are claiming that the President relied on the Bybee memo in 
formulating his policy with respect to interrogation techniques at Abu 
Ghraib. Let's take a look at these documents. First, the so-called 
Bybee memorandum was not written by Judge Gonzales, in spite of the 
implications by some. It was written by Jay Bybee who, at that time, 
was the Assistant Attorney General of the Office of Legal Counsel at 
the Department of Justice, and is now a distinguished judge on the 
Circuit Court of Appeals for the Ninth Circuit. That is why some people 
call it the Bybee memo. They could not call it the Gonzales memo. It is 
not the Gonzales memo, has never been the Gonzales memo.
  The memo is dated August 1, 2002. Remember that date. The memo 
addresses the Convention Against Torture and Other Cruel, Inhuman and 
Degrading Treatment or Punishment. It does not analyze the Geneva 
Convention. Let me just mention that this is a scholarly piece of 
analysis. Regardless of whether you agree or disagree with its legal 
conclusion, there can be little doubt that this 50-page, single-spaced 
document with 26 footnotes is a thoughtful and thorough analysis.
  Let me also say that this memo does not tell the President to use 
torture in Iraq. Rather it tries to define what torture is from a 
purely legal perspective.
  Let's compare the Bybee memo with the President's actual memorandum 
on the treatment of detainees. The subject of this memo is the humane 
treatment of al-Qaida and Taliban detainees. The President's memo was 
written on February 7, 2002. This is 6 months before the Bybee 
memorandum. So there is absolutely no way the President could have 
relied on the August 1, 2002, Bybee memo because it did not exist at 
the time he issued his definitive February 7 directive, the one that he 
and others followed.
  Let me be clear: I am not saying the Justice Department never 
considered

[[Page 1130]]

the Convention Against Torture prior to August 1, 2002. In fact, given 
the voluminous length of the analysis, it probably took some time to 
write. But to suggest this Bybee memo, which addresses a different 
statute, a statute that is nowhere mentioned in the President's 
memorandum, was indispensable in crafting the President's decision is 
simply false for the simple reason it did not exist at the time.
  What some of my Democratic colleagues are trying to do is hold Judge 
Gonzales responsible for a memorandum he did not write and that came 
from the Justice Department which he did not direct.
  The Bybee memo asks an important question: What is torture? This is a 
critical question to ask in the middle of a war on terror in which our 
enemies have made it clear that they will not observe the Geneva 
Conventions or any other rule of civilized conduct. Judge Gonzales 
received the Bybee memo, but some of my friends across the aisle are 
almost suggesting that he actually wrote it. He did not. He had nothing 
to do with it. In fact, they criticize him because they believe he did 
not object to the memo at the time he received it. But the fact is, we 
do not know what his private legal advice was to the President on the 
Bybee memo because that advice is privileged advice. And Presidents do 
not want their counsel divulging privileged advice.
  In fact, we should think twice before we ever proceed down the path 
of attempting to require the White House Counsel to divulge to the 
Congress in an open hearing precisely what legal advice he gave to the 
President on an inherently sensitive matter such as those that directly 
relate to national security.
  When all is said and done, Judge Gonzales did not supervise Jay 
Bybee. He did not supervise Attorney General Ashcroft. It was not his 
job as White House Counsel to approve of memos written by the Justice 
Department. And that memo of February 7 said the detainees should be 
treated humanely. That was the President's position.
  I have a lot more I want to say about this, but I notice the 
distinguished Senator from New York is here and wanted to say a few 
words before we break for lunch. I will interrupt my remarks. I 
couldn't interrupt a few minutes earlier. I will come back to this 
subject.
  I hope the Chair will allow the senior Senator from New York to have 
a few extra minutes. I would be happy to sit in the chair, if needed. 
But I will relinquish the floor and ask unanimous consent if I can 
finish my remarks after the luncheon; is that possible?
  Mr. SPECTER. Mr. President, we have consent following the lunch. I 
think the Senator from----
  Mr. HATCH. Immediately after the consent order.
  Mr. SPECTER. The Senator is entitled to finish.
  Mr. HATCH. Especially being interrupted and accommodating colleagues 
on the other side. I would like to finish.
  Mr. SPECTER. There had been a request for Senator Mikulski for 10 
minutes right after lunch.
  Mr. LEAHY. Yes, at 2:15. We don't have to break at 12:30. We could 
continue on. I was off the floor. What was the request?
  Mr. SCHUMER. Will my colleague yield for a minute?
  Mr. LEAHY. I don't have the floor.
  Mr. SPECTER. Mr. President, will the Senator from Utah be willing to 
await the completion of the remarks of Senator Mikulski for 10 minutes 
at 2:15 and Senator Schumer at 2:15 and then he will resume his 
remarks?
  Mr. HATCH. Following Senator Mikulski?
  Mr. LEAHY. If the Senator will withhold, how much longer does the 
Senator from Utah have?
  Mr. HATCH. I have a little bit more. It could be as long as a half 
hour.
  Mr. SPECTER. My unanimous consent request is that at 2:15, when we 
resume, Senator Mikulski be recognized for 10 minutes and Senator 
Schumer be recognized for 10 minutes and then Senator Hatch be 
recognized to conclude his remarks, then Senator Cornyn be recognized, 
and then Senator Kennedy be recognized.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEAHY. Reserving the right to object, it would be Senators 
Schumer, Hatch, Cornyn, and Kennedy?
  Mr. SPECTER. It would be Senators Mikulski, Schumer, Hatch, Cornyn, 
and Kennedy.
  Mr. LEAHY. I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. I thank the Chair.

                          ____________________