[Congressional Record (Bound Edition), Volume 151 (2005), Part 1]
[Senate]
[Pages 1130-1158]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF ALBERTO R. GONZALES TO BE ATTORNEY GENERAL--CONTINUED

  The PRESIDING OFFICER. Under the order of recognition, Senator 
Mikulski is recognized for 10 minutes, Senator Schumer for 10 minutes, 
followed by Senator Hatch, Senator Cornyn, and Senator Kennedy, with no 
time limit agreed to for Senator Hatch, Senator Cornyn, and Senator 
Kennedy.
  The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, the agreement is to have Senator Mikulski 
recognized for 10 minutes and Senator Schumer for 10 minutes. There is 
no time set when Senator Hatch resumes, and then Senator Cornyn is in 
line, and then Senator Kennedy is in line. It is my hope we will be 
able to get a consent agreement for the full debate time early this 
afternoon when that appears to be appropriate.
  Senator Mikulski, under the unanimous consent agreement, now has 10 
minutes.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I rise to exercise my constitutional 
responsibility pertaining to the nomination of Mr. Alberto Gonzales to 
be Attorney General of the United States.
  Over the weekend, all of us were heartened to see the enormous 
turnout of the Iraqi people seeking democracy and participating in the 
processes of democracy, even risking life and limb to vote in an act of 
self-determination over the future of Iraq. I was particularly filled 
with joy when I saw that women were free to participate in a democratic 
process in Iraq. But as we look to Iraq's move toward a democratic 
framework, the United States of America must continue to lead the way, 
but also lead by example--how our own country, through its processes 
and the people who govern, stand up for the principles that have been 
the hallmark of the United States of America.
  It is because of these principles of truth, justice, dignity, civil 
rights, human rights, and the enforcement of the rule of law that when 
it comes to the nomination of Judge Alberto Gonzales to be the Attorney 
General, I must reluctantly say that I cannot support this nomination.
  When you meet Mr. Gonzales, you find him to be a warm, engaging 
person, a person of civility and courtesy who has an incredibly 
compelling personal story.
  But we are not here to vote for a personal story; we are here to vote 
for the Attorney General of the United States, whose job is to enforce 
the law. Sure, we hear what a great background Mr. Gonzales has: the 
son of migrant workers, the first in his family to go to college and to 
law school, to work at a prestigious law firm, to go on to the Supreme 
Court of Texas, and be a Counsel to the President of the United States. 
But this is a man who, in his very act as Counsel to the President, 
created a whole new framework that created a permissive atmosphere for 
the United States of America to engage in torture. That is 
unacceptable.

[[Page 1131]]

  Mr. Gonzales attended the U.S. Air Force Academy--wow, what a great 
accomplishment. If anyone would understand the risk to troops should 
they fall and be taken prisoners of war, why they should be held under 
the Geneva Convention which protects the rights of a prisoner, it 
should be someone who attended the U.S. Air Force Academy, which has a 
high rate of graduates taken POW.
  Certainly the story is inspiring, but we are not voting on a personal 
story. The Attorney General must be committed to core constitutional 
values and to the rule of law. He must have a record of independence 
and good judgment. Mr. Gonzales has not demonstrated that commitment. 
In his zealous attempt to be the protector of the President, he has 
adopted legal reasoning at odds with core constitutional values. He has 
rejected long-established legal principles and compromised our Nation's 
moral leadership. He failed in the most important job, telling the 
President no, and speaking truth to power.
  After a careful review of his record, I do not believe that Judge 
Gonzales can fulfill the principles we want at the Department of 
Justice.
  This issue of torture is a very troubling one. Mr. Gonzales's advice 
to the President on this issue as well as detention and interrogation 
are very disturbing. Under his watch the administration changed the 
definition of torture, limiting it to physical pain equivalent in 
intensity to pain accompanying serious physical injury or even death. 
His advice provided the pathway to the President to exempt U.S. 
officials from international law governing torture.
  What did that mean? It meant that if the United States of America 
engaged in torture, he wanted to have legal arguments to show we would 
not be tried as war criminals. In his 2002 memo to President Bush, he 
provided a legal analysis that allowed the President to sidestep 
international principles governing humane treatment. He said that the 
new form of war ``renders quaint'' the Geneva Conventions. That 
statement is outrageous. Quaint means outdated or old fashioned. It 
means it is an Edsel. Quaint is a hoola hoop. It is not a treaty. You 
don't call the Geneva Convention that. Though it's often not enforced 
as vigorously as we would want, it is the one tool that has protected 
our own troops. It sets guidelines for humane treatment of prisoners. 
If America flaunts these laws--what will happen to our soldiers if they 
are captured. That is why the military's judge advocate general corps 
and former Secretary of State Powell urged the President to stand 
behind the Geneva Conventions.
  Since 9/11 we know that America has been fighting a different kind of 
war. We do know that we have to get information from terrorists who 
have predatory intents toward our country. We do need to look at new 
approaches, and maybe even reforming the Geneva Convention. But we 
should not do it by flouting international law.
  The memorandums that Gonzales oversaw allowed a framework and an 
attitude for torture to take place.
  Now where are we? We have troops under court-martial, and what we 
have is punishment at the bottom and condoning at the top.
  We can't have an Attorney General like that. We need to have an 
Attorney General who seeks the truth, who wants to help protect the 
United States of America and protect the United States of America for 
what it stands for. This is one of the reasons I cannot support him.
  But let's say 9/11 had never taken place and he had never written 
that memo and we had never gone to war in Iraq--wouldn't we all love 
it? I still would have flashing yellow lights about Mr. Gonzales. One 
of his main jobs is to recommend Federal judicial nominations. The way 
he has gone about nominations for the appellate court has been 
troubling. The White House Counsel's Office has pushed some of the most 
ideological and extreme judicial nominees we have ever seen, nominees 
with hostility to civil rights, to women's rights, to environmental 
rights, and to disability rights. This is even more troubling as we 
face a possible Supreme Court vacancy.
  Let me talk as the Senator from Maryland. I know it firsthand. We 
have a vacancy on the Fourth Circuit Court of Appeals, and its 
Maryland's seat that is vacant. Who did Gonzales pick? First of all, he 
wanted a nominee who was not even a member of the Maryland bar. That 
was pretty sloppy or pretty ideological. Then they picked someone with 
minimal qualifications. There are over 30,000 lawyers in Maryland and 
they couldn't find somebody who was a member of the Maryland bar? Why 
not? They found three for the Federal district court. Instead they 
wanted to play politics, and the way he wanted to play politics was to 
take away the Fourth Circuit seat from Maryland and give it to 
Virginia.
  We should not play politics with judicial nominations. Do we want an 
Attorney General who will play politics with the law, play politics 
with the court, and just play politics with international conventions 
designed to protect our troops? I do not want to play that kind of 
politics. I am going to vote against Alberto Gonzales.
  Let me say this: The position of Attorney General is unique in 
American Government. As leader of the Department of Justice, the AG 
must have a deep respect for the Constitution. That person has to be 
strong and willing to do what is right, regardless of politics, of 
pressure, or what is popular. The Attorney General is America's most 
important lawyer but also the people's lawyer, to protect the American 
people and important institutions.
  Unfortunately, Mr. Gonzales has spent the last 4 years as a single-
minded advocate for Presidential policies, which he himself should have 
cautioned the President against undertaking. He could have advised the 
President and shown respect for the law. But that is not his record. If 
he cannot value America's constitutional principles and give 
independent advice to the President, I can't vote for him for Attorney 
General.
  When we look at all the others things he has done--he skirted 
questions about the President's authority on torture; he didn't want to 
answer questions for the committee. He said he couldn't remember, then 
he couldn't find this and he couldn't find that--I can't find it in me 
to vote for him.
  There are those who say the President has a right to his nominations. 
The President does have a right to a nomination, but that doesn't mean 
he has the right to get his nominee. The Founders of this country, the 
people who invented America and wrote the Constitution of the United 
States, gave the Senate an advice and consent function. That means, to 
advise the President on best policies and best possible people, before 
we give our consent to the President.
  I cannot be a rubberstamp. I have to vote my conscience and to cast 
my vote, reluctantly, against Alberto Gonzales.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, this has been one of the most difficult 
votes on a nominee I have had to make since coming to the Senate, and 
that is because I like Judge Gonzales. I respect him. I think he is a 
gentleman, and I think he is genuinely a good man. We have worked well 
together, especially when it comes to filling the vacancies on New 
York's Federal bench. He has been straightforward with me, he has been 
open to compromise, and the bench is filled with good people.
  Our interactions have not just been cordial, they have been pleasant. 
I have enjoyed the give and take in which we have engaged. Therefore, 
when President Bush nominated Judge Gonzales to be Attorney General, my 
first reaction was positive. Unlike with judicial nominees which are 
life appointments from a separate branch of Government, Cabinet 
officers serve the President, and I generally believe we should show 
deference to the President's choices. That is why I was inclined to 
support Judge Gonzales. I believed, and I said publicly, that Judge 
Gonzales was a much less polarizing figure than Senator Ashcroft had 
been.
  But less polarizing than John Ashcroft is not enough alone to get my

[[Page 1132]]

vote. Even if you are, as Judge Gonzales is, a good person with top-
notch legal qualifications, you still must have the independence 
necessary to be the Nation's chief law enforcement officer. The 
Attorney General is unlike any other Cabinet officer. For all those 
other Cabinet officers, simply carrying out the President's agenda is 
enough. But to be a good Attorney General, unqualified deference to the 
President is not enough. Unlike all the other Cabinet positions, where 
your role is to implement and advance the President's policies as 
Attorney General, as the Nation's chief law enforcement officer, your 
job is to enforce the law, all the laws, whether they hurt or help the 
administration's objectives.
  This position requires a greater degree of independence than, for 
example, the Secretary of State, whose obligation is to advance the 
President's interests abroad. When the White House asks the Justice 
Department, Can we do x? Can we wiretap this group of people? The 
Justice Department is charged with giving an objective answer, not one 
tailored to achieve the President's goals. That is the chief law 
enforcement officer of the land--separate from the President's right-
hand person. As I have said before, it is hard to be a straight shooter 
if you are a blind loyalist.
  There are two models for an Attorney General: loyalist and 
independent, and we all know there were Attorneys General over the 
years who have been close to the President. Robert Kennedy is a great 
example. He served his own brother. But that said, no one ever doubted, 
in the confines of the Oval Office, Bobby Kennedy would oppose his 
brother if he thought he was wrong. Judge Gonzales is more of a 
loyalist than an independent, but that alone does not disqualify him. 
It raises concerns, but after extensive review of the record, 
unfortunately and sadly, and despite my great personal affection for 
Judge Gonzales, his testimony before the committee turned me around and 
changed my vote from yes to no. He was so circumspect in his answers, 
so unwilling to leave even a micron of space between his views and the 
President's, that I now have real doubts whether he can perform the job 
of Attorney General.
  In short, Judge Gonzales still seems to see himself as Counsel to the 
President, not as Attorney General, the chief law enforcement officer 
of the land.
  I would like to give a little bit of history. Judge Gonzales came and 
saw me back in December. We had a good conversation on a range of 
topics. I respected and appreciated his commitment to recuse himself 
from the investigation into the felony disclosure of then-covert CIA 
agent Valerie Plane's identity.
  I told him that I understood 9/11 created a brave new world; that the 
war on terror required reassessment of the rules of law; and I told him 
that given the enemies we now face, we couldn't afford to be 
doctrinaire.
  I told him I supported the administration when it comes to 
aggressively reexamining the way we do business and interrogating 
witnesses.
  I agree we have to make sure we are doing everything we can do to 
protect American families from those who would do us harm to prevent 
another 9/11, but I also told Judge Gonzales that I was troubled that 
the administration had undertaken its reworking or reinterpretation of 
the rules of war behind closed doors rather than engaging the Congress 
and the American public and the international community in an open and 
direct fashion.
  Time and time again the administration has gotten itself into trouble 
by trying to go at it alone rather than doing business in the open, 
particularly in the Justice Department. Whether it was the total 
information awareness project, the TIPS Program, or torture, they have 
been burned by their peculiar penchant for complete secrecy.
  I encouraged Judge Gonzales to be candid with the committee when 
discussing these issues. I encouraged him to give us some hope that he 
would run a different department, a more open department, one more 
willing to listen to the oral arguments than John Ashcroft.
  Unfortunately, even a cursory review of his answers reveal strict 
adherence to the White House line and barely a drop of independence.
  A set of answers very important to me came in response to my 
questions on the nuclear option--whether to rule from the chair that 
Senators were not allowed to filibuster judicial nominees.
  When we met in private, I asked Judge Gonzales his opinion about the 
constitutionality of the nuclear option. He said he had not reviewed 
the applicable constitutional clauses, and that in any event it was a 
matter reserved for the Senate. I asked him at that private meeting 
before the hearing.
  It wasn't taking him by surprise in any way to look at the 
Constitution. I told him I would ask the question again at the hearing. 
I informed him that his answer on this question would weigh heavily on 
my decision whether to support his confirmation.
  At the hearing, when I asked Judge Gonzales about the nuclear option, 
rather than being candid, he completely avoided the question, ducking, 
dodging, and weaving.
  I asked him three times to give his opinion, and each time he 
refused. I asked him twice more in writing, and again he refused to 
answer. In one of those questions, I simply asked him to imagine he was 
counsel to a U.S. Senator who was seeking his opinion on the 
constitutionality of the nuclear option, and no interference in serving 
the President. Again, he refused to answer.
  This is a crucial issue for me for two reasons. First, the importance 
of the nuclear option; and second, the importance of Judge Gonzales's 
independence as Attorney General.
  I believe the nuclear option would be so deeply destructive it would 
turn the U.S. Senate into a legislative wasteland and turn the 
Constitution inside out. Madison's ``cooling saucer'' would be 
shattered into shards.
  Judge Gonzales in his refusal to answer such vital questions and even 
giving opinions so that we might see the way he thinks weighs a lot 
with me, at least in terms of my vote, not in terms of him as a person.
  The matter repeated itself on question after question. On torture and 
nearly everything else, it seemed as if Judge Gonzales was going out of 
his way to avoid answering. He demonstrated a lack of 
straightforwardness and independence on just about every single 
question he was asked--again, no glimmer of light between how he might 
see things and how the President might see things.
  When you are the chief law enforcement officer of the land, when you 
are asked to rule on sensitive questions that balance liberty and 
security, you can't just do what the President wants all the time or 
you are not serving your country or serving the job. It is different 
from other Cabinet positions.
  I concluded that Judge Gonzales still sees himself as a White House 
Counsel rather than the nominee to be Attorney General, the chief law 
enforcement officer of the land.
  I have great respect for the judge. The Horatio Alger story that he 
had makes all of us proud to be Americans. It makes us glad about the 
future of new communities as they rise in America. It is truly an 
amazing country when a man can rise from such humble beginnings to be 
nominated Attorney General.
  I am mindful of the fact that if he is confirmed, as I anticipate he 
will be, Judge Gonzales will be the Nation's first Hispanic Attorney 
General. It is a tremendous success story that makes this vote even 
more difficult, although I am also mindful of the fact that the 
Hispanic Caucus voted against his nomination.
  When I called Judge Gonzales last week to tell him how I would be 
voting, he was understandably disappointed but he was, as always, a 
gentleman. He assured me we would continue working together to solve 
our Nation's problems. He assured me he would prove me wrong, and I 
hope he does.
  It was one of the most difficult conversations I have had in a long 
time. But it is too significant a job and too important a time to have 
an Attorney General about whom we have such severe doubts.
  I have no choice but, with sadness, to vote no.

[[Page 1133]]

  I yield the floor.
  Mr. SPECTER. Mr. President, I received a letter this morning 
addressed to Senator Collins and myself, Senator Leahy and Senator 
Lieberman, from Senator Kennedy and Senator Durbin concerning the 
certain second report from the Department of Justice. Immediately on 
receiving the letter, I contacted the Department of Justice to obtain a 
copy of the report. This is a report that did not go to Judge Gonzales 
but went to another client agency by the Department of Justice advising 
them as to the legal parameters for interrogation techniques, and that 
the identity of the memoranda that previously had been disclosed to 
Senator Leahy, although the memo had not been transmitted. And the 
matter had been briefed to the chairman of the oversight committee 
which has jurisdiction over the client committee. I am not very happy 
about all this circumlocution, but that is the information I have.
  Since Senator Kennedy was scheduled to speak in a few minutes when I 
got this at 2:20, I am advising my colleagues one of them is a 
recipient of the letter, Senator Leahy; another is the writer of the 
letter, Senator Kennedy.
  I ask unanimous consent these documents be printed in the Record.
  Mr. LEAHY. Reserving the right to object, and I shall not object, 
fortunately getting a letter like that is sort of like getting a big 
package addressed to you--and it is true, it was addressed to me--and 
you open the package and of course there is nothing in there and it 
still does not answer the question.
  I will not object. I also appreciate the courtesy of the chairman 
making sure that everyone knew the letter had arrived.
  Mr. SPECTER. As I received the letter this morning, I took steps to 
try to identify the memoranda and obtain it, if possible. These are the 
results. They ought to be made part of the record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                            Department of Justice,


                                Office of Legislative Affairs,

                                 Washington, DC, February 1, 2005.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         SOB, Washington, DC.
       Dear Mr. Chairman: You have inquired about a memorandum 
     from the Office of Legal Counsel, described in recent press 
     reports as being signed by Jay Bybee, then Assistant Attorney 
     General for the Office of Legal Counsel, and addressed to 
     another agency, signed on or about the same date as the 
     August 1, 2002, memorandum which has been made public, 
     addressing the legality of specific interrogation practices 
     under 18 U.S.C. Sec. Sec. 2340 and 2340A.
       As the Department of Justice made clear in a letter to 
     Senator Leahy dated July 1, 2004, (enclosed) ``[t]he 
     Department of Justice has given specific advice concerning 
     specific interrogation practices, concluding that they are 
     lawful.'' As the Department also made clear at that time, 
     that advice is classified and the Department will not discuss 
     it further publicly. Thus, the existence of a classified 
     opinion from the Department of Justice on the subject of 
     specific interrogation practices has been publicly 
     acknowledged for more than six months. As the Department 
     noted in the July 1, 2004 letter, that advice has been 
     appropriately provided by the client agency in a classified 
     setting to the relevant oversight committee.
       Finally, the Office of Legal Counsel in its recent 
     memorandum of December 30, 2004, stated ``we have reviewed 
     this Office's prior opinions addressing issues involving 
     [interrogation] of detainees and do not believe that any of 
     their conclusions would be different under the standards set 
     forth in this memorandum.''
           Sincerely,
                                             William E. Moschella,
                                       Assistant Attorney General.
       Enclosure.
                                            Department of Justice,


                                Office of Legislative Affairs,

                                     Washington, DC, July 1, 2004.
     Hon. Patrick J. Leahy,
     Ranking Minority Member, Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
       Dear Senator Leahy: This responds to your letter, dated 
     June 15, 2004, which enclosed written questions for the 
     record of the Committee's oversight hearing on June 8, 2004, 
     regarding terrorism, with particular reference to the 
     interrogation of detainees.
     Questions 1 through 4: Administration documents
       In response to the requests for documents contained in your 
     first four questions, enclosed are six Department of Justice 
     documents that have been released publicly. They are: (1) a 
     memorandum from the Office of Legal Counsel (OLC) to the 
     Counsel to the President and the General Counsel of the 
     Department of Defense on the ``Application of Treaties and 
     Laws to al Qaeda and Taliban Detainees,'' dated January 22, 
     2002; (2) a letter from the Attorney General to the President 
     on the status of Taliban detainees, dated February 1, 2002; 
     (3) a memorandum from OLC to the Counsel to the President on 
     the ``Status of Taliban Forces Under Article 4 of the Third 
     Geneva Convention of 1949,'' dated February 7, 2002; (4) a 
     memorandum from OLC to the General Counsel of the Department 
     of Defense on the ``Potential Legal Constraints Applicable to 
     Interrogations of Persons Captured by U.S. Armed Forces in 
     Afghanistan,'' dated February 26, 2002; (5) a letter from OLC 
     to the Counsel to the President on the legality, under 
     international law, of interrogation methods to be used during 
     the war on terrorism, dated August 1, 2002; and (6) a 
     memorandum from OLC to the Counsel to the President on 
     ``Standards of Conduct for Interrogation under 18 U.S.C. 
     Sec. Sec. 2340-2340A,'' dated August 1, 2002.
       While these are documents that would not usually be 
     disclosed to anyone outside the Executive Branch, the 
     Administration decided to release a number of documents, 
     including these and including many from the Department of 
     Defense, to provide a fuller picture of the issues the 
     Administration had considered and the narrower policies the 
     Administration actually adopted in this important area. While 
     we appreciate your interest in the additional documents set 
     forth in the attachment to your letter, the Executive Brand 
     has substantial confidentiality interests in those documents. 
     OLC opinions consist of confidential legal advice, analysis, 
     conclusions, and recommendations for the consideration of 
     senior Administration decisionmakers. The disclosure of OLC 
     opinions that have not been determined to be appropriate for 
     public dissemination would harm the deliberative processes of 
     the Executive Branch and disrupt the attorney-client 
     relationship between OLC and Administration officials. We are 
     not prepared to identify these documents specifically or 
     reveal which documents may be classified, but we can assure 
     you that no portions of any of these documents have been 
     classified since the Attorney General's testimony on June 8, 
     2004.
       We also can state that included in the memoranda that have 
     been released are all unclassified, final written opinions 
     from the Department of Justice addressing the legality of 
     interrogation techniques used in interrogations conducted by 
     the United States of al Qaeda and Taliban enemy combatants. 
     While the Department has not issued written opinions 
     addressing interrogation practices in Iraq, it has been the 
     consistent understanding within the Executive Branch that the 
     conflict with Iraq is covered by the Geneva Conventions, and 
     the Department has concurred in that understanding.
       Lastly, we note that some of the documents requested 
     originated with other agencies such as the Departments of 
     State and Defense. Consistent with established third-agency 
     practice, we suggest that you contact those agencies directly 
     if you wish to obtain copies of their documents.
       5. Do you agree with the conclusions articulated in an 
     August 1, 2002, memorandum from Jay Bybee, then AAG for the 
     Office of Legal Counsel, to Alberto Gonzales, Counsel to the 
     President, that: (A) for conduct to rise to the level of 
     ``torture'' it must include conduct that a prudent lay person 
     could reasonably expect would rise to the level of ``death, 
     organ failure, or the permanent impairment of a significant 
     bodily function,'' and (B) section 2340A, of the Federal 
     criminal code ``must be construed as not applying to 
     interrogations undertaken pursuant to [the President's] 
     Commander-in-Chief authority''?
       (A) In sections 2340 & 2340A of title 18, Congress defined 
     torture as an act ``specifically intended to inflict severe 
     physical or mental pain or suffering.'' Because Congress 
     chose to define torture as encompassing only those acts that 
     inflict ``severe . . . pain or suffering,'' Department of 
     Justice lawyers who are asked to explain the scope of that 
     prohibition must provide some guidance concerning what 
     Congress meant by the words ``severe pain'' (emphasis added). 
     In an effort to answer that question, the August 1, 2002 
     memorandum examines other places in the federal code where 
     Congress used the same term--``severe pain.'' In at least six 
     other provisions in the U.S. Code addressing emergency 
     medical conditions, Congress identified ``severe pain'' as a 
     typical symptom that would indicate to a prudent lay person a 
     medical condition that, if not treated immediately, would 
     result in--``(i) placing the health of the individual . . . 
     in serious jeopardy, (ii) serious impairment to body 
     functions, or (iii) serious dysfunction of any bodily organ 
     or part.'' 42 U.S.C. Sec. 139w-22(d)(3)(B); see also 8 U.S.C. 
     Sec. 1369(d) (same); 42 U.S.C. Sec. 1395x(v)(1)(K)(ii); id. 
     Sec. 1395dd(e)(1)(A); id. Sec. 1396b(v)(3); id. Sec. 1396u-
     2(b)(2)(C). In light of Congress's repeated usage of the 
     term, the memorandum concluded that, in Congress's view, 
     ``severe pain'' was the type of pain that would be associated 
     with such conditions. (The opinion refers to these medical 
     consequences as a guide for what Congress meant by ``severe 
     pain''; it does not state, as your question suggests, that, 
     to constitute torture, conduct must be likely to cause those 
     consequences.)

[[Page 1134]]

       Although, in other statutory provisions, Congress 
     repeatedly associated ``severe pain'' as a symptom with 
     certain physical or medical consequences, it is open to doubt 
     whether that statutory language actually provides useful 
     guidance concerning, the prohibition in sections 2340 & 
     2340A. A description of medical consequences--consequences 
     which could be accompanied by a variety of symptoms including 
     varying degrees of pain--does not necessarily impart useful 
     guidance to a lay person concerning the meaning of ``severe 
     pain'' The Office of Legal Counsel is currently reviewing 
     that memorandum with a view to issuing a new opinion to 
     replace it and may well conclude that the meaning Congress 
     intended when it defined torture to require ``severe pain'' 
     is best determined from the other sources addressed in the 
     original memorandum, including standard dictionary 
     definitions. See, e.g., FDIC v. Meyer, 510 U.S. 471, 476 
     (1994) (``In the absence of [a statutory] definition, we 
     construe a statutory term in accordance with its ordinary or 
     natural meaning.'').
       (B) The analysis in the August 1, 2002, memorandum 
     concerning the President's authority under the Commander-in-
     Chief Clause, U.S. Const. art. II, sect. 2, c1. 1, was 
     unnecessary for any specific advice provided by the 
     Department. The Department has concluded that specific 
     practices it has reviewed are lawful under the terms of 
     sections 2340 & 2340A of title 18 and other applicable law 
     without regard to any such analysis of the Commander-in-Chief 
     Clause. The discussion is thus irrelevant to any policy 
     adopted by the Administration. As a result, that analysis is 
     under review by the Office of Legal Counsel and likely will 
     not be included in a revised memorandum that will replace the 
     August 1, 2002, memorandum. The Department believes that, as 
     a general matter, the better course is not to speculate about 
     difficult constitutional issues that need not be decided. For 
     the same reason, it would be imprudent to speculate here 
     concerning whether some extreme circumstances might exist in 
     which a particular application of sections 2340 & 2340A would 
     constitute an unconstitutional infringement on the 
     President's Commander-in-Chief power. Cf Request of the 
     Senate for an Opinion as to the Powers of the President `In 
     Emergency or State of War,' 39 Op. A.G. 343, 347-48 (1939).
       6. Has President Bush or anyone acting under his authority 
     issued any order, directive, instruction, finding, or other 
     writing regarding the interrogation of individuals held in 
     the custody of the U.S. Government or as an agent of the U.S. 
     Government? If so, please provide copies. If any portion of 
     any document is provided with redactions, please explain the 
     basis for such redactions. The basis for withholding any 
     document should also be explained in detail.
       On June 22, 2004, the White House released the instruction 
     issued by the President to the Department of Defense on 
     February 7, 2002, concerning the treatment of al Qaeda and 
     Taliban detainees (it does not, however, expressly address 
     interrogation practices). The Department of Justice is not 
     aware of any writing issued by the President that expressly 
     addresses the issue of interrogations practices. The 
     President has, however, made it clear that the United States 
     does not condone or commit torture. We should also emphasize 
     that the President has not in any way made a determination 
     that doctrines of necessity or self-defense would point 
     conduct that otherwise constitutes torture. The President has 
     never given any order or directive that would immunize from 
     prosecution anyone engaged in conduct that constitutes 
     torture.
       We assume that to the extent your question asks about 
     directives issued by others under the President's authority 
     it is limited to interrogations of enemy combatants in the 
     conflict with al Qaeda and the Taliban or interrogations of 
     persons detained in connection with the conflict in Iraq. As 
     you know, numerous law enforcement agencies of the Executive 
     Branch have likely acted under the President's authority as 
     Chief Executive to issue numerous directives concerning 
     interrogations or interviews of subjects in custody in the 
     ordinary course of enforcing the criminal and immigration 
     laws. We assume that such directives are outside the scope of 
     your question.
       Numerous individuals acting under the President's authority 
     have undoubtedly issued orders or instructions regarding 
     interrogations of individuals in U.S. custody, both in the 
     conflict with al Qaeda and the Taliban and in the conflict in 
     Iraq. Such documents, however, are not Department of Justice 
     documents. Those documents should be sought from the 
     appropriate departments or agencies that issued them, through 
     the appropriate oversight committees in Congress.
       As for the Department of Justice, the General Counsel of 
     the FBI issued a memorandum on May 19, 2004, reiterating 
     existing FBI policy with regard to the interrogation of 
     prisoners, detainees or other persons under United States 
     control. That memorandum reiterated established FBI 
     requirement that FBI personnel ``may not obtain statements 
     during interrogations by the use of force, threats, physical 
     abuse, threats of such abuse, or severe physical 
     conditions.'' It also set forth reporting requirements for 
     known or suspected abuse or mistreatment of detainees. A copy 
     of that memorandum is enclosed. The Department is still 
     following up to determine whether there are any other similar 
     written directives relevant to your question. Please also see 
     the response to Question 8 concerning the Department's legal 
     advice to other agencies.
       7. On Friday June 11, 2004, the President was asked the 
     following question at a press conference: ``Mr. President, 
     the Justice Department issued an advisory opinion last year 
     declaring that as Commander-in-Chief you have the authority 
     to order any kind of interrogation techniques that are 
     necessary to pursue the war on terror . . . [D]id you issue 
     any such authorization at any time?'' The President answered: 
     ``No, the authorization I issued . . . was that anything we 
     did would conform to U.S. law and would be consistent with 
     international treaty obligations.'' Please provide a copy of 
     the authorization to which the President was referring. 
     Please also provide a copy of the Presidential directive you 
     had before you and referred to at the hearing.
       At the press conference to which you refer, it seems likely 
     that the President was referring to the February 7, 2002, 
     instruction discussed above. At the hearing before the 
     Committee, the Attorney General was also referring to the 
     President's instruction of February 7, 2002. The Attorney 
     General did not have any Presidential directive before him at 
     the hearing, He was merely reading language from the February 
     7, document that had been incorporated into his notes.
       8. Were you ever asked to approve or otherwise agree to a 
     set of rules, procedures, or guidelines authorizing the 
     interrogation of individuals held in the custody of the U.S. 
     Government or an agent of the U.S. Government? If so, please 
     indicate when you were asked to do so, and whether you did, 
     in fact, approve or agree in any way in whole or in part. In 
     addition, please provide a copy of any such rules, procedures 
     or guidelines, or explain your basis for refusing to do so.
       The Department of Justice has given specific advice 
     concerning specific interrogation practices, concluding that 
     they are lawful. The institutional interests the Executive 
     Branch has in ensuring that agencies of the Executive Branch 
     can receive confidential legal advice from the Department of 
     Justice require that that specific advice not be publicly 
     disclosed. In addition, that advice is classified. We 
     understand that, to the extent the client department(s) have 
     not already done so, they will arrange to provide the advice 
     to the relevant oversight committees in a classified setting.
       As noted above, included among the memoranda that the 
     Department has already released are all unclassified, final 
     written opinions from the Department of Justice addressing 
     the legality of interrogation techniques used in 
     interrogations conducted by the United States of al Qaeda and 
     Taliban enemy combatants. While the Department has not issued 
     written opinions addressing interrogation practices in Iraq, 
     it has been the consistent understanding within the Executive 
     Branch that the conflict in Iraq is covered by the Geneva 
     Conventions, and the Department has concurred in that 
     understanding.
       9. What were the criteria the Department used in selecting 
     civilian contractors to assist in the reconstituting of 
     Iraq's prison system? Please describe the vetting process to 
     which they were subjected. To what extent were concerns about 
     their backgrounds known to the officials who recommended them 
     to you and to what extent were you, aware of such concerns 
     when you selected them? Why were such concerns dismissed when 
     such individuals were recommended to you and selected by you? 
     Please explain in detail.
       It was and is essential that we do whatever we can to help 
     create a fair and humane criminal justice system in Iraq. To 
     that end, the Department of Justice responded to urgent 
     requests from the Coalition Provisional Authority (``CPA'') 
     and its predecessor for the provision of experts in the areas 
     of prosecution, policing, and corrections. The individuals 
     whom the Department of Justice has sent to Iraq--federal 
     prosecutors, former state and local police officers; and 
     corrections experts--have volunteered to take on one of the 
     most dangerous missions in that country. They are literally 
     on the front lines: in the courts, in the police stations, 
     and in the prisons.
       The experts the Department provided to the CPA--including 
     the corrections experts--have had neither responsibility for, 
     nor control over, individuals detained by the Coalition 
     military forces. The Department's role is strictly limited to 
     the Iraqi criminal justice system. In particular, the 
     corrections experts have operated heretofore under the 
     direction of the CPA's Senior Advisor to the Iraqi Justice 
     Ministry. Thus they have had no involvement in any of the 
     alleged abuses at the military portions of the Abu Ghraib 
     prison that are currently under investigation by Congress and 
     by the United States Military.
       Ensuring that these contractors are appropriately screened 
     is a responsibility that we take very seriously. But it is 
     important to note that we are aware of no allegation that any 
     of the corrections contractors committed or countenanced any 
     abuse of prisoners in Iraq. To the contrary, their central

[[Page 1135]]

     role in rebuilding the Iraqi prison system--including 
     creating systems for reporting and correcting abuses by Iraqi 
     prison officials--has been highly praised by the CPA's Senior 
     Advisors to the Iraqi Justice Ministry. Nevertheless, at the 
     Attorney General's request, the Inspector General is 
     undertaking a review of the process used to screen and hire 
     corrections advisors sent to Iraq.
       With regard to the process for selecting the initial team 
     of corrections experts, which deployed in May 2003, the 
     Deparment of Justice consulted experts in the Bureau of 
     Prisons (BOP) and the American Correctional Association. The 
     Department contacted one of the individuals recommended by 
     BOP, a former BOP Regional Director, and requested his 
     assistance in further vetting proposed assessment team 
     members. That individual agreed to join the first assessment 
     team, and to help recommend other members. Candidates were 
     required to submit SF 85Ps (Questionnaires for Public Trust 
     Positions) and fingerprint cards. NCIC checks were conducted. 
     No disqualifying information was found.
       A second assessment team was deployed starting in September 
     2003. This team was selected based in part on BOP 
     recommendations and in part on recommendations of members of 
     the first assessment team. To be sure, some of the 
     corrections experts sent to Iraq previously had been named in 
     lawsuits in the United States, in their capacities as the 
     directors of major state corrections systems. Although we do 
     not minimize the significance of such lawsuits, they are 
     commonplace for prison officials. And as far as we are aware, 
     none of the corrections experts sent to Iraq was ever found 
     by a court to have committed or countenanced abuses against 
     prisoners in their custody.
       As the need for corrections advisors grew, the Department 
     worked with a government contractor firm to identify 
     qualified candidates willing to serve in Iraq. Since January 
     2004, more than 80 additional correctional experts have 
     served, or are now serving, in Iraq. These candidates were 
     also required to submit SF85Ps and fingerprint cards. The 
     preliminary results of our internal review indicate that a 
     few caudidates were deployed before the necessary checks had 
     been completed. (We would note, however, that we are aware of 
     no allegations or findings of abuse of prisoners by these 
     candidates in Iraq or elsewhere.) Appropriate remedial action 
     is being taken to address this situation.
       It goes without saying that these experts have taken on one 
     of the most dangerous of tasks in Iraq. We are glad to be 
     able to report to you that, so far as we have been able to 
     determine, they have done so in a manner that has brought 
     honor to the United States. We nevertheless recognize that we 
     must engage in constant vigilance to ensure that this remains 
     the case, and intend to do so throughout the duration of our 
     mission in Iraq.
       10. Is the Department of Justice currently drafting, or 
     considering drafting, legisation to authorize the President 
     to detain individuals as ``enemy combatants? If the 
     Department is drafting or considering drafting such 
     legislation, will you consult with us before submitting it to 
     Congress?
       The Department is not currently drafting or considering 
     drafting such legislation. The Department does not believe 
     that such legislation is necessary at the present time. 
     Although the Department is still evaluating the full import 
     of the Supreme Court's recent decision, the decision in 
     Harmdi v. Rumsfeld, No. 03-6696, slip op. at 9-17 (June 28, 
     2004), confirms that additional legislation is unnecessary. 
     In Hamdi, the Court held that in the Authorization for Use of 
     Military Force, 115 Stat. 224 (Sept 18, 2001), Congress has 
     ``clearly and unmistakably authorized detention'' of enemy 
     combatants, id. at 12, including American citizens, where an 
     enemy combatant is defined as a person who is ``part of or 
     supporting forces hostile to the United States or coalition 
     partners'' and who ``engaged in an armed conflict against the 
     United States,'' id at 9 (internal quotation marks omitted).
       Should circumstances change, the Department would always be 
     willing to work with the Committee to ensure that necessary 
     and appropriate legislation is enacted.
       11. During the Judiciary Committee hearing last week, you 
     mentioned the limitation placed on the torture statute (18 
     U.S.C. Sec. 2340-2340A) by 18 U.S.C. Sec. 7(9). This section 
     was added to the definition of ``special maritime and 
     territorial jurisdiction'' by section 804 of the USA-PATRIOT 
     Act--originally an Administration proposal. The 
     Administration explained at the time, in its sectional 
     analysis, that the provision would ``extend'' Federal 
     jurisdiction to ensure that crimes committed by or against 
     U.S. nationals abroad on U.S. Government property did not go 
     unpunished. Unmentioned in the Administration's explanation 
     was that this provision creates a jurisdictional gap in our 
     ability to prosecute acts of torture.
       (A) Did the Department of Justice know and intend that the 
     proposed amendment would restrict the applicability of the 
     anti-torture statute?
       (B) Would the Department support legislation to restore the 
     pre-PATRIOT Act reach of the torture statute, making it 
     applicable to U.S.-owned, U.S.-run, and U.S.-controlled 
     facilities, including aircraft, ships, and other mobile 
     sites, located outside of the United States? If not, why not?
       (C) Would the Justice Department support further extension 
     of the torture statute, to make it applicable anywhere 
     outside the geographical borders of United States (i.e., the 
     50 states, the District of Columbia, and the commonwealths, 
     territories, and possessions of the United States)? If not, 
     why not?
       (A) An inquiry with Department personnel who were involved 
     in drafting the amendment to the provision defining the 
     special maritime and territorial jurisdiction of the United 
     States (``SMTJ''); 18 U.S.C. Sec. 7; has determined that they 
     were unaware of the potential that the amendment had for 
     affecting the applicability of sections 2340 & 2340A. To the 
     contrary, the provision was intended, as the Department's 
     section-by-section analysis indicated, to ensure jurisdiction 
     over crimes committed by or against U.S. nationals at 
     embassies and consular offices and on military bases and 
     other U.S. facilities overseas. In particular, the amendment 
     was intended to address a conflict among the courts of 
     appeals concerning the extraterritorial application of an 
     existing paragraph in section 7 and to codify the 
     longstanding position of the United States that the SMTJ did 
     extend to overseas bases. Compare United States v. Gatlin, 
     216 F.3d 207 (2d Cir. 2000) (holding, contrary to position 
     taken by the United States, that section 7(3) does not apply 
     extraterritorially), with United States v. Corey, 232 F.3d 
     1166 (9th Cir. 2000) (holding that section 7(3) does apply 
     extraterritorially), and United States v. Erdos, 474 F.2d 157 
     (4th Cir. 1973) (same).
       (B) The Department would support legislation making 
     sections 2340 & 2340A applicable to U.S.-owned, U.S.-run, and 
     U.S.-controlled facilities outside the United States. The 
     question, however, assumes that such applicability was clear 
     before the passage of the USA PATRIOT Act. As our answer to 
     part A indicates, that is not enturely accurate. Rather, 
     before the PATRIOT Act, there was a circuit split concerning 
     the scope of the SMTJ and whether or not it applied to 
     overseas military bases. Thus, under the view of the Ninth 
     Circuit, the SMTJ extended to military bases overseas and 
     accordingly sections 2340 & 2340A would not have appled to 
     such bases. See Corey, 232 F.3d at 1172. Under the view of 
     the Second Circuit, on the other hand, the SMTJ did not 
     extend to bases overseas, and sections 2340 & 2340A would 
     have applied to such bases. See Gatlin, 216 F.3d at 223.
       The Department will gladly work with Congress to draft 
     appropriate legislation to achieve the objective of applying 
     sections 2340 & 2340A to such bases overseas. Simply 
     returning statutory language to its pre-PATRIOT Act form, 
     however, is likely not the best means for achieving that 
     goal.
       (C) The Department would have no objection to such 
     legislation, and would work with the Committee to ensure that 
     it is carefully drafted to achieve its intended effect.

                                 * * *

       We hope that this information is helpful. We will 
     supplement this response with additional information relating 
     to other questions for the hearing record as soon as 
     possible. Please do not hesitate to contact this office if 
     you would like additional assistance regarding this or any 
     other matter.
       Sincerely,
                                              William E. Moschella
                                       Assistant Attorney General.

  Mr. LEAHY. Fortunately, though, the letter and the way it has been 
described by the chairman is absolutely correct. He has been very 
straightforward in his description. But it does not say, and the 
question was asked of Mr. Gonzales and the White House, was he aware--
was he, Alberto Gonzales aware--of the second Bybee memo. That does not 
require a classified answer. It is either a ``yes'' or ``no'' and he 
still refused to answer yes or no.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, out of deference to my Democratic 
colleagues this morning, I interrupted my remarks to allow Senator 
Schumer to speak briefly on the nominee. It now has been several hours 
since I last spoke. Let me briefly recap for those just joining this 
debate.
  Everyone knows I support the nomination of Judge Gonzales to be the 
next Attorney General of the United States. Early this morning, I 
talked about Judge Gonzales's inspirational personal background. I 
talked about his educational and professional qualifications, and they 
are many. I talked about all the awards he has won from so many civic 
organizations. I talked about many of the numerous organizations, 
individuals, and entities that support his nomination--virtually most 
strong Hispanic organizations, including the District Attorneys 
Association and the FBI Agents Association, and others, as well.

[[Page 1136]]

  In short, I talked about why this man is the right person for this 
difficult job at this challenging time and why we should not stand in 
the way of his fulfilling this wonderful opportunity--the first 
Hispanic ever nominated to one of the big four Cabinet level positions. 
I even went over other major first-time Hispanic nominations to major 
positions in this country all the way from President Reagan, to the 
first President Bush, and finally to our current President.
  I also talked about how this man--this good, honorable, decent man--
is being treated by some like a scapegoat. Some of my colleagues are 
trying to unfairly blame Judge Gonzales for abuses committed by 
renegade soldiers at the Abu Ghraib prison. But Judge Gonzales, of 
course, was not in charge of the soldiers in the field. He was not the 
person telling soldiers what interrogation techniques they could or 
could not use. I, like the President, like Judge Gonzales, and like 
many of the American public, was sickened by the abuses that occurred 
at Abu Ghraib prison. But these violations are not going unpunished.
  I talked about the investigations, prosecutions, and convictions the 
Defense Department has undertaken with respect to those perpetrators 
and how despicable those perpetrators are. I know we will see more 
prosecutions and convictions as time goes on. The Defense Department 
has been active on this, acted immediately, and has been acting ever 
since. It may not be published in the front pages of the newspapers and 
you may not hear about it on the 6 o'clock news, but these people are 
going to be brought to justice for their wrongdoing. To blame Judge 
Gonzales for this is making him a scapegoat. That is wrong.
  That is not the only thing my colleagues are trying to unfairly blame 
Judge Gonzales for. They are trying to blame him for the so-called 
Bybee memo, a memo Judge Gonzales did not write--a memo that was 
written by an agency, the Department of Justice, that Judge Gonzales 
did not work in; an agency for which Judge Gonzales was not 
responsible. And there has been an implication here that he, as White 
House Counsel, should have reversed everything and told the Justice 
Department what to do. If he had done that, he would be criticized for 
that.
  The fact of the matter is the Justice Department is the advisory body 
on these types of legal issues for the executive branch of Government. 
He may be White House Counsel, but that does not give him the right to 
change any opinion given by the Justice Department.
  I brought out that on February 7, before the Bybee memo was brought 
forth, on February 7 of the same year, the President did sign a 
memorandum with regard to the Taliban and al-Qaida that basically said 
that although these prisoners did not qualify for Geneva Convention 
protections they should be treated humanely. We do not hear a lot about 
that memorandum. If we do, his critics will probably distort it.
  I would like to spend a few minutes to focus specifically on the 
Geneva Conventions. There has been a lot of discussion and, frankly, a 
lot of misinformation. I would like to take a few moments to clarify. 
Some of the legal principles involved might sound a little complicated, 
but I will try to explain this as simply as I can.
  The Geneva Conventions are an international treaty. One key question 
facing the United States as we fought back against the terrorists was 
whether Iraq, the Taliban, and al-Qaida should be treated differently 
under this treaty.
  First, as we all know, treaties are signed by countries. They are not 
signed by individuals for individuals. Iraq signed the Geneva 
Conventions. There has never been any question that the Geneva 
Conventions apply to our conflict in Iraq where Abu Ghraib is located. 
Afghanistan also signed the Geneva Conventions. Afghanistan, however, 
has been embroiled in internal violent conflicts for 22 years. There 
was no legally recognized leader, no legally recognized central 
government and, for that matter, there were not even basic government 
services in the country at that time. The Taliban was a vile faction 
struggling for control of the nation, but it did not have anything like 
control over the entire country.
  There was a question about whether Afghanistan was a failed state as 
a matter of international law. If it was a failed state, then the 
treaty, naturally, would not apply to it. Ultimately the President 
decided regardless of what the law requires, that he was going to apply 
the Geneva Conventions to the Taliban. That is what it says in the 
President's February 7, 2002 memorandum.
  Going to the third category, al-Qaida is not a country. They are not 
a faction within a single country. They are a group of individuals from 
lots of different places who go around the world spreading terror and 
murdering innocent people. Simply put, they are a gang of terrorists, 
not a country. Since al-Qaida is not a country, they could not sign the 
treaty, nor would they, and we all know that. So it makes perfect sense 
to conclude that the President is not legally required to apply the 
Geneva Conventions to al-Qaida.
  So far, the analysis has been pretty straightforward. You sign the 
treaty, the treaty applies to you. The next step is a little more 
complicated. Under the Geneva Conventions, all detainees are not 
treated alike. In order to receive preferential treatment as a 
detainee, you must qualify as a POW, a prisoner of war. In order to be 
considered a prisoner of war, the group must have an organized command 
structure, uniforms, or insignia, openly carry arms and obey the laws 
of war. Al-Qaida and the Taliban detainees cannot qualify as POWs.
  Neither al-Qaida nor the Taliban have a permanent centralized 
communications infrastructure--the way you would expect to find such in 
a typical military organization. The Taliban is a loose array of 
individuals with shifting loyalties among various Taliban and al-Qaida 
figures. Defections and bribery are rampant.
  Second, the Taliban and al-Qaida members wear no uniform or other 
insignia that serve as a ``fixed sign recognizable at a distance.'' 
They dress like civilians in that area of the world.
  Third, although the Taliban carry arms openly, so do many in 
Afghanistan. They do not attempt to distinguish themselves from others 
carrying weapons.
  Lastly, al-Qaida and the Taliban do not follow the laws of war. We 
are all too familiar with how al-Qaida operates since we saw their 
despicable handiwork on September 11, 2001. They dress as civilians. 
They specifically attack civilians after hijacking civilian commercial 
airlines. They transform civilian aircraft into weapons of destruction 
to murder thousands of ordinary, innocent human beings.
  The Taliban used mosques for ammunition storage and for command and 
control meetings. They put tanks and artillery in close proximity to 
hospitals, schools, and residences. The Taliban has massacred hundreds 
of Afghan civilians, raped women, and pillaged villages. They use 
villages as human shields to protect stockpiles of weapons and 
ammunition.
  In fact, there is no indication that the Taliban understood or 
considered themselves bound by or aware of Geneva Conventions. The 
Taliban made little effort to distinguish between combatants and 
noncombatants when engaging in hostilities. For example, they killed 
for racial or religious purposes.
  So even if the Geneva Conventions applied to al-Qaida, it would not 
give them preferential treatment because they are not POWs. In fact, as 
I understand it, there is no significant difference between the 
treatment being accorded to the Taliban and al-Qaida, even though the 
Geneva Conventions only apply to the former, the Taliban.
  Now, let me cut to the chase. The President's February 7, 2002, 
memorandum makes one thing crystal clear: Regardless of where and when 
the Geneva Conventions apply--regardless of whether the Taliban or al-
Qaida are POWs--the President says unequivocally that detainees are to 
be treated humanely.
  This is a crucial point that has often gotten lost in some of the 
inflamed

[[Page 1137]]

rhetoric being employed by the opponents of Judge Gonzales and the 
President. And let us be clear that a considerable amount of the 
criticism being lodged against Judge Gonzales is merely an attempt to 
cause political damage to the President himself.
  That the purpose of the February 7 memo is to ensure that all 
detainees are treated humanely is evident by the fact that this concept 
is repeated four times in that memorandum.
  First, you should know that this is clear from the title of the memo: 
``Humane Treatment of al Qaeda and Taliban Detainees.''
  The President makes his policy directive explicit in paragraph No. 3 
of the memo:

       Of course, our values as a Nation, values that we share 
     with many nations in the world, call for us to treat 
     detainees humanely, including those who are not legally 
     entitled to such treatment.

  He repeats the command again in the last sentence of paragraph 3:

       As a matter of policy, the United States Armed Forces shall 
     continue to treat detainees humanely.

  The President repeats the command a fourth time in paragraph 5:

       I hereby reaffirm the order previously issued by the 
     Secretary of Defense to the United States Armed Forces 
     requiring that the detainees be treated humanely.

  One last point on this. In addition to saying again and again that 
detainees must be treated humanely, the President's February 7, 2002, 
memorandum also mandates that the U.S. Armed Forces treat detainees in 
a manner consistent with the principles of Geneva to the extent 
appropriate and consistent with military necessity.
  Now, while lawyers can hem and haw about what this precisely means, 
given the context of the quotation in the paragraph immediately 
following the POW analysis, it is logical to conclude that it means 
that the U.S. military shall accord POW treatment to al-Qaida and 
Taliban detainees unless military necessity dictates otherwise.
  Let me also make one other thing clear. What happened to some 
detainees at Abu Ghraib was not humane treatment. We all know that. The 
Army knows that. Our military knows that. I think all of us here can 
agree with that. It is also clear to me that the abuses that occurred 
at Abu Ghraib were contrary to the President's February 7, 2002, 
memorandum to treat them humanely. Those who committed these abhorrent 
abuses can and should be vigorously prosecuted and punished, and they 
are. Right off the bat, the investigation took place. And right off the 
bat, they are bringing people to justice. There is no doubt about that.
  I might add, the President is not given any credit for the 
prosecutions of Abu Ghraib. The desire of some who always want to score 
political points leads them to blame all wrongdoings on the President, 
even in a case like this where he had nothing to do with these actions. 
Judge Gonzales has made it clear that he does not defend the abuses 
that occurred.
  I am sure there are many people out there who are wondering what any 
of this has to do with the nomination of Judge Gonzales. Well, I have 
to undertake this legal analysis because some people have unfairly 
attacked Judge Gonzales for a draft memorandum with his name on it. The 
memo was dated 2 weeks before the President's order on February 7, 
2002, and it suggests that the Geneva Conventions should not apply to 
the Taliban.
  Several allegations against Judge Gonzales have been raised in the 
media and elsewhere, and I want to set the record straight.
  It appears from recent media accounts that this draft was not even 
written by Judge Gonzales. As is common in many Government offices, 
drafts are often initially written by lower level individuals and then 
edited and approved by the intended high-level author.
  We also know this was an early draft because other documents from the 
State Department indicate that Secretary Colin Powell and legal adviser 
William H. Taft recommended extensive changes to the draft, as they 
should have. The recommendations include significant changes to the 
structure of the memorandum, and how the information is presented, as 
well as correcting statements of fact and specific language.
  Although we do not know what Judge Gonzales actually advised the 
President, and we cannot because it was confidential advice to the 
President, we do know the President's February 7, 2002 memorandum is 
consistent with the views espoused by the State Department at the time.
  Judge Gonzales has told this committee that this draft:

     does not represent the final advice given to the President.

  It seems odd to me that our colleagues cannot accept his statement on 
that.
  He continued:

       Because it does not embody my final views as provided to 
     the President, I have not endorsed, nor do I have any 
     occasion to disavow, the tentative judgments about certain 
     provisions of the Geneva Conventions reflected in that draft.

  Now, some will argue Judge Gonzales ought to tell the Senate 
precisely what advice he gave the President on this very sensitive 
issue. The fear I have is that if the Senate demands this information 
in this instance and the White House succumbs to that demand, it will 
undermine the candor with which future White House Counsels communicate 
with future Presidents. I think most people would argue it probably 
would. That is why these types of conversations are privileged, and not 
available to the Congress of the United States.
  And, I might add, even when it is in the interest of the White House, 
in most instances this information remains privileged because the 
executive branch reasonably does not wish to set a precedent that will 
lead to Congress asking for access to every conversation that occurs in 
the White House.
  In this case, we have some salient facts. The President did not see 
the January 25, 2002, draft prior to making his February 7, 2002, 
decision to treat all detainees humanely. And, more important, at the 
end of the day, President Bush issued a policy directive that did not 
go as far as some of the legal advisers within the administration told 
them he could go under the law.
  Now, the draft says some provisions of the Geneva Conventions are 
obsolete and quaint, such as providing athletic uniforms, scientific 
instruments, advances of salary, and commissary privileges. People have 
quoted this out of context to say that Judge Gonzales thinks all of the 
Geneva Conventions are obsolete and quaint.
  This is simply nonsense. President Bush and Judge Gonzales know how 
important the Geneva Conventions are to American military personnel. We 
all do. As Judge Gonzales told the Judiciary Committee on January 6 of 
this year:

       Honoring our Geneva obligations provides critical 
     protection for our fighting men and women, and advances norms 
     for the community of nations to follow in times of conflict. 
     Contrary to reports, I consider the Geneva Conventions 
     neither obsolete nor quaint.

  Yet I have seen all kinds of comments suggesting otherwise. I know 
Judge Gonzales. I have worked with Judge Gonzales for 4 solid years. I 
knew him before those 4 years. He is a man of his word. I take him at 
his word on this important matter. So should my colleagues in the 
Senate.
  Let me review this one last time because it is an important point. 
Judge Gonzales has told this committee in writing that he does not 
believe the Geneva Conventions are obsolete and quaint. He said so 
under oath in his confirmation hearing, and he said so again in writing 
in response to questions from Senators.
  There have also been allegations that Judge Gonzales, because he has 
worked closely with President Bush for several years, is somehow 
incapable of having his own opinions and will be unable to give frank 
legal advice. I recall that similar accusations were made over 40 years 
ago with respect to the nomination of Robert F. Kennedy to be Attorney 
General of all things. As many Americans know, Robert Kennedy was 
President John F. Kennedy's brother and the brother of our 
distinguished Senator from Massachusetts and had

[[Page 1138]]

previously served as the President's campaign manager prior to his 
nomination to the office of Attorney General. While there was a good 
deal of controversy whether he, too, could be independent of his 
brother as Attorney General before he was confirmed, Robert Kennedy 
went on to become a great Attorney General, one who was and still is 
much admired by many in this country. I believe Judge Gonzales, too, 
can and will exercise that same independence.
  I listened carefully to Judge Gonzales's responses during the 
committee's hearing, and I know that he fully understands the 
differences between the role of White House Counsel and the role of the 
Attorney General of the United States. As White House Counsel, in Judge 
Gonzales's own words:

       I have been privileged to advise the President and his 
     staff.

  As Judge Gonzales further explained:

       As Counsel to the President, my primary focus is on 
     providing counsel to the White House and to the White House 
     staff and the President. I do have a client who has an 
     agenda, and part of my role as Counsel is to provide advice 
     that the President can achieve that agenda lawfully. It is a 
     much different situation as Attorney General, and I know 
     that. My first allegiance is going to be the Constitution and 
     to the laws of the United States.

  Judge Gonzales understands that as Attorney General, when confirmed, 
he would have, as he describes it, ``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.'' 
This transition is no different than the type many in this body have 
made over the years. People from this body, attorneys, work for all 
kinds of clients and every manner of clients. And the well-trained 
advocate is always aware of who his client is. To suggest that Judge 
Gonzales is somehow incapable of making this transition is more than 
insulting. It is despicable to make that suggestion. He is a bright guy 
with a lot of ability, and a record of which we should all be proud.
  As someone who served in private practice, as a judge, in political 
positions, and as an advisor to the President, his record is testament 
to his ability to serve his client well no matter who that is. I know 
Judge Gonzales. I know he will make this transition. I guarantee you he 
is no ``yes'' man. He has the character, education, and experience to 
exercise independent judgment in the interest of the American public.
  There have also been some allegations that Judge Gonzales's responses 
to the approximately 500 questions posed to him during the course of 
this nomination process were somehow incomplete. These allegations have 
been made notwithstanding the fact that the New York Times 
characterized Judge Gonzales's answers to the committee as ``one of the 
administration's most expansive statements of its position on a variety 
of issues, particularly regarding laws and policy governing CIA 
interrogations to terror suspects.''
  Some Senators have quoted Judge Gonzales's answers out of context. 
They focus on the few sentences where they say he refused to provide 
complete information and ignore all the other sentences in response to 
some 500 written questions to describe at length all of his knowledge 
on the wide variety of issues raised by Senators.
  Judge Gonzales is not someone who is trying to prevent the committee 
from seeing documents. To the contrary, Judge Gonzales was instrumental 
in the White House's release of hundreds of pages of documents 
revealing the administration's policies relating to the treatment of 
detainees last June. He helped negotiate among Congress, the Department 
of Defense, the Department of Justice, and the White House to 
declassify and publicly release documents relating to the humane 
treatment of al-Qaida and Taliban detainees, the application of the 
Geneva Conventions, the War Crimes Act, the Convention Against Torture, 
the Rome statute, as well as the Defense Department documents relating 
to specific techniques authorized and the report of the DOD working 
group which assessed the legal policy and operational issues relating 
to detainee interrogations in the global war on terrorism.
  Frankly, there were good arguments for withholding some of this 
information or at least making it available to Congress in a classified 
or nonpublic forum so that the general public and our enemies in 
particular would not be so well informed about our interrogation 
techniques. But the administration and Judge Gonzales wanted to provide 
full disclosure to the public and declassified this information so that 
everyone would know what went on.
  Just last week, Judge Gonzales submitted over 250 pages of responses 
to written questions after his hearing. That was after questions were 
supposed to be cut off. We used to do that in this body. We would give 
a fair amount of questions, which never amounted to as many as these. 
But just last week Judge Gonzales submitted over 250 pages of 
responses--single-spaced pages, by the way--to written questions after 
his hearing. I believe that Judge Gonzales attempted to answer the 
questions and be responsive. Although the deadline for submitting 
written questions expired on January 13, 2005, four Democratic Senators 
filed additional questions to Judge Gonzales on January 19, 21, 24, and 
25; I understand even maybe up to the present time. Judge Gonzales 
provided written answers to all of those questions on or before January 
25, 2005. Yet that is still not enough.
  Some have tried to make a big deal out of the fact that Judge 
Gonzales did not personally conduct a search in response to overbroad 
requests for notes, memoranda, e-mail, audio recordings, or documents 
of any kind. What my friend from Massachusetts Senator Kennedy fails to 
tell the American public, however, is that the White House informed the 
Judiciary Committee 2 months ago that Judge Gonzales recused himself 
from the decisionmaking process of releasing documents because of his 
pending nomination. Judge Gonzales repeated his recusal at his 
confirmation hearing in the first week of January. Obviously, a person 
in Judge Gonzales's shoes may have a short-term incentive to release 
documents to the committee when his nomination is pending. However, the 
White House may have a very different and legitimate view of such 
release as part of the historical relationship between the Executive 
Office of the President and the Congress in releasing information on, 
for example, matters pertaining to legal advice to the President and 
the White House Counsel and policy recommendations on matters of 
national security from White House components.
  It makes sense that Judge Gonzales would recuse himself during this 
time period. I believe it was proper for him to do so. Given Judge 
Gonzales's recusal, it is understandable why he personally did not 
conduct a search of White House records. But placing the blame solely 
on Judge Gonzales is just not right.
  Senator Kennedy focuses on eight instances where Judge Gonzales did 
not conduct a search. What do these responses have in common? First of 
all, they are all incredibly overbroad. One request seeks production of 
all notes, memoranda, e-mail, audio recordings, or documents of any 
kind that reflect the occurrence and substance of all meetings in which 
specific interrogation techniques were discussed. The request is not 
limited to specific documents, or documents written by Judge Gonzales, 
or received by him. This request wants every e-mail by anybody in the 
Federal Government who participated in a meeting about interrogation 
techniques during a war. Come on now.
  Another request seeks all notes, memoranda, e-mail, and documents 
that reflect the CIA's request for legal advice on how far it could go 
in conducting interrogations, or which interrogation methods it could 
use and any responsive actions by the White House Counsel's Office and 
the Department of Justice. Now, you have an overbroad request that 
holds Judge Gonzales responsible not only for things he did not write, 
but for e-mails written by others in two different agencies that he has 
no direct supervision over. Let's get real here.

[[Page 1139]]

  Let me mention some other points about these requests. In response to 
each one of these, Judge Gonzales, to his credit, never complains that 
the requests are unfair and overbroad--even though they are. He 
responds by saying he has no notes, or that he does not know of any 
audio recordings, or that he is not aware of any responsive documents. 
Also, for each of these requests he explains that the materials, if 
they did exist, would fall under a privilege. Then he says he did not 
conduct a search. Imagine how futile it would be to look for e-mail or 
handwritten notes of other people in other agencies about such a broad 
topic like interrogation techniques that would then be subject to a 
privilege?
  I know what this tactic is. Ask for the kitchen sink in the hopes of 
trapping the nominee with an unartful answer, so it can be claimed that 
he is not forthcoming. In other words, this is pure, unmitigated 
politics.
  It is entirely transparent that the anti-Gonzales vote is pure 
politics and nothing more.
  Judge Gonzales is a good man. He has not tried to hide the ball. 
There may well be legitimate requests for specific documents made by 
members of the Judiciary Committee at a later date as we learn more 
about the abuses at Abu Ghraib. There may also be legitimate questions 
about when and under what circumstances various executive privileges 
apply. I don't know, there may be. But this is just not one of those 
occasions. It is as simple as that.
  Look, this is not just any nomination. This is a nomination for the 
Attorney General of the United States of America. This is the first 
Hispanic ever nominated for that position, or for any of the big four 
positions in the Cabinet of any President. I am chairman of the 
Republican Senatorial Hispanic Task Force. We work with Hispanic people 
all over America who are every bit as devoted to our country as any 
citizen who has ever been in this country. I personally love Hispanic 
people. I can truthfully say I love this man as well because he is a 
good man. I have seen him give good advice. I have seen him work very 
hard to try to be accurate. I have seen him cooperate with our 
committee time after time. I have seen him keep his cool in the face of 
some of the outrageous requests that were made over the time I was 
chairman of the Senate Judiciary Committee. I have seen him run the 
White House Counsel's Office, and he has done a terrific job. He is a 
good administrator, a good lawyer. He has tremendous judicial 
experience.
  This man, regardless of his background, should be confirmed 
immediately as Attorney General of the United States of America. 
Frankly, I know my friends in the Hispanic community, and Hispanic 
people all over America, are watching this debate, and they are sensing 
something very unfair going on here. Every Democrat who opposed this 
man on the Judiciary Committee--virtually every one, as far as I can 
recall--talked about his great and humble background, how he came from 
nowhere and accomplished all he did, and what a good man he is. But 
they always have some reason to vote against him.
  I suspect there are a lot of politics being played here. We all know 
Alberto Gonzales has constantly been mentioned by the media and 
everybody else as someone who might ultimately wind up on the Supreme 
Court of the United States of America. Actually, if he never winds up 
there, being Attorney General is not too bad. It is one of the greatest 
positions in any country anywhere and certainly in our country. And to 
have this man come from the most humble of circumstances, which 
typifies the struggle every immigrant family in this country has gone 
through, and to not give him this opportunity when he is fully 
qualified for it, I think, would be a travesty. Let me conclude by 
telling my colleagues and the American public that I know Alberto 
Gonzales well. He is a good man. He is a fair man. He understands 
persecution. He understands prejudice. He understands the need to fight 
back to make it in this life, regardless of all of the obstacles in his 
way. I believe when he is confirmed, Judge Gonzales will make an 
excellent Attorney General. He has been fair to everybody on our 
committee time after time.
  The Senate should not stand in his way of becoming the next Attorney 
General of the United States. I do not believe it will. I do not 
believe people should be voting against this good man. If people vote 
against him, we have to stop and think, ``Why are they doing that to a 
man of his quality?''
  When Judge Gonzales accepted the President's nomination for Attorney 
General, he said the following:

       When I talk to people around the country, I sometimes tell 
     them that within the Hispanic community there is a shared 
     hope for an opportunity to succeed. Just give me a chance to 
     prove myself--that is a common prayer for those in my 
     community.

  I ask my colleagues to do exactly that--give Judge Gonzales a chance 
to prove himself. He will not let you down. I urge my colleagues to 
vote for Judge Gonzales to be the next Attorney General of the United 
States, and we will be very wise if we do so.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Crapo). Under the previous order, the 
Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I find it ironic that we are debating the 
nomination of this fine nominee for Attorney General and hearing some 
vehement criticism of not just him but of this administration and its 
policies in Iraq and combating the war on terror, and when on Sunday we 
saw free Iraqis conduct their first democratic election in many years, 
with the kind of turnout that, frankly, brings a little embarrassment 
to those of us in America because they had such a tremendous outpouring 
of emotion and support for the opportunity to rise up against their 
oppressors, thanks to coalition forces and the sacrifices made by the 
American people and our allies, and be able to do what we do here on a 
regular basis, and that is let the will of the American people be known 
through the process of electing our representatives. But here we are, 
and shortly on the heels of the debate on the nomination of Condoleezza 
Rice as Secretary of State. Of course, what we are told by those on the 
other side of the aisle is the outcome of this debate is not in doubt. 
Even the opponents of Judge Gonzales, just as the opponents of 
Condoleezza Rice, even as they stand here and claim these are great 
American success stories, which they are, and claim to personally like 
and respect these nominees, at the same time we see them excoriated and 
abused by partisan politics which, unfortunately, I hoped would cease 
or at least be mitigated somewhat by the results of the election on 
November 2.
  We saw on November 2 not only the President's reelection by 
substantial margins, but we also saw an increase in our side of the 
aisle in the Senate and larger numbers in the House. One reason I 
believe that happened was because of this debate on the wisdom of our 
policies of this Government, particularly over the last 4 years. We 
held a popular referendum on November 2 and, frankly, the politics of 
obstruction and anger were repudiated.
  What the American people want and expect is that we will get the 
business of the American people done in this body and that we will not 
degenerate into partisan fingerpointing or name-calling, nor 
obstruction of the kind we have seen occur time and time again against 
this President's nominees, particularly the judges who have been 
nominated by this President to circuit courts.
  We know that while our friends on the other side of the aisle did 
have an opportunity for self-examination and reappraisal on November 2, 
apparently they have been unable or unwilling to change their habits 
and their destructive approach to this process. Unfortunately, it 
causes good men and women, such as Al Gonzales and Condoleezza Rice, to 
have to go through a process that, frankly, does not dishonor them but 
I think fails to bring honor to this institution and to those who 
oppose their nominations.
  There is no question that we have an obligation in the Senate to 
seriously conduct our advice and consent function, and certainly no one 
is suggesting that any Senator should not vote their

[[Page 1140]]

conscience. That is not what we are talking about. What we are talking 
about is when we cross the line that should not be crossed between 
doing our duty, sent here as we were by the people of our various 
States, and engaging in partisan politics on the floor, particularly on 
nominations, it is unfortunate.
  I want to speak now not about this caricature that has been created 
by those who oppose this nomination, not the person I really see 
described by his opponents that I do not recognize, but I want to talk 
about the real Al Gonzales.
  I am pleased Judge Alberto Gonzales happens to be a friend. He is a 
talented lawyer and a distinguished public servant and a good man. He 
also happens to be a good Texan and an inspiring American success 
story. I am proud to call him my friend.
  I have known Alberto Gonzales for a number of years, unlike most of 
the people who are in this body, and that just is because I worked with 
him and alongside him and had a chance to observe him day in and day 
out, as he first functioned as the President's then-general counsel 
when he was Governor of the State of Texas, when he then served in the 
office of secretary of state for the State of Texas, and then was 
appointed and then elected to serve on the Texas Supreme Court, which 
he did for a couple of years before the President of the United States 
asked him to leave his home behind and come to Washington to work with 
him in the challenges of the Oval Office, to serve as his legal adviser 
and White House Counsel.
  Little did this President know and little did Alberto Gonzales know 
that September 11 would forever change the course not only of American 
history but their lives in such a dramatic and profound way.
  The context I think the opponents of this nomination fail to take 
into account is how much America and our way of life was threatened by 
those who had no regard for human life, who had no regard for the law 
of war, but rather than attack our military in a battlefield chose to 
attack innocent civilians, resulting in the massive loss of human life 
in Washington, Pennsylvania, and in New York and resulting in almost a 
trillion dollars' worth of economic loss to the American economy.
  Not only is this an extraordinary nominee and a good man, but I 
suggest to my colleagues that this President and his advisers, 
including his legal adviser, Alberto Gonzales, were met with challenges 
they never could have imagined they would have to undertake. It is 
important to have that context as we judge the work he did.
  As I say, I have known Alberto Gonzales for many years, and I can 
tell you the media is absolutely right when they call him the man from 
Humble. For those who are not from Texas, that refers to Humble, TX, 
where he was raised, but also the fact that he is a modest, self-
effacing man. He is the son of migrant workers. His childhood home, 
where his mother still lives today, was built by his father and his 
uncle.
  As a child, he earned a little bit of money selling soft drinks at 
Rice University stadium and there, as he looked over the football games 
being played in that stadium, he dreamed of one day possibly going to 
school at Rice University.
  Alberto Gonzales was the first person in his family to attend 
college. Because of the love and support of his family, his hard work 
and determination, he graduated from Rice University. In other words, 
his dream came true. Then he went on to graduate from Harvard Law 
School, two of the most prestigious institutions in this country.
  Was it because he was born with a silver spoon in his mouth or was a 
child of privilege or knew powerful people? I suggest the answer to 
that is absolutely not. The reason Alberto Gonzales was successful in 
achieving his educational dreams is because of the love and support of 
his family and because of the hard work that in America ought to be 
rewarded and not discouraged.
  Indeed, this is a man who not only, after he went to college, went on 
to work in one of the most prestigious law firms in the United States 
of America, but was one of its first minority partners. Yes, it was 
this young lawyer, after about 10 years of practice, who was first 
identified by an aspiring Governor of the State of Texas, George W. 
Bush.
  It cannot be lost in this debate, as it goes on today, tomorrow, and 
Thursday, that Judge Alberto Gonzales is truly an inspiration to all of 
us who still believe in the American dream.
  His nomination to be the 80th Attorney General of the United States 
of America, the chief law enforcement officer of this great country and 
our first Hispanic Attorney General, that story should by all accounts 
have a happy ending. But unfortunately that is not the way Washington 
works. Once again, we will see that this confirmation process is 
unnecessarily partisan, even cruel to those who have selflessly 
dedicated themselves to serving the American people. Only in Washington 
would a good man such as Alberto Gonzales, the personification of the 
American dream, someone who has pulled himself up by his bootstraps by 
dint of hard work and determination and the love and support of his 
family--only in Washington would we see that a man such as this would 
get raked over the coals for doing his job.
  This must be a little disorienting to Judge Gonzales and his family, 
because, frankly, he comes from that part of America that believes 
America should always be a place where honesty, determination, and 
diligence are rewarded.
  I want to talk a little bit about some of the specifics of the 
accusations made against Judge Gonzales, because I don't think we can 
take for granted that this is particularly well understood. They have 
to do with arcane matters, albeit important matters such as the Geneva 
Convention and the law of war, with the limits on interrogation 
techniques that can be humanely employed by the United States as a 
matter of policy, but first, I wish to point out that not only does a 
majority of the Senate stand ready to vote and confirm this 
particularly well-qualified and distinguished nominee, there are a 
number of groups around the country which support his nomination. I 
heard--and this happens to be a pet peeve of mine--that someone said 
the Hispanic Caucus in the U.S. House of Representatives opposes 
Alberto Gonzales's nomination.
  What that person did not say is that the Hispanic Caucus in the House 
of Representatives is composed only of Democrats. Indeed, there are 
Hispanics, both in the House and in the Senate, who support Judge 
Gonzales's nomination, as well as groups from all around the country 
that believe this nomination should not hit a glass ceiling but, 
rather, be an example for all Hispanics who look for reward for their 
hard work and labor in American society and which see this as an 
opportunity to elevate one of their own as a role model to young boys 
and girls as they go to school and work hard and try to achieve their 
American dream. The National Council of La Raza, the Hispanic Alliance 
for Progress Institute, the Texas Association of Mexican American 
Chamber of Commerce, the New America Alliance, the American-Latino 
Business Initiative, the National Association of Latino Elected and 
Appointed Officials, the Congressional Hispanic Conference, the League 
of United Latin American Citizens, the Hispanic National Bar 
Association, the Latino Coalition, the National Association of Latino 
Leaders, the United States Hispanic Chamber of Commerce, the Hispanic 
Association of Colleges and Universities, MANA, a National Latino 
Association, the National Association of Hispanic Publishers, the 
Hispanic Roundtable, and the National Association of Hispanic 
Firefighters endorse Alberto Gonzales's nomination to serve as this 
Nation's 80th Attorney General.
  I don't want those listening by reference to a solely Democratic 
caucus in the House of Representatives, by hearing they do not support 
his nomination to be under the misapprehension that Latinos in this 
country do not overwhelmingly support this nominee, because they do.

[[Page 1141]]

  I would point out finally, with regard to the Hispanic Caucus in the 
House, the solely Democratic-member caucus, they didn't support Miguel 
Estrada's nomination to the District of Columbia Court of Appeals, 
either. Frankly, it is beginning to be an unseemly trend.
  Let me talk a minute about the Geneva Convention because this is, as 
many legal matters are, somewhat confusing. Frankly, we get down so far 
into the weeds on this that people's eyes glaze over and roll back into 
their heads and they quit receiving any additional information. But the 
bottom line is this: Judge Gonzales advised the President that all 
detainees in the war on terror--whether they be al-Qaida fighters, 
whether they be Taliban, whether they be the Iraqi military when we 
went into Iraq; all--as a matter of policy of this Government, be 
treated humanely. In other words, Alberto Gonzales, this President, 
this Government, and all of its officials have said we oppose torture 
in any form as a means to get intelligence from detainees, whether they 
be classified as unlawful combatants or are covered by the Geneva 
Convention.
  Indeed, that is what Alberto Gonzales said in a memo he wrote to the 
President dated February 7, 2002, and which the President adopted. It 
is the policy of this Government to treat detainees--no matter how they 
be classified--humanely, and that we condemn the use of torture as a 
matter of national policy.
  You would never know it by some of the statements, some of the 
misstatements and some of the disinformation that has been spread about 
this nominee. Unfortunately, it has been harmful to our effort in the 
war on terror. This should come as fairly straightforward information, 
but let me just emphasize it. I asked this question repeatedly during 
the course of the hearings we had with Judge Gonzales. I said: Does 
anybody here take the position that America should not use all lawful 
means to obtain actionable intelligence that would save American lives? 
Does anyone take the position that we should not use all lawful means 
to obtain actionable intelligence that would save human lives?
  Thankfully, notwithstanding some of the rhetoric we have heard and 
maybe some of the confusion we have heard propagated during this 
debate, everyone said: No, we agree with that. You should use all 
lawful means to get actionable intelligence to save American lives.
  What I was thinking back to was a hearing we had before the Senate 
Armed Services Committee on May 14, 2004. I asked that question of two 
of our Nation's most distinguished military leaders, MG Geoffrey 
Miller, who was in charge of the detention facilities there at 
Guantanamo, where many of the al-Qaida fighters are kept who have been 
the subject of news reports and some discussion and litigation. I also 
asked GEN John Abizaid, who is the commander of the U.S. central 
command, including Iraq. I will just read what General Abizaid said:
  I will start with a question.
  I said: ``In your opinion, General Miller, is the military 
intelligence you have been able to gain from those who have recruited, 
financed and carried out terrorist activities against the United States 
or our military, has that intelligence as a consequence that you gained 
saved American lives?''
  General Miller said: ``Senator, absolutely.''
  So I asked General Abizaid, who was also there on the same panel, I 
said: ``Would you confirm for us, General Abizaid, that it is also true 
within the Central Command''--which includes Iraq, Afghanistan, and I 
think it covers 26 countries. I may be off one or two.
  But General Abizaid, the commander of U.S. Central Command, said: 
``Senator, I agree that is true. And I'd also like to add that some of 
these people we are dealing with are some of the most despicable 
characters you could ever imagine. They spend every waking moment 
trying to figure out how to deliver a weapon of mass destruction into 
the middle of our country, and we should not kid ourselves about what 
they are capable of doing to us and we have to deal with them.''
  I said: ``General Abizaid, if we needed any other reminder than that 
of the death of Nicholas Berg, I believe that reminds us again in a 
graphic fashion.''
  You will recall that it was Nicholas Berg who was captured by 
terrorists, who then was beheaded on camera, and that film was shown to 
the entire world.
  Our enemy does not play by the rules. They are not constrained by the 
law of war or the Geneva Convention. They believe it is perfectly 
acceptable to kill innocent civilians by suicide bombing attacks, as we 
have seen. And they believe it is perfectly acceptable to behead 
unarmed hostages as a means to carry out their reign of terror.
  On the matter of the Geneva Convention, it is clear that it is 
important for us to get actionable intelligence using humane and 
legally acceptable means. Any suggestion that Judge Gonzales believes 
inhumane or illegal means are acceptable is simply not supported by any 
facts.
  Frankly, on the matter of the applicability of the Geneva Convention, 
Judge Gonzales is right. You don't have to take my word for it.
  First, I heard the Senator from Utah, Senator Hatch, former chairman 
of the Judiciary Committee, point out that al-Qaida never signed the 
Geneva Convention. But people may say, Well, that is a technical matter 
but it is part of it.
  I will tell you that the Red Cross's own guidelines, which I hold 
here in my hand, have four requirements, four conditions of lawful 
combat, none of which al-Qaida meets.
  Here again I ask: Does anyone in this body or anywhere across the 
country seriously argue that al-Qaida complies with the law of war? 
Judge Gonzales is not binding himself in his legal conclusion about the 
applicability of the Geneva Convention. Even though you say it might 
not meet the letter of the rules set out in this book I held up, the 
International Committee of the Red Cross Guidelines on the Geneva 
Convention, I would suggest this is important. Three Federal courts 
have concluded that Judge Gonzales's legal advice was correct. It has 
also been endorsed by numerous legal scholars and international legal 
experts across the political spectrum, as well as the 9/11 Commission, 
as well as a report given by the Schlesinger Commission, which was one 
of the commissions appointed to review the detention operations both at 
Guantanamo Bay and Abu Ghraib.
  Finally, in addition to those decisions by the Federal court, the 9/
11 Commission, and the Schlesinger report, I would say a brief filed in 
a recent Supreme Court case by former Carter administration officials, 
former State Department legal advisers, judge advocates general, 
military commanders, and liberal international law scholars, has agreed 
with Judge Gonzales's conclusion about the applicability of the Geneva 
Convention to al-Qaida.
  As a matter of fact, these legal scholars said the President's 
conclusions that members of al-Qaida and the Taliban are unlawful 
combatants is clearly correct.
  I would say to those who have been loose with the law and facts with 
regard to the Geneva Convention, they need to doublecheck their 
information, because time and time and time again Judge Gonzales's 
legal advice to the President has been shown to be correct.
  But I must say again, this is not the same as saying we are going to 
treat these detainees in an inhumane fashion or that we are going to 
engage in torture. We are not. But some have inflated those two, saying 
if the Geneva Convention doesn't apply, what you are saying is there 
are no rules and anything goes, which is absolutely false. That is not 
what I am saying. That is not what Judge Gonzales said, that is not 
what the President says, and that is not the policy of the U.S. 
Government.
  One last thing on the Geneva Convention. My father's generation, 
which was part of the ``greatest generation'' that fought in World War 
II--there are a lot of television shows and movies that depict how POWs 
are maintained. One of them I remember watching

[[Page 1142]]

when I was a kid was called ``Hogan's Heroes.'' You know what the 
Geneva Convention is designed to do--to protect American soldiers by 
providing reciprocal treatment by nations that we are at war with so 
our soldiers, sailors, marines, and airmen will be kept in a humane and 
appropriate fashion. But, of course, that presupposes the Geneva 
Convention applies, and that your enemy respects the law of war and 
shows some sort of self-restraint, something al-Qaida and the Taliban 
have not shown at all.
  But does anybody believe that we ought not to be able to entice 
detainees to respond by offering creature comforts or other 
preferential treatment?
  For example, when I went to Guantanamo and observed detention of al-
Qaida terrorists there, it was explained to me by General Miller that 
they would sometimes use a little better food, maybe a change of the 
diet, perhaps allow people to cook on a grill outside and sort of 
encourage them to cooperate by more appetizing food, or maybe even move 
them from an individual cell into a community cell block where they 
could associate with one other and have a little greater freedom of 
movement. Those were some of the techniques being used there which 
would not be available if the Geneva Convention applied.
  Surely those who oppose this nomination cannot believe that al-Qaida 
terrorists deserve to be treated better than an American citizen 
accused of a crime, which is in essence what they are saying.
  I know I have dwelled upon this subject for a while, but let me 
conclude on this because, frankly, you hear the same old, tired, worn-
out arguments being brought up time and time again without regard to 
the facts as I have explained them or the law as I have explained it.
  There was a time actually when President Reagan was in office where 
there was a proposed amendment to the Geneva Convention, known as 
Protocol I of 1977, that would have actually extended the Geneva 
Convention to terrorists. President Reagan said: ``We must not, and 
need not, give recognition and protection to terrorist groups as a 
price for progress in humanitarian law.'' We did not adopt that 
amendment but, indeed, we rejected it.
  Notably at the time, even the New York Times and the Washington Post 
agreed. The Times called the President's position ``sound'' while the 
Post said it was right and even accused opponents of that of hijacking 
the Geneva Convention.
  But, my, how far we have come to this hyperpoliticized environment 
where the facts and the law seem to take a backseat, and continuation 
of some of the political campaign tactics that we saw before November 2 
have now carried over after the election not directed only at the 
President but now directed at his nominees.
  All this support from multiple Federal courts, the 9/11 Commission, 
the Schlesinger report, liberal international legal scholars, Carter 
administration officials, even the New York Times and the Washington 
Post, and yet Judge Gonzales is being criticized by opponents of his 
nomination for taking the exact same position with regard to the 
applicability of the Geneva Convention.
  All I can say is, it is only in Washington.
  Let me touch on one other legal issue that gets down into the weeds. 
Judge Gonzales has been criticized for trying to understand what 
Congress meant when it passed the law prohibiting the use of torture, 
the so-called torture statute. The memo he is being criticized for he 
did not write, and the language defining what was torture and what was 
not torture that he is being criticized for, he did not write that 
statute either. Congress wrote that statute.
  If Judge Gonzales, the officials at the Department of Defense, if the 
U.S. Government, including this administration, had so little regard 
for the law and basic human norms like humane treatment of detainees, 
why in the world would they go through all of this trouble to try to 
figure out what exactly did Congress intend and what are the limits? 
The reason is not to find a limit so you can find a way around the 
statute, it is to find how do you comply with the law because 
Government officials know if you violate the law, you, too, are 
accountable in a court of law.
  Frankly, today--maybe it is a sign of the times--even military 
commanders, the Secretary of Defense, and other high Government 
officials do not make a move without consulting their lawyer because of 
their concern, No. 1, about complying with the law; and, No. 2, the 
consequences of failing to comply with the law.
  It is simply unfair to attack Judge Gonzales again for a memo he did 
not write and a statute that defines torture that he did not write 
either, that Congress did. So I suggest some of the opponents of this 
outstanding nominee, if they do not like what the torture statute says, 
if they do not like the effort to try to understand and explain it, 
maybe they ought to look in the mirror and maybe we ought to go back to 
work and be more clear about what we mean when we say torture is 
illegal and what the limits are of that.
  Again, everyone agrees--or at least I have not heard anyone object 
yet--to the goal of using all lawful means to obtain actionable 
intelligence to save American lives. And how can you determine what 
those lawful means are unless you examine the treaties and the statutes 
and other laws that deal with what the permissible limits of 
interrogation techniques are and use that as a bright line to determine 
what is legal, permissible, what is humane and what is not.
  Let me mention, some have again tried to confuse the issue by taking 
the criminal conduct of a few at Abu Ghraib prison and suggesting that 
somehow this reflects the policy of this administration and of the U.S. 
Government.
  Not only is that suggestion an insult to all law-abiding Americans, 
and particularly those men and women in uniform who are serving 
honorably and who made the celebrations following the election in Iraq 
on Sunday possible, but to try to paint with such a broad brush and to 
say this is a matter of policy or practice and nobody cares what the 
law is and, you know what, we are going to take a few bad actors and 
people who cross the line between legality and illegality and we will 
basically suggest everybody is in the same big pot. That pot is people 
who have committed criminal acts against detainees and prisoners at Abu 
Ghraib.
  It is safe to say that everyone agrees Abu Ghraib was a shameful 
episode in our Nation's history. Yet again some want to actually 
exploit that tragedy, that shameful episode by a few, for political 
points. Abu Ghraib is a serious matter. It should be treated seriously. 
Indeed, it has been.
  The Senate Armed Services Committee has held hearing after hearing 
after hearing to try to get to the bottom of what happened. The U.S. 
Department of Defense has conducted at least eight different 
investigations to try to figure out what went wrong and how to make 
sure it does not happen again, but to also hold those who cross the 
line into criminal conduct accountable. Indeed, we have seen that 
happen.
  Abu Ghraib should be treated seriously and not politically. Even the 
Schlesinger report--and I know there have been suggestions that somehow 
the acts of a few miscreants at Abu Ghraib reflect broad, widespread 
disregard for basic human rights of these detainees, or maybe somehow 
reflects the use of permissible interrogation techniques approved by 
the Department of Justice--here again the Schlesinger report, composed 
of a bipartisan commission to investigate what happened at Abu Ghraib, 
concluded:

       No approved procedures called for or allowed the kinds of 
     abuses that, in fact, occurred. There is no evidence of a 
     policy of abuse promulgated by senior officials or military 
     authorities.

  If there is no evidence of a policy of abuse promulgated by senior 
officials or military authorities, and if there is no evidence whatever 
that Judge Gonzales was in any way responsible for this, why are we 
talking about Abu Ghraib during Judge Gonzales's confirmation? Again, I 
suggest this is not

[[Page 1143]]

about Alberto Gonzales and his fitness to serve. This, unfortunately, 
has crossed the line into partisan politics, a place we should not go.
  I am proud of my friend, Judge Alberto Gonzales. He is a source of 
great inspiration and pride to his family, his friends, and to the 
great State of Texas from where we both come. Time and time again, 
Judge Gonzales has done his duty in the war on terrorism. It 
disheartens me to see him held up to ridicule, distortions, and 
outright lies for being the patriot that he is.
  I also will speak, because I know others will address this--I have 
not been able to listen to all of the debate, but I have quite a bit of 
it. I know this matter came up in the committee and it is important to 
set the record straight. Judge Gonzales appeared before the committee 
and answered question after question by the members of the Senate 
Judiciary Committee. Of course, that was broadcast on C-SPAN for people 
all across the world to see. My own impression was that Judge Gonzales 
did his very best to answer the questions that were asked of him.
  Some members of the committee purported to be dissatisfied with the 
opportunity they were given to ask questions, and they had additional 
questions to ask. I hold in my hand more than 400 questions--and these 
are on single-spaced pages--more than 400 questions asked of Judge 
Gonzales after the hearing, and they generated 440 responses 
encompassing 221 single-spaced pages. After the New York Times argued 
that Judge Gonzales was very forthcoming in his responses to the 
committee, there was another request made, and at that time an 
additional 54 written responses were provided on 27 single-spaced 
pages. There were requests for copies of documents, some of which I 
have in my hand. I do not claim these are all of them, but I do believe 
it is a representative sample of what Judge Gonzales was actually 
provided. I will get to who provided it in a minute.
  I think all fairminded people would conclude not only did Judge 
Gonzales attempt, to the best of his ability, to answer questions asked 
him of the committee when we were in open session, but at least on two 
occasions answered other questions. On one occasion he gave 440 answers 
in a 227-page, single-spaced response, again provided additional 
written responses in 27 additional pages, and he also provided more 
than 200 documents to go along with his answers.
  So I think any fairminded person would have to conclude Judge 
Gonzales has tried his best to be responsive. I do think it is 
important to point out, as I believe Senator Hatch did earlier, that 
actually Judge Gonzales recused himself from providing these responses 
or answering the questions. In other words, he felt it was improper for 
him to have a personal hand in crafting the responses to the document 
requests or necessarily questions directed to the White House or to 
some other party.
  So many of the responses, particularly to document requests, came 
from the White House Counsel's Office provided by, I believe it was Mr. 
Leitch, that Judge Gonzales had actually no hand in. But that was in an 
effort on his part to try to be fair and evenhanded and to basically 
take himself out of any controversy and leave it up to the committee, 
those requesting the documents, and the White House. I believe that was 
appropriate.
  So time and time again, we have seen that the real Al Gonzales is not 
the caricature that has been painted by his opponents during this 
confirmation process. Time and time again, we have seen that not only 
do the American people view Alberto Gonzales as a personification of 
the American dream, he is a source of pride and admiration for Hispanic 
organizations and Hispanics all across this great land of ours, as he 
well should be.
  Notwithstanding what we have heard from opponents of this nomination, 
and of this administration, Judge Alberto Gonzales has condemned the 
use of torture on detainees, prisoners of war, anyone in American 
custody. Indeed, he has insisted, as a matter of American policy and 
law, on humane treatment. But he also believes, as the true patriot he 
is, that it is important we not lose the overall context of where this 
is happening and how this is happening.
  Alberto Gonzales believes, as I believe everyone--at least no one 
objected here on this side of the ocean--who supports freedom and 
democracy for the Iraqi people believes, it is important we continue to 
use all lawful means to obtain actionable intelligence to save American 
lives and to help ensure our success against the insurgents who still 
plague Iraq.
  I believe that on fair analysis by those who would listen to the 
facts and the arguments on both sides of this particular debate, there 
is only one reasonable, nonpolitical conclusion, and that is, this 
nominee should be confirmed, and should be confirmed overwhelmingly by 
the Senate.
  After we saw the opposition to Condoleezza Rice's nomination, I was 
gratified to see that at least she received the vote of 85 Members of 
the Senate in a bipartisan fashion. But I was troubled when, even 
though several members of the Senate Judiciary Committee said they 
would likely be voting in favor of Alberto Gonzales's nomination, they 
have now changed their tune. We saw a strict party-line vote in the 
Senate Judiciary Committee: all Republicans supporting his nomination, 
all Democrats opposing it.
  So, unfortunately, I was left with the conclusion that we have seen 
now again a continuation of the bitter politics of this confirmation 
process which not only I think fails to bring honor to this institution 
but which I think does a real disservice to the honorable men and women 
who agree to serve in important positions such as Secretary of State 
and Attorney General.
  But I also say it does not bode well for the hoped-for beginning of a 
new Congress on the President's judicial nominees. We know the 
President intends to send up 10 nominees who were previously 
filibustered by the other side. I would have thought that after the 
election they would have reconsidered that course. But here again, I 
think we have seen an unfortunate continuation of the tactics and the 
bad habits that perhaps our opponents in this debate have lapsed into. 
And perhaps they know no other way to proceed, other than through 
obstruction and through mischaracterization of this nominee's fine 
record. We should confirm Alberto Gonzales as the 80th Attorney General 
of the United States, and do so overwhelmingly.
  Thank you, Mr. President.
  The PRESIDING OFFICER (Mr. Martinez). Under the previous order, the 
Chair now recognizes the Senator from Massachusetts.
  Mr. KENNEDY. I thank the Chair. I talked to the floor manager and 
indicated I was going to ask unanimous consent that the Senator from 
Florida, Mr. Nelson, be recognized and permitted to speak for 15 
minutes after I yield the floor.
  Mr. SPECTER. Mr. President, is there a 15-minute time limit on how 
long Senator Nelson will speak?
  Mr. KENNEDY. That was the time he requested, and that is the time I 
ask unanimous consent for.
  Mr. SPECTER. Sounds good.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. I thank the Chair.
  Mr. President, as others have said, this is an extremely important 
nomination. I think all of us in this body take our responsibilities 
seriously. Those of us who have expressed some concern and reservation, 
even opposition, to this nominee are filled with admiration about his 
own personal story. I have said at other times, I wish I could vote for 
the story, not the individual, because the story, as has been pointed 
out, is the story of the American dream.
  But there are decisions that were made when this nominee had 
important responsibilities that I think are in conflict with American 
values. The primary issue I am concerned about and that I find should 
be of concern to the American people is his attitude when he was the 
President's Counsel on the development of a policy of torture, which 
has been recognized by the Federal Bureau of Investigation, by the 
Central Intelligence Agency, by the Defense Intelligence Agency, by the 
Red Cross.

[[Page 1144]]

  There is no question that he was at the epicenter in terms of the 
development of that policy. I think that is what is at issue; at least 
it is for me. And I think it is important that our colleagues have an 
opportunity to listen to the record.
  I listened to my friend and colleague from Texas speak on his behalf, 
and I certainly respect his presentation. But I think the facts speak 
otherwise on a number of important points.
  Earlier the chairman of the committee, Senator Specter, said in 
reference to the correspondence from the Department of Justice that he 
was not satisfied with the Justice response to Senator Durbin's and my 
request for the memos relating to a New York Times story, again related 
to torture. And I am certainly not, either.
  What the Justice Department said was that they brief the Intelligence 
Committee on these memos and the materials then are classified. That 
does not help the rest of us. We still need to know whether the Times 
story was accurate. We are all cleared, obviously, as Members of the 
Senate to classified information. We need the information to decide on 
the Gonzales nomination, and we should have it before the vote.
  In the final paragraph of the note from the Justice Department, it 
says:

       Finally, the Office of Legal Counsel in its recent 
     memorandum of December 30 stated we have received this 
     office's prior opinions addressing issues involving 
     interrogation of detainees and do not believe that any of 
     their conclusions would be different under the standards set 
     forth in the memorandum.

  So the Justice Department piles secrecy upon secrecy.
  Then in a letter received today, they refused to provide the second 
Bybee memo.
  Justice says basically what the administration has said: Don't worry, 
it is taken care of. You in the Senate don't have to worry very much 
about it.
  I find that troublesome.
  Mr. SPECTER. Will the Senator from Massachusetts yield?
  Mr. KENNEDY. I am glad to yield briefly.
  Mr. SPECTER. I think the Senator misunderstood me. I did not say that 
I was dissatisfied with what the Department of Justice had submitted. 
What I did was to ask them to respond to the letter which I received 
this morning from you and Senator Durbin, and they responded with a 
letter which I have put in the Record where they have said that the 
second memo was not a memo that went to Judge Gonzales, but it was a 
memo that went from the Department of Justice to another client who had 
inquired as to what were the parameters of appropriate questioning. And 
the Department of Justice said that it had classified information and 
they would not release it and that it had been identified in previous 
correspondence with Senator Leahy and that it had been the subject of a 
briefing of a chairman of a relevant committee on the customer client.
  I think all of this may boil down to a request by the CIA--I am 
speculating now; I want that clear for the record because that is not 
what the letter said--in that there was later a briefing to the 
chairman of the Intelligence Committee. So the matter did not go to 
Judge Gonzales, and that is a reason for not making the disclosure 
because he did not actually receive it. But I thank the Senator from 
Massachusetts for letting me comment. But I had not said that I was 
dissatisfied with what the Department of Justice had done.
  Mr. KENNEDY. Mr. President, this is all about the issue of torture. 
We are talking about torture and the role that Mr. Gonzales played in 
the development of the dramatic change in American policy that overrode 
statutes that had been passed in the Senate and treaties which the 
Senate had signed. It is about torture. He is the legal counsel for the 
President. I will get back into the history of his role in this. But to 
dismiss a relevant document that is about torture, that is related to 
the subject matter of Mr. Gonzales, and think that we don't have an 
opportunity or right to review that, I find troublesome. I don't know 
what the administration is attempting to hide. I will come back to that 
later in my presentation about the failing of the responsiveness of Mr. 
Gonzales on these issues. It seems to me that any fair reading of this 
memoranda, of the questions that Senator Durbin and I asked, and 
reading of the Department of Justice memorandum would find them 
completely unresponsive. If that is not what the chairman of the 
committee says, I say it. I will move on.
  This is one of the most important votes the Senate will take this 
year. The issues raised by Mr. Gonzales's nomination go to the heart of 
what America stands for in the world and the fundamental values that 
define us as a nation: our commitment to individual dignity, our 
respect for the rule of law, and our reputation around the world as a 
beacon for human rights, not as a violator of human rights.
  President Bush said it well in his inaugural address last month:

       From the day of our Founding, we have proclaimed that every 
     man and woman on this earth has rights, and dignity, and 
     matchless value, because they bear the image of the Maker of 
     Heaven and Earth.
       The world is watching to see if our actions match our 
     rhetoric.

  How can the Senate possibly approve the nomination of Mr. Gonzales as 
Attorney General of the United States, the official who symbolizes our 
respect for the rule of law, when Mr. Gonzales is the official in the 
Bush administration who, as the White House Counsel, advised the 
President that torture was an acceptable method of interrogation in 
Afghanistan, Guantanamo, and Iraq? Torture is contrary to all that we 
stand for as Americans. It violates our basic values. It is alien to 
our military's longstanding rules and tradition. We send our men and 
women in the armed services into battle to stop torture in other 
countries, not to participate in it themselves.
  These values did not change or become less relevant after 9/11. 
Americans did not resolve to set aside our values or the Constitution 
after those vicious attacks. We didn't decide as a nation to stoop to 
the level of the terrorists. To the contrary, Americans have been 
united in their belief that an essential part of winning the war on 
terrorism and protecting the country for the future is safeguarding the 
ideals and the values that America stands for at home and around the 
world.
  Americans agree that torture is and should remain beyond the pale. A 
recent pole in USA Today showed that Americans strongly disapprove of 
the interrogation tactics that have been used in Iraq, Afghanistan, and 
Guantanamo, including the use of painful stress positions, sexual 
humiliation, threatening prisoners with dogs, threatening to ship them 
to countries known to practice torture. The American public has held 
fast to our most basic fundamental values. How could our Government 
have gone so wrong?
  Mr. Gonzales is at the center of a torture policy that has run 
roughshod over the values that Americans hold so dear. On issue after 
issue in developing this policy he has endorsed expediency over the 
rule of law. He adopted an absurdly narrow definition of torture in 
order to permit extreme interrogation practices. He advocated an 
unjustifiably expansive view of Presidential power, purporting to put 
the executive branch above the law. He ignored plain language of the 
Geneva Conventions in an attempt to immunize those who may commit war 
crimes. He continues to push a discredited interpretation of our treaty 
obligations to permit the CIA to commit cruel, inhuman, and degrading 
acts outside of the United States. He refuses to be candid about his 
interpretations, policies, and intentions.
  The administration's policy on torture was established in August of 
2002 in a Justice Department document called the Bybee or, more 
accurately, the Bybee-Gonzales memorandum. The memorandum was written 
at Mr. Gonzales's request. It reads: ``Memorandum for Alberto R. 
Gonzales, Counsel to the President.''
  The first two sentences read:

       You have asked for our Office's views regarding the 
     standards of conduct under the Convention Against Torture and 
     the Anti-Torture Statute passed by Congress in 1994. As we 
     understand it, this question has arisen in the context of the 
     conduct of interrogations outside the United States.


[[Page 1145]]


  After its release in August 2002, the memoranda became the official 
policy on interrogations by the Defense Department and the CIA for 2\1/
2\ years, until it was repudiated just last month at the last minute on 
the eve of Mr. Gonzales's nomination.
  Yet, Mr. Gonzales refused to tell us anything about how the Bybee-
Gonzales memorandum was written and why he ordered it. We know from 
press reports that the C.I.A. asked him for advice on how far the 
agency could go in interrogating detainees. In July 2002, he held 
meetings with other administration officials to discuss how to legally 
justify certain interrogation methods. He refuses to tell us anything 
about those meetings.
  I have here the questions I had submitted, which were filed on 
January 18:

       Did you participate in meetings where specific 
     interrogation techniques were discussed?

  I will include the full answers, but included in the answer is this:

       For me to provide details about the methods of questioning 
     terrorists mentioned in meetings that I attended would entail 
     discussing classified information, and I am not at liberty to 
     do so.
       Could you tell the positions taken by the individuals 
     present at the meetings when these topics were discussed?
       Any meeting of the type you described, any records 
     reflecting the information you specify would involve 
     predecisional deliberations, and I am not at liberty to 
     disclose.

  What are predecisional deliberations? Is that executive privilege? If 
so, why don't they say it? If not, he has a requirement, and the 
committee should not have passed them out unless he was going to answer 
the questions.
  Then it goes on:

       Identify any notes or memoranda reflecting the CIA's 
     request, any responsive actions by your office and the 
     Department of Justice.
       Any meeting of that type would involve predecisional 
     deliberations and I am not at liberty to disclose.
       Well, in preparation for your hearing, or since the 
     hearing, did you review documents relating to the Bybee 
     memorandum and its history?
       I have conducted no search to the extent the documents 
     requested may exist; moreover, they would involve 
     deliberative material and I am not at liberty to disclose.

  I listened to my colleagues on the other side talk about all of the 
questions asked, and I have 4 pages, 5 books, 16 documents. These are 
the answers. This is all part of the record. ``I am not at liberty to 
disclose,'' he says.
  It goes on:

       Identify notes or correspondence reflecting advice or 
     assessments, recommendations and your views on these issues.

  Answer:

       I have not conducted a search.

  The issue was torture.

       I have not conducted a search. Any records reflecting the 
     information you specify would involve deliberative material, 
     and I am not at liberty to disclose.

  There it is, Mr. President. I will not take the time to go on. I will 
include those questions in the Record. They conducted a word search 
about torture, another word. It didn't kick out and they said: We 
conducted a complete search, and this is the best we can do for his 
answers. It is an insult to not just the Senate of the United States 
but the American people on the issue of torture.
  We are talking about basically the single issue that is involved in 
the remarks I am making, about his role in the development of torture. 
Talk about values in this country, this is torture.
  He says he can't remember what specific interrogation methods were 
discussed.
  He can't remember who asked for the Justice Department's legal advice 
in the first place.
  He can't remember whether he made any suggestions to the Department 
on the drafting of the Bybee-Gonzales Memorandum, although he admits 
that ``it would not be unusual'' for his office to have done so.
  He doesn't know how the memo was forwarded to the Defense Department 
and became part of its ``Working Group Report'' in April 2003, which 
was used to justify the new interrogation practices at Guantanamo. 
Those practices, in turn, to use the obscure word resorted to by the 
administration, somehow ``migrated'' to U.S. military operations in 
Afghanistan and Iraq, as if no human hand had been involved in the 
dissemination.
  Torture became a pervasive practice. The FBI says so. The Red Cross 
says so. The Defense Intelligence Agency says so. The Defense 
Department says it has investigated more than 300 cases of detainee 
torture, sexual assault, and other abuse. Additional allegations of 
abuse--many of them too sickening to be described in open session on 
the floor of the Senate--are reported almost daily. Yet, Mr. Gonzales 
can't remember the details of how any of it happened.
  The Judiciary Committee has repeatedly asked Mr. Gonzales to provide 
documents on his meetings, evaluations, and decisions on the Bybee 
memorandum. These documents would speak volumes about all the issues 
Mr. Gonzales says he has trouble remembering. Yet he refuses to provide 
the documents. He won't even search for them. In his responses to our 
written questions, Mr. Gonzales stated eight times that he has not 
``conducted a search'' for the requested documents. In other words, the 
documents we want may exist, but he's not going to look for them. It's 
hard to imagine a more arrogant insult to the constitutional role of 
the Senate in considering nominations.
  Mr. Gonzales refused to answer other questions and requests on the 
grounds that they would involve ``classified information,'' 
``predecisional'' or ``internal deliberations,'' or ``deliberative 
material'' None of these grounds is sufficient. There is no legal 
prohibition against providing classified material to Congress. It's 
routinely provided to Congress and discussed in closed meetings. There 
is no recognized privilege for ``predecisional'' or ``deliberative'' 
materials. The only exception is in the rare case where the President 
himself decides that his interest in secrecy outweighs the public 
interest in disclosure, and he himself invokes executive privilege. 
That hasn't happened here.
  It was clear when Mr. Gonzales was nominated that his involvement in 
the policy on prisoner detention and interrogation would be a major 
concern of the Senate, and that the Senate would need full information 
and materials on this subject. Serious abuses of detainees occurred in 
Iraq, Afghanistan, and Guantanamo. Mr. Gonzales's role in developing 
their legal justification goes to the heart of the issue whether he 
should be confirmed as the Nation's chief law enforcement officer.
  If we vote to confirm this nominee without insisting on answers to 
our Questions, we'll be abdicating our advice-and-consent 
responsibility and weakening our oversight function precisely when it 
is needed most.
  The Bybee-Gonzales memorandum was not a law review article or 
newspaper op-ed article. As Mr. Gonzales himself has said, it was the 
definitive legal opinion by the Justice Department on the rules on 
torture for the entire executive branch of the Government.
  We learned this past weekend from a New York Times article that the 
Justice Department's Criminal Division--then headed by Assistant 
Attorney General Michael Chertoff, now the nominee to head the 
Department of Homeland Security--was advising the CIA on the legality 
of specific interrogation techniques, using the Bybee-Gonzales memo as 
its legal guideline.
  Further, the Times reported that there is a second Bybee memo which 
goes into even more detail than the first about which methods of 
coercion can be used. We have repeatedly asked for information about 
the original Bybee-Gonzales memo and how it was used. The nominee and 
the White House have stonewalled us. We have repeatedly asked for other 
documents to be produced that would be relevant to understanding the 
first Bybee-Gonzales memo. The nominee and the White House have 
stonewalled us.
  Yesterday, Senator Durbin and I wrote a letter to the ranking members 
of the Judiciary and Government Accountability Committees outlining the 
pressing need for all relevant documents before we proceed to fully 
consider the nomination. Senator Durbin and I wrote:

       It is clear that the Senate should have the documents 
     before it votes on these two

[[Page 1146]]

     nominations, since such materials go to the heart of the 
     qualifications of the nominees to serve in the sensitive and 
     important positions which they have been nominated for.

  As far as we know, until the Department released its revised version 
of the memorandum last month, the Bybee memorandum was the official and 
definitive Justice Department opinion on the definition of torture, on 
the legal defenses for those who commit torture, and on the power of 
the President to override laws and treaties on torture.
  Given the recent New York Times article, it may be that in addition 
to the second Bybee memo, which we do not have, there are other memos 
on torture that the White House refuses to disclose.
  Harold Koh, a leading scholar of international law and Dean of the 
Yale Law School who served in both the Reagan and Clinton 
administrations, calls the Bybee memorandum the most clearly legally 
erroneous opinion he has ever read. As he told the Judiciary Committee:

       If the counsel for the President receives such an opinion, 
     you would have expected him to do at least one of two things: 
     First, reject it on the spot and send it back or, second, 
     send it to other parts of the government and have them give a 
     second opinion, particularly the State Department which, I 
     believe, following the policies in the U.S. Report on the 
     Convention Against Torture, would have said that the opinion 
     is flatly wrong.
       Instead . . . that opinion was allowed to become the 
     executive branch policy, was incorporated into the DOD 
     working group report, and remained as executive branch policy 
     for some 2\1/2\ years, during which time I believe that a 
     permissive environment was inevitably created.

  That is what Harold Koh said at the hearing. I hope every Member of 
the Senate will take the time to read his testimony.
  In his response to our questions about the Bybee memorandum, Mr. 
Gonzales said he has ``no specific recollection of [his] reaction to 
the conclusions, reasoning, or appropriateness as a matter of policy of 
any of the particular sections of the memorandum at the time [he] 
received it 2\1/2\ years ago.''
  He did say, however, that he believed at the time it was ``a good-
faith effort'' to interpret the antitorture statute. At the hearing, he 
told Senator Leahy:

       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.

  Let's review those conclusions. They are summarized on the memo's 
final page. The Bybee memorandum made three basic points. First, it 
said that torture means only acts that inflict the kind of pain 
experienced with death or organ failure. That is what the memo said: 
The pain ``must be of an intensity akin to that which accompanies 
serious physical injury, such as death or organ failure.''
  Second, the memo said that the President has the inherent 
constitutional power as Commander in Chief to override the prohibitions 
against torture enacted by the Congress. Application of the antitorture 
statute ``to interrogations undertaken pursuant to the President's 
Commander in Chief powers may be unconstitutional,'' the memo said.
  Third, the memo said that even if a Government official were to 
commit torture under the extremely narrow definition set forth, abusers 
could still invoke the defenses of ``necessity'' or ``self-defense.'' 
As the memo states, ``necessity or self-defense could provide 
justification that would eliminate any criminal liability.'' The memo 
made this outlandish claim even though the Convention Against Torture, 
which Congress ratified in 1994, states very clearly that ``no 
exceptional circumstances whatsoever'' may be invoked as a 
justification for torture.
  Fourth, the memo states that even if the person inflicting pain knew 
that severe pain would result from his actions, he would not be guilty 
of a crime even if he acted without good faith if causing harm was not 
his primary objective. This analysis defines ``intent'' in a way that 
defines away any instances of torture. This is one of the serious 
errors in the Bybee-Gonzales memo that was contradicted in the new OLC 
memo of December 30, 2004, which replaced the original memo.
  None of these points qualify as a reasonable or ``good faith'' legal 
argument. The Bybee memorandum defined torture so narrowly that Saddam 
Hussein's lieutenants could have claimed immunity from prosecution for 
many of their crimes. Beating you, suffocating you, ripping out your 
fingernails, burning you with hot irons, suspending you from hooks, 
putting lighted cigarettes in your ear--none of these categories are 
specifically prohibited under the Bybee memorandum since none involve 
near death or organ failure, the specific conditions required by the 
memo to constitute torture.
  As Chairman Specter himself said today, the original Bybee-Gonzales 
memo was ``erroneous in its legal conclusions,'' and its definition of 
torture ``was not realistic or adequate.''
  Nevertheless, Mr. Gonzales allowed it to stand for over 2 years and 
allowed it to be disseminated to other agencies, such as DOD, where 
major portions were absorbed verbatim into official policy. And now we 
know from the Times that it was used in the Justice Department to 
approve specific extreme methods for the CIA.
  Mr. Gonzales also refused to tell us whether the extreme conduct at 
Guantanamo described in the FBI e-mails is illegal.
  This conduct included burning detainees with lighted cigarettes, 
exposing them to extreme temperatures, giving forcible enemas, holding 
them in prolonged stress positions in their urine or feces. He 
explained his refusal to respond by saying to us:

       [W]ere the administration to begin ruling out speculated 
     interrogation practices in public, by virtue of gradually 
     ruling out some practices in response to repeated questions 
     and not ruling out others, we would fairly rapidly provide 
     al-Qaida with a roadmap concerning the interrogation that 
     captured terrorists can expect to face.

  That is arrant nonsense. Our laws and treaties, our military field 
manuals all provide specific and clear guidance on where to draw the 
line on torture. Mr. Gonzales's failure to condemn these acts of 
torture only weakens America's standing in the world and sets back our 
efforts against terrorism.
  How can we confirm as the chief law enforcement officer a nominee who 
is afraid to stand up for the rule of law?
  To reach this narrow definition of torture, the authors of the Bybee 
memorandum relied on totally unrelated Federal statutes that define 
emergency medical conditions for purposes of providing health benefits. 
The revision last December of the Bybee memoranda refuted this analysis 
stating that the statutes relied on ``do not define severe pain even in 
that very different context . . . and they do not state that death, 
organ failure, or impairment of bodily function cause 'severe pain.'''
  Clearly, the memo's original definition of torture is wrong. If it is 
applied in other countries, U.S. soldiers and citizens traveling abroad 
would clearly be at risk.
  The Bybee memorandum provisions on executive power are also wholly 
inconsistent with the separations of power in the Constitution. Article 
II, section 3 directs the President to ``take Care that the Laws be 
faithfully executed.'' Yet the Bybee memorandum states that the Federal 
antitorture statute would be unconstitutional if it ``interferes with 
the President's direction of such core war matters as the detention and 
interrogation of enemy combatants.''
  At a press conference in June 2004, Mr. Gonzales refused to say 
whether this statement remains ``good law'' for the Bush 
administration. He would say only that the President ``has not 
exercised his Commander in Chief override; he has not determined that 
torture is, in fact, necessary to protect the national security of this 
country.''
  Mr. Gonzales evaded questions on this issue by committee members. To 
this day, we still do not know whether the President believes he has 
the power as Commander in Chief to authorize torture. There is no such 
thing as a Commander in Chief override.
  It is certainly not in my copy of the Constitution. It appears to be 
something that Mr. Gonzales and his colleagues have invented.
  Congress has repeatedly passed laws and ratified treaties prohibiting 
torture and mistreatment of detainees,

[[Page 1147]]

and the President does not have the power to violate them.
  When a nominee claims that such an override exists, or suggests that 
those who commit torture might be able to invoke the defense of 
``necessity'' or ``self-defense'' notwithstanding Cong-
ress's categorical prohibition against such a defense, it sends a 
message that ``anything goes'' to our troops and intelligence officers 
in the field. To allow such extreme claims to become official U.S. 
policy for two whole years was reckless and, in my view, disqualifying 
in any nominee for Attorney General.
  Mr. Gonzales has also demonstrated a flagrant disregard for the rule 
of law in his effort to facilitate the CIA practice of ``ghost 
detainees.'' The administration has always claimed to be in full 
compliance with the Geneva Conventions in Iraq. Yet in the spring of 
2004, we learned from General Taguba that between six and eight of the 
prisoners at Abu Ghraib Prison had not been registered as required by 
Army regulations and were being moved around the prison to avoid 
detection by the International Committee for the Red Cross. General 
Taguba described this practice as ``deceptive, contrary to Army 
doctrine and in violation of international law.''
  In September, Army investigators told the Armed Services Committee 
that at the CIA's direction, as many as 100 detainees at Abu Ghraib had 
been hidden from the Red Cross and that the CIA had refused requests to 
cooperate with the military investigation. This disclosure drew outrage 
from both Democrats and Republicans. Senator McCain said:

       The situation with the CIA ghost soldiers is beginning to 
     look like a bad movie. . . . This needs to be cleared up 
     rather badly.

  Since then, we have learned that Mr. Gonzales was a major architect 
of this policy. On March 19, 2004, the Justice Department provided him 
with a draft memorandum--the so-called ``Goldsmith Memorandum''--to 
allow the CIA to ship certain persons out of Iraq. Once again, the 
memo's first page reads, ``Memorandum for Alberto R. Gonzales, Counsel 
to the President.'' A separate cover page confirms that the opinion was 
requested by him. It is hard to imagine a clearer smoking gun.
  Article 49 of the Fourth Geneva Convention specifically states:

       Individual or mass forcible transfers, as well as 
     deportations of protected persons from occupied territory to 
     the territory of the Occupying Power or to that of any other 
     country occupied or not, are prohibited, regardless of their 
     motive.

  Violations of Article 49 constitute ``grave breaches'' of the 
Convention and therefore qualify as ``war crimes'' under Federal law.
  In spite of the clear, unequivocal language of this provision, the 
Justice Department ruled that Article 49 does not in fact prohibit, for 
the purpose of ``facilitating interrogation,'' the temporary removal 
from Iraq of ``protected persons'' who have not been accused of a 
crime. Scott Silliman, an expert in military law at Duke University, 
observed that the Goldsmith memorandum:

     Seeks to create a legal regime justifying conduct that the 
     international community clearly considers in violation of 
     international law and the Convention.

  Although the memo was labeled ``draft,'' it was put into action. In 
October 2004, the Washington Post reported that one intelligence 
official familiar with the operation said the CIA used the memo:

     As legal support for secretly transporting as many as a dozen 
     detainees out of Iraq in the last six months. The agency has 
     concealed the detainees from the International Committee of 
     the Red Cross and other authorities, the official said.

  The legal analysis in the Goldsmith Memorandum is preposterous. Yet 
it appears to have provided a legal justification for the CIA to commit 
war crimes. As with the Bybee Memorandum, Mr. Gonzales has 
categorically refused to answer the Senate's questions about his 
involvement.
  He refuses to provide or even conduct a search for documents relating 
to his request for the Goldsmith Memorandum.
  He refuses to say anything about his discussions with the author of 
the memo.
  He says he does not know whether the CIA acted on the memo, as the 
Washington Post reported.
  He even says that he has never had the ``occasion to come to 
definitive views'' about the analysis in the memo.
  Far from helping to clear the air, Mr. Gonzales has clouded it 
further. To let his nomination proceed would make a mockery of the 
notion of congressional oversight and accountability.
  There are many other issues in Mr. Gonzales's record that should give 
Members of the Senate pause.
  As predicted by Secretary Powell and senior military lawyers, Mr. 
Gonzales's memorandum of January 2002 on the applicability of the 
Geneva Conventions to the war in Afghanistan brought a strong negative 
reaction from even our closest allies and lowered the bar for the 
protection of our own troops.
  According to the Schlesinger report, in September 2003 military 
commanders in Iraq cited this memo as legal justification for the use 
of extreme interrogation techniques at Abu Ghraib prison. The worst 
abuses there occurred from September to December 2003.
  In his answers to the committee, Mr. Gonzales made clear that the 
administration does not consider the CIA to be bound by the prohibition 
on cruel, inhuman and degrading treatment in Article 16 of the 
Convention Against Torture. This shift in legal policy was apparently 
made in a separate Justice Department memorandum which has also not 
been provided to Congress.
  Today, therefore, CIA agents are authorized to treat detainees in a 
cruel, inhuman, and degrading manner--even if it violates 
constitutional rules in the U.S.--so long as they do not commit 
``torture'' under the Department's narrow definition. President Bush 
also exempted the CIA from his directive in February 2002 to treat all 
detainees ``humanely.'' This shameful change in policy obviously 
endangers the safety of American soldiers who are captured abroad.
  Finally, the New York Times reported that Mr. Gonzales excluded 
important administration personnel from deliberations on the 
administration's plan to establish military tribunals at Guantanamo, a 
plan that was widely criticized as unjust, unworkable, and 
unconstitutional. Secretary of State Powell, National Security Adviser 
Rice, and the head of the Justice Department's Criminal Division, 
Michael Chertoff, saw the President's Military Order only after it was 
published in November 2001. Most of the Pentagon's top military lawyers 
were also kept in the dark. More than 3 years after the order's 
publication, not a single detainee at Guantanamo has been successfully 
prosecuted. To the contrary, as predicted by officials who have 
expertise in the field, the military tribunal process there is falling 
apart.
  Torture has never before been a Republican versus Democrat issue. 
Instead, it has always been an issue of broad consensus and ideals, 
reflecting the fundamental values of the Nation. President Reagan 
signed the Convention Against Torture in 1988.
  President George H.W. Bush and President Clinton supported its 
ratification in 1994. The Senate Foreign Relations Committee, led by 
Senator Helms and Senator Pell, voted 10-0 to report the Convention 
favorably to the full Senate.
  I hope that this tradition of bipartisanship and consensus will 
continue today. I hope that all Members of the Senate will cast their 
vote in a way that upholds our fundamental values.
  A ``no'' vote is the right vote if we care about maintaining 
America's standing in the world and fighting the war on terrorism. The 
torture and other abuses of prisoners in Iraq, Afghanistan, and 
Guantanamo have done immense damage to America's standing in the world. 
The extreme and irresponsible claims in the Bybee and Goldsmith 
Memorandums have raised basic questions about the genuineness of our 
commitment to the rule of law.
  It is the right vote for our troops. The administration's shameful 
disregard for our laws and treaties on torture has lowered the bar for 
the protection of our own soldiers.

[[Page 1148]]

  It has violated the military's longstanding ``golden rule'': Treat 
captured combatants in the manner we expect our own soldiers to be 
treated. What can Mr. Gonzales possibly say to a country that justifies 
its torture of a U.S. soldier by citing Mr. Gonzales's own record of 
support for it?
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Florida is now recognized for 15 minutes.


                            Social Security

  Mr. NELSON of Florida. Mr. President, I have just returned from a 
weekend in three different parts of my State and of the State of the 
Presiding Officer. I was conferring with many of our constituents 
regarding what is anticipated to be the President's proposal that he 
will give in his speech tomorrow night regarding Social Security. Of 
course, this is of enormous importance to us, not only in America but 
especially in Florida because of the high percentage of our population 
who are senior citizens. In fact, it is 3 million Floridians, retirees, 
survivors, and people with disabilities who depend on monthly Social 
Security benefits.
  Social Security provides a guaranteed benefit, and it helps retirees 
live independently and with dignity. It is also the sole source of 
income for one-fifth of our Nation's seniors.
  In this day and age when you read daily in the newspaper about 
employer pensions becoming scarce, Social Security provides a lifeline 
to retirees such as Lucille Solana, a 57-year-old retiree from Davie in 
Broward County. She worked for United Airlines for nearly 36 years and 
retired when the company's bankruptcy cut her pay and her office in 
Miami was closed. She had done what she was supposed to do. She 
followed the rule of savings: one-third personal savings, one-third 
corporate pension, and one-third Social Security for her retirement. 
But it hasn't all gone according to plan. United Airlines is going to 
terminate her pension, and her personal savings have suffered with the 
market. About all she has left is her Social Security.
  I think we have a moral obligation to help people such as Lucille and 
our society's elderly citizens.
  Social Security also helps us provide financial security to spouses 
and dependent children if a worker becomes disabled or dies.
  Listen to this: 38 percent of all Social Security benefit dollars are 
paid to disabled Americans. That is 18 million individuals, their 
spouses, dependent children, and survivors. Without disability 
benefits, over half of the families with disabled workers would have 
incomes below the poverty line.
  I hasten to add that when we are talking about the spouses and 
dependent children and survivors, what does the Good Book tell us is 
one of the highest necessities? It has been told to us in both the Old 
Testament and the New Testament in Isaiah and James. The widows and the 
orphans are at the top of our list to be taken care of.
  Most families in America know what an important program Social 
Security is to all Americans. We don't have to convince anyone.
  But you also ought to hear the story by Gene and Lynda Christie of 
Beverly Hills, FL, two of our constituents who are concerned about the 
President's Social Security plan. They read about his projected plan in 
the papers. What they read and how it would be calculated, their senior 
benefits would be cut by $500 a month. They simply can't afford that 
kind of reduction. I will bet that some of you would have a difficult 
time accepting such a cut.
  I believe changes to Social Security cannot include cuts to benefits. 
But that is what privatization would do. That is what the President is 
expected to propose on Wednesday night as a central part of his plan.
  I will oppose diverting money from the Social Security trust fund, 
but I believe we should do something to keep Social Security solvent 
just as we have done successfully in the past.
  Two decades ago, when I was in the House of Representatives, Social 
Security faced a real crisis. It truly was on the brink of insolvency. 
You know what happened. Instead of this approach, ``it is my way or the 
highway,'' Tip O'Neill and Ronald Reagan got together and they formed a 
bipartisan commission. On that commission, leadership was given to 
Senator Bob Dole, to Congressman former Senator Claude Pepper. And the 
work of that bipartisan commission saved the system and built up the 
trust fund for the retirement of the baby boomers.
  When you put this into context, over the next three-quarters of a 
century, 75 years into the future, when you compare now with the 
projected insolvency, lo and behold, we find that the recent tax cuts 
that have been enacted will cost three times as much as the shortfall 
that Social Security is projected to face.
  According to the Social Security Trustees Report last year, Medicare 
expenditures are now projected to surpass Social Security spending in 
2024. With Medicare expenditures over the next 75 years being far in 
excess of the shortfall in Social Security, the Medicare deficit will 
be three times as much as the shortfall in Social Security. Based on 
these numbers, it is clear that a more real crisis lies in the 
exploding health care costs.
  Privatization will not fix Social Security. In fact, it will actually 
worsen the country's overall fiscal health. When money is taken out of 
Social Security to pay for private investment accounts, you won't have 
enough to pay for current beneficiaries.
  Some have suggested that the Government should borrow $2 trillion to 
plug this hole.
  I just came from the Budget Committee. When we are facing upwards of 
$430 billion and more in deficits in this particular year, and you take 
another $2 trillion over the next 10 years and add it to it, that would 
swell the Federal debt and increase our dependence on foreign creditors 
such as the banks in Japan and China.
  Rather than cut the benefits or borrow trillions of dollars, I 
believe we should pursue other ways to help Americans supplement Social 
Security and save for their retirement.
  Social Security was intended to be a social safety net. Social 
Security was not intended and never was meant to be an investment 
program. By linking benefits to the volatile stock prices, 
privatization shifts the risk to seniors and it weakens Social 
Security's guaranteed safety net.
  Look at the wake of cases recently of corporate wrongdoing. We all 
know too well the dangers of relying on the stock market for 
retirement. Just listen to Michael Pesho of Sanford, FL, who wrote to 
me this December. He says:

       Dear Senator, I am a 56-year-old who had to work since the 
     age of 14. I lost both my parents when I was 16, and I have 
     had to provide for myself all these years. I am also a victim 
     of the WorldCom fiasco.
       I was laid off at WorldCom and lost my entire retirement 
     portfolio when it was converted into worthless WorldCom 
     stock. I'm tired and would very much like to retire in 9 or 
     10 years but in order for me to do that Social Security will 
     have to be in place for me to have any kind of retirement 
     foundation to work off of.

  He says:

       I implore you to ensure Social Security benefits will be 
     there when I need them.

  Michael doesn't want his Social Security entrusted to the same market 
that devastated his retirement savings. It is too risky.
  I intend to fight for people who worked hard and played by the rules. 
I will fight against cuts to Social Security benefits. I will fight 
against any plan that relies on massive borrowing and increases in 
debt. I take the fiscally conservative position and I will fight to 
protect this program that provides a safe and reliable source of 
retirement income for millions of Americans. I intend to work with the 
President, not to cut, but to strengthen Social Security. I agree with 
him that we have a moral obligation to fix it for future generations.
  Currently, I am working with other Members of the Senate to put 
together a moderate and more sensible plan that strengthens Social 
Security and expands opportunities for all Americans to save for their 
retirement. This plan would give workers additional tax breaks to save 
for retirement on their own with a personal account over and above 
Social Security.

[[Page 1149]]

  Now is the time to reach out and to bring the various factions 
together. Now is the time to be conciliators and in the spirit of 
Ronald Reagan and ``Tip'' O'Neill who saved the Social Security system 
in a bipartisan fashion back in the early 1980s. We need to bring the 
factions together. We need to build mutual consent on how to protect 
Social Security for the retirees of today and future generations. I am 
very hopeful this can be achieved.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the time 
until 8:15 this evening be equally divided for debate between the 
chairman and ranking member or their designees; provided further that 
the Senate then resume consideration of the nomination at 9:30 a.m. 
tomorrow, with the time until 4:30 again being equally divided as 
previously mentioned; provided that the further hour be under the 
control of the majority and that every 60 minutes alternate. Further, I 
ask that from 2:30 to 4:30 be under the control of the minority, with 4 
o'clock to 4:30 under the control of the majority. I further ask 
consent that when the Senate convenes on Thursday morning, immediately 
following the time for the two leaders, there be a period of morning 
business for 2 hours, with the first hour under the control of the 
Democratic leader or his designee and the second hour under the control 
of the majority leader or his designee. I further ask consent that 
following the morning business time, the Senate resume consideration of 
the Gonzales nomination and there be an additional 8 hours of debate 
equally divided again between the chairman and ranking member or 
designees. Finally, I ask consent that following the use or yielding 
back of time the Senate proceed with a vote on the confirmation of the 
nomination with no intervening action or debate, and that following the 
vote the President be immediately notified of the Senate's action.
  Mr. DURBIN. Reserving the right to object, if I could suggest to the 
chairman, Senator Specter, I think he misspoke on one line. I believe 
in the consent which we are considering it says that ``further, I ask 
that from 2:30 to 4 o'clock be under the control of the minority and 4 
to 4:30 under the control of the majority.'' If that is the way his 
version reads, I would like to amend his statement.
  Mr. SPECTER. 2:30 to 4 under the control of the minority and 4 to 
4:30 under the control of the majority? That is acceptable.
  Mr. DURBIN. I have no objection.
  Mr. DAYTON. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. I ask the chairman, does he intend, then, to proceed now, 
and is it the understanding that this side will have the next speaker, 
and I will follow that individual?
  Mr. SPECTER. Mr. President, it is my intention to speak next in 
rebuttal.
  Mr. DURBIN. If I might ask through the Chair, I advise my colleague 
from Minnesota I will make a unanimous consent request about the lineup 
for Democratic speakers. He will be the first on our side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I ask unanimous consent the order of 
speakers on the Democratic side for today be as follows: Senator Dayton 
of Minnesota, Senator Stabenow of Michigan, and Senator Johnson of 
South Dakota.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, reserving the right to object, and I do 
not intend to object, I believe implicit in what the Senator from 
Illinois said is that there be an alternating of speakers, and I will 
present a list of Republican speakers to integrate with what Senator 
Durbin has stated.
  Mr. DURBIN. Mr. President, both implicit and explicit.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, today we have heard quite a ring of 
castigation against Judge Gonzales, virtually all of it misdirected, 
virtually all of it factually incorrect. We have heard the Senator from 
Massachusetts castigate the Bybee memorandum in torrid prose, claiming 
the Bybee memorandum was exactly wrong. He asserted that the Bybee 
memorandum did not have a sensible interpretation, or a legal 
interpretation of torture. He further claimed that the Bybee memorandum 
vastly overstated executive authority, and that it said the President 
had as much authority on the question of detainees as he did on 
battlefield control. These claims are palpably erroneous.
  The Senator from Massachusetts then cited the Goldsmith memo, and 
said it certainly was a smoking gun. But Judge Gonzales did not hold 
that gun, did not have anything to do with that gun. The Senator from 
Massachusetts said Judge Gonzales was sent a copy of that memorandum. 
During the course of Judge Gonzales's questioning by the Senator from 
Massachusetts, the Senator from Massachusetts never once, to my 
recollection, ever viewed the transcript, or said anything about the 
Goldsmith memorandum.
  So what we have is the castigation of Judge Gonzales for matters 
which were totally beyond his control. Judge Gonzales was the lawyer 
for the President as White House Counsel. As such, he sat in on a 
series of meetings. Those meetings were convened to find out what was 
the law on how detainees could be appropriately questioned to avoid any 
implication of the torture statute. When there is a determination of 
what the law is, that is up to the Department of Justice. And that is 
what Judge Gonzales testified to. And while there appears to be 
instances in which the Bybee memorandum was off-base, Judge Gonzales 
was not involved with the drafting of that memorandum.
  Then when the question comes up as to what questions the detainees 
were going to be asked, that is a matter for the experts. As Judge 
Gonzales responded to questions from the Senator from Massachusetts at 
the hearing, it is up to the CIA and up to the Department of Defense. 
It is not up to the Counsel for the President.
  When the Senator from Massachusetts castigates Judge Gonzales for not 
being able to remember what happened years ago, or what conversations 
may have taken place, he is being unfairly critical. The Department of 
Justice was responsible to provide the memo. Whether it was for the CIA 
or the Department of Defense is something that was not recollected, but 
who can recollect everything that happened several years ago?
  When the Senator from Massachusetts castigates Judge Gonzales for not 
conducting a search and for not knowing certain information, he is 
mistaken. A search was conducted.
  When the Senator from Massachusetts raised that issue in the 
executive session, I then asked the White House to conduct a search. 
That search was conducted, and immediately a memorandum was circulated 
disclosing what that search was.
  When the Senator from Massachusetts, last night--I got it this 
morning--asked for some more information from the White House, I again 
forwarded the request and got a reply today. It was not a reply that 
the Senator from Massachusetts liked, but there has been nothing about 
this entire proceeding that the Senator from Massachusetts has agreed 
with. And that is his prerogative. He does not have to agree with it. 
He does not have to vote for Judge Gonzales. And he can express his 
views on oversight responsibilities. But there are others of us on this 
committee who have been here a while who understand our oversight 
responsibility and who have made a very strong effort to provide the 
information which the Senator from Massachusetts has asked for.
  Judge Gonzales was available to more than a dozen Members of the 
Senate, available to all members of the Judiciary Committee--not that 
all asked to see him--and provided more than 250 pages of voluminous 
answers. So extensive were the answers that they were complimented, in 
effect, by the New York Times, saying it was the most comprehensive 
statement made as to

[[Page 1150]]

what was the policy of the U.S. Government on these very important 
subjects.
  But aside from the rhetoric, what are the facts? What does the 
testimony show? What do the documents show?
  Senator Feinstein says she still does not understand what Judge 
Gonzales thinks about torture. Well, what Judge Gonzales thinks about 
torture he has said on quite a number of occasions.
  Let me remind all Senators who have to vote on this matter what Judge 
Gonzales said about torture.
  No. 1:

       [T]he President has said we're not going to engage in 
     torture.

  No. 2:

       The President gave a directive to the military that despite 
     the fact that Geneva may not apply with respect to the 
     conflict and the war on terrorism, it is that everyone should 
     be treated humanely.

  No. 3, this is in the record, according to his testimony:

       [T]he position of the President on torture is very, very 
     clear, and there is a clear record of this. He does not 
     believe in torture, condone torture, has never ordered 
     torture, and anyone engaged in conduct that constitutes 
     torture is going to be held accountable.

  No. 4:

       All I know is that the President has said we are not going 
     to [have] torture under any circumstances. . . . the United 
     States has never had a policy of torture.

  No. 5, further testimony:

       Our policy is we do not engage in torture.

  No. 6:

       It is not the policy of the administration to tolerate 
     torture or inhumane conduct toward any person that the United 
     States is detaining.

  No. 7, more testimony:

       The President is not going to order torture.

  No. 8:

       [T]his President is not going to order torture. We don't 
     condone it.

  No. 9:

       Now, let me emphasize, and I can't emphasize this strongly 
     enough, there are certain basic values that this country 
     stands for and this President certainly believes in, and 
     those values are reflected in the directives that he has 
     issued regarding the treatment of al Qaeda detainees, and 
     those who do not meet those standards are going to be held 
     accountable.

  This is all testimony or responses in the Record:

       In addition, there are of course other legal restrictions. 
     For example, the convention against torture, that would be 
     applicable, Army regulations that would be applicable. All 
     those exist to conscript the type of conduct that our 
     military can engage in with respect to detainees. And so we 
     want to of course meet basic standards of conduct with 
     respect to treatment of al Qaeda[.]

  No. 10, again, testimony:

       [A]s I have said repeatedly today, this administration does 
     not engage in torture and will not condone torture. And so 
     what we are really discussing is a hypothetical situation. . 
     . .

  No. 11:

       [O]ther than the directive by the President that we're not 
     going to engage in torture and that we're going to abide by 
     our legal obligations, I'm not aware of any other directive 
     by the President.

  No. 12: Judge Gonzales also reiterated his own opposition to torture 
in numerous responses to written questions submitted by Judiciary 
Committee Senators following the hearing.

  No. 13:

       The President has repeatedly stated that his Administration 
     does not authorize or condone torture under any circumstances 
     by U.S. personnel. I, of course, fully support the 
     President's policy. . . .

  No. 14:

       I do denounce torture, and if confirmed as Attorney 
     General, I will prosecute those who engage in torture.

  No. 15:

       The President has made clear that the United States remains 
     committed to adhering to its obligations under the Geneva 
     Conventions and the Convention Against Torture and has 
     unequivocally condemned torture. I have repeatedly emphasized 
     the President's statement of these commitments on behalf of 
     the United States, and will continue to do so if confirmed as 
     Attorney General.

  As chairman of the committee, I had the first round of questions, and 
the first question I asked Judge Gonzales was: What is your position on 
torture? And his words were to the effect: I condemn torture. Now, I do 
not know how much more explicit a witness, a nominee, can be than Judge 
Gonzales has been, but if someone does not understand Judge Gonzales's 
position after this kind of an emphatic, definitive statement, it is 
plain and clear for the record.
  The contention has been made that Judge Gonzales agrees with a Bybee 
memorandum's conclusion that severe pain, for purposes of the torture 
statute, must be equivalent in intensity to the pain accompanying organ 
failure, impairment of bodily function, or even death. This has been a 
source of contention throughout the hearings in the executive session 
and on the Senate floor. Judge Gonzales responded to the ranking 
member, who said:

       Do you agree today that for an act to violate the torture 
     statute it must be equivalent in intensity to the pain 
     accompanying serious physical injury such as organ failure, 
     impairment of bodily function or even death?
  Judge Gonzales answered:

       I do not. That does not represent the position of the 
     Executive Branch.

  So Judge Gonzales categorically repudiated the Bybee memorandum in 
that respect.
  There has been a source of argument about what the Bybee memorandum 
meant and what Judge Gonzales's position was about it. Judge Gonzales 
was deferential to the determinations by the Department of Justice. 
There is a complicated issue here as to whether the White House is 
going to be overly determinative in what the Department of Justice's 
position should be, and the White House has been very cautious. This is 
traditional--not just with this White House but with prior White 
Houses--not to tell the Department of Justice what to say or not to 
appear to tell the Department of Justice what to say because that would 
be politicization of a Department of Justice by the White House. The 
White House's role, as we have emphasized it, is not to tell the 
Department of Justice what to do, and the Department of Justice and the 
Attorney General's role is to represent all of the American people and 
not just the President.
  There was discussion between the White House and the Department of 
Justice, as well as other agencies, about what the torture statute 
meant. Judge Gonzales testified to that and said, in effect, that it 
would be natural to have those kinds of discussions. Judge Gonzales 
said:

       It was very, very difficult. 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. Ultimately, it is the responsibility of 
     the Department to tell us what the law means, Senator.

  In the very next question, however, we clarified his views on the 
narrow definition of torture in the Bybee memo. The ranking member 
asked:

       Do you agree today that for an act to violate the torture 
     statute it must be equivalent in intensity to the pain 
     accompanying serious physical injury, such as organ failure, 
     impairment of bodily function or even death?

  And as noted previously, Judge Gonzales said he did not. Later, in 
another response to the ranking member, Judge Gonzales agreed that it 
would be horrific conduct--I think you would agree to this, and Judge 
Gonzales did, to what Senator Leahy asked--that cutting off someone's 
finger would be considered torture.
  Judge Gonzales also explained his agreement with the conclusion of 
the Justice Department based on respect for the Department's 
independence. This is what Judge Gonzales had to say on that facet of 
the issue:

       Senator, what you're asking the counsel to do is to 
     interject himself and direct the Department of Justice, who 
     is supposed to be free of any kind of political influence, in 
     reaching a legal interpretation of a law passed by Congress. 
     I certainly give my views. There was of course conversation 
     and a give and take discussion about what does the law mean, 
     but ultimately, ultimately by statute the Department of 
     Justice is charged by Congress to provide legal advice on 
     behalf of the President.

  Well, it is apparent from the totality of the context of what Judge 
Gonzales had to say that aside from giving deference to the role of the 
Department of Justice in interpreting the law, the Bybee memo was not 
accepted by Judge Gonzales.

[[Page 1151]]

  When it came to the critical question of the assertion in the Bybee 
memorandum that the President had as much authority on the questioning 
of detainees as the President had on battlefield decisions, Judge 
Gonzales said he disagreed with that. When the question came up about 
the scope of the President's authority to immunize people who would 
violate Federal law, of course, any suggestion in the Bybee memo or 
otherwise would be contrary to a basic understanding of the law of the 
United States, where nobody is above the law.
  At his confirmation hearing, Judge Gonzales specifically rejected the 
portion of the August 1, 2002, Bybee memorandum, which asserted that 
the President, as Commander in Chief, possessed the constitutional 
authority in certain circumstances to disregard the Federal criminal 
prohibition against torture. He stated that the memo has been 
``withdrawn.''

       It has been rejected, including that section regarding the 
     Commander in Chief's authority to ignore the criminal 
     statutes. So it has been rejected by the Executive Branch. I, 
     categorically, reject it . . . [T]his administration does not 
     engage in torture and will not condone torture.

  A question was raised about a reservation to the Convention Against 
Torture under article 16, which provided that aliens interrogated by 
U.S. personnel outside of the United States did not enjoy the 
substantive rights of the 5th, 8th and 14th amendments, a technical 
reservation for international law purposes.
  Judge Gonzales responded that this is a legislative issue that may 
perhaps require additional consideration. Nevertheless, regardless of 
the debate about the strict requirements of article 16, Judge Gonzales 
testified that the administration had sought to be in compliance as a 
substantive matter under the 5th and 18th amendments. He also testified 
that to the best of his knowledge, the U.S. has met its obligations 
under the 5th, 8th, and 14th amendments.
  A major question was raised about Judge Gonzales's independence. He 
was emphatic, saying that:

       If confirmed, I will no longer represent only the White 
     House. I will represent the United States of America and its 
     people. I understand the difference between the two roles. In 
     the former, I have been privileged to advise the President 
     and the 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.

  Both Senator Leahy and I, in our opening statements, emphasized this 
issue, and this was a matter which Judge Gonzales had thought about and 
had included in his opening statement and was prepared to affirm the 
very fundamental difference in his duty as Attorney General to the 
American people, contrasted with his responsibilities as White House 
Counsel to the President.
  We have seen a rather dramatic turnabout in the course of the 
hearings on Judge Gonzales, the issue of the esteem in which he had 
been held and what Senators had to say about him and what they have 
said about him since in executive session.
  Senator Kohl had this to say about Judge Gonzales:

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

  Senator Durbin said:

       I respect him and his life story very much.

  Senator Leahy said:

       When this nomination was first announced, I was hopeful. I 
     noted at the time that I like and respect Judge Gonzales.

  Senator Schumer said:

       I like Judge Gonzales. I respect him. I think he is a 
     gentleman and I think he is a genuinely good man. We have 
     worked very well together, especially when it comes to 
     filling the vacancies on New York's Federal bench. He has 
     been straightforward with me and he has been open to 
     compromise. Our interactions haven't just been cordial; they 
     have been pleasant. I have enjoyed the give-and-take we have 
     engaged in.
  Senator Schumer later said:

       I was inclined to support Judge Gonzales. I believed, and I 
     stated publicly early on, that Judge Gonzales was a much less 
     polarizing figure than Senator Ashcroft had been. . . . Even 
     if you are, as Judge Gonzales is, a good man, a good person 
     with top-notch legal qualifications, you must still have the 
     independence necessary to be the Nation's chief law 
     enforcement officer.

  He continues:

       I still have great respect for Judge Gonzales. He has the 
     kind of Horatio Alger story that makes us all proud to be 
     Americans. It is an amazing country when a man can rise from 
     such humble beginnings to be nominated for Attorney General.

  So the question arises, as we are engaging in floor debate on the 
nomination of Judge Gonzales to be Attorney General of the United 
States, what happened here? We know of the atrocities of Abu Ghraib, 
and although there have been some efforts in some of the speeches to 
identify Judge Gonzales with Abu Ghraib, they are not substantial. 
There have been some criticisms regarding Guantanamo. Those matters are 
under investigation. But Judge Gonzales is not the interrogator; he is 
not the questioner; he is not the person who made up the questions; he 
is not the person who has defined the torture statute. He has been one 
individual in a series of meetings, where his role has been defined as 
being the representative of the President.
  But the role of the Department of Justice is clearly delineated. They 
are to interpret what the statutes mean. The experts in the CIA and in 
the Department of Defense have their own responsibilities.
  So what is happening here? Is it the constant Washington search for 
political advantage that goes around this town every day? During the 
course of our discussion on Judge Gonzales, we heard a speech about 
Social Security. It surprised me a little, in the middle of the 
proceedings. We have questions on political advantage on so many 
subjects that I am not going to digress. But there is no doubt that the 
air is very heavy with politics in this town.
  We had the nomination proceedings as to Secretary of State 
Condoleezza Rice. She was challenged in a way that was highly unusual 
in the Senate of the United States--challenged as to her integrity. Not 
was she wrong about weapons of mass destruction, but did she falsify, 
was her testimony deliberately false and misleading. Dr. Rice had more 
negative votes than any nominee for Secretary of State since John Jay 
in 1824. That says something about the atmosphere in Washington and the 
constant Washington search for political advantage.
  Senator Schumer has raised a contention repeatedly in the course of 
the proceedings on Judge Gonzales about the so-called nuclear option. 
He asked Judge Gonzales for his opinion as to whether the so-called 
nuclear option is constitutional. That is quite a cloud hanging over 
the Senator--potentially hanging over the Senate--as to whether the 
rules of the Senate require only 51 votes on the confirmation of a 
Federal judge as opposed to the requirement of cloture of 60 votes. 
Senator Schumer has raised that issue. I don't think he is looking for 
a commitment there as a condition to his vote, so why question Judge 
Gonzales about that collateral matter that has no bearing on his 
fitness for the post to which he has been nominated?
  So there is some sense on my part that we have found a wedge issue. 
It is certainly true that Judge Gonzales has not been the most artful 
of witnesses. To say he has a generalized agreement with the Bybee 
memorandum was not the most artful of answers, after it had been 
universally condemned and withdrawn by the Department of Justice. But 
he made that reference as a theoretical matter as to how the White 
House respects the Department of Justice's role in interpreting the law 
so that if the Department of Justice came down with an interpretation, 
Judge Gonzales was not going to say it was wrong to appear to be having 
undue influence, or to be politicizing the process. But that wasn't the 
most artful of answers.
  When asked hypothetical questions about was there any circumstance 
where the President of the United States might not follow a statute, 
again, it wasn't the most artful of answers. There is no doubt that Abu 
Ghraib and Guantanamo and the horrors of torture are overwhelming to 
the American psyche.

[[Page 1152]]

  Back in 1991, I introduced legislation to protect victims of torture, 
to have rights of actions in Federal courts. I spoke out about the 
torture issue before it became a matter for legislation for the 
Congress generally. The legislation I introduced in 1991 was adopted, 
so that people who are subjected to torture in foreign countries can 
sue in U.S. courts. So the issue of torture has always been on the mind 
of this Senator. It is on the minds of the American people.
  But Judge Gonzales is not responsible for what went on in Abu Ghraib 
or Guantanamo. Judge Gonzales is not responsible for actions by the 
CIA, or the Department of Defense, or for legal opinions by the 
Department of Justice.
  If you look at his record and his qualifications as a lawyer, his 
academic qualifications as a Harvard Law graduate, his qualifications 
for practicing law with a big firm, his qualifications for being a 
supreme court justice in Texas, his qualifications for being White 
House Counsel for 4 years, where Judge Gonzales has had contact with 
many Senators--I dare say in that capacity, my colleagues in the Senate 
would share my views that he was always courteous, always relevant, 
always on top of the issues in discussing judicial nominees, where most 
of us have had some role to confirm a judge in his or her State. I 
think the comments would be uniform, as the ones I quoted, about how 
pleasant it was and how effective it was and how professional it was to 
deal with Judge Gonzales.
  So if the winds of Abu Ghraib and Guantanamo had not blown across 
this hearing, I think we would have had perhaps a unanimous vote in 
favor of Judge Gonzales. In this highly charged political atmosphere, 
one has to wonder whether he is not, himself, a torture victim. He is 
clearly a victim of Washington politics.
  Judge Gonzales is still highly likely to be confirmed. He was voted 
out of committee on a party-line vote. It had been my hope and 
expectation at an earlier stage that it would have been a strong 
bipartisan vote. It is still my hope and expectation he will be 
confirmed with some bipartisanship, but it will not be the kind of 
strong vote that would have given him a much stronger position as 
Attorney General absent the Bybee memo, Abu Ghraib, and Guantanamo. But 
on the basis of his academic, professional, and public service record, 
there was much, and still is much, on which to recommend him to be the 
Attorney General of the United States.
  Mr. President, I have taken some more time. I made a very short 
opening statement to begin debate today and have listened to the 
arguments made by Senators from the other side of the aisle and find 
factually that they are off the mark; that in terms of what Judge 
Gonzales has had to say out of his own mouth have come very forceful 
denunciations of torture, very forceful denunciations of the Bybee 
memorandum, and a strong statement as to why he ought to be the next 
Attorney General of the United States.
  Mr. President, I ask unanimous consent that the following list be 
next in order of Republican speakers: Senator Coburn, Senator Sessions, 
Senator Brownback. Before the Chair rules, I will add that we will 
continue to alternate between Republican and Democratic speakers.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. SPECTER. I wanted to put this on the record so the people who are 
next up would know it, and would be in a position to come to the 
Chamber in a timely fashion.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I highly respect the distinguished 
chairman of the Senate Judiciary Committee. He has been noted with his 
own stellar examples of bipartisanship, working with colleagues on both 
sides of the aisle. But I must say I have to respond to his remarks 
about those of us who oppose Judge Gonzales as being engaged in nothing 
other than political partisanship. I suggest that term could be applied 
to those who support these nominees because they are of the same 
political party as the President as much as they could be applied to 
those of us who are on the other side of the aisle.
  If the Founders of this country did not intend for the Senate to 
exercise an independent judgment about the nominees to these high 
offices, such as Attorney General and Secretary of State, they would 
not have provided for a separate Senate confirmation of the President's 
nominees.
  These individuals are not employees of the President, even though 
they are nominated by him and serve as members of his Cabinet and serve 
at his pleasure, as are his employees in the White House, who are not 
subject to Senate confirmation. These men and women become public 
officials who represent the United States of America within our 
country, before the Supreme Court, as Secretary of State in the seats 
of government around the world. They have to meet an American standard, 
and it is that standard that each of us has the independent 
responsibility to apply according to our own best judgments, but one 
the Constitution clearly intends we should apply independent of the 
President's judgment and independent, one would hope, of our own 
respective political parties.
  I think ultimately, in the light of this debate, it is for the 
American people to decide whether this nominee, or any of the 
President's nominees, meet the standards for those who will represent 
this Nation in the highest public offices in the land.
  I rise today to oppose the nomination of Judge Gonzales to be our 
Nation's next Attorney General, and I cite, as have other colleagues, 
the key role that he played in what is certainly one of the darkest 
disclosures about this administration: Its secret decisions to 
disregard the principles of the Geneva Convention for the humane 
treatment of prisoners of war who Judge Gonzales and others 
conveniently renamed ``enemy combatants.''
  This role and its consequences were described in graphic detail in a 
recent Sunday New York Times review of a couple of books, including the 
International Commission of the Red Cross's documents regarding the 
abuse of prisoners in Iraq by American service men and women. I would 
like to quote to some extent from the New York Times report because it 
expresses both the severe consequences of the decisions that were made 
in which Judge Gonzales, unfortunately, played a key role as White 
House Counsel.
  The reviewer cites part of the memorandum that the President approved 
that was written by Judge Gonzales in that role which states:

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

  The article reporter goes on to say:

       Notice the qualifications. The president wants to stay not 
     within the letter of the law, but within its broad 
     principles, and in the last resort, ``military necessity'' 
     can overrule all of it. According to his legal counsel at the 
     time, Alberto R. Gonzales, the President's warmaking powers 
     gave him ultimate constitutional authority to ignore any 
     relevant laws in the conduct of the conflict. Sticking to the 
     Geneva Convention was the exclusive prerogative of one man, 
     George W. Bush; and he could, if he wished, make exceptions. 
     As Assistant Attorney General Jay S. Bybee argues in another 
     memo, ``Any effort to apply Section 2340A in a manner that 
     interferes with the President's direction of such core war 
     matters as the detention and interrogation of enemy 
     combatants thus would be unconstitutional. (Section 2340A 
     refers to the United States law that incorporates the 
     international Convention Against Torture.)

       Bybee asserted that the president was within his legal 
     rights to permit his military surrogates to inflict ``cruel, 
     inhuman or degrading'' treatment on prisoners without 
     violating strictures against torture. For an act of abuse to 
     be considered torture, the abuser must be inflicting pain 
     ``of such a high level intensity that the pain is difficult 
     for the subject to endure.'' If the abuser is doing this to 
     get information and not merely for sadistic enjoyment, then 
     ``even if the defendant knows that severe pain will result 
     from his actions,'' he's not guilty of torture. Threatening 
     to kill a prisoner is not torture; ``the threat must indicate 
     that the death is `imminent.' '' Beating prisoners is not 
     torture either. Bybee argues that a case of kicking an inmate 
     in the stomach with military

[[Page 1153]]

     boots while the prisoner is in a kneeling position does not 
     by itself rise to the level of torture.
       Bybee even suggests that full-fledged torture of inmates 
     might be legal because it could be construed as ``self-
     defense,'' on the grounds that ``the threat of an impending 
     terrorist attack threatens the lives of hundreds if not 
     thousands of American citizens.'' By that reasoning, torture 
     could be justified almost anywhere on the battlefield of the 
     war on terror. Only the president's discretion forbade it. 
     These guidelines were formally repudiated by the 
     administration the week before Gonzales's appearance before 
     the Senate Judiciary Committee for confirmation as attorney 
     general.
       In this context, Secretary Rumsfeld's decision to take the 
     gloves off in Guantanamo for six weeks makes more sense. The 
     use of dogs to intimidate prisoners and the use of nudity for 
     humiliation were now allowed. Although abuse was specifically 
     employed in only two cases before Rumsfeld rescinded the 
     order, practical precedents had been set; and the broader 
     mixed message sent from the White House clearly reached 
     commanders in the field. Lt. Gen. Ricardo S. Sanchez, in 
     charge of the Iraq counterinsurgency, also sent out several 
     conflicting memos with regard to the treatment of prisoners--
     memos that only added to the confusion as to what was 
     permitted and what wasn't. When the general in charge of 
     Guantanamo was sent to Abu Ghraib to help intelligence 
     gathering, the ``migration'' of techniques (the term used in 
     the Pentagon's Schlesinger Report) from those reserved for 
     extreme cases in the leadership of Al Qaeda to thousands of 
     Iraqi civilians, most of whom, according to the intelligence 
     sources, were innocent of any crime at all, was complete. 
     Again, there is no evidence of anyone at a high level 
     directly mandating torture or abuse, except in the two cases 
     at Gitmo. But there is growing evidence recently uncovered by 
     the ACLU . . . that authorities in the FBI and elsewhere were 
     aware of abuses and did little to prevent or stop them.

  Then there were the vast loopholes placed in the White House torture 
memos, the precedents at Guantanamo, the winks and nods from 
Washington, and the pressure of an Iraqi insurgency that few knew how 
to restrain. It was a combustible mix.
  The article continues:

       What's notable about the incidents of torture and abuse is 
     first, their common features, and second, their geographical 
     reach. No one has any reason to believe any longer that these 
     incidents were restricted to one prison near Baghdad. They 
     were everywhere from Guantanamo Bay to Afghanistan, Baghdad, 
     Basra, Ramadi and Tikrit and, for all we know, in any number 
     of hidden jails affecting ``ghost detainees'' kept from the 
     purview of the Red Cross.

  I will might add that is in direct contradiction to what we have been 
told, those of us like myself who sit on the Senate Armed Services 
Committee, who have been told repeatedly by this administration's 
representatives, and by military leaders, that these abuses were 
restricted to one prison, Abu Ghraib, in Iraq. I commend Senator 
Warner, the chairman of the Armed Services Committee, who has done his 
utmost, by holding these hearings and pressing the military and 
pressing the administration, to bring the full scope of what occurred 
there to public light through those hearings. To have sat through all 
those, as I have, and now hear that contradicted directly by the facts 
as they become known is greatly distressing and confirms my own 
unfortunately necessary judgment that this administration has not been 
candid with this Congress or with the American people about the conduct 
of the war in Iraq in this and other very important respects.

  Going back to the New York Times article, they, meaning the abuses of 
prisoners in Iraq:

     were committed by the Marines, the Army, the Military Police, 
     Navy Seals, reservists, Special Forces and on and on. The use 
     of hooding was ubiquitous; the same goes for forced nudity, 
     sexual humiliation and brutal beatings; there are examples of 
     rape and electric shocks. Many of the abuses seem 
     specifically tailored to humiliate Arabs and Muslims, where 
     horror at being exposed in public is a deep cultural 
     artifact.
       An e-mail message recovered by Danner from a captain in 
     military intelligence in August 2003. . . . In the message, 
     he asked for advice from other intelligence officers on which 
     illegal techniques work best: a ``wish list'' for 
     interrogators. Then he wrote: ``The gloves are coming off 
     gentlemen regarding these detainees, Col. Boltz has made it 
     clear that we want these individuals broken.''

  The article continues:

       How do you break these people? According to the I.C.R.C., 
     one prisoner ``alleged that he had been hooded and cuffed 
     with flexicuffs, threatened to be tortured and killed, 
     urinated on, kicked in the head, lower back and groin, force-
     fed a baseball which was tied into the mouth using a scarf 
     and deprived of sleep for four consecutive days. 
     Interrogators would allegedly take turns ill-treating him. 
     When he said he would complain to the I.C.R.C. he was 
     allegedly beaten more. An I.C.R.C. medical examination 
     revealed hematoma in the lower back, blood in urine, sensory 
     loss in the right hand due to tight handcuffing with 
     flexicuffs, and a broken rib.''

  That is only one of several incidents of that kind of horrible abuse 
this article contains. It continues:

       And the damage done was intensified by President Bush's 
     refusal to discipline those who helped make this happen. A 
     president who truly recognized the moral and strategic 
     calamity of this failure would have fired everyone 
     responsible. But the vice president's response to criticism 
     of the defense secretary in the wake of Abu Ghraib was to 
     say, ``Get off his back.'' In fact, those with real 
     responsibility for the disaster were rewarded. Rumsfeld was 
     kept on for the second term, while the man who warned against 
     ignoring the Geneva Conventions, Colin Powell, was seemingly 
     nudged out. The man who wrote a legal opinion maximizing the 
     kind of brutal treatment that the United States could legally 
     defend, Jay S. Bybee, was subsequently rewarded with a 
     nomination to a federal Court of Appeals. General Sanchez and 
     Gen. John P. Abizaid remain in their posts. Alberto R. 
     Gonzales, who wrote memos that validated the decision to 
     grant Geneva status to inmates solely at the president's 
     discretion, is now nominated to the highest law enforcement 
     job in the country: attorney general. The man who paved the 
     way for the torture of prisoners is to be entrusted with 
     safeguarding the civil rights of Americans. It is astonishing 
     he has been nominated, and even more astonishing that he will 
     almost certainly be confirmed.

  I conclude my citation of that article. The abuses it describes are 
terrible, however limited in number they may be. Obviously almost all 
of our American service men and women serving so heroically in Iraq, 
Afghanistan, and around the world were not involved in those abuses. In 
fact, they paid the price for them. They become the targets of 
relatives and friends of those abuse victims who swear revenge. Our 
troops are placed at greater risk if, God forbid, they are captured, 
because we cannot demand that their captors practice standards of 
humane treatment which we do not practice ourselves.
  But there is something that runs even deeper here and that is even 
more dangerous to our democracy. It is Judge Gonzales's advice that 
``the President's warmaking powers gave him ultimate constitutional 
authority to ignore any relevant law in the conduct of the conflict.''
  This is, I suspect, only the tip of the iceberg. Early in the 
administration's campaign, in the fall of 2002, to stampede Congress 
and scare the American people into the Iraq war, the White House stated 
their legal view that the President didn't actually need congressional 
authorization to invade Iraq. Members of this body on the other side of 
the aisle were instrumental in persuading him nevertheless to seek that 
authority.
  Secretary Rumsfeld's legal advisers have reportedly reinterpreted 
existing law to permit him to set up his own CIA-type operations 
without informing Congress. They reinterpreted another law, purportedly 
to authorize military counterterrorist commando units to operate within 
the United States. Who knows how many other laws this administration's 
legal advisers have reinterpreted or decided that the President or 
others can ignore entirely, reinterpret or ignore without informing 
Congress, without informing the American people?
  The Attorney General of the United States is entrusted to uphold the 
laws of this Nation and to apply them consistently and fairly to every 
American citizen, whether he agrees with them, whether they are 
convenient, whether the President or anyone else tells him otherwise. 
He cannot reinterpret them or ignore them or instruct the President or 
anyone else that they can reinterpret or ignore them. Change them? Yes, 
through the public process prescribed by the Constitution, by our 
Constitution: by an act of Congress signed into law by the President 
himself, reviewed if necessary by the judiciary. No exclusions and no 
exceptions, not for this President or any President; not for this 
administration or any administration, whether Republican,

[[Page 1154]]

Democrat, or anything else. There are no special circumstances. There 
is no election mandate for secretly ignoring or reinterpreting laws of 
this Nation, or acting contrary to the rule of those laws or in 
violation of the Constitution of the United States.
  Unfortunately, there is tragic precedent in this country's proud 
history for the demise of administrations who deviated from the rule of 
law, who considered themselves above the law or beyond the law or 
justified in reinterpreting or ignoring the law. Their hubris did great 
damage to themselves and they did great damage to our country.
  They occurred more often than not during second terms, even after 
receiving that most special of electoral mandates: reelection. What a 
profound affirmation of the public trust, the most sacred political 
trust we have in this country: reelection of the President of the 
United States of America.
  For the next 4 years, this President is our President. He is my 
President. I pray that he succeeds. Where he succeeds, our country 
succeeds. If he fulfills that sacred trust inferred upon him by the 
American people, the faith of all Americans in their Government is 
fulfilled.
  We can have policy disagreements here in the Senate, in the House of 
Representatives, and with the administration. This is what a great 
Democratic leader, Senator Tom Daschle, called the ``noise of 
democracy.'' They were intended by this country's Founders, who 
designed our system of government to allow them, to address them, and 
resolve them, publicly, lawfully, and constitutionally. When those 
principles are followed publicly, lawfully and constitutionally, our 
Nation is strengthened. When they are not, our Nation is almost always 
weakened, regardless of what those leaders intended at the time.
  I respectfully urge this administration to stop reinterpreting and 
ignoring existing laws and to stop ignoring and misleading Congress and 
the American people and to nominate an Attorney General who will not 
advise it, not hide it, and not condone it. That Attorney General I 
will gladly vote to confirm; this nominee, I will not.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I am struck as a newly-elected Senator 
from the State of Oklahoma. I must say I am extremely disappointed that 
my first opportunity to speak on the floor of this body is on the basis 
to refute the claims that are being made against a gentleman that I 
believe has already served our country miraculously and has been an 
example in this country of what can happen from very humble beginnings 
if somebody applies hard work, great effort, and perseverance.
  I am also struck by the claims that are made which don't have 
anything to do with history.
  I was sitting here asking myself this question: Were President 
Kennedy, President Johnson, and President Nixon responsible for My Lai, 
Vietnam? Was it their policies that caused that to happen? The 
atrocities that occurred during the Korean conflict, was that the fault 
of President Truman? The atrocities that occurred during World War II, 
was that the fault of President Roosevelt? No.
  And to make the reach and to make the claim that Alberto Gonzales, in 
his role as adviser to the President, as a legal counsel, to do what is 
expected of him in that position and to do that in a way that gives the 
President of the United States the advice, the knowledge, and the legal 
opinion of the Justice Department--not his opinion but the legal 
opinion of the Justice Department--that he somehow has disqualified 
himself from the position of Attorney General.
  I come to the floor today to make a statement in support of Alberto 
Gonzales's nomination to be the Attorney General of the United States. 
I believe an injustice is being carried out against him, both 
personally and professionally. Instead of looking at his 
qualifications, many have used him as a lightning rod for their 
complaints about the administration's handling of the war on terror. 
Specifically, many blame him for the administration's policies on the 
treatment of detainees and for its inquiries about the definition of 
torture. I am reminded that the President stated in 2002 that we would 
offer humane treatment to all prisoners. I am also reminded of how 
important it was for him to have a definition of what that was 
according to the Geneva Convention, but also according to our own law.
  What have the President and Judge Gonzales done to deserve the 
criticism they received? We saw Monday the results of Sunday's 
elections in Iraq.
  The allegations against him are based on two sets of advice that were 
given to the administration by the Attorney General and Department of 
Justice.
  First, the President made a decision based on the legal advice that 
he received from the Attorney General and the Department of Justice 
that certain detainees should not receive prisoner-of-war status while 
they were held in U.S. custody.
  Second, Judge Gonzales asked the Department of Justice Office of 
Legal Counsel under its statutory authority to render legal opinions to 
determine the precise meaning of the U.S. anti-torture statute. The 
Department of Justice responded to this request August 1, 2002, and 
December 30, 2004.
  I must say that torture is not a pleasant subject for us to discuss, 
but one might ask why the President and his top lawyer needed a 
clarification on an issue as unsettling as torture. I believe it is 
good to repeat the words of Senator Cornyn in his discussion. Why would 
we not use every legal means which are appropriate to protect this 
country? Finding out the definition of appropriateness is well within 
the purview of what Alberto Gonzales did.
  It is remarkable how quickly we forget. Just 3 years, 4 months, and 
21 days ago, this Nation came under attack. We all watched helplessly 
as more than 3,000 of our fellow Americans were murdered, and nearly an 
equal number were severely injured in an assault that we had never seen 
before in this country.
  As the horrors of September 11, 2001, unfolded before our eyes, we 
quickly realized that we were not under the attack of another country, 
we were not assaulted by a nation that respects and obeys the laws of 
war and international order. We were ripped from a world paradigm that 
we understood, one where states follow rules while fighting each other, 
and thrust into a new world where a nonstate enemy infiltrates society 
and targets our citizens. Our enemy does not acknowledge that while at 
war soldiers must wear uniforms, carry their weapons openly, obey a 
chain of command, and treat captives--especially civilian captives--
humanely. What they do is cut their heads off. They don't hide the 
fact.
  The nightmare that began on September 11 has not ended. We watch 
daily as our enemy attacks our soldiers who are risking their lives and 
limbs to better the lives of the citizens of Iraq and Afghanistan and 
drive out terrorist cells. Gone are days when our soldiers were able to 
face the enemy on the battlefields, eye-to-eye. Today, enemy combatants 
launch surprise attacks by hiding among civilians and behind the bodies 
of the wounded. Gone are the days when combatants understood how 
important it was to protect civilians from harm. Enemy combatants today 
brutally and repeatedly behead innocent civilians.
  As our leaders first faced the aftermath of September 11, a dark 
reality set in: Our enemy would not play by the rules that civilized 
people and nations have developed over the course of history. Our 
leaders needed to understand exactly what our laws required and what we 
needed to do to survive in this new world we faced. They needed to make 
strong policy decisions based on our country's domestic laws and 
international obligations.
  First, our leaders needed to understand who we were fighting. Under 
customary international law, civilians are not allowed to engage in 
combat. Because soldiers are not supposed to target civilians in 
battle, it is essential that civilians are distinguishable from

[[Page 1155]]

combatants. If civilians wish to be protected from harm, they must look 
different than combatants; therefore, every person who wishes to engage 
in combat and if captured receive the protections accorded to prisoners 
of war by the Third Geneva Convention, they must fulfill four 
conditions: that of being commanded by a person responsible for his 
subordinates; that of having a fixed distinctive sign recognizable at a 
distance; that of carrying arms openly; and that of conducting their 
operations in accordance with the laws and customs of war. We saw none 
of that.
  If someone engaged in combat does not follow these rules, he or she 
is an illegal combatant. Illegal combatants have long been recognized 
by state practice in the law of war field. In Ex parte Quirin, the U.S. 
Supreme Court held that ``by universal agreement and practice the law 
draws a distinction between the Armed Forces and the peaceful 
populations of belligerent nations and also between those who are 
lawful and unlawful combatants.''
  Furthermore, the state practice of the United States does not 
evidence any understanding of a customary international law norm 
extending the Geneva Convention and prisoner-of-war treatment to 
combatants who commit terrorist acts. Instead, international law 
regards such individuals as illegal combatants who cannot claim the 
protection of the laws of war that extend to legal combatants.
  Only lawful combatants, members of fighting units who comply, again, 
with the four conditions--being commanded by a person responsible for 
subordinates; having a fixed distinctive sign, recognizable at a 
distance; carrying arms openly; and conducting their operations in 
accordance with the laws and customs of war--are license to engage in 
military hostilities. Only those who comply with these four conditions 
are entitled to the protections afforded to captured prisoners of war 
under the laws and usages of war.
  In fact, the denial of protected status under the laws of war has 
been recognized as an effective method of encouraging combatants to 
comply.
  As we hear those opine about what has gone on, I ask the American 
people to think about it. Who are these people who are killing our 
soldiers? Who are these people who are blowing people up? Who are they? 
They meet none of the criterion for a legal combatant.
  How has the President applied these principles to the War on Terror? 
In the February 7, 2002, Order on the Humane Treatment of al-Qaida and 
Taliban Detainees, President Bush stated unequivocally that all 
detainees are to be treated humanely, ``including those who are not 
legally entitled to such treatment.'' Therefore, even though many of 
the fighters our soldiers encounter are not entitled to prisoner-of-war 
treatment, they are still being treated humanely.
  Furthermore, the President has unequivocally stated the Third Geneva 
Convention applies to detainees captured in Iraq. Even those Iraqi 
prisoners who do not meet the four requirements to receive POW status 
are subject to an appearance before a Third Geneva Convention Article 5 
tribunal to determine their status. Prior to that, they must receive 
POW protection until their status is determined.
  Second, while the President agrees with the Department of Justice 
that he has the authority under the Constitution to suspend Geneva, as 
between the United States and Afghanistan, he has declined to do so and 
has stated that the provisions of Geneva apply to our present conflict 
with the Taliban. However, common Article 3 of Geneva, and article 4, 
POW status, do not apply to the Taliban because they are unlawful 
combatants.
  Finally, none of the provisions of Geneva apply to the conflict with 
al-Qaida in Afghanistan or elsewhere. Al-Qaida detainees are not 
prisoners of war but are unlawful combatants.
  Next, the administration officials acknowledge that there could be 
circumstances where detainees hold information that could literally be 
a matter of life or death for thousands or even millions of American 
citizens. Judge Gonzales needed to understand what we are allowed to do 
under the laws of our Nation to save the lives of our people. 
Therefore, Judge Gonzales sought the legal expertise of the Department 
of Justice--not his opinion, but the Department of Justice's opinion--
to understand the definition and meaning of torture in the United 
States anti-torture statute.
  This request by Judge Gonzales did not in any way indicate the desire 
of the administration to use torture. It is a far reach to claim it. As 
a matter of fact, it is absolutely untrue to claim it. In fact, the 
official position of the administration is that neither torture nor 
inhumane treatment are to be used against anyone by the United States 
regardless of whether they have prisoner-of-war status or not. Because 
the administration's position is so strong, it was critical that the 
President and his advisers fully understand what constitutes torture so 
that no lines would be crossed.
  What does all this mean? Members of the Taliban and al-Qaida 
detainees do not receive the luxuries afforded prisoners of war because 
they are unlawful combatants. Iraqi fighters, even if they are 
terrorists, and most are, receive prisoner-of-war status until they 
receive a hearing before an article 5 tribunal to determine their 
status. None of these detainees are to be tortured or otherwise treated 
inconsistently with U.S. constitutional principles.
  It would have been irresponsible for Judge Gonzales to have not 
sought to understand the legal rights of enemy combatants and the law. 
He had a duty to the President and to the United States to understand 
these concepts and pass those on to the President in his private 
executive position as legal counsel to the President.
  We all went to sleep in a different world on September 11, 2001, very 
different than the one we lived in the night before. Our leaders needed 
to understand our domestic and international obligations well to 
respond to the new needs of our country. Alberto Gonzales should not be 
faulted for doing his duty for his client, the President of the United 
States. He is well qualified to serve as a U.S. Attorney General, and 
he should be confirmed.
  I also conclude by saying the following: In late November, I came to 
Washington to go through a process of orientation as a new Senator in 
this body. The message I heard from the other side of the aisle is, We 
want cooperation. We want bipartisanship. We do not want to politicize. 
The opposite of that is happening at this very moment in this body. 
Here is a good man who has demonstrated tremendous ability through his 
life. Everyone says he is well qualified. Everyone knows he will make a 
great Attorney General. The fact is, politics is getting in the way of 
his confirmation.
  I urge my fellow Members in this body to support and confirm him as 
the next Attorney General of the United States.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Michigan is recognized.
  Ms. STABENOW. Mr. President, I rise today to oppose the nomination of 
Judge Alberto Gonzales to be the Attorney General of the United States. 
The Attorney General is the chief law enforcement officer for our 
country with tremendous legal powers. He or she is responsible for 
enforcing our laws and for making important decisions on how they will 
be interpreted. The Attorney General can decide what person will be 
charged with a crime or detained. This is a job that requires sound 
legal judgment and impartiality because the Attorney General's duty is 
to uphold the Constitution and the rule of law.
  But this job is not just about our laws; it is also about the ideals 
of our country. It is about what we stand for. It is about our freedom 
and liberty and justice as embodied in our Constitution. It is about 
representing these fundamental types of democracy, not just to 
Americans but to the world.
  During the inauguration, we heard the wonderful words from President 
Bush about the cause of freedom. I was pleased to hear him talk about 
our history as a country that has led the world in the cause of 
freedom. These are the ideals that our children learn

[[Page 1156]]

about every day. We should be proud of our history. But our words must 
match our deeds.
  I am deeply concerned not only about Mr. Gonzales's judgment, but 
that his confirmation would send the wrong message to the world about 
the value we place on our basic constitutional rights. Judge Gonzales 
has played a prominent role in shaping this administration's policy on 
detention and torture. Some of these policies have not only damaged our 
country's reputation and moral leadership, but they have also placed 
our troops in greater danger. Judge Gonzales holds legal positions that 
violate treaties the United States has ratified and supported, and he 
helped to provide the justification for the treatment of prisoners that 
led to the abuses at Abu Ghraib.
  He also advocated and advised the President on legal positions that 
circumvented the Geneva Conventions. In following Judge Gonzales's 
advice to circumvent the Geneva Conventions, this administration 
clearly set the stage for the abuses at Abu Ghraib, the torture 
scandal, and this opinion ignored decades of U.S. support for humane 
treatment of prisoners. Such a reckless disregard for human rights laws 
not only violates international law but, again, it puts our own troops 
at additional peril.
  The Convention Against Torture, which was ratified by the United 
States in 1994, prohibited torture and cruel, inhumane or degrading 
treatment. The Senate defined such treatment as abuse that would 
violate the 5th, the 8th, or 14th amendment to our Constitution. This 
standard was formally accepted by the Bush administration.
  During Judge Gonzales's testimony it became clear that under his 
watch the administration twisted this straightforward standard to make 
it possible for the CIA to subject detainees to practices such as 
simulated drowning and mock execution. The standard he approved defined 
torture as inflicting pain equivalent to ``serious physical injury, 
such as organ failure, impairment of bodily function or even death.''
  In his testimony he told the committee that these constitutional 
amendments do not apply to foreigners held abroad; therefore, in his 
view, the torture treaty does not bind intelligence interrogators 
operating on foreign soil.
  Such a distortion is unacceptable and, again, is dangerous to our 
troops who are serving us on foreign soil.
  How can someone who has sought to find the loopholes in the law be 
entrusted to be the chief law enforcement officer of our land?
  These attempts to circumvent the very laws he will be called upon to 
enforce not only show a reckless disregard for the law, put our troops 
in further danger, but they have damaged our position in the world. 
Since World War II, the United States has been a moral authority in the 
world, an effective leader on the world stage. Such damage not only 
tarnishes our reputation in the world, but it negatively affects our 
very ability to enlist our allies in the critical war on terror. How 
can we hope to reclaim the moral leadership we once had with this 
person as our chief law enforcement officer? What signal does this send 
to the world?
  For more than 10 years, Judge Gonzales has served as President Bush's 
legal counsel, but now he must represent a higher authority, the 
Constitution of the United States of America, and he must do so with 
integrity and independence from his former long-term client.
  The Attorney General of the United States cannot be a spokesperson 
for the President. The Attorney General is the highest ranking law 
enforcement officer in the land. The Attorney General has 
responsibilities for enforcing, interpreting, and creating the laws 
that govern our democratic way of life in the United States. It is, 
therefore, imperative that the person who holds this position be 
someone who has the confidence of the American people. Our laws must 
come first. He or she must look not for the political rationale or the 
loophole but, rather, always seek the appropriate legal path, as guided 
by the U.S. Constitution. This is the people's attorney.
  I was disturbed that during the confirmation hearings Judge Gonzales 
restated his belief that the Commander in Chief can override--can 
override--the laws of our country and immunize others to perform what 
would otherwise be unlawful acts. This is wrong. No one person can 
stand above the laws that govern our Nation. The rule of law applies to 
every one of us, including the President of the United States.
  I had hoped that during his testimony before the Senate Judiciary 
Committee, Judge Gonzales would have used the opportunity to address 
these questions and concerns, and that he would have also used it as an 
opportunity to demonstrate an understanding that the Attorney General 
does not represent the President but, rather, the American people, the 
laws of our Nation, and the Constitution of the United States.
  I am troubled by the many questions that remain by his refusal to 
state categorically that the President may not authorize the use of 
torture in violation of U.S. law and the Geneva Conventions.
  On Sunday, Iraqis took an important step toward democracy by holding 
their first free elections in decades. We applaud and celebrate with 
them. Let's not take a step backwards now in America by confirming a 
nominee who does not represent the fundamental rights that the word 
``democracy'' represents.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWNBACK. Mr. President, I rise in support of Judge Gonzales, 
President Bush's nominee to serve as our Nation's 80th Attorney 
General. I want to address a few points that have been brought up today 
and discuss those a little bit. We will be able to vote on this nominee 
this week. I think he is going to make an outstanding Attorney General. 
He has been an outstanding lawyer in various capacities throughout his 
professional career already. He is going to continue to show that. I 
want to articulate why that is going to be the case.
  His background is well known. I serve on the Judiciary Committee. We 
had lengthy hearings with Judge Gonzales. We had multiple rounds. 
Everybody on the committee got to ask and have answered every question 
they asked. This is a nominee who has been through the question-and-
answer process on a lengthy basis. It is time we move forward. The 
President needs an Attorney General. This is the office that heads so 
many of our functions that are very important in the war on terrorism, 
and we need to move forward with this.
  It is well known to people who have been watching this debate. As the 
son of migrant workers from a family of seven children, the first to go 
to college, he is the epitome of the American dream. He has a law 
degree from Harvard. He could have done anything, yet he chose a path 
of public service. And he is an extraordinarily good public servant--
humble, wise, has a tremendous ability to persevere through difficulty.
  Through his work as chief counsel to the President, Judge Gonzales 
has become seasoned in national security issues and legal challenges 
that are essential to the job of Attorney General. He is unquestionably 
qualified for the position, and I have no doubt he will be confirmed by 
the Senate this week and should be confirmed and should be given our 
strong support.
  I am deeply saddened by many distortions and unjustified criticisms 
of Judge Gonzales's nomination that he has had to go through and to 
face. Even if you disagree with the administration in the war on 
terror, Judge Gonzales should have been treated during the nomination 
process with a level of dignity and respect by this body in going 
through the discussion. One can say: I

[[Page 1157]]

believe that this is a good nominee, that this is a good person, and 
they should look at those criteria and those qualifications and not 
say: I am voting against him because I have a disagreement with the 
administration on a policy issue.
  Undoubtedly, there are disagreements on policy issues. Undoubtedly, 
there are a number of people who disagree with Judge Gonzales on how he 
would view policy issues. But that is not the issue in the confirmation 
process. The issue is, is this person qualified to hold this job? Will 
he do a good job? The President, in winning the election, does need to 
have his people in key positions to be able to carry out policies that 
he put forward, that the American public has passed on in the election 
process.
  In the past few weeks, there are some who have done all they can to 
associate Judge Gonzales with the word ``torture'' and the disturbing 
pictures from Abu Ghraib because he offered a legal memorandum stating 
that the Geneva Conventions do not apply to members of al-Qaida. These 
kinds of accusations are factually inaccurate and only serve to bring 
down the reputation and morale of our Armed Forces who are serving 
honorably and nobly in defense of this Nation. As we saw over this past 
weekend, there was an incredible vote by the Iraqi people that was so 
heartening to myself and to all of America because this is something we 
have fought for, that our young men and women have died for, to give 
them freedom. Now they have it, and they are expressing it.
  Clearly, there are going to be problems ahead and difficulties, and 
it is not going to be anything close to a perfect democracy. Ours isn't 
yet, although we continue to aspire and are moving closer and closer 
toward that end. They are going to have difficulties. Yet they have 
made a step that would not have happened had our young men and women 
not put their lives on the line and the President made bold decisions 
that this body authorized to go to war to remove Saddam Hussein from 
power. Judge Gonzales has been part of the Bush team and the White 
House. He has done a good job there, and he will do an excellent job as 
Attorney General.
  I wanted to take a few minutes to set the record straight on some key 
issues. Some have questioned Judge Gonzales's independence from the 
President. Judge Gonzales understands that his role as Attorney General 
of the United States will be very different from his role as counsel to 
the President. He has made that quite clear in his confirmation 
hearing. He stated:

       I do very much understand that there is a difference in the 
     position of Counsel to the President and [that of] Attorney 
     General of the United States. . . . As counsel to the 
     President, my primary focus is on providing counsel to the 
     White House and to White House staff and the President. I do 
     have a client who has an agenda, and part of my role as 
     counsel is to provide advice that the President can achieve 
     that agenda lawfully. It is a much different situation as 
     Attorney General, and I know that. My first allegiance is 
     going to be to the Constitution and to the laws of the United 
     States.

  Upon confirmation, Judge Gonzales will be ready and able to take on 
the independent responsibilities of the Attorney General. His service 
as a Texas Supreme Court justice proved his ability to be independent 
from then-Governor and now-President Bush. At his confirmation hearing, 
he indicated he would be very sensitive to any perception that law 
enforcement was being politicized by the White House and would seek to 
avoid such perceptions by ``talk[ing] to the career staff . . . to make 
them understand that [he's] coming to th[e] department with a clear 
understanding of the distinct roles between the two jobs.
  Remember, this is a gentleman who earlier in his professional career 
served on the Texas Supreme Court, a Supreme Court of one of the States 
of United States. He understands a different position. He has been in 
an independent position. He understands these different roles and the 
places they serve in Government. And he understands how they work and 
he will abide by them.
  Also at his hearing he emphasized the ``very restrictive contacts 
policy between the [Justice] Department and the White House, limiting 
who from the White House can contact the Department of Justice,'' 
saying that ``what we don't want to have is people from various 
divisions within the White House calling the Department about an 
ongoing investigation.''
  He offered his commitment to ensure that the contacts policy is as 
strong as it should be. He also offered his commitment to abide by that 
policy. Judge Gonzales has stated his commitment to respecting and 
fostering the professionalism of the career employees of the Department 
of Justice. In response to written followup questions from the Senator 
from Massachusetts, Judge Gonzales said he would ``do everything in 
[his] power to reassure the career professionals at the Department and 
the American people that [he] would not politicize the Department.''
  There is a direct statement from Judge Gonzales of how he would 
operate.
  Judge Gonzales emphatically endorsed the proposition that ``all 
government lawyers should always provide an accurate and honest 
appraisal of the law, even if that will constrain the administration's 
pursuit of desired policies.''
  Again, that is another direct quote from Judge Gonzales in response 
to a question by a Member of the Senate.
  Judge Gonzales also suggested in his response to the Senator from 
Massachusetts that his close personal relationship with the President 
would make it easier for him to be honest and forthright with the 
President. So he has a personal relationship that he can build on as 
well, but he understands the professional relationship. He is a lawyer, 
and he understands the role in which he would be serving.
  I would like to make it clear that on the issue of the Geneva 
Conventions, despite what you are hearing today, the United States is 
committed to complying with the governing law and treaty obligations in 
the war on terrorism.
  There have been some criticisms of Judge Gonzales regarding the 
Geneva Conventions. Some have claimed that Judge Gonzales finds the 
Geneva Conventions to be an impediment, a hindrance to our present 
efforts, quaint and obsolete in important respects. Others are claiming 
that the administration had refused to apply the Geneva Conventions to 
the conflict in Afghanistan:

       Afghanistan was the first time in which we said that it did 
     not apply to a conflict.

  Senators have accused the administration of taking its obligations 
under the Geneva Conventions lightly.
  The administration has fully and faithfully adhered to its 
obligations under the Geneva Conventions. Judge Gonzales's critics meld 
together two different issues: First, whether the Geneva Conventions 
apply to a particular armed conflict and, second, whether particular 
individuals in that conflict are entitled to a particular protected 
status under one of the Geneva Conventions. The mere fact that the 
Geneva Conventions apply to a conflict between two nations does not 
mean that all persons involved in that conflict qualify for a 
particular status, such as prisoner-of-war status, under the terms of 
the conventions.
  The administration and Judge Gonzales have been very clear in 
separating the two issues. But as demonstrated in the claims made 
above, Judge Gonzales's critics have sought to confuse the issue by 
mixing the two questions.
  The administration did not determine that the Geneva Conventions did 
not apply in enemy conflict in Afghanistan. Rather the President 
determined that the Geneva Conventions do, indeed, apply to the 
conflict in Afghanistan, but that neither al-Qaida terrorists nor 
Taliban fighters qualify for prisoner-of-war protections under the 
Geneva Conventions.
  This obvious distinction is grounded in the very text of the Geneva 
Conventions. This has been ignored by Judge Gonzales's critics. The 
judge explained the distinction quite clearly in his testimony before 
the Judiciary Committee. He stated this:


[[Page 1158]]

       There was a decision by the President that Geneva would 
     apply with respect to our conflict with the Taliban. 
     However--and I believe there is little disagreement about 
     this as a legal matter--because of the way the Taliban fought 
     against the United States, they forfeited their right to 
     enjoy prisoner-of-war legal protections.

  Judge Gonzales has repeatedly affirmed his respect for the Geneva 
Conventions. He has worked to ensure that we protect Americans from the 
threat of terrorism, while treating al-Qaida and Taliban detainees 
humanely and, to the extent appropriate and consistent with military 
necessities, in keeping with the principles of the Geneva Conventions.
  Judge Gonzales has also stated further at the hearing:

       I consider the Geneva conventions neither obsolete nor 
     quaint.

  In closing, we have an outstanding nominee in judge Gonzales. His 
personal background is one of incredible accomplishments. His ability 
and his legal mind are excellent. His commitment to public service is 
tremendous. The faith that people have in him is there and is what we 
need in a person who is Attorney General of the United States. We need 
to have a person there that people look up to and say this is a person 
who will uphold the law, who is an upright individual, and will do all 
he can to make this a better place. Judge Gonzales will do all of those 
things and he will do it in a tremendous fashion.
  I don't think this is a particularly helpful or good debate, where we 
question a person's ability to stand independent, or to do these other 
things, when that person stated clearly he would and his past track 
record has shown that he will.
  For those reasons, I hope we can move expeditiously through this 
debate. Let people question his ability if they choose, but let's have 
the vote and get Judge Gonzales approved to serving this country in 
this important time and in this very important job.
  Mr. KOHL. Mr. President, in many ways, Judge Gonzales's life story is 
the American dream--rising from humble beginnings to being nominated to 
be our Attorney General. Yet, Judge Gonzales must be evaluated on more 
than his life story; indeed, the decisions he has made in his public 
capacity must be closely scrutinized. We are, after all, being asked to 
confirm him as the Nation's chief law enforcement officer.
  We begin with a standard of granting deference to the President to 
surround himself with the people he chooses for his Cabinet. But that 
deference is not absolute. The Attorney General is not the President's 
lawyer, but the people's lawyer. As I listened to the nominee's answers 
at his confirmation hearing, read his responses to our additional 
questions, and examined the facts, I found that my deference was 
challenged. Indeed, we are being asked to confirm the administration's 
chief architect of its legal policies in the war on terror--policies 
with questionable legal support that have proven harmful to the conduct 
of the war and injured our reputation abroad.
  We must expect more from our Attorney General. The war on terrorism 
has proven more clearly now than ever before that the Justice 
Department's mission is too central to our democracy to be entrusted to 
someone who leaves us with such doubt. As the President's chief legal 
officer in the White House, Judge Gonzales's advice sadly fell short 
time and again. For these reasons, I must vote no.
  A closer examination of the administration's legal policies 
demonstrates why we have reached this conclusion. Over the strong 
objections of Secretary of State Powell, career military lawyers, and 
others with great expertise, Judge Gonzales advised the President to 
deny prisoners the protections of the Geneva Conventions. Others warned 
Judge Gonzales that this advice could undermine military culture, 
generate confusion about how to treat detainees, and ultimately lead to 
abuse. We now know that their worst fears were warranted.
  His role in shaping the policy on torture was similarly regrettable. 
The ``torture memo'' that was drafted at Judge Gonzales's request stood 
as administration policy for 2 years. The Defense Department used the 
memo's disturbing conclusions to justify abusive interrogation 
techniques.
  These policies have consequences. To defeat terrorism, the 9/11 
Commission concluded that we must win the war of ideas in the Muslim 
world. The importance of this recommendation cannot be emphasized 
enough. Undermining our fundamental commitment to due process, failing 
to honor our international agreements, and flouting our laws 
prohibiting torture and war crimes harms that effort.
  Judge Gonzales's performance at the hearing did little to alleviate 
our concerns. We heard him condemn torture, generally, but refuse to 
discuss what he thought constituted torture. We heard him commit to 
honor our international agreements but waffle when asked when they 
apply. We heard him denounce the abuses that were committed in Iraq but 
refuse to discuss whether they might be illegal. We heard him commit to 
hold anyone involved responsible for their actions but repeat 
predetermined conclusions about what happened and who was to blame.
  When asked by members of the Judiciary Committee about his views on 
these policies and his roll in shaping them, Judge Gonzales either 
could not remember or was nonresponsive. When asked about whether he 
thought torture was ever productive, after more than 2 years of 
participating in discussions on the subject, he told the Committee, ``I 
have no way of forming an opinion on that.'' He admits to attending 
meetings where specific methods of torture were discussed but told the 
committee that he cannot recall anything that was said. His evasiveness 
was not an encouraging preview or his ability to be candid with the 
American people about the basis of the decisions he will be responsible 
for making as our Attorney General.
  This has not been an easy decision to reach. We hope that if Judge 
Gonzales is confirmed, he will prove us wrong. For now, however, our 
doubts are too great to support his nomination.

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