[Senate Hearing 109-4]
[From the U.S. Government Publishing Office]
S. Hrg. 109-4
CONFIRMATION HEARING ON THE NOMINATION OF ALBERTO R. GONZALES TO BE
ATTORNEY GENERAL OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
----------
JANUARY 6, 2005
----------
Serial No. J-109-1
----------
Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARING ON THE NOMINATION OF ALBERTO R. GONZALES
TO BE ATTORNEY GENERAL OF THE UNITED STATES
U.S. GOVERNMENT PRINTING OFFICE
99-932 WASHINGTON : 2005
_____________________________________________________________________________
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S. Hrg. 109-4
CONFIRMATION HEARING ON THE NOMINATION OF ALBERTO R. GONZALES TO BE
ATTORNEY GENERAL OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
JANUARY 6, 2005
__________
Serial No. J-109-1
__________
Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware....................................................... 69
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 92
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 98
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement and attachments............................. 424
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 66
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 95
prepared statement........................................... 470
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 82
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, prepared statement................................. 478
Graham, Hon. Lindsey O., a U.S. Senator from the State of South
Carolina....................................................... 79
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 60
prepared statement........................................... 496
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 4
prepared statement and attachments........................... 572
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 63
prepared statement and attachments........................... 527
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 76
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared
statement...................................................... 542
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 88
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 73
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
STATEMENT OF THE NOMINEE
Gonzales, Alberto R., of Texas, Nominee to be Attorney General of
the United States.............................................. 12
Questionnaire................................................ 15
PRESENTERS
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Alberto R. Gonzales, of Texas, Nominee to be
Attorney General of the United States.......................... 7
Salazar, Hon. Ken, a U.S. Senator from the State of Colorado
presenting Alberto R. Gonzales, of Texas, Nominee to be
Attorney General of the United States.......................... 10
WITNESSES
Hutson, John D., Dean and President of the Franklin Pierce Law
Center, Concord, New Hampshire................................. 152
Johnson, Douglas A., Executive Director, Center for Victims of
Torture, Minneapolis, Minnesota................................ 154
Koh, Harold Hongju, Dean and Gerard C. and Bernice Latrobe Smith
Professor of International Law, Yale Law School, New Haven,
Connecticut.................................................... 157
QUESTIONS AND ANSWERS
Responses of Alberto R. Gonzales to questions submitted by
Senator Biden.................................................. 171
Response of Alberto R. Gonzales to a question submitted by
Senator Coburn................................................. 190
Responses of Alberto R. Gonzales to questions submitted by
Senator Durbin................................................. 191
Responses of Alberto R. Gonzales to questions submitted by
Senator Feingold............................................... 220
Responses of Alberto R. Gonzales to questions submitted by
Senator Feinstein.............................................. 240
Responses of Alberto R. Gonzales to questions submitted by
Senator Graham................................................. 253
Responses of Alberto R. Gonzales to questions submitted by
Senator Grassley............................................... 255
Responses of Alberto R. Gonzales to questions submitted by
Senator Hatch.................................................. 269
Responses of Alberto R. Gonzales to questions submitted by
Senator Kennedy................................................ 275
Responses of Alberto R. Gonzales to questions submitted by
Senator Kohl................................................... 325
Responses of Alberto R. Gonzales to questions submitted by
Senator Leahy.................................................. 331
Responses of Alberto R. Gonzales to questions submitted by
Senator Leahy on behalf of Senator Levin....................... 361
Responses of Alberto R. Gonzales to questions submitted by
Senator Schumer................................................ 368
Responses of Alberto R. Gonzales to questions submitted by
Senator Sessions............................................... 374
Responses of Alberto R. Gonzales to questions submitted by
Senator Specter................................................ 379
Responses of Alberto R. Gonzales to hearing questions posed by
Senators Specter, Graham, Schumer, Durbin, Kennedy, and
Feingold....................................................... 381
Responses of Alberto R. Gonzales to follow-up questions submitted
by Senators Leahy, Feinstein, and Kennedy...................... 388
Responses of Alberto R. Gonzales to follow-up questions submitted
by Senator Durbin.............................................. 410
Responses of Alberto R. Gonzales to additional follow-up
questions submitted by Senator Leahy........................... 417
Reponses of Harold Hongju Koh to questions submitted by Senator
Sessions....................................................... 419
SUBMISSIONS FOR THE RECORD
Arizona Daily Star, January 8, 2005, article..................... 420
Boston Globe:
January 5, 2005, article..................................... 422
January 18, 2005, article.................................... 423
Cuellar, Mariano-Florentino, Associate Professor and Deane F.
Johnson Faculty Scholar, Stanford Law School and Jenny S.
Martinez, Assistant Professor, Stanford Law School, letter and
attachment..................................................... 465
Engelbert, Jo Anne, Professor Emerita, Montclair State
University, St. Augustine, Florida, letter..................... 477
Former Office of Legal Counsel attorneys, memorandum and
attachment..................................................... 482
Ford, Jack and Delia McGrath, Pacifica, California, letter....... 489
Gaddy, C. Welton, Reverend, President, Interfaith Alliance,
Washington, D.C., letter....................................... 490
Gonzales, Alberto R., of Texas, Nominee to be Attorney General,
prepared statement............................................. 492
Guttman, Fred, Rabbi, Temple Emanuel, Greensboro, North Carolina,
letter......................................................... 494
Human Rights First, Washington, D.C., statement.................. 498
Human Rights Watch, Washington, D.C., statement.................. 500
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas, prepared statement...................................... 503
Hutson, John D., Dean and President of Franklin Pierce Law
Center, Concord, New Hampshire, prepared statement............. 504
Johnson, Douglas A., Executive Director, Center for Victims of
Torture, Minneapolis, Minnesota, prepared statement............ 513
Jones, Scott, Associate Pastor for Youth and Education, Royal
Lane Baptist Church, Dallas, Texas, letter..................... 526
Koh, Harold Hongju, Dean and Gerard C. and Bernice Latrobe Smith
Professor of International Law, Yale Law School, New Haven,
Connecticut, prepared statement................................ 531
La Raza Centro Legal, Inc., San Francisco, California, statement. 544
Lawyers' Committee for Civil Rights, San Francisco, California,
statement...................................................... 546
Lawyers' statement on the nomination of Alberto Gonzales......... 548
Leadership Conference on Civil Rights, Washington, D.C., letter.. 567
Los Angeles Times, January 6, 2005, article...................... 609
Malinowski, Tom, Washington Advocacy Director, Human Rights
Watch, Washington, D.C., letter................................ 611
Mayerfeld, Jamie, Associate Professor, Department of Political
Science, University of Washington, Seattle, Washington, letter. 612
Mexican American Legal Defense Fund, Los Angeles, California,
article........................................................ 613
Mexican American Political Association, Los Angeles, California,
article........................................................ 615
Midwest Coalition for Human Rights, Minneapolis, Minnesota,
letter......................................................... 617
Milwaukee Journal Sentinel, January 8, 2005, article............. 621
Montano, Melvyn, Major General, Retired, USAF National Guard,
Albuquerque, New Mexico, letter................................ 622
National Lawyers Guild, New York, New York, article.............. 623
Newsweek:
May 24, 2004, article........................................ 624
June 21, 2004, article....................................... 630
November 22, 2004, article................................... 633
December 27, 2004, article................................... 634
New York Review of Books:
June 10, 2004, article....................................... 636
June 24, 2004, article....................................... 644
October 7, 2004, article..................................... 657
New York Times:
February 17, 1987, article................................... 676
October 24, 2004, article.................................... 677
October 25, 2004, article.................................... 690
January 5, 2005, article..................................... 704
January 6, 2005, article..................................... 706
January 26, 2005, article.................................... 710
Physicians for Human Rights, Cambridge, Massachusetts, letter and
attachment..................................................... 711
Prendergast, Carol, Managing Director, Refuge, New York, New
York, letter................................................... 717
Republican (Western Massachusetts), January 23, 2005, article.... 718
Retired professional military and civilian leaders of the U.S.
Armed Forces:
letter to President Bush, Sept. 7, 2004...................... 719
letter to Senate Judiciary Committee......................... 725
Romero, Anthony, Executive Director, American Civil Liberties
Union, New York, New York, article............................. 731
Rushdie, Salman, President, PEN American Center, New York, New
York, letter................................................... 733
Schwartz, Bruce S., Attorney at Law, Cherry Hill, New Jersey,
letter......................................................... 735
Shalom Center, Committee of Concerned Philadelphia Rabbis,
Philadelphia, Pennsylvania, joint letter....................... 736
Slate, January 15, 2005, article................................. 742
Society of American Law Teachers, New York, New York, letter..... 744
Sofaer, Abraham D., George P. Shultz Senior Fellow, Hoover
Institution, Stanford University, Stanford, California, letter. 748
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania, Hon. Mike DeWine, a U.S. Senator from the State
of Ohio, Hon. Herbert Kohl, a U.S. Senator from the State of
Wisconsin, Hon. Strom Thurmond, a U.S. Senator from the State
of South Carolina, Hon. Charles E. Schumer, a U.S. Senator from
the State of New York, and Hon. Joseph R. Biden, Jr., a U.S.
Senator from the State of Delaware, April 11, 2000, joint
letter......................................................... 751
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania, Hon. Herbert Kohl, a U.S. Senator from the State
of Wisconsin, Hon. Charles E. Schumer, a U.S. Senator from the
State of New York, Hon. Strom Thurmond, a U.S. Senator from the
State of South Carolina, and Hon. Mike DeWine, a U.S. Senator
from the State of Ohio, April 25, 2000, joint letter........... 755
Star Tribune, January 8, 2005, article........................... 759
United States-based human rights organizations, letter........... 761
Washington Post:
Dana Priest and Dan Eggen, January 6, 2005, article.......... 764
January 6, 2005, article..................................... 767
January 26, 2005, article.................................... 769
Washington Times:
January 4, 2005, article..................................... 771
January 24, 2005, article.................................... 773
NOMINATION OF ALBERTO R. GONZALES TO BE ATTORNEY GENERAL OF THE UNITED
STATES
----------
THURSDAY, JANUARY 6, 2005
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9:30 a.m., in
room SH-216, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Kyl, DeWine, Sessions,
Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy, Biden, Kohl,
Feingold, Schumer, and Durbin.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. The hour of 9:30 having arrived, we will
proceed with the United States Senate Committee on the
Judiciary today, to proceed with the hearing of White House
Counsel Alberto Gonzales, whom the President has nominated for
the position of Attorney General of the United States. There
will be opening statements by Senator Leahy and myself, and
then we will call upon Senator John Cornyn and Senator Ken
Salazar to introduce the nominee. And then the nominee will
introduce his family, and then we will proceed with the opening
statement of Judge Gonzales.
Preliminarily, it should be noted that White House Counsel
Gonzales had served on the Supreme Court of Texas and is
referred to as ``Judge Gonzales,'' and that will be the title
which I will use during the course of these proceedings.
Judge Gonzales comes to this nomination with a very
distinguished career, really a Horatio Alger story: Hispanic
background; of seven siblings, the first to go to college;
attended the Air Force Academy for 2 years; and then received
degrees from Rice and Harvard Law School; became counsel to
then-Governor George Bush of Texas; was appointed to the State
Supreme Court and later elected for a full term; and has been
President Bush's Counsel for the full 4 years of his term.
Judge Gonzales will take over, if confirmed, the direction
of the Department of Justice, which is a Department of enormous
importance in the United States, the fourth Department created
in 1789, has the responsibility for representing the United
States in court, civil cases and criminal cases, has oversight
responsibility for the Federal Bureau of Investigation and its
enormous responsibilities on the fight against terrorism, and
law enforcement. And while Judge Gonzales is the appointee of
the President, he has broader responsibilities representing the
people of the United States, a key distinction which I am
pleased to say in advance that Judge Gonzales has noted in the
statement which he has submitted.
The focus of media attention has been on the issue of Judge
Gonzales' roles in analysis and recommendations on the handling
of the detainees. Judge Gonzales had issued an opinion to the
President that the Geneva Convention did not apply with respect
to certain of the combatants. In his memorandum of January 25,
2000, he said, ``In my judgment, this new paradigm''--referring
to the war on terrorism--``renders obsolete Geneva's strict
limitations on questioning of enemy prisoners * * *'' The
Committee will seek further amplification on a number of
substantive issues from that memorandum, including Judge
Gonzales' statement that, ``In the treatment of detainees, the
United States will continue to be constrained by its commitment
to treat the detainees humanely and, to the extent appropriate
and consistent with military necessity, in a manner consistent
with the principles of the Geneva Convention.'' This statement
raises the question of what is the meaning of military
necessity and what extent, if at all, does military necessity
impact on the ``commitment to treat'' a detainee humanely.
Beyond Abu Ghraib and Guantanamo, the Committee will want
to know Judge Gonzales' plans and views on a wide range of
matters which will command the attention of the Department as
we begin a new year and a new Presidential term.
The most important issue facing our Nation today continues
to be the threat of terrorism. That is the most important issue
facing our country and how we deal with it in the balance of
our civil rights. The Department will have a major impact on
the implementation of the new legislation for a National
Intelligence Director with the very heavy responsibilities of
the Federal Bureau of Investigation and the coordination of
intelligence, which, if it had been properly implemented, might
well have prevented 9/11.
There are a number of other key issues which the Attorney
General will deal with. We will be interested to know of any
views on enforcement of the antitrust laws. American consumers
of oil and gas have been strangled by OPEC and their
international cartel. They are not immune under the act of
state doctrine, and we will be interested to know what plans
the Department of Justice under Judge Gonzales, if confirmed,
would have on that important issue.
The Department will have a major role in implementing
President Bush's proposals to revise our Nation's immigration
laws and to deal with the 10 million aliens who are in this
country illegally. The Committee will also be interested to
know of any new ideas or programs Judge Gonzales has for
fighting organized and violent crime, cracking down on fraud,
especially on Federal health programs, and protecting U.S.
intellectual property rights.
The Committee will be interested in Judge Gonzales' views
on the PATRIOT Act since the Attorney General will obviously be
a central figure in consideration of reauthorization of that
Act. That Act provided considerable assistance to law
enforcement by eliminating the so-called wall between the
gathering of intelligence once obtained for intelligence
purposes to be used in criminal law enforcement. But there are
other questions which have been challenged by a wide array of
people on all facets of the political spectrum with the issue
of probable cause to obtain records, library records, and the
so-called sneak-and-peek orders, and we will be interested in
what Judge Gonzales has to say about that very important
matter.
We will also be interested to know Judge Gonzales' views on
the issue of detention and standards of detention. The Attorney
General has exercised the authority to overrule conclusions by
the immigration judge in the Board of Immigration Appeals, and
this is an issue which lingers after considerable questioning
of Attorney General Ashcroft as to what standards ought to be
used. And Attorney General John Ashcroft conceded before this
Committee that it is not sufficient to simply cite national
security, and that will be a question which we will want to
inquire into.
We will also be looking for commitments from Judge Gonzales
to appear before this Committee at least twice a year and to be
responsive to our inquiries. And we will seek his commitment on
the oversight authority of this Committee as recognized by the
Supreme Court of the United States, our constitutional
obligation on oversight.
As we begin a new term, I pay tribute to my distinguished
colleague, Senator Hatch, who has chaired this Committee for
most of the past 10 years and has been responsible for some of
the most innovative and far-reaching legislation which has ever
come from the Congress of the United States. And he has handled
these duties in an atmosphere sometimes contentious, sometimes
difficult, but always with good cheer and always with aplomb
and always with a balance. And I have admired especially his
stamina. We affectionately refer to him as ``Iron Pants,'' as
he has chaired this Committee with such great distinction. And
it is an honor to receive the gavel from him, if you will make
that formal presentation, Senator Hatch.
Senator Hatch. Well, I am very honored to make that
presentation to Arlen Specter, who is one of the best lawyers
we have ever had serve in the United States Senate, among a
whole raft of very fine lawyers. And so I am very proud to have
you as our new Chairman, and I appreciate your kind remarks,
and I appreciate serving with Senator Leahy and all of our
colleagues on this Committee for such a long period of time. I
am anxious to serve under you, and I will enjoy sitting beside
you.
Chairman Specter. Thank you, Senator Hatch.
Senator Hatch. Here is the gavel.
[Applause.]
Chairman Specter. I commend Senator Leahy for his very
distinguished service as the long-time ranking Democrat on the
Committee and Chair of the Committee for most of the 107th
Congress. Senator Leahy and I have been colleagues going back
to the late 1960s, when we were district attorneys together.
Senator Leahy was the district attorney of Burlington, Vermont,
and I was district attorney of Philadelphia. And we have worked
together for 24 years on the Judiciary Committee, and in the
past several weeks, we have talked extensively, we have sat
down, we have gone over the agenda of the Committee. We are
obviously keenly aware of the difficulties of gridlock, and we
are looking for a new beginning with more consultation and an
effort to avoid some of the contentiousness of the past, if it
is at all possible, and to avoid, if we can, even consideration
of the so-called nuclear option.
So it is with pleasure that I work with Senator Leahy, a
friend for four decades, and now I yield to you, Senator Leahy,
for your opening statement.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Leahy. Thank you very much, Mr. Chairman, and I do
welcome you as our new Chairman. People sometimes forget that
Senator Hatch and I often agree on things, and I absolutely
agree with him that you are one of the most experienced lawyers
ever to serve. I have served here for 30 years and I am not
surprised at the praise. I remember our times together back as
prosecutors. When I was a young prosecutor, I first met you in
Philadelphia at a national DAs' meeting, and I have followed
your career ever since.
I would say also to Senator Hatch, I compliment him and I
am glad that he is determined to stay on the Committee. We have
many people who have chaired this Committee who have stayed
on--Senator Hatch, of course now Senator Specter, Senator
Kennedy, Senator Biden--and I think it has helped the Committee
and improved the Committee with that experience.
Judge Gonzales, I welcome you to the Senate Judiciary
Committee. As has been alluded to, we are entrusted by the
American people and by the Senate, even more importantly by the
Constitution, to do a thorough and fair job in considering
nominations for the executive branch of Government. At the
outset, I want to make clear how inspiring your life story is.
A recent Washington Post profile of your life's journey in
particular touched me as few accounts of your life have. The
road you have traveled from being a 12-year-old boy, just about
the age of your oldest son, selling soft drinks at football
games, all the way to the State House in Texas and now the
White House is a tribute to you and your family. I enjoyed
meeting with your wife and your sons, your mother--and this has
to be a very proud day for her--your brother, your mother-in-
law, and the family.
I am sure we are going to hear more about your life story,
but also we will learn about Alberto Gonzales, the Counsel to
the President. And then we are going to try to glean what kind
of a portrait we might have of you if you are confirmed to be
Attorney General of the United States. The Attorney General, of
course, has to represent the interests of all Americans as the
Nation's chief law enforcement officer. As Justice James
Iredell wrote in 1792, the person who serves as Attorney
General is ``not called Attorney General of the President but
Attorney General of the United States.''
Now, the post is quite distinct from the position Judge
Gonzales has performed for the President. There he acted as a
spokesman for the administration and appeared as chief defense
lawyer for the White House on a range of a number of very
important and many times politically sensitive issues. So a key
question for this hearing is whether the nominee shares this
view of the crucial role of the Attorney General.
When he was designated for this position by the President,
Judge Gonzales said he was looking forward to continuing to
work with friends and colleagues in the White House in a
different capacity on behalf of our President. But, you know,
there are going to be times--there may well be times when the
Attorney General of the United States has to enforce the law,
and he cannot be worried about friends or colleagues at the
White House. His duty is to all Americans--Republicans,
Democrats, Independents, all Americans.
At a time when the Republican Party has control of all
three branches of the Federal Government, my worry is that our
system of checks and balances may become short-circuited by too
few checks on assertions of executive branch authority. My
concern is that during several high-profile matters in your
professional career, you have appeared to serve as a
facilitator rather than as an independent force in the
policymaking process.
Now, the job of Attorney General is not about crafting
rationalizations for ill-conceived ideas. It is a much more
vital role than that. The Attorney General is about being a
forceful, independent voice in our continuing quest for justice
and in defense of the constitutional rights of every single
American. We have seen what happens when the rule of law plays
second fiddle to a President's policy agenda. Attorney General
Ashcroft and with the White House Counsel's office has
impulsively facilitated rather than cautiously vetted serious
constitutional issues. The administration has taken one
untenable legal position after another regarding the rule of
law as we fight terrorism. The few times Attorney General
Ashcroft consented to appear before this Senate oversight
Committee, he brandished intimidation as a weapon, sometimes
going so far as to say that questioning the administration's
policy somehow gave aid and comfort to the enemy.
By contrast, I think your nomination appears to offer a
different era. But as I told Judge Gonzales when we met within
days of the announcement of his nomination, these hearings do
matter. We need to know more about his judgment and actions in
connection with the tragic legal and policy changes formulated
in secret by this administration--in secret and still being
hidden from proper congressional oversight and public scrutiny.
The policies include this nominee's role in developing
interpretation of the law to justify harsh treatment of
prisoners. Harsh treatment is tantamount to torture.
America's troops and citizens are at greater risk because
of those actions, with terrible repercussions throughout so
much of the world. The searing photographs from Abu Ghraib have
made it harder to create and maintain the alliances we need to
prevail against the vicious terrorists who threaten us, and
those abuses serve as recruiting posters for the terrorists.
The scandal of Abu Ghraib, allegations of mistreatment at
Guantanamo, charges from cases in Iraq and Afghanistan are
serious matters, and to date we have unresolved accountability.
So these hearings are about a nomination, but they are also
about accountability. From the outset of public disclosure of
the Abu Ghraib photographs, the Bush administration maintained
that any wrongdoing was simply a case of a few bad apples. But
as bits of information have been made public not by the
administration but by the press over the last year, it has
become clear to all that these incidents at U.S. facilities
around the world are not just the actions of a few low-ranking
members of the military; rather, in the upper reaches of the
executive branch, a process was set in motion that rolled
forward to produce scandalous results, almost like somebody
opening the floodgates in a dam and the water flowed downstream
until it overwhelmed everybody below.
The Army Field Manual reflects our Nation's long-held
policy toward prisoners. My young son was in the Marines, and
he was called up for Desert Storm, the war that was so quick
that he was not in harm's way. He was taught these things even
as a Marine. But the Army Field Manual reflects our Nation's
long-held policies toward prisoners, and it says, ``The goal of
any interrogation is to obtain reliable information in a lawful
manner. U.S. policy expressly prohibits acts of violence or
intimidation, including physical or mental torture, threats,
insults, or exposure to inhumane treatment, as a means of or to
aid interrogation.''
Now, the policy is in place for a very good reason. The
Field Manual continues, ``The use of torture is a poor
technique that yields unreliable results, may damage subsequent
collection efforts, and can induce the source to say what he
thinks the interrogator wants to hear.'' It also may place U.S.
and allied personnel in enemy hands at greater risk. But senior
officials in the Bush White House, the Ashcroft Justice
Department, and the Rumsfeld Pentagon set in motion a
systematic effort to minimize, distort, and even ignore our
laws, our policies, our international agreements on torture and
the treatment of prisoners. Defense Secretary Rumsfeld and
later Lieutenant General Ricardo Sanchez authorized the use of
techniques that were contrary to both U.S. military manuals,
but also international law. Former CIA Director Tenet requested
and Secretary Rumsfeld approved the secret detention of ghost
detainees in Iraq. They did that so they could be hidden from
the International Committee of the Red Cross. And still
unexplained are instances where the U.S. Government delivered
prisoners to other countries so they could be tortured.
We have to ask, where is the responsibility and
accountability for these abuses? We are the most powerful
Nation on Earth--actually, the most powerful Nation Earth has
ever known--and a country that has great promise. We are
blessed with so much. We are a country that cherishes liberty
and human rights. We have been a beacon of hope and freedom to
the world. Certainly it was that hope and freedom that brought
my grandparents to this country not speaking a word of English,
but coming here for that peace and freedom.
We face vicious enemies in the war on terrorism, but we can
and will defeat them without sacrificing our values or stooping
to their levels. I believe there are several people in the
audience who are themselves survivors of torture committed by
the armed forces and secret police of other countries, which do
not share these values on torture. They continue to struggle to
overcome those horrifying experiences. And we are very
concerned that we not retreat from the high standards against
torture that we have held up to the world in the past.
So these hearings, if I may conclude, are an opportunity at
long last for some accountability for this meltdown of
longstanding U.S. policy on torture. White House Counsel Judge
Gonzales was at the center of discussions on the applicability
of the Geneva Conventions to the wars in Afghanistan and Iraq
and the legality of detention and interrogation methods that
have been seen as tantamount to torture. He oversaw the
formulation of this administration's extreme views of
unfettered executive power and unprecedented government
secrecy.
I hope that things will be different if you are confirmed,
Judge Gonzales. I hope that you will be accessible to members
of this Committee and be more responsive than your predecessor.
I know that the President has asked our incoming Chairman to
proceed expeditiously with these hearings. I have worked with
him over the end-of-the-year break. We have had a lot of calls
back and forth between your home and my farm in Vermont. We
have met several times. And as I told you, we would do
everything possible to help you move forward, and I will.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Leahy.
We will now turn to introductions. We will then hear from
Judge Gonzales, and then we will, in accordance with the
practice of the Committee, with opening statements as
customarily limited to the Chairman and Ranking Member, turn in
order of seniority for 10-minute rounds of questions. I will
observe the 10-minute limitation precisely and will ask other
Committee members to do so, and there will be multiple rounds
so the Committee members will have a full opportunity to
question Judge Gonzales.
We now turn to the Senator from Texas, Senator John Cornyn,
a distinguished and valued member of this Committee, for an
introduction of the nominee.
PRESENTATION OF ALBERTO R. GONZALES, NOMINEE TO BE ATTORNEY
GENERAL OF THE UNITED STATES, BY HON. JOHN CORNYN, A U.S.
SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Thank you, Chairman Specter, for convening
today's hearing and congratulations on your chairmanship.
Chairman Specter. Thank you.
Senator Cornyn. I am pleased to be here today to introduce
Judge Alberto Gonzales to this Committee. He is a talented
lawyer, a dutiful public servant, and a good man. He is a great
Texan and an inspiring American success story, as you, Mr.
Chairman, have already alluded, and I am honored to call him my
friend.
I should also mention that Senator Hutchison, the senior
Senator from Texas, had wanted to be here today to express her
strong support for this nominee but is away due to a pre-
existing commitment, and I would ask that her statement of
support be made part of the record.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Cornyn. I have known Judge Gonzales for many years,
and I can tell you that the media is absolutely right when they
refer to him as the ``Man from Humble.'' For those of you who
are not from Texas, let me explain. He grew up in Humble,
Texas, but it also, I think, attests to the fact that he is a
modest, self-effacing man. The son of migrant workers, his
childhood home, where his mother still lives today, was built
by his father and uncle. And as has already been stated, as a
young man, as a teenager, he sold soft drinks at Rice
University football games and dreamed of one day when he might
possibly attend that great institution.
Judge Gonzales is the first person in his family to have
gone to college. Because of the love and support of his family
and his work and determination, he graduated not just from Rice
University but from Harvard University School of Law, and then
joined a prestigious international law firm where he became one
of its first minority partners. He eventually caught the eye of
a Texas Governor who saw a uniquely talented, yet modest man,
who then appointed him as his general counsel, his Secretary of
State, as a member of the Texas Supreme Court, and then as
White House Counsel.
Judge Gonzales is truly an inspiration to everyone who
still believes in the American dream. And so his nomination as
the Nation's 80th Attorney General, our first Hispanic Attorney
General, should by all accounts have a perfectly happy ending.
But that is not necessarily how Washington works. It appears
that, at least in anticipation of today's hearing, we will see
once again that this confirmation process can be unnecessarily
partisan, even cruel to some who selflessly offer themselves
for public service. I know we will get into the details, but
let me just say that only in Washington can a good man get
raked over the coals for doing his job. This must all be a
little disorienting for one whose very life story testifies to
the fact that America should always be a place where honesty,
diligence, and determination are rewarded, not punished.
Take, for example, the harsh criticism about the Geneva
Convention. Judge Gonzales has been harshly attacked for
advising the President that all detainees be treated humanely,
but that as a legal mater al Qaeda and Taliban fighters are not
covered by the Geneva Convention.
Now, I hate to ruin a good story by the President's
political opponents who are attacking him through this nominee,
but let me just say there is one important point that needs to
be made. Judge Gonzales is absolutely right. You do not have to
take my word for it. First of all, al Qaeda never signed the
Geneva Conventions, but moreover, the Red Cross' own guidelines
state that to be entitled to Geneva protection as a prisoner of
war, combatants must satisfy four conditions: being commanded
by a person responsible for his subordinates; secondly, having
a fixed, distinctive sign recognizable at a distance; number
three, carrying arms openly; and, number four, conducting their
operations in accordance with the laws and customs of war.
Does anyone on this Committee, or anywhere else, for that
matter, seriously argue that al Qaeda terrorists comply with
the law of war?
By the way, it is important to note that Judge Gonzales'
legal advice has also been affirmed by three Federal courts
throughout this country and has also been endorsed by numerous
legal scholars and international legal experts across the
political spectrum, as well as both the 9/11 Commission, by the
way; the final Schlesinger report, an independent report on DOD
detention operations; and a brief filed recently in the United
States Supreme Court by former Carter administration officials,
State Department legal advisers, judge advocates and military
commanders, and liberal international law scholars, who
concluded that ``[t]he President's conclusion that members of
al Qaeda, and the Taliban, are unlawful combatants'' is clearly
correct. Even Washington advocacy director for the Human Rights
Watch, Tom Malinowski, a vocal Bush administration critic, has
grudgingly conceded that the administration's interpretation
was ``probably correct.''
Now, the administration's Geneva position is not just right
as a legal matter. It is also essential as a matter of national
security.
I recently published an op-ed that explained that Geneva
Convention protections to al Qaeda would threaten the security
of our soldiers, dramatically disable us from obtaining the
intelligence needed to prevent further attacks on U.S.
civilians and soldiers, and badly undermine international law
itself, and I would ask, Mr. Chairman, that that be made a part
of the record.
Chairman Specter. Without objection it will be made part of
the record.
Senator Cornyn. Thank you very much.
Just take a look at all the numerous privileges provided by
the Geneva Convention for traditional prisoners of war. For
example, questioners could not entice detainees to answer
questions by offering them creature comforts or even
preferential treatment, even though that is the standard
operating procedure in police stations throughout the United
States. Because the Convention prohibits the holding of
detainees in isolation, al Qaeda fighters would be able to
coordinate with each other in a way that would thwart or could
thwart effective questioning. POW status, even confers broad
combat immunity against current criminal prosecution before
civilian and military tribunals alike.
Mr. Chairman, surely, no member of the Committee or anyone
else on our side of this conflict actually believes that an al
Qaeda terrorist deserves to be treated better than an American
citizen accused of a crime. I certainly would not think so.
President Reagan did not think so, neither did each of his
successors in office. Nearly two decades ago President Reagan
and every President since that time has rejected a proposed
amendment to the Geneva Convention known as Protocol 1 of 1977
to extend that Convention to protect terrorists. As President
Reagan rightly argued we must not and need not give recognition
and protection to terrorist groups as a price for progress in
humanitarian law. Notably even the New York Times and
Washington Post agreed at the time.
All of this support from multiple Federal courts, from the
9/11 Commission, the Schlesinger Report, liberal international
legal scholars, Carter administration officials, even the New
York Times and Washington Post, yet Judge Gonzales is
criticized for taking exactly that same position.
Take one more issue, the Justice Department memos that have
been alluded to here construing the Federal torture statute.
Judge Gonzales is being attacked for a memo he did not write,
interpreting the law that he did not draft. It was Congress,
not Judge Gonzales, that enacted a strict definition of
torture. It was Congress, not Judge Gonzales, that specifically
provided that only specific intent to inflict severe pain or
mental pain or suffering would constitute torture.
As I said, President Bush and Judge Gonzales have both
unequivocally, clearly and repeatedly rejected the use of
torture. But is there anyone here today who would fail to use
every legal means to collect intelligence from terrorists in
order to protect American lives? I certainly hope not.
Finally, I know we are going to hear some about Abu Ghraib
today, we already have, and I think it is safe to say that
everyone agrees that Abu Ghraib represents a shameful episode
in this Nation's history, yet some people actually want to
exploit that tragedy for their own purposes. Abu Ghraib should
be treated seriously, not politically. The Defense Department
has been vigorously investigating the misconduct and
prosecuting the violators. The independent Schlesinger Report
that I alluded to earlier, concluded that, ``No approved
procedures called for or allowed the kinds of abuse that in
fact occurred. There is no evidence of a policy of abuse
promulgated by senior officials or military authorities.'' So
if there is no evidence whatsoever that Judge Gonzales was any
way responsible for the criminal acts that occurred at Abu
Ghraib by a few, why are we talking about this in Judge
Gonzales' confirmation hearing? This after all is a
confirmation hearing to head the Department of Justice, not an
oversight hearing of the Department of Defense.
In conclusion, let me just say, Mr. Chairman, that I am
proud of my friend, Judge Alberto Gonzales. He is the source of
great inspiration and pride to his family and his friends, and
all of us who call the great State of Texas home. Time and time
again Judge Gonzales has done his duty on 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.
So, Mr. Chairman, let me say to you and my colleagues, let
us confirm this good man from Humble. Thank you very much.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Cornyn.
We now turn to newly elected Senator Ken Salazar.
Congratulations, Senator Salazar from Colorado, and we look
forward to your introduction of Judge Gonzales.
PRESENTATION OF ALBERTO R. GONZALES, NOMINEE TO BE ATTORNEY
GENERAL OF THE UNITED STATES, BY HON. KEN SALAZAR, A U.S.
SENATOR FROM THE STATE OF COLORADO
Senator Salazar. Thank you, Chairman Specter, and Ranking
Member Leahy, and Members of the Committee. It is an honor and
a privilege for me to appear before you this morning.
It is also an honor and privilege for me to appear before
you this morning to make an introduction of Judge Alberto
Gonzales. I do so at the invitation of Judge Gonzales. He and I
come from very similar backgrounds. We both understand the
struggles of people as they try to build better lives for
themselves and for their families in America.
In a speech at Rice University, Judge Gonzales recently
recalled his upbringing, and he said, I quote, ``During my
years in high school I never once asked my friends once over to
our home. You see, even though my father pored his heart into
that house, I was embarrassed that 10 of us lived in a cramped
space with no hot running water or telephone.''
In another statement, Judge Gonzales said, ``My father did
not have opportunities because he had only two years of formal
schooling, and so my memories are of a man who had to work six
days a week to support his family. He worked harder than any
person I have ever known.''
From those humble beginnings, Judge Gonzales has excelled
academically and professionally. In my view, Judge Gonzales is
better qualified than many recent Attorneys General. He served
as a member of the Texas Supreme Court, Secretary of State for
the State of Texas, Chief Counsel to the Governor or Texas, and
for the last four years as White House Counsel to the
President. I have known Judge Gonzales from my days as
Colorado's Attorney General. In addition, over the last several
weeks I have met and had several discussions with Judge
Gonzales about his nomination to serve as this Nation's
Attorney General. I believe his decision to reach out to me,
someone who is from a different political party, is an
indication of his interest in working with all of us in making
our homeland more secure, and at the same time protecting our
citizens' rights and liberties.
I have shared with Judge Gonzales my views on a few
priority items I would like to work on with the Justice
Department and with this important Committee under your
leadership. Judge Gonzales has pledged to me his willingness to
work on these issues. Among the issues we discussed are the
following. One, homeland security at the local and State level.
For those of us, such as Senator Sessions and Senator Cornyn,
who have served as Attorneys General, we know the importance of
this issue at the local level. I believe we must do more to
support our State and local law enforcement officials and other
first responders as we take on the most significant national
security challenge of the 21st century, and that is, providing
security for our homeland against the threats of terrorism.
I am pleased that if confirmed as Attorney General, Judge
Gonzales has indicated his willingness to work on this matter,
and will come to Colorado to meet with local and State law
enforcement officials and other first responders, to listen to
their experiences, needs and concerns, and I am certain that he
will do that in other states as well.
Secondly, on the PATRIOT Act, I support the PATRIOT Act and
the necessary reasons for its enactment. I have also expressed
my support for changes to the Act, as have been discussed and
proposed by a bipartisan group of leaders in the Congress.
Judge Gonzales has indicated his willingness to work on this
important matter so that we might better balance out the needs
for national security, while at the same time maintaining the
important fundamental civil liberties of our Nation.
I know that there are other serious questions that this
Committee will explore and ask of Judge Gonzales in these
proceedings. It is appropriate to do so in these confirmation
proceedings. I am hopeful that Judge Gonzales will
satisfactorily address the concerns of the Senate, and I am
hopeful that he will become the next United States Attorney
General for our Nation.
Thank you.
Chairman Specter. Thank you very much, Senator Salazar.
Judge Gonzales, would you now stand for the administration
of the oath? Raise your right hand. Do you solemnly swear that
the testimony you will give before the Senate Judiciary
Committee will be the truth, the whole truth and nothing but
the truth, so help you God?
Judge Gonzales. I swear.
Chairman Specter. Would you begin, Judge Gonzales, by
introducing your beautiful family?
Judge Gonzales. Mr. Chairman, Senator Leahy, distinguished
Members of the Committee.
Chairman Specter. Judge Gonzales, a request is pending for
you to introduce your family before you begin your testimony.
Judge Gonzales. With me here this morning is my beautiful
wife, Rebecca.
Chairman Specter. Ms. Gonzales, would you stand, please?
Judge Gonzales. As well as our three sons, Jared, Graham
and Gabriel.
Chairman Specter. Would you gentlemen please stand? Thank
you.
Judge Gonzales. Also here is my mother, Maria.
Chairman Specter. Thank you.
Judge Gonzales. My brother Tony, who is a 26-year veteran
of the Houston Police Department and a SWAT officer, and my
mother-in-law, Lorinda Turner.
Chairman Specter. Thank you all for standing, and welcome
to these proceedings. Thank you.
Now, Judge Gonzales, we would be very pleased to hear your
opening statement.
STATEMENT OF ALBERTO R. GONZALES, NOMINEE TO BE ATTORNEY
GENERAL OF THE UNITED STATES
Judge Gonzales. Mr. Chairman, Senator Leahy, and
distinguished Members of the Committee, it is the highest honor
of my professional career to appear before you today as the
President's nominee to be Attorney General of the United
States. I owe a debt of deep gratitude to the President for the
trust he has placed in me.
I also want to thank Senator Cornyn for his kind
introduction and for his many years of friendship. Ken Salazar
was sworn in as a United States Senator just two days ago. I
want to thank the Senator for his willingness to extend the
hand of friendship across the political aisle to introduce me
today. Although Senator Hutchison could not be with us today, I
appreciate her many years of support as well.
Mr. Chairman, the highest objective of the Department of
Justice is the pursuit of justice. This noble objective,
justice, is reflected in human terms in the hopeful eyes of a
new citizen voting for the first time; in the quiet gratitude
of a victim of crime whose rights have been vindicated in the
courts; and in the pride of a person given the opportunity to
succeed no matter their skin color or gender or disability. For
justice, properly understood, cannot in my view be divorced
from the individual. It always has a human dimension, and if
confirmed as Attorney General, I pledge that I will always
remember that.
With the consent of the Senate, I will no longer represent
only the White House; I will represent the United States of
America and its people. I understand the differences between
the two roles. In the former I have been privileged to advise
the President and his staff. In the latter I would have a far
broader responsibility: to pursue justice for all the people of
our great Nation, to see that the laws are enforced in a fair
and impartial manner for all Americans.
Wherever we pursue justice, from the war on terror, to
corporate fraud, to civil rights, we must always be faithful to
the rule of law. And I want to make very clear that I am deeply
committed to the rule of law. I have a deep and abiding
commitment to the fundamental American principle that we are a
Nation of laws and not of men. I would not have the audacity to
appear before this Committee today if that commitment were not
the core principle that has guided all of my professional
endeavors.
Our Government's most basic obligation is to protect its
citizens from enemies who would destroy their lives and our
Nation's way of life, and the Department of Justice's top
priority is to prevent terror attacks against our Nation.
As we fight the war on terror, we must always honor and
observe the principles that make our society so unique and
worthy of protection. We must be committed to preserving civil
rights and civil liberties. I look forward, if I am confirmed,
to working with this Committee, the Congress and the public to
ensure that we are doing all we can do so. Although we may have
differences from time to time, we all love our country and want
to protect it, while remaining true to our Nation's highest
ideals, and working together, we can accomplish that goal.
While I look forward to answering your specific questions
concerning my actions and my views, I think it is important to
stress at the outset that I am and will remain deeply committed
to ensuring the United States Government complies with all of
its legal obligations as it fights the war on terror, whether
those obligations arise from domestic or international law.
These obligations include, of course, honoring the Geneva
Conventions whenever they apply. Honoring our Geneva
obligations provide 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.
After the attacks of 9/11, our Government had fundamental
decisions to make concerning how to apply treaties and U.S. law
to an enemy that does not wear a uniform, owes no allegiance to
any country, is not a party to any treaties, and most
importantly, does not fight according to the laws of war.
As we have debated these questions, the President has made
clear that he is prepared to protect and defend the United
States and its citizens and will do so vigorously, but always
in a manner consistent with our Nation's values and applicable
law, including our treaty obligations.
Having said that, like all of you, I have been deeply
troubled and offended by reports of abuse. The photos from Abu
Ghraib sickened and outraged me, and left a stain on our
Nation's reputation. And the President has made clear that he
condemns this conduct, and that these activities are
inconsistent with his policies. He has also made clear that
America stands against and will not tolerate torture under any
circumstances.
I share his resolve that torture and abuse will not be
tolerated by this administration, and commit to you today, that
if confirmed, I will ensure that the Department of Justice
aggressively pursues those responsible for such abhorrent
actions.
Chairman Specter, if I may add a personal note, I want to
congratulate you for your chairmanship of this important
Committee, and I look forward, if confirmed, to the many
occasions that we will discuss the important issues facing our
country in the months and years ahead.
Senator Hatch, I want to thank you for your dedicated
service as Chairman of this Committee, for the good working
relationship we have enjoyed, for all the many kindnesses you
have shown me personally.
I appreciate the good working relationship I have enjoyed
with Senator Leahy during my tenure as Counsel to the
President. I know him to be a person of goodwill and
dedication, and I have great confidence that if I am fortunate
enough to be confirmed, we will build upon that as we reach
across the aisle to work together to serve the American people.
Mr. Chairman, it is a distinct honor to appear before the
Committee today. I appreciate the time and attention that
Members of the Committee and their staffs have dedicated to
this hearing and to consideration of my nomination, and I look
forward to answering your questions, not just at this hearing,
but if I am fortunate enough to be confirmed, in the months and
years ahead as we work together in the noble and high calling
of the pursuit of justice.
Thank you, Mr. Chairman.
[The prepared statement of Judge Gonzales appears as a
submission for the record.]
[The biographical information of Judge Gonzales follows.]
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Chairman Specter. Thank you very much, Judge Gonzales.
We will now begin, as stated earlier, 10-minute rounds, and
I will observe my time limit meticulously, and will ask others
to do the same. Senators necessarily have other obligations,
and will have to move in and out of the hearing room, so that
if it is possible to gage the timing, knowing how long it will
be before their turn is up, it is very useful in arranging
schedules, and there will be ample time, as I have said
earlier, on multiple rounds.
I am advised that there may be some photos used, and
obviously Senators have full latitude on the range of
questioning, but I would ask my colleagues to be sensitive to
photos. There are children present in the room today, and we
are being televised, so that while we want to have all of the
facts and give full latitude to Senators on their rights to
question, we may want to be in Executive Session or we may want
to give children a chance to leave, or take whatever other
precautionary measures that seem appropriate by all concerned
on a consensus of what the Committee thinks ought to be done on
that sensitive subject.
And now, if lights will show to limit my 10 minutes, I will
begin. At the outset of your testimony, Judge Gonzales, you
have already covered the matter, but I think it is important to
have an unequivocal statement and really a repeat of an
unequivocal statement of the position of the administration and
your personal views. Do you approve of torture?
Judge Gonzales. Absolutely not, Senator.
Chairman Specter. Do you condemn the interrogators--and you
already answered this in part--at Abu Ghraib and Guantanamo,
but again, for the record, do you condemn the interrogators'
techniques at Abu Ghraib shown on the widely publicized
photographs?
Judge Gonzales. Let me say, Senator, that as a human being
I am sickened and outraged by those photos. But as someone who
may be head of the Department, I obviously don't want to
provide any kind of legal opinion as to whether or not that
conduct might be criminal, and obviously, if anyone is involved
in any kind of conduct that is subject to prosecution, I would
not want to do anything today to prejudge that prosecution and
jeopardize that prosecution. But obviously, if that conduct
falls within the jurisdiction of the Department of Justice, I
will pursue it aggressively, and you have my word on that.
Chairman Specter. Having some experience in the prosecution
of criminal cases, I do not believe a condemnation of that
conduct would impact on what happens at a later date, but thank
you for your statement of rejection of that and condemnation of
those practices. Do you similarly condemn any similar
interrogation techniques at Guantanamo?
Judge Gonzales. I am not sure of which specific techniques
you're referring to, Senator, but obviously, there is a range
of conduct that would be in clear violation of our legal
obligations, and those I would absolutely condemn, yes, sir.
Chairman Specter. There will obviously be a good bit of
questioning on this subject, and I intend to turn to other
matters and we will come back to the subject in later rounds to
the extent that as Chairman I think further amplification is
necessary, but I do want to move on to what I consider to be
the number one issue facing the country, and that is the issue
of the fight on terrorism and the balancing of civil rights
with some focus on the PATRIOT Act, which we enacted shortly
after 9/11. Starting with the PATRIOT Act, that I had already
commented that we had this wall which precluded law enforcement
from using evidence of crime which had been obtained through
search and seizure warrants under the Foreign Intelligence
Surveillance Act, and now that evidence may be used in a
criminal prosecution. To what extent has that provision and the
other provisions of the PATRIOT Act been of real importance in
our fight against terrorism?
Judge Gonzales. Well, of course, Mr. Chairman, I have not
been at the Department, so I may not know all of the details of
specific successes that the United States and the Department of
Justice have enjoyed as a result of the tools given to us by
the PATRIOT Act, but I am told that they have been very
significant, and that for our career prosecutors, for the U.S.
Attorneys out in the field, they have been very, very
beneficial in allowing our law enforcement personnel to defend
this country.
I believe that in part because of the PATRIOT Act, there
has not been a domestic attack on United States soil since 9/
11.
Chairman Specter. The PATRIOT Act has stimulated the
National Counterterrorism Center, and that is now part of the
new legislation formalized on the National Intelligence
Director, and I will not go into any detail at this time, but I
would urge you to be very diligent there. And this Committee is
going to exercise oversight on that issue because it is my own
view that had we had proper coordination of all the information
prior to 9/11, 9/11 might well have been prevented, and the FBI
has the guiding hand on the National Counterterrorism Center,
and that comes under your purview.
Let me turn now to the issue of the PATRIOT Act aspects
which have been the subject of concern, and legislation is
pending where we have people on both ends of the political
spectrum, those on the right and those on the left on concern.
The Act requires the Court to issue an ex parte order, that is,
on the application of law enforcement for an administrative
subpoena on a showing which is less than the traditional
judicial determination of probable cause, and there has been
concern expressed about access to many records, private
records, illustrated by the concern over library records. Is
there any reason in your judgment, Judge Gonzales, why the
production of those records might not be subjected to the
traditional standard of probable cause before the issuance of
the warrant?
Judge Gonzales. Let me just say, Senator, I am also aware
of a great deal of debate about the provisions of the PATRIOT
Act, and there are concerns about possible infringement of
civil liberties. I welcome that debate. I think that we should
always question the exercise of the power of our Government.
The Founders of this country, that is what motivated, in
connection with the framing of the Constitution, concerns about
the exercise of Government power, and so I am one of those
people that is likewise concerned.
With respect to access to library records, to take a
specific point, obviously you're referring to Section 215 of
the PATRIOT Act. 215 relates to obtaining business records. It
never mentions library records. 215 allows the Government to
obtain certain types of business records, hotel records, credit
card records, rental records, transportation records, in
connection with--it's got to be related to a foreign
intelligence operation. And the Government cannot do that
without first going to a judge. The Government goes to the FISA
Court and obtains a warrant to do that.
Chairman Specter. But there is no requirement for a showing
of probable cause before that judicial order is entered, Judge
Gonzales. And the question is, why can we not have that
traditional probable cause requirement on the obtaining of
those records?
Judge Gonzales. Certainly, Senator, you could do that, but
right now today, a prosecutor could obtain a grand jury
subpoena if it was relevant to a criminal investigation without
meeting that standard, and obtain access to those very same
library records and--
Chairman Specter. But when the prosecutor obtains those
records on a grand jury subpoena--and I have some familiarity
with that--it is subject to judicial supervision. There can be
a motion to quash. I do not want to take up all of our time
there, but we also have the sneak-and-peek issue, and you will
be here to take a look at that when we have hearings on renewal
of the PATRIOT Act, but that is a matter which I think has to
be weighed very carefully in the balance.
Let me turn now to the standards of detention on aliens.
Immediately after 9/11, as the Inspector General's report
showed, some 702 aliens were detained without any showing of
cause, concerned that they might be terrorists, but no real
evidence or indications that they were terrorists. We have seen
the Department of Justice exercise authority after an
immigration judge has ordered the release of an alien, and that
has been upheld by the Board of Review for the Department of
Justice to overrule those two levels of judicial review and
maintain detention. The issue of standards is really of
critical importance, and there has never been a delineation by
the Department of Justice of those standards. At one point
Attorney General Ashcroft testified that it was not sufficient
simply to say ``national security,'' but there had to be some
relationship to the individual on the likelihood of flight or
on the problem of a criminal record or something relating to
the individual.
My yellow light is on now, so I will stop the questioning
before my red light appears, and give you an opportunity to
respond as to your views as to what kind of a standard is
appropriate for the detention of aliens.
Judge Gonzales. Let me just say, by answering the question,
Senator, that I do not support or favor the mistreatment, not
only of aliens, but anyone by the Department of Justice. My
understanding--you have to recall that these actions taken by
the Department were shortly after 9/11. There was a great deal
of concerns that there may be a second wave of attacks. People
didn't know. And so there were undocumented aliens that were
rounded up. I am told is that everyone who was rounded up was
either out of status with respect to their immigration status,
or had criminal charges pending against them. There was an
independent basis to hold these people.
I am aware of the report by the Inspector General. I
haven't reviewed it in great detail. I understand that the
Department has made most of the changes recommended by the IG.
Obviously, it's something that I am concerned about. As to the
specific two cases you mentioned, I'm not aware of the details
of those cases, and as to the standard, quite frankly, Senator,
that would be something I would have to look at and be happy to
get back to you in the event that I am confirmed.
Chairman Specter. Thank you.
Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
First off, I wanted to thank both Senator Salazar and
Senator Cornyn for their introduction. Senator Salazar, a
Democrat, is showing bipartisanship here similar to Senator
Carnahan coming to introduce Attorney General Ashcroft, even
though he is the man who had run against her husband.
I would also note that while al Qaeda does not have POW
protection, Geneva still applies, as Secretary Colin Powell has
stated very emphatically. I do not want to leave the impression
that somehow Geneva does not apply just because it involves al
Qaeda.
I would like to ask you a few questions about the torture
memo that is dated back in August 1st, 2002, signed by
Assistant Attorney General Jay Bybee, and he is now a Federal
Appellate Court Judge. The memo is addressed to you, written at
your request. It is a fairly lengthy memo, and addresses a
memorandum from Alberto Gonzales, Counsel to the President. It
concludes--this is actually the memo here--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. In
August 2002, did you agree with that conclusion?
Judge Gonzales. Senator, in connection with that opinion, I
did my job as the Counsel to the President to ask the question.
Senator Leahy. I just want to know, did you agree--I mean
we could spend an hour with that answer, but I am trying to
keep it very simple. Did you agree with that interpretation of
the torture statute back in August 2002?
Judge Gonzales. If I may, sir, let me try to--I'm going to
give you a very quick answer, but I'd like to put a little bit
of context. Obviously, we were interpreting a statute that had
never been reviewed in the courts, a statute drafted by
Congress. We were trying the interpretation of a standard by
Congress. There was discussion between the White House and the
Department of Justice as well as other agencies about what does
this statute mean? 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.
Senator Leahy. 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. I do not, Senator. That does not represent
the position of the executive branch. As you know--
Senator Leahy. But--
Chairman Specter. Let him finish his answer.
Senator Leahy. But it was the position in 2002--
Chairman Specter. Wait a minute, Senator Leahy. Let him
finish his answer.
Judge Gonzales. 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. We asked the question. That memo
represented the position of the executive branch at the time it
was issued.
Senator Leahy. Well, let me then ask you, if you are going
to be confirmed as Attorney General--and I will accept what you
said--the Bybee memo concludes the President has authority as
Commander in Chief to override domestic and international laws
prohibiting torture, and can immunize from prosecution anyone,
anyone, who commits torture under his act. Whether legal or not
he can immunize them. Now, as Attorney General, would you
believe the President has authority to exercise a Commander in
Chief override and immunize acts of torture?
Judge Gonzales. First of all, Senator, the President has
said we are not going to engage in torture under any
circumstances. And so you're asking me to answer a hypothetical
that is never going to occur. This President has said we're not
going to engage in torture under any circumstances, and
therefore, that portion of the opinion was unnecessary and was
the reason that we asked that that portion be withdrawn.
Senator Leahy. I am trying to think what type of opinions
you might give as Attorney General. Do you agree with that
conclusion?
Judge Gonzales. Sir, I--
Senator Leahy. You are a lawyer, and you have held a
position as a justice of the Texas Supreme Court. You have been
the President's Counsel. You have studied this issue deeply. Do
you agree with that conclusion?
Judge Gonzales. Senator, I do believe there may come an
occasion when the Congress might pass a statute that the
President may view as unconstitutional, and that is a position
and a view not just of this President but many, many Presidents
from both sides of the aisle. Obviously, a decision as to
whether or not to ignore a statute passed by Congress is a
very, very serious one, and it would be one that I would spend
a great deal of time and attention before arriving at a
conclusion that in fact a President had the authority under the
Constitution to--
Senator Leahy. Mr. Gonzales, I would almost think that you
had served in the Senate because you have learned how to
filibuster so well. I asked a specific question. Does the
President have the authority, in your judgment, to exercise a
Commander in Chief override and immunize acts of torture?
Judge Gonzales. With all due respect, Senator, the
President has said we're not going to engage in torture. That
is a hypothetical question that would involve an analysis of a
great number of factors, and the President simply--
Senator Leahy. How about putting it this way: do you think
that other world leaders would have authority to authorize the
torture of U.S. citizens if they deemed it necessary for their
national security?
Judge Gonzales. Senator, I don't know what laws other world
leaders would be bound by. I think it would--I'm not in a
position to answer that question.
Senator Leahy. The only reason I ask this is this memo was
DOJ policy for a couple years. It sat there from sometime in
2002, until just a couple weeks before 2005, late on a Thursday
afternoon, it seems to be somewhat overridden. Of course, that
may just be coincidental since your confirmation hearing was
coming up. Do you think if the Bybee memo had not been leaked
to the press, it would still be--because it had never been
shown to Congress even though we had asked for it--do you think
it would still be the overriding legal opinion?
Judge Gonzales. Sir, that I do not know. I do know that
when it became--it was leaked, we had concerns about the fact
that people assumed that the President was somehow exercising
that authority to engage in torture, and we wanted to clarify
the record that the President had not authorized or condoned
torture, nor had directed any actions or excused any actions
under the Commander in Chief override that might otherwise
constitute torture, and that was the reason that the decision
was made to delete that portion of the opinion.
Senator Leahy. Do you think there is any connection
whatsoever between the policies which actually you had to
formulate regarding treatment and interrogation of prisoners--
policies that were sent out to the Department of Defense and
elsewhere--and the widespread abuses that have occurred? Do you
acknowledge any accountability for such things, any connection?
Judge Gonzales. Senator, as I said in my remarks, I
categorically condemn the conduct that we see reflected in
these pictures at Abu Ghraib. I would refer you to the eight
completed investigations of what happened at Abu Ghraib and in
Guantanamo, and there are still three ongoing. I'm talking
about the Taguba report, the Fay-Jones-Kern Report, the
Schlesinger report, the Navy IG, the Army IG, Jacob, Ryder,
Miller, all of these reports. And if you listened to the press
briefings given in connection with the roll-out of these
reports, they do conclude that with respect to the conduct not
reflected in the photos, not the conduct that we find the most
offensive, but conduct related to pure interrogations, that
there was some confusion--
Senator Leahy. The same reports you talk about say the
Department of Defense relied on the memo. It is quoted
extensively in the DOD Working Group report on interrogations.
That report has never been repudiated. So apparently they did
rely on the memo. Then we find out about the abuses through the
press rather than the administration. Is there any
accountability here anywhere?
You know, as I mentioned earlier, my son was in the
military. He was held to very, very strict standards. He is
trained for combat, held to very, very strict standards. The
vast majority of the men and women in the military are held to
those same strict standards. I am just trying to find out where
the accountability is for this terrible blot that you and I
both agree is a terrible blot on the United States.
Judge Gonzales. I believe that is a very good question,
Senator, and that is why we have these eight completed
investigations and these three pending investigations, while
we've had four hearings involving the Secretary of Defense and
you've had 18 hearings involving the Deputy Secretary, Under
Secretary of Defense, you've had over 40 briefings with the
Congress, because we care very much about finding out what
happened and holding people accountable. Unlike other countries
that simply talk about Geneva, if there is an allegation that
we've done something wrong, we investigate it. We're very
serious about our commitments, our legal obligations in Iraq,
and if people have done things that they shouldn't have done in
violation of our legal obligations, they are going to be held
accountable.
Chairman Specter. Senator Hatch.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Mr. Chairman.
Welcome to the Committee, Judge Gonzales, and your family.
We welcome your family, your wonderful wife, your tremendous
mother, brother, mother-in-law. We are really happy to have all
of you here, and I hope that this will be not too unpleasant a
hearing for you.
You have acted, I think, with the highest honor as the
White House Counsel. I know that because I have worked very,
very closely with you all these years, and I have tremendous
respect for you, not only as a human being, and for your ethics
and high standards, but also as an attorney and as someone who
I believe has tried to give the President the best advice you
and your staff have been able to give.
This is one of the highest positions in our country's
cabinet, in the President's Cabinet. It does require a person
of deep commitment to the principle of equal justice under the
law, and I know that you have that commitment and you will make
it. I have worked so closely with you, I know firsthand the
competency of Judge Gonzales, and that he does believe in equal
justice for all. I also know that you have the ability to make
a very outstanding Attorney General of the United States. Your
whole life has been a success story. You have already had a
distinguished career as an attorney, judge and civil servant.
You made much of the opportunities that you have had by your
education at Rice University and of course the Harvard Law
School.
I think your background and experience enables you to bring
an important set of perspectives to the administration of
justice and the Department of Justice. So I stand ready and
willing to help you, Judge Gonzales, in carrying out your new
responsibilities, and I think the American people would expect
nothing less than equal justice for all people and fair justice
at that.
I see eye-to-eye with you on many issues. We have had our
differences, but in every case where we have had differences,
you have always spoken in a forthright and decent manner, and
you have been willing to discuss the issues with me and I think
others on this Committee. You are going to be asked some tough
questions today, and that is as it should be I suspect.
I think today's hearing is certainly going to dwell to a
large degree on ongoing public policy on that debate on how a
democratic society with a long tradition of protecting civil
liberties should conduct itself when it finds itself threatened
and attacked by terrorist groups and individuals who will stop
at literally nothing to destroy our way of life, and who do not
represent a particular country, do not wear uniforms, do not
abide by international principles, and who really are rogue in
every sense of that term. It is my hope that in addition to
providing an adequate record about Judge Gonzales'
qualifications to serve as Attorney General, one of the
outcomes of today's hearing will be to educate the Committee
and the public about the facts of what actions were taken and
were not taken with respect to the treatment and interrogations
of various classes of individuals who have been detained and
taken into custody by the United States as part of our response
to the horrific 9/11 terrorist attacks on America. You have a
big job ahead, and I personally know that you are capable and
you are up to doing that job very well.
Let me just say, before I ask some questions of Judge
Gonzales, I would just like to take this opportunity to once
again recognize the hard work, the dedication and many
accomplishments of our current Attorney General, John Ashcroft.
He has been a terrific Attorney General. He has done a terrific
job down there, and I think the way crime has come down, and a
lot of other things have happened for the betterment of the
country, frankly, because of his leadership. Frankly, it has
not been lost on me that many of those who are posing here
today are people who have in many respect unfairly vilified the
current Attorney General over the last four years.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
Let me just ask some questions by reviewing some of the key
points with respect to the treatment of detainees. Like most
Americans, I was appalled by the abuses at Abu Ghraib. Some
have stated that the President's February 7th, 2002 memorandum
is somehow responsible for the abuses at Abu Ghraib, at that
prison facility in Iraq. But is it not true that the February
7th, 2002 memorandum actually makes clear that the Geneva
Conventions do apply in both Afghanistan and Iraq?
Judge Gonzales. Senator, I don't recall that the memo
actually talked about Iraq. The President--there was a decision
by the President that Geneva would apply with respect to our
conflict with the Taliban. However, and I believe there's
little disagreement about this as a legal matter, because of
the way the Taliban have fought against the United States, that
they forfeited their right to enjoy prisoner of war legal
protections. There was never any question about whether Geneva
would apply in Iraq. There was no decision for the President to
make. Iraq was a signatory to the Geneva Convention, so there
was no decision for the President to make. There was no
decision by the Department of Justice as to what kind of
techniques should be approved with respect to interrogations in
Iraq, because the understanding throughout the administration
was the Geneva Conventions apply in Iraq.
Senator Hatch. Is it not also true that the President's
February 7th, 2002 memorandum, which is entitled ``Humane
Treatment of al Qaeda and Taliban Detainees,'' also requires
American forces to treat all detainees humanely, regardless of
whether the Geneva Conventions apply; is that not true?
Judge Gonzales. That is correct. 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.
Senator Hatch. That was more than two years ago.
Judge Gonzales. That is correct.
Senator Hatch. Am I correct in my understanding that at no
time did the President authorize the use of torture against
detainees regardless of any of the legal memoranda produced by
various entities of the U.S. Government, including the August
2002 Department of Justice memo, the so-called Bybee memo?
Judge Gonzales. Senator, the 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.
Senator Hatch. And that has never been a problem with
regard to the President or you as his adviser?
Judge Gonzales. Absolutely not, Senator.
Senator Hatch. As Counsel to the President of the United
States, is it your responsibility to approve opinions issued by
the Department of Justice?
Judge Gonzales. No, sir, I don't believe it is my
responsibility, because it really would politicize the work of
the career professionals at the Department of Justice. I know
that some have been critical of my actions in not trying to
force the opinion a certain way, people that are concerned
about certain sections of that opinion, but we have to be very,
very careful here. When you use the White House as a shield, it
can also be used as a sword. It can be used as a sword to force
an opinion, to reach an outcome that would be politically
advantageous to the White House, and we don't want that to
happen. And so I take my responsibilities very seriously in
respecting the role of the Department of Justice given to the
Department by Congress to decide for the executive branch what
the law requires.
Senator Hatch. In fact, the Bybee memo was actually
withdrawn by the Department of Justice in June of 2004; am I
right on that?
Judge Gonzales. The opinion was withdrawn, yes, sir.
Senator Hatch. The Bybee memo was issued, I believe, six
months after the President issued his February 7th, 2002 memo
requiring all detainees to be treated humanely; is that
correct?
Judge Gonzales. That is correct. It has always been the
case that everyone should be--that the military would treat
detainees humanely, consistent with the President's February
order.
Senator Hatch. So that memo did not overrule what the
President's 2002 memo actually said?
Judge Gonzales. Of course not.
Senator Hatch. I think my time is up as well, and I just
want to compliment you. Knowing you personally, and having
served with you, and having worked intimately with you over the
last four years, I want to compliment you for the professional
manner in which you have conducted yourself, and your staff as
well. You have done a terrific job and I just want to let
everybody know how I feel about the job you have done.
Thank you, Mr. Chairman.
Chairman Specter. Thank you.
Senator Kennedy.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman.
Welcome, Mr. Gonzales, and welcome to your family. I will
include, if I could, Mr. Chairman, my opening statement and
comment that recognizes the extraordinary achievements and
accomplishments of the nominee, which are incredibly
impressive.
[The prepared statement of Senator Kennedy appears as a
submission for the record.]
Chairman Specter. Without objection, they will be made a
part of the record.
Senator Kennedy. In that I said, as I mentioned to the
nominee, that he understands full well our responsibilities in
the points of inquiry that we are going to make.
I sit on the Judiciary Committee and also on the Armed
Services Committee, and I was a member of the Armed Services
Committee in the time that all America saw the Abu Ghraib
photos. And just subsequent to that, we, in the Armed Services
Committee, had General Taguba, who did the Taguba report that
was leaked, and we read the report before a copy was actually
provided to the Congress. And immediately the administration
claimed during the hearings that we had with General Taguba,
that the Abu Ghraib was just a few bad apples, there was no
higher level of support or encouragement for the mistreatment
of detainees.
Then we learned that the Defense Department's Working Group
report of April 2003 had provided the broad legal support for
the harsh interrogation tactics, and it dramatically narrowed
the definition of torture, and it recognized the novel defenses
for those who committed the torture. Then we learned that the
legal basis for the Working Group report had been provided by
the Justice Department in the Bybee memo.
Now, that is what has come up from the administration. That
is what has come up, including the President of the United
States. This Committee, the Armed Services Committee has asked
for these memos. We have depended upon what has been leaked,
what has been put on the Internet, and what has been obtained
in the Freedom of Information and by various attorneys. So
there is a certain kind of sense by many of us here that the
administration--and you are the point person on the
administration--has not been forthcoming on the whole issues of
torture, which not just committed at Abu Ghraib, but is
happening today.
The Bybee torture memorandum, written at your request--and
I would be interested in your reactions to this--made abuse of
interrogation easier. It sharply narrowed the definition of
torture and recognized it as new defense for officials who
commit torture. For two years, for two years, from August 2002
to June 2004 you never repudiated it. That is the record, you
never repudiated it. It was written by the CIA's bidding, and
you can clarify that if that is false. We can assume it was
probably provided to the CIA as written. Its principles were
adopted in the Defense Department's Working Group report. I
have it right here, and I will read the identical provisions in
the Bybee report that were put in the Defense Department
Working Group report that has been the document which has been
made available to the Defense Department about how they ought
to view torture. This person assumes that the Bybee report has
already gone to the CIA in his complacency.
Now, according to the Defense Department's own
investigation--you referred to Senator Leahy earlier--as to the
Defense Department, the Working Group report was used to
justify--this is DOD--was used to justify the many abuses that
occurred in Afghanistan and Guantanamo. And according to Fay
and Schlesinger, who testified in the Armed Services Committee,
the abuse of policies and practice in Afghanistan and
Guantanamo migrated to Iraq. You have never repudiated the
Bybee assertion that presidential power overrides all the
prohibitions against torture enacted and ratified. The
President's directive to act humanely was hollow. It was vague.
It allowed for military necessity exception and did not even
apply to the CIA, did not even apply to the CIA. Abuses are
still being reported. And you were warned by Secretary Powell
and other top military leaders that ignoring our longstanding
traditions and rules would lead to abuse and undermine military
culture, and that is what has happened.
I am going to get to how the Bybee amendment was first
written. As I understand, there is the report in the Washington
Post that the CIA asked you for a legal opinion about how much
pain and suffering an intelligence officer could inflict on a
detainee without violating the '94 anti-torture statute, which
I might point out was strongly supported by Ronald Reagan and
Bush I, and passed the Foreign Relations Committee unanimously.
Republicans have been as concerned about torture as Democrats,
and we will get into the various statutes that have been passed
in recent times which would indicate that.
Now, the Post article states you chaired several meetings
at which various interrogation techniques were discussed. These
techniques included the threat of live burial and water-
boarding, whereby the detainee is strapped to a board, forcibly
pushed under water, wrapped in a wet towel and made to believe
he might drown. The article states that you raised no
objections, and without consulting military and State
Department experts. They were not consulted. They were not
invited to important meetings. They might have been important
to some, but we know what Secretary Taft has said about his
exclusion from these. Experts in laws of torture and war prove
the resulting memo gave CIA interrogators the legal blessings
they sought.
Now, was it the CIA that asked you?
Judge Gonzales. Sir, I don't have specific recollection. I
read the same article. I don't know whether or not it was the
CIA. What I can say is that after this war began, against this
new kind of threat, this new kind of enemy, we realized that
there was a premium on receiving information. In many ways this
war on terror is a war about information. If we have
information we can defeat the enemy. We had captured some
really bad people who we were concerned had information that
might prevent the loss of American lives in the future. It was
important to receive that information, and people at the
agencies wanted to be sure that they would not do anything that
would violate our legal obligations, and so they did the right
thing. They asked questions. What is lawful conduct? Because we
don't want to do anything that violates the law.
Senator Kennedy. You asked, at their request--if this is
incorrect, then correct me. I am not attempting, or if there
are provisions in that comment here that are inaccurate, I want
to be corrected. I want to be fair on this. But it is my
understanding, certainly it was in the report, that the CIA
came to you, asked for the clarification. You went to the OLC.
Now, I want to ask you, did you ever talk to any members of the
OLC while they were drafting the memorandum? Did you ever
suggest to them that they ought to lean forward on this issue
about supporting the extreme uses of torture, as reported in
the newspaper?
Judge Gonzales. Sir, I don't ever recall using the term
``leaning forward'' in terms of stretching what the law is.
Senator Kennedy. You talked to the OLC during the drafting
of it?
Judge Gonzales. There is always discussions--not always
discussions, but there often is discussions between the
Department of Justice and OLC and the Counsel's office
regarding legal issues. I think that's perfectly appropriate.
This is an issue that the White House cared very much about to
ensure that the agencies were not engaged in conduct--
Senator Kennedy. What were you urging them? What were you
urging? They are, as I understand, charged to interpret the
law. We have the series of six or seven different laws and
conventions on torture and on the rest of it. They are charged
to develop and say what the statute is. Now, what did you
believe your role was in talking with the OLC and
recommending--
Judge Gonzales. To understand their views about the
interpretation--
Senator Kennedy. Weren't you going to get the document?
Weren't you going to get their document? Why did you have to
talk to them during the time of the drafting? It suggests in
here that you were urging them to go as far as they possibly
could. That is what the newspaper reported. Your testimony is
that you did talk to them but you cannot remember what you told
them.
Judge Gonzales. Sir, I'm sure there was discussion about
the analysis about a very tough statute, a new statute, as I've
said repeatedly, that had never been interpreted by our courts,
and we wanted to make sure that we got it right. So we were
engaged in interpreting a very tough statute, and I think it is
perfectly reasonable and customary for lawyers at the
Department of Justice to talk with lawyers at the White House.
Again, it was not my role to direct that we should use certain
kinds of methods of receiving information from terrorists. That
was a decision made by the operational agencies, and they said
we need to try to get this information. What is lawful? And we
look to the Department of Justice to tell us what would, in
fact, be within the law.
Senator Kennedy. Mr. Chairman, I see my time is going to be
up. What I would like to do is include in the record the Bybee
memorandum and the Defense Department working group report, the
analysis where they use virtually word by word the Bybee
memorandum in the key aspects of the working group report,
which was the basic document which has been the guide to our
military about how they should treat prisoners.
Chairman Specter. Without objection, they will be made part
of the record.
Senator DeWine?
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Thank you, Mr. Chairman.
Judge Gonzales, thank you very much for being with us
today. Judge, every Attorney General is or most Attorneys
General are known for something. Robert Kennedy was known for
his crusade in regard to organized crime, and then, of course,
later on we remember him for civil rights; Attorney General
Barr for his efforts in regard to guns and gangs; Attorney
General Reno, her efforts in regard to children, domestic
violence; Attorney General Thornburgh, internationalization of
crime in the area of drugs, organized crime. We could go on and
on.
Four years from now, what do you want to be remembered for?
Judge Gonzales. Well, Senator--
Senator DeWine. Excluding, if I could, excluding the war on
terrorism.
Judge Gonzales. Senator, I think the Department of Justice
is somewhat unique from other agencies. I'm not sure that an
Attorney General can afford to focus in providing or dispensing
justice in one area to the exclusion of the other. And so I
would hope that certainly at the end of 4 years it would be
said that Al Gonzales did the very best he could, and hopefully
was successful in ensuring that there was justice provided to
Americans all across the spectrum on a wide variety of issues.
It also is my sincere hope that I would be remembered, if I
am confirmed today, as someone who renewed the vitality, the
importance of the work that goes on at the Department of
Justice. I know that there are some--there are wonderful people
who come to work every day, and they come to work with one goal
in mind, and that is the pursuit of justice for all Americans.
And I feel a special obligation, maybe a special, an additional
burden, coming from the White House, to reassure the career
people at the Department and to reassure the American people
that I'm not going to politicize the Department of Justice.
But with respect to specific areas that I probably would
like to have special emphasis on, of course, the first one is
the war on terror. I also, because of my background, believe
very much in the protection of civil rights, the protection of
our voting rights, and the protection of our civil liberties. I
continue to believe that we have far too many drugs in our
society and that should be a focus.
I am concerned about violent crime in our society, and I am
concerned about the use of certain kinds of weapons in
connection with those crimes. I think obscenity is something
else that very much concerns me. I've got two young sons, and
it really bothers me about how easy it is to have access to
pornography.
And so those are a few things that I would be focused on,
but, again, I think the Department of Justice is unique and
that my goal, as impossible as it may be or may seem, is to try
to ensure that justice is administered across the spectrum.
Senator DeWine. Judge, there are never enough resources for
any prosecutor. I was a county prosecutor. We never had enough
resources, or we did not think we did, anyway. You pick and
choose. You make decisions.
The Attorney General has that problem. U.S. Attorneys have
that problem every day. Congress really has not helped; we have
not helped. We have increased the number of Federal crimes. We
keep doing it every Congress. We have mandatory minimums. Most
U.S. Attorneys in recent years have said that the U.S.
Attorneys must charge--most Attorneys General have said that
the U.S. Attorneys must charge the highest possible offenses.
So the local U.S. Attorneys are overworked. They have to,
frankly, pick and choose their cases.
Then we had September 11th, and we had a whole new
emphasis--an emphasis on the war on terrorism. From previous
conversations with your predecessor and with the FBI and with
published documents from the Attorney General's office, it is
clear that the Attorney General and the Justice Department is
not doing some things, not prosecuting certain cases that you
were prosecuting in the past.
How are you going to set your priorities? And how are you
going to deal with the fact that you are not prosecuting some
things that you were prosecuting in the past? For example, you
are not putting the emphasis on drug cases that you were able
to do in the past. And this is not a criticism. I am not saying
if I was Attorney General I would be doing it any differently.
But to be Attorney General is to choose. To be Attorney General
is to make policy. To be Attorney General is to tell every U.S.
Attorney in this country this is what is important and this is
what is not so important.
That is what I am trying to get from you today, and I need
a little more specifics from you, if I could.
Judge Gonzales. Senator, I wouldn't be so arrogant as to
assume today that I have all the information that I would need
to make that kind of--
Senator DeWine. No, but, Judge, you have been in the White
House in a very high position for 4 years. You have been
involved in the justice system for 4 years, and prior to that
at the State level you were intimately involved as well. So you
have a great background for this, and I would like your
comments, sir.
Judge Gonzales. Well, an initial comment I would make is
you talked about the Attorney General being in the role of sort
of a policymaker. As a member of the President's Cabinet, I am
a member of the President's team so that he will have certain
priorities, and obviously his priorities will become my
priorities in terms of policymaking--not in the area of law
enforcement or in prosecutions, but in the area of making
policy.
I think that once again we will have to call upon our
continued cooperation with State and locals in order to
maximize those relationships to ensure that we have sufficient
resources. And I understand that they have the same problem in
terms of lack of adequate resources to prosecute all kinds of
crimes. But I think cooperation not just with State and locals,
I think there needs to be greater cooperation within the
Department itself. There need to be more sharing of information
in order to maximize efficiencies that are possibly there. But,
Senator, I do not have specific ideas today about what kinds of
priorities would exist for me. I spoke earlier about the types
of issues that would have special attraction and appeal to me,
and I suspect that those would be issues that will ultimately
become priorities in a Gonzales Department of Justice, if
confirmed.
Senator DeWine. Well, Judge, I think one of the things that
certainly we look for and certainly I look for from the next
Attorney General is candor. And I think what would be very
helpful is candor to the American people in explaining as the
war on terrorism continues, to explain to the American people
what the Justice Department is not doing and what you do not
have the ability to do anymore so that we can make policy
choices. The Congress and the administration and the American
people can make policy choices and come to Congress and say we
are not doing this anymore, this is an area we cannot do
anymore because of the war on terrorism. And you do not have to
even get into specifics today. I am just asking if you agree
with that and if you will make a commitment to us today that
when you come to this Committee and testify, will you be honest
with us and tell us, Senators, we are not doing this because we
are doing something else?
Judge Gonzales. Absolutely, Senator. I will make that
commitment. Let me tell you that it would be a priority of mine
to not only inform but educate, not only this Committee but the
American people about what the Department is doing and why we
are doing it. There is a great deal of misinformation and
fiction out there about what the Department is doing, and I
think that one of my goals should be to educate and inform this
Committee and the American people about what the Department is
doing and why we are doing it and why what we are doing is, in
fact, lawful.
Senator DeWine. You talked about policy. I understand the
President sets the policy, and that is absolutely true. But
ultimately, you know, whether you call it policy or whatever
you want to call it, the Attorney General and the President,
you are making choices about what the emphasis is.
One final question. I see the light is on. The area of
technology is something that is very near and dear to my heart.
You and I have talked privately about this. I wonder if you
could just give us your commitment that the updating of the
FBI's technology, which we all have heard so much about as
being such a problem, will be one of your priorities and
something that when you come in front of this Committee you
will report to us and that you will give us an accurate
description of how that updating of the FBI's computer systems
and its entire technology is coming. It is something that I
think every member of this panel is very, very concerned about
and every Member of Congress is concerned about.
Judge Gonzales. Absolutely, you have my commitment on that.
Senator, I do know that it is the highest priority for Director
Mueller. I said earlier that the war on terror really is a war
about information. We have to have the most updated technology
in order to gather up that information, to analyze that
information. So you do have my commitment, Senator.
Senator DeWine. I appreciate it, and we need to know when
you don't have the resources to get it done. And, again, in
regard to candor, you have to be candid with us and say we do
not have enough money, we do not have the resources, when you
do not in that area.
Thank you, Mr. Chairman.
Judge Gonzales. I won't be shy about that, Senator.
Chairman Specter. Senator Biden?
STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Biden. Thank you, Mr. Chairman.
In 10 minutes, the core questions I want to ask will
probably occur in the second round, Judge. Let me begin,
though, by saying I congratulate and welcome the new Chairman.
I think that if anyone was made for this job, it is the Senator
from Pennsylvania, who I think is the finest constitutional
lawyer in the country--maybe not the country but in the Senate.
And I welcome his--
[Laughter.]
Senator Biden. Seriously, I think it befits his background
to chair this very difficult Committee, and I wish him well,
and he has my cooperation.
Chairman Specter. Thank you very much, Senator Biden.
Senator Biden. Judge, we sort of got off--I think we got
off on sort of an unusual footing here, and I think that our
colleague in the Committee sort of fired a gun that had not
been shot yet in terming--I do not know anybody who has
announced they are against your being the next Attorney
General. Even those who have doubts say you are going to be
confirmed. And so this is not about the President and his
judgment. It is appropriate for us to understand the President
is not a lawyer. He does not know from shinola about the
treaty. By the way, nor do previous Presidents. Nor do previous
Presidents. That is why they have legal advisers. That is why
they hire brilliant graduates from Harvard Law School and
former judges to advise them. I am being deadly earnest here.
It is not a joke.
So I do not judge the President on whether or not he
supports or did not support torture, he signed off on a memo
that may, in fact, in the minds of many, in fact, constitute
torture, and he says he does not--that is irrelevant here.
And, Judge, this is not about your intelligence. This
hearing is not about your competence. It is not about your
integrity. It is about your judgment, your candor, because you
are going to be making some very difficult decisions as
Attorney General, as every Attorney General has, decisions on
matters we cannot even contemplate now.
When I got here in 1972, the idea that anybody would be
making judgments about cloning was bizarre. Within 4 years, you
are going to make judgments on issues we have not even
contemplated. So I want to know about your judgment. It is your
judgment. And you are going to be the AG. You are not going to
be legal counsel anymore. You are no longer the President's
lawyer. You are the people's lawyer. Your oath is to the people
of the United States. I know you know that.
Judge Gonzales. Yes, sir.
Senator Biden. And, therefore--and this is not a Supreme
Court hearing, although some suggest it foreshadows that. As a
Supreme Court nominee, you could sit there and say, ``I do not
want to comment on that law or interpret it because I may have
to judge it.'' As Attorney General, you are responsible to tell
us now what your judgment is on what the law means. It is your
obligation now for us to be able to assess your judgment, your
legal judgment. You are in no way, as you implied to two other
questioners, you are in no way jeopardizing a future case. That
is malarkey, pure malarkey.
So we are looking for candor, old buddy. We are looking for
you, when we ask you a question, to give us an answer, which
you have not done yet. I love you, but you are not very candid
so far.
[Laughter.]
Senator Biden. And so please do not use this straw man,
``Well, as a future Attorney General, I may not be able to
comment on what that law''--you are obliged to comment. It is
your job to make a judgment before a case is taken. That is
your judgment we are looking at.
And so it seems to me that--and the other point I would
like to raise, because I am only going to get to the questions
in my second round really, is that my good friend from Texas,
he held up three reports that did not say what he said they
said. The three reports he held up that I am aware of, maybe
four, asserting essentially that they confirmed the judgment
that you made in your recommendations to the President of the
United States of America relating to torture and other matters.
Now, the reason why it is appropriate to ask you about Abu
Ghraib is not to go back and rehash Abu Ghraib, but it is
relevant as to whether or not what occurred at Abu Ghraib came
as a consequence of the judgments made and embraced by the
President that were then essentially sent out to the field. The
Schlesinger report that was cited, it finds, ``Lieutenant
General Sanchez signed a memo authorizing a dozen interrogation
techniques beyond standard Army practice, including five beyond
those applied at Guantanamo.'' He did so ``using reasoning from
the President's memo of February 7, 2002.'' So I say to my
friend from Texas, that is why this is relevant.
The very reports cited say that--and I will not go through
them all. The Red Cross report, the Red Cross did not sign off
and say that, you know, the conduct or the recommendations or
the memorandum were, in fact, appropriate. And so I will not go
through it all now, but I will, if we need to, in further
questioning.
So, again, I want to sort of clarify here. This is about
the judgment you have exercised and whether or not the next 4
years the judgment you are going to give a President, which he
understandably should rely upon--this is not a man who has your
legal credentials. That is why he has you, to make a
recommendation to him. And it is appropriate for him to accept
that recommendation unless on its face an average citizen or an
informed President who is not a lawyer would say, no, that
cannot make any sense.
So that is why we are worried about this. That is what this
is about. And there is sort of--there is a split here in the
Congress, there is a split in the country about what is
appropriate in this time of dire concern about terror.
You know, there is that play we have all seen, ``A Man for
All Seasons,'' and there is an exchange in there where Sir
Thomas More is engaging Roper, and Roper says--a young man came
to seek a job, and he said, ``Arrest him. He means you harm.''
And he said, ``He has broken no law.'' And Roper said, ``But he
means you harm.'' And if my recollection is correct, you have
Thomas More turning to Roper and saying, ``This country is
planted thick with laws, coast to coast, man's laws not God's,
and if you cut them down, Roper, as you would, what will you do
when the devil turns 'round on you? Yes, I give the devil
benefit of law for my own safety's sake.''
That is the fundamental principle we debate among ourselves
here, no matter how you cut it. And that is what the debate
that took place on these torture memos between Taft and Yoo. I
have a copy of the report, the memo sent by the Secretary of
State to you all on February 7th, which I am not going to make
public. But in that memo, he takes significant issue with the
recommendations coming out of your shop, and Mr. Yoo's. And he
ends by saying, ``Let's talk. We need to talk.'' And he goes
into great detail, as other reports do. Powell
contemporaneously on the 7th says basically--and I have the
report right here. He says basically, look, you go forward with
the line of reasoning you guys are using, and you are going to
put my troops, my former troops, in jeopardy. This is about the
safety and security of American forces. And he says in here,
``What you are doing is putting that in jeopardy.'' You have
the former head of JAG, the top lawyer in the United States
military, saying, Hey, man, this is way beyond the
interrogation techniques you are signing off, way beyond what
the manual, the military manual for guidance of how to deal
with prisoners says.
And so the point I am trying to make here--and I will come
back with questions, if I have any time--well, I do not have
any time. This is important stuff because there was a
fundamental disagreement within the administration. And based
on the record, it seems to me, although it may not be totally--
it may not be dispositive, your judgment was not as good as the
judgment of the Secretary of State. Your judgment was not as
good or as sound as the chief lawyer from the JAG. Your
judgment was not as sound. And the question I want to debate
about is the judgment. How did you arrive at this, different
than these serious people like you who thought what you were
doing, recommending to the President in the various memos, was
jeopardizing the security of American troops? And that is what
I want to get back to, but I want to explain to the public and
anybody listening. This is not about your integrity. This is
not a witch hunt. This is about your judgment. That is all we
are trying to do.
And so when I get to ask my questions, I hope you will be
candid about it because--not that it is relevant--I like you. I
like you. You are the real deal.
Chairman Specter. Senator Biden, your red light is on.
Senator Biden. My red light is on.
[Laughter.]
Senator Biden. Thank you.
Chairman Specter. Judge Gonzales, while Senator Biden is
awaiting round two to formulate a question--
[Laughter.]
Chairman Specter. --I think you ought to be given an
opportunity to respond to Senator Biden's observations and
implicit, perhaps, two dozen questions. So the floor is yours.
Judge Gonzales. Senator Biden, when you are referring to
the Powell memo, I'm not sure which memo you're referring to.
And I presume you're referring--
Senator Biden. Let me give you a copy of it. For the
record, Mr. Chairman, it is dated January 11, 2002, to John Yoo
from William Taft, Legal Adviser, and there is overwhelming
evidence that you saw it. There was discussion about it, and
that is what I am referring to.
Judge Gonzales. There was a great deal of debate within the
administration, as that memo partly reflects, about what was
legally required and perhaps a policy judgment to be made by
the President. And the fact that there was disagreement about
something so significant I think should not be surprising to
anyone.
Senator Biden. Of course not.
Judge Gonzales. Of course not. And reasonable people can
differ.
In the end, it is the Department of Justice who is charged
by statute to provide the definitive legal advice on behalf of
the executive branch to the President of the United States.
What I can tell you--
Senator Biden. With due respect, that does not matter. I do
not care about their judgment. I am looking at yours.
Judge Gonzales. Sir, of course, I convey to the President
my own views about what the law requires, often informed by
what the Department of Justice says the law is, because, again,
by statute you have conferred upon them that responsibility.
I can tell you that with respect to the decision the
President ultimately made, everyone involved, including the
Secretary of State, including the Chairman of the Joint Chiefs,
all of the principals who had equities in the decision about
the application of Geneva had an opportunity to present their
views and their concerns directly to the President of the
United States, and he made a decision.
Chairman Specter. Thank you, Judge Gonzales.
Senator Kyl had to depart earlier this morning for his
leadership role on a congressional delegation going to Israel,
so he will not be with us today and I wanted to put that
explanatory note in the record.
Senator Sessions?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I would like to
join in congratulating you on this office, and you are uniquely
qualified and capable of handling this docile Committee which
you inherited.
Chairman Specter. Thank you.
Senator Sessions. Judge Gonzales, I would like to get a few
things straight here. I spent 15 years in the Department of
Justice and several years as an Attorney General of the State
of Alabama, and I have some appreciation for the different
roles that are involved here.
You are Counsel to the President of the United States. Is
that correct?
Judge Gonzales. That is correct, Senator.
Senator Sessions. You did not supervise the Department of
Justice, did you?
Judge Gonzales. That is correct, Senator.
Senator Sessions. You were not senatorially confirmed.
Judge Gonzales. That is correct, Senator.
Senator Sessions. And you just work for the President and
give him advice whenever he asks for it and help provide him
assistance whenever he asks you to do so.
Judge Gonzales. And I will just add--that is correct,
Senator. I will also add that with respect to significant legal
decisions that the President has to pass judgment on, my advice
is always influenced and it always is--well, it is informed by
the advice given to me by the Department of Justice.
Senator Sessions. Now, the Department of Justice under the
Judiciary Act of 1789 is empowered by statute to issue opinions
on various questions of law.
Judge Gonzales. That is correct, Senator.
Senator Sessions. And they have an Office of Legal Counsel.
Judge Gonzales. Yes, sir.
Senator Sessions. That really specializes in that on behalf
of the Attorney General.
Judge Gonzales. The Office of Legal Counsel has been
delegated by regulation the authority of the Attorney General
to provide legal advice to the executive branch.
Senator Sessions. Now, the President of the United States
is executing a war on terrorism after 3,000 of our people have
been killed by what can only be described as unlawful
combatants. And it is a difficult, tough time, and you were
concerned and the President was deeply concerned that there may
be other groups of unlawful combatants, saboteurs that were in
the United States planning further attacks to kill more
American citizens. And that is the way it was, isn't it?
Judge Gonzales. The President was very concerned about
protecting this country from future attacks and doing
everything that we could do within the law to protect this
country from future attacks.
Senator Sessions. And in the course of all of that,
agencies that we had out there, their lives at risk--the
military and other agencies--to serve our people, to protect
our people, asked the President what the law was with regard to
their rights and duties and responsibilities of interrogating
people they have apprehended. That came to your attention, I
guess, as Counsel to the President.
Judge Gonzales. My understanding is that people in the
agencies were very concerned about--they understood that they
had a direction from the President to do what they could to
protect this country within the limits of the law, and they
wanted to clearly understand what those limits were.
Senator Sessions. And so you did not undertake to give them
an off-the-cuff opinion, as Senator Biden suggests you ought to
be able to do today on any question he would desire to ask you,
I suppose.
Judge Gonzales. I hope not, Senator. I have been
criticized, quite frankly, for going too much to the Department
of Justice and making sure that the legal advice we give to the
President is the right advice. That is very important to me. I
understand that the Office of Legal Counsel, they have the
expertise, the institutional history, the institutional
knowledge about what the law is. And so I have a great deal of
respect for that office and rely upon that office in the advice
that I give to the President of the United States.
Senator Sessions. And it is staffed with career people who
have dealt with these issues for many, many years, certainly,
and when this issue arose, I think you did the absolutely
proper thing. You asked the entity of the United States
Government that is charged with the responsibility of making
those opinions, you asked them to render an opinion.
Judge Gonzales. Absolutely, Senator. We want to get it
right. It also provides, quite candidly, as the lawyer for the
President, protection for the President. We want to make sure
the President does not authorize or somehow suggest conduct
that is unlawful. And so I felt that I had an obligation as a
prudent lawyer to check with the professionals at the
Department of Justice.
Senator Sessions. Well, I think you did, and I think that
was the first step.
Now, it has been suggested that this was your opinion, that
it is your opinion, you asked for this opinion, as if you asked
for them to say precisely what they said. You asked for them to
give an opinion on the legal question involved. You did not ask
them to give an opinion that you wanted. Is that correct?
Judge Gonzales. As I said in my earlier testimony, there
was give-and-take. There were discussions about the opinion,
but ultimately the opinion represents the position of the
Department of Justice. And as such it's a position that I
supported at the time.
Senator Sessions. And there is no doubt in anyone's mind,
the Office of Legal Counsel or the Attorney General, that that
opinion was one that they worked on, that they debated
internally, and when they put their name on it, it was their
opinion. Isn't that correct?
Judge Gonzales. It was the work of the Department of
Justice and, again, reflected the position of the executive
branch.
Senator Sessions. The official position. Now, the President
of the United States--well, let me follow this up: Having been
an Attorney General and been involved in the Department of
Justice as a part of the executive branch, as you were part of
the executive branch, and lawyers in the Department of Justice
have to be very careful, do they not, when they issue an
opinion that they are not circumscribing legitimate
constitutional powers that belong to the executive branch. And
they are going to be careful not to render an opinion that
would remove constitutional powers that the President
legitimately has.
Judge Gonzales. That is correct. But my view about the
Office of Legal Counsel is to call them as they see them, I
mean, interpret the law and give us their best judgment about
what the law is.
Senator Sessions. Well, I agree with that. But once this
opinion came in from the Office of Legal Counsel and the
President and you, I am sure, reviewed it, he issued some
orders, it seemed to me, that were far less expansive than the
authority the Legal Counsel said he had.
Judge Gonzales. Well, I am not sure which orders you might
be referring to. Let me emphasize for the record that the
President was not involved personally in deciding which kinds
of methods could be used to question terrorists who might have
information that might save American lives. The President was
not involved personally in connection with that.
What he expected and what he deserved--and I think what he
got--was people within the administration trying to understand
what the law was and conforming their conduct to legal
requirements.
Senator Sessions. And the opinion of the Department of
Justice Legal Counsel really isn't policy, is it? It is just
the opinion of the Office of Legal Counsel.
Judge Gonzales. At the end of the day, again, as I
described to you, I expect the Office of Legal Counsel to give
me their best judgment, their best interpretation of what the
law is.
Senator Sessions. And the President sets the policy based
on his judgment after having received that advice?
Judge Gonzales. That is correct.
Senator Sessions. Now, with regard to al Qaeda, I do not
think there is anyone on this Committee, on either side of the
aisle, that would say that al Qaeda represents a lawful
combatant that is, therefore, entitled to the full protections
of the Geneva Conventions, would they? I mean, that is pretty
well undisputed that they are not representatives of an
organized state and that they do not carry arms openly and that
they do not--and they clearly do not follow the laws of warfare
in the surreptitious methods by which they bomb innocent
civilians?
Judge Gonzales. Senator, that is correct. Senator Biden
spoke earlier about my judgment. My judgment was based on just
reading the words of the Geneva Conventions is that it would
not apply to al Qaeda. They weren't a signatory to the
Convention and, therefore, it didn't seem to me that they could
be--our conflict with al Qaeda could be covered. But
obviously--
Senator Sessions. And that would--
Judge Gonzales. The decision by--if I might just interrupt
you, the decision by the President as to the fact that Geneva
would not apply was not just based upon my judgment. That was
the considered judgment of the Department of Justice.
Senator Sessions. And it was clearly correct and clearly
consistent with Ex Parte Quirin, the Supreme Court case during
World War II.
Judge Gonzales. That is correct, sir.
Senator Sessions. President Roosevelt captured some German
saboteurs inside the United States and had a trial or a hearing
in the Department of Justice or the FBI building and executed
them. I do not think the public even knew about it until after
they had been executed. So an unlawful combatant is a different
matter.
Now, in Iraq, you have said the Geneva Conventions would
apply, basically, as I understand it.
Chairman Specter. Senator Sessions, your red light is on,
but if you would go ahead and finish your sentence.
Senator Sessions. And truth be known, a number of those
people involved in Iraq really should not qualify, but the
President has really gone further than the law requires, it
seems to me, in granting them privileges that he did not
necessarily have to do as a matter of effecting his policy of
humane treatment.
Judge Gonzales. Senator, I think the administration--it is
more accurate to say that the administration policy is and
always has been that in our conflict with Iraq, Geneva does
apply and we are bound by the requirements of the Geneva
Convention. Iraq is a signatory to the Geneva Conventions, and
there were never any question, any debate that I'm aware of as
to whether or not Geneva would apply with respect to our
conflict in Iraq.
Senator Sessions. But the Zarqawi people do not strictly
qualify, in my opinion, as a lawful combatant.
Chairman Specter. Senator Kohl?
STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Kohl. Thank you very much, Mr. Chairman, and I too
want to congratulate you on your ascension to the chairmanship
of this Committee.
I have had the privilege of working with Senator Specter
now for well over a dozen years, and I can attest to his skill
and his perspective that I believe will enable us to proceed in
an orderly and in a collaborative fashion.
Chairman Specter. Thank you.
Senator Kohl. I also would like to welcome you to this
Committee, Mr. Gonzales. As you know, we have had an
opportunity to work together on several different issues over
the years, and I have come to respect you also. And I believe
if you are confirmed that you will do a good job as Attorney
General of the United States.
Judge Gonzales. Thank you, Senator.
Senator Kohl. Judge Gonzales, the 9/11 Commission's report
recognized that winning the hearts and the minds of the Arab
world is vital to our success in the war on terror. Photographs
that have come out of Abu Ghraib have undoubtedly hurt those
efforts and contributed to a rising tide of anti-Americanism in
that part of the world. Secretary of State Colin Powell and
others raised concerns about the decision not to apply the
Geneva Conventions, some even suggesting that it could well
undermine U.S. military culture. And we now know that those
concerns in large part or significantly were well founded.
When drafting your recommendations for the President on the
application of Geneva Conventions, did you ever consider the
impact that this could have on winning the hearts and minds of
the Arab world in the war on terror? And in light of what has
happened, if you could make the recommendation all over again,
would you do something different than what you did?
Judge Gonzales. Senator, that is a very good question and
thank you for asking that. I think the decision not to apply
Geneva in our conflict with al Qaeda was absolutely the right
decision for a variety of reasons. First of all, it really
would be a dishonor to the Geneva Convention. It would honor
and reward bad conduct. It would actually make it more
difficult, in my judgment, for our troops to win in our
conflict against al Qaeda. It would limit our ability to
solicit information from detainees. It would require us to keep
detainees housed together where they could share information,
they could coordinate their stories, they could plan attacks
against guards. It would mean that they would enjoy combat
immunity from prosecutions of certain war crimes. And so for a
variety of reasons, it makes absolutely no sense.
In addition to that, Senator, it is contrary to decades of
executive branch position. There was an attempt in 1977,
Protocol 1, to provide prisoner of war legal status to
terrorists. Now, that protocol included some wonderful
humanitarian provisions dealing with extraditions and hostages
and things of that nature. But the United States, and many
other countries, never ratified that protocol, and the reason
is because the protocol arguably provided prisoner of war legal
status to terrorists. And so it has been the consistent
executive branch position since then that we are not going to
do that because it hurts our soldiers. It is contrary to the
spirit of Geneva to do so. And so I do believe the decision by
the President was absolutely the right thing to do.
Now, that's not to say that we don't--that we are not--that
we don't operate without legal limitations and that we don't
treat people consistent with our values as Americans. The
President was very clear in providing directives that even
though Geneva would not apply as a matter of law, we would
treat detainees humanely and subject to military necessity and
as appropriate, consistent with the principles of Geneva.
In my judgment, there has been a very strong attempt to do
so at Guantanamo. There has been never any question, as I said
in response to earlier questions, about whether or not Geneva
should apply in Iraq. That's always been the case.
Do I regret the abuses at Abu Ghraib? Absolutely. I condemn
them. Do I believe that they may have hurt us in winning the
hearts and minds of Muslims around the world? Yes. And I do
regret that. But one of the ways we address that is to show the
world that we do not just talk about Geneva, we enforce Geneva.
And so as I said in response to an earlier question, that's why
we're doing these investigations. That's why you have these
military court martials. That's why you have these
administrative penalties imposed upon those responsible,
because we want to find out what happened so it doesn't happen
again. And if someone has done something wrong, they're going
to be held accountable.
Senator Kohl. Well, let me ask you, do you think that what
happened at Abu Ghraib was just spontaneous, or do you think
that those relatively low-level perpetrators got some sort of a
sign from people above them who got signs from people above
them that these things would be tolerated? What is your
opinion?
Judge Gonzales. Well, we don't know for sure. First of all,
I'm not--I haven't conducted an independent investigation. We
know eight have been completed. There are at least three
ongoing. We know that the Congress is conducting--you know,
through hearings and briefings, they're looking at this as
well.
As I listened to the briefings of Schlesinger and Faye and
Kearns and people like that about their findings and their
reports, they divide up the abuses into two categories. One
category is the violent physical abuse and sexual abuse. That
is the first category. And the second category are abuses
related to interrogations and gathering intelligence, stem from
confusion about what the policies and the strictures were.
As to the first category, as I read the briefings, they all
seem to conclude that what you see in the pictures, the most
horrific of the abuses that we see, the ones that we all, you
know, condemn and abhor, those do not relate to confusion about
policies. Those were not related to interrogations or confusion
about how much you could--what you could do in terms of
gathering intelligence. This was simply people who were morally
bankrupt trying to--having fun, and I condemn that.
As to the second category, the reports seem to indicate
that there was migration. There was migration between what
happened in Guantanamo. You had people and standard operating
policies that migrated from Guantanamo to Afghanistan and then
into Iraq. And so there was some confusion about what were the
appropriate standards to use in connection with interrogations
and in connection with intelligence gathering.
However, as I read the briefings and the reports, they seem
to indicate that the reason that the abuses occurred was not
because of some decision back in 2001 or 2002, but because of
the fact that you had a prison that was outmanned, under-
resourced, and focused on fighting an insurgency, and they
didn't pay enough attention to detainee operations. There
wasn't adequate supervision. There wasn't adequate training
about what the limits were with respect to interrogation.
That's how I read the findings and conclusions of some of these
reports.
But it's not done yet. Again, there are still ongoing
investigations. And so we'll have to wait and see--
Senator Kohl. That would seem to indicate, although we will
see what happens, that people above the level of those who
committed the atrocities are likely--and we will see what
happens--to escape being held accountable. We will see what
happens. I know you and I cannot know that right now, but I
think I am getting a drift from you that those people who
committed the atrocities were acting on their own. There really
wasn't anybody at a higher level who understood and approved or
at least condoned, and the accountability should be held at
that level.
I think the American people, by and large, Judge Gonzales,
believe that accountability should at least be focused on
people above the level of those at that level who committed the
atrocities. What do you think, Judge Gonzales?
Judge Gonzales. I believe that people should be held
accountable. I do think--and perhaps I misspoke in describing
how I reviewed the briefings and how I read the reports. The
reports seem to indicate that there was a failure, there was a
failure of discipline amongst the supervisors of the guards
there at Abu Ghraib, and also they found that there was a
failure in training and oversight at multiple layers of Command
Joint Task Force 7. And so I think there was clearly a failure
well above the actions of the individuals who actually were in
the prison. At least that's what the reports seem to indicate,
as I review them.
Senator Kohl. Finally, Attorney General Ashcroft said that
he does not really believe in torture in the sense that it does
not produce anything of value. He has said that on the record.
Do you agree with that?
Judge Gonzales. Sir, I don't have a way of reaching a
conclusion on that. All I know is that the President has said
we are not going to torture under any circumstances.
Senator Kohl. Well, do you believe that the policy is a
correct one, that we never should have had any torture at
Guantanamo or at Abu Ghraib among other reasons because it
really does not produce anything of value?
Judge Gonzales. Sir, the United States has never had a
policy of torture.
Senator Kohl. I thank you, Mr. Chairman.
Chairman Specter. Senator Graham?
STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. SENATOR FROM THE
STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman. Congratulations--I
think--for chairing this Committee.
Monday morning quarterbacking is part of a democracy, so
just bear with us because what we are trying to do is figure
out how to correct mistakes. Now, I am a very ardent supporter
of the war. I really do believe if you are going to win the war
on terror, you take dictatorships like Saddam Hussein, who was
part of the problem, and you give people who lived under his
oppression a chance to be free. That is not easy, and I believe
we made mistakes along the way.
But one of the reasons that we are talking about this has a
lot to do with your confirmation, but really not. I think we
have dramatically undermined the war effort by getting on a
slippery slope in terms of playing cute with the law because it
has come back to bite us. Abu Ghraib has hurt us in many ways.
I travel throughout the world like the rest of the Members of
the Senate, and I can tell you it is a club that our enemies
use, and we need to take that club out of their hands.
Guantanamo Bay, the way it has been run, has hurt the war
effort. So if we are going to win this war, Judge Gonzales, we
need friends and we need to recapture the moral high ground.
And my questions are along that line.
To those who think that you can't win a war with the Geneva
Convention applying, I have another role in life, I am a judge
advocate. I am a reserve judge in the Air Force. I have never
been in combat. I had some clients that probably wanted to
kill, but I have never been shot at. But part of my job for the
last 20 years, along with other judge advocates, is to advise
commanders about the law of armed conflict. And I have never
had a more willing group of people to listen to the law,
because every Air Force wing commander lives in fear of an air
crew being shot down and falling into enemy hands. And we
instill in our people as much as possible that you are to
follow the law of armed conflict because that is what your
Nation stands for, that is what you are fighting for, and you
are to follow it because it is there to protect you.
Now, to Secretary Powell, he took a position that I
disagreed with legally but in hindsight might have been right.
I agree with you, Judge Gonzales, that to give Geneva
Convention protection to al Qaeda and other people like al
Qaeda would in the long run undermine the purpose of the Geneva
Convention. You would be giving a status in the law to people
who do not deserve it, which would erode the Convention.
But Secretary Powell had another role in life, too. He was
a four-star general and Chairman of the Joint Chiefs. And to
those who think that the Geneva Convention is a nicety or that
taking torture off the table is naive and a sign of weakness,
my answer to them is the following: that Secretary Powell has
been in combat, and I think you weaken yourself as a nation
when you try to play cute and become more like your enemy
instead of like who you want to be. So I want to publicly say
that the lawyers in the Secretary of State's office, while I
may disagree with them and while I may disagree with Secretary
Powell, were advocating the best sense of who we are as people.
Now, having said that, the Department of Justice memo that
we are all talking about now was, in my opinion, Judge
Gonzales, not a little bit wrong but entirely wrong in its
focus because it excluded another body of law called the
Uniform Code of Military Justice. And, Mr. Chairman, I have
asked since October for memos from the working group by Judge
Advocate General representatives that commented on this
Department of Justice policy, and I have yet to get those
memos. I have read those memos. They are classified, for some
bizarre reason. But, generally speaking, those memos talk about
that if you go down the road suggested, you are making a U-turn
as a nation, that you are going to lose the moral high ground,
but more importantly, that some of the techniques and legal
reasoning being employed into what torture is, which is an
honest thing to talk about--it is okay to ask for legal advice.
You should ask for legal advice. But this legal memo I think
put our troops in jeopardy because the Uniform Code of Military
Justice specifically makes it a crime for a member of our
uniformed forces to abuse a detainee. It is a specific article
of the Uniform Code of Military Justice for a purpose because
we want to show our troops, not just in words but in deeds,
that you have an obligation to follow the law.
And I would like for you to comment, if you could, and I
would like you to reject, if you would, the reasoning in that
memo when it came time to give a tortious view of torture. Will
you be willing to do that here today?
Judge Gonzales. Senator, there is a lot to respond to in
your statements. I would respectfully disagree with your
statement that we're becoming more like our enemy. We are
nothing like our enemy, Senator. While we are struggling
mightily to try to find out what happened at Abu Ghraib, they
are beheading people like Danny Pearl and Nick Berg. We are
nothing like our enemy, Senator.
Senator Graham. Can I suggest to you that I did not say
that we are like our enemy, that the worst thing we did when
you compare it to Saddam Hussein was a good day there. But we
are not like who we want to be and who we have been. And that
is the point I am trying to make, that when you start looking
at torture statutes and you look at ways around the spirit of
the law, you are losing the moral high ground. And that was the
counsel from the Secretary of State's office, that once you
start down this road, it is very hard to come back. So I do
believe we have lost our way, and my challenge to you as a
leader of this Nation is to help us find our way without giving
up our obligation and right to fight our enemy.
And the second question--and then I will shut up--is
Guantanamo Bay. The Supreme Court has rejected this
administration's legal view of Guantanamo Bay. I believe it is
a legal chaos down there and that it is not inconsistent to
have due process and aggressively fight the war on terror.
Nobody wants to coddle a terrorist, and if you mention giving
rights to a terrorist, all of a sudden you are naive and weak.
I can assure you, sir, I am not naive and weak.
Judge Gonzales. Thank you, Senator.
With respect to Guantanamo Bay, it is correct that in the
Rasul decision the Supreme Court did disagree with the
administration position. We felt, reading Supreme Court
precedent in Johnson v. Eisentrager, that a non-American enemy
combatant held outside the United States did not have the right
to file a habeas challenge.
Senator Graham. It is a correct position to take, but you
lost. Now here is my question: What do we do now that you lost?
Judge Gonzales. We have implemented a process to provide
the opportunity for people at Guantanamo Bay to know of the
reasons they're being detained and to have a meaningful
opportunity to contest the factual basis of their detention
before a neutral decisionmaker, all in accordance with the
decision in Hamdi.
Senator Graham. How is that being worked? Who is working on
that?
Judge Gonzales. That is being worked through Secretary
England, and they have assumed responsibility for--the Navy has
assumed responsibility for standing at the combatant status
review tribunals, and I can't tell you today where we are in
the process, but we are providing a level of process which we
believe meets the requirements set out by the Supreme Court.
Senator Graham. Okay. I would like to be informed, if
possible, in an appropriate way what the executive department
is doing to fill in that gap. I do not know if we need
legislative action. But the reason I am going to vote for you
is because I think I have followed this information enough to
know that you are a good lawyer, you ask good questions, and it
was ultimately the President's decision. And I think he was
right. I think Geneva Convention protection should not be
applied to terrorists.
I think humane treatment is the way to go, the only way
that we can win this war. My problem is that the DOJ memo was
out there for two years, and the only people I can find that
spoke against it were professional military lawyers who are
worried about our own troops. I want you to get that memo, and
if we need three rounds, we will do three rounds. But I would
like to get you to comment, if you could.
Is my time up?
Chairman Specter. Almost.
Senator Graham. Okay. Comment if you could. Do you believe
that a professional military lawyer's opinion that this memo
may put our troops in jeopardy under the Uniform Code of
Military Justice was a correct opinion?
Judge Gonzales. Would you like me to try to answer that
now, Mr. Chairman?
Chairman Specter. Yes. Judge Gonzales, the question is
pending.
Judge Gonzales. And the question is do I believe that the
military lawyer's judgment that--
Senator Graham. The techniques being espoused in the memo
may put our troops at jeopardy under the Uniform Code of
Military Justice. And if you want to take some time, that is
fine.
Judge Gonzales. Thank you, Senator.
Senator Graham. I mean I want sometime later for you to
answer that question, but you do not have to do it right now.
Chairman Specter. Do you want to think it over, Judge
Gonzales and respond later?
Judge Gonzales. I do. Thank you, Mr. Chairman.
Chairman Specter. Later during the hearing, that is fine.
Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. I too want to congratulate you, Mr.
Chairman. I have long admired your thoroughness and your
independence and your judgment, and I do look forward to
working with you and all the members of the Committee again. I
particularly appreciate the fact that you kicked off the
questioning today by using a lot of your time to talk about the
need to carefully look at certain provisions of the USA PATRIOT
Act, which of course, I agree we need to do, and I am looking
forward to a bipartisan effort to do it.
You were specific about concerns about the so-called
library records provision, Section 215, and the sneak-and-peek
provisions. Those are some of the ones that need that kind of
review. And I want to make it clear in the record, because it
sounded like the nominee was suggesting that somehow Section
215 does not apply to library records. It does in fact apply to
library records. Apparently the nominee agrees.
Judge Gonzales. I do agree.
Senator Feingold. I just want to say that the previous
Attorney General referred to librarians in this country as
being hysterical in their concern with regard to this. They
were not hysterical about it, and it does need the kind of
review that the Chairman has called for. I think it could be a
great moment for the Senate when we take up this legislation
and look at the problems with it and come together to fix it,
and I thank the Chairman for that.
Welcome, Judge Gonzales, and congratulations on your
nomination. In accepting the President's nomination to be
Attorney General you said the American people expect and
deserve a Department of Justice guided by the rule of law. I
could not agree with you more. One of the things we as Senators
must decide in considering your nomination is whether as
Attorney General you will give the American people what they
expect and deserve from their Government, and I have a few
questions to follow up on that.
First I want to follow up on your answer to Senator Kennedy
and Senator Leahy regarding the OLC memo. You told Senator
Leahy that you did not want to politicize the work of career
professionals of DOJ, so you could not weigh in against the
interpretation of the law that was expressed in that memo. But
then you told Senator Kennedy that it was totally appropriate
to have discussions with the DOJ while the memo was being
prepared because it was a complicated statute that had never
before been interpreted. I think there is something of a
contradiction there, which I would like you to comment on, but
I would like to make two other points first.
First, the authors of the torture memo, in fact, Judge,
were political appointees, not career professionals. Second,
the issue is whether you disagree with that memo and express
that disagreement to the President. You are the President's
lawyer. Is it not your job to express your independent view to
the President if you disagree with the opinion of the Justice
Department, or do you just simply pass on the DOJ's opinion no
matter how erroneous or outrageous, and just say to the
President, in effect, this is what the DOJ says the law is?
Judge Gonzales. Thank you, Senator, for that question. Let
me try to clarify my comments regarding my role in connection
with the memo and my role generally as I view it as Counsel to
the President.
It is of course customary, and I think to be expected that
there would be discussions between the Department of Justice
and the Counsel's Office about legal interpretation of, say, a
statute that had never been interpreted before, one that would
be extremely emotional, say, if you're talking about what are
the limits of torture under a domestic criminal statute? And so
there was discussion about that. But I understand, and it is my
judgment that I don't get to decide for the executive branch
what the law is. Ultimately, that is the President, of course.
By statute the Department of Justice is giving me authority to
provide advice to the executive branch. And so while I
certainly participate in discussions about these matters, at
the end of the day, that opinion represents the position of the
Department and therefore the position of the executive branch.
Senator Feingold. I am puzzled by that because I think it
must be your job as Counsel to the President to give him your
opinion about whether the DOJ document was right before he
makes a judgment to approve it, and I have always assumed that
would be the job of the President's lawyer.
Judge Gonzales. I certainly do of course give the President
my own opinions about particular matters, but as I said earlier
in response to a question, my own judgment, my own conclusions,
very often are informed, and very often influenced by the
advice given to me by the Department of Justice, and often I
communicate with the President, not only sort of my views, but
the views of the Department, which of course, by statute,
that's their job to do, and so that the President has that
information in hand in weighing a decision.
Senator Feingold. I am still puzzled by that. If you were
my lawyer, I would sure want to know your independent opinion
about something like that. But let me move on.
I want to now ask you about the role you had when you were
counsel to then Governor Bush. You prepared what are referred
to as clemency memos, summarizing a particular death row
inmate's case and his plea for clemency from the Governor. As I
understand it, you and your staff would prepare these memos and
then present them to the Governor, who would make a final
decision on whether to deny or grant clemency to the inmate
with an imminent execution date.
According to my staff's review of the clemency memorandum,
it appears that you presented these memos to the Governor
almost always on the day of execution. Why is that? On such a
grave matter as life and death, why was the decision left until
the day of execution?
Judge Gonzales. The ultimate decision may have been left or
came close to the time of the execution because that was the
desire of the Governor. However, those memos reflect a summary
of discussions that often occur between my office and the
Governor in connection with every execution. It was not
unusual, in fact it was quite common, that I would have
numerous discussions with the Governor well in advance of a
scheduled execution. We often knew when executions were
scheduled. If I were in talking to the Governor about a
particular matter and we had an opportunity, I would say,
``Governor, we have an execution coming up in three weeks. One
of the bases of clemency I'm sure that will be argued is, say,
something like mental retardation. These are the issues that
have to be considered.'' And so there would be a rolling series
of discussions in connection with every execution. But as to
when the ultimate decision was going to be made, it was often
the day before or the day of an execution. And an additional
very important reason for that, is because a Governor, under
Texas law, has very limited authority under the Constitution to
grant clemency. He can only grant clemency, he can only grant a
pardon, he can only grant a commutation, he can only grant a
reprieve, beyond 30 days upon a recommendation of the Board in
Pardons and Parole, and often the Board would not meet and
would not vote until just prior to an execution, and of course,
the Governor wanted to wait and see what recommendation the
Board in Pardons and Parole had with respect to a request for
clemency.
Senator Feingold. I recognize that. It is true that the
Texas Governor has a more limited clemency power compared to
other governors, but the Governor does appoint the members of
the Board in Pardons and Parole, and I think his grant of a
reprieve could have signaled to the Board that a case deserved
closer attention.
I guess I want to know, in the way you have just described
the process worked, did you ever seek additional time in order
to allow the Governor adequate time to review and understand
the case? In other words, after he read the memo that was
presented on the day of the scheduled execution, was there ever
an occasion when more time was requested?
Judge Gonzales. I don't remember an occasion when more time
was requested when we presented that final memo. I do remember
many occasions when I would go to the Governor and talk about
the facts of a particular case, and the basis of clemency, and
the Governor would--if I expressed concerns or questions, the
Governor would direct me to go back and find out and to be
absolutely sure, because while the Governor believes in the
death penalty, he believes that it deters crimes and saves
lives, he also believes very firmly that it should be applied
fairly and only the guilty should be punished.
Senator Feingold. On that point, one of the cases involved
an inmate on death row named Carl Johnson. He was executed in
September 1995 during the first year that Governor Bush was in
office and you were his counsel on these matters. Mr. Johnson
was represented by a lawyer named Joe Cannon, who slept through
the major portions of the trial, and was apparently notorious
in legal circles for this behavior. In his challenges appealing
the trial conviction, Mr. Johnson argued consistently that he
had had ineffective assistance of counsel, primarily based on
the sleeping lawyer who represented him at trial.
In your memo to the Governor discussing this case, and
impending execution, however, you failed to make any mention
whatsoever of the basis for Mr. Johnson's appeal. You go to
great lengths to describe the underlying facts of the murder,
but there is no mention at all of the fact that this lawyer
slept through the major portions of the trial. I would like you
to in a second explain this omission. I want to know how the
Governor could have weighed the clemency memo fully and
properly if you had failed to even indicate the basis for the
clemency request?
Judge Gonzales. Senator, as I described to you, the
process--those memos reflected the end of a process of
educating the Governor about the facts of a particular case.
And the fact that it may not have been included in the memo, we
may have had numerous discussions about it. He may have said,
``Has that issue been reviewed in the courts carefully and
thoroughly?'' And we may have gone back--I don't remember the
facts of this particular case, but we may have gone back, our
office may have gone back and seen that, yes, in fact this
question of ineffective assistance of counsel had been reviewed
numerous times in our courts and had found the allegations
frivolous.
Senator Feingold. This is a very famous case. It is hard
for me to imagine that you do not know the specifics of it, and
it is almost unimaginable to me that a final formal legal memo
to the Governor would not have included reference to the fact
that this man's lawyer slept during the trial.
Chairman Specter. Senator Feingold's time is up, but Judge
Gonzales, you may answer the question.
Judge Gonzales. I don't have a response to the Senator,
unless there was a question.
Chairman Specter. If there has not been a question,
postulate the question, Senator Feingold.
Senator Feingold. It was a statement. Thank you, Mr.
Chairman.
Chairman Specter. Thank you.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
Judge Gonzales, has it been your experience as a lawyer
that sometimes lawyers disagree?
Judge Gonzales. That has been my experience, yes, sir.
Senator Cornyn. That has been my experience too, and I
guess it is best exemplified by the lawyers on this Committee
who from time to time will disagree with one another, and
certainly that is understandable when we disagree about policy
matters, even inferences to be drawn from facts which we all
know to be true. But I think perhaps if I heard correctly, the
Senator from Delaware was questioning whether my facts were
correct when I presented the opening statement referring to a
number of acknowledgements of the correctness of your judgment
and the President's decision that the Geneva Convention does
not formally apply to terrorists. So I would like to just
quickly refer specifically to the pages, and I would like to
ask unanimous consent that they be made part of the record.
First, page 379 through 380, where the 9/11 Commission says
that since the international struggle against Islamic terrorism
is not internal, these provisions do not formally apply.
And then the Schlesinger report, which studied the
Department of Defense detention policies, which concluded that
there were no high level policies or procedures in place that
would allow for torture or abuse of detainees. On page 81 they
say the panel accepts the proposition that these terrorists are
not combatants entitled to the protection of the Geneva
Convention.
And then there was the reference I made to the Red Cross
Manual on the Geneva Convention, which on page 53 sets out the
three-part test on whether the Geneva Convention actually
applies under any given circumstances, and I would like to ask
unanimous consent that those be made part of the record, and I
am confident they will. But let me ask you this. This has also
been contested in three separate Federal courts, has it not?
Judge Gonzales. It has.
Senator Cornyn. And what has been the result?
Judge Gonzales. That the President's decision was the
correct legal decision.
Senator Cornyn. Even though lawyers can disagree about
judgments, legal judgments or opinions--here again, I hope we
do not disagree about certain basic facts, and that is the
reason I wanted to go over the content of these documents which
the Senator from Delaware suggested I was mistaken about. Let
me ask you whether you agree with this proposition. Do you
agree the that United States Government should use all lawful
means to gather intelligence from terrorists in order to save
American lives?
Judge Gonzales. I do agree with that. Obviously, that is a
policy decision. I think that that is the position of the
President of the United States, because as I said earlier, the
war on terror is a war about information, and we need
information to be successful in winning this war.
Senator Cornyn. You will not be the only witness in this
hearing, and here again we are going to hear, I anticipate,
since we have had the chance to see their prepared testimony,
from other witnesses, who may express different opinions than
you have expressed here, as well as the opinions expressed by
the 9/11 Commission, the Schlesinger report and those three
Federal courts. But I for one do think you have been candid in
response to the questions, and I do not suggest I am the only
one. I just know there was a suggestion that there had not been
complete candor on your part, but I do believe you have been. I
think that this Committee is exercising its constitutional
responsibility to ask you hard questions, but I trust that
those questions will always be good faith questions, they will
not be motivated by some improper purpose, partisanship or
otherwise.
So I am glad you are here today. I am glad the Committee is
asking you hard questions, but I hope that we never cross the
line into partisanship or improper motive in asking some
questions.
Finally, let me just say that there was some suggestion
that you have been less, or the White House has been less than
responsive about requests for documents. Let me just hold up
here what I believe to be part of the response that the White
House has made to the request by Senator Leahy and others on
the other side of the aisle with respect to documents of your
office. Does that look at least like a--I will not have you go
through them page by page--but have you produced voluminous
documents? Has the White House produced voluminous documents in
response to Committee requests?
Judge Gonzales. Senator, it's hard for me to gage whether
or not that reflects our response. Because of my nomination, I
have recused myself from any decisions regarding production of
documents that this Committee has requested in connection with
my nomination. Decisions about production of documents are
being made by others at the White House, as it should be.
Senator Cornyn. Thank you for that clarification. It is my
understanding, I have been advised, that the White House has
complied completely with the request for documents with two
exceptions. One is a document which the White House is claiming
wherein the President has received confidential and candid
advice from senior advisers relating to the memorandum
concerning the application of the Geneva Convention to al Qaeda
and the Taliban. The second document that the White House has
declined to produce is an Office of Legal Counsel opinion dated
November 6, 2001, and the reason stated is because that is
currently the subject of litigation.
I would just say that this Committee last year had the
occasion to revisit the importance of our ability as Senators
to receive confidential advice from our own staff, and we
learned, unfortunately, that there had been a theft of some
staff memos to Senators, and that now has been referred for
investigation and possible prosecution.
But do you recognize the importance as a general principle
of confidential communications between the President and his
senior advisers, or for that matter, between the United States
Senate and our staff?
Judge Gonzales. I think it is a very important principle,
Senator, that needs to be respected. I think the principals
should be able to rely upon candid advice from their advisers.
I've seen in four years how it does make a difference in
affecting the way you present advice, if not the advice you
actually give. And so I think that that is a principle that
should be respected, and of course, there is a competing
principle as well, and that is, sometimes there is a strong or
legitimate Government purpose to try to receive information and
to look at that information, either as part of some kind of
criminal investigation, or part of the oversight function of a
committee, but that always involves a balancing it seems to me.
It's sort of a case-by-case analysis in terms of where do you
draw the line as to when to produce deliberative information
and when not to. But, yes, I think it is a principle that one
should always be mindful of, is the fact that you don't want to
inhibit candid advice to principals. Otherwise, in my judgment,
you do inhibit the decisionmaking of that principal, and I
don't think that's good for the American people.
Senator Cornyn. Judge Gonzales, thank you very much for
your response to those questions and your appearance here
today. My experience, just in the brief time I have been in
Washington, is that there are very few secrets because this
place leaks prolifically, and if you want to find out what is
going on in Washington at the highest levels of Government, all
you have to do is pick up the daily newspaper or watch cable
news, and you will find out almost as much as you do by sitting
in on classified briefings. That has been my experience. It may
not be typical.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Cornyn.
Senator Schumer.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you. And let me, Mr. Chairman, join
all of my colleagues in congratulating you on achieving
chairmanship of the Judiciary Committee.
Chairman Specter. Thank you.
Senator Schumer. You have all of the good qualifications
for it, so thank you.
Thank you, Judge Gonzales. Let me just say that I guess
many of us, at least on this side of the aisle, have had very
bad experiences with the Justice Department over the last four
years.
The Attorney General, should you be confirmed, is at the
nexus of what may be the most fundamental and important
conflict or tension in our Government, and that is between
security and liberty, and the Founding Fathers paid a lot of
attention to that, and realized the importance of that tension.
One thing I think they called for in the structure of the
Government they set up that these hearings embody and so much
else, and that there be consultation, that there be discussion,
and then you come to a conclusion. Obviously, the line moves.
No one can dispute that we live in a new world after 9/11. No
one disputes, certainly not me, that old rules should be re-
examined because the world has changed dramatically, and what
governed when the War of the Roses was fought does not govern
today.
But the previous Attorney General ran the most secretive
Justice Department in my lifetime. He seemed to make every
major decision behind closed doors in the dark of night, and
then when ideas popped out, because there was no consultation,
because there was no vetting, he had to pull back because he
had gone too far. That happened in torture, where there has
been some retraction by the administration. It happened with
the TIPS program, where originally your predecessor, or
Attorney General Ashcroft, rather, wanted neighbors to spy on
neighbors. Another was the Total Information Awareness Program.
Time and time again proposals were pulled back because they
were half-baked or not vetted or not discussed, and they would
have come out much better had there been the kind of dialogue
that I think Democratic and Republican administrations in the
past on these key delicate and important issues that have to be
carefully balanced, there was discussion.
So my general concern is to know how you are going to
approach these issues should you be confirmed. Will you be a
voice for inclusion and consultation, or will you be continuing
the John Ashcroft ``my way or the highway'' approach that often
led to embarrassment on his part, on the Department of
Justice's part, and others? And I have a few questions in this
regard, some specifics.
The first is on judges itself, an issue of great concern to
me. In your position as Counsel, you and I have worked out
things very well together in New York State. Every vacancy is
filled. They are filled with moderate or conservative but
mainstream judges. But we had a real dialogue. You would bounce
names off of me; I would bounce names off of you. There were
some each of us said to the other are not acceptable, and they
were pulled off the table. The judges, make no mistake about
it, do not mirror my views. Most of them are pro-life and more
conservative on most issues, but they are mainstream. I really
believed that they would interpret the law.
That is not what has happened nationally. We have had on
most circuits just a throw down the gauntlet, here is who we
want, you better approve them, and if you do not approve them,
you are obstructionist, even though we have approved 204 out of
214, a record, I think, that is better than the first few
Congresses, where I think one-fifth of all Supreme Court
nominees, although that may be in the history of all the
Congresses, have been rejected. And many of us believe that
some of these nominees were radical. They were not strict
constructionists. They were not following the law. They wanted
to get rid of decades and sometimes even centuries of law when
it came to environment or civil rights or women's rights or
privacy or property rights.
And as you know, we are going to have a Supreme Court
nomination, you know, before long. I hasten to add, by the way,
parenthetically, that the standard that I am going to use and I
think most of us are going to use to judge you as Attorney
General will be different than we would use for Supreme Court
Justices should you or anybody else be the nominee. No one
should mistake the votes here as a ratification because it is a
different job, it is a lower standard. In the executive branch,
you want the President to have more leeway than in an
independent judicial branch.
But I want to ask you, when it comes to Supreme Court
nominations, which we are likely to get here, will you be a
real voice for consultation? Will you come to us or will you
urge the President to come to us and say here are the names I
am considering, what do you think? Which ones would cause a
knock-down, drag-out fight? Which ones would be acceptable? Can
we reach compromise? There may be more than one nomination.
Can you just give me a little bit of your feeling on how
that ought to happen and your judgment on what has happened
thus far in New York versus what has happened in the rest or
many of the other circuits?
Judge Gonzales. Thank you, Senator. First of all, let me
make it clear: I am not a candidate for the Supreme Court.
Senator Schumer. Right. Just making sure that everyone
knows in case that should happen, one standard is different
than the other.
Judge Gonzales. I'm focused on this position.
Senator Schumer. I understand that.
Judge Gonzales. I want to thank you for your work in
connection with filling Federal judgeships in New York. I agree
with you, we have been able, in my judgment, to reach
accommodations where the President is able to put people on the
Federal bench that he believes should serve as lifetime judges.
As to why we haven't been able to replicate that around the
country, I'm still trying to understand that as well.
You mentioned some circuit court judges that were way, way
out of the mainstream. We look at these picks very, very
carefully, and we talk to a lot of people. We bring them in. We
look at their writings, if they have been judges. They have
been rated well qualified or qualified by the American Bar
Association, as you well know.
Senator Schumer. Yes, but they do not rate on their views.
They rate on their integrity and demeanor. I mean, a judge who
believes there should be no zoning laws, which is one of the
people you nominated, is 1890s.
Judge Gonzales. Well, I am not going to try to defend every
single act and every single statement of all of the President's
nominees. In my judgment, collectively they do come to the job
with the appropriate character and integrity, professional
excellence, and with a judicial philosophy--
Senator Schumer. Will you urge the President to consult
with us, with our side, in a real way, give us some names, some
choices, a real dialogue rather than ``We are doing this one''?
Judge Gonzales. Well, in my judgment, consultation has
always been good. It has been fruitful. I will certainly make
the President aware of your request.
Senator Schumer. The second issue, related, the so-called
nuclear option. Now, again, the pique of some, some of my
colleagues and many in the hard right, is, well, we didn't get
every one of our judges, therefore, we have to change the rules
by having the Vice President, as he sits as President pro tem,
rule that a filibuster is unconstitutional. I find it
confounding. The very same people who urge strict construction
of the Constitution--find the words, there is no right to
privacy in the Constitution, it does not say ``right to
privacy''--are now saying that the Constitution says there
should only be a majority vote on judges.
First, are you aware of any words in the Constitution that
say there should be a majority vote for judges?
Judge Gonzales. Senator, I have no views as to whether or
not a filibuster is constitutional. We view that as an internal
Senate matter--
Senator Schumer. You know the Constitution. We are asking
you to be Attorney General. Are there any words that say ``only
majority vote for judges''?
Judge Gonzales. I'm not aware of that, Senator, but,
please, give me the opportunity to go back and check my
Constitution.
Senator Schumer. All right. I will ask you to answer that
in writing and find me those words.
Second, I would ask you your opinion, and this is
important: Do you believe filibusters of judicial nominees
violate the Constitution? And on what basis, if you do?
Judge Gonzales. Senator, we talked about this in our
meeting, and my answer--
Senator Schumer. We did, and you were going to think about
it. You have had time to think about it.
Judge Gonzales. My answer today is the same as it was in
our meeting, and that is, I do not have a view as to whether or
not it is constitutional. From my perspective, from the
perspective of the White House, this is a matter, an internal
Senate matter, to be resolved within the Senate.
Senator Schumer. Well, you know, I am going to submit--I am
going to ask you to think about that over the next several
hours. This is something that I think is important, and I do
not think you should be able to duck it because the very
functioning of our Government could be at stake.
One final question--
Chairman Specter. Senator Schumer, your red light is on.
Senator Schumer. We will have a second round, Mr. Chairman?
Chairman Specter. A second round.
Senator Schumer. Thank you.
Chairman Specter. Senator Brownback?
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator Brownback. Thank you very much, Mr. Chairman. It is
good to be back on the Committee and to welcome you as
Chairman. And I welcome Judge Gonzales and am delighted in your
public service to the State of Texas, the United States, and
what I believe will be soon as Attorney General of the United
States. Delighted to have you here. Welcome to your family as
well. I love the name of the town you are from of Humble,
Texas. I think that is a great place for a public servant to
come from, and it reminds you of the proverb that humility
comes before honor. You come from the right place to be honored
with this type of position.
I want to ask you about a couple of areas. We have had a
lot of questioning about the Geneva Convention, the issues
surrounding that. I am pleased that those have come out. And on
your job, I want to follow up on what Senator DeWine was asking
about on what you hoped to be known for in the position as
Attorney General. Obviously the primary task is protecting the
security of the country and the people here, and I don't want
you ever to take your eye off of that ball, and I am sure you
won't, that it is the war on terrorism, it is protecting the
security of the American people, and that has got to be your
primary focus and function and measure of success of the agency
is were the American people protected.
I do want to ask you about a couple of other areas of what
I hope would be opportunity because it is a large agency and
there are a number of different functions and areas that go on.
One--and there is a bill that we put in last year, a bipartisan
bill that the President spoke about in the State of the Union
message last year on dealing with prisoner recidivism rates. I
realize this is off of virtually everybody's radar screen in
this hearing, but if you look at it for an issue that is
affecting our country, once a person goes into our court system
now and is convicted, 70 percent of them are going to commit
another crime and be convicted again. It is an enormous rate of
recidivism that we have. It is a huge price tag. I think we are
spending at State levels $28 billion plus a year, prisons'
annual operating cost of over $22,000 per inmate, and that is
as it needs to be. We need to lock people up that commit crime.
But the President sighted on this, and I agree and put
forward a bipartisan bill, a bicameral bill with Senator Biden,
Rob Portman in the House, on targeting reducing that recidivism
rate, cutting it in half in 5 years. We called the bill ``The
Second Chance Act,'' and it is just targeting those prisoners
within 2 to 3 years of getting out for intensive work with
them, intensive counseling, relationship building for when they
are in, when they get out, to try to really track that rate.
Also, children of prisoners are five times more likely to
commit a crime than the general population, and we need to
target in on that group.
I put this forward as a compassionate conservative topic
because I think this is one where we need to lock people up
that commit crimes, but we know they are going to come out at
some point in time, too--most--and we really also need to work
with them.
I am hopeful you can work with us on this issue because I
think this is one of those topics that we can have an agreement
across the aisle that this needs to be addressed. There are
ways to address it. We have a faith-based prison in Kansas that
the recidivism rate is below 10 percent. We have got other
examples across the country of where this has been attacked and
addressed quite successfully. And so I am hopeful that can be
one of your legacies that you work on as well.
Do you have a short response on that?
Judge Gonzales. I do. Senator, I believe that it is not
only smart but it is right. I think that we have an obligation
to provide some kind of support structure, to provide some kind
of training to people that are coming out of prison. It is the
right thing to do. It is certainly smart because we simply do
not want to have people that come out of prison merely go out
and commit crimes, they cannot support themselves, and so we
have to provide some kind of way for these folks to support
themselves.
There are a lot of prisons in Texas. Obviously this is a
problem that Governor Bush was focused on, so he is keenly
aware of this. That is why he spoke about this in the State of
the Union. I believe the Department of Justice is doing some
studies about what--research about what kinds of programs
really work. And so I look forward to the end of that research
and sitting down with you and talking to you about what would
be the most effective way to deal with this problem.
Senator Brownback. I think the American people want us to
get outcomes, things that work. Welfare reform was something
that worked, the country needed. I really think this is a key
area where we have got a chance to really do something that
will work, and it is going to help, and I think it is something
we can work across the aisles to get done.
A second issue you raised with Senator DeWine during your
comments about things you want to be known for, and that is the
issue on obscenity laws and the enforcement of that. I held a
hearing the last session of Congress on the issue of these--not
obscenity laws but on addictions to pornography. And it was an
amazing set of experts that came forward talking about the
addictiveness of pornography. It has grown much more potent,
much more addictive, much more pervasive, much more impactful.
You have cited teenage children that you have and that I have
in our private conversation.
There has been criticism of the Department of Justice for
not enforcing obscenity laws, work on these issues, on
community standards. I would hope that this would be something
that you would take a look at, maybe make some personnel shifts
within the Department of Justice to address this from the law
standards on community standards, look at the addictiveness and
the nature of it. There are, obviously, certain guarantees of
First Amendment rights, but there are also these laws that have
been upheld by community standards, upheld by the Supreme Court
that can be and I really think should be enforced given the
nature of this very potent, what one expect called a delivery
system in this country. And I hope you can look at that.
Judge Gonzales. I will commit to you that I will look at
that, Senator.
Senator Brownback. I believe you said your wife had some
interest in this, and I may recruit her on this topic as well,
even though she is not up for confirmation here, work with her
as well.
Finally, there is a topic I wanted to give you a chance to
address. While you were on the Texas Supreme Court, in June of
2000--and this came up during Judge Owen's hearing--of a case
on a parental consent law that you wrote, I believe, the
majority opinion on, and this was upholding the decision
regarding the parental notification law where a minor sought an
abortion. In this particular case, a minor was seeking an
abortion without, as was required by Texas law, notification of
her parents. You had some pretty strong words for those in the
minority opinion and thought the law should be applied as
written and was affirmed by the trial court.
I just wanted to give you a chance to express your opinion
on this case. It came up often during Judge Owen's confirmation
hearing here. You were cited on the other side of that often.
And I would like to get your thoughts on that here for the
record. Do you believe that the interpretation of duly enacted
legislation is open to interpretation by the courts in a manner
not consistent with a strict reading of the law, that is, the
underlying issue involved with this?
Judge Gonzales. Thank you for that question, Senator. Let
me just say at the outset regarding Judge Owen, I served with
Judge Owen on the Texas Supreme Court, and I think she did a
splendid job, a superb job as a judge. I think she would make a
superb job on the Fifth Circuit, and that is why her name was
recommended to the President.
There were a series of very contentious opinions written in
connection with six cases, I think involving four minor
daughters, in the year 2000 while I was on the court. It is
true that the legislature made a policy judgment that they
wanted more--they wanted parents more involved with the
abortion decisions of their minor daughters. But the
legislature did not make the parental rights absolute. They
provided three exceptions. And most of the decisions of the
court revolved around interpreting those exceptions, allowing a
judicial bypass.
My comment about an act of judicial activism was not
focused at Judge Owen or Judge Heck. It was actually focused at
me. What I was saying in that opinion was that given my
interpretation of what the legislature intended by the words
that they used in terms of having a minor not totally informed
or well informed but sufficiently well informed, and the
structure of the act, it was in my judgment that the
legislature did intend the judicial bypasses to be real. And
given my conclusion about what the legislature intended, it
would have been an act of judicial activism not to have granted
the bypass in that particular case.
If someone like Judge Owen in that case reached a different
conclusion about what the legislature intended, it would have
been perfectly reasonable for her to reach a different outcome.
But as to the words that have been used as a sword against
Judge Owen, let me just say that those words were related to me
in terms of my interpretation of what the legislature intended,
again, through the words of the statute and the way that the
judicial bypass procedure would actually operate in practice.
Senator Brownback. I thank you and your family for being
here--
Chairman Specter. Senator Brownback, your--
Senator Brownback. --and I look forward to your
confirmation.
Chairman Specter. Senator Brownback, your red light is on.
Judge Gonzales. Thank you, Senator.
Chairman Specter. Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you, and congratulations, Mr.
Chairman, on your new appointment. I am looking forward to
working with you, and I thank you for your phone call over the
holiday break to talk about some of the big issues we face.
Chairman Specter. Thank you.
Senator Durbin. It was a welcome opportunity to discuss a
lot of things that we will concern ourselves with.
Judge Gonzales, thank you for being here. My thanks to your
family for their patience in waiting through all these
questions and those that will follow.
I think that Senator Specter has done a great service to
the White House by moving this hearing as quickly as he has,
January 6th, two days after the swearing-in of the new Members
of the Senate. It is understandable this is a critically
important job for the safety of America, and we need to fill it
as quickly as we can.
I am sorry that there has been some breakdown between this
Committee and the White House about the production of
documents. As I told you in our office meeting, it is very
difficult for us to sit on this side of the table and believe
that we have the whole story when the White House refuses to
produce documents that tell us what happened about many of the
issues that we are raising. But based on what we do have, I
want to try to get into a few specific questions on the issue
of torture.
The images of Abu Ghraib are likely to be with us for a
lifetime and beyond, as many images of war can be. The tragedy
of Abu Ghraib and the embarrassment and scandal to the United
States are likely to be with us for decades and beyond.
Yesterday we paid tribute to our colleague Congressman Robert
Matsui, not only a great Congressman but particularly great in
light of the fact that as a Japanese-American, he was sent to
an internment camp by his Government that did not trust his
patriotism or the patriotism of his family. That shameful
chapter in American history is recounted even today more than
50 years later as we think about it. I am afraid that the
torture that occurred in Abu Ghraib and Guantanamo will
similarly be recounted 50 years from now as a shameful chapter
in American history.
When you answered Senator Kohl, you said we are going to
divide what happened in Abu Ghraib into two areas: physical and
sexual torture, never acceptable; some idea of fun by depraved
people. And you condemned it. Then a second area, interrogation
techniques that went too far, and you conceded that those
interrogation techniques might have migrated or started at
Guantanamo and somehow made it to Iraq.
My question to you is: Would you not also concede that your
decision and the decision of the President to call into
question the definition of torture, the need to comply with the
Geneva Conventions, at least opened up a permissive environment
for conduct which had been ruled as totally unacceptable by
Presidents of both parties for decades?
Judge Gonzales. Thank you, Senator, for the question. Maybe
perhaps I did misspeak. I thought I was clear that I was not
dividing up the categories of abuse into two categories, that
that was really--that division had been done within these
reports themselves. And those reports did indicate that there
was some migration as to the second category. But the reports
and the briefings were fairly clear in my judgment, and others
may disagree, that the reasons for the migration were because
there was inadequate training and supervision, that if there
had been adequate training and supervision, if there had been
adherence to doctrine, then the abuses would not have occurred.
And that's what I see in the reports and what I see in the
briefings.
As to whether or not there was a permissive environment,
you and I spoke about this in our meeting. The findings in
these eight reports universally were that a great majority, an
overwhelming majority of our detention operations have been
conducted consistent with American values and consistent with
our legal obligations. What we saw happen on that cell block in
the night shift was limited to the night shift on that cell
block with respect to that first category, the more offensive,
the intentional severe physical and the sexual abuse, the
subject of those pictures. And this isn't just Al Gonzales
speaking. This is what, if you look at it, the Schlesinger
report concludes. And so what you see is that you have got this
kind of conduct occurring at the night shift, but the day
shift, they don't engage in that kind of conduct because they
understand what the rules were.
And so I respectfully disagree with the characterization
there was some sort of permissive environment. That's just not
the case. The facts don't bear that out, sir.
Senator Durbin. Then let's go to specific questions. Can
U.S. personnel legally engage in torture or cruel, inhuman, or
degrading treatment under any circumstances?
Judge Gonzales. Absolutely no. Our policy is we do not
engage in torture.
Senator Durbin. Good. I am glad that you have stated that
for the record. Do you believe that there are circumstances
where other legal restrictions like the War Crimes Act would
not apply to U.S. personnel?
Judge Gonzales. Senator, I don't believe that that would be
the case, but I would like the opportunity to--I want to be
very candid with you and obviously thorough in my response to
that question. It is sort of a legal conclusion, and I would
like to have the opportunity to get back to you on that.
Senator Durbin. I will give you that chance.
In your August memo, you created the possibility that the
President could invoke his authority as Commander in Chief to
not only suspend the Geneva Convention but the application of
other laws. Do you stand by that position?
Judge Gonzales. I believe that I said in response to an
earlier question that I do believe it is possible,
theoretically possible, for the Congress to pass a law that
would be viewed as unconstitutional by a President of the
United States. And that is not just the position of this
President. That has been the position of Presidents on both
sides of the aisle.
In my judgment, making that kind of conclusion is one that
requires a great deal of care and consideration, but if you're
asking me if it's theoretically possible that Congress could
pass a statute that we view as unconstitutional, I'd have to
concede, sir, that I believe that's theoretically possible.
Senator Durbin. Has this President ever invoked that
authority, as Commander in Chief or otherwise, to conclude that
a law was unconstitutional and refused to comply with it?
Judge Gonzales. I believe that I stated in my June briefing
about these memos that the President has not exercised that
authority.
Senator Durbin. But you believe he has that authority? He
could ignore a law passed by this Congress, signed by this
President or another one, and decide that it is
unconstitutional and refuse to comply with that law?
Judge Gonzales. Senator, again, you are asking me whether
hypothetically does that authority exist, and I guess I would
have to say that hypothetically that authority may exist. But
let me also just say that we certainly understand and recognize
the role of the courts in our system of Government. We have to
deal with some very difficult issues, very, very complicated.
Sometimes the answers are not so clear.
The President's position on this is that ultimately the
judges, the courts will make the decision as to whether or not
we've drawn the right balance here. And in certain
circumstances, the courts have agreed with administration
positions, and in certain circumstances, the courts have
disagreed. And we will respect those decisions.
Senator Durbin. Fifty-two years ago, a President named
Harry Truman decided to test that premise in Youngstown Steel
and Tube v. Sawyer in the Supreme Court. The Supreme Court
said, as you know, President Truman, you are wrong, you do not
have the authority to decide what is constitutional, what laws
you like and do not like.
I am troubled that you would think, as our incoming
Attorney General, that a President can pick and choose the laws
that he thinks are constitutional and ultimately wait for that
test in court to decide whether or not he is going to comply
with the law.
Judge Gonzales. Senator, you asked me whether or not it was
theoretically possible that the Congress could pass a law that
we would view as unconstitutional. My response was that
obviously we would take that very, very seriously, look at that
very carefully. But I suppose it is theoretically possible that
that would happen.
Let me just add one final point. We in the executive
branch, of course, understand that there are limits on
Presidential power. We are very, very mindful of Justice
O'Connor's statement in the Hamdi decision that a state of war
is not a blank check for the President of the United States
with respect to the rights of American citizens. I understand
that and I agree with that.
Senator Durbin. Well, let me just say in conclusion, I am
glad to hear that. I am troubled by the introduction. The
hypothetical is one that you raised in the memo relative to
torture as to whether the President had the authority as
Commander in Chief to ignore the Geneva Conventions or certain
other laws. This is not something that comes from our side of
the table of our own creation. It is your creation, the
hypothetical you created.
My concern is this: I do not believe that this Government
should become a symbol for a departure from time-honored
traditions where we have said that we will not engage in
torture, directly or indirectly by rendition--which I hope to
ask you about in the next round--that we will stand by the same
standards of Geneva Conventions since World War II and,
frankly, dating back to Abraham Lincoln and the Civil War, in
terms of the treatment of prisoners.
I am concerned that that round of memos that went through
the Department of Justice, Mr. Bybee, into the Department of
Defense, into Guantanamo, and then migrated somehow to
interrogation techniques in Abu Ghraib has stained our world
reputation. I want to win this war on terrorism, but I do not
want to do it at the expense of our soldiers who may someday
become prisoners themselves.
Thank you, Mr. Gonzales.
[The prepared statement of Senator Durbin appears as a
submission for the record.]
Chairman Specter. Senator Coburn?
Senator Coburn. Mr. Chairman, thank you very much, and I
appreciate the opportunity to share this with you, and
congratulations on your chairmanship. I look forward to working
with you.
Chairman Specter. Thank you.
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
OKLAHOMA
Senator Coburn. Mr. Gonzales, thank you so much. I enjoyed
our visit in the office. I think it is very important what has
not been said here today. We have talked about mistakes that
have been made. We have talked about problems. But we always
fail to emphasize the fact that the vast majority of the people
who serve this country are doing it right, honorably, and in an
aggressive, tolerable way that represents our values each and
every day. And to not bring that forward and to always talk
about the negative does a disservice to our country, our
heritage, and to our future. And I think we ought to be very
thankful for the vast majority of Americans that are serving
our country today and are doing it in an honorable way. And
that would include you, sir, as you come forward and serve and
have served our country.
I want to follow on a couple of things. Number one, I have
an interest in prison reform as well with Senator Brownback,
but more specifically in terms of drug possession and drug
addiction. I am convinced that we are handling that problem
wrong in this country. As a physician, I believe that we ought
to be doing drug treatment rather than incarceration, and I
look forward to working with you in terms of emphasizing that,
not only in terms of the faith-based ministries in prison but
also the direction towards drug treatment, because we know we
can be successful there. And when we fail to do that, we do a
disservice not only to those people that are incarcerated, we
do a disservice to our public.
I am going to be rather short, but I am the only non-
attorney on this panel, I think. And I am reminded in Article
I, section 5 of the Constitution, it says, ``Each House may
determine the rules of its proceedings.'' That is what our
Founders said. And so I am not confused at all about the
ability to change the rules in the operation of the Senate even
though it has a wonderful historical privilege.
I also am reminded that in the United States v. Balin, the
Supreme Court unanimously upheld that, and they said two
things: one, when the Constitution is silent, the rule is
majority vote; and, number two, a majority of either chamber
can always retain the power to draft and enact its own rules
and procedures. So I do not think we ought to allow confusion
of what the Constitution actually says versus what potential
may come in the future. And I think we ought to deal with what
is here.
The other thing that I think is important is to recognize
the President's right to nominate and our right to confirm, and
to do that in a rigorous way. I appreciate the other side of
the aisle and the questions that they have had of you. I think
they are pertinent. I think that the questioning that Senator
Graham had I think raises significant questions for us to learn
from, especially in terms of the Code of Military Justice that
has to be inculcated in decisions that go down the line. But I
also want to ask just a couple of questions.
Are you aware of any war that this country has been
involved in in its history in which mistakes of human beings
have not been made and brought to light?
Judge Gonzales. Well, as you well know, as I well know,
human beings are not perfect. Mistakes happen. Abuses occur. We
know that that's true in all conflicts. Abuses occur not just
in connection with military operations; abuses occur here in
our prisons. It is regrettable, and when we find out the abuses
have occurred, we need to correct them and hold people
accountable. But it is true that abuses occur and have
occurred, as far as I know, in all military conflicts.
Senator Coburn. And is it, to your knowledge, a policy of
this administration at any time to tolerate torture or inhumane
behavior towards any of the detainees that we have?
Judge Gonzales. It is not the policy of the administration
to tolerate torture or inhumane conduct toward any person that
the United States is detaining.
Senator Coburn. And then, finally, I would ask as you look
at the Geneva Convention in Iraq and the difference that we
apply to that versus that against the Taliban and al Qaeda, was
there a consideration for those who are not Iraqis in that
combatant field? In other words, did the Geneva Convention
necessarily apply to all combatants in Iraq whether or not they
were Iraqi citizens or they were foreign mercenaries?
Judge Gonzales. That question was considered by the
Department, and there was a fear about creating a sanctuary for
terrorists if we were to say that if you come and fight against
America in the conflict with Iraq that you would receive the
protections of a prisoner of war. And I believe the
Department--I know the Department issued, I believe some
guidance, the Department of Justice issued some guidance with
respect to whether or not non-Iraqis who came into Iraq as part
of the insurgency, whether or not they would also or likewise
enjoy the protections of the Geneva Convention. And I believe
the conclusion was that they would not. But I would need to go
back and confirm that, Senator.
Senator Coburn. Thank you.
I have no additional questions, and I yield back the
balance of my time.
Chairman Specter. Thank you very much, Senator Coburn, and
thank you, Judge Gonzales.
It is now 12:55. A room has been set aside for Judge
Gonzales, and we have conferred with him, and he thinks an hour
would be sufficient for lunch. So the Committee will resume at
2 o'clock. And for the information of everyone, there is a nice
cafeteria in the basement of this building.
See you all at 2:00.
[Whereupon, at 12:55 p.m., the Committee was recessed, to
reconvene at 2:00 p.m., this same day.]
AFTERNOON SESSION[2:00 p.m.]
Chairman Specter. The hour of two o'clock having arrived,
we will now proceed with the confirmation hearing on the
President's nominee, Judge Alberto Gonzales, to be Attorney
General of the United States.
In the morning we completed a round of questioning by every
Senator present, and we will now proceed on round two, again
with a 10-minute round.
I pick up on comments made by Senator Brownback and Senator
Coburn this morning about their concern about what happens in
our correctional facilities, our prison facilities. Senator
Brownback is looking for improvements. Senator Coburn made the
cogent comment about rehabilitation for drug addicts, and this
is an item which is going to be a priority for the Judiciary
Committee this year and next year, and into the foreseeable
future.
The problem of violent crime is pervasive in America. It is
a problem which I have been working on since my days as an
Assistant District Attorney, and I will not mention the year,
and that is District Attorney of Philadelphia. And then on this
Committee, the first bill which I introduced was the Armed
Career Criminal Bill shortly after I was elected to the Senate,
and as Attorney General Barr described it as one of the most
effective weapons against violent crime because it deals with
career criminals, where you have three or more major offenses,
robbery, burglary, drug sales, kidnapping, and caught in the
possession of a firearm, and there is a mandatory 15-year to
life sentence. That has been a very effective weapon.
I found when I was DA that many defendants would get
continuances in the State courts and wear out the judicial
system, but if they ran the risk of going to Federal court with
a mandatory 15 years to life, you could get them tried and
perhaps get 5- to 10-year sentences or something substantial,
and it has been enormously helpful in putting the pressure on
State court adjudications.
The other side of the coin from dealing with the violent
criminals is the issue of realistic rehabilitation. My own
experience suggests to me that violent crime in America could
be cut enormously, perhaps by as much as 50 percent. It is
always hard to quantify. If you take the career criminals and
put them in jail, you really just throw away the key. Seventy
percent of all major crimes are committed by career criminals,
but then there is the other group, where you need literacy
training, and job training, and detoxification and
rehabilitation on drugs. It is no surprise when a functional
illiterate without a trade or skill gets out of jail, they go
back to a life of crime. So you have two very, very important
societal interests. One is protecting the law-abiding citizens
from repeaters, recidivists, and the other is to try to take
people out of the crime cycle because you know the first
offenders, juveniles, even second offenders and beyond are
going to be returning to our streets.
My question for you, Judge Gonzales, is that if confirmed,
what kind of a priority would you assign to try to turn our
correctional system into a system which really corrects with
realistic rehabilitation?
Judge Gonzales. Thank you, Senator, for that question. I
think I agree with you, that for people who commit violent
crimes and are career criminals, they should remain in our
prisons, but there is a segment of the prison population,
juveniles, for an example, as you mentioned, and first-time,
maybe sometime second-time offenders, who can be rehabilitated.
And as I said earlier in a response to a question, I think it
is not only smart but I think it's the right thing to do. I
think it is part of a compassionate society to give someone
another chance, and oftentimes, unfortunately, it's a question
of limited resources, but we have to find a way around this.
Obviously, it's an issue that's equally important in our State
criminal justice system, but it's important to me. We need to
do what we can to enforce the laws, make sure the laws are
being enforced, and obviously that would be a big priority for
me as Attorney General.
Chairman Specter. Well, it is going to require very
substantial resources to make it work. Literacy training and
job training and drug rehabilitation are items which are going
to require some money in advance. I am confident that it would
pay very major rewards because the cost of crime in America,
burglaries, robberies, car thefts, homicides, and the tragedy
of suffering rape and physical abuse and kidnapping, just the
costs are incalculable, so that is something which this
Committee and I will be working with you on very closely, and
we need to get the administration involved because it is a
matter of resources.
Let me turn now to a subject which I raised in the opening
statement, and that is the potential for use of our antitrust
laws to deal with OPEC and the international oil cartels which
have engaged in violations of our antitrust laws by limiting
production in a calculated way, and then raising prices. When
the supply goes down, the prices go up. And this is a subject
which I have long been interested in. We have had hearings in
the Antitrust Subcommittee. It is a subject that I wrote to
President Clinton about back on April 11th in the year 2000 and
wrote to President Bush about in the year April 25th, 2001, and
without objection, these two letters will be made part of the
record.
They set forth an approach on enforcing the antitrust laws,
noting that OPEC is not immune from the act of state doctrine,
which removes foreign governments from our courts when they are
engaged in commercial activity. If they are engaged in
governmental activities, and succinctly stated it is their
business, but it is not their business if they are engaged in
commercial matters. We all know the soaring prices at the pump
and the increase in the cost of heating and the tremendous
expenses. A subcommittee which I chair on Labor Health Human
Services and Education, puts up more than a billion dollars a
year on LIHEAP, low-income energy assistance. I would be
interested to know your thinking, Judge Gonzales, on the
potential for using our antitrust laws in this field.
Judge Gonzales. Senator, I have not had the opportunity to
review the two letters that you just discussed, and I have not
spent a great deal of time looking at this issue. I'm sure
there are folks at the Department of Justice that have done so,
and obviously, if confirmed, I would like to visit with them.
It seems to me of course, that we need first of all to promote
competition. We need to make sure that everyone's operating on
a level playing field to the extent possible.
I do have some concerns. I haven't done the analysis it
appears that you have. I do have some concerns about the
foreign relations impact, the diplomatic impact, upon taking
such an antitrust action against OPEC, and so in addition to
legal considerations it seems to me there are foreign relations
considerations, and obviously I would be very interested in
receiving the views of the State Department. But I would look
forward to working with you and having further discussions with
you about this.
Chairman Specter. I am glad you mentioned the foreign
relations aspects because I think those are exactly the
considerations we ought to ignore. The Saudis are not our
friends, and that is a subject which I got very deeply involved
in when I chaired the Intelligence Committee back in 1995 and
1996, and regrettably, we make too many decisions on foreign
policy, where we are having the cost paid by consumers of OPEC
oil, by the Saudis and by our foreign relations considerations,
and there is no doubt about the importance of not having Saudi
Arabia go the way that Iran went, but it seems to me we have to
segregate these issues and not allow the foreign policy
considerations to put a heavier burden on one segment of our
population when it is something that ought to be borne by the
country as a whole. If it is something in our national interest
that we have to undertake certain financial and economic
losses, then so be it. But this is a subject matter going easy
on the Saudis which applies in fields other than what OPEC oil
does.
Judge Gonzales. Senator, if I may respond to that. I'm not
suggesting that we go easy on the Saudis. What I'm suggesting
is it seems to me that it should be a consideration what will
be the ramifications on our foreign relations if we take an
action against OPEC is all I'm suggesting.
Chairman Specter. I am about to--no, I am not about to.
There goes the red light.
Senator Leahy.
Senator Leahy. If you want to go further, I am the only one
waiting.
Chairman Specter. No, no, no. I am going to stick to 10
minutes as an example. If it is good for the goose, it is good
for the gander. As the saying goes, if it is good for the
Chairman, et cetera.
Senator Leahy. Judge, I am going to go back to the so-
called Commander in Chief override. I listened to your answer
to other Senators, and I checked the transcript, and frankly,
you never answered my question. I still want to know whether
you think the President can suspend the laws prohibiting
torture and thus immunize torturers. I think there is a pretty
simple answer. I think the answer is just no, the President
cannot suspend such laws. Your response to me in the earlier
round, your comments at your June 2004 press conference, show
you disagree, that you presume such power does exist. Only the
President has not exercised it yet. I think this is kind of
fundamental. Your view of the scope of executive power is
something we need to understand. If you are going to be the
chief law enforcement officer of this country, and if you have
this view that there is some extraordinary executive power that
allows the President to override the laws of the United States,
especially something so fundamental, we should know because
that sets in motion a whole lot of other things. We saw this in
the Nuremberg trials, and I am not in any way equating our
President with the leaders in Germany. What I am saying though
is that you had people that said, well, we were just following
orders. If the President is able to set aside laws that have
been set in place, those who do things that are wrong can just
say, well, we were just following orders. But as the United
States has always said, and every President has said, this is
not a defense.
So I am going to ask you again, can the President immunize
from prosecution those who commit torture under his order? I am
not suggesting the President has made such orders, but can a
President immunize from prosecution those who would commit
torture under his order?
Judge Gonzales. Senator, one thing that I failed to
emphasize in the first round is of course if confirmed by the
Senate, I will take an oath of office to defend the laws of
this country.
Senator Leahy. We all do.
Judge Gonzales.--and that means the laws passed by the
Congress. So I was responding to a hypothetical question about
whether or not is it theoretically possible that Congress could
pass a law that a President would not follow because he
believed it was unconstitutional, a position that is not unique
to this President, but a position--
Senator Leahy. But I am not asking you a hypothetical
question. I am asking about a particular law, the torture law.
Can the President ignore that law, say it does not apply, and
immunize people who then committed torture?
Judge Gonzales. I believe my earlier response, Senator, was
that that is a hypothetical situation that is not going to
happen. This President is not going to order torture. I will
also say--
Senator Leahy. Could a President?
Judge Gonzales. Senator, this President is not going to
order torture. We don't condone it. I will say with respect to
the opinion, the August 1st opinion has been withdrawn. I
reject that opinion. It has been rejected. It does not
represent the views of the executive branch. It has been
replaced by a new opinion that does not have that discussion.
And so as far as I am concerned, it is not an issue in which
the executive branch has taken a position on it. I am not
prepared in this hearing to give you an answer to such an
important question.
Senator Leahy. Let me say this. The order stayed there for
a long time until the press got hold of it. Then there is a lot
of scrambling around, and on the first three-day weekend prior
to your confirmation, all of a sudden they come up, oh, wait a
minute, we have a new order. I am not going to be cynical, but
some might be. Let me put forward another example. The
President has claimed authority to lock up a U.S. citizen
arrested in the United States and hold him incommunicado for an
indefinite period, without access to a lawyer or a family, and
without real access to the courts. That is not hypothetical.
The President has claimed that authority. Does the President
have that authority?
Judge Gonzales. The Supreme Court in the Hamdi decision
said yes, the President of the United States does have the
authority--
Senator Leahy. Hamdi was the case where he was arrested on
the battlefield in Afghanistan. What about a case here, an
American citizen, in the United States?
Judge Gonzales. Senator, the Supreme Court has not
addressed that decision straight on, but in Hamdi the Court did
say that the United States could detain am American citizen
here in this country for the duration of the hostilities
without filing charges.
Senator Leahy. Do you think that here in the United States
the President has authority to have a citizen arrested, a U.S.
citizen, held incommunicado for an indefinite period, without
access to a lawyer or family?
Judge Gonzales. Senator, the--
Senator Leahy. I asked you if the President has that. Now,
in Hamdi of course they were talking about the AUMF, the
authorization for the use of military force, the Congress had
voted on for military force in Afghanistan. Hamdi was picked up
in Afghanistan. We had a second case, Padilla. There the Court
kind of punted it, they did not answer the question. They have
said the jurisdiction was wrong, it was brought in the wrong
court. It should have been brought habeas corpus in another
court.
All I am asking, does the President, the President today
have the authority to hold a U.S. citizen incommunicado for an
indefinite period of time in the United States?
Judge Gonzales. Well, the President does have the authority
under Hamdi. That is what the Court said, is you could hold an
American citizen. Let me be very, very clear. The United States
Government never took the position that a U.S. citizen detained
by its Government could not challenge the detention by the
Government.
Senator Leahy. But they are held incommunicado and have no
access to a lawyer or a court. Is that not kind of saying,
gosh, you could appeal it everywhere else. We are not going to
let you out of the cell, we are not going to let you talk to
anybody, we are not going to let you have the court. We just
want you to know you got all your rights.
Judge Gonzales. Senator, respectfully, not only did Hamdi
have access to the courts, he had such good access and such
good representation by counsel that his case was heard all the
way by the highest court in the land. So, the decision as to
whether or not to provide access to counsel is probably one of
the most difficult decisions that we have to confront because
there are competing interests here. As a lawyer, I have a great
deal of concerns about not providing lawyers to American
citizens that are being detained by this country. On the other
hand, there is a competing interest of gathering information
that this American citizen, this enemy combatant, may have
information that may save the lives of American citizens, and
our position has been is that we provide counsel as quickly as
possible that the American citizen--I'm sorry, Senator, I
didn't mean to interrupt you.
Senator Leahy. No, no. I was just going to say we can go
back there, and we will have to, because we are talking about a
perfect world. If you do a dragnet, as we have found out, we
end up holding people for a long time, and then say, whoops, we
have got the wrong guy. We have--
Chairman Specter. Judge Gonzales, did you finish your last
answer? Feel free if you want to.
Judge Gonzales. That's fine. Thank you, Senator.
Senator Leahy. Let us take the Bybee memo. It is a lengthy
document, 50 single-spaced pages, that relies upon a whole wide
range of sources. I think somebody has already put it in the
record. It references, for example, health care administrative
law at least five times, and that is not the issues we are
rasing with you. But you know one thing it never does? It never
cites this document, which you would think would be the best
thing to do, the Army Field Manual on Intelligence
Interrogation.
Now, the Army Field Manual on Intelligence Interrogation is
something that holds all the experience of this Nation for 200
years, the things we have done right, and the things we have
done wrong. The memo tells our people what they can do, but not
once does it mention this, and this is the manual that says
U.S. policy expressly prohibits acts of violence or
intimidation including physical or mental torture, threats,
insults or exposure, inhumane treatment as a means to or aid
interrogation. You think it is at all troubling that Bybee
never references it? I mean if it had, if it incorporated this,
we probably never would have had the issue raised.
Judge Gonzales. Senator, the work of OLC in connection with
interpreting the anti-torture statute was an analysis of that
domestic statute in Title 18. The fact that the opinion covers
only conduct related to that statute doesn't mean that there
might not be other legal prohibitions in which our military
soldiers might be bound. OLC was looking only at an
interpretation of that domestic statute, and the fact that
there may be other laws or regulations that might be binding,
of course, they would not be excused from following those other
laws and regulations by virtue of the opinion, which again, was
focused only in interpretation of a statute in Title 18.
Chairman Specter. Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
Judge Gonzales, I know Senator Durbin has raised the issue
of whether a President might try to uphold the Constitution by
declining to enforce statutes that are unnecessary, and I found
the notion fascinating from a legal standpoint, and so I asked
staff to look at some of the OLC opinions during the Clinton
administration during the lunch break, and here is what we
found.
In 1994, the Office of Legal Counsel, during the Clinton
administration, issued an opinion authored by Walter Dellinger,
who is a well-known constitutional legal scholar, that said,
``Let me start with a general proposition that I believe to be
uncontroversial. There are circumstances in which the President
may appropriately decline to enforce a statute that he views as
unconstitutional,'' and of course Presidents of both parties
famously reject the War Powers Resolution as unconstitutional.
Moreover, in the Dickerson case the Clinton administration
refused to defend a Federal statute against constitutional
attack in the courts. The Supreme Court had to look to special
counsel to offer a defense of that statute. It seems to me that
this administration is being attacked for something that the
Clinton administration did on a--if not a frequent basis, did
at least more than once. Would you care to comment on that?
Judge Gonzales. As I said earlier, Senator, I think that we
should look--the executive branch should always look very
carefully with a great deal of seriousness and care about
reaching a decision that a statute passed by Congress is
somehow unconstitutional and should not be followed. Certainly
if I were confirmed, I would take my oath very, very seriously
to try to defend any Act passed by Congress, but it does appear
to me, based upon my review of history and precedent is that
Presidents and White Houses on both sides of the aisle have
taken the consistent position that a President may choose to
not enforce the statute that the President believes is
unconstitutional.
Senator Cornyn. I would like to shift subjects a little bit
to return to something we have been talking about off and on
all day, and that is the policy reasons behind the Geneva
Convention decision, and I hope that I have been able to
establish the position the administration takes and the
position that you advocated for enjoys broad support in the
legal community, and by scholars of international law, and we
can go back to that again if some of my colleagues still
disagree with me and the administration on that. But I can
think of at least four reasons, four important reasons why the
President's legal determination was correct, and this has to do
again with giving terrorists, conferring upon them the status
of prisoners of war as provided for under the Geneva
Convention.
First of all, is it not true that the Geneva Convention
gives prisoners of war rights and protections that could
directly endanger their captors if given to combatants who do
not respect the laws of war? And if you agree with that, could
you please talk about some of them?
Judge Gonzales. If a determination were made that the
Geneva Convention applied in our conflict with al Qaeda, we
would have to provide certain things, certain access to certain
items of comfort that could be used as weapons against our
soldiers. Also we would be limited in our ability to put them
in individual cells. They would have the right to congregate
together and to talk, to talk about strategy and responding to
interrogations, to perhaps talk about how to attack a guard, or
perhaps talk about how to plan an escape. The additional
problem with providing Geneva protections, prisoner of war
protections to terrorists who do not abide by the laws of war,
is that we would in essence provide combat immunity for their
engaging in war crimes.
Senator Cornyn. If I can interrupt you briefly, is that not
what John Walker Lindh tried to do, the ``American Taliban'' I
believe he was known as? He claimed an immunity by virtue of
his prisoner of war status against criminal prosecution for
committing war crimes; is that right?
Judge Gonzales. That's my recollection.
Senator Cornyn. When I traveled to Guantanamo Bay about a
year or so ago to see for myself the facilities and the
conditions under which detainees were kept, I was interested to
learn about certain techniques, here again, humane techniques,
but techniques nonetheless for eliciting cooperation and
intelligence from some of these detainees. For example, the
providing of certain incentives, for example, what the food
that was provided. I remember specifically one instance where
detainees who cooperated a little more got to cook out on a
grill, basically, or food cooked out on a grill as opposed to
the institutional type food they got. They were permitted to
move from individual cells into group settings where they could
make more arrangements for their own comfort and convenience.
Are those the sorts of things that we could do to elicit
actionable intelligence if the Geneva Convention applied and
these were conventional prisoners of war?
Judge Gonzales. Senator, if the Geneva Conventions applied,
you would be prohibited from providing incentives in order to
induce cooperation. I, like you, have been down to Guantanamo,
and much of the operation of the bases at Guantanamo are to
induce cooperation, and we would not be able to do that if the
Geneva Conventions applied.
Senator Cornyn. And indeed, I think it has been recounted
time and time again, one reason we do not use torture as a
matter of policy, period, but one pragmatic reason why it does
not work is because people will say things under those
circumstances that do not provide good actionable intelligence.
So I think one of the things I observed and was really
fascinated to see in practice was the use of some of these
essentially incentives that provided for greater cooperation,
but gave us the results we needed, which in fact have saved
American lives.
Let me ask you, why would extending the Geneva Convention
to terrorists, why would that have a negative impact on
international law? What would that do to any incentive that
might exist on the part of our enemies to comply with the laws
of war?
Judge Gonzales. Senator, it seems to me, it seems logical
to me that you want to reward good behavior, and if you want
members of al Qaeda to fight according to the laws of war, you
don't do that by providing them prisoner of war legal
protections.
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. 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, but information is very, very important, and if there
are ways we can get that information, for example, through
inducements, it seems to me that there is a responsibility of
this government to exercise those needs.
Senator Cornyn. Finally, let me just say that that opinion
that you just expressed finds you in pretty good company. I
have in my hand a legal textbook called ``The Legal Status of
Prisoners of War'' by Rosas, Alan Rosas, that says on page 344:
The only effective sanction against perfidious attacks in
civilian dress is a deprivation of prisoner of war status. And
I take it you would agree with that conclusion?
Judge Gonzales. Yes, sir.
Senator Cornyn. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Cornyn.
Senator Kennedy?
Senator Kennedy. Thank you very much, Mr. Chairman.
I neglected in my first round to indicate how pleased I am
with your chairmanship. I hope it is not too late to say that I
have enjoyed working with Senator Specter over a long, long
period of time, since he has been on the Committee, and look
forward to his service on this Committee. I join with those who
think that this Committee is well served with this Chairman.
Chairman Specter. Thank you very much, Senator Kennedy.
Senator Kennedy. Now, Mr. Gonzales, let me, if I could,
there are sort of three general areas I want to try and cover
in the time that I have. During my last round of questions, and
the reason I come back to this is because, when you come right
down to it, that Bybee memo, and the views expressed in that,
certainly was policy. It was printed in the working group's
report. It was reported by those over in Iraq. It has been
referred to in the Armed Services Committee, in the Schlesinger
report, as being the policy of the Department of Defense. And
the change that memorandum gave, in terms of how we were going
to treat detainees in there, I believe, runs roughshod or did
run roughshod over the Geneva Conventions. But we have a
dispute.
You indicated that this was served up by the Office of
Legal Counsel, and it is the interpretation that Legal Counsel
has provided for statutes that we have passed in 1994.
Judge Gonzales. Senator, if I may, of course, the August 1
memo has been withdrawn. I mean, in essence, it has been
rejected. It does not represent the views of the executive
branch. The views of the executive branch regarding the anti-
torture statute are now reflected in the December 30th memo
which, as we know, the deputy attorney general announced in
June that this was going to happen. It was going to be
withdrawn. The opinion would be revisited and issued by the end
of the year, and it was issued before the end of the year at
the request from a member of this Committee.
Senator Kennedy. Well, I think that is very good news in
terms of the future. I think that is very good news. But over
this period of time, there have been the most extraordinary
abuses that have been reported by DIA and the FBI. And you say
now all of that memorandum that was interpreted that way is no
longer operative. But over a period of time, as has been
referenced by others in the Committee, there is no question in
my mind--I have listened to you answer the questions about what
happened at Abu Ghraib--that there were military personnel that
bear responsibility, and there is no question that there was a
lack of training.
But the third part that you have not referenced in any of
your answers is that there was also the working group report
that effectively would have justified and approved those kinds
of activities. Now, you may say that you differ with that. That
was the document at DOD, and there is no reason to believe that
the same kind of document was not given to the CIA. Was it
given to the CIA--the Bybee memo?
Judge Gonzales. Sir, first of all, I am not sure what--was
the memo given to the CIA? I suspect that it was given--it
represented the administrative branch position, and so it would
not surprise me, of course, that agencies involved in the war
on terror--
Senator Kennedy. Who would have given it to the CIA?
Judge Gonzales. Sir--
Senator Kennedy. Was not this memorandum directed to you?
Judge Gonzales. Sir, it was addressed to me.
Senator Kennedy. Was it not requested by you?
Judge Gonzales. Sir, I do not recall if it was requested
by--
Senator Kennedy. We can--
Judge Gonzales. Let me just say, Senator, in practice, how
this may work. An agency, of course, has its own in-house shop.
An issue comes up, their lawyers get involved in providing
legal advice. From time to time, the issues are so complicated
or so complex it may cut across various agencies that the issue
gets elevated up to the Office of Legal Counsel. And so it may
well have been that the CIA or DOD asked OLC, as an initial
matter, for their views on this, and then, for whatever reason,
the memo was addressed to me.
I accept responsibility that the memo is addressed to me.
Senator Kennedy. Well, do you accept responsibility that
you requested it?
Judge Gonzales. Sir--
Senator Kennedy. Is this such a difficult--
Chairman Specter. Let him answer the question, Senator
Kennedy.
Judge Gonzales. I don't recall specifically whether or not
I requested this memo or whether or not the initial request
came from the CIA or the CIA came to me. I don't recall,
Senator.
Senator Kennedy. You do not have notes about these various
meetings? You do not jot these down, so you would not be able
to know whether this happened? You have no notes, no
information, no memoranda that would indicate? On an issue of
this kind of importance and consequence, at the time that this
country was at war on this and where there is enormous
pressure, as we understand now, to gain information and
intelligence from this, you would not be able, even today, to
be able to respond to the question about how this was
initiated, particularly when it is against the background where
OLC indicates that it came from you and from the news reports?
This is not enormously complicated--I want to get into some
other kinds of things--the fact that you basically initiated.
Judge Gonzales. Senator--
Senator Kennedy. Your answer is you cannot remember.
Judge Gonzales. Senator, I certainly don't want to be
argumentative with you. I really do not remember. It seems to
me what is important here is that we realize, there was a
recognition within the agencies, and I believe within the White
House, that this was an important issue and that the Department
of Justice should play its traditional role of providing legal
advice about the parameters of this statute.
Senator Kennedy. I just want to point out, if it is true,
the Post reported, that you held several meetings at which the
legality of interrogation techniques, such as threat of live
burial and water-boarding were discussed; do you remember that?
Judge Gonzales. Senator, I have a recollection that we had
some discussions in my office, but let me be very clear with
the Committee. It is not my job to decide which type of methods
of obtaining information from terrorists would be most
effective. That job responsibility falls to folks within the
agencies. It is also not my job to make the ultimate decision
about whether or not those methods would, in fact, meet the
requirements of the anti-torture statute. That would be a job
for the Department of Justice. And I never influenced or
pressured the Department to bless any of these techniques. I
viewed it as their responsibility to make the decision as to
whether or not a procedure or method of questioning of these
terrorists that an agency wanted, would it, in fact, be lawful.
Senator Kennedy. Well, just as an attorney, as a human
being, I would have thought that if there were recommendations
that were so blatantly and flagrantly over the line, in terms
of torture, that you might have recognized them. I mean, it
certainly appears to me that water-boarding, with all its
descriptions about drowning someone to that kind of a point,
would come awfully close to getting over the border and that
you would be able to at least say today there were some that
were recommended or suggested on that, but I certainly would
not have had a part of that as a human being.
Judge Gonzales. Well--
Senator Kennedy. But as I understand, you say now that no
matter what they recommended or what they discussed, there was
not going to be anything in there that was going to be too bad
or too outrageous for you to at least raise some objection.
Judge Gonzales. Senator, of course, we had some discussions
about it. And I can't tell you today whether or not I said,
``That's offensive. That's not offensive.'' But it seems to me
it's the job of the lawyers to make a determination as to
whether or not something is lawful or not and then for the
policymakers, the principals, to decide whether or not this is
a method of receiving information from terrorists is something
that we want to pursue, that the lawyers have deemed lawful,
under the directive of a President, who says that we should do
everything that we can to win this war on terror, so long as we
are meeting our legal obligations.
Senator Kennedy. This is all against a background, as you
know, Mr. Gonzales, of a series of statutes on torture that the
Congress has passed in recent times. This is not a new issue.
We had the Federal Antitorture Statute in 1994 that both
President Reagan and President Bush, unanimous Committee, the
Federal War Crimes Act of 1996, the Uniform Code of Military
Justice goes back to 1950, the Convention Against Torture
ratified by Congress, one was domestic, the other
international. The International Covenant on Civil and
Political Rights, in 1992, provides ``no one shall be subject
to torture or cruel, inhumane, degrading treatment or
punishment.'' And then last year Congress reaffirmed, virtually
unanimously, that the Nation's commitment not to engage in
torture, cruel, inhumane and degrading.
So this is a subject matter that Republicans and Democrats
have spoken out very clearly, and many of us find, and perhaps
you do--certainly, you do at the present time--that the Bybee
memo certainly was in conflict with those particular statutes.
But let me ask you this: In these reports on Guantanamo--
Chairman Specter. Senator Kennedy, your red light is on,
but why do you not finish the question.
Senator Kennedy. What I would be interested in, should you
be confirmed, is what you are going to do with regards to the
FBI. They have been involved in many of these reports. It would
be interesting if you could tell the Committee what you are
going to do, confirm to do, about the involvement of the FBI in
this. And I was going to ask, just the two, if the fact that
this memo has been repealed, whether that information now has
been communicated to the CIA and the CIA has accepted it and
DOD, if they are all together. But if you could just let me
know--
Judge Gonzales. Senator, my presumption is--
Senator Kennedy. I thank the Chair.
Judge Gonzales. --my presumption is it has been
communicated to the agencies. I have not, myself, communicated
the new position, but again it does represent administrative
policy.
And with respect to FBI involvement, the recent reports
about these FBI e-mails about abuses in Guantanamo, quite
frankly, surprised and shocked me because it is certainly
inconsistent with what I have seen. I have traveled down there.
And it is certainly inconsistent with other reports I have seen
with respect to investigations about activities in Guantanamo.
I would like to sit down with the folks at the FBI and
other folks within the Department of Justice to make sure that
the facts are accurate because I know one very important fact
in these stories, the FBI--much was made of the fact about an
FBI agent referring to an Executive order by the President
authorizing certain techniques. That is just--that is just
plain false. That never occurred. And so if something like that
is wrong in these e-mails, there may be other facts that are
wrong in the e-mails. And what I am suggesting is I just need
to, if confirmed, I need to have the opportunity to go into the
Department and the FBI and just try to ascertain the facts.
Chairman Specter. There has just been the call of the roll
call on the counting of the electoral votes. So we will recess
very, very briefly. I will go directly to the floor and return,
and I am going to take Senator Brownback with me. And on
return, Senator Brownback will commence his next round of
questions.
[Recess from 2:43 p.m. to 2:57 p.m.]
Chairman Specter. The Judiciary Committee will resume the
hearing on Judge Alberto Gonzales to be Attorney General of the
United States. We were interrupted for a challenge on the
counting of the electoral votes, and if you are interested in
the result, I cannot tell you because we left before the tally
was up.
Thank you, Senator Brownback, for returning so that we can
lose no time and proceed with the hearing.
Judge Gonzales is en route, so we shall commence
momentarily.
Senator Brownback. Sounds good by me.
Chairman Specter. In the meantime, it might be worth using
the time, since we have a moment, to notify all Senators, who
are interested in their second round, that this is a very good
time to come. Anybody who returns is likely to have priority
treatment.
Welcome back, Judge Gonzales.
Judge Gonzales. My apologies, Senator.
Chairman Specter. No apology necessary. Did you vote?
[Laughter.]
Chairman Specter. Senator Brownback?
Senator Brownback. Thank you very much, Mr. Chairman. I
appreciate that.
Judge Gonzales, I wanted to ask you, on a couple of
different areas that have come up somewhat, but I wanted to get
into a little more specific areas. One is on antitrust laws,
and the other one is on the Solomon amendment. And these are
contact points and work that the Department of Justice will be
involved in at any rate, and I think that you will be directly
involved in as Attorney General.
The Department of Justice recently approved a major
telecommunications merger between Cingular and AT&T Wireless.
And now Sprint, a company that I am familiar with--it is
headquartered in my State--and Nextel have announced their
intentions to merge. Many expect more mergers from the
telecommunications industry to take place in the near future.
It is an issue that I think a lot of people in the industry
have anticipated just with the nature of what has taken place.
It is a very dynamic business. A lot of things are happening
with this, a number of companies were formed, a number have
broken up, a number are coming back together.
I would just like to get, to the degree that you can
discuss this topic, your view on how DOJ, under you, under your
leadership, should be allowing these types of mergers, what
sort of factors you may look at or would consider in these type
of mergers and would hope that you could explain your views on
how aggressive or otherwise the Department of Justice should be
in its antitrust prosecutions.
Judge Gonzales. Senator, thank you. I believe that
competition in this industry is important. And as to whether or
not what factors or standards we would look at, the Department
of Justice has longstanding regulations regarding mergers and
how they should be considered. I have not become an expert on
those regulations, but obviously would talk to the experts in
this area and would be happy to visit with you at the
appropriate time and share with you my views after becoming
more educated about how this process works.
Senator Brownback. Do you have any thoughts, in particular,
on the telecommunications industry--it has been a very dynamic
industry. There have been a number of things that have been
going on, and these do seem to be queued up--of its
concentration or lack thereof, its competition or lack thereof?
Judge Gonzales. I do not, Senator. I really would like the
opportunity to study this issue more and be happy to visit with
you at the appropriate time.
Senator Brownback. I do think that is something we are
going to see, and it is such a key part of the economy. It is
the pavement of the superhighway. It is how we communicate. The
wireless industry has grown so rapidly. The number of people in
the country that use the cell phone now as their primary phone
has grown exponentially. It will be a majority, if it is not a
majority already, of its usage, and it just has been a very
dynamic field, a lot of new players coming into it to compete
as well.
And so it seems to me that it is one of those that has to
be looked at from the totality of the picture of who all is
providing telecommunications service. Is it an Internet
provider? Is it an old-line phone company? Is it somebody
coming in new with a different satellite or other type of
wireless service, whether celestial or otherwise? And I think
it is one that is going to be important for our economic growth
and vitality in this country. I know it is going to demand some
of your time.
There was a letter sent to you, January 4th, from four
members of this committee regarding the Solomon amendment. This
may not be something you are familiar with yet. I am sorry. It
was not sent to you. It was sent to Attorney General Ashcroft.
That law prohibits institutions of higher learning that receive
Federal funds from discriminating against military recruiters.
It has been an issue of some visibility.
The law was struck down by the Third Circuit Court of
Appeals in November. The Department of Justice has yet to
announce whether it will seek further review of that decision.
As Attorney General, what would you do to defend and enforce
the Solomon amendment?
Judge Gonzales. Well, Senator, as Attorney General, I do
have an obligation to try to defend all congressional statutes
as a presumption of constitutionality. I will, of course, have
to confer with the lawyers at the Department of Justice in
making a decision as to whether or not an appeal should be
pursued, but beyond that, I have nothing further to add in
response to your question.
Senator Brownback. Judge Gonzales, another area that is
likely to come up is the issue that had a lot of State
interest, State laws coming forward on the issue of definition
of marriage coming from the courts in Massachusetts, coming
from the courts now in a number of places. The Congress had
previously acted on the Defense of Marriage Act, which the
lawyers that I have talked to, most have viewed this as
something that will not stand a constitutional test, a
constitutional scrutiny, and therefore have pushed the issue of
a Federal constitutional amendment, defining marriage as the
union of a man and a woman. A number of States have taken this
up, I think 13. All have passed the issue of a traditional
definition in State constitutional law.
Have you had a chance to think about this issue some, from
the position of Attorney General, if a challenge to the Defense
of Marriage Act comes in front of the Federal courts that the
Attorney General's Office is asked to look at to determine its
constitutionality and the position that you would take?
Judge Gonzales. Before offering up a definitive conclusion
about that, Senator, I, of course, would want to talk to the
lawyers at the Department of Justice. But, again, the
presumption is that the statute is constitutional, and my
presumption is, is that I would do everything I could to defend
it.
Senator Brownback. It is an issue that is going to continue
to be with us, one of those very difficult issues of society to
deal it, and it continues to be thrown to the courts; one that
I think legislative bodies are very capable of handling, but,
nonetheless, the issues migrate to the courts, and I think it
is one you are going to see quite a bit of.
Mr. Chairman, thank you very much and, Judge Gonzales, for
being here.
Chairman Specter. Thank you, Senator Brownback.
We turn now to Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Judge Gonzales, thank you for your patience in answering
all of these questions today.
Chairman Specter. Before you begin, Senator Feingold, might
I, again, say to any Senators who are looking for a second
round of questions, that now is a good time to come to the
hearing room. And I would ask the staff for Senators who are
interested in a second round to notify your principal, so that
we can move ahead.
I think there is a realistic likelihood of finishing up the
hearing today, if all Senators are present to take the time in
an orderly sequence.
Pardon the interruption, Senator Feingold. The floor is
yours, and we will start the clock at the beginning.
Senator Feingold. Thank you for the opportunity to ask
another round of questions. Again, thanks, Judge Gonzales.
Let me return, first, to the death penalty issue and then
move on to some other questions.
We talked earlier about your specific role vis-a-vis George
Bush and clemency proceedings and about a couple of cases. Let
me ask you more generally.
Critics of your clemency memo say you did not make serious
inquiries into viable claims of innocence. Based on your review
of the information you gathered in those cases, were you
certain then, and are you certain today, that all of the
individuals whose execution you and George Bush approved were,
in fact, guilty?
Judge Gonzales. If, in fact, there were questions about
guilt or innocence or issues raised in a clemency petition that
had not been reviewed by the courts, then the position of then-
Governor Bush was that he would not grant clemency.
Obviously, of paramount concern was whether or not was this
person guilty of the crime convicted of. And you must
understand, Senator, that I don't, as counsel, I didn't have
the kind of resources you would normally find in a DA's office.
I wouldn't have the opportunity or resources to go out and
reinterview witnesses and physically examine evidence.
Oftentimes there were allegations made in a clemency petition
that had never been made in the trial or had been raised in the
courts and had been rejected, had been looked at by the courts
and had been summarily rejected. And so the fact that something
is raised in a clemency petition and is not mentioned in the
memo doesn't mean that it was ignored, by any stretch of the
imagination.
Senator Feingold. What I am asking here, Judge, is your
personal opinion, at this point.
Judge Gonzales. My personal view--
Senator Feingold. And this is, I am sure you will be the
first to say, an incredibly difficult process for anyone to be
involved in. At this point, your own opinion, are you certain
that all the individuals whose executions you and George Bush
approved were, in fact, guilty?
Judge Gonzales. I could not have made a recommendation for
the President--for the Governor to deny clemency if there was
any question in my mind about the guilt or innocence of someone
who had submitted a petition for clemency to this Governor.
Senator Feingold. I guess I will leave it at that. Thank
you.
Would you be in favor of statutes, on the State or Federal
level, that would permit access to evidence for DNA or other
forensic testing to determine if an innocent person has been
executed, if a colorable claim of innocence has been made? As I
understand it, there is such legislation being considered in
Texas at this time.
Judge Gonzales. This is after the fact--
Senator Feingold. Yes.
Judge Gonzales. --after someone has been executed?
Senator Feingold. Yes. Correct.
Judge Gonzales. Senator, I think that that is something
that I would want to look at. I hesitate to comment on
legislation without looking at specific language of the
legislation. Obviously, the administration speaks with one
voice about legislation.
I will say that, if we are going to apply the death
penalty, we need to make sure, as I said earlier to you, is
that it should be applied fairly, and only the guilty should be
punished.
As technology evolves and the use of DNA has become more
and more common, I think it is something that we ought to
consider.
Senator Feingold. I guess, if you could provide me in
writing, after you have had a chance to look at the Texas
legislation, your reaction to it.
Judge Gonzales. I would be happy to do that, Senator.
Senator Feingold. Thank you.
Let me switch to a subject that has come up a lot here
today. In the August 2002 memorandum, the Justice Department
concludes that the President, as Commander in Chief, may
authorize interrogations that violate the criminal laws
prohibiting torture and that the Congress may not
constitutionally outlaw such activity when it is authorized by
the President. This is the claim, essentially, that the
President is above the law so long as he is acting in the
interest of national security.
A December 30 rewrite of the August memorandum does not
repudiate this view. It simply says the issue is irrelevant
because the President has prohibited torture.
Today, in response to questions on this subject, you have
been unwilling to repudiate this legal theory. You have danced
around the question a bit. But as I understand your answers so
far, you have said there may be a situation where the President
would believe a statute is unconstitutional and would therefore
refuse to comply with it, but would abide by a court's decision
on its constitutionality. You, also, I am told, said that many
Presidents have asserted the power not to enforce a statute
that they believe is unconstitutional. But there is a
difference between a President deciding not to enforce a
statute which he thinks is unconstitutional and a President
claiming to authorize individuals to break the law by torturing
individuals or taking other illegal actions.
So what I want to do is press you on that because I think
perhaps you have misunderstood the question, and it is an
important one. It goes to a very basic principle of the country
that no one, not even the President of the United States, is
above the law. Of course, the President is entitled to assert
that an Act of Congress is unconstitutional.
This President did so, for example, with respect to some
portions of our McCain-Feingold bill when he signed it, but his
Justice Department defended the law in court, as it is bound to
do with every law duly enacted by the Congress. And his
campaign and his party complied with the law while a court
challenge was pending. No one asserted that the President had
the power to ignore a law that he thought was unconstitutional.
The question here is what is your view regarding the
President's constitutional authority to authorize violations of
the criminal law, duly enacted statutes that may have been on
the books for many years when acting as Commander in Chief?
Does he have such authority? The question you have been asked
is not about a hypothetical statute in the future that the
President might think is unconstitutional. It is about our laws
in international treaty obligations concerning torture. The
torture memo answered that question in the affirmative, and my
colleagues and I would like your answer on that today.
I, also, would like you to answer this: does the President,
in your opinion, have the authority, acting as Commander in
Chief, to authorize warrantless searches of Americans' homes
and wiretaps of their conversations in violation of the
criminal and foreign intelligence surveillance statutes of this
country?
Judge Gonzales. Senator, the August 30th 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. And, in addition to that,
as 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 that--
Senator Feingold. Judge Gonzales, I have asked a broader
question. I am asking whether, in general, the President has
the constitutional authority, at least in theory, to authorize
violations of criminal law when there are duly enacted statutes
simply because he is Commander in Chief? Does he have that
power?
Judge Gonzales. Senator, in my judgment, you have phrased
sort of a hypothetical situation. I would have to know what is
the national interest that the President may have to consider.
What I am saying is it is impossible to me, based upon the
questions you have presented to me, to answer that question. I
can say that there is a presumption of constitutionality with
respect to any statute passed by Congress. I will take an oath
to defend the statutes. And to the extent that there is a
decision made to ignore a statute, I consider that a very
significant decision and one that I would personally be
involved with, I commit to you on that, and one I will take
with a great deal of care and seriousness.
Senator Feingold. Well, that sounds to me like the
President still remains above the law.
Judge Gonzales. No, sir.
Senator Feingold. If this is something where you take a
good look at it, you give a presumption that the President
ought to follow the law, you know, to me that is not good
enough under our system of Government.
Judge Gonzales. Senator, if I might respond to that, the
President is not above the law. Of course, he is not above the
law. But he has an obligation, too. He takes an oath as well.
And if Congress passes a law that is unconstitutional, there is
a practice and a tradition recognized by Presidents of both
parties that he may elect to decide not to enforce that law.
Now, I think that that would be--
Senator Feingold. I recognize that and I tried to make that
distinction, Judge, between electing not to enforce as opposed
to affirmatively telling people they can do certain things in
contravention of the law.
Judge Gonzales. Senator, this President is not--it's not
the policy or the agenda of this President to authorize actions
that would be in contravention of our criminal statutes.
Senator Feingold. Finally, will you commit to notify
Congress if the President makes this type of decision and not
wait 2 years until a memo is leaked about it?
Judge Gonzales. I will commit to advise the Congress as
soon as I reasonably can, yes, sir.
Senator Feingold. Well, I hope that would be a very brief
period of time, and I thank you again, Judge Gonzales.
Judge Gonzales. Thank you, Senator.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Feingold.
Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman.
Senator Leahy. Mr. Chairman, before we start that, I would
ask consent that--Senator Feinstein has the flu, and she would
like to submit some questions. She thought rather than
contaminate the whole Committee, she could submit a couple
questions.
Chairman Specter. Well, of course, we will await Senator
Feinstein's questions, and I am sure that Judge Gonzales will
submit them promptly. We are making every effort--and it may be
worth just a public statement very briefly--to move ahead with
the process so that if confirmation is possible in advance of
the Inauguration Day, we will try to meet that schedule. It may
be difficult because Senators will not be here. We will have to
have an executive session. But when written questions are
submitted, Judge Gonzales is aware of the timetable that we are
trying to meet to accommodate the President's request to the
extent we can. But the Committee has its procedures, and we
will give due deliberation. But when written questions are
submitted, the earlier they are received, the better chance
there is of expediting Senate consideration.
Judge Gonzales. Thank you, Mr. Chairman.
Chairman Specter. Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman, and thanks for
your courtesy here with the votes and everything else.
I just want to first go back to that nuclear option we
talked about. My friend from Oklahoma was speaking about this.
Unfortunately, I was not here. Now I will speak about it and he
is not here. But from what I understand, he said, well, the
Constitution says the Senate can make its own rules.
That is not the point. That misses the point entirely. The
overruling of this, what would happen in the chair is the
Senate rules would be overruled by the Vice President on the
basis that it is unconstitutional to require more than a
majority for a judge. The Senate rules are very clear. You need
two-thirds to change the rules. And just by the stroke of a
pen, what the Vice President and those who are urging him are
attempting to do is say on his own that is unconstitutional,
and I ask and I challenge my friend from Oklahoma, anyone from
the other side who claims to be a strict constructionist, or,
in all due respect, you, Mr. Counsel, to find the words in the
Constitution that say that. Everywhere else we want to define
the Constitution narrowly as could be, only the words, no
expansive reading. But all of a sudden because 10 out of 214
judges have not been approved, we are going to say, oh, well,
we divine in it in the Constitution.
Well, that is a Pandora's box if there ever was one, and
the sophistry in the thinking to try and achieve an end to me
does not rise to the dignity, wisdom, and majesty that this
body has shown itself capable of. But that is my answer to my
friend from Oklahoma. Well, the Constitution says the Senate
can make its own rules. We have a rule, two-thirds. Can the
Vice President overrule it on a constitutional basis? And if
you are strict constructionist, you better find the words in
the Constitution that says he can.
Now, what I would like to ask you, again, Mr. Counsel,
because you have had a little time to think about this, and I
asked you in all due respect--I guess we met about 3 weeks ago.
We had a very nice, friendly meeting. You know, on too many of
these issues we are not getting answers. And, again, as I said,
there is a higher standard for judges. A couple of our judge
nominees did not get approved because they would not answer any
questions. I do not know if it rises to that level with the AG,
but I certainly think it is better for the Republic if there
are answers.
You did tell me that you couldn't find words in the
Constitution that said you needed a majority to vote on judges.
That is clear. I went back and just checked the Constitution
for the 48th time myself. You can check it again if you want.
But what is your view on saying that it is unconstitutional for
the Senate to require more than a majority to approve judges?
Judge Gonzales. Senator, I appreciate your question.
Senator Schumer. It is going to be a very important
question over the next 6 months.
Judge Gonzales. Senator, again, respectfully, my answer
remains the same. I don't have a view as to whether or not such
a procedure would be constitutional. My judgment, and others'
within the White House, is that this is a Senate internal
matter to be worked out amongst the Members of the Senate.
Senator Schumer. Then that would follow we should follow
the Senate rules, which say you need two-thirds.
Judge Gonzales. Sir, I will let the Senators debate that.
Senator Schumer. Okay.
Judge Gonzales. Of course.
Senator Schumer. Let me ask you another question, and that
is this: We have had a lot of talk about the Geneva Convention
and what has happened in the past. I want to ask you a
prospective question about the Geneva Convention. Do you think
that we should seek revisions of the Geneva Convention in the
future? I do not know if that is right or wrong, but do you
think we should? Have there been any discussions in your office
as Counsel or in the White House or in the administration as to
whether we should seek those revisions? And if there is a
determination that we should seek certain revisions--and I do
not know what they would be; they might be reasonable--should
Congress be include in that discussion?
Judge Gonzales. Thank you, Senator, for that question. I
think it's a very good question because we are fighting a new
type of enemy and a new type of war.
Senator Schumer. Sure.
Judge Gonzales. Geneva was ratified in 1949, Geneva
Conventions, and I think it is appropriate to revisit whether
or not Geneva should be revisited.
Now, I'm not suggesting that the principles of Geneva
regarding basic treatment, basic decent treatment of human
beings, should be revisited. That should always be our
polestar. That should always be the basis on which we look at
this. But I am aware--there has been some very preliminary
discussion as to whether is this something that we ought to
look at. I'm also aware that certain academicians and
international law scholars have written on this subject as to
whether or not should we revisit Geneva and asked whether or
not the Senate should play a role or the Congress should play a
role. Obviously, if you're talking about modifications of
Geneva or a new treaty, the Senate would play a very important
role in the ratification process.
Senator Schumer. I understand that, but what I am saying is
if the new administration were to begin internal discussions on
whether Geneva should be modified and in what way, would they
include the Senate in those discussions rather than saying here
is what we recommend? You know, I mean, obviously this needs to
be negotiated in a multilateral way. But would you include us
in those--or would you recommend to the President that we be
included in those discussions?
Judge Gonzales. Before answering a question, I want to
emphasize, when I indicate that there's been some discussion
within the White House or the administration, it's not been a
systematic project or effort to look at this question, but
some--I know certainly with the people that I deal with, the
lawyers have questioned maybe this is something that ought to
be looked at. So I do not want to leave the impression--
Senator Schumer. I do not hold any brief against that.
Obviously, you can re-examine these things.
Judge Gonzales. And it seems to me that it's probably
always better to consult with the Senate since the Senate is
going to have a role in the ratification process. I think
consultation is usually better than not consulting.
Senator Schumer. Okay. And there is no proposal you know
that is being formulated right now, is there?
Judge Gonzales. Not that I'm aware of, Senator.
Senator Schumer. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Schumer.
Senator Durbin?
Senator Durbin. Thank you, Mr. Chairman.
I think this has been asked earlier, Judge Gonzales, but at
the risk of repeating, over the last 4 years Attorney General
Ashcroft has appeared before the Judiciary Committee five
times. His appearances before the Committee are as rare as
humility and brevity in the Senate. And I am hoping that we
will see a new approach and a new dialogue between our new
Attorney General and this Committee.
I believe the Chairman has already asked you this, but for
the record, is it your plan to come see us a little more often
than five times in four years?
Judge Gonzales. Senator, as I said in my meeting with you,
I enjoy dealing personally face-to-face with the Senators.
Senator Durbin. Still?
Judge Gonzales. Even after this hearing. Yes, that would be
my commitment. I think in order for the Department to be
successful, I need the cooperation--if confirmed, I need the
cooperation of this Committee, and I would certainly endeavor
to be more available, provide greater--be available to the
Committee, yes, sir.
Senator Durbin. Thank you. My gifted legal staff listened
closely to your answers to my questions and believe you gave a
very carefully worded lawyer answer to a question, which I
missed. And so for the record, I want to make certain that I
understand your position again on this torture issue. Can U.S.
personnel legally engage in torture under any circumstances?
Judge Gonzales. I'm sorry. Can U.S. military personnel--
Senator Durbin. U.S. personnel. Of course, that would
include military as well as intelligence personnel, or other
who are under the auspices of our Government.
Judge Gonzales. Senator, there are obligations under the
treaty against torture and there are obligations under the
anti-torture statute. There are obligations, legal obligations
in the UCMJ. And so I suppose without--I don't believe so, but
I'd want to get back to you on that and make sure that I don't
provide a misleading answer. But I think the answer to that is
no, that there are a number of laws that would prohibit that.
Senator Durbin. I would like if you would give me a
definitive answer.
Judge Gonzales. Yes, sir.
Senator Durbin. And then the follow-up question which they
tell me I did not ask was whether or not it is legally
permissible for U.S. personnel to engage in cruel, inhuman, or
degrading treatment that does not rise to the level of torture.
Judge Gonzales. Senator, our obligations under the
Convention Against Torture with respect to cruel, inhumane, and
degrading conduct, as you know, is under Article 16, I believe.
As Counsel to the President--
Senator Leahy. I am sorry. I cannot hear you. I am sorry,
Judge.
Judge Gonzales. I am sorry, Senator. As Counsel to the
President, my job was to ensure that all authorized techniques
were presented to the Department of Justice, to the lawyers, to
verify that they met all legal obligations, and I have been
told that that is the case.
As you know, when the Senate ratified the Convention
Against Torture, it took a reservation and said that our
requirements under Article 16 were equal to our requirements
under the Fifth, Eighth, and 14th Amendment. As you also know,
it has been a long-time position of the executive branch and a
position that has been recognized and reaffirmed by the Supreme
Court of the United States that aliens interrogated by the U.S.
outside the United States enjoy no substantive rights under the
Fifth, Eighth, and 14th Amendment. So as a legal matter, we are
in compliance. But let me just emphasize, we also believe that
we are in--we want to be in compliance as a substantive matter
under the Fifth, Eighth, and 14th Amendment. I know Jim Haynes
wrote a letter to Senator Leahy about whether or not we were
meeting our obligations, and the response certainly would lead
one to conclude that what we were saying was that we were
meeting our substantive obligations under the Fifth, Eighth,
and 14th Amendment. And no one has told me otherwise. My
understanding is that we are meeting our obligations under
Article 16.
Senator Durbin. It is your belief that we are legally bound
to do that; is that correct?
Judge Gonzales. Well, subject to the reservations taken by
the Senate in ratifying the treaty--
Senator Durbin. Just by definition, which definitions we
use.
Judge Gonzales. We are meeting our legal obligations, yes,
sir.
Senator Durbin. And so this morning we read in the paper
about rendition, an argument made that we took a prisoner whom
we could not, should not torture legally, and turned him over
to a country that would torture him. That would be illegal as
well, would it not?
Judge Gonzales. Under my understanding of the law, yes,
sir, that we have an obligation not to render someone to a
country that we believe is going to torture them. That is
correct.
Senator Durbin. All right. Now, let me ask you quickly
about your situation as counsel to the Governor of Texas when
the President served in that capacity. I know a lot of
questions have been asked about the memos that you wrote. I
want to go to a more fundamental question. It is clear to me,
having served on this Committee and by human experience, that
if you are black or brown in America, you are more likely to be
detained, arrested, convicted--prosecuted and convicted and
serve time for many crimes in this country. I think that is a
sad reality, but that is the reality of America today.
I would like to ask you your observation of that. I can
give you statistics--I will not bore you or fill the record
with them--about the disproportionate number of black and brown
people who are in prison today and on death row. I would like
to hear your sentiments as our aspiring Attorney General on
this obvious injustice in America.
Judge Gonzales. Senator, I have a vague knowledge about the
statistics that you refer to. I believe that if we are going to
have the death penalty--and this is consistent with the
President's beliefs--that it should be administered fairly and
only the guilty are punished.
If, in fact, the case is that only minorities--Hispanics
and African-Americans--are receiving the death penalty, it
would be hard for me to conclude that that is a fair system.
And if that were indeed the case, I think that we would--we
should re-examine the application of the death penalty.
I personally do believe in the death penalty. I do believe
that it deters crime and saves lives. But I fundamentally
believe that it has got to be administered fairly.
Senator Durbin. I am afraid I believe the challenge goes
beyond death penalty issues. Drug crimes are another
illustration where disproportionately black and brown people
are imprisoned over drug crimes, where many, if not most, of
the customers are white and do not face the same penalties. So
I hope that as you set that standard, it would apply to non-
death penalty situations which also raise these serious issues
of justice.
Judge Gonzales. I will commit to you that I will look at
that, Senator.
Senator Durbin. The other thing I would like to talk to you
about for a moment is mandatory minimum sentencing. You are
familiar with it, as every member of the Committee might be. I
will tell you that judges that I have spoken to tell me that we
have created an impossible situation for them in many
circumstances where they are required to imprison for
extraordinarily long periods of time people who frankly are no
threat to society and may have been bargained into prison by
other criminals seeking a better treatment.
I visited the women's prison in Illinois to find hundreds
of middle-age and elderly women knitting afghans and playing
pinochle who will serve 10-, 15-, and 20-year sentences because
a drug-dealing boyfriend ratted them out.
What is your feeling about mandatory minimum sentencing in
this country?
Judge Gonzales. Well, of course, Senator, we have to apply
the law. My judgment is that the sentencing should be tough,
but it should be fair, and it should be determinant. And
whether or not we have enough discretion or too much
discretion, I mean, the key is finding the right balance. It
shouldn't be the case that you have so much discretion that
someone who commits a crime in one State gets a much tougher
sentence than someone who commits the same crime in another
State. But this is a very difficult issue, as everyone in the
Committee knows. The Sentencing Guidelines are subject to
litigation, being reviewed now by the Supreme Court, and so we
are all waiting to see whether or not under Booker and Fanfan
that the Court is going to apply the Blakey decision to the
Sentencing Guidelines. And if that happens, I suspect you and I
and other--if I am confirmed, and other members of the
Committee will be spending a lot of time talking about
sentencing issues.
Senator Durbin. The last question is a brief one, and it
may have been touched on earlier. But when Senator Ashcroft in
your position aspired to this Cabinet-level appointment, he was
asked about Roe v. Wade, which he disagreed with on a political
basis, and his argument was he would enforce, in his words,
``settled law'' and Roe v. Wade was settled law in America.
I do not want to put words in your mouth, but could you
articulate in a few words your position about the enforcement
of Roe v. Wade or any other Court decision that you personally
or politically disagree with.
Judge Gonzales. Thank you, Senator. Of course, the Supreme
Court has recognized the right of privacy in our Constitution,
and in Roe the Court held that that right of privacy includes a
woman's right to choose to have an abortion. A little over a
decade ago, the Court in Casey had an opportunity to revisit
that issue. They declined to overturn Roe and, of course, made
a new standard that any restriction that constituted an undue
burden on the woman's right to choose could not be sustained.
My judgment is that the Court has had an opportunity, ample
opportunities to look at this issue. It has declined to do so.
As far as I'm concerned, it is the law of the land, and I will
enforce it.
Senator Durbin. Thank you. Thank you, Judge Gonzales.
Thank you, Mr. Chairman.
Chairman Specter. Senator Graham?
Senator Graham. Thank you, Mr. Chairman.
Judge, you still want the job?
[Laughter.]
Judge Gonzales. Yes, sir.
Senator Graham. Okay. That is good. I know you have been
asked a bunch of questions. The working group that was formed
in the Pentagon, as I understand it, occurred in the January
time frame of 2003, and one of the documents the working group
was working off of was the now infamous August DOJ memo. And I
asked you a question before about whether or not you believe
that the techniques in the August memo being espoused, whether
or not that would put some of our troops at risk for court
martial. And I do not expect you to answer that off the cuff,
but there was a series of JAG memos as part of this working
group that suggested that might be the case.
Have you ever seen those memos?
Judge Gonzales. I don't recall. I don't believe so, sir.
Let me just say that I don't believe it's the case that our
office had anything to do with the work of the working group. I
might also say that with respect to your question, the work of
the Department of Justice in reviewing--or in that August 1
opinion was related to a review of the anti-torture statute, a
particular statute. I don't believe--I mean, if there were
other provisions, other restrictions upon people in the
military, the fact that the Department has given guidance about
the scopes of the anti-torture statute doesn't mean that
somehow other binding regulations wouldn't apply. And so it is
possible that you could engage in conduct that would satisfy
that statute, according to the memo, but be inconsistent with
other obligations that would remain binding upon members in our
military.
Senator Graham. I think that is probably what happened, and
I am try to learn from this process because you have one
Department of the Government suggesting techniques that I think
run afoul of the way the military is organized. And what I am
trying to get us to look at is to make sure we don't go down
that road again. And if you didn't see the memos, that to me is
a bit disturbing because you are sort of out of the loop. And I
think I better understand your role in this. You are trying to
collect information. The working group is trying to implement
policy.
Judge Gonzales. If I could just interrupt you, Senator, you
said something--if I've said--if I've given the impression that
the Department of Justice was suggesting techniques, they never
were. What was happening is the Department of Defense, I
believe, was suggesting the use of certain methods of obtaining
information from the terrorists, and that was presented to the
Department of Justice, and the Department then gave its opinion
as to whether or not such methods were, in fact, lawful.
Senator Graham. Well, what actually happened, as I
understand it, is that the Department of Justice memo in August
talks about the torture statutes in ways that I think you and
I--I think you have said that you disagree with that original
legal reasoning. I can assure you that I do, and it got us into
a situation of where we are getting our troops potentially in
trouble. And that memo launched a thought process in the
Department of Defense that divided the Department. And I think
you need to know this and go back and study how this happened
because there were 35 techniques suggested, I believe is the
number. And when the judge advocates were finally consulted,
they looked at the underlying memo from the Department of
Justice and said, Whoa, if you go down this road and you look
at this definition of what it takes to commit an assault and,
you know, the pain level involved, that is totally inconsistent
with how we are going to govern our troops when it comes time
to regulate detainees because there is a specific article in
the Uniform Code of Military Justice that makes it a crime to
assault a detainee.
And here is the good news. After Secretary Rumsfeld
understood that there was a debate within the Department
between civilian lawyers and military lawyers, he stopped and
required a re-evaluation in April of 2004. The techniques were
changed.
The only reason I bring this out is that it illustrates to
me, Judge, that when you try to cut corners, it always catches
up with you. And I think it has caught up with us. And what I
am looking for you to hopefully do is bring us back on the
right road. And the new memo coming out of the Department of
Justice to me is a step in the right direction.
Do you believe that was a necessary thing to have done?
Judge Gonzales. Sir, first of all, let me--your
characterization that we're cutting corners, I believe we have
good people at the Department of Justice who did the very best
they could interpreting, in my judgment, a difficult statute.
So I think they did the very best they could.
Senator Graham. Well, that is where me and you disagree. I
think they did a lousy job.
Judge Gonzales. That opinion and the analysis has now been
withdrawn. It is rejected. It is no longer the position of the
executive branch.
Senator Graham. Okay. Well, it was withdrawn for whatever
reason. I am glad it was, and I am glad that you see that it
needs to be withdrawn.
Now to Gitmo. I am very encouraged by the efforts to fill
this legal vacuum because once the Supreme Court decided that
Gitmo was not Mars and it was part of the American legal system
as far as habeas corpus relief, you are confident that this
working group now headed by the Navy is going to come up with
some due process standards that will meet international
scrutiny?
Judge Gonzales. Well, I am not sure it will meet
international scrutiny, Senator. What I can say is based upon
what I've been told by the lawyers at the Department, what is
in place now at Guantanamo should meet our legal obligations as
described in the recent Supreme Court cases.
Senator Graham. And maybe the word ``international
scrutiny'' was a bad word, trying to say that there is a French
standard that I am trying to adhere to, and that is not it. The
point is that the world is watching.
Judge Gonzales. Senator, if I might just comment on that,
because I want to emphasize to the Committee how important I
think treaties like Geneva are for America, because they do
represent our values. And in many way and at many times they
have protected our troops. And it is true that part of winning
the war on terror is winning the hearts and minds of certain
communities. And to the extent there is a perception--and I
think it's a wrong perception, but there's a perception out
there that as a matter of policy the United States is ignoring
its legal obligations, I think it makes it more difficult to
win the hearts and minds of certain communities and, therefore,
more difficult to win the war on terror.
Senator Graham. That is encouraging to me, that thought
process, but it is not enough, I am afraid, to talk about it
unless there are deeds to follow. So what I would suggest--and
this is one junior Senator suggesting--is that we do have an
international image problem, partly unfair, partly of our own
making, that it would serve us well to maybe get Congress
involved, maybe not through legislation but to try to form some
working environment where we can have input, you can tell us
what you think, we can tell you what we think, and the world
can see that our country is on the road to correction. I would
encourage you to include us where you think we can be fairly
included to make sure that what comes out as the new policy at
Gitmo is something that kind of achieves the best of who we are
and still aggressively fights the war on terror.
One last thought. The tsunami victims have been through
hell, those who have survived, and the children apparently are
going to through a new kind of hell. One thing I have been
working on with the Chairman and other members of this
Committee in a bipartisan way is dealing with human
trafficking. We are hearing reports every day, Judge Gonzales,
that the children who are orphaned are being preyed upon by
sexual predators, that people are going to the region claiming
to be family members of these orphan children with the worst of
motives. I along with Senator Cornyn and others are going to
try to come up with some way to address this in the disaster
relief bill.
I would ask you, if you could, put your thinking hat on and
see what we can do in the short term and in the long term to
deal with this, and I look forward to working with you on that.
And if you have any thoughts, now would be a good time.
Judge Gonzales. Well, I think preying on children is sort
of the worst kind of violation of civil rights. It would be a
priority for me, if I am confirmed, Senator. I would look
forward to the opportunity to work with you on this issue.
Senator Graham. Thank you.
Chairman Specter. Thank you very much, Senator Graham.
Let us make an assessment here as to how many more rounds
we are going to need. I think we have a realistic chance of
concluding the hearing today. Following Judge Gonzales, we have
three witnesses requested by Senator Leahy. May I ask, Senator
Kennedy, do you think one more round will do? Or do you want
more than one more?
Senator Kennedy. Well, Mr. Chairman, I think I would need
one more round generally on this OLC. I would like to ask about
OLC and these ghost detainees and Article 49 of the Geneva
Convention. I think that is an enormously important area that I
do not think we have gotten into.
Then after that, I was interested in visiting with our
nominee on some of the immigration issues, that is, the
enforcement issues on immigration with local and State
authorities. I have talked about civil rights issues, the
changes in the Civil Rights Division and the prosecution in
several different areas of civil rights laws that we have seen
in the last 3 years, and some in the Criminal Division. I do
not intend to be dilatory in any way, but I think these are
important areas.
Chairman Specter. Senator Kennedy, do you think a 15-minute
round would be sufficient?
Senator Kennedy. I will do the best that I can, Mr.
Chairman, but I would prefer not to agree just to a 15-minute
round at this time, but I will move along. You have been kind
to let me complete the questions which I had the last time. I
think there are important questions with regards to the change
in the Geneva Conventions with regards to ghost detainees,
which the Central Intelligence Agency has been involved in. OLC
wrote a long memorandum. I think I want to question about this
issue.
So I will move along as rapidly as possible, but I think I
would like to inquire on that and also about civil rights,
which is enormously important, just on immigration issues. I
talked to Mr. Gonzales about those items on civil rights, civil
rights enforcement, also on immigration, some of the
immigration issues. I don't intend to be lengthy. I have
indicated to Mr. Gonzales the areas that I would be going into
so that he would have some idea about these. But I think they
are extremely important and--
Chairman Specter. Well, this is a very important hearing,
and we want to give you every opportunity. Three rounds is more
than customary. It is extensive. It is hard to go back on old
custom. Senator Leahy, the Ranking Member, I know wants an
additional round. Senator Hatch, would you like an additional
round?
Senator Hatch. No, I think we have--I think the witness has
acquitted himself tremendously well, and other than Senator
Leahy and Senator Kennedy, I think we ought to wind it up if we
can.
Chairman Specter. Senator Cornyn, do you care for an
additional round?
Senator Cornyn. I just have probably three or four
questions, is all that I have, Mr. Chairman.
Chairman Specter. Okay. Senator Graham?
[No response.]
Chairman Specter. Well, let us proceed this way. I have an
additional round. Let us yield to Senator Kennedy to see if
he--
Senator Kennedy. Why doesn't Pat go?
Senator Leahy. No. Go ahead. You are former Chairman. Mr.
Chairman, before we do yield--and you have been absolutely fair
in setting this up, but you also know we have cooperated in
every way possible to move forward on this hearing within 2
days of the new Congress coming in. I will as usual, of course,
put a number of things in the record, including a number of
letters I have sent to Judge Gonzales, including ones where I
laid out what some of the questions were that I was going to
ask today. I do it out of frustration because I really feel
most of those letters have never been answered and probably
never will be. Once he is confirmed, if he is, I am sure he
will never feel he has any duty to answer them. But I will put
them in the record, in any event, that and some other letters
and material.
Chairman Specter. Thank you very much, Senator Leahy. You
certainly have been cooperative.
I am going to yield on my third round at this point to
Senator Kennedy with the request that 15 minutes be allocated
to Senator Kennedy.
Senator Kennedy. Thank you.
Chairman Specter. And perhaps it would suffice, if there
are questions beyond the additional 15 minutes on round three,
that the questions be submitted in writing. There are still
other Senators who have not had round two, so let the word go
out and put them on notice. If they want to come for round two,
the hearing will remain.
Now, Senator Kennedy, the floor is yours.
Senator Kennedy. Thank you. Thank you, Mr. Chairman.
Mr. Gonzales, on March 19th, the Office of Legal Counsel
provided you with a memorandum to allow the CIA to relocate
certain prisoners from Iraq for the purpose of ``facilitating
interrogation.'' The memo interprets Article 49 of the Fourth
Geneva Convention which prohibits the forcible transfer or
deportations of protected persons from occupied countries like
Iraq, and violations of Article 49 are considered to be grave
breaches of the Convention and thereby constitute war crimes
under our Federal law.
The cover letter from OLC states that the legal opinion was
requested by Judge Gonzales. In the newspaper--I do not know
whether it was the Times or the Globe or Post--one of them
reported that one intelligence official familiar with the
operation said the CIA had used the March draft memo as legal
support for secretly transporting as many as a dozen detainees
out of Iraq in the last 6 months. The agency has concealed the
detainees from the International Committee of the Red Cross and
other authorities, the official said. In other words, this
memorandum is being used to justify the secret movement and
interrogation of ghost detainees.
In his report on the prisoner abuse at Abu Ghraib, General
Taguba--and as I mentioned, the members of the Armed Services
Committee listened to General Taguba testify on this very
subject matter--criticized the CIA practice of maintaining
ghost detainees as deceptive--this is General Taguba--saying
that the policy of the CIA maintaining ghost detainees in Iraq
is deceptive and contrary to army doctrine and in violation of
international law.
Do you agree or disagree with General Taguba's view of the
practice?
Judge Gonzales. Senator, I have not reviewed this opinion
in quite some time. I believe based on--I believe that we are
honoring our legal obligations with respect to these detainees.
There was a concern that by the application of Geneva that
terrorists would come into Iraq and we would create a safe
haven for them, and that's why the opinion was solicited, so
that we would not create such a safe haven for al Qaeda, who
are not entitled to prisoner of war legal protections. But in
terms of the actual facts or specifics of what is actually
being done, I don't have any knowledge about what the CIA or
DOD is doing. And I am presuming--again, I don't have any
knowledge--that they have solicited legal advice as to what
constitutes--what would constitute a violation of our legal
obligations.
Senator Kennedy. Well, the memo applies to protected
persons, as I understand it. As I understand, it was the CIA
that actually requested you to request the memorandum, and I
think any logical conclusion one would draw is in order to
protect their agents from being prosecuted. At least that would
certainly be my conclusion.
Now, this is what the memorandum from the Office of Legal
Counsel interprets Article 49 of the Geneva Convention. The
Geneva Convention 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.'' And in spite of the clear and
unequivocal language of the provision, the OLC concluded that
Article 49 does not, in fact, prohibit the temporary removal
from Iraq of protected persons who have not been accused of a
crime to reason that both the words ``deportations'' and
``transfers'' imply a permanent uprooting from one's home, and
that because a different provision in the Fourth Geneva
Convention prohibits the relocation of persons accused of
crime, it follows that persons who aren't accused of crime may
be temporarily relocated for interrogation.
Do you believe that this legal advice is sound?
Judge Gonzales. Senator, I really would like the
opportunity to re-review this memo. My recollection is that
this was a genuine concern, that we had members of al Qaeda
intent on killing Americans flooding into, coming into Iraq,
and the question was legitimately raised in my judgment as to
whether or not--what were the legal limits about how to deal
with these terrorists. And I believe--certainly that opinion
represents the position of the executive branch.
Senator Kennedy. Well, do you know why the request came
from the Agency? Why did the request come from the CIA? Do you
know why they requested this? Did they explain why they wanted
it? And do you remember what the CIA actually asked for?
Judge Gonzales. I do not, sir.
Senator Kennedy. The language--and I will move on--from the
OLC clearly contradicts the plain language of the Convention.
And there are many that conclude that this was in order to
allow the CIA to engage in the unlawful practice.
Did you form any opinion about the whole policy of ghost
detainees, the fact that the CIA was moving individuals, ghost
detainees, around to different prisons in different parts of
the world in terms of interrogating them, as was found and
mentioned in the Taguba report and in the Red Cross reports?
Have you drawn any personal conclusions yourself as to whether
this was sound policy or whether it contradicted the Geneva
Conventions?
Judge Gonzales. Quite candidly, Senator, my objective as
the Counsel to the President would be to try to ensure that
questions were being asked as to whether or not what kind of
conduct someone felt was appropriate or necessary was, in fact,
lawful. And I don't think I would have considered it my role
necessarily to second-guess whether or not that represented a
good policy judgment.
Senator Kennedy. Well, it does appear to some that the CIA
is looking out and asking, you know, for the legal authority to
do whatever they want to do and be protected from war crimes
and other kinds of prosecutions and protections by the
Commander in Chief provisions. That certainly has been a
conclusion that has been drawn by many authorities, and it
certainly would appear that way to many.
Judge Gonzales. Sir, if I may, that is the reason why we
categorically rejected it, that analysis, when the existence of
the memo became public, because we were concerned that someone
might assume that, in fact, the President was exercising that
authority. That has never been the case, and we have said that
there has been no action taken in reliance upon that authority.
Senator Kennedy. Well, you know, we hear now about the
recent decision and judgment that was made recently in terms of
the Bybee memo. But I asked you at the end what you have done
about this since it is so offensive. Clearly you have to feel
that given the fact the administration does that it is not
longer operative. And I was interested, since it wasn't, what
was done with the Agency and what was done with DOD. And then I
asked just at the end what you were going to do with the FBI
should you be appointed, and you indicated that with the FBI
you are going to consult, find out the facts, and take action.
But I am just wondering what you have done to implement the
more recent decision to say that this Bybee memo is no longer
operative since it continues to be a part of the working
document that has been made available to DOD.
Judge Gonzales. Sir, as far as I'm concerned, the December
30th opinion from the Office of Legal Counsel represents the
executive branch position with respect to the interpretation of
the anti-torture statute. The August 1 OLC memo has been
withdrawn. It has been rejected and does not represent the
position of the executive branch.
Senator Kennedy. That is your position now, but when you
first saw it and for a 2-year period when it was in effect, you
did not object to it, as I understand.
Judge Gonzales. Sir, there was, of course, as with many
decisions, tough legal decisions, discussions between the
Department of Justice and the Counsel's Office. Ultimately, as
I've said repeatedly during this hearing, it is the
responsibility of the Department of Justice to make the final
call. Ultimately, it is their decision as to what the law
requires. And it was accepted by us as the binding
interpretation of that statute.
Senator Kennedy. If I could come back to the unprecedented
expansion of executive power contained in the Bybee memo, which
you seem to have adopted at the time it was issued, so we are
clear, the Bybee memo concluded that the law of the land cannot
prevent the President from carrying out his Commander in Chief
authority in any way he sees fit, even if the directives and
actions violate clearly established law.
Judge Gonzales. Senator, that old opinion, as I've said,
has been withdrawn. That analysis has been rejected, and I
consider it rejected.
Senator Kennedy. But at the time when you first saw it, it
still was put into--it was effectively the law of the
administration's position for some 2 years.
Judge Gonzales. Well, that certainly reflected the position
of the Office of Legal Counsel, but, again, let me re-emphasize
that that authority was never exercised. As far as I know, the
President was never advised of that authority. And so no
actions were taken in reliance upon that authority.
Senator Kennedy. That has been repealed. He hasn't
exercised it. Your view whether it is legitimate, whether it is
a legitimate statement of fact.
Judge Gonzales. Sir, respectfully, it doesn't represent the
position of the executive branch.
Senator Kennedy. I understand that, but it did for a period
of time, and I was just interested in what your view on that is
as a legal issue. It has important implications in the
separation of powers. It has very important implications on it.
We are entitled to understand your view about the separation of
powers. This has very important implications on it, and that is
why I am asking the question.
Judge Gonzales. Sir, and I appreciate that, Senator, thank
you. Whether or not the President has the authority in that
circumstance to authorize conduct in violation of a criminal
statute is a very, very difficult question, as far as I'm
concerned. And I think that any decision relating to this line
of reasoning would be one that I would take with a great deal
of seriousness, because there is a presumption that the
statutes are, in fact, constitutional and should be abided by.
And this President does not have a policy or an agenda to
execute the war on terror in violation of our criminal
statutes.
Senator Kennedy. Let me move on. The Bybee memorandum made
up out of whole cloth a necessity defense application to
torture. It argued that such a defense is viable because
Congress did not make a determination on values vis-a-vis
torture. However, the Congress categorically banned the torture
when it enacted the statute in 1994. The Convention Against
Torture, which the U.S. ratified in 1994, specifically states
that no exceptional circumstances whatsoever, whether a state
of war or threat of war, internal political instability, or any
other public emergency may be invoked as a justification of
torture.
What did you think when you read the memorandum's section
on the necessity provision? Did you realize right away that
this was bad law and bad guidance for our military and
intelligence?
Judge Gonzales. Sir, I don't recall today my reaction to
the line-by-line analysis in that opinion. What I did realize,
being a former judge, trying to interpret a statute that may
not be as clear as one would normally want to see on an issue
this important, was that that was an arguable interpretation of
the law. They were relying upon the definition of severe
physical pain in other statutes passed by the Congress. And I'm
sure we had discussions about it, and ultimately it was
accepted because that was the ultimate decision and position of
the Office of Legal Counsel.
Senator Kennedy. Well, just to reach the conclusion that
torture must involve the kind of pain experienced with death or
organ failure, the Bybee memorandum relied on unrelated Federal
statutes that define emergency medical conditions for purposes
of avoiding health benefits, Medicaid statute. I have gone
through it. I am not going to take the time on this. But that
is how far they went.
As the revised OLC memo on December 30th--
Chairman Specter. Senator Kennedy, the red light is on for
your 15 minutes. Will you proceed with this last question? Then
the Chair is going to rule that we would ask you to submit the
balance of your questions in writing.
Senator Kennedy. Well, I would like to finish this, and
then I would hope that I would have--I have attending the
hearings. It is 4 o'clock. I know others want to inquire. I am
glad to remain here and take my turn. I know there are some
others that have to have a second or third, but I would
certainly like to try to get into something on the civil rights
issues, which are enormously important, and also something on
the immigration issues. I don't intend to take a great deal of
time, but I--
Chairman Specter. Senator Kennedy, we talked about multiple
rounds. We would like to finish the hearing today. How much
more time do you need?
Senator Kennedy. Well, I would think this is probably the
last question I would have--I had hoped to ask about
extraordinary rendition on the definition of torture, and then
I have some--I need a round in which I would combine the
immigration and the civil rights and criminal justice into one
round.
Chairman Specter. Well, can you conclude your questions
with an additional 10 minutes?
Senator Kennedy. Senator, with all respect to you, Mr.
Chairman, I was on the Committee when the Senators asked an
Attorney General for two and a half days about civil rights.
You know, it is 4 o'clock in the afternoon. I am ready to
comply with the rules on this, but these issues are
extraordinarily important. We have not been dilatory. I think
we are entitled to ask these questions. I know the process. I
have other questions I am going to submit in writing. But I do
think that we ought to be entitled to ask about civil rights
and about immigration issues. I will wait my turn. I will be
the last one. I will not be dilatory, but I would like to try
to get responses on these issues.
Chairman Specter. Well, the latitude has been extensive.
Everyone else has taken two rounds, some only one. I do not
think it is unreasonable to ask for an approximation as to how
much time you will need so that an evaluation can be made as to
whether we can conclude today. It is true that I said there
would be multiple rounds, but that is within the realm of
reason, and you have had 35 minutes so far, and I am prepared
to give you an additional reasonable amount of time. I would
just like to know what it is so we can plan.
Senator Kennedy. Well, if I can conclude this one and then
do 15 minutes, that would be fine.
Chairman Specter. Conclude in 15 minutes?
Senator Kennedy. If I can do this, the definition of
torture, and then that will be the end on this subject, and
then I will do--try to do it in less than 15 minutes. If I
could get 15 minutes, it would wind me up.
Chairman Specter. All right. Then take the last question,
and the green light will go on for 15 more minutes.
Senator Kennedy. After this one.
As I mentioned in defining torture, the OLC used the
description of ``severe pain'' contained in a Medicaid
regulation on health benefits, which is completely unrelated to
the whole question on torture. Now, as the revised OLC memo of
December 30th explains, the statutes relied on by the Bybee
memorandum do not define severe pain even in that very
different context, and so they do not state that death or organ
failure or impairment of bodily function caused severe pain.
Clearly, the reasoning was unsound, and I guess what we
conclude at this time, I would have thought it would be fairly
obvious to you that someone can suffer severe physical pain
without being in danger of organ failure.
When I hear this kind of activity, I always remember
meeting President Duarte of El Salvador, and when he was in
prison, what they did is cut off a joint every week of his
fingers. When he shook hands with you, he had four parts of
fingers that were left on that part. But every week they used
to tell him--they would leave it unattended. It got infected
and caused him enormous kinds of health hazards on these parts.
But I am always mindful about what I have seen with some
individuals, as one, like others in this Committee,
Republicans, who care about human rights and the excesses that
have taken place.
The question that I have is: Wasn't it obvious to you that
someone can suffer severe physical pain without being in danger
of organ failure? Wouldn't the removal of fingers, for example,
fall outside the definition of torture and why wouldn't we have
expected that you would have raised some kind of objection to
it?
Judge Gonzales. Senator, if I may answer your question, I
don't recall reading that analysis to conclude that it would
have to be that kind of pain in order to constitute torture.
Obviously, things like cutting off fingers, to me that sounds
like torture.
Let me just remind you, Senator, that the Office of Legal
Counsel was trying to interpret a statute written by the
Congress. The Foreign Relations Committee, in making
recommendations to the Congress regarding ratification of the
Convention Against Torture, described torture as the top of the
pyramid in terms of inflicting pain upon a human being. It
described it, the Committee described torture as extreme cruel,
extreme inhumane, extreme degrading conduct. This is what the
Congress said. And I think the people at the Office of Legal
Counsel were simply doing their best to interpret a statute
drafted by Congress.
Senator Kennedy. Well--
Chairman Specter. Well, now, that is your question, Senator
Kennedy. This round now has gone in excess of 22 minutes, and
now we are going to start the clock again for 15 minutes, which
under our discussion will conclude your allotted time. Start
the time clock at 15 minutes.
Senator Kennedy. I would be glad if Senator Leahy wanted to
go, whatever way you want to proceed.
Chairman Specter. Senator Leahy wants to intervene before
starting Senator Kennedy's last 15-minute round.
Senator Leahy. Senator Cornyn was waiting.
Senator Cornyn. I am going to be here for the duration, Mr.
Chairman, but I do have about 5 minutes or less.
Chairman Specter. Senator Kennedy, why--
Senator Leahy. Why don't I go?
Chairman Specter. You want to go.
Senator Leahy. Yes.
Chairman Specter. Senator Leahy.
Senator Leahy. And I probably will take about 15.
One, I was glad to hear you say--and correct me if I
misunderstood you--to Senator Durbin that it is wrong if a U.S.
personnel turns somebody over to another country knowing they
are going to be tortured. Did I understand you correctly on
that?
Judge Gonzales. I believe that is a law. That's certainly
U.S. policy.
Senator Leahy. And so they would be prosecuted, people who
did that.
Judge Gonzales. Yes.
Senator Leahy. Now, President Bush signed a memorandum on
February 7, 2002, which went through you, in which he directed
U.S. armed forces to treat al Qaeda and Taliban prisoners
humanely. You have said publicly this was the only formal
written directive from the President regarding treatment of
detainees. Is it your testimony the President has issued no
other directive regarding the treatment of detainees? It is not
a trick question. I want to make sure you understand it very
clearly because you are under oath. My question is meant to
include a directive in any form, to any government personnel,
regarding any category of detainee from any theater of
operations, regarding any aspect of detainee treatment,
including interrogation.
Judge Gonzales. Senator, I don't have any firsthand
knowledge about the President giving directions regarding, say,
specific techniques. That was not--in my judgment, in the
Schlesinger report, he concluded it would be sort of out of the
question to expect the President would be involved in making
individual determinations--
Senator Leahy. I am just going by your statement publicly
that this was the only formal written directive from the
President regarding treatment of detainees. Do you have any
firsthand or secondhand knowledge of any other directive?
Judge Gonzales. Sir, other 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.
Senator Leahy. You have been at the center of many
administration battles to keep Government information secret,
from the Executive order that I believe gutted the Presidential
Records Act, to the initial attempt to refuse to allow Dr. Rice
to testify before the 9/11 Commission, to the question of
keeping secret the Vice President's Energy Task Force. Now, I
have always found that every administration, Republican or
Democratic, would love to keep a whole lot of things from the
public. They do something they are proud of, they will send out
100 press releases. Otherwise, they will hold it back. We have
the FOIA, Freedom of Information Act, which is a very good
thing. It keeps both Democratic and Republican administrations
in line. Historically the Government has established two broad
categories of restricted Government information, classified
information governed by Executive orders, and nonclassified
information controlled by exemptions in the Freedom of
Information Act. Now, recently there has been several new
quasi-secret designations, sensitive but unclassified, or
sensitive security. They seem to be done by ad hoc agency
directive.
If you are confirmed as Attorney General will you take
steps to create a uniform standard to ensure material should be
kept from public disclosure only to the extent necessary to
prevent harm?
Judge Gonzales. Senator, I will commit that that would be
something that I would certainly look at.
Senator Leahy. In September 2001, a speech in Houston, you
talked about the work your office does vetting the personal
background of every Bush appointee. You told your audience that
after reviewing the FBI background report on an individual, you
determine that person's suitability for the position, then the
President makes a determination to go forward and nominate
them. But numerous stories, news stories have reported that
Bernard Kerik's name was publicly announced as nominee for the
Department of Homeland Security before the FBI background
report was begun, and this was not an uncommon practice in the
White House. We know that he was a strong political supporter
of the President, but it seems that the move was in haste here.
It was reported that he withdrew his nomination because he
discovered he had employed an illegal nanny, whose Social
Security taxes he had not paid, this even though nobody seems
to know the name of this nanny or what country she was from or
whether she even existed. But there are a lot of other problems
that were there, and apparently anybody was aware of them.
I would like to know when you first learned about his being
a defendant in a civil suit over unpaid debts; about reported
extramarital relationship; about his use of a donated apartment
for those involved in the aftermath of the 9/11 disaster in New
York City, especially if it was used for adulterous situation,
it would be a little illegal; and about gifts and ties to
Interstate Industrial and its executives. Now, a White House
spokesman said the White House was aware that many of these
issues had been reported. My question, were you aware? What
were you aware of before the President announced a plan to
nominate Mr. Kerik to one of the most sensitive, important jobs
of our Federal Government, the head of the Homeland Security,
where he would handle the most sensitive classified material in
this country?
Judge Gonzales. Well, of course, Senator, there was no
actual nomination of Mr. Kerik. There was an announcement of an
intent to nominate. And before an actual nomination occurs,
there is an FBI background check that is completed, and the
reason you announce it as an intent to nominate is because you
want to see the results of an FBI background check to see
whether or not there is anything there that would somehow
otherwise disqualify a potential nominee.
Senator Leahy. But, Judge Gonzales, according to the press
accounts, you were the one who personally, at some length, went
over questions with Mr. Kerik. Were you aware of the apartment,
the so-called 9/11 apartment?
Judge Gonzales. Senator, my conversation with Mr. Kerik I
would prefer not to discuss today, what is in my judgment--
Senator Leahy. Are you claiming executive privilege?
Judge Gonzales. No, sir, I'm not claiming executive
privilege. The President had a desire to nominate Bernie Kerik
to a very important position, someone I think by most accounts
is well qualified, would have been well qualified to serve as
Secretary. For a variety of reasons there was a desire to
announce a potential nomination. That was done. There was, of
course--there was some vetting in connection with Mr. Kerik's
background, but the actual vet was--it was never intended that
the vet would be--
Senator Leahy. Let me ask you a hypothetical then. In this
administration, would something, such as the so-called 9/11
apartment, as referenced by the press by itself disqualify
somebody from a position of enormous security clearance as Mr.
Kerik's?
Judge Gonzales. Senator, I have no idea whether or not
those kind of allegations are true.
Senator Leahy. Would the question of his extramarital
relationship that had been in the press, would that disqualify
him?
Judge Gonzales. Senator, would that disqualify him? I can't
say that it would definitely disqualify someone from
consideration for a position.
Senator Leahy. Do you know whether there ever was a nanny?
Judge Gonzales. Senator, again, Mr. Kerik is no longer
under consideration for Secretary of Homeland Security.
Senator Leahy. The reason I ask this, there is some concern
that if the President wants something you are going to go ahead
and make it work, which--if I might, and I will give you all
the time you want to respond--works against the idea of the
independence of the Attorney General who is there, not as the
President's Attorney General, but, as I said in my opening
statement, the Attorney General for the whole United States.
Then you have this whole list of things that were out there,
apparently a lot of people knew about it, and suddenly he is
withdrawn when Newsweek sends a copy of a story to the White
House, look, we are going to publish all these things. Do you
want to comment? You know, you are going to be vetting a whole
lot of people if you are Attorney General, in some of the
highest positions--the Assistant Attorney General in charge of
the Criminal Division, Assistant Attorney General who handles
intelligence matters and so on. I am just wondering what are
the standards?
Judge Gonzales. Senator, I hope as Attorney General that I
would have and would commit to this Committee to have the
highest standards regarding ethics. Let me just also say that I
do very much understand that there is a difference in the
position of Counsel to the President and as 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 have a very limited staff. The
staff doesn't have the expertise or the experience in a great
many of substantive legal issues. All of those reside in the
Department of Justice. 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.
My responsibility, by statute, is to provide legal advice
to the executive branch. I know it is very important that there
not be this idea or perception that somehow the Department of
Justice is going to be politicized by virtue of the fact that
someone who has served in the Counsel's Office for four years
is now the Attorney General of the United States. I am very
sensitive to that. I am committed to working hard that there
are no accusations that that is happening to the Department.
There are several ways that I can achieve that. One is to--
again, as I have done today, is recognize and announce to this
Committee that I do understand the difference between the two
jobs. Secondly, talk to the career staff, work with the career
staff to make them understand that I'm coming in to this
department with a clear understanding of the distinct roles
between the two jobs.
Finally, I would just say that there is a very restrictive
contacts policy between the Department and the White House,
limiting who from the White House can contact the Department of
Justice, because what we don't want to have is people from
various divisions within the White House calling the Department
about an ongoing investigation, and so that is something that I
would look at and make sure that it is as strong as it should
be, and would commit to the Committee that we would obviously
honor any kind of contacts policy.
Chairman Specter. Senator Leahy, how much more time would
you like?
Senator Leahy. Probably about 10 minutes, and then I will
submit anything else for the record.
Chairman Specter. Reset the clock for Senator Leahy for 10
minutes, and beyond that he will submit questions in writing.
Senator Leahy. Judge Gonzales, I do not raise the question
of Mr. Kerik to pick on Mr. Kerik. I met him a few times. I
have no feelings one way or the other. And certainly I have no
objection to the President putting people into positions whom
he wants and feels comfortable with. I used that example
because it is like Abu Ghraib in a sense in that the
administration knew about this torture. They have been asked
questions by me, by Republican Senators and others that they
refuse to answer about the torture before it became public.
Nobody said, oh, my gosh, this is horrible. We're all against
torture or anything else. When the pictures started appearing
on the front page of the newspapers or on television, then
everybody scrambles around and takes memos and policies that
have been in place for some time, and they start changing it.
We have talked about the memo on torture that was changed at
the beginning of a three-day weekend just before New Year's,
coincidentally, just before your coming here to testify.
I mention the Kerik thing because apparently everybody in
New York knew all these things. He had gone through all kinds
of scrutiny, initial scrutiny by you. According to press from
your office you gave him a very strenuous talking to. You know
there are certain questions that are asked to elicit background
information, yet it was only when Newsweek said, oh, yeah, we
are going to print some stuff on this, that we suddenly find a
convenient nanny. Maybe there was such a nanny. I do not know.
But you see what I am getting at? I want to be more proactive,
not just because the press finds something out, in what is a
very, very secretive administration, but that people like
yourself and others will say, wait a minute, do not go there.
We have a problem.
I will tell you, November 2003 we learned that for more
than a year a Republican staff member named Manny Miranda had
stolen computer files from a Democratic staff person on the
Judiciary Committee, especially on matters relating to judicial
nominations. Did you know about that file theft before it was
publicly uncovered in November 2003?
Judge Gonzales. No, sir, I did not.
Senator Leahy. Do you know of anybody at the White House
who received copies of those stolen memos?
Judge Gonzales. No, sir, I do not.
Senator Leahy. I know that--I do not think that anybody at
the White House has denounced the theft of these memos on
nominations from stolen memos from Democratic staffers. I would
assume that you are not, by not making a denouncement, you are
not endorsing what Mr. Miranda did.
Judge Gonzales. Absolutely not, Senator.
Senator Leahy. Now, the U.S. Attorney for the Southern
District of New York is currently investigating the matter.
Insofar as it involves the White House, I would assume that is
an issue that you would consider recusing yourself from?
Judge Gonzales. I would consider recusing myself, yes, sir,
but of course, Senator, the actual decision would be made based
upon examination of the facts and talking to the career
professionals at the Department of Justice who have a great--of
history in these kinds of issues, but of course I would be very
sensitive about the appearance of a conflict of interest.
Senator Leahy. You mentioned the sentencing guidelines
earlier, specifically the Blakely case, which struck down the
sentencing system in the State of Washington and cast serious
doubts on the constitutionality of the Federal Sentencing
Guideline. After that decision came down, I would hate to be a
Federal prosecutor anywhere because a whole lot of plea
bargains or other things are going to be revisited. From a
defense point of view it is a great decision, but from a
prosecutor's point of view it is terrible. There are a lot of
Senators on both sides of the aisle here who would like to fix
this situation. Would you, and the Department of Justice, work
with an open mind with those Senators--Senator Specter and I
were both prosecutors, and there are a number of others here
who were as well--and to try to fix the situation in Blakely,
try to constitute something that can be acceptable to the
courts?
Judge Gonzales. I will commit to that, Senator.
Senator Leahy. I appreciate that. And in October last year
the Congress passed and the President signed the Justice For
All Act. It included the Innocence Protection Act. That is a
death penalty reform initiative I have championed for many
years, and is supported by people who are strong advocates of
the death penalty, Ray LaHood of Illinois, for example, and the
leadership, the Republican leadership in the House. It sets
procedures for courts to consider requests for DNA testing by
Federal inmates, but it also authorizes grants to States to
help improve the quality of counsel in capital cases. We have
had some discussion of this, and you know and I know in many
instances, whether it is your own State of Texas or others, the
counsel often are not qualified in capital cases, whether it is
the sleeping counsel, or the drunk counsel, the $100 a day
counsel. Other states do a very good job of it. Will you work
with me to help make sure the IPA is properly implemented?
Judge Gonzales. I will commit to you that I will do that,
Senator.
Senator Leahy. I would like to raise a concern about
nominees and religion. Althout I object to some of the
President's nominations, for most of them I have absolutely no
idea of what their religion are. Yet I saw that somebody from
the White House or White House connected, apparently denounced
me as being anti-Catholic on a Sunday morning program. I did
not happen to see it because my wife and I were at Mass at the
time.
[Laughter.]
Senator Leahy. I would hope that whether it is Boyden Gray
or anybody else who does this kind of thing, try to move them
off that. You have people who care very deeply about their
faith up here, and they are trying to do their job, no matter
what religion they are.
Judge Gonzales. I have no doubt about that, Senator.
Senator Leahy. My religion means a great deal to me. I do
not try to impose it on anybody else, but I also resent such
charges.
Here is a softball for you. When he announced your
nomination, the President noted that your sharp intellect and
sound judgment have helped shape our policies on the war on
terror. Looking back on that, were any mistakes made, and were
they corrected?
Judge Gonzales. Any mistakes made in the war on terror?
Senator Leahy. Involving you, and were they corrected?
Judge Gonzales. Involving me, Senator, I will be the first
to admit I am not perfect, and I make mistakes.
Senator Leahy. Glory, hallelujah, you are the first one in
the administration who has said that.
Judge Gonzales. Hopefully, I learned from those mistakes. I
think I have learned during these past four years Washington is
a different type of environment than the one I am used to. And
could I have done things better? Yes. And hopefully I have
grown and I have learned. I think if confirmed it will make me
a more effective Attorney General for the people of this
country.
Senator Leahy. It is a different town than many other
places. You have had to look at those photographs of the
mountains and the fields and whatnot from my farm in Vermont,
and I can assure you I feel a lot different about the world
when I am sitting there.
Mr. Chairman, anything else I will submit for the record.
As I told you before, I would work with you to try to keep
things on schedule, and I believe I have done just that.
Chairman Specter. Yes, you have, Senator Leahy. Thank you
very much.
Senator Leahy. You have been very fair.
Chairman Specter. Thank you. I try to be fair.
Senator Cornyn, you have five minutes more. Senator Kennedy
has 15 minutes, and then we will submit whatever else he has in
writing. Senator Sessions, would you care for another round?
Senator Sessions. Please, that would be great.
Chairman Specter. Senator Cornyn, the floor is yours.
Senator Cornyn. Thank you, Mr. Chairman.
Really just two matters. I know Senator Kennedy was asking
about the memo, I believe it was a draft of March 19th, 2004.
This was the memo that was I guess leaked regarding
permissibility of relocating certain protected persons from
occupied Iraq. It was leaked, was it not?
Judge Gonzales. I believe that's correct.
Senator Cornyn. I will just go back to what I said earlier
about very few secrets in Washington, D.C., and I guess this
helps to--is further evidence of that. But let me just ask. I
see this is a draft memo; is that right?
Judge Gonzales. I believe that is correct.
Senator Cornyn. So it was not a final determination or a
final statement of policy or a final legal conclusion, was it?
Judge Gonzales. The draft is a draft.
Senator Cornyn. I also see that the last footnote of the
draft--and of course lawyers like footnotes, but they are
important--says that protected persons ``ordinarily retain
Convention benefits.'' So I guess in a strict sense these are
not ghost detainees because the conclusion at least of this
draft is that they retain, essentially retain protections under
the Convention. Would you agree with that?
Judge Gonzales. I believe so, Senator, but I would want the
opportunity to look at that again before agreeing without any
kind of reservation.
Senator Cornyn. Fair enough. That just struck me as a
contradiction with the suggestions we had heard earlier that
somehow that this is a lawless enterprise, that indeed the
conclusion at least of the draft was that ordinarily these
detainees retain Convention benefits.
And finally, as you know, because we worked together in
Texas when I was Attorney General, I have a deep and abiding
faith in the cause of open government, and as Attorney General
I was responsible for ruling on open records requests and
writing legal opinions on open meetings laws. Well, Senator
Leahy and I have joined cause, and I hope will be able to come
up with some improvements to the Freedom of Information Act. I
hope we can count on you to work with us in that cause. Here
again, as we have observed, Washington operates a little
differently from what at least my experience had been in Austin
and elsewhere, but the fundamental proposition about the
people, the legitimacy of Government flowing from the consent
of the governed, seems to be in a principle that I hope would
apply here, as well as it applied in Austin, and I am being
somewhat facetious there.
But let me get to my question. As you know, Justices Scalia
and Breyer both testified during the last Congress that the
Administrative Conference of the United States is a great
agency with a long track record of promoting good government,
and that it deserves to be renewed. Indeed President Bush
recently signed legislation renewing the Conference, and I am
confident did so after soliciting your input. I am particularly
interested in the Administrative Conference because of its
previous role in improving Agency performance under the Freedom
of Information Act. If confirmed, will you commit to working
with me and the Committee and the Congress generally to ensure
that the Administrative Conference has a strong role to play in
enhancing Agency performance under the Freedom of Information
Act?
Judge Gonzales. I would commit to you, Senator, that I
would look forward to working with you on that issue.
Senator Cornyn. Thank you very much.
Thank you, Mr. Chairman.
Chairman Specter. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
Judge Gonzales, I congratulate you. It has been a long day,
but you have handled yourself with skill, integrity and good
humor, and that is a valuable trade in the difficult job you
undertake. My experience is that the Department of Justice is
such a wonderful institution, but it is big, it is complex. It
has agencies and departments do not realize within its ambit,
such as the Federal Bureau of Prisons, the Drug Enforcement
Administration, the FBI, the U.S. Marshals Service. Those are
tremendous entities of great importance to our country. I hope
that you will spend some time looking at all of those agencies
and departments and making recommendations to how to make them
more efficient.
Senator DeWine asked you about what if you run short. I
think that is possible in certain areas. But I also think, from
my experience in the Department, there will probably be some
areas that are overstaffed. You could have a circumstance in
which there are more Assistant United States Attorneys than
there are FBI and DEA agents to bring them cases, or vice
versa, too many agents for the prosecutors to prosecute the
cases effectively. So I hope you will look at that and work
toward the efficiencies.
Judge Gonzales. I will do that, Senator.
Senator Sessions. You know, you were asked about saying
some of the language of the Conventions are quaint. I remember
when I was in law school at Alabama, my wife and I lived at
Northington Campus, and that was where the German prisoners of
war were held. I do not think they had much more than a fence.
They had a recreation grounds. I am told that they interfaced
with the people in the community, and even went to church and
played the organ or sang in choirs.
But this is a different type of prisoner from the World War
II group that we were looking at, and we do need to--some of
the things are not quite as logical, such as guaranteeing them
scientific instruments or giving them pay, paying them while
they are prisoners, or athletic equipment and clothes. But I
guess also the President--and you have been with him--feels
deeply the responsibility he has and had during this post 9/11
time to protect the American people. That had to be on his mind
whenever he made a decision. Is that correct?
Judge Gonzales. That was his number one objective, Senator,
to do so, consistent with the legal obligations of this
country.
Senator Sessions. And I know that in October of this past
year, we released close to 150 detainees at Guantanamo Bay. I
guess ACLU or somebody sued over that or whatever, and they
were released. Here are some of the headlines that have
occurred since. ``Freed detainees rejoin fight; Ten ex-
Guantanamo inmates have been caught or killed,'' headline in
the Washington Post of October 2004. ``Detainees back in
battle. At least eight ex-Guantanamo inmates fighting again in
Afghanistan,'' Pittsburgh Post Gazette. ``Ten freed from Cuba
return to fighting,'' Chicago Tribune. ``Freed detainees return
to jihad, at least 10 militants captured or killed Gitmo
captors of intent,'' Orlando Sentinel.
So it is easy to say why do we not just err in the side of
being lenient and let people go, but you knew and the President
knew and the people supervising Guantanamo Prison knew that
there were risks when you did that; is that not true? And that
makes you cautious?
Judge Gonzales. Of course, Senator, we don't want to detain
anyone that shouldn't be detained, and not for a minute longer
than we need to detain someone. There are multiple screening
processes in place with respect to detainees that go to
Guantanamo. There are multiple screens when they are captured,
when they're moved into Bagram into a central holding facility.
There's a multiple screen--I mean there's a screen with respect
to deciding whether or not they should go to Guantanamo. Then
when they arrive at Guantanamo, there's an additional screen to
see whether or not they should be at Guantanamo. And then there
are annual review screens. We've now implemented a process to
ensure that if we no longer need to hold someone, that we
should release them. But it is true that some have been
released that we've now discovered have come back to fight
against Americans, and that of course is the danger. We
obviously don't want to hold anybody longer than we have to,
but we don't want to be releasing people that are going to end
up killing American soldiers. So it's been a challenge.
I think the good people within DOD have exercised, have
addressed that challenge in the very best way they can. It
hasn't worked perfectly, but they've done a good job in my
judgment.
Senator Sessions. And by the way, this was a Department of
Defense decision, is that correct, on releasing there at
Guantanamo?
Judge Gonzales. Oh, of course. That's not a decision made
by the White House. That would be a decision ultimately made by
Department of Defense. But they would also consult with the
CIA. They would also consult with the Department of Justice to
see whether or not those agencies had any information about the
detainee. And so it would be a collaborative effort to gather
up the intelligence information about a detainee, but
ultimately the Department of Defense would make the decision
that this is someone that it would be okay to go ahead and
release.
Senator Sessions. Well, you did not run the Department of
Defense or have any supervisory control over anybody at the
Department of Defense, did you?
Judge Gonzales. Absolutely not.
Senator Sessions. Now, of course, so we have 10 rearrested.
I think we can logically conclude that more than 10 have
returned to terrorist activities, they just have not been
caught, maybe twice or three times that many. So that is a
pretty good number out of the 150 we took a change on
releasing, who have returned to the battlefield. They were
released while the war is continuing. And I just want people to
note that this is not just an academic exercise. Lives are at
stake. You had to make tough decisions and recommendations to
the President. The President had to make them. Secretary
Rumsfeld had to make them. He let some of these go, and some of
them returned to battle right away, and we know that is true.
Judge Gonzales, I have offered, and Senator Hatch has
joined me, in the first real piece of legislation that would
modify the sentencing guidelines that are very, very tough on
crack cocaine possession and distribution. In fact, I have
concluded, as a prosecutor who utilized those guidelines
completely, and fairly, and aggressively, that they are tougher
than we need them to be.
The Department of Justice has not signed on to that as of
this date. We have not gotten some of our Democratic members. I
do not know where they are. But we need this year to bring up
some legislation that is fully vetted by the Department of
Justice to make sure we do not make any mistakes. And I do not
take a back seat on anybody in my belief that criminals and
drug dealers need to be punished. But I honestly believe that
we could improve these guidelines and that there is disparity
between crack and powder, and we can narrow that substantially.
Will you work with us on that to see if we cannot gain the
support of the Department of Justice?
Judge Gonzales. I will commit to you that I will look at
that, Senator.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Sessions.
Now, we turn to Senator Kennedy for his final 15-minute
round, with additional questions to be submitted for the
record.
Senator Kennedy?
Senator Kennedy. Thank you very much, Mr. Chairman.
Let me just underline what Senator Sessions has mentioned
on crack cocaine. We have tried to work together on this with
the Sentencing Commission, and we worked with former Deputy
Attorney General Wayne Budd, who, after he left the Justice
Department, took an interest in it. It is probably the most
difficult part of the Sentencing Guidelines, but it is also one
of the most offensive and unfair aspects of it. So we
appreciate it. We will try and work with Senator Sessions as
well and see if we cannot come up with a common position.
Senator Sessions. Thank you, Senator Kennedy. I believe
that, if studied, you would feel comfortable that this would be
a good step.
Senator Kennedy. Thank you.
I wanted to talk, in the time that is available, abut
immigration issues and some civil rights issues and then
quickly on the death penalty what you are going to do. Those
are the three areas I would like to try and cover. One which we
have talked about is the State and local law enforcement of
immigration laws. You are familiar with this. In 2002, the
Department of Justice reversed longstanding policy of support
of the inherent authority of States to enforce Federal
immigration laws. This reversal was based upon an Office of
Legal Counsel opinion that has not been made public. I have
asked for a copy of the opinion, so have others of the
Congress. Interested parties have asked for it, too. Their
refusal to disclose has been the subject of a lawsuit.
The Department's response failed to provide the opinion,
but simply offered its conclusion without any discussion. I
have difficulty in finding a good reason why the Department
continues to keep the opinion and its legal analysis secret,
especially since it reverses a longstanding policy that scores
of police chiefs, police departments around the country,
including many in your home State of Texas have denounced the
idea of involving State and local police in Federal immigration
enforcement.
Last month, the International Association of Chiefs of
Police issued a report expressing concern. They and others
believe it will destroy the remarkable progress they have made
with community policy, in which police work closely with the
public, including immigrant communities and develop productive
bonds of trust. Concerns raised by law enforcement, shared by
many conservative security experts--I cannot believe I am
quoting Grover Norquist, Bob Barr of the Heritage Foundation--
all say this could be an unmanageable burden on the law
enforcement officials.
So could you tell us why the secrecy on the OLC memo, and
can you tell us whether you support releasing the OLC opinion
on the authority to--
Judge Gonzales. Senator, thank you for that question. You
and I did talk about that in your office. This matter is in
litigation, as you indicated. There is FOIA litigation about
the release of the memo. The conclusions are known. It is the
analysis, the deliberations that went into the opinion I think
that the Department is seeking to protect.
Let me just emphasize, though, or try to provide
reassurance about this. There is no requirement, of course,
upon State and locals to enforce Federal immigration laws. This
is truly voluntary and, in fact, of course, some States have
prohibitions. They could not do it even if they wanted to. In
some cases, the Department, as I understand it, has run into,
with State or local departments, in terms of memoranda of
understanding, in order to enforce this.
I am certainly sensitive to the notion that some local law
enforcement people don't want to exercise this authority. Well,
we are not saying that they have to. But if they want to and
can assist in fighting the war on terror, that is what this
opinion allows us to do.
Personally, I would worry about a policy that permits
someone, a local law enforcement official, to use this
authority somehow as a club, to harass. They might be
undocumented aliens, but otherwise lawful citizens. That would
be troubling. That would be troubling to the President, who, as
the former Governor of a border State understands and
appreciates the roles that immigrants and undocumented aliens
play in our society. But it is in litigation, and it would
probably be better if I didn't speak more about that.
Senator Kennedy. All right. Well, I am going to move on to
some of these other areas, but we can come back.
One, considers the actions on the Arabs, Muslim, and other
immigrant communities. After September 11th, thousands of
immigrant men from Arab Muslim countries were fingerprinted,
photographed, interrogated under various Justice Department
programs. Individuals were targeted based on their religion and
national origin, instead of evidence of dangerousness. The
result was massive fear in many Muslim and Arab communities,
and cooperation with antiterrorism efforts were frustrated. At
a time when we needed critical intelligence, members of the
Arab and Muslim communities were unfairly stigmatized and
discouraged. I think part of the result was an increase in the
hate crimes as well against them. I am going to try and come
back to that.
Do you believe that targeting persons, based on their
religion or national origin, rather than specific suspicion or
connection with terrorist organizations is an effective way of
fighting terrorism? And can we get interest from you, as
Attorney General, that you would review the so-called
antiterrorism programs that have an inordinate and unfair
impact on Arab and Muslims?
Judge Gonzales. I will commit to you that I will review it.
As to whether or not it is effective, will depend on the
outcome of my review.
Senator Kennedy. On the issues of civil rights enforcement,
civil rights is still the unfinished business of America. If
you are confirmed, you will be overseeing the Civil Rights
Division. Unfortunately, that progress has been sometimes
stalled by the administration. It is very important that the
Committee know that you are committed to that progress. I would
like to get into some specific questions about it.
In 2004, the Civil Rights Division did not file a single
case alleging racial or ethnic discrimination against minority
voters, not one. In 2003, the division filed only one such
case. That is not very satisfactory, given the widespread
discrimination against minorities in State, local, even Federal
elections across the country.
So, if you are confirmed, will you review those particular
statutes and find out what the Department is doing or should do
in terms of ensuring that the law is complied with?
Judge Gonzales. I will commit to you that I will do that,
Senator.
Senator Kennedy. I am going to move on from Section 2 of
the Voting Rights Act, which prohibits voting practices that
discriminate based on race, color or membership in a language
minority.
I would ask you to take a very close look at this issue,
given, again, the Department's record on it. The Civil Rights
Division has actually opposed voters' interest in several court
cases. The division opposed attempts by the Michigan NAACP and
others to ensure that all provisional ballots by eligible
Michigan voters were counted in the November election. That is
the Bay County Democratic Party v. Land. And the division
argued that the Help America Vote Act's creation of provisional
ballots did not give private citizens any legal rights that
they could enforce in court.
In fact, the Department was supporting attempts by States
not to count votes of some of the actual eligible voters. And
this provision I think disregards the fact that Congress passed
the Act, including the provisional ballot requirement,
precisely because they were concerned about violations of the
2000 election. And the division's argument that individuals had
no right to enforce the provisional ballot provisions in the
Help America Vote Act had been rejected by every court that
heard it. So I am troubled the Department used limited
resources to discourage and prevent citizens from enforcing the
right to vote, and the Civil Rights Division has been the
champion for civil rights not opposing the voting rights in
keeping votes from being counted.
So I would hope that you would have a chance to review that
particular activity in the Department.
Judge Gonzales. You have my commitment on that, Senator.
Senator Kennedy. Thank you.
A third area in civil rights is the pattern and practice on
job discrimination. Many of us are concerned that the Civil
Rights Division reduce the enforcement of the landmark law
against employment discrimination. This is Title VII of the
1964 Act. The division has filed few cases alleging a pattern
or practice of discrimination. This is in spite of the fact, I
believe, that the Equal Employment Opportunity Commission has
record sort of numbers. So there are some that say, well, this
is not such a problem today, but you have another Government
agency indicating that it really is a problem. I would
appreciate it very much if you could review that section of the
Civil Rights Act and--
Judge Gonzales. I will commit to you that I will do that,
Senator.
Senator Kennedy. And also on the disparate impact laws and
job discrimination. That is the 1991 Civil Rights Act that we
have had.
I would appreciate the review of those. We will have an
opportunity to talk with you about it. We can submit questions
in more precision, but having your assurance in this is good
enough for me.
The death penalty. General Ashcroft had repeatedly rejected
the recommendations by U.S. attorneys not to seek the death
penalty. In fact, on some occasions, the Federal prosecutors
had been required to seek the death penalty, even though
defendants were willing to plead guilty in return for life
imprisonment.
General Ashcroft required his approval in all cases in
which the death penalty is taken off the table. He required
notice to him in all prosecutions where the death penalty was a
possibility, even if the local U.S. attorney believed the case
did not merit it. As of last September, the Attorney General
had directed U.S. attorneys to pursue the death penalty in 41
cases in which U.S. attorneys had specifically recommended
against it. Of these 41, only three resulted in the penalty
actually being imposed.
We have seen the Attorney General deal with the death
penalty issues in different ways in the Department. I
mentioned, when we talked, that Janet Reno dealt with it one
way, in terms of the reviews. Other Attorneys General have done
so as well.
I do not know whether you are prepared to make any comments
about how you might set up some kind of a process or procedure
in terms of the Department, in reviewing recommendations or how
you might proceed.
Judge Gonzales. Senator, I am not prepared at this time,
but I understand that this is a very important issue for you
and, if confirmed, I would look forward to the opportunity to
visit with you more about it.
Senator Kennedy. I would like to mention, also, the hate
crimes. The Chairman of the Committee, myself, and others have
been strong supporters. We have had strong support for it in a
bipartisan way in the Senate, in the past. We have been unable
to gain support in the administration. This is extremely
important. The number has increased. I think many of us look at
hate crimes as sort of the domestic terrorism, and we believe
that, in fighting the hate crimes, which are focused not just
on the individuals, but individuals representing a group, that
we ought to be able to have the full force of the Federal
Government on the side of the victims on this issue.
I do not expect that you are able to give us a definitive
answer on this issue this afternoon, but I would ask if you
would be willing to work with us at least to try and see if we
can. Senator Hatch has been interested in this. He has got a
somewhat different approach than we have had, but if we could
have some assurance that you would review this issue as well
and work with us, to the extent that you can.
Judge Gonzales. I am happy to look at this issue, Senator.
Senator Kennedy. Mr. Chairman, I have a limited number of
additional, which I will file with the--
I want to point out what we had, and this will be my final
comment, we had 22 days of hearings with Mr. Kleindienst for
his Attorney Generalship. We are doing this with Mr. Gonzales
in rapid form, as we might. So I thank the Chair. I appreciate
Mr. Gonzales' visit in the office and also his responses today.
I will submit a limited number of questions on some
additional areas: a gun show loophole and some other issues
which are of importance.
I thank the Chair.
Chairman Specter. Thank you very much, Senator Kennedy. I
agree with you, the Judiciary Committee hearings on Mr.
Kleindienst were not long enough.
[Laughter.]
Chairman Specter. We have tried to accommodate all of the
questions. We were prepared to have, and did have, multiple
rounds. And as witnessed, most of the Senators took one or two
rounds, and I think we have had a very full hearing. And if it
is required more days, if more Senators had been here, more
time was necessary, we were prepared to do what was necessary.
I have some concluding questions on my third round. I want
to give you an opportunity, Judge Gonzales, to respond to a
story in the Washington Post today, where the lead comment is
about a case involving a Mr. Henry Lee Lucas, who was an
applicant for clemency. And the Post makes a comment that left
out of the summary you made was any mention in 1986 of an
investigation by the Texas attorney general that concluded that
Mr. Lucas had not killed the woman, and Jim Maddox, the
attorney general, was critical, saying that he would not have
wanted to see a decision on such partial information.
What response would you care to make to that?
Judge Gonzales. Sir, I don't recall, I don't have the text
of that summary in front of me. And as to whether or not--I
have recollection that there was some discussions about the
issue you just raised, and my views are that, if, in fact, I
had knowledge about that, that certainly would have been
information that would have been communicated to the Governor.
As I indicated, in response to an earlier question, those
summaries were just summaries. There were, in virtually every
case, numerous conversations with the Governor about a
particular case before an execution actually went forward.
Chairman Specter. Just one question about the so-called
Bybee memorandum, and it is do you agree with the statement in
the memo, ``Congress may no more regulate the President's
ability to detain and interrogate enemy combatants than it may
regulate his ability to direct troop movements on the
battlefield''?
Judge Gonzales. I reject that statement, Senator.
Chairman Specter. You reject that statement.
Do you agree with the decision by U.S. District Judge James
Robertson, handed down on November 24th of last year, when he
stopped the military tribunals, ruling that detainees' rights
are guaranteed by the Geneva Conventions?
Judge Gonzales. Sir, I haven't studied the rulings. That
decision is on appeal. I believe, generally, we respectfully
disagree with the judge.
Chairman Specter. Do you believe that the CIA and other
governmental intelligence agencies are bound by the same laws
and restrictions that constrain the operations of the U.S.
armed forces engaged in detention and interrogations abroad?
Judge Gonzales. Certainly, some of the laws, sir. UCMJ, for
example, would be a limitation on military forces that would
not be applicable to the CIA.
Chairman Specter. Well, in what circumstances would the CIA
have a broader latitude? Why do you not think about that one
and give us a response in writing. That is a fairly involved
question.
Judge Gonzales. I appreciate that, Mr. Chairman.
Chairman Specter. Do you support affording the
International Committee of the Red Cross access to all
detainees in U.S. custody?
Judge Gonzales. As a general matter, I very much support
the work of the Red Cross and, as a general matter, would agree
that they should be provided access. I think the Red Cross
serves a very, very important function. They have, in the past,
been responsible for the safe treatment and health of U.S.
soldiers who are captured by our enemy and so, yes, as a
general matter, that is true.
Chairman Specter. Your answer is, yes, to that question.
Judge Gonzales. As a general matter, yes, sir.
Chairman Specter. The final subject that I want to take up
with you is one on congressional oversight. A fair amount of
concern with Attorney General Ashcroft, and I have a very high
personal regard for Attorney General Ashcroft. I served with
him. I sat next to him for 6 years on the Judiciary Committee.
And when he came in for oversight hearings, I commented, from
time to time, how different his opinion was, as a Senator on
the oversight committee, questioning the Attorney General than
in reverse.
And one of the items which I would urge you to do is when
you are scheduled for oversight to allow sufficient time so
that it is not a matter of coming in and having another
commitment at noon or 2 o'clock to give the members the
opportunity to question you. You have certainly been very
forthcoming here today. I think it is a very healthy sign when
Senator Leahy and Senator Kennedy ask a series of questions or
are working with you in the future, that does not commit them
to their vote or does not commit them to what is going to
happen, but it is nice to hear that they want your commitment
as to future activities, if confirmed.
But I would like your assurance that you would be
responsive to the invitation from the Committee twice a year.
Judge Gonzales. Certainly, my goal would be to be as
responsive as I reasonably can, and certainly two times a year
certainly sounds reasonable to me, Mr. Chairman.
Chairman Specter. And on the question of responding to
letters, that is not an easy job. It has been very hard, from
time to time, in fact, most of the time, not just the current
Attorney General, but preceding Attorneys General, for getting
responses to Committee questions. We would like your commitment
that you will see to it that these letters do receive your
attention. There are not so many of them. On one subject
matter, I had to write to the Attorney General five times and
still have not gotten an answer. So I ask you the question here
today.
Judge Gonzales. I will certainly look at that, Mr.
Chairman.
Chairman Specter. A final subject matter is one which gives
the scope of congressional authority on oversight, and I wrote
to you on December 27th, so you would have a specific notice
that I wanted to talk to you about it. And this is on the
Congressional Research Analysis, which was done in 1995, and I
quote in material part, a ``review of congressional
investigations over the past 70 years demonstrates that DOJ has
been consistently obliged to submit to congressional oversight
regardless of whether litigation is pending.'' And I have
omitted irrelevant parts. And then going on, this covers ``the
testimony of subordinate DOJ employees, such as line attorneys
and FBI field agents, and included detailed testimony about
specific instances of the Department's failure to prosecute
alleged meritorious cases. In all instances, investigating
committees were provided with documents respecting open or
closed cases that included prosecutorial memoranda, FBI
investigative reports, summaries of FBI interviews, memoranda
and correspondence prepared during the pendency of cases.''
Do you agree with that generalized statement as to the
authority of congressional oversight?
Judge Gonzales. Certainly, I respect the fact that, if
confirmed as Attorney General, I will be at a Department, and
as Attorney General, I am accountable to the American people
for the oversight of this Committee. It is a different
situation than over in the White House, where there are perhaps
different views about oversight of the White House.
I look forward to working with the Committee. I think, as I
said earlier, in response to another question, my goal is to
have a good working relationship with this Committee. I respect
the oversight role of this Committee. I do have some concern
because I want to be very candid with you about whether or not
the release of information may somehow impinge upon an ongoing
investigation. I do have concerns about whether or not the
release of information may somehow jeopardize national
security. But my goal, Mr. Chairman, is to work with the
Committee and to try to find a way that we can reach an
accommodation, so that your goals are met, and the
institutional interests of the executive branch are met.
Chairman Specter. Judge Gonzales, that is your first answer
that I find insufficient. The oversight issue is one which is
really of vital importance. This Committee wants to be helpful
to you, and there is a lot of experience on this Committee. You
have Senator Cornyn, who is gaining more experience by the
minute because he has been so diligent in attending these
hearings, and I commend you especially, Senator Cornyn. Senator
Sessions was a U.S. attorney and an Attorney General. And there
are very experienced members of this Committee. Senator Leahy
was the district attorney of Burlington, and others on the
Democratic side have very extensive experience, and I have had
some myself.
And we are in a position to be helpful to you. And it may
be that we will be asking you some matters that you can only
show Senator Leahy and myself when they are pending matters.
That is the practice in the Intelligence Committee, where
matters are not given to the full membership of the Committee,
but only to the Chairman and Vice Chairman.
Judge Gonzales. Mr. Chairman, if I may--
Chairman Specter. Yes.
Judge Gonzales. --I am not saying, no, to any kind of
request. My commitment is to work with this Committee. I
understand about your oversight responsibility, and I will do
my very best to work with this Committee.
Chairman Specter. On our oversight, we are going to be
very, very diligent, and we are going to be asking you for a
lot of tough material on pending litigation, which we have the
authority to do and to talk to line attorneys. We had an issue
a few years back where we had a very difficult time and finally
got the line attorneys, and FBI field agents, and detailed
testimony about specific cases of the Department's failure to
prosecute alleged meritorious cases, and documents respecting
open or closed cases, which include prosecutorial memoranda,
FBI investigative reports, summaries of FBI interviews,
memoranda and correspondence prepared during the pendency of
cases.
There has been a long history, Judge Gonzales, of requests
being made by this Committee and not being honored, and we
intend to pursue that.
Judge Gonzales. I understand, Mr. Chairman.
Chairman Specter. And we intend to pursue them in a very,
very helpful way.
Judge Gonzales. And I appreciate that.
Chairman Specter. And if we ask you for something which is
pending or something which is confidential, and you want to
make it available only to Senator Leahy and myself, we will
understand that. I think we have established our
trustworthiness. Well, I will not go beyond, but we have great
respect for the position of Attorney General of the United
States, and there is a very, very close working relationship
with the Judiciary Committee. And we think we could have been
helpful to the Department on what happened at Guantanamo early
on, very sensitive as to what the Government's response was
after 9/11. And, again, the first responsibility of the
Government is to protect its citizens. But I think, had there
been a little oversight and a few inquiries as to what was
going on, on Guantanamo, we could have been very helpful to
you.
And had we known about the Bybee memo and what was
happening with the transmission and the migration, I think we
could have been helpful to you again on taking a look at that
memo and giving you the advantage of our experience. And by
hindsight, there is no doubt that the Bybee memo was not what
it should have been, without getting into it or characterizing
it in any way. But we are in a position to be helpful to you.
So, in taking up this subject, I have laid it on the line
as to what we are going to be looking for.
Judge Gonzales. Thank you, Mr. Chairman.
Chairman Specter. Judge Gonzales, I repeat I think you have
been very responsive. I think the fact that there were not more
Round Two of questions is a tribute to the answers which you
gave to Round One. And where we had Round Three and a half and
Round Four and Four and a half, and about an hour of
questioning from one of our very diligent Senators, whom I
respect very, very much, and the extended questioning of
Senator Leahy, I think you have been very responsive.
So thank you very much, and there will be questions
submitted to you in writing in a number of directions, and your
prompt responses would be very much appreciated.
Judge Gonzales. Thank you, Mr. Chairman, and I thank the
Committee.
Chairman Specter. As the expression goes, Judge Gonzales,
you are excused.
Judge Gonzales. Thank you.
Chairman Specter. Thank you.
Senator Cornyn. Mr. Chairman, may I make a brief UC
request?
Chairman Specter. Of course, Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
I neglected earlier, when I was asking about the written
response to the document request that Senator Leahy had made to
the White House, I neglected to ask unanimous consent that the
three letters that were written, I believe authored by David
Leitch, in response to Senator Leahy's request, dated December
the 17th, 30th, and January the 5th, be made part of the
record.
Chairman Specter. Without objection, they will be made--
Senator Leahy. If we might, could we, also, then put as
part of the record my response letter, pointing out that those
were not responsive and my concern that those letters were not
responsive.
Chairman Specter. Both requests for and inclusion into the
record will be honored without objection.
I would offer, for the record, a letter to me, dated
December 26th, 2004, from the Committee of Concerned
Philadelphia Rabbis.
Under the Committee rules, we have one week for the
submission of written questions.
I would like to call our next witnesses, a panel, Dean
Hutson, Mr. Johnson and Dean Koh.
Our first witness, in alphabetical order, is Dean John
Hutson.
Senator Kennedy. Mr. Chairman, just while the witness is
coming, could I extend a warm welcome to Dean Koh--the whole
panel. But Dean Koh has a brother who ran the Public Health
Service in Massachusetts and was just, I would say, under
Republican governors, but his outreach was extraordinary, and
his leadership was just exemplary. And he is just a very highly
regarded and respected member of our Massachusetts community.
So I am sure the good dean has seen him more recently than I
have, but I just wanted to point out that service and
commitment to the public good runs long and deep in this
family, and I appreciate the chance to add a warm welcome to
him.
Senator Leahy. If I could, also, note for the record, too,
Mr. Chairman, Dean Koh's daughter Emily is here, too, as a
freshman at Yale. And I thought someday, in the Koh archives,
they will go back to this record, and she will be able to see
her name is in there.
Chairman Specter. Well, thank you very much, Senator
Kennedy and Senator Leahy, for those comments.
As I had started to outline, our first witness,
alphabetically, is Dean John Hutson, dean and president of the
Franklin Pierce Law Center in Concord, New Hampshire. Dean
Hutson has a record as a rear admiral, a graduate of the
University of Minnesota Law School, and has had a long and
distinguished naval career, including being the Navy's judge
advocate general during the administration of President Bill
Clinton.
We are allotting 10 minutes for the testimony of each of
you gentlemen, and then it will be followed by questioning from
the panel.
Dean Hutson, we look forward to your testimony, and the
floor is yours.
STATEMENT OF JOHN D. HUTSON, DEAN AND PRESIDENT OF THE FRANKLIN
PIERCE LAW CENTER, CONCORD, NEW HAMPSHIRE
Admiral Hutson. Thank you, Mr. Chairman, Senator Leahy,
Senator Kennedy, Senator Cornyn. Thank you for inviting me. I
request that my written statement be made a part of the record.
Chairman Specter. Your statement will be made a part of the
record in full, as will the statements of Dean Koh and Mr.
Johnson.
Admiral Hutson. Thank you, sir.
As Americans, we have been given many gifts by our Creator
and our forbearers, and we hold these gifts in trust for our
progeny and for mankind, generally. One of these gifts is great
military strength. This military prowess is enhanced by our
legacy of our strong advocacy for human rights for all human
beings by virtue of their humanity alone and by our long
history of unwavering support and adherence to the rule of law.
These gifts come with a string attached. Like all gifts,
there is a responsibility to husband them. We must not squander
them; rather, we must nurture them, refine them and pass them
on in even better condition than they were given to us.
Generations of Americans have understood this responsibility
and have accepted it.
In the wake of World War II, Truman, Eisenhower, Marshall,
Senator Vinson and others fulfilled their part of that sacred
trust. They had seen the horror of war, a horror that few of us
have seen, but have only read about. They responded with
programs like the Marshall Plan and with international
commitments like the Geneva Conventions. I believe that the
Geneva Conventions are part of our legacy not unlike the Bill
of Rights, the Fourteenth Amendment, and Brown v. Board of
Education. They demonstrate the goodness of the United States.
They also demonstrate our strength and our military might. Even
in the midst of that most awful of human endeavors--war--we
should treat our enemies humanely, even when we have captured
them. To do so is a sign of strength, not weakness. To not do
so is a sign of desperation.
I come here to speak in opposition to the confirmation of
Judge Gonzales because he appears not to understand that. He
finds the Geneva Conventions to be an impediment, a hindrance
to our present efforts, quaint and obsolete in important
respects. His analysis and understanding of the Geneva
Conventions, which I discuss in detail in my written statement,
is shallow, shortsighted and dangerous. It is wrong legally,
morally, diplomatically, and practically. It endangers our
troops in this war and future wars, and it makes our Nation
less safe.
My 28 years in the Navy tells me that his analysis of the
Geneva Conventions and their applicability to the war in
Afghanistan and the war on terror is particularly disturbing
because it indicates an utter disregard for the rule of law and
human rights. Those are the reasons American fighting men and
women shed their blood and why we send them into battle. But if
we win this battle and lose our soul in the process, we will
have lost the war, and their sacrifices will have been for
naught.
The Geneva Conventions have protected American troops from
harm for many years. Our forces are more forward deployed than
any other Nation's in terms of numbers of deployments,
locations to which they are deployed, and the number of forces
deployed. This has been the case since World War II and will
continue to be true. Because of that there is no country for
which adherence to the rule of law and to the Geneva
Conventions is more important than it is to the United States.
It is our troops that benefit. The original U.S. proponents of
the Conventions saw them as a way to protect U.S. troops from
the enemy not the enemy from U.S. troops.
It is not good for our military if we now throw them over
the side just because some people believe they are inconvenient
to the present effort. This is only the present war. It is not
the last war. It is not even the next-to-last war.
Another important aspect of the Geneva Conventions is that
it prepares us for the peace that will ensue. We cannot so
alienate our allies that they will not fight alongside us again
nor should we embitter our enemies so that they will fight on
longer and harder than they otherwise would or be unwilling to
relent, even though their cause is hopeless. Abrogating the
Geneva Conventions imperils our troops and undermines the war
effort. It encourages reprisals. It lowers morale.
I believe that the prisoner abuses that we have seen in
Iraq, as well as in Afghanistan and Gitmo, found their genesis
in the decision to get cute with the Geneva Conventions. At
that point, it became a no-holds-barred unlimited warfare not
just in Abu Ghraib, but around the country. I remind the
Committee that we are conducting 40 or more death
investigations in the course of the war on terror for detainees
at the hands of their U.S. captors.
Our military doctrine has long been, and I quote from the
Department of the Army pamphlet, ``The United States abides by
the laws of war in spirit and letter. Cruelty on enemy
prisoners is never justified.''
Twenty-eight years in the military taught me there are two
indispensable aspects to military good order and discipline.
They are the chain of command and the concept of
accountability. Accountability means that you can delegate the
authority to take an action, but you may never delegate the
responsibility for that action. Young, fresh-caught judge
advocates know that Government lawyers cannot hide behind their
adviser role to evade accountability for the actions that they
recommend.
The value of the chain of command is that what starts at
the top of the chain of command drops like a rock down to the
bottom of the chain of command, and subordinates execute the
orders and adopt the attitudes of their superiors in the chain
of command. It has always been thus, and that is the way we
want it to be.
Government lawyers, including Judge Gonzales, let down U.S.
troops in a significant way by their ill-conceived advice. They
increased the dangers that they face. At the top of the chain
of command, to coin a phrase that we have heard in the past,
they set the conditions so that many of those troops would
commit serious crimes. Nomination to Attorney General is not
accountability.
Only recently, in the face of the confirmation process, has
the administration attempted to undo the damage. I have three
thoughts on that:
One is that I applaud the administration for doing that.
The second is that it is a little late. We have had several
years under the other policy.
And last is that I do not see this as an exoneration of
Judge Gonzales; rather, it is somewhat of an indictment. It is
an acknowledgment of error. Damage has been done, but it is
never too late to do the right thing. If Judge Gonzales goes on
to be the chief law enforcement officer in the United States
after his involvement in this, we will have failed to undo a
wrong, but will have only exacerbated it.
We are at a fork in the road. Somewhat ironically, this
nomination has given the United States Senate an opportunity to
tell the world what you think about those issues. What you do
here will send a message, good or bad, to the world and,
importantly, to American armed forces and fighting men and
women.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Hutson appears as a
submission for the record.]
Chairman Specter. Thank you very much, Dean Hutson.
We turn now to Mr. Douglas Johnson, executive director of
the Center for Victims of Torture in Minneapolis. Previously,
he served as a consultant to the Human Rights Organization in
Latin America and to UNICEF and to World Health Organization.
We welcome you here today, Mr. Johnson, and look forward to
your testimony.
STATEMENT OF DOUGLAS A. JOHNSON, EXECUTIVE DIRECTOR, THE CENTER
FOR VICTIMS OF TORTURE, MINNEAPOLIS, MINNESOTA
Mr. Johnson. Thank you, Mr. Chairman and members of the
Committee, for the opportunity to be here to testify.
It is a particular pleasure to testify to you, Senator
Specter, because you were the primary champion of the Torture
Victims Protection Act, which a couple of American clients of
the Center for Victims of Torture worked with you on that and
are great admirers of your commitment to human rights. The
Torture Victims Protection Act has been welcomed by human
rights advocates around the world as a model of a new tactic in
the arsenal of torture prevention.
The Center for Victims of Torture was established in 1985
as the first specialized institution in the United States to
provide rehabilitation to victims of Government-sponsored
torture and to work for abolition of torture. As CVT's
executive director for 16 years, I offer to you our expertise
and experience about the realities of torture.
It is CVT's policy, however, not to comment on the
qualifications of specific individuals for Government posts,
but I think it is appropriate to be here because, in the
general global human rights effort and global human rights
campaign, there is a particular focal point on the Minister of
Justice or the Attorney General of countries who have at least
three important roles in the prevention of torture:
First, is to establish policies and procedures that
diminish the incentive to use torture, such as regulating the
role that confessions play in the overall administration of
justice;
Secondly, to prosecute or sanction torturers or persons or
ill treat detainees;
And, third, to eliminate both the reality and the
appearance of impunity among interrogators.
These roles require a clear understanding of what torture
is and why it is wrong, as well as very practical ideas on how
to prevent its use.
I just want to note that the position against torture has
been a very strong bipartisan effort by this Congress and by
administrations for many years. And one very notable measure of
that was that the Convention Against Torture was passed by this
Congress, and no other human rights treaty has been ratified so
promptly. That is an important measure because torture has a
very human cost.
The Center for Victims of Torture has provided care for
more than 7,500 people from 60 different nations. Although
there are different physical symptoms associated with the form
of torture they endured, there is a remarkably common pattern
of profound emotional reactions and psychological symptoms that
transcends cultural and national differences. The effects can
include, but are not limited to, besides organ failure and
death, emotional numbing, depression, disassociation,
depersonalization, atypical behavior, such as impulse control
problems and high-risk behavior, psychosis, substance abuse,
neurophysiological impairment such as the loss of short-term
and long-term memory, perceptual difficulties, the loss of
ability to sustain attention or concentration and the loss of
the ability to learn. The main psychiatric disorders associated
with torture are post-traumatic stress disorder and major
depression.
While it is important to recognize that not everyone who
has been tortured develops a diagnosable mental disorder, it is
equally important to recognize that for many survivors the
symptoms and aftereffects of torture endure for a lifetime.
Torture is said to be one of the most effective weapons against
democracy as survivors usually break their ties with their
community and retreat from public life. And in that regard, I
would like to acknowledge the presence of a number of victims
of torture here in the room today and the organization they
have pulled together called TASC, which represents a counter to
that often frequent retreat from public life.
Now, the memoranda written by and also apparently solicited
by White House Counsel Gonzales are replete with legal errors,
which the other two members of the Committee will describe, but
also, we believe, with political miscalculations and moral
lapses. They disregard the human suffering caused by torture
and inhumane treatment. They are based on faulty premises, even
fantasies about the benefits and payoffs of torture. What is
striking about all of these memoranda is the lack of the
recognition of the physical and psychological damage of torture
and inhumane treatment.
The assumption behind the memoranda, and particularly the
Bybee memorandum, and the later Report of the Working Group on
Interrogation, is that some form of physical and mental
coercion is necessary to get information to protect the
American people from terrorism. These are unproven assumptions
based on anecdotes from agencies with little transparency, but
they have been popularized in the American media by endless
repetition of what is called a ticking time bomb scenario.
Based on our experience at the center with torture
survivors and understanding the systems in which they have been
abused, we believe it is important that these discussions not
be shaped by speculation, but rather through an understanding
of how torture is actually used in the world. From our
understanding, we have derived eight broad lessons.
And those are, first of all, torture does not yield
reliable information;
Secondly, torture does not yield information quickly;
Third, torture has a corrupting effect on the perpetrator;
Fourth, torture will not be used only against the guilty;
In fact, fifth, torture has never been confined to narrow
conditions. Once it is used, it broadens.
Psychological torture results in long-term damage;
Stress and duress techniques are forms of torture;
And, finally, number eight, we cannot use torture and still
retain the moral high ground.
The cost to America of abandoning strict opposition to all
forms of torture are far-reaching; from the disillusionment and
fear of individuals, on the one hand, to complications in our
ability to conduct foreign policy on the other. It is up to all
of us, as Americans, but particularly to members of the Senate
and to U.S. Attorney General, to be clear that torture is a
line we will not cross under any circumstances or for any
purpose. It is imperative that the Attorney General is in
agreement with American values and will use the full scope of
American and international law to prevent torture and prosecute
torturers.
To that end, I respectfully call on the Senate Judiciary
Committee to keep torture on its agenda and to require a
routine report from the Department of Justice on its work to
stop and prevent the use of torture. I ask the Committee to be
vigilant in your oversight until it is clear, in both our tacit
and explicit policies, and in our actions, that the U.S. is
back on course and is in full compliance with national and
international law and American values.
When speaking on the Senate floor in support of
ratification of the Convention Against Torture, Kansas Senator
Nancy Kassebaum said, ``I believe we have nothing to fear about
our compliance with the terms of this treaty. Torture is simply
not accepted in this country and never will be.''
Let us also make it true today.
Thank you.
[The prepared statement of Mr. Johnson appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Johnson.
We now turn to Dean Koh, the dean of the Yale Law School,
having been named there earlier, well, in July of last year. He
has taught at the Yale Law School since 1985 in international
law, served as assistant secretary of state, was a U.S.
delegate to the United Nations Human Rights Commission and the
U.N. Committee on Torture.
Welcome, Dean Koh, and we look forward to your testimony.
STATEMENT OF HAROLD HONGJU KOH, DEAN AND GERARD C. AND BERNICE
LATROBE SMITH PROFESSOR OF INTERNATIONAL LAW, YALE LAW SCHOOL
Mr. Koh. Thank you, Mr. Chairman. Thank you members of the
Committee and especially thank you, Senator, for your kind
remarks about my family.
Let me say, in particular, Mr. Chairman, we, at Yale Law
School, are very delighted to have you in this important
constitutional role in our country.
Chairman Specter. I am just sorry I was not there to take
your course, Dean Koh. I would have been better prepared for
the job.
[Laughter.]
Mr. Koh. Thank you. Well, let me give you a little synopsis
of what you might have gotten had you taken it.
[Laughter.]
Mr. Koh. As I mentioned, I have twice been in the U.S.
Government. I served in the Clinton administration as the
assistant secretary for Human Rights. But previously I was in
the Reagan administration as an attorney at the Office of Legal
Counsel, which is the very office which has generated these
memoranda.
Let me say that I do not appear today to advise you on how
to vote. Your decision as to whether this candidate deserves
confirmation turns on many factors on which you are the experts
and may involve qualifications and positions that I have not
reviewed.
But I do appear today because I want to comment on Mr.
Gonzales' positions regarding three very important issues. I
think these are issues of the highest significance in American
life, and these are issues on which I do have legal expertise
and Government experience.
They are, first, the clear and absolute illegality of
torture and cruel, inhumane and degrading treatment;
Second, the nonexistence of the President's constitutional
powers to authorize torture and cruel treatment by U.S.
officials--what Senator Leahy has been calling the Commander in
Chief override. It does not exist as a matter of constitutional
law;
And, third, the broad applicability of the Geneva
Conventions on the laws of war to alleged combatants held in
U.S. custody. This broad applicability has been for the benefit
of our soldiers. The more that we ensure broad applicability of
the conventions to others the more our own soldiers are
entitled to protection.
With regard to each of these, I think the legal position is
clear. As Attorney General, Mr. Gonzales has said that his
first allegiance would be to uphold the Constitution and laws
of the United States. That would mean he would strictly enforce
the laws banning torture, he would strictly enforce the
ratified treaties regarding torture and the Geneva Conventions,
and he would ensure that the President abides by the
constitutional principle of checks and balances. But I think
more fundamentally he has to assure that no one is above the
law, including the President, and that no one is outside the
law, whether they are an enemy combatant or held in a place
like Guantanamo or outside the United States.
And I think that there has been a concern raised about Mr.
Gonzales' record and which continues through the hearing today.
It is that some of the statements he has made and some of the
things that he has tolerated have created the impression that
the President is above the law or that certain individuals live
outside the law as extralegal persons because they are called
enemy combatants or because they are being held in rights-free
zones such as Guantanamo.
Let me just address these three issues, starting first with
the torture memo--the Bybee memo.
As you mentioned, Senator Specter, I presented the United
States report on our compliance with torture in Geneva in 1999
and 2000. And at that presentation, I told the United Nations,
as a country, we are unalterably committed to a world without
torture. We had cleared through all the agencies at the U.S.
Government a statement of zero tolerance, of zero tolerance
policy. And the real question is how did we move from the zero
tolerance policy of 2000 to the permissive environment that
seems to have been created in the last few years.
Now, I think the answer is partly shown by the Bybee memo,
and having worked in the Office of Legal Counsel, I am very
sympathetic with the pressures that people are under in
drafting opinions like this. Nevertheless, in my professional
opinion, as a law professor and a law dean, the Bybee
memorandum is perhaps the most clearly legally erroneous
opinion I have ever heard. It has five obvious failures.
First, it asks, ``How close can we get to the line,'' when,
in fact, it is supposed to be enforcing a zero tolerance
policy.
Second, the way that it defines torture would permit many
of the things that Saddam Hussein's forces did during his time
as not torture. Just for example, the White House website lists
that beating, pulling out of fingernails, burning with hot
irons, suspension from ceiling fans were all acts of torture
committed by Saddam Hussein's forces. Nevertheless, under the
Bybee memorandum, if they did not cause serious organ failure
or death, they would not constitute torture.
Third, as I said, the memo grossly overreads the
President's constitutional power to order torture. If the
President has a constitutional power to order torture in the
face of a criminal statute preventing it passed by Congress, it
is not clear why he could not similarly order genocide or other
kinds of acts.
Fourth, the memorandum says that executive officials can
escape prosecution if they carrying out the President's orders
as Commander in Chief. This is the ``following orders'' defense
which was rejected in Nuremberg and is the very basis of our
international criminal law.
And, finally, an important point, the Bybee memo
essentially is very tolerant with regard to cruel, inhuman or
degrading treatment. A convention against torture, and cruel,
inhuman and degrading treatment is read to permit various kinds
of cruel, inhuman, and degrading treatment. And even today
there was some lack of clarity in Mr. Gonzales' answer about
whether U.S. officials are barred from cruel, inhuman or
degrading treatment.
I think that if this kind of reasoning is left
unchallenged, it could be used to justify atrocities of the
kind we saw at Abu Ghraib, where lower executive officials felt
a license to be cruel, inhuman or degrading to people in their
custody.
Now, some have said that the August 1st memo is a lawyer
setting out options for their client. But I think, as lawyers,
those of you who have served know that if a client asks a
lawyer to do something which is flatly illegal, the answer is,
no; not here is how we can justify it.
So I believe that this is a stain on our law, a stain on
our national reputation, a legal opinion that is so contrary to
a zero tolerance policy, which has a definition of torture that
would have exculpated Saddam Hussein, that reads the Commander
in Chief power to remove Congress as a check on torture that
turns Nuremberg on its head and that gives Government officials
a license to be cruel is wrong from the beginning.
If the counsel for the President had received 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, what happened, as you heard, was that that opinion
was allowed to become executive branch policy, was incorporated
into the DOD working group report, and remained as executive
branch policy for some two and a half years, during which time
I believe that a permissive environment was inevitably created.
Now, I welcome the very strong statements that Mr. Gonzales
made in finally repudiating this analysis. But I think he also
was begging the question of whether the parts of the memo that
were not explicitly replaced, namely about the President's
constitutional powers to order his subordinates to commit
legal--to commit torture, should be repudiated. At the
beginning of the testimony, Mr. Gonzales said those parts had
been withdrawn; by the end, he said he repudiated it. I think
he should say, I rejected--I reject them because they are
legally wrong and they never should have been put out there in
the first place. I do not think our Nation's chief law
enforcement officer should tolerate ambiguity on a matter that
is so central to our national values. I think that Mr. Gonzales
should repudiate all elements of the memorandum, ask for
withdrawal of the Defense Department's working group report,
and I also agree with Mr. Johnson that it is a very good idea
to have a regular report about what we are doing to root out
torture within the executive branch.
With regard to the commander in chief power, a very simple
point. The statement is made, ``Any effort by Congress to
regulate the interrogation of battlefield combatants would
violate the Constitution's vesting of the commander in chief
power in the President.'' If that were strictly true, large
sections of the Uniform Code of Military Justice would also be
unconstitutional. I think that is an over-broad position, I do
not think it is sustainable as a matter of law, and I think it
should be repudiated definitively.
Remember that the Attorney General has a duty not just to
serve his client, but to preserve the Constitution's system of
checks and balances. I think that to ensure that the President
is not above the law, Mr. Gonzales should repudiate the
constitutional theory that is put out there. A very simple
question which you could have asked him today was--
Chairman Specter. Dean Koh, your red light is on. If you
would conclude your current thought, we would appreciate it.
Mr. Koh. A simple question you could have asked him today
is, Is the anti-torture statute constitutional? If the answer
to that question is yes, then it cannot be overridden by the
President's commander in chief powers.
And the final thought, the Geneva Conventions, I believe
that this point has been made very well. The Geneva Conventions
do apply broadly. And the fact that the administration chose, I
think, through Mr. Gonzales's recommendation not to apply the
Geneva Conventions in Afghanistan was an error which I think
that Secretary Powell properly challenged.
Thank you.
[The prepared statement of Mr. Koh appears as a submission
for the record.]
Chairman Specter. Thank you, Dean Koh.
We will now proceed with a round of 10 minutes each. It is
late in the afternoon and we have had extensive testimony from
Attorney General-designate Gonzales dealing with the specifics
of the issues which he faced, which the country faced. And now,
with three individuals who are more, perhaps, academicians, or
at least in part academicians, we could explore a subject which
we have not taken up, a delicate subject, and that is the issue
of a so-called ticking bomb case on torture.
There are some prominent authorities, and I do not
subscribe to this view but only set it forth for purposes of
discussion, that if it was known, probable cause, that an
individual had a ticking bomb and was about to blow up hundreds
of thousands of people in a major American city, that
consideration might be given to torture. Judge Posner, a very
distinguished judge on the Seventh Circuit has commented that
this is worth considering, or perhaps even more positively than
that. Professor Dershowitz has written extensively on the
subject, has come up with a novel idea of a torture warrant.
And there runs through some of the considerations on
interrogation techniques, not to be decided by the people at
the base level but when dealing with higher officials trying to
get something out of the ranking al Qaeda person, that an
escalation of tactics ought to be left to more mature
authorities, perhaps even--well, higher authorities in the
Federal chain of command.
The Israeli Supreme Court has opined on the subject by way
of dictum. As they put it, recognizing in certain circumstances
Israeli interrogators may be able to use torture--not saying
they ought to, but those who do may be able to employ the
defense of necessity to save lives of a so-called ticking time
bomb or other such imminent threat.
Dean Koh, start with you. Are considerations for those
tactics ever justifiable even in the face of a ticking bomb
threat?
Mr. Koh. Well, Senator, you are a former prosecutor. I
think that my approach would be to keep the flat ban, and if
someone, the President of the United States, had to make a
decision like that, someone would have to decide whether to
prosecute him or not. But I do not think that the answer is to
create an exception in the law. Because an exception becomes a
loophole and a loophole starts to water down the prohibition.
I think what we saw at Abu Ghraib is the reality of
torture. I have had the misfortune to visit many torture dens
in my life. Many of them, I am sure, were justified on
emergency national security concerns, and at the end of the
day, you have places where they are just places where people
are routinely mistreated. And not for any broad national
security purpose.
Chairman Specter. That sounds essentially like the
hypothetical question defense--if the President does it, then
it is a prosecution matter. I do not know about that.
Dean Hutson, what do you think? Ever? On occasion? To even
consider that?
Admiral Hutson. I agree with Dean Koh that it is always
illegal. Now, you may decide that you are going to take the
illegal action because you have to, but two points: One is that
that is not necessarily the situation--or, not ``necessarily,''
it is not at all the situation we are talking about here with
Gitmo or Abu Ghraib or other prisons. There is no implication
that there was a ticking bomb anyplace. The other is that you
pose a question in which there is by definition in the question
not sufficient time to use more effective methods of getting
information--the good guy/bad guy, rewards and punishments,
those kinds of things where you are much more capable of
getting valuable information.
A third difference is that, by the hypothetical, you are
dealing with a particular individual. You are not dealing with
550 people at Gitmo or however many people at Abu Ghraib. So
that it is an interesting academic question. We have all
debated it. But I do not think that it is the sort of question
that the Bybee amendment--or, excuse me, the Bybee memo, for
example, addresses.
Chairman Specter. Dean Hutson, there is no doubt that it
was not involved at Abu Ghraib for any of the issues which we
have taken up. But anybody who has watched on C-SPAN since
9:30, we are off on a long day, might deserve a little academic
discussion even if it is only highly theoretical. And it is
pretty tough to advocate torture under any circumstances, even
with a ticking bomb, so I can understand the reticence of the
witnesses because I have the same reticence.
What are your views, Mr. Johnson?
Mr. Johnson. Well, the Israeli Supreme Court concluded that
the necessity was a defense in prosecution, it could never be
turned on its head to be made a policy moving forward. And of
course the Bybee memo has the same problem. It takes a question
of law about how to prosecute someone for torture and turns it
into proactive advice on what is allowed and what is not. And
that is the moral problem with that Bybee memorandum.
On the specifics of the ticking time bomb, I think that it
is very overblown in our imaginations and it is very right with
what I could only call fantasy and mythology. The number one
issue, as I said, is that torture is unreliable to get
information. We look at our clients. Nearly every client we had
confessed to something. They confessed to some crime, they gave
up some information, they gave up the name of an innocent
friend. What they said was, I would do anything, I would say
anything to get it to stop. And one of the major problems with
torture from a legal perspective, and especially from an
interrogation perspective, is it produces so much extraneous
information that it actually distracts from good investigation.
But secondly, the second part of this which is often the
question of fantasy, is that we have to do it because the bomb
will go off in the next hour, and if I do not agree for the
next hour, it will go off in the next five minutes--would you
do it there? It actually takes time to make someone break. It
takes strategy to make someone break. One of the very
disturbing things I find in the memorandum is to know that some
of the techniques that were used in Gitmo, such as water-
boarding, were being used on our own troops, supposedly to
train them to resist torture. I have talked to American
soldiers who have gone through that training and who have been
required to be engaged in that kind of activity, and they tell
me that it has taken them 15 years of therapy to get over it.
So I am very disturbed to think that it is any part of the
practice of our soldiers at this point, in this day and age.
But at the same time, we know it happens. I know of stories in
Argentina, where supposedly the professional criminals go
through training to resist torture over the 48 hours they need
before they get access to their lawyer. Everything I have heard
about the operational sophistication and the commitment of al
Qaeda would lead me to believe that they go through the same
training. So the notion that torture acts quickly to deal with
the ticking time bomb is also a fantasy.
Chairman Specter. Well, it may well be fantasy, and we hope
that it never arises.
Mr. Koh. Senator, might I just add--
Chairman Specter. Excuse me, I am in the middle of a
sentence, Dean Koh.
Let us hope it is fantasy. And as we have examined
interrogation techniques, we really have not gotten into the
subject matter today of the suspect as--or the person subject
to interrogation as a relevant factor, or the quality of the
information that that person might have, or the sophistication
and judgment if it went to the Secretary of Defense or the
Under Secretary, where there is more time to have an
interrogation technique. And let us hope that no President ever
has to face the decision or any official at any level, but
there are gradations and complications here which do not
provide any easy answers far beyond the scope of what we have
heard today.
My red light is on, so I ask no more questions. But you
were in the middle of a sentence, Dean Koh.
Mr. Koh. I was just saying that the new OLC opinion of last
week withdraws the necessity defense, and so it would not
function to permit the invocation of necessity as a reason for
torture.
Chairman Specter. Senator Leahy?
Senator Leahy. Thank you, Mr. Chairman.
Admiral Hutson and Dean Koh and Mr. Johnson, I want to
thank you for being here. You have sat through a long day. I
hope, though, it has been of interest.
I would also hope--and I apologize for my voice, which is
just about gone--I would hope that the Senators would read the
material you have submitted. I have read it; I found it
fascinating to go through. And I have learned from it. I will
be sending most of it around to members of my staff. Those who
have not read it, they might read it. It is well worthwhile.
And Dean Koh, you heard Judge Gonzales's testimony today. I
asked him a number of questions regarding his views of
executive power. I asked him if he agreed with the legal
conclusion in the August 1, 2002, memo by Assistant Attorney
General Jay Bybee--the President has authority as commander in
chief to suspend the torture laws and immunize those who commit
torture on his order.
I never really did get a yes or no answer on that. But can
a President override our laws on torture and immunize the
person who did the torture?
Mr. Koh. No.
Senator Leahy. That is a good answer. I happen to agree
with it.
Now, I asked Judge Gonzales about the administration's
claims regarding enemy combatants. The President has claimed
unilateral authority to detain a U.S. citizen whom he suspects
of being a terrorist, hold him indefinitely, incommunicado, no
access to a lawyer, and so on. He says he has this authority
with respect to U.S. citizens both abroad and here. Judge
Gonzales said the Supreme Court upheld this in Hamdi. Of
course, in Hamdi the Court did not decide that, they simply
reached the conclusion that the Congress had authorized this.
Do you believe that the President has authority as
commander in chief to lock up a U.S. citizen arrested in the
United States, and hold him indefinitely without access to
counsel or the courts?
Mr. Koh. No, and not when a civilian court is open. I was
surprised by the answer, because I think that if you look at
the Hamdi decision, the opinion that he was citing, Justice
O'Connor's opinion, is a plurality decision. It does not say
that he has a right to hold someone indefinitely. That very
issue is being litigated before the District of South Carolina
in the Padilla case on remand. And also, I think at the oral
argument in those cases, Justice Stevens asked the solicitor
general, How long would you hold the person? And the answer
was, For the duration of the war. And he said, What if it was a
hundred years war? And then the Government lawyer backed away
from the assertion.
So I do not think they were claiming at the time that there
was a right to indefinite detention, and I do not think the
Supreme Court gave them a right to indefinite detention.
Senator Leahy. Following a question one of the other
Senators asked, let us say the President followed Secretary
Powell's advice--declared the Geneva Conventions applied to the
conflict in Afghanistan. What effect would that have had on our
ability to prosecute captured al Qaeda and Taliban fighters for
war crimes?
Mr. Koh. Well, I think what was proposed, which I think
would have made sense, was for everyone to get a hearing, as
required by Article 5 of the Geneva Conventions. Everyone who
is taken into captivity ordinarily gets a hearing under the
Geneva Conventions, and thousands of these hearings have been
given in Iraq and were also given in Vietnam. That is what was
not done. I think, particularly with regard to the Taliban,
they were acting as essentially the army of Afghanistan, and I
believe that they should have been given POW status. I think
that there was some confusion in the questioning today about
whether, quote, Geneva applies or not. Geneva may apply, in the
sense that everybody gets a hearing to find out what their
status is, but some of them may not be POWs.
Senator Leahy. Well, that is what--thank you. That is what
I was looking for. We follow certain standards. Whether the
other side does or not, we do. We need to comply with Geneva
whether our enemies do or not. Is that not the logic of Geneva?
Mr. Koh. Broad applicability is the logic. We have been the
ones who are saying it should apply broadly because we want our
troops to have a strong presumption of protection. Afghanistan
was the first time in which we said that it did not apply to a
conflict. You were also asking questions about rendition. Once
it was said that Geneva Conventions did apply in Iraq, there
was the danger that people would then be removed from Iraq as a
way of bringing them outside of the scope of the Geneva
Conventions.
The bottom line, Senator, is we have tried not to create
ways in which people can be taken in and out of the protections
of the Convention, because that might happen to our troops.
Senator Leahy. Well, and if we have somebody who is
treating our troops inhumanely, or others, we can also
eventually bring about prosecutions of them as war criminals,
can we not? And there is a lot of tradition of that.
Admiral, the January 2002 draft memo for the President--
this was the one signed by Judge Gonzales--argued the war
against terrorism is a new paradigm, renders obsolete the
Geneva Convention's, quote, strict limitations in questioning
of enemy prisoners. But we have talked about the Army Field
Manual. That makes it perfectly clear that POWs can be
interrogated, is that not correct?
Admiral Hutson. That is absolutely right, Senator. A couple
of thoughts. One is that all the wars are new paradigms when
you first start to fight them. You know, there's new weapons
systems, there's new enemies, there's new tactics, there's new
strategy. So that the fact that it is a new paradigm does not
necessarily change things.
The other thing is that the Geneva Conventions place on the
detainee an obligation to provide certain information. It does
not place on the capturer a limitation on the questions or the
numbers of questions or the numbers of times to question. You
know, this is not a Miranda kind of situation. You can keep
asking questions. It does limit the torture, cruel, inhuman,
degrading kinds of ways that you may ask questions. If by
``obsolete'' Judge Gonzales meant that we are going to have to
use more kinds of techniques, harsher techniques, more
aggressive techniques, tortuous techniques, then I disagree
with him very strongly on that. If he is just saying that we
need to throw it over the side because we are dealing with
terrorists and we cannot ask any question beyond name, rank,
serial number, then he is just wrong on the law. You know, it
is one or the other. He is either wrong on the law or he is
advocating techniques that I would not support.
Senator Leahy. From a military lawyer's perspective, could
we have avoided what we see in Afghanistan, Iraq, and
Guantanamo?
Admiral Hutson. Absolutely. It goes back, Senator, to what
I think I said in my statement, written and oral statement,
about the chain of command. You know, those soldiers that we
saw in the pictures, the people that are being investigated
otherwise have picked up the attitude that started at the top
of the chain of command. And if the attitude that started at
the top of the chain of command was, they may be terrorists,
they may be evildoers, but they are human beings and we will
treat them with the dignity and respect that Americans treat
human beings, we would not have seen what we saw. Rather, the
attitude at the top was, they are terrorists so different rules
apply--without really explaining what the rules were that
applied. And as Dean Koh said, they ended--or I guess Mr.
Johnson--they ended up in this never neverland where nothing
applied, and then we saw what happened.
Senator Leahy. Well, we have some members of Congress in
both parties who have suggested we have some kind of an
independent, truly independent, investigation of what happened
here. Is that your position, too?
Admiral Hutson. Absolutely, it is, Senator. Judge Gonzales
referenced several times the number of investigations that are
going on, as if that somehow fixed the problem. And, you know,
if 10 investigations is good, then 20 would be even better, and
30 better than that.
That is not the point. The point is that we need an
investigation, a comprehensive investigation not unlike the
investigation that perhaps Admiral Gammon did in the Challenger
disaster, in which the investigating body has subpoena power,
the power to administer oaths, which raises the specter of
perjury, and is told to go wherever their nose leads it--not to
look at the few bad apples, you know, atrocities have been
committed by a few bad apples, now go out and demonstrate how
that happened. And if it goes to the E ring, then it goes to
the E ring; and if it goes to the Office of Legal Counsel, then
it goes to the Office of Legal Counsel. But when you put them
in a box with a series of investigations to look at junior
enlisted personnel, you are never going to find what happened.
Senator Leahy. Thank you. And Mr. Chairman, you asked the
question of Mr. Johnson I was going to ask, basically how
effective torture is. And I think he gave a very good answer
from his experience. Most people being tortured are going to
say whatever you want to stop the torture.
Thank you, Mr. Chairman. And again, I compliment you for
the hearing you held today.
Chairman Specter. Thank you very much, Senator Leahy.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman.
Mr. Johnson, Mr. Koh, Mr. Hutson, thank you for being here
with us today. I wanted to just ask whether you agree or
disagree with this proposition--to begin with, and then we will
get into more questions.
Do you agree or disagree that all lawful means to gather
actionable intelligence that is likely to save American lives
should be permitted?
Let me say that again. Do you agree or disagree that the
United States Government should use all lawful means to gather
actionable intelligence that is likely to save American lives?
Dean Hutson?
Admiral Hutson. I agree.
Senator Cornyn. Mr. Koh?
Mr. Koh. I agree with ``lawful means,'' not including
torture or cruel, inhuman, or degrading treatment.
Senator Cornyn. Exactly. That is implicit in the question,
but thank you for being specific.
Mr. Johnson?
Mr. Johnson. I agree, and my concern is that there has been
such a fascination with the supposed effectiveness of forms of
torture and duress that all lawful means in fact have not been
used.
Senator Cornyn. But as far as the proposition goes, ``all
lawful means,'' as qualified--as amplified, I should say, by
Dean Koh and you, Mr. Johnson, and Dean Hutson, you would agree
with that proposition, would you not, sir?
Mr. Johnson. Yes.
Senator Cornyn. Well, that is the thing. I think we all
agree with that. I mean, certainly we do on the Committee, and
as I heard Judge Gonzales testify today, that is what he said
his position was and what he believed the President's position
was.
But let me get to an area where maybe there is--well, I
know there is disagreement because we have already talked about
it some here today, not with you, but these witnesses. But
first of all, and I would like to maybe start with Dean Koh and
then Dean Hutson and then ask Mr. Johnson some other questions.
First of all, Mr. Johnson, let me just be--just as a
background matter, are you a lawyer by profession, sir?
Mr. Johnson. No.
Senator Cornyn. Okay. Well, I will not ask you any legal
questions.
Mr. Johnson. Please.
Senator Cornyn. It is not every day that you get to ask the
legal questions of the deans, of a couple of law school deans.
And Mr. Chairman, they would not let me into Yale Law School,
so I did not even bother trying to apply, because I was not
qualified. So it is a great honor to be here with such--
Admiral Hutson. We would have been glad to have you at
Franklin Pierce Law Center, Senator.
Senator Cornyn. Well, it is great to be here with such
distinguished legal minds. But, you know, I asked earlier Judge
Gonzales--I think it was--whether lawyers disagree about even
the matters as important as what you have testified here today,
Dean Koh and Dean Hutson. And we already, I believe, have
established that there are legal scholars and international law
experts who hold a contrary opinion to the one you have
expressed today, for example, Dean Koh, with regard to the
applicability of the Geneva Convention to terrorists. Would you
concede the point that there are respectable legal scholars who
hold a contrary opinion?
Mr. Koh. Yes. And I think that you have to define exactly
what you mean--the applicability to al Qaeda, the applicability
to Taliban. There is a different nose count on each one.
Senator Cornyn. I understand your distinction. But let us
talk about al Qaeda first. But do you--and you take the
position that Geneva applies to al Qaeda. Is that correct, sir?
Mr. Koh. I take the position that Geneva applies to people
who are captured and a tribunal could quickly determine that
someone is al Qaeda. And, as for example in the case of
Mousawi, he could then be turned over to a criminal proceeding.
Senator Cornyn. But for example, if there is a status
hearing to determine the status of an enemy combatant, and they
are determined to be, at that status hearing, a member of al
Qaeda, would they be entitled to the protections of the Geneva
Convention, in your opinion, Dean Koh?
Mr. Koh. Well, they fall under Geneva, but they are not
POWs, and they should then be treated as common criminals and
prosecuted.
Senator Cornyn. But nevertheless entitled to humane
treatment. Is that correct?
Mr. Koh. Yes.
Senator Cornyn. Okay. And Dean Hutson, do you have a
contrary view, or do you take the same position?
Admiral Hutson. I take the same view. You know, one of the
issues, I think, here, Senator, at least in my mind one of the
issues here is that--I do not want to sound pedantic, so
forgive me, but, you know, law is not practiced in a vacuum. It
is practiced in real life. And sometimes, whether or not
lawyers agree or disagree about the gray areas in the middle--
and I do not think this is necessarily a gray area in the
middle--there are other factors, like protecting U.S. troops,
that have to be taken into consideration in making the decision
about whether or not you are going to apply the Geneva
Conventions or the role that the Conventions are going to take.
And I think it is naive to say, well--not you are, but that
others, naive on the part of others to say, well, we are going
to very narrowly limit this because we are clever lawyers and
we can figure out a way to get around this. Because I think
that that, in the end, risks U.S. troops in this or future
wars.
Senator Cornyn. Well, Dean Hutson, let me pursue that just
a second. Is it not naive to assume that al Qaeda, people who
employ suicide bombing attacks, who attack innocent civilians,
will have any regard whatsoever for the international norms of
conflict?
Admiral Hutson. I do not think that they will have any
regard for the international norms of conflict, nor do I think
that they are suddenly going to say, oh, gee, if we start
conducting our behaving in other ways, we will get the benefit
of being POWs; if we start wearing uniforms, everything is
going to be okay. You know, I do not think it makes a
difference particularly one way or the other.
Senator Cornyn. So it would not influence their decision to
treat our troops, were they captured, in any particular humane
way, or when they complied with the Geneva Convention.
Admiral Hutson. I think it may. I think Senator McCain said
that he thought that it did in Vietnam. I think that it--
Senator Cornyn. Vietnam is--obviously we were at war with
another nation state and one that wore a uniform with insignia
and they had a chain of command--all the criteria by which the
Geneva Convention is determined to apply--did we not?
Admiral Hutson. They did not necessarily comply with the
law of war, which is one of the factors that is determinative
of POW status.
Senator Cornyn. Well, let me get back, before we digress
too much, to my earlier point, and that is that lawyers
disagree. I mean, that is one of the things that attract some
of us to the law, either as law professors, as practitioners,
or as judges. For example, Dean Koh, you have a colleague at
Yale Law School, Ruth Wedgwood, do you not?
Mr. Koh. She has left Yale and gone to Johns Hopkins.
Senator Cornyn. Okay. But at one time she was at Yale. Do
you regard her as an expert in international law, including
some of the issues we are talking about here, the applicability
of Geneva?
Mr. Koh. She is a friend and colleague of mine with whom I
often disagree on points of law.
Senator Cornyn. Exactly. That is really my point. And you
do know that she has filed--she joined, along with former
Carter administration officials, an amicus brief in Shafiq
Rasul v. George Bush and argued, for example, that the
President's conclusion that members of al Qaeda and the Taliban
are unlawful combatants is clearly correct.
Therein lies your disagreement, is that correct?
Mr. Koh. But I think you make an important point, Senator,
which is disputes among lawyers are often resolved at the
Supreme Court. In that case, the Bush administration's position
in Rasul was rejected definitively by the Supreme Court.
Senator Cornyn. Certainly not on the basis of Geneva
Convention applicability?
Mr. Koh. The issue was sent to a habeas corpus proceeding,
and Justice Souter, in another opinion issued that day,
suggested the question that the issue of Geneva could be raised
there.
Senator Cornyn. Sure. And one judge does not make a
disposition on a controlling issue of law. You would agree with
that, would you not?
Mr. Koh. I think we are moving to a definitive resolution
of these issues, but I think that these issues are going to
continue to be disputed and resolved in the courts.
Senator Cornyn. Well, let me just mention a group of other
distinguished lawyers: Professor W. Thomas Malison, who has
written in Case Western Reserve Journal of International Law;
Professor Alan Rosos, who has written on this subject;
Professor Ingrid Dieter; Professor Gregory M. Travaglio--and I
hope I pronounced that name correctly. And I will not go
through a whole long list. But you would acknowledge that there
are others who--other legal scholars, people who have written
in this area, who agree with Professor Wedgwood and disagree
with you on the application of Geneva to al Qaeda. Would you
concede that, Dean Koh?
Mr. Koh. I think the question, Senator, is whether
Afghanistan can be removed from the scope of the Geneva
Conventions. And I do not know that anybody agrees with that.
Senator Cornyn. So you would not concede that there is a
fairly lengthy list of distinguished legal scholarship that
holds that al Qaeda fighters are not entitled to the
protections of the Geneva Convention? You would not concede
that?
Mr. Koh. I think this was a point that was made in your
Washington Times op ed quoting Mr. Malinowski from Human Rights
Watch. But as I think he pointed out in his letter of response,
the danger is an assertion that an entire conflict is outside
the scope of the Geneva Conventions. If that were true, then
the U.S. soldiers participating also would not enjoy Geneva
Convention protections. So I think the solution is to bring all
the combatants who are captured in, to give them hearings,
decide who are POWs and who ought to be treated as common
criminals, and that al Qaeda members could well be among those
who are treated as common criminals.
Chairman Specter. Senator Cornyn, would you like one more
round?
Senator Cornyn. I would like two more minutes and I will be
through.
Chairman Specter. Deal.
Senator Cornyn. Thank you, sir.
Well, gentlemen, you know, regardless of the disagreement
among lawyers on this particular issue with regard to the
application of the Geneva Convention, and regardless of whether
you say Geneva does not apply or that Geneva does apply but al
Qaeda fighters are exempted from the requirement of Geneva's
protections with regard to POW status, would each of you--would
you agree, Dean Koh, for example, that, you know, some very
important lawyers, namely Federal judges, have decided in three
different cases that the President's position and Judge
Gonzales's position on the Geneva Convention is correct? Are
you aware of that?
Mr. Koh. If one of those cases is the Padilla case, that
case was reversed by the Second Circuit. If another case--
Senator Cornyn. But for lack of jurisdiction, right? And it
is not one of the ones I was referring to.
Mr. Koh. And I think you also need to include into the mix
Judge Robertson's opinion in the D.C. Circuit, which has in
part suspended the military commission proceeding precisely
because of the Geneva Conventions. And--
Senator Cornyn. Is that the one that is on appeal right
now?
Mr. Koh. Yes. And then--
Senator Cornyn. Well, for the record, the ones I am
referring to are the Arnot case, the John Walker Lindh case,
the American Taliban--
Mr. Koh. Which is a plea bargain.
Senator Cornyn. Well, I beg your pardon, sir. It is 212
F.Supp.2d 541. It is not a plea bargain. This is the one where
he claims immunity from prosecution by virtue of his being
protected by the Geneva Convention and a POW, but the court
held he was not entitled to the protection of the Geneva
Convention.
Mr. Chairman, given the late hour and my commitment to you
not to go much farther than a couple of more questions, we will
save all these interesting discussions perhaps for a later
time. But thank you.
Chairman Specter. Senator Cornyn, if Yale had an
opportunity to consider your application nunc pro tunc and had
seen you spar with the distinguished dean of the Yale Law
School, I think you would have been admitted, beyond any
question. But I do not know that, had you gone to Yale, you
would have been the superb questioner that you are today.
Senator Leahy and I are sort of chained to the mast--that is
the role of being ranking and chairman--but you are a free
agent. So your presence here is extraordinarily commendable.
And I think, including your introduction, you may have
outranked Senator Kennedy on tenure of speeches.
That concludes the hearing. Thank you very much, gentlemen.
[Whereupon, at 6:24 p.m., the hearing was concluded.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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