S834 CONGRESSIONAL RECORD — SENATE February 2, 2005 29 other States it has already reached a rate of increase, which outpaces the Since our country’s founding, the crisis point. Seventy percent of doctors growth of our GDP, gross domestic tort system often has been a force of who have practiced in Tennessee for product, it is estimated that per capita justice and positive change, but today more than 10 years have had a claim cost will go above $1,000 by 2006. That that justice is being junked by trial at- filed against them. Does that mean means for a family of 4, there is a tort torneys looking for these multimillion- that 7 out of 10 doctors in one State are tax of about $4,000. dollar windfalls, and that is what we conducting malpractice, bad health The tort system accounts for about need to address. We will take action to care? No, of course not. 2.23 percent of our GDP. That is equal end the abuse in these lawsuits on the If one looks at the studies of obstet- to the entire economy of the State of floor of the Senate. It will be done for rics, OB/GYN, 92 percent have had a Washington or more than that of the the sake of true victims who deserve claim against them. That is 9 out of State of Tennessee, my own State. fair compensation, for the prosperity every 10 doctors who have been deliv- Where does all that money go? Unfor- and health of our people, and for the ering babies for more than 10 years. tunately, less than half of it gets to the integrity of our Government. For cardiac surgeons, heart surgeons, victims, the people who have been vic- I yield the floor. not a higher risk but in some ways a timized and hurt. They need to be fully f compensated. We all agree with that. higher risk field, one of the more com- EXECUTIVE SESSION mon operations done across the coun- The problem is, less than half of the try today is cardiac surgery—92 per- money goes to the victims, which is cent out of the physicians, 9 out of 10 the purpose of the tort system, and the NOMINATION OF ALBERTO R. physicians who have practiced more other half of it goes to administrative GONZALES TO BE ATTORNEY than 10 years, have had a suit filed costs and, of course, to the trial law- GENERAL yers, the personal injury lawyers. against them. The PRESIDENT pro tempore. Under Average malpractice insurance pre- There are lots of different examples. Take the case of the Coca-Cola apple the previous order, the Senate will re- miums have increased, so it is a prob- sume executive session for the consid- lem, but it is a problem that is getting juice dispute. It is really on the apple juice end of this, that the plaintiffs’ eration of Executive Calendar No. 8, worse. Look over the last 5 years; these which the clerk will report. lawyers charged that the drink com- premiums have increased by 84 percent. The bill clerk read the nomination of pany was improperly adding sweeteners The premiums go up because when the Alberto R. Gonzales, of Texas, to be At- frivolous lawsuits increase, it creates a to its apple juice. So as compensation, torney General. heavier burden and that is passed on, of the attorneys managed to secure a 50- The PRESIDENT pro tempore. Under cent coupon for each of the apple juice course, to physicians. In Tennessee, the previous order, the time until 4:30 victims while at the same time the OB/GYNs can expect to pay $60,000 a p.m. shall be equally divided for debate lawyers walked away with $1.5 million year in insurance premiums; heart sur- between the Senator from Pennsyl- for themselves. vania, Mr. SPECTER, and the Senator geons, about $55,000; and general sur- The system is out of balance. We will from Vermont, Mr. LEAHY, or their des- geons, $40,000. All of that is high. That bring it back into balance. Small busi- is just to pay for the insurance. Re- ignees. nesses get dragged into this irrational The Senator from Texas is recog- member, Tennessee is not yet a crisis tort system. There is example after ex- State. If a doctor is in Pennsylvania, nized. ample that we all have. The system Mrs. HUTCHISON. Mr. President, the Ohio, or down in Florida, they are pay- clearly needs to be reformed. Cherry- ing two to three times that. Some neu- division basically is going to be from picking favorable counties to land bil- 9:30 we will have Republican speakers rosurgeons, trauma surgeons, are hav- lion-dollar settlements undermines the and from 10:30 to 11:30 there will be ing to pay insurance of $300,000, some core principles of our legal system. Democratic speakers and then we will even $400,000, a year for the privilege of Those principles are fairness and eq- be going back and forth. taking care of people in the event there uity. These are the sorts of issues that I am pleased to be able to open to- is an accident. the Judiciary Committee will be ad- day’s discussion on the nomination of Dr. Martin Olsen, chair of OB/GYN dressing tomorrow in committee and my friend, Alberto Gonzales. I am division at East Tennessee State Uni- that we will be addressing on the floor pleased because I know Alberto versity, reports that their clinic in the of the Senate next week. Gonzales personally and have been able rural town of Mountain City, TN, had As our distinguished colleague from to work with him both during the time to shut down because of unaffordable New York, Senator SCHUMER, has ex- he was a distinguished supreme court insurance costs. Cocke County mean- plained on the Senate floor, too many justice in my home State of Texas, and while has lost 7 of its 12 doctors who lawsuits are filed in local courts that as White House Counsel. deliver babies. have no connection to the plaintiff, the As the senior Senator from Texas and The problem is not limited to Ten- defendant, or the conduct at issue. If formerly the junior Senator from nessee. It is not even limited to the the case affects the Nation as a whole, Texas, I have had a lot of commerce practice of medicine. I use that as an it should be heard in a Federal court. with Alberto Gonzales. I can tell the example because the impact these liti- We have other areas of litigation American public without reservation: gations costs and frivolous lawsuits that need to be addressed and hopefully He is honest. He is a straight shooter. have on medicine and health care is so will be addressed in the near future. He has told me some things I didn’t dramatic to me as a physician, as I Asbestos litigation has bankrupted 70 want to hear on more than one occa- look at my physician colleagues. companies; 18 companies have been sion. But I was absolutely assured that Across the country, American busi- bankrupted in the last 24 months. It he was doing what he said he was going nesses, doctors, plaintiffs, court sys- means job losses—60,000 jobs have been to do and that he had reasons for what tems, and taxpayers, are all being vic- lost, with billions of dollars taken out he did. timized by frivolous litigation, by out- of our economy without the patients or On the other hand, I have been able of-control litigation. Now is the time individuals with cancer being ade- to persuade him on issues where our to change that. That opportunity is be- quately compensated in a timely way. views differed, because he listened. He fore us. So squeeze the waste and abuse and in is not rigid and impenetrable, as some In 2003, the tort system cost about some cases the fraud out of the sys- people have described him. Again, he is $250 billion overall. Much of that, tem—that is our goal—and return these a person who listens, who is thought- maybe half of that—I do not even know systems back into systems of integrity. ful, who is a straight shooter, and what the figure is—is obviously well I am very excited about where we are someone for whom I have the utmost spent. What we want to do is squeeze going in terms of addressing the tort respect. the waste, the frivolous lawsuits, out issues in a balanced, bipartisan way. I am proud to be able to start the of the system. That figure of $250 bil- We will justly compensate those who floor debate today on Alberto Gonzales, lion means of an unnecessary tax of have been injured by careless or reck- who was nominated and is to be con- about $850 for every man, woman, and less actions, and we want to hold those firmed as Attorney General of the child. So it is bad now. At the current who commit these actions to account. United States.

VerDate Aug 04 2004 02:03 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.003 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S835 Alberto Gonzales is the American ough research, would not shoot from represent only the White House, he will story. He is the American dream. He is the hip. He wanted someone who could represent the American people. He is the American dream, not because he be a steady hand at the wheel in the absolutely right on that point. That is wants his piece of the pie. He is the White House Counsel’s Office. So, what all of us expect and that is what American dream because he worked Alberto Gonzales came to the White he intends to deliver. hard, never complained. Without many House with the President and did an I think it is the most important advantages growing up, he persevered, outstanding job as White House Coun- point. maintained a positive spirit, and it is sel, and adviser to the President. He As we look at history and as we look fair to say, Alberto Gonzales made it. made sure the President knew all of at past Attorneys General, sometimes He made it on his own because he pre- the options and his perspective, but the impression is that an Attorney pared himself and because he didn’t act also provided him with the views and General is only loyal to the President. like a victim. He understood that this perspectives of others. This is very im- Of course, the Attorney General will be country is filled with opportunities and portant. loyal to the President, but that will he took responsibility and seized that I think Alberto Gonzales sometimes, not override his loyalty to the Con- opportunity. because he is so fair-minded, would stitution, the law, and the American He grew up in Humble, TX. Alberto give the President options even though people. Gonzales was one of seven siblings liv- he personally disagreed with some of Of course, the President too wants to ing in a two-bedroom house that was them. That is what made him such a do what is right for the American peo- built by his father and his uncles. His trusted lawyer for the President. He ple. But the Attorney General is the father was a migrant worker, as was wanted the President to make the deci- one who will make the determination if his mother. They did not have an edu- sions and he wanted the President to something is lawful. And I know that cation beyond elementary school. But make the decisions with the best pos- Judge Gonzales will do a great job in Judge Gonzales learned through his sible information he could have— representing the law and the American parents’ example that, with dreams whether he believed in that particular people. and commitment and hard work, you option or not. His loyalty to the Presi- I am disappointed some have sug- can be rewarded in this country. dent was, of course, absolute. gested that maybe Judge Gonzales has He excelled in the public schools Judge Gonzales answered a very im- not been responsive enough in his con- around Houston, TX. He was a star. He portant question about his service as firmation hearings about his role as was a star on his own merit because he White House Counsel as opposed to the White House Counsel. He was at the studied, worked hard, and was always different role he would have as Attor- committee hearings for over 6 hours of looking for that extra thing he could ney General. I think it is important be- questioning, and 450 questions were do to make himself better. Because of cause I think some of the criticism submitted to him after the hearings. that, he was accepted into one of our that has been made in the Senate Judi- He answered all of them—over 200 Nation’s most prestigious universities, ciary Committee and on the floor has pages of single-spaced responses to Rice University in Houston, TX. revolved around the role of a White Senators. He was not only a graduate of a great House Counsel and the very different To put this in context, President university, he was the first person in role that the Attorney General of the Clinton’s nominee, Janet Reno, re- his family to graduate from college and United States would play. Alberto ceived 35 questions. Alberto Gonzales from a great university such as Rice. Gonzales understands the difference. received 450 questions. From there he went on to Harvard Law He knows there is a difference. He I think it is a very important point School, where he earned his law degree. agrees that there is a difference. to make that Judge Gonzales has been As White House Counsel he had one He served in the Air Force. He was a forthcoming. He has answered every role, loyal adviser to the President of partner at Vinson & Elkins, a pres- question, either in the open forum, or the United States, and he fulfilled that tigious international law firm. He then in 6 hours of hearings, or in the 200 role superbly. He gave the advice; he pages of written answers to questions became general counsel to Governor gave different options; he let the Presi- George W. Bush, and that is where they that were submitted after the hearings dent make the decisions. But he knows by Senators. No one can claim this came to have the bond that has been so that the Attorney General of the important in their relationship man has not been forthcoming. United States is not just loyal to the In an article in the December 25, 2004, through the years. President. Of course, he is in the Presi- Then-Governor Bush appointed Christmas Day, Houston Chronicle en- dent’s Cabinet. Of course, he will be Alberto Gonzales to be secretary of titled, ‘‘A Dem on Gonzalez,’’ a Demo- loyal to the President. But that is not crat and former colleague of Judge state of Texas. The secretary of state is his primary function. I want to read Gonzales, Lynne Liberato, now a part- the person in charge of running elec- his response because it addresses ex- ner in the Houston office of Haynes and tions, making sure we have fair elec- actly what the Attorney General’s role Boone wrote: ‘‘ . . . in the back of my tions in Texas and that the elections should be, in my opinion. I agree with mind [over the past four years] I have are well publicized so we would have a Alberto Gonzales, and I think he is taken solace in the fact that the Presi- strong voter turnout. He also served as right on the mark. dent had an adviser like Al. Certainly, Governor Bush’s liaison to Mexico. I do very much understand that there is a It has become a tradition of Gov- difference in the position of Counsel to the I wish he were a Democrat, appointed ernors in our State to have a secretary President and that of the Attorney General by a Democratic President. But we of state who will work on border issues of the United States. . . . As Counsel to the lost. This President has the right to and issues with Mexico, because that is President, my primary focus is on providing appoint the attorney general, and I do such an important bilateral relation- counsel to the White House and to White not think the President could have ship for our State as well as our Na- House staff and the President. I do have a done better.’’ tion. client who has an agenda, and part of my In addition, I have to say how very Then Governor Bush appointed role as counsel is to provide advice so that impressed I am with the new Senator the President can achieve that agenda law- Alberto Gonzales to the Supreme Court fully. It is a much different situation as At- SALAZAR from Colorado, who I am told of Texas. He had a distinguished ca- torney General, and I know that. My first al- made a speech in his caucus yesterday reer. He gained experience and respect legiance is going to be to the Constitution in which he said, Please vote for every step of the way. When the George and the laws of the United States. Alberto Gonzales. I do not know first- W. Bush became the President, he Judge Gonzalez in a written response hand what he said or exactly what his brought Alberto Gonzales with him to later said: ‘‘All government lawyers words were, but Senator SALAZAR has Washington to be his White House should always provide an accurate and taken a position on principle. He took Counsel. honest appraisal of the law, even if a position on principle on behalf of Dr. As White House Counsel, the Presi- that will constrain the Administra- Condoleezza Rice and has done so with dent wanted someone he could trust tion’s pursuit of desired policies.’’ Alberto Gonzales. I must say I respect and someone who knew the law, some- Judge Gonzales said if he becomes and admire his willingness to step up one he knew was smart, would do thor- Attorney General, he will no longer to the plate and talk about the record

VerDate Aug 04 2004 00:51 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.005 S02PT1 S836 CONGRESSIONAL RECORD — SENATE February 2, 2005 and the principle of giving the Presi- I am very pleased one of our new Sen- broken key racial barriers in both Gov- dent his nominee, and I commend Sen- ators from the State of Florida has ar- ernment and industry. I am so proud to ator SALAZAR for that bipartisan effort. rived on the floor. He is certainly a have been part of that progress, thanks I hope my colleagues will not use this person, having served in the Presi- to the help of many who have opened debate to continue to attack the Presi- dent’s Cabinet, who knows how impor- doors and others who have been en- dent. I hope today is filled with speech- tant it is to have a fair discussion and lightened enough to make opportuni- es about Alberto Gonzales, about his then go forward. ties available to Hispanic people in qualifications, and about his back- I would like to yield the floor to Sen- America. ground. I hope we will stay on the issue ator MARTINEZ. I was honored to serve as this Na- of Attorney General of the United The PRESIDING OFFICER (Mr. tion’s twelfth Secretary of Housing and States. I have seen the rhetoric go in a VITTER). The Senator from Florida is Urban Development. I am thrilled to different direction, both for Secretary recognized. represent the great State of Florida as of State Dr. Condoleezza Rice and for Mr. MARTINEZ. Mr. President, good our Nation’s first Cuban-American our nominee for Attorney General, morning. Senator. It is a wonderful honor, but I Alberto Gonzales. I don’t think this is I ask unanimous consent to deliver a also feel a tremendous weight of re- the time to be attacking the President. portion of my remarks in Spanish, and sponsibility from that very important There is plenty of opportunity to dis- that a copy of my speech in English opportunity. In the case of Attorney General, no agree with the President of the United and in Spanish appear in the RECORD. States. Our duty today in this body is The PRESIDING OFFICER. Without Hispanic American has ever been in the to give advice and consent on the nom- objection, it is so ordered. position of Government at that level. ination of Judge Alberto Gonzales to be Mr. MARTINEZ. Mr. President, I rise No Hispanic American has ever served Attorney General of the United States. today in support of the nomination of in one of the four premier Cabinet posi- I am very hopeful we will be able to Judge Alberto Gonzales to be our next tions. I have sat at that Cabinet table, take this opportunity to do the right Attorney General of the United States. and I know what an immense privilege thing, to confirm Judge Gonzales as As a freshman Senator, I was frankly it is to sit in with the Counsel of the Attorney General of the United States, hoping to wait a little longer before President of the United States. But I the first Hispanic American who will speaking for the first time on the Sen- also know very well that there are four hold the office of Attorney General. He ate floor. It is a privilege I take very seats at that Cabinet table that have is a remarkable leader. He has shown seriously. However, I could not fail to never before been occupied by a His- great strength and resolve during a dif- speak in defense of Judge Gonzales. I panic. They are the Secretary of State, ficult time for our country. Further- am disappointed that he has been the Secretary of the Treasury, Secretary of Defense, and Attorney General. These more, he has a record of public service subject of such partisan attack, and are the original Cabinet positions. over years that shows his remarkable today I rise in the defense of a good These are the positions that are at the character. He is a man who will be a man and a good friend. heart of the most important positions great Attorney General of the United Al Gonzales is a very dedicated pub- of our Government. Never in the his- States. lic servant and exceptionally qualified tory of our Nation has the Hispanic I think it is going to be a very impor- to serve our Nation as our next Attor- American or Latino had the oppor- tant vote that we will see tomorrow. ney General. I hope during the debate yesterday tunity to occupy that seat. Judge In January of 2001, President Bush the Democratic colleagues decided Gonzales will be the first Hispanic chose Judge Gonzales to be Counsel to they will say their peace, hopefully on American to serve in one of the Cabi- the President, and he has served his the merits or whatever they think of net’s top four positions when he be- Nation well in that position. the qualifications of Judge Gonzales, comes our next Attorney General. This Judge Gonzales was appointed to the and I hope the vote will come soon. We is a breakthrough of incredible mag- Texas Supreme Court in 1999, and from need to allow the President to fill his nitude for Hispanic Americans and December of 1997 to January of 1999, he Cabinet so they can take over in a rea- should not be diluted by bipartisan pol- served as Texas’s 100th Secretary of sonable time frame. itics. I hope we can have the full debate State. Judge Gonzales is a role model for today. It would be my hope we would I am so proud. the next generation of Hispanic Ameri- have an early vote tomorrow. If people Judge Gonzales also has received a cans in this country—a role model to do not have anything else to say, let us number of awards. He was inducted our young people who, frankly, have have a vote. Let us allow Alberto into the Hispanic Scholarship Fund too few. Gonzales to be confirmed and take the Alumni Hall of Fame in 2003, and he Just this past weekend, Congress- oath of office and get about the busi- was honored with the Good Neighbor woman SUE KELLY was relating a story ness of our country. Award from the United States-Mexico to me of something that happened with There is no reason to hold him up. He Chamber of Commerce. her recently at a school she was vis- is going to be confirmed. I think it was I was honored when he and I both re- iting in her district. She told me of a mistake to hold Condoleezza Rice for ceived the President’s awards from the something that I know to be a fact; it hours and hours and hours. It was not United States Hispanic Chamber of has happened in my own life. She said, the right thing for our country. I hope Commerce and from the League of While I was visiting there, one of the that for Alberto Gonzales we realize United Latin American Citizens, prob- young people came to me, a Latino, a there is going to be a huge responsi- ably the largest Hispanic organization Hispanic, a young person, and said to bility on his shoulders and he needs to in America. me, Do you know we now have our own be able to start. He needs to put a dep- These are just a handful of many pro- Senator. That young person was speak- uty in place, to see what is happening fessional accolades Judge Gonzales has ing of me or perhaps of Senator in the Department and have the time been awarded over the course of his SALAZAR from Colorado. But this to make the appropriate adjustments. very distinguished career. young person knew and took pride in The Attorney General of the United I know a lot has been said about the fact that we were here as role mod- States is essential to an efficient Jus- Judge Gonzales’s life story. It is a els for them, as someone who could sig- tice Department. There are many story of the fulfillment of the Amer- nal the opportunities that lie ahead in issues he faces. The sooner he gets ican dream. It is a story that resonates their own life. Attorney General started, the better. with all Americans, but especially with Gonzales will resonate through the His- I hope the President’s State of the Hispanic Americans. We view his story panic community just as he has reso- Union speech tonight will allow him to with pride and many view it with hope nated throughout our community; that lay out his case for the future of our for their own lives. he has been the President’s lawyer— country, and then I hope we can early As a fellow Hispanic American, I not an insignificant thing for him to tomorrow confirm Alberto Gonzales to want to put this nomination of Judge have done. be Attorney General of the United Alberto Gonzales in a very specific per- He is already and will continue to be States. spective. Our Hispanic community has an inspiration to these young students.

VerDate Aug 04 2004 02:03 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.007 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S837 There will be Hispanic boys and girls BYRD who is an encyclopedia of statis- appointed him general counsel and across the country who will now aspire tics. I am sure this is the first time we then secretary of state, and eventually to be lawyers because of Judge have had a bilingual speech in the Sen- to the Supreme Court of the State of Gonzales’s example of what is possible ate. Texas and, of course, as counsellor to and how it is possible that someone I say to my colleagues, the Senator the President of the United States with his very humble beginnings could could not have picked a more impor- when he was elected President. achieve all he has achieved if only they tant topic upon which to first speak on President Bush has had the oppor- dare to dream in our great Nation. the Senate floor. We are grateful he is tunity to take the measure of this man And to Hispanic Americans through- here. We listened carefully to every and to work with him over many years out our Nation: word, and we thank you for what you and to appreciate the talents he can Y a los Hispano-Americanos a lo are doing for the nominee. bring to the Department of Justice of largo y ancho de esta gran nacion: The PRESIDING OFFICER. The Sen- the United States. Frankly, it is for tanto a nuestros nin˜ os, como a ator from Arizona is recognized. that reason I think even though some nuestros estudiantes de Derecho y los Mr. KYL. Mr. President, while the on the other side of the aisle have res- padres y abuelos que han venido a Senator from Florida is still in the ervations about Judge Gonzales, they America a crear una vida mejor para Senate Chamber, I congratulate him certainly ought to give this man the ellos y sus familias, hoy les tengo un for his first speech in the Senate. I benefit of the doubt. If anyone deserves mensaje: have come to know him as an excep- the benefit of the doubt it is a person El Juez Gonzales es uno de nosotros. tional public servant. It is fitting he like Alberto Gonzales. El representa todos nuestros suen˜ os y should speak to this issue, the nomina- Is he perfect? No; none of us are. It esperanzas para nuestros hijos. tion of Judge Alberto Gonzales to be seems to me the President, having Debemos reconocer la importancia de Attorney General of the United States known this man for so long and having este momento—sobre todo para nuestra in his first speech. Frankly, I am hon- relied upon him personally, would be juventud. No podemos permitir que la ored to follow his remarks. They will given some deference in the selection politiquerı´a nos quite este momento be not nearly as eloquent, but I hope, of his nominee, especially given the que nos enorgullece a todos. Apoyemos nevertheless, persuasive in support of fact that against great odds Alberto a Alberto Gonzales. Judge Gonzales’s nomination. Gonzales has achieved so much in his This is a historic opportunity for From our schoolchildren, to law stu- life. dents, to parents and grandparents who America, and especially for me and the One word about some of the opposi- came to America to create a better life constituents in my State, so many of tion. I don’t think people who are for themselves and their families in the whom are Spanish, are Hispanic, and watching should be overly concerned United States, I have this message for can understand how significant it is for about the attacks relating to the sub- you today: Judge Gonzales is one of us. a young man to rise literally from ject of terror with respect to Judge He represents all of our hopes and Humble, TX, where Alberto Gonzales Gonzales. They have nothing to do dreams for our children and for all of grew up, to reach the pinnacles of with Judge Gonzales. Their way of ar- us as Hispanic Americans. Let us ac- power in American Government. They ticulating frustration and opposition knowledge the importance of this mo- know it does not come easy. Many of to the President’s policies with respect ment, especially for our young people. them have suffered the same kind of to the war in Iraq—and it is unfortu- We cannot allow petty politicking to background that could limit a person nate that sometimes these political deny this moment that fills all with like Alberto Gonzales but in his case statements and opposition are reflected such pride. Let us all support Alberto did not because of the support and love in the context of a nominee for office— Gonzales. of his family and the strength and for- this is an opportunity for members of I am honored to have my first re- titude that he characterizes and the the opposition to make their case marks on the Senate floor be in praise hard work that enabled him to progress against the President when they have of a friend, Alberto Gonzales, to be our from these humble beginnings, lit- an opportunity to speak to the Sec- next and I think exceptional Attorney erally in Humble, TX, all the way retary of State’s nomination or the At- General. Not only have I known Mr. through our finest educational institu- torney General’s nomination or other Gonzales as a colleague in government tions into one of the finest law firms of public officials. service where I have known of his in- this country, and eventually into gov- credible dedication, the incredibly long ernment when then-Governor George But it is too bad for those public offi- hours he has put in, the very difficult Bush discovered this fine young lawyer cials because, as I said in the case of days we all faced in the days following and asked him to fill a number of ap- Alberto Gonzales, most of what has the tragic moments after September 11 pointed positions in the State of Texas. been said has nothing to do with him. when our Nation was attacked, the tre- I was struck by one of the stories He is accused in one case of offering ad- mendous weight of responsibility that that has probably been repeated. It vice to the President with respect to a fell on him in the months and years bears repeating. Senator SALAZAR, in treaty, and that advice was absolutely that came after that, but I look for- introducing Alberto Gonzales to the correct. In the other case, he is accused ward to casting my vote in the Senate Judiciary Committee, on which I sit, regarding the content of a memo he did for our Nation’s first, and in this his- for his hearing, related the story of not author, and therefore it is not his toric moment, our next Attorney Gen- how Judge Gonzales had recalled in his responsibility. eral, the first Hispanic to occupy that upbringing the fact that during his Do not be deceived by some of these office. high school years he never asked his discussions that might cause you to I urge my colleagues to vote in favor friends to come over to his house be- wonder what does this subject of terror of Judge Gonzales’s nomination. I urge cause, he said: Even though my father have to do with Judge Gonzales. In this them to rise above the moment to see poured his heart into that house, I was case, the answer is essentially nothing. the greatness of this opportunity, to embarrassed that 10 of us lived in a Back to the point that was the cen- not lose this moment that we can all cramped space with no hot running tral theme of the Senator from Florida, make history. water or telephone. there are a lot of people in this country We can all make history. I look for- That is the situation in which this who are qualified to be Attorney Gen- ward to being a part of that with my young man grew up. Yet, as I said, he eral of the United States—a relatively vote for Judge Gonzales. was the first person in his family to go small number but nevertheless a lot of I yield the floor. to college. He ended up graduating people the President could have cho- The PRESIDING OFFICER. The Sen- from Rice. As a young man he sold pop sen. It is significant he chose Alberto ator from Kentucky is recognized. in the grandstands, dreaming one day Gonzales. He is clearly qualified. When Mr. MCCONNELL. I congratulate our of attending that university and grad- someone is qualified and has the con- new colleague, Senator MARTINEZ, on uated from Harvard Law School. After fidence of the President, as Alberto his initial speech in the Senate. I bet joining a prestigious law firm in Texas, Gonzales does, it seems to me those in the Senator will be cited by Senator he caught the eye of George Bush, who this body—unless there is some highly

VerDate Aug 04 2004 02:03 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.010 S02PT1 S838 CONGRESSIONAL RECORD — SENATE February 2, 2005 disqualifying factor brought to our at- been available to him in private prac- the strongest and most effective Attor- tention—should accede to the Presi- tice, it is hard to anticipate how much neys General, certainly of that period, dent’s request for his nomination and that would be, but it would have been who drove a great deal of the impor- confirm the individual. considerable. Instead, at considerable tant issues that were decided in the There is an extra special reason this financial sacrifice, I suspect, he has area of civil rights and in the area of is meaningful to me. That is because of been willing to participate in public fighting corruption, especially orga- the number of Hispanics in my State of service. He has excelled at it both as a nized crime, organized crime in labor Arizona and their aspirations and their judge in Texas and as a counsel to the union activity. pride at the achievements they have President in Washington. The reason that Robert Kennedy is accomplished. Now he has been put forth as the sort of the prototypical appointment in As the Senator from Florida pointed nominee of the President to serve as the post-World War II period is because out, it is important for this country to Attorney General. I think it is an un- it reflected the fact that the President, recognize the kind of talent Alberto fortunate reflection of the partisanship President John Kennedy, felt so Gonzales represents and to hold that up on the other side, to be very honest, strongly that he needed in the Attor- as an inspiration to young people to let that his character has been impugned, ney General’s position someone in them know, regardless of their race or that his purposes have been impugned, whom he had absolutely unequivocal ethnicity, if they work hard, even when that his integrity has been questioned, confidence and who was going to be they come from humble beginnings, and that his record of commitment to there as an assistant and as a force to this country offers opportunities that public service has been brought into carry forward his policies. are not available in any other country, question, not necessarily, I think, be- That attitude has moved forward and regardless of their background cause of what he has done, because throughout this period. Attorney Gen- they have the opportunity to become what he has done has been as an ex- eral Reno, who I had the opportunity the Attorney General of the United traordinarily successful public servant to work with extensively during her States of America. and exceptional justice, an exceptional term in office, initially started out in That is a tremendous testament to counsel to the President, but simply that role also, I believe. Certainly John this country. It is a testament to the because I believe Members on the other Ashcroft has had that position. Now, in Senate which has allowed people like side wish to highlight their political sort of a restatement, in a way, of the Alberto Gonzales to have an oppor- differences, using Judge Gonzales as Robert Kennedy role, President Bush tunity, to the President for his perspi- their stalking-horse to accomplish has chosen his closest legal adviser, cacity in nominating such an indi- that, and have been willing to attempt Alberto Gonzales, who has a much vidual for Attorney General. It would to undermine such an American suc- stronger r´esum´ e than Robert Kennedy cess story for the purposes of pro- be a very strong message not only had but who has the same historic posi- moting what amounts to petty polit- around this country but around the tion in that he is going to be able to ical gain. carry forth the decisions of this Presi- world for the Senate to confirm the It is unfortunate, unfortunate indeed, nomination of Alberto Gonzales as At- because the office of Attorney General dent and operate as a confidant of this torney General of the United States. has a tradition in this Nation, and es- President in a manner which is unique- Mrs. HUTCHISON. Mr. President, I pecially in the post-World War II pe- ly important to the Attorney General’s thank the distinguished Senator from riod, of being an office which has al- role. Obviously, the Attorney General has Arizona, a member of the Judiciary ways had appointed to it high-quality an obligation to be the law enforce- Committee, who has done a wonderful individuals who have been very close to ment officer of our Nation, to be a fair job on that committee. It is a tough the Presidency. That also is a logical arbiter, to be a spokesperson who has committee, but he has done a terrific choice. job. That was an outstanding state- I think it is important to focus on integrity on issues, and to speak clear- ment on behalf of Alberto Gonzales. that fact, that the Attorney General’s ly to the administration of what is Looking at this man’s incredible position, in the post-World War II pe- right and wrong, and how it should background and how far he has come riod at least, has been a position which move forward effectively on issues, in a clearly shows the great country that has come to play a little different role way that does not compromise the ad- America is and the great perseverance than maybe it has historically played ministration. Judge Gonzales has done and intellect that Alberto Gonzales in the sense that it has been a position that. He has done that time and time has. where Presidents have chosen people again in his role as White House Coun- I yield the time he may consume to who they have had absolute personal sel. He understands his new role as At- the Senator from New Hampshire, Mr. confidence in, not people who nec- torney General in that context. GREGG. essarily are chosen because they bal- But the attacks on Judge Gonzales do Mr. GREGG. Mr. President, it is a ance a political ticket or political not go to this role, they go more to a pleasure to rise today in support of a theme or regional need. The impor- disagreement which people from the native son of Texas. The Senator rep- tance of having an Attorney General in other side have over this administra- resents Texas so well in this Chamber. whom a President has confidence has tion’s policy relative to Iraq in an at- Alberto Gonzales, as has been out- been the critical element of choosing tempt to bootstrap Judge Gonzales’s lined by many of the speakers, is an that individual. nomination into a major confrontation American success story. What an in- I guess the best example of that, of on the issues of whether we are doing credible story. There is no point in course, is the Presidency of John Ken- correct things in Iraq. That, to me, is plowing ground that has already been nedy, when he chose his brother Robert inappropriate relative to the confirma- plowed numerous times, but still it is Kennedy, who clearly had very little tion process. nice to see this happen. It is nice to see experience. He had, of course, been There is no question we should de- someone of such extraordinary capa- counsel for hearings here in the Senate bate Iraq. That should be a matter of bility rise to such success. It is the dealing with corruption and labor cor- open and continuous debate in this American way to reward ability. We as ruption issues involving the Teamsters Senate. It is the most important inter- a nation open our arms to people who Union, but he had not had a great national policy issue we have going on are productive, concerned citizens who breadth of experience. He was a fresh today. I have no hesitation about de- are willing to give of themselves not face, to be kind, in the area of public bating it. But I do not believe we only to produce a better life for them policy. He was chosen by President should use an individual who is a nomi- and their family but also to produce a Kennedy, which was a choice of signifi- nee for a major office within the Cabi- better life for their fellow citizenry, cant implications in that the President net as a stalking-horse for the purposes which is exactly what Judge Gonzales of the United States would actually of making attacks on the Presidency, has done. choose his brother to serve as Attorney unless there is some clear relationship With his talent he could have simply General. there. In this case there is none that is gone out and made a huge amount of It turned out to be a great choice. so substantive and appropriate that it money. The dollars that might have Robert Kennedy was probably one of rises to the level of opposition of the

VerDate Aug 04 2004 00:51 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.013 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S839 Attorney General nominee, in my opin- I do rise in support of Alberto thing which the President committed ion. Gonzales to be confirmed as the next to writing and for which Judge The individual we have before us as a Attorney General for the United Gonzales stands. nominee, Judge Gonzales, is such a States. I had the pleasure of serving on Judge Gonzales has unmistakably, unique and extraordinary success the Judiciary Committee for the past 2 forcefully, and consistently made clear story, who so eloquently defines the years, having gone off at the beginning before, during, and after his confirma- American dream, as we all love to pro- of this session. But during the course tion hearing that it is not the policy of fess to our different constituencies, to of my 2 years as a member of the Judi- the United States to condone torture talk about how people succeed in at- ciary Committee, I had the oppor- and that he personally does not con- taining the American dream. Whenever tunity to be involved in the hearings, done torture. I go into a classroom, especially an ele- the discussions, and the review of a At a June 22, 2004, press briefing, be- mentary or middle school classroom, I number of issues to which Judge fore his confirmation hearing—indeed, talk about how you can be anything. Gonzales has spoken during the course well before he was even a nominee— All you have to do is work hard, stay in of his confirmation process. Judge Gonzales stated: school, study hard, and make a com- One of those issues is the administra- The administration has made clear before, mitment to being an honest person, a tion’s policy on torture, for which the and I will reemphasize today that the Presi- person who has high values, and a per- judge has been unduly criticized by dent has not authorized, ordered or directed son who is committed to working hard, folks who are in opposition to his nom- in any way any activity that would trans- gress the standards of the torture conven- and you can accomplish just about ination. I want to respond to some of tions or the torture statute, or other appli- anything. the ridiculous accusations of those who cable laws. That is what we say to our youth in are opposed to this confirmation, and He continued later: this country. That is what we say to talk about some of the actual facts in- people who come to our land as immi- [I]f there still remains any question, let me volved, which seem to be missing from say that the U.S. will treat people in our grants. Judge Gonzales personifies that the conversations on the floor coming custody in accordance with all U.S. obliga- statement. For some Members of this from his critics and from those who are tions including federal statutes, the U.S. Senate to be taking such a negative ap- opposed. Constitution and our treaty obligations. The proach in addressing his nomination, I do not think Judge Gonzales nor President has said we do not condone or and defining his individual characteris- could the administration be more clear commit torture. Anyone engaged in conduct tics as not fulfilling those concepts of than they have been on the policy and that constitutes torture will be held ac- the American dream is, I think, a dis- countable. the subject of torture. As President The President has not directed the use of service to the people who, like Judge Bush stated at his January 26, 2005, specific interrogation techniques. There has Gonzales, have succeeded in America. press conference: been no presidential determination of neces- This is a unique person whom we are Al Gonzales reflects our policy, and that is sity or self-defense that would allow conduct very fortunate to have as a nominee to we don’t sanction torture. that constitutes torture. There has been no be Attorney General of the United In all of his statements and re- presidential determination that cir- cumstances warrant the use of torture to States. His confirmation will stand as sponses, Judge Gonzales has empha- a statement of opportunity to tens of protect the mass security of the United sized that there is a distinct difference States. thousands, hundreds of thousands, po- between what the law would allow and tentially millions of Americans, espe- I have several more pages of state- what the administration policy is. No ments that were made by Judge cially Americans who have come here matter how the obligations of the from Hispanic cultures, that America Gonzales in his confirmation hearing United States under the Constitution, that directly apply to this issue. They is a land of opportunity, that the treaties, and various statutes have American dream does exist for you, have been consistent. They have been been interpreted, the President has very clear. They have been concise to that if you work hard, that if you are said he would never order or condone a person of integrity, that if you com- the effect that Judge Gonzales has torture. That is the policy. That is never condoned the use of torture. It is mit yourself to your goals, you can what Alberto Gonzales has represented succeed, and America will reward you not the administration policy to con- and does represent today. done torture. Why in the world folks on in that success and acknowledge it. President Bush’s February 7, 2002, So I believe very strongly that the the other side continue to criticize this memorandum to, among others, the man for something he has not said or choice of Judge Gonzales is an extraor- Vice President, the Secretary of State, dinarily strong one, that it is con- has not condoned should be pretty ob- the Secretary of Defense, the Attorney vious to the American people. There is sistent with the tradition of Attorney General, and the Director of Central General choices in the post-World War a reason for it, but the reason simply Intelligence unequivocally required doesn’t hold water. II period, and that, more importantly, those detained by the U.S. Armed it is a statement by this President that Who is this man? That is the more Forces to be treated humanely. The important question. Who is Alberto he understands the American dream is President stated: personified in Judge Gonzales, and that Gonzales? Is he qualified to become At- Of course, our values as a Nation, values it should be rewarded and should be re- torney General of the United States? that we share with many nations in the Judge Gonzales grew up as a humble spected. world, call for us to treat detainees hu- Mr. President, I yield the floor. manely, including those who are not legally man. He is a Hispanic American who The PRESIDING OFFICER. The Sen- entitled to such treatment. Our Nation has grew up, interestingly enough, in a ator from Texas is recognized. been and will continue to be a strong sup- two-bedroom house in Humble, TX, Mrs. HUTCHISON. Mr. President, I porter of Geneva and its principles. As a that his father and uncle built and yield the remainder of the Republican matter of policy, the United States Armed where his mother still resides. His par- time to the distinguished Senator from Forces shall continue to treat detainees hu- ents were never educated beyond ele- Georgia, Mr. CHAMBLISS, and I ask manely and, to the extent appropriate and mentary school, and he was the first unanimous consent that he be allowed consistent with military necessity, in a man- person in his family to go to college. ner consistent with the principles of Geneva. to speak until 10:32 or until the Demo- . . . I hereby reaffirm the order previously He is a graduate of Texas public crats arrive. issued by the Secretary of Defense to the schools, Rice University, and Harvard The PRESIDING OFFICER. Without United States Armed Forces requiring that Law School. objection, it is so ordered. the detainees be treated humanely and, to Judge Gonzales served in the U.S. Air The Senator from Georgia is recog- the extent appropriate and consistent with Force between 1973 and 1975 and at- nized. military necessity, consistent with the prin- tended the U.S. Air Force Academy be- Mr. CHAMBLISS. Mr. President, I ciples of Geneva. tween 1975 and 1977. He is married and thank the Senator from Texas for her It could not be clearer. It absolutely has three sons. While his family lived great leadership on this issue, particu- could not be clearer. And it is not in Houston, TX, he practiced with one larly organizing the support on the something that he said which is the of the best firms in America, and hav- floor this morning for Judge Gonzales. subject of interpretation; it is some- ing practiced law for 26 years myself

VerDate Aug 04 2004 00:51 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.016 S02PT1 S840 CONGRESSIONAL RECORD — SENATE February 2, 2005 and having associated with the firm of spected by Presidents of both political Let’s review what we know. which he was a member, not knowing parties for generations. First, Mr. Gonzales recommended to that in fact he was, I am very familiar Next to the image of Saddam Hus- the President that the Geneva Conven- with the firm. It is not just one of the sein’s statue dragged from its pedestal tions should not apply to the war on best firms in Texas; it is one of the best to the dirt below will be the horrifying terrorism. In a January 2002 memo to firms in America. They don’t hire law- image of the hooded prisoner at Abu the President, Mr. Gonzales concluded yers who are not competent and capa- Ghraib, standing on a makeshift ped- that the war on terrorism ‘‘renders ob- ble to get the job done. That is exactly estal, tethered to electrical wires. solete’’ the Geneva Conventions. This what Judge Gonzales is—competent Alberto Gonzales is a skilled lawyer. is a memo written by the man who and capable. His life story is nothing short of inspir- would be Attorney General. He was commissioned as Counsel to ing. I have the greatest respect for his Colin Powell and the Joint Chiefs of President George W. Bush in January success, for what he has achieved, and Staff objected strenuously to this con- of 2001, obviously showing what kind of for the obstacles he has overcome. clusion by Alberto Gonzales. They ar- confidence the President of the United But this debate is not about Mr. gued that we could effectively pros- States has in the man. Prior to serving Gonzales’s life story. This debate is ecute a war on terrorism while still liv- in the White House, he served as a jus- about whether, in the age of terrorism, ing up to the standards of the Geneva tice of the Supreme Court of Texas. Be- America will continue to be a nation Conventions. fore his appointment to the Texas Su- based on the rule of law, or whether In a memo to Mr. Gonzales, Sec- preme Court in 1999, he served as we, out of fear, abandon time-tested retary of State Colin Powell pointed Texas’s 100th secretary of state; that values. That is what is at issue. out that the Geneva Conventions would being from December of 1997 to Janu- The war in Iraq is more dangerous allow us to deny POW status to al- ary of 1999. today because of the scandal at Abu Qaida and other terrorists and that Among his many duties as secretary Ghraib prison. Our conduct has been they would not limit our ability to of state, he was a senior adviser to called into question around the world. question a detainee or hold him indefi- then-Governor Bush, chief elections of- Our moral standing has been chal- nitely. So, contrary to the statements ficer, and the Governor’s liaison on lenged, and now we are being asked to by some of my colleagues on the other Mexico and border issues. promote a man who was at the center side of the aisle, complying with the Simply stated, this man, unlike a lot of the debate over secretive policies Geneva Conventions does not mean giv- of folks coming out of the same kinds that created an environment that led ing POW status to terrorists. Colin of conditions in which he grew up, to Abu Ghraib. Powell knew that. The Joint Chiefs of made a decision that he wanted to im- What happened at Abu Ghraib? What Staff knew that. Alberto Gonzales re- prove the quality of life for himself and continues to happen at Guantanamo? fused to accept that. for his family. He worked hard. He What happened to the standards of civ- In his memo to Mr. Gonzales, Sec- studied hard. He became a lawyer, ilized conduct America proudly fol- retary Powell went on to say that if we something that nobody else in his fam- lowed and demanded of every other na- did not apply the Geneva Conventions ily could ever do before him. He prac- tion in the world? to the war on terrorism, ‘‘it will re- ticed law in one of the largest States in Some dismiss these horrible acts as verse over a century of U.S. policy and our country with one of the largest law the demented conduct of only a few, practice . . . and undermine the protec- firms in that particular State. He was the runaway emotions of renegade tions of the law of war for our own a dadgum good lawyer. Obviously the night shift soldiers, the inevitable pas- troops . . . It will undermine public President of the United States has con- sions and fears of men living in the support among critical allies, making fidence in him from the standpoint of charnel house of war. But we now know military cooperation more difficult to looking to him for legal advice. that if there was unspeakable cruelty sustain.’’ All of the criticisms directed at him in those dimly lit prison cells, there The President rejected Secretary have nothing to do with his ability to was also a cruel process underway in Powell’s wise counsel and instead ac- operate and practice as a lawyer, and the brightly lit corridors of power in cepted Mr. Gonzales’s counsel. He in his capacity as Attorney General, he Washington. issued a memo concluding that ‘‘new will be the No. 1 lawyer in the country. At the center of this process, at the thinking in the law of war’’ was needed I submit to all of my colleagues that he center of this administration’s effort to and that the Geneva Conventions do is qualified for this job. I ask for their redefine the acceptable and legal treat- not apply to the war on terrorism. support of Judge Gonzales to be con- ment of prisoners and detainees was And then what followed? Mr. firmed as the next Attorney General of Alberto Gonzales, Counsel to President Gonzales requested, approved, and dis- the United States. George W. Bush. And with the skill seminated this new Justice Depart- I yield the floor. that only lawyers can bring, Mr. ment torture memo. This infamous The PRESIDING OFFICER. The Sen- Gonzales, Assistant Attorney General memo narrowly redefined torture as ator from Illinois. Jay Bybee and others found the loop- limited only to abuse that causes pain Mr. DURBIN. Mr. President, after holes, invented the weasel words and equivalent to organ failure or death, every war, history is written. There are covered the whole process with winks and concluded that the torture statute stories of courage, compassion, and and nods. which makes torture a crime in Amer- glory, and stories of cruelty, weakness, At the very least, Mr. Gonzales ica does not apply to interrogations and shame. helped to create a permissive environ- conducted under the President’s Com- When history is written of our war on ment that made it more likely that mander in Chief authority. That was terrorism, it will record the millions of abuses would take place. You can con- the official Government policy for 2 acts of heroism, kindness, and sacrifice nect the dots from the administration’s years. performed by American troops in Iraq, legal memos to the Defense Depart- Then relying on the President’s Ge- Afghanistan, and other nations. And it ment’s approval of abusive interroga- neva Conventions determination and will record as well the stunning cour- tion techniques for Guantanamo Bay, the Justice Department’s new defini- age of Iraqi men and women standing to Iraq and Abu Ghraib, where those tion of torture, Defense Secretary in line last Sunday, defying the ter- tactics migrated. Rumsfeld approved numerous abusive rorist bullets and bombs to vote in the Blaming Abu Ghraib completely on interrogation tactics for use against first free election of their lives. night shift soldiers ignores critical de- prisoners in Guantanamo Bay, even as But sadly, history will also recall cisions on torture policy made at the he acknowledged that some nations that after 9/11, and after the invasion of highest levels of our Government, deci- may view those tactics as inhumane. Iraq, some in America concluded our sions that Mr. Gonzales played a major These techniques have Orwellian Nation could no longer afford to stand role in making. If we are going to hold names such as ‘‘environmental manipu- by time-honored principles of human- those at the lowest levels accountable, lation.’’ ity, principles of humane conduct em- it is only fair to hold those at the high- The Red Cross has concluded that the bodied in the law of the land and re- est levels accountable as well. use of these methods at Guantanamo

VerDate Aug 04 2004 00:51 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.018 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S841 was more than inhumane. It was, in the held a hearing or even conducted a counsel. In the 6 days from December 6 words of the Red Cross, ‘‘a form of tor- meeting to try to resolve any possible to December 12, 1995, for example, there ture.’’ doubts about a case. were four executions. In the 9 days We have recently learned that nu- In fact, according to a 1998 civil suit, from May 13 to May 22, 1997, there were merous FBI agents who observed inter- some board members do not even re- six executions. In the 8 days from May rogations at Guantanamo Bay com- view case files or skim correspondence 28 to June 4, 1997, there were five exe- plained to their supervisors about the they are required to read before voting cutions. In the week from June 11 to use of these methods, methods which on clemency petitions. U.S. District June 18, 1997, there were four execu- began at the desks of Alberto Gonzales Court Judge Sam Sparks, who presided tions. And during one 5-week period and the Department of Justice, moving over that lawsuit, found, in his words: from May 13 to June 18, 1997, in the through the Department of Defense to There is nothing, absolutely nothing—that State of Texas, there were 15 execu- Guantanamo Bay. In one e-mail that the Board of Pardons and Paroles does where tions. has been released under the Freedom of any member of the public, including the Gov- Even if Mr. Gonzales found an oppor- ernor, can find out why they did this. I find Information Act, an FBI agent com- that appalling. tunity, as he says, to mention critical plained that interrogators were using details of upcoming executions during Typically, Mr. Gonzales presented a what he called ‘‘torture techniques.’’ meetings on other topics, is that an ap- clemency memo to Governor Bush on This is not from a critic of the United propriate or sufficient way to provide a the day that the inmate was scheduled States who believes that we should not Governor with information he needs to to be executed. Mr. Gonzales would be waging a war on terrorism. These make a life-or-death decision? spend about 30 minutes at some point are words from the Federal Bureau of Did Mr. Gonzales really expect the during the day briefing the Governor Investigation. Governor to be able to keep track of before this person was led to execu- Let me read the graphic language in these details that were discussed weeks tion—30 minutes. an e-mail written by another FBI agent Let me tell you about 2 of the 59 peo- in advance of a decision on clemency? about what he saw: ple whose clemency requests Mr. Is that reasonable when a person’s life On a couple of occasions, I entered inter- Gonzales handled. is hanging in the balance? view rooms to find a detainee chained hand Irineo Tristan Montoya was a Mexi- Regardless of how one feels about the and foot in a fetal position to the floor, with can national executed in 1997. In 1986, death penalty, no one—absolutely no no chair, food or water. Most times they uri- one—wants to see an innocent person nated or defecated on themselves, and had in police custody, Mr. Montoya signed what he thought was an immigration executed. That is not justice. been left there for 18–24 hours or more. On Over 2,000 years ago, Roman orator one occasion, the air conditioning had been document. In fact, it was a murder con- turned down so far and the temperature was fession. Mr. Montoya could not read a Cicero said: Laws are silent in time of so cold in the room, that the barefooted de- word of it. He spoke no English. war. The men and women who founded tainee was shaking with cold. . . . On an- Under the Vienna Convention of Con- this great Nation rejected that notion. other occasion, the [air conditioner] had sular Affairs, which the U.S. ratified in They understood that freedom and lib- been turned off, making the temperature in 1969 and accepted as our law of the erty are not weaknesses; they are, in the unventilated room well over 100 degrees. land, Mr. Montoya should have at least fact, our greatest strengths. The detainee was almost unconscious on the In times of war or perceived threat, floor, with a pile of hair next to him. He had been told that he had the right to have a Mexican consular officer contacted we have sometimes forgotten that apparently been literally pulling his hair out basic truth. And when we have, we throughout the night. On another occasion, on his behalf. He was never informed of not only was the temperature unbearably this right. have paid dearly for it. hot, but extremely loud rap music was being Mr. Gonzales’s clemency memo men- In the late 1700s, a war with France played in the room, and had been since the tioned none of these facts—not one. seemed imminent. Congress responded day before, with the detainee chained hand News accounts say Mr. Montoya was by passing the Alien and Sedition Acts. and foot in the fetal position on the tile convicted almost entirely on the These patently unconstitutional laws floor. strength of this confession, a confes- empowered the President to detain and These are the words of an agent of sion which he signed that he could not deport any non-citizen with no due the Federal Bureau of Investigation, read or understand. process and made it illegal to publish who viewed the interrogation tech- Then there is the case of Carl John- supposedly ‘‘scandalous and malicious niques at Guantanamo, techniques that son. It has become infamous. Mr. writing’’ about our Government. flowed from the memo that came Gonzales’s memo on Mr. Johnson’s President Lincoln, whom I regard as across Mr. Gonzales’s desk to the De- clemency request neglected to mention the greatest of all American Presi- partment of Defense down to these that Mr. Johnson’s lawyer had literally dents, suspended the great writ of ha- dimly lit cells. And the Red Cross and slept through much of the jury selec- beas corpus during the Civil War. the FBI agree that they are torture. tion. The first red scare during World War I asked Mr. Gonzales: Of the 59 clem- Mr. Gonzales claims that omission of I accelerated into the Palmer raids ency cases he coordinated, how many critical facts such as these do not mat- after a series of bombings on Wall times did he either recommend clem- ter because ‘‘it was quite common that Street and in Washington, DC. Palmer, ency, a stay of execution, or further in- I would have numerous discussions the U.S. Attorney, ordered roundups of vestigation to resolve any doubts about with the Governor well in advance of a suspected ‘‘reds’’ and summarily de- a condemned inmate’s guilt? scheduled execution.’’ ported thousands of aliens, often with He replied that he could not recall However, Governor Bush’s logs gen- little evidence of wrongdoing and no what advice he may have given then- erally show one, and only one, 30- due process. Governor Bush on any of the 59 cases. minute meeting for each execution. We all know the tragic story of Japa- He also said he never once rec- Thirty minutes for each life. And that nese immigrants and U.S. citizens of ommended clemency because he be- meeting generally took place on the Japanese ancestry being rounded up lieved that he and the Governor were scheduled day of the execution. and placed in internment camps during obligated to follow the recommenda- At the Judiciary Committee hearing, World War II. tions of the State Board of Pardons and Mr. Gonzales said: If I were in talking Another moment that I recall, as I Paroles. to the Governor about a particular stand here today, is when I served in Relying so heavily on the Texas matter and we had an opportunity, I the House of Representatives and heard Board of Pardons and Paroles might would say, ‘‘Governor, we have an exe- two of my colleagues who were Con- not be troubling if the board’s record cution coming up in 3 weeks. One of gressmen at the time, Japanese Ameri- itself was not so troubling. Between the bases of clemency I’m sure that cans, come forward to explain what 1973 and 1998, the Texas Board of Par- will be argued is, say, something like happened to them, how they were lit- dons and Paroles received more than 70 mental retardation. These are the erally told the night before in their appeals of clemency denials. In all issues that have to be considered.’’ homes in California by their parents to those cases, the board never once—not The Texas death house was a busy pack up their little belongings, put one time—ordered an investigation or place when Mr. Gonzales was general them in a suitcase, and be prepared to

VerDate Aug 04 2004 00:51 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.020 S02PT1 S842 CONGRESSIONAL RECORD — SENATE February 2, 2005 get on a train in the morning. Bob name to Clyde, and even had two oper- record, I believe there is no other Matsui was one of those. He just passed ations to make his eyes appear round- choice. away a few weeks ago. er. He was still forced into Tule Lake, Judge Gonzales’s life story is a shin- Bob Matsui understood what dis- an internment camp in California. ing example of the American dream. crimination could really be. What was He challenged his detention, taking From humble beginnings he rose to his sin? He was born of Japanese Amer- his case all the way to the U.S. Su- serve on the Texas Supreme Court, be- ican parents. That is a fact of life, and preme Court. In a decision that re- come counsel to the President of the it was a fact that changed his life dra- mains one of the most infamous deci- United States, and has now been nomi- matically. He and others were taken sions in the Court’s history, the Su- nated for one of the three highest Cabi- off to internment camps without a preme Court rejected Mr. Korematsu’s net positions in the United States. trial, without a hearing, simply be- claim and failed to find the internment His life story is compelling and admi- cause they were suspected of being un- of Japanese Americans unconstitu- rable, but that alone is not enough to patriotic. tional. support someone for the position of At- During the Cold War, our Nation, It would be another 40 years until an torney General of the United States. fearful of communism, descended into American President, Ronald Reagan, The Attorney General is the chief a red scare of McCarthyism, witch officially apologized for that terrible law enforcement officer of the Federal hunts, and black lists that destroyed miscarriage of justice and offered small Government, and serves as the face for the lives of thousands of decent people. restitution to its victims. truth and justice in this country. In the 1960s, the Government infil- Today, Mr. Korematsu is nearly 85 This individual should and must be trated many organizations and com- years old. He is recovering from a seri- committed to the sanctity of the law, piled files on its own citizens simply ous illness, but he still loves America protecting the rights and liberties of for attending meetings of civil rights and is deeply concerned that we not all people, and ensuring that the laws or antiwar organizations. again abandon our most cherished prin- are obeyed. Some on the other side of the aisle ciples and values. So he has raised his I believe Judge Gonzales’s work as have compared Mr. Gonzales to one of voice, warning his fellow Americans we counsel to the President shows him to our great Attorneys General, Robert should not repeat the mistakes of the be unfit to perform the duties of the Kennedy. With all due respect to Mr. past. Attorney General. My concern centers on three events Gonzales, he is no Robert Kennedy. Un- I respect and admire Alberto during Judge Gonzales’s tenure as like Mr. Gonzales, Robert Kennedy un- Gonzales for his inspiring life story and counsel to the President. derstood the importance of respecting the many obstacles he has overcome. His actions during these times cause the rule of law to America’s soul and Some of my colleagues suggested his me to question whether he can fulfill our image around the world. life story embodies the American the duties of the Attorney General as I Listen to this quote from a speech dream. But there is more to the Amer- just outlined. that Robert Kennedy gave at the ican dream than overcoming difficult The first event involves Judge height of the Cold War and the civil circumstances to obtain prominence Gonzales asking the United States De- rights movement. This is what he said: and prosperity. We also must honor partment of Justice to prepare a legal We, the American people, must avoid an- Fred Korematsu’s dream that our opinion on acceptable interrogation other Little Rock or another New Orleans. country be true to the fundamental standards that would be allowed under We cannot afford them. It is not only that principle upon which it was founded: the Convention Against Torture. such incidents do incalculable harm to the the rule of law. children involved and to the relations among This memo became the basis for the Some of my colleagues have sug- standards developed by the Defense De- people, it is not only that such convulsions gested that the opposition to Al seriously undermine respect for law and partment’s working group on detainee order and cause serious economic and moral Gonzales’s nomination is all about par- interrogation, which subsequently have damage. Such incidents hurt our country in tisan politics. That could not be fur- been used in Afghanistan, Guantanamo the eyes of the world. For on this generation ther from the truth. This is about our Bay, and Iraq. of Americans falls the burden of proving to ability to win the war on terrorism The Justice Department memo ig- the world that we really mean it when we while respecting the values that our nores significant contrary case law, a say all men are created equal and are equal Nation represents. plain reading of the statute, and the before the law. I cannot in good conscience vote to legislative history of the law. Those were the words of Robert Ken- reward a man who ignored the rule of In doing so, the memo created such a nedy, and if you replace Little Rock law and the demands of human decency narrow definition of torture that only and New Orleans with Abu Ghraib and and created the permissive environ- actions that cause ‘‘equivalent in in- Guantanamo, those words ring true ment that made Abu Ghraib possible. tensity to the pain accompanying seri- today. Mr. Gonzales does not seem to When the history of these times are ous physical injury, such as organ fail- understand, as Robert Kennedy did, the recorded, I believe that Abu Ghraib and ure, impairment of bodily function, or impact such scandals have on Amer- Guantanamo will join the names of in- even death’’ would be considered tor- ica’s soul and image. famous Japanese-American internment ture. Today is a critical moment for our camps such as Manzanar, Heart Moun- The analysis included in the memo Nation. Overseas, our Nation’s actions tain, and Tule Lake where Fred has been called weak and reckless by and character are being questioned by Korematsu and over thousands of oth- other lawyers, human rights groups, our critics and our enemies. Here at ers were detained. I cannot in good former officials from this administra- home, we want to feel safer and more conscience vote to make the author of tion, military officers, and military secure. such a terrible mistake the chief law lawyers. There are some who want to repeat enforcement officer of our great Nation However, it appears that Judge the mistakes of our past. They think and the guardian of our God-given and Gonzales had no misgivings with the the best way to protect America is to most cherished rights. memorandum at the time. silence the law in this time of war. So, Mr. President, I will vote no on In fact, it appears that Judge Let me tell you about one man who the nomination of Alberto Gonzales to Gonzales continues to have no concerns disagrees. His name is Fred Korematsu. serve as Attorney General of the with the conclusions of this memo, More than 60 years ago, Mr. Korematsu United States. I yield the floor. even though prior to his Senate Judici- was a 22-year-old student and was one The PRESIDING OFFICER (Mr. ary Committee hearing, the Depart- of the 120,000 Japanese-American citi- GRAHAM). The Senator from Vermont. ment of Justice issued another super- zens and immigrants who was forced Mr. JEFFORDS. Mr. President, I rise seding memorandum that reaches a from their homes into these prison today to oppose the nomination of much different conclusion. camps, internment camps. Alberto Gonzales to be the next United According to the new memorandum, After Pearl Harbor, Mr. Korematsu States Attorney General. torture is defined as physical suffering tried everything he could think of to be It is disappointing to have to oppose ‘‘even if it does not involve severe accepted as American. He changed his this nomination, but based on his physical pain.’’

VerDate Aug 04 2004 00:55 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.022 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S843 Second, in a memo Judge Gonzales speeches. I commend my colleague lieve they have done wrong. Normally wrote to the President, he advised that from Vermont, Mr. JEFFORDS, for his it is the job of the Congress to root the Geneva Conventions did not apply statement. Yesterday I listened to Sen- that out. We have not been doing our to captured members of al-Qaida and ators FEINSTEIN, SCHUMER, KENNEDY, job. Fortunately the press and others, the Taliban. MIKULSKI, DAYTON and STABENOW on through the Freedom of Information This was a reversal of longstanding our side, and I thought their state- Act, have. United States policy and practice of ments were very good. Both Senator Despite repeated requests both before adhering to the Geneva Conventions. DURBIN of Illinois and I were at a hear- and during and after judge Gonzales’s This conclusion is a misstatement ing this morning and left to come over confirmation hearing, there is much we and misinterpretation of the Geneva here. I think his statement was still do not know. We gave this nomi- Conventions. straightforward and comprehensive and nee every possibility before, during, The Geneva Conventions require hu- compelling. I appreciate what has been and after his hearing to clarify this. I mane treatment of all captives, wheth- said. even sent to him and to the Repub- er soldiers, insurgents, or civilians. I have also listened to the statements licans on the committee, well in ad- Additionally, Judge Gonzales also re- of those who support this nominee, vance of the hearing, a description of quested a memo concerning the Geneva most from the other side. I would say the types of questions I would ask on Conventions’ effect on the transfer of one thing, I am glad that none of them this particular matter so there would protected persons from occupied terri- are defending torture. I never expected be no surprises and so that he would tory. they would. None of them defend what have a chance to answer them. He This memo led to the creation of the happened at Abu Ghraib. I didn’t ex- didn’t. ‘‘ghost detainee program’’ in Iraq, a pect they would. None of them are de- We do know that he was chairing practice that is against the spirit, fending the Bybee memorandum, with meetings and requesting memos and plain reading, and any interpretation its narrow legalistic interpretation of checking up on those memos as various of the Geneva Conventions. the torture statute. I never thought Government agencies were being Finally, and most disturbingly, any of them would. tasked with eroding long-established Judge Gonzales has advised the Presi- None of them defend the outrageous U.S. policy on torture. dent that if a legal statute infringes on claim that the President of the United Just this week, the New York Times the authority of the President as the States is above the law. I don’t know reported the Justice Department pro- Commander-In-Chief, then that statute how anybody could defend that posi- duced a second torture memo to ad- should be considered unconstitutional tion. One of the things we have dress the legality of specific interroga- and the President could refuse to com- learned, from the first George W., tion techniques proposed by the CIA. ply with the law. George Washington, to the current So much for the proponents’ argument Such a position is contrary to settled President, is that no President is above that these memoranda were research memos with little real-world impact. separation of powers case law, and has the law, not even this one. None of us That second torture memo, which the most recently been repudiated by the are. Senators are not. Judges are not. administration refused to provide to United States Supreme Court in its de- Nobody is. the Judiciary Committee, reportedly cision last year on the rights of detain- In fact, some of the people who have used the very narrow and thus permis- ees. spoken have been explicitly critical of sive interpretation of the torture stat- These events lead me to question the the Bybee memo. Unfortunately, the ute outlined in the first memorandum. willingness of Judge Gonzales to, as re- nominee has not joined in that criti- The administration will not come quired, protect the sanctity of the law; cism. Instead, he told me at his hearing clean from behind the stone wall it has protect the rights and liberties of all that he agreed with its conclusions. We constructed to deter accountability for people, not just some, but all; ensure know that for at least 2 years he did its actions. Does anyone believe this that Federal laws are obeyed, and, ef- not disagree with the secret policy of memo was generated without knowl- fectively perform the duties of Attor- this administration. edge of the White House, without its Water flows downhill and so does ney General of the United States. approval? I am truly saddened to have to op- Government policy in this administra- The President said he chose Judge pose the nomination of an Attorney tion. Somewhere in the upper reaches Gonzales because of his sound judg- General for the first time in my career. of this administration a process was ment in shaping the administration’s However, the Nation’s chief law en- set in motion that rolled forward until terrorism policies. But the glimpses we forcement officer must be required to it produced scandalous results. have seen of secret policy formulations show, beyond any doubt, the utmost re- We may never know the full story. and legal rationales that have come to spect for the law and an unwavering The administration circled the wagons. light show that his judgements have determination to defend the law. They stonewalled requests for informa- not been sound. Instead, Judge Gonzales’s record as tion from both Republicans and Demo- Look at his role with respect to the counsel to the President points to re- crats. What little we do know, we know Bybee memo. This is the memo that peated attempts to skirt the law rather because the press has done a far, far, noted legal scholar Dean Koh of the than uphold it. far better job of oversight than the Yale Law School called, ‘‘perhaps the I must conclude that given the record Congress itself. We know it from inter- most clearly erroneous legal opinion I before us, Judge Gonzales is not quali- national human rights organizations have ever read.’’ He went on to say it is fied for the job. because they have done a far better job ‘‘a stain upon our law and our national Following the Iraq prison scandal, of oversight than Congress has. We owe reputation.’’ Secretary Rumsfeld stated that people it to a few internal Defense Depart- In remarks yesterday, Republican should not base their opinion of the ment investigations, and of course the Senators, quite correctly in my view United States on the events that oc- Freedom of Information Act litigation. and the view of many others who stud- curred there, but on the actions we Thank goodness we have the Freedom ied it, said the Bybee memo was ‘‘erro- take thereafter. of Information Act, because Congress, neous in its legal conclusions. . . .’’ Therefore, what will be the world’s this Congress especially, both bodies, They call the memo’s interpretation of opinion of the United States if we ele- has fallen down for years on their over- what constitutes torture ‘‘very, very vate one of the architects of the poli- sight responsibility. It failed, actually extreme . . . certainly not a realistic cies that led to the Iraq prison abuses refused, to do oversight of an adminis- or adequate definition of torture which to the position of chief law enforce- tration of their own party. It is fortu- would withstand legal analysis or legal ment officer of our country? nate the Freedom of Information Act is scrutiny.’’ I yield the floor. there. I commend them for doing that. I The PRESIDING OFFICER. The Sen- Every administration, Democrat and commend them for saying the memo- ator from Vermont. Republican, will tell you all the things randum was ‘‘extreme and excessive in Mr. LEAHY. Mr. President, this they believe they have done right. its statement and articulation of exec- morning we have heard many excellent None will tell you the things they be- utive power.’’ I would feel far better if

VerDate Aug 04 2004 00:55 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.025 S02PT1 S844 CONGRESSIONAL RECORD — SENATE February 2, 2005 the man who they are supporting for tions that gave a legal gloss to policies that trusted aides in key positions. It’s to get Attorney General had taken the same spread from Guantanamo to Iraq and Af- their judgment after hearing everyone else’s position, as have many of my col- ghanistan. judgment,’’ says Dan Bartlett, the presi- Gonzalez is likely to win approval from the dent’s communications director. leagues in the Senate, on both sides of Senate. As Leahy noted at the time of Gon- The way Mr. Gonzales sees it, the war on the aisle. zalez’s nomination, the present Senate would terrorism requires a re-examination of the Even supporters of Judge Gonzales probably give the nod to Attila the Hun. But conventional rules, and it is his job to push distance themselves from the Bybee a strong voice of disapproval by senators Congress, the courts, and the international memo’s conclusion that the President concerned about the way that Gonzalez and community to do that. ‘‘Some of these prin- has authority to immunize those who Bush have abused our democratic ideals ciples have never been addressed in a court violate the law knowing that ‘‘cer- would remind the world that America is not of law,’’ says Mr. Gonzales. ‘‘People think it tainly is not lawful.’’ unanimous in support of the inhumane poli- is obvious that an American citizen, for ex- These are the statements of Repub- cies of the Bush administration. ample, would have a right to counsel if de- Bush has pledged his support for demo- tained as an enemy combatant. But that’s lican Senators, but they should not be cratic movements all around the world. A no not so obvious.’’ confused with the statements of Judge vote on the Gonzalez nomination would show Before Sept. 11, Mr. Gonzales’s only brush Gonzales, who has refused to criticize the world the United States, too, is strug- with the Geneva Conventions was in death- its legalistic excuses for recalibrations gling to be a democracy. penalty appeals, such as the 1997 case of of decades of law and practice. Mexican native Tristan Montoya. Under the I ask unanimous consent to have [From the Wall Street Journal, Nov. 26, 2002] Geneva agreement, Mr. Montoya had a right printed in the RECORD a number of GONZALES REWRITES LAWS OF WAR to contact his consulate office, but Texas au- thorities failed to inform him of that right. newspaper articles and editorials that (By Jeanne Cummings) Mr. Gonzales argued that omission wasn’t bear on this nomination, including one WASHINGTON.—Most people assume Attor- significant enough to overturn Mr. Mon- that appears in today’s Rutledge Her- ney General John Ashcroft is the Bush ap- toya’s murder-robbery conviction. He as- ald, a prize-winning newspaper in pointee responsible for legal decisions that serted Texas was under no obligation to en- Vermont. critics say place national security above force the agreement anyway since the state There being no objection, the mate- civil liberties. But the real architect of wasn’t a party in ratifying it. Mr. Montoya rial was ordered to be printed in the many of those moves is someone most Amer- was executed and the U.S. State Department icans have never heard of: White House RECORD, as follows: sent a letter of apology to Mexico for the Counsel Alberto Gonzales. agreement’s violation. [From the Rutland Herald, Feb. 2, 2005] Since the Sept. 11 attacks, the former com- After the terrorist attacks, Mr. Gonzales NOONGONZALEZ mercial-real-estate attorney from Texas has took a new look at those agreements. The One of the best ways the U.S. Senate could been rewriting the laws of war. From his cor- reference book ‘‘The Laws of War’’ is the assure the world that the United States is se- ner office in the White House, he developed newest addition to his research shelf. It was rious about democracy and human rights the legal underpinnings for presidential or- given to him by John Yoo, a former Univer- would be to reject the nomination of Alberto ders creating military commissions, defining sity of California, Berkeley professor now Gonzalez as attorney general. enemy combatants and dictating the status serving in the Justice Department’s Office of The Democrats on the Senate Judiciary and rights of prisoners held from Afghani- Legal Council. Mr. Yoo built a formidable Committee were united in opposing Gon- stan battles. And he may well hold the most reputation in elite international law aca- zalez, who received a vote of 10–8 from the sway in President Bush’s coming decision on demic circles—the ‘‘academy’’ as they call committee. Sen. Patrick Leahy, ranking whether to begin appointing military com- themselves—for his provocative writings as- Democrat on the committee, was firm in op- missions to prosecute Afghanistan war pris- serting profound presidential powers during position to Gonzalez. Democrats have flirted oners. time of war. He quickly became the White with the idea of a filibuster to block Gon- He believes he is striking the right balance House counsel office’s ‘‘go to guy,’’ says Mr. zalez’s confirmation, but on Tuesday they re- between American security and personal lib- Gonzales. jected that idea. erties. But his methods have evoked outrage But the Gonzales team’s first venture into It is a difficult to understand how the Arab from the State Department and even the the international-law arena was a rocky one. world or anyone else could take seriously Pentagon, which say they resent being cut On Nov. 13, 2001, Mr. Bush announced his in- President Bush’s high-flown rhetoric on be- out of the process. tention to revive World War II-style military half of freedom or democracy if Gonzalez be- Career Pentagon lawyers in the Judge Ad- commissions. He released a framework that came part of his cabinet. Gonzalez has be- vocate General’s Office were furious that excluded explicit assurances of unanimous come known as Mr. Torture. His low-key, eq- they read first in news reports that Mr. verdicts, rights to appeal, public trials, and a uable manner before the committee should Gonzales had devised the legal framework for standard of proof beyond a reasonable doubt. not disguise the fact that during long hours military commissions. National Security The legal community—particularly military of testimony he refused to say that it was il- Council legal advisers unsuccessfully tried in experts—exploded. legal for the president to authorize torture January to stall his controversial decision Over the next four months, Pentagon at- of prisoners in the hands of the U.S. mili- asserting that the Geneva Convention didn’t torneys, who had complained about being tary. apply to Afghanistan detainees. And Sec- kept out of the loop, wrote regulations for It is well known that Gonzalez was the au- retary of State Colin Powell launched an in- the commissions that guaranteed most of thor of memos defining the ways that it was tense internal campaign to undo that deci- those rights. Still lacking, critics say, is the permissible for U.S. troops to torture their sion. right to appeal to an outside court. ‘‘Our po- captives. He was behind numerous policies ‘‘Essentially, a bunch of strangers are de- litical leaders just can’t have the ultimate since ruled unconstitutional and illegal, such ciding the issues and you’re outside the door say on guilt and innocence,’’ says Tom as the detention of prisoners without charge not being heard,’’ complains retired Rear Malinowski, a Washington advocate and di- and without access to a lawyer. He was be- Adm. John Hutson, who served as the Navy’s rector of Human Rights Watch. hind the military tribunals established to judge advocate general until 2000 and who re- Mr. Gonzales was ‘‘surprised’’ by the sharp deal with prisoners at the Guantanamo naval mains close to his former colleagues at the reaction to the commission ruling, but ac- base, which have also been thrown out by the Pentagon. knowledged it may have been written and re- courts. The 47-year-old Harvard Law School grad- leased too hastily. He says he conducts wide- Continuing revelations reveal that torture uate remains secure in his post mainly for ranging consultations, but that there are and other mistreatment were the work of one reason: President Bush. ‘‘I love him times when others within the administration more than a few miscreants at Abu Ghraib in dearly’’ was how Mr. Bush introduced his just don’t agree with his final recommenda- Iraq. The International Red Cross has former Texas chief counsel last year. Be- tion for action. charged that torture of prisoners is wide- cause of that bond, Mr. Gonzales is consid- Two months after the commission order, spread. New reports continue to emerge, ered a likely candidate for nomination to the Mr. Gonzales was readying another critical such as that describing the sexual taunting U.S. Supreme Court. wartime recommendation—that the presi- of prisoners by female interrogators. It is de- What makes the San Antonio native’s role dent deny Geneva Convention coverage to grading for the prisoners and for the U.S. remarkable is his willingness to go toe-to- detainees housed in a makeshift prison in military, and it shows the world a face of the toe against Defense Secretary Donald Rums- Cuba’s Guantanamo Bay Naval Base. Na- United States that ought to shame all Amer- feld’s department lawyers and Mr. Powell tional Security Council lawyers tried to slow icans. himself—to try to bend powerful insiders to the order, but, on Jan. 18, Mr. Bush adopted Is Alberto Gonzalez responsible for these the will of his client, Mr. Bush. Mr. Gonzales that stand. ‘‘They are not going to become violations? Yes. He is not alone, of course. is the president’s final sounding board on POWs,’’ Mr. Gonzales said. President Bush bears ultimate responsi- issues that in previous administrations were The move immediately drew objections bility, and Secretary of Defense Donald largely handled by experts in the National from the State Department. Mr. Powell, Rumsfeld is culpable as well. But Gonzalez Security Council or the departments of State fearing captured U.S. servicemen or spies was responsible for the twisted interpreta- and Defense. ‘‘There is a reason you have could face reprisals, demanded the president

VerDate Aug 04 2004 00:55 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.027 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S845 reconsider the ruling. The secretary’s dis- power to authorize indiscriminate use of tor- Bush-appointed head of OLC, Jay Bybee, now comfort was compounded by a Jan. 25 memo ture in wartime interrogations—tearing off a federal judge, and some other Justice De- written by Mr. Gonzales that misstated Mr. fingernails, branding prisoners’ genitals with partment and White House lawyers were re- Powell’s position and concluded that the sec- red-hot pokers, you name it. luctant to make such a bold and unprece- retary’s arguments for ‘‘reconsideration and Here is how these profoundly unwise dented claim of presidential power. But reversal are unpersuasive.’’ claims have worked out: under apparent pressure from their superi- Mr. Powell argued that while the detainees The no-due-process ‘‘enemy combatant’’ ors, Bybee and his staff produced the August didn’t deserve prisoner-of-war status, the ad- policy brought Bush an 8–1 rebuff from the 1, 2002, memo, addressed to Gonzales. Earlier ministration must use the Geneva Conven- Supreme Court on June 28, in Hamdi v. drafts had been carefully vetted by the of- tions to reach that conclusion. After two in- Rumsfeld. The majority asserted that ‘‘a fices of Gonzales, Ashcroft, and David tense NSC meetings, Mr. Bush opted to re- state of war is not a blank check for the Addington, Vice President Cheney’s counsel. verse course—but, for Mr. Gonzales, it was president.’’ Antonin Scalia, the justice whom I have been unable to determine how deep- only a technical loss. Bush has said he most admires, stressed in a ly Gonzales was involved in the details. The Today, federal judges are grappling with concurrence that ‘‘the very core of liberty Senate should demand to know. Mr. Gonzales’s interpretation of the rights of secured by our Anglo-Saxon system of sepa- Aside from the OLC memo’s indefensible U.S. citizens, the ‘‘enemy combatants,’’ who rated powers has been freedom from indefi- claims of presidential power to order torture, have been held for months without charges nite imprisonment at the will of the execu- it also claims that rough treatment of pris- or access to attorneys. That is an issue that tive.’’ oners does not even fit the definition of tor- is unlikely to be resolved until it reaches the The ‘‘military commissions’’ have been a ture unless ‘‘equivalent in intensity to the Supreme Court. fiasco in practice (as detailed in my Sep- pain accompanying serious physical injury, Mr. Gonzales readily admits the White tember 11, 2004, column) and were held to be such as organ failure, impairment of bodily House might lose some ground in those court unlawful in important respects on November function, or even death.’’ cases. While being ‘‘respectful’’ of constitu- 8 by Judge James Robertson of the U.S. Dis- There is no evidence that the administra- tional rights, the administration’s job ‘‘at trict Court for the District of Columbia. (The tion ever approved ‘‘torture,’’ as thus de- the end of the day’’ is ‘‘to protect the coun- administration plans to appeal.) fined, as a matter of policy. It did approve a Bush’s spurning of the Geneva Conventions try,’’ he says. ‘‘Ultimately, it is the job of number of highly coercive, still-classified in- and refusal to provide hearings for Guanta- the courts to tell us whether or not we’ve terrogation methods, such as feigning suffo- namo detainees probably explain his 6–3 de- drawn the lines in the right places.’’ cation and subjecting prisoners to sleep dep- feat in another June 28 Supreme Court deci- sion, Rasul v. Bush, which rejected Bush’s rivation and ‘‘stress positions,’’ which appar- [From the National Journal, Nov. 13, 2004] claim of power to detain non-Americans at ently helped extract valuable information OPENING ARGUMENT—THE PROBLEM WITH Guantanamo without answering to any from Qaeda leaders. And in 2003, the Pen- ALBERTO GONZALES court. And Judge Robertson wrote that the tagon adopted the Justice Department’s (By Stuart Taylor Jr.) administration ‘‘has asserted a position analysis—initially devised for CIA interroga- tions of a few high-level terrorists—to jus- White House Counsel Alberto Gonzales is starkly different from the positions and be- havior of the United States in previous con- tify coercive interrogations of prisoners at an amiable man with an inspiring personal Guantanamo and, later, in Iraq. This came story. One of eight children of uneducated flicts, one that can only weaken the United States’ own ability to demand application of despite strong objections from top military Mexican-American immigrants, he grew up lawyers, based on their long-standing view in a Texas house with no hot water or tele- the Geneva Conventions to Americans cap- tured during armed conflicts abroad.’’ that rough interrogation methods are inef- phone. He would be the first Hispanic attor- fective, arguably illegal, and likely to be- ney general. He has the complete trust of the The Justice Department torture memo, to- gether with a similar Pentagon memo in come indiscriminate and excessive. president, whom he has loyally served for How much all of this had to do with bring- four years in Washington, and in Texas be- March 2003 and the Abu Ghraib photos, have brought the United States worldwide oppro- ing about the now-documented torture, fore that. He is far less divisive and abuses, and killings of prisoners in Iraq and confrontational than the departing John brium for authorizing torture as official pol- icy (which Bush did not do) while making Afghanistan is in dispute. What’s clear is Ashcroft. that the leaked torture memos, as well as The problem with Gonzales is that he has the CIA and the military newly wary of using even mild, legally defensible forms of the Abu Ghraib photos, disgraced our na- been deeply involved in developing some of tion—so much so that Gonzales and other the most sweeping claims of near-dictatorial coercion to extract information from cap- tured terrorists. White House officials, at a June 22 news con- presidential power in our nation’s history. If Senate Democrats (and Republicans) are ference, sought to blame the OLC lawyers for These claims put President Bush literally not too cowed by Bush’s election victories to what Gonzales called their memo’s above the law, allowing him to imprison and do their jobs, the confirmation proceeding ‘‘overbroad’’ and ‘‘unnecessary’’ passages. even (at least in theory) torture anyone in for Gonzales will drag us more deeply than The Senate should now explore whether (as the world, at any time, for any reason that ever through the torture memos, Abu has been suggested to me) the OLC lawyers Bush associates with national security. Spe- Ghraib, the evidence of torture and killing of had only been following orders from the cifically: prisoners by U.S. forces in Afghanistan, and same White House officials who later ran for Gonzales played a central role in devel- all that. Will that be good for Gonzales? For cover. oping Bush’s claim of unlimited power to Bush? For the country? This is not to deny the difficulty of the seize suspected ‘‘enemy combatants’’—in- At the very least, Democrats should de- issues presented to Gonzales and his col- cluding American citizens—from the streets mand a full accounting of Gonzales’s role in leagues by the unprecedented magnitude of or homes of America or any other nation, for the development of these torture memos. the terrorist threat. Nor is it to deny the indefinite, incommunicado detention and in- And when Bush claims confidentiality, the need for judicious use of preventive deten- terrogation, without meaningful judicial re- answer should be: If you must cloak in se- tion and coercive interrogation techniques view or access to lawyers. crecy your counsel’s role in shaping your (short of torture) to prevent mass murders. He presided over the preparation of the own grandiose claims of power, then don’t But the torture memos are emblematic of a poorly drafted November 2001 Bush order es- ask us to confirm him. Bush White House that has consistently tablishing ‘‘military commissions’’ to try Here is a far-from-complete history of the failed to strike a wise balance between the suspected foreign terrorists for war crimes. torture memos, as reconstructed from anon- demands of security and of liberty. He signed the January 25, 2002, memo to ymous sources and news reports: Gonzales’s role in all of this appears to be the president arguing that the 1949 Geneva The CIA began using various forms of du- to tell Bush what Bush wants to hear. With Conventions offer no protection to any pris- ress to extract information from captured the dubious benefit of such advice, Bush has oners seized in Afghanistan; the memo dis- Qaeda leaders overseas in late 2001 and early not only shown little appreciation for civil missed some of the Geneva provisions as 2002. But agency officials were concerned liberties but also provoked a judicial and ‘‘quaint.’’ This memo signaled Bush’s that they might be prosecuted by some fu- international backlash that has hurt the war break—over vigorous objections from Sec- ture administration or independent counsel, on terrorism. Gonzales does have many fine retary of State Colin Powell—with the gen- and that the CIA itself might be attacked for qualities. But is this the attorney general we erous interpretation of the Geneva Conven- abusing its powers, as it was during the need? tions used under every president from Harry 1970s. So CIA Director George Tenet re- Truman through Bill Clinton. It also led to quested a legal memo assuring interrogators [From the Washington Times, Jan. 24, 2005] Bush’s refusal to provide the individual hear- and their superiors sweeping presidential ABU GHRAIB ACCOUNTABILITY ings required, both by Geneva and by Army protection from any future prosecution regulations, for the hundreds of alleged ‘‘un- under an anti-torture law that Congress had (By Nat Hentoff) lawful combatants’’ at his Guantanamo Bay adopted in 1994 to comply with the United Although there was considerable media prison camp. Nations Convention Against Torture and coverage of Alberto Gonzales’s confirmation He was the addressee of, and apparently Other Cruel, Inhuman, or Degrading Treat- hearing for attorney general, a look at the had a role in vetting, the August 1, 2002, Jus- ment or Punishment. full transcript still raises, for me, serious tice Department memo asserting that the The task was assigned to the Justice De- questions about his fitness to be our chief commander-in-chief has virtually unlimited partment’s Office of Legal Counsel. The law enforcement officer.

VerDate Aug 04 2004 02:03 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\A02FE6.006 S02PT1 S846 CONGRESSIONAL RECORD — SENATE February 2, 2005 At the start, Mr. Gonzales told the sen- mine the accountability of high-level policy- the great honor of serving as the next ators and the rest of us: ‘‘I think it is impor- makers there. Attorney General of the United tant to stress at the outset that I am and As The Washington Post noted in a lead States—a job he is extremely qualified will remain deeply committed to ensuring editorial on Jan. 7, ‘‘The record of the past that the United States government complies few months suggests that the administration for and a job that I know he will per- with all of its legal obligations as it fights will neither hold any senior official account- form with honor and dignity. the war on terror, whether those obligations able nor change the policies that have pro- As the Nation’s chief law enforce- arise from domestic or international law. duced this shameful record.’’ Nor did the sen- ment officer, Alberto Gonzales will These obligations include, of course, hon- ators ask themselves about Stuart Taylor’s take the lessons from his positions as oring Geneva Conventions whenever they charge in the Jan. 8 National Journal that Counsel to the President, Texas Su- apply.’’ ‘‘Congress continues to abdicate its constitu- preme Court Justice, Texas Secretary Sen. Ted Kennedy asked the nominee if the tional responsibility to provide a legislative media reports were accurate that Mr. of State, and General Counsel to the framework’’ for the treatment of detainees. Governor and work to protect Ameri- Gonzales had chaired meetings that covered The White House strongly resists Congress’ specific ways to make detainees talk. For ex- involvement. cans from terrorism while protecting ample, having them feel they were about to ‘‘No longer,’’ Mr. Taylor insisted, ‘‘should our Constitutional rights. He will also be drowned or buried alive. Mr. Gonzales an- executive fiat determine such matters as work to reduce crime, reform the FBI, swered: ‘‘I have a recollection that we had how much evidence is necessary to detain and protect Americans from discrimi- some discussions in my office.’’ But, he said, such suspects (and) how long they can be nation. ‘‘it is not my job to decide which types of held without criminal charges.’’ As U.S. at- Alberto Gonzales has come a long methods of obtaining information from ter- torney general, will Mr. Gonzales move to re- way since his days growing up in Hum- rorists would be most effective. That job instate the constitutional separation of pow- falls to folks within the agencies.’’ ers to prevent further shame to the United ble, Texas. He has accomplished so So, ‘‘the agencies,’’ including the CIA, can States for the widespread abuses of detainees much, but he has never forgotten from do whatever they consider effective; and Mr. under the executive branch’s parallel legal where he came. He has been committed Gonzales suggests that he had no role as to system of which Alberto Gonzales was a to the Latino community throughout the lawfulness of those methods when he was principal architect? his career, and they have recognized counsel to the president, our commander in The PRESIDING OFFICER. The Sen- him for his community service and the chief? Should he not have told the president impact he has made. Today, many of that the Geneva Convention Against Torture ator from Nevada. and Other Cruel, Inhuman, or Degrading Mr. ENSIGN. Mr. President, I rise the largest national Latino organiza- Treatment or Punishment forbids ‘‘any act this morning to speak about a man tions are standing in staunch support by which severe pain or suffering, whether whose life and career embody prin- of his nomination and looking forward physical or mental, is intentionally inflicted ciples that are uniquely, and proudly, with great anticipation to the swear- on a person for such purposes as obtaining American. He is the grandson of immi- ing-in of the first Latino Attorney from him or a third person information or a grants who overcame language and cul- General for the United States. confession’’? And should he not have been in- tural barriers to carve out an existence For Alberto Gonzales, the march to- terested in trying to find out how many of through manual labor and faith. ward liberty and justice started in those detainees had been sufficiently screened when captured in order to indicate Through his commitment to education, Humble, TX, and continued through whether they actually were terrorists or sus- his firm belief in the law, and a dedica- many ambitious goals. Alberto pects or indiscriminately rounded up? tion to public service, he has risen to Gonzales has defied the odds and sur- Sen. Russ Feingold asked Mr. Gonzales the top of his profession and now seeks passed expectations time and time whether the president has ‘‘the authority to to serve his country at the highest again. His successes have created a authorize violations of the criminal law level. Mr. President, I rise this morn- foundation that will serve our Nation under duly enacted statutes (by Congress) ing to speak about Alberto Gonzales well and inspire a new generation to simply because he’s commander in chief.’’ Mr. Gonzales said: ‘‘To the extent that there and to urge bipartisan support for his aspire and conquer. is a decision made to ignore a statute, I con- confirmation as Attorney General of I urge my colleagues to join me as we sider that a very significant decision, and the United States. continue the march toward liberty and one that I would personally be involved with Alberto Gonzales’s qualifications justice by voting to confirm Alberto . . . with a great deal of care and serious- speak for themselves. He is a graduate Gonzales as the next Attorney General ness.’’ ‘‘Well,’’ Mr. Feingold said, ‘‘that of Harvard Law. He served as Secretary of the United States. sounds to me like the president still remains of State for the State of Texas and as The PRESIDING OFFICER. The Sen- above the law.’’ When Mr. Kennedy asked the a justice on Texas’ Supreme Court be- ator from Alabama. same question, Mr. Gonzales said it was ‘‘a fore being named White House Counsel Mr. SESSIONS. Mr. President, I very, very difficult question.’’ So, what does he believe about the separation of powers? by President Bush in 2001. Mr. Gonzales thank the Senator from Nevada for his Another question from Mr. Kennedy: ‘‘Do was recently inducted into the His- fine comments about Judge Gonzales. you believe that targeting persons based on panic Scholarship Fund Alumni Hall of We have gotten to know Judge their religion or national origin rather than Fame and has been honored with the Gonzales over the years. He is a good specific suspicion or connection with ter- Good Neighbor Award from the United and decent man, a fine lawyer who re- rorist organizations is an effective way of States-Mexico Chamber of Commerce. spects the rule of law, who is proud to fighting terrorism? And can we get interest Henry Cisneros, the former Secretary be an American. He wants to see our from you [that[, as attorney general, you’d of Housing and Urban Development, country strong and free. He led the ef- review the so-called anti-terrorism programs that have an inordinate and unfair impact on calls Alberto Gonzales a person of ster- fort in the fight against terrorism. He Arab and Muslim?’’ Mr. Gonzales responded: ling character and says that Mr. did the things we wanted him to do. ‘‘I will commit to you that I will review it. Gonzales’s confirmation by this body He has a background that excites our As to whether or not it’s effective will de- will be part of America’s steady march pride. We are pleased to see how much pend on the outcome of my review.’’ But Mr. toward liberty and justice for all. he has achieved. He went to Harvard Gonzales didn’t answer the first crucial part It is a march that, for Alberto and was hired by one of America’s of the question: Is targeting people based on Gonzales, started in a two-bedroom great law firms. He served the Gov- religion, without specific suspicion, effec- house shared by ten people with no hot ernor of Texas, was a judge in Texas— tive? And, I would add, isn’t it broadly dis- criminatory? running water or telephone. But what and all of his credential are wonderful. Asked by Sen. Patrick Leahy about in- Alberto Gonzales and his family lacked We know he is a good, decent, honor- creasing reports of abuse of detainees in Iraq in comfort they made up for in vision able, and honest man. and Guantanamo Bay, Mr. Gonzales said: ‘‘I and hard work. If you listen to the comments made categorically condemn the conduct that we Alberto was the first person in his here today, by some Democrats, about see reflected in these pictures at Abu Ghraib. family to go to college. He served in him, you would not recognize the man ‘‘I would refer you to the eight complete the United States Air Force and at- we know. investigations of what happened at Abu It is not right. What has been done Ghraib and Guantanamo Bay, and there are tended the United States Air Force still three ongoing,’’ he added. But none of Academy. here is wrong. the investigations have gone so far up the But Alberto Gonzales is about more If you have a disagreement with the chain of command as the Defense Depart- than an impressive re´sume´. Each expe- policy of the President of the United ment and the Justice Department to deter- rience in his life has prepared him for States, OK, we will talk about it and

VerDate Aug 04 2004 02:03 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\A02FE6.010 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S847 we will see what the differences are. He suggested that, I guess, on behalf ought to ask ourselves, has this Con- But it is not right to demean and of the President, and they rewrote it. gress stated any position on terrorism? mischaracterize the nature of Judge They constricted the issues they dis- What did they say? Gonzales. I feel strongly about that. cussed. They didn’t speculate on what I remember not too many months I served in the Department of Justice the ultimate powers of the President ago when Attorney General John for 15 years. I would like to share a few might be. They did that less in the sec- Ashcroft was before the Judiciary Com- thoughts to give us some perspective ond memorandum than they did in the mittee. They were bombarding him about the role Judge Gonzales has first. with the allegations that he was re- played. That is how this came about. It was sponsible for Abu Ghraib, he was re- Judge Gonzales was legal counsel to their opinion, not his. They say he cir- sponsible for any misbehavior through- the President. He was the President’s culated it. Well, do you want him to out our entire command, and that he lawyer. Of course, everyone who is a circulate his personal views? Do you had approved torture, and they quoted lawyer—I am a lawyer and a good num- want him to circulate some politician’s things they said he approved. In frus- ber in this body are lawyers—knows views? Or do you want him to circulate tration, Attorney General Ashcroft, that lawyers protect the legal preroga- the duly drafted opinion of the Office looking at his former colleagues, said tives of their clients. You do not want of Legal Counsel of the U.S. Depart- ‘‘Well, the problem I have with you, to in memorandum and public state- ment of Justice which researched our Senator, is, it is not my definition of ments make statements that constrict history, the treaties, the Constitution, torture that counts. It’s the one you the ultimate power of the institution and the court cases of the United enacted into law.’’ of the Presidency of the United States. States? Do you know we have a law that de- That is a fundamental thing. That is We need to get our mind in the right fines torture and sets forth what it what you have to do. That is what you perspective and remember the cir- amounts to and how it should be de- are there for. cumstances we are operating under. I fined? It is that definition that was When 9/11 happened and we were will repeat, Judge Gonzales has never made a part of the OLC, Office of Legal taken aback by the viciousness of the supported torture. We have Members Counsel memorandum, and it is that attacks, we were worried, rightly, that who have said Judge Gonzales advised memorandum and that language our throughout this country there would be the President of the United States that colleagues across the aisle are com- terrorist cells continuing to plot as torture was acceptable. That is false, plaining about, and some of them were they were perhaps in Arizona, or in inaccurate, and wrong. Anyone who here when that statute passed and they other places, as we have learned. We said that ought to apologize for it. Do voted for it. wanted to be sure we were defending we have no sense of responsibility in Let’s take a look at that. This stat- this country well. We had to make what we say? Are we irresponsible, that ute, part of the United States Code, some decisions. we can attack this fine man, a son of says: We went after al-Qaida in Afghani- immigrants who worked his way up stan. A lot of legal questions arose. through the entire legal system to be Torture means an act specifically intended I serve on the Judiciary Committee. to inflict severe physical or mental pain or now nominated to that great office of suffering upon another person. Severe men- We had hearing after hearing regarding Attorney General of the United States? tal pain or suffering means the prolonged these issues. He deserves a fair shake. He has not mental harm caused by or resulting from the Let me tell you what I think Judge been getting it. intentional infliction or threatened inflic- Gonzales did not do. Not I think; I They say he abandoned the rule of tion of severe physical pain or suffering. The know he did not do. He did not approve law. He did not do that. He sought a threat of imminent death or the threat that of torture. He has always steadfastly legal opinion from the duly constituted another person will imminently be subjected opposed it. His position has consist- Office of Legal Counsel which is sup- to death, severe physical pain or suffering, or ently been that we comply with the the administration or application of mind-al- posed to render those opinions. He dis- tering substances or procedures calculated to laws of the United States and our trea- seminated those opinions and now they disrupt profoundly the senses or personality. ty obligations. I will talk about that in blame him for it. It is not the right These words were used—and I know a minute. thing to do. As President Bush said on the Presiding Officer is a skilled JAG But that was not his call at that more than one occasion, but on the eve officer from South Carolina—those point in time. He did not privately tell of the G–8 summit in June of last year: were the words discussed in the OLC the President, or call up the Secretary The authorization I issued was that any- of Defense, or call the guard at Abu thing we did would conform with United memorandum. They used those kinds Ghraib and say torture these prisoners. States law and would be consistent with of words. The same kind of words He sought a formal legal opinion con- international treaty obligations. passed by a number of Democrat Mem- cerning the powers and responsibilities That has been the position. In a let- bers in this body. The authors of the of the President of the United States as ter to Senator LEAHY, Assistant Attor- OLC memo simply discussed the mean- a lawyer for the President. He made ney General Will Moschella in the leg- ing of these words passed by the Con- that request of the Office of Legal islative affairs division of the Justice gress. Now some are arguing that be- Counsel, a senatorial-confirmed posi- Department rejected categorically cause of this memo we approve these tion of the U.S. Department of Justice, ‘‘any suggestion that the Department horrible things. a position that is given the responsi- of Justice has participated in devel- I suppose a person could misinterpret bility to opine on matters of this kind. oping policies that would permit un- deliberately some of that and carry out They are not to set policy. They are lawful conduct.’’ things that are not legitimate. I sup- not to say what torture is other than In a special piece submitted to USA pose some of these things would be le- what the law says. They do not express Today, Judge Gonzales, in his capacity gitimate. We said they were when we their own views. But he asked them then as White House Counsel, stated passed the statute, or at least we did what the legal responsibilities and ‘‘in all aspects of our Nation’s war on not prohibit them when we passed the powers of the President were. They re- terror, including the conflict in Iraq, it statute. searched the law. They sent back a is the policy of the United States to Who defines torture? The Office of memo. That is the memo being com- comply with the governing laws and Legal Counsel? Judge Gonzales? The plained of, a memo not written by treaty obligations.’’ I will talk more President of the United States? Or the Judge Gonzales, a memo written by the about that because it is important le- U.S. Congress? We have enacted a defi- Office of Legal Counsel of the U.S. De- gally to understand what has been oc- nition of torture, the one I just read. It partment of Justice and their staff curring. might offend some people, but as it is, that worked on it at some great length. We as a nation do not approve of tor- that is the definition of torture, I sub- We have had complaints about it. ture. We reject it. We prosecute and mit, and I don’t see how it can be dis- Judge Gonzales later on said: There discipline those who are participating puted. have been complaints about this in it or carry it out and we have been We did have activities that occurred. memorandum. You need to redo it. committed to that as a country. We This memorandum fundamentally was

VerDate Aug 04 2004 00:55 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.029 S02PT1 S848 CONGRESSIONAL RECORD — SENATE February 2, 2005 advice to the President on what his ul- was a battle to the death. We are fac- in trying to ensure that our behavior is timate powers were. But the Presi- ing an enemy unlike enemies we have good. We have prosecuted people at dent’s orders, the policies of the U.S. faced before. They are a ferocious, sui- Abu Ghraib. We have disciplined a lot military, were much more constrained cidal, murderous, sneaky bunch that of people in Iraq and Afghanistan who than possibly would have been allowed for most of them, hopefully not all, but have exceeded their authority. In the under this statutory definition. Not for most of them they simply have to course of furthering our intense war that the President ultimately did not be defeated, they have to be captured, against terrorism, we have tried to have that power. But we have not uti- they have to be killed, they have to be maintain control over our decency and lized that power or approved it. In fact, restrained because they will not stop. our morality. I do not think Members we have disciplined people who have If we are successful in doing that, I be- of this body should be suggesting that not followed those rules and regula- lieve the glory that some of these ter- we do not or that it is our policy to tions. rorists have attained will be dimin- violate international law or the rights First, it is always going to be the ished, and it will be seen that they rep- under our own statutes concerning tor- President’s fault, during an election resent a small, backward, insular, vio- ture and other rules. year. Then it was Secretary Rumsfeld, lent mentality, not conducive to I heard it pointed out we all have and then Condoleezza Rice. At some progress, peace, and democracy in the things that do not work out right in point they decided to quit blaming Sec- Middle East or anyplace else in the our lives. We do things we thought retary of State Rice during her con- world. were right at the time and justified firmation proceedings and start blam- I think we are going to make them, and they maybe turn out to be ing it all on Judge Gonzales. So now we progress on that. We need to hold our wrong. Nobody who ever comes before have been through the President, the standards high. I certainly agree with this body for confirmation is perfect. I Secretary of State, National Security that. But war is a difficult thing. Peo- know my colleague, Senator DURBIN, Adviser, the Secretary of Defense, and ple do make mistakes. We have abuses has stated that Judge Gonzales is no now we are down on Judge Gonzales. It in the Federal prison systems and in Robert Kennedy. And they are different is all his fault. Now he cannot be con- State prison systems. Senator KEN- people in different times. Robert Ken- firmed because somebody at Abu NEDY and I offered legislation to pro- nedy was appointed Attorney General Ghraib violated policy. They have been hibit sexual abuse in prisons by guards by his brother. How much closer can tried. Some have already been con- and prisoners, and to investigate it, to you be than that? But we now know victed. They have been removed from identify it, and stop it. But we know we from many of the histories that have office. have abuses in our prisons, and we need been written that on a number of occa- We had the situation—do you remem- attention from the top and discipline sions Robert Kennedy, as Attorney ber it?—when a full colonel in the from the top. General, clearly violated the legal and Army, in the heat of battle, concerned I will note a recent article about Abu constitutional rights of people he was for the safety of his troops, fired a gun Ghraib. Soldiers were interviewed in a investigating for criminal activities. I near the head of an Iraqi terrorist to Washington Post article, and they all do not think that is disputed. induce him to give information that said this was unacceptable behavior; it Well, let me tell you, what would would protect the lives of his soldiers. should have never occurred. It is clear have happened if that had been true of And we drummed him out of the serv- that the soldiers who are there today Judge Gonzales? How far would he get ice for it long before a lot of this hap- fully understand their responsibilities along in this process? He would not get pened. to treat these people humanely, and to first base. Remember, it was the military that that they will do so. I would say this: Judge Gonzales was brought forth the abuses at Abu I want to mention one more thing at the right hand of the President of Ghraib. They recognized that some had about some of the details of this issue. the United States when we were delib- violated the laws of the United States First, I think it is indisputable that al- erately attacked by an al-Qaida organi- and that those activities should not be Qaida and such terrorists who are zation that had announced they were allowed. They have disciplined people about and loose in the world today do at war with the United States, that systematically since. They are con- not qualify under the Geneva Conven- they were authorized and empowered, tinuing to do so. If anybody higher up tions. They simply are not covered by and it was legitimate for them to at- is implicated, these lower guys are it because they are not the kind of law- tack and murder civilians of the United going to tell about it. They are going ful combatants the Geneva Conven- States. We needed to respond to that. to pursue that, I have absolute con- tions protect. We did not need the legitimate power fidence. And we will pursue that. Now, the President says we are going of the President to be constrained by But I think it is unhealthy for our to treat them humanely in any case, some politically correct memorandum, country, dangerous to our troops, un- and we are going to treat them fairly. a memorandum that he requested from dermining of our mission to suggest In many instances he says we are going the Department of Justice, which was that it was the policy of the U.S. Gov- to provide them the protections of the written by them and which represented ernment to do this. How can that help Geneva Conventions even though they a statement of policy of the United us gain respect in the world when Sen- are not entitled to them. States with regard to the powers of the ators in this body allege that the Presi- For example, it is the position of the Presidency and those in the military. dent’s own counsel is approving what White House that no detainee should be I think, all in all—there have been went on in Abu Ghraib, that his poli- subjected to sleep deprivation. Now, I bumps in the road—but, all in all, our cies legitimized what was going on in think under the torture statutes, sleep Government, from the President Abu Ghraib? I do not believe that is deprivation, at least to some degree, throughout the executive branch, in- true. It is not true. We should not be would not qualify as a severe kind of cluding the military, has done its best saying it. We had a big enough, bad pain or the psychological impairments to fight this vicious, despicable, vio- enough problem in Abu Ghraib. It was that were referred to in the statute lent enemy, an enemy that does not an embarrassment to us. We were pain- Congress passed defining torture. But meet the standards of a lawful combat- fully hurt by it. And it should not have the President said that we would not ant but is clearly, in fact, unlawful occurred. But I will say, with con- deprive them of sleep anyway. Nor combatants not entitled to the protec- fidence, that Judge Gonzales does not should they be deprived of food and tions of the Geneva Conventions. We bear the blame for that. water during any period of interroga- have treated them humanely, with a Discipline in war is hard to maintain. tion. Soldiers and interrogators were number of exceptions for which dis- I mentioned the example of how a high- even prohibited from the act of point- cipline has been applied. And we have ly decorated colonel was removed from ing a finger at the chest of a detainee. striven in every way possible to tight- the service for his failure of discipline, That was declared an unacceptable en up since the beginning of this war even in a tough time. I remember back technique by Secretary of Defense our discipline with regard to our sol- in the Pacific, in those island cam- Rumsfeld 2 years ago, January 15, 2003. diers and our policies to make sure we paigns, neither side took prisoners. It Well, we have gone a pretty good ways have the least possible errors that

VerDate Aug 04 2004 00:55 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.031 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S849 would occur in this process of fighting I would make clear this basic fact—it as a member of the U.S. Army, will this war on terrorism. I believe that is so basic we often don’t think about carry their arms openly. They will deeply. it—this group al-Qaida has declared have a distinctive uniform, and they Soldiers have placed their lives at war on the United States. Not only will carry their arms openly, evidence risk. They have placed the lives of have they declared it in a traditional of the fact that they are soldiers. This their associates and comrades at risk, lawful manner of nation states that is important for a lot of reasons. adhering to the highest ideals of Amer- they have done over the years, at least One reason is that the people who are ican values of life. They have not quasi-lawful; they have done it as a fighting against our soldiers are sup- pulled triggers, subjecting themselves group of unlawful combatants, and posed to direct their fire at soldiers, to risk, because they were not sure. they have done it in a way that is not not innocent civilians. So if they are They have held back and shown re- justified under the Geneva Conventions wearing a uniform and carrying their straint time and time again. That has or international law of any kind, arms openly, they know the target at not been sufficiently appreciated. We shape, or form. When our soldiers go which they are firing. The whole goal have spent almost all of our time hav- out and they are engaging al-Qaida, of the Geneva Conventions is to elimi- ing Members of the Congress attack they don’t give them a trial. They nate the loss of life of innocent people and blame the whole Government for don’t read them their Miranda rights. and to minimize loss of life in general failures in these hostilities of a few. They don’t sit down and see what they and minimize the horror of war as I believe Judge Gonzales is not the can do to ask them if they would much as possible. person to blame for all this. I do not change their heart. They shoot them. If they are to be considered as one believe the Counsel to the President is We are at war with them. They are a who has the protections of the Geneva responsible for Abu Ghraib. He is not hostile enemy, and we do that. responsible for an opinion written by When you capture a hostile enemy Conventions, they must be conducting an independent agency of the Govern- who a few moments before, you could their operations in accordance with the ment, legally empowered and directed have killed lawfully as a soldier of the laws and customs of war. Sneaking by this Congress to write it. United States executing the policy of around, hijacking airplanes, flying He is a good man, a decent man, a the United States against a person who them into buildings, putting explosive man we have seen up close and per- has declared war against you and has devices under vehicles, throwing them sonal for quite a number of years. I publicly stated they are justified in at people in line to vote—those actions find in him the highest standards of killing innocent American civilians, are not consistent with the laws and Americanism and decency. He is a su- men, women and children, if you can do customs of war, for Heaven’s sake. perb lawyer. He has had a ringside seat that, if you capture them, they don’t So there is no doubt whatsoever in on how the Justice Department works then become entitled to every right my view that al-Qaida and the terrorist without being a part of it. It will allow that an American citizen has when he groups who do not wear uniforms, who him to move into it with a fresh look is tried in the U.S. district court for go around bombing innocent people, and be able to do good things. tax evasion or bank robbery or drug are not acting according to the rules of I believe strongly he should be con- dealing. It is not the same. Everybody war, who do not wear a uniform, who firmed. I am disappointed in the nature knows that, if they have given any are not carrying their arms openly— of the attacks put on him. I believe thought to war and treaties over the they do not qualify for the protections they have been unfair and do not do years. of the Geneva Conventions. No counsel justice to his character and the effec- What is a controlling authority with to the President, no counsel in the U.S. tiveness of his service. regard to international agreements? It Department of Justice should render It is a pleasure to speak on behalf of is the Geneva Convention. There have an opinion that says otherwise. this fine American. He will make a been a series of them. They have been The President can say: We are going great Attorney General. I look forward amended over the years. The most per- to give the protections, anyway, which to his confirmation and all of us work- tinent one in this area is the Third Ge- he has done, and we are going to treat ing with him. neva Convention. This is in addition to the people in Iraq according—I think I yield the floor and suggest the ab- the original Convention. he said we will treat them according to sence of a quorum. It provides strict requirements—four, the Geneva Conventions. I do not think The PRESIDING OFFICER (Ms. MUR- to be exact—that must be fulfilled by we said that explicitly with regard to KOWSKI). The clerk will call the roll. an individual should he seek the pro- Afghanistan and al-Qaida, but these The bill clerk proceeded to call the tections afforded by the treaty. Iraqi guys who sneak around and bomb roll. In other words, everybody is not enti- are not much different to me. We have Mr. SESSIONS. Madam President, I tled to protection under the treaty. ask unanimous consent that the order provided more protections, I would say You have to do certain things, and you with absolute certainty, than inter- for the quorum call be rescinded. have to be what we have come to refer The PRESIDING OFFICER. Without national law or U.S. statutes provide. to as a lawful combatant. Al-Qaida is not a nation state. It has objection, it is so ordered. What are those requirements? He not signed the treaties of the Geneva Mr. SESSIONS. Madam President, I must be commanded by a person re- Convention. Members of al-Qaida have believe it is important that we discuss sponsible for his subordinates. He no uniforms or distinctive signs. Al- more carefully what our responsibil- should have a chain of command. He ities are as a nation under the Geneva cannot be a single murdering bomber Qaida has declared war on us, however, Conventions. We have had a lot of and claim he is a lawful combatant, and they are quite capable through things said here, smeared over, slopped having no authority in a chain of com- their sneaky, devious, murderous ac- over, vague allegations of misconduct mand and not acting on orders from tivities of sneaking into our country on behalf of this President and our some lawful entity. and killing Americans right now. If country. Our soldiers are out fighting No. 2: He must, the exact words are, they are able to do so, they will. for us. We need to understand what it have a ‘‘fixed, distinctive sign rec- One reason they have not been able is. ognizable at a distance.’’ What does to do so is because we have been hunt- They have alleged repeatedly that all that mean? It means you wear a uni- ing them down with the finest military this is in violation of the Geneva Con- form, basically. That is what it has al- the world has ever known, that is using ventions, all this amounts to torture. I ways meant traditionally. So if you discipline, humanity, and the proper previously have gone into some depth catch somebody in your country sneak- execution of violence against these about what the congressional act was ing around not in uniform, they are people. That is just the way it is. We that prohibited torture and how this spies, and they are hung. That is what have gone after them. We have put Congress defined torture and what it happened historically. The Geneva them on the run. If they could have at- meant. It does not mean someone can’t Convention never changed that fun- tacked us in our election, if they could be deprived of some sleep or have an in- damentally. have attacked us any time since 9/11, I terrogator raise his voice during ques- Carrying arms openly—the treaty submit they would have. We have had tioning. That is not torture. considers that lawful combatants, such an Attorney General, John Ashcroft,

VerDate Aug 04 2004 00:55 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.033 S02PT1 S850 CONGRESSIONAL RECORD — SENATE February 2, 2005 who utilized the powers and laws pro- get the truth, direct, clear, understand- limited role that the judiciary plays in vided to this country and our leader- able, and unvarnished. That is what it our unique system of government. ship to go after them. is all about. Additionally, Judge Gonzales advised These people are entitled to certain The obfuscation of the truth some- then-Governor Bush as his chief coun- rights, but not the same rights that times finds its way to the Senate floor, sel in Texas. Judge Gonzales served exist for an American citizen. They and my guess is that it is finding its there as both a secretary of state and represent a different kind of threat. way to the Senate floor in the debate chief elections officer of that great They are unlawful combatants. They on the nomination of Alberto Gonzales. State. Furthermore, Judge Gonzales are an unlawful enemy which rejects I rise in support of the nomination of had a successful career in the private and despises law. They reject our Con- Alberto Gonzales to be our next Attor- legal sector prior to entering public stitution. They reject democracy. They ney General. It seems to me that some service. What combination do we need see it as a threat. They want to rule of our colleagues are interested in not to get the very best top cop in the their people according to their narrow the true man and his qualifications but country? He has not only a keen legal definition of law. They want to oppress more in what they perceive to be the mind but is one who has had adminis- women. They do not want progress. politics and the policies of this admin- trative experience, one who has worked They do not want freedom. They do not istration. with large systems of government and want the things the whole world needs. In the last Congress, I had the privi- one who knows the limit of the law and And those societies and that kind of lege of serving as a member of the Sen- the limit and the capacity of the posi- mentality are what cause wars, not de- ate Judiciary Committee and I wit- tion in which he is now being asked to mocracies. nessed this tactic used against judicial serve. I feel strongly about this. It is impor- nominees time and time again, a tactic Finally, Judge Gonzales has led a life tant for us to be clear: We as a nation of equating a lawyer’s performance as filled with many other activities and do not support, justify, or condone tor- legal counsel with his likely perform- honors that helped to prepare him to ture. We are disciplining people who ance to the very different role of being be an outstanding Attorney General, have done so. We are putting people in a judge. We saw that argued time and and I will name just a few of them. jail who have done so. Guardsmen who time again for a political purpose, not Judge Gonzales served his country as a came out of our communities, went to a reasonable analysis of the character member of the U.S. Air Force from 1973 Iraq, worked midnight to 6 a.m., were of the individual and how he or she to 1975. He was also elected to the away from home, lost their discipline might perform in the new role in which American Law Institute in 1999 and he and conducted themselves in ways that they were being asked to participate. served on the board of trustees of the brought disrepute on the United States Likewise, in this debate some have Texas Bar Foundation for several years and violated our rules and standards of argued we should evaluate Judge and as the president of the Houston the military are being tried and con- Gonzales’s fitness for the post of Attor- Hispanic Bar Association from 1990 to victed and put in jail, as they should ney General, the Nation’s top cop, 1991. Later in 1999, Judge Gonzales was be. It is sad we see that happen, and I based on a politically driven examina- chosen as the Latino Lawyer of the know we will continue to punish those tion of his work product as the Presi- Year by the Hispanic National Bar As- who violate our standards. As a result dent’s Counsel. I urge my colleagues to sociation. of those prosecutions and those ac- abandon that tactic, reject that argu- As a number of my colleagues have tions, our military will show even ment, and look at the lifetime achieve- pointed out, when Judge Gonzales is greater discipline. ment of the nominee if my colleagues confirmed, he will be this great Na- I see the Senator from Idaho in the truly want to understand who Judge tion’s first Hispanic Attorney General. Chamber. I am sure he wishes to speak. Gonzales is and what he is qualified to Through all of this, Judge Gonzales has I want to yield to him because I respect do in the role he is now being asked to found time to help the less fortunate of his insight on these matters. play by our President. our country. He served on the board of I will say, I am disappointed—deeply I feel strongly that the Senate should directors of the United Way of the disappointed—in the unfair attacks vote to confirm this man. I had the Texas Gulf Coast, and finally in 1997 he that have been placed on Judge privilege of getting to know Judge received the Presidential Citation from Gonzales. He is being blamed for every Gonzales and work with him firsthand the State Bar of Texas for his work in single thing about which people have while I served on the Judiciary Com- addressing the legal needs of indigent complaints in the war against ter- mittee and in a variety of other set- citizens. rorism. They are saying he is respon- tings. Clearly, Alberto Gonzales is an ac- sible for everything that may have First, Judge Gonzales’s past experi- complished practitioner of the law and gone wrong, some of which was wrong, ences have prepared him for the posi- he is unquestionably qualified to be our some of which probably was not wrong, tion to serve honorably in that posi- Nation’s No. 1 law enforcement officer. but is being characterized as wrong. It tion, in my opinion, without question. The second reason I support Judge is not right. He was counsel to the As Counsel to the President, he has Gonzales, and the nomination that we President. He did his duty. He sought been instrumental in coordinating our are arguing in his behalf today, is the the opinion from the proper people to Nation’s law enforcement in the man himself and his views on issues give legal opinions on terrorism and heightened security environment. Fol- facing our country and what our coun- war, and he conducted himself con- lowing 9/11, as Senator SESSIONS has try needs and what his role is. He is sistent with those principles. He stead- just referred to, while serving as Coun- very realistic, honest, and straight- fastly and continuously has condemned sel to the President, Judge Gonzales forward about it. torture. He should be confirmed. paid particular attention to protecting In the last Congress when I served on I yield the floor. our Nation from terrorism, while not the Judiciary Committee, I partici- The PRESIDING OFFICER. The Sen- forgetting the importance of doing so pated in debates on many of these ator from Idaho. under the Constitution, in order to issues that we see reignited by this The PRESIDING OFFICER. The Sen- safeguard our rights as free citizens. nomination. Those experiences con- ator from Idaho. Also, President Bush has acknowl- vinced me that Judge Gonzales has the Mr. CRAIG. Madam President, I asso- edged the great help Judge Gonzales necessary outlook to protecting our ciate myself with the remarks of the has been to him in helping to select the country from all of those who would do Senator from Alabama. Over the last best nominees for our Federal courts us and our citizens harm. several years, I have had the privilege during the past few years. Before serv- I will talk a little bit about his views of serving with Senator SESSIONS on ing as White House Counsel, Judge on some of these important issues re- the Judiciary Committee. I have Gonzales was distinguished as a justice garding the war on terror. Judge gained such phenomenal respect for his of the supreme court of the State of Gonzales recognized that after the at- keen intellect and bright legal mind. Texas, at which time he was known as tacks of September 11, the United When one listens to him, as those who a careful jurist who was opposed to ju- States was at war, a new and unique might be watching today have, they dicial activism and who recognized the and different kind of war that we had

VerDate Aug 04 2004 01:15 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.037 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S851 never experienced before. As Senator Mr. LEAHY. Madam President, I am George W. Bush took this oath on SESSIONS said, a war of ideas but a war only going to take a few moments. I January 20, 2001, and again a few days of violence, a war in which al-Qaida have colleagues on this side of the aisle ago on January 20, 2005. His over- was the enemy but in a way that we who wish to speak during the hour. arching responsibility is to preserve, had never experienced before. It was a I hear so many of the statements on protect, and defend the Constitution. unique and different legal paradigm in the other side speak of Judge In order to protect, preserve, and de- which Judge Gonzales found himself, Gonzales’s personality, his upbringing, fend the Constitution, you must under- dealing with terrorists and not recog- and his inspirational life story. If we stand what it says. As such, a Presi- nizing them merely as criminals. were just voting on his personality, his dent must rely on the advice of his That is why we had to change the upbringing, and his life story, I would legal counsel. character of some of our laws. We do vote for him with wholehearted sup- Alberto Gonzales has served as Presi- not wait until after the fact and go out port. However, we are not voting on the dent Bush’s legal counsel since 2001. In and collect the evidence and decide life, we are voting on the record. It is this capacity, he has provided advice to who may or may not have caused the an enormous difference. Equally impor- him that, in my view, ignores both the violence or perpetrated a crime. It is tant, we are not voting on an Attorney letter and spirit of the Constitution too late then, and we all know it is too General to serve only the President, we and the President’s critical responsi- late. We act before, and we act deci- are voting on the Attorney General for bility to preserve, protect, and defend sively, as our President did. the United States. it. Through his advice, he has set in Judge Gonzales advised our President So many of the supporters of Judge motion policies that have harmed our in that, and the constitutional con- Gonzales have said that they abhor the interests at home and abroad. sequences, and how we work our way idea of torture. They say that they be- Our Nation was founded by men and through and the reasonable nature and lieve the Bybee memo was wrong. They women fleeing severe political and reli- character of protecting human rights say that these policies are wrong. gious persecution. Wary of authori- Of course they are wrong, but these and being fair and responsible, while tarian government or religious leaders, are the policies that were held in place all the time recognizing we were deal- they created a nation by and for the by the administration for as long as ing with an enemy who in no way people, a nation committed to the rule they remained secret. The Bybee memo would deal that way or comprehend of law and the notion that every person was sought by Judge Gonzales. It was that they had any responsibility to has certain inalienable rights. Our agreed to by him. He apparently still deal with us as we might deal with Founding Fathers very deliberately did takes the position that there are cir- them. not create a new monarchy. They did cumstances where the President of the Judge Gonzales has also worked to not crown a king. Instead, they created United States is above the law. ensure that those detained in war as a new system of government that re- I don’t want someone to serve as At- terrorists were treated humanely. lied on the rule of law that was agreed torney General who will be a good sol- While that allegation goes forth today, upon by representatives of the people. dier for the President. I would have working to keep the principles of the As article VI of the Constitution said the same thing, whether it was a Geneva Convention were clearly under- states so eloquently: stood and all of that was well sought Democratic President or Republican President. I want someone for Attor- This Constitution, and the Laws of the after. United States which shall be made in Pursu- My time is about up. My colleagues ney General who will be independent, ance thereof, and all Treaties made, or which on the other side have gathered to who will give the best possible advice shall be made, under the Authority of the speak to this nomination. and protect the rights of all of Ameri- United States, shall be the supreme Law of In closing, I support Judge Alberto cans. the Land. . . . Gonzales’s nomination to be our next I am the parent of a former Marine. The Constitution is the supreme law, Attorney General because of his life- My son has now fulfilled his duty for not the word of the President. I would time of hard work and his accomplish- the Marines, but if he were serving, I also emphasize the language here in- ments. There is no question this man is would worry for him as I worry for all cludes all treaties, including the Gene- qualified. That really is not the debate the thousands of men and women serv- va Conventions and the Convention today. Others are trying to divert us ing overseas. The torture policies of Against Torture. off into a debate of policy or a debate this administration did nothing to en- They are not extrajudicial. They are of issues well beyond the character of hance the security of our Americans part of the Constitution. They are part the man and his ability to serve in the fighting bravely. In fact, the policies of the responsibility of all of us to de- role that this President has cast him put soldiers and civilians in greater fend. into as nominee for Attorney General danger. In the United States of America, the The truth is that the Bybee memo of the United States. Constitution, our Federal laws and our was disavowed only when the press I believe he will be confirmed, and I treaty obligations are the means by found out about it. Unfortunately, the believe he will serve honorably in that which we as a people, in this grand ex- people at the center of the develop- position. I strongly support this nomi- periment we call democracy, have ment of these policies, who could have nation. I ask my colleagues to step be- agreed to rule ourselves. disavowed the memo upon its publica- yond the politics of the day, look at The President, all Senators, all Rep- tion, who could have stopped it, includ- the reality of who we place in these resentatives, the members of our state ing Judge Gonzales, did nothing. key roles of Government to be effective legislatures, and all executive and judi- I see the distinguished Senator from administrators on behalf of all of the cial officers, both of the United States Louisiana and the distinguished Sen- people, to be an Attorney General that and the individual states, are bound by ator from Rhode Island. I don’t know is fair, who understands the role of the an oath to support our Constitution. which one seeks recognition, but I Constitution and the boundaries we This oath to defend and support our yield the floor. Constitution was also taken by Judge placed on law enforcement and the The PRESIDING OFFICER. The Sen- Gonzales in his current position as legal community in the character of ator from Rhode Island. building and sustaining a civil society Mr. REED. Madam President, every 4 counsel to the President. of the kind that we as Americans have years an individual chosen by the Now, Judge Gonzales is being consid- come to know and appreciate, and that American people steps forward to as- ered to serve as the Attorney General which we would hope the rest of the sume the awesome responsibilities as of the United States, the chief law en- world can understand. President of the United States. His forcement officer of the United States. Judge Gonzales understands it. Judge first act is to take this oath: It is Judge Gonzales’s failure to de- fend and support our Constitution, our Gonzales will make a great Attorney I do solemnly swear that I will faithfully General. I support him strongly. execute the office of the President of the federal laws, and our treaty obligations I yield the floor. United States and I will, to the best of my that leads me to believe he does not The PRESIDING OFFICER. The Sen- ability, preserve, protect, and defend the have the wisdom or judgment to be our ator from Vermont. Constitution of the United States. next Attorney General.

VerDate Aug 04 2004 01:15 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.039 S02PT1 S852 CONGRESSIONAL RECORD — SENATE February 2, 2005 Our Nation’s Attorney General must terms which may pass muster in the corporating them as part of our legal ensure that no person is above the contemplative chambers of a judge but system. law—including the President of the fails miserably in the crucible of war. The War Crimes Act, passed by Con- United States—and that no person is This advice was a disservice to the men gress and signed by the President in outside the law, whether that person is and women of the Armed Forces. 1996, makes ‘‘a grave breach’’ of the Ge- deemed an enemy combatant, or held It is clear that as White House coun- neva Conventions a crime punishable outside the United States. sel, Judge Gonzales has been one of the by prison and even the death penalty. Judge Gonzales’s record does not jus- architect’s of the Administration’s Adding to this legal structure, the tify such an appointment. post 9/11 policies. In particular, he has United States ratified the United Na- I recognize that much of the advice helped craft or agreed to policies re- tion’s International Covenant on Civil that Judge Gonzales gave was in the garding the treatment of individuals and Political Rights in 1992. The ICCPR aftermath of the attacks of 9/11 and the captured and detained in the wars in prohibits arbitrary detention and emergence of the al-Qaida network as a Afghanistan and Iraq. These policies ‘‘cruel, inhuman or degrading treat- grievous threat to the United States. have denied detainees the protections ment.’’ The United States notified the Small terrorist cells dispersed world- of the Geneva Conventions, permitted UN that it interprets ‘‘cruel, inhuman wide and committed to suicide attacks them to be interrogated under a dra- or degrading treatment or punish- producing mass casualties represented matically narrowed definition of tor- ment’’ to mean cruel and unusual a new and disturbing threat to our ture, and denied them access to counsel treatment or punishment prohibited by country. The possibility that al-Qaida or judicial review. the First, Eighth and/or Fourteenth or other terrorist cells might acquire In at least one memorandum, Judge Amendment to the Constitution. weapons of mass destruction, including Gonzales apparently agreed that the Furthermore, in 1998, the United nuclear devices, added an even more President has the ability to override States ratified the Convention Against frightening element to the dangers we the U.S. Constitution and immunize Torture and Other Cruel, Inhuman or faced. We had to face this threat real- acts of torture. Degrading Treatment or Punishment. istically. The policies of deterrence Although supporters of Judge The Convention requires parties to that served us well in the Cold War are Gonzales will point out that only one take measures to prevent torture from difficult, if not impossible, to apply to of five memoranda discussed at his occurring within any territory under these ruthless groups of terrorists. nomination hearing were written by their jurisdictions, regardless of the ex- With respect to al-Qaida, we had to Judge Gonzales, he clearly acquiesced istence of ‘‘exceptional circumstances’’ take preemptive action. And, we did in to the conclusions in the other memos. such as a war or threat of war, internal Afghanistan. As White House counsel, Judge political instability or other public But the nature of this threat did not Gonzales’s role was to decide what emergency. The U.S. Congress imple- relieve us of our responsibilities to the legal advice was needed from the De- mented the treaty by enacting 18 Constitution and the structure of partment of Justice and then to weigh U.S.C. sections 2340–2340A. Torture is international treaties embodied in the and distill that advice before giving his defined in this statute as ‘‘an act com- Constitution. This is not being naive or opinion to the President. mitted by a person acting under the sentimental. The durability of the Con- It is clear from the record that Judge color of law specifically intended to in- stitution testifies to both its strength Gonzales either agreed with the legal flict severe physical or mental pain or and its wisdom. The structure of inter- advice dispensed in these memoranda, suffering upon another person within national treaties reflects hard won or allowed poor legal advice to be his custody or control’’ outside the agreements based on experience. The passed onto the President. United States. Offenders can be subject Constitution requires careful and sin- Either way, I believe Judge Gonzales to imprisonment and the death pen- cere interpretation when new chal- has been deeply involved in policies alty. lenges arise. It cannot be ignored or that have undermined our standing in The laws of warfare are also an inte- trivialized. the world and our historic commitment gral part of military training and con- When it comes to the issue of the to the rule of law. duct. The Uniform Code of Military conduct of war, legal guidance must be I think we must first put these Justice, or UCMJ, was a law enacted by particularly clear and it must recog- memos and decisions in historical con- Congress in 1950. The mistreatment of nize that the fury of war too often text. prisoners may be punishable as a crime brings out the worst. The issue of the treatment of detain- under article 93, UCMJ, which forbids a Ages ago, Thucydides wrote: ees in war is not a new one and an ex- soldier to act with ‘‘cruelty toward, or War, depriving people of their expected re- tensive legal framework has been de- oppression or maltreatment of, any sources, is a tutor of violence, hardening veloped to guide a nation’s behavior persons subject to his orders.’’ Article men to match the conditions they face . . . during conflict. 97 prohibits the arrest or confinement Suspicion of prior atrocities drives men to The most well known and com- of any person except as provided by surpass report in their own cruel innova- prehensive are the Geneva Conven- law. The UCMJ also punishes ordinary tions, either by subtlety of assault or extrav- tions, created in 1948, to mitigate the crimes against persons such as assault, agance of reprisal. harmful effects of war on all persons rape, sodomy, indecent assault, mur- Shakespeare captured the essence of who find themselves in the hand of a der, manslaughter, and maiming. Arti- this visceral violence in his immortal belligerent party. 192 countries, includ- cle 134 also punishes ‘‘all disorders and phrase, ‘‘Cry Havoc, and let slip the ing the United States and Afghanistan neglects to the prejudice of good order dogs of war.’’ ratified the treaty. and discipline in the armed forces’’ and Abraham Lincoln understood the pas- The Geneva Conventions were cre- ‘‘all conduct of a nature to bring dis- sions and emotions that grip the war- ated in the aftermath of World War II credit upon the armed forces.’’ rior. Writing to a friend in the midst of and the Nuremberg Trials, by a world The Army also has regulations imple- our Civil War, President Lincoln de- which had just experienced warring ar- menting the laws of war, including reg- clared: mies, the systematic rounding up and ulation 190–08, which implements the Thought is forced from old channels into extermination of millions of innocent Geneva Conventions. All soldiers are confusion. Deception breeds and thrives. civilians, squalid POW camps, death expected to abide by Army regulations Confidence dies, and universal suspicion reigns. Each man feels an impulse to kill his marches, resistance movements and and if a soldier violates a regulation, neighbor, lest he be first killed by him. Re- the aftermath of two nuclear bombs. he or she is subject to punishment venge and retaliation follow. And all this, as Those who drafted the Geneva Conven- under the Uniform Code of Military before said, may be among honest men only. tions had pretty much seen it all, and Justice. But this is not all. Every foul bird comes they accounted for all of it in the Con- Despite the Constitution’s clear pro- abroad, and every dirty reptile rises up. ventions. hibition on cruel and unusual punish- Yet, the guidance provided by this The United States clearly took the ment, despite law after law, treaty Administration was confused at best Conventions seriously and made them after treaty prohibiting torture, the and relied on the fine parsing of legal the part of the law of our land by in- President’s chief counsel, Judge

VerDate Aug 04 2004 02:03 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.043 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S853 Gonzales, requested a series of legal and thousands of American soldiers preme Court explained why the Presi- memos regarding the applicability of line the border. Our soldiers could still dent’s Commander-in-Chief or inherent treaty provisions and permissible in- be captured. And now we cannot hold executive power were not enough to terrogation techniques in the war on the North Koreans to a higher standard allow him to take over the American terrorism. of conduct, because ours is the same. steel industry during a time of crisis. One of these memos, the August 1, The August Bybee memorandum also In his concurring opinion, Justice 2002, Bybee Memorandum, was appar- enumerated reasons that American of- Jackson eloquently discussed the lim- ently written to explore what coercive ficials could not be held criminally lia- its on such Presidential powers, espe- tactics U.S. officials could use without ble for coercive interrogation tactics cially when the ‘‘President takes meas- being held criminally liable. that fell outside of this new narrow ures incompatible with the express or This memo created a new and radi- definition of torture. implied will of Congress.’’ cally narrow definition of torture. It It also posits that officials can in- In fact, Bybee cites no precedent for stated that torture would require in- voke ‘‘necessity’’ or ‘‘self-defense’’ as a his unique enhancement of the Presi- terrogators to have specific intent to defense against prosecution for such dent’s Commander-in-Chief power cause physical pain that ‘‘must be acts, despite the fact the Convention other than: equivalent in intensity to the pain ac- Against Torture clearly states there In light of the President’s complete au- companying serious physical injury, are no ‘‘exceptional circumstances’’ thority over the conduct of war, without a such as organ failure, impairment of that may be invoked as justification clear statement otherwise, we will not read a bodily function or even death.’’ Mental for torture. criminal statute as infringing on the Presi- torture is defined in the statute but Although the torture provisions of dent’s ultimate authority in these areas. We have long recognized, and the Supreme Court the Justice Department memo states the August 2002 Bybee memo were re- has established a canon of statutory con- that mental torture must result in scinded and replaced four weeks ago by struction that statues are to be construed in ‘‘significant psychological harm last- a new December 30, 2004 memo, the a manner that avoids constitutional difficul- ing for months or even years.’’ Bybee memo was Administration pol- ties so long as a reasonable alternative con- According to Harold Koh, Dean of the icy for almost 21⁄2 years and has had ex- struction is available. Yale Law School, former Assistant tremely harmful effect on both our This is nonsense. There are statutes Secretary of State for Democracy, military and intelligence communities. on the book outlawing torture. There Human Rights and Labor, and an inter- If this memo with its narrow defini- is no precedent cited because scant national law expert, this memo is ‘‘the tion of torture was so wrong on its face precedent exists, it any. most clearly erroneous legal opinion’’ that it had to be rescinded, why didn’t Now if this Commander in Chief over- he has ever read. In testimony before Judge Gonzales know it was wrong at ride exists, if the President can exer- the Judiciary Committee he stated: the time he requested and endorsed it? cise his Commander-in-Chief power to In sum, the August 1, 2002 OLC memo- One of the most disturbing parts of ask his subordinates to engage in tor- randum is a stain upon our law and our na- the August Bybee memorandum is the ture to protect the national security of tional reputation. A legal opinion that is so suggestion that the President and our country, how would this be done? lacking in historical context, that offers a other executive officials can escape One would think the Commander-in- definition of torture so narrow that it would prosecution for torture on the ground Chief would have to order his subordi- have exculpated Saddam Hussein, that reads that ‘‘they were carrying out the Presi- the Commander-in-Chief power so as to re- nates to engage in such conduct for it move Congress as a check against torture, dent’s Commander-in-Chief powers.’’ to be legal. So where are the orders? that turns Nuremberg on its head, and that By adopting the doctrine of ‘‘just fol- And if there are no orders, aren’t U.S. gives government officials a license for cru- lowing orders’’ as a valid defense for soldiers and intelligence officers still elty can only be described—as my prede- United States soldiers and officials, the subject to the supreme law of our cessor Eugene Rostow described the Japa- opinion undermines the very land—our Constitution, our statutes nese internment cases—as a ‘‘disaster.’’ underpinnings of individual criminal and our treaty obligations—and can One would have expected the Counsel to responsibility set forth after World they not be prosecuted for violations of the President to have immediately repudi- War II, and now embodied in the basic ated such an opinion. Judge Gonzales did this law? How would Judge Gonzales not. instruments of international criminal approach this dilemma, created by his law. Instead, this memo was endorsed by own legal reasoning, if he is nomi- This memorandum basically puts the Judge Gonzales as the legal opinion of nated-confirmed Attorney General? President, and his subordinates, above the Justice Department on the stand- Would he prosecute subordinates of the the law, as it states, ‘‘any effort to reg- ard for torture. President who engaged in what most ulate the interrogation of battlefield Now, over 30 years ago, the U.S. Navy rational people would consider torture combatants would violate the Con- 1 vessel USS Pueblo was sent on an intel- during the past 2 ⁄2 years and then de- stitution’s sole vesting of the Com- ligence mission off the coast of North fend themselves with the reasoning in mander-in-Chief authority in the Presi- Korea. On January 23, 1968, it was at- the Bybee memorandum? dent.’’ tacked by North Korean naval and air In addition, at this time there are This is antithetical to everything we forces. Eighty-one surviving crew- over 20,000 private contractors in Iraq. know about our founding document members of the USS Pueblo were cap- Many of them are engaging in ‘‘mili- and the rule of law. tured and held captive for 11 months. tary functions’’ in support of U.S. It ignores the fact that the Conven- One survivor, Harry Iredale, related his forces. These civilians are currently tion Against Torture and other treaties experiences with a North Korean inter- liable for prosecution in U.S. courts for have been approved by Congress, eluci- rogator named, ‘‘The Bear:’’ various offenses, under the U.S. laws dated by statute and become the law of implementing the Convention on Tor- The Bear proceeded to yell at me to con- the land. ture. In addition, persons who are ‘‘em- fess. He had me kneel on the floor while two The Bybee memo’s reading of the guards placed a 2-inch diameter pole behind ployed by or accompanying the armed my knees and other guards jumped on each President’s powers as Commander-in- forces’’ may be prosecuted under the end of it several times. Then the Bear picked Chief essentially would allow him to Military Extraterritorial Jurisdiction up a hammer handle and proceeded to smash ignore or order that the criminal prohi- Act. Now, many such offenses are per- it onto my head, completely encircling my bition against torture in the United mitted by the Bybee memorandum but head with lumps as I screamed in pain. States code be set aside. The President are prohibited by other U.S. law. I think most of us would consider could trump Congress’ power under Ar- Again, would Judge Gonzales vigor- this graphic description one of torture. ticle I, section 8, clause 10 to ‘‘define ously prosecute violations of law that, But under the Bybee memorandum’s and punish . . . offenses against the law either through his advice or the legal definition, this would not constitute of nations’’ such as torture. reasoning he deemed were acceptable organ failure or death, so it would not Interestingly, nowhere does the Au- practices activities? be considered torture. gust Bybee memorandum mention the Now the creation of this so-called More importantly, perhaps, is that landmark Youngstown Steel & Tube Commander-in-Chief override power the North Korean regime still exists Co. v. Sawyer decision in which the Su- has created some consternation in

VerDate Aug 04 2004 02:03 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.044 S02PT1 S854 CONGRESSIONAL RECORD — SENATE February 2, 2005 legal circles. But neither Judge Now, I would like to discuss two dent agreeing with the January Bybee Gonzales nor the Justice Department memoranda Judge Gonzales requested memorandum. He states two positive has backed away from it. from the Department of Justice Office aspects of this decision. First, he finds The December 30, 2004, memo de- of Legal Counsel regarding U.S. treaty that suspending these treaty obliga- clares that it supersedes the August obligations in the war in Afghanistan. tions ‘‘preserves flexibility,’’ which, I 2002 Bybee memo in its entirety. How- Specifically, he asked if treaties form- would note, is not a legal conclusion. ever, the Office of Legal Counsel has ing part of the laws of armed conflict He then states that the war on ter- not yet clearly and specifically re- applied to conditions of detention and rorism is a new kind of war, a ‘‘new nounced the parts of the August 2002 procedures for trials of members of al- paradigm that renders obsolete Gene- memorandum concerning the Com- Qaida and the Taliban militia. He also va’s strict limitation on questioning of mander in Chief’s power stating: asked that if the Geneva Conventions enemy prisoners and renders quaint Consideration of the bounds of any such did apply in Afghanistan, would the some of its provisions.’’ A second posi- authority would be inconsistent with the Taliban, the military force of Afghani- tive aspect Judge Gonzales concluded President’s unequivocal directive that stan, qualify for prisoner-of-war status. is that since the Geneva Conventions United States persons not engage in torture. As I noted earlier, after World War II, do not apply to al-Qaida and the Judge Gonzales’s own public state- the United Nations drafted, and most Taliban, it ‘‘substantially reduces the ments have also urged a broad view of of the world, including the United threat of domestic criminal prosecu- the President’s power to conduct the States and Afghanistan, ratified the tion under the War Crimes Act.’’ war on terror. In a June 2004 speech be- Geneva Conventions. There are four Judge Gonzales then goes on to list fore the American Bar Association’s conventions. The third convention de- seven negative points about suspending Standing Committee on Law and Na- fines six classes of persons who, if cap- the War Crimes Act and the Geneva tional Security, Judge Gonzales stated: tured, should be considered as pris- Conventions in these circumstances, [The President] has not had to—as I indi- oners of war. The most protected class including: cated, in terms of what he has done or has under the Geneva Conventions is the The U.S. had abided by the Geneva not done, he has not exercised his Com- prisoner-of-war category. Civilians and Conventions since their creation in mander-in-Chief override, he has not deter- spies are protected as other classes in 1948. mined that torture is, in fact, necessary to the fourth Geneva Convention. Run- The U.S. could then not invoke the protect the national security of this country. ning through all of these conventions Geneva Conventions for U.S. forces But it seems that Judge Gonzales’s is common article 3, which prohibits: captured or mistreated in Afghanistan. statement is at least providing for a [O]utrages upon personal dignity, in par- The War Crimes Act could not be situation in which the President could ticular, humiliating and degrading treat- used against the enemy. make that determination, but under ment. The position would ‘‘likely provoke what constitutional principle I do not Most experts would agree this is the widespread condemnation among our know. minimum standard for the treatment allies and in some domestic quarters.’’ Furthermore, Judge Gonzales was of all detainees. In the future, other countries may unwilling to repudiate the Commander As I stated in the beginning of my re- look for ‘‘loopholes’’ to avoid com- in Chief override power when asked di- marks, September 11 did usher in a new plying with the Geneva Conventions. rectly about it during his confirmation era. It was reasonable for Judge The determination ‘‘could undermine hearing, saying that it was a hypo- Gonzales to wonder if perhaps a group U.S. military culture which emphasizes thetical question about a hypothetical such as al-Qaida was one of those cat- maintaining the highest standards of situation and he was ‘‘not prepared in egories of individuals or groups that conduct of combat, and could introduce this hearing to give you an answer to was not authorized automatic protec- an element of uncertainty in the status such an important question.’’ tion under the Geneva Convention. of adversaries.’’ Now, I always assumed the purpose of However, the Geneva Conventions Remarkably, after weighing the pros a hearing to confirm a Cabinet official maintain if the status of a captured in- and cons, Judge Gonzales found the was that he would answer, after prepa- dividual is in doubt, a competent tri- negatives of such a decision by the ration, important questions involving bunal must decide that status. Fur- President were ‘‘unpersuasive.’’ He his proposed responsibilities. Appar- thermore, the Geneva Conventions are concurred in the Justice Department’s ently, Judge Gonzales did not believe only one part of the law of armed con- decision that the Geneva Convention that was the role of the hearing. He flict. The Convention Against Torture did not apply to al-Qaida and the provided no answer. and the assurance of basic human Taliban. In addition, in responding to a fol- rights remain in place at all times. On January 26, 2002, Secretary of lowup question submitted by Senator On January 22, 2002, the Justice De- State Powell objected to the presen- LEAHY, Judge Gonzales refused to an- partment sent a memo to Judge tation and conclusions in the Gonzales swer in the affirmative that the Presi- Gonzales regarding treaty obligations. memo. Secretary Powell sent his own dent could not override the Convention Also signed by Jay Bybee, the Assist- memo to Gonzales, stating: ant Attorney General, the memo ana- Against Torture and any implementing I am concerned that the draft does not legislation and immunize the use of lyzed the War Crimes Act and the Ge- squarely present to the President the options torture under any circumstances, stat- neva Conventions and concluded: that are available to him. Nor does it iden- ing again: [N]either the federal War Crimes Act nor tify the significant pros and cons of each op- the Geneva Conventions would apply to the [T]he President does not intend to use any tion. detention conditions of al-Qaida prisoners. authority he might conceivably have to au- Secretary Powell lists as cons, in his We also conclude that the President has the thorize the use of torture. words: plenary constitutional powers to suspend our I guess it is one of those situations treaty obligations toward Afghanistan dur- It will reverse over a century of U.S. policy where torture is in the eye of the be- ing the period of conflict. and practice in supporting the Geneva Con- holder. Much of what seems to have A memo sent 2 weeks later concluded ventions and undermine the protections of happened to those crew members of the the law of war for our troops; it is a high that the Taliban did not qualify for cost in terms of negative international reac- Pueblo looks to us as torture, but I prisoner-of-war status. tion, with immediate adverse consequences guess it was not torture under the Now, legal experts can and have dis- for our conduct of foreign policy; it will un- Bybee memorandum. agreed about the conclusions reached dermine public support among critical allies, As Attorney General, Judge Gonzales by the Department of Justice. But making military cooperation more difficult will be responsible for enforcing the what I find deeply disturbing is the to sustain; and Europeans and others will laws of our land. But he himself cre- questionable judgment and cavalier at- likely have legal problems with extradition. ated an exception to these laws for the titude Judge Gonzales used outlining At a February 4, 2002, National Secu- President. He not only allowed torture his recommendations as White House rity Council meeting to decide this to be redefined, he also agreed to a legal counsel. issue and make recommendations to new, unchecked power for the Presi- On January 25, 2002, Judge Gonzales the President, the Department of dent that no President before ever had. drafted a memorandum to the Presi- State, the Department of Defense, and

VerDate Aug 04 2004 05:19 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.044 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S855 the Chairman of the Joint Chiefs of for confusion in the ranks. The Schles- The role of Judge Gonzales in the Staff were in agreement that all de- inger report found ‘‘Lieutenant Gen- production and approval of this memo tainees would get the treatment they eral Sanchez signed a memo author- is yet unknown. But given his partici- are or would be entitled to under the izing a dozen interrogation techniques pation in other decisions made about Geneva Conventions. beyond standard Army practice, in- the wars in Iraq and Afghanistan, it is Now Judge Gonzales was faced with cluding five beyond those applied at not irrational to assume that he had two opposing opinions: one, from the Guantanamo . . . using reasoning from some participation. Department of Justice, which offered a the president’s memo of February 7, The existence of ghost detainees is a new and untried approach to inter- 2002.’’ violation of the Geneva Convention. national law; and the other which was Another report, completed by Lieu- Someone is responsible for this deci- supported by decades of precedent and tenant General Jones, stated that con- sion and must be held accountable. If the entire military establishment, fusion over different standards for de- Judge Gonzales is confirmed as Attor- which was actually going to be on the tainee treatment and interrogation, ney General, will he pursue these types front lines of the conflict. Judge dictated by the administration and fol- of investigations and potential pros- Gonzales had to choose what he was lowed through by the Army, led to ‘‘a ecutions? going to advise the President. permissive and compromising climate Some of my colleagues will likely On February 7, 2002, President Bush, for soldiers.’’ state that opposition to Judge presumably following the legal advice In order to overcome these problems, Gonzales is partisan politics. But we of his counsel, issued a memorandum the Schlesinger report recommended are not alone in opposing this nomina- stating that the Geneva Conventions that ‘‘the United States should further tion. Twelve retired admirals and gen- did not apply to al-Qaida, and that define its policy applicable to both the erals sent a letter to the Judiciary while the Taliban were covered by the Department of Defense and other Gov- Committee expressing deep concerns Geneva Conventions, they did not qual- ernment agencies, on the categoriza- about the nomination of Judge ify for POW status. The fact that the tion and status of all detainees as it Gonzales. This letter includes the fol- third Geneva Convention requires a applies to various operations and theo- lowing statement: competent tribunal to determine this ries. It should define their status and During his tenure as White House Counsel, fact was ignored. Furthermore, Presi- treatment in a way consistent with Judge Gonzales appears to have played a sig- nificant role in shaping U.S. detention and dent Bush stated that the Geneva Con- U.S. jurisprudence and military doc- interrogation operations in Afghanistan, ventions’ common article 3, the min- trine and with the [United States] in- Iraq, Guantanamo Bay, and elsewhere. imum standard of human rights for terpretation of the Geneva Conven- Today it is clear that these operations have noncombatants, including prisoners, tions.’’ forced a greater animosity towards the did not apply to either al-Qaida or the It is a fact of life that there are al- [United States], undermined our intelligence Taliban. ways going to be abuses of human gathering efforts, and added to the risks fac- Mr. President, these questionable de- rights in time of war. But the abuses I ing our troops serving around the world. cisions of Judge Gonzales have pro- have discussed above, and that are These are the words of distinguished found effects. What he found still, unfortunately, coming to light, general officers who have served their unpersuasive was the most correct are systemic. I would argue that they country in uniform upwards of 30 or statement in his memo—that his ad- are the result of a corrosive trend more years. vice would, in his words, ‘‘undermine started by the President’s February 7 A group of 17 religious leaders and or- U.S. military culture which emphasizes memo, which was based on advice given ganizations also sent a letter to the Ju- maintaining the highest standards of by Judge Gonzales in consultation with diciary Committee expressing concern conduct in combat and could introduce the Department of Justice. This is not about Judge Gonzales’s nomination an element of uncertainty in the status the type of legal thinking and judg- and his role, in their words, in ‘‘sanc- of adversaries.’’ ment that I find suitable for the Office tioning torture.’’ Another group of In January 2004, the Pentagon an- of Attorney General. more than 200 religious leaders sent a nounced that they were investigating There is one final issue that needs to letter to Judge Gonzales stating: reports of abuse of prisoners in Iraq. In be mentioned. That is the deeply dis- We fear that your legal judgments have May 2004, the world was horrified when turbing issue of ‘‘ghost detainees.’’ The paved the way to torture and abuse. pictures of some of the abuses at Abu Bush administration has always main- Even his colleagues in the legal com- Ghraib prison became public. Now for tained that the Geneva Conventions munity have doubts. A group of 329 many months, DOD officials have are in force in Iraq. Article 49 of the prominent lawyers sent a letter to the maintained that such abuses were the fourth Geneva Convention prohibits Judiciary Committee stating that acts of a few depraved, low-ranking in- ‘‘individual or mass forcible transfers, Judge Gonzales’s purported role in de- dividuals, but reports of abuses in as well as deportations of protected ciding the treatment of detainees other prisons, such as Guantanamo and persons from occupied territory . . . re- ‘‘raises fundamental questions about the Adhamiya Palace in Baghdad, are gardless of their motive.’’ Judge Gonzales’s fidelity to the rule of coming to light. Yet an October 24, 2004, Washington law, about his views concerning the re- To date, the Pentagon has initiated Post story states that a confidential sponsibility of a government lawyer, several investigations into these March 19, 2004, Justice Department and about the role of the Department abuses. Only some of the investigations memorandum granted permission to of Justice.’’ have been completed, and they all con- the CIA to take Iraqis out of their Much has been made and much cern Abu Ghraib. However, they have country to be interrogated for a ‘‘brief should be made about Judge Gonzales’s startlingly similar findings. President but not indefinite period.’’ It also said rise from very humble beginnings. Bush’s February 7, 2002, memorandum the CIA can permanently remove ‘‘ille- There is no disputing this fact. There is set new policy that conflicted with gal aliens.’’ Other reports state that as no disputing that the nomination of a longstanding Army doctrine based on many as a dozen detainees were moved Latino to such an August position is a established laws of war, and this con- under this policy. significant, notable moment in our Na- flict caused confusion and ultimately a In addition, the third and fourth Ge- tion’s history. Indeed, there are many corrosion of standards. neva Conventions maintain that inter- people in my State who see their deep- The Schlesinger report, released on national organizations such as the Red est hopes and dreams for their children August 24, 2004, was written by an inde- Cross must have access to prisoners. and grandchildren in the story of Judge pendent panel chaired by the former Two generals investigating the abuses Gonzales’s rise. Such a sense of pride is Secretary of Defense, Jim Schlesinger, of Abu Ghraib, Major General Taguba no small thing. But our duty as Sen- to review DOD detention operations. In and General Kern, noted in their re- ators is to advise and consent on the fact, the report was essentially com- ports that the U.S. hid prisoners from fitness and skills of nominees. And missioned by the present Secretary of Red Cross teams. General Kern stated there are few positions in the Cabinet Defense, Mr. Rumsfeld. Dr. Schlesinger that the number of ghost detainees ‘‘is that are as sensitive and important as pointedly blamed the administration in the dozens, perhaps up to 100.’’ that of Attorney General.

VerDate Aug 04 2004 01:15 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.047 S02PT1 S856 CONGRESSIONAL RECORD — SENATE February 2, 2005 As heartening as Judge Gonzales’s tably, however, Mr. Gonzales’s failure to Mr. Gonzales has claimed, during ques- personal story is, like the congres- properly address concerns with his past tioning before the Committee, that the sional Hispanic caucus and a number of record and clearly explain his positions on memoranda were only ‘‘summaries’’ of the civil rights groups such as the Mexican critical civil and human rights issues com- death penalty cases he handled for Governor pels us to urge the Senate to reject his con- Bush, and that they were typically provided American Legal Defense Fund, I be- firmation. at the end of a ‘‘rolling series of discussions’’ lieve that Judge Gonzales has left too Earlier this month, LCCR sent the Senate about each case. Yet to date, Mr. Gonzales many important questions unanswered. Judiciary Committee a letter, signed by has produced no tangible evidence of such Indeed, as The congressional His- more than four dozen national civil and discussions or any other communications panic caucus has pointed out: human rights leaders, that expressed numer- with the Governor about any death penalty [T]he Latino community continues to lack ous concerns with Mr. Gonzales’s record and case, leaving serious and very troubling clear information about how the nominee, as urged close scrutiny. Despite a day-long questions remaining about whether, under Attorney General, would influence policies hearing before the Committee, the submis- Mr. Gonzales’s tenure, justice was properly on such important topics as the Voting sion of written questions by Committee administered in every case. Rights Act, affirmative action, protections members, and numerous inquiries by the Mr. Gonzales’s responses to questions for persons of limited English proficiency, press and the public, Mr. Gonzales and the about how he would handle death penalty due process rights of immigrants, and the Administration have not yet provided the cases as Attorney General, if confirmed, also role of local police in enforcing federal im- Senate either with the critical information cause significant concern. When asked about migration laws. on his record or with the commitment to ac- a recent Justice Department report that re- The right to vote, protection from countability and transparency that are pre- vealed striking racial and ethnic disparities requisites to the Senate exercising its con- in the imposition of the federal death pen- discrimination, and assistance for stitutional duty of advise and consent on alty, Mr. Gonzales expressed only a ‘‘vague those who have yet to master the this nomination. We remain unconvinced knowledge’’ of the problem. While he stated English language are issues of great that Mr. Gonzales would independently en- a willingness to examine the application of importance to Latinos in my State, force the law, rather than continue to simply the death penalty if he were convinced that and they deserve real answers. Despite rationalize it, as he did while serving then- such disparities existed, he did not commit Judge Gonzales’s superb academic cre- Governor George W. Bush. to address already-documented concerns at dentials and his record of achievement, MR. GONZALES HAS NOT ADDRESSED SERIOUS the federal level. In addition, while Mr. I have too many concerns about his de- CONCERNS INVOLVING THE USE OF THE DEATH Gonzales was unfamiliar with Attorney Gen- eral Ashcroft’s policy of overriding decisions cisions made on legal matters, particu- PENALTY The Leadership Conference on Civil Rights by federal prosecutors to not seek the death larly in his role of the past 4 years as penalty, which in itself is not indicative of a White House Counsel, to vote for his opposes the death penalty under all cir- cumstances, but recognizes that it is the law problem, he failed to commit to formally re- confirmation. of the land in many states and at the federal view the practice, including its potential for The genius of our Founding Fathers level. As the ultimate—and the only irre- racial disparities. In sum, as evidenced by both his past was not to allow power to be con- versible—sanction for criminal conduct, cap- record and his answers to questions about centrated in the hands of a few. They ital punishment must never be administered what he would do if confirmed as Attorney were particularly concerned about a if a government has not exercised every rea- General, Mr. Gonzales has clearly failed to sonable precaution at its disposal to avoid concentration of power in the Presi- assure the Senate and ultimately the Amer- putting an innocent person to death. A fail- dent. Although they made the Presi- ican people that he will administer death ure to ensure that every death penalty case dent the Chief Executive Officer of our penalty cases fairly and in accordance with receives fair and balanced treatment can Government and the Commander in the law. easily lead to severe miscarriages of justice. Chief, the Founding Fathers con- As General Counsel to then-Governor MR. GONZALES HAS FAILED TO FULLY ANSWER strained the President through the George W. Bush from 1995 to 1997, Mr. IMPORTANT QUESTIONS ABOUT CIVIL RIGHTS very structure of our Government, Gonzales advised the Governor on pending AND LIBERTIES through both law and treaty. The At- clemency petitions in death penalty cases. In his confirmation hearing, Mr. Gonzales torney General has a duty not just to While Governor Bush exercised ultimate au- testified that civil rights enforcement would serve the President but, also and ulti- thority to grant or deny a clemency petition, be among his top priorities. Yet while some mately, to support, protect, and defend his decision in each case was based on the in- of his responses to questions reflect some the constitutional commitment to a formation he received from Mr. Gonzales. It level of consultation with the Justice De- was Mr. Gonzales’s legal responsibility to partment (see response #5 to Senator Biden, system of checks and balances. I do not present the Governor with a full and bal- p. 2; response #3 to Senator Durbin, p. 20), we feel comfortable with Judge Gonzales’s anced summary of each case, including any are very troubled that his responses to ques- ability to do this. and all significant mitigating factors. tions on many extremely important civil After studying his record, I do not To date, the only known physical records rights issues were vague and were neither believe that Judge Gonzales has dem- that document the information that Mr. well-informed nor well-developed. For exam- onstrated the judgment necessary to Gonzales provided to Mr. Bush regarding ple: perform the duties of the highest law clemency petitions are brief memoranda, In response to questions about Title VI of enforcement officer of our land. ranging from one-and-a-half to seven pages the Civil Rights Act, which prohibits racial Mr. President, I ask unanimous con- in length. Most of these memoranda were and gender discrimination in federally fund- dated either the day before or the day of a ed programs and activities, Mr. Gonzales sent to have printed in the RECORD a scheduled execution. failed to commit to the enforcement of the number of articles bearing on Judge The clemency memoranda are, in many Title VI regulations, as distinguished from Gonzales’s role in torture policies, as cases, extremely troubling. A number of the Title VI statute itself. This is troubling well as recent statements by the Lead- them omit evidence that was presented in given the longstanding recognition that the ership Conference on Human Rights clemency petitions such as outstanding regulations have a scope and application and the Center for Constitutional claims of innocence, allegations that a jury that extend beyond the limits of the statute rights opposing this nomination. had failed to consider material evidence, itself. Because the Supreme Court in There being no objection, the mate- signs of mental impairment, and personal Sandoval prohibited individuals from bring- mitigating factors such as severe childhood rial was ordered to be printed in the ing private actions to enforce the Title VI abuse. For example, in the case of Carl John- regulations, the government was left as the RECORD, as follows: son, the clemency memorandum prepared by only entity with the capacity to do so. Im- LCCR OPPOSES GONZALES CONFIRMATION: Mr. Gonzales does not even refer to the fact portant protections against discrimination VOTE ‘‘NO’’ FEBRUARY 2, 2005 that Mr. Johnson had claimed he received in- in the areas of language rights, educational Dear Senator: On behalf of the Leadership effective assistance of counsel because his discrimination, environmental justice, and Conference on Civil Rights (LCCR), the na- lawyer slept through portions of his trial. In others will be entirely lost unless the Ad- tion’s oldest, largest and most diverse civil the case of Terry Washington, a mentally re- ministration commits itself to bring enforce- and human rights coalition, we write to ex- tarded 33-year-old, Mr. Gonzales barely men- ment actions. However, Mr. Gonzales’s fail- press our opposition to the confirmation of tioned that Mr. Washington’s limited mental ure to make such a commitment suggests a White House Counsel Alberto R. Gonzales as capacity (and the failure of his counsel to substantial narrowing of the historic reach United States Attorney General. The Leader- raise it during trial) formed the central basis of one of our fundamental civil rights laws. ship Conference recognizes the historic sig- of his thirty-page clemency petition. In- Mr. Gonzales responded to questions by nificance of Mr. Gonzales’s appointment as stead, Mr. Gonzales referred the issue of Mr. Senator Kennedy about mandatory min- the first Hispanic American to serve as At- Washington’s mental capacity only as a imum sentencing by stating simply that torney General, and so the action we urge piece of ‘‘conflicting information’’ about Mr. ‘‘mandatory minimums provide a clear de- today is not undertaken lightly. Regret- Washington’s background. terrent and have been effective.’’ His answers

VerDate Aug 04 2004 01:15 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.049 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S857 on this topic ignore evidence, including gations in this nomination without full dis- national laws dealing with the use of torture statements from many current and former closure and review of these materials. is overwhelming. As White House counsel, he judges such as Supreme Court Justice An- CONCLUSION has consistently treated the law as an incon- thony Kennedy, that mandatory minimum venient obstacle to be ignored whenever it In sum, the record before you regarding sentences, by depriving judges of their tradi- conflicted with the wishes of the President. the Alberto Gonzales nomination is woefully tional discretion to tailor a sentence based Mr. Gonzales is the author of a leaked memo, incomplete, at best, in spite of repeated ef- on the culpability of the defendant and the dated January 25, 2002, that justified the sus- forts by the Committee and other stake- seriousness of the crime, render our nation’s pension of the Geneva Conventions in the holders to obtain all relevant information. criminal justice system unjust, unfair, and war in Afghanistan, calling these universally At worst, it raises profound questions about counter-productive. And, as Justice Kennedy recognized international laws ‘‘obsolete’’ and Mr. Gonzales’ commitment to civil and also observed, mandatory minimum sen- ‘‘quaint.’’ human rights and the rule of law. tencing has its most disproportionate impact In the same year, Mr. Gonzales requested a The record is very troubling because no- memo from the Justice Department, inquir- on communities of color. where is the Senate’s constitutional role in Mr. Gonzales was asked about the dis- ing as to whether the Bush Administration reviewing a presidential cabinet nominee parity in sentences for defendants convicted could evade current treaties and laws in its more important than in the case of a pro- of crack vs. powder cocaine offenses. Under treatment of Al Qaeda and Taliban detainees spective Attorney General. It is even more current law, draconian statutory and guide- without being open to prosecution for war troubling because Mr. Gonzales, in response line penalties are triggered by possession or crimes. Moreover, he drafted the original to questions by Chairman Specter and other sale of a small amount of crack cocaine—one military commission order signed by Presi- members of the Judiciary Committee during hundred times less than the amount of pow- dent Bush on November 14, 2001, which would his recent confirmation hearing, had repeat- der cocaine that triggers the same penalties. have allowed suspects apprehended in the edly pledged far greater cooperation with the Because African Americans almost exclu- global campaign against terrorism to be Committee than his predecessor had ex- sively have been targeted by federal authori- charged, tried, and even executed without tended. Mr. Gonzales and the Administration ties for crack cocaine offenses, they and the most basic due process protections. have utterly failed to deliver on this prom- other racial and ethnic minorities serve far Gonzales also argued that U.S. citizens could ised level of cooperation, leaving numerous longer prison sentences for drug dealing than be held incommunicado and stripped of the questions remaining about his suitability for whites convicted of similar offenses involv- right to counsel and the right to challenge the position of Attorney General and about ing powder cocaine. The U.S. Sentencing their detention in a court of law for as long the impact his tenure would have on civil Commission has twice concluded that there as the President deemed necessary. [CCR and human rights in this country and else- is no empirical basis for the 100 to 1 ratio, successfully challenged this position in the where. For this reason, we must urge you to but it persists. Yet after being presented milestone case Rasul v. Bush, where the Su- not confirm Mr. Gonzales. Please note that with this information in written questions preme Court ruled that the detainees at LCCR intends to include how Senators vote following his hearing, Mr. Gonzales failed to Guantanamo have a right to challenge their on this issue in the upcoming 109th Congress even acknowledge the racial disparities that detention in U.S. courts.] LCCR Voting Record. Furthermore, Mr. Gonzales and his col- the current policies have produced. Thank you for your consideration. If you leagues approved the use of dogs, hooding, Mr. Gonzales played a critical role in shap- have any questions, please feel free to con- and extreme sensory deprivation, all forbid- ing the administration’s ‘‘enemy combat- tact LCCR Deputy Director Nancy Zirkin at den by Geneva Convention and International ants’’ policy, which places individuals be- (202) 263–2880, or LCCR Policy Analyst Rob Covenant Against Torture. They redefined yond the reach of the law and subjects them Randhava at (202) 466–6058. torture to limit it to only those actions that to indefinite, incommunicado detention. He Sincerely, lead to organ failure, death or permanent publicly argued that the President’s author- DR. DOROTHY I. HEIGHT, psychological damage. They justified this re- ity was constrained not so much by the rule Chairperson. laxed definition of torture on the grounds of law but ‘‘as a matter of prudence and pol- WADE HENDERSON, that in a time of war, interrogators need to icy’’—a view so radical that it was eventu- Executive Director. extract information from prisoners quickly ally rejected by an 8–1 majority of the U.S. to save American lives. However, it has long Supreme Court. In his responses to questions CCR OPPOSES THE NOMINATION OF ALBERTO been established by experts in the field that about this policy, following the ruling, Mr. GONZALES torture leads to false confessions and bad in- Gonzales has still not made it clear that he, telligence. None of this seems to have as Attorney General, would be fully com- SYNOPSIS mattered to Mr. Gonzales and the higher ups mitted to respecting the time-honored and ‘‘The best way for the American people to in the White House. Indeed, there is little vital role of judicial review of executive ac- send a message to the Bush administration doubt that the memos written and commis- tions—a matter of grave concern to citizens and the world that ‘we the people’ of the sioned by Gonzales paved the way for the and noncitizens alike. United States do not condone torture is to mobilize to reject the nomination of Alberto abuse and torture of detainees at Guanta- MR. GONZALES HAS FAILED TO CLARIFY HIS namo Bay, Abu Ghraib, Bagram Air Force ROLE IN POLICIES REGARDING TORTURE, IN- Gonzales.’’—Ron Daniels, Executive Direc- tor, the Center for Constitutional Rights base, and elsewhere—many of whom are rep- TERROGATION AND DETENTION resented by the Center for Constitutional As White House Counsel, Mr. Gonzales DESCRIPTION AND STATUS Rights. oversaw the development of detention, inter- The Center for Constitutional Rights The verdict is clear; there is no question rogation, and torture policies for handling (CCR) strongly opposes the nomination of but that there is a causal link between the prisoners in Afghanistan, Iraq, and else- White House Counsel Alberto Gonzales for memoranda and other directives devised by where. He wrote a 2002 memorandum dispar- the office of Attorney General of the United Mr. Gonzales and the terrible infractions aging the Geneva Conventions and arguing States. While we applaud the effort of recent committed by officers and functionaries in that they do not bind the United States in Presidents to achieve greater diversity in the field. The images and information about the war in Afghanistan. He urged the Presi- their Cabinets and would be delighted to see the horrific acts committed against pris- dent to reject warnings by U.S. military the first person of Latino descent be elevated oners at Abu Ghraib, (80% of were innocent leaders that such policies would undermine to this high office, the issue at hand is not of any crimes according to the International respect for the law in the military, with cat- about diversity, it is about the conduct of Red Cross), has severely damaged the reputa- astrophic results. He requested and reviewed someone who has fundamentally aided and tion of the U.S. in the world as a standard legal opinions that radically altered the defi- abetted efforts by those in the White House bearer for justice and the rule of law. The ar- nition of torture and claimed U.S. officials to disregard the rule of law. rogance that abounds in the White House is were not bound by laws prohibiting torture. We believe that at the behest of President such that they seem impervious to world He even made the radical suggestion that the Bush, Mr. Gonzales knowingly and willingly opinion. But ‘‘we the people’’ have the oppor- President has the power to disregard Con- provided counsel and advocated policies cal- tunity, obligation and power to let the Presi- gressional enactments. Changes made as a culated to evade or circumvent domestic and dent and the world know that we will not result to long-established U.S. policy and international laws prohibiting the use of tor- tolerate intolerable acts committed in our practices appear to have paved the way for ture to extract information from soldiers or name! the recent horrific incidents at Abu Ghraib detainees held in U.S. custody. We believe Many organizations and members of Con- and Guantanamo. that the person entrusted to be the highest gress are content to simply ask ‘‘tough ques- The Administration continues to withhold law enforcement officer in our country must tions’’ of Mr. Gonzales but not oppose his critical documents that could show the ex- not be someone who has shown such blatant nomination. At the Center for Constitutional tent of Mr. Gonzales’s involvement in setting disdain for the rule of law as Chief Counsel Rights, we firmly believe that a man who the above policies. We believe that all rel- to the President of the United States. To helped destroy our nation’s moral standing evant documents should be disclosed to the confirm Mr. Gonzales would send the wrong in the eyes of the world, endangered our American people, and that the President signal to the nation and the world. It would troops and dismantled centuries of carefully should clarify or waive any purported claims be tantamount to condoning torture. developed international standards of law of privilege. We strongly believe that the The evidence of Mr. Gonzales’s efforts to must not be rewarded with a promotion. Senate cannot meet its constitutional obli- evade or circumvent domestic and inter- Tough questions are not enough. We have a

VerDate Aug 04 2004 01:15 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\A02FE6.017 S02PT1 S858 CONGRESSIONAL RECORD — SENATE February 2, 2005 duty to save the soul of our country. Accord- The 1949 treaty notes that a violation of fice of Legal Counsel and its own general ingly, we call upon Americans of all political this particular provision constitutes a counsel’s office to transfer, interrogate and persuasions who oppose torture and are ‘‘grave breach’’ of the accord, and thus a detain individuals suspected of terrorist ac- eager to restore our nation’s good name in ‘‘war crime’’ under U.S. federal law, accord- tivities at a series of undisclosed locations the world to join in a massive mobilization ing to a footnote in the Justice Department around the world. to stop the confirmation of Alberto Gonzales draft. ‘‘For these reasons,’’ the footnote According to current and former agency of- as Attorney General of the United States. reads, ‘‘we recommend that any con- ficials, the CIA has a rendition policy that MORE ON GONZALES: templated relocations of ‘protected persons’ has permitted the agency to transfer an un- known number of suspected terrorists cap- According to Newsweek, Mr. Gonzales con- from Iraq to facilitate interrogation be care- tured in one country into the hands of secu- vened a series of meetings with Defense De- fully evaluated for compliance with Article rity services in other countries whose record partment General Counsel William Hayes, 49 on a case by case basis.’’ It says that even of human rights abuse is well documented. Vice Presidential Counsel David Addington, persons removed from Iraq retain the trea- ty’s protections, which would include hu- These individuals, as well as those at CIA de- and counsel from the CIA and the Justice tention facilities, have no access to any rec- Department, where they discussed specific mane treatment and access to international monitors. ognized legal process or rights. torture techniques they deemed acceptable The scandal at Abu Ghraib, and the inves- for use against Al Qaeda leadership, includ- During the war in Afghanistan, the admin- istration ruled that al Qaeda fighters were tigations and congressional hearings that ing mock burial, ‘‘water boarding’’—where followed, forced the disclosure of the Penta- the victim is made to feel that they are not considered ‘‘protected persons’’ under the convention. Many of them were trans- gon’s behind-closed-doors debate and classi- drowning—and the threat of more brutal in- fied rules for detentions and interrogations terrogations at the hands of other nations. ferred out of the country to the naval base in Guantanamo Bay, Cuba, and elsewhere for at Guantanamo Bay and in Afghanistan and Indeed, the latter, a practice known as ‘‘ex- Iraq. Senior defense leaders have repeatedly traordinary rendition’’ has sent many sus- interrogations. By contrast, the U.S. Govern- ment deems former members of Saddam Hus- been called to explain and defend their poli- pects to countries like Egypt, Jordan and cies before Congress. But the CIA’s policies Syria, previously far more experienced in the sein’s Baath Party and military, as well as insurgents and other civilians in Iraq, to be and practices remain shrouded in secrecy. techniques of torture than the U.S. The only public account of CIA detainee The Center for Constitutional Rights has protected by the Geneva Conventions. International law experts contacted for treatment comes from soldier testimony and seen the effects of Mr. Gonzales’s policies in Defense Department investigations of mili- this article described the legal reasoning all too much detail. We represent many of tary conduct. For instance, Army Maj. Gen. contained in the Justice Department memo the men, women and children held and tor- Antonio M. Taguba’s report on Abu Ghraib tured at the hands of U.S. personnel at Abu as unconventional and disturbing. ‘‘The overall thrust of the Convention is to criticized the CIA practice of maintaining Ghraib, Guantanamo Bay, and elsewhere. In keep from moving people out of the country ‘‘ghost detainees’’—prisoners who were not addition, the U.S. has an unknown number of and out of the protection of the Conven- officially registered and were moved around ghost detainees, hidden from the Inter- inside the prison to hide them from Red tion,’’ said former senior military attorney national Red Cross, at spots around the Cross teams. Taguba called the practice ‘‘de- Scott Silliman, executive director of Duke globe: we can only imagine the treatment ceptive, contrary to Army doctrine and in University’s Center on Law, Ethics and Na- they are receiving. violation of international law.’’ In their scathing critique of Mr. Gonzales’s tional Security. ‘‘The memorandum seeks to Gen. Paul J. Kern, who oversaw another writings, The Washington Post linked him create a legal regime justifying conduct that Army inquiry, told Congress that the num- directly to the tortures at Abu Ghraib and the international community clearly con- ber of CIA ghost detainees ‘‘is in the dozens, called his legal positions ‘‘damaging and er- siders in violation of international law and to perhaps up to 100.’’ roneous.’’ Making Alberto Gonzales the At- the Convention.’’ Silliman reviewed the doc- The March 19, 2004, Justice Department torney General of the United States would be ument at The Post’s request. memo by Goldsmith deals with a previously The CIA, Justice Department and the au- a travesty. It would mean taking one of the unknown class of people—those removed thor of the draft opinion, Jack L. Goldsmith, legal architects of an illegal and immoral from Iraq. former director of the Office of Legal Coun- policy and installing him as the official who It is not clear why the CIA would feel the sel, declined to comment for this article. is charged with protecting our constitutional need to remove detainees from Iraq for inter- CIA officials have not disclosed the identi- rights. rogation. A U.S. Government official who ties or locations of its Iraq detainees to con- has been briefed on the CIA’s detention prac- [From the Washington Post, Oct. 24, 2004] gressional oversight committees, the De- tices said some detainees are probably taken fense Department or CIA investigators who to other countries because ‘‘that’s where the MEMO LETS CIA TAKE DETAINEES OUT OF are reviewing detention policy, according to IRAQ agency has the people, expertise and interro- two informed U.S. Government officials and gation facilities, where their people and pro- (By Dana Priest) a confidential e-mail on the subject shown to grams are in place.’’ At the request of the CIA, the Justice De- The Washington Post. The origin of the Justice Department partment drafted a confidential memo that White House officials disputed the notion memo is directly related to the only publicly authorizes the agency to transfer detainees that Goldsmith’s interpretation of the treaty acknowledged ghost detainee, Hiwa Abdul out of Iraq for iterrogation—a practice that was unusual, although they did not explain Rahman Rashul, nicknamed ‘‘Triple X’’ by international legal specialists say con- why. ‘‘The Geneva Conventions are applica- CIA and military officials. travenes the Geneva Conventions. ble to the conflict in Iraq, and our policy is Rashul, a suspected member of the Iraqi One intelligence official familiar with the to comply with the Geneva Conventions,’’ Al-Ansar terrorist group, was captured by operation said the CIA has used the March White House spokesman Sean McCormick Kurdish soldiers in June or July of 2003 and draft memo as legal support for secretly said. turned over to the CIA, which whisked him transporting as many as a dozen detainees The Office of Legal Counsel also wrote the to Afghanistan for interrogation. out of Iraq in the last six months. The agen- Aug. 1, 2002, memo on torture that advised In October, White House counsel Alberto cy has concealed the detainees from the the CIA and White House that torturing al R. Gonzales asked the Office of Legal Coun- International Committee of the Red Cross Qaeda terrorists in captivity abroad ‘‘may be sel to write an opinion on ‘‘protected per- and other authorities, the official said. justified,’’ and that international laws sons’’ in Iraq and rule on the status of The draft opinion, written by the Justice against torture ‘‘may be unconstitutional if Rashul, according to another U.S. Govern- Department’s Office of Legal Counsel and applied to interrogations’’ conducted in the ment official involved in the deliberations. dated March 19,2004, refers to both Iraqi citi- war on terrorism. President Bush’s aides re- Goldsmith, then head of the office, ruled zens and foreigners in Iraq, who the memo pudiated that memo once it became public that Rashul was a ‘‘protected person’’ under says are protected by the treaty. It permits this June. the Fourth Geneva Convention and therefore the CIA to take Iraqis out of the country to The Office of Legal Counsel writes legal had to be brought back to Iraq, several intel- be interrogated for a ‘‘brief but not indefi- opinions considered binding on federal agen- ligence and defense officials said. nite period.’’ It also says the CIA can perma- cies and departments. The March 19 docu- The CIA was not happy with the decision, nently remove persons deemed to be ‘‘illegal ment obtained by The Post is stamped according to two intelligence officials. It aliens’’ under ‘‘local immigration law.’’ ‘‘draft’’ and was not finalized, said one U.S. promptly brought Rashul back and sus- Some specialists in international law say official involved in the legal deliberations. pended any other transfers out of the coun- the opinion amounts to a reinterpretation of However, the memo was sent to the general try. one of the most basic rights of Article 49 of counsels at the National Security Council, At the same time, when transferring the Fourth Geneva Convention, which pro- the CIA and the departments of State and Rashul back to Iraq, then-CIA Director tects civilians during wartime and occupa- Defense. George J. Tenet asked Defense Secretary tion, including insurgents who were not part ‘‘The memo was a green light,’’ an intel- Donald H. Rumsfeld not to give Rashul a of Iraq’s military. ligence official said. ‘‘the CIA used the memo prisoner number and to hide him from Inter- The treaty prohibits ‘‘[i]ndividual or mass to remove other people from Iraq.’’ national Red Cross officials, according to an forcible transfers, as well as deportations of Since the Sept. 11, 2001, attacks, the CIA account provided by Rumsfeld during a June protected persons from occupied territory has used broad authority granted in a series 17 Pentagon news conference. Rumsfeld com- . . . regardless of their motive.’’ of legal opinions and guidance from the Of- plied.

VerDate Aug 04 2004 05:27 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\A02FE6.018 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S859 As a ‘‘ghost detainee,’’ Rashul became lost one of the first two minority lawyers even for the children of wealthy or in the prison system for seven months. to become a partner in that firm. middle-class families. It is also not Rumsfeld did not fully explain the reason He also took time from his private easy to become a partner in a law firm he had complied with Tenet’s request or practice to teach law classes at the or to serve in high-ranking Govern- under what legal authority he could have University of Houston. Judge Gonzales ment positions, no matter what your kept Rashul hidden for so long. ‘‘We know from our knowledge that [Tenet] has the au- then left behind a well-paying private background happens to be. But Judge thority to do this,’’ he said. practice to become general counsel to Gonzales overcame all the hurdles in Rashul, defense and intelligence officials President Bush when he was Governor his past and achieved what few have noted, had not once been interrogated since of Texas. As general counsel, Judge achieved. he was returned to Iraq. His current status is Gonzales earned the trust and con- I hope that his story is noticed by all unknown. fidence of the Governor, who then ap- who want to achieve great things in In the one-page October 2003 interim ruling pointed him secretary of state. After our country. In America, opportunities that directed Rashul’s return, Goldsmith serving as secretary of state, Judge are boundless, and Alberto Gonzales is also created a new category of persons in Gonzales was appointed to the supreme proof of that. Iraq whom he said did not qualify for protec- court of the great State of Texas. He I am glad to support Judge tion under the Geneva Conventions. They are Gonzales’s nomination to be Attorney non-Iraqis who are not members of the heard cases on that court until Gov- former Baath Party and who went to Iraq ernor Bush was elected President and General. I may not agree with him on after the invasion. asked Judge Gonzales to serve him as every issue in the future, but I am con- After Goldsmith’s ruling, the CIA and White House Counsel, one of the most fident that President Bush has chosen Gonzales asked the Office of Legal Counsel important legal jobs in this Nation. an honorable and distinguished lawyer for a more complete legal opinion on ‘‘pro- That job as White House Counsel be- and public servant whom he can trust tected persons’’ in Iraq and on the legality of came even more important after Sep- to be our Nation’s top law enforcement transferring people out of Iraq for interroga- tember 11 when our Government had to officer. tion. ‘‘That case started the CIA yammering This is a critical and opportunistic to Justice to get a better memo,’’ said one rethink our approach to fighting ter- rorism and terrorists and securing the time for America. We need the best of intelligence officer familiar with the inter- the best to serve in this Cabinet, par- agency discussion. homeland. Michael Byers, a professor and inter- It is clear that Judge Gonzales has ticularly at the Attorney General level national law expert at the University of strong experience in all legal areas. As as the chief law enforcement officer in British Columbia, said that creating a legal a practicing lawyer, he learned the pri- these United States. Judge Alberto justification for removing protected persons vate side of the justice system and Gonzales is that person. I urge my col- from Iraq ‘‘is extraordinarily disturbing.’’ what it was like to deal with the Gov- leagues to support his nomination. ‘‘What they are doing is interpreting an ex- I yield the floor, and I suggest the ab- ernment on a regular basis. As sec- ception into an all-encompassing right, in sence of a quorum. retary of state and general counsel to one of the most fundamental treaties in his- The PRESIDING OFFICER (Mr. EN- tory,’’ Byers said. The Geneva Convention the Governor of Texas, he received ex- SIGN). The clerk will call the roll. ‘‘is as close as you get to protecting human ecutive experience and learned man- The legislative clerk proceeded to rights in times of chaos. There’s no ambi- agement skills that will serve him well call the roll. guity here.’’ as head of the Department of Justice. Mr. HATCH. Mr. President, I ask Mr. REED. I suggest the absence of a As a judge, he learned the workings of unanimous consent that the order for quorum. the third branch of the Government the quorum call be rescinded. The PRESIDING OFFICER. The and what the Department will have to The PRESIDING OFFICER. Without clerk will call the roll. confront when dealing with the courts. objection, it is so ordered. The legislative clerk proceeded to Finally, as White House Counsel, Mr. HATCH. Mr. President, I have call the roll. Judge Gonzales participated in the cre- been listening closely to my col- Mr. BUNNING. Mr. President, I ask ation of our strategies for fighting ter- leagues, and I fear that sometimes in unanimous consent that the order for rorism and terrorists at home and this debate we may just be missing the the quorum call be rescinded. abroad, and he will carry that vision forest for the trees. By focusing almost The PRESIDING OFFICER. Without and experience into our Nation’s top exclusively on allegations regarding objection, it is so ordered. law enforcement job. the Convention Against Torture, which Mr. BUNNING. Mr. President, I rise This is the unique part of the Judge is an important issue, to be sure, Judge to support the nomination of Judge Alberto Gonzales story. It is not just Gonzales’s critics seem to have forgot- Alberto Gonzales to be Attorney Gen- his legal experience and public service; ten that we are debating a nomination eral of the United States. it is also a story of hard work and liv- for the position of Attorney General of Judge Gonzales is a dedicated public ing the American dream. the United States of America. Judge Gonzales is the first Hispanic servant and a legal professional who One would think, for example, that nominated to be Attorney General. has earned the trust of the President, all of my colleagues would join me in This is noteworthy and a great accom- being supportive of the prospect of our and he deserves to be confirmed. I have plishment, and it reveals not just the Nation’s civil rights laws being en- worked personally with Judge Gonzales greatness of Judge Gonzales’s life, but forced by a citizen who grew up on the since he joined the administration, and it also reveals the opportunities our wrong side of the tracks and has I have a great deal of respect for him. country provides to those willing to worked his way up the hard way. I am In 2001 and 2002, Kentucky had an ur- work hard and dare to achieve. one of many who is pleased at the pros- gent need to fill several district court He was raised as one of eight children pect of Judge Gonzales enforcing our vacancies in the eastern district of of migrant workers who barely spoke civil rights laws. Kentucky, and Judge Gonzales was English. His parents did not graduate It was not that long ago that we did very helpful and worked with Senator from high school. He began working at not even have a Civil Rights Division MCCONNELL and myself to quickly fill age 12 to help the family get by. at Justice. Today, the public servants those vacancies. This ensured that our College seemed like a distant dream there do very important work. Whether courts in Kentucky continued to func- in his youth, so he joined the Air they are working to guarantee the tion and serve the people well. Force. He was then accepted to the Air right to vote, protecting the freedom of Judge Gonzales has an impressive Force Academy and then moved to worship, or preventing human traf- and broad legal and public service Rice University. After that came law ficking, the 21st century version of background. After a distinguished aca- school and his distinguished career. slavery, these career lawyers are deter- demic career, including a degree from The fact that young Alberto was able mined to extend the principle of equal- Harvard Law School, Judge Gonzales to raise himself out of such underprivi- ity under the law to all Americans re- joined one of Houston’s most reputable leged beginnings is a testament to his gardless of race, creed, or color. law firms. His hard work and intel- hard work and values he learned as a Alberto Gonzales shares that com- ligence helped him quickly to become a child. mitment to the principle of equal jus- partner in that law firm. That feat is It is not easy to graduate from one of tice under the law. Instead of launch- even more impressive because he was America’s most admired law schools, ing unfounded accusations that Judge

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NLRB. attempt to hold Judge Gonzales re- sity of experience that he would bring The Court held that employees who sponsible for a memo that he did not to this position is remarkable. His per- present false documents to their em- write, prepared by an office he did not sonal story is a testament to the op- ployers in order to establish employ- run, in a Department in which he did portunity afforded in this great coun- ment eligibility are not entitled to the not work, that provided legal advice try by the guarantees of freedom and remedy of backpay when their employ- that President Bush did not follow. equality. ers violate Federal labor law. Yet That argument is a very thin brew. But Through his role in the judicial Judge Gonzales insisted that the deci- some of my friends across the aisle are nominations process as White House sion: still throwing political spaghetti at the Counsel, Judge Gonzales has made it . . . will not prevent the administration wall hoping something will stick. clear that diversity in Government is a from fully enforcing core labor protections The senior Senator from New York, desirable goal. I worked with him for 4 against employers, regardless of the status for example, wants to drag Judge years on judicial nominations, so I of their employees. Gonzales into our internal Senate de- know firsthand of his thoughts and ac- When he made this statement at a bate over filibusters of majority-sup- tions on bringing diversity to our Fed- meeting of MALDEF, the Mexican ported judicial nominations. In the Ju- eral bench. When working on behalf of American Legal Defense and Education diciary Committee hearing on January the American people, a personal appre- Fund, I am told that one could sense 6 and the markup on January 26 and ciation of their everyday trials and the passion of a person with a genuine again on this floor yesterday, the dis- dreams can only make one a better appreciation of the noble sacrifice and tinguished Senator from New York has public servant. For that reason, I sup- the hard labor of the working poor. demanded to know Judge Gonzales’s pose, he explained at the National His- Judge Gonzales is going to lead the opinion on whether these filibusters panic Leadership Summit, that we Justice Department. are constitutional. must ‘‘go the extra mile’’ when seeking His personal commitment to justice Senator SCHUMER says the answer diversity in public service. Certainly is deeply rooted. I know the time pres- will ‘‘weigh heavily in my decision this administration has been doing sures that attorneys face and yet Judge whether to support his confirmation.’’ that, and he has been a pivotal part of Gonzales has never let the demands of Judge Gonzales’s answer has been clear that. his profession or his career stand in the and consistent, and it is both clearly There is no doubt that Judge way of his voluntary service to his and consistently correct. He said in the Gonzales will bring these experiences community. hearing that this issue is ‘‘an internal to bear at his new job. Lynne Liberato, Somehow, in the midst of building a Senate matter.’’ a partner in the Houston office of successful law practice and second ca- Now, that is the right answer, be- Haynes & Boone, and a former presi- reer as a public servant, he found time cause it is what the Constitution says. dent of the State bar of Texas and the to serve as director of Catholic Char- In article 1, section 5, the Constitution Houston Bar Association has said that ities and of Big Brothers Big Sisters. gives each House of the Congress the Judge Gonzales: As Lynne Liberato explained in the power to ‘‘determine the rules of its . . . has always been a person of good judg- Houston Chronicle: proceedings.’’ ment, kindness, and moderation. He has ex- As a young lawyer, Al was committed to Judge Gonzales did not remind us of perienced the prejudice endured by Mexican the education of minority kids. While a the at least four instances where the Americans. These experiences enhanced his young associate at Vinson & Elkins he was constitutional option was utilized in judgment and fueled his compassion. instrumental in establishing the Vinson & Elkins Minority Scholarship. When asked by the Senate to stop an unjust, unconsti- Now this is not lost on groups rep- local Hispanic leaders to work on a com- tutional filibuster. No, he did not do resenting Hispanic Americans. It is mittee to address the issue of the large num- that. He just said it is up to the Sen- certainly not lost on LULAC, the ber of Hispanic dropouts, Al devoted his time ate; the Senate should set its rules. League of United Latin American Citi- to the establishment of the Hispanic Career That is what the Constitution says. zens, which has strongly supported and Education Day. Both of these programs As the Supreme Court unanimously Judge Gonzales and believes that he are still helping kids. held more than a century ago, in exer- will uphold the 1965 Voting Rights Act Judge Gonzales is committed to civil cising this authority we may not ig- making certain that all Americans can rights and the establishment of justice nore constitutional restraints. That is fully participate in the Democratic for all of our citizens, and so it is un- a given. But both the authority to de- process. To me, that is the most impor- fortunate that some of my colleagues termine our rules and our responsibil- tant civil rights act in history. have allowed their opposition to the ities to meet constitutional standards Listening to Judge Gonzales’s per- President’s prosecution of the war on are entirely ours so long as our rules sonal story, one discovers a person terror to cloud their judgment in this do not contravene another constitu- committed to the idea that if people case. Judge Gonzales will be our Na- tional requirement. are only treated equally, the opportu- tion’s chief law enforcement officer. As The House of Representatives has nities afforded by America are bound- such, he will be called upon to enforce nothing to say about our rules in the less. His father built their house with our civil rights statutes and his long Senate, and the executive branch does his own hands. My dad did ours. His track record leaves no doubt that he not either, and Alberto Gonzales recog- dad worked any job that was available will do so vigorously. His nomination nized these principles. to him in order to support his family. is a milestone in American history and Judge Gonzales is not like the profes- So did my dad. He picked crops as a mi- his confirmation will be remembered in sors who opined in hearings on this grant worker, worked in construction, our Hispanic communities for genera- issue. Nor does he work for the Senate as my dad did, and was part of a main- tions. legal counsel or for the Parliamen- tenance crew at a rice mill. As a proud member of the party of tarian waiting in the wings to give his One gets the sense from listening to Abraham Lincoln, I remain committed opinion on any issue any Senator Judge Gonzales that his father did to a serious civil rights agenda. I wish might raise. He is Counsel to the Presi- these things knowing that if only he my friends across the aisle would put dent of the United States of America. and his family were given a fair shake partisanship aside and recognize that He comes before us wearing that hat. they would find success in America. Judge Gonzalez would make a historic He has been nominated to be the next Let me just say that my father never contribution to our Nation’s con- Attorney General of the United States met Judge Gonzales’s father but it tinuing struggle to be a more just po- of America. Both positions are in the sounds to me that they would have had litical community. executive branch, which has no role

VerDate Aug 04 2004 01:15 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.053 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S861 whatsoever in determining how the vacancies in New York, he somehow in America who is interested in this Senate sets its internal procedural finds Judge Gonzales to be unfit for the country and who understands what is rules. office of Attorney General. Selecting going on here is watching this with a So Judge Gonzales’s answer was not judges has been one of the most vexa- great deal of interest. It is amazing only correct on its face, but it dem- tious issues that any President and any how some can be so in favor of minori- onstrated his respect for the funda- Senate face. Judge Gonzales has a ties and yet whenever the minority mental principle of the separation of proven track record of working effec- might be—in this case moderate, but powers. In my view, he correctly be- tively with Senator SCHUMER on New representing a conservative Presi- lieves it is not appropriate to accept York judicial vacancies. dent—that for some reason or other, any invitation that comes along to I think it is fair to call Senator they are just not worthy to hold these speculate and postulate about issues SCHUMER one of the most energetic positions? that the Constitution expressly re- Members of the Senate with respect to It was explained in the Judiciary moves from his jurisdiction. judicial nominations, whether you Committee, Judge Gonzales under- In his January 6 hearing, Senator agree with him or not. It seems to me stands the differences between the role SCHUMER asked Judge Gonzales about that Judge Gonzales’s ability to work of the White House Counsel and the the filibusters, after insisting that the with my friend from New York so suc- role of Attorney General. Over the words of the Constitution should be our cessfully on these contentious issues course of our history there have been standard on such issues. Keep in mind bodes well for his abilities to continue several individuals who have been close these are the first filibusters of judges, to work closely with the Senate once advisers and friends of the President of Federal judges, in the history of this he is confirmed. and have gone on to serve successfully country in over 200 years. Several of my colleagues have stood as Attorney General. In President Rea- If the words of the Constitution mat- on this floor and suggested—sometimes gan’s administration, Attorney Gen- ter, then nothing could be more com- even flatly asserted—that Judge eral Meese wore both hats with great pelling than the Constitution’s assign- Gonzales lacks or will lack the nec- distinction. Earlier than that, Robert ment of rulemaking authority right essary independence from the White Kennedy, brother of the President of here in the Senate. Judge Gonzales’s House if he were to become Attorney the United States, proved capable of answer was grounded correctly in the General of the United States of Amer- separating his role of serving the text of the Constitution. For this rea- ica. American people from his unique rela- son, I was more than a little surprised I cannot reach into the hearts and tionship with his brother, President yesterday to hear the distinguished minds of those making these state- John F. Kennedy. Senator from New York, Mr. SCHUMER, ments, but to me this suggestion is un- Frankly, I doubt that any Attorney say on this floor that Judge Gonzales’s adulterated bunk, sheer hokum. It is General was closer to the President principled answer to this politically asking us to disprove a negative. It is than Attorney General Robert Kennedy motivated question suggests that he the type of argument that is made was to President John F. Kennedy. The would not be independent as Attorney when meritorious arguments are un- historical record reveals that this issue General. available. was a matter of debate and concern by Give me a break. Frankly, as one The charge that Judge Gonzales will some prior to the confirmation of At- who believes that my colleagues across not exercise his best judgment on be- torney General Kennedy. In the same the aisle are using the current rules of half of the American public is ground- way that Robert Kennedy did not allow the Senate to filibuster judicial nomi- less. Judge Gonzales is an accom- his closeness to the President to inter- nations in an unwise, unfair, unprece- plished lawyer, one recognized by the fere with his legal judgment, I am fully dented, and unconstitutional manner, alumni association at his alma mater, confident, and I think everybody who there may have been some short-term the Harvard Law School, one of the knows Alberto Gonzales is confident, political benefits to have the next At- greatest law schools in the country. He that Alberto Gonzales’s relationship torney General publicly side with me practiced at one of the most pres- with President Bush will not impede on this important issue. But Judge tigious and respected law firms in the his ability to serve as a fair and effec- Gonzales wisely did not join in this United States of America, Vinson and tive Attorney General of the United fray, even though it could have been Elkins. He was a partner there. States of America. politically advantageous to the Presi- As many speakers before me have In fact, that Judge Gonzales has the dent and Republican Senators if he just noted, including Senator SPECTER and President’s ear and full confidence can came out on our side. Senator SESSIONS, a good lawyer is one only help achieve the Department of I asked those who questioned his who knows who his client is and rep- Justice’s priorities in the same way independence and his ability to sepa- resents him well. What is it about that the Department of Justice played rate himself from the political inter- Judge Gonzales that makes some peo- a prominent role in the Kennedy ad- ests of the President, what could be ple believe that he is somehow incapa- ministration. more independent than insisting that ble of making the simple distinctions, I am quite confident that Judge the constitutional separation of powers distinctions made by lawyers every Gonzales will serve the American pub- takes precedence over the politics of day? Is it prejudice? Is it a belief that lic and enforce the law in a fair manner the moment? a Hispanic American should never be in for all of our citizens. I am not certain This is an odd way to look at inde- a position like this—because he will be why anybody would suggest that Judge pendence. On the one hand, Senator the first one ever in a position like Gonzales is somehow incapable of dis- SCHUMER wants Judge Gonzales as At- this? Is it a belief that only liberal His- tinguishing his role as Attorney Gen- torney General to be independent from panics should be confirmed? Or is it be- eral of the United States from his role the President at whose pleasure any cause he has been an effective Counsel as Counsel to the President. He made it Cabinet member serves. Then on the to the President of the United States, quite clear in his confirmation hearing other side, Senator SCHUMER objects who many on the other side do not that he understood the obligations of when Judge Gonzales, as Counsel to the like? Or is it because he is constantly his new office. Here is what he said: President, shows a little independence mentioned for the Supreme Court of I do very much understand that there is a from Senator SCHUMER by refusing to the United States of America? Or is it difference in the position of counsel to the be pulled into a political dispute en- that they just don’t like Judge President and that of Attorney General of tirely outside the jurisdiction of the Gonzales? I find that that is not pos- the United States. . . . As counsel to the executive branch. sible because you can’t help but like President, my primary focus is on providing What is even more disheartening to him. He is a fine, enjoyable, friendly counsel to the White House and to the White me is that even though the distin- House staff and the President. I do have a man. client who has an agenda and part of my role guished Senator from New York has I do not agree with those who insinu- as counsel is to provide advice that the worked closely and cooperatively with ate that he cannot handle this job or President can achieve that agenda lawfully. Judge Gonzales in resolving their dif- that he will not do it in the best pos- It is a much different situation as Attorney ferences with respect to filling judicial sible manner. I believe every Hispanic General, and I know that. My first allegiance

VerDate Aug 04 2004 01:15 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.054 S02PT1 S862 CONGRESSIONAL RECORD — SENATE February 2, 2005 is going to be to the Constitution and to the He was always reasonable, he was al- a distinguished career as a lawyer, who laws of the United States. ways moderate in his approach, and he came from poverty to the heights of You know, I think he ought to be always listened—exactly what we strength and success in this greatest of taken at his word. We have done it for would hope the Attorney General of all nations, and he too gets treated like countless others whom we have con- the United States would be like. dirt. And I personally resent it. firmed here in this body. But for some Further, during his opening state- Let me conclude these remarks by re- reason some on the other side actually ment at his confirmation hearing, stating my support for Alberto believe that he might not be capable of Judge Gonzales indicated that ‘‘[with] Gonzales. He has the education, he has doing this job. Or if he is, then he the consent of the Senate, [he] w[ould] the experience, and he has the char- might not do it properly. Or, if he no longer represent only the White acter to be the next Attorney General doesn’t do that, then he might be so House; [he] w[ould] represent the of the United States, and he deserves much in his President’s pocket that he United States of America and its peo- the support of the Senate. won’t uphold the law, which he has al- ple.’’ I believe that those who vote against ways done. Knowing Judge Gonzales, he meant him—I hope nobody does, I would be so It is ridiculous. What is the reason that. pleased if nobody did, but those who for this opposition? I don’t know what Finally, Judge Gonzales explained at vote against him, I believe people it is. But I have listed a few things it his hearing that his responsibility as throughout this country have to look could be. Judge Gonzales’s service on Attorney General would be to ‘‘pursue at what they have done with disdain, the Texas Supreme Court should prove justice for the all the people of our with concern, and with intelligent eyes to anyone interested his ability to be great Nation, to see the laws are en- and determine why they voted against independent from then-Governor and forced in a fair and impartial manner somebody of this quality. Why would now-President Bush. for all Americans.’’ I believe it is clear they make some of these arguments In response to questions for the that Judge Gonzales understands the that are clearly fallacious with regard record from Senator KENNEDY, the dis- obligations associated with the posi- to Judge Gonzales? tinguished Senator from Massachu- tion of Attorney General of the United I suggest the absence of a quorum. setts, Judge Gonzales stated that he States, and he is uniquely qualified to The PRESIDING OFFICER. The ‘‘would enforce the law fairly and follow in the footsteps of the able and clerk will call the roll. equally on behalf of all Americans.’’ distinguished men and women who The legislative clerk proceeded to Senator KENNEDY raised all of these have preceded him. call the roll. torture memoranda as though Judge I know the other side does not want Mr. ALLARD. Mr. President, I ask Gonzales wrote them. any Republican on the Supreme Court unanimous consent that the order for He wasn’t in the Justice Department. of the United States of America. I can- the quorum call be rescinded. He wasn’t in the office of legal counsel. not blame them for that. We do not The PRESIDING OFFICER (Mr. He wasn’t the person who wrote them. share the same philosophy, by and SUNUNU). Without objection, it is so or- He didn’t represent the Justice Depart- large, as the liberal philosophy they dered. ment. But he did have a relationship to espouse. On the other hand, in times Mr. ALLARD. Mr. President, it is the February 7, 2002, memorandum past Republicans have confirmed lib- with great pride that I rise today in where the President said that all pris- erals to the U.S. Supreme Court with- support of the President’s nominee for oners, whether or not they were subject out putting them through these types Attorney General, Judge Alberto R. to the Geneva Conventions, had been of machinations that have despoiled Gonzales. Judge Gonzales is an honor- treated ‘‘humanely.’’ their character. We have supported the able man who will bring great integrity People can have different views on President of the United States. We to the office of Attorney General. Few the Bybee memoranda, and other have not filibustered judges. We did not nominees have come before this body memoranda that have been quoted here smear great legal intellectuals like who have demonstrated the intel- as though Judge Gonzales had anything Robert Bork. I can name many others, ligence, commitment, and virtue of to do at all with them, but Judge including the current Chief Justice of Judge Alberto Gonzales. Gonzales’s opinion, which he gave the the United States, one of the finest The biography of Judge Alberto President, was that they should be men who ever served in the judiciary of Gonzales reads like a blueprint of the treated humanely. this country, who had a distinguished true American success story. He was Why do they insist on these points? public service record before his nomi- born August 4, 1955 in San Antonio, TX. Why has torture become the big point nation but was smeared during the Ju- The second of eight children, a young of debate on the floor of the Senate? diciary Committee hearings and on the Alberto was raised in a warm, family There is only one reason: to undermine floor of the Senate. My party did not environment. His parents, a scant 8 the President of the United States. resort to these tactics. I would be dis- years of formal education between Just think about it. Why would we do appointed if we did. them, taught their kids the value of that publicly as Senators? Why would Here we have a chance to confirm a hard work and persistence. It was in we do that, especially since we all man who is a decent man, who is of Humble, TX, a small town north of know that these were rogue elements Hispanic origin, the first Hispanic ever Houston, that Alberto Gonzales who have done these awful things? We to be nominated to one of the big four watched his father Pablo, a migrant all condemn them. But why would we Cabinet positions. Why can’t my worker, and two of his uncles build the do this? Some people think that these friends who oppose him recognize that two-bedroom house in which he and his statements are so bad, that they give and recognize the historic nature of siblings grew up. It is the same house comfort to the enemy. I do not go that this nomination, recognize his great in which his mother resides today. far. But why have they used distortions ability, recognize his decency, recog- Gonzales graduated from public high to try to stop Judge Gonzales? Why nize his fairness in working with them, school in Houston in 1973. Having never would they do that? and recognize that this man will make considered college a realistic possi- He is a moderate man. He is an ac- a difference for all Americans, as he bility and full of desire to learn and see complished man. He is a decent man. has as White House Counsel? the world, Alberto Gonzales enlisted in We have had 4 years of experience with Is the hatred for the President so bad the Air Force. He was assigned to Ft. him. He has done a great job down they transfer it to somebody as decent Yukon, AK, where he became inspired there as White House Counsel. He has as Judge Gonzales after years of com- to apply for an appointment to the been up here before every Senator on plaints about John Ashcroft? He has United States Air Force Academy. Spe- the Judiciary Committee, eight of been a wonderful Attorney General, in cial arrangements were made for whom voted against him, and he ac- my eyes. After years of complaining Gonzales to take his ACT and the commodated them in every way he pos- about him because he is too conserv- Academy’s required physical examina- sibly could. Sometimes he couldn’t do ative, all of a sudden you have a mod- tion while still stationed in Alaska. what they wanted him to do, but the erate Hispanic man who has a distin- Gonzales was rewarded with orders to fact is he was always accommodating. guished public service record, who has report to the Academy at Colorado

VerDate Aug 04 2004 01:15 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.056 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S863 Springs, CO in 1975 to pursue his dream Council of Young Political Leaders to We are engaged in a war without bor- of becoming a pilot in the United Mexico in 1996 and to the People’s Re- ders against a foe that knows no States Air Force. public of China in 1995. He served on bounds in its cruelty. Innocents killed Alberto Gonzales excelled in his first the board of directors of Catholic Char- for going to work on a sunny Sep- year at Colorado Springs but found he ities, Big Brothers and Big Sisters, and tember morning, kidnap victims be- was more interested in politics and law the Houston Hispanic Forum. headed for publicity and fear, an entire than the engineering and science cur- Judge Gonzales has been the fortu- civic system indicted for having the riculum required by the Academy. nate recipient of many professional and nerve to believe in the liberty of the in- After much deliberation and consider- civic honors, including his 2003 induc- dividual. I find it hard to believe, but ation of the effort put forth to earn his tion into the Hispanic Scholarship Judge Alberto Gonzales is being treat- appointment to the Academy, he de- Fund Alumni Hall of Fame, and the ed by some in this chamber as if he was cided to pursue a career in the law. Good Neighbor Award from the United somehow responsible for the senseless Gonzales started at Rice University his States-Mexico Chamber of Commerce and violent acts of terrorists. More rea- junior year of college, graduating from for his dedication and leadership in sonable yet equally baseless are the Rice in 1979. After Rice, Gonzales at- promoting a civil society and equal op- criticisms that Judge Gonzales some- tended Harvard Law School where he portunity. Gonzales also received in how supports the use of barbaric and graduated in 1982. Gonzales returned to 2003 the President’s Awards from the medieval treatment of those appre- Houston as an associate at the law firm United States Hispanic Chamber of hended by the United States and sus- of Vinson & Elkins where he later be- Commerce and the League of United pected of engaging in terrorist activi- came one of the firm’s first two minor- Latin American Citizens. In 2002, he ties. ity partners. While in private practice, was recognized as a Distinguished A good example of the ludicrous Gonzales also taught as an adjunct law Alumnus of Rice University by the As- criticisms of Judge Gonzales, and one professor at the University of Houston sociation of Rice Alumni and was hon- my friend from Texas, Senator CORNYN Law Center and was actively involved ored with the Harvard Law School As- has rightly sighted in recent floor in numerous civic organizations. sociation Award. Gonzales was recog- statements, is the flimsy assertion It was at a meeting of Houston area nized as the 1999 Latino Lawyer of the that Judge Gonzales in advising Presi- minority leaders in 1994 that Alberto Year by the Hispanic National Bar As- dent Bush to deny prisoner of war sta- Gonzales first met President George W. sociation, and he received a Presi- tus to al-Qaida and Taliban terrorists Bush during the President’s first gu- dential Citation from the State Bar of is somehow a violator of the human bernatorial campaign. Several weeks Texas in 1997 for his dedication to ad- rights principles so essentially a part after being elected Governor, Bush dressing basic legal needs of the indi- of the American ethic. In his role ad- asked Gonzales to join his administra- gent. He was chosen as one of the Five vising the President on legal matters tion as his General Counsel, where he Outstanding Young Texans by the in the war on terror Alberto Gonzales served for 3 years. On December 2, 1997, Texas Jaycees in 1994, and as the Out- has never provided council regarding Gonzales was appointed Texas’ 100th standing Young Lawyer of Texas by the prisoners without insisting that their Secretary of State, serving as chief Texas Young Lawyers Association in treatment be humane in all instances. elections officer, the State’s leading li- 1992. Gonzales was honored by the According to the very Geneva Con- aison on Mexico and border issues, and United Way in 1993 with a Commitment vention these critics pretend to defend, senior adviser to the Governor. to Leadership Award, and received the only lawful combatants are eligible for Gonzales was appointed to the Texas Hispanic Salute Award in 1989 from the POW protections. Lawful combatants State Supreme Court in 1999, and was Houston Metro Ford Dealers for his must pass the smell test. They must elected to a full 6-year term on the work in the field of education. look like combatants. They do not hide court in 2000 with 81 percent of the When I began my remarks I sug- their weapons or their affiliations. vote. In January of 2001, Alberto gested that Alberto Gonzales was one They wear uniforms and they conduct Gonzales again heeded President of the most accomplished and qualified their operations in accordance with the Bush’s call to service and was commis- individuals ever to stand before this laws and customs of war. Civilians are sioned as counsel to the President. body for confirmation. In recent weeks to be treated as innocents. No stretch- This is an incredible journey from this body, and particularly the Senate ing or distorting of this definition can Humble, TX, to Ft. Yukon, AK, to the Judiciary Committee, has engaged in a turn terrorists in to lawful combat- Air Force Academy in Colorado to the rigorous, often exaggerated, examina- ants. In their eagerness to demean Ivy League. From private business and tion of Judge Gonzales life, his work, Judge Gonzales his critics fail to ac- civil leadership in Texas to being re- and character. Like all things that knowledge that neither al-Qaida nor cruited to serve in the administration take place inside the beltway, this ex- the Taliban militia are legally entitled of President Bush, Alberto Gonzales amination has bordered on the dra- to the Convention’s protections. They has led a life full of challenge, accom- matic, the overblown, and the overtly do not adhere to the required condi- plishment, and great success. As if this political. tions of lawful combat and are not a weren’t enough, Alberto Gonzales has Most of the criticism Judge Gonzales party to the Geneva Convention. This given back to his community and his has endured has not been related to his is not some arbitrary and convenient fellow Americans along the way. background, academic and professional conclusion. This is based in the very Alberto Gonzales was a trustee of the accomplishment, or his competency to text and structure of the text, the his- Texas Bar Foundation from 1996 to serve as this Nation’s highest law en- tory of the convention, and has been 1999, a director for the State Bar of forcement official. Indeed, the criti- affirmed by several Federal courts Texas from 1991 to 1994, and President cism has focused on very recent Amer- across the country. And this is what of the Houston Hispanic Bar Associa- ican history. Judge Gonzales, like they offer as evidence that Judge tion from 1990 to 1991. He was a director countless millions of Americans, was Gonzales is somehow unfit to serve as of the United Way of the Texas Gulf effectively called to service in a way Attorney General? Coast from 1993 to 1994, and President previously unimagined when a small Judge Gonzales and President Bush of Leadership Houston. In 1994, group of radical murderers attacked have repeatedly affirmed their respect Gonzales served as Chair of the Com- this Nation on September 11, 2001. Sep- for the humane but aggressive prosecu- mission for District Decentralization of tember 11, 2001 was an act of war by a tion of the war this country was the Houston Independent School Dis- group of men who recognize no law and dragged in to. Specific to the Geneva trict, and as a member of the Com- represent no nation. Terrorists who Convention Judge Gonzales testified, mittee on Undergraduate Admissions would attack innocent people around ‘‘honoring the Geneva Conventions for Rice University. Gonzales was Spe- the world and Americans here at home wherever they apply . . . I consider the cial Legal Counsel to the Houston Host sign no treaties, engage in no civil dis- Geneva Conventions neither obsolete Committee for the 1990 Summit of In- course, and disregard all bodies of or quaint.’’ The administration has dustrialized Nations, and a member of democratic government. This is an fully applied the Geneva Conventions’ delegations sent by the American ugly thing. These are difficult times. protections in Iraq because Iraq is a

VerDate Aug 04 2004 01:15 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.059 S02PT1 S864 CONGRESSIONAL RECORD — SENATE February 2, 2005 High Contracting Party to the Conven- traordinary record and dedication may Senator STABENOW has contended tions. There was never any question reveal more about the opponents than that Judge Gonzales has a reckless dis- about whether Geneva would apply in the nominee. Upon his confirmation regard for human rights—this decent Iraq, Judge Gonzales testified recently, Judge Gonzales will become the first man, who has seen discrimination in so there was no decision for the admin- Hispanic American to serve in this his life—that he has a reckless dis- istration to make. Yet in committing high post, yet another historic appoint- regard for human rights and has twist- to the legal study of engagement with ment by President George W. Bush. ed the law to allow torture. the Taliban militia and al-Qaida fight- Judge Gonzales is a man of great char- The truth is, Judge Gonzales has ers somehow Judge Gonzales is labeled acter who has and will continue to stated that every detainee should be as a radical and accused of malicious- serve this Nation with distinction. I treated humanely. In the only memo- ness only fairly attributed to the en- urge my fellow Americans to look at randum Judge Gonzales ever wrote, he emies of America. Judge Gonzales’s record and draw their provided prisoner-of-war status to Iraqi But the truth is not enough when own conclusions as to why some in this soldiers captured in Iraq, allowing there are political axes to grind. Mem- body find him to be so disagreeable to them the additional protections of a bers of the Senate Judiciary Com- their aims. It is clear to me what has prisoner of war under the Geneva Con- mittee and others have loudly asserted been happening here, just as it is clear ventions, even though they do not that the treatment of prisoners at Abu to me that Judge Gonzales will be con- qualify. Ghraib somehow represents U.S. and firmed despite the overtly political and The soldiers caught and captured administration policy. Like everyone shallow opposition he faces. right after the conclusion of hos- else in this Chamber I was startled by I am proud to rise in support of tilities, wearing a uniform, operating the photographs of prisoner mistreat- Judge Alberto Gonzales. His record of in units, they qualify as prisoners of ment at Abu Ghraib, but again we see service is indicative of the character, war. But these people who are sneaking a logical failure in connecting this in- integrity and energy he will bring to around, not in uniform, placing bombs cident of abuse with any policy set by the demanding and thankless job of At- against civilian people, against Iraqi the Department of Justice, Judge torney General. I look forward to citizens, against American soldiers, Gonzales or the President. ‘‘I have been working with Attorney General they do not meet the definition of the deeply troubled and offended by reports Gonzales, and I thank my colleagues Geneva Conventions. Therefore, they of abuse,’’ Judge Gonzales testified. for their time. really are not entitled legally to those ‘‘The photos from Abu Ghraib sickened Mr. President, I yield the floor and protections. But Judge Gonzales has and outraged me, and left a stain on suggest the absence of a quorum. said, and the President has agreed, our Nation’s reputation.’’ Judge The PRESIDING OFFICER. The that they will be given those protec- Gonzales testified at length on this clerk will call the roll. tions. The assistant legislative clerk pro- matter and the administration has Senator FEINSTEIN says Judge ceeded to call the roll. been nothing but clear that these iso- Gonzales did not answer the commit- Mr. SESSIONS. Mr. President, I ask lated acts were those of a small group tee’s questions properly, her questions. unanimous consent that the order for of misguided soldiers. These acts were the quorum call be rescinded. He really did answer them. I think the wrong and completely inconsistent The PRESIDING OFFICER. Without truth is that the Senator was with the policies and values of this objection, it is so ordered. unsatisfied with his answers because country. The Independent Panel to Re- Mr. SESSIONS. Mr. President, we they were, she said, not independent of view DoD Detention Operations found have had a lot of complaints on the the President. that the abuses depicted in Abu Ghraib floor about one of America’s most de- Let me ask, isn’t it most likely the photographs were not part of author- cent, fine public servants, Judge fact that Judge Gonzales and the Presi- ized interrogations but a representa- Gonzales, who served as Counsel to the dent agreed on these positions? This tion of deviant behavior and a failure President of the United States. It has issue has been taken to the American of military leadership and discipline. been really painful to hear what has people in the President’s reelection And still the critics of Judge been said. I, just for the record, would campaign. All these issues were de- Gonzales demand he be linked to these like to take a few minutes to respond bated and the American people af- roundly condemned and isolated acts. to some of these allegations that are firmed his leadership and his guidance While I am proud to rise in support of not fair, represent distortions, and in the war on terrorism. To say there is Judge Gonzales, I am dismayed at the really misrepresent him and attack his not enough distance between the Presi- atmosphere in which this nomination character unfairly. dent’s lawyer and the President is real- has been made and received by the Sen- Senator KENNEDY, for example, says ly an odd statement to make. Of ate. As millions of Americans know, in that Judge Gonzales was at the ‘‘epi- course, the lawyer and the President recent years we have witnessed a his- center’’ of a torture policy. As I have are together, I am sure not only legally torical hijacking of the President’s indicated earlier, Judge Gonzales has and professionally together on these power to appoint judges. While con- repeatedly and consistently opposed issues, but they share deep values to- troversy may not be new to the ap- torture. He has said it is not proper and gether. pointment process, the unprecedented not justified and has publicly stated Senator MIKULSKI claims that Judge filibuster of judges in this Chamber that we, as a nation, are committed to Gonzales was not cooperative in the last year flies boldly in the face of both the rule of law, to following our treaty nomination of judges to the Maryland the Founders’ intent expressed in Arti- obligations, and the statutory require- bench. The truth is, Maryland Senators cle II, Section II of the Constitution, as ments that deal with torture. The have played a role in obstructing the well as a distortion of the Senate’s rich President, of course, has said the same. judge’s nominees. They have argued tradition of providing advise and con- There is no policy of torture in the that one nominee, a lawyer born in sent without filibuster. United States. We have a statute that Maryland and educated in Maryland, In my opinion the tenor of this con- deals with that and prohibits it. It de- was not a Marylander and could not be firmation process reeks of last year’s fines what torture is and what it is not. confirmed. I think it was driven by series of senseless cloture votes on Sometimes that has been the problem. their disagreement with his conserv- nominees of high stature. Unfair and Congress’s definition has been ignored. ative judicial philosophy, but they ob- unsubstantiated claims have been Things that are not included in our def- jected on that basis, and there was a made and half-truths and lies of omis- inition have been said to be torture. big disagreement on it. But that is not sion have dominated the rhetoric of Indeed, some of the people who com- Judge Gonzales’s decision to make. Ul- those opposing Judge Gonzales. I am plained about the memorandums writ- timately, that is the decision of the not here today to impugn those who ten by the Department of Justice offi- President. have contributed to this false adver- cials actually voted for the statute One Senator complained about his tising, though it is worth saying that that defined torture; and that memo- support for Claude Allen for the court the nature and intensity of these false randum quoted extensively from it and of appeals, an African-American judi- arguments in light of this nominees ex- was framed by that American statute. cial nominee of excellent reputation,

VerDate Aug 04 2004 01:18 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.060 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S865 and I don’t think that is fair. He sim- General of the United States, the happy to work near the seat of power ply supported Claude Allen, a judge President began by asserting: but makes no really big decisions, has that I supported and a majority of this This is the fifth time I have asked Judge no legal opinions of his own, and cer- Senate supports but has been blocked Gonzales to serve his fellow citizens, and I tainly feels no responsibility to provide through dilatory tactics from the other am very grateful he keeps saying ‘‘yes’’ ... independent recommendations to the side. But that is not a basis to vote as the top legal official on the White House President. against him for Attorney General. staff, he has led a superb team of lawyers. I find it hard to believe that the top Senator SCHUMER complained that In praising his nomination of Alberto legal adviser to the President cannot Judge Gonzales refused to answer his Gonzales, the President specifically recall what he said or what he did with question on the so-called nuclear op- stressed the quintessential ‘‘leader- respect to so many of the enormous tion, which is a political issue, a legis- ship’’ role that Alberto Gonzales has policy and legal decisions that have lative branch issue of this Congress to held in providing the President with flowed from the White House since Sep- deal with. It is a matter that involves legal advice on the war on terror. The tember 11 in particular. It is especially rules in the Senate, how they are President stated specifically that it difficult to comprehend the sudden changed, and that kind of debate. This was his ‘‘sharp intellect and sound memory lapse when the consequences issue has nothing to do with running judgment’’ that helped shape our poli- of these decisions have had, and will cies in the war on terror. According to the Department of Justice. It is not continue to have, profound effects on the President, Mr. Gonzales is one of any role for Judge Gonzales, a lawyer world events for years, and even dec- his closest friends who, again in the for the President of the United States, ades, to come. words of the President, ‘‘always gives to start opining on what he thinks Judge Gonzales was asked whether he me his frank opinion.’’ about Senate rules. I am not a member of the Senate had chaired meetings in which he had Senator SCHUMER is leading filibuster Committee on the Judiciary and so I discussed with Justice Department at- after filibuster of the President’s nomi- have come to my conclusions by read- torneys such interrogation techniques nees in an unprecedented use of the fil- ing from the record. Not hearing di- as strapping detainees to boards and ibuster systematically against judicial rectly the testimony, not being able to holding them under water, as if to nominees, something that has not hap- ask questions during the hearings, but drown them. He testified that there pened in the history of this Republic. from my reading of the testimony, I were such meetings, and he did remem- But for these filibusters, the nuclear speak now. ber having had some discussions with question would not exist. Imagine how perplexing and disheart- Justice Department attorneys, but he These complaints have been unfair. ening it has been to review the re- could not recall what he told them in They have oftentimes relied on infor- sponses—or should I say lack of re- those discussions. mation taken out of context, informa- sponses—that were provided by Mr. When Senator KENNEDY asked if he tion that is misleading. The truth is, Gonzales to members of the Senate Ju- ever suggested to the Justice Depart- Judge Gonzales is a sound lawyer, a de- diciary Committee at his confirmation ment attorneys that they ought to cent man who believes in the rule of hearing on January 6. It seemed as if ‘‘lean forward’’ to support more ex- law. He believes in following the law. once seated before the committee, treme uses of torture, as reported by He will be a terrific Attorney General. Judge Gonzales forgot that he had, in the Washington Post, he said: He has been nominated by the Presi- fact, been the President’s top legal ad- I don’t ever recall having used that term. dent. I believe he will be confirmed. I viser for the past 4 years. He stated that, while he might have am excited for him and his good, fine It was a strangely detached Alberto attended such meetings, it was not his family. It is going to be a special day Gonzales who appeared before the Sen- role, but that of the Justice Depart- for them. ate Judiciary Committee. Suddenly ment, to determine which interroga- I yield the floor. this close friend and adviser to the tion techniques were lawful. He said: The PRESIDING OFFICER. Under President simply could not recall form- It was not my role to direct that we should the previous order, the hour of 2:30 hav- ing opinions on a great number of key ing arrived, the Senator from West Vir- use certain kinds of methods of receiving in- legal and policy decisions made by the formation from terrorists. That was a deci- ginia is recognized for 1 hour. Bush White House over the past 4 sion made by the operational agencies. . . . Mr. BYRD. I thank the Chair. years. And this seemed particularly And we look to the Department of Justice to Mr. President, Alberto Gonzales is true when it came to decisions which tell us what would, in fact, be within the Counsel to the President of the United in retrospect now appear to have been law. States. For the past 4 years, Mr. wrong. He said he could not recall what he Gonzales has served as the chief legal When asked his specific recollection said when he discussed with Justice adviser to President Bush, housed in of weighty matters, Judge Gonzales Department attorneys the contents of the west wing of the White House, a could provide only vague recollections the now-infamous ‘‘torture’’ memo of stone’s throw from the Oval Office. in many instances of what might have August 1, 2002, the one which inde- The official biography of Alberto been discussed in meetings of quite pendent investigative reports have Gonzales on the White House Web site monumental importance even during a found contributed to detainee abuses, states that before he was commissioned time of war. first at Guantanamo and, then, Af- to be White House Counsel, Judge He could not remember what he ad- ghanistan and, later, Iraq. Gonzales was a justice on the Texas vised in discussions interpreting the When asked whether he agreed with Supreme Court. Prior to that, he U.S. law against torture or the power the now repudiated conclusions con- served as the one-hundredth Secretary of the President to ignore laws passed tained in that torture memo at the of the State of Texas, where one of his by Congress, discussions that resulted time of its creation on August 1, 2002, many duties was to act as a senior ad- in decisions that reversed over 200 Mr. Gonzales stated: viser to then-Governor George W. years of legal and constitutional prece- There was discussion between the White Bush. Before that, he was general coun- dents relied on by 42 prior Presidents. House and the Department of Justice, as well sel to Governor Bush for 3 years. That is pretty hard to believe. In fact, as other agencies, about what does this stat- So for over a decade, Alberto if one did not know the true relation- ute mean. . . .I don’t recall today whether or Gonzales has been a close confidant ship between the President and this not I was in agreement with all of the anal- and adviser to George W. Bush, and the nominee, or if one had never heard the yses, but I don’t have a disagreement with President has confirmed his personal President refer to the ‘‘frank’’ advice the conclusions then reached by the Depart- and professional ties to Judge Gonzales he has received from Judge Gonzales, ment. on many occasions. one would think from reading his hear- He went on to add that, as Counsel to The President has described him as ing transcript that Alberto Gonzales the President, it was not his responsi- both ‘‘a dear friend’’ and as ‘‘the top was not really the White House Coun- bility to approve opinions issued by the legal official on the White House sel. Department of Justice. He said: staff.’’ When the President nominated Instead, one might think that he is I don’t believe it is my responsibility, be- Mr. Gonzales to be the next Attorney simply an old family friend who, yes, is cause it really would politicize the work of

VerDate Aug 04 2004 01:18 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.063 S02PT1 S866 CONGRESSIONAL RECORD — SENATE February 2, 2005 the career professionals at the Department We conclude that the statute [the statute No President—no President—can nul- of Justice. against torture], taken as a whole, makes lify or countermand a U.S. law to Mr. President, one must wonder what plain that it prohibits only extreme acts. shield from prosecution those who the job of White House Counsel entails, . . . This confirms our view that the crimi- would commit or attempt to commit if it does not involve giving the Presi- nal statute penalizes only the most egre- torture. But that was the result sought gious conduct. dent the benefit of one’s thinking on by this White House. legal issues. The second but equally shocking and When asked by Senator DURBIN if he Perhaps one reason Judge Gonzales erroneous legal conclusion reached in still believes that the President has the says he does not remember what he the so-called torture memorandum authority as Commander in Chief to ig- said in those meetings is because, as states: nore a law passed by Congress, to de- soon as the torture memo was leaked We find that in the circumstances of the cide on his own whether it is unconsti- to the press, he had to disavow it. Once current war against al-Qaida and its allies, tutional, or to simply refuse to comply it became clear that the White House prosecution under section 2340A [the rel- with it, Judge Gonzales stated that, believed—based on those meetings— evant provision of U.S. law prohibiting tor- yes, he believes it is theoretically pos- that only the most egregious acts ture] may be barred because enforcement of sible for the Congress to pass a law the statute would represent an unconstitu- imaginable could be prohibited as tor- tional infringement of the President’s au- that would be viewed as unconstitu- ture, the memo received universal op- thority to conduct war. tional by a President and, therefore, to probrium. Thus, the administration As the Commander in Chief. Where be ignored. had little choice but to repudiate it And even though the torture memo have we heard that before, the term and, in June 2004, Mr. Gonzales an- was replaced by a new memorandum on ‘‘Commander in Chief’’? nounced its withdrawal. He then di- December 30, the replacement memo- This means the White House believed rected the Justice Department to pre- randum does not reject the earlier doc- that a President can simply override pare new legal analyses on how to in- ument’s shockingly overly expansive the U.S. law prohibiting torture, just terpret prohibitions against torture interpretation of the President’s Com- because he disagrees with it. In other under U.S. and international law. mander-in-Chief power. Instead, the words, he can ignore the law by pro- Strangely, however, that new anal- new memo states that because that ysis was not available to the public for claiming, in his own mind, that the law portion of the discussion in the earlier 6 more months. Finally, on December is unconstitutional. Not because a memo was ‘‘unnecessary,’’ it has been 30, just 1 week prior to the Gonzales court of the United States has found eliminated from the new analysis. nomination hearing, a memorandum the law to be unconstitutional but be- Particularly disturbing is the fact containing the administration’s most cause a wartime President decides he that although the new analysis repudi- recent take on the subject was issued simply does not want to be bound by it. ates the earlier memo’s conclusion by the Justice Department. What an astounding assertion. Think that all but extreme acts of torture are With the benefit of 20/20 hindsight, of it. A President placing himself above permissible, Judge Gonzales could not together with a keen desire to be con- the constitutional law—in effect, tell us whether this repudiation of firmed as the next Attorney General of crowning himself king. prior policy has been communicated to the United States, Judge Gonzales told This outrageously broad interpreta- those who are today doing the interro- the committee on January 6 that the tion of Executive authority is so anti- gating. analysis of the August 1, 2002, memo no thetical to the carefully calibrated sys- This is important because there is longer represents the official position tem of checks and balances conceived language contained in the now-repudi- of the executive branch of the United by the Founding Fathers it seems in- ated torture memo that was relied on States. conceivable that it could be seriously in Guantanamo and parts of which If Judge Gonzales didn’t see fit to contemplated by any so-called legal ex- were included word for word in the question the Justice Department’s offi- pert, much less attorneys of the U.S. military’s Working Group Report on cial position on torture in 2002, what Justice Department or the White Detainee Interrogations in the Global made the administration change its House Counsel. War on Terrorism. This report, dated mind in 2004? Was it a careful review of Has the White House no appreciation April 2003, has never been repudiated or the legal issues, or was it simply polit- for the struggle that the Nation en- amended and may be relied upon by ical backpedaling in light of the public dured upon its creation? Can it really some interrogators in the field. knowledge of what its policies had believe that a President can cir- When asked whether those who are brought about in Abu Ghraib and else- cumvent the will of the people and charged with conducting interroga- where? their legislature by adopting and dis- tions have been apprised of the admin- I note in passing that the ‘‘torture’’ seminating a legal interpretation that istration’s repudiation of sections of memo was written in 2002 by then-As- would, in the end, protect from pros- the Bybee memo and the administra- sistant Attorney General Jay Bybee, ecution those who commit torture in tion’s attendant change in policy, who is now a Federal judge on the violation of U.S. law? Judge Gonzales did not know the an- Ninth Circuit Court of Appeals. God Alexander Hamilton, in Federalist swer. help the Ninth Circuit Court of Ap- No. 69, described in detail exactly how Mr. Gonzales continues to deny re- peals. I would like the record to reflect the American system can and must be sponsibility for many of the policies that 18 other Senators and I voted to distinguished from the British mon- and legal decisions made by this ad- reject the nomination of Jay Bybee to archy. Hamilton wrote: ministration. But the Fay report and be a Federal judge, a decision I, for There is no comparison— the Schlesinger report corroborate the one, do not regret. fact that policy memos on torture, The Bybee memo drew universal con- Hear that again— ghost detainees, and the Geneva Con- demnation and scorn for at least two of There is no comparison— ventions, which Judge Gonzales either the legal opinions that were included None— wrote, requested, authorized, endorsed, in its text. First, it described torture There is no comparison between the in- or implemented, appear to have con- as being prohibited under U.S. law in tended power of the President and the actual tributed to detainee abuses in Afghani- only very circumscribed cir- power of the British sovereign. The one can stan, Guantanamo Bay, and Iraq, in- cumstances. It defined torture so nar- perform alone, what the other can only do cluding those that occurred at Abu rowly that horrific harm could be in- with the concurrence of a branch of the Leg- Ghraib. flicted against another human being in islature. The International Committee of the the course of an interrogation overseas Mr. President, no one man or woman, Red Cross has told us that abuse of and not be prohibited. According to the no President, not his White House Iraqi detainees has been widespread, memo, unless such acts resulted in Counsel, nor all the attorneys in the not simply the wrongdoing of a few, as organ failure, the impairment of a bod- Office of the Legal Counsel in the Jus- the White House first told us, and the ily function, or death, they could be tice Department can, on their own, act abuse occurred not only at Abu Ghraib. considered legal. In fact, the first page in contravention of a law passed by Last week, the Los Angeles Times re- of the memorandum states: Congress. ported that documents released last

VerDate Aug 04 2004 01:18 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.065 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S867 Monday by the Pentagon disclosed that of the United States, and the President the power of his office to prosecute any prisoners had lodged dozens of abuse and his Counsel must be held account- American—anywhere—who uses tor- complaints against U.S. and Iraqi per- able for not only failing to faithfully ture. sonnel who guarded detainees in an- execute our laws but also for trying to Many of my colleagues and citizens other location, a little known palace in undermine, contravene, and gut them. across America have spoken eloquently Baghdad that was converted into a With such a track record, how can we about their concerns with Judge prison. possibly trust this man to be Attorney Gonzales. The most grave of those con- The documents suggest, for the first General of the United States? What cerns has been the flawed legal anal- time, that numerous detainees were sort of judgment has he exhibited? ysis and conclusions regarding torture. also abused at one of Saddam Hussein’s As I stated a few days ago with re- That analysis and those conclusions former villas in eastern Baghdad. The spect to Dr. Condoleezza Rice, there were wrong and they have been re- article noted that while previous cases needs to be accountability in our Gov- jected. of abuse of Iraqi prisoners had focused ernment. There needs to be account- Any policy that condones torture is mainly on Abu Ghraib, allegations of ability for the innumerable blunders, reprehensible for three reasons. First, a abuse at this new location included bad decisions, and warped policies that torture policy violates U.S. law and the that guards had sodomized a disabled have led the United States to the posi- cornerstone of the Geneva Conven- man and killed his brother, then tossed tion in which we now find ourselves, tions. Second, a torture policy endan- his dying body into a cell, on top of his trapped in Iraq amid increased vio- gers our men and women in uniform. sister. lence; disgraced by detainee abuses And, third, a torture policy diminishes Judge Gonzales admits that he was first in Guantanamo, then in Afghani- America’s standing around the world. physically present at discussions re- stan, Iraq, and probably in locations we Because of these concerns, I have had garding whether acts of this nature have yet to discover; shunned by our numerous conversations and meetings constitute torture, but do not expect allies; perceived by the world commu- with Judge Gonzales, and I am con- him to take responsibility for them. Do nity, rightfully, as careening down the fident that as Attorney General he will not hold me accountable, he says. It wrong path. not sanction torture in any form and was not I. And he does not just point I do not believe our Nation can rely will uphold the laws of the United fingers at the Justice Department. He on the judgment of a public official States and the international accords also spreads the blame around. While with so little respect for the rule of that make torture illegal. he admitted he had made some mis- constitutional law. We cannot rely on In fact, I specifically asked Judge takes, he attempted to further deflect the judgment of someone with so little Gonzales to respond to my concerns responsibility for his actions by saying regard for our constitutional system of and the concerns of the American pub- the operational agencies also had re- government. I simply cannot support lic in writing. In his letter to me of sponsibility to make decisions on in- the nomination of someone who despite January 28, 2005, Judge Gonzales wrote: terrogation techniques—Not him. This his assertions to the contrary obvi- I do not condone torture in any form. I is exactly what he said: ously contributed in large measure to confirm to you that the United States of I have recollection that we had some dis- the atrocious policy failures and the America does not condone the torture of cussions in my office, but let me be very contrived and abominable legal deci- anyone by our country or by anyone else. clear with the committee. It is not my job to sions that have flowed from this White The laws of the United States and the inter- decide which types of methods of obtaining House over the past 4 years. For all of national obligations of the United States information from terrorists would be the prohibit torture in all its forms. These inter- these reasons, I have no choice but to national obligations include the Geneva Con- most effective. That job responsibility falls vote against the nomination of Alberto to folks within the agencies. It is also not ventions, which I consider binding upon the my job to make the ultimate decision about Gonzales to be the next Attorney Gen- United States. I reaffirm to you that, if con- whether or not those methods would, in fact, eral of the United States. firmed as Attorney General, I will enforce meet the requirements of the anti-torture I yield the floor and I suggest the ab- these laws and international obligations ag- statute. That would be the job for the De- sence of a quorum. gressively to prohibit torture in all its partment of Justice. . . . I viewed it as their The PRESIDING OFFICER (Mr. MAR- forms. responsibility to make a decision as to TINEZ). The clerk will call the roll. He continues in his letter: whether or not a procedure or method would, The assistant legislative clerk pro- I pledge to do so for two reasons. These are in fact, be lawful. ceeded to call the roll. the laws of the United States, and I am obli- One wishes that Judge Gonzales Mr. SALAZAR. Mr. President, I ask gated to uphold those laws. And secondly, could have told us what his job was unanimous consent that the order for any action by the United States that under- rather than, telling us only what it was the quorum call be dispensed with. mines the Geneva Conventions threatens the not. Talk about passing the buck. The PRESIDING OFFICER. Without safety and security of our troops. At the end of the day one can only objection, it is so ordered. Judge Gonzales’s statement is clear remember or wonder then what legal Mr. SALAZAR. Mr. President, I rise and unequivocal. Simply stated, tor- advice, if any, he actually gave to the in relation to the nomination of Judge ture is illegal and wrong and that will President of the United States. Does Alberto Gonzales to be the next Attor- be the position of Judge Gonzales as Judge Gonzales or the President have ney General of the United States. Attorney General. As the Nation’s top an opinion on the question of what con- Before making my comments about law enforcement officer, Judge stitutes torture? Does he or the Presi- Judge Gonzales, I also want to say that Gonzales will be accountable for this dent have an opinion on the related earlier this afternoon I had a highly position as he denounces torture, and I question of whether it is legal to relo- enlightening and very rewarding dis- and the American people will make cate detainees to facilitate interroga- cussion with the distinguished Senator sure this is, in fact, the case. tion? Do they believe it is morally or from West Virginia, Mr. BYRD. Senator Before proceeding further, I ask constitutionally right? Do we know? BYRD spoke just before me. He is a man unanimous consent Judge Gonzales’s No. of tradition and hard work. I am very letter to me be printed in the RECORD. According to article II, section 3, of grateful for his leadership and his in- There being no objection, the mate- the U.S. Constitution, as head of the spiration. rial was ordered to be printed in the executive branch, the President has a As I make my comments about At- RECORD, as follows: legal duty to take care that the laws be torney General-nominee Gonzales, I THE WHITE HOUSE, faithfully executed. The Constitution want to tell you that I do so because Washington, January 28, 2005. does not say that the President should my brothers and sisters in law enforce- Hon. KEN SALAZAR, or may undertake that responsibility. ment have endorsed him. I do so as well U.S. Senate, It clearly states that the President because he has given me his written Washington, DC. DEAR SENATOR SALAZAR: I have appre- shall take care that the laws be faith- commitment to fight for civil rights. I ciated our ongoing conversations, and I fully executed. do so because Judge Gonzales has given thank you for the dialogue we have had He is duty bound to undertake that me his written pledge that he opposes about my nomination by the President to responsibility under the Constitution torture in all of its forms and will use serve as Attorney General. I am pleased to

VerDate Aug 04 2004 01:18 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.068 S02PT1 S868 CONGRESSIONAL RECORD — SENATE February 2, 2005 reaffirm for you my positions on several I have spoken to Judge Gonzales ell, the former Chairman of the Joint issues I know are important to you. about the needs of law enforcement Chiefs of Staff, or of the State Depart- I understand, I agree with, and I will act in around the country. He has pledged his ment lawyers. He did not stand up for accord with the principle that the Attorney General of the United States is the nation’s support and has pledged to come to the military and interpret our obliga- chief law enforcement officer, with client re- Colorado to meet and learn from Colo- tions consistent with the Army Field sponsibilities and other important duties to rado’s heroic law enforcement officers Manual and the decades of sound prac- the people of the United States. If confirmed, about their experiences and their tice and counsel from the Judge Advo- I will lead the Department of Justice and act needs. cate General’s Corps. on behalf of agencies and officials of the Finally, Judge Gonzales, I believe in That is why I object to this nominee. United States. Nevertheless, my highest and his heart, knows about the importance I ask unanimous consent to have most solemn obligation will be to represent printed in the RECORD an article de- the interests of the People. I know that you of civil rights and liberties. He knows understand this solemn duty well from your first hand of the indignities of a soci- scribing Judge Gonzales’s interroga- prior service as Chief Counsel to the Gov- ety that turns a blind eye to discrimi- tion policies, written by Jeffrey Smith ernor and as Colorado Attorney General. nation and prejudice. Because he and Dan Eggen. I do not condone torture in any form. I knows that reality of the American ex- There being no objection, the mate- confirm to you that the United States of perience, I expect him, as Attorney rial was ordered to be printed in the America does not condone the torture of RECORD, as follows: anyone by our country or by anyone else. General, to help lead the way for the [From the Washington Post, Jan. 5, 2005] The laws of the United States and the inter- creation of an America that despises national obligations of the United States hate and bigotry and recognizes that GONZALES HELPED SET THE COURSE FOR DE- prohibit torture in all its forms. These inter- every human being deserves a govern- TAINEES—JUSTICE NOMINEE’S HEARINGS national obligations include the Geneva Con- ment that will fight for the dignity and LIKELY TO FOCUS ON INTERROGATION POLI- ventions, which I consider binding upon the equality of all. CIES United States. I reaffirm to you that, if con- I will vote to confirm Judge Alberto (By R. Jeffrey Smith and Dan Eggen) firmed as Attorney General, I will enforce Gonzales to be the next Attorney Gen- In March 2002, U.S. elation at the capture these laws and international obligations ag- of al Qaeda operations chief Abu Zubaida was gressively to prohibit torture in all its eral of the United States. I yield the floor and suggest the ab- turning to frustration as he refused to bend forms. to CIA interrogation. But the agency’s offi- I pledge to do so for two reasons. These are sence of a quorum. cers, determined to wring more from Abu the laws of the United States, and I am obli- The PRESIDING OFFICER. The Zubaida through threatening interrogations, gated to uphold those laws. And, secondly, clerk will call the roll. worried about being charged with violating any action by the United States that under- The legislative clerk proceeded to domestic and international proscriptions on mines the Geneva Conventions threatens the call the roll. torture. safety and security of our troops. They asked for a legal review—the first Also, I agree with you that our country Mr. LEAHY. Mr. President, I ask unanimous consent that the order for ever by the government—of how much pain should continue its broad and healthy debate and suffering a U.S. intelligence officer could about the provisions of the USA Patriot Act, the quorum call be rescinded. inflict on a prisoner without violating a 1994 particularly with regard to the necessary The PRESIDING OFFICER. Without law that imposes severe penalties, including balance between civil liberties and the abil- objection, it is so ordered. life imprisonment and execution, on con- ity of law enforcement and other officials to Mr. LEAHY. Mr. President, I am dis- victed torturers. The Justice Department’s protect public safety. I keep an open mind on turbed that even though there are Office of Legal Counsel took up the task, and these issues. I welcome your views on these some Democrats who support Judge at least twice during the drafting, top ad- matters, and I look forward to our continued ministration officials were briefed on the re- discussions. Gonzales, and some who oppose, I have I understand your concern about increased heard some Senators on the other side sults. funding for state and local law enforcement. of the aisle imply that those who op- White House counsel Alberto R. Gonzales As Attorney General, I will work with you pose this nomination are biased chaired the meetings on this issue, which in- and our state and local law enforcement cluded detailed descriptions of interrogation against him based on his ethnic back- techniques such as ‘‘waterboarding,’’ a tactic community to do the best job we can to ground. I resent that charge. make our communities safer. intended to make detainees feel as if they Finally, I understand the importance of For somebody to say that those op- are drowning. He raised no objections and, civil rights and equal opportunity for all posed are biased against Judge without consulting military and State De- Americans. I will work to uphold those Gonzales because of his ethnicity is partment experts in the laws of torture and rights and opportunities as Attorney Gen- preposterous and deeply offensive. war, approved an August 2002 memo that eral. We have stood here for 2 days ex- gave CIA interrogators the legal blessings Thank you for the opportunity to explain plaining our positions. Many of us have they sought. Gonzales, working closely with a small my position on these matters for you. I ap- said if we were voting on the story and preciate your friendship and your support. group of conservative legal officials at the Sincerely, on the achievements of Judge White House, the Justice Department and ALBERTO R. GONZALES, Gonzales, which are commendable, we the Defense Department—and overseeing de- Counsel to the President. would be voting for him. If we were liberations that generally excluded potential Mr. SALAZAR. Mr. President, I have voting on what he has overcome in his dissenters—helped chart other legal paths in spent the last 6 years of my life as the life and career, we would be voting for the handling and imprisonment of suspected terrorists and the applicability of inter- attorney general of the great State of him. What we have said clearly, how- ever, is that we are voting against him national conventions to U.S. military and Colorado working with people I con- law enforcement activities. sider to be my brothers and sisters in based upon his conduct as Counsel to His former colleagues say that throughout law enforcement. I have met with the the President. We have come to this de- this period, Gonzales—a confidant of George widows of fallen officers, and I led our cision based upon his record. W. Bush’s from Texas and the president’s State efforts to train Colorado’s 14,000 Let us talk about that record. Judge nominee to be the next attorney general— peace officers. Gonzales has argued that the Conven- often repeated a phrase used by Defense Sec- I have deep respect for the 750,000 tion Against Torture and Other Cruel, retary Donald H. Rumsfeld to spur tougher men and women in law enforcement Inhuman and Degrading Treatment or antiterrorism policies: ‘‘Are we being for- ward-leaning enough?’’ who risk their lives every day to keep Punishment does not prohibit cruel, in- But one of the mysteries that surround each of us and our communities safe. human, or degrading treatment or pun- Gonzales is the extent to which these new These men and women will be the ishment with ‘‘respect to aliens over- legal approaches are his own handiwork backbone of our Nation’s Homeland Se- seas.’’ Reaching this conclusion re- rather than the work of others, particularly curity efforts. I respect their judgment quires such twisted reasoning that Vice President Cheney’s influential legal and opinion. In that regard, I stand even those who support Judge Gonzales counsel, David S. Addington. with the Fraternal Order of Police, the must part company with him on this Gonzales’s involvement in the crafting of point. the torture memo, and his work on two pres- National District Attorneys Associa- idential orders on detainee policy that pro- tion, the FBI Agents Association, and I am also disturbed by his interpreta- voked controversy or judicial censure during the Law Enforcement Alliance of tion of the Geneva Conventions. Judge Bush’s first term, is expected to take center America, all of whom have endorsed Gonzales did not follow the advice he stage at Senate Judiciary Committee hear- Judge Gonzales as Attorney General. received from Secretary of State Pow- ings tomorrow on Gonzales’s nomination to

VerDate Aug 04 2004 01:18 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\A02FE6.020 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S869 become attorney general. The outlines of Texas native and the son of Mexican immi- them,’’ he said, adding that Gonzales was Gonzales’s actions are known, but new de- grants, Gonzales served for two years in the ‘‘neither the tool of an aggressive staff nor tails emerged in interviews with colleagues Air Force before graduating from Rice Uni- the quarterback of a reluctant team.’’ and other officials, some of whom spoke only versity and Harvard Law School. He met Current and former White House officials on the condition of anonymity because they Bush during his 1994 gubernatorial campaign, interviewed for this article listed only a few were involved in confidential government while Gonzales was a partner at the politi- episodes in which Gonzales forcefully pressed policy deliberations. cally connected Houston law firm Vinson & a position at odds with ideological conserv- On at least two of the most controversial Elkins. atives. None was in the terrorism field. policies endorsed by Gonzales, officials fa- Upon election, Bush appointed him as his Walker said she is aware of criticism that miliar with the events say the impetus for personal counsel, later as Texas secretary of Gonzales ‘‘should have been saying ‘I believe action came from Addington—another reflec- state and eventually as a justice on the this or that’’’ about some of the provocative tion of Cheney’s outsize influence with the Texas Supreme Court. Within weeks of the issues presented to him. ‘‘He did not see his president and the rest of the government. 2000 presidential election, Bush tapped job as being about him’’ but about advo- Addington, universally described as out- Gonzales to be his White House counsel, and cating Bush’s interests, she explained. ‘‘The spokenly conservative, interviewed can- Gonzales set about creating what officials judge is not consumed with his own impor- didates for appointment as Gonzales’s dep- there proudly described as one of the most tance, unlike some others in Washington.’’ uty, spoke at Gonzales’s morning meetings ideologically aligned counsel’s offices in DETAINEE POLICY and, in at least one instance, drafted an years. early version of a legal memorandum cir- Bringing only one associate to Washington Unlike many of his predecessors since the culated to other departments in Gonzales’s from Texas, Gonzales forged his staff instead Reagan era, Gonzales lacked much experi- name, several sources said. from a tightknit group of Washington-based ence in federal law and national security Conceding that such ghostwriting might former clerks to Supreme Court or appellate matters. So when the Pentagon worried seem irregular, even though Gonzales was judges, all of whom had worked on at least about how to handle expected al Qaeda de- aware of it, one former White House official one of three touchstones of the conservative tainees in the days after the Sept. 11 attacks said it was simply ‘‘evidence of the closeness movement: the Whitewater and Monica S. and the Oct. 7 U.S. attack on Afghanistan, of the relationship’’ between the two men. Lewinsky inquiries of former president Bill Gonzales organized an interagency group to But another official familiar with the admin- Clinton, the Bush-Cheney election campaign, take up the matter under the State Depart- istration’s legal policymaking, who spoke on and the Florida vote-counting dispute. ment’s war crimes adviser, Pierre-Richard the condition of anonymity because such de- ‘‘It was an office of like-minded’’ lawyers Prosper. liberations are supposed to be confidential, and ‘‘strong personalities,’’ said Bradford A. Former attorney general William P. Barr said that Gonzales often acquiesced in pol- Berenson, a criminal defense lawyer ap- suggested to Gonzales’s staff early on that icymaking by others. pointed as one of eight associate counsels in those captured on the battlefield go before This might not be the best quality for an Gonzales’s office. ‘‘There was not a shrinking military tribunals instead of civil courts. official nominated to be attorney general, violet in the bunch.’’ But Ashcroft and Michael Chertoff, his dep- the nation’s top law enforcement job, the ad- ‘‘Federalist Society regulars’’ is the way uty for the criminal division, both ada- ministration official said. He added that he another former associate counsel, H. Chris- mantly opposed the plan, along with mili- thinks Gonzales learned from mistakes dur- topher Bartolomucci, described the Gonzales tary lawyers at the Pentagon. The result was ing Bush’s first term. staff and its ideological allies elsewhere in that the process moved slowly. Supporters of Gonzales depict him as a the government, such as Deputy Assistant Addington was the first to suggest that the more pragmatic successor to John D. Attorney General John Yoo and Defense De- issue be taken away from the Prosper group Ashcroft, and a cautious lawyer who care- partment General Counsel William J. Haynes and that a presidential order be drafted au- fully weighs competing points of view while II. All were adherents to the theory that the thorizing the tribunals that he, Gonzales and pressing for aggressive anti-terrorism ef- Constitution gives the president consider- Timothy E. Flanigan, then a principal dep- forts. His critics have expressed alarm at ably more authority than the Congress and uty to Gonzales, supported. It was intended what they regard as his record of excluding the judiciary. for circulation among a much smaller group dissenting points of view in the development One of the clearest examples of this ambi- of like-minded officials. Berenson, Flanigan of legal policies that fail to hold up under tion was Gonzales’s long-running and ulti- and Addington helped write the draft, and on broader scrutiny and give short shrift to mately futile battle with the independent Nov. 6, 2001, Gonzales’s office secured an human rights. commission that investigated the Sept. 11, opinion from the Justice Department’s Of- His nomination has, in short, become an- 2001, terrorist attacks. Gonzales’s office, act- fice of Legal Counsel that the contemplated other battleground for the debate over ing as the liaison between the White House military tribunals would be legal. whether the administration has acted pru- and the 10-member bipartisan panel, repeat- That office, historically the government’s dently to forestall another terrorist attack edly resisted commission demands for access principal internal domestic law adviser, was or overreached by legally sanctioning rights to presidential documents and officials such also staffed by advocates of expansive execu- abuses. as national security adviser Condoleezza tive powers; it had told the White House in One thing is clear: Gonzales, 49, enjoys Rice, prompting angry and public disputes. a classified memo five weeks earlier that the Bush’s trust. He has worked directly with Gonzales is ‘‘a good lawyer and a nice guy, president’s authority to wage preemptive the former Texas governor for more than and maybe he was a decent judge for a year, war against suspected terrorists was vir- nine years, advising him on sensitive foreign but he didn’t bring a lot of political judg- tually unlimited, partly because proving policy and defense matters that rarely—if ment or strategic judgment to their dealings criminal responsibility for terrorist acts was ever—fell within the purview of previous with the commission,’’ a senior commission so difficult. White House counsels. official said. ‘‘He hurt the White House po- After a final discussion with Cheney, Bush For example, when the Justice Department litically by antagonizing the commissioners signed the order authorizing military tribu- formally repudiated the legal reasoning of . . . and all of it for no good reason. In the nals on Nov. 13, 2001, while standing up, as he the August 2002 interrogation memo last end, the stuff all came out.’’ was on his way out of the White House to his week in another document that Gonzales re- Each morning, Gonzales convened round Texas ranch for a meeting with Russian viewed, it was overturning a policy with con- tables at which his staff—as well as President Vladimir Putin. It provided for the sequences that Gonzales heard discussed in Addington—related their legal conundrums. military trial of anyone suspected of belong- intimate detail—to the point of learning Gonzales was ‘‘not a domineering personality ing to al Qaeda or conspiring to conduct or what the physiological reactions of detainees . . . and he gave us a chance to speak our assist acts of terrorism; conviction would might be to the suffering the CIA wanted to minds,’’ said Helgi C. Walker, a former clerk come from a two-thirds vote of the tribunal inflict, those involved in the deliberations for Clarence Thomas who was an associate members, who would adjudicate fact and law said. counsel from 2001 to 2003. and decide what evidence was admissible. The White House said Gonzales and ‘‘There was often a lively debate, but at Decisions could not be appealed. Addington, a former Reagan aide and Pen- the end it was not clear where Gonzales Cut out in the final decision making were tagon counsel, were unavailable to be inter- was,’’ another former colleague said. A sec- military lawyers, the State Department and viewed for this article. But asked to com- ond former colleague recalls that in inter- Chertoff, as well as Rice, her deputy, Ste- ment on whether Gonzales acquiesced too agency meetings, Gonzales sat in the back phen J. Hadley, and Rice’s legal adviser, easily on legal policies pushed by others, and was ‘‘unassuming, pleasant and quiet.’’ John Bellinger. ‘‘I don’t think Gonzales felt spokesman Brian Besanceney responded that So discreet was Gonzales about his opinions he was acting precipitously, but he realized Gonzales had ‘‘served with distinction and that one official who worked closely with people would be surprised,’’ Flanigan said. It with the highest professional standards as a him for a year said ‘‘he never made an im- amounted to a decision that the president lawyer’’ in private practice, state govern- pression on me.’’ could act without ‘‘the entire staff’s bless- ment and the White House, and he ‘‘will con- But Berenson says Gonzales was hardly ing. As it turned out, they [National Secu- tinue to do so as attorney general.’’ pushed around by officials who thought they rity Council officials] just weren’t involved A SUCCESS STORY had a monopoly on wisdom. ‘‘I didn’t have in the process.’’ Bush has told people that he was attracted the sense that he was whipping his horses or Berenson, who left the White House for pri- by Gonzales’s rags-to-riches life story. A that they were dragging him along behind vate practice in 2003, said ‘‘there were such

VerDate Aug 04 2004 05:19 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\CR\FM\A02FE6.021 S02PT1 S870 CONGRESSIONAL RECORD — SENATE February 2, 2005 strong shared assumptions at the time [that] mation about such policymaking. State ‘‘saw that the senior Senator from Utah said we had a powerful sense of mission.’’ He at- its mission as representing the interests of yesterday regarding the President’s tributes the haste to worry about another the rest of the world to the president, in- February 2002 directive on the treat- terrorist attack. stead of the president’s interests to the ment of al-Qaida and Taliban detain- But David Bowker, then a State Depart- world,’’ one aide said. ees. According to Senator HATCH, ‘‘the ment lawyer excluded from the process and THE DEBATE OVER TORTURE now in private practice, called the order pre- President [said] unequivocally that de- This schism created additional problems tainees are to be treated humanely.’’ In mature and politically unwise. ‘‘The right when Gonzales approved in August 2002— thing to do would have been an open process fact, the President’s directive said only after limited consultation—an Office of that ‘‘the U.S. Armed Forces’’ should inside the government,’’ he said. Legal Counsel memo suggesting various The tribunals were halted by U.S. District stratagems that officials could use to defend treat detainees humanely. The Presi- Judge James Robertson, who ruled on Nov. themselves against criminal prosecution for dent’s directive pointedly did not apply 24, 2004, that detainees’ rights are guaran- torture. to the CIA and other nonmilitary per- teed by the Geneva Conventions—which the Drafted at the request of the CIA, which sonnel. administration had argued were irrelevant. sought legal blessing for aggressive interro- I asked Judge Gonzales: REBELLION AT STATE gation methods for Abu Zubaida and other al Does the President’s February 7, 2002, di- Four weeks after Bush’s executive order, a Qaeda detainees, the memo contended that rective regarding humane treatment of de- similarly limited deliberation provoked only physically punishing acts ‘‘of an ex- tainees apply to the CIA or any other non- more determined rebellion at the State De- treme nature’’ would be prosecutable. It also military personnel? partment and among military lawyers and said that those committing torture with ex- He replied: officers. The issue was whether al Qaeda and press presidential authority or without the No. By its terms, the February 7, 2002, di- intent to commit harm were probably im- Taliban fighters captured on the battlefield rective ‘‘reaffirm[s] the order previously mune from prosecution. in Afghanistan should be accorded the Gene- issued by the Secretary of Defense to the The memo was signed by Jay S. Bybee, va Conventions’ human rights protections. United States Armed Forces.’’ Gonzales, after reviewing a legal brief from then an assistant attorney general and now a the Justice Department’s Office of Legal federal appellate judge, but written with sig- In other words, contrary to what he Counsel, advised Bush verbally on Jan. 18, nificant input from Yoo, whom Gonzales had have heard, and continue to hear, from 2002, that he had authority to exempt the de- tried to hire at the White House and later Judge Gonzales’s supporters, the Presi- tainees from such protections. Bush agreed, endorsed to head Justice’s legal counsel of- dent’s oft-quoted directive regarding reversing a decades-old policy aimed in part fice. During the drafting of the memo, Yoo the humane treatment of detainees is at ensuring equal treatment for U.S. mili- briefed Gonzales several times on its con- carefully worded to permit the occa- tary detainees around the world. Rumsfeld tents. He also briefed Ashcroft, Bellinger, sional inhumane treatment of detain- issued an order the next day to commanders Addington, Haynes and the CIA’s acting gen- ees. Indeed, that is one of the legal that detainees would receive such protec- eral counsel, John A. Rizzo, several officials said. loopholes that concerns so many of us. tions only ‘‘to the extent appropriate and Mr. President, I yield the floor and consistent with military necessity.’’ At least one of the meetings during this Secretary of State Colin L. Powell—whose period included a detailed description of the suggest the absence of a quorum. legal adviser, William H. Taft IV, had vigor- interrogation methods the CIA wanted to The PRESIDING OFFICER (Mr. ously tried to block the decision—then met use, such as open-handed slapping, the threat COBURN). The clerk will call the roll. twice with Bush to convince him that the de- of live burial and ‘‘waterboarding’’—a proce- The legislative clerk proceeded to cision would be a public relations debacle dure that involves strapping a detainee to a call the roll. and would undermine U.S. military prohibi- board, raising the feet above the head, wrap- Ms. COLLINS. Mr. President, I ask tions on detainee abuse. Gen. Richard B. ping the face and nose in a wet towel, and unanimous consent that the order for Myers, chairman of the Joint Chiefs of Staff, dripping water onto the head. Tested repeat- the quorum call be rescinded. backed Powell, as did the leaders of the U.S. edly on U.S. military personnel as part of in- The PRESIDING OFFICER. Without Central Command who were pursuing the terrogation resistance training, the tech- objection, it is so ordered. war. nique proved to produce an unbearable sensa- Ms. COLLINS. Mr. President, I rise The task of summarizing the competing tion of drowning. today in support of the nomination of State Department officials and military points of view in a draft letter to the presi- Alberto Gonzales to be Attorney Gen- dent was seized initially by Addington. A lawyers were intentionally excluded from memo he wrote and signed with Gonzales’s these deliberations, officials said. Gonzales eral of the United States. name—and knowledge—was circulated to and his staff had no reservations about the Judge Gonzales’s story is truly inspi- various departments, several sources said. A legal draft or the proposed interrogation rational. A man from humble begin- version of this draft, dated Jan. 25, 2002, was methods and did not suggest major changes nings—Humble, TX, to be precise—he subsequently leaked. It included the eye- during the editing of Yoo’s memo, two offi- grew up in a modest home built by his catching assertion that a ‘‘new paradigm’’ of cials involved in the deliberations said. father and uncle where he lived with a war on terrorism ‘‘renders obsolete Gene- The memo defined torture in extreme his parents and seven brothers and sis- va’s strict limitations on questioning of terms, said the president had inherent pow- ters with no hot water and no tele- enemy prisoners.’’ ers to allow it and gave the CIA permission phone. His parents were migrant work- In early February 2002, Gonzales reviewed to do what it wished. Seven months later, its conclusions were cited approvingly in a De- ers who never even finished elementary the issue once more with Bush, who re- school, but they believed in the Amer- affirmed his initial decision regarding his fense Department memo that spelled out the legal authority but chose not to invoke it Pentagon’s policy for ‘‘exceptional interro- ican dream. They worked hard to give immediately for Taliban members. Flanigan gations’’ of detainees at Guantanamo Bay, their children an education and to in- said that Gonzales still disagreed with Pow- Cuba. still in them the American values of ell but ‘‘viewed his role as trying to help the When the text was leaked to the public last personal responsibility and hard work. president accommodate the views of State.’’ summer, it attracted scorn from military At the age of 12, Alberto Gonzales Thirty months later, a Defense Depart- lawyers and human rights experts worldwide. had his first job selling soft drinks at ment panel chaired by James R. Schlesinger Nigel Rodley, a British lawyer who served as Rice University football games where concluded that the president’s resulting Feb. the special U.N. rapporteur on torture and inhumane treatment from 1993 to 2001, re- he dreamed of one day going to college. 7 executive order played a key role in the Through determination, intelligence, Central Command’s creation of interrogation marked that its underlying doctrine ‘‘sounds policies for the Abu Ghraib prison in Iraq. like the discredited legal theories used by and hard work, he achieved his dream. A former senior military lawyer, who was Latin American countries’’ to justify repres- He graduated from Rice University, the involved in the deliberations but spoke on sion. first in his family to earn a college de- the condition of anonymity, complained that After two weeks of damaging publicity, gree, and went on to excel at Harvard Gonzales’s counsel’s office had ignored the Gonzales distanced himself, Bush and other Law School. language and history of the conventions, senior officials from its language, calling the Alberto Gonzales is a dedicated pub- treating the question ‘‘as if they wanted to conclusions ‘‘unnecessary, over-broad discus- lic servant. He has served his country look at the rules to see how to justify what sions’’ of abstract legal theories ignored by in many capacities, including his serv- they wanted to do.’’ policymakers. Another six months passed be- fore the Office of Legal Counsel, under new ice in the U.S. Air Force, as a judge on ‘‘It was not an open and honest discus- the Texas Supreme Court, and as Texas sion,’’ the lawyer said. direction, repudiated its reasoning publicly, For Gonzales’s aides, however, the experi- one week before Gonzales’s confirmation secretary of state. Judge Gonzales ence only reinforced a concern that the hearing. knows well that holding a public office State Department and the military legal Mr. LEAHY. Mr. President, I want to involves a bond with the American peo- community should not be trusted with infor- set the record straight on something ple.

VerDate Aug 04 2004 05:19 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\A02FE6.025 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S871 He has proven himself as a man of in- Attorney General, Alberto Gonzales. I Convention does not apply to these tegrity and with the highest profes- have read as much as I could about his kinds of captives. sional qualifications. That is why background and his life. Most impor- I do not know how else to say it. Judge Gonzales has broad support from tantly, I have read what those who There is opinion after opinion, inter- groups and individuals across our coun- have lived and worked with him during pretation after interpretation, that the try. His nomination is supported by the his life have had to say about him, and title which talks about the care and Hispanic National Bar Association, the I will read what they have had to say how one must treat prisoners of war League of United Latin American Citi- about him shortly. does not apply to terrorists. I will in- zens, the Fraternal Order of Police, the From everything I have read and sert in the RECORD three different lead- National District Attorneys Associa- learned, I have concluded that some on ing scholarly statements that say that tion, and the FBI Agents Association, that side of the aisle oppose him for to- is the case. Now, that is logical. to name just a few of these groups. tally personal, partisan, and political One might say, well, is America for He also has bipartisan support from reasons, no question about it. I do not torture? No. That is not logical. What those who know him best, including want to speculate as to why because it is logical is when the Geneva Conven- leading Democrats, for example, Henry is really inconceivable to me that tions were drawn, we were talking Cisneros, who served as Secretary of Democrats would do what they are about prisoners of war such as those in Housing and Urban Development under doing to this man. the First and the Second World Wars, President Clinton. Mr. Cisneros, a For decades, they used to talk about where literally thousands of soldiers former mayor of San Antonio, writes: the Democrat Party being the party of belonging to an army of another nation In the 36 years that I have voted, I have Hispanics, as if it were just as natural were gathered and this was to say that supported and voted for only one Republican. and normal as day follows night that you have to treat them a certain way. That was when Alberto Gonzales ran for Hispanics, that minority which is They belong to a country. Terrorists do election to the Texas Supreme Court. I mes- growing, just ought to be Democrats. not belong to any country. They are saged friends about this uncommonly capa- Well, something has happened a little not fighting a war for a country. They ble and serious man [and] I urged them to bit. Some change is occurring, and sure are not part of an organized military support his campaign. . . . He is now Presi- dent Bush’s nominee to be Attorney General enough this President is tinkering with that you capture. of the United States and I urge his confirma- that toy of theirs. He is appointing I don’t need to go into all that. I can tion. more qualified Hispanics to high office just say, that is a bum rap, to say he I have had the personal opportunity than any of their Presidents ever have. should not be Attorney General be- to meet with Judge Gonzales to discuss My colleagues cannot say Alberto cause he might have said or signed a many issues over the last few years on Gonzales was nominated just because memo that said we do not need to many different occasions. I have al- he is a minority with the name apply the Geneva Conventions to these ways found him to be a man who hon- Gonzales, because every single quali- captives. If that were the case, that ored his commitments, who kept his fication that one would require he has should not disqualify him because that promises. I know he is a leader who is met. is the predominant law, interpretive dedicated to protecting America, to Did the American Bar Association law of that convention. following the Constitution, and to ap- approve? Absolutely. What did the bar Then we say: Senator, you are not plying the rule of law. of Texas think about him? They named saying, since that is not the case, you The position of the Attorney General him to one of their highest offices be- are free to do whatever you want to is as challenging a job as ever given the fore we ever thought of him. What prisoners? Not at all. There still is a post-9/11 environment, but I am con- about law firms in Texas? He has been rule of law regarding the treatment of fident that as our Nation’s chief law a member of the best law firms there prisoners. I do not think anybody can enforcement officer, Judge Gonzales are. What about judicial temperament? rightfully get up and say Alberto will continue the progress we have He sat on the highest civil and crimi- Gonzales promoted or implicitly pro- made in fighting the war against ter- nal court in the big, great State of moted treating these kind of captives rorism, in combating crime, in Texas. Now, they did not all do that be- any old way you want. I do not believe strengthening the FBI, and in con- cause his name is Gonzales, but it just that is the case. tinuing to protect our cherished civil happens that it is. So I don’t know what we are talking liberties. Nor did they approve of him because about. There might be something. As Judge Gonzales himself said re- he was born in poverty, because his There might be something. It might be garding his nomination: parents did not speak English, or be- that there has been a decision on that side of the aisle to just make every ap- The American people expect and deserve a cause he lived in a house without run- Department of Justice guided by the rule of ning water. They did not approve of pointment of the President difficult, or law, and there should be no question regard- him because of that. They approved of anyone they can find the least thing ing the Department’s commitment to justice him because he was qualified. about, make it difficult. Let me say, I for every American. On this principle there So then one might ask, what is all don’t think it does them any good. I can be no compromise. this objection about? It seems as if don’t think the American people, 2 Alberto Gonzales, the man from there is an idea that for some reason or weeks from now, are going to think Humble, is committed to ensuring jus- another he has had a bad impact on our this effort on their part did anything tice for each and every American. He is country’s name because he is for tor- to hurt this man or hurt our President. committed to the rule of law. He de- turing prisoners, or if I am reading too What I am concerned about is whether serves our confirmation, and I urge my much into that then maybe it is he set the Democratic Party thinks it is colleagues to join me in voting for his a bad example which hurt America be- going to help them because I do think confirmation. cause people perceived he was for tor- it is another opportunity for Hispanics I thank the distinguished senior Sen- turing prisoners and he did not do any- to say, Why should we be Democrats? I ator from New Mexico for allowing me thing about it. think that is giving that nail another to precede him. Based on the record, based on the nice pound with a nice strong hammer. Mr. DOMENICI. Mr. President, I law, based on the interpretation of the I do not think there is any question thank the Senator for her good words. law, that is about as flimsy a reason as about that. Needless to say, I agree with the Sen- one could ever have for not approving I do think there is a growing concern ator and I hope that sometime tomor- this man to be Attorney General. on that side of the aisle as to who is row an overwhelming number of Sen- First, I do not want to take a lot of going to be the next Supreme Court ators from both sides of the aisle will time. It is late. We have heard a lot. I Justice. I know some might say: Sen- do likewise. did not come here without checking a ator DOMENICI, get off that. The PRESIDING OFFICER. The Sen- few things. I find that most authentic No, no, every time you get in cor- ator from New Mexico. and reliable discerners, interpreters of ners, little corners where people are Mr. DOMENICI. Mr. President, I rise the legal consequences of the Geneva talking up here, the subject is, who do in behalf of the President’s nominee for Convention conclude that the Geneva you think the President can appoint

VerDate Aug 04 2004 03:10 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.081 S02PT1 S872 CONGRESSIONAL RECORD — SENATE February 2, 2005 who can get by the Senate? There was young Texans by the Texas JCs, and an him. I wouldn’t expect them to be for a lot of talk up here that maybe Outstanding Young Lawyer of Texas. this nominee. Alberto Gonzales was that person. I He was also suggested as the Texas I think I said most of what I wanted don’t know that. It looks to me, based Young Lawyer by their association. to say to the Senate for those who are on his history, based on his back- There are many more. I merely read interested in the other side of the coin ground, based on his relationship with these, and you know that they all are from what the Democrats—small in the President, he might be. But maybe, giving accolades, and that those who number but by sufficient numbers— if you make enough noise about him are giving accolades or giving awards want to make a lot of people in the and attempt to stick enough signs up are Hispanic. They are Hispanic organi- country think, that this man should on a billboard saying he is this, that, zations, Hispanic individuals. I think not have this job. or the other, maybe he will not be a that means something. We are very I think they are wrong. I think the candidate, a probable candidate any- proud as Republicans that the minority Hispanic community of America should more. That could be what some people Hispanics in America are thrilled with know that they are wrong. I think the think. I do not know. I hope it is not, this appointment. Hispanic community of America should and I hope, in spite of what has hap- I looked very carefully at a couple of know that most people who are con- pened, it doesn’t. organizations that have been cited or if cerned about them—Hispanic Ameri- I am not here as his champion for not should be cited as being opposed to cans—are for him. I think they could that job. That is the President’s job. him. I would be remiss if I didn’t tell rightfully conclude that those who are But I think it would be terrific if the you I would expect that they would be not for him don’t care about Hispanic President of the United States followed because they are so Democratic, I don’t Americans because most of them over- up on all the things he has done to think they could be for a Republican whelmingly think he is the right man prove that he has no discrimination Felix Frankfurter to be U.S. Attorney for this job. about his personal being and no dis- General if he were Republican. A cou- I thank the Senate for the few mo- crimination that stems from his party, ple of these Spanish organizations are ments I have had to discuss this matter or Republicans. He is open. He has, in so devoted to Democrats, they could and hope that my few words will have his Cabinet, we all know, a distin- not be for a Hispanic U.S. Attorney something to do with adding to the guished group of Americans who are General if he were Republican no mat- chorus of support for this candidate, minorities. This would be another one. ter what his name is. So it doesn’t and for some of those who listened to I want to close by saying I am very bother me that two of them are. that which is said against him will at pleased that a lot of organizations in But the League of United Latin least think if they were leaning toward this country, and a lot of distinguished American Citizens—LULAC, they are believing that, that there really is an- people have not bought the arguments for him. The National Council of La other side; and that real side is prob- made by the other side because they Raza—whether you agree with any of ably somewhere close to what I said in know him, they like him, they are fa- these or not—is for him. The Hispanic the last 10 minutes. miliar with him, they trust him, and National Bar Association is for him. I yield the floor. they want him to be Attorney General. The National Association of Latino The PRESIDING OFFICER. The Sen- Let me say first, about Henry Elected and Appointed Officials, they ator from Illinois. Cisneros—a lot of Americans and a lot are for him. The U.S. Hispanic Cham- Mr. DURBIN. Mr. President, I ask of Hispanic Americans know who he is. ber of Commerce is for him. unanimous consent to speak as if in He had a little downfall in his career, I can go on. There are eight more. I morning business. but he is a very considerate, intel- ask unanimous consent the list in its The PRESIDING OFFICER. Without ligent, concerned Hispanic American entirety be printed in the RECORD. objection, it is so ordered. from the State of Texas. He is the There being no objection, the mate- Mr. DURBIN. Mr. President, I have former mayor of San Antonio and a rial was ordered to be printed in the listened carefully to the remarks of the former Cabinet member, Democratic Record, as follows: Senator from New Mexico, and I would Presidential appointee. GONZALES NOMINATION—POSITIONS OF like to say two or three things for the I will not make his letter part of the HISPANIC GROUPS RECORD. SUPPORT RECORD since it has already been print- The criticism has been leveled that ed in the RECORD. It is dated January 5, League of United Latin American Citizens the Democrats are somehow obstruc- 2005, to the Wall Street Journal. (LULAC) tionists; that we are standing in the National Council of La Raza (Kerry)—Presi- This is a tremendous examination of path of the President to filling his Cab- dential Endorsement inet. The Senator from New Mexico who this nominee is, what he has done, Hispanic National Bar Associations what he has demonstrated, and the National Association of Latino Elected and knows this is the second rollcall on the conclusion that it will be good for Appointed Officials nominees of the President. Six nomi- America to have an Attorney General Hispanic Association of Colleges and Univer- nees for the Cabinet positions asked for who has memories like those—having sities (HACU) by President Bush have been approved stated his upbringing and the like— United States Hispanic Chamber of Com- by voice vote—without even a recorded merce vote having been taken. Only one re- . . . because he can rely on those memories Hispanic Alliance for Progress to understand the realities that many Amer- mains: Mr. Chertoff. To suggest that The Latino Coalition (Bush) somehow we are delaying, obstructing, icans still confront in their lives. I believe he Hispanic Business Roundtable (Bush) will apply those life experiences to the work New American Alliance standing in the road of progress for ahead. His confirmation by the Senate can MANA (national latina women’s organiza- this administration is to overlook the be part of America’s steady march toward tion) obvious. liberty and justice for all. National Association of Hispanic Publishers We have cooperated with this admin- That is not a Republican, that is not National Association of Hispanic Fire- istration. We have done our best to ex- the President, that is Henry Cisneros. fighters (Bush) pedite the hearings on these nominees. He signs it: Secretary of Housing and WITHHELD ENDORSEMENT There are only two of the highest po- Urban Development under President Mexican American Legal Defense and Edu- sitions—Secretary of State and Attor- Clinton, mayor of San Antonio, TX, cational Fund ney General—that have evoked any from 1981 through 1989. OPPOSE substantive floor debate. Mr. Gonzales, in 1989, was recognized Congressional Hispanic Caucus (Kerry) As I listen to my Republican col- as the Latino Lawyer of the Year by Mexican American Political Association leagues, it appears that their advice to the Hispanic National Bar Association National Latino Law Students Association the Democratic minority is to sit down and received a Presidential citation Mr. DOMENICI. There is a congres- and be quiet; you lost the election. from the State Bar of Texas in 1997 for sional Hispanic caucus which was But, as I understand it, each of us has his dedication in addressing the basic among those that I was mentioning a been elected to represent a State and legal needs of the indigent. He was cho- while ago. They endorsed Senator to stand up for the values in which we sen as one of the five outstanding KERRY, supported him, campaigned for believe. To ask for a few moments on

VerDate Aug 04 2004 03:10 Feb 03, 2005 Jkt 039060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\G02FE6.083 S02PT1 February 2, 2005 CONGRESSIONAL RECORD — SENATE S873 the floor to debate an important nomi- I hope that nobody would let the dis- 20 years of history we will look at this nation for Secretary of State or Attor- tinguished Senator kind of avoid the war on terrorism and judge us harshly ney General I don’t think is being im- issue. That is not the issue Senator for having sat down to rewrite the poli- pudent. I think it is what we were DOMENICI raises. cies and principles—the human prin- elected to do. The issue is that this man is totally ciples—that guided this country for The Constitution not only empowers qualified; that those who know him decades when it came to the treatment us and authorizes us; it commands us best say he is qualified. It appears that of prisoners and detainees. That is why to advise and consent—not just con- those on the other side of the aisle I have reservations about Judge sent. If we want to spend a day or two want to see him defeated, or put upon Gonzales. That is why I raised these debating something as serious as Judge by their arguments such that he questions, both in a public hearing and Gonzales’s involvement in rewriting doesn’t go into that office strong and in written questions to him personally. the torture policy in America, I don’t full of support but, rather, nicked by That is why I am opposing his nomina- think that is inappropriate. In fact, I attacks that are meaningless and with- tion, simply stated. think our silence would be inappro- out any merit. That is the argument. I have the greatest respect for what priate. I tried to tell everybody who is for he has achieved personally in life, but Those on the other side—and even him. Frankly, they knew him a lot bet- I have a responsibility to go beyond some on this side—may disagree with ter than any Senators knew him. Many that personal achievement and ask the conclusions reached earlier. I think of them like Cisneros knew him for 15 from a professional and governmental you will find when the rollcall comes years—and what he said about him on viewpoint, Is he the best person for this that there will be Senators on both January 5, not 10 years ago, what he job? That is why many of us have risen sides of the aisle voting for Judge was, what he wasn’t, how good he was. in opposition to his nomination. Gonzales. So be it. But to say we are That was my argument. My argu- I yield the floor. somehow stepping out of line by even ment and question was, Why? Maybe The PRESIDING OFFICER. The Sen- debating a nominee for the Cabinet is that is my question. I thank the Sen- ator from Kentucky. just plain wrong. ator for yielding. f Second, this is exactly the same ar- Mr. DURBIN. Mr. President, I thank MORNING BUSINESS gument that was used on the issue of the Senator from New Mexico. I will Mr. MCCONNELL. Mr. President, I make it a practice to always yield the judges. If you listened to the com- ask unanimous consent that there now mentaries, particularly from some floor whenever I possibly can because I be a period of morning business with sources on radio and television, you think dialog between two Senators Senators permitted to speak for up 10 would think that the Democrats had runs perilously close to debate which minutes each. found a way to stop most of the judges we have very little of on the floor of The PRESIDING OFFICER. Without nominated by President Bush over the the Senate. objection, it is so ordered. last 4 years. But look at the cold facts. I welcome the comments of the Sen- f Two-hundred and four of President ator from New Mexico. I may disagree Bush’s judicial nominees were ap- on this issue, but I hope we have re- RECOGNIZING NATIONAL APPRE- proved. They went through this Con- spect for one another and what we CIATION DAY FOR CATHOLIC gress, under both Democratic and Re- bring to this Chamber. SCHOOLS publican committee leadership. Only 10 The point I would like to make is Ms. LANDRIEU. Mr. President, I am nominees were held up. The final score this: I do not know him personally. I pleased to recognize that today, Feb- in that game was 204 to 10. It is clear met him in my office for a brief meet- ruary 2, 2005, is National Appreciation the President won the overwhelming ing, the first time we ever sat down to- Day for Catholic Schools. As a proud percentage of judicial nominees he sent gether. graduate of Catholic schools, I am de- to the floor of the Senate. If you listen I read his life story. I couldn’t help lighted to be able to meet some of to our critics, you would think it was but be impressed. Here is a man who these Catholic school student leaders the opposite—that we only approved 10 came from a very modest cir- to let them know what an investment judges and turned down 204. cumstance, who served his Nation in in our future they are. That wasn’t the case at all. When the Air Force, who went to law school, The spirit of Catholic schools has people come to the floor critical of the who became general counsel to the been present in the United States since Democrats for even wanting to debate Governor of Texas, a member of the the first settlers arrived in America. In a Cabinet nominee, I think they are Texas Supreme Court, and then legal 1606 the Franciscans opened a school in overstating the case. counsel to the President of the United what is now St. Augustine, FL. During Let me address the last point made States. It is an amazing, extraordinary the next century, the Franciscans and by the Senator from New Mexico. life story. Ursulines established Catholic schools Mr. DOMENICI. Mr. President, will Some of my colleagues, including the throughout the American colonies: in the Senator yield for 1 minute? Senator from Colorado, Mr. SALAZAR, Maryland, Massachusetts, Pennsyl- Mr. DURBIN. I would be happy to have talked about their origins and vania, New York, and even in non-Brit- yield for a question. their upbringing and how difficult it is ish colonial locales, such as New Orle- Mr. DOMENICI. I don’t want to take to overcome with discrimination in ans. After the American Revolution, the Senator’s right to the floor under many quarters. Thank goodness that is Catholic patriots worked to open the any circumstances. changing in America but not fast first official parochial school in the First, I ask to speak to ask the Sen- enough. United States, St. Mary’s School, es- ator a question right now, because I The point I would like to make is, I tablished in 1782 in Philadelphia. In can’t stay. I want the Senator to know don’t know a single Member of the Sen- 1789 Georgetown University, the first that I always appreciate his remarks. ate who has taken exception to Judge Catholic college in the United States, They always stimulate me, whatever Gonzales because he is Hispanic or be- was founded right here in the District. the Senator thinks that means. Maybe cause he comes from humble origins. Catholic schools have offered much it stimulates me to answer; maybe it That is not the issue. The issue we be- more to the United States than just makes me get red in the face. I don’t lieve, simply stated, is what did he do longevity, however; America’s Catholic know. as general counsel to the President? schools have offered an academic excel- Anyway, I don’t think my remarks Did it qualify him or disqualify him to lence that has helped to influence the were principally devoted to—in fact, have the highest law enforcement posi- moral, intellectual, physical, and so- only mildly devoted to—the delay that tion in the United States of America? I cial values of our youth for over 300 may be taking place with regard to think that is the issue. years. As Baltimore Archbishop Car- some nominees. I stand on that When I came to the floor to speak dinal James Gibbons said, ‘‘Education premise—that there have been delays earlier—and I will not recount my re- must make a person not only clever that were uncalled for. But that was marks—it related to the torture policy but good.’’ For more than three cen- the principal point. of which he was a part. I think in 10 or turies, Catholic schools in this country

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