The following is the transcript of the Senate Judiciary Committee's hearings on the nomination of Alberto R. Gonzales to be attorney general as transcribed by Federal News Service. SEN. SPECTER: The hour of 9:30 having arrived, we will proceed with the United States Senate Committee on the Judiciary, today to proceed with the hearing of White House Counsel Alberto Gonzales, whom the president has nominated for the position of attorney general of the United States. There will be opening statements by Senator Leahy and myself, and then we will call upon Senator John Cornyn and Senator Ken Salazar to introduce the nominee. And then the nominee will introduce his family, and then we will proceed with the opening statement of Judge Gonzales. Preliminarily, it should be noted that White House Counsel Gonzales had served on the Supreme Court of Texas and is referred to as "Judge Gonzales," and that will be the title which I will use during the course of these proceedings. Judge Gonzales comes to this nomination with a very distinguished career, really an Horatio Alger story: Hispanic background; of seven siblings, the first to go to college; attended the Air Force Academy two years and then received degrees from Rice and Harvard Law School; became counsel to then-Governor George Bush of Texas; was appointed to the state Supreme Court, later elected for a full term; and has been President Bush's counsel for the full four years of his term. Judge Gonzales will take over, if confirmed, the direction of the Department of Justice, which is a department of enormous importance in the United States; the fourth department, created in 1789; has the responsibility for representing the United States in court, civil cases and criminal cases; has oversight responsibility for the Federal Bureau of Investigation and its enormous responsibilities on the fight against terrorism, and law enforcement. And while Judge Gonzales is the appointee of the president, he has broader responsibilities representing the people of the United States, a key distinction which I'm pleased to say in advance that Judge Gonzales has noted in the statement which he has submitted. The focus of media attention has been on the issue of Judge Gonzales' roles in analysis and recommendations on the handling of detainees. Judge Gonzales had issued an opinion to the president that the Geneva Convention did not apply with respect to certain of the combatants. In his memorandum of January 25th, 2000, he said, quote: "My judgment, this new paradigm" -- referring to the war on terrorism -- "renders obsolete Geneva's strict limitations on questioning of enemy prisoners." The committee will seek further amplification on a number of substantive issues from that memorandum, including Judge Gonzales' statement that in the treatment of detainees, the United States "will continue to be constrained by its commitment to treat the detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with" the principles of the Geneva Convention. This statement raises the question of what is the meaning of military necessity and to what extent, if at all, does military necessity impact on the, quote, "commitment" to treat a detainee humanely? Beyond Abu Ghraib and Guantanamo, the committee will want to know Judge Gonzales' plans and views on a wide range of matters, which will command the attention of the department as we begin a new year and a new presidential term. The most important issue facing our nation today continues to be the threat of terrorism. That's the most important issue facing our country, and how we deal with it in the balance of our civil rights. The department will have a major impact on the implementation of the new legislation for a national intelligence director, with the very heavy responsibilities of the Federal Bureau of Investigation and the coordination of intelligence which, if it had been properly implemented, might well have prevented 9/11. There are a number of other key issues which the attorney general will deal with. We'll be interested to know of any views on enforcement of the anti-trust laws. American consumers of oil and gas have been strangled by OPEC and their international cartel. They are not immune under the act of state doctrine, and we will be interested to know what plans the Department of Justice under Judge Gonzales if confirmed would have on that important issue. The department will have a major role in implementing President Bush's proposals to revise our nation's immigration laws and to deal with the 10 million aliens who are in this country illegally. The committee will also be interested to know of any new ideas or programs Judge Gonzales has for fighting organized and violent crime, cracking down on fraud, especially on federal health programs and protecting U.S. intellectual property rights. The committee will be interested in Judge Gonzales' views on the Patriot Act since the attorney general will obviously be a a central figure in consideration of reauthorization of that act. That act provided considerable assistance to law enforcement by eliminating the so-called wall between the gathering of intelligence once obtained for intelligence purposes to be used in criminal law enforcement, but there are other questions which have been challenged by a wide array of people on all facets of the political spectrum with the issue of probable cause to obtain records, library records, and the so-called "sneak and peek" orders, and we will be interested in what Judge Gonzales has to say about that very important matter. We will also be interested to know Judge Gonzales' views on the issue of detention and standards of detention. The attorney general has exercised the authority to overrule conclusions by the immigration judge and a board of immigration appeals. And this is an issue that lingers after considerable questioning of Attorney General Ashcroft as to what standards ought to be used. And the attorney general, John Ashcroft, conceded before this committee that it's not sufficient to simply cite national security. And that will be a question which we will want to inquire into. We will also be looking for commitments from Judge Gonzales to appear before this committee at least twice a year and to be responsive to our inquiries. And we will seek his commitment on the oversight authority of this committee, as recognized by the Supreme Court of the United States -- our constitutional obligation on oversight. As we begin a new term, I pay tribute to my distinguished colleague Senator Hatch who has chaired this committee for most of the past 10 years and has been responsible for some of the most innovative and far-reaching legislation which has ever come from the Congress of the United States. And he has handled these duties in an atmosphere sometimes contentious, sometimes difficult, but always with good cheer and always with aplomb and always with balance. And I have admired especially his stamina.
SEN. HATCH: (Chuckles.)
SEN. SPECTER: We affectionately refer to him as "Iron pants" as he has chaired this committee with such great distinction. And it is an honor to receive the gavel from him. If you will make that formal presentation, Senator Hatch.
SEN. HATCH: Well, I'm very honored to make that presentation to Arlen Specter, who's one of the best lawyers we've ever had serve in the United States Senate, among a whole raft of very fine lawyers. And so I'm very proud to have you as my new chairman, and I appreciate your kind remarks. And I appreciate serving with Senator Leahy and all of our colleagues on this committee for such a long period of time. But I'm anxious to serve under you, and I'll enjoy sitting beside you.
SEN. SPECTER: Thank you, Senator Hatch.
SEN. HATCH: Here's the gavel. (Applause.)
SEN. : There you go.
SEN. SPECTER: I commend Senator Leahy for his very distinguished service as the long-time ranking Democrat on the committee, and chaired the committee for most of the 107th Congress. Senator Leahy and I have been colleagues going back to the late 1960s, when we were district attorneys together. Senator Leahy was the district attorney of Burlington, Vermont and I was district attorney of Philadelphia. And we have worked together for 24 years on the Judiciary Committee. And in the past several weeks, we have talked extensively, we have sat down, we have gone over the agenda of the committee. We are obviously keenly aware of the difficulties of gridlock, and we're looking for a new beginning with more consultation in an effort to avoid some of the contentiousness of the past if it is at all possible and to avoid, if we can, even consideration of the so-called nuclear option. So it is with pleasure that I work with Senator Leahy, a friend for four decades. And now I yield to you, Senator Leahy, for your opening statement.
SEN. PATRICK LEAHY (D-VT): Thank you very much, Mr. Chairman, and I do welcome you as our new chairman. People sometimes forget that Senator Hatch and I often agree on things, and I absolutely agree with him you're one of the most experienced lawyers ever to serve -- I've served here for 30 years -- certainly in the time I've been here. I'm not surprised because I remember our times together back as a prosecutor, when I was a young prosecutor, first met you in Philadelphia at a national DAs meeting, followed your career ever since. And I would say also to Senator Hatch -- I compliment him and I'm glad that he is determined to stay on on the committee. We have many people who have chaired this committee who have stayed on -- Senator Hatch, of course now Senator Specter, Senator Kennedy, Senator Biden -- and I think it has helped the committee and improved the committee with that experience. And, Judge Gonzales, I welcome you to the Senate Judiciary Committee. As has been alluded to, we are entrusted by the American people and by the Senate, but even more importantly by the Constitution, to do a thorough and fair job in considering nominations for the executive branch of government. At the outset I want to make clear how inspiring your life story is. The recent Washington Post profile of your life's journey in particular touched me as few accounts of your life have. The road you've traveled, from being a 12-year-old boy -- about the age of your oldest son -- selling soft drinks at football games all the way to the statehouse in Texas and our White House is a tribute to you and your family. And I enjoyed meeting with your wife and your sons, your mother -- this has to be a very proud day for her -- your brother, your mother-in-law and the family. And I'm sure we're going to hear more about your life story. But also they'll learn about Alberto Gonzales, the counsel to the president, and then we're going to try to glean what kind of a portrait we might have of you if you are confirmed to be attorney general of the United States. The attorney general, of course, has to represent the interests of all Americans as the nation's chief law enforcement officer. As Justice James Iredell wrote in 1792, the person who serves as attorney general is, quote, "not called attorney general of the president, but attorney general of the United States." Now, the post is quite distinct from the position Judge Gonzales has performed for the president. There he acted as a spokesman for the administration and appeared as chief defense lawyer for the White House on a range of a number of very important and many times politically sensitive issues. So a key question for this hearing is whether the nominee shares this view of the crucial role of the attorney general. When he was designated for this position by the president, Judge Gonzales said he's looking forward to continuing to work with friends and colleagues in the White House in a different capacity on behalf of our president. But you know, there are going to be times, there may well be times when the attorney general of the United States has to enforce the law and he can't be worried about friends or colleagues at the White House; his duty is to all Americans -- Republicans, Democrats, independent -- all Americans. At a time when the Republican Party has control of all three branches of the federal government, my worry is that our system of checks and balances may become short-circuited by too few checks on assertions of executive branch authority. My concern is that during several high-profile matters in your professional career, you've appeared to serve as a facilitator rather than as an independent force in the policy-making process. The job of attorney general is not about crafting rationalizations for ill-conceived ideas; it's a much more vital role than that. Attorney general is about being a forceful, independent -- independent -- voice in our continuing quest for justice in defense of the constitutional rights of every single American. We've seen what happens when the rule of law plays second fiddle to a president's policy agenda. Attorney General Ashcroft, and with the White House Counsel's Office, has impulsively facilitated rather than cautiously vetted serious constitutional issues. The administration has taken one untenable legal position after another regarding the rule of law as we fight terrorism. The few times Attorney General Ashcroft consented to appear before this Senate oversight committee, he brandished intimidation as a weapon, sometimes going so far as to say that questioning the administration's policy somehow gave aid and comfort to the enemy. By contrast, I think your nomination appears to offer a different era. As I told Judge Gonzales when we met within days of the announcement of his nomination, these hearings do matter. We need to know more about his judgment and actions that connects him with the tragic legal and policy changes formulated in secret by this administration -- in secret and still being hidden from proper congressional oversight and public scrutiny. The policies include this nominee's role in developing interpretation of the law to justify harsh treatment of prisoners -- harsh treatment that's tantamount to torture. America's troops and citizens are at greater risk because of those actions -- terrible repercussions throughout so much of the world. The searing photographs from Abu Ghraib have made it harder to create and maintain the alliances we need to prevail against the vicious terrorists who threaten us. And those abuses serve as recruiting posters for the terrorists. The scandal of Abu Ghraib, allegations of mistreatment at Guantanamo, charges from cases in Iraq and Afghanistan are serious matters. Today we have unresolved accountability. So these hearings are about nomination, but they're also about accountability. From the outset of public disclosure of the Abu Ghraib photographs, the Bush administration maintained that any wrongdoing was simply a case of a few bad apples. But as bits of information have been made public, not by the administration but by the press over the last year, it has become clear to all that these incidents at U.S. facilities around the world are not just the acts of a few low-ranking members of the military; rather, in the upper reaches of the executive branch, a process was set in motion that rolled forward that produced scandalous results, almost like somebody opening the floodgates in a dam and the water flowed downstream until it overwhelmed everybody below. The Army Field Manual reflects our nation's long-held policy toward prisoners. My young son was in the Marines and he was called up for Desert Storm, a war that lasted so -- it was so quick that he was not in harm's way. He was taught these things even as a Marine. But the Army Field Manual reflects our nation's long-held policies toward prisoners, and it says: The goal of any interrogation is to obtain reliable information in a lawful manner. U.S. policy expressly prohibits acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or to aid interrogation. Now, the policy is in place for a very good reason. The Field Manual continues: The use of torture is a poor technique that yields unreliable results, may damage subsequent collection efforts and could induce the source to say what he thinks the interrogator wants to hear. It also may place U.S. and Allied personnel in enemy hands at greater risk. But senior officials in the Bush White House, the Ashcroft Justice Department, Rumsfeld Pentagon set in motion a systematic effort to minimize, distort and even ignore our laws, our policies, our international agreements on torture and the treatment of prisoners. Defense Secretary Rumsfeld and later Lieutenant General Ricardo Sanchez authorized the use of techniques that were contrary to both U.S. military manuals but also international law. Former CIA Director Tenet requested and Secretary Rumsfeld approved the secret detention of ghost detainees in Iraq, did that so they could be hidden from the International Committee of the Red Cross. And still unexplained are instances where the U.S. government delivered prisoners to other countries so they could be tortured. We have to ask: Where's the responsibility and accountability for these abuses? We are the most powerful nation on Earth, actually the most powerful nation Earth has ever known, a country that has great promise. We are blessed with so much. And we're a country that cherishes liberty and human rights. We've been a beacon of hope and freedom to the world. It certainly was that hope and freedom that brought my grandparents to this country, not speaking a word of English, but coming here for that peace and freedom. We face vicious enemies in the war on terrorism, but we can and will defeat them without sacrificing our values or stooping to their levels. I believe there are several people in the audience who are themselves survivors of torture committed by the armed forces and the secret police of other countries. They don't share these values on torture. They continue to struggle to overcome those horrifying experiences. They're very concerned that we not retreat from the high standards against torture that we've held up to the world in the past. So these hearings, I may conclude, are an opportunity at long last for some accountability for this meltdown of long-standing U.S. policy on torture. As White House counsel, Judge Gonzales was at the center of discussions on the applicability of the Geneva Conventions to the wars in Afghanistan and Iraq, and the legality of detention and interrogation methods that have been seen as tantamount to torture. He oversaw the formulation of this administration's extreme views of unfettered executive power and unprecedented government secrecy. I hope that things will be different if you are confirmed, Judge Gonzales. I hope that you will be accessible to members of this committee and be more responsive than your predecessor. I know that the president has asked our incoming chairman to proceed expeditiously with these hearings. I have worked with him. We did over the end-of-the-year break. We've had a lot of calls back and forth between your home and my farm in Vermont. We've met several times. And as I told you, we would do everything possible to help you move forward, and I will.
SEN. SPECTER: Thank you very much, Senator Leahy. We will now turn to introductions. We will then hear from Judge Gonzales. And then we will, in accordance with the practice of the committee, with opening statements as customarily limited to the chairman and ranking member, turn, in order of seniority, for 10- minute rounds of questions. I will observe the 10-minute limitation precisely and will ask other committee members to do so. And there will be multiple rounds, so that committee members will have a full opportunity to question Judge Gonzales. We now turn to a senator from Texas, Senator John Cornyn, a distinguished and valued member of this committee, for an introduction of the nominee.
SEN. JOHN CORNYN (R-TX): Thank you, Chairman Specter, for convening today's hearing, and congratulations on your chairmanship.
SEN. SPECTER: Thank you.
SEN. CORNYN: I'm pleased to be here today to introduce Judge Alberto Gonzales to this committee. He is a talented lawyer, a dutiful public servant and a good man. He's a great Texan and an inspiring American success story, as you, Mr. Chairman, have already alluded. And I'm honored to call him my friend. I should also mention that Senator Hutchison, the senior senator from Texas, had wanted to be here today to express her strong support for this nominee, but is away due to a preexisting commitment. And I'd ask that her statement of support be made part of the record. SEN. SPECTER: Without objection, it will be made a part of the record.
SEN. CORNYN: I've known Judge Gonzales for many years, and I can tell you that the media is absolutely right when they refer to him as the man from Humble. For those of you who are not from Texas, let me explain. He grew up in Humble, Texas. But it also, I think, attests to the fact that he is a modest, self-effacing man. The son of migrant workers, his childhood home, where his mother still lives today, was built by his father and uncle. And as has already been stated, as a young man, as a teenager, he sold soft drinks at Rice University football games and dreamed of one day when he might possibly attend that great institution. Judge Gonzales is the first person in his family to have gone to college. Because of the love and support of his family, and his hard work and determination, he graduated not just from Rice University, but from Harvard University's School of Law, and then joined a prestigious international law firm where he became one of its first minority partners. He eventually caught the eye of a Texas governor who saw a uniquely talented, yet modest man, who then appointed him as his general counsel, his secretary of state, as a member of the Texas Supreme Court, and then as White House counsel. Judge Gonzales is truly an inspiration to everyone who still believes in the American dream. And so his nomination as the nation's 80th attorney general -- our first Hispanic attorney general -- should by all accounts have a perfectly happy ending. But that's not necessarily how Washington works. It appears that at least in anticipation of today's hearing, that we will see once again that this confirmation process can be unnecessarily partisan, even cruel to some who selflessly offer themselves for public service. I know we'll get into the details, but let me just say that only in Washington can a good man get raked over the coals for doing his job. This must all be a little disorienting for one who's very life story testifies to the fact that America should always be a place where honesty, diligence and determination are rewarded, not punished. Take, for example, the harsh criticism about the Geneva Convention. Judge Gonzales has been harshly attacked for advising the president that all detainees be treated humanely, but that as a legal matter, al Qaeda and Taliban fighters are not covered by the Geneva Convention. Now, I hate to ruin a good story by the president's political opponents who are attacking him through this nominee, but let me just say there's one important point that needs to be made: Judge Gonzales is absolutely right. You don't have to take my word for it. First of all, al Qaeda never signed the Geneva Conventions. But moreover, the Red Cross' own guidelines state that to be entitled to Geneva protection as a prisoner of war, combatants must satisfy four conditions: being commanded by a person responsible for his subordinates; secondly, having a fixed, distinctive sign recognizable at a distance; number three, carrying arms openly; and number four, conducting their operations in accordance with the laws and customs of war. Does anyone on this committee or anywhere else, for that matter, seriously argue that al Qaeda terrorists comply with the Law of War? By the way, it's important to note that Judge Gonzales' legal advice has also been affirmed by three federal courts throughout this country, and has also been endorsed by numerous legal scholars and international legal experts across the political spectrum, as well as both the 9/11 commission, by the way; the final Schlesinger report, an independent report on DOD detention operations; and a brief filed recently in the United States Supreme Court by former Carter administration officials, State Department legal advisers, judge advocates and military commanders, and liberal international law scholars, who concluded that the president's conclusion that members of al Qaeda and the Taliban are unlawful combatants is clearly correct. Even Washington advocacy director for the Human Rights Watch Tom Malinowski, a vocal Bush administration critic, has grudgingly conceded that the administration's interpretation is probably correct. Now the administration's Geneva position is not just right as a legal matter, it is also essential as a matter of national security. I recently published an op-ed which explained that extending the Geneva Convention protections to al Qaeda would threaten the security of our soldiers, dramatically disable us from obtaining the intelligence needed to prevent further attacks on U.S. civilians and soldiers, and badly undermine international law itself. And I'd ask, Mr. Chairman, that that be made a part of the record.
SEN. SPECTER: Without objection, it will be made part of the record.
SEN. CORNYN: Thank you very much. Just take a look at all the numerous privileges provided by the Geneva Convention for traditional prisoners of war. For example, questioners could not entice detainees to answer questions by offering them creature comforts or even preferential treatment, even though that's the standard operating procedure in police stations throughout the United States. And because the convention prohibits the holding of detainees in isolation, al Qaeda fighters would be able to coordinate with each other in a way that would thwart or could thwart effective questioning. POW status even confers broad combat immunity against criminal prosecution before civilian and military tribunals alike. Mr. Chairman, surely no member of the committee or anyone else on our side of the conflict actually believes that an al Qaeda terrorist deserves to be treated better than an American citizen accused of a crime. I certainly wouldn't think so. President Reagan didn't think so. Neither did each of his successors in office. Nearly two decades ago President Reagan, and every president since that time, has rejected a proposed amendment to the Geneva Convention, known as Protocol 1 of 1977, to extend that convention to protect terrorists. As President Reagan rightly argued, we must not and need not give recognition and protection to terrorist groups as a price for progress in humanitarian law. Notably, even The New York Times and Washington Post agreed at the time. All of this support -- from multiple federal courts, from the 9/11 commission, the Schlesinger report, liberal international legal scholars, Carter administration officials, even The New York Times and Washington Post -- yet Judge Gonzales is criticized for taking exactly that same position. Take one more issue, the Justice Department memos that have been alluded to here construing the federal torture statute. Judge Gonzales is being attacked for a memo he didn't write, interpreting a law that he didn't draft. It was Congress, not Judge Gonzales, that enacted a strict definition of torture. It was Congress, not Judge Gonzales, that specifically provided that only specific intent to inflict severe pain or mental pain or suffering would constitute torture. As I said, President Bush and Judge Gonzales have both unequivocally, clearly and repeatedly rejected the use of torture. But is there anyone here today who would fail to use every legal means to collect intelligence from terrorists in order to protect American lives? I certainly hope not. Finally, I know we're going to hear some about Abu Ghraib today. We already have. And I think it's safe to say that everyone agrees that Abu Ghraib represents a shameful episode in this nation's history. Yet some people actually want to exploit that tragedy for their own purposes. Abu Ghraib should be treated seriously, not politically. The Defense Department has a been vigorously investigating the misconduct and prosecuting the violators. The independent Schlesinger report that I alluded to earlier concluded that, quote, "no approved procedures called for or allowed the kinds of abuse that in fact occurred. There is no evidence of a policy of abuse promulgated by senior officials or military authorities." So if there's no evidence whatsoever that Judge Gonzales was any way responsible for the criminal acts that occurred at Abu Ghraib by a few, why are we talking about this at Judge Gonzales's confirmation hearing? This, after all, is a confirmation hearing to head the Department of Justice, not an oversight hearing of the Department of Defense. In conclusion, let me just say, Mr. Chairman, that I am proud of my friend Judge Alberto Gonzales. He is a source of great inspiration and pride to his family and his friends and all of us who call the great state of Texas home. Time and time again, Judge Gonzales has done his duty in the war on terrorism. It disheartens me to see him held up to ridicule, distortions and outright lies for being the patriot that he is. So, Mr. Chairman, let me say, to you and my colleagues, let us confirm this good man from Humble. Thank you very much. SEN. SPECTER: Thank you very much, Senator Cornyn. We now turn to newly elected Senator Ken Salazar -- congratulations, Senator Salazar -- from Colorado. And we look forward to your introduction of Judge Gonzales.
SEN. SALAZAR: Thank you. Chairman Specter and Ranking Member Leahy and members of the committee, it is an honor and a privilege for me to appear before you this morning. It is also an honor and privilege for me to appear before you this morning to make an introduction of Judge Alberto Gonzales. I do so at the invitation of Judge Gonzales. He and I come from very similar backgrounds. We both understand the struggles of people as they try to build better lives for themselves and for their families in America. In a speech at Rice University, Judge Gonzales recently recalled his upbringing, and he said, I quote: "During my years in high school, I never once asked my friends once over to our home. You see, even though my father poured his heart into that house, I was embarrassed that 10 of us lived in a cramped space with no hot running water or telephone." In another statement, Judge Gonzales said, "My father did not have opportunities, because he had only two years of formal schooling. And so my memories are of a man who had to work six days a week to support his family. He worked harder than any person I have ever known." From those humble beginnings, Judge Gonzales has excelled academically and professionally. In my view, Judge Gonzales is better qualified than many recent attorneys general. He served as a member of the Texas Supreme Court, secretary of state for the state of Texas, chief counsel to the governor of Texas, and for the last four years, as counsel to the president. I have known Judge Gonzales from my days as Colorado's attorney general. In addition, over the last several weeks, I have met and had several discussions with Judge Gonzales about his nomination to serve as this nation's attorney general. I believe his decision to reach out to me, someone who is from a different political party, is an indication of his interest in working with all of us in making our homeland more secure, and at the same time protecting our citizens' rights and liberties. I have shared with Judge Gonzales my views on a few priority items I would like to work on with the Justice Department and with this important committee under your leadership. Judge Gonzales has pledged to me his willingness to work on these issues. Among the issues we discussed are the following. One, homeland security at the local and state level. For those of us such as Senator Sessions and Senator Cornyn, who have served as attorneys general, we know the importance of this issue at the local level. I believe we must do more to support our state and local law enforcement officials and other first responders as we take on the most significant national security challenge of the 21st century, and that is providing security for our homeland against the threats of terrorism. I am pleased that, if confirmed as attorney general, Judge Gonzales has indicated his willingness to work on this matter, and will come to Colorado to meet with local and state law enforcement officials and other first responders to listen to their experiences, needs and concerns. And I am certain that he will do that in other states as well. Secondly, on the Patriot Act. I support the Patriot Act and the necessary reasons for its enactment. I have also expressed my support for changes to the act as have been discussed and proposed by a bipartisan group of leaders in the Congress. Judge Gonzales has indicated his willingness to work on this important matter so that we might better balance out the needs for national security, while at the same time maintaining the important fundamental civil liberties of our nation. I know that there are other serious questions that this committee will explore and ask of Judge Gonzales in these proceedings. It is appropriate to do so in these confirmation proceedings. I am hopeful that Judge Gonzales will satisfactorily address the concerns of the Senate, and I am hopeful that he will become the next United States attorney general for our nation. Thank you.
SEN. SPECTER: Thank you very much, Senator Salazar. Judge Gonzales, would you now stand for the administration of the oath? Raise your right hand. Do you solemnly swear that the testimony you will give before the Senate Judiciary Committee will be the truth, the whole truth and nothing but the truth, so help you God?
MR. GONZALES: I do.
SEN. SPECTER: Would you begin, Judge Gonzales, by introducing your beautiful family?
MR. GONZALES: Mr. Chairman, Senator Leahy, distinguished members of the committee --
SEN. SPECTER: Judge Gonzales, the request is pending for you to introduce your family before you begin your testimony.
MR. GONZALES: With me here this morning is my beautiful wife, Rebecca --
SEN. SPECTER: Mr. Gonzales, would you stand, please?
MR. GONZALES: -- as well as our three sons, Jared, Graham and Gabriel.
SEN. SPECTER: Would you gentlemen please stand? Thank you.
MR. GONZALES: Also here is my mother, Maria --
SEN. SPECTER: Thank you.
MR. GONZALES: -- my brother, Tony, who is a 26-year veteran of the Houston Police Department and a SWAT officer; and my mother-in- law, Lorenda (sp) Turner.
SEN. SPECTER: Thank you all for standing, and welcome to these proceedings. Thank you. Now, Judge Gonzales, we'd be very pleased to hear your opening statement.
MR. GONZALES: Mr. Chairman, Senator Leahy and distinguished members of the committee, it is the highest honor of my professional career to appear before you today as the president's nominee to be attorney general of the United States. I owe a debt of deep gratitude to the president for the trust he has placed in me. I also want to thank Senator Cornyn for his kind introduction, and for his many years of friendship. Ken Salazar was sworn in as a United States senator just two days ago. I want to thank the senator for his willingness to extend the hand of friendship across the political aisle to introduce me today. And although Senator Hutchison could not be with us today, I appreciate her many years of support as well. Mr. Chairman, the highest objective of the Department of Justice is the pursuit of justice. This noble objective -- justice -- is reflected in human terms in the hopeful eyes of a new citizen voting for the first time, in the quiet gratitude of a victim of crime whose rights have been vindicated in the courts, and in the pride of a person given the opportunity to succeed no matter their skin color or gender or disability. For justice, properly understood, cannot, in my view, be divorced from the individual; it always has a human dimension. And if confirmed as attorney general, I pledge that I will always remember that. With the consent of the Senate, I will no longer represent only the White House, I will represent the United States of America and its people. I understand the differences between the two roles. In the former, I have been privileged to advise the president and his staff. In the latter, I would have a far broader responsibility to pursue justice for all the people of our great nation; to see that the laws are enforced in a fair and impartial manner for all Americans. Wherever we pursue justice -- from the war on terror to corrupt fraud to civil rights -- we must always be faithful to the rule of law. And I want to make very clear that I am deeply committed to the rule of law. I have a deep and abiding commitment to the fundamental American principle that we are a nation of laws and not of men. I would not have the audacity to appear before this committee today if that commitment were not the core principle that has guided all of my professional endeavors. Our government's most basic obligation is to protect its citizens from enemies who would destroy their lives and our nation's way of life. And the Department of Justice's top priority is to prevent terror attacks against our nation. As we fight the war on terror, we must always honor and observe the principles that make our society so unique and worthy of protection. We must be committed to preserving civil rights and civil liberties. I look forward, if I am confirmed, to working with this committee, the Congress and the public to ensure that we are doing all we can do so. Although we may have differences from time to time, we all love our country and want to protect it, while remaining true to our nation's highest ideals, and working together, we can accomplish that goal. While I look forward to answering your specific questions concerning my actions and my views, I think it is important to stress at the outset that I am and will remain deeply committed to ensuring that the United States government complies with all of its legal obligations as it fights the war on terror, whether those obligations arise from domestic or international law. These obligations include, of course, honoring Geneva Conventions whenever they apply. Honoring our Geneva obligations provide critical protection for our fighting men and women and advances norms for the community of nations to follow in times of conflict. Contrary to reports, I consider the Geneva Conventions neither obsolete nor quaint. After the attacks of 9/11, our government had fundamental decisions to make concerning how to apply treaties and U.S. law to an enemy that does not wear a uniform, owes no allegiance to any country, is not a party to any treaties, and most importantly, does not fight according to the laws of war. As we have debated these questions, the president has made clear that he is prepared to protect and defend the United States and its citizens and will do so vigorously, but always in a manner consistent with our nation's values and applicable law, including our treaty obligations. Having said that: Like all of you, I have been deeply troubled and offended by reports of abuse. The photos from Abu Ghraib sickened and outraged me and left a stain on our nation's reputation. And the president has made clear that he condemns the conduct and that these activities are inconsistent with his policies. He has also made clear that America stands against and will not tolerate torture under any circumstances. I share his resolve that torture and abuse will not be tolerated by this administration and commit to you today that, if confirmed, I will ensure the Department of Justice aggressively pursues those responsible for such abhorrent actions. Chairman Specter, if I may add a personal note, I want to congratulate you for your chairmanship of this important committee and I look forward, if confirmed, to the many occasions that we will discuss important issues facing our country in the months and years ahead. Senator Hatch, I want to thank you for your dedicated service as chairman of this committee, for the good working relationship we have enjoyed, for all the many kindnesses you have shown me personally. I appreciate the good working relationship I've enjoyed with Senator Leahy during my tenure as counsel to the president. I know him to be a person of good will and dedication, and I have great confidence that if I'm fortunate enough to be confirmed, we will build upon that as we reach across the aisle to work together to serve the American people. Mr. Chairman, it is a distinct honor to appear before the committee today. I appreciate the time and attention that members of the committee and their staffs have dedicated to this hearing and to consideration of my nomination. And I look forward to answering your questions, not just at this hearing but, if I am fortunate enough to be confirmed, in the months and years ahead, as we work together in the noble and high calling of the pursuit of justice. Thank you, Mr. Chairman.
SEN. SPECTER: Thank you very much, Judge Gonzales. We will now begin, as stated earlier, 10-minute rounds, and I will observe the time limit meticulously and will ask others to do the same. Senators necessarily have other obligations and will have to move in and out of the hearing room, so that if it is possible to gauge the timing knowing how long it will be before their turn is up, it is very useful in arranging schedules. And there will be ample time, as I had said earlier, on multiple rounds. I'm advised that there may be some photos used, and obviously senators have full latitude on the range of questioning, but I would ask my colleagues to be sensitive to photos. There are children present in the room today and we are being televised. So that while we want to have all of the facts and give full latitude to senators on their rights to question, we may want to be in executive session or we may want to give children a chance to leave or take whatever other precautionary measures that seem appropriate by all concerned on a consensus of what the committee thinks ought to be done on that sensitive subject. And now if the lights will show to limit my 10 minutes, I will begin. At the outset of your testimony Judge Gonzales -- you've already covered the matter, but I think it is important to have an unequivocal statement and really a repeat of an unequivocal statement of the position of the administration, of your personal views. Do you approve of torture?
MR. GONZALES: Absolutely not, Senator.
SEN. SPECTER: Do you condemn the interrogators' -- you already answered this in part at Abu Ghraib and Guantanamo, but again for the record, do you condemn the interrogators' techniques at Abu Ghraib shown on the widely publicized photographs?
MR. GONZALES: Let me say, Senator, that as a human being I am sickened and outraged by those photos, but as someone who may be head of the department, I obviously don't want to provide any kind of legal opinion as to whether or not that conduct might be criminal. And obviously, anyone who's involved in any kind of conduct that is subject to prosecution, I would not want to do anything today to prejudge that prosecution and jeopardize that prosecution. But obviously, if that conduct falls within the jurisdiction of the Department of Justice, I will pursue it aggressively. And you have my word on that.
SEN. SPECTER: Well, having some experience in the prosecution of criminal cases, I don't believe a condemnation of that conduct would impact on what happens at a later date. But I thank you for your statement of rejection of that and condemnation of those practices. Do you similarly condemn any similar interrogation techniques at Guantanamo?
MR. GONZALES: I'm not sure which specific techniques you're referring to, Senator. But obviously there is a range of conduct that would be in clear violation of our legal obligations, and those I would absolutely condemn, yes, sir.
SEN. SPECTER: Well, there will obviously be a good bit of questioning on this subject. And I intend to turn to other matters and will come back to the subject in latter rounds, to the extent that as chairman I think further amplification is necessary. But I do want to move on to what I consider to be the number-one issue facing the country, and that is the issue of the fight on terrorism and the balancing of civil rights, with some focus on the Patriots Act, which we enacted shortly after 9/11. Starting with the Patriots Act -- and I had already commented that we had this wall which precluded law enforcement from using evidence of crime which had been obtained through search-and-seizure warrants under the Foreign Intelligence Surveillance Act, and now that evidence may be used in a criminal prosecution. To what extent has that provision and the other provisions of the Patriots Act been of real importance in our fight against terrorism? MR. GONZALES: Well, of course, Mr. Chairman, I have not been at the department, so I may not know all of the details of specific successes that the United States and the Department of Justice have enjoyed as a result of the tools given to us by the Patriot Act. But I am told that they have been very significant, and that for our career prosecutors, for the U.S. Attorneys out in the field, they have been very, very beneficial in allowing our law enforcement personnel to defend this country. I believe that in part because of the Patriot Act, there has not been a domestic attack on United States soil since 9/11.
SEN. SPECTER: The Patriots Act has enabled -- has stimulated the National Counterterrorism Center, and that is now part of the new legislation formalized on the National Intelligence Director. And I will not go into any detail at this time, but I would urge you to be very diligent there. And this committee is going to exercise oversight on that issue, because it is my own view that had we had proper coordination of all the information prior to 9/11, 9/11 might well have been prevented. And the FBI has the guiding hand on the National Counterterrorism Center, and that comes under your purview. Let me turn now to the issue of the Patriots Act, aspects which have been the subject of concern, and legislation is pending; where we have people on both ends of the political spectrum -- those on the right and those on the left -- on concern. The act requires the court to issue an ex parte order -- that is, on the application of law enforcement -- for an administrative subpoena on a showing which is less than the traditional judicial determination of probable cause. And there has been concern expressed about access to many records, private records, illustrated by the concern over library records. Is there any reason, in your judgment, Judge Gonzales, why the production of those records might not be subjected to the traditional standard of probable cause before the issuance of the warrant?
MR. GONZALES: Let me just say, Senator, I am also aware of a great deal of debate about the provisions of the Patriot Act. And there are concerns about possible infringement of civil liberties. I welcome that debate. I think that we should always question the exercise of power of our government. Our -- the founders of this country -- that's -- that is what motivated -- in connection with the framers of the -- framing the Constitution: concerns about the exercise of government power. And so I am one of those people that is likewise concerned. With respect to access to library records, to take a specific point, obviously you're referring to Section 215 of the Patriot Act. Two-fifteen relates to obtaining business records. It never mentions library records. Two-fifteen allows the government to obtain certain types of business records, hotel records, credit card records, rental records, transportation records, in connection with -- it's got to be related to a foreign terrorist -- a foreign intelligence operation. And the government cannot do that without first going to a judge. The government goes to the FISA court and obtains a warrant to do that.
SEN. SPECTER: But there is no requirement for a showing of probable cause before that judicial order is entered, Judge Gonzales. And the question is, why can't we have that traditional probable cause requirement on the obtaining of those records?
MR. GONZALES: Certainly, Senator, you could do that. But right now, today, a prosecutor could obtain a grand jury subpoena, if it was relevant to a criminal investigation, without meeting that standard, and obtain access to those very same library records and -- SEN. SPECTER: But when the prosecutor obtains those records on a grand jury subpoena -- and I have some familiarity with that -- it's subject to judicial supervision. There can be a motion to quash. Well, I don't want to take up all of our time there, but we also have the sneak-and-peek issue. And you will be here to take a look at that when we have hearings on renewal of the Patriot's (sic) Act. But that is a matter which I think has to be weighed very carefully in the balance. Let me turn now to the standards of detention on aliens. And immediately after 9/11, as the inspector general's report showed, some 702 aliens were detained without any showing of cause -- concern that they might be terrorists, but no real evidence or indications that they're -- that they were terrorists. And we have seen the Department of Justice exercise authority after an immigration judge has ordered the release of an alien, and that has been upheld by the board of review for the Department of Justice to overrule those two levels of judicial review and maintain a detention. And the issue of standards is really of critical importance, and there has never been a delineation by the Department of Justice of those standards. At one point, Attorney General Ashcroft testified that it wasn't sufficient simply to say national security, but there had to be some relationship to the individual on the likelihood of flight or on the problem of a criminal record or something relating to the individual. My yellow light is on now, so I will stop the questioning before my red light appears and give you an opportunity to respond as to your views as to what kind of a standard is appropriate for the detention of aliens.
MR. GONZALES: Let me just say -- begin by answering your question by saying, Senator, that I do not support or favor the mistreatment not only of aliens, but anyone by the Department of Justice. My understanding -- you have to recall that these actions taken by the department were shortly after 9/11. There was a great deal of concern that there may be a second wave of attacks. People didn't know. And so there were -- there were undocumented aliens that were rounded up. My -- I am told is that everyone who was rounded up was either out of status with respect to their immigration status or had criminal charges pending against them. There was an independent basis to hold these people. I am aware of the report by the inspector general. I haven't reviewed it in great detail. I understand that the department has made most of the changes recommended by the IG. Obviously, it's something that I am concerned about. As to the specific two cases you mentioned, I'm not aware of the details of those cases. And as to the standard, quite frankly, Senator, that would be something I would have to look at and be happy to get back to you in the event that I am confirmed.
SEN. SPECTER: Thank you. Senator Leahy.
SEN. LEAHY: Thank you, Mr. Chairman. And I -- first off, I wanted to thank both Senator Salazar and Senator Cornyn for their introduction. Senator Salazar, a Democrat who is showing bipartisanship here, similar to, I remember, Senator Carnahan coming to introduce Attorney General Ashcroft even though he was the man who had run against her -- run against her husband. I would also note that while al Qaeda doesn't have POW protection, Geneva still applies, as Secretary Colin Powell has stated very emphatically. I don't want to leave the impression that somehow Geneva doesn't apply just because it involves al Qaeda. But I'd like to ask you a few questions about the torture memo that is dated back in August 1st, 2002, signed by attorney general -- Assistant Attorney General Jay Bybee, and he's now a federal appellate court judge. The memo was addressed to you, it was written at your request, and it concludes -- this is actually the memo -- this is actually the memo here; it's a fairly lengthy memo -- but it's addressed a memorandum for Alberto Gonzales, counsel to the president. And it says for an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death. In August 2002 did you agree with that conclusion?
MR. GONZALES: Senator, in connection with that opinion, I did my job as counsel to the president to ask the question.
SEN. LEAHY: I just want to know: Did you agree -- I mean, we could spend an hour with that answer, but I'm trying to keep it very simple. Did you agree with that interpretation of the torture statute back in August 2002?
MR. GONZALES: If I may, sir, let me try to -- I will try to -- I'm going to give you a very quick answer, but I'd like to put a little bit of context. There obviously -- we were interpreting a statute that had never been reviewed in the courts, a statute drafted by Congress. We were trying to -- interpretation of a standard by Congress. There was discussion between the White House and the Department of Justice as well as other agencies about what does this statute mean. It was a very, very difficult -- I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the department. Ultimately it is the responsibility of the department to tell us what the law means, Senator.
SEN. LEAHY: Then do you agree today that for an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death?
MR. GONZALES: I do not, sir. That does not represent the position of the executive branch. As you know -- SEN. LEAHY: But --
SEN. SPECTER: Well, let him finish his answer.
SEN. LEAHY: But it was the position in 2002.
SEN. SPECTER: Wait a minute, Senator Leahy. Let him finish his answer.
MR. GONZALES: Senator, what you're asking the counsel to do is to interject himself and direct the Department of Justice, who is supposed to be free of any kind of political influence, in reaching a legal interpretation of a law passed by Congress. I certainly give my views. There was, of course, conversation and a give-and-take discussion about what does the law mean. But ultimately -- ultimately by statute the Department of Justice is charged by Congress to provide legal advice on behalf of the president. We asked the question. That memo represented the position of the executive branch at the time it was issued.
SEN. LEAHY: Well, let me then ask you: If you're going to be attorney general, and I'll accept what you said, then let's put on the hat, if you're going to be confirmed as attorney general. The Bybee memo concludes that a president has authority as commander in chief to override domestic and international law as prohibiting torture and can immunize from prosecution anyone -- anyone -- who commits torture under his act; whether legal or not, he can immunize them. Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief override and immunize acts of torture?
MR. GONZALES: First of all, sir, the president has said we're not going to engage in torture under any circumstances. And so you're asking me to answer a hypothetical that is never going to occur. This president has said we're not going to engage in torture under any circumstances, and therefore, that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn.
SEN. LEAHY: But I'm trying to think what type of opinions you might give as attorney general. Do you agree with that conclusion?
MR. GONZALES: Sir, again --
SEN. LEAHY: You're a lawyer, and you've held a position as a justice of the Texas Supreme Court, you've been the president's counsel, you've studied this issue deeply. Do you agree with that conclusion?
MR. GONZALES: Senator, I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional. And that is a position and a view not just of this president, but many, many presidents from both sides of the aisle. Obviously, a decision as to whether or not to ignore a statute passed by Congress is a very, very serious one, and it would be one that I would spend a great deal of time and attention before arriving at a conclusion that in fact a president had the authority under the Constitution to --
SEN. LEAHY: Mr. Gonzales, I'd almost think that you'd served in the Senate, you've learned how to filibuster so well, because I asked a specific question: Does the president have the authority, in your judgment, to exercise a commander-in-chief override and immunize acts of torture?
MR. GONZALES: With all due respect, Senator, the president has said we're not going to engage in torture. That is a hypothetical question that would involve an analysis of a great number of factors. And the president --
SEN. LEAHY: How about putting it this way: Do you think that other world leaders would have authority to authorize the torture of U.S. citizens, if they deemed it necessary for their national security?
MR. GONZALES: Senator, I don't know what laws other world leaders would be bound by, and I think it would -- I'm not in a position to answer that question.
SEN. LEAHY: Well, the only reason I ask this is this was the -- this memo was DOJ policy for a couple of years. And, you know, it sat there from some time in 2002, and then just a couple of weeks before 2005, late on a Thursday afternoon, it seems to be somewhat overridden. Of course that may be coincidentally because your confirmation was coming up. Do you think if the Bybee memo had not been leaked to the press it would still be -- because it had never been shown to Congress, even though we'd asked for it -- do you think it would still be the overriding legal opinion?
MR. GONZALES: Sir, that I do not know. I do know that when it became -- it was leaked, we had concerns about the fact that people assumed that the president was somehow exercising that authority to engage in torture. And we wanted to clarify the record that the president had not authorized or condoned torture, nor had directed any actions or excused any actions under the commander-in-chief override that might otherwise constitute torture. And that was the reason that a decision was made to delete that portion of the opinion.
SEN. LEAHY: Well, do you think there's any connection whatsoever between the policies, which actually you helped to formulate, regarding the treatment and interrogation of prisoners, policies that were sent out to the Department of Defense and elsewhere, and the widespread abuses that have occurred? Do you acknowledge any accountability for such things, any connection?
MR. GONZALES: Senator, as I said in my remarks, I categorically condemn the conduct that we see reflected in these pictures at Abu Ghraib. I would refer you to the eight completed investigations of what happened at Abu Ghraib and at Guantanamo. And there are still three ongoing. I'm talking about the Taguba report, the Fay-Jones-Kern report, the Schlesinger report, the Navy IG, the Army IG, Jacoby, Ryder, Miller -- all of these reports. And if you listen to the press briefings given in connection with the roll-out of these reports, they do conclude that with respect to the conduct -- not reflected in the photos, not the conduct that we find the most offensive, but conduct related to pure interrogations, that there was some confusion --
SEN. LEAHY: Those same reports you talk about say the Department of Defense relied on the memo. It is quoted extensively in the DOD working group report on interrogations. That report has never been repudiated. So apparently they did rely on the memo -- on the memo. And when we find out about the abuses, we never find out from the administration, we find out because the press reports it. Is there any accountability here anywhere? As I mentioned earlier, my son was in the military. He was held to very, very strict standards. He's trained for combat, held to very, very strict standards. The vast majority of the men and women in the military are held to those same strict standards. I'm just trying to find out where the accountability is for this terrible blot that you and I both agree is a terrible blot on the United States.
MR. GONZALES: I believe that is a very good question, Senator. And that is why we have these eight completed investigations and these three pending investigations, and why we've had four hearings involving the secretary of Defense, you've had 18 hearings involving the deputy secretary, under secretary of Defense, you've had over 40 briefings with the Congress, because we care very much about finding out what happened and holding people accountable. Unlike other countries, that talk about -- simply talk about Geneva, if there is an allegation that we've done something wrong we investigate it. We're very serious about our commitments, our legal obligations in Iraq. And if people have done things that they shouldn't have done, in violation of our legal obligations, they are going to be held accountable.
SEN. SPECTER: Senator Hatch.
SEN. ARLEN HATCH (R-UT): Well, thank you, Mr. Chairman. Welcome to the committee, Judge Gonzales, and your family. We welcome your family, your wonderful wife, your tremendous mother, brother, mother-in-law. We're really happy to have all of you here. And I hope that this will be not too unpleasant a hearing for you. You've acted, I think, with the highest honor as the White House counsel. I know that because I've worked very, very closely with you all these years. And I have tremendous respect for you not only as a human being and for your ethics and high standards, but also as an attorney and as someone who I believe has tried to give the president the best advice you and your staff have been able to give. You know, this is one of the highest positions in our country's Cabinet, in the president's Cabinet. It does require a person of deep commitment to the principle of equal justice under the law, and I know that you have that commitment and you'll make it. I've worked so closely with you, I know firsthand the competency of Judge Gonzales and that he does believe in equal justice for all. I also know that you have the ability to make a very outstanding attorney general of the United States. Your whole life has been a success story. You've already had a distinguished career as an attorney, judge and civil servant. You've made much of the opportunities that you've had by your education at Rice University and, of course, the Harvard Law School. And I think your background and experience enables you to bring an important set of perspectives to the administration of justice and the Department of Justice. So I stand ready and willing to help you, Judge Gonzales, in carrying out your new responsibilities, and I think the American people would expect nothing less than equal justice for all people and fair justice at that. Now I see eye to eye with you on many issues. We've had our differences, but in every case that we've had differences you have always spoken in a forthright and decent manner, and you've been willing to discuss the issues with me and I think others on this committee. Now you're going to be asked some tough questions today, and that is as it should be, I suspect. I think today's hearing is certainly going to dwell to a large degree on ongoing public policy, on that debate on how a democratic society with a long tradition of protecting civil liberties should conduct itself when it finds itself threatened and attacked by terrorist groups and individuals who will stop at literally nothing to destroy our way of life and who do not represent a particular country, do not wear uniforms, do not abide by international principles, and who really are rogue in every sense of that term. Now it's my hope that in addition to providing an adequate record about Judge Gonzales' qualifications to serve as attorney general, one of the outcomes of today's hearing will be to educate the committee and the public about the facts of what actions were taken and were not taken with respect to the treatment and interrogations of various classes of individuals who have been detained and taken into custody by the United States as part of our response to the horrific 9/11 terrorist attacks on America. Now you have a big job ahead, and I personally know that you're capable and you are up to doing that job very well. Now let me just say -- before I ask some questions of Judge Gonzales, I'd like to just take this opportunity to once again recognize the hard work, the dedication and many accomplishments of our current attorney general, John Ashcroft. He has been a terrific attorney general. He's done a terrific job down there, and I think the way crime has come down and a lot of other things have happened for the betterment of the country are, frankly, because of his leadership. Frankly, it has not been lost on me that many of those who are opposing you today are people who have, in many respects, unfairly vilified the current attorney general over the last four years. Now let me just ask some questions by reviewing some of the key points with respect to the treatment of detainees. Like most Americans, I was appalled by the abuses at Abu Ghraib. Some have stated that the president's February 7th, 2002 memorandum is somehow responsible for the abuses at Abu Ghraib, at that prison facility in Iraq. But isn't it true that the February 7th, 2002 memorandum actually makes clear that the Geneva Conventions do apply in both Afghanistan and Iraq?
MR. GONZALES: Senator, I don't recall that the memo actually talked about Iraq. The president -- there was a decision by the president that Geneva would apply with respect to our conflict with the Taliban; however -- and I believe there's little disagreement about this as a legal matter -- because of the way the Taliban have fought against the United States, that they forfeited their right to enjoy prisoner of war legal protections. There was never any question about whether Geneva would apply in Iraq. There was no decision for the president to make.
SEN. HATCH: Right.
MR. GONZALES: Iraq was a signatory to the Geneva Convention. So there was no decision for the president to make. There was no decision by the Department of Justice as to what kind of techniques should be approved with respect to interrogations in Iraq, because the understanding throughout the administration was, the Geneva Conventions apply in Iraq.
SEN. HATCH: Well, isn't it also true that the president's February 7th, 2002, memorandum, which is entitled "Humane Treatment of al Qaeda and Taliban Detainees," also requires American forces to treat all detainees humanely, regardless of whether the Geneva Conventions apply? Isn't that true?
MR. GONZALES: That is correct. The president gave a directive to the military that despite the fact that Geneva may not apply with respect to the conflict and the war on terrorism, it is that everyone should be treated humanely.
SEN. HATCH: And that was more than two years ago.
MR. GONZALES: That is correct.
SEN. HATCH: Am I correct in my understanding that at no time did the president authorize the use of torture against detainees, regardless of any of the legal memoranda produced by various entities of the U.S. government, including the August 2002 Department of Justice memo, the so-called Bybee memo?
MR. GONZALES: Senator, the position of the president on torture is very, very clear. And there's a clear record of this. He does not believe in torture, condone torture, has never ordered torture. And anyone engaged in conduct that constitutes torture is going to be held accountable.
SEN. HATCH: So that's never been a problem with regard to the president or you as his adviser?
MR. GONZALES: Absolutely not, Senator.
SEN. HATCH: Okay. As counsel to the president of the United States, is it your responsibility to approve opinions issued by the Department of Justice?
MR. GONZALES: No, sir, I don't believe it is my responsibility, because it really would politicize the work of the career professionals at the Department of Justice. I know that some have been critical of my actions in not trying to force the opinion a certain way, people that are concerned about certain sections of that opinion. But we have to be very, very careful here that when you use the White House as a shield, it could also be used as a sword. It can be used as a sword to force an opinion to reach an outcome that would be politically advantageous to the White House, and we don't want that to happen. And so I take my responsibilities very seriously in respecting the role -- the Department of Justice, given to the department by Congress, to decide for the executive branch what the law requires.
SEN. HATCH: In fact, the Bybee memo was actually withdrawn by the Department of Justice in June of 2004. Am I right on that?
MR. GONZALES: The opinion was withdrawn, yes, sir.
SEN. HATCH: The Bybee memo was issued, I believe, six months after the president issued his February 7th, 2002, memo requiring all detainees to be treated humanely. Is that correct?
MR. GONZALES: That is correct. It has always been the case that everyone should be treated -- that the military would treat detainees humanely, consistent with the president's February order. SEN. HATCH: So that memo did not overrule what the president's memo on -- the 2002 memo actually said? MR. GONZALES: Of course not.
SEN. HATCH: That's right. Well let me just -- I think my time is up as well. And I just want to compliment you. Knowing you personally, and having served with you and having worked intimately with you over the last four years, I want to compliment you for the professional manner in which you have conducted yourself, and your staff as well. You've done a terrific job, and I just want to let everybody know how much I feel about the job you've done. Thank you, Mr. Chairman.
SEN. SPECTER: Thank you. Senator Kennedy.
SEN. TED KENNEDY (D-MA): Thank you very much, Mr. Chairman. And welcome, Mr. Gonzales, and welcome to your family. I'll include, if I could, Mr. Chairman, my opening statement and comment that recognizes the extraordinary achievements and accomplishments of the nominee --
SEN. SPECTER: Without objection, they will be made a part of the record. SEN. KENNEDY: -- which is incredibly impressive. In that I said, as I mentioned to the nominee, he understands full well our responsibilities in the points of inquiry that we're going to make. I sit on the Judiciary Committee and also on the Armed Services Committee and I was a member of the Armed Services Committee in the time that all America saw the Abu Ghraib photos. And just subsequent to that, we in the Armed Services Committee had General Taguba, who did the Taguba report that was leaked, and we read in the report, before a copy was actually provided to the Congress. And immediately the administration claimed during the hearings that we had with General Taguba that the Abu Ghraib was just a few bad apples; there was no higher level of support or encouragement for the mistreatment of detainees. Then we learned that the Defense Department's working group report of April 2003 had provided the broad legal support for the harsh interrogation tactics and it dramatically narrowed the definition of torture and it recognized the novel defenses for those who committed the torture. Then we learned that the legal basis for the working group report had been provided by the Justice Department in the Bybee memo. Now, that is what's come up from the administration, that has come up -- including the president of the United States. This committee, the Armed Services Committee has asked for these memos. We have depended upon what's been leaked, what's been put on the Internet, and what's been obtained in the Freedom of Information and by various attorneys. So there's a certain kind of sense by many of us here that the administration -- and you're the point person on the administration -- has not been forthcoming on the whole issues of torture, which not just were committed at Abu Ghraib but is happening today, today. Now, the Bybee torture memoranda, written at your request -- and I'd be interested in your reactions to this -- made abuse of interrogation easier. It sharply narrowed the definition of torture and recognizes new defense for officials who commit torture. For two years, for two years, from August 2002 to June 2004, you never repudiated it. That's the record. You never repudiated it. It was written by the CIA's bidding. And you can clarify that, if that's false. We can all assume was probably provided to the CIA as written. Its principles were adopted in the military in the Defense Department's working group report. I've got it right here, and I'll read the identical provisions in the Bybee report that were put in the Defense Department working group report that has been the document which has been made available to the Defense Department about how they ought to view torture. And this person assumes that you've leaked -- the Bybee report has already gone to the CIA in its complexity. Now, according to the Defense Department's own investigation -- you asked -- you referred to Senator Leahy -- asked the Defense Department -- the working group report was used to justify -- this is DOD -- was used to justify the many abuses that occurred in Afghanistan and Guantanamo. And according to Fay and Schlesinger, that testified in the Armed Services Committee, the abusive policies and practice in Afghanistan and Guantanamo migrated to Iraq. You've never repudiated the Bybee memo's assertion that presidential power overrides all the prohibitions against torture enacted and ratified. The president's directive to act humanely was hollow, it was vague, it allowed for military necessity exception and didn't even apply to the CIA. Didn't even apply to the CIA. Abuses are still being reported. And you were warned by Secretary Powell -- Secretary Powell -- and other top military leaders that ignoring our long-standing traditions and rules would lead to abuse and undermine of military culture, and that is what has happened. Now, I'm going to get to how the Bybee amendment (sic) was first written. As I understand, there is the report in The Washington Post that the CIA asked you for a legal opinion about how much pain and suffering an intelligence officer could inflict on a detainee without violating the '94 anti-torture statute, which, I might point out, was strongly supported by Ronald Reagan and Bush I and passed the Foreign Relations Committee unanimously. Republicans have been concerned about torture as Democrats. And we can get -- will get into the various statutes that have been passed in recent times which would indicate that. Now, the Post article states you chaired several meetings at which various interrogation techniques were discussed. These techniques included the threat of live burial and waterboarding, whereby the detainee is strapped to a board, forcibly pushed under water, wrapped in a wet towel and made to believe he might drown. The article states that you raised no objection, and without consulting military and State Department experts -- they were not consulted, they were not invited to important meetings -- they might have been important to some, but we know what Secretary Taft has said about his exclusion from these -- experts in laws of torture and war (prove/approve ?) the resulting memo this gave CIA interrogators the legal blessings they sought. Now, was it the CIA that asked you? MR. GONZALES: Sir, I don't have specific recollection. I read the same article. I don't know whether or not it was the CIA. What I can say is that after this war began against this new kind of threat, this new kind of enemy, we realized that there was a premium on receiving information. In many ways this war on terror is a war about information. If we have information, we can defeat the enemy. We had captured some really bad people who we were concerned had information that might prevent the loss of American lives in the future. It was important to receive that information, and people -- and the agencies wanted to be sure that they would not do anything that would violate our legal obligations. And so they did the right thing: they asked questions. What is lawful conduct? Because we don't want to do anything that violates the law. SEN. KENNEDY: Okay. So the legal -- you asked at their request. As I understand it -- if this isn't correct, then correct me. I'm not attempting -- I -- or if there are provisions in that comment I made here that are inaccurate, I want to be corrected. I want to be fair on this. But it's my understanding, certainly was in the report, that the CIA came to you, asked for the clarification, you went to the OLC. Now I want to ask you, did you ever talk to any members of the OLC while they were drafting the memoranda? Did you ever suggest to them that they ought to lean forward on this issue about supporting the extreme uses of torture? Did you ever, as reported in the newspaper? MR. GONZALES: Sir, I don't recall ever using the term sort of leaning forward in terms of stretching what the law is. SEN. KENNEDY: Did you talk to the OLC during the drafting of it? MR. GONZALES: There is always discussions -- not always discussions, but there often is discussions between the Department of Justice and OLC and the counsel's office regarding legal issues. I think that's perfectly appropriate. This was an issue that the White House cared very much about, to ensure that the agencies were not engaged in conduct -- SEN. KENNEDY: What were you urging them? What were you urging -- they are, as I understand, charged to interpret the law. They -- their -- we have a series of different -- six or seven of the laws on the Conventions on Torture and the rest of it, they are charged to develop and say what the statute is. Now what did you believe your role was in talking with the OLC and recommending -- MR. GONZALES: To understand their -- to understand their views about the interpretation of -- SEN. KENNEDY: Weren't you going to get the document? Weren't you going to get their document? Why did you have to talk to them during the time of the drafting? It's suggested here that you were urging them to go as far as they possibly could. That's what the newspaper report -- your testimony is that you did talk to them, but you can't remember to -- what you told them. MR. GONZALES: Sir, I'm sure there was discussion about the analysis, about a very tough statute -- a new statute, as I've said repeatedly, that had never been interpreted by a court -- and we wanted to make sure that we got it right. So we were engaged in interpreting a very tough statute, and I think it is perfectly reasonable and customary for lawyers at the Department of Justice to talk with lawyers at the White House. Again, it was not my role to direct that we should use certain kinds of methods of receiving information from terrorists. That was a decision made by the operational agencies, and they said we need to try to get this information what is lawful, and we looked to the Department of Justice to tell us what would be, in fact, within the law. SEN. KENNEDY: Mr. Chairman, I see my time is going to be up. What I'd like to do is include in the record the Bybee memoranda and the Defense Department working group report, the analysis where they use virtually word by word the Bybee amendment in the key aspects of the working group report, which was the basic document which has been the guide to our military about how they should treat prisoners. SEN. SPECTER: Without objection, they will be made part of the record. Senator DeWine. SEN. MIKE DEWINE (R-OH): Thank you, Mr. Chairman. Judge Gonzales, thank you very much for being with us today. Judge, every attorney general is -- or most attorney generals are known for something. Robert Kennedy was known for his crusade in regard to organized crime, and then of course later on we remember him for civil rights; Attorney General Barr for his efforts in regard to guns and gangs; Attorney General Reno, her efforts in regard to children, domestic violence; Attorney General Thornburgh, internationalization of crime in the area of drugs, organized crime; we could go on and on. Four years from now, what do you want to be remembered for? MR. GONZALES: Well, Senator -- SEN. DEWINE: Excluding -- if I could, excluding the war on terrorism. MR. GONZALES: Senator, the -- I think the Department of Justice is somewhat unique from other agencies. I'm not sure that an attorney general can afford to focus in providing or dispensing justice in one area to the exclusion of the other. And so I would hope that, certainly at the end of four years, it would be said that Al Gonzales did the very best he could and hopefully was successful in ensuring that there was justice provided to Americans all across the spectrum on a wide variety of issues. I also -- it is my sincere hope that I would be remembered, if I am confirmed today, as someone who renewed the vitality, the importance of the work that goes on at the Department of Justice. I know that there are some -- there are wonderful people who come to work every day, and they come to work with one goal in mind, and that is the pursuit of justice for all Americans. And I feel a special obligation, maybe a special -- an additional burden coming from the White House to reassure the career people at the department and to reassure the American people that I'm not going to politicize the Department of Justice. But with respect to specific areas that I probably would like to have special emphasis on, of course the first one is the war on terror. I also, because of my background, believe very much in the protection of civil rights, the protection of our voting rights, the protection of our civil liberties. I continue to believe that we have too many drugs in our society, and that should be a focus. I am concerned about the violent crime in our society. I am concerned about the use of certain kinds of weapons in connection with those crimes. I think obscenity is something else that very much concerns me. I've got two young sons, and it really bothers me about how easy it is to have access to pornography. And so those are a few things that I would be focused on. But again, I think the Department of Justice is unique and that my goal, as impossible as it may be, or it may seem, is to try to ensure that justice is administered across the spectrum. SEN. DEWINE: Judge, there are never enough resources for any prosecutor. I was a county prosecutor; we never had enough resources, or we didn't think we did anyway. You pick and choose, you make decisions. The attorney general has that problem. U.S. attorneys have that problem every day. Congress really hasn't helped. We haven't helped. We've increased the number of federal crimes; we keep doing it every Congress. We have mandatory minimums. Most U.S. attorneys in recent years have said that the U.S. attorneys must charge -- most attorney generals have said that the U.S. attorneys must charge the highest possible offenses. So the local U.S. attorneys are overworked. They have to frankly pick and choose their cases. Then we had September 11th. And we had a whole new emphasis -- emphasis on the war on terrorism. From previous conversations with your predecessor and with the FBI and with published documents from the attorney general's office, it's clear that the attorney general and the Justice Department is not doing some things, not prosecuting some certain cases that you were prosecuting in the past. How are you going to set your priorities? And how are you going to deal with the fact that you are not prosecuting some things that you were prosecuting in the past? For example, you're not putting the emphasis on drug cases that you were able to do in the past. And this is not a criticism. I'm not saying if I was attorney general, I would be doing any differently. But to be attorney general is to choose. To be attorney general is to make policy. To be attorney general is tell every U.S. attorney in this country, "This is what's important, and this is what's not so important." That's what I'm trying to get from you today, and I need a little more specifics from you, if I could. MR. GONZALES: Senator, I wouldn't be so arrogant as to assume today that I have all the information that I would need to make that kind of prioritization. SEN. DEWINE: No, but -- excuse me. But Judge, you've been in the White House in a very high position for four years. You've been involved in the justice system for four years. And prior to that, at the state level, you were intimately involved as well. So you have a great background for this, and I would like your comments, sir. MR. GONZALES: Well, an initial comment I would make is that you talked about the attorney general being in the role of sort of a policymaker. As a member of the president's Cabinet, I am a member of the president's team, and -- so that he will have certain priorities. And obviously his priorities will become my priorities in terms of policy-making, not in the area of law enforcement or in prosecutions, but in the area of making policy. I think that once again we'll have to call upon our continued cooperation with state and locals in order to maximize those relationships, to ensure that we have sufficient resources. And I understand that they're -- they have the same problem in terms of lack of adequate resources to prosecute all kinds of crimes. But I think cooperation, not just with state and locals -- I think there needs to be greater cooperation within the department itself. There needs to be more sharing of information, in order to maximize the efficiencies that are possibly there. But Senator, I don't have specific ideas today about what kinds of priorities would exist for me. I spoke earlier about the types of issues that would have special attraction and appeal to me, and I suspect that those will be issues that will ultimately become priorities in a Gonzales Department of Justice, if confirmed. SEN. DEWINE: Well, Judge, I think one of the things that is -- certainly we look for and certainly I look for, from the next attorney general, is candor. And I think what would be very helpful is candor to the American people in explaining -- as the war on terrorism continues, to explain to the American people what the Justice Department is not doing and what you do not have the ability to do anymore, and -- so that we can make policy choices; the Congress and the administration, the American people can make policy choices -- and to come to Congress and say, "We're not doing this anymore. This is an area we can't do anymore, because of the war on terrorism." MR. GONZALES: Senator -- SEN. DEWINE: And you don't have to even get into specifics today. I'm just asking if you agree with that and if you will make a commitment to us today that -- when you come to this committee and testify, will you be honest with us and tell us, "Senators, we're not doing this, because we're doing something else"? MR. GONZALES: Absolutely, Senator, I will make that commitment. Let me tell you that it would be a priority of mine to not only inform but educate not only this committee but the American people about what the department is doing and why we're doing it. There's a great deal of misinformation and fiction out there about what the department is doing. And I think that one of my goals should be is to educate and inform this committee and the American people about what the department is doing and why we're doing it, and why what we're doing is in fact lawful. SEN. DEWINE: You talked about policy. I understand the president sets the policy, and that is absolutely true. But ultimately, you know, whether you call it policy, or whatever you want to call it, the attorney general and the president, you're making choices about what the emphasis is. Let me -- one final -- one final question. I see the light is on. The area of technology is something that is very near and dear to my heart. You and I have talked privately about this. I wonder if you could just give us your commitment that the updating of the FBI's technology, which we all have heard so much about as being such a problem, will be one of your priorities and something that when you come in front of this committee you will report to us and that you will give us an accurate description of how that updating of the FBI's computer systems and its entire technology is coming. It is something that I think every member of this panel is very, very concerned about, and every member of Congress is concerned about. MR. GONZALES: Absolutely, you have my commitment on that, Senator. I do know that it is the highest priority for Director Mueller. I said earlier that the war on terror really is a war about information. We have to have the most updated technology in order to gather up that information, to analyze that information. So you do have my commitment, Senator. SEN. DEWINE: I appreciate it. And we need to know -- we need to know when you don't have the resources to get it done. And again, in regard to candor, you have to be candid with us and say, "We don't have enough money. We don't have the resources," when you don't in that area. Thank you, Mr. Chairman. MR. GONZALES: I won't be shy about that, Senator. SEN. SPECTER: Senator Biden. SEN. JOSEPH BIDEN (D-DE): Thank you, Mr. Chairman. I -- in 10 minutes, the core questions I want to ask will probably occur in the second round, Judge. Let me begin, though, by saying I congratulate and welcome the new chairman. I think that if anyone was made for this job, it's the senator from Pennsylvania, who I think is the finest constitutional lawyer in the country -- maybe not the country, but in the Senate. I welcome his -- (laughter) -- seriously. I think it befits his background to chair this very difficult committee. And I wish him well, and he has my cooperation. I'm delighted that he's -- SEN. SPECTER: Thank you very much, Senator Biden. Thank you. SEN. BIDEN: Judge, we sort of got off -- I think we got off on sort of an unusual footing here. And I think that our colleague in the committee fired a gun that had not been shot yet in determining -- I don't know anybody who's announced they're against your being the next attorney general. Even those who have doubts about you say you're going to be confirmed. And so this is not about the president and his judgment. It is appropriate for us to understand the president is not a lawyer. He doesn't know from shineola about the treaty. By the way: nor do previous presidents, nor do previous presidents. That's why they have legal advisers. That's why they hire brilliant graduates from Harvard Law School and former judges to advise them. I'm being deadly earnest here; it's not a joke. So I don't judge the president on whether or not he supports, didn't support torture. He signed off on a memo that may in fact, in the minds of many, in fact, constitute torture, and he says he doesn't -- that's irrelevant here. And Judge, this is not about your intelligence. This hearing's not about your competence. It's not about your integrity. It's about your judgment, your candor, because you're going to be making some very difficult decisions as attorney general, as every attorney general has. Decisions on matters we can't even contemplate now. When I got here in 1972, the idea that anybody making judgments about cloning was bizarre. Within four years you're going to make judgments on issues we haven't even contemplated. So I want to know about your judgment. It's your judgment. And it's -- we're going to -- you're going to be the AG. You're not going to be legal counsel anymore. You are no longer the president's lawyer. You are the people's lawyer. Your oath is to the people of the United States. I know you know that. MR. GONZALES: Yes, sir. SEN. BIDEN: And therefore, and this is not a Supreme Court hearing, although some suggest it foreshadows that. As a Supreme Court nominee you could sit there and say, "I don't want to comment on that law or interpret it because I may have to judge it." As attorney general you're responsible to tell us now what your judgment is and what the law means. It is your obligation now for us to be able to assess your judgment, your legal judgment. You're in no way, as you implied to two of the questioners, you're in no way jeopardizing a future case. That's malarkey, pure malarkey. So we're looking for candor, ol' buddy. We're looking for you when we ask you questions to give us an answer, which you haven't done yet. I love you, but you're not very candid so far. (Laughter.) And so, please, do no use the strawman, that "while as a future attorney general I may not be able to comment on what that law means" -- you are obliged to comment. It's your job to make a judgment before a case is taken. That's your judgment we're looking at. And so it seems to me that -- and the other point I'd like to raise, because I'm only going to get to the questions in my second round really, is my good friend from Texas. He held up three reports who didn't say what they said he said. The three reports he held up, that I'm aware of -- maybe four -- saying -- asserting essentially that they confirmed the judgment that you made in your recommendations to the president of the United States of America relating to torture and other matters. Now, the reason why it is appropriate to ask you about Abu Ghraib is not to go back and rehash Abu Ghraib, but it's relevant as to whether or not what occurred at Abu Ghraib came as a consequence of the judgments made and embraced by the president that were then essentially sent out to the field. The Schlesinger report that was cited, it finds, quote: "Lieutenant General Sanchez signed a memo authorizing a dozen interrogation techniques beyond standard Army practice, including five beyond those applied at Guantanamo." He did so, quote, "using reasoning from the president's memo of February the 7th, 2002." So I say to my friend from Texas, that's why this is relevant. The very reports cited say that -- and I won't go through them all -- the Red Cross report. The Red Cross did not sign off and say what that -- you know, the conduct or the recommendations or the memorandum were, in fact, appropriate. And so I won't go through it all now, but I will if we need to in further questioning. So again, I want to sort of clarify here. This is about the judgment you have exercised and whether or not the next four years the judgment you're going to give a president, which he understandably should rely upon -- this is not a man who has your legal credentials; that's why he has you, to make a recommendation to him. And it's appropriate for him to accept that recommendation, unless on its face an average citizen or an informed president who's not a lawyer would say no, that can't make any sense. So that's why we're worried about this. That's what this is about. And there is sort of a -- there is a split here in the Congress, there's a split in the country, about what's appropriate at this time of dire concern about terror. You know, there is that play we've all seen, "A Man for All Seasons," and there's a -- there's an exchange in there where Sir Thomas More is engaging Roper, and Roper says -- the young man came to seek a job, and he said -- he said, "Arrest him. He means you harm." And he said, "He broke no" -- and he turns and says, "He's broken no law." And Roper said, "But he means you harm." And if my recollection is correct, you have Thomas More turning to Roper and saying, "This country is planted thick with laws, coast to coast, man's laws, not God's. And if you cut them down," Roper, as you would, what will you do when the devil turns round on you? "Yes, I'd give the devil benefit of law for my own safety's sake." That's the fundamental principle we debate among ourselves here, no matter how you cut it, and that's what the debate that took place on these torture memos between Taft and Yoo. I have, which I'm not -- I have a copy of the report, the memo sent by the secretary of State to you all on February 7th, which is -- I'm not going to make public, but in that memo he takes significant issue with the recommendations coming out of your shop. And Mr. Yoo's -- and he says -- ends by saying let's talk, we need to talk. And he goes into great detail, as other reports do. Powell, contemporaneously on the 7th, says basically -- and I have the report right here -- he says basically look, you go forward with the line of reasoning you guys are using and you're going to put my troops, my former troops, in jeopardy. This is about the safety and security of American forces, and he says in here what you're doing is putting that in jeopardy. You have the former head of JAG, the top lawyer in the United States military, saying, "Hey, man, this is way beyond -- the interrogation techniques you're signing off, way beyond what the manual, the military manual for guidance of how to deal with prisoners, says." And so the point I'm trying to make here -- and I will come back with questions, and if I have any time, I will -- well, I don't have any time -- is, this is important stuff, because there was a fundamental disagreement within the administration. And based on the record, it seems to me, although it may not be totally -- it may not be dispositive, your judgment was not as good as the judgment of the secretary of State; your judgment was not as good or as sound as the chief lawyer from the JAG; your judgment was not as sound. And the question I want to debate about is the judgment. How did you arrive at this, different than these serious people, like you, who thought what you were doing, recommending to the president in the various memos, was jeopardizing the security of American troops? And that's what I want to get back to. But I want to explain to the public and anybody listening: This is not about your integrity. This is not a witch hunt. This is about your judgment. That's all we're trying to do. And so when I get to ask my questions, I hope you'll be candid about it, because -- not that it's relevant -- I like you. I like you. You are real -- you're the real deal. SEN. SPECTER: Senator Biden, your red light is on. SEN. BIDEN: My red light is on. (Laughter.) Thank you. MR. GONZALES: Thank you, Senator. SEN. SPECTER: Judge Gonzales, while Senator Biden is awaiting round two to formulate a question -- (laughter) -- I think you ought to be given an opportunity to respond to Senator Biden's observations and implicit, perhaps, two dozen questions. So the floor is yours. MR. GONZALES: Senator Biden, I'm not -- when you're referring to the Powell memo, I'm not sure which memo you're referring to. And I presume you're referring -- SEN. BIDEN: Let me give you a copy of it. Just for the record, Mr. Chairman, it's dated January 11th, 2002, to John Yoo, from William Taft, legal adviser, and there is overwhelming evidence that you saw it. There was discussion about it. And that's what I'm referring to. MR. GONZALES: There was a great deal of debate within the administration, as that memo partly reflects, about what was legally required and perhaps a policy judgment to be made by the president. And the fact that there was disagreement about something so significant, I think, should not be suprising to anyone. SEN. BIDEN: Of course not. MR. GONZALES: Of course not. And reasonable people can differ. In the end, it is the Department of Justice who is charged by statute to provide the definitive legal advice, on behalf of the executive branch, to the president of the United States. What I can tell you -- SEN. BIDEN: With all due respect, that doesn't matter. I don't care about their judgment. I'm looking at yours. MR. GONZALES: Well, sir, of course I convey to the president my own views about what the law requires -- SEN. BIDEN: Right. MR. GONZALES: -- often informed by what the Department of Justice says the law is, because, as, again, by statute, you have conferred upon them that responsibility. I can tell you that with respect to the decision that the president ultimately made, everyone involved, including the secretary of State, including the chairman of the Joint Chiefs, all of the principals who had equities in the decision about the application of Geneva, had an opportunity to present their views and their concerns directly to the president of the United States, and he made a decision. SEN. BIDEN: You trust his decision -- SEN. SPECTER: Thank you, Judge Gonzales. Senator Kyl had to depart earlier this morning for his leadership role on a congressional delegation going to Israel, so he will not be with us today and I wanted to put that explanatory note in the record. Senator Sessions. SEN. JEFF SESSIONS: (R-AL): Thank you, Mr. Chairman. And I'd like to join in congratulating you on this office. And you are uniquely qualified and capable of handling this docile committee -- SEN. SPECTER: Thank you. SEN. SESSIONS: -- which you've inherited. Senator -- Judge Gonzales, I'd like to get a few things straight here. I spent 15 years in the Department of Justice and several years as an attorney general of the state of Alabama and I have some appreciation for the different roles that are involved here. You are counsel to the president of the United States, is that correct? MR. GONZALES: That is correct, Senator. SEN. SESSIONS: You didn't supervise the Department of Justice, did you? MR. GONZALES: That is correct, Senator. SEN. SESSIONS: You were not senatorially confirmed. MR. GONZALES: That is correct, Senator. SEN. SESSIONS: And you just work for the president and give him advice whenever he asks for you and help provide him assistance whenever he asks you to do so. MR. GONZALES: And I will just add -- that is correct, Senator. I will also add that with respect to significant legal decisions that the president has to pass judgment on, my advice is always influenced and it always is -- well, it is informed by the advice given to me by the Department of Justice. SEN. SESSIONS: Now, the Department of Justice, under the Judiciary act of 1789, is empowered by statute to issue opinions on various questions of law. MR. GONZALES: That is correct, Senator, SEN. SESSIONS: And they have an Office of Legal Counsel -- MR. GONZALES: Yes, sir. SEN. SESSIONS: -- that really specializes in that on behalf of the attorney general. MR. GONZALES: The Office of Legal Counsel has been delegated by regulation the authority of the attorney general to provide legal advice to the executive branch. SEN. SESSIONS: Now the president of the United States is executing a war on terrorism after 3,000 of our people have been killed by what can only be described as unlawful combatants, and it was a difficult, tough time, and you were concerned and the president was deeply concerned that there may be other groups of unlawful combatants that had saboteurs that were in the United States planning further attacks to kill more American citizens. And that's the way it was, isn't it? MR. GONZALES: The president was very concerned about protecting this country from future attacks and to doing everything we could do within the law to protect this country from future attacks. SEN. SESSIONS: And in the course of all of that, agencies that we had out there, their lives at risk, military and other agencies, to serve our people, to protect our people, asked the president what the law was with regard to their rights and duties and responsibilities of interrogating people they've apprehended. That came to your attention, I guess, as counsel to the president. MR. GONZALES: My understanding is that people in the agencies were very concerned about -- they understood that they had a direction from the president to do what they could to protect this country within the limits of the law, and they wanted to clearly understand what those limits were. SEN. SESSIONS: And so you didn't undertake to give them an off- the-cuff opinion, as Senator Biden suggests you ought to be able to do today on any question he would desire to ask you, I suppose. MR. GONZALES: I have been -- SEN. SESSIONS: You -- MR. GONZALES: I hope not, Senator. I have been criticized, quite frankly, for going too much to the Department of Justice and making sure that the legal advice we give to the president is the right advice. That's very important to me. I understand that the Office of Legal Counsel, they have the expertise, institutional history, the institutional knowledge about what the law is, and so I have a great deal of respect for that office and rely upon that office in the advice that I give to the president of the United States. SEN. SESSIONS: And it's staffed with career people who have dealt with these issues for many, many years, certainly. And you -- when this issue arose, I think you did the absolutely proper thing; you asked the entity of United States government that's charged with the responsibility of making those opinions, you asked them to render an opinion. MR. GONZALES: Absolutely, Senator. We want to get it right. It also provides, quite candidly, as a lawyer for the president, protection for the president. We want to make sure the president does not authorize or somehow suggest conduct that is unlawful. And so I felt that I had an obligation as a prudent lawyer to check with the professionals at the Department of Justice. SEN. SESSIONS: Well, I think you did, and I think that was the right step. Now, it's been suggested that this was your opinion; that you got -- it's your opinion, you asked for this opinion as if you asked for them to say precisely what they said. You asked for them to give an opinion on the legal question involved; you didn't ask them to give an opinion that you wanted. Is that correct? MR. GONZALES: As I said in my earlier testimony, there was give and take, there were discussions about the opinion. But ultimately, the opinion represents the position of the Department of Justice, and as such, it's the position that I supported at the time. SEN. SESSIONS: And there's no doubt in any one's mind, the Office of Legal Counsel or the attorney general, that that opinion was the one that they worked on, they debated internally, and when they put their name on it, it was their opinion; isn't that correct? MR. GONZALES: It was the work of the Department of Justice and, again, reflected the position of the executive branch. SEN. SESSIONS: Of the official position. Now, the president of the United States -- well, let me follow this up. Having been an attorney general and been involved in the Department of Justice, it's a part of the executive branch, as you are part of the executive branch. And lawyers in the Department of Justice have to be very careful -- do they not? -- when they issue an opinion that they are not circumscribing legitimate constitutional powers that belong to the executive branch, and they're going to be careful not to render an opinion that would remove constitutional powers that the president legitimately has. MR. GONZALES: That is correct. My view about the Office of Legal Counsel is to call them as they see them; I mean interpret the law and give us their best judgment about what the law is. SEN. SESSIONS: Well, I agree with that. But once this opinion came in from the Office of Legal Counsel, and the president and you, I'm sure, reviewed it, he issued some orders it seemed to me that were far less expansive than the authority the legal counsel said he had. MR. GONZALES: Well, I'm not sure which orders you might be referring to. Let me -- let me emphasize for the record that the president was not involved personally in deciding which kinds of methods could be used to question terrorists who might have information that might save American lives. The president was not involved personally in connection with that. What he expected and what he deserved was -- and I think what he got -- was people within the administration trying to understand what the law was and conforming their conduct to legal requirements. SEN. SESSIONS: And the opinion of the Department of Justice legal counsel really isn't policy, is it? It's just the opinion of the Office of Legal Counsel. MR. GONZALES: At the end of the day, again, as I described to you, I expect the Office of Legal Counsel to give me their best judgment, their best interpretation of what the law is. SEN. SESSIONS: And the president sets the policy based on his judgment after having received that advice. MR. GONZALES: That is correct. SEN. SESSIONS: Now with regard to al Qaeda, I don't think there's anyone on this committee on either side of the aisle that would say that al Qaeda represents a lawful combatant that is therefore entitled to the full protections of the Geneva Conventions, would they? I mean, that's pretty well undisputed that they are not representatives of an organized state and that they don't carry arms openly and that they don't -- and they clearly do not follow the laws of warfare in the surreptitious methods by which they bomb innocent civilians. MR. GONZALES: Senator, that is correct. Senator Biden spoke earlier about my judgment. My judgment was, based on just reading the words of the Geneva Conventions, is that it would not apply to al Qaeda. They weren't a signatory to the convention, and therefore it didn't seem to me that they could be -- our conflict with al Qaeda could be covered. But obviously -- SEN. SESSIONS: And that was -- MR. GONZALES: The decision by -- if I may just interrupt you, the decision by the president as to that, the fact that Geneva would not apply, was not just based upon my judgment; that was the considered judgment of the Department of Justice. SEN. SESSIONS: And it was clearly correct and clearly consistent with Ex Parte Quirin, the Supreme Court case during World War II. MR. GONZALES: That is correct, sir. SEN. SESSIONS: President Roosevelt captured some German saboteurs inside the United States and had a trial or a hearing in the Department of Justice or the FBI building and executed them. I don't think the public even knew about it until after they'd been executed. So an unlawful combatant is a different matter than that. Now in Iraq, you've said the Geneva Conventions would apply, basically, as I understand. SEN. SPECTER: Senator Sessions, your red light is on, but if you'd go ahead and finish your sentence quickly. SEN. SESSIONS: And truth be known, a number of those people involved in Iraq really shouldn't qualify, but the president has really gone further than the law requires, it seems to me, in granting them privileges that he didn't necessarily have to do as a matter affecting his policy of humane treatment. MR. GONZALES: Senator, I think the administration -- it is more accurate to say that the administration policy is and always has been is that in our conflict with Iraq, Geneva does apply and we are bound by the requirements of the Geneva Convention. Iraq is a signatory to the Geneva Conventions, and there was never any question, any debate, as far as -- that I'm aware of, as to whether or not Geneva would apply with respect to our conflict in Iraq. SEN. SESSIONS: But Zarqawi's people don't strictly qualify, in my opinion, as a lawful combatant. SEN. SPECTER: Senator Kohl? SEN. HERB KOHL (D-WI): Thank you very much, Mr. Chairman. And I too want to congratulate you on your ascension to the chairmanship of this committee. I've had the privilege of working with Senator Specter now for well over a dozen years, and I can attest to his skill and his perspective that I believe will enable us to proceed in an orderly and in a collaborative fashion. SEN. SPECTER: Thank you. SEN. KOHL: I also would like to welcome you to this committee, Mr. Gonzales. As you know, we've had an opportunity to work together on several different issues over the years, and I have come to respect you also, and I believe if you're confirmed that you will do a good job as attorney general of the United States. MR. GONZALES: Thank you, Senator. SEN. KOHL: Judge Gonzales, the 9/11 commission's report recognized that winning the hearts and the minds of the Arab world is vital to our success in the war on terror. Photographs that have come out of Abu Ghraib have undoubtedly hurt those efforts and contributed to a rising tide of anti-Americanism in that part of the world. Secretary of State Colin Powell and others raised concerns about the decision not to apply the Geneva Conventions, some even suggesting that it could well undermine U.S. military culture. And we now know that those concerns in large part, or significantly, were well- founded. In drafting your recommendations for the president on the application of Geneva Conventions, did you ever consider the impact that this could have on winning the hearts and minds of the Arab world in the war on terror? And in light of what has happened, if you could make the recommendation all over again, would you do something different than what you did? MR. GONZALES: Senator, that is a very good question, and thank you for asking that. I think the decision not to apply Geneva in our conflict with al Qaeda was absolutely the right decision for a variety of reasons. First of all, it really would be a dishonor to the Geneva Convention. It would honor and reward bad conduct. It would actually make it more difficult, in my judgment, for our troops to win in our conflict against al Qaeda. It would limit our ability to solicit information from detainees. It would require us to keep detainees housed together where they could share information, they could coordinate their story, they could plan attacks against guards. It would mean that they would enjoy combat immunity from prosecutions for certain war crimes. And so for a variety of reasons, it makes absolutely no sense. In addition to that, Senator, it is contrary to decades of executive branch positions. There was an attempt in 1977, Protocol 1, to provide prisoner of war legal status to terrorists. Now that protocol included some wonderful humanitarian provisions dealing with extraditions and hostages and things of that nature. But the United States and many other countries never ratified that protocol. And the reason is because the protocol arguably provided prisoner of war legal status to terrorists, and so it has been a consistent executive branch position since then, is that we're not going to do that because it hurts our soldiers. It's contrary to the spirit of Geneva to do so. And so I do believe the decision by the president was absolutely the right thing to do. Now, that's not to say that we don't -- we are not -- we don't operate without legal limitations and that we don't treat people consistent with our values as Americans. The president was very clear in providing directives that even though Geneva would not apply as a matter of law, that we would treat detainees humanely and subject to military necessity and as appropriate consistent with the principles of Geneva. In my judgment there's been a very strong attempt to do so at Guantanamo. There's been never any question, as I said in response to earlier questions, about whether or not Geneva should apply in Iraq. That's always been the case. Do I regret the abuses at Abu Ghraib? Absolutely. I condemn them. Do I believe that they may have hurt us in winning the hearts and minds of Muslims around the world? Yes, and I do regret that. But one of the ways we address that is to show the world that we don't just talk about Geneva, we enforce Geneva. And so as I said in response to an earlier question, that's why we're doing these investigations; that's why you have these military court-martials; that's why you have these administrative penalties imposed upon those responsible because we want to find out what happened so it doesn't happen again. And if someone has done something wrong, they're going to be held accountable. SEN. KOHL: Well let me ask you, do you think that what happened at Abu Ghraib was just spontaneous, or do you think that those relatively low-level perpetrators got some sort of a sign from people above them who got signs from people above them that these things would be tolerated? What is your opinion? MR. GONZALES: Well, we don't know for sure. First of all, I'm not -- I haven't conducted an independent investigation. We know eight have been completed; there are at least three ongoing. We know that the Congress is conducting -- you know, through hearings and briefings they're looking at this as well. As I listened to the briefings of Schlesinger and Fay and Kern and people like that about their findings and their reports, they divide up the abuses into two categories. One category is the violent physical abuse and sexual abuse -- that's the first category. And the second category are abuses related to interrogations and gathering intelligence stemming from confusion about what the policies and the strictures were. As to the first category, as I read the briefings, they all seem to conclude that what you see in the pictures, the most horrific of the abuses that we see, the ones that we all, you know, we all condemn and abhor, those do not relate to confusion about policies; those were not related to interrogations or confusion about how much you could -- what you could do in terms of gathering intelligence. This was simply people who were morally bankrupt trying -- having fun. And I condemn that. As to the second category, the reports seem to indicate that there was migration; there was migration between what happened at Guantanamo. You had people and standard operating policies that migrated from Guantanamo to Afghanistan and then into Iraq. And so there was some confusion about what were the appropriate standards to use in connection with interrogations and in connection with intelligence gathering. However, as I read the briefings and the reports, they seem to indicate that the reason that the abuses occurred was not because of some decision back in 2001 and 2002, but because of the fact that you had a prison that was outmanned, under-resourced, in -- focused on fighting an insurgency, and they didn't pay enough attention to detainee operations. There wasn't adequate supervision. There wasn't adequate training about what the limits were with respect to interrogation. That's how I read the findings and conclusions of some of these reports. But it's not done yet. Again, there are still ongoing investigations, and so we'll have to wait and see how those turn out. SEN. KOHL: That would seem to indicate, although we'll see what happens, that people above the level of those who committed the atrocities are likely -- and we'll see what happens -- to escape being held accountable. We'll see what happens. I know we -- you and I can't know that right now. But I think I'm getting a drift from you that those people who committed the atrocities were acting on their own; there really wasn't anybody at a higher level who understood and approved or at least condoned; and that the accountability should be held at that level. I think the American people, by and large, Judge Gonzales, believe that accountability should at least be focused on people above the level of those at that level who committed the atrocities. What do you think, Judge Gonzales? MR. GONZALES: I believe that people should be held accountable. I do think -- and perhaps I misspoke in describing how I reviewed the briefings and how I read the reports -- the reports seemed to indicate that there was a failure. There was a failure of discipline amongst the supervisors, of the guards there at Abu Ghraib, and also they found that there was a failure in training and oversight at multiple layers of Command Joint Task Force 7. And so I think there was clearly a failure well above the actions of the individuals who actually were in the prison. At least that's what the reports seemed to indicate, as I review them. SEN. KOHL: Finally, Attorney General Ashcroft said that he doesn't really believe in torture, in the sense that it doesn't produce anything of value. He has said that on the record. Do you agree with that? MR. GONZALES: Sir, I don't have a way of reaching a conclusion on that. All I know is that the president has said we're not going to torture under any circumstances. SEN. KOHL: Well, do you believe that the policy is a correct one, that we never should have had any torture at Guantanamo or at Abu Ghraib -- MR. GONZALES: Sir, we -- SEN. KOHL: -- among other reasons, because it really doesn't produce anything of value? MR. GONZALES: Sir, we -- the United States has never had a policy of torture. SEN. KOHL: I thank you, Mr. Chairman. SEN. SPECTER: Senator Graham. SEN. LINDSEY GRAHAM (R-SC): Thank you, Mr. Chairman. Congratulations, I think -- (chuckles) -- chairing this committee. Monday morning quarterbacking is part of democracy, so just bear with us, because what we're trying to do is figure out how to correct mistakes. Now I'm a very ardent supporter of the war. I really do believe if you're going to win the war on terror, you take dictatorships like Saddam Hussein, who was part of the problem, and you give people who lived under his oppression a chance to be free. And that's not easy, and I believe we made mistakes along the way. But one of the reasons that we're talking about this is a lot to do with your confirmation, but really not. I think we've dramatically undermined the war effort by getting on the slippery slope in terms of playing cute with the law, because it's come back to bite us. Abu Ghraib has hurt us in many ways. I travel throughout the world like the rest of the members of the Senate, and I can tell you it is a club that our enemies use, and we need to take that club out of their hand. Guantanamo Bay, the way it's been run has hurt the war effort. So if we're going to win this war, Judge Gonzales, we need friends and we need to recapture the moral high ground, and my questionings are along that line. To those who think that you can't win a war without the -- with the Geneva Convention applying, I have another role in life. I'm a judge advocate. I'm a reserve judge in the Air Force. I've never been in combat. I had some clients that probably wanted to kill me, but I've never been shot at. But part of my job for the last 20 years, along with other judge advocates, is to advise commanders about the Law of Armed Conflict. And I've never had a more willing group of people to listen to the law because every Air Force wing commander lives in fear of an air crew being shot down and falling into enemy hands. And we instill into our people as much as possible that you're to follow the Law of Armed Conflict because that's what your nation stands for, that's what you're fighting for, and you're to follow it because it's there to protect you. Now to Secretary Powell, he took a position that I disagree with legally, but in hindsight might have been right. I agree with you, Judge Gonzales; to give Geneva Convention protection to al Qaeda and other people like al Qaeda would, in the long run, undermine the purpose of the Geneva Convention. You would be giving a status in the law |