Executive Session

EXECUTIVE SESSION -- (Senate - February 01, 2005)

The PRESIDING OFFICER (Mr. CRAPO). Under the previous order, the Senator from Texas is recognized.

Mr. CORNYN. Mr. President, I find it ironic that we are debating the nomination of this fine nominee for Attorney General and hearing some vehement criticism of not just him but of this administration and its policies in Iraq and combating the war on terror, and when on Sunday we saw free Iraqis conduct their first democratic election in many years, with the kind of turnout that, frankly, brings a little embarrassment to those of us in America because they had such a tremendous outpouring of emotion and support for the opportunity to rise up against their oppressors, thanks to coalition forces and the sacrifices made by the American people and our allies, and be able to do what we do here on a regular basis, and that is let the will of the American people be known through the process of electing our representatives.

But here we are, and shortly on the heels of the debate on the nomination of Condoleezza Rice as Secretary of State. Of course, what we are told by those on the other side of the aisle is the outcome of this debate is not in doubt. Even the opponents of Judge Gonzales, just as the opponents of Condoleezza Rice, even as they stand here and claim these are great American success stories, which they are, and claim to personally like and respect these nominees, at the same time we see them excoriated and abused by partisan politics which, unfortunately, I hoped would cease or at least be mitigated somewhat by the results of the election on November 2.

We saw on November 2 not only the President's reelection by substantial margins, but we also saw an increase in our side of the aisle in the Senate and larger numbers in the House. One reason I believe that happened was because of this debate on the wisdom of our policies of this Government, particularly over the last 4 years. We held a popular referendum on November 2 and, frankly, the politics of obstruction and anger were repudiated.

What the American people want and expect is that we will get the business of the American people done in this body and that we will not degenerate into partisan fingerpointing or name-calling, nor obstruction of the kind we have seen occur time and time again against this President's nominees, particularly the judges who have been nominated by this President to circuit courts.

We know that while our friends on the other side of the aisle did have an opportunity for self-examination and reappraisal on November 2, apparently they have been unable or unwilling to change their habits and their destructive approach to this process. Unfortunately, it causes good men and women, such as Al Gonzales and Condoleezza Rice, to have to go through a process that, frankly, does not dishonor them but I think fails to bring honor to this institution and to those who oppose their nominations.

There is no question that we have an obligation in the Senate to seriously conduct our advice and consent function, and certainly no one is suggesting that any Senator should not vote their conscience. That is not what we are talking about. What we are talking about is when we cross the line that should not be crossed between doing our duty, sent here as we were by the people of our various States, and engaging in partisan politics on the floor, particularly on nominations, it is unfortunate.

I want to speak now not about this caricature that has been created by those who oppose this nomination, not the person I really see described by his opponents that I do not recognize, but I want to talk about the real Al Gonzales.

I am pleased Judge Alberto Gonzales happens to be a friend. He is a talented lawyer and a distinguished public servant and a good man. He also happens to be a good Texan and an inspiring American success story. I am proud to call him my friend.

I have known Alberto Gonzales for a number of years, unlike most of the people who are in this body, and that just is because I worked with him and alongside him and had a chance to observe him day in and day out, as he first functioned as the President's then-general counsel when he was Governor of the State of Texas, when he then served in the office of secretary of state for the State of Texas, and then was appointed and then elected to serve on the Texas

Supreme Court, which he did for a couple of years before the President of the United States asked him to leave his home behind and come to Washington to work with him in the challenges of the Oval Office, to serve as his legal adviser and White House Counsel.

Little did this President know and little did Alberto Gonzales know that September 11 would forever change the course not only of American history but their lives in such a dramatic and profound way.

The context I think the opponents of this nomination fail to take into account is how much America and our way of life was threatened by those who had no regard for human life, who had no regard for the law of war, but rather than attack our military in a battlefield chose to attack innocent civilians, resulting in the massive loss of human life in Washington, Pennsylvania, and in New York and resulting in almost a trillion dollars' worth of economic loss to the American economy.

Not only is this an extraordinary nominee and a good man, but I suggest to my colleagues that this President and his advisers, including his legal adviser, Alberto Gonzales, were met with challenges they never could have imagined they would have to undertake. It is important to have that context as we judge the work he did.

As I say, I have known Alberto Gonzales for many years, and I can tell you the media is absolutely right when they call him the man from Humble. For those who are not from Texas, that refers to Humble, TX, where he was raised, but also the fact that he is a modest, self-effacing man. He is the son of migrant workers. His childhood home, where his mother still lives today, was built by his father and his uncle.

As a child, he earned a little bit of money selling soft drinks at Rice University stadium and there, as he looked over the football games being played in that stadium, he dreamed of one day possibly going to school at Rice University.

Alberto Gonzales was the first person in his family to attend college. Because of the love and support of his family, his hard work and determination, he graduated from Rice University. In other words, his dream came true. Then he went on to graduate from Harvard Law School, two of the most prestigious institutions in this country.

Was it because he was born with a silver spoon in his mouth or was a child of privilege or knew powerful people? I suggest the answer to that is absolutely not. The reason Alberto Gonzales was successful in achieving his educational dreams is because of the love and support of his family and because of the hard work that in America ought to be rewarded and not discouraged.

Indeed, this is a man who not only, after he went to college, went on to work in one of the most prestigious law firms in the United States of America, but was one of its first minority partners. Yes, it was this young lawyer, after about 10 years of practice, who was first identified by an aspiring Governor of the State of Texas, George W. Bush.

It cannot be lost in this debate, as it goes on today, tomorrow, and Thursday, that Judge Alberto Gonzales is truly an inspiration to all of us who still believe in the American dream.

His nomination to be the 80th Attorney General of the United States of America, the chief law enforcement officer of this great country and our first Hispanic Attorney General, that story should by all accounts have a happy ending. But unfortunately that is not the way Washington works. Once again, we will see that this confirmation process is unnecessarily partisan, even cruel to those who have selflessly dedicated themselves to serving the American people. Only in Washington would a good man such as Alberto Gonzales, the personification of the American dream, someone who has pulled himself up by his bootstraps by dint of hard work and determination and the love and support of his family-only in Washington would we see that a man such as this would get raked over the coals for doing his job.

This must be a little disorienting to Judge Gonzales and his family, because, frankly, he comes from that part of America that believes America should always be a place where honesty, determination, and diligence are rewarded.

I want to talk a little bit about some of the specifics of the accusations made against Judge Gonzales, because I don't think we can take for granted that this is particularly well understood. They have to do with arcane matters, albeit important matters such as the Geneva Convention and the law of war, with the limits on interrogation techniques that can be humanely employed by the United States as a matter of policy, but first, I wish to point out that not only does a majority of the Senate stand ready to vote and confirm this particularly well-qualified and distinguished nominee, there are a number of groups around the country which support his nomination. I heard-and this happens to be a pet peeve of mine-that someone said the Hispanic Caucus in the U.S. House of Representatives opposes Alberto Gonzales's nomination.

What that person did not say is that the Hispanic Caucus in the House of Representatives is composed only of Democrats. Indeed, there are Hispanics, both in the House and in the Senate, who support Judge Gonzales's nomination, as well as groups from all around the country that believe this nomination should not hit a glass ceiling but, rather, be an example for all Hispanics who look for reward for their hard work and labor in American society and which see this as an opportunity to elevate one of their own as a role model to young boys and girls as they go to school and work hard and try to achieve their American dream. The National Council of La Raza, the Hispanic Alliance for Progress Institute, the Texas Association of Mexican American Chamber of Commerce, the New America Alliance, the American-Latino Business Initiative, the National Association of Latino Elected and Appointed Officials, the Congressional Hispanic Conference, the League of United Latin American Citizens, the Hispanic National Bar Association, the Latino Coalition, the National Association of Latino Leaders, the United States Hispanic Chamber of Commerce, the Hispanic Association of Colleges and Universities, MANA, a National Latino Association, the National Association of Hispanic Publishers, the Hispanic Roundtable, and the National Association of Hispanic Firefighters endorse Alberto Gonzales's nomination to serve as this Nation's 80th Attorney General.

I don't want those listening by reference to a solely Democratic caucus in the House of Representatives, by hearing they do not support his nomination to be under the
misapprehension that Latinos in this country do not overwhelmingly support this nominee, because they do.

I would point out finally, with regard to the Hispanic Caucus in the House, the solely Democratic-member caucus, they didn't support Miguel Estrada's nomination to the District of Columbia Court of Appeals, either. Frankly, it is beginning to be an unseemly trend.

Let me talk a minute about the Geneva Convention because this is, as many legal matters are, somewhat confusing. Frankly, we get down so far into the weeds on this that people's eyes glaze over and roll back into their heads and they quit receiving any additional information. But the bottom line is this: Judge Gonzales advised the President that all detainees in the war on terror-whether they be al-Qaida fighters, whether they be Taliban, whether they be the Iraqi military when we went into Iraq; all-as a matter of policy of this Government, be treated humanely. In other words, Alberto Gonzales, this President, this Government, and all of its officials have said we oppose torture in any form as a means to get intelligence from detainees, whether they be classified as unlawful combatants or are covered by the Geneva Convention.

Indeed, that is what Alberto Gonzales said in a memo he wrote to the President dated February 7, 2002, and which the President adopted. It is the policy of this Government to treat detainees-no matter how they be classified-humanely, and that we condemn the use of torture as a matter of national policy.

You would never know it by some of the statements, some of the misstatements and some of the disinformation that has been spread about this nominee. Unfortunately, it has been harmful to our effort in the war on terror. This should come as fairly straightforward information, but let me just emphasize it. I asked this question repeatedly during the course of the hearings we had with Judge Gonzales. I said: Does anybody here take the position that America should not use all lawful means to obtain actionable intelligence that would save American lives? Does anyone take the position that we should not use all lawful means to obtain actionable intelligence that would save human lives?

Thankfully, notwithstanding some of the rhetoric we have heard and maybe some of the confusion we have heard propagated during this debate, everyone said: No, we agree with that. You should use all lawful means to get actionable intelligence to save American lives.

What I was thinking back to was a hearing we had before the Senate Armed Services Committee on May 14, 2004. I asked that question of two of our Nation's most distinguished military leaders, MG Geoffrey Miller, who was in charge of the detention facilities there at Guantanamo, where many of the al-Qaida fighters are kept who have been the subject of news reports and some discussion and litigation. I also asked GEN John Abizaid, who is the commander of the U.S. central command, including Iraq. I will just read what General Abizaid said:

I will start with a question.

I said: "In your opinion, General Miller, is the military intelligence you have been able to gain from those who have recruited, financed and carried out terrorist activities against the United States or our military, has that intelligence as a consequence that you gained saved American lives?"

General Miller said: "Senator, absolutely."

So I asked General Abizaid, who was also there on the same panel, I said: "Would you confirm for us, General Abizaid, that it is also true within the Central Command"-which includes Iraq, Afghanistan, and I think it covers 26 countries. I may be off one or two.

But General Abizaid, the commander of U.S. Central Command, said: "Senator, I agree that is true. And I'd also like to add that some of these people we are dealing with are some of the most despicable characters you could ever imagine. They spend every waking moment trying to figure out how to deliver a weapon of mass destruction into the middle of our country, and we should not kid ourselves about what they are capable of doing to us and we have to deal with them."

I said: "General Abizaid, if we needed any other reminder than that of the death of Nicholas Berg, I believe that reminds us again in a graphic fashion."

You will recall that it was Nicholas Berg who was captured by terrorists, who then was beheaded on camera, and that film was shown to the entire world.

Our enemy does not play by the rules. They are not constrained by the law of war or the Geneva Convention. They believe it is perfectly acceptable to kill innocent civilians by suicide bombing attacks, as we have seen. And they believe it is perfectly acceptable to behead unarmed hostages as a means to carry out their reign of terror.

On the matter of the Geneva Convention, it is clear that it is important for us to get actionable intelligence using humane and legally acceptable means. Any suggestion that Judge Gonzales believes inhumane or illegal means are acceptable is simply not supported by any facts.

Frankly, on the matter of the applicability of the Geneva Convention, Judge Gonzales is right. You don't have to take my word for it.

First, I heard the Senator from Utah, Senator Hatch, former chairman of the Judiciary Committee, point out that al-Qaida never signed the Geneva Convention. But people may say, Well, that is a technical matter but it is part of it.

I will tell you that the Red Cross's own guidelines, which I hold here in my hand, have four requirements, four conditions of lawful combat, none of which al-Qaida meets.

Here again I ask: Does anyone in this body or anywhere across the country seriously argue that al-Qaida complies with the law of war? Judge Gonzales is not binding himself in his legal conclusion about the applicability of the Geneva Convention. Even though you say it might not meet the letter of the rules set out in this book I held up, the International Committee of the Red Cross Guidelines on the Geneva Convention, I would suggest this is important. Three Federal courts have concluded that Judge Gonzales's legal advice was correct. It has also been endorsed by numerous legal scholars and international legal experts across the political spectrum, as well as the 9/11 Commission, as well as a report given by the Schlesinger

Commission, which was one of the commissions appointed to review the detention operations both at Guantanamo Bay and Abu Ghraib.

Finally, in addition to those decisions by the Federal court, the 9/11 Commission, and the Schlesinger report, I would say a brief filed in a recent Supreme Court case by former Carter administration officials, former State Department legal advisers, judge advocates general, military commanders, and liberal international law scholars, has agreed with Judge Gonzales's conclusion about the applicability of the Geneva Convention to al-Qaida.

As a matter of fact, these legal scholars said the President's conclusions that members of al-Qaida and the Taliban are unlawful combatants is clearly correct.

I would say to those who have been loose with the law and facts with regard to the Geneva Convention, they need to doublecheck their information, because time and time and time again Judge Gonzales's legal advice to the President has been shown to be correct.

But I must say again, this is not the same as saying we are going to treat these detainees in an inhumane fashion or that we are going to engage in torture. We are not. But some have inflated those two, saying if the Geneva Convention doesn't apply, what you are saying is there are no rules and anything goes, which is absolutely false. That is not what I am saying. That is not what Judge Gonzales said, that is not what the President says, and that is not the policy of the U.S. Government.

One last thing on the Geneva Convention. My father's generation, which was part of the "greatest generation" that fought in World War II-there are a lot of television shows and movies that depict how POWs are maintained. One of them I remember watching when I was a kid was called "Hogan's Heroes." You know what the Geneva Convention is designed to do-to protect American soldiers by providing reciprocal treatment by nations that we are at war with so our soldiers, sailors, marines, and airmen will be kept in a humane and appropriate fashion. But, of course, that presupposes the Geneva Convention applies, and that your enemy respects the law of war and shows some sort of self-restraint, something al-Qaida and the Taliban have not shown at all.

But does anybody believe that we ought not to be able to entice detainees to respond by offering creature comforts or other preferential treatment?

For example, when I went to Guantanamo and observed detention of al-Qaida terrorists there, it was explained to me by General Miller that they would sometimes use a little better food, maybe a change of the diet, perhaps allow people to cook on a grill outside and sort of encourage them to cooperate by more appetizing food, or maybe even move them from an individual cell into a community cell block where they could associate with one other and have a little greater freedom of movement. Those were some of the techniques being used there which would not be available if the Geneva Convention applied.

Surely those who oppose this nomination cannot believe that al-Qaida terrorists deserve to be treated better than an American citizen accused of a crime, which is in essence what they are saying.

I know I have dwelled upon this subject for a while, but let me conclude on this because, frankly, you hear the same old, tired, worn-out arguments being brought up time and time again without regard to the facts as I have explained them or the law as I have explained it.

There was a time actually when President Reagan was in office where there was a proposed amendment to the Geneva Convention, known as Protocol I of 1977, that would have actually extended the Geneva Convention to terrorists. President Reagan said: "We must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law." We did not adopt that amendment but, indeed, we rejected it.

Notably at the time, even the New York Times and the Washington Post agreed. The Times called the President's position "sound" while the Post said it was right and even accused opponents of that of hijacking the Geneva Convention.

But, my, how far we have come to this hyperpoliticized environment where the facts and the law seem to take a backseat, and continuation of some of the political campaign tactics that we saw before November 2 have now carried over after the election not directed only at the President but now directed at his nominees.

All this support from multiple Federal courts, the 9/11 Commission, the Schlesinger report, liberal international legal scholars, Carter administration officials, even the New York Times and the Washington Post, and yet Judge Gonzales is being criticized by opponents of his nomination for taking the exact same position with regard to the applicability of the

Geneva Convention.

All I can say is, it is only in Washington.

Let me touch on one other legal issue that gets down into the weeds. Judge Gonzales has been criticized for trying to understand what Congress meant when it passed the law prohibiting the use of torture, the so-called torture statute. The memo he is being criticized for he did not write, and the language defining what was torture and what was not torture that he is being criticized for, he did not write that statute either. Congress wrote that statute.

If Judge Gonzales, the officials at the Department of Defense, if the U.S. Government, including this administration, had so little regard for the law and basic human norms like humane treatment of detainees, why in the world would they go through all of this trouble to try to figure out what exactly did Congress intend and what are the limits? The reason is not to find a limit so you can find a way around the statute, it is to find how do you comply with the law because Government officials know if you violate the law, you, too, are accountable in a court of law.

Frankly, today-maybe it is a sign of the times-even military commanders, the Secretary of Defense, and other high Government officials do not make a move without consulting their lawyer because of their concern, No. 1, about complying with the law; and, No. 2, the consequences of failing to comply with the law.

It is simply unfair to attack Judge Gonzales again for a memo he did not write and a statute that defines torture that he did not write either, that Congress did. So I suggest some of the opponents of this outstanding nominee, if they do not like what the torture statute says, if they do not like the effort to try to understand and explain it, maybe they ought to look in the mirror and maybe we ought to go back to work and be more clear about what we mean when we say torture is illegal and what the limits are of that.

Again, everyone agrees-or at least I have not heard anyone object yet-to the goal of using all lawful means to obtain actionable intelligence to save American lives. And how can you determine what those lawful means are unless you examine the treaties and the statutes and other laws that deal with what the permissible limits of interrogation techniques are and use that as a bright line to determine what is legal, permissible, what is humane and what is not.

Let me mention, some have again tried to confuse the issue by taking the criminal conduct of a few at Abu Ghraib prison and suggesting that somehow this reflects the policy of this administration and of the U.S. Government.

Not only is that suggestion an insult to all law-abiding Americans, and particularly those men and women in uniform who are serving honorably and who made the celebrations following the election in Iraq on Sunday possible, but to try to paint with such a broad brush and to say this is a matter of policy or practice and nobody cares what the law is and, you know what, we are going to take a few bad actors and people who cross the line between legality and illegality and we will basically suggest everybody is in the same big pot. That pot is people who have committed criminal acts against detainees and prisoners at Abu Ghraib.

It is safe to say that everyone agrees Abu Ghraib was a shameful episode in our Nation's history. Yet again some want to actually exploit that tragedy, that shameful episode by a few, for political points. Abu Ghraib is a serious matter. It should be treated seriously. Indeed, it has
been.

The Senate Armed Services Committee has held hearing after hearing after hearing to try to get to the bottom of what happened. The U.S. Department of Defense has conducted at least eight different investigations to try to figure out what went wrong and how to make sure it does not happen again, but to also hold those who cross the line into criminal conduct accountable. Indeed, we have seen that happen.

Abu Ghraib should be treated seriously and not politically. Even the Schlesinger report-and I know there have been suggestions that somehow the acts of a few miscreants at Abu Ghraib reflect broad, widespread disregard for basic human rights of these detainees, or maybe somehow reflects the use of permissible interrogation techniques approved by the Department of Justice-here again the Schlesinger report, composed of a bipartisan commission to investigate what happened at Abu Ghraib, concluded:

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

If there is no evidence of a policy of abuse promulgated by senior officials or military authorities, and if there is no evidence whatever that Judge Gonzales was in any way responsible for this, why are we talking about Abu Ghraib during Judge Gonzales's confirmation? Again, I suggest this is not about Alberto Gonzales and his fitness to serve. This, unfortunately, has crossed the line into partisan politics, a place we should not go.

I am proud of my friend, Judge Alberto Gonzales. He is a source of great inspiration and pride to his family, his friends, and to the great State of Texas from where we both come. Time and time again, Judge Gonzales has done his duty in the war on terrorism. It disheartens me to see him held up to ridicule, distortions, and outright lies for being the patriot that he is.

I also will speak, because I know others will address this-I have not been able to listen to all of the debate, but I have quite a bit of it. I know this matter came up in the committee and it is important to set the record straight. Judge Gonzales appeared before the committee and answered question after question by the members of the Senate Judiciary Committee. Of course, that was broadcast on C-SPAN for people all across the world to see. My own impression was that Judge Gonzales did his very best to answer the questions that were asked of him.

Some members of the committee purported to be dissatisfied with the opportunity they were given to ask questions, and they had additional questions to ask. I hold in my hand more than 400 questions-and these are on single-spaced pages-more than 400 questions asked of Judge Gonzales after the hearing, and they generated 440 responses encompassing 221 single-spaced pages. After the New York Times argued that Judge Gonzales was very forthcoming in his responses to the committee, there was another request made, and at that time an additional 54 written responses were provided on 27 single-spaced pages. There were requests for copies of documents, some of which I have in my hand.

I do not claim these are all of them, but I do believe it is a representative sample of what Judge Gonzales was actually provided. I will get to who provided it in a minute.

I think all fairminded people would conclude not only did Judge Gonzales attempt, to the best of his ability, to answer questions asked him of the committee when we were in open session, but at least on two occasions answered other questions. On one occasion he gave 440 answers in a 227-page, single-spaced response, again provided additional written responses in 27 additional pages, and he also provided more than 200 documents to go along with his answers.

So I think any fairminded person would have to conclude Judge Gonzales has tried his best to be responsive. I do think it is important to point out, as I believe Senator Hatch did earlier, that actually Judge Gonzales recused himself from providing these responses or answering the questions. In other words, he felt it was improper for him to have a personal hand in crafting the responses to the document requests or necessarily questions directed to the White House or to some other party.

So many of the responses, particularly to document requests, came from the White House Counsel's Office provided by, I believe it was Mr. Leitch, that Judge Gonzales had actually no hand in. But that was in an effort on his part to try to be fair and evenhanded and to basically take himself out of any controversy and leave it up to the committee, those requesting the documents, and the White House. I believe that was appropriate.

So time and time again, we have seen that the real Al Gonzales is not the caricature that has been painted by his opponents during this confirmation process. Time and time again, we have seen that not only do the American people view Alberto Gonzales as a personification of the American dream, he is a source of pride and admiration for Hispanic organizations and Hispanics all across this great land of ours, as he well should be.

Notwithstanding what we have heard from opponents of this nomination, and of this administration, Judge Alberto Gonzales has condemned the use of torture on detainees, prisoners of war, anyone in American custody. Indeed, he has insisted, as a matter of American policy and law, on humane treatment. But he also believes, as the true patriot he is, that it is important we not lose the overall context of where this is happening and how this is happening.

Alberto Gonzales believes, as I believe everyone-at least no one objected here on this side of the ocean-who supports freedom and democracy for the Iraqi people believes, it is important we continue to use all lawful means to obtain actionable intelligence to save American lives and to help ensure our success against the insurgents who still plague Iraq.

I believe that on fair analysis by those who would listen to the facts and the arguments on both sides of this particular debate, there is only one reasonable, nonpolitical conclusion, and that is, this nominee should be confirmed, and should be confirmed overwhelmingly by the Senate.

After we saw the opposition to Condoleezza Rice's nomination, I was gratified to see that at least she received the vote of 85 Members of the Senate in a bipartisan fashion. But I was troubled when, even though several members of the Senate Judiciary Committee said they would likely be voting in favor of Alberto Gonzales's nomination, they have now changed their tune. We saw a strict party-line vote in the Senate Judiciary Committee: all Republicans supporting his nomination, all Democrats opposing it.

So, unfortunately, I was left with the conclusion that we have seen now again a continuation of the bitter politics of this confirmation process which not only I think fails to bring honor to this institution but which I think does a real disservice to the honorable men and women who agree to serve in important positions such as Secretary of State and Attorney General.

But I also say it does not bode well for the hoped-for beginning of a new Congress on the President's judicial nominees. We know the President intends to send up 10 nominees who were previously filibustered by the other side. I would have thought that after the election they would have reconsidered that course. But here again, I think we have seen an unfortunate continuation of the tactics and the bad habits that perhaps our opponents in this debate have lapsed into. And perhaps they know no other way to proceed, other than through obstruction and through mischaracterization of this nominee's fine record. We should confirm Alberto Gonzales as the 80th Attorney General of the United States, and do so overwhelmingly.

Thank you, Mr. President.

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