Hearing on the Committee on the Judiciary on Confirmation Hearing for Nomination of Alberto R. Gonzalas to be Attorney General
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Thank you, and congratulations, Mr. Chairman, on your new appointment. I am looking forward to
working with you, and I thank you for your phone call over the holiday break to talk about some of the big issues we face.
Chairman Specter. Thank you.
Senator Durbin. It was a welcome opportunity to discuss a lot of things that we will concern ourselves with.
Judge Gonzales, thank you for being here. My thanks to your family for their patience in waiting through all these
questions and those that will follow.
I think that Senator Specter has done a great service to the White House by moving this hearing as quickly as he has,
January 6th, two days after the swearing-in of the new Members of the Senate. It is understandable this is a critically
important job for the safety of America, and we need to fill it as quickly as we can.
I am sorry that there has been some breakdown between this Committee and the White House about the production of
documents. As I told you in our office meeting, it is very difficult for us to sit on this side of the table and believe that we have the whole story when the White House refuses to produce documents that tell us what happened about many of the
issues that we are raising. But based on what we do have, I want to try to get into a few specific questions on the issue
The images of Abu Ghraib are likely to be with us for a lifetime and beyond, as many images of war can be. The tragedy
of Abu Ghraib and the embarrassment and scandal to the United States are likely to be with us for decades and beyond.
Yesterday we paid tribute to our colleague Congressman Robert Matsui, not only a great Congressman but particularly great in
light of the fact that as a Japanese-American, he was sent to an internment camp by his Government that did not trust his
patriotism or the patriotism of his family. That shameful chapter in American history is recounted even today more than
50 years later as we think about it. I am afraid that the torture that occurred in Abu Ghraib and Guantanamo will
similarly be recounted 50 years from now as a shameful chapter in American history.
When you answered Senator Kohl, you said we are going to divide what happened in Abu Ghraib into two areas: physical and sexual torture, never acceptable; some idea of fun by depraved people. And you condemned it. Then a second area, interrogation techniques that went too far, and you conceded that those interrogation techniques might have migrated or started at Guantanamo and somehow made it to Iraq.
My question to you is: Would you not also concede that your decision and the decision of the President to call into
question the definition of torture, the need to comply with the Geneva Conventions, at least opened up a permissive environment for conduct which had been ruled as totally unacceptable by Presidents of both parties for decades?
Judge Gonzales. Thank you, Senator, for the question. Maybe perhaps I did misspeak. I thought I was clear that I was not
dividing up the categories of abuse into two categories, that that was really--that division had been done within these
reports themselves. And those reports did indicate that there was some migration as to the second category. But the reports
and the briefings were fairly clear in my judgment, and others may disagree, that the reasons for the migration were because
there was inadequate training and supervision, that if there had been adequate training and supervision, if there had been
adherence to doctrine, then the abuses would not have occurred. And that's what I see in the reports and what I see in the
As to whether or not there was a permissive environment, you and I spoke about this in our meeting. The findings in
these eight reports universally were that a great majority, an overwhelming majority of our detention operations have been
conducted consistent with American values and consistent with our legal obligations. What we saw happen on that cell block in the night shift was limited to the night shift on that cell block with respect to that first category, the more offensive,
the intentional severe physical and the sexual abuse, the subject of those pictures. And this isn't just Al Gonzales
speaking. This is what, if you look at it, the Schlesinger report concludes. And so what you see is that you have got this
kind of conduct occurring at the night shift, but the day shift, they don't engage in that kind of conduct because they
understand what the rules were.
And so I respectfully disagree with the characterization there was some sort of permissive environment. That's just not
the case. The facts don't bear that out, sir.
Senator Durbin. Then let's go to specific questions. Can U.S. personnel legally engage in torture or cruel, inhuman, or
degrading treatment under any circumstances?
Judge Gonzales. Absolutely no. Our policy is we do not engage in torture.
Senator Durbin. Good. I am glad that you have stated that for the record. Do you believe that there are circumstances
where other legal restrictions like the War Crimes Act would not apply to U.S. personnel?
Judge Gonzales. Senator, I don't believe that that would be the case, but I would like the opportunity to--I want to be
very candid with you and obviously thorough in my response to that question. It is sort of a legal conclusion, and I would
like to have the opportunity to get back to you on that.
Senator Durbin. I will give you that chance.
In your August memo, you created the possibility that the President could invoke his authority as Commander in Chief to
not only suspend the Geneva Convention but the application of other laws. Do you stand by that position?
Judge Gonzales. I believe that I said in response to an earlier question that I do believe it is possible, theoretically possible, for the Congress to pass a law that would be viewed as unconstitutional by a President of the United States. And that is not just the position of this President. That has been the position of Presidents on both sides of the aisle.
In my judgment, making that kind of conclusion is one that requires a great deal of care and consideration, but if you're
asking me if it's theoretically possible that Congress could pass a statute that we view as unconstitutional, I'd have to
concede, sir, that I believe that's theoretically possible.
Senator Durbin. Has this President ever invoked that authority, as Commander in Chief or otherwise, to conclude that
a law was unconstitutional and refused to comply with it?
Judge Gonzales. I believe that I stated in my June briefing about these memos that the President has not exercised that
Senator Durbin. But you believe he has that authority? He could ignore a law passed by this Congress, signed by this
President or another one, and decide that it is unconstitutional and refuse to comply with that law?
Judge Gonzales. Senator, again, you are asking me whether hypothetically does that authority exist, and I guess I would
have to say that hypothetically that authority may exist. But let me also just say that we certainly understand and recognize
the role of the courts in our system of Government. We have to deal with some very difficult issues, very, very complicated.
Sometimes the answers are not so clear.
The President's position on this is that ultimately the judges, the courts will make the decision as to whether or not
we've drawn the right balance here. And in certain circumstances, the courts have agreed with administration
positions, and in certain circumstances, the courts have disagreed. And we will respect those decisions.
Senator Durbin. Fifty-two years ago, a President named Harry Truman decided to test that premise in Youngstown Steel
and Tube v. Sawyer in the Supreme Court. The Supreme Court said, as you know, President Truman, you are wrong, you do not have the authority to decide what is constitutional, what laws you like and do not like.
I am troubled that you would think, as our incoming Attorney General, that a President can pick and choose the laws
that he thinks are constitutional and ultimately wait for that test in court to decide whether or not he is going to comply
with the law.
Judge Gonzales. Senator, you asked me whether or not it was theoretically possible that the Congress could pass a law that
we would view as unconstitutional. My response was that obviously we would take that very, very seriously, look at that
very carefully. But I suppose it is theoretically possible that that would happen.
Let me just add one final point. We in the executive branch, of course, understand that there are limits on
Presidential power. We are very, very mindful of Justice O'Connor's statement in the Hamdi decision that a state of war
is not a blank check for the President of the United States with respect to the rights of American citizens. I understand
that and I agree with that.
Senator Durbin. Well, let me just say in conclusion, I am glad to hear that. I am troubled by the introduction. The
hypothetical is one that you raised in the memo relative to torture as to whether the President had the authority as
Commander in Chief to ignore the Geneva Conventions or certain other laws. This is not something that comes from our side of
the table of our own creation. It is your creation, the hypothetical you created.
My concern is this: I do not believe that this Government should become a symbol for a departure from time-honored
traditions where we have said that we will not engage in torture, directly or indirectly by rendition--which I hope to
ask you about in the next round--that we will stand by the same standards of Geneva Conventions since World War II and,
frankly, dating back to Abraham Lincoln and the Civil War, in terms of the treatment of prisoners.
I am concerned that that round of memos that went through the Department of Justice, Mr. Bybee, into the Department of Defense, into Guantanamo, and then migrated somehow to interrogation techniques in Abu Ghraib has stained our world
reputation. I want to win this war on terrorism, but I do not want to do it at the expense of our soldiers who may someday
become prisoners themselves.
Thank you, Mr. Gonzales.
BREAK IN TRANSCRIPT
Senator Durbin. Thank you, Mr. Chairman.
I think this has been asked earlier, Judge Gonzales, but at the risk of repeating, over the last 4 years Attorney General
Ashcroft has appeared before the Judiciary Committee five times. His appearances before the Committee are as rare as
humility and brevity in the Senate. And I am hoping that we will see a new approach and a new dialogue between our new
Attorney General and this Committee.
I believe the Chairman has already asked you this, but for the record, is it your plan to come see us a little more often
than five times in four years?
Judge Gonzales. Senator, as I said in my meeting with you, I enjoy dealing personally face-to-face with the Senators.
Senator Durbin. Still?
Judge Gonzales. Even after this hearing. Yes, that would be my commitment. I think in order for the Department to be
successful, I need the cooperation--if confirmed, I need the cooperation of this Committee, and I would certainly endeavor
to be more available, provide greater--be available to the Committee, yes, sir.
Senator Durbin. Thank you. My gifted legal staff listened closely to your answers to my questions and believe you gave a
very carefully worded lawyer answer to a question, which I missed. And so for the record, I want to make certain that I
understand your position again on this torture issue. Can U.S. personnel legally engage in torture under any circumstances?
Judge Gonzales. I'm sorry. Can U.S. military personnel-- Senator Durbin. U.S. personnel. Of course, that would
include military as well as intelligence personnel, or other who are under the auspices of our Government.
Judge Gonzales. Senator, there are obligations under the treaty against torture and there are obligations under the
anti-torture statute. There are obligations, legal obligations in the UCMJ. And so I suppose without--I don't believe so, but
I'd want to get back to you on that and make sure that I don't provide a misleading answer. But I think the answer to that is
no, that there are a number of laws that would prohibit that.
Senator Durbin. I would like if you would give me a definitive answer.
Judge Gonzales. Yes, sir.
Senator Durbin. And then the follow-up question which they tell me I did not ask was whether or not it is legally
permissible for U.S. personnel to engage in cruel, inhuman, or degrading treatment that does not rise to the level of torture.
Judge Gonzales. Senator, our obligations under the Convention Against Torture with respect to cruel, inhumane, and
degrading conduct, as you know, is under Article 16, I believe. As Counsel to the President--
Senator Leahy. I am sorry. I cannot hear you. I am sorry, Judge.
Judge Gonzales. I am sorry, Senator. As Counsel to the President, my job was to ensure that all authorized techniques were presented to the Department of Justice, to the lawyers, to verify that they met all legal obligations, and I have been
told that that is the case.
As you know, when the Senate ratified the Convention Against Torture, it took a reservation and said that our
requirements under Article 16 were equal to our requirements under the Fifth, Eighth, and 14th Amendment. As you also know,
it has been a long-time position of the executive branch and a position that has been recognized and reaffirmed by the Supreme Court of the United States that aliens interrogated by the U.S. outside the United States enjoy no substantive rights under the Fifth, Eighth, and 14th Amendment. So as a legal matter, we are in compliance. But let me just emphasize, we also believe that we are in--we want to be in compliance as a substantive matter under the Fifth, Eighth, and 14th Amendment. I know Jim Haynes wrote a letter to Senator Leahy about whether or not we were meeting our obligations, and the response certainly would lead one to conclude that what we were saying was that we were meeting our substantive obligations under the Fifth, Eighth, and 14th Amendment. And no one has told me otherwise. My understanding is that we are meeting our obligations under Article 16.
Senator Durbin. It is your belief that we are legally bound to do that; is that correct?
Judge Gonzales. Well, subject to the reservations taken by the Senate in ratifying the treaty--
Senator Durbin. Just by definition, which definitions we use.
Judge Gonzales. We are meeting our legal obligations, yes, sir.
Senator Durbin. And so this morning we read in the paper about rendition, an argument made that we took a prisoner whom
we could not, should not torture legally, and turned him over to a country that would torture him. That would be illegal as
well, would it not?
Judge Gonzales. Under my understanding of the law, yes, sir, that we have an obligation not to render someone to a
country that we believe is going to torture them. That is correct.
Senator Durbin. All right. Now, let me ask you quickly about your situation as counsel to the Governor of Texas when
the President served in that capacity. I know a lot of questions have been asked about the memos that you wrote. I
want to go to a more fundamental question. It is clear to me, having served on this Committee and by human experience, that
if you are black or brown in America, you are more likely to be detained, arrested, convicted--prosecuted and convicted and
serve time for many crimes in this country. I think that is a sad reality, but that is the reality of America today.
I would like to ask you your observation of that. I can give you statistics--I will not bore you or fill the record
with them--about the disproportionate number of black and brown people who are in prison today and on death row. I would like to hear your sentiments as our aspiring Attorney General on this obvious injustice in America.
Judge Gonzales. Senator, I have a vague knowledge about the statistics that you refer to. I believe that if we are going to
have the death penalty--and this is consistent with the President's beliefs--that it should be administered fairly and
only the guilty are punished.
If, in fact, the case is that only minorities--Hispanics and African-Americans--are receiving the death penalty, it
would be hard for me to conclude that that is a fair system. And if that were indeed the case, I think that we would--we
should re-examine the application of the death penalty.
I personally do believe in the death penalty. I do believe that it deters crime and saves lives. But I fundamentally
believe that it has got to be administered fairly.
Senator Durbin. I am afraid I believe the challenge goes beyond death penalty issues. Drug crimes are another
illustration where disproportionately black and brown people are imprisoned over drug crimes, where many, if not most, of
the customers are white and do not face the same penalties. So I hope that as you set that standard, it would apply to non-
death penalty situations which also raise these serious issues of justice.
Judge Gonzales. I will commit to you that I will look at that, Senator.
Senator Durbin. The other thing I would like to talk to you about for a moment is mandatory minimum sentencing. You are
familiar with it, as every member of the Committee might be. I will tell you that judges that I have spoken to tell me that we
have created an impossible situation for them in many circumstances where they are required to imprison for
extraordinarily long periods of time people who frankly are no threat to society and may have been bargained into prison by
other criminals seeking a better treatment.
I visited the women's prison in Illinois to find hundreds of middle-age and elderly women knitting afghans and playing
pinochle who will serve 10-, 15-, and 20-year sentences because a drug-dealing boyfriend ratted them out.
What is your feeling about mandatory minimum sentencing in this country?
Judge Gonzales. Well, of course, Senator, we have to apply the law. My judgment is that the sentencing should be tough,
but it should be fair, and it should be determinant. And whether or not we have enough discretion or too much
discretion, I mean, the key is finding the right balance. It shouldn't be the case that you have so much discretion that
someone who commits a crime in one State gets a much tougher sentence than someone who commits the same crime in another State. But this is a very difficult issue, as everyone in the Committee knows. The Sentencing Guidelines are subject to
litigation, being reviewed now by the Supreme Court, and so we are all waiting to see whether or not under Booker and Fanfan
that the Court is going to apply the Blakey decision to the Sentencing Guidelines. And if that happens, I suspect you and I
and other--if I am confirmed, and other members of the Committee will be spending a lot of time talking about sentencing issues.
Senator Durbin. The last question is a brief one, and it may have been touched on earlier. But when Senator Ashcroft in
your position aspired to this Cabinet-level appointment, he was asked about Roe v. Wade, which he disagreed with on a political basis, and his argument was he would enforce, in his words, ``settled law'' and Roe v. Wade was settled law in America.
I do not want to put words in your mouth, but could you articulate in a few words your position about the enforcement
of Roe v. Wade or any other Court decision that you personally or politically disagree with.
Judge Gonzales. Thank you, Senator. Of course, the Supreme Court has recognized the right of privacy in our Constitution,
and in Roe the Court held that that right of privacy includes a woman's right to choose to have an abortion. A little over a
decade ago, the Court in Casey had an opportunity to revisit that issue. They declined to overturn Roe and, of course, made
a new standard that any restriction that constituted an undue burden on the woman's right to choose could not be sustained.
My judgment is that the Court has had an opportunity, ample opportunities to look at this issue. It has declined to do so.
As far as I'm concerned, it is the law of the land, and I will enforce it.
Senator Durbin. Thank you. Thank you, Judge Gonzales.