Hearing of the Committee on the Judiciary - Confirmation of Nomination of Alberto R. Gonzalas to be Attorney General of the United States

By:  Lindsey Graham
Date: Jan. 6, 2005
Location: Washington, DC

STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

Senator Graham. Thank you, Mr. Chairman. Congratulations--I think--for chairing this Committee.

Monday morning quarterbacking is part of a democracy, so just bear with us because what we are trying to do is figure out how to correct mistakes. Now, I am a very ardent supporter of the war. I really do believe if you are going to win the war on terror, you take dictatorships like Saddam Hussein, who was part of the problem, and you give people who lived under his oppression a chance to be free. That is not easy, and I believe we made mistakes along the way.

But one of the reasons that we are talking about this has a lot to do with your confirmation, but really not. I think we have dramatically undermined the war effort by getting on a slippery slope in terms of laying cute with the law because it has come back to bite us. Abu Ghraib has hurt us in many ways. I travel throughout the world like the rest of the Members of the Senate, and I can tell you it is a club that our enemies use, and we need to take that club out of their hands.

Guantanamo Bay, the way it has been run, has hurt the war effort. So if we are going to win this war, Judge Gonzales, we need friends and we need to recapture the moral high ground. And my questions are along that line.

To those who think that you can't win a war with the Geneva Convention applying, I have another role in life, I am a judge advocate. I am a reserve judge in the Air Force. I have never been in combat. I had some clients that probably wanted to kill, but I have never been shot at. But part of my job for the last 20 years, along with other judge advocates, is to advise
commanders about the law of armed conflict. And I have never had a more willing group of people to listen to the law, because every Air Force wing commander lives in fear of an air crew being shot down and falling into enemy hands. And we instill in our people as much as possible that you are to follow the law of armed conflict because that is what your Nation stands for, that is what you are fighting for, and you are to follow it because it is there to protect you.

Now, to Secretary Powell, he took a position that I disagreed with legally but in hindsight might have been right.
I agree with you, Judge Gonzales, that to give Geneva Convention protection to al Qaeda and other people like al Qaeda would in the long run undermine the purpose of the Geneva Convention. You would be giving a status in the law to people who do not deserve it, which would erode the Convention.

But Secretary Powell had another role in life, too. He was a four-star general and Chairman of the Joint Chiefs. And to
those who think that the Geneva Convention is a nicety or that taking torture off the table is naive and a sign of weakness,
my answer to them is the following: that Secretary Powell has been in combat, and I think you weaken yourself as a nation
when you try to play cute and become more like your enemy instead of like who you want to be. So I want to publicly say
that the lawyers in the Secretary of State's office, while I may disagree with them and while I may disagree with Secretary
Powell, were advocating the best sense of who we are as people.

Now, having said that, the Department of Justice memo that we are all talking about now was, in my opinion, Judge
Gonzales, not a little bit wrong but entirely wrong in its focus because it excluded another body of law called the
Uniform Code of Military Justice. And, Mr. Chairman, I have asked since October for memos from the working group by Judge
Advocate General representatives that commented on this Department of Justice policy, and I have yet to get those
memos. I have read those memos. They are classified, for some bizarre reason. But, generally speaking, those memos talk about that if you go down the road suggested, you are making a U-turn as a nation, that you are going to lose the moral high ground, but more importantly, that some of the techniques and legal reasoning being employed into what torture is, which is an
honest thing to talk about--it is okay to ask for legal advice. You should ask for legal advice. But this legal memo I think
put our troops in jeopardy because the Uniform Code of Military Justice specifically makes it a crime for a member of our
uniformed forces to abuse a detainee. It is a specific article of the Uniform Code of Military Justice for a purpose because
we want to show our troops, not just in words but in deeds, that you have an obligation to follow the law.

And I would like for you to comment, if you could, and I would like you to reject, if you would, the reasoning in that
memo when it came time to give a tortious view of torture. Will you be willing to do that here today?

Judge Gonzales. Senator, there is a lot to respond to in your statements. I would respectfully disagree with your
statement that we're becoming more like our enemy. We are nothing like our enemy, Senator. While we are struggling
mightily to try to find out what happened at Abu Ghraib, they are beheading people like Danny Pearl and Nick Berg. We are
nothing like our enemy, Senator.

Senator Graham. Can I suggest to you that I did not say that we are like our enemy, that the worst thing we did when
you compare it to Saddam Hussein was a good day there. But we are not like who we want to be and who we have been. And that is the point I am trying to make, that when you start looking at torture statutes and you look at ways around the spirit of the law, you are losing the moral high ground. And that was the counsel from the Secretary of State's office, that once you
start down this road, it is very hard to come back. So I do believe we have lost our way, and my challenge to you as a
leader of this Nation is to help us find our way without giving up our obligation and right to fight our enemy.

And the second question--and then I will shut up--is Guantanamo Bay. The Supreme Court has rejected this administration's legal view of Guantanamo Bay. I believe it is a legal chaos down there and that it is not inconsistent to have due process and aggressively fight the war on terror. Nobody wants to coddle a terrorist, and if you mention giving rights to a terrorist, all of a sudden you are naive and weak. I can assure you, sir, I am not naive and weak.

Judge Gonzales. Thank you, Senator.

With respect to Guantanamo Bay, it is correct that in the Rasul decision the Supreme Court did disagree with the
administration position. We felt, reading Supreme Court precedent in Johnson v. Eisentrager, that a non-American enemy
combatant held outside the United States did not have the right to file a habeas challenge.

Senator Graham. It is a correct position to take, but you lost. Now here is my question: What do we do now that you lost?

Judge Gonzales. We have implemented a process to provide the opportunity for people at Guantanamo Bay to know of the
reasons they're being detained and to have a meaningful opportunity to contest the factual basis of their detention before a neutral decisionmaker, all in accordance with the decision in Hamdi.

Senator Graham. How is that being worked? Who is working on that?

Judge Gonzales. That is being worked through Secretary England, and they have assumed responsibility for--the Navy has assumed responsibility for standing at the combatant status review tribunals, and I can't tell you today where we are in
the process, but we are providing a level of process which we believe meets the requirements set out by the Supreme Court.

Senator Graham. Okay. I would like to be informed, if possible, in an appropriate way what the executive department
is doing to fill in that gap. I do not know if we need legislative action. But the reason I am going to vote for you is because I think I have followed this information enough to know that you are a good lawyer, you ask good questions, and it was ultimately the President's decision. And I think he was right. I think Geneva Convention protection should not be applied to terrorists.

I think humane treatment is the way to go, the only way that we can win this war. My problem is that the DOJ memo was
out there for two years, and the only people I can find that spoke against it were professional military lawyers who are
worried about our own troops. I want you to get that memo, and if we need three rounds, we will do three rounds. But I would
like to get you to comment, if you could.

Is my time up?

Chairman Specter. Almost.

Senator Graham. Okay. Comment if you could. Do you believe that a professional military lawyer's opinion that this memo
may put our troops in jeopardy under the Uniform Code of Military Justice was a correct opinion?

Judge Gonzales. Would you like me to try to answer that now, Mr. Chairman?

Chairman Specter. Yes. Judge Gonzales, the question is pending.

Judge Gonzales. And the question is do I believe that the military lawyer's judgment that--

Senator Graham. The techniques being espoused in the memo may put our troops at jeopardy under the Uniform Code of
Military Justice. And if you want to take some time, that is fine.

Judge Gonzales. Thank you, Senator.

Senator Graham. I mean I want sometime later for you to answer that question, but you do not have to do it right now.

Chairman Specter. Do you want to think it over, Judge Gonzales and respond later?

Judge Gonzales. I do. Thank you, Mr. Chairman.

BREAK IN TRANSCRIPT

Senator Graham. Thank you, Mr. Chairman.

Judge, you still want the job?

[Laughter.]

Judge Gonzales. Yes, sir.

Senator Graham. Okay. That is good. I know you have been asked a bunch of questions. The working group that was formed in the Pentagon, as I understand it, occurred in the January time frame of 2003, and one of the documents the working group was working off of was the now infamous August DOJ memo. And I asked you a question before about whether or not you believe that the techniques in the August memo being espoused, whether or not that would put some of our troops at risk for court martial. And I do not expect you to answer that off the cuff, but there was a series of JAG memos as part of this working group that suggested that might be the case.

Have you ever seen those memos?

Judge Gonzales. I don't recall. I don't believe so, sir. Let me just say that I don't believe it's the case that our office had anything to do with the work of the working group. I might also say that with respect to your question, the work of the Department of Justice in reviewing--or in that August 1 opinion was related to a review of the anti-torture statute, a
particular statute. I don't believe--I mean, if there were other provisions, other restrictions upon people in the military, the fact that the Department has given guidance about the scopes of the anti-torture statute doesn't mean that somehow other binding regulations wouldn't apply. And so it is possible that you could engage in conduct that would satisfy that statute, according to the memo, but be inconsistent with other obligations that would remain binding upon members in our military.

Senator Graham. I think that is probably what happened, and I am try to learn from this process because you have one Department of the Government suggesting techniques that I think run afoul of the way the military is organized. And what I am trying to get us to look at is to make sure we don't go down that road again. And if you didn't see the memos, that to me is a bit disturbing because you are sort of out of the loop. And I think I better understand your role in this. You are trying to collect information. The working group is trying to implement policy.

Judge Gonzales. If I could just interrupt you, Senator, you said something--if I've said--if I've given the impression that the Department of Justice was suggesting techniques, they never were. What was happening is the Department of Defense, I believe, was suggesting the use of certain methods of obtaining information from the terrorists, and that was presented to the Department of Justice, and the Department then gave its opinion as to whether or not such methods were, in fact, lawful.

Senator Graham. Well, what actually happened, as I understand it, is that the Department of Justice memo in August talks about the torture statutes in ways that I think you and I--I think you have said that you disagree with that original legal reasoning. I can assure you that I do, and it got us into a situation of where we are getting our troops potentially in
trouble. And that memo launched a thought process in the Department of Defense that divided the Department. And I think you need to know this and go back and study how this happened because there were 35 techniques suggested, I believe is the number. And when the judge advocates were finally consulted, they looked at the underlying memo from the Department of Justice and said, Whoa, if you go down this road and you look at this definition of what it takes to commit an assault and, you know, the pain level involved, that is totally inconsistent with how we are going to govern our troops when it comes time to regulate detainees because there is a specific article in the Uniform Code of Military Justice that makes it a crime to assault a detainee.

And here is the good news. After Secretary Rumsfeld understood that there was a debate within the Department between civilian lawyers and military lawyers, he stopped and required a re-evaluation in April of 2004. The techniques were changed.

The only reason I bring this out is that it illustrates to me, Judge, that when you try to cut corners, it always catches up with you. And I think it has caught up with us. And what I am looking for you to hopefully do is bring us back on the right road. And the new memo coming out of the Department of Justice to me is a step in the right direction. Do you believe that was a necessary thing to have done?

Judge Gonzales. Sir, first of all, let me--your characterization that we're cutting corners, I believe we have good people at the Department of Justice who did the very best they could interpreting, in my judgment, a difficult statute. So I think they did the very best they could.

Senator Graham. Well, that is where me and you disagree. I think they did a lousy job.

Judge Gonzales. That opinion and the analysis has now been ithdrawn. It is rejected. It is no longer the position of the executive branch.

Senator Graham. Okay. Well, it was withdrawn for whatever reason. I am glad it was, and I am glad that you see that it needs to be withdrawn.

Now to Gitmo. I am very encouraged by the efforts to fill this legal vacuum because once the Supreme Court decided that Gitmo was not Mars and it was part of the American legal system as far as habeas corpus relief, you are confident that this working group now headed by the Navy is going to come up with some due process standards that will meet international scrutiny?

Judge Gonzales. Well, I am not sure it will meet international scrutiny, Senator. What I can say is based upon what I've been told by the lawyers at the Department, what is in place now at Guantanamo should meet our legal obligations as described in the recent Supreme Court cases.

Senator Graham. And maybe the word ``international scrutiny'' was a bad word, trying to say that there is a French standard that I am trying to adhere to, and that is not it. The point is that the world is watching.

Judge Gonzales. Senator, if I might just comment on that, because I want to emphasize to the Committee how important I think treaties like Geneva are for America, because they do represent our values. And in many way and at many times they have protected our troops. And it is true that part of winning the war on terror is winning the hearts and minds of certain communities. And to the extent there is a perception--and I think it's a wrong perception, but there's a perception out there that as a matter of policy the United States is ignoring its legal obligations, I think it makes it more difficult to win the hearts and minds of certain communities and, therefore, more difficult to win the war on terror.

Senator Graham. That is encouraging to me, that thought process, but it is not enough, I am afraid, to talk about it unless there are deeds to follow. So what I would suggest--and this is one junior Senator suggesting--is that we do have an international image problem, partly unfair, partly of our own making, that it would serve us well to maybe get Congress involved, maybe not through legislation but to try to form some working environment where we can have input, you can tell us what you think, we can tell you what we think, and the world can see that our country is on the road to correction. I would encourage you to include us where you think we can be fairly included to make sure that what comes out as the new policy at Gitmo is something that kind of achieves the best of who we are and still aggressively fights the war on terror.

One last thought. The tsunami victims have been through hell, those who have survived, and the children apparently are going to through a new kind of hell. One thing I have been working on with the Chairman and other members of this Committee in a bipartisan way is dealing with human trafficking. We are hearing reports every day, Judge Gonzales,
that the children who are orphaned are being preyed upon by sexual predators, that people are going to the region claiming to be family members of these orphan children with the worst of motives. I along with Senator Cornyn and others are going to try to come up with some way to address this in the disaster relief bill.

I would ask you, if you could, put your thinking hat on and see what we can do in the short term and in the long term to deal with this, and I look forward to working with you on that. And if you have any thoughts, now would be a good time.

Judge Gonzales. Well, I think preying on children is sort of the worst kind of violation of civil rights. It would be a priority for me, if I am confirmed, Senator. I would look forward to the opportunity to work with you on this issue.

Senator Graham. Thank you.