Hearing of the Committee on the Judiciary on Confirmation Hearing on Nomination of Alberto R. Gonzalas to be Attorney General of the United States
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman.
Welcome, Mr. Gonzales, and welcome to your family. I will include, if I could, Mr. Chairman, my opening statement and
comment that recognizes the extraordinary achievements and accomplishments of the nominee, which are incredibly
Chairman Specter. Without objection, they will be made a part of the record.
Senator Kennedy. In that I said, as I mentioned to the nominee, that he understands full well our responsibilities in
the points of inquiry that we are 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 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 has come up from the administration. That is what 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 has been leaked, what has been put on the Internet, and what has been obtained in the Freedom of Information and by various attorneys. So there is a certain kind of sense by many of us here that the administration--and you are the point person on the
administration--has not been forthcoming on the whole issues of torture, which not just committed at Abu Ghraib, but is
The Bybee torture memorandum, written at your request--and I would be interested in your reactions to this--made abuse of
interrogation easier. It sharply narrowed the definition of torture and recognized it as new defense for officials who
commit torture. For two years, for two years, from August 2002 to June 2004 you never repudiated it. That is the record, you
never repudiated it. It was written by the CIA's bidding, and you can clarify that if that is false. We can assume it was
probably provided to the CIA as written. Its principles were adopted in the Defense Department's Working Group report. I
have it right here, and I will 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. This person assumes that the Bybee report has already gone to the CIA in his complacency.
Now, according to the Defense Department's own investigation--you referred to Senator Leahy earlier--as to 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, who testified in the Armed Services Committee, the abuse of policies and practice in Afghanistan and Guantanamo migrated to Iraq. You have never repudiated the Bybee 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 did not even
apply to the CIA, did not even apply to the CIA. Abuses are still being reported. And you were warned by Secretary Powell
and other top military leaders that ignoring our longstanding traditions and rules would lead to abuse and undermine military
culture, and that is what has happened.
I am going to get to how the Bybee amendment 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 as concerned about torture as Democrats, and we 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 water-boarding, 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
objections, 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 the resulting memo gave CIA interrogators the legal blessings
Now, was it the CIA that asked you?
Judge 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 at 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.
Senator Kennedy. You asked, at their request--if this is incorrect, then correct me. I am not attempting, or if there
are provisions in that comment here that are inaccurate, I want to be corrected. I want to be fair on this. But it is my
understanding, certainly it 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 memorandum? Did you ever
suggest to them that they ought to lean forward on this issue about supporting the extreme uses of torture, as reported in
Judge Gonzales. Sir, I don't ever recall using the term ``leaning forward'' in terms of stretching what the law is.
Senator Kennedy. You talked to the OLC during the drafting of it?
Judge 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 is an issue that the White House cared very much about to ensure that the agencies were not engaged in conduct--
Senator Kennedy. What were you urging them? What were you urging? They are, as I understand, charged to interpret the
law. We have the series of six or seven different laws and conventions on torture and on 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--
Judge Gonzales. To understand their views about the interpretation--
Senator 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 suggests in here that you were urging them to go as far as they possibly
could. That is what the newspaper reported. Your testimony is that you did talk to them but you cannot remember what you told them.
Judge 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 our courts, 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 look to the Department of Justice to tell us what would, in
fact, be within the law.
Senator Kennedy. Mr. Chairman, I see my time is going to be up. What I would like to do is include in the record the Bybee
memorandum and the Defense Department working group report, the analysis where they use virtually word by word the Bybee
memorandum 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.
BREAK IN TRANSCRIPT
Senator Kennedy. Thank you very much, Mr. Chairman.
I neglected in my first round to indicate how pleased I am with your chairmanship. I hope it is not too late to say that I
have enjoyed working with Senator Specter over a long, long period of time, since he has been on the Committee, and look
forward to his service on this Committee. I join with those who think that this Committee is well served with this Chairman.
Chairman Specter. Thank you very much, Senator Kennedy. Senator Kennedy. Now, Mr. Gonzales, let me, if I could,
there are sort of three general areas I want to try and cover in the time that I have. During my last round of questions, and
the reason I come back to this is because, when you come right down to it, that Bybee memo, and the views expressed in that, certainly was policy. It was printed in the working group's report. It was reported by those over in Iraq. It has been
referred to in the Armed Services Committee, in the Schlesinger report, as being the policy of the Department of Defense. And
the change that memorandum gave, in terms of how we were going to treat detainees in there, I believe, runs roughshod or did
run roughshod over the Geneva Conventions. But we have a dispute.
You indicated that this was served up by the Office of Legal Counsel, and it is the interpretation that Legal Counsel
has provided for statutes that we have passed in 1994.
Judge Gonzales. Senator, if I may, of course, the August 1 memo has been withdrawn. I mean, in essence, it has been
rejected. It does not represent the views of the executive branch. The views of the executive branch regarding the anti-
torture statute are now reflected in the December 30th memo which, as we know, the deputy attorney general announced in
June that this was going to happen. It was going to be withdrawn. The opinion would be revisited and issued by the end
of the year, and it was issued before the end of the year at the request from a member of this Committee.
Senator Kennedy. Well, I think that is very good news in terms of the future. I think that is very good news. But over
this period of time, there have been the most extraordinary abuses that have been reported by DIA and the FBI. And you say
now all of that memorandum that was interpreted that way is no longer operative. But over a period of time, as has been
referenced by others in the Committee, there is no question in my mind--I have listened to you answer the questions about what
happened at Abu Ghraib--that there were military personnel that bear responsibility, and there is no question that there was a
lack of training.
But the third part that you have not referenced in any of your answers is that there was also the working group report
that effectively would have justified and approved those kinds of activities. Now, you may say that you differ with that. That
was the document at DOD, and there is no reason to believe that the same kind of document was not given to the CIA. Was it
given to the CIA--the Bybee memo?
Judge Gonzales. Sir, first of all, I am not sure what--was the memo given to the CIA? I suspect that it was given--it
represented the administrative branch position, and so it would not surprise me, of course, that agencies involved in the war
Senator Kennedy. Who would have given it to the CIA?
Judge Gonzales. Sir--
Senator Kennedy. Was not this memorandum directed to you?
Judge Gonzales. Sir, it was addressed to me.
Senator Kennedy. Was it not requested by you?
Judge Gonzales. Sir, I do not recall if it was requested by--
Senator Kennedy. We can--
Judge Gonzales. Let me just say, Senator, in practice, how this may work. An agency, of course, has its own in-house shop.
An issue comes up, their lawyers get involved in providing legal advice. From time to time, the issues are so complicated
or so complex it may cut across various agencies that the issue gets elevated up to the Office of Legal Counsel. And so it may
well have been that the CIA or DOD asked OLC, as an initial matter, for their views on this, and then, for whatever reason,
the memo was addressed to me.
I accept responsibility that the memo is addressed to me.
Senator Kennedy. Well, do you accept responsibility that you requested it?
Judge Gonzales. Sir--
Senator Kennedy. Is this such a difficult--
Chairman Specter. Let him answer the question, Senator Kennedy.
Judge Gonzales. I don't recall specifically whether or not I requested this memo or whether or not the initial request
came from the CIA or the CIA came to me. I don't recall, Senator.
Senator Kennedy. You do not have notes about these various meetings? You do not jot these down, so you would not be able to know whether this happened? You have no notes, no information, no memoranda that would indicate? On an issue of
this kind of importance and consequence, at the time that this country was at war on this and where there is enormous
pressure, as we understand now, to gain information and intelligence from this, you would not be able, even today, to
be able to respond to the question about how this was initiated, particularly when it is against the background where
OLC indicates that it came from you and from the news reports? This is not enormously complicated--I want to get into some
other kinds of things--the fact that you basically initiated.
Judge Gonzales. Senator--
Senator Kennedy. Your answer is you cannot remember. Judge Gonzales. Senator, I certainly don't want to be
argumentative with you. I really do not remember. It seems to me what is important here is that we realize, there was a
recognition within the agencies, and I believe within the White House, that this was an important issue and that the Department of Justice should play its traditional role of providing legal advice about the parameters of this statute.
Senator Kennedy. I just want to point out, if it is true, the Post reported, that you held several meetings at which the
legality of interrogation techniques, such as threat of live burial and water-boarding were discussed; do you remember that?
Judge Gonzales. Senator, I have a recollection that we had some discussions in my office, but let me be very clear with
the Committee. It is not my job to decide which type of methods of obtaining information from terrorists would be most
effective. That job responsibility falls to folks within the agencies. It is also not my job to make the ultimate decision about whether or not those methods would, in fact, meet the requirements of the anti-torture statute. That would be a job
for the Department of Justice. And I never influenced or pressured the Department to bless any of these techniques. I
viewed it as their responsibility to make the decision as to whether or not a procedure or method of questioning of these
terrorists that an agency wanted, would it, in fact, be lawful.
Senator Kennedy. Well, just as an attorney, as a human being, I would have thought that if there were recommendations
that were so blatantly and flagrantly over the line, in terms of torture, that you might have recognized them. I mean, it
certainly appears to me that water-boarding, with all its descriptions about drowning someone to that kind of a point,
would come awfully close to getting over the border and that you would be able to at least say today there were some that
were recommended or suggested on that, but I certainly would not have had a part of that as a human being.
Judge Gonzales. Well--
Senator Kennedy. But as I understand, you say now that no matter what they recommended or what they discussed, there was not going to be anything in there that was going to be too bad or too outrageous for you to at least raise some objection.
Judge Gonzales. Senator, of course, we had some discussions about it. And I can't tell you today whether or not I said,
``That's offensive. That's not offensive.'' But it seems to me it's the job of the lawyers to make a determination as to
whether or not something is lawful or not and then for the policymakers, the principals, to decide whether or not this is
a method of receiving information from terrorists is something that we want to pursue, that the lawyers have deemed lawful,
under the directive of a President, who says that we should do everything that we can to win this war on terror, so long as we
are meeting our legal obligations.
Senator Kennedy. This is all against a background, as you know, Mr. Gonzales, of a series of statutes on torture that the
Congress has passed in recent times. This is not a new issue. We had the Federal Antitorture Statute in 1994 that both
President Reagan and President Bush, unanimous Committee, the Federal War Crimes Act of 1996, the Uniform Code of Military Justice goes back to 1950, the Convention Against Torture ratified by Congress, one was domestic, the other
international. The International Covenant on Civil and Political Rights, in 1992, provides ``no one shall be subject
to torture or cruel, inhumane, degrading treatment or punishment.'' And then last year Congress reaffirmed, virtually
unanimously, that the Nation's commitment not to engage in torture, cruel, inhumane and degrading.
So this is a subject matter that Republicans and Democrats have spoken out very clearly, and many of us find, and perhaps
you do--certainly, you do at the present time--that the Bybee memo certainly was in conflict with those particular statutes.
But let me ask you this: In these reports on Guantanamo--
Chairman Specter. Senator Kennedy, your red light is on, but why do you not finish the question.
Senator Kennedy. What I would be interested in, should you be confirmed, is what you are going to do with regards to the
FBI. They have been involved in many of these reports. It would be interesting if you could tell the Committee what you are
going to do, confirm to do, about the involvement of the FBI in this. And I was going to ask, just the two, if the fact that
this memo has been repealed, whether that information now has been communicated to the CIA and the CIA has accepted it and DOD, if they are all together. But if you could just let me know--
Judge Gonzales. Senator, my presumption is--
Senator Kennedy. I thank the Chair.
Judge Gonzales. --my presumption is it has been communicated to the agencies. I have not, myself, communicated
the new position, but again it does represent administrative policy.
And with respect to FBI involvement, the recent reports about these FBI e-mails about abuses in Guantanamo, quite
frankly, surprised and shocked me because it is certainly inconsistent with what I have seen. I have traveled down there.
And it is certainly inconsistent with other reports I have seen with respect to investigations about activities in Guantanamo.
I would like to sit down with the folks at the FBI and other folks within the Department of Justice to make sure that
the facts are accurate because I know one very important fact in these stories, the FBI--much was made of the fact about an
FBI agent referring to an Executive order by the President authorizing certain techniques. That is just--that is just plain false. That never occurred. And so if something like that is wrong in these e-mails, there may be other facts that are wrong in the e-mails. And what I am suggesting is I just need to, if confirmed, I need to have the opportunity to go into the Department and the FBI and just try to ascertain the facts.
BREAK IN TRANSCRIPT
Senator Kennedy. Thank you. Thank you, Mr. Chairman.
Mr. Gonzales, on March 19th, the Office of Legal Counsel provided you with a memorandum to allow the CIA to relocate
certain prisoners from Iraq for the purpose of ``facilitating interrogation.'' The memo interprets Article 49 of the Fourth
Geneva Convention which prohibits the forcible transfer or deportations of protected persons from occupied countries like
Iraq, and violations of Article 49 are considered to be grave breaches of the Convention and thereby constitute war crimes
under our Federal law.
The cover letter from OLC states that the legal opinion was requested by Judge Gonzales. In the newspaper--I do not know
whether it was the Times or the Globe or Post--one of them reported that one intelligence official familiar with the operation said the CIA had used the March draft memo as legal support for secretly transporting as many as a dozen detainees out of Iraq in the last 6 months. The agency has concealed the detainees from the International Committee of the Red Cross and
other authorities, the official said. In other words, this memorandum is being used to justify the secret movement and
interrogation of ghost detainees.
In his report on the prisoner abuse at Abu Ghraib, General Taguba--and as I mentioned, the members of the Armed Services
Committee listened to General Taguba testify on this very subject matter--criticized the CIA practice of maintaining
ghost detainees as deceptive--this is General Taguba--saying that the policy of the CIA maintaining ghost detainees in Iraq
is deceptive and contrary to army doctrine and in violation of international law.
Do you agree or disagree with General Taguba's view of the practice?
Judge Gonzales. Senator, I have not reviewed this opinion in quite some time. I believe based on--I believe that we are
honoring our legal obligations with respect to these detainees. There was a concern that by the application of Geneva that
terrorists would come into Iraq and we would create a safe haven for them, and that's why the opinion was solicited, so
that we would not create such a safe haven for al Qaeda, who are not entitled to prisoner of war legal protections. But in
terms of the actual facts or specifics of what is actually being done, I don't have any knowledge about what the CIA or
DOD is doing. And I am presuming--again, I don't have any knowledge--that they have solicited legal advice as to what
constitutes--what would constitute a violation of our legal obligations.
Senator Kennedy. Well, the memo applies to protected persons, as I understand it. As I understand, it was the CIA
that actually requested you to request the memorandum, and I think any logical conclusion one would draw is in order to
protect their agents from being prosecuted. At least that would certainly be my conclusion.
Now, this is what the memorandum from the Office of Legal Counsel interprets Article 49 of the Geneva Convention. The
Geneva Convention states, ``Individual or mass forcible transfers as well as deportations of protected persons from
occupied territory to the territory of the occupying power or to that of any other country, occupied or not, are prohibited,
regardless of their motive.'' And in spite of the clear and unequivocal language of the provision, the OLC concluded that
Article 49 does not, in fact, prohibit the temporary removal from Iraq of protected persons who have not been accused of a
crime to reason that both the words ``deportations'' and ``transfers'' imply a permanent uprooting from one's home, and
that because a different provision in the Fourth Geneva Convention prohibits the relocation of persons accused of
crime, it follows that persons who aren't accused of crime may be temporarily relocated for interrogation.
Do you believe that this legal advice is sound?
Judge Gonzales. Senator, I really would like the opportunity to re-review this memo. My recollection is that
this was a genuine concern, that we had members of al Qaeda intent on killing Americans flooding into, coming into Iraq,
and the question was legitimately raised in my judgment as to whether or not--what were the legal limits about how to deal
with these terrorists. And I believe--certainly that opinion represents the position of the executive branch.
Senator Kennedy. Well, do you know why the request came from the Agency? Why did the request come from the CIA? Do you know why they requested this? Did they explain why they wanted it? And do you remember what the CIA actually asked for?
Judge Gonzales. I do not, sir.
Senator Kennedy. The language--and I will move on--from the OLC clearly contradicts the plain language of the Convention.
And there are many that conclude that this was in order to allow the CIA to engage in the unlawful practice.
Did you form any opinion about the whole policy of ghost detainees, the fact that the CIA was moving individuals, ghost
detainees, around to different prisons in different parts of the world in terms of interrogating them, as was found and
mentioned in the Taguba report and in the Red Cross reports? Have you drawn any personal conclusions yourself as to whether this was sound policy or whether it contradicted the Geneva Conventions?
Judge Gonzales. Quite candidly, Senator, my objective as the Counsel to the President would be to try to ensure that
questions were being asked as to whether or not what kind of conduct someone felt was appropriate or necessary was, in fact, lawful. And I don't think I would have considered it my role necessarily to second-guess whether or not that represented a
good policy judgment.
Senator Kennedy. Well, it does appear to some that the CIA is looking out and asking, you know, for the legal authority to
do whatever they want to do and be protected from war crimes and other kinds of prosecutions and protections by the
Commander in Chief provisions. That certainly has been a conclusion that has been drawn by many authorities, and it
certainly would appear that way to many.
Judge Gonzales. Sir, if I may, that is the reason why we categorically rejected it, that analysis, when the existence of
the memo became public, because we were concerned that someone might assume that, in fact, the President was exercising that authority. That has never been the case, and we have said that there has been no action taken in reliance upon that authority.
Senator Kennedy. Well, you know, we hear now about the recent decision and judgment that was made recently in terms of
the Bybee memo. But I asked you at the end what you have done about this since it is so offensive. Clearly you have to feel
that given the fact the administration does that it is not longer operative. And I was interested, since it wasn't, what
was done with the Agency and what was done with DOD. And then I asked just at the end what you were going to do with the FBI should you be appointed, and you indicated that with the FBI you are going to consult, find out the facts, and take action.
But I am just wondering what you have done to implement the more recent decision to say that this Bybee memo is no longer operative since it continues to be a part of the working document that has been made available to DOD.
Judge Gonzales. Sir, as far as I'm concerned, the December 30th opinion from the Office of Legal Counsel represents the
executive branch position with respect to the interpretation of the anti-torture statute. The August 1 OLC memo has been
withdrawn. It has been rejected and does not represent the position of the executive branch.
Senator Kennedy. That is your position now, but when you first saw it and for a 2-year period when it was in effect, you
did not object to it, as I understand.
Judge Gonzales. Sir, there was, of course, as with many decisions, tough legal decisions, discussions between the
Department of Justice and the Counsel's Office. Ultimately, as I've said repeatedly during this hearing, it is the responsibility of the Department of Justice to make the final call. Ultimately, it is their decision as to what the law requires. And it was accepted by us as the binding interpretation of that statute.
Senator Kennedy. If I could come back to the unprecedented expansion of executive power contained in the Bybee memo, which you seem to have adopted at the time it was issued, so we are clear, the Bybee memo concluded that the law of the land cannot prevent the President from carrying out his Commander in Chief authority in any way he sees fit, even if the directives and actions violate clearly established law.
Judge Gonzales. Senator, that old opinion, as I've said, has been withdrawn. That analysis has been rejected, and I
consider it rejected.
Senator Kennedy. But at the time when you first saw it, it still was put into--it was effectively the law of the
administration's position for some 2 years.
Judge Gonzales. Well, that certainly reflected the position of the Office of Legal Counsel, but, again, let me re-emphasize
that that authority was never exercised. As far as I know, the President was never advised of that authority. And so no
actions were taken in reliance upon that authority. Senator Kennedy. That has been repealed. He hasn't
exercised it. Your view whether it is legitimate, whether it is a legitimate statement of fact. Judge Gonzales. Sir, respectfully, it doesn't represent the position of the executive branch.
Senator Kennedy. I understand that, but it did for a period of time, and I was just interested in what your view on that is
as a legal issue. It has important implications in the separation of powers. It has very important implications on it. We are entitled to understand your view about the separation of powers. This has very important implications on it, and that is
why I am asking the question.
Judge Gonzales. Sir, and I appreciate that, Senator, thank you. Whether or not the President has the authority in that
circumstance to authorize conduct in violation of a criminal statute is a very, very difficult question, as far as I'm
concerned. And I think that any decision relating to this line of reasoning would be one that I would take with a great deal
of seriousness, because there is a presumption that the statutes are, in fact, constitutional and should be abided by.
And this President does not have a policy or an agenda to execute the war on terror in violation of our criminal statutes.
Senator Kennedy. Let me move on. The Bybee memorandum made up out of whole cloth a necessity defense application to
torture. It argued that such a defense is viable because Congress did not make a determination on values vis-a-vis
torture. However, the Congress categorically banned the torture when it enacted the statute in 1994. The Convention Against
Torture, which the U.S. ratified in 1994, specifically states that no exceptional circumstances whatsoever, whether a state
of war or threat of war, internal political instability, or any other public emergency may be invoked as a justification of
What did you think when you read the memorandum's section on the necessity provision? Did you realize right away that
this was bad law and bad guidance for our military and intelligence?
Judge Gonzales. Sir, I don't recall today my reaction to the line-by-line analysis in that opinion. What I did realize,
being a former judge, trying to interpret a statute that may not be as clear as one would normally want to see on an issue
this important, was that that was an arguable interpretation of the law. They were relying upon the definition of severe
physical pain in other statutes passed by the Congress. And I'm sure we had discussions about it, and ultimately it was
accepted because that was the ultimate decision and position of the Office of Legal Counsel.
Senator Kennedy. Well, just to reach the conclusion that torture must involve the kind of pain experienced with death or
organ failure, the Bybee memorandum relied on unrelated Federal statutes that define emergency medical conditions for purposes of avoiding health benefits, Medicaid statute. I have gone through it. I am not going to take the time on this. But that
is how far they went.
As the revised OLC memo on December 30th--
Chairman Specter. Senator Kennedy, the red light is on for your 15 minutes. Will you proceed with this last question? Then
the Chair is going to rule that we would ask you to submit the balance of your questions in writing.
Senator Kennedy. Well, I would like to finish this, and then I would hope that I would have--I have attending the
hearings. It is 4 o'clock. I know others want to inquire. I am glad to remain here and take my turn. I know there are some
others that have to have a second or third, but I would certainly like to try to get into something on the civil rights
issues, which are enormously important, and also something on the immigration issues. I don't intend to take a great deal of
time, but I--
Chairman Specter. Senator Kennedy, we talked about multiple rounds. We would like to finish the hearing today. How much
more time do you need?
Senator Kennedy. Well, I would think this is probably the last question I would have--I had hoped to ask about
extraordinary rendition on the definition of torture, and then I have some--I need a round in which I would combine the
immigration and the civil rights and criminal justice into one round.
Chairman Specter. Well, can you conclude your questions with an additional 10 minutes?
Senator Kennedy. Senator, with all respect to you, Mr. Chairman, I was on the Committee when the Senators asked an
Attorney General for two and a half days about civil rights. You know, it is 4 o'clock in the afternoon. I am ready to
comply with the rules on this, but these issues are extraordinarily important. We have not been dilatory. I think we are entitled to ask these questions. I know the process. I have other questions I am going to submit in writing. But I do think that we ought to be entitled to ask about civil rights and about immigration issues. I will wait my turn. I will be the last one. I will not be dilatory, but I would like to try to get responses on these issues.
Chairman Specter. Well, the latitude has been extensive. Everyone else has taken two rounds, some only one. I do not
think it is unreasonable to ask for an approximation as to how much time you will need so that an evaluation can be made as to whether we can conclude today. It is true that I said there would be multiple rounds, but that is within the realm of
reason, and you have had 35 minutes so far, and I am prepared to give you an additional reasonable amount of time. I would
just like to know what it is so we can plan.
Senator Kennedy. Well, if I can conclude this one and then do 15 minutes, that would be fine.
Chairman Specter. Conclude in 15 minutes?
Senator Kennedy. If I can do this, the definition of torture, and then that will be the end on this subject, and then I will do--try to do it in less than 15 minutes. If I could get 15 minutes, it would wind me up.
Chairman Specter. All right. Then take the last question, and the green light will go on for 15 more minutes.
Senator Kennedy. After this one. As I mentioned in defining torture, the OLC used the description of ``severe pain'' contained in a Medicaid regulation on health benefits, which is completely unrelated to the whole question on torture. Now, as the revised OLC memo of December 30th explains, the statutes relied on by the Bybee memorandum do not define severe pain even in that very different context, and so they do not state that death or organ failure or impairment of bodily function caused severe pain. Clearly, the reasoning was unsound, and I guess what we conclude at this time, I would have thought it would be fairly obvious to you that someone can suffer severe physical pain without being in danger of organ failure.
When I hear this kind of activity, I always remember meeting President Duarte of El Salvador, and when he was in
prison, what they did is cut off a joint every week of his fingers. When he shook hands with you, he had four parts of
fingers that were left on that part. But every week they used to tell him--they would leave it unattended. It got infected
and caused him enormous kinds of health hazards on these parts. But I am always mindful about what I have seen with some
individuals, as one, like others in this Committee, Republicans, who care about human rights and the excesses that
have taken place.
The question that I have is: Wasn't it obvious to you that someone can suffer severe physical pain without being in danger
of organ failure? Wouldn't the removal of fingers, for example, fall outside the definition of torture and why wouldn't we have
expected that you would have raised some kind of objection to it?
Judge Gonzales. Senator, if I may answer your question, I don't recall reading that analysis to conclude that it would
have to be that kind of pain in order to constitute torture. Obviously, things like cutting off fingers, to me that sounds
Let me just remind you, Senator, that the Office of Legal Counsel was trying to interpret a statute written by the
Congress. The Foreign Relations Committee, in making recommendations to the Congress regarding ratification of the
Convention Against Torture, described torture as the top of the pyramid in terms of inflicting pain upon a human being. It
described it, the Committee described torture as extreme cruel, extreme inhumane, extreme degrading conduct. This is what the Congress said. And I think the people at the Office of Legal Counsel were simply doing their best to interpret a statute
drafted by Congress.
Senator Kennedy. Well--
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Senator Kennedy. Thank you very much, Mr. Chairman. Let me just underline what Senator Sessions has mentioned
on crack cocaine. We have tried to work together on this with the Sentencing Commission, and we worked with former Deputy Attorney General Wayne Budd, who, after he left the Justice Department, took an interest in it. It is probably the most
difficult part of the Sentencing Guidelines, but it is also one of the most offensive and unfair aspects of it. So we
appreciate it. We will try and work with Senator Sessions as well and see if we cannot come up with a common position.
Senator Sessions. Thank you, Senator Kennedy. I believe that, if studied, you would feel comfortable that this would be
a good step.
Senator Kennedy. Thank you.
I wanted to talk, in the time that is available, abut immigration issues and some civil rights issues and then
quickly on the death penalty what you are going to do. Those are the three areas I would like to try and cover. One which we
have talked about is the State and local law enforcement of immigration laws. You are familiar with this. In 2002, the
Department of Justice reversed longstanding policy of support of the inherent authority of States to enforce Federal
immigration laws. This reversal was based upon an Office of Legal Counsel opinion that has not been made public. I have
asked for a copy of the opinion, so have others of the Congress. Interested parties have asked for it, too. Their
refusal to disclose has been the subject of a lawsuit.
The Department's response failed to provide the opinion, but simply offered its conclusion without any discussion. I
have difficulty in finding a good reason why the Department continues to keep the opinion and its legal analysis secret,
especially since it reverses a longstanding policy that scores of police chiefs, police departments around the country,
including many in your home State of Texas have denounced the idea of involving State and local police in Federal immigration enforcement.
Last month, the International Association of Chiefs of Police issued a report expressing concern. They and others
believe it will destroy the remarkable progress they have made with community policy, in which police work closely with the
public, including immigrant communities and develop productive bonds of trust. Concerns raised by law enforcement, shared by many conservative security experts--I cannot believe I am quoting Grover Norquist, Bob Barr of the Heritage Foundation--
all say this could be an unmanageable burden on the law enforcement officials.
So could you tell us why the secrecy on the OLC memo, and can you tell us whether you support releasing the OLC opinion
on the authority to--
Judge Gonzales. Senator, thank you for that question. You and I did talk about that in your office. This matter is in
litigation, as you indicated. There is FOIA litigation about the release of the memo. The conclusions are known. It is the
analysis, the deliberations that went into the opinion I think that the Department is seeking to protect.
Let me just emphasize, though, or try to provide reassurance about this. There is no requirement, of course,
upon State and locals to enforce Federal immigration laws. This is truly voluntary and, in fact, of course, some States have
prohibitions. They could not do it even if they wanted to. In some cases, the Department, as I understand it, has run into,
with State or local departments, in terms of memoranda of understanding, in order to enforce this.
I am certainly sensitive to the notion that some local law enforcement people don't want to exercise this authority. Well,
we are not saying that they have to. But if they want to and can assist in fighting the war on terror, that is what this
opinion allows us to do.
Personally, I would worry about a policy that permits someone, a local law enforcement official, to use this
authority somehow as a club, to harass. They might be undocumented aliens, but otherwise lawful citizens. That would
be troubling. That would be troubling to the President, who, as the former Governor of a border State understands and
appreciates the roles that immigrants and undocumented aliens play in our society. But it is in litigation, and it would
probably be better if I didn't speak more about that.
Senator Kennedy. All right. Well, I am going to move on to
One, considers the actions on the Arabs, Muslim, and other immigrant communities. After September 11th, thousands of
immigrant men from Arab Muslim countries were fingerprinted, photographed, interrogated under various Justice Department
programs. Individuals were targeted based on their religion and national origin, instead of evidence of dangerousness. The
result was massive fear in many Muslim and Arab communities, and cooperation with antiterrorism efforts were frustrated. At
a time when we needed critical intelligence, members of the Arab and Muslim communities were unfairly stigmatized and
discouraged. I think part of the result was an increase in the hate crimes as well against them. I am going to try and come
back to that.
Do you believe that targeting persons, based on their religion or national origin, rather than specific suspicion or
connection with terrorist organizations is an effective way of fighting terrorism? And can we get interest from you, as
Attorney General, that you would review the so-called antiterrorism programs that have an inordinate and unfair
impact on Arab and Muslims?
Judge Gonzales. I will commit to you that I will review it. As to whether or not it is effective, will depend on the
outcome of my review.
Senator Kennedy. On the issues of civil rights enforcement, civil rights is still the unfinished business of America. If
you are confirmed, you will be overseeing the Civil Rights Division. Unfortunately, that progress has been sometimes
stalled by the administration. It is very important that the Committee know that you are committed to that progress. I would
like to get into some specific questions about it.
In 2004, the Civil Rights Division did not file a single case alleging racial or ethnic discrimination against minority
voters, not one. In 2003, the division filed only one such case. That is not very satisfactory, given the widespread
discrimination against minorities in State, local, even Federal elections across the country.
So, if you are confirmed, will you review those particular statutes and find out what the Department is doing or should do
in terms of ensuring that the law is complied with?
Judge Gonzales. I will commit to you that I will do that, Senator.
Senator Kennedy. I am going to move on from Section 2 of the Voting Rights Act, which prohibits voting practices that
discriminate based on race, color or membership in a language minority.
I would ask you to take a very close look at this issue, given, again, the Department's record on it. The Civil Rights
Division has actually opposed voters' interest in several court cases. The division opposed attempts by the Michigan NAACP and others to ensure that all provisional ballots by eligible Michigan voters were counted in the November election. That is
the Bay County Democratic Party v. Land. And the division argued that the Help America Vote Act's creation of provisional
ballots did not give private citizens any legal rights that they could enforce in court.
In fact, the Department was supporting attempts by States not to count votes of some of the actual eligible voters. And
this provision I think disregards the fact that Congress passed the Act, including the provisional ballot requirement,
precisely because they were concerned about violations of the 2000 election. And the division's argument that individuals had
no right to enforce the provisional ballot provisions in the Help America Vote Act had been rejected by every court that
heard it. So I am troubled the Department used limited resources to discourage and prevent citizens from enforcing the
right to vote, and the Civil Rights Division has been the champion for civil rights not opposing the voting rights in
keeping votes from being counted.
So I would hope that you would have a chance to review that particular activity in the Department.
Judge Gonzales. You have my commitment on that, Senator.
Senator Kennedy. Thank you.
A third area in civil rights is the pattern and practice on job discrimination. Many of us are concerned that the Civil
Rights Division reduce the enforcement of the landmark law against employment discrimination. This is Title VII of the
1964 Act. The division has filed few cases alleging a pattern or practice of discrimination. This is in spite of the fact, I
believe, that the Equal Employment Opportunity Commission has record sort of numbers. So there are some that say, well, this
is not such a problem today, but you have another Government agency indicating that it really is a problem. I would
appreciate it very much if you could review that section of the Civil Rights Act and--
Judge Gonzales. I will commit to you that I will do that, Senator.
Senator Kennedy. And also on the disparate impact laws and job discrimination. That is the 1991 Civil Rights Act that we
I would appreciate the review of those. We will have an opportunity to talk with you about it. We can submit questions
in more precision, but having your assurance in this is good enough for me.
The death penalty. General Ashcroft had repeatedly rejected the recommendations by U.S. attorneys not to seek the death
penalty. In fact, on some occasions, the Federal prosecutors had been required to seek the death penalty, even though
defendants were willing to plead guilty in return for life imprisonment.
General Ashcroft required his approval in all cases in which the death penalty is taken off the table. He required
notice to him in all prosecutions where the death penalty was a possibility, even if the local U.S. attorney believed the case
did not merit it. As of last September, the Attorney General had directed U.S. attorneys to pursue the death penalty in 41
cases in which U.S. attorneys had specifically recommended against it. Of these 41, only three resulted in the penalty
actually being imposed.
We have seen the Attorney General deal with the death penalty issues in different ways in the Department. I
mentioned, when we talked, that Janet Reno dealt with it one way, in terms of the reviews. Other Attorneys General have done so as well.
I do not know whether you are prepared to make any comments about how you might set up some kind of a process or procedure in terms of the Department, in reviewing recommendations or how you might proceed.
Judge Gonzales. Senator, I am not prepared at this time, but I understand that this is a very important issue for you
and, if confirmed, I would look forward to the opportunity to visit with you more about it.
Senator Kennedy. I would like to mention, also, the hate crimes. The Chairman of the Committee, myself, and others have
been strong supporters. We have had strong support for it in a bipartisan way in the Senate, in the past. We have been unable to gain support in the administration. This is extremely important. The number has increased. I think many of us look at
hate crimes as sort of the domestic terrorism, and we believe that, in fighting the hate crimes, which are focused not just
on the individuals, but individuals representing a group, that we ought to be able to have the full force of the Federal
Government on the side of the victims on this issue.
I do not expect that you are able to give us a definitive answer on this issue this afternoon, but I would ask if you
would be willing to work with us at least to try and see if we can. Senator Hatch has been interested in this. He has got a
somewhat different approach than we have had, but if we could have some assurance that you would review this issue as well and work with us, to the extent that you can.
Judge Gonzales. I am happy to look at this issue, Senator.
Senator Kennedy. Mr. Chairman, I have a limited number of additional, which I will file with the--
I want to point out what we had, and this will be my final comment, we had 22 days of hearings with Mr. Kleindienst for
his Attorney Generalship. We are doing this with Mr. Gonzales in rapid form, as we might. So I thank the Chair. I appreciate
Mr. Gonzales' visit in the office and also his responses today.
I will submit a limited number of questions on some additional areas: a gun show loophole and some other issues
which are of importance.
I thank the Chair.
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Senator Kennedy. Mr. Chairman, just while the witness is coming, could I extend a warm welcome to Dean Koh--the whole
panel. But Dean Koh has a brother who ran the Public Health Service in Massachusetts and was just, I would say, under
Republican governors, but his outreach was extraordinary, and his leadership was just exemplary. And he is just a very highly
regarded and respected member of our Massachusetts community. So I am sure the good dean has seen him more recently than I have, but I just wanted to point out that service and commitment to the public good runs long and deep in this
family, and I appreciate the chance to add a warm welcome to him.