Hearing of the Committee on the Judiciary Confirmation Hearing on the Nomination of Alberto Gonzales to be Attorney General of the United States

STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE
STATE OF DELAWARE

Senator Biden. Thank you, Mr. Chairman.

In 10 minutes, the core questions I want to ask will probably occur in the second round, Judge. Let me begin,
though, by saying I congratulate and welcome the new Chairman. I think that if anyone was made for this job, it is the Senator
from Pennsylvania, who I think is the finest constitutional lawyer in the country--maybe not the country but in the Senate.
And I welcome his-- [Laughter.]

Senator Biden. Seriously, I think it befits his background to chair this very difficult Committee, and I wish him well,
and he has my cooperation.

Chairman Specter. Thank you very much, Senator Biden.

Senator Biden. Judge, we sort of got off--I think we got off on sort of an unusual footing here, and I think that our
colleague in the Committee sort of fired a gun that had not been shot yet in terming--I do not know anybody who has
announced they are against your being the next Attorney General. Even those who have doubts say you are going to be
confirmed. And so this is not about the President and his judgment. It is appropriate for us to understand the President
is not a lawyer. He does not know from shinola about the treaty. By the way, nor do previous Presidents. Nor do previous
Presidents. That is why they have legal advisers. That is why they hire brilliant graduates from Harvard Law School and
former judges to advise them. I am being deadly earnest here. It is not a joke.

So I do not judge the President on whether or not he supports or did not support torture, he signed off on a memo
that may, in fact, in the minds of many, in fact, constitute torture, and he says he does not--that is irrelevant here.

And, Judge, this is not about your intelligence. This hearing is not about your competence. It is not about your
integrity. It is about your judgment, your candor, because you are going to be making some very difficult decisions as
Attorney General, as every Attorney General has, decisions on matters we cannot even contemplate now.

When I got here in 1972, the idea that anybody would be making judgments about cloning was bizarre. Within 4 years, you
are going to make judgments on issues we have not even contemplated. So I want to know about your judgment. It is your
judgment. And you are going to be the AG. You are not going to be legal counsel anymore. You are no longer the President's
lawyer. You are the people's lawyer. Your oath is to the people of the United States. I know you know that.

Judge Gonzales. Yes, sir.

Senator Biden. And, therefore--and this is not a Supreme Court hearing, although some suggest it foreshadows that. As a
Supreme Court nominee, you could sit there and say, ``I do not want to comment on that law or interpret it because I may have
to judge it.'' As Attorney General, you are responsible to tell us now what your judgment is on what the law means. It is your
obligation now for us to be able to assess your judgment, your legal judgment. You are in no way, as you implied to two other
questioners, you are in no way jeopardizing a future case. That is malarkey, pure malarkey.

So we are looking for candor, old buddy. We are looking for you, when we ask you a question, to give us an answer, which
you have not done yet. I love you, but you are not very candid so far. [Laughter.]

Senator Biden. And so please do not use this straw man, ``Well, as a future Attorney General, I may not be able to
comment on what that law''--you are obliged to comment. It is your job to make a judgment before a case is taken. That is
your judgment we are looking at.

And so it seems to me that--and the other point I would like to raise, because I am only going to get to the questions
in my second round really, is that my good friend from Texas, he held up three reports that did not say what he said they
said. The three reports he held up that I am aware of, maybe four, asserting essentially that they confirmed the judgment
that you made in your recommendations to the President of the United States of America relating to torture and other matters.

Now, the reason why it is appropriate to ask you about Abu Ghraib is not to go back and rehash Abu Ghraib, but it is
relevant as to whether or not what occurred at Abu Ghraib came as a consequence of the judgments made and embraced by the President that were then essentially sent out to the field. The Schlesinger report that was cited, it finds, ``Lieutenant
General Sanchez signed a memo authorizing a dozen interrogation techniques beyond standard Army practice, including five beyond those applied at Guantanamo.'' He did so ``using reasoning from the President's memo of February 7, 2002.'' So I say to my friend from Texas, that is why this is relevant.

The very reports cited say that--and I will not go through them all. The Red Cross report, the Red Cross did not sign off
and say that, you know, the conduct or the recommendations or the memorandum were, in fact, appropriate. And so I will not go through it all now, but I will, if we need to, in further questioning.

So, again, I want to sort of clarify here. This is about the judgment you have exercised and whether or not the next 4
years the judgment you are going to give a President, which he understandably should rely upon--this is not a man who has your legal credentials. That is why he has you, to make a recommendation to him. And it is appropriate for him to accept
that recommendation unless on its face an average citizen or an informed President who is not a lawyer would say, no, that
cannot make any sense.

So that is why we are worried about this. That is what this is about. And there is sort of--there is a split here in the
Congress, there is a split in the country about what is appropriate in this time of dire concern about terror.

You know, there is that play we have all seen, ``A Man for All Seasons,'' and there is an exchange in there where Sir
Thomas More is engaging Roper, and Roper says--a young man came to seek a job, and he said, ``Arrest him. He means you harm.'' And he said, ``He has broken no law.'' And Roper said, ``But he means you harm.'' And if my recollection is correct, you have Thomas More turning to Roper and saying, ``This country is planted thick with laws, coast to coast, man's laws not God's, and if you cut them down, Roper, as you would, what will you do when the devil turns 'round on you? Yes, I give the devil benefit of law for my own safety's sake.''

That is the fundamental principle we debate among ourselves here, no matter how you cut it. And that is what the debate
that took place on these torture memos between Taft and Yoo. I have a copy of the report, the memo sent by the Secretary of
State to you all on February 7th, which I am not going to make public. But in that memo, he takes significant issue with the
recommendations coming out of your shop, and Mr. Yoo's. And he ends by saying, ``Let's talk. We need to talk.'' And he goes into great detail, as other reports do. Powell contemporaneously on the 7th says basically--and I have the report right here. He says basically, look, you go forward with the line of reasoning you guys are using, and you are going to put my troops, my former troops, in jeopardy. This is about the safety and security of American forces. And he says in here, ``What you are doing is putting that in jeopardy.'' You have the former head of JAG, the top lawyer in the United States military, saying, Hey, man, this is way beyond the interrogation techniques you are signing off, way beyond what the manual, the military manual for guidance of how to deal with prisoners says.

And so the point I am trying to make here--and I will come back with questions, if I have any time--well, I do not have
any time. This is important stuff because there was a fundamental disagreement within the administration. And based
on the record, it seems to me, although it may not be totally--it may not be dispositive, your judgment was not as good as the
judgment of the Secretary of State. Your judgment was not as good or as sound as the chief lawyer from the JAG. Your
judgment was not as sound. And the question I want to debate about is the judgment. How did you arrive at this, different
than these serious people like you who thought what you were doing, recommending to the President in the various memos, was jeopardizing the security of American troops? And that is what I want to get back to, but I want to explain to the public and anybody listening. This is not about your integrity. This is not a witch hunt. This is about your judgment. That is all we
are trying to do.

And so when I get to ask my questions, I hope you will be candid about it because--not that it is relevant--I like you. I
like you. You are the real deal.

Chairman Specter. Senator Biden, your red light is on.

Senator Biden. My red light is on.

BREAK IN TRANSCRIPT

Judge Gonzales. Senator Biden, when you are referring to the Powell memo, I'm not sure which memo you're referring to.
And I presume you're referring--

Senator Biden. Let me give you a copy of it. For the record, Mr. Chairman, it is dated January 11, 2002, to John Yoo
from William Taft, Legal Adviser, and there is overwhelming evidence that you saw it. There was discussion about it, and
that is what I am referring to.

Judge Gonzales. There was a great deal of debate within the administration, as that memo partly reflects, about what was
legally required and perhaps a policy judgment to be made by the President. And the fact that there was disagreement about
something so significant I think should not be surprising to anyone.

Senator Biden. Of course not.

Judge Gonzales. Of course not. And reasonable people can differ.

In the end, it is the Department of Justice who is charged by statute to provide the definitive legal advice on behalf of
the executive branch to the President of the United States. What I can tell you--

Senator Biden. With due respect, that does not matter. I do not care about their judgment. I am looking at yours.

Judge Gonzales. Sir, of course, I convey to the President my own views about what the law requires, often informed by
what the Department of Justice says the law is, because, again, by statute you have conferred upon them that responsibility.

I can tell you that with respect to the decision the President ultimately made, everyone involved, including the
Secretary of State, including the Chairman of the Joint Chiefs, all of the principals who had equities in the decision about
the application of Geneva had an opportunity to present their views and their concerns directly to the President of the
United States, and he made a decision.

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