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Public Statements

Executive Session

Location: Washington, DC

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



Mr. DAYTON. Mr. President, I highly respect the distinguished chairman of the Senate Judiciary Committee. He has been noted with his own stellar examples of bipartisanship, working with colleagues on both sides of the aisle. But I must say I have to respond to his remarks about those of us who oppose Judge Gonzales as being engaged in nothing other than political partisanship. I suggest that term could be applied to those who support these nominees because they are of the same political party as the President as much as they could be applied to those of us who are on the other side of the aisle.

If the Founders of this country did not intend for the Senate to exercise an independent judgment about the nominees to these high offices, such as Attorney General and Secretary of State, they would not have provided for a separate Senate confirmation of the President's nominees.

These individuals are not employees of the President, even though they are nominated by him and serve as members of his Cabinet and serve at his pleasure, as are his employees in the White House, who are not subject to Senate confirmation. These men and women become public officials who represent the United States of America within our country, before the Supreme Court, as Secretary of State in the seats of government around the world. They have to meet an American standard, and it is that standard that each of us has the independent responsibility to apply according to our own best judgments, but one the Constitution clearly intends we should apply independent of the President's judgment and independent, one would hope, of our own respective political parties.

I think ultimately, in the light of this debate, it is for the American people to decide whether this nominee, or any of the President's nominees, meet the standards for those who will represent this Nation in the highest public offices in the land.

I rise today to oppose the nomination of Judge Gonzales to be our Nation's next Attorney General, and I cite, as have other colleagues, the key role that he played in what is certainly one of the darkest disclosures about this administration: Its secret decisions to disregard the principles of the Geneva Convention for the humane treatment of prisoners of war who Judge Gonzales and others conveniently renamed ``enemy combatants.''

This role and its consequences were described in graphic detail in a recent Sunday New York Times review of a couple of books, including the International Commission of the Red Cross's documents regarding the abuse of prisoners in Iraq by American service men and women. I would like to quote to some extent from the New York Times report because it expresses both the severe consequences of the decisions that were made in which Judge Gonzales, unfortunately, played a key role as White House Counsel.

The reviewer cites part of the memorandum that the President approved that was written by Judge Gonzales in that role which states:

As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

The article reporter goes on to say:

Notice the qualifications. The president wants to stay not within the letter of the law, but within its broad principles, and in the last resort, ``military necessity'' can overrule all of it. According to his legal counsel at the time, Alberto R. Gonzales, the President's warmaking powers gave him ultimate constitutional authority to ignore any relevant laws in the conduct of the conflict. Sticking to the Geneva Convention was the exclusive prerogative of one man, George W. Bush; and he could, if he wished, make exceptions. As Assistant Attorney General Jay S. Bybee argues in another memo, ``Any effort to apply Section 2340A in a manner that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional. (Section 2340A refers to the United States law that incorporates the international Convention Against Torture.)

Bybee asserted that the president was within his legal rights to permit his military surrogates to inflict ``cruel, inhuman or degrading'' treatment on prisoners without violating strictures against torture. For an act of abuse to be considered torture, the abuser must be inflicting pain ``of such a high level intensity that the pain is difficult for the subject to endure.'' If the abuser is doing this to get information and not merely for sadistic enjoyment, then ``even if the defendant knows that severe pain will result from his actions,'' he's not guilty of torture. Threatening to kill a prisoner is not torture; ``the threat must indicate that the death is `imminent.' '' Beating prisoners is not torture either. Bybee argues that a case of kicking an inmate in the stomach with military boots while the prisoner is in a kneeling position does not by itself rise to the level of torture.

Bybee even suggests that full-fledged torture of inmates might be legal because it could be construed as ``self-defense,'' on the grounds that ``the threat of an impending terrorist attack threatens the lives of hundreds if not thousands of American citizens.'' By that reasoning, torture could be justified almost anywhere on the battlefield of the war on terror. Only the president's discretion forbade it. These guidelines were formally repudiated by the administration the week before Gonzales's appearance before the Senate Judiciary Committee for confirmation as attorney general.

In this context, Secretary Rumsfeld's decision to take the gloves off in Guantanamo for six weeks makes more sense. The use of dogs to intimidate prisoners and the use of nudity for humiliation were now allowed. Although abuse was specifically employed in only two cases before Rumsfeld rescinded the order, practical precedents had been set; and the broader mixed message sent from the White House clearly reached commanders in the field. Lt. Gen. Ricardo S. Sanchez, in charge of the Iraq counterinsurgency, also sent out several conflicting memos with regard to the treatment of prisoners--memos that only added to the confusion as to what was permitted and what wasn't. When the general in charge of Guantanamo was sent to Abu Ghraib to help intelligence gathering, the ``migration'' of techniques (the term used in the Pentagon's Schlesinger Report) from those reserved for extreme cases in the leadership of Al Qaeda to thousands of Iraqi civilians, most of whom, according to the intelligence sources, were innocent of any crime at all, was complete. Again, there is no evidence of anyone at a high level directly mandating torture or abuse, except in the two cases at Gitmo. But there is growing evidence recently uncovered by the ACLU ..... that authorities in the FBI and elsewhere were aware of abuses and did little to prevent or stop them.

Then there were the vast loopholes placed in the White House torture memos, the precedents at Guantanamo, the winks and nods from Washington, and the pressure of an Iraqi insurgency that few knew how to restrain. It was a combustible mix.

The article continues:

What's notable about the incidents of torture and abuse is first, their common features, and second, their geographical reach. No one has any reason to believe any longer that these incidents were restricted to one prison near Baghdad. They were everywhere from Guantanamo Bay to Afghanistan, Baghdad, Basra, Ramadi and Tikrit and, for all we know, in any number of hidden jails affecting ``ghost detainees'' kept from the purview of the Red Cross.

I will might add that is in direct contradiction to what we have been told, those of us like myself who sit on the Senate Armed Services Committee, who have been told repeatedly by this administration's representatives, and by military leaders, that these abuses were restricted to one prison, Abu Ghraib, in Iraq. I commend Senator Warner, the chairman of the Armed Services Committee, who has done his utmost, by holding these hearings and pressing the military and pressing the administration, to bring the full scope of what occurred there to public light through those hearings. To have sat through all those, as I have, and now hear that contradicted directly by the facts as they become known is greatly distressing and confirms my own unfortunately necessary judgment that this administration has not been candid with this Congress or with the American people about the conduct of the war in Iraq in this and other very important respects.

Going back to the New York Times article, they, meaning the abuses of prisoners in Iraq:

were committed by the Marines, the Army, the Military Police, Navy Seals, reservists, Special Forces and on and on. The use of hooding was ubiquitous; the same goes for forced nudity, sexual humiliation and brutal beatings; there are examples of rape and electric shocks. Many of the abuses seem specifically tailored to humiliate Arabs and Muslims, where horror at being exposed in public is a deep cultural artifact.

An e-mail message recovered by Danner from a captain in military intelligence in August 2003. . . . In the message, he asked for advice from other intelligence officers on which illegal techniques work best: a ``wish list'' for interrogators. Then he wrote: ``The gloves are coming off gentlemen regarding these detainees, Col. Boltz has made it clear that we want these individuals broken.''

The article continues:

How do you break these people? According to the I.C.R.C., one prisoner ``alleged that he had been hooded and cuffed with flexicuffs, threatened to be tortured and killed, urinated on, kicked in the head, lower back and groin, force-fed a baseball which was tied into the mouth using a scarf and deprived of sleep for four consecutive days. Interrogators would allegedly take turns ill-treating him. When he said he would complain to the I.C.R.C. he was allegedly beaten more. An I.C.R.C. medical examination revealed hematoma in the lower back, blood in urine, sensory loss in the right hand due to tight handcuffing with flexicuffs, and a broken rib.''

That is only one of several incidents of that kind of horrible abuse this article contains. It continues:

And the damage done was intensified by President Bush's refusal to discipline those who helped make this happen. A president who truly recognized the moral and strategic calamity of this failure would have fired everyone responsible. But the vice president's response to criticism of the defense secretary in the wake of Abu Ghraib was to say, ``Get off his back.'' In fact, those with real responsibility for the disaster were rewarded. Rumsfeld was kept on for the second term, while the man who warned against ignoring the Geneva Conventions, Colin Powell, was seemingly nudged out. The man who wrote a legal opinion maximizing the kind of brutal treatment that the United States could legally defend, Jay S. Bybee, was subsequently rewarded with a nomination to a federal Court of Appeals. General Sanchez and Gen. John P. Abizaid remain in their posts. Alberto R. Gonzales, who wrote memos that validated the decision to grant Geneva status to inmates solely at the president's discretion, is now nominated to the highest law enforcement job in the country: attorney general. The man who paved the way for the torture of prisoners is to be entrusted with safeguarding the civil rights of Americans. It is astonishing he has been nominated, and even more astonishing that he will almost certainly be confirmed.

I conclude my citation of that article. The abuses it describes are terrible, however limited in number they may be. Obviously almost all of our American service men and women serving so heroically in Iraq, Afghanistan, and around the world were not involved in those abuses. In fact, they paid the price for them. They become the targets of relatives and friends of those abuse victims who swear revenge. Our troops are placed at greater risk if, God forbid, they are captured, because we cannot demand that their captors practice standards of humane treatment which we do not practice ourselves.

But there is something that runs even deeper here and that is even more dangerous to our democracy. It is Judge Gonzales's advice that ``the President's warmaking powers gave him ultimate constitutional authority to ignore any relevant law in the conduct of the conflict.''

This is, I suspect, only the tip of the iceberg. Early in the administration's campaign, in the fall of 2002, to stampede Congress and scare the American people into the Iraq war, the White House stated their legal view that the President didn't actually need congressional authorization to invade Iraq. Members of this body on the other side of the aisle were instrumental in persuading him nevertheless to seek that authority.

Secretary Rumsfeld's legal advisers have reportedly reinterpreted existing law to permit him to set up his own CIA-type operations without informing Congress. They reinterpreted another law, purportedly to authorize military counterterrorist commando units to operate within the United States. Who knows how many other laws this administration's legal advisers have reinterpreted or decided that the President or others can ignore entirely, reinterpret or ignore without informing Congress, without informing the American people?

The Attorney General of the United States is entrusted to uphold the laws of this Nation and to apply them consistently and fairly to every American citizen, whether he agrees with them, whether they are convenient, whether the President or anyone else tells him otherwise. He cannot reinterpret them or ignore them or instruct the President or anyone else that they can reinterpret or ignore them. Change them? Yes, through the public process prescribed by the Constitution, by our Constitution: by an act of Congress signed into law by the President himself, reviewed if necessary by the judiciary. No exclusions and no exceptions, not for this President or any President; not for this administration or any administration, whether Republican, Democrat, or anything else. There are no special circumstances. There is no election mandate for secretly ignoring or reinterpreting laws of this Nation, or acting contrary to the rule of those laws or in violation of the Constitution of the United States.

Unfortunately, there is tragic precedent in this country's proud history for the demise of administrations who deviated from the rule of law, who considered themselves above the law or beyond the law or justified in reinterpreting or ignoring the law. Their hubris did great damage to themselves and they did great damage to our country.

They occurred more often than not during second terms, even after receiving that most special of electoral mandates: reelection. What a profound affirmation of the public trust, the most sacred political trust we have in this country: reelection of the President of the United States of America.

For the next 4 years, this President is our President. He is my President. I pray that he succeeds. Where he succeeds, our country succeeds. If he fulfills that sacred trust inferred upon him by the American people, the faith of all Americans in their Government is fulfilled.

We can have policy disagreements here in the Senate, in the House of Representatives, and with the administration. This is what a great Democratic leader, Senator Tom Daschle, called the ``noise of democracy.'' They were intended by this country's Founders, who designed our system of government to allow them, to address them, and resolve them, publicly, lawfully, and constitutionally. When those principles are followed publicly, lawfully and constitutionally, our Nation is strengthened. When they are not, our Nation is almost always weakened, regardless of what those leaders intended at the time.

I respectfully urge this administration to stop reinterpreting and ignoring existing laws and to stop ignoring and misleading Congress and the American people and to nominate an Attorney General who will not advise it, not hide it, and not condone it. That Attorney General I will gladly vote to confirm; this nominee, I will not.

I yield the floor.

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