FDCH E-Media, Inc.
Thursday, January 6, 2005; 4:57 PM

Transcript from the U.S. Senate Judiciary Committee hearing on the nomination of Alberto Gonzales to be U.S. Attorney General.

JANUARY 6, 2005

SPEAKERS:

U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN

U.S. SENATOR ORRIN G. HATCH (R-UT)

U.S. SENATOR CHARLES E. GRASSLEY (R-IA)

U.S. SENATOR JON KYL (R-AZ)

U.S. SENATOR MIKE DEWINE (R-OH)

U.S. SENATOR JEFF SESSIONS (R-AL)

U.S. SENATOR LINDSEY O. GRAHAM (R-SC)

U.S. SENATOR JOHN CORNYN (R-TX)

U.S. SENATOR SAM BROWNBACK (R-KS)

U.S. SENATOR TOM COBURN (R-OK)

U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER

U.S. SENATOR EDWARD M. KENNEDY (D-MA)

U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)

U.S. SENATOR HERBERT KOHL (D-WI)

U.S. SENATOR DIANNE FEINSTEIN (D-CA)

U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)

U.S. SENATOR CHARLES E. SCHUMER (D-NY)

U.S. SENATOR RICHARD J. DURBIN (D-IL)

WITNESSES:

ALBERTO GONZALES,

NOMINATED TO BE U.S. ATTORNEY GENERAL

U.S. SENATOR JOHN CORNYN (R-TX)

U.S. SENATOR KEN SALAZAR (D-CO)

ADMIRAL JOHN HUTSON (USN, RET.),

PRESIDENT AND DEAN,

FRANKLIN PIERCE LAW CENTER,

CONCORD, NEW HAMPSHIRE

HAROLD HONGJU KOH,

DEAN, YALE LAW SCHOOL

DOUGLAS JOHNSON,

EXECUTIVE DIRECTOR,

CENTER OF VICTIMS OF TORTURE,

MINNEAPOLIS, MINNESOTA

[*]

SPECTER: The hour of 9:30 having arrived, we will proceed with the United States Senate Committee on the Judiciary today to proceed with the hearing of White House Counsel Alberto Gonzales, whom the president has nominated for the position of attorney general of the United States.

There will be opening statements by Senator Leahy and myself, and then we will call upon Senator John Cornyn and Senator Ken Salazar to introduce the nominee. And then the nominee will introduce his family, and then we will proceed with the opening statement of Judge Gonzales.

Preliminarily, it should be noted that White House Counsel Gonzales had served on the Supreme Court of Texas and is referred to as Judge Gonzales, and that will be the title which I will use during the course of these proceedings.

Judge Gonzales comes to this nomination with a very distinguished career; really a Horatio Alger story. Hispanic background, of seven siblings, the first to go to college, attended the Air Force Academy for two years and then received degrees from Rice and Harvard Law School. Became counsel to then-Governor George Bush of Texas. Was appointed to the state supreme court, later elected for a full term. And has been President Bush's counsel for the full four years of his term.

Judge Gonzales will take over, if confirmed, the direction of the Department of Justice, which is a department of enormous importance in the United States. The fourth department created in 1789; has the responsibility for representing the United States in court, civil cases and criminal cases; has oversight responsibility for the Federal Bureau of Investigation and its enormous responsibilities on the fight against terrorism, and law enforcement.

And while Judge Gonzales is the appointee of the president, he has brought a responsibility, he's representing the people of the United States; a key distinction which I'm pleased to say in advance that Judge Gonzales has noted in the statement which he has submitted.

The focus of media attention has been on the issue of Judge Gonzales' roles in analysis and recommendations on the handling of detainees. Judge Gonzales had issued an opinion to the president that the Geneva Convention did not apply with respect to certain of the combatants. In his memorandum of January 25th, 2000, he said, quote, "In my judgment, this new paradigm" -- referring to the war on terrorism -- "renders obsolete Geneva's strict limitations on questioning of enemy prisoners."

The committee will seek further amplification on a number of substantive issues from that memorandum, including Judge Gonzales' statement that, "In the treatment of detainees, the United States will continue to be constrained by its commitment to treat the detainees humanely and to the extent appropriate and consistent with military necessity in a manner consistent with the principles of the Geneva Convention."

SPECTER: This statement raises the question of what is the meaning of military necessity and to what extent, if at all, does military necessity impact on the, quote, "commitment to treat a detainee humanely."

Beyond Abu Ghraib and Guantanamo, the committee will want to know Judge Gonzales' plans and views on a wide range of matters, which will command the attention of the department as we begin a new year and a new presidential term.

The most important issue facing our nation today continues to be the threat of terrorism -- that's the most important issue facing our country -- and how we deal with it in the balance of our civil rights.

The department will have a major impact on the implementation of the new legislation for a national intelligence director, with the very heavy responsibilities of the Federal Bureau of Investigation and the coordination of intelligence, which if it had been properly implemented might well have prevented 9/11.

There are a number of other key issues which the attorney general will deal with.

We'll be interested to know of any views on enforcement of the antitrust laws. American consumers of oil and gas have been strangled by OPEC and their international cartel. They are not immune under the act of state doctrine. And we will be interested to know what plans the Department of Justice under Judge Gonzales, if confirmed, would have on that important issue.

The department will have a major role in implementing President Bush's proposals to revise our nation's immigration laws and to deal with the 10 million aliens who are in this country illegally.

The committee will also be interested to know of any new ideas or programs Judge Gonzales has for fighting organized and violent crime, cracking down on fraud, especially on federal health programs, and protecting U.S. intellectual property rights.

SPECTER: Now, the committee will be interested in Judge Gonzales' views on the Patriot Act, since the attorney general will obviously be a central figure in consideration of reauthorization of that act.

That act provided considerable assistance to law enforcement by eliminating the so-called wall between the gathering of intelligence once obtained for intelligence purposes to be used in criminal law enforcement.

But there are other questions which have been challenged by a wide array of people on all facets of the political spectrum with the issue of probably cause to obtain records, library records and the so- called sneak-and-peek orders. And we will be interested in what Judge Gonzalez has to say about that very important matter.

We will also be interested to know Judge Gonzales' views on the issue of detention and standards of detention.

The attorney general has exercised the authority to overrule conclusions by the immigration judge and a board of immigration appeals. And this is an issue which lingers after considerable questioning of Attorney General Ashcroft as to what standards ought to be used.

And the attorney general, John Ashcroft, conceded before this committee that it's not sufficient to simply cite national security, and that will be a question which we will want to inquire into.

We will also be looking for commitments from Judge Gonzales to appear before this committee at least twice a year and to be responsive to our inquiries. And we will seek his commitment on the oversight authority of this committee as recognized by the Supreme Court of the United States -- our constitutional obligation on oversight.

SPECTER: As we begin a new term, I pay tribute to my distinguished colleague, Senator Hatch, who has chaired this committee for most of the past 10 years and has been responsible for some of the most innovative and far-reaching legislation which has ever come from the Congress of the United States.

And he has handled these duties in a atmosphere sometimes contentious, sometimes difficult, but always with good cheer and always with aplomb and always with a balance. And I have admired especially his stamina. We affectionately refer to him as "Iron Pants," as he has chaired this committee with such great distinction. And it is an honor to receive the gavel from him.

If you will make that formal presentation, Senator Hatch?

HATCH: Well, I'm very honored to make that presentation to Arlen Specter, who's one of the best lawyers we've ever had serve in the United States Senate, among a whole raft of very fine lawyers.

And so, I'm very proud to have you as my new chairman and I appreciate your kind remarks, and appreciate serving with Senator Leahy and all of our colleagues on this committee for such a long period of time.

But I'm anxious to serve under you, and I'll enjoy sitting beside you.

SPECTER: Thank you, Senator Hatch.

HATCH: Here's the gavel.

(APPLAUSE)

SPECTER: I commend Senator Leahy for his very distinguished service as the longtime ranking Democrat on the committee and chaired the committee for most of the 107th Congress.

Senator Leahy and I have been colleagues going back to the late 1960s, when we were district attorneys together.

SPECTER: Senator Leahy was the district attorney of Burlington, Vermont, and I was district attorney of Philadelphia.

And we have worked together for 24 years on the Judiciary Committee. And in the past several weeks, we have talked extensively. We have sat down, and we have gone over the agenda of the committee.

We are, obviously, keenly aware of the difficulties of gridlock. And we're looking for a new beginning with more consultation, in an effort to avoid some of the contentiousness of the past, if it is at all possible, and to avoid if we can even consideration of the so- called nuclear option.

So it is with pleasure that I work with Senator Leahy, a friend for four decades.

And now I yield to you, Senator Leahy, for your opening statement.

LEAHY: Thank you very much, Mr. Chairman. And I do welcome you as our new chairman.

People sometimes forget that Senator Hatch and I often agree on things, and I would absolutely agree with him, you're one of the most experienced lawyers ever to serve.

I've served here for 30 years. Certainly in the time I've been here, I'm not surprised. Because I remember our times together back as a prosecutor -- when I was a young prosecutor, first met you in Philadelphia at a national D.A.s meeting. Followed your career ever since.

And I would say, also, to Senator Hatch, I compliment him, and I'm glad that he is determined to stay on the committee.

We have many people who have chaired this committee who have stayed on: Senator Hatch, now Senator Specter, Senator Kennedy, Senator Biden. And I think it has helped the committee and improved the committee with that experience.

(UNKNOWN): Soon it will be Senator Kohl.

LEAHY: And, Judge Gonzales, I welcome you to the Senate Judiciary Committee.

As has been alluded to, we're entrusted by the American people and by the Senate, but even more importantly, by the Constitution, to do a thorough and fair job in considering nominations for the executive branch of government.

At the outset, I want to make clear how inspiring you life story is, at least in The Washington Post profile of your life's journey, in particular, touched me as few accounts of your life have.

LEAHY: The road you've traveled, from being a 12-year-old boy, just about the age of your oldest son, selling soft drinks at football games, all the way to the state house in Texas and our White House is a tribute to you and your family.

And I enjoyed meeting with your wife and your sons, your mother -- and this has to be a very proud day for her -- your brother, your mother-in-law and the family.

But I'm sure we're going to hear more about your life story. We'll also, though, learn about Alberto Gonzales, the counsel to the president. And then we're going to try to glean what kind of a portrait we might have of you if you are confirmed to be attorney general of the United States.

The attorney general, of course, has to represent the interests of all Americans, the nation's chief law enforcement officer.

As Justice James Iredell wrote in 1792, the person who serves as attorney general is, quote, "not called attorney general of the president, but attorney general of the United States."

Now, the post is quite distinct from the position. Judge Gonzales has performed for the president. There he acted as a spokesman for the administration and appeared as chief defense lawyer for the White House on a number of very important and, many times, politically sensitive issues.

So a key question for this hearing is whether the nominee shares this view of the crucial role of the attorney general.

When he was designated for this position by the president, Judge Gonzales said he was looking forward to continuing to work with friends and colleagues in the White House in a different capacity on behalf of our president.

But, you know, there are going to be times -- there may well be times when the attorney general of the United States has to enforce the law, and he can't be worried about friends or colleagues at the White House. His duty is to all Americans: Republicans, Democrats, independent, all Americans.

In a time when the Republican Party has control of all three branches of the federal government, my worry is that our system of checks and balances may become short-circuited by too few checks on assertions of executive branch authority.

My concern is that during several high-profile matters in your professional career you've appeared to serve as a facilitator rather than as an independent force in the policy-making process.

LEAHY: Now, the job of attorney general is not about crafting rationalizations for ill-conceived ideas. It's a much more vital role than that.

The attorney general is about being a forceful, independent -- independent voice in our continuing quest for justice and defense of the constitutional rights of every single American.

We've seen what happens when the rule of law plays second fiddle to a president's policy agenda.

Attorney General Ashcroft and with the White House Counsel's Office has impulsively facilitated rather than cautiously vetted serious constitutional issues. The administration has taken one untenable legal position after another regarding the rule of law as we fight terrorism.

The few times Attorney General Ashcroft consented to appear before this Senate oversight committee, he brandished intimidation as a weapon, sometimes going so far as to say that questioning the administration's policy somehow gave aid and comfort to the enemy.

By contrast, I think your nomination appears to offer a different era.

As I told Judge Gonzales when we met within days of the announcement of his nomination, these hearing do matter. We need to know more about his judgment and actions in connection with the tragic, legal and policy changes formulated in secret by this administration -- in secret and still being hidden from proper congressional oversight and public scrutiny.

The policies include this nominee's role in developing interpretation of the law to justify harsh treatment of prisoners, harsh treatment that's tantamount to torture.

America's troops and citizens are at greater risk because of those actions, the terrible repercussions throughout so much of the world.

The searing photographs from Abu Ghraib have made it harder to create and maintain the alliances we need to prevail against the vicious terrorists who threaten us. And those abuses serve as recruiting posters for the terrorists.

The scandal of Abu Ghraib, allegations of mistreatment at Guantanamo, charges from cases in Iraq and Afghanistan are serious matters. To date, we have unresolved accountability.

So these hearing are about a nomination, but they're also about accountability.

From the outset of the public disclosure of the Abu Ghraib photographs, the Bush administration maintained any wrongdoing was simply a case of a few bad apples.

LEAHY: But as bits of information have been made public, not by the administration, but by the press over the last year, it's become clear to all that these incidents at U.S. facilities around the world are not just the actions of a few low-ranking members of the military.

Rather, in the upper reaches of the executive branch a process was set in motion that rolled forward to produce scandalous results, almost like somebody opening the flood gates in a dam and the water flowed downstream until it overwhelmed everybody below.

The Army Field Manual reflects our nation's long-held policy toward prisoners. My young son was in the Marines and he was called up for Desert Storm, a war that lasted so quick that he was out of harm's way. He was taught these things even as a Marine.

But the Army Field Manual reflects our nation's long-held policies toward prisoners. And it says, "The goal of any interrogation is to obtain reliable information in a lawful manner. U.S. policy expressly prohibits acts of violence or intimidation, including physical, mental torture, threats, insults, or exposure to inhumane treatment, as a means to aid interrogation."

Now, the policy is in place for a very good reason.

The field manual continues, "The use of torture is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear, but also may place U.S. and allied personnel in enemy hands at greater risk."

But senior officials in the Bush White House, the Ashcroft Justice Department, Rumsfeld Pentagon, set in motion a systematic effort to minimize, distort and even ignore our laws, our policies, our international agreements on torture and the treatment of prisoners.

Defense Secretary Rumsfeld, and later Lieutenant General Ricardo Sanchez, authorized the use of techniques that were contrary to both U.S. military manuals, but also international law.

Former CIA Director Tenet requested and Secretary Rumsfeld approved the secret detention of ghost detainees in Iraq; did that so they could be hidden from the International Committee of the Red Cross.

And still unexplained are instances where the U.S. government delivered prisoners to other countries so they could be tortured.

We have to ask: Where is the responsibility and accountability for these abuses?

We are the most powerful nation on Earth -- actually the most powerful nation Earth has ever known.

LEAHY: The country that is great promise. We are blessed with so much. And we're a country that cherishes liberty and human rights. We've been a beacon of hope and freedom to the world.

Certainly, it was that hope and freedom that brought my grandparents to this country not speaking a word of English, but coming here for that peace and freedom.

We face vicious enemies in the war on terrorism. But we can and will defeat them without sacrificing our values or stooping to their levels.

I believe there are several people in the audience who are themselves survivors of torture committed by the armed forces and secret police of other countries. They don't share these values on torture. They continue to struggle to overcome those horrifying experiences. They're very concerned that we not retreat from the high standards against torture that we've held up to the world in the past.

So these hearings, I may conclude, are an opportunity at long last for some accountability for this meltdown of long-standing U.S. policy on torture.

As White House counsel, Judge Gonzales was at the center of discussions on the applicability of the Geneva Conventions to the wars in Afghanistan and Iraq, and the legality of detention and interrogation methods that have been seen as tantamount to torture. He oversaw the formulation of this administration's extreme views of unfettered executive power and unprecedented government secrecy.

I hope that things will be different if you are confirmed, Judge Gonzales. I hope that you will be accessible to members of this committee and be more responsive than your predecessor.

I know that the president has asked our incoming chairman to proceed expeditiously with these hearings. I have worked with him. We did over the end-of-the-year break. We've had a lot of calls back and forth between your home and my farm in Vermont. We've met several times.

And as I told you, we would do everything possible to help you move forward, and I will.

SPECTER: Thank you very much, Senator Leahy.

We will now turn to introductions.

We will then hear from Judge Gonzales.

And then we will, in accordance with the practice of the committee with opening statements, as customarily limited to the chairman and ranking member, turn, in order of seniority, for 10- minute rounds of questions.

I will observe the 10-minute limitation precisely, and will ask other committee members to do so. And there will be multiple rounds, so the committee members will have a full opportunity to question Judge Gonzales.

We now turn to the senator from Texas, Senator John Cornyn, a distinguished and valued member of this committee, for introduction of the nominee.

CORNYN: Thank you, Chairman Specter, for convening today's hearing. And congratulations on your chairmanship.

SPECTER: Thank you.

CORNYN: I'm pleased to be here today to introduce Judge Alberto Gonzales to this committee. He is a talented lawyer, a dutiful public servant and a good man. He's a great Texan and an inspiring American success story, as you, Mr. Chairman, have already alluded. And I'm honored to call him my friend.

I should also mention that Senator Hutchison, the senior senator from Texas, had wanted to be here today to express her strong support for this nominee, but is away due to a preexisting commitment. And I'd ask that her statement of support be made part of the record.

SPECTER: Without objection, it will be made a part of the record.

CORNYN: I've known Judge Gonzales for many years, and I can tell you that the media is absolutely right when they refer to him as the man from Humble.

For those of you who are not from Texas, let me explain. He grew up in Humble, Texas, but it also, I think, attests to the fact that he is a modest, self-effacing man.

The son of migrant workers, his childhood home, where his mother still lives today, was built by his father and uncle. And, as has already been stated, as a young man, as a teenager, he sold soft drinks at Rice University football games and dreamed of one day when he might possibly attend that great institution.

Judge Gonzales is the first person in his family to have gone to college. Because of the love and support of his family, and his hard work and determination, he graduated not just from Rice University, but from Harvard University School of Law, and then joined a prestigious institution law firm, where he became one of its first minority partners.

He eventually caught the eye of a Texas governor who saw a uniquely talented yet modest man, who then appointed him as his general counsel, his secretary of state, as a member of the Texas Supreme Court and then as White House counsel.

Judge Gonzales is truly an inspiration to everyone who still believes in the American dream. And so his nomination as the nation's 80th attorney general, our first Hispanic attorney general, should by all accounts have a perfectly happy ending.

CORNYN: But that's not necessarily how Washington works. It appears that, at least in anticipation of today's hearing, that we will see once again that this confirmation process can be unnecessarily partisan, even cruel, to some who selflessly offer themselves for public service.

And I know we'll get into the details, but let me just say that only in Washington can a good man get raked over the coals for doing his job.

This must all be a little disorienting for one whose very life story testifies to the fact that America should always be a place where honesty, diligence and determination are rewarded, not punished.

Take, for example, the harsh criticism about the Geneva Convention. Judge Gonzales has been harshly attacked for advising the president that all detainees be treated humanely. But as a legal matter, Al Qaida and Taliban fighters are not covered by the Geneva Convention.

Now, I hate to ruin a good story by the president's political opponents, who are attacking him through this nominee, but let me just say there's one important point that needs to be made: Judge Gonzales is absolutely right.

You don't have to take my word for it.

First of all, Al Qaida never signed the Geneva Conventions, but moreover the Red Cross' own guidelines state that, "To be entitled to Geneva protection as a prisoner of war, combatants must satisfy four conditions: being commanded by a person responsible for his subordinates; secondly, having a fixed, distinctive sign recognizable at a distance; number three, carrying arms openly; and, number four, conducting their operations in accordance with the laws and customs of war."

Does anyone on this committee, or anywhere else for that matter, seriously argue that Al Qaida terrorists comply with the law of war?

By the way, it's important to note that Judge Gonzales' legal advice has also been affirmed by three federal courts throughout this country, and has also been endorsed by numerous legal scholars and international legal experts across the political spectrum, as well as both the 9/11 Commission, by the way; the final Schlesinger report, an independent report on DOD detention operations; and a brief filed recently in the United States Supreme Court by former Carter administration officials, State Department legal advisers, judge advocates and military commanders, and liberal international law scholars, who concluded that the president's conclusion that members of Al Qaida and the Taliban are unlawful combatants is clearly correct.

CORNYN: Even Washington advocacy director for the Human Rights Watch Tom Malinowski, a vocal Bush administration critic, has grudgingly conceded that the administration's interpretation is probably correct.

Now, the administration's Geneva position is not just right as a legal matter, it is also essential as a matter of national security.

I recently published an op-ed which explained that extending the Geneva Convention protections to Al Qaida would threaten the security of our soldiers, dramatically disable us from obtaining the intelligence needed to prevent further attacks on U.S. civilians and soldiers, and badly undermine international law itself.

And I'd ask, Mr. Chairman, that that be made a part of the record.

SPECTER: Without objection, it will be made part of the record.

CORNYN: Thank you very much.

Just take a look at all the numerous privileges provided by the Geneva Convention for traditional prisoners of war. For example, questioners could not entice detainees to answer questions by offering them creature comforts, or even preferential treatment, even though that's the standard operating procedure in police stations throughout the United States.

And because the convention prohibits the holding of detainees in isolation, Al Qaida fighters would be able to coordinate with each other in a way that would thwart, or could thwart, effective questioning.

POW status even confers broad combat immunity against criminal prosecution before civilian and military tribunals alike.

CORNYN: Now, Mr. Chairman, surely no member of the committee or anyone else on our side of this conflict actually believes that an Al Qaida terrorist deserves to be treated better than an American citizen accused of a crime. I certainly wouldn't think so.

President Reagan didn't think so, neither did each of his successors in office.

Nearly two decades ago, President Reagan, and every president since that time, had rejected a proposed amendment to the Geneva Convention, known as Protocol One of 1977, to extend that convention to protect terrorists.

As President Reagan rightly argued, we must not and need not give recognition and protection to terrorist groups as a price for progress in humanitarian law.

Notably, even the New York Times and Washington Post agreed at the time.

All of this support, from multiple federal courts, from the 9/11 Commission, the Schlesinger report, liberal international legal scholars, Carter administration officials, even the New York Times and Washington Post, yet Judge Gonzales is criticized for taking exactly that same position.

Take one more issue: the Justice Department memos that have been alluded to here construing the federal torture statute.

Judge Gonzales is being attacked for a memo he didn't write, interpreting a law that he didn't draft.

It was Congress, not Judge Gonzales, that enacted a strict definition of torture. It was Congress, not Judge Gonzales, that specifically provided that only specific intent to inflect severe pain or mental pain or suffering would constitute torture.

As I said, President Bush and Judge Gonzales have both unequivocally, clearly and repeatedly rejected the use of torture. But is there anyone here today who would fail to use every legal means to collect intelligence from terrorists in order to protect American lives?

I certainly hope not.

Finally, I know we're going to hear some about Abu Ghraib today. We already have.

CORNYN: And I think it's safe to say that everyone agrees that Abu Ghraib represents a shameful episode in this nation's history. Yet some people actually want to exploit that tragedy for their own purposes. Abu Ghraib should be treated seriously, not politically.

The Defense Department has been vigorously investigating the misconduct and prosecuting the violators. The independent Schlesinger report that I alluded to earlier concluded that, quote, "No approved procedures called for or allowed the kinds of abuse that in fact occurred. There is no evidence of a policy of abuse promulgated by senior officials or military authorities."

So if there is no evidence whatsoever that Judge Gonzales was any way responsible for the criminal acts that occurred at Abu Ghraib by a few, why are we talking about this at Judge Gonzales' confirmation hearing? This, after all, is a confirmation hearing to head the Department of Justice, not an oversight hearing of the Department of Defense.

In conclusion, let me just say, Mr. Chairman, that I am proud of my friend Judge Alberto Gonzales. He is a source of great inspiration and pride to his family and his friends and all of us who call the great state of Texas home.

Time and time again, Judge Gonzales has done his duty in the war on terrorism. It disheartens me to see him held up to ridicule, distortions, and outright lies for being the patriot that he is.

So, Mr. Chairman, let me say to you and my colleagues, let us confirm this good man from Humble.

Thank you very much.

SPECTER: Thank you very much, Senator Cornyn.

We now turn to newly elected Senator Ken Salazar.

Congratulations, Senator Salazar, from Colorado, and we look forward to you introduction of Judge Gonzales.

SALAZAR: Thank you.

Chairman Specter and Ranking Member Leahy and members of the committee, it is an honor and a privilege for me to appear before you this morning.

It is also an honor and privilege for me to appear before you this morning to make an introduction of Judge Alberto Gonzales.

I do so at the invitation of Judge Gonzales. He and I come from very similar backgrounds. We both understand the struggles of people as they try to build better lives for themselves and for their families in America.

SALAZAR: In a speech at Rice University, Judge Gonzales recently recalled his upbringing, and he said, I quote, "During my years in high school I never once asked my friends once over to our home. You see, even though my father poured his heart into that house, I was embarrassed that 10 of us lived in a cramped space, with no hot running water or telephone."

In another statement, Judge Gonzales said, "My father did not have opportunities because he had only two years of formal schooling, and so my memories are of a man who had to work six days a week to support his family. He worked harder than any person I have ever known."

From those humble beginnings, Judge Gonzales has excelled academically and professionally. In my view, Judge Gonzales is better qualified than many recent attorneys general. He served as a member of the Texas Supreme Court, secretary of state for the state of Texas, chief counsel to the governor of Texas and for the last four years as counsel to the president.

I have known Judge Gonzales from my days as Colorado's attorney general. In addition, over the last several weeks I have met and had several discussions with Judge Gonzales about his nomination to serve as this nation's attorney general.

I believe his decision to reach out to me, someone who is from a different political party, is an indication of his interest in working with all of us in making our homeland more secure and at the same time protecting our citizens' rights and liberties.

I have shared with Judge Gonzales my views on a few priority items I would like to work on with the Justice Department and with this important committee, under your leadership. Judge Gonzales has pledged to me his willingness to work on these issues.

Among the issues we discussed are the following.

One, homeland security at the local and state level.

SALAZAR: For those of us, such as Senator Sessions and Senator Cornyn, who have served as attorneys general, we know the importance of this issue at the local level.

I believe we must do more to support our state and local law enforcement officials and other first responders as we take on the most significant national security challenge of the 21st century, and that is providing security for our homeland against threats of terrorism.

I am pleased that, if confirmed as attorney general, Judge Gonzales has indicated his willingness to work on this matter, and will come to Colorado to meet with local and state law enforcement officials and other first responders to listen to their experiences, needs and concerns. And I am certain that he will do that in other states, as well.

Secondly, on the Patriot Act, I support the Patriot Act and the necessary reasons for its enactment. I have also expressed my support for changes to the act, as have been discussed and proposed by a bipartisan group of leaders in the Congress.

Judge Gonzales has indicated his willingness to work on this important matter so that we might better balance out the needs for national security, while at the same time maintaining the important, fundamental civil liberties of our nation.

I know that there are other serious questions that this committee will explore and ask of Judge Gonzales in these proceedings. It is appropriate to do so in these confirmation proceedings.

I am hopeful that Judge Gonzales will satisfactorily address the concerns of the Senate, and I am hopeful that he will become the next United States attorney general for our nation.

Thank you.

SPECTER: Thank you very much, Senator Salazar.

Judge Gonzales, would you now stand for the administration of the oath? Raise your right hand.

Do you solemnly swear that the testimony you will give before the Senate Judiciary Committee will be the truth, the whole truth and nothing but the truth, so help you God?

GONZALES: I do.

SPECTER: Would you begin, Judge Gonzales, by introducing your beautiful family?

GONZALES: Mr. Chairman, Senator Leahy, distinguished members of the committee...

SPECTER: Judge Gonzales, the request is pending for you to introduce your family before you begin your testimony.

GONZALES: With me here this morning my beautiful wife Rebecca...

SPECTER: Mrs. Gonzales, would you stand, please?

GONZALES: ... as well as our three sons, Jared, Graham and Gabriel.

SPECTER: Would you gentlemen please stand? Thank you.

GONZALES: Also here is my mother Maria...

SPECTER: Thank you.

GONZALES: ... my brother Tony, who is a 26-year veteran of the Houston Police Department and a SWAT officer; and my mother-in-law, Lorinda (ph) Turner.

SPECTER: Thank you all for standing, and welcome to these proceedings. Thank you.

Now, Judge Gonzales, we'd be very pleased to hear your opening statement.

GONZALES: Mr. Chairman, Senator Leahy and distinguished members of the committee, it is the highest honor of my professional career to appear before you today as the president's nominee to be attorney general of the United States.

I owe a debt of deep gratitude to the president for the trust he has placed in me.

I also want to thank Senator Cornyn for his kind introduction and for his many years of friendship.

Ken Salazar was sworn in as a United States senator just two days ago. I want to thank the senator for his willingness to extend the hand of friendship across the political aisle to introduce me today.

And although Senator Hutchison could not be with us today, I appreciate her many years of support as well.

Mr. Chairman, the highest objective of the Department of Justice is the pursuit of justice. This noble objective, justice, is reflected in human terms in the hopeful eyes of a new citizen voting for the first time, in the quiet gratitude of a victim of crime whose rights have been vindicated in the courts, and in the pride of a person given the opportunity to succeed no matter their skin color or gender or disability, for justice, properly understood, cannot, in my view, be divorced from the individual.

GONZALES: It always has a human dimension.

And if confirmed, as attorney general, I pledge that I will always remember that.

With the consent of the Senate, I will no longer represent only the White House; I will represent the United States of America and its people.

I understand the differences between the two roles.

In the former, I have been privileged to advise the president and his staff; in the latter, I would have a far broader responsibility: to pursue justice for all the people of our great nation, to see that the laws are enforced in a fair and impartial manner for all Americans.

Wherever we pursue justice, from the war on terror to corporate fraud to civil rights, we must always be faithful to the rule of law.

And I want to make very clear that I am deeply committed to the rule of law. I have a deep and abiding commitment to the fundamental American principle that we are a nation of laws and not of men. I would not have the audacity to appear before this committee today if that commitment were not the core principle that has guided all of my professional endeavors.

Our government's most basic obligation is to protect its citizens from enemies who would destroy their lives and our nation's way of life. And the Department of Justice's top priority is to prevent terror attacks against our nation.

As we fight the war on terror, we must always honor and observe the principles that make our society so unique and worthy of protection. We must be committed to preserving civil rights and civil liberties.

I look forward, if I am confirmed, to working with this committee, the Congress and the public to ensure that we are doing all we can do so.

Although we may have differences from time to time, we all love our country and want to protect it, while remaining true to our nation's highest ideals. And working together, we can accomplish that goal.

While I look forward to answering your specific questions concerning my actions and my views, I think it is important to stress at the outset that I am and will remain deeply committed to ensuring that the United States government complies with all of its legal obligations as it fights the war on terror, whether those obligations arise from domestic or international law.

These obligations include, of course, honoring the Geneva Conventions whenever they apply.

Honoring our Geneva obligations provides critical protection for our fighting men and women and advances norms for the community of nations to follow in times of conflict.

GONZALES: Contrary to reports, I consider the Geneva Conventions neither obsolete nor quaint.

After the attacks of 9/11, our government had fundamental decisions to make concerning how to apply treaties and U.S. law to an enemy that does not wear a uniform, owes no allegiance to any country, is not a party to any treaties and, most importantly, does not fight according to the laws of war.

As we have debated these questions, the president has made clear that he is prepared to protect and defend the United States and its citizens and will do so vigorously, but always in a manner consistent with our nation's values and applicable law, including our treaty obligations.

Having said that, like all of you, I have been deeply troubled and offended by reports of abuse. The photos from Abu Ghraib sickened and outraged me, and left a stain on our nation's reputation. And the president has made clear that he condemns this conduct and that these activities are inconsistent with his policies.

He has also made clear that America stands against and will not tolerate torture under any circumstances.

I share his resolve that torture and abuse will not be tolerated by this administration, and commit to you today that, if confirmed, I will ensure that the Department of Justice aggressively pursues those responsible for such abhorrent actions.

Chairman Specter, if I may add a personal note, I want to congratulate you for your chairmanship of this important committee. And I look forward, if confirmed, to the many occasions that we will discuss important issues facing our country in the months and years ahead.

Senator Hatch, I want to thank you for your dedicated service as chairman of this committee, for the good working relationship we have enjoyed, for all the many kindnesses you have shown me personally.

GONZALES: I appreciate the good working relationship I've enjoyed with Senator Leahy during my tenure as counsel to the president. I know him to be a person of good will and dedication. And I have great confidence that, if I'm fortunate enough to be confirmed, we will build upon that as we reach across the aisle to work together to serve the American people.

Mr. Chairman, it is a distinct honor to appear before the committee today. I appreciate the time and attention that members of the committee and their staffs have dedicated to this hearing and to consideration of my nomination.

And I look forward to answering your questions, not just at this hearing but, if I am fortunate enough to be confirmed, in the months and years ahead as we work together in the noble and high calling of the pursuit of justice.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Judge Gonzales.

We will now begin, as stated earlier, 10-minute rounds. And I will observe my time limit meticulously and will ask others to do the same.

Senators necessarily have other obligations, will have to move in and out of the hearing room, so that if it is possible to gauge the timing, knowing how long it will be before their turn up is, it is very useful in arranging schedules. And there will be ample time, as I have said earlier, on multiple rounds.

I'm advised that there may be some photos used. And obviously senators have full latitude on the range of questioning. But I would ask my colleagues to be sensitive to photos. There are children present in the room today and we are being televised.

So that, while we want to have all of the facts and give full latitude to senators on their rights to question, we may want to be in executive session or we want to give children a chance to leave or take whatever other precautionary measures that seem appropriate by all concerned on a consensus of what the committee thinks ought to be done on that sensitive subject.

And now, if the lights will show to limit my 10 minutes, I will begin at the outset of your testimony Judge Gonzales. You've already covered the matter, but I think it is important to have an unequivocal statement and really a repeat of an unequivocal statement of the position of the administration and your personal views.

Do you approve of torture?

GONZALES: Absolutely not, Senator.

SPECTER: Do you condemn the interrogators -- and you already answered this in part -- at Abu Ghraib and Guantanamo -- but again for the record -- do you condemn the interrogators' techniques at Abu Ghraib shown on the widely publicized photographs?

GONZALES: Let me say, Senator, that as a human being I am sickened and outraged by those photos. But as someone who may be head of the department, I obviously don't want to provide any kind of legal opinion as to whether or not that conduct might be criminal.

And obviously anyone that is involved in any kind of conduct that he is subject to prosecution, I would not want to do anything today to prejudge that prosecution and jeopardize that prosecution.

But obviously if that conduct falls in the jurisdiction of the Department of Justice, I will pursue it aggressively, and you have my word on that.

SPECTER: Well, having some experience in the prosecution of criminal cases, I don't believe the condemnation of that conduct would impact on what happens at a later date.

But I thank you for your statement of rejection of that and condemnation of those practices.

Do you similarly condemn any similar interrogation techniques at Guantanamo?

GONZALES: I'm not sure of which specific techniques you're referring to, Senator. But obviously there is a range of conduct that would be in clear violation of our legal obligations, and those I would absolutely condemn, yes, sir.

SPECTER: Well, there will obviously be a good bit of questioning on this subject. And I intend to turn to other matters, and we'll come back to the subject in later rounds to the extent that, as chairman, I think further amplification is necessary.

But I do want to move on to what I consider to be the number one issue facing the country, and that is the issue of the fight on terrorism and the balancing of civil rights with some focus on the Patriot Act, which we enacted shortly after 9/11.

SPECTER: Starting with the Patriot Act, I already commented that we had this wall which precluded law enforcement from using evidence of crime which had been obtained through search and seizure warrants under the Foreign Intelligence Surveillance Act. And now that evidence may be used in a criminal prosecution.

To what extent has that provision and the other provisions of the Patriot Act been of real importance in our fight against terrorism?

GONZALES: Well, of course, Mr. Chairman, I have not been at the department, so I may not know all of the details of specific successes that the United States and the Department of Justice have enjoyed as a result of the tools given to us by the Patriot Act.

But I am told that they have been very significant, and that for our career prosecutors, for the U.S. attorneys out in the field, they have been very, very beneficial in allowing our law enforcement personnel to defend this country.

I believe that in part because of the Patriot Act there has not been a domestic attack on United States soil since 9/11.

SPECTER: The Patriot Act has stimulated the national counterterrorism center, and that is now part of the new legislation formalized on the national intelligence director.

And I will not go into any detail at this time, but I would urge you to be very diligent there. And this committee is going to exercise oversight on that issue, because it is my own view that had we had proper coordination of all the information prior to 9/11, 9/11 might well have been prevented.

And the FBI has the guiding hand on the national counterterrorism center, and that comes under your purview.

Let me turn now to the issue of the Patriot Act, aspects which have been the subject of concern and legislation is pending where we have people on both ends of the political spectrum, those on the right and those on the left, on concern.

The act requires the court to issue an ex parte order, that is on the application of law enforcement, for an administrative subpoena on a showing which is less than the traditional judicial determination of probable cause. And there's been concern expressed about access to many private records, illustrated by the concern over library records.

Is there any reason in your judgment, Judge Gonzales, why the production of those records might not be subjected to the traditional standard of probable cause before the issuance of the warrant?

GONZALES: Let me just say, Senator, I am also aware of a great deal of debate about the provisions of the Patriot Act. And there are concerns about possible infringement of civil liberties.

I welcome that debate. I think that we should always question the exercise of the power of our government.

The founders of this country -- that is what motivated them in connection with framing the Constitution, concerns about the exercise of government power. And so, I am one of those people that is likewise concerned.

With respect to access to library records, to take a specific point, obviously you're referring to Section 215 of the Patriot Act. 215 relates to obtaining business records. It never mentions library records.

215 allows the government to obtain certain types of business records -- hotel records, credit card records, rental records, transportation records -- in connection with -- it's got to be related to a foreign intelligence operation.

GONZALES: And the government cannot do that without first going to a judge. Government goes to the FISA court and obtains a warrant to do that.

SPECTER: But there is no requirement for a showing of probable cause before that judicial order is entered, Judge Gonzales. And the question is, why can't we have that traditional probable cause requirement on the obtaining of those records?

GONZALES: Certainly, Senator, you could do that. But right now, today, a prosecutor could obtain a grand jury subpoena if it was relevant to a criminal investigation without meeting that standard and obtain access to those very same library records.

SPECTER: But when the prosecutor obtains those records on a grand jury subpoena -- and I have some familiarity with that -- it's subject to judicial supervision. There can be a motion to quash.

Well, I don't want to take up all of our time there. But we also have the sneak-and-peak issue. And you will be here to take a look at that when we have hearings on renewal of the Patriot Act. But that is a matter which, I think, has to be weighed very carefully in the balance.

Let me turn now to the standards of detention on aliens. And immediately after 9/11, as the inspector general's report showed, some 702 aliens were detained without any showing of cause: concern that they might be terrorists, but no real evidence or indications that they were terrorists.

And we have seen the Department of Justice exercise authority after an immigration judge has ordered the release of an alien, and that has been upheld by the board of review, for the Department of Justice to overrule those two levels of judicial review and maintain the detention.

And the issue of standards is really of critical importance. And there has never been a delineation by the Department of Justice of those standards.

At one point Attorney General Ashcroft testified that it wasn't sufficient simply to say "national security," but there had to be some relationship to the individual on the likelihood of flight or on the problem of a criminal record or something relating to the individual.

My yellow light is on now, so I will stop the questioning before my red light appears, and give you an opportunity to respond as to your views as to what kind of a standard is appropriate for the detention of aliens.

GONZALES: Let me just begin by answering your question by saying, Senator, that I do not support or favor the mistreatment, not only of aliens, but anyone by the Department of Justice.

You have to recall that these actions taken by the department were shortly after 9/11. There was a great deal of concern that there may be a second wave of attacks. People didn't know. And so there were undocumented aliens that were rounded up.

I am told is that everyone who was rounded up was either out of status with respect to immigration status or had criminal charges pending against them. There was an independent basis to hold these people.

I am aware of the report by the inspector general. I haven't reviewed it in great detail. I understand the department has made most of the changes recommended by the I.G. Obviously, it's something that I am concerned about.

As to the specific two cases you mentioned, I'm not aware of the details of those cases.

And as to the standard, quite frankly, Senator, that would be something I would have to look at and be happy to get back to you in the event that I am confirmed.

SPECTER: Thank you.

Senator Leahy?

LEAHY: Thank you, Mr. Chairman.

And, first off, I wanted to thank both Senator Salazar and Senator Cornyn for their introduction. Senator Salazar, a Democrat who is showing bipartisanship here, similar to, I remember, Senator Carnahan coming to introduce Attorney General John Ashcroft even though he is the man who'd run against her husband.

I would also note that, while Al Qaida doesn't have POW protection, Geneva still applies, as Secretary Colin Powell has stated very emphatically. I don't want to leave the impression that somehow Geneva doesn't apply just because it involves Al Qaida.

But I'd like to ask you a few questions about the torture memo that is dated back in August 1st, 2002, signed by Assistant Attorney General Jay Bybee. And he's now a federal appellate court judge.

LEAHY: The memo is addressed to you. It was written at your request. And it concludes -- this is actually the memo here; it's a fairly lengthy memo, but addressed "Memorandum for Alberto Gonzales, counsel to the president."

And it says, "For an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

In August 2002, did you agree with that conclusion?

GONZALES: Senator, in connection with that opinion, I did my job as counsel to the president to ask the question.

LEAHY: No, no. I just want to know, did you agree -- I mean, we can spend an hour with that answer. But my -- I'm trying to keep it very simple.

Did you agree with that interpretation of the torture statute back in August 2002?

GONZALES: If I may, sir, let me try to -- I'll try to -- I'm going to give you a very quick answer. But I'd like to put a little bit of context.

Obviously we were interpreting a statute that had never been reviewed in the courts, a statute drafted by Congress. We were trying to interpret -- interpretation of the standard by Congress.

There was discussion between the White House and the Department of Justice, as well as other agencies, about what does this statute mean? It was very, very difficult.

I don't recall today whether or not I was in agreement with all of the analysis. But I don't have a disagreement with the conclusions then reached by the department.

Ultimately, it is the responsibility of the department to tell us what the law means, Senator.

LEAHY: And do you agree today that for an act to violate the torture statute it must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death?

GONZALES: I do not, Senator. That does not represent the position of the executive branch.

As you know...

LEAHY: But...

SPECTER: Let him finish his answer.

LEAHY: But it was the position in 2002?

SPECTER: Wait a minute, Senator Leahy. Let him finish his answer.

GONZALES: Senator, what you're asking the counsel to do is to interject himself and direct the Department of Justice, who is supposed to be free of any kind of political influence in reaching a legal interpretation of the law passed by Congress.

GONZALES: I certainly give my views. There was, of course, conversation and give-and-take discussions about what does the law mean. But ultimately, ultimately, by statute, the Department of Justice is charged by Congress to provide legal advice on behalf of the president.

We asked the question. That memo represented the position of the executive branch at the time it was issued.

LEAHY: Well, let me then ask you, if you're going to be attorney general -- and I'll accept what you said and let's put on the hat if you're confirmed as attorney general -- the Bybee memo concludes the president has authority as commander in chief to override domestic and international laws prohibiting torture and can immunize from prosecution anyone -- anyone -- who commits torture under his act. Whether legal or not, he can immunize them.

Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief-override and immunize acts of torture?

GONZALES: First of all, Senator, the president has said we're not going to engage in torture under any circumstances. And so you're asking me to answer a hypothetical that is never going to occur. This president has said we're not going to engage in torture under any circumstances, and therefore that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn.

LEAHY: But I'm trying to think what type of opinions you might give as attorney general.

Do you agree with that conclusion?

GONZALES: Sir, again...

LEAHY: You're a lawyer, and you've held a position as a justice of the Texas Supreme Court. You've been the president's counsel. You've studied this issue deeply. Do you agree with that conclusion?

GONZALES: Senator, I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional.

And that is a position and a view not just of this president, but many, many presidents from both sides of the aisle.

Obviously, a decision as to whether or not to ignore a statute passed by Congress is a very, very serious one, and it would be one that I would spend a great deal of time and attention before arriving at a conclusion that, in fact, a president had the authority under the Constitution to...

LEAHY: Mr. Gonzales, I'd almost think that you'd served in the Senate you've learned how to filibuster so well. Because I asked a specific question: Does the president have the authority, in your judgment, to exercise a commander-in-chief-override and immunize acts of torture?

GONZALES: With all due respect, Senator, the president said we're not going to engage in torture. That is a hypothetical question that would involve an analysis of a great number of factors.

And the president...

LEAHY: How about this way: Do you think that other world leaders would have authority to authorize the torture of U.S. citizens if they deemed it necessary for their national security?

GONZALES: Senator, I don't know what laws other world leaders would be bound by. And I think it would -- I'm not in a position to answer that question.

LEAHY: Well, the only reason I ask this is this was the -- this memo was DOJ policy for a couple years. And, you know, it sat there from some time in 2002 and then just a couple weeks before 2005, late on a Thursday afternoon, it seems to be somewhat overwritten. Of course, that may be coincidentally because your confirmation hearing was coming up.

Do you think if the Bybee memo had not been leaked to the press -- because it had never been shown to Congress, even though we'd asked for it -- do you think it would still be the overriding legal opinion?

GONZALES: Sir, that I do not know.

I do know that when it became -- it was leaked, we had concern about the fact that people were assumed that the president was somehow exercising that authority to engage in torture. And we wanted to clarify the record that the president had not authorized or condoned torture, nor had directed any actions or excused any actions under the commander-in-chief-override that might otherwise constitute torture.

GONZALES: And that was a reason that decision was made to delete that portion of the...

LEAHY: Well, do you think there's any connection whatsoever between the policies which actually you helped to formulate regarding the treatment interrogation of prisoners, policies that were sent out, Department of Defense and elsewhere, and the widespread abuses that have occurred?

Do you acknowledge any accountability for such things, any connection?

GONZALES: Senator, as I said in my remarks, I categorically condemn the conduct that we see reflected in these pictures at Abu Ghraib.

I would refer you to the eight complete investigations of what happened at Abu Ghraib and Guantanamo Bay, and there are still three ongoing. I'm talking about the Taguba report, the Fay-Jones-Kerr (ph) report, the Schlesinger report, the Navy I.G., the Army I.G., Jacoby, Ryder, Miller, all of these reports.

And if you listen to the press briefings given in connection with the rollout of these reports, they do conclude that with respect to the conduct, not reflected in the photos, not the conduct that we find the most offensive, but conduct related to pure interrogations, that there was some confusion...

LEAHY: The same report you talk about say the Department of Defense relied on the memo, is quoted extensively in the DOD working report on interrogations. That report has never been repudiated, so apparently they did rely on the memo. And when we find out about the abuses, we never find out from the administration, we find out because the press reports them.

Is there any accountability here anywhere?

As I mentioned earlier, my son was in the military. He was held to very, very strict standards.

LEAHY: He's trained for combat, held to very, very strict standards. The vast majority of the men and women in the military are held to those same strict standards.

I'm just trying to find out where the accountability is for this terrible blot that you and I both agree is a terrible blot on the United States.

GONZALES: I believe that is a very good question, Senator. And that is why we have these eight completed investigations and these three pending investigations. And while we've had four hearings involving the secretary of defense, you've had 18 hearings involving the deputy secretary, undersecretary of defense, you've had over 40 briefings with the Congress, because we care very much about finding out what happened and holding people accountable.

Unlike other countries that simply talk about Geneva, if there is an allegation that we've done something wrong, we investigate it. We're very serious about our commitments, our legal obligations in Iraq. And if people have done things that they shouldn't have done in violation of our legal obligations, they are going to be held accountable.

SPECTER: Senator Hatch?

HATCH: Well, thank you, Mr. Chairman.

Welcome to the committee, Judge Gonzales and your family. We welcome your family, your wonderful wife, your tremendous mother, brother, mother-in-law. We're really happy to have all of you here. And I hope that this will be not too unpleasant a hearing for you.

You've acted, I think, with the highest honor as the White House counsel. I know that because I've worked very, very closely with you all these years. And I have tremendous respect for you, not only as a human being and for your ethics and high standards, but also as an attorney and as someone who I believe has tried to give the president the best advice you and your staff have been able to give.

You know, this is one of the highest positions in our country's Cabinet -- in the president's Cabinet. It does require a person of deep commitment to the principle of equal justice under the law, and I know that you have that commitment and you'll make it.

I've worked so closely with you, I know firsthand the competency of Judge Gonzales and that he does believe in equal justice for all.

HATCH: I also know that you have the ability to make a very outstanding attorney general of the United States.

Your whole life has been a success story. You've already had a distinguished career as an attorney, judge and civil servant. You made much of the opportunities that you've had by your education at Rice University and, of course, the Harvard Law School.

And I think your background and experience enables you to bring an important set of perspectives to the administration of justice in the Department of Justice.

So I stand ready and willing to help you, Judge Gonzales, in carrying out your new responsibilities.

And I think the American people would expect nothing less than equal justice for all people, and fair justice at that.

Now, I see eye on eye with you on many issues. We've had our differences, but in every case that we've had differences, you have always spoken in a forthright and decent manner, and you've been willing to discuss the issues with me and I think others on this committee.

Now, you're going to be asked some tough questions today and that is as it should be, I suspect.

I think today's hearing is certainly going to dwell to a large degree on ongoing public policy on that debate on how a democratic society with a long tradition of protecting civil liberties should conduct itself when it finds itself threatened and attacked by terrorist groups and individuals who will stop at literally nothing to destroy our way of life and who do not represent a particular country, do not wear uniforms, do not abide by international principles and who really are rogue in every sense of that term.

Now, it's my hope that in addition to providing an accurate record about Judge Gonzales' qualifications to serve as attorney general, one of the outcomes of today's hearing will be to educate the committee and the public about the facts of what actions were taken and were not taken with respect to the treatment and interrogations of various classes of individuals who have been detained and taken into custody by the United States as part of our response to the horrific 9/11 terrorist attacks on America.

Now, you have a big job ahead and I personally know that you're capable and you are up to doing that job very well.

HATCH: Now, let me just say, before I ask some questions of Judge Gonzales, I'd like to just take this opportunity to once again recognize the hard work, the dedication and many accomplishments of our current attorney general, John Ashcroft. He has been a terrific attorney general. He's done a terrific job down there, and I think the way crime has come down and a lot of other things have happened for the betterment of the country are, frankly, because of his leadership.

Frankly, it has not been lost on me that many of those who are opposing you today are people who have, in many respects, unfairly vilified the current attorney general over the last four years.

Now, let me just ask some questions by reviewing some of the key points with respect to the treatment of detainees.

Like most Americans, I was appalled by the abuses at Abu Ghraib.

Some have stated that the president's February 7th, 2002, memorandum is somehow responsible for the abuses at Abu Ghraib, at that prison facility in Iraq. But isn't it true that the February 7th, 2002, memorandum actually makes clear that the Geneva Conventions do apply in both Afghanistan and Iraq?

GONZALES: Senator, I don't recall that the memo actually talked about Iraq.

There was a decision by the president that Geneva would apply with respect to our conflict with the Taliban. However -- and I believe there's little disagreement about this as a legal matter -- because of the way the Taliban have fought against the United States, that they forfeited their right to enjoy prisoner of war legal protections.

There was never any question about whether Geneva would apply in Iraq. There was no decision for the president to make. Iraq was a signatory to the Geneva Convention so there was no decision for the president to make.

There was no decision by the Department of Justice as to what kind of techniques should be approved with respect to interrogations in Iraq, because the understanding throughout the administration was the Geneva Conventions apply in Iraq.

HATCH: Well, isn't it also true that the president's February 7th, 2002, memorandum, which is entitled "Humane Treatment of Al Qaida and Taliban Detainees," also requires American forces to treat all detainees humanly regardless of whether the Geneva Conventions apply?

HATCH: Isn't that true?

GONZALES: That is correct. The president gave a directive to the military that, despite the fact that Geneva may not apply with respect to the conflict and the war on terrorism, it is that everyone should be treat humanely.

HATCH: And that was more than two years ago.

GONZALES: That is correct.

HATCH: Am I correct in my understanding that at no time did the president authorize the use of torture against detainees, regardless of any of the legal memoranda produced by various entities of the U.S. government, including the August 2002 Department of Justice memo, the so-called Bybee memo?

GONZALES: Senator, the position of the president on torture is very, very clear, and there is a clear record of this. He does not believe in torture, condone torture; has never ordered torture. And anyone engaged in conduct that constitutes torture is going to be held accountable.

HATCH: So that's never been a problem with regard to the president or you as his adviser.

GONZALES: Absolutely not, Senator.

HATCH: OK.

As counsel to the president of the United States, is it your responsibility to approve opinions issued by the Department of Justice?

GONZALES: No, sir. I don't believe it is my responsibility, because it really would politicize the work of the career professionals at the Department of Justice.

I know that some have been critical of my actions in not trying to force the opinion a certain way, people that are concerned about certain sections of that opinion, but we have to be very, very careful here. When you use the White House as a shield, it can also be used as a sword. It can be used as a sword to force an opinion to reach out an outcome that would be politically advantageous to the White House, and we don't want that to happen.

And so I take my responsibilities very seriously in respecting the role of the Department of Justice, given to the department by Congress, to decide for the executive branch what the law requires.

HATCH: In fact, the Bybee memo was actually withdraw by the Department of Justice in June of 2004. Am I right on that?

GONZALES: The opinion was withdrawn, yes, sir.

HATCH: The Bybee memo was issued, I believe, six months after the president issued his February 7, 2002, memo requiring all detainees to be treated humanely, is that correct?

GONZALES: That is correct. It has always been the case that the military will treat detainees humanely, consistent with the president's February order.

HATCH: So that memo did not overrule what the president's -- what the 2002 memo actually said?

GONZALES: Of course not.

HATCH: That's right.

Well, let me just -- I think my time is up, as well.

And I just want to compliment you. Knowing you personally and having served with you and having worked intimately with you over the last four years, I'm going to compliment you for the professional manner in which you've conducted yourself and your staff, as well. You've done a terrific job, and I just want to let everybody know how much I feel about the job you've done.

Thank you, Mr. Chairman.

SPECTER: Thank you.

Senator Kennedy?

KENNEDY: Thank you, Mr. Chairman.

And welcome, Mr. Gonzales. And welcome to your family.

I'll include, if I could, Mr. Chairman, my opening statement and comment that recognizes the extraordinary achievements and accomplishments of the nominee.

SPECTER: Without objection, they will be made part of the record.

(CROSSTALK)

KENNEDY: ... incredibly impressive.

In that I've said, as I mentioned to the nominee, he understands full well our responsibilities in the points of inquiry that we're 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 at the time that when 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 in the report before a copy was actually provided to the Congress.

KENNEDY: 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's come up from the administration, including the president of the United States. This committee, the Armed Services Committee, has asked for these memos. We have depended upon what's been leaked, what's been put on the Internet and what's been obtained in the Freedom of Information and by various attorneys.

So there's a certain kind of sense by many of us here that the administration -- and you're the point person on the administration -- has not been forthcoming on the whole issues of torture, which not just was committed at Abu Ghraib, but is happening today -- today.

Now, the Bybee torture memoranda, written at your request -- and I'd be interested in your reactions to this -- made abuse of interrogation easier, it sharply narrowed the definition of torture and recognized this new defense for officials who commit torture.

For two years -- for two years -- from August 2002 to June 2004, you never repudiated it. That's the record. You never repudiated it.

It was written at the CIA's bidding, and you can clarify that if that's false. We can all assume was promptly provided to the CIA as written.

Its principles were adopted in the military by the Defense Department's working group report. I've got it right here, and I'll 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.

KENNEDY: And this person assumes that you've leaked -- the Bybee report has already gone to the CIA in its complacency (ph).

Now, according to the Defense Department's own investigation, you asked -- you referred to Senator Leahy earlier, ask 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, that testified in the Armed Services Committee, "the abusive policies and practices in Afghanistan and Guantanamo migrated to Iraq."

You've never repudiated the Bybee memo 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 didn't even apply to the CIA -- didn't even apply to the CIA.

Abuses are still being reported. And you were warned by Secretary Powell -- 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.

Now, I'm 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 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 1, and passed the Foreign Relations Committee unanimously.

Republicans have been concerned about torture as Democrats, and we can get on -- we'll 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.

KENNEDY: The article states that you raised no objections.

Now, without consulting military and State Department experts -- they were not consulted. They were not invited to important meetings that might have been important to some. We know of what Secretary Taft has said about his exclusion from these.

Experts in laws of torture in war proved the resulting memo gave CIA interrogators the legal blessings they sought.

Now, was it the CIA that asked you?

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 terrorism 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 in 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?

KENNEDY: So the legal -- you asked at their request.

As I understand it -- if this isn't correct, then correct me. I'm not attempting -- or if there are provisions in that comment, I meant, here that are inaccurate, I want to be corrected. I want to be fair on this.

But is my understanding, certainly 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 an members of the OLC while they were drafting the memoranda? Did you ever suggest to them that they ought to lean forward on this issue about the supporting the extreme uses of torture? Did you ever, as reported in the newspaper?

GONZALES: Sir, I don't recall ever using the term, sort of, "leaning forward" in terms of (inaudible) with the law.

KENNEDY: Did you talk to the OLC during the drafting of it?

GONZALES: There are always discussions -- not always discussion -- but there is often discussions between the Department of Justice and OLC and the counsel's office regarding legal issues.

GONZALES: I think that's perfectly appropriate. This was an issue that the White House cared very much about, to ensure that the agencies were not engaged in conduct...

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 different -- six or seven of the laws on the conventions on torture and the rest of that. 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...

GONZALES: To understand their views about the interpretation...

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's what the newspaper report. Your testimony is that you did talk to them, but you can't remember what you told them.

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 looked to the Department of Justice to tell us what would, in fact, be within the law.

KENNEDY: Mr. Chairman, I see my time is going to be up. What I'd like to do is include in the record the Bybee memoranda and the Defense Department working group report, the analysis where they used virtually word by word the Bybee amendment 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.

SPECTER: Without objection, they will be made part of the record.

Senator DeWine?

DEWINE: Thank you, Mr. Chairman.

Judge Gonzales, thank you very much for being with us today.

Judge, every attorney general is -- or most attorney generals are known for something.

Robert Kennedy was known for his crusade in regard to organized crime. And then, of course, later on we remember him for civil rights.

Attorney General Barr for his efforts in regard to guns and gangs.

DEWINE: Attorney General Reno, her efforts in regard to children, domestic violence.

Attorney General Thornburgh, internationalization of crime in the area of drugs, organized crime.

We could go on and on.

Four years from now, what do you want to be remembered for, excluding, if I could, the war on terrorism?

GONZALES: Well, Senator, I think the Department of Justice is somewhat unique from other agencies.

I'm not sure that an attorney general can afford to focus on providing or dispensing justice in one area to the exclusion of the other. And so I would hope that certainly at the end of four years it would be said that, "Al Gonzales did the very best he could, and hopefully was successful in ensuring that there was justice provided to Americans all across the spectrum on a wide variety of issues."

I also -- it is my sincere hope that I would be remembered, if I am confirmed today, as someone who renewed the vitality, the importance of the work that goes on at the Department of Justice.

I know that they are some wonderful people who come to work every day and they come to work with one goal in mind, and that is the pursuit of justice for all Americans.

And I feel a special obligation, maybe an additional burden coming from the White House to reassure the career people at the department, and to reassure the American people that that I'm not going to politicize the Department of Justice.

But with respect to specific areas that I probably would like to have special emphasis on, of course the first one is the war on terror. I also, because of my background, believe very much in the protection of civil rights, the protection of our voting rights and the protection of our civil liberties.

I continue to believe that we have too many drugs in our society, and that should be a focus.

I am concerned about the violent crime in our society. I am concerned about the use of certain kinds of weapons in connection with those crimes.

I think obscenity is something else that very much concerns me.

GONZALES: I've got two young sons. And it really bothers me about how easy it is to have assess to pornography.

And so those are a few things that I would be focused on.

But, again, I think the Department of Justice is unique, and that my goal, as impossible as it may be or it may seem, is to try to ensure that justice is administered across the spectrum.

DEWINE: Judge, there never is enough resources for any prosecutor. I was a county prosecutor. We never had enough resources, or we didn't think we did anyway. You pick and choose. You make decisions.

The attorney general has that problem. U.S. attorneys have that problem every day.

Congress really hasn't helped. We haven't helped. We've increased the number of federal crimes. We keep doing it every Congress. We have mandatory minimums. Most attorney generals have said that U.S. attorneys must charge the highest possible offenses.

So the local U.S. attorneys are overworked. They have to, frankly, pick and choose their cases.

Then we had September 11th and we had a whole new emphasis, emphasis on the war on terrorism.

From previous conversations with your predecessor and with the FBI and with published documents from the attorney general's office, it's clear that the attorney general and the Justice Department is not doing some things, not prosecuting certain cases that you were prosecuting in the past.

How are you going to set your priorities? And how are you going to deal with the fact that you are not prosecuting some things that you were prosecuting in the past?

For example, you're not putting the emphasis on drug cases that you were able to do in the past. And this is not a criticism. I'm not saying if I was attorney general, I'd be doing it any differently.

DEWINE: But to be attorney general is to choose, to be attorney general is to make policy, to be attorney general is to tell every U.S. attorney in this country, "This is what's important and this is what's not so important."

That's what I'm trying to get from you today, and I need a little more specifics from you if I could.

GONZALES: Senator, I wouldn't be so arrogant as to assume today that I have all the information that I would need to make that kind of prioritization.

DEWINE: No, but, Judge, you've been in the White House in a very high position for four years. You've been involved in the justice system for four years, and prior to that at the state level you were intimately involved as well. So you have a great background for this and would like your comments, sir.

GONZALES: Well, an initial comment I would make is you talked about the attorney general being the role of, sort of, a policy-maker.

As a member of the president's Cabinet, I am a member of the president's team, and so that he will have certain priorities. And obviously his priorities will become my priorities in terms of policy- making, not in the area of law enforcement or in prosecution, but in the area of making policy.

I think that, once again, we'll have to call upon our continued cooperation with state and locals in order to maximize those relationships to ensure that we have sufficient resources. And I understand that they have the same problem in terms of lack of adequate resources to prosecute all kinds of crimes.

But I think cooperation, not just with state and locals, I think there needs to be greater cooperation within the department itself. There needs to be more sharing of information in order to maximize efficiencies that are possibly there.

But, Senator, I don't have specific ideas today about what kinds of priorities would exist for me. I spoke earlier about the types of issues that I would have special attraction and appeal to me, and I suspect that those will be issues that will ultimately become priorities in a Gonzales Department of Justice, if confirmed.

DEWINE: Well, Judge, I think one of the things that is certainly -- we look for and certainly I look for from the next attorney general is candor.

DEWINE: And I think what would be very helpful is candor to the American people and explaining -- as the war on terrorism continues, to explain to the American people what the Justice Department is not doing and what you do not have the ability to do anymore. So that we can make policy choices, the Congress and the administration and the American people can make policy choices and to come to Congress and say, "We're not doing this anymore. This is an area we can't do anymore because of the war on terrorism."

And you don't have to even get into specifics today. I'm just asking if you agree with that, and if you will make a commitment to us today when you come to this committee and testify, will you be honest with us and tell us, "Senators, we're not doing this because we're doing something else."

GONZALES: Absolutely, Senator, I will make that commitment.

Let me tell you that it would be a priority of mine to not only inform but educate, not only this committee, but the American people, about what the department is doing and why we're doing it.

Because there's a great deal of misinformation and fiction out there about what the department is doing. And I think that one of my goals should be is to educate and inform this committee and the American people about what the department is doing and why we're doing it and why what we're doing is, in fact, lawful.

DEWINE: You talked about policy. I understand the president sets the policy, and that is absolutely true.

But ultimately, you know, whether you call it policy or whatever you want to call it, attorney general and the president, you're making choices about what the emphasis is.

One final question. I see the light is on.

The area of technology is something that is very near and dear to my heart. You and I have talked privately about this.

I'm wondering if you could just give us your commitment that the updating of the FBI's technology, which we all have heard so much about as being some a problem, will be one of your priorities and something that when you can in front of this committee, you will report to us and that you will give us an accurate description of how that updating of the FBI's computer systems and its entire technology is coming.

DEWINE: It is something that I think every member of this panel is very, very concerned about and every member of Congress is concerned about.

GONZALES: Absolutely, you have my commitment on that, Senator. I do know that it is the highest priority for Director Mueller.

I said earlier that the war on terror really is a war about information. We have to have the most updated technology in order to gather up that information, to analyze that information. So you do have my commitment.

DEWINE: I appreciate it. And we need to know when you don't have the resources to get it done. And, again, in regard to candor, you have to be candid with us and say, "We don't have enough money, we don't have the resources," when you don't in that area.

Thank you, Mr. Chairman.

GONZALES: I won't be shy about that, Senator.

SPECTER: Senator Biden?

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's 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)

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

SPECTER: Thank you very much, Senator Biden. Thank you.

BIDEN: Judge, 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. I don't know of anybody who's announced they're against your being the next attorney general. Even those who have doubts about you say you're going to be confirmed. And so this is not about the president and his judgment.

BIDEN: It is appropriate for us to understand the president is not a lawyer. He doesn't know from shinola about the treaty.

By the way, nor do previous presidents. Nor do previous presidents. That's why they have legal advisers. That's why they hire brilliant graduates from Harvard Law School and former judges to advise them.

I'm being deadly earnest here. It's not a joke.

So I don't judge the president on whether or not he supports or didn't 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 doesn't. That's irrelevant here.

And, Judge, this is not about your intelligence. This hearing's not about your competence. It's not about your integrity. It's about your judgment, your candor. Because you're going to be making some very difficult decisions as attorney general, as every attorney general has, decisions on matters we can't even contemplate now.

When I got here in 1972, the idea that anybody would be making judgments about cloning was bizarre.

Within four years, you're going to make judgments on issues we haven't even contemplated.

So I want to know about your judgment. It's your judgment.

And we're going to -- you're going to be the A.G. You're 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.

GONZALES: Yes, sir.

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 don't want to comment on that law or interpret it because I may have to judge it."

As the attorney general, you're 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're in no way -- as you implied to two of the questioners, you're in now way jeopardizing a future case. That's malarkey, pure malarkey.

So we're looking for candor, old buddy. We're looking for you when we ask you a question to give us an answer, which you haven't done yet.

I love you, but you're not very candid so far.

(LAUGHTER)

And so please do not use the strawman, "Well, as the future attorney general, I may not be able to comment on what that law means." You are obliged to comment.

BIDEN: It's your job to make a judgment before a case is taken. That's your judgment we're looking at.

And so, it seems to me that -- and the other point I'd like to raise, because I'm only going to get to the questions in my second round really, is my good friend from Texas. He held up three reports who didn't say what they said he said. The three reports that he held up that I'm aware of, maybe four, saying -- 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's 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, quote, "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," quote, "using reasoning from the president's memo of February 7th, 2002."

So I say to my friend from Texas, that's why this is relevant.

The very report cited say that -- and I won't go through them all -- the Red Cross report -- the Red Cross did not sign off and say what -- that, you know, the conduct or the recommendations or the memorandum were in fact appropriate.

And so I won't 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 four years, the judgment you're going to give a president, which he understandably should rely upon.

BIDEN: This is not a man who has your legal credentials. That's why he has you, to make a recommendation to him.

And it's appropriate for him to accept that recommendation unless on its face an average citizen or an informed president who's not a lawyer would say, "No, that can't make any sense."

So that's why we're worried about this. That's what this is about.

And there is, sort of, a -- there is a split here in the Congress, there's a split in the country about what's appropriate in this time of dire concern about terror.

You know, there was that play we've all seen, "A Man for All Seasons," and there's an exchange in there where Sir Thomas More is engaging Roper, and Roper says -- a young man came to seek a job -- he said, "Arrest him. He means you harm." And More said, "He's 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 law is 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's the fundamental principle we debate among ourselves here, no matter how you cut it. And that's 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'm 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 -- says basically, "Look, you go forward with the line of reasoning you guys are using and you're going to put my former troops in jeopardy."

BIDEN: This is about the safety and security of American forces.

And he says in here what you're 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're signing off, way beyond what the military manual for guidance of how to deal with prisoners says."

And so the point I'm trying to make here -- and I will come back with questions. If I have any time -- well, I don't have any time -- is 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 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 the 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's 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's we're trying to do.

And so when I get to ask my questions, I hope you'll be candid about it.

Because -- not that it's relevant -- I like you. I like you. You're the real deal.

SPECTER: Senator Biden, your red light is on.

BIDEN: My red light is on.

(LAUGHTER)

Thank you.

SPECTER: Judge Gonzales, while Senator Biden is awaiting round two to formulate a question...

(LAUGHTER)

... I think you ought to be given an opportunity to respond to Senator Biden's observations and implicit, perhaps, two dozen questions.

So the floor is yours.

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

BIDEN: Let me give you a copy of it.

Just for the record, Mr. Chairman, it's dated January 11th, 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's what I'm referring to.

GONZALES: There was a great deal of debate within the administration -- as that memo partly reflects -- about what would be 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.

BIDEN: No, it's not.

GONZALES: Of course not.

And reasonable people can differ.

In the end, it is the Department of Justice who is charged by statute by the definitive legal advice on behalf of the executive branch to the president of the United States.

BIDEN: With due respect, that doesn't matter. I don't care about their judgment. I'm looking at yours.

GONZALES: Well, sir, of course I conveyed 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 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.

SPECTER: Thank you, Judge Gonzales.

Senator Kyl had to depart earlier this morning for his leadership role on a congressional delegation going to Israel, so he will not be with us today, and I wanted to put that explanatory note in the record.

Senator Sessions?

SESSIONS: Thank you, Mr. Chairman.

And I'd like to join in congratulating you on this office. And you are uniquely qualified and capable of handling this docile committee which you've inherited.

Judge Gonzales, I'd like to get a few things straight here.

I spent 15 years in the Department of Justice and several years as an attorney general of the state of Alabama, and I have some appreciation for the different roles that are involved here.

You are counsel to the president of the United States. Is that correct?

GONZALES: That is correct, Senator.

SESSIONS: You didn't supervise the Department of Justice, did you?

GONZALES: That is correct, Senator.

SESSIONS: You were not senatorially confirmed?

GONZALES: That is correct, Senator.

SESSIONS: And you just work for the president and give him advice whenever he asks for you and help provide him assistance whenever he asks you to do so.

GONZALES: And I will just -- that is correct, sir.

And I will also add that, with respect to significant legal decisions that the president has to pass judgment on, my advice is always influenced and it always is informed by the advice given to me by the Department of Justice.

SESSIONS: Now, the Department of Justice, under the Judiciary Act of 1789, is empowered by statute to issue opinions on various questions of law.

GONZALES: That is correct, Senator.

SESSIONS: And they have an Office of Legal Counsel...

GONZALES: Yes, sir.

SESSIONS: ... that really specializes in that on behalf of the attorney general.

GONZALES: The Office of Legal Counsel has been delegated by regulation the authority of the attorney general to provide legal advice to the executive branch.

SESSIONS: Now, the president of the United States is executing a war on terrorism after 3,000 of our people have been killed by what can only be described as unlawful combatants. And it was a difficult, tough time, and you were concerned and the president was deeply concerned that there may be other groups of unlawful combatants that had saboteurs that were in the United States planning further attacks to kill more American citizens. And that's the way it was, isn't it?

GONZALES: The president was very concerned about protecting this country from future attacks and to doing everything we could do within the law to protect this country from future attacks.

SESSIONS: And in the course of all of that, agencies that we had out there, their lives at risk, military and other agencies, to serve our people, to protect our people, asked the president what the law was with regard to their rights and duties and responsibilities of interrogating people they've apprehended.

That came to your attention, I guess, as counsel to the president.

GONZALES: My understanding is that the people in the agencies were very concerned about -- they understood that they had a direction from the president to do what they could to protect this country within the limits of the law. And they wanted to clearly understand what those limits were.

SESSIONS: And so you didn't undertake to give them an off-the- cuff opinion, as Senator Biden suggests you ought to be able to do today on any question he would desire to ask you, I suppose.

GONZALES: I hope not, sir. I have been criticized, quite frankly, for going too much to the Department of Justice and making sure that the legal advice we give to the president is the right advice. That's very important to me.

I understand that the Office of Legal Counsel, they have the expertise, institutional history, the institutional knowledge about what the law is. And so I have a great deal of respect for that office and rely upon that office in the advice that I give to the president of the United States.

SESSIONS: It's staffed with career people who have dealt with these issues for many, many years, certainly.

And you -- when this issue arose, I think you did the absolutely proper thing: You asked the entity of the United States government that is charged with a responsibility of making those opinions, you asked them to render an opinion.

GONZALES: Absolutely, Senator.

We want to get it right. It also provides, quite candidly, as the lawyer for the president, protection for the president. We want to make sure the president does not authorize or somehow suggest conduct that is unlawful.

And so I felt that I had an obligation as a prudent lawyer to check with the professionals at the Department of Justice.

SESSIONS: Well, I think you did and I think that was the right step.

Now, it has been suggested that this was your opinion. It's your opinion. You asked for this opinion, as if you asked for them to say precisely what they said.

You asked for them to give an opinion on the legal question involved. You didn't ask them to give an opinion that you wanted. Is that correct?

GONZALES: As I said in my earlier testimony, there was give and take. There were discussions about the opinion. But ultimately, the opinion represents the position of the Department of Justice. And as such, it's a position that I supported at the time.

SESSIONS: And there's no doubt in anyone's mind, the Office of Legal Counsel or the attorney general, that that opinion was one that they worked on, they debated internally, and when they put their name on it, it was their opinion. Isn't that correct?

GONZALES: It was the work of the Department of Justice which, again, reflected the position of the executive branch.

SESSIONS: The official position.

Now, the president of the United States -- well, let me follow this up, having been an attorney general and been involved in the Department of Justice as a part of the executive branch, as you are part of the executive branch, and lawyers in the Department of Justice have to be very careful, do they not, when they issue an opinion that they not circumscribing legitimate constitutional powers that belong to the executive branch? And they're going to be careful not to render an opinion that would remove constitutional powers that the president legitimately has.

GONZALES: That is correct.

My view about the Office of Legal Counsel is to call them as they see them. I mean, interpret the law and give us their best judgment about what the law is.

SESSIONS: I agree with that.

But once this opinion came in from the Office of Legal Counsel and the president and you, I'm sure, reviewed it, he issued some orders, it seemed to me, that were far less expansive than the authority the legal counsel said he had.

GONZALES: Well, I'm not sure which orders you might be referring to.

Let me emphasize for the record that the president was not involved personally in deciding which kinds of methods could be used to question terrorists who might have information that might save American lives. The president was not involved personally in connection with that.

What he expected, and what he deserved, and I think what he got was people within the administration trying to understand what the law was and conforming their conduct to legal requirements.

SESSIONS: And the opinion of the Department of Justice legal counsel really isn't policy, is it? It's just the opinion of the Office of Legal Counsel.

GONZALES: At the end of the day, again, as I described to you, I expect the Office of Legal Counsel to give me their best judgment, their best interpretation of what the law is.

SESSIONS: And the president sets the policy based on his judgment after having received that advice?

GONZALES: That is correct.

SESSIONS: Now, with regard to Al Qaida, I don't think there's anyone on this committee, on either side of the aisle, that would say that Al Qaida represents a lawful combatant that is therefore entitled to the full protections of the Geneva Conventions, would they?

I mean, that's pretty well undisputed, that they are not representatives of an organized state and that they don't carry arms openly and that they don't -- and they clearly do not follow the laws of warfare in the surreptitious methods by which they bomb innocent civilians.

GONZALES: Senator, that is correct.

Senator Biden spoke earlier about my judgment.

My judgment was, based on reading the words of the Geneva Conventions, is that it would not apply to Al Qaida. They weren't a signatory to the convention, therefore it didn't seem to me that our conflict with Al Qaida could be covered.

But obviously, the decision by the president as to the fact that Geneva would not apply, was not just based on my judgment. That was the considered judgment of the Department of Justice.

SESSIONS: And he was clearly correct and clearly consistent with ex parte Quirin, the Supreme Court case during World War II.

GONZALES: That is correct, sir.

SESSIONS: President Roosevelt captured some German saboteurs inside the United States and had a trial or a hearing in the Department of Justice or the FBI building, and executed them. And I don't think the public even knew about it until after they had been executed.

So an unlawful combatant is a different matter than that.

Now, in Iraq, you've said the Geneva Conventions would apply, basically.

SPECTER: Senator Sessions, your red light is on, but if you go ahead and finish your sentence quickly.

SESSIONS: And truth be known, a number of those people involved in Iraq really shouldn't qualify. But the president's really gone further than the law requires, it seems to me, in granting them privileges that he didn't necessarily have to do as a matter of affecting his policy of humane treatment.

GONZALES: Senator, I think it's more accurate to say that the administration policy is and always has been is that in our conflict with Iraq, Geneva does apply and we are bound by the requirements of the Geneva Convention.

Iraq is a signatory to the Geneva Conventions and there was never any question, any debate that I'm aware of as to whether or not Geneva would apply with respect to our conflict in Iraq.

SESSIONS: But Zarqawi people don't strictly qualify, in my opinion, as a lawful combatant.

SPECTER: Senator Kohl?

KOHL: Thank you very much, Mr. Chairman.

And I too want to congratulate you on your ascension to the chairmanship of this committee.

I've had the privilege of working with Senator Specter now for well over a dozen years and I can attest to his skill and his perspective that I believe will enable us to proceed in an orderly and in a collaborative fashion.

SPECTER: Thank you.

KOHL: I also would like to welcome you to this committee, Mr. Gonzales.

As you know, we've had an opportunity to work together on several different issues over the years and I have come to respect you also, and I believe if you're confirmed that you will do a good job as attorney general of the United States.

Judge Gonzales, the 9/11 Commission's report recognized that winning the hearts and the minds of the Arab world is vital to our success in the war on terror.

Photographs that have come out of Abu Ghraib have undoubtedly hurt those efforts and contributed to a rising tide of anti- Americanism in that part of the world.

Secretary of State Colin Powell and others raised concerns about the decision not to apply the Geneva Conventions, some even suggesting that it could well undermine U.S. military culture. And we now know that those concerns in large part or significantly were well founded.

When drafting your recommendations for the president on the application of Geneva Conventions, did you ever consider the impact that this could have on winning the hearts and minds of the Arab world in the war on terror?

KOHL: And in light of what has happened, if you could make the recommendation all over again, would you do something different than what you did?

GONZALES: Senator, that is a very good question, and thank you for asking that.

I think the decision not to apply Geneva in our conflict with Al Qaida was absolutely the right decision, for a variety of reasons.

First of all, it really would be a dishonor to the Geneva Convention. It would honor and reward bad conduct. It would actually make it more difficult, in my judgment, for our troops to win in our conflict against Al Qaida. It would limit our ability to solicit information from detainees. It would require us to keep detainees housed together where they could share information, they could coordinate their stories, they could plan attacks against guards. It would mean that they would enjoy combat immunity from prosecutions of certain war crimes.

And so, for a variety of reasons, it makes absolutely no sense.

In additional to that, Senator, it is contrary to decades of executive branch position. There was an attempt in 1977, Protocol One, to provide prisoner of war legal status to terrorists.

Now, that protocol included some wonderful humanitarian provisions dealing with extraditions and hostages and things of that nature. But the United States and many other countries never ratified that protocol, and the reason is because the protocol arguably provided prisoner of war legal status to terrorists. And so it has been the consistent executive branch position since then is that we're not going to do that, because it hurts our soldiers, it's contrary to the spirit of Geneva to do so.

And so I do believe the decision by the president was absolutely the right thing to do.

Now, that's not to say that we don't operate without legal limitations and that we don't treat people consistent with our values as Americans. The president was very clear in providing directives that even though Geneva would not apply as a matter of law, that we would treat detainees humanely and subject to military necessity and as appropriate consistent with the principles of Geneva.

In my judgment, there's been a very strong attempt to do so at Guantanamo.

There's been never any question, as I said in response to earlier questions, about whether or not Geneva should apply in Iraq. That's always been the case.

GONZALES: Do I regret the abuses of Abu Ghraib? Absolutely. I condemn them.

Do I believe that they may have hurt us in winning the hearts and minds of Muslims around the world? Yes. And I do regret that.

But one of the ways we address that is to show the world that we don't just talk about Geneva, we enforce Geneva.

And so, as I said in response to an earlier question, that's why we're doing these investigations. That's why you have these military courts martial. That's why you have these administrative penalties imposed upon those responsible, because we want to find out what happened so it doesn't happen again. And if someone has done something wrong, they're going to be held accountable.

KOHL: Well, let me ask you, do you think that what happened at Abu Ghraib was just spontaneous, or do you think that those relatively low-level perpetrators got some sort of a sign from people above them who got signs from people above them that these things would be tolerated? What is your opinion?

GONZALES: Well, we don't know for sure.

First of all, I'm not -- I haven't conducted an independent investigation. We know eight have been completed. There are at least three ongoing. We know that the Congress is conducting, you know, through hearings and briefings -- they're looking at this as well.

As I listen to the briefings of Schlesinger and Fay and Kerr (ph) and people like that about their findings and their reports, they divide up the abuses into two categories. One category is the violent physical abuse and sexual abuse; that's the first category. And the second category are abuses related to interrogation and gathering intelligence that stem from confusion about what the policies and the strictures were.

As to the first category, as I read the briefings, they all seem to conclude that what you see in the pictures -- the most horrific of the abuses that we see, the ones that we all, you know, condemn and abhor, those do not relate to confusion about policies.

GONZALES: Those were not related to interrogations or confusions about what you can do in terms of gathering intelligence.

This is simply people who were morally bankrupt having fun. And I condemn that.

As to the second category, the reports seem to indicate that there was migration. There was migration between what happened in Guantanamo. You had people and standard operating policy that migrated from Guantanamo to Afghanistan and then into Iraq.

And so there was some conclusion about what were the appropriate standards to use in connection with interrogation and in connection with intelligence gathering.

However, as I read the briefings and the reports, they seem to indicate that the reason that the abuses occurred was not because of some decision back in 2001 or 2002, but because of the fact that you had a prison that was out-manned, under-resourced and focused on fighting an insurgency, and they didn't pay enough attention to detainee operations.

There wasn't adequate supervision. There wasn't adequate training about what the limits were with respect to interrogation.

That's how I read the findings and conclusions in some of these reports.

But it's not done yet. Again, there's still ongoing investigations.

And so we have to wait and see...

KOHL: That would seem to indicate -- although we'll see what happens -- that people above the level of those who committed the atrocities are likely -- we'll see what happens -- to escape being held accountable. We'll see what happens.

You and I can't know that right now. But I think I'm getting a drift from you that those people who committed the atrocities were acting on their on. There really wasn't anybody at a higher level who understood and approved, or at least condoned, and that the accountability should be held at that level.

I think the American people by and large, Judge Gonzales, believe that accountability should at least be focused on people above the level of those at that level who committed the atrocities.

What do you think, Judge Gonzales?

GONZALES: I believe that people should be held accountable.

I do think -- and perhaps I misspoke in describing how I reviewed the briefings and how I read the reports.

The reports seemed to indicate that there was a failure. There was a failure of discipline amongst the supervisors of the guards there at Abu Ghraib.

And also, they found that there was a failure in training and oversight at multiple layers of Command Joint Task Force-7.

And so I think there was clearly a failure well above the actions of the individuals who actually were in the prison. At least that's what the report seemed to indicate as I reviewed them.

KOHL: Finally, Attorney General Ashcroft said that he doesn't really believe in torture in the sense that it doesn't produce anything of value. He has said that on the record.

Do you agree with that?

GONZALES: Sir, I don't have a way of reaching a conclusion on that.

All I know is that the president has said we're not going to torture under any circumstances.

KOHL: Well, do you believe that the policy is a correct one, that we never should have had any torture at Guantanamo or at Abu Ghraib, among other reasons because it really doesn't produce anything of value?

GONZALES: Sir, the United States has never had a policy of torture.

KOHL: I thank you, Mr. Chairman.

SPECTER: Senator Graham?

GRAHAM: Thank you, Mr. Chairman.

Congratulations, I think, on chairing this committee.

Monday morning quarterbacking is part of democracy, so just bear with us, because what we're trying to do is figure out how to correct mistakes.

Now, I'm a very ardent supporter of the war. I really do believe if you're 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. And that's not easy, and I believe we've made mistakes along the way.

But one of the reasons that we're talking about this has a lot to do with your confirmation, but really not.

I think we've dramatically undermined the war effort by getting on a slippery slope in terms of playing cute with the law, because it's 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 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's been run has hurt the war effort.

So if we're going to win this war, Judge Gonzales, we need friends and we need to recapture the moral high ground. And my questions are long that line.

To those who think that you can't win a war without -- with the Geneva Convention applying -- I have another role in life, I'm a judge advocate, I'm a reserve judge in the Air Force. I've never been in combat. I had some clients that probably wanted to kill me, but I've 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.

GRAHAM: And I've 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're to follow the law of armed conflict, because that's what your nation stands for, that's what you're fighting for, and you're to follow it because it's there to protect you."

Now, to Secretary Powell. He took a position that I disagree with legally, but in hindsight might have been right.

I agree with you, Judge Gonzales, to give Geneva Convention protection to Al Qaida and other people like Al Qaida 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, 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, was advocating the best sense of who we are as people.

Now, having said that, the Department of Justice memo that we're 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.

GRAHAM: I have read those memos. They're classified for some bizarre reason.

But generally speaking, those memos talk about that if you go the road suggested, you're making a U-turn as a nation; that you're 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's OK to ask for legal advice. You should ask for legal advice.

But this legal memo, I think, put our troops at jeopardy because the Uniform Code of Military Justice specifically makes it a crime for a member of our uniform 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 torturous view of torture.

Will you be willing to do that here today?

GONZALES: Senator, there is a lot to respond to in your statement.

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, trying to find out what happened at Abu Ghraib, they are beheading people like Danny Pearl and Nick Berg.

We are nothing like our enemies, Senator.

GRAHAM: Can I suggest to you that I didn't say that we are like our enemies; that the worst thing we did when you compare it to Saddam Hussein was a good day there? But we're not like who want to be and who we have been.

And that's the point I'm trying to make, that when you start looking at torture statutes and you look at ways around the spirit of the law, that you're losing the moral high ground.

And that was the counsel from the secretary of state's office that once you start down this road that it's very hard to come back.

GRAHAM: 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 I'll 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're naive and weak. I can assure you, sir, I'm not naive and weak.

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 that, reading the Supreme Court precedent of Johnson v. Eisentrager, that a non-American enemy combatant held outside the United States did not have the right to file a habeas challenge.

GRAHAM: It's a correct position to take, but you lost. Now, here's my question: What do we do now that you lost?

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

GRAHAM: Now, how is that being worked? Who's working on that?

GONZALES: That is being worked through Secretary England. And the Navy has assumed responsibility for standing up 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.

GRAHAM: I would like to be informed, if possible, in an appropriate way what the executive department is doing to fill in that gap. I don't know if we need legislative action.

But the reason I'm going to vote for you is because I think I 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.

GRAHAM: I think Geneva Convention protection should not be applied to terrorists. I think humane treatment is the way to go, the only way 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 were worried about our own troops. And I want you to get that memo.

And if we need three rounds, we'll do three rounds.

But I'd like to get you to comment, if you could -- is my time up?

SPECTER: Almost.

GRAHAM: OK.

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?

GONZALES: Would you like me to try to answer that now?

SPECTER: Yes, sir. Judge Gonzales, the question is pending.

GONZALES: And the question is, do I believe that the military lawyer's judgment that the techniques being espoused in the memo may put our troops at jeopardy under the Uniform Code of Military Justice?

GRAHAM: And if you don't -- if you want to look at -- take some time, that's fine.

GONZALES: Thank you, Senator.

GRAHAM: I mean, that's a very -- I want to -- some time later for you to answer that question, but you don't have to do it right now.

SPECTER: You want to think that over, Judge Gonzales, and respond later...

GONZALES: I do. Thank you, Mr. Chairman.

SPECTER: ... during the hearing, that's fine.

Senator Feingold?

FEINGOLD: I too want to congratulate you, Mr. Chairman.

I have long admired your thoroughness and your independence and your judgment, and I do look forward to working with you and all the members of the committee again.

Particularly appreciate the fact that you kicked off the questioning today by using a lot of your time to talk about the need to carefully look at certain provisions of the USA Patriot Act, which, of course, I agree we need to do, and I'm looking forward to a bipartisan effort to do it.

You were specific about concerns, about the so-called library records provision, Section 215, and the sneak-and-peek provisions.

Those are some of the ones that need that kind of review. And I want to make it clear in the record, because it sounded like the nominee was suggesting that somehow Section 215 doesn't apply to library records. It does, in fact, apply to library records. Apparently the nominee agrees and...

GONZALES: I do.

FEINGOLD: ... I just want to say that the previous attorney general referred to librarians in this country as being hysterical in their concern with regard to this.

They were not hysterical about it and it does need the kind of review that the chairman has called for. I think it could be a great moment for the Senate when we take up this legislation and look at the problems with it and come together to fix it.

FEINGOLD: And I thank the chairman for that.

Welcome, Judge Gonzales, and congratulations on your nomination.

In accepting the president's nomination to be attorney general, you said, "The American people expect and deserve a Department of Justice guided by the rule of law." I couldn't agree with you more.

One of the things we, as senators, must decide in considering your nomination is whether as attorney general you will give the American people what they expect and deserve from their government. And I have a few questions to follow up on that.

First I want to follow up on you answer to Senator Kennedy and Senator Leahy regarding the OLC memo. You told Senator Leahy that you didn't want to politicize the work of career professionals of DOJ, so you couldn't weigh in against the interpretation of the law that was expressed in that memo.

But then you told Senator Kennedy that it was totally appropriate to have discussions with the DOJ while the memo was being prepared because it was a complicated statute that had never before been interpreted.

I think there's something of a contradiction there, which I'd like you to comment on, but I'd like to make two other points first.

First, the authors of the torture memo, in fact, Judge, were political appointees, not career professionals.

Second, the issue is whether you disagreed with that memo and expressed that disagreement to the president.

You're the president's lawyer. Isn't it your job to express your independent view to the president if you disagree with the opinion of the Justice Department? Or do you just simply pass on the DOJ's opinion no matter how erroneous or outrageous, and just say to the president in effect, "This is what the DOJ says the law is"?

GONZALES: Thank you, Senator, for that question.

Let me try to clarify my comments regarding my role in connection with the memo and my role generally, as I view it, as counsel to the president.

It is, of course, customary, and I think to be expected, that there would be discussion between the Department of Justice and the counsel's office about a legal interpretation of, say, a statute that had never been interpreted before, one that would be extremely emotional, say, if you're talking about what are limits of torture under a domestic criminal statutes. And so there was discussion about that.

But I understand and it's my judgment that I don't get to decide for the executive branch what the law is. Ultimately, that is the president, of course. But by statute, the Department of Justice is given the authority to provide advice to the executive branch.

And so, while I certainly participate in discussions about these matters, at the end of the day, that opinion represents the position of the department and therefore the position of the executive branch.

FEINGOLD: Well, I'm puzzled by that because I think it must be your job as counsel to the president to give him your opinion about whether the DOJ document was right before he makes a judgment to approve it.

And I always assumed, anyway, that that would be the job of the president's lawyer.

GONZALES: I certainly do, of course, give the president my own opinion about particular matters.

GONZALES: But as I said earlier in response to a question, my own judgment, my own conclusions very often are informed and very often influenced by the advice given to me by the Department of Justice. And often I communicate with the president not only, sort of, my views, but the views of the department, which, of course, by statute, that's their job to do, and so that the president has that information in hand in weighing a decision.

FEINGOLD: I'm still puzzled by it. If you were my lawyer, I'd sure want to know your opinion about something like that independent. But let me move on.

I want to now ask you about the role you had when you were counsel to then-Governor Bush. You prepared what are referred to as clemency memos summarizing a particular death row inmate's case and his plea for clemency from the governor.

As I understand it, you and your staff would prepare these memos and then present them to the governor, who would make a final decision on whether to deny or grant clemency to the inmate with an imminent execution date.

Now, according to my staff's review of the clemency memoranda, it appears that you presented these memos to the governor almost always on the day of execution. Why is that? On such a grave matter as life and death, why was the decision left until the day of execution?

GONZALES: The ultimate decision may have been left or came close to the time of the execution because that was the desire of the governor.

However, those memos reflect a summary of discussions that often occurred between my office and the governor in connection with every execution. It was not unusual -- in fact it was quite common -- that I would have numerous discussions with the governor well in advance of a scheduled execution.

We often knew when executions were scheduled. If I were in talking to the governor about a particular matter and we had an opportunity, I would say, "Governor, we have an execution coming up in three weeks. One of the bases of clemency I'm sure that'll be argued is, say, something like mental retardation. These are the issues that have to be considered."

And so there would be a rolling series of discussions in connection with every execution. But as to when the ultimate decision was going to be made, it was often the day before or the day of an execution.

And an additional, very important reason for that is because a governor under Texas law has very limited authority under the constitution to grant clemency.

GONZALES: He can only grant clemency, he can only grant a pardon, he can only grant a commutation, he can only grant a reprieve, beyond 30 days upon a recommendation of the Board of Pardon and Parole.

And often the board would not meet and would not vote until just prior to an execution. And of course, the governor wanted to wait and see what recommendation the Board of Pardon and Parole had, with respect to a request for clemency.

FEINGOLD: I recognize that.

It's true that the Texas governor has a more limited clemency power, compared to other governors.

But the governor does appoint the members of the Board of Pardon and Paroles. And I think his grant of a reprieve could have signaled to the board that a case deserves closer attention.

I guess I want to know -- in this way you just described, the process worked -- did you ever seek additional time in order to allow the governor adequate time to review and understand a case?

In other words, after he read the memo that was presented on the day of the scheduled execution, was there ever an occasion when more time was requested?

GONZALES: I don't remember an occasion when more time was requested when we presented that final memo.

I do remember many occasions when I would go to the governor and talk about the facts of a particular case and the basis of clemency and the governor would -- if I expressed concerns or questions, the governor would direct me to go back and find out and to be absolutely sure, because while the governor believed in the death penalty, he believes that it deters crimes and saves lives, he also believes very firmly that it should be applied fairly and only the guilty should be punished.

FEINGOLD: Well, on that point, one of the cases involved an inmate on death row named Carl Johnson. He was executed in September 1995, during the first year that Governor Bush was in office, and you were his counsel on these matters.

Mr. Johnson was represented by a lawyer named Joe Cannon, who slept through the major portions of the trial and who was apparently notorious in legal circles for this behavior.

In his challenges appealing the trial and conviction, Mr. Johnson argued consistently that he had had ineffective assistance of counsel, primarily based on the sleeping lawyer who represented him at trial.

In your memo to the governor discussing this case and in pending execution, however, you failed to make any mention whatsoever of the basis for Mr. Johnson's appeal. You go to great lengths to describe the underlying facts of the murder, but there's no mention at all of the fact that this lawyer slept through the major portions of the trial.

I'd like you to, in a second, explain this omission. I want to know how the governor could have weighed the clemency memo fully and properly if you had failed to even indicate the basis for the clemency request.

clemency.

GONZALES: He can only grant clemency, only grant a pardon, he can only grant a commutation, he can only grant a reprieve, beyond 30 days upon a recommendation of the Board of Pardons and Parole.

And often the board would not meet and would not vote until just prior to an execution. And of course, the president -- the governor wanted to wait and see what recommendations the Board Of Pardons and Parole had, with respect to a request for clemency.

FEINGOLD: I recognize that.

It's true that the Texas governor has a more limited clemency power, compared to other governors. But the governor does appoint the members of the Board of Pardon and Paroles. And I think his grant of a reprieve could have signaled to the board that a case deserves closer attention.

I guess I want to know -- in this way you just described the process worked -- did you ever seek additional time in order to allow the governor adequate time to review and understand a case.

In other words, after he read the memo that was presented on the day of the scheduled execution, was there ever an occasion when more time was requested.

GONZALES: I don't remember an occasion when more time was requested when we presented that final memo.

I do remember many occasions when I would go to the governor and talk about the facts of a particular case and the basis of clemency and the governor would -- if I expressed concerns or questions, the governor would direct me to go back and find out and to be absolutely sure because while the governor believed in the death penalty, he believed that it deters crime to save lives, he also believes very firmly that it should be applied fairly and that only the guilty should be punished.

F: Well, on that point, one of the cases involved, an inmate on death row named Carl (ph) Johnson. He was executed in September 1995, during the first year that Governor Bush was in office and you were his counsel on these matters.

Mr. Johnson was represented by a lawyer named Joe Cannon (ph), who slept through the major portions of the trial and who was apparently notorious in legal circles for this behavior.

In his challenges, appealing the trial and conviction, Mr. Johnson, argued insistently that he had had ineffective assistance of counsel, primarily based on the sleeping lawyer who represented him at trial.

In your memo to the governor discussing this case and in pending execution, however, you failed to make any mention whatsoever of the basis for Mr. Johnson's appeal. You go to great lengths to describe the underlying facts of the murder, but there's no mention at all of the fact that this lawyer slept through the major portions of the trial.

I'd like you to, in a second, explain this omission. I want to know how the governor could have weighed the clemency memo fully and properly if you had failed to even indicate the basis for the clemency request.

FIX MATCHn does not formally apply to terrorists.

And so, I'd like to just quickly refer specifically to the pages, and I'd like to ask unanimous consent that they be made part of the record.

CORNYN: First, page 379 through 380, where the 9/11 Commission says that since the international struggle against Islamic terrorism is not internal, these provisions do not formally apply.

And then the Schlesinger report, which studied the Department of Defense detention policies, which concluded that there were no high- level policies or procedures in place that would allow for torture or abuse of detainees. On page 81 they say, "The panel accepts the proposition that these terrorists are not combatants entitled to the protection of the Geneva Convention."

And then there was the reference I made to the Red Cross manual on the Geneva Convention, which on page 53 sets out the three-part test on whether the Geneva Convention actually applies under any given circumstances.

And I would like to ask unanimous consent that those be made part of the record, and I'm confident they will.

But let me ask you this: This has also been tested in three separate federal courts, has it not?

GONZALES: It has.

CORNYN: And what's been the result?

GONZALES: That the president's decision was the correct legal decision.

CORNYN: And let me, even though lawyers can disagree about judgments, legal judgments or opinions -- here again, I hope we don't disagree about certain basic facts, and that's the reason I wanted to go over the content of these documents, which the senator from Delaware suggested I was mistaken about.

Let me ask you whether you agree with this proposition. Do you agree that the United States government should use all lawful means to gather intelligence from terrorists in order to save American lives?

GONZALES: I do agree with that.

Obviously, that is a policy decision. I think that that is the position of the president of the United States, because, as I said earlier, the war on terror is a war about information, and we need information to be successful in winning this war.

CORNYN: Well, you will not be the only witness in this hearing.

CORNYN: And here again, we're going to hear, I anticipate, since we've had the chance to see their prepared testimony, from other witnesses who may express different opinions than you've expressed here, as well as the opinions expressed by the 9/11 Commission, the Schlesinger report, and those three federal courts.

But I for one do think you have been candid in response to the questions, and I don't suggest I'm the only one. I just know there was a suggestion that there had not been complete candor on your part, but I do believe you have been.

And I think that this committee is exercising its constitutional responsibility to ask you hard questions. But I trust that those questions will always be good faith questions; they'll not be motivated by some improper purpose, partisanship or otherwise.

And so, I'm glad you're here today. I'm glad the committee is asking you hard questions. But I hope that we never cross the line into partisanship or improper motive in asking some questions.

Finally, let me just say that there was some suggestion that you have been less, or the White House has been less than responsive about requests for documents.

And let me just hold up here what I believe to be part of the response that the White House has made to the request by Senator Leahy and others on the other side of the aisle with respect to documents of your office.

Does that look at least like a part of it?

I won't have you go through them page by page. But have you produced voluminous documents, has the White House produced voluminous documents in response to committee requests?

GONZALES: Senator, it's hard for me to gauge whether or not that reflects our response. Because of my nomination, I have recused myself from any decisions regarding production of documents that this committee has requested in connection with my nomination. Decisions about production of documents are being made by others at the White House, as it should be.

CORNYN: Well, thank you for that clarification.

It's my understanding -- I've been advised that the White House has complied completely with the request for documents with two exceptions.

CORNYN: One is a document which the White House is claiming wherein the president has received confidential and candid advice from senior advisers relating to the memorandum concerning the application of the Geneva Convention to Al Qaida and the Taliban.

The second document that the White House has declined to produce is an Office of Legal Counsel opinion dated November the 6th, 2001. And the reason stated is because that is currently the subject of litigation.

I would just say that this committee last year had the occasion to revisit the importance of our ability as senators to receive confidential advice from our own staff. And we learned, unfortunately, that there had been a theft of some staff memos to senators. And that now has been referred for investigation and possible prosecution.

But do you recognize the importance, as a general principle, of confidential communications between the president and his senior advisers, or, for that matter, between the United States Senate and our staff?

GONZALES: I think it is a very important principle, Senator, that needs to be respected. I think the principals should be able to rely upon candid advice from their advisers.

I've seen in four years how it does make a difference in affecting the way you present advice, if not the advice you actually give.

And so I think that that is a principle that should be respected.

Now, of course there is a competing principle as well, and that is sometimes there is a strong or legitimate government purpose to try to receive information and to look at that information either as part of some kind of criminal investigation or part of the oversight function of a committee.

But that always involves a balancing, it seems to me, it's sort of a case-by-case analysis in terms of where do you draw the line as to when to produce deliberative information and when not to.

But, yes, I think is a principle that one should always be mindful of is the fact that you don't want to inhibit candid advice to principals, otherwise, in my judgment, you do inhibit the decision- making of that principal. And I don't think that's good for the American people.

CORNYN: Well, Judge Gonzales, thank you very much for your response to those questions and your appearance here today. My experience, just in the brief time I've been in Washington, is that there are very few secrets, because this place leaks prolifically.

And if you want to find out what's going on in Washington or at the highest levels of government, all you have to do is pick up the daily newspaper or watch cable news and you will find out almost as much as you do by sitting in on classified briefings.

That's been my experience; it may not be typical.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Cornyn.

SPECTER: Senator Schumer?

SCHUMER: Thank you. And let me, Mr. Chairman, join all of my colleagues in congratulating you on achieving chairmanship of the Judiciary Committee.

SPECTER: Thank you.

SCHUMER: You have all the good qualifications for it. So thank you.

And thank you, Judge Gonzales.

You know, let me just say that I guess many of us, at least on this side of the aisle, have had very bad experiences with the Justice Department over the last four years.

The attorney general, should you be confirmed, is at the nexus of what may be the most fundamental and important conflict or tension in our government, and that is between security and liberty.

And the founding fathers paid a lot of attention to that and realized the importance of that tension. And one thing I think they called for in the structure of the government they set up, that these hearings embody and so much else, and that there be consultation, that there be discussion, and then you come to a conclusion.

Obviously, the line moves. No one can dispute that we live in a new world after 9/11. No one disputes, certainly not me, that old rules should be reexamined, because the world has changed dramatically, and what governed when the War of the Roses was fought doesn't govern today.

But the previous attorney general ran the most secretive Justice Department in my lifetime. He seemed to make every major decision behind closed doors, in the dark of night.

And then, when ideas popped out, because there was no consultation, because there was no vetting, he had to pull back, because he had gone too far.

SCHUMER: That happened in torture, where there's been some retraction by the administration. It happened with the TIPS program, where originally your predecessor -- or Attorney General Ashcroft, rather -- wanted neighbors to spy on neighbors; another was the Total Information Awareness program.

Time and time again proposals were pulled back because they were half-baked or not vetted or not discussed. And they would have come out much better had there been the kind of dialogue that I think Democratic and Republican administrations in the past on these key delicate and important issues that have to be carefully balanced, there was discussion.

So my general concern is to know how are you going to approach these serious issues should you be confirmed. Will you be a voice for inclusion and consultation, or will you be continuing the John Ashcroft "my way or the highway" approach that often led to embarrassment on his part, on the Department of Justice's part and others?

And I have a few questions in this regard, some specifics. The first is on judges itself, an issue of great concern to me.

In your position as counsel you and I have worked out things very well together in New York state. Every vacancy is filled. They're filled with moderate or conservative, but mainstream judges.

But we had a real dialogue. You would bounce names off of me, I would bounce names off of you. There were some each of us said to the other are not acceptable, and they were pulled off the table. The judges, make no mistake about it, don't mirror my views. Most of them are pro-life and more conservative on most issues, but they're mainstream. I really believe that they were interpret the law.

That's not what's happened nationally. We have had on most circuits just a throw down the gauntlet, "Here is who we want. You better approve him. And if you don't approve him, you're obstructionist" -- even though we've approved 204 out of 214, a record I think that is better than the first few Congresses, where I think one-fifth of all Supreme Court nominees -- that may be in the history of all the Congresses -- have been rejected.

And many of us believe that some of these nominees were radical. They weren't strict constructionists. They weren't following the law.

SCHUMER: They wanted to get rid of decades and sometimes even centuries of law when it came to environment or civil rights or women's rights or privacy or property rights.

And as you know, we're going to have a Supreme Court nomination before long.

I hasten to add, by the way, parenthetically, that the standard that I am going to use, and I think most of us are going to use to judge you as attorney general will be different than we would use for Supreme Court justices, should you or anybody else be the nominee. No one should mistake the votes here as a ratification, because it's a different job; it's a lower standard.

In the executive branch you want the president to have more leeway than in an independent judicial branch.

But I want to ask you: When it comes to Supreme Court nominations, which we're likely to get here, will you be a real voice for consultation? Will you come to us or will you urge the president to come to us and say, "Here are the names I'm considering. What do you think? Which ones would cause a knock-down, drag-out fight? Which ones would be acceptable? Can we reach compromise?" There may be more than one nomination.

Can you just give me a little bit of your feeling on how that ought to happen and your judgment on what has happened thus far in New York versus what's happened in the rest of the -- or many of the other circuits?

GONZALES: Thank you, Senator.

First of all, let me make it clear, I am not a candidate for the Supreme Court.

SCHUMER: Right. Just making sure that everyone knows, in case that should happen, one standard's different than the other.

GONZALES: I'm focused on this...

SCHUMER: I understand that.

GONZALES: I want to thank you for your work in connection with filling federal judgeships in New York.

I agree with you. We've been able to, in my judgment, to reach accommodations where the president is able to put people on the federal bench that he believes should serve as lifetime judges.

As to why we haven't been able to replicate that around the country, I'm still trying to understand that as well.

You mentioned some circuit court judges that were way, way out of the mainstream. We look at these picks very, very carefully, and we talk to a lot of people, we bring them in, we look at their writings, if they've been judges. They have been rated well-qualified or qualified by the American Bar Association, as you well know.

SCHUMER: Yes. But they don't rate on their views; they rate on their integrity and demeanor. I mean, a judge who believes there should be no zoning laws, which was one of the people you nominated, is 1890s.

GONZALES: I'm not going to try to defend every single act and every single statement of all of the president's nominees.

In my judgment, collectively, they do come to the job with the appropriate character and integrity, professional excellence, and with a judicial philosophy...

SCHUMER: Will you urge the president to consult with us, with our side, in a real way -- give us some names, some choices -- a real dialogue, rather than, "We're doing this one"?

GONZALES: Well, in my judgment, consultation has always been good. It has been fruitful. I will certainly make the president aware of your request.

SCHUMER: Second issue, related, the so-called nuclear option -- now, again, the pique of some, some of my colleagues and many in the hard right is, "Well, we didn't get every one of our judges, therefore we have to change the rules by having the vice president, as he sits as Senate pro tem, rule that a filibuster is unconstitutional."

I find it confounding. The very same people who urge strict construction of the Constitution -- "Find the words. There's no right to privacy in the Constitution; it doesn't say right to privacy" -- are now saying that the Constitution says there should only be a majority vote on judges.

First, are you aware of any words in the Constitution that say there should be a majority vote for judges?

GONZALES: Senator, I have no views as to whether or not a filibuster is constitutional. We view that as an internal Senate matter...

SCHUMER: You know the Constitution. We're asking you to be attorney general. Are there any words that say only majority vote for judges?

GONZALES: I'm not aware of that, Senator, but please give me opportunity to go back and check my Constitution.

SCHUMER: I'll ask you to ask (ph) that in writing, and find me those words.

Second, I'd ask you your opinion, and this is important: Do you believe filibusters of judicial nominees violate the Constitution? And on what basis, if you do?

GONZALES: Senator, we talked about this in our meeting, and my answer...

SCHUMER: We did, and you were going to think about it.

GONZALES: ... and my answer today...

SCHUMER: You've had time to think about it.

GONZALES: ... my answer today is the same as it was in our meeting, and that is, I do not have a view as to whether or not it's constitutional.

From my perspective, and from the perspective of the White House, this is an internal Senate matter to be resolved within the Senate.

SCHUMER: Well, you know, I'm going to ask you to think about that over the next several hours. This is something that I think is important, and I don't think you should be able to duck it, because the very functioning of our government could be at stake.

One final question...

SPECTER: Senator Schumer, your red light is on.

SCHUMER: OK. We'll have a second round, Mr. Chairman?

SPECTER: A second round.

SCHUMER: Thank you.

SPECTER: Senator Brownback?

BROWNBACK: Thank you very much, Mr. Chairman. It's good to be back on the committee and welcome you as chairman.

And I welcome Judge Gonzales. And (inaudible) delighted in your public service, the state of Texas, the United States, and what I believe will be soon as attorney general of the United States.

BROWNBACK: Delighted to have you here; welcome to your family, as well.

I love the name of the town you're from of (ph) Humble, Texas. I think that's a great place for a public servant to come from. And it reminds you of the proverb that humility comes before honor. And you come from the right place to be honored with this type of position.

I want to ask you about a couple of areas. We've had a lot of questioning about the Geneva Convention, the issues surrounding that. I'm pleased that those would come out.

And that in your job -- I want to follow up on what Senator DeWine was asking about, what you hope to be known for in the position as attorney general.

Obviously, the primary task is protecting the security of the country and the people here. And I don't want you ever to take your eye off of that ball, and I'm sure you won't, that it's the war on terrorism, it's protecting the security of the American people, and that's got to be your primary focus and function and measure of success of the agency, is (inaudible) the American people protected.

I do want to ask you about a couple of other areas of what I hope would be opportunity, because it's a large agency and there's a number of different functions and areas that go on.

One, there's a bill we put in last year, a bipartisan bill that the president spoke about in his State of the Union message last year on dealing with prison recidivism, prisoner recidivism rates. I realize this is off of virtually everybody's radar screen in this hearing.

BROWNBACK: But if you look at it for an issue that's affecting our country, once a person goes into our court system now and is convicted, 70 percent of them are going to commit another crime and be convicted again.

It's an enormous rate of recidivism that we have. It's a huge price tag. And of course, spending at the state level is $28 billion- plus a year; prisons' annual operating costs of over $22,000 per inmate.

And that is as it needs to be. We need to lock people up that commit crimes.

But the president sided (ph) on this -- and I agree, and I put forward a bipartisan bill, a bicameral bill with Senator Biden, Rob Portman, in the House, on targeting reducing that recidivism rate, cutting it in half in five years with a -- we called the bill a second chance act. And it's just targeting those prisoners within two to three years of getting out, for intensive work with them, intensive counseling, relationship building for when they are in, when they get out -- to try to really track that rate.

Also, children of prisoners are five times more likely to commit a crime than the general population. And so we need to target in on that group.

And I put this forward as a compassionate conservative topic, because I think this is one where we need to lock people up that commit crimes, but we know they're going to come out at some point and time too, most. And we really also need to work with them.

I'm hopeful you can work with us on this issue, because I think this is one of those topics that we can have an agreement across the aisle that this needs to be addressed.

There's ways to address it. We have a faith-based prison in Kansas that the recidivism rate is below 10 percent. We've got other examples across the country of where this has been attacked and addressed quite successfully.

And so I'm hopeful that can be one of your legacies that you work on, as well. If you have a short response on that.

GONZALES: I do, Senator. I believe that it's not only smart, but it's right. I think that we have an obligation to provide some kind of support structure, to provide some kind of training to people that are coming out of prison. It's the right thing to do.

It's certainly smart, because we simply don't want to have people that come out of prison immediately go out and commit crimes. They can't support themselves. And so we have to provide some kind of way for these folks to support themselves.

There are a lot of prisons in Texas. Obviously, this is a problem that Governor Bush was focused on, so he's keenly aware of this. That's why he spoke about this in the State of the Union.

I believe the Department of Justice is doing some research about what kinds of programs really work. And so I look forward to the end of that research and sitting down with you and talking to you about what would be the most effective way to deal with this problem.

BROWNBACK: I think the American people want us to get outcomes, things that work. Welfare reform was something that worked, the country needed.

I really think this is a key area where we've got a chance to really do something that'll work, and it's going to help. And I think it's something we can work across the aisles to get done.

A second issue you raised with Senator DeWine during your comments about things you want to be known for, and that's the issue on obscenity laws and the enforcement of that.

I held a hearing last session of Congress on the issue of these -- not of obscenity laws, but on addictions to pornography. And it was an amazing set of experts that came forward talking about the addictiveness of pornography. It's grown much more potent, much more addictive, much more pervasive, much more impactful. You've cited teenage children you have, and that I have, and in our private conversation.

There's been criticism of Department of Justice for not enforcing obscenity laws, working on these issues, on community standards. I would hope that this would be something that you would take a look at, maybe make some personnel shifts within the Department of Justice, to address this from the law standards, on community standards, look at the addictiveness in the nature of it.

There are certain, obviously, guarantees of First Amendment rights, but there are also these laws that have been upheld by community standards, upheld by the Supreme Court, that can be and I really think should be enforced, given the nature of this very potent -- what one expert, you know, called it -- delivery system in this country. And I hope you can look at that.

GONZALES: I will commit to you that I will look at that, Senator.

BROWNBACK: I believe you said your wife had some interest in this. And I may recruit her on this topic as well. Even though she is not up for confirmation here, I'd work with her, as well.

Finally, there is a topic I wanted to give you a chance to address. While you were on the Texas Supreme Court, in June of 2000, and this came up during Judge Owen's hearing, of a case on a parental consent law that you wrote, I believe, a majority opinion on. And this was upholding the decision regarding a parental notification law where a minor sought an abortion.

In this particular case, a minor was seeking an abortion without, as was required by Texas law, notification of her parents. You had some pretty strong words for those in the minority opinion who thought the law should be applied as written and was affirmed by the trial court.

I just wanted to give you a chance to express your opinion on this case. It came up often during Judge Owen's confirmation hearing here. You were cited on the other side of that often, and I'd like to get your thoughts on that, here, for the record.

And do you believe that the interpretation of duly enacted legislation is open to interpretation by the courts in a manner not consistent with the strict reading of the law? That is the underlying issue involved with this.

GONZALES: Thank you for that question, Senator.

Let me just say, at the outset, regarding Judge Owen: I served with Judge Owen on the Texas Supreme Court. And I think she did a splendid job, a superb job as a judge. I think she would make a superb job (ph) on the Fifth Circuit, and that's why her name was recommended to the president.

There were a series of very contentious case opinions written in connection with six cases, I think, involving four minor daughters, in the year of 2000, while I was on the court.

It is true that the legislature made a policy judgment that they wanted parents more involved with abortion decisions of their minor daughters.

But the legislature did not make the parental rights absolute; they provided three exceptions. And most of the decisions of the court involved (inaudible) interpreting those exceptions, allowing a judicial bypass.

My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht. It was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used, in terms of having a minor not totally informed or well-informed, but sufficiently well-informed, and the structure of the act, it was in my judgment that the legislature did intent the judicial bypasses to be real.

And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case.

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