HATCH: So that's never been a problem with regard to the president or you as his adviser.
GONZALES: Absolutely not, Senator.
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GONZALES: The opinion was withdrawn, yes, sir.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.
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.
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.
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...
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.
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.
SPECTER: Judge Gonzales, while Senator Biden is awaiting round two to formulate a question...
... 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.