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.
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?
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.
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.