Mr. DODD. Mr. President, I rise, late this morning, to speak on the nomination of Alberto Gonzales to serve as the Attorney General of the United States.
I would, as an initial matter, note that I know one of our colleagues came to the floor yesterday and spoke some words in Spanish in support of this nomination. And as someone who speaks Spanish, I was urged by some of my colleagues to do the same. I would not want to complicate the life of our reporters here. It is hard enough to understand us in English from time to time, and doing so in Spanish might make things more difficult.
I take great pride in the fact that I lived in a Spanish-speaking country as a Peace Corps volunteer, and that I have been a long-time member of the Senate subcommittee that concerns itself with Latin America. I understand this nomination is certainly a matter of ethnic pride to many. I understand that. But I would further suggest that to consider this nomination as only or even principally as a matter of ethnic pride does a disservice to the Latino, the Hispanic community. As far as I can tell, members of that community are no different than people throughout our great Nation. They want to know not only who you are and what you are, but also what you think and what you believe in. They want to know if a person nominated to be this Nation's chief law enforcement officer will uphold the rule of law.
The outcome of this nomination at this hour is not in doubt. It appears quite likely, if not altogether certain, that Mr. Gonzales will be confirmed by the Senate of the United States as our country's next Attorney General. So what I am about to say is of little, if any, consequence to the ultimate outcome of this particular nomination. If, in fact, this nominee is confirmed, I hope what I have to say might have some impact on his thinking as he assumes this office.
I have asked for time to participate in this debate because of the important questions that this nomination raises, for not only this body but for our Nation. I thank the two leaders for allotting time for a full debate on these questions.
I am going to oppose this nomination. I say that with deep regret. Like all or nearly all of my colleagues, I had very high hopes for this nomination when it was first announced. When Mr. Gonzales was nominated for this position several weeks ago, I didn't know a single Member who expressed any intention to vote against this nominee. That is certainly the case for this Senator. However, I also said at the time that I would reserve an ultimate decision until after the nomination was considered by the Judiciary Committee and put before the full Senate.
In the interim, the committee chairman and ranking member have done a tremendous job of holding a careful, thorough, and substantive set of hearings. They have given members of the committee every opportunity to ask questions of the nominee. Just as importantly, if not more, they have given every opportunity to the nominee to answer those questions fully.
As many of my colleagues may know, particularly those with whom I have served over the past almost quarter of a century, I have long adhered to the practice of according Presidents great deference in their nominations of term-limited appointees. Those who campaign for and win the highest office in our land deserve to name their team to the President's Cabinet. Accordingly, my standard of review for nominations such as this is different than it is for lifetime appointments.
There are two basic questions that must be answered. First, does the nominee have the personal qualities required to discharge the duties of the office to which he or she has been nominated? And secondly, has the nominee demonstrated an understanding of the duties that he or she will be required to discharge if confirmed?
Based on that standard of review and only that standard, I have supported overwhelmingly a number of Cabinet appointees during the quarter of a century I have served in this body. That [Page: S926] includes nominees of this President, including the current Attorney General, as many of my colleagues may recall 4 years ago. It also includes nominees proposed by Presidents and opposed by a majority of members of my own party, including, in at least one instance, a nominee opposed by a majority of the Senate. But I have, on rare occasions, less than five in my 24 years here, through all five Presidents during that time, opposed only a handful of Cabinet nominees, including nominees supported by the majority of Members of the Senate and a majority of members of my own party.
There is no question that this nominee possesses a number of admirable personal qualities. He has demonstrated considerable intellectual ability. He is an experienced and accomplished attorney. He has by all indications been a responsible member of his profession. And he has demonstrated commitment to public service. Like our colleagues, I have been deeply impressed with his proud family history.
But this nomination is not simply about Alberto Gonzales's impressive personal qualities. If it were, then he would be unanimously confirmed. What is at stake is whether he has demonstrated to the
Senate that he will discharge the duties of the office to which he has been nominated, specifically whether he will enforce the Constitution and laws of the United States and uphold the values upon which those laws are based.
Regrettably and disturbingly, in my view, Alberto Gonzales has fallen short of meeting this most basic and fundamental standard. Let me explain why I take this position for two reasons: One, because in a nation founded on the principle of human freedom and dignity, he has endorsed, unfortunately, the position that torture can be permissible. And two, in a nation dedicated to the proposition that all are equal and none is above the law, he has suggested that the President of the United States, acting as Commander in Chief, has the right to act in violation of the laws and treaties prohibiting torture and may authorize subordinates to do the same. I will address briefly each of these issues in turn.
The issue of torture is relatively straightforward. Is it acceptable for the United States of America ever to effect or permit the torture or cruel, inhuman, degrading treatment of human beings? The Constitution clearly says no. The eighth amendment explicitly prohibits ``cruel and unusual punishments.'' The Geneva Conventions say no. They prohibit the torture and abuse of detainees and prisoners of war.
The Universal Declaration of Human Rights says no. Article 5 states:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
The International Convention Against Torture also says no to torture. This document, signed by President Reagan, supported by former President Bush, and approved by the Senate Foreign Relations Committee under Chairman Helms with a unanimous committee decision, says:
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.
Lastly, the Army Field Manual says no to torture as well. This manual contains the knowledge, insight, and wisdom gathered by American soldiers over decades of hard experience.
It says:
U.S. policy expressly prohibit[s] acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or to aid interrogation.
So this document, relied on for decades by U.S. military personnel in the theater of war to protect their lives and to do their duty, expressly prohibits torture. Why? Because, to again quote from the Army Field Manual:
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. ..... It also may place U.S. and allied personnel in enemy hands at greater risk.
From the very earliest days of our Republic, the right to be free from torture has been a fundamental value of our Nation. Other values and rights have evolved or been won by the deprived and dispossessed: the emancipation of slaves, civil and voting rights for racial and ethnic minorities, equal rights for women, the right of privacy, just to name a few. But the right to be free from torture or similar treatment has never been in doubt, has never been seriously debated in our Nation. It has always been considered intrinsic to a nation such as ours, founded, as it is, upon the belief that all people are endowed with certain inalienable rights.
Yet, unfortunately, this nominee has in crucial aspects stood against the overwhelming and unequivocal weight of precedent and principle. He
has instead stood on the side of policies that are in direct conflict with the laws, treaties, and military practices that have long guided our Nation and its citizenry. Moreover, the record strongly suggests that he, in fact, helped shape those policies to the great detriment of our Nation's moral standing in the world.
Indeed, as the White House Counsel, he is one of the chief architects of those policies. Let me review the record.
In January of 2002, Mr. Gonzales wrote a memorandum to the President of the United States regarding the applicability of the Geneva Conventions to the conflict in Afghanistan. He concedes in the memo that:
Since the Geneva Conventions were concluded in 1949, the United States has never denied their applicability to either the United States or opposing forces engaged in armed conflict, despite several opportunities to do so.
But then Mr. Gonzales argues that the war on terror presents a ``new paradigm [that] renders obsolete Geneva's strict limitations on questioning of enemy prisoners.'' He urged a blanket exclusion of the Afghanistan war from the Geneva Conventions.
This position was strenuously opposed by Secretary of State Colin Powell. Powell pointed out:
It will reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the rule of law for our troops, both in the specific conflict and in general.
He goes on to say:
It will [also] undermine public support among critical allies, making military cooperation far more difficult to sustain.
Secretary Powell's legal adviser added that Mr. Gonzales's view that Geneva did not apply to Afghanistan was inconsistent with the plain language of the treaty, the unbroken practice of the United States over the previous half century, the practice of all other parties to the Conventions, and the terms of the U.N. Security Council resolution authorizing the intervention in Afghanistan.
Ultimately, in February 2002, President Bush ordered that all detainees captured by U.S. forces be treated in ``a manner consistent with'' the Geneva Conventions. But it has been pointed out that the treatment of detainees at places such as Abu Ghraib and Guantanamo raised questions about whether this order was effective in actually according detainees the protections of the Geneva Conventions.
What is most troubling to this Senator is that Mr. Gonzales argued for a view of the Geneva Conventions that was inconsistent with American law, American values, and America's self-interests.
Nor was this an isolated event. This administration's policy on torture was largely established in August of 2002. At that time, a memorandum regarding standards of conduct of interrogations was prepared at Mr. Gonzales's request by the Justice Department Office of Legal Counsel. This memorandum was accepted by the administration as policy until December 2004, when it was repudiated, at least in part, by the Justice Department on the eve of Mr. Gonzales's nomination hearing. The memorandum is 50 pages long. I will not dwell on it. Others among our colleagues have already thoroughly discussed it. I will only touch on two aspects of it.
One is its novel and absurdly narrow definition of torture. The only conduct it recognizes as torture is where the interrogator has the precise objective of inflicting ``physical pain ..... equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or death.'' Any other conduct implicitly would not, as defined by this document, constitute torture--and thus would be allowed. [Page: S927]
Mr. President, this is a truly stunning and offensive reading of the law, not to mention plain English. It twists and contorts the meaning of the word ``torture''--so much so that the word is drained of any meaning whatsoever.
It would allow all manner of mistreatment, including the acts of brutality and degradation committed by Americans against Iraqis in places like Abu Ghraib prison. Incredibly, it would even excuse the beatings, rapes, burnings, and deprivations of food and water perpetrated at the behest of Saddam Hussein himself.
A second aspect of this memorandum that deserves mention is its discussion of the powers of the President of the United States when acting as Commander in Chief. The memorandum says that the criminal prohibition against torture ``does not apply to the President's detention and interrogation of enemy combatants pursuant to its Commander in Chief authority.'' Under this reasoning, executive branch officials can escape prosecution for torture if ``they were carrying out the President's Commander in Chief powers.''
Here again, this legal reasoning is stunning in its implications. It suggests that an American acting on behalf of the United States of America can commit heinous acts of torture without the slightest fear of prosecution. All he or she needs to do to avoid sanction is to show that he or she was ``just following orders.'' Whether the law prohibits torture is of no consequence. The President and anyone acting under his authority are in effect above the law.
This memorandum has been rightly condemned by legal experts. One is Harold Koh, a professor of law at Yale Law School. He served in the Reagan Justice Department and the Clinton State Department. In testimony before the Judiciary Committee last month, he called the August 2002 memorandum ``perhaps the most clearly erroneous legal opinion that I have ever read,'' and ``a stain upon our law and our national reputation.''
Yet while condemned as beyond the pale of American law and American values, these ideas were accepted and even embraced by the nominee to become the Attorney General of the United States of America. There is no evidence in the record that he even questioned them, much less disagreed with them. Apparently, he had them shared with the Department of Defense.
At his confirmation hearing, Senator Leahy asked Mr. Gonzales whether he agreed with the memorandum's legal reasoning on the issue of torture. Mr. Gonzales replied, ``I don't have a disagreement with its conclusions.''
Our colleague, Senator Kohl from Wisconsin, asked if the nominee agreed with Attorney General Ashcroft's statement that he does not believe in torture because
it doesn't produce anything of value. The nominee replied, ``I don't have a way of reaching a conclusion of that.''
Don't have a way of reaching a conclusion? Mr. President, that is an astounding admission for someone seeking to become the Nation's top law enforcement officer. If he cannot reach a conclusion about the illegality or immorality of torture, what can he reach a conclusion about? What other legal principles are open to similar legal evisceration and repeal? What does it say about our Nation's commitment to the rule of law that this nominee will not say torture is against the law? What does it say about our Nation's commitment to equal justice under the law that this nominee would have the President and his subordinates be above the law?
How do we explain this to the citizenry of our Nation, to the citizenry of other nations, particularly our allies, and most especially to the citizens of tomorrow, our young people who will inherit this country as we leave it to them? Will we tell them that torture is wrong--unless the President orders it? Will we teach them that America stands for life, liberty, and the pursuit of happiness--depending upon who you are?
Almost 60 years ago, this very day, the first allied forces liberated the condemned people of Auschwitz. On that day, the full horror of the Nazi genocide was laid bare, and all doubt about it was laid to rest.
Within weeks of that event, my father and a group of other attorneys in this country were on a plane to a place called Nuremberg, Germany. There, he, along with others from our allies, began what would perhaps be the most formative experience of my father's professional life at that time: serving as executive trial counsel at the trials of Nazi war criminals.
At that time, there were loud calls against trying the Nazi leaders. Many called not for due process of law, but for summary executions. In fact, Winston Churchill, a person we revered, who had great values, strongly suggested that summary executions would be the way to deal with the people responsible for the incineration of 6 million Jews and 5 million other civilians, not to mention the millions of combatants who lost their lives as a result of Nazi terror.
Yet the United States stood up for something different 60 years ago, in the summer of 1945 through the fall of 1946. As members of the allied powers, we insisted that the rule of law, rather than the rule of the mob, would rule. Even these most despicable and depraved human beings were given an opportunity to retain counsel and to testify in their own defense.
We were different. It did not depend on who the enemy was. It depended on what we stood for. If we begin to tailor our values and principles based on who our adversaries are, what do these laws mean? What do these bedrock principles stand for, if we can tailor them based on who we look across a battle line at? You cannot do that if you believe in these principles.
At that moment in history, the world learned something very important about the United States of America. It learned that this Nation would not tailor its eternal principles to the conflict of the moment. It learned that, as far as the United States of America is concerned, even the mightiest cannot escape the long arm of justice. And it learned that our Nation will recognize the words ``I was just following orders'' for what they really are--a cowardly excuse, which has no place in a nation of free men and women.
Mr. President, as I said, the outcome of this nomination is in little doubt at this hour. I understand that. My argument is not going to persuade anybody to vote differently. I want to be on the record saying that there have been only a handful--two or three cases in 24 years--where I have stood in the Chamber to oppose a Cabinet nominee. I supported and voted for the nominations of John Ashcroft and John Tower. My colleagues who served with me know that I generally believe that Presidents deserve to have their Cabinets--except in rare circumstances.
While I admire the personal story of this nominee, when he walks away from these critical principles, I cannot in good conscience give my vote to him to be Attorney General of the United States--the chief law enforcer of our country--when I know how important the rule of law is to this country, its history, and our reputation.
As I said earlier, the outcome of the nomination is not in doubt. I do not expect that the nominee in question is paying attention to these proceedings or what I have to say. But I hope Mr. Gonzales will pay heed to the lessons of history, if not to this Senator. In his second State of the Union Address, Abraham Lincoln said that in giving or denying freedom to slaves, ``We shall nobly save or meanly lose the last, best hope of earth.''
The issue then was how our Nation treats the enslaved. The issue today is, in some respects, no less profound: how our Nation treats its enemies and captives, including those in places such as Abu Ghraib prison and Guantanamo Bay.
By treating them according to our standards, not theirs--our standards, not theirs--we feed the flame of liberty and justice that has rightly led our Nation on its journey over these past two and a quarter centuries.
I strongly oppose this nomination, and I hope the President will come up with a better choice.
