Mr. HATCH. Mr. President, out of deference to my Democratic colleagues this morning, I interrupted my remarks to allow Senator Schumer to speak briefly on the nominee. It now has been several hours since I last spoke. Let me briefly recap for those just joining this debate.
Everyone knows I support the nomination of Judge Gonzales to be the next Attorney General of the United States. [Page: S711] Early this morning, I talked about Judge Gonzales's inspirational personal background. I talked about his educational and professional qualifications, and they are many. I talked about all the awards he has won from so many civic organizations. I talked about many of the numerous organizations, individuals, and entities that support his nomination--virtually most strong Hispanic organizations, including the District Attorneys Association and the FBI Agents Association, and others, as well.
In short, I talked about why this man is the right person for this difficult job at this challenging time and why we should not stand in the way of his fulfilling this wonderful opportunity--the first Hispanic ever nominated to one of the big four Cabinet level positions. I even went over other major first-time Hispanic nominations to major positions in this country all the way from President Reagan, to the first President Bush, and finally to our current President.
I also talked about how this man--this good, honorable, decent man--is being treated by some like a scapegoat. Some of my colleagues are trying to unfairly blame Judge Gonzales for abuses committed by renegade soldiers at the Abu Ghraib prison. But Judge Gonzales, of course, was not in charge of the soldiers in the field. He was not the person telling soldiers what interrogation techniques they could or could not use. I, like the President, like Judge Gonzales, and like many of the American public, was sickened by the abuses that occurred at Abu Ghraib prison. But these violations are not going unpunished.
I talked about the investigations, prosecutions, and convictions the Defense Department has undertaken with respect to those perpetrators and how despicable those perpetrators are. I know we will see more prosecutions and convictions as time goes on. The Defense Department has been active on this, acted immediately, and has been acting ever since. It may not be published in the front pages of the newspapers and you may not hear about it on the 6 o'clock news, but these people are going to be brought to justice for their wrongdoing. To blame Judge Gonzales for this is making him a scapegoat. That is wrong.
That is not the only thing my colleagues are trying to unfairly blame Judge Gonzales for. They are trying to blame him for the so-called Bybee memo, a memo Judge Gonzales did not write--a memo that was written by an agency, the Department of Justice, that Judge Gonzales did not work in; an agency for which Judge Gonzales was not responsible. And there has been an implication here that he, as White House Counsel, should have reversed everything and told the Justice Department what to do. If he had done that, he would be criticized for that.
The fact of the matter is the Justice Department is the advisory body on these types of legal issues for the executive branch of Government. He may be White House Counsel, but that does not give him the right to change any opinion given by the Justice Department.
I brought out that on February 7, before the Bybee memo was brought forth, on February 7 of the same year, the President did sign a memorandum with regard to the Taliban and al-Qaida that basically said that although these prisoners did not qualify for Geneva Convention protections they should be treated humanely. We do not hear a lot about that memorandum. If we do, his critics will probably
distort it.
I would like to spend a few minutes to focus specifically on the Geneva Conventions. There has been a lot of discussion and, frankly, a lot of misinformation. I would like to take a few moments to clarify. Some of the legal principles involved might sound a little complicated, but I will try to explain this as simply as I can.
The Geneva Conventions are an international treaty. One key question facing the United States as we fought back against the terrorists was whether Iraq, the Taliban, and al-Qaida should be treated differently under this treaty.
First, as we all know, treaties are signed by countries. They are not signed by individuals for individuals. Iraq signed the Geneva Conventions. There has never been any question that the Geneva Conventions apply to our conflict in Iraq where Abu Ghraib is located. Afghanistan also signed the Geneva Conventions. Afghanistan, however, has been embroiled in internal violent conflicts for 22 years. There was no legally recognized leader, no legally recognized central government and, for that matter, there were not even basic government services in the country at that time. The Taliban was a vile faction struggling for control of the nation, but it did not have anything like control over the entire country.
There was a question about whether Afghanistan was a failed state as a matter of international law. If it was a failed state, then the treaty, naturally, would not apply to it. Ultimately the President decided regardless of what the law requires, that he was going to apply the Geneva Conventions to the Taliban. That is what it says in the President's February 7, 2002 memorandum.
Going to the third category, al-Qaida is not a country. They are not a faction within a single country. They are a group of individuals from lots of different places who go around the world spreading terror and murdering innocent people. Simply put, they are a gang of terrorists, not a country. Since al-Qaida is not a country, they could not sign the treaty, nor would they, and we all know that. So it makes perfect sense to conclude that the President is not legally required to apply the Geneva Conventions to al-Qaida.
So far, the analysis has been pretty straightforward. You sign the treaty, the treaty applies to you. The next step is a little more complicated. Under the Geneva Conventions, all detainees are not treated alike. In order to receive preferential treatment as a detainee, you must qualify as a POW, a prisoner of war. In order to be considered a prisoner of war, the group must have an organized command structure, uniforms, or insignia, openly carry arms and obey the laws of war.
Al-Qaida and the Taliban detainees cannot qualify as POWs.
Neither al-Qaida nor the Taliban have a permanent centralized communications infrastructure--the way you would expect to find such in a typical military organization. The Taliban is a loose array of individuals with shifting loyalties among various Taliban and al-Qaida figures. Defections and bribery are rampant.
Second, the Taliban and al-Qaida members wear no uniform or other insignia that serve as a ``fixed sign recognizable at a distance.'' They dress like civilians in that area of the world.
Third, although the Taliban carry arms openly, so do many in Afghanistan. They do not attempt to distinguish themselves from others carrying weapons.
Lastly, al-Qaida and the Taliban do not follow the laws of war. We are all too familiar with how al-Qaida operates since we saw their despicable handiwork on September 11, 2001. They dress as civilians. They specifically attack civilians after hijacking civilian commercial airlines. They transform civilian aircraft into weapons of destruction to murder thousands of ordinary, innocent human beings.
The Taliban used mosques for ammunition storage and for command and control meetings. They put tanks and artillery in close proximity to hospitals, schools, and residences. The Taliban has massacred hundreds of Afghan civilians, raped women, and pillaged villages. They use villages as human shields to protect stockpiles of weapons and ammunition.
In fact, there is no indication that the Taliban understood or considered themselves bound by or aware of Geneva Conventions. The Taliban made little effort to distinguish between combatants and noncombatants when engaging in hostilities. For example, they killed for racial or religious purposes.
So even if the Geneva Conventions applied to al-Qaida, it would not give them preferential treatment because they are not POWs. In fact, as I understand it, there is no significant difference between the treatment being accorded to the Taliban and al-Qaida, even though the Geneva Conventions only apply to the former, the Taliban.
Now, let me cut to the chase. The President's February 7, 2002, memorandum makes one thing crystal clear: Regardless of where and when the Geneva Conventions apply--regardless of whether the Taliban or al-Qaida are [Page: S712] POWs--the President says unequivocally that detainees are to be treated humanely.
This is a crucial point that has often gotten lost in some of the inflamed rhetoric being employed by the opponents of Judge Gonzales and the President. And let us be clear that a considerable amount of the criticism being lodged against Judge Gonzales is merely an attempt to cause political damage to the President himself.
That the purpose of the February 7 memo is to ensure that all detainees are treated humanely is evident by the fact that this concept is repeated four times in that memorandum.
First, you should know that this is clear from the title of the memo: ``Humane Treatment of al Qaeda and Taliban Detainees.''
The President makes his policy directive explicit in paragraph No. 3 of the memo:
Of course, our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment.
He repeats the command again in the last sentence of paragraph 3:
As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely.
The President repeats the command a fourth time
in paragraph 5:
I hereby reaffirm the order previously issued by the Secretary of Defense to the United States Armed Forces requiring that the detainees be treated humanely.
One last point on this. In addition to saying again and again that detainees must be treated humanely, the President's February 7, 2002, memorandum also mandates that the U.S. Armed Forces treat detainees in a manner consistent with the principles of Geneva to the extent appropriate and consistent with military necessity.
Now, while lawyers can hem and haw about what this precisely means, given the context of the quotation in the paragraph immediately following the POW analysis, it is logical to conclude that it means that the U.S. military shall accord POW treatment to al-Qaida and Taliban detainees unless military necessity dictates otherwise.
Let me also make one other thing clear. What happened to some detainees at Abu Ghraib was not humane treatment. We all know that. The Army knows that. Our military knows that. I think all of us here can agree with that. It is also clear to me that the abuses that occurred at Abu Ghraib were contrary to the President's February 7, 2002, memorandum to treat them humanely. Those who committed these abhorrent abuses can and should be vigorously prosecuted and punished, and they are. Right off the bat, the investigation took place. And right off the bat, they are bringing people to justice. There is no doubt about that.
I might add, the President is not given any credit for the prosecutions of Abu Ghraib. The desire of some who always want to score political points leads them to blame all wrongdoings on the President, even in a case like this where he had nothing to do with these actions. Judge Gonzales has made it clear that he does not defend the abuses that occurred.
I am sure there are many people out there who are wondering what any of this has to do with the nomination of Judge Gonzales. Well, I have to undertake this legal analysis because some people have unfairly attacked Judge Gonzales for a draft memorandum with his name on it. The memo was dated 2 weeks before the President's order on February 7, 2002, and it suggests that the Geneva Conventions should not apply to the Taliban.
Several allegations against Judge Gonzales have been raised in the media and elsewhere, and I want to set the record straight.
It appears from recent media accounts that this draft was not even written by Judge Gonzales. As is common in many Government offices, drafts are often initially written by lower level individuals and then edited and approved by the intended high-level author.
We also know this was an early draft because other documents from the State Department indicate that Secretary Colin Powell and legal adviser William H. Taft recommended extensive changes to the draft, as they should have. The recommendations include significant changes to the structure of the memorandum, and how the information is presented, as well as correcting statements of fact and specific language.
Although we do not know what Judge Gonzales actually advised the President, and we cannot because it was confidential advice to the President, we do know the President's February 7, 2002 memorandum is consistent with the views espoused by the State Department at the time.
Judge Gonzales has told this committee that this draft:
does not represent the final advice given to the President.
It seems odd to me that our colleagues cannot accept his statement on that.
He continued:
Because it does not embody my final views as provided to the President, I have not endorsed, nor do I have any occasion to disavow, the tentative judgments about certain provisions of the Geneva Conventions reflected in that draft.
Now, some will argue Judge Gonzales ought to tell the Senate precisely what advice he gave the President on this very sensitive issue. The fear I have is that if the Senate demands this information in this instance and the White House succumbs to that demand, it will undermine the candor with which future White House Counsels communicate with future Presidents. I think most people would argue it probably would. That is why these types of conversations are privileged, and not available to the Congress of the United States.
And, I might add, even when it is in the interest of the White House, in most instances this information remains privileged because the executive branch reasonably does not wish to set a precedent that will lead to Congress asking for access to every conversation that occurs in the White House.
In this case, we have some salient facts. The President did not see the January 25, 2002, draft prior to making his February 7, 2002, decision to treat all detainees humanely. And, more important, at the end of the day, President Bush issued a policy directive that did not go as far as some of the legal advisers within the administration told them he could go under the law.
Now, the draft says some provisions of the Geneva Conventions are obsolete and quaint, such as providing athletic uniforms, scientific instruments, advances of salary, and commissary privileges. People have quoted this out of context to say that Judge Gonzales thinks all of the Geneva Conventions are obsolete and quaint.
This is simply nonsense. President Bush and Judge Gonzales know how important the Geneva Conventions are to American military personnel. We all do. As Judge Gonzales told the Judiciary Committee on January 6 of this year:
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. Contrary to reports, I consider the Geneva Conventions neither obsolete nor quaint.
Yet I have seen all kinds of comments suggesting otherwise. I know Judge Gonzales. I have worked with Judge Gonzales for 4 solid years. I knew him before those 4 years. He is a man of his word. I take him at his word on this important matter. So should my colleagues in the Senate.
Let me review this one last time because it is an important point. Judge Gonzales has told this committee in writing that he does not believe the Geneva Conventions are obsolete and quaint. He said so under oath in his confirmation hearing, and he said so again in writing in response to questions from Senators.
There have also been allegations that Judge Gonzales, because he has worked closely with President Bush for several years, is somehow incapable of having his own opinions and will be unable to give frank legal advice. I recall that similar accusations were made over 40 years ago with respect to the nomination of Robert F. Kennedy to be Attorney General of all things. As many Americans know, Robert Kennedy was President John F. Kennedy's brother and the brother of our distinguished Senator from Massachusetts and had previously served as the President's campaign manager prior to his nomination to the office of Attorney General. While there was a good deal of controversy whether he, too, could be [Page: S713] independent of his brother as Attorney General before he was confirmed, Robert Kennedy went on to become a great Attorney General, one who was and still is much admired by many in this country. I believe Judge Gonzales, too, can and will exercise that same independence.
I listened carefully to Judge Gonzales's responses during the committee's hearing, and I know that he fully understands the differences between the role of White House Counsel and the role of the Attorney General of the United States. As White House Counsel, in Judge Gonzales's own words:
I have been privileged to advise the President and his staff.
As Judge Gonzales further explained:
As Counsel to the President, my primary focus is on providing counsel to the White House and to the White House staff and the President. I do have a client who has an agenda, and part of my role as Counsel is to provide advice that the President can achieve that agenda lawfully. It is a much different situation as Attorney General, and I know that. My first allegiance is going to be the Constitution and to the laws of the United States.
Judge Gonzales understands that as Attorney General, when confirmed, he would have, as he describes it, ``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.'' This transition is no different than the type many in this body have made over the years. People from this body, attorneys, work for all kinds of clients and every manner of clients. And the well-trained advocate is always aware of who his client is. To suggest that Judge Gonzales is somehow incapable of making this transition is more than insulting. It is despicable to make that suggestion. He is a bright guy with a lot of ability, and a record of which we should all be proud.
As someone who served in private practice, as a judge, in political positions, and as an advisor to the President, his record is testament to his ability to serve his client well no matter who that is. I know Judge Gonzales. I know he will make this transition.
I guarantee you he is no ``yes'' man. He has the character, education, and experience to exercise independent judgment in the interest of the American public.
There have also been some allegations that Judge Gonzales's responses to the approximately 500 questions posed to him during the course of this nomination process were somehow incomplete. These allegations have been made notwithstanding the fact that the New York Times characterized Judge Gonzales's answers to the committee as ``one of the administration's most expansive statements of its position on a variety of issues, particularly regarding laws and policy governing CIA interrogations to terror suspects.''
Some Senators have quoted Judge Gonzales's answers out of context. They focus on the few sentences where they say he refused to provide complete information and ignore all the other sentences in response to some 500 written questions to describe at length all of his knowledge on the wide variety of issues raised by Senators.
Judge Gonzales is not someone who is trying to prevent the committee from seeing documents. To the contrary, Judge Gonzales was instrumental in the White House's release of hundreds of pages of documents revealing the administration's policies relating to the treatment of detainees last June. He helped negotiate among Congress, the Department of Defense, the Department of Justice, and the White House to declassify and publicly release documents relating to the humane treatment of al-Qaida and Taliban detainees, the application of the Geneva Conventions, the War Crimes Act, the Convention Against Torture, the Rome statute, as well as the Defense Department documents relating to specific techniques authorized and the report of the DOD working group which assessed the legal policy and operational issues relating to detainee interrogations in the global war on terrorism.
Frankly, there were good arguments for withholding some of this information or at least making it available to Congress in a classified or nonpublic forum so that the general public and our enemies in particular would not be so well informed about our interrogation techniques. But the administration and Judge Gonzales wanted to provide full disclosure to the public and declassified this information so that everyone would know what went on.
Just last week, Judge Gonzales submitted over 250 pages of responses to written questions after his hearing. That was after questions were supposed to be cut off. We used to do that in this body. We would give a fair amount of questions, which never amounted to as many as these. But just last week Judge Gonzales submitted over 250 pages of responses--single-spaced pages, by the way--to written questions after his hearing. I believe that Judge Gonzales attempted to answer the questions and be responsive. Although the deadline for submitting written questions expired on January 13, 2005, four Democratic Senators filed additional questions to Judge Gonzales on January 19, 21, 24, and 25; I understand even maybe up to the present time. Judge Gonzales provided written answers to all of those questions on or before January 25, 2005. Yet that is still not enough.
Some have tried to make a big deal out of the fact that Judge Gonzales did not personally conduct a search in response to overbroad requests for notes, memoranda, e-mail, audio recordings, or documents of any kind. What my friend from Massachusetts Senator Kennedy fails to tell the American public, however, is that the White House informed the Judiciary Committee 2 months ago that Judge Gonzales recused himself from the decisionmaking process of releasing documents because of his pending nomination. Judge Gonzales repeated his recusal at his confirmation hearing in the first week of January. Obviously, a person in Judge Gonzales's shoes may have a short-term incentive to release documents to the committee when his nomination is pending. However, the White House may have a very different and legitimate view of such release as part of the historical relationship between the Executive Office of the President and the Congress in releasing information on, for example, matters pertaining to legal advice to the President and the White House Counsel and policy recommendations on matters of national security from White House components.
It makes sense that Judge Gonzales would recuse himself during this time period. I believe it was proper for him to do so. Given Judge Gonzales's recusal, it is understandable why he personally did not conduct a search of White House records.
But placing the blame solely on Judge Gonzales is just not right.
Senator Kennedy focuses on eight instances where Judge Gonzales did not conduct a search. What do these responses have in common? First of all, they are all incredibly overbroad. One request seeks production of all notes, memoranda, e-mail, audio recordings, or documents of any kind that reflect the occurrence and substance of all meetings in which specific interrogation techniques were discussed. The request is not limited to specific documents, or documents written by Judge Gonzales, or received by him. This request wants every e-mail by anybody in the Federal Government who participated in a meeting about interrogation techniques during a war. Come on now.
Another request seeks all notes, memoranda, e-mail, and documents that reflect the CIA's request for legal advice on how far it could go in conducting interrogations, or which interrogation methods it could use and any responsive actions by the White House Counsel's Office and the Department of Justice. Now, you have an overbroad request that holds Judge Gonzales responsible not only for things he did not write, but for e-mails written by others in two different agencies that he has no direct supervision over. Let's get real here.
Let me mention some other points about these requests. In response to each one of these, Judge Gonzales, to his credit, never complains that the requests are unfair and overbroad--even though they are. He responds by saying he has no notes, or that he does not know of any audio recordings, or that he is not aware of any responsive documents. Also, for each of these requests he explains that the materials, if they did exist, would fall under a privilege. Then he says he did not conduct a [Page: S714] search. Imagine how futile it would be to look for e-mail or handwritten notes of other people in other agencies about such a broad topic like interrogation techniques that would then be subject to a privilege?
I know what this tactic is. Ask for the kitchen sink in the hopes of trapping the nominee with an unartful answer, so it can be claimed that he is not forthcoming. In other words, this is pure, unmitigated politics.
It is entirely transparent that the anti-Gonzales vote is pure politics and nothing more.
Judge Gonzales is a good man. He has not tried to hide the ball. There may well be legitimate requests for specific documents made by members of the Judiciary Committee at a later date as we learn more about the abuses at Abu Ghraib. There may also be legitimate questions about when and under what circumstances various executive privileges apply. I don't know, there may be. But this is just not one of those occasions. It is as simple as that.
Look, this is not just any nomination. This is a nomination for the Attorney General of the United States of America. This is the first Hispanic ever nominated for that position, or for any of the big four positions in the Cabinet of any President. I am chairman of the Republican Senatorial Hispanic Task Force. We work with Hispanic people all over America who are every bit as devoted to our country as any citizen who has ever been in this country. I personally love Hispanic people. I can truthfully say I love this man as well because he is a good man. I have seen him give good advice. I have seen him work very hard to try to be accurate. I have seen him cooperate with our committee time after time. I have seen him keep his cool in the face of some of the outrageous requests that were made over the time I was chairman of the Senate Judiciary Committee. I have seen him run the White House Counsel's Office, and he has done a terrific job. He is a good administrator, a good lawyer. He has tremendous judicial experience.
This man, regardless of his background, should be confirmed immediately as Attorney General of the United States of America. Frankly, I know my friends in the Hispanic community, and Hispanic people all over
America, are watching this debate, and they are sensing something very unfair going on here. Every Democrat who opposed this man on the Judiciary Committee--virtually every one, as far as I can recall--talked about his great and humble background, how he came from nowhere and accomplished all he did, and what a good man he is. But they always have some reason to vote against him.
I suspect there are a lot of politics being played here. We all know Alberto Gonzales has constantly been mentioned by the media and everybody else as someone who might ultimately wind up on the Supreme Court of the United States of America. Actually, if he never winds up there, being Attorney General is not too bad. It is one of the greatest positions in any country anywhere and certainly in our country. And to have this man come from the most humble of circumstances, which typifies the struggle every immigrant family in this country has gone through, and to not give him this opportunity when he is fully qualified for it, I think, would be a travesty. Let me conclude by telling my colleagues and the American public that I know Alberto Gonzales well. He is a good man. He is a fair man. He understands persecution. He understands prejudice. He understands the need to fight back to make it in this life, regardless of all of the obstacles in his way. I believe when he is confirmed, Judge Gonzales will make an excellent Attorney General. He has been fair to everybody on our committee time after time.
The Senate should not stand in his way of becoming the next Attorney General of the United States. I do not believe it will. I do not believe people should be voting against this good man. If people vote against him, we have to stop and think, ``Why are they doing that to a man of his quality?''
When Judge Gonzales accepted the President's nomination for Attorney General, he said the following:
When I talk to people around the country, I sometimes tell them that within the Hispanic community there is a shared hope for an opportunity to succeed. Just give me a chance to prove myself--that is a common prayer for those in my community.
I ask my colleagues to do exactly that--give Judge Gonzales a chance to prove himself. He will not let you down. I urge my colleagues to vote for Judge Gonzales to be the next Attorney General of the United States, and we will be very wise if we do so.
