February 3, 2005

Mr. President, I rise to speak on the nomination of Alberto Gonzales to serve as Attorney General.

I would as an initial matter note that I know one of our colleagues came to the Floor yesterday and spoke some words of Spanish in support of the nomination. Some have urged me to speak Spanish, as well. Certainly, I take great pride in the fact that I have lived in a Spanish-speaking country. I have been a long-time member of the Senate subcommittee that concerns itself with Latin American affairs. I understand that this nomination is a matter of ethnic pride to many.

But to suggest that this nomination is only or even principally a matter of ethnic pride does a disservice to the Latino community. As far as I can tell, members of that community are no different than people throughout our country.

They want to know not only who you are, and what you are, but what you think and what you believe. They want to know if the person nominated as the Nation's chief law enforcement officer will uphold the rule of law.

The outcome of this nomination is at this hour not in doubt. It appears likely if not certain that Mr. Gonzales will be confirmed by the Senate 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.

Nevertheless, I have asked for time to participate in this debate because of the important questions that this nomination raises for the Senate and for our country. I want to thank the two leaders for allotting ample time for a full debate on those questions.

I will oppose this nomination. I say that with some regret. Like all or nearly all of my colleagues, I had very high hopes for this nomination. When Mr. Gonzales was nominated for this position several weeks ago, I don't know of a single Senator who at that time expressed an intention to vote against him. That is certainly the case with this Senator.

However, I also said at that 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 careful, thorough, and substantive hearings. They have given members of the Committee every opportunity to ask questions of the nominee. And they have given the nominee every opportunity to answer those questions.

I have long adhered to the practice of according presidents great deference in their nomination of term-limited appointees. Those who campaign for and win the highest office in the land deserve, in my view, to name their "team", if you will.

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 which he or she seeks to hold? And second, has the nominee demonstrated an understanding of the duties he or she will be required to discharge if confirmed?

Based on that standard of review, I have supported an overwhelming number of Cabinet nominees during nearly a quarter century of service in this body. That includes nominees of this President, including the current Attorney General.

It also includes nominees proposed by a president and opposed by a majority of members of my party -- including, in at least one instance, opposed by a majority of the Senate.

But I have, on rare occasions, opposed Cabinet nominees - including nominees supported by the majority of the members of the Senate and the majority of members of my own party.

There is no question in my mind 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. He has a demonstrated commitment to public service. And like our other colleagues, I have been deeply impressed by his proud family history.

But this nomination is not simply about Alberto Gonzales's impressive personal qualities.
If it were, he would be unanimously confirmed. What is at stake here 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, he has fallen short of meeting this most basic and fundamental standard.

I say that for two basic reasons:

One, because in a nation founded on the principle of human freedom and dignity, he has endorsed the position that torture is 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 laws and treaties prohibiting torture - and may authorize subordinates to do the same.

I will briefly address each of these issues in turn.

The issue of torture is relatively straightforward. And it is this: Is it acceptable for the United States of America ever to effect or permit the torture or cruel, inhuman and degrading treatment of human beings?

The Constitution 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 subject 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, approved by former Senate Foreign Relations Chairman Helms and a unanimous committee - says that "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 Manuel 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 that "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 by our soldiers in the theater of war to protect their lives and do their duty - expressly prohibits torture. Why? Because - to again quote 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."
Mr. President, 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 to privacy, just to name a few. But the right to be free from torture or similar treatment - this has never been in doubt, has never even 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 this nominee has in crucial respects 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 citizens.

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 us review the record.

In January of 2002, Mr. Gonzales wrote a memorandum to the President 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 U.S. or opposing forces engaged in armed conflict, despite several opportunities to do so." But then he 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 Powell. He pointed out that "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 this specific conflict and in general…. It will [also] undermine public support among critical allies, making military cooperation more difficult to sustain." Secretary Powell's legal advisor 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 US over the previous half-century, the practice of all other parties to the Conventions, and the terms of the UN Security Council resolution authorizing the intervention in Afghanistan.

Ultimately, in February 2002, the President ordered that all detainees captured by US forces be treated in "a manner consistent with" the Geneva Conventions.

But it has been pointed out that the treatment of detainees at places like Abu Ghraib and Guantanamo raise questions about whether this order was effective in actually according detainees the protections of the Conventions.

What is most troubling is that Mr. Gonzales argued for a view of the Geneva Conventions that was inconsistent with American law, American values, and America's self-interest.

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's Office of Legal Counsel. This memorandum was accepted by the Administration as policy until December of 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 fifty 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 that 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 even death." Any other conduct would not, as defined by this document, constitute torture - and thus would be allowed.

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 Iraqi's 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. It says that the criminal prohibition against torture "does not apply to the President's detention and interrogation of enemy combatants pursuant to his 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, Mr. President, 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 need do to avoid sanction is show that he was "just following orders." Whether or not 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 at Yale Law School. He served in the Reagan Justice Department and the Clinton State Department. In testimony last month before the Judiciary Committee, 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 Mr. Gonzalez.
There is no evidence in the record that he even questioned them, much less disagreed with them. Apparently, he had them shared with the Defense Department.

At his confirmation hearing, Senator Leahy asked Mr. Gonzales whether he agreed with the memorandum's legal reasoning on the issue of torture. He replied: "I don't have a disagreement with its conclusions".

Senator Kohl asked if he agreed with Attorney General Ashcroft's statement that he does not believe in torture because it does not produce anything of value. Mr. Gonzales replied "I don't have a way of reaching a conclusion on that."

"[D]on'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 can't reach a conclusion about the illegality and the 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 that torture is against the law?

What does it say about our Nation's commitment to equal justice under law that this nominee would have the President and his subordinates be above the law?

How do we explain this to the citizens of our country, to the citizens of other nations, and most especially to the citizens of tomorrow - to 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 on who you are?

Mr. President, almost sixty years ago to this 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, my father was on a plane to Nuremberg, Germany. There, he began what would be perhaps the most formative experience of his professional life: 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.

Yet the United States, as a member of the Allied powers, insisted on the rule of law rather than the rule of the mob.

Even these most despicable and depraved human beings were given an opportunity to retain counsel and to testify in their own defense.

And in that moment in history, the world learned something very important about the United States of America.

It learned that this nation will 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 are: a cowardly excuse, which has no place in a nation of free men and women.

Mr. President, as I said earlier, the outcome of this nomination is in little doubt at this hour. I do not expect that the nominee in question is paying attention to these proceedings. But I hope he will pay heed to the lessons of history. In his second State of the Union address, 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 its captives, including those in places like Abu Ghraib prison and Guantanamo Bay.

By treating them according to our standards -- not theirs - we feed the flame of liberty and justice that has rightly led our nation on its journey for these past two and a quarter centuries.

I yield the Floor.

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