Statement of
Senator Richard J. Durbin
on the nomination of
Alberto R. Gonzales
to be Attorney General of the
United States
Earlier this week, I had the
opportunity to meet with Mr. Alberto Gonzales. He is an impressive
individual with a record of achievement and an inspiring personal story.
With hard work and determination, he overcame difficult circumstances to become
the first in his family to attend college. He went on to
I do not question his background or dedication. However, I do have concerns, particularly regarding his role as the architect of the Bush Administration’s policies on detention and treatment of prisoners since 9/11. His record on this issue raises serious questions of judgment and commitment to the rule of law.
In our meeting, Mr. Gonzales told
me repeatedly there was no connection between the “torture memos” drafted by
senior officials of this Administration and the prison abuses that took place
in either
I respectfully disagree. Blaming Abu Ghraib completely on renegade night-shift soldiers ignores critical decisions on torture policies made at the highest levels of our government – decisions that Mr. Gonzales played a major role in making. If we are going to hold those at the lowest levels accountable, it is only fair to hold those at the highest levels accountable.
Let us review what we now know:
· First, over the strenuous objections of Secretary of State Colin Powell and the Joint Chiefs of Staff, Mr. Gonzales recommended to the President that the Geneva Conventions should not apply to the war on terrorism.
·
The President accepted this
recommendation. He issued a memo concluding that “new thinking in the law
of war” was needed and that
· Next, Mr. Gonzales requested the Justice Department torture memo, which adopted a new, very restrictive definition of torture and concluded that the torture statute, which makes torture a crime, does not apply to interrogations conducted under the President’s Commander-in-Chief authority.
· Then, relying on the President’s “new thinking” on the Geneva Convention and the Justice Department’s new definition of torture, the Defense Secretary Rumsfeld approved numerous abusive interrogation tactics for use against prisoners in Guantanamo Bay – even as he acknowledged that “some nations” may view them as “inhumane.”
·
The Red Cross has since concluded that the use
of these methods at
·
The Commander of Guantanamo Bay’s detention
operations gave the
The horrible images that emerged from Abu Ghraib have seared into our minds the nature of some of these techniques, including the forced removal of clothing, using dogs to intimidate detainees, and placing detainees in painful stress positions.
There is no room for legal hair-splitting when it comes to the humane treatment of detainees – not in a nation founded on the rule of law and respect for human rights. The tortured debate about torture, conducted at the highest levels of our government, sent a signal to our commanders and troops that the law of war is an obstacle to be overcome, not a bright line that cannot be crossed.
Before Mr. Gonzales can assume the position of the top law enforcement official of the land, this Committee must determine what his involvement was in the development of this new torture policy and whether his views are consistent with the settled laws that we have relied upon for decades.
I am also very concerned about this Administration’s refusal to cooperate with Congress on this issue.
In a June 2004 press conference, Mr. Gonzales stated that the torture memos show that the Bush Administration engaged in a “thorough and deliberative process” on the law of war and torture.
However, the record does not support that statement. Congress was not involved in this process and Congress under our Constitution has the power to make law.
Article I of the United States Constitution states that Congress makes laws, not the President. If the President wants to change the law of war, which has served our country well since the time of President Abraham Lincoln, it is not enough to simply ask his lawyer to do so. He must come to Congress and ask the people of this nation through their elected representatives to change the law like every other President.
I am troubled that this Administration has not been forthcoming in providing information about the prisoner abuse scandal. Congress learned about the Abu Ghraib prison abuses from the media, even though Administration officials knew about it months before it became public.
From the day the story broke until today, the Administration has insisted that the prison scandal is limited to isolated abuses by a small group of rogue soldiers. We now know that is not true; senior-level officials had explicitly approved the use of abusive interrogation techniques.
Last June, Attorney General Ashcroft came before this Committee. He assured us, “It is not the job of the Justice Department or this administration to define torture.” Despite Attorney General Ashcroft’s denial, we now know that is exactly what the Justice Department did in its torture memos.
We asked the Attorney General to provide us with the memos. He refused to do so, but he cited no legal authority to justify this refusal.
Over six months later, Congress still has not received many of the documents that we have requested, and there remain many troubling, unanswered questions. This Republican-controlled Congress has remained passive despite the historic importance of this debate and the ghastly reports of torture used by American operatives.
For example, there have been numerous reports about the CIA using torture tactics such as “waterboarding,” submerging detainees in water to simulate drowning. Despite our repeated requests, we have no information about what the CIA’s interrogation standards are, and the role Mr. Gonzales played in developing and approving these standards. I hope that this Committee receives answers to these questions today.
Last June, in response to the torture scandal, I offered a bipartisan, anti-torture amendment to the Defense Department authorization bill. My amendment, which was cosponsored by Chairman Specter, as well as Senators McCain, Feinstein, Leahy, Kennedy, and Levin, was adopted unanimously by the Senate.
The Durbin amendment affirms the
For reasons that I still do not understand, the Bush Administration opposed my amendment. Ultimately, the amendment was enacted into law – over the Administration’s objections.
Last fall, the bipartisan 9/11
Commission recommended unanimously that the
In response, I worked with Senator McCain and Senator Lieberman on an amendment to the intelligence reform legislation. The amendment simply would have extended the requirements of my Defense Department Authorization amendment to the intelligence community.
Again, the amendment was adopted unanimously by the Senate. Again, it was opposed by this Administration. At the insistence of the White House, the amendment was removed in conference and still has not been enacted into law.
Let me explain why I am so concerned about this issue. This is not about partisan politics. It is about our ability to win the war on terrorism and to maintain our character as a freedom-loving society. And it is about protecting American soldiers.
Former Congressman Pete Peterson,
who was a prisoner of war in
From my 6 ½ years of captivity in
The United States Army agrees. The Army Field Manual on Intelligence Interrogation states:
Use of torture and other illegal
methods 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. Revelation of use of torture by
In other words, weakening the rules
against torture makes us less secure, not more. Torture produces
unreliable information, makes it more difficult to win wars, and places our
troops at risk.
The 9/11 Commission correctly
concluded that the prisoner abuse scandal has damaged our ability to combat the
terrorist threat. In the Commission’s words, “Allegations that the
Sadly, pictures from Abu Ghraib have become recruiting posters for Al-Qaeda. To remedy this problem, we must heed the words of Revolutionary Thomas Paine, who said: “He that would make his own liberty secure must guard even his enemy from oppression.”
This hearing today is about more than Mr. Gonzales’ personal story, as compelling as it is. This is about how we are perceived in the world, and how those perceptions affect the safety of our troops in the field and our citizens here at home. This is about our ability to win the war on terrorism. There are many serious and troubling questions that must be answered about Mr. Gonzales’ role in developing this Administration’s policies.
In addition to his troubling record on the Geneva Convention and the torture scandal, I am concerned about some other aspects of Mr. Gonzales’ record.
His decade of public service in state and federal government, while commendable, includes instances where the decisions and judgments he made must be questioned. Without a full discussion of these issues, we do not know whether he will be able to maintain the objectivity and balance necessary to carry out the duties of the office of Attorney General.
I am particularly concerned by Mr. Gonzales’ role as General Counsel in advising then-Texas Governor George W. Bush on the clemency petitions of 59 death row inmates between 1995 and 1997.
In my meeting with Mr. Gonzales, we discussed his role in advising Governor Bush on whether these executions should go forward. I asked him whether he had ever recommended clemency for any of these 59 individuals in light of the possibility that some of their cases raised serious questions of innocence or due process, including the lack of adequate counsel.
Mr. Gonzales explained that he never once felt that clemency should be accorded because he and the Governor were obligated to follow the recommendations of the state’s Board of Pardons and Paroles. But when I asked him who appoints members of that Board, Mr. Gonzales admitted that it was the Governor who appointed those members. Furthermore, his response ignored the Governor’s authority to order the Board to hold a hearing or to conduct an investigation into any case in which the Governor has doubts about guilt or due process. The Governor of Texas even may instruct the Board to reconsider a negative recommendation on clemency.
Therefore, Mr. Gonzales’ answer suggests to me that, even in matters of life and death, Mr. Gonzales may have been unable or unwilling to seek out and consider information from sources beyond those who serve their own political interests.
In particular, the circumstances surrounding some of the 59 death penalty cases trouble me because of what appears to be a lack of effort on the part of Mr. Gonzales to thoroughly investigate and report to the Governor all of the pertinent facts.
For example, in the case of David Wayne Stoker, Mr. Gonzales’ briefing memo to the Governor – which appears to be the only written record of his legal analysis of the case and his recommendation to the Governor – omitted important details, including a key witness’ recantation of his original testimony and the fact that the psychiatrist who testified that Stoker was a sociopath who would be violent again had never even examined Stoker and had been expelled from the American Psychiatric Association.
In the case of Irineo Tristan Montoya, Mr. Gonzales’ briefing memo – again, the only written communication between the Governor and his top lawyer concerning this man’s fate – did not even mention the most important issue raised in the clemency petition: whether the Vienna Convention on Consular Relations had been violated.
Finally, Mr. Gonzales’ briefing memo on Carl Johnson’s clemency petition did not inform Governor Bush that Johnson’s trial lawyer had literally slept through major portions of the jury selection.
I hope that Mr. Gonzales will be able to fully explain his role in these clemency decisions so that we can have more confidence in his ability to pursue justice objectively and fairly as Attorney General.
I also have concerns about Mr. Gonzales’ record as White House Counsel where he was responsible for overseeing the Bush Administration’s judicial nomination selection process.
During President Bush’s first term, the judicial nomination process unfortunately reached new lows of controversy and contention. This Administration’s unilateral approach to the Constitution’s Advice and Consent process has exacerbated tensions between the White House and the Senate as much as any issue over the past four years.
As the primary White House official responsible for vetting the President’s nominees, Mr. Gonzales recommended nominees who were known to be controversial and unacceptable to many Senators. Yet, rather than seeking advice from the Senate as required by the Constitution, Mr. Gonzales instead accused Senate Democrats of using “obstructionist” and “unconstitutional” tactics because 10 of President Bush’s 230 judicial nominees were blocked during the last Congress.
The record is clear. President Bush had 204 judicial nominees confirmed in his first term alone – exceeding the number approved under the previous three Presidents during similar timeframes.
The Senate’s record of confirming so many nominees over the past four years has resulted in the lowest vacancy rate in the federal bench since the Reagan era. There are more federal judges serving today than at any time in history.
Yet Mr. Gonzales and this White House continue to seek confrontation rather than compromise when it comes to the federal bench. They chose to give recess appointments to nominees who were blocked in Congress.
The President has announced that he will re-nominate every rejected judicial nominee from the last Congress (except those who withdrew) to provide his party in the Senate an unprecedented opportunity to exercise the “nuclear option” and throw out 200 years of Senate rules and tradition.
While we will have ample opportunity over the coming months to debate the complex issues of appointing federal judges, I hope that at this hearing, we can explore some of the decisions made by Mr. Gonzales as White House Counsel that may have helped create the contentious situation we have today over this issue.
I thank the Chairman for scheduling this hearing and I look forward to hearing from the nominee and the witnesses.