Respecting the Spirit and Letter of the Law

By Senator Robert Byrd, AlterNet. Posted February 3, 2005.

Sen. Byrd delivered the following remarks regarding the nomination of Alberto Gonzales to be the nation's next attorney general. During the speech, the senator expressed strong concerns about Mr. Gonzales' role in the prisoner abuse scandals that have arisen from cases in Iraq and Afghanistan and at Guantanamo Bay, and the use of torture as an approved American interrogation policy. Sen. Byrd also told his colleagues that the nominee, as the White House counsel, has been responsible for programs and policies that undermine the principles of the Constitution of the United States.

Alberto Gonzales is counsel to the president of the United States. For the past four years, Alberto Gonzales has served as the chief legal advisor to President Bush, housed in the West Wing of the White House, a stone's throw from the Oval Office.

The official biography of Alberto Gonzales on the White House web site states that, before he was commissioned to be White House counsel, Judge Gonzales was a justice on the Texas Supreme Court. Prior to that, he served as the 100th Secretary of the State of Texas, where one of his many duties was to act as a senior advisor to then-Gov. George W. Bush. Before that? He was general counsel to Gov. Bush for three years.

So, for over a decade, Alberto Gonzales has been a close confidante and advisor to George W. Bush, and the president has confirmed his personal and professional ties to Judge Gonzales on many occasions. The president has described him as both a "dear friend" and as "the top legal official on the White House staff." When he nominated Alberto Gonzales to be the next attorney general of the United States, the president began by asserting, "This is the fifth time I have asked Judge Gonzales to serve his fellow citizens, and I am very grateful he keeps saying 'yes' ... as the top legal official on the White House staff, he has led a superb team of lawyers."

In praising his nomination of Alberto Gonzales, the president specifically stressed the quintessential "leadership" role that Alberto Gonzales has held in providing the president with legal advice on the war on terror. The president stated specifically that it was his "sharp intellect and sound judgment" that "helped shape our policies in the war on terror." According to the president, Alberto Gonzales is one of his closest friends who, again in the words of the President, "always gives me his frank opinion."

Imagine, then how perplexing and disheartening it has been to review the responses, or should I say, lack thereof, that were provided by Alberto Gonzales to Members of the Senate Judiciary Committee at his confirmation hearing on Jan. 6. It seemed as if, once seated before the committee, Judge Gonzales forgot that he had, in fact, been the president's top legal advisor for the past four years.

It was a strangely detached Alberto Gonzales who appeared before the Senate Judiciary Committee. Suddenly, this close friend and advisor to the president simply could not recall forming opinions on any number of key legal and policy decisions made by the Bush White House over the past four years. And this seemed particularly true when it came to decisions which, in retrospect, now appear to have been wrong.

When asked his specific recollection of weighty matters, Judge Gonzales could provide only vague recollections of what might have been discussed in meetings of monumental importance, even during a time of war. He could not remember what he advised in discussions interpreting the U.S. law against torture, or the power of the president to ignore laws passed by Congress – discussions which resulted in decisions that reversed over 200 years of legal and constitutional precedents relied on by 42 prior presidents. That's pretty hard to believe.

In fact, if one did not know the true relationship between the president and this nominee, or had never heard the president refer to the "frank" advice he has received from Judge Gonzales, one would think from reading his hearing transcript that Alberto Gonzales was not really the White House Counsel. Instead, one would think he is simply an old family friend who, yes, is happy to work near the seat of power, but makes no big decisions, has no legal opinions of his own, and certainly feels no responsibility to provide independent recommendations to the president.

I find it hard to believe that the top legal advisor to the president cannot recall what he said or did with respect to so many of the enormous policy and legal decisions that have flowed from the White House since Sept. 11 in particular. It is especially difficult to comprehend this sudden memory lapse, when the consequences of these decisions have had, and will continue to have, profound effects on world events for decades to come.

Judge Gonzales was asked whether he had chaired meetings in which he discussed with Justice Department attorneys such interrogation techniques as strapping detainees to boards and holding them under water as if to drown them. He testified that there were such meetings, and he did remember having had some "discussions" with Justice Department attorneys, but he cannot recall what he told them in those meetings. When Sen. Kennedy asked if he ever suggested to the Justice Department attorneys that they ought to "lean forward" to support more extreme uses of torture as reported by The Washington Post, he said, "I don't ever recall using the term." He stated that, while he might have attended such meetings, it was not his role but that of the Justice Department to determine which interrogation techniques were lawful. He said, "it was not my role to direct that we should use certain kinds of methods of receiving information from terrorists. That was a decision made by the operational agencies ... And we look to the Department of Justice to tell us what would, in fact, be within the law."

Liked this story? Get top stories in your inbox each week from AlterNet! Sign up now »