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."

He said he could not recall what he said when he discussed with Justice Department attorneys the contents of the now-infamous "torture" memo of Aug. 1, 2002, the one which independent investigative reports have found contributed to detainee abuses first in Guantanamo and Afghanistan and, later, Iraq.

When asked whether he agreed with the now repudiated conclusions contained in that torture memo at the time of its creation on Aug. 1, 2002, Alberto Gonzales stated: "There was discussion between the White House and the Department of Justice as well as other agencies about what does this statute mean ... I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the Department."

He added that, as counsel to the president, it was not his responsibility to approve opinions issued by the Department of Justice. He said, "I don't believe it is my responsibility, because it really would politicize the work of the career professionals at the Department of Justice."

One must wonder what the job of White House counsel entails, if it does not involve giving the president the benefit of one's thinking on legal issues.

Perhaps one reason Judge Gonzales says he does not remember what he said in those meetings is because, as soon as the torture memo was leaked to the press, he had to disavow it. Once it became clear that the White House believed – based on those meetings – that only the most egregious acts imaginable could be prohibited as torture, the memo received universal opprobrium. Thus, the administration had little choice but to repudiate it, and, in June 2004, Alberto Gonzales announced its withdrawal. He then directed the Justice Department to prepare new legal analysis on how to interpret prohibitions against torture under U.S. and international law.

Strangely, however, that new analysis was not available to the public for six more months. Finally, on Dec. 30, just one week prior to the Gonzales nomination hearing, a memorandum containing the administration's most recent take on the subject was issued by the Justice Department.

With the benefit of 20-20 hindsight and perhaps a keen desire to be confirmed as the next attorney general of the United States, Judge Gonzales told the committee on Jan. 6 that the analysis of the Aug. 1, 2002, memo no longer represents the official position of the Executive Branch of the United States.

If Judge Gonzales didn't see fit to question the Justice Department's official position on torture in 2002, what made the Administration change its mind in 2004? Was it a careful review of the legal issues? Or simply political back-peddling in light of the public knowledge of what its policies had brought about in Gitmo, Abu Ghraib, and elsewhere?

I note in passing that the "torture" memo was written in 2002 by then-Assistant Attorney General Jay Bybee, who is now a federal judge on the Ninth Circuit Court of Appeals. God help the Ninth Circuit. I would like the record to reflect that 18 other Senators and I voted to reject the nomination of Jay Bybee to be a federal judge, a decision I, for one, do not regret.

The Bybee memo drew universal condemnation and scorn for at least two of the legal opinions that were included in its text. First, it described torture as being prohibited under U.S. law in only very circumscribed circumstances. It defined torture so narrowly that horrific harm could be inflicted against another human being in the course of an interrogation overseas and not be prohibited. According to the memo, unless such acts resulted in organ failure, the impairment of a bodily function, or death, they could be considered legal. In fact, the first page of the memorandum states, "We conclude that the statute [against torture], taken as a whole, makes plain that it prohibits only extreme acts ... This confirms our view that the criminal statute penalizes only the most egregious conduct."

The second but equally shocking and erroneous legal conclusion reached in the so-called "torture" memorandum states, "We find that in the circumstances of the current war against al Qaeda and its allies, prosecution under Section 2340A [- the relevant provision of U.S. law prohibiting torture -] may be barred because enforcement of the statute would represent an unconstitutional infringement of the president's authority to conduct war" as the commander in chief. This means the White House believed that a president can simply "override" the U.S. law prohibiting torture, just because he disagrees with it. He can ignore the law by proclaiming, in his own mind, that the law is unconstitutional. Not because a court of the United States has found the law to be unconstitutional, but because a war-time president decides he simply does not want to be bound by it.

What an astounding assertion! Think of it! A president placing himself above the law, in effect, crowning himself King.

This outrageously broad interpretation of executive authority is so antithetical to the carefully calibrated system of checks and balances conceived by the founding fathers, it seems inconceivable that it could be seriously contemplated by any so-called legal expert, much less attorneys of the U.S. Justice Department or the White House counsel.

Has this White House no appreciation for the struggle that this nation endured upon its creation? Can it really believe that a president can circumvent the will of the people and their legislature by adopting and disseminating a legal interpretation that would, in the end, protect from prosecution those who commit torture in violation of U.S. law?

Alexander Hamilton in Federalist No. 69 described in detail exactly how the American system can and must be distinguished from the British monarchy. He wrote: "There is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone, what the other can only do with the concurrence of a branch of the Legislature."

No one man, no president, not his White House counsel, nor all of the attorneys in the Office of the Legal Counsel in the Justice Department can, on their own, act in contravention of a law passed by Congress.

No president can nullify or countermand a U.S. law to shield from prosecution those who would commit, or attempt to commit, torture. But that was the result sought by the White House.

When asked by Sen. Durbin if he still believes that the president has the authority as commander in chief to ignore a law passed by Congress – to decide on his own whether it is unconstitutional or to simply refuse to comply with it – Judge Gonzales stated that yes, he believes it is theoretically possible for the Congress to pass a law that would be viewed as unconstitutional by a president, and, therefore be ignored.

And even though the torture memo was replaced by a new memorandum on Dec. 30, the replacement memorandum does not reject the earlier document's shockingly overly expansive interpretation of the president's commander in chief power. Instead, the new memo states that, because that portion of the discussion in the earlier memo was "unnecessary," it has been "eliminated" from the new analysis.

Particularly disturbing is the fact that, although the new analysis repudiates the earlier memo's conclusion that all but extreme acts of torture are permissible, Judge Gonzales could not tell us whether this repudiation of prior policy has been communicated to those who are today doing the interrogating.

This is important because there is language contained in the now-repudiated torture memo that was relied on in Guantanamo and parts of which were included word-for-word in the military's "Working Group Report on Detainee Interrogations in the Global War on Terrorism." This report, dated April 2003, has never been repudiated or amended, and may be relied upon by some interrogators in the field.

When asked whether those who are charged with conducting interrogations have been apprised of the administration's repudiation of sections of the Bybee memo and the administration's attendant change in policy, Judge Gonzales did not know the answer.

Judge Gonzales continues to deny responsibility for many of the policies and legal decisions made by this administration. But the Fay and Schlesinger reports corroborate the fact that policy memos on torture, ghost detainees and the Geneva Conventions, which Judge Gonzales either wrote, requested, authorized, endorsed, or implemented, appear to have contributed to detainee abuses in Afghanistan, Guantanamo Bay, and Iraq, including those that occurred at Abu Ghraib.

The International Committee of the Red Cross has told us that abuse of Iraqi detainees has been widespread; not simply the wrongdoing of a few, as the White House first told us. And the abuse occurred not only at Abu Ghraib. Last week, the Los Angeles Times reported that documents released last Monday by the Pentagon disclosed that prisoners had lodged dozens of abuse complaints against U.S. and Iraqi personnel who guarded detainees at another location – a little-known palace in Baghdad that was converted into a prison. The documents suggest, for the first time, that numerous detainees were also abused at one of Saddam Hussein's former villas in eastern Baghdad. The article noted that, while previous cases of abuse of Iraqi prisoners had focused mainly on Abu Ghraib, allegations of abuse at this new location included that guards had sodomized a disabled man and killed his brother, then "tossed" his dying body into a cell, on top of his sister.

Judge Gonzales admits that he was physically present at discussions regarding whether acts of this nature constitute torture, but don't expect him to take responsibility for them.

Don't hold me accountable, he says. It wasn't I. And he doesn't just point fingers at the Justice Department. He spreads the blame around. While he admitted he'd made some mistakes, he attempted to further deflect responsibility for his actions by saying the "operational agencies" also had responsibility to make decisions on interrogation techniques – not him.

Here is exactly what he said:

I have a recollection that we had some discussions in my office, but let me be very clear with the Committee. It is not my job to decide which types of methods of obtaining information from terrorists would be the most effective. That job responsibility falls to folks within the agencies. It is also not my job to make the ultimate decision about whether or not those methods would, in fact, meet the requirements of the anti-torture statute. That would be the job for the Department of Justice ... I viewed it as their responsibility to make a decision as to whether or not a procedure or method would, in fact, be lawful.

One wishes that Judge Gonzales could have told us what his job was, rather than telling us only what it was not! Talk about passing the buck!

Well, at the end of the day, one can only wonder then, what legal advice, if any, he actually gave the president. Does Judge Gonzales have an opinion on the question of what constitutes torture? Does the president? Does he or does the president have an opinion on the related question of whether it is legal to "relocate" detainees to "facilitate" interrogations? Do they believe it is morally or constitutionally right? Do we know?

According to Art. II, Sec. 3 of the United States Constitution, as head of the executive branch, the president has a legal duty to take care that the laws be faithfully executed. The Constitution does not say that the president "should" or "may" undertake that responsibility: it clearly states that the president "shall take Care that the Laws be faithfully executed." He is duty-bound to undertake that responsibility under the Constitution of the United States. And the president and his counsel must be held accountable for not only failing to faithfully execute our laws, but for trying to undermine, contravene, and gut them.

With such a track record, how can we possibly trust this man to be the attorney general of the United States? What sort of judgment has he exhibited?

As I stated with respect to Dr. Rice, there needs to be accountability in our government. There needs to be accountability for the innumerable blunders, bad decisions, and warped policies that have led the United States to the position in which we now find ourselves: trapped in Iraq amid increased violence; disgraced by detainee abuses first in Guantanamo, then in Afghanistan, Iraq, and probably in locations we have yet to discover; shunned by our allies; and perceived by the world community, rightly, as careening down the wrong path.

I do not believe our nation can rely on the judgment of a public official with so little respect for the rule of law. We cannot rely on the judgment of someone with so little regard for our constitutional system of government. I simply cannot support the nomination of someone who, despite his assertions to the contrary, obviously contributed in large measure to the atrocious policy failures and the contrived and abominable legal decisions that have flowed from this White House over the past four years. For all of these reasons, I have no choice but to vote against the nomination of Alberto Gonzales to be the next attorney general of the United States.

              

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