Vol. 151

WASHINGTON, TUESDAY, FEBRUARY 1, 2005

No. 8

Senate

Statement of Senator Dianne Feinstein

Nomination of Alberto Gonzales to be Attorney General of the United States

Mrs. FEINSTEIN. Mr. President, Ithank the ranking member.I rise today to explain why I deeplyregret I cannot vote to confirm AlbertoGonzales to be the next AttorneyGeneral.I believe as a general rule thePresident is entitled to the Cabinet of his choice. But one Department, theDepartment of Justice, alwaysdeserves special attention fromCongress because it does not existsolely to extend the President'spolicies.Though the Attorney Generalserves under the President, he mustindependently interpret the laws aswritten by Congress and be truly thecountry's chief law enforcementofficer.I cannot emphasize this enough.The Department of Justice must beindependent from the White House.The FBI must be independent. TheU.S. attorneys must be independent.The Criminal Law Division, theEnvironmental Law Division, theCivil Law Division must all beindependent. The Solicitor General'sOffice, which argues before theSupreme Court, must be independent.The Office of Legal Counsel, which ischarged with interpreting the law of the executive branch, must beindependent. The Civil RightsDivision must be independent.These departments are chargedwith nothing less than following,interpreting, and implementing the lawof the United States of America. TheDepartment of Justice is in charge of defending the Nation in court. It is incharge of advising the rest of theGovernment about what the lawmeans. It is in charge of overseeingthe investigations of the FBI, and it isin charge of deciding when toprosecute criminals and send them toprison. This is obviously a bigportfolio.The head of the Department of Justice is the chief law enforcementofficer of the United States. As such,the Attorney General is in charge of 59 separate divisions within theDepartment of Justice, which covermore than 110,000 employees. In myview, before we vote to confirm to putsomeone in charge of all this awesomepower -- and it truly is awesome-- it isimportant for us to know what thatindividual thinks about the majorpolicies the Department will beimplementing. And that is where Ihave been disappointed by theconfirmation process for JudgeGonzales.When President Bush nominatedJudge Gonzales, I think many of uswere prepared to give him the benefitof the doubt. But the hearingscrystallized how little we knew abouthis own policy views, how little weknew about his qualities forleadership, his policy views, hismanagement style, his strength of character, and his personal beliefs inthose areas where he sets the tone andthe policy. I think this was a greatmissed opportunity.John Ashcroft served 6 years in theSenate. We knew his service on theJudiciary Committee. We knew abouthis views. One could decide about hispersonal views, yes or no. JudgeGonzales has spent so many yearsserving President George Bush. If confirmed, this will be the fifth jobGeorge Bush appointed JudgeGonzales to over the past decade. Thehearings were his first real opportunityto show his own views. I think this iswhy the hearing process became soimportant in many of our views.This was a crucial opportunity forJudge Gonzales. Many of us wereprepared to vote for him. If there is asingle issue that defines thisconfirmation process, it is what JudgeGonzales thinks about torture andbrutal interrogation practices.He reminded us again and againthat both he and the Presidentcondemn torture. But as we knowfrom the Bybee memo of August2002, for at least 2 years, the FederalGovernment followed a definition of torture that was excessively narrow.In fact, it was considered so incorrectthat the Department of Justice revokedit on the eve of Judge Gonzales'hearing.That memo defined torture as:“Equivalent in intensity to the painaccompanying serious physical injury,such as organ failure, impairment of bodily function, or even death.”For me, in addition to its clear legaland moral importance, the issue of torture became the main way forassessing this next Attorney General.And it was very important for him tostate in unambiguous terms what hethought. It was as important a way forus to assess how he approaches aproblem as any.In his opening statement, JudgeGonzales offered a clear, absolutecondemnation of torture. He saidflatly:“Torture and abuse will not betolerated by this administration.”At this point, at the beginning of his testimony, there were no ifs, ands,or buts. But after that, his testimony,

both verbal and in writing, was full of ambiguities. It seemed intended not tomake his views clear, but to shield hisviews, and it seemed to narrow thedefinition of what counts as torture.For instance, at the hearing, at onepoint, Judge Gonzales told SenatorLeahy, our ranking member, "I rejectthat opinion,” referring to the Bybeeopinion. But at another point in thehearing, he told the same Senator,Senator Leahy:“I don't have a disagreement with theconclusions then reached by thedepartment.”Those statements are clearly inconflict, and leave me with no ideawhat he thinks about the Bybee memo.I also note that Judge Gonzales clearlydid not do everything he might havedone to try to answer the questions putto him.In his written testimony, especiallyto Senator Kennedy, Judge Gonzalesrefused to provide the answers or thedocuments requested. He evenrefused to conduct a search that wouldhave refreshed his memory.Let me quote the multiple times judge Gonzales refused to answerSenator Kennedy's questions, andthese are all quotes:“I do not know what notes,memoranda, e-mails or otherdocuments others may have aboutthese meetings, nor have I conducted asearch.”Point 2:“I have no such notes, and I have nopresent knowledge of such notes,memoranda, e-mail, or otherdocuments and I have not conducted asearch.”Point 3:“I have no present knowledge of anynon-public documents that meet thatdescription. However, I haveconducted no search.”Point 4:“I have no present knowledge thatthere are any documents of the sortrequested in the question, although Ihave not conducted an independentsearch for such documents.”Point 5:“I have no present knowledge of anysuch documents or materials, althoughI have not conducted a search.”Point 6:“I have no present knowledge of anysuch records, although I have notconducted a search.”The last formulation he repeated intwo additional instances.These are not adequate answers tosatisfy the nomination process for theconfirmation of a person to be the nextAttorney General, nor do they bodewell for the Judiciary Committee's andthis Congress' oversightresponsibilities for the Department of Justice.Judge Gonzales also refused toprovide many documents that werequested. In specific, I asked him toprovide me with a copy of the finalversion of his January 2002 memo tothe President. That is very importantbecause earlier memos that he hadwritten were different. It wasimportant, if this was his final opinion,that we have an opportunity to look atit, because that opinion was definitiveand dispositive.The January memo is a well knownone, where he wrote that the war onterror "renders obsolete Geneva's strictlimitations on questioning of enemyprisoners.”If that was only a draft, as he said,as he had emphasized, then I believeit is imperative for us to see the finalversion, and he refused me thatopportunity. He wouldn't provide thememo, saying the White House haddeclined to allow it.To tell you the truth, because of theprior history, that simply is not goodenough for me.Also of importance in thequestions that he did answer, heseemed to continually narrow, again,the definition of torture. I saw this asa retreat from his originalcondemnation of torture and abuse andI thought it showed that he was tryingmore to defend the President's policiesthan to demonstrate his own views.That, in my view, is the nub of theproblem. Here he was no longer thePresident's man, he was going to bethe chief law enforcement officer,independent, head of 110,000 people,with all kinds of major departmentalresponsibilities -- environmental law,civil rights law, the Solicitor General,as I stated earlier in my remarks. Isaw this narrowing as a retreat fromhis original condemnation of tortureand abuse, and I thought it showedthat he was trying, again, more todefend the President than to talk forhimself. Let me give an example.At the hearing he told SenatorDurbin that even under the lawsimplementing the Convention AgainstTorture:“aliens interrogated by the UnitedStates outside the United States enjoyno substantive rights under the 5th,8th, and 14th Amendments.”If this is Judge Gonzales' view, it isa significant gap in the prohibitionagainst abuse.I gave him the opportunity toclarify this issue. In written testimonyhe confirmed the thrust of the answer,stating to me:“There is no legal prohibition underthe Convention Against Torture oncruel, inhuman or degrading treatmentwith respect to aliens overseas.”In another written question, I askedJudge Gonzales to specify his ownviews again on specific harshinterrogation methods. I wrote to him:“Putting aside legal interpretations, inyour own personal opinion, should theUnited States use forced nudity, thethreatening of detainees with dogs, or‘water-boarding’ when interrogatingdetainees?”That was my question in writing.He began his answer by stating:“I feel that the United States shouldavoid the use of such harsh methods of questioning if possible.”I was asking for a statement by theman. "If possible" is a majorloophole, and I truthfully don't knowwhat it means. I don't know how bigthat loophole is intended to be.As I was reviewing thecorrespondence, I was struck, inparticular, by a letter that thecommittee received from a group of 12 esteemed former military leaders --generals, admirals, even a formerchairman of the Joint Chiefs of Staff.This letter was signed by BrigadierGeneral David M. Brahms, Retired,U.S. Marine Corps; Brigadier GeneralJames Cullen, Retired, U.S. Army;Brigadier General Evelyn P. Foote,Retired, U.S. Army; LieutenantGeneral Robert Gard, Retired, U.S.Army; Vice Admiral Lee F. Gunn,Retired, U.S. Navy; Rear AdmiralGuter Don Guter, Retired, U.S. Navy;General Joseph Hoar, Retired, U.S.Marine Corps; Rear Admiral John D.Hutson, Retired, U.S. Navy;Lieutenant Claudia Kennedy, Retired,U.S. Army; General Merrill McPeak,Retired, U.S. Air Force; Major