Kennedy: The principles for which we stand

 The case against Gonzales

 Introduction by D. Lindley Young to Senate Speech by Senator Edward Kennedy
 The Modern Tribune - February 1, 2005
  "This changing world does not justify giving up the America of yesterday for a new world of tomorrow where human rights are sacrificed for security."
 		  

WASHINGTON, D.C. (2/1) - Although there may be a great case for Gonzales as a hard working achiever, there are serious questions as to his values and the message his nomination sends to the world concerning the rule of law and human rights. Despite claims by Gonzales supporters that he was not responsible for the "torture memos," his response to questions before the Senate Judiciary Committee were not as "artful" as they could have been, that he failed to act in certain matters out of respect for the independence of other departments, and that opposition to Gonzales is "political posturing," the case against Gonzales is compelling.

 

He says he does not condone torture, yet, he construes the law so as to approve it. He says he is against torture in one breath and then in the next justifies it as important to get information to save lives. The policy he approved for getting that information created a climate condoning torture that was secretly practiced for over two years. That is not the symbol America should present for a representative of its principles nor the man to interpret and execute our laws. This changing world does not justify giving up the America of yesterday for a new world of tomorrow where human rights are sacrificed for security.  Gonzales is the symbol of a new world that does not stand for old established American principles. As put by Senator Edward Kennedy:

 

FULL TEXT OF KENNEDY SPEECH: Mr. President, this is one of the most important votes the Senate will take this year.  The issues raised by Mr. Gonzalesıs nomination go to the heart of what America stands for in the world and the fundamental values that define us as a nation ­ our commitment to individual dignity,  our respect for the rule of law, and our reputation around the world as a beacon for human rights, not as a violator of human rights.
 
President Bush said it well in his Inaugural Address last month: ³From the day of our Founding, we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth.²  The world is watching to see if our actions match our rhetoric.
 
How can the Senate possibly approve the nomination of Mr. Gonzales as Attorney General of the United States, the official who symbolizes our respect for the rule of law, when Mr. Gonzales is the official in the Bush Administration who, as White House Counsel, advised the President that torture was an acceptable method of interrogation in Afghanistan, Guantanamo, and Iraq?
 
Torture is contrary to all that we stand for as Americans.  It violates our basic values.  It is alien to our militaryıs longstanding rules and traditions.  We send our men and women in the Armed Services into battle to stop torture in other countries, not to participate in it themselves.
 
These values did not change, or become less relevant, after 9/11.  Americans did not resolve to set aside our values, or the Constitution, after those vicious attacks.  We didnıt decide as a nation to stoop to the level of the terrorists.
 
To the contrary, Americans have been united in the belief that an essential part of winning the war on terrorism and protecting the country for the future is safeguarding the ideals and values that America stands for here at home and around the world.
 
Americans agree that torture is, and should remain, beyond the pale.  A recent poll in USA Today showed that Americans strongly disapprove of the interrogation tactics that have been used in Iraq, Afghanistan, and Guantanamo including the use of painful stress positions, sexual humiliation, threatening prisoners with dogs, and threatening to ship them to countries known to practice torture.
 

The American public has held fast to our most fundamental values.  How could our government have gone so wrong?
 
In many ways, the story of Mr. Gonzalesıs life represents the best of America.  He was raised in a small house in north Houston, with no hot water or telephone, by parents who were migrant farm workers.
 
As a teenager, he sold soft drinks in Rice Stadium and wondered what it would be like to attend that great university as a student.  He enrolled at Rice after service in the Air Force, then obtained a law degree at Harvard.
He became a partner at Houstonıs largest law firm and a justice on the Texas Supreme Court, and has served as one of the Presidentıs closest advisers over the past four years.  I have nothing but the highest respect for his accomplishments, but that is not the issue.
 
But, Mr. Gonzales is at the center of a torture policy that has run roughshod over the values that Americans hold so dear. On issue after issue in developing this policy, he has endorsed expediency over the rule of law.
 
He adopted an absurdly narrow definition of torture in order to permit extreme interrogation practices.
 
He advocated an unjustifiably expansive view of President power, purporting to put the Executive Branch above the law.

 

He ignored the plain language of the Geneva Conventions in an attempt to immunize those who may commit war crimes.
 
He continues to push a discredited interpretation of our treaty obligations to permit the C.I.A. to commit cruel, inhuman and degrading acts outside the United States.
 
He refuses to be candid about his interpretations, policies, and intentions.
 
The Administrationıs policy on torture was established in August 2002, in a Justice Department document called the Bybee ­ or more accurately the Bybee-Gonzales --Memorandum.
 
This memorandum was written at Mr. Gonzalesıs request. Look at the first page.  It reads ³Memorandum for Alberto R. Gonzales, Counsel to the President.² 
 
The first two sentences read, ³You have asked for our Officeıs views regarding the standards of conduct under the Convention Against Torture² and the Anti-Torture Statute passed by Congress in 1994.  ³As we understand it, this question has arisen in the context of the conduct of interrogations outside of the United States.²
 
After its release in August 2002, the memorandum became the official policy on interrogations by the Defense Department and the C.I.A. for two and a half years, until it was repudiated just last month at the last minute, on the eve of Mr. Gonzalesıs nomination.
 
Yet Mr. Gonzales refuses to tell us anything about how the Bybee-Gonzales Memorandum was written and why he ordered it.  We know from press reports that the C.I.A. asked him for advice on how far the agency could go in interrogating detainees.  In July 2002, he held meetings with other Administration officials to discuss how to legally justify certain interrogation methods.  He refuses to tell us anything about those meetings.
 
He says he canıt remember what specific interrogation methods were discussed.
 
He canıt remember who asked for the Justice Departmentıs legal advice in the
first place.
 
He canıt remember whether he made any suggestions to the Department on the
drafting of the Bybee- Gonzales Memorandum, although he admits that ³it would not be unusual² for his office to have done so.
 
He doesnıt know how the memo was forwarded to the Defense Department and became part of its ³Working Group Report² in April 2003, which was used to justify the new interrogation practices at Guantanamo.  Those practices, in turn, to use the obscure word resorted to by the Administration, somehow ³migrated² to U.S. military operations in Afghanistan and Iraq, as if no human hand had been involved in the dissemination.
 
Torture became a pervasive practice.  The F.B.I. says so.  The Red Cross says so.  The Defense Intelligence Agency says so.  The Defense Department says it has investigated more than 300 cases of detainee torture, sexual assault, and other abuse.  Additional allegations of abuse ­ many of them too sickening to be described in open session on the floor of the Senate ­ are reported almost daily.  Yet Mr. Gonzales canıt remember the details of how any of it happened.
 
The Judiciary Committee has repeatedly asked Mr. Gonzales to provide documents on his meetings, evaluations, and decisions on the Bybee Memorandum.  These documents would speak volumes about all the issues Mr. Gonzales says he has trouble remembering. Yet he refuses to provide the documents.  He wonıt even search for them.  In his responses to our written questions, Mr. Gonzales stated eight times that he has not ³conducted a search² for the requested documents.  In other words, the documents we want may exist, but heıs not going to look for them.  Itıs hard to imagine a more arrogant insult to the constitutional role of the Senate in considering nominations.
 
Mr. Gonzales refused to answer other questions and requests on the grounds that they would involve ³classified information,² ³predecisional² or ³internal deliberations,² or ³deliberative material.²  None of these grounds is sufficient.  There is no legal prohibition against providing classified material to Congress.  Itıs routinely provided to Congress and discussed in closed meetings. There is no recognized privilege for ³predecisional² or ³deliberative² materials.  The only exception is in the rare case where the President himself decides that his interest in secrecy outweighs the public interest in disclosure, and he himself invokes executive privilege.  That hasnıt happened here.
 
It was clear when Mr. Gonzales was nominated that his involvement in the policy on prisoner detention and interrogation would be a major concern of the Senate, and that the Senate would need full information and materials on this subject.  Serious abuses of detainees occurred in Iraq, Afghanistan, and Guantanamo.  Mr. Gonzalesıs role in developing their legal justification goes to the heart of the issue whether he should be confirmed as the nationıs chief law enforcement officer.
 
 If we vote to confirm this nominee without insisting on answers to our questions, weıll be abdicating our advice-and-consent responsibility and weakening our oversight unction precisely when it is needed most.
 
The Bybee-Gonzales Memorandum was not a law review article or newspaper op-ed article.  As Mr. Gonzales himself has said, it was the definitive legal opinion by the Justice Department on the rules on torture for the entire Executive Branch of the Government.
 
We learned this past weekend from a New York Times article that the Justice Departmentıs Criminal Division -- then headed by Assistant Attorney General Michael Chertoff (now the nominee to head the Department of Homeland Security) -- was advising the CIA on the legality of specific interrogation techniques, using the Bybee-Gonzales memo as its legal guideline.
 
Further, the Times reported that there is a second Bybee memo which goes into even more detail than the first about which methods of coercion can be used.  We have repeatedly asked for information about the original Bybee-Gonzales memo and how it was used.  The nominee and the White House have stonewalled us.  We have repeatedly asked for other documents to be produced that would be relevant to understanding the first Bybee-Gonzales memo.  The nominee and the White House have stonewalled us.
 
On Tuesday, Senator Durbin and I wrote a letter to the ranking members of the Judiciary and Government Accountability Committees outlining the pressing need for all relevant documents before we proceed to fully consider the nomination.  Senator Durbin and I wrote:
 
It is clear that the Senate should have the documents before it votes on these two nominations, since such materials go to the heart of the qualifications of the nominees to serve in the sensitive and important positions which they have been nominated for
 
We believe that both the Judiciary Committee and the Homeland Security Committee should separately or jointly take the necessary steps to obtain all of the documents referred to in the article, and any other documents relating to the events and activities described in the article.  The Senate should have an opportunity to assess all materials relating to the First and Second Bybee memorandums before it begins debate on the Gonzales and Chertoff nominations
 
In short, I am deeply disturbed that our constitutional role to review these nominations is being intentionally subverted through withholding of extremely relevant and important material.
 
As far as we know, until the Department released its revised version of the memorandum last month, the Bybee Memorandum was the official and definitive Justice Department opinion on the definition of torture, on the legal defenses for those who commit torture, and on the power of the President to
override laws and treaties on torture.  Given the recent New York Times article, it may be that, in addition to the Second Bybee memo, which we do not have, there are many other memos on torture, but the White House has refused to disclose any of them.
 
Harold Koh ­ a leading scholar of international law and Dean of the Yale Law School who served in both the Reagan and Clinton Administrations ­ calls the Bybee Memorandum ³the most clearly legally erroneous opinion² he has ever read. As he told the Judiciary Committee:
 
³If the counsel for the President had received such an opinion, you would have expected him to do at least one of two things:
 
 First, reject it on the spot and send it back or, second, send it to other parts of the government and have them give a second opinion, particularly the State Department, which I believe, following the policies in the U.S. Report on the Convention Against Torture, would have said that the opinion is flatly wrong.
 
³Instead, . . . that opinion was allowed to become executive branch policy, was incorporated into the DOD working group report, and remained as executive branch policy for some two and a half years, during which time I believe that a permissive environment was inevitably created.²
 
Thatıs what Harold Koh said at the hearing, and I hope every member of the Senate will take the time to read his testimony.
 
In his response to our questions about the Bybee Memorandum, Mr. Gonzales said that he has ³no specific recollection of [his] reaction to the conclusions, reasoning, or appropriateness as a matter of policy of any of the particular sections of the memorandum at the time [he] received it two-and-a-half years ago.²
 
He did say, however, that he believed at the time that it was ³a good-faith effort² to interpret the Anti-Torture Statute.  At the hearing, he told Senator Leahy:  ³I donıt recall today whether or not I was in agreement with all of the analysis, but I donıt have a disagreement with the conclusions then reached by the Department.²

Letıs review those conclusions. They are summarized on the memoıs final page.  The Bybee Memorandum made three basic points. 
 
First, it said that torture means only acts that inflict the kind of pain experienced with death or organ failure.  Thatıs what the memo said:  the pain ³must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure.²
 
Second, the memo said that the President has the inherent constitutional power as Commander-in-Chief to override the prohibitions against torture enacted by Congress.  Application of the Anti-Torture Statute ³to interrogations undertaken pursuant to the Presidentıs Commander-in-Chief powers may be unconstitutional,² the memo said.
 
Third, the memo said that even if a government official were to commit torture under the extremely narrow definition set forth, abusers could still invoke the defenses of ³necessity² or ³self-defense.²  As the memo states, ³necessity or self-defense could provide justifications that would eliminate any criminal liability.²  The memo made this outlandish claim, even though the Convention Against Torture, which Congress ratified in 1994, states very clearly that ³no exceptional circumstances whatsoever² may be invoked as a justification for torture.
 
Fourth, the memo states that even if the person inflicting pain knew that severe pain would result from his actions, he would not be guilty of a crime even if he acted without good faith if causing harm was not his primary objective. This analysis defines ³intent² in a way that defines away most instances of torture.  This is one of the serious errors in the
Bybee-Gonzales memo that was contradicted in new OLC memo of December 30, 2004, which replaced the original memo.
 
None of these points qualify as a reasonable or ³good-faith² legal argument. The Bybee Memorandum defined torture so narrowly that Saddam Husseinıs lieutenants could have claimed immunity from prosecution for many of their crimes.  Beating you, suffocating you, ripping out your fingernails, burning you with hot irons, suspending you from hooks, putting lighted cigarettes in your ear ­ none of these barbaric methods are categorically prohibited under the Bybee Memorandum, since none of them necessarily involved near-death or organ failure, the specific conditions required by the memo to constitute torture.
 
As Chairman Specter himself said today, the orginal Bybee-Gonzales memo was ³erroneous in its legal conclusions,² and its definition of torture Owas not realistic or adequate.²  Nevertheless, Mr. Gonzales allowed it to stand for over two years, and allowed it to be disseminated to other agencies, like DOD, where major portions were absorbed verbatim into official policy. And now we know from the Times, that it was
used in the Justice Department to approve specific extreme methods for the
CIA.
 
Mr. Gonzales also refused to tell us whether the extreme conduct at Guantanamo described in the F.B.I. e-mails is illegal.
 
This conduct included burning detainees with lighted cigarettes, exposing them to extreme temperatures, giving forcible enemas and holding them in prolonged stress positions in their own urine and feces.  He explained his refusal to respond by saying to us: ³[W]ere the Administration to begin ruling out speculated interrogation practices in public, by virtue of gradually ruling out some practices in response to repeated questions and not ruling out others, we would fairly rapidly provide al Qaeda with a road map concerning the interrogation that captured terrorists can expect to face.²
 
Thatıs arrogant nonsense.  Our laws, our treaties, and our military field manuals all provide specific and clear guidance on where to draw the line on torture.  Mr. Gonzalesıs failure to condemn these acts of torture only weakens Americaıs standing in the world and sets back our efforts against terrorism.
 
How can we confirm as the chief law enforcement officer a nominee who is afraid to stand up for the rule of law?
 
To reach their narrow definition of torture, the authors of the Bybee Memorandum relied on totally unrelated federal statutes that define emergency medical conditions for  urposes of providing health benefits.  The revision last December of the Bybee Memorandum repudiated this analysis, stating that the statutes relied on ³do not define severe pain even in that very different context . . . and they do not state that death, organ failure, or impairment of bodily function cause Osevere pain.ı² Clearly, the memoıs original  definition of torture was wrong.  If it applied in other countries, U.S. soldiers and citizens traveling abroad would clearly be at risk.
 
The Bybee Memorandumıs provisions on Executive Power are also wholly inconsistent with the separation of powers in the Constitution.  Article II, Section 3 directs the  President to ³take Care that the Laws be faithfully executed.²  Yet the Bybee emorandum states that the federal Anti-Torture Statute would be unconstitutional if it ³interferes with the Presidentıs direction of such core war matters as the detention and interrogation of
enemy combatants.²
 
At a press conference in June 2004, Mr. Gonzales refused to say whether this statement remains ³good law² for the Bush Administration.  He would say only that the President ³has not exercised his Commander-in-Chief override; he has not determined that torture is, in fact, necessary to protect the national security of this country.²
 
Mr. Gonzales evaded questions on this issue by Committee members.  To this day, we still do not know whether the President believes he has the power as Commander-in-Chief to authorize torture.
 
There is no such thing as a ³Commander-in-Chief override.²  Itıs certainly not in my copy of the Constitution.  It appears to be something that Mr. Gonzales and his colleagues have invented.
 
Congress has repeatedly passed laws and ratified treaties prohibiting torture and  mistreatment of detainees, and the President does not have the power to violate them.
 
When a nominee claims that such an override exists, or suggests that those who commit torture might be able to invoke the defense of ³necessity² or ³self-defense² notwithstanding Congressıs categorical prohibition against such a defense, it sends a message that ³anything goes² to our troops and intelligence officers in the field.  To allow such extreme claims to become official U.S. policy for two whole years was reckless and, in my view, disqualifying in any nominee for Attorney General.
 
Mr. Gonzales has also demonstrated a flagrant disregard for the rule of law in his effort to facilitate the C.I.A. practice of ³ghost detainees.²  The Administration has always claimed to be in full compliance with the Geneva Conventions in Iraq.  Yet in the spring of 2004, we learned from General Taguba that between six and eight of the prisoners at Abu Ghraib Prison had not been registered as required by Army regulations and were being moved around the prison to avoid detection by the International Committee for the Red Cross.  General Taguba described this practice as ³deceptive, contrary to Army doctrine and in violation of international law.²
 
In September, Army investigators told the Armed Services Committee that at the C.I.A.ıs direction, as many as 100 detainees at Abu Ghraib had been hidden from the Red Cross ­ and that the C.I.A. had refused requests to cooperate with the military investigation.  This disclosure drew outrage from both Democrats and Republicans.  Senator McCain said, ³The situation with the CIA ghost soldiers is beginning to look like a bad movie . . . This needs to be cleared up rather badly.²
 
Since then, weıve learned that Mr. Gonzales was a major architect of this policy.  On March 19, 2004, the Justice Department provided him with a draft memorandum ­ the so-called ³Goldsmith Memorandum² ­ to allow the C.I.A. to ship certain persons out of Iraq.  Once again, the memoıs first page reads, ³Memorandum for Alberto R. Gonzales, Counsel to the President.² A separate cover page confirms that the opinion was requested by him.  Itıs hard to imagine a clearer smoking gun.
 
Article 49 of the Fourth Geneva Convention specifically states:  ³Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.² Violations of Article 49 constitute ³grave reaches² of the Convention and therefore qualify as ³war crimes² under federal law.
 
In spite of the clear, unequivocal language of this provision, the Justice Department ruled that Article 49 does not in fact prohibit, for the purpose of ³facilitating interrogation,² the temporary removal from Iraq of ³protected persons² who have not been accused of a crime.  Scott Silliman, an expert in military law at Duke University, observed that the Goldsmith memorandum ³seeks to create a legal regime justifying conduct that the international community clearly considers in violation of international law and the Convention.² 
 
Although the memo was labeled ³draft,² it was put into action. In October 2004, the Washington Post reported that one intelligence official familiar with the operation said the C.I.A. used the memo ³as legal support for secretly transporting as many as a dozen detainees out of Iraq in the last six months.  The agency has concealed the detainees from the International Committee of the Red Cross and other authorities, the official said.²
 
The legal analysis in the Goldsmith Memorandum is preposterous.  Yet it appears to have provided a legal justification for the C.I.A. to commit war crimes.  As with the Bybee Memorandum, Mr. Gonzales has categorically refused to answer the Senateıs questions about his involvement.
 
He refuses to provide or even conduct a search for documents relating to his request for the Goldsmith Memorandum. He refuses to say anything about his discussions with the author of the memo.
 
He says he doesnıt know whether the C.I.A. acted on the memo, as the Washington Post reported.
 
He even says that he has never had the ³occasion to come to definitive views² about the analysis in the memo.
 
Far from helping to clear the air, Mr. Gonzales has clouded it further. To let his nomination proceed would make a mockery of the notion of Congressional oversight and accountability.
 
There are many other issues in Mr. Gonzalesıs record that should give members of the Senate pause.
 
As predicted by Secretary Powell and senior military lawyers, Mr. Gonzalesıs memorandum of January 2002 on the applicability of the Geneva Conventions to the war in Afghanistan brought a strong negative reaction from even our closest allies and lowered the bar for the protection of our own troops.
 
According to the Schlesinger Report, in September 2003 military commanders in Iraq cited this memo as legal justification for the use of extreme interrogation techniques at Abu Ghraib prison.  The worst abuses there occurred from September to December 2003.
 
In his answers to the Committee, Mr. Gonzales made clear that the Administration does not consider the C.I.A. to be bound by the prohibition on cruel, inhuman and degrading treatment in Article 16 of the Convention Against Torture.  This shift in legal policy was apparently made in a separate Justice Department memorandum which has also not been provided to Congress. 
 
Today, therefore, C.I.A. agents are authorized to treat detainees in a cruel, inhuman, and degrading manner ­ even if it violates constitutional rules in the U.S. ­ so long as they do not commit ³torture² under the Departmentıs narrow definition.  President Bush also exempted the C.I.A. from his directive in February 2002 to treat all detainees  ³humanely.²  This shameful change in policy obviously endangers the safety of American
soldiers who are captured abroad.
 
Finally, the New York Times reported that Mr. Gonzales excluded important Administration personnel from deliberations on the
Administrationıs plan to establish military tribunals at Guantanamo, a plan that was widely criticized as unjust, unworkable, and unconstitutional.
Secretary of State Powell, National Security Advisor Rice, and the head of the Justice Departmentıs Criminal Division, Michael Chertoff, saw the
Presidentıs Military Order only after it was published in November 2001. Most of the Pentagonıs top military lawyers were also kept in the dark.
More than three years after the Orderıs publication, not a single detainee at Guantanamo has been successfully prosecuted.  To the contrary, as
predicted by officials who have expertise in the field, the military tribunal process there is falling apart.
 
                                                                  *            *            *
 
Torture has never before been a Republican versus Democrat issue.  Instead, itıs always been an issue of broad consensus and ideals,
reflecting the fundamental values of the nation.  President Reagan signed the Convention Against Torture in 1988. President George H.W. Bush and President Clinton supported its ratification in 1994.  The Senate Foreign Relations Committee, led by Senator Helms and Senator Pell, voted 10-0 to report the Convention favorably to the full Senate.
 
I hope that this tradition of bipartisanship and consensus will continue today.  I hope that all members of the Senate will cast their vote in a way that upholds our fundamental values.
 
A ³no² vote is the right vote if we care about maintaining Americaıs standing in the world and fighting the war on terrorism.  The torture and
other abuses of prisoners in Iraq, Afghanistan, and Guantanamo have done immense damage to Americaıs standing in the world.  The extreme and
irresponsible claims in the Bybee and Goldsmith Memorandums have raised basic questions about the genuineness of our commitment to the rule of law.
 
It is the right vote for our troops.  The Administrationıs shameful disregard for our laws and treaties on torture has lowered the bar for the
protection of our own soldiers. It has violated the militaryıs longstanding ³golden rule²:  treat captured combatants in the manner we expect our own soldiers to be treated.  What can Mr. Gonzales possibly say to a country that justifies its torture of a U.S. soldier by citing Mr. Gonzalesıs own record of support for it?
 
A ³no² vote is the only vote that is consistent with the fundamental values on which this nation is founded:  justice, accountability, and respect for individual dignity.
 
The continuing effort to blame the torture scandal on a ³few bad apples² among our soldiers while rewarding Mr. Gonzales with promotion to Attorney General is a despicable signal for America to send the world.  We should not support a nominee who has done so much to harm Americaıs basic interests and fundamental values.  I urge my colleagues to reject this nomination.
 

 

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