Statement of Senator Patrick Leahy
Response to Charge that
Gonzales Bears No Responsibility
for Torture Policies
February 2, 2005

As I have listened to the statements of those supporting this nomination I am glad that none of them is defending torture.  None of them is defending what happened at Abu Ghraib.  And none of them is defending the Bybee memorandum, with its narrow, legalistic interpretation of the torture statute, and its outrageous claim that the President is above the law.  In fact some have been quite explicitly critical of the Bybee memo.  Unfortunately, the nominee has not joined in that criticism.  Instead, he told me at his hearing that he agreed with its conclusions and we know for at least two years he did not disagree while it was the secret policy of this Administration.

Water flows downhill, and so does government policy in this Administration.  Somewhere in the upper reaches of this Administration, a process was set in motion that rolled forward until it produced scandalous results.  We may never know the full story, because the Administration has circled the wagons and stonewalled on requests for information.  What little we know we owe to leaks, to the initiative of the press, to international human rights organizations, and to a few internal Defense Department investigations, and to Freedom of Information Act litigation.

President Bush said that he chose Judge Gonzales because of his “sound judgment” in shaping the Administration’s terrorism policies.  But the glimpses we have seen of secret policy formulations and legal rationales that have come to light show that his judgments in fact have not been sound.

In remarks yesterday, Republican Senators – quite correctly, in my view, and in the view of many others who have studied it -- said the Bybee memo was “erroneous in its legal conclusions, as has been generally agreed to.”  They called the memo’s interpretation of what constitutes torture “very, very extreme … certainly not a realistic or an adequate … definition of torture which would withstand legal analysis or legal scrutiny.”  They said: “The memorandum was extreme and excessive in its statement and articulation of executive power.”  Even supporters of Judge Gonzales distanced themselves from the Bybee memo’s conclusion that the President has authority to immunize those who violate the law noting that “certainly is not lawful.”  These are the statements of Republican Senators but they should not be confused with statements by the nominee, who has refused to criticize its legalistic excuses for recalibrations of decades of law and practice.

Blind defenders say that Judge Gonzales did not “write” the Bybee memo as if that is where the inquiring should stop.  What is apparent from the face of the memo is  that Judge Gonzales commissioned it.  The memo is titled, “Memorandum for Alberto R. Gonzales, Counsel to the President,” and the first line begins, “You have asked for our Office’s views regarding the standards of conduct under the Convention Against Torture. …” 

Nor did Judge Gonzales simply request the Department’s views and then sit back and wait for a response.  He acknowledged at the hearing that he spoke with Justice Department lawyers during the drafting of the Bybee memo and then described a “give-and-take” process during its formulation.  He said there were, quote, “some discussions in my office” about the legality of specific interrogation techniques, although he could not recall what was said.   He added, in response to questions by Senator Kennedy: “This is an issue that the White House cared very much about,” and “we wanted to make sure that we got it right.”  Far from getting it right, he and they got it wrong.  In fact, one Republican Senator called the memo “exactly wrong.”  

Senate supporters of this nomination have not defended the Bybee memo.  On the contrary, on this floor in the last 24 hours they have readily conceded it was wrong as a matter of law and policy.

One of the interrogation techniques that Judge Gonzales and others admitted discussing in his office was “waterboarding,” which involves strapping a person to a board, raising his feet above his head, wrapping his face and nose in a wet towel, and dripping water onto the head.  The object is to simulate the suffocating effects of drowning.  Judge Gonzales acknowledged that he participated in discussions about waterboarding, but said: “I can’t tell you today whether or not I said, ‘That's offensive.  That’s not offensive.’”  If another country subjected our citizens to “waterboarding,” would any of us hesitate to condemn the practice as “offensive?”

I think it is much more than offensive – I think it is barbaric.  This President spoke out against demeaning Americans in any way in the first days of his military offense two years ago.  Many of us, both Republicans and Democrats denounced the pubic display of American prisoners in Desert Storm and more recently as abhorrent.  Are we to understand that Judge Gonzales, as the closest legal adviser to the President, headed the Administration’s effort to reinterpret the law and chaired meetings in the White House to discuss whether waterboarding and other torture techniques were to be utilized by American personnel?  Are we to disregard the redefinition of “torture” that, once it became public, was rejected even by the Justice Department as untenable?

Judge Gonzales requested the Bybee memo, he held meetings with the lawyers who were drafting the memo to discuss their analysis, and, when the final memo was delivered to his office in August 2002, he accepted it on behalf of the President and this Administration.  It was the governing policy of this Administration for more than two years—so long as it was kept secret.  Republican Senators now admit that the memo’s interpretation of torture was “certainly not a realistic or an adequate … definition of torture which would withstand legal analysis or legal scrutiny.”  That is putting it mildly.  But Judge Gonzales did not question it.  Until the memo was made public it was doctrine, this Administration’s guiding policy that provided legal justification for practices that the Army Field Manual would have forbidden.

I asked Judge Gonzales whether he agreed with the Bybee memo’s interpretation of the torture statute back in August 2002.  He replied, “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.”  The Department itself has repudiated and withdrawn the Bybee memo, but Judge Gonzales still apparently accepts its conclusions.

Many of us were particularly troubled by the nominee’s refusal to repudiate the notion that the President has authority as Commander-in-Chief to override the torture statute and immunize from prosecution those who commit torture under his order.  He had many opportunities to do so:  Senators asked his views on this issue more than a dozen times during the hearing, and again in written questions.  He would not give a straight answer.  At times, both during the hearing and at an earlier press conference, Judge Gonzales assumed that the President did possess the authority to authorize the use of torture, as the Bybee memo concluded.  This is despite federal law against torture and our ratification of the Convention Against Torture.  This is despite the fact that, as one Republican Senator said in yesterday’s debate, the Bybee memorandum “vastly overstated executive authority,” and its conclusions were “far, far off base,” and “palpably erroneous.”

Judge Gonzales showed his support for the Bybee memo in another way – by rewarding the author.  As White House Counsel, Judge Gonzales vetted the nomination of Jay Bybee to sit on the Ninth Circuit Court of Appeals.  Apparently, neither Judge Gonzales nor anyone else in the White House had any concern with Mr. Bybee’s reasoning or conclusions.  When we asked about his work at the Department of Justice, this work product was hidden from us.  Mr. Bybee was rewarded for his work with a lifetime appointment to the federal judiciary.  Now, many months after he was confirmed and after we have seen his handiwork, the Bybee memo has been withdrawn and is universally repudiated.

In light of the strong criticism of the Bybee memo, perhaps others in the Senate today now share my profound regret that this body approved the elevation of the author of this disgraceful, then-secret memo to a lifetime judicial appointment without our being able to even see this memo, let alone to have the ability to question the author about it.  To prevent such regret in the future, we must ensure that full disclosure and careful scrutiny of each nominee occurs in the future.  Instead, this Administration continues to play hide the ball.  They release only those letters and papers they deem helpful to their narrow interests and cloak the rest in secrecy.  Critical information is locked away from the people’s lawfully elected representatives in the Senate and from the American people, as well.

Judge Gonzales has argued that the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does not prohibit cruel, inhuman or degrading treatment or punishment “with respect to aliens overseas.”  Reaching this conclusion requires such twisted reasoning that even those who support Judge Gonzales must part company with him.  I received a letter in late January from former State Department Legal Advisor Abe Sofaer.  He worked on the Torture Convention during the Bush I Administration, and presented the Administration’s proposed reservations to the Senate Foreign Relations Committee.  While Judge Sofaer supports the nominee and hopes he will be confirmed, he disagrees with both “the merits and the wisdom” of the nominee’s conclusion concerning the geographic reach of the torture convention.  This is yet another example of this nominee using twisted legal reasoning to justify this Administration’s desired outcome.

I am disturbed by Judge Gonzales’s interpretation of the Geneva Conventions.  Judge Gonzales did not follow the advice he received from Secretary of State Powell, the former Chairman of the Joint Chiefs of Staff, and other State Department lawyers.  He did not stand up for the military and interpret our obligations consistent with the Army Field Manual and the decades of sound practice and counsel from the Judge Advocates General corps.  Instead, he advocated the position of ideologically driven, political appointees at the Department of Justice.  The Administration and the nominee refuse to provide us with Judge Gonzales’ final memorandum on this matter, leading us to wonder whether his position and logic cannot withstand scrutiny, and whether it is another ends-oriented analysis designed to justify the circumvention of the law.

As the chief legal adviser to the President this nominee has admitted his involvement in the Bybee memo and his own memoranda to the President.  Those matters we know about in large part because of the press.  The Administration has yet to come clean on so many other important questions in which the President’s legal advisers and White House counsel’s office were most likely involved.  We need to know whether and if so how our country became involved in turning prisoners over to nations where they faced torture, or in the hiding of “ghost detainees” from the International Committee of the Red Cross.  This Administration circles the wagons as if these scandals will go away and no one will notice.  They wish only to blame those on the lowest rungs of the chain of command.   

As our nation’s chief law enforcement officer, Judge Gonzales’s judgment about our laws would be of enormous consequence.  He has supported policies that are in fundamental conflict with decades of our laws, sound military practice, international law and human rights.  It is precisely because I lack confidence in his judgment that I cannot support his nomination to be Attorney General.