Executive Session

EXECUTIVE SESSION -- (Senate - February 02, 2005)

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Mr. REED. Madam President, every 4 years an individual chosen by the American people steps forward to assume the awesome responsibilities as President of the United States. His first act is to take this oath:

I do solemnly swear that I will faithfully execute the office of the President of the United States and I will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.

George W. Bush took this oath on January 20, 2001, and again a few days ago on January 20, 2005. His overarching responsibility is to preserve, protect, and defend the Constitution. In order to protect, preserve, and defend the Constitution, you must understand what it says. As such, a President must rely on the advice of his legal counsel.

Alberto Gonzales has served as President Bush's legal counsel since 2001. In this capacity, he has provided advice to him that, in my view, ignores both the letter and spirit of the Constitution and the President's critical responsibility to preserve, protect, and defend it. Through his advice, he has set in motion policies that have harmed our interests at home and abroad.

Our Nation was founded by men and women fleeing severe political and religious persecution. Wary of authoritarian government or religious leaders, they created a nation by and for the people, a nation committed to the rule of law and the notion that every person has certain inalienable rights. Our Founding Fathers very deliberately did not create a new monarchy. They did not crown a king. Instead, they created a new system of government that relied on the rule of law that was agreed upon by representatives of the people.

As article VI of the Constitution states so eloquently:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land. .....

The Constitution is the supreme law, not the word of the President. I would also emphasize the language here includes all treaties, including the Geneva Conventions and the Convention Against Torture.

They are not extrajudicial. They are part of the Constitution. They are part of the responsibility of all of us to defend.

In the United States of America, the Constitution, our Federal laws and our treaty obligations are the means by which we as a people, in this grand experiment we call democracy, have agreed to rule ourselves.

The President, all Senators, all Representatives, the members of our state legislatures, and all executive and judicial officers, both of the United States and the individual states, are bound by an oath to support our Constitution.

This oath to defend and support our Constitution was also taken by Judge Gonzales in his current position as counsel to the President.

Now, Judge Gonzales is being considered to serve as the Attorney General of the United States, the chief law enforcement officer of the United States.

It is Judge Gonzales's failure to defend and support our Constitution, our federal laws, and our treaty obligations that leads me to believe he does not have the wisdom or judgment to be our next Attorney General.

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Our Nation's Attorney General must ensure that no person is above the law--including the President of the United States--and that no person is outside the law, whether that person is deemed an enemy combatant, or held outside the United States.

Judge Gonzales's record does not justify such an appointment.

I recognize that much of the advice that Judge Gonzales gave was in the aftermath of the attacks of 9/11 and the emergence of the al-Qaida network as a grievous threat to the United States. Small terrorist cells dispersed worldwide and committed to suicide attacks producing mass casualties represented a new and disturbing threat to our country. The possibility that al-Qaida or other terrorist cells might acquire weapons of mass destruction, including nuclear devices, added an even more frightening element to the dangers we faced. We had to face this threat realistically. The policies of deterrence that served us well in the Cold War are difficult, if not impossible, to apply to these ruthless groups of terrorists. With respect to al-Qaida, we had to take preemptive action. And, we did in Afghanistan.

But the nature of this threat did not relieve us of our responsibilities to the Constitution and the structure of international treaties embodied in the Constitution. This is not being naive or sentimental. The durability of the Constitution testifies to both its strength and its wisdom. The structure of international treaties reflects hard won agreements based on experience. The Constitution requires careful and sincere interpretation when new challenges arise. It cannot be ignored or trivialized.

When it comes to the issue of the conduct of war, legal guidance must be particularly clear and it must recognize that the fury of war too often brings out the worst.

Ages ago, Thucydides wrote:

War, depriving people of their expected resources, is a tutor of violence, hardening men to match the conditions they face ..... Suspicion of prior atrocities drives men to surpass report in their own cruel innovations, either by subtlety of assault or extravagance of reprisal.

Shakespeare captured the essence of this visceral violence in his immortal phrase, ``Cry Havoc, and let slip the dogs of war.''

Abraham Lincoln understood the passions and emotions that grip the warrior. Writing to a friend in the midst of our Civil War, President Lincoln declared:

Thought is forced from old channels into confusion. Deception breeds and thrives. Confidence dies, and universal suspicion reigns. Each man feels an impulse to kill his neighbor, lest he be first killed by him. Revenge and retaliation follow. And all this, as before said, may be among honest men only. But this is not all. Every foul bird comes abroad, and every dirty reptile rises up.

Yet, the guidance provided by this Administration was confused at best and relied on the fine parsing of legal terms which may pass muster in the contemplative chambers of a judge but fails miserably in the crucible of war. This advice was a disservice to the men and women of the Armed Forces.

It is clear that as White House counsel, Judge Gonzales has been one of the architect's of the Administration's post 9/11 policies. In particular, he has helped craft or agreed to policies regarding the treatment of individuals captured and detained in the wars in Afghanistan and Iraq. These policies have denied detainees the protections of the Geneva Conventions, permitted them to be interrogated under a dramatically narrowed definition of torture, and denied them access to counsel or judicial review.

In at least one memorandum, Judge Gonzales apparently agreed that the President has the ability to override the U.S. Constitution and immunize acts of torture.

Although supporters of Judge Gonzales will point out that only one of five memoranda discussed at his nomination hearing were written by Judge Gonzales, he clearly acquiesced to the conclusions in the other memos.

As White House counsel, Judge Gonzales's role was to decide what legal advice was needed from the Department of Justice and then to weigh and distill that advice before giving his opinion to the President.

It is clear from the record that Judge Gonzales either agreed with the legal advice dispensed in these memoranda, or allowed poor legal advice to be passed onto the President.

Either way, I believe Judge Gonzales has been deeply involved in policies that have undermined our standing in the world and our historic commitment to the rule of law.

I think we must first put these memos and decisions in historical context.

The issue of the treatment of detainees in war is not a new one and an extensive legal framework has been developed to guide a nation's behavior during conflict.

The most well known and comprehensive are the Geneva Conventions, created in 1948, to mitigate the harmful effects of war on all persons who find themselves in the hand of a belligerent party. 192 countries, including the United States and Afghanistan ratified the treaty.

The Geneva Conventions were created in the aftermath of World War II and the Nuremberg Trials, by a world which had just experienced warring armies, the systematic rounding up and extermination of millions of innocent civilians, squalid POW camps, death marches, resistance movements and the aftermath of two nuclear bombs. Those who drafted the Geneva Conventions had pretty much seen it all, and they accounted for all of it in the Conventions.

The United States clearly took the Conventions seriously and made them the part of the law of our land by incorporating them as part of our legal system.

The War Crimes Act, passed by Congress and signed by the President in 1996, makes ``a grave breach'' of the Geneva Conventions a crime punishable by prison and even the death penalty.

Adding to this legal structure, the United States ratified the United Nation's International Covenant on Civil and Political Rights in 1992. The ICCPR prohibits arbitrary detention and ``cruel, inhuman or degrading treatment.'' The United States notified the UN that it interprets ``cruel, inhuman or degrading treatment or punishment'' to mean cruel and unusual treatment or punishment prohibited by the First, Eighth and/or Fourteenth Amendment to the Constitution.

Furthermore, in 1998, the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention requires parties to take measures to prevent torture from occurring within any territory under their jurisdictions, regardless of the existence of ``exceptional circumstances'' such as a war or threat of war, internal political instability or other public emergency. The U.S. Congress implemented the treaty by enacting 18 U.S.C. sections 2340-2340A. Torture is defined in this statute as ``an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering upon another person within his custody or control'' outside the United States. Offenders can be subject to imprisonment and the death penalty.

The laws of warfare are also an integral part of military training and conduct. The Uniform Code of Military Justice, or UCMJ, was a law enacted by Congress in 1950. The mistreatment of prisoners may be punishable as a crime under article 93, UCMJ, which forbids a soldier to act with ``cruelty toward, or oppression or maltreatment of, any persons subject to his orders.'' Article 97 prohibits the arrest or confinement of any person except as provided by law. The UCMJ also punishes ordinary crimes against persons such as assault, rape, sodomy, indecent assault, murder, manslaughter, and maiming. Article 134 also punishes ``all disorders and neglects to the prejudice of good order and discipline in the armed forces'' and ``all conduct of a nature to bring discredit upon the armed forces.''

The Army also has regulations implementing the laws of war, including regulation 190-08, which implements the Geneva Conventions. All soldiers are expected to abide by Army regulations and if a soldier violates a regulation, he or she is subject to punishment under the Uniform Code of Military Justice.

Despite the Constitution's clear prohibition on cruel and unusual punishment, despite law after law, treaty after treaty prohibiting torture, the President's chief counsel, Judge

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Gonzales, requested a series of legal memos regarding the applicability of treaty provisions and permissible interrogation techniques in the war on terrorism.

One of these memos, the August 1, 2002, Bybee Memorandum, was apparently written to explore what coercive tactics U.S. officials could use without being held criminally liable.

This memo created a new and radically narrow definition of torture. It stated that torture would require interrogators to have specific intent to cause physical pain that ``must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.'' Mental torture is defined in the statute but the Justice Department memo states that mental torture must result in ``significant psychological harm lasting for months or even years.''

According to Harold Koh, Dean of the Yale Law School, former Assistant Secretary of State for Democracy, Human Rights and Labor, and an international law expert, this memo is ``the most clearly erroneous legal opinion'' he has ever read. In testimony before the Judiciary Committee he stated:

In sum, the August 1, 2002 OLC memorandum is a stain upon our law and our national reputation. A legal opinion that is so lacking in historical context, that offers a definition of torture so narrow that it would have exculpated Saddam Hussein, that reads the Commander-in-Chief power so as to remove Congress as a check against torture, that turns Nuremberg on its head, and that gives government officials a license for cruelty can only be described--as my predecessor Eugene Rostow described the Japanese internment cases--as a ``disaster.''

One would have expected the Counsel to the President to have immediately repudiated such an opinion. Judge Gonzales did not.

Instead, this memo was endorsed by Judge Gonzales as the legal opinion of the Justice Department on the standard for torture.

Now, over 30 years ago, the U.S. Navy vessel USS Pueblo was sent on an intelligence mission off the coast of North Korea. On January 23, 1968, it was attacked by North Korean naval and air forces. Eighty-one surviving crewmembers of the USS Pueblo were captured and held captive for 11 months. One survivor, Harry Iredale, related his experiences with a North Korean interrogator named, ``The Bear:''

The Bear proceeded to yell at me to confess. He had me kneel on the floor while two guards placed a 2-inch diameter pole behind my knees and other guards jumped on each end of it several times. Then the Bear picked up a hammer handle and proceeded to smash it onto my head, completely encircling my head with lumps as I screamed in pain.

I think most of us would consider this graphic description one of torture. But under the Bybee memorandum's definition, this would not constitute organ failure or death, so it would not be considered torture.

More importantly, perhaps, is that the North Korean regime still exists and thousands of American soldiers line the border. Our soldiers could still be captured. And now we cannot hold the North Koreans to a higher standard of conduct, because ours is the same.

The August Bybee memorandum also enumerated reasons that American officials could not be held criminally liable for coercive interrogation tactics that fell outside of this new narrow definition of torture.

It also posits that officials can invoke ``necessity'' or ``self-defense'' as a defense against prosecution for such acts, despite the fact the Convention Against Torture clearly states there are no ``exceptional circumstances'' that may be invoked as justification for torture.

Although the torture provisions of the August 2002 Bybee memo were rescinded and replaced four weeks ago by a new December 30, 2004 memo, the Bybee memo was Administration policy for almost 2 1/2 years and has had extremely harmful effect on both our military and intelligence communities.

If this memo with its narrow definition of torture was so wrong on its face that it had to be rescinded, why didn't Judge Gonzales know it was wrong at the time he requested and endorsed it?

One of the most disturbing parts of the August Bybee memorandum is the suggestion that the President and other executive officials can escape prosecution for torture on the ground that ``they were carrying out the President's Commander-in-Chief powers.''

By adopting the doctrine of ``just following orders'' as a valid defense for United States soldiers and officials, the opinion undermines the very underpinnings of individual criminal responsibility set forth after World War II, and now embodied in the basic instruments of international criminal law.

This memorandum basically puts the President, and his subordinates, above the law, as it states, ``any effort to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President.''

This is antithetical to everything we know about our founding document and the rule of law.

It ignores the fact that the Convention Against Torture and other treaties have been approved by Congress, elucidated by statute and become the law of the land.

The Bybee memo's reading of the President's powers as Commander-in-Chief essentially would allow him to ignore or order that the criminal prohibition against torture in the United States code be set aside. The President could trump Congress' power under Article I, section 8, clause 10 to ``define and punish . . . offenses against the law of nations'' such as torture.

Interestingly, nowhere does the August Bybee memorandum mention the landmark Youngstown Steel & Tube Co. v. Sawyer decision in which the Supreme Court explained why the President's Commander-in-Chief or inherent executive power were not enough to allow him to take over the American steel industry during a time of crisis. In his concurring opinion, Justice Jackson eloquently discussed the limits on such Presidential powers, especially when the ``President takes measures incompatible with the express or implied will of Congress.''

In fact, Bybee cites no precedent for his unique enhancement of the President's Commander-in-Chief power other than:

In light of the President's complete authority over the conduct of war, without a clear statement otherwise, we will not read a criminal statute as infringing on the President's ultimate authority in these areas. We have long recognized, and the Supreme Court has established a canon of statutory construction that statues are to be construed in a manner that avoids constitutional difficulties so long as a reasonable alternative construction is available.

This is nonsense. There are statutes on the book outlawing torture. There is no precedent cited because scant precedent exists, it any.

Now if this Commander in Chief override exists, if the President can exercise his Commander-in-Chief power to ask his subordinates to engage in torture to protect the national security of our country, how would this be done? One would think the Commander-in-Chief would have to order his subordinates to engage in such conduct for it to be legal. So where are the orders? And if there are no orders, aren't U.S. soldiers and intelligence officers still subject to the supreme law of our land--our Constitution, our statutes and our treaty obligations--and can they not be prosecuted for violations of this law? How would Judge Gonzales approach this dilemma, created by his own legal reasoning, if he is nominated-confirmed Attorney General? Would he prosecute subordinates of the President who engaged in what most rational people would consider torture during the past 2 1/2 years and then defend themselves with the reasoning in the Bybee memorandum?

In addition, at this time there are over 20,000 private contractors in Iraq. Many of them are engaging in ``military functions'' in support of U.S. forces. These civilians are currently liable for prosecution in U.S. courts for various offenses, under the U.S. laws implementing the Convention on Torture. In addition, persons who are ``employed by or accompanying the armed forces'' may be prosecuted under the Military Extraterritorial Jurisdiction Act. Now, many such offenses are permitted by the Bybee memorandum but are prohibited by other U.S. law.

Again, would Judge Gonzales vigorously prosecute violations of law that, either through his advice or the legal reasoning he deemed were acceptable practices activities?

Now the creation of this so-called Commander-in-Chief override power has created some consternation in

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legal circles.

But neither Judge Gonzales nor the Justice Department has backed away from it.

The December 30, 2004, memo declares that it supersedes the August 2002 Bybee memo in its entirety. However, the Office of Legal Counsel has not yet clearly and specifically renounced the parts of the August 2002 memorandum concerning the Commander in Chief's power stating:

Consideration of the bounds of any such authority would be inconsistent with the President's unequivocal directive that United States persons not engage in torture.

Judge Gonzales's own public statements have also urged a broad view of the President's power to conduct the war on terror. In a June 2004 speech before the American Bar Association's Standing Committee on Law and National Security, Judge Gonzales stated:

[The President] has not had to--as I indicated, in terms of what he has done or has not done, he has 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.

But it seems that Judge Gonzales's statement is at least providing for a situation in which the President could make that determination, but under what constitutional principle I do not know.

Furthermore, Judge Gonzales was unwilling to repudiate the Commander in Chief override power when asked directly about it during his confirmation hearing, saying that it was a hypothetical question about a hypothetical situation and he was ``not prepared in this hearing to give you an answer to such an important question.''

Now, I always assumed the purpose of a hearing to confirm a Cabinet official was that he would answer, after preparation, important questions involving his proposed responsibilities. Apparently, Judge Gonzales did not believe that was the role of the hearing. He provided no answer.

In addition, in responding to a followup question submitted by Senator Leahy, Judge Gonzales refused to answer in the affirmative that the President could not override the Convention Against Torture and any implementing legislation and immunize the use of torture under any circumstances, stating again:

[T]he President does not intend to use any authority he might conceivably have to authorize the use of torture.

I guess it is one of those situations where torture is in the eye of the beholder. Much of what seems to have happened to those crew members of the Pueblo looks to us as torture, but I guess it was not torture under the Bybee memorandum.

As Attorney General, Judge Gonzales will be responsible for enforcing the laws of our land. But he himself created an exception to these laws for the President. He not only allowed torture to be redefined, he also agreed to a new, unchecked power for the President that no President before ever had.

Now, I would like to discuss two memoranda Judge Gonzales requested from the Department of Justice Office of Legal Counsel regarding U.S. treaty obligations in the war in Afghanistan. Specifically, he asked if treaties forming part of the laws of armed conflict applied to conditions of detention and procedures for trials of members of al-Qaida and the Taliban militia. He also asked that if the Geneva Conventions did apply in Afghanistan, would the Taliban, the military force of Afghanistan, qualify for prisoner-of-war status.

As I noted earlier, after World War II, the United Nations drafted, and most of the world, including the United States and Afghanistan, ratified the Geneva Conventions. There are four conventions. The third convention defines six classes of persons who, if captured, should be considered as prisoners of war. The most protected class under the Geneva Conventions is the prisoner-of-war category. Civilians and spies are protected as other classes in the fourth Geneva

Convention. Running through all of these conventions is common article 3, which prohibits:

[O]utrages upon personal dignity, in particular, humiliating and degrading treatment.

Most experts would agree this is the minimum standard for the treatment of all detainees.

As I stated in the beginning of my remarks, September 11 did usher in a new era. It was reasonable for Judge Gonzales to wonder if perhaps a group such as al-Qaida was one of those categories of individuals or groups that was not authorized automatic protection under the Geneva Convention. However, the Geneva Conventions maintain if the status of a captured individual is in doubt, a competent tribunal must decide that status. Furthermore, the Geneva Conventions are only one part of the law of armed conflict. The Convention Against Torture and the assurance of basic human rights remain in place at all times.

On January 22, 2002, the Justice Department sent a memo to Judge Gonzales regarding treaty obligations. Also signed by Jay Bybee, the Assistant Attorney General, the memo analyzed the War Crimes Act and the Geneva Conventions and concluded:

[N]either the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions of al-Qaida prisoners. We also conclude that the President has the plenary constitutional powers to suspend our treaty obligations toward Afghanistan during the period of conflict.

A memo sent 2 weeks later concluded that the Taliban did not qualify for prisoner-of-war status.

Now, legal experts can and have disagreed about the conclusions reached by the Department of Justice. But what I find deeply disturbing is the questionable judgment and cavalier attitude Judge Gonzales used outlining his recommendations as White House legal counsel.

On January 25, 2002, Judge Gonzales drafted a memorandum to the President agreeing with the January Bybee memorandum. He states two positive aspects of this decision. First, he finds that suspending these treaty obligations ``preserves flexibility,'' which, I would note, is not a legal conclusion. He then states that the war on terrorism is a new kind of war, a ``new paradigm that renders obsolete Geneva's strict limitation on questioning of enemy prisoners and renders quaint some of its provisions.'' A second positive aspect Judge Gonzales concluded is that since the Geneva Conventions do not apply to al-Qaida and the Taliban, it ``substantially reduces the threat of domestic criminal prosecution under the War Crimes Act.''

Judge Gonzales then goes on to list seven negative points about suspending the War Crimes Act and the Geneva Conventions in these circumstances, including:

The U.S. had abided by the Geneva Conventions since their creation in 1948.

The U.S. could then not invoke the Geneva Conventions for U.S. forces captured or mistreated in Afghanistan.

The War Crimes Act could not be used against the enemy.

The position would ``likely provoke widespread condemnation among our allies and in some domestic quarters.''

In the future, other countries may look for ``loopholes'' to avoid complying with the Geneva Conventions.

The determination ``could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct of combat, and could introduce an element of uncertainty in the status of adversaries.''

Remarkably, after weighing the pros and cons, Judge Gonzales found the negatives of such a decision by the President were ``unpersuasive.'' He concurred in the Justice Department's decision that the Geneva Convention did not apply to al-Qaida and the Taliban.

On January 26, 2002, Secretary of State Powell objected to the presentation and conclusions in the

Gonzales memo. Secretary Powell sent his own memo to Gonzales, stating:

I am concerned that the draft does not squarely present to the President the options that are available to him. Nor does it identify the significant pros and cons of each option.

Secretary Powell lists as cons, in his words:

It will reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops; it is a high cost in terms of negative international reaction, with immediate adverse consequences for our conduct of foreign policy; it will undermine public support among critical allies, making military cooperation more difficult to sustain; and Europeans and others will likely have legal problems with extradition.

At a February 4, 2002, National Security Council meeting to decide this issue and make recommendations to the President, the Department of State, the Department of Defense, and

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the Chairman of the Joint Chiefs of Staff were in agreement that all detainees would get the treatment they are or would be entitled to under the Geneva Conventions.

Now Judge Gonzales was faced with two opposing opinions: one, from the Department of Justice, which offered a new and untried approach to international law; and the other which was supported by decades of precedent and the entire military establishment, which was actually going to be on the front lines of the conflict. Judge Gonzales had to choose what he was going to advise the President.

On February 7, 2002, President Bush, presumably following the legal advice of his counsel, issued a memorandum stating that the Geneva Conventions did not apply to al-Qaida, and that while the Taliban were covered by the Geneva Conventions, they did not qualify for POW status. The fact that the third Geneva Convention requires a competent tribunal to determine this fact was ignored. Furthermore, President Bush stated that the Geneva Conventions' common article 3, the minimum standard of human rights for noncombatants, including prisoners, did not apply to either al-Qaida or the Taliban.

Mr. President, these questionable decisions of Judge Gonzales have profound effects. What he found unpersuasive was the most correct statement in his memo--that his advice would, in his words, ``undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat and could introduce an element of uncertainty in the status of adversaries.''

In January 2004, the Pentagon announced that they were investigating reports of abuse of prisoners in Iraq. In May 2004, the world was horrified when pictures of some of the abuses at Abu Ghraib prison became public. Now for many months, DOD officials have maintained that such abuses were the acts of a few depraved, low-ranking individuals, but reports of abuses in other prisons, such as Guantanamo and the Adhamiya Palace in Baghdad, are coming to light.

To date, the Pentagon has initiated several investigations into these abuses. Only some of the investigations have been completed, and they all concern Abu Ghraib. However, they have startlingly similar findings. President Bush's February 7, 2002, memorandum set new policy that conflicted with longstanding Army doctrine based on established laws of war, and this conflict caused confusion and ultimately a corrosion of standards.

The Schlesinger report, released on August 24, 2004, was written by an independent panel chaired by the former Secretary of Defense, Jim Schlesinger, to review DOD detention operations. In fact, the report was essentially commissioned by the present Secretary of Defense, Mr. Rumsfeld. Dr. Schlesinger pointedly blamed the administration for confusion in the ranks. The Schlesinger report found ``Lieutenant General Sanchez signed a memo authorizing a dozen interrogation techniques beyond standard Army practice, including five beyond those applied at Guantanamo ..... using reasoning from the president's memo of February 7, 2002.''

Another report, completed by Lieutenant General Jones, stated that confusion over different standards for detainee treatment and interrogation, dictated by the administration and followed through by the Army, led to ``a permissive and compromising climate for soldiers.''

In order to overcome these problems, the Schlesinger report recommended that ``the United States should further define its policy applicable to both the Department of Defense and other Government agencies, on the categorization and status of all detainees as it applies to various operations and theories. It should define their status and treatment in a way consistent with U.S. jurisprudence and military doctrine and with the [United States] interpretation of the Geneva Conventions.''

It is a fact of life that there are always going to be abuses of human rights in time of war. But the abuses I have discussed above, and that are still, unfortunately, coming to light, are systemic. I would argue that they are the result of a corrosive trend started by the President's February 7 memo, which was based on advice given by Judge Gonzales in consultation with the Department of Justice. This is not the type of legal thinking and judgment that I find suitable for the Office of Attorney General.

There is one final issue that needs to be mentioned. That is the deeply disturbing issue of ``ghost detainees.'' The Bush administration has always maintained that the Geneva Conventions are in force in Iraq. Article 49 of the fourth Geneva Convention prohibits ``individual or mass forcible transfers, as well as deportations of protected persons from occupied territory ..... regardless of their motive.''

Yet an October 24, 2004, Washington Post story states that a confidential March 19, 2004, Justice Department memorandum granted permission to the CIA to take Iraqis out of their country to be interrogated for a ``brief but not indefinite period.'' It also said the CIA can permanently remove ``illegal aliens.'' Other reports state that as many as a dozen detainees were moved under this policy.

In addition, the third and fourth Geneva Conventions maintain that international organizations such as the Red Cross must have access to prisoners. Two generals investigating the abuses of Abu Ghraib, Major General Taguba and General Kern, noted in their reports that the U.S. hid prisoners from Red Cross teams. General

Kern stated that the number of ghost detainees ``is in the dozens, perhaps up to 100.''

The role of Judge Gonzales in the production and approval of this memo is yet unknown. But given his participation in other decisions made about the wars in Iraq and Afghanistan, it is not irrational to assume that he had some participation.

The existence of ghost detainees is a violation of the Geneva Convention. Someone is responsible for this decision and must be held accountable. If Judge Gonzales is confirmed as Attorney General, will he pursue these types of investigations and potential prosecutions?

Some of my colleagues will likely state that opposition to Judge Gonzales is partisan politics. But we are not alone in opposing this nomination. Twelve retired admirals and generals sent a letter to the Judiciary Committee expressing deep concerns about the nomination of Judge Gonzales. This letter includes the following statement:

During his tenure as White House Counsel, Judge Gonzales appears to have played a significant role in shaping U.S. detention and interrogation operations in Afghanistan, Iraq, Guantanamo Bay, and elsewhere. Today it is clear that these operations have forced a greater animosity towards the [United States], undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world.

These are the words of distinguished general officers who have served their country in uniform upwards of 30 or more years.

A group of 17 religious leaders and organizations also sent a letter to the Judiciary Committee expressing concern about Judge Gonzales's nomination and his role, in their words, in ``sanctioning torture.'' Another group of more than 200 religious leaders sent a letter to Judge Gonzales stating:

We fear that your legal judgments have paved the way to torture and abuse.

Even his colleagues in the legal community have doubts. A group of 329 prominent lawyers sent a letter to the Judiciary Committee stating that Judge Gonzales's purported role in deciding the treatment of detainees ``raises fundamental questions about Judge Gonzales's fidelity to the rule of law, about his views concerning the responsibility of a government lawyer, and about the role of the Department of Justice.''

Much has been made and much should be made about Judge Gonzales's rise from very humble beginnings. There is no disputing this fact. There is no disputing that the nomination of a Latino to such an August position is a significant, notable moment in our Nation's history. Indeed, there are many people in my State who see their deepest hopes and dreams for their children and grandchildren in the story of Judge Gonzales's rise. Such a sense of pride is no small thing. But our duty as Senators is to advise and consent on the fitness and skills of nominees. And there are few positions in the Cabinet that are as sensitive and important as that of Attorney General.

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As heartening as Judge Gonzales's personal story is, like the congressional Hispanic caucus and a number of civil rights groups such as the Mexican American Legal Defense Fund, I believe that Judge Gonzales has left too many important questions unanswered.

Indeed, as The congressional Hispanic caucus has pointed out:

[T]he Latino community continues to lack clear information about how the nominee, as Attorney General, would influence policies on such important topics as the Voting Rights Act, affirmative action, protections for persons of limited English proficiency, due process rights of immigrants, and the role of local police in enforcing federal immigration laws.

The right to vote, protection from discrimination, and assistance for those who have yet to master the English language are issues of great importance to Latinos in my State, and they deserve real answers. Despite Judge Gonzales's superb academic credentials and his record of achievement, I have too many concerns about his decisions made on legal matters, particularly in his role of the past 4 years as White House Counsel, to vote for his confirmation.

The genius of our Founding Fathers was not to allow power to be concentrated in the hands of a few. They were particularly concerned about a concentration of power in the President. Although they made the President the Chief Executive Officer of our Government and the Commander in Chief, the Founding Fathers constrained the President through the very structure of our Government, through both law and treaty. The Attorney General has a duty not just to serve the President but, also and ultimately, to support, protect, and defend the constitutional commitment to a system of checks and balances. I do not feel comfortable with Judge Gonzales's ability to do this.

After studying his record, I do not believe that Judge Gonzales has demonstrated the judgment necessary to perform the duties of the highest law enforcement officer of our land.

Mr. President, I ask unanimous consent to have printed in the RECORD a number of articles bearing on Judge Gonzales's role in torture policies, as well as recent statements by the Leadership Conference on Human Rights and the Center for Constitutional rights opposing this nomination.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

LCCR Opposes Gonzales Confirmation: Vote ``No'' February 2, 2005

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