the Spirit and Letter of the Law
By Senator Robert Byrd, AlterNet.
Posted February 3, 2005.
Sen. Byrd delivered the following remarks regarding the nomination
of Alberto Gonzales to be the nation's next attorney general.
During the speech, the senator expressed strong concerns about
Mr. Gonzales' role in the prisoner abuse scandals that have arisen
from cases in Iraq and Afghanistan and at Guantanamo Bay, and
the use of torture as an approved American interrogation policy.
Sen. Byrd also told his colleagues that the nominee, as the White
House counsel, has been responsible for programs and policies
that undermine the principles of the Constitution of the United
Alberto Gonzales is counsel to the president of the United States.
For the past four years, Alberto Gonzales has served as the chief
legal advisor to President Bush, housed in the West Wing of the
White House, a stone's throw from the Oval Office.
The official biography of Alberto Gonzales on the White House
web site states that, before he was commissioned to be White House
counsel, Judge Gonzales was a justice on the Texas Supreme Court.
Prior to that, he served as the 100th Secretary of the State of
Texas, where one of his many duties was to act as a senior advisor
to then-Gov. George W. Bush. Before that? He was general counsel
to Gov. Bush for three years.
So, for over a decade, Alberto Gonzales has been a close confidante
and advisor to George W. Bush, and the president has confirmed
his personal and professional ties to Judge Gonzales on many occasions.
The president has described him as both a "dear friend"
and as "the top legal official on the White House staff."
When he nominated Alberto Gonzales to be the next attorney general
of the United States, the president began by asserting, "This
is the fifth time I have asked Judge Gonzales to serve his fellow
citizens, and I am very grateful he keeps saying 'yes' ... as
the top legal official on the White House staff, he has led a
superb team of lawyers."
In praising his nomination of Alberto Gonzales, the president
specifically stressed the quintessential "leadership"
role that Alberto Gonzales has held in providing the president
with legal advice on the war on terror. The president stated specifically
that it was his "sharp intellect and sound judgment"
that "helped shape our policies in the war on terror."
According to the president, Alberto Gonzales is one of his closest
friends who, again in the words of the President, "always
gives me his frank opinion."
Imagine, then how perplexing and disheartening it has been to
review the responses, or should I say, lack thereof, that were
provided by Alberto Gonzales to Members of the Senate Judiciary
Committee at his confirmation hearing on Jan. 6. It seemed as
if, once seated before the committee, Judge Gonzales forgot that
he had, in fact, been the president's top legal advisor for the
past four years.
It was a strangely detached Alberto Gonzales who appeared before
the Senate Judiciary Committee. Suddenly, this close friend and
advisor to the president simply could not recall forming opinions
on any number of key legal and policy decisions made by the Bush
White House over the past four years. And this seemed particularly
true when it came to decisions which, in retrospect, now appear
to have been wrong.
When asked his specific recollection of weighty matters, Judge
Gonzales could provide only vague recollections of what might
have been discussed in meetings of monumental importance, even
during a time of war. He could not remember what he advised in
discussions interpreting the U.S. law against torture, or the
power of the president to ignore laws passed by Congress –
discussions which resulted in decisions that reversed over 200
years of legal and constitutional precedents relied on by 42 prior
presidents. That's pretty hard to believe.
In fact, if one did not know the true relationship between the
president and this nominee, or had never heard the president refer
to the "frank" advice he has received from Judge Gonzales,
one would think from reading his hearing transcript that Alberto
Gonzales was not really the White House Counsel. Instead, one
would think he is simply an old family friend who, yes, is happy
to work near the seat of power, but makes no big decisions, has
no legal opinions of his own, and certainly feels no responsibility
to provide independent recommendations to the president.
I find it hard to believe that the top legal advisor to the president
cannot recall what he said or did with respect to so many of the
enormous policy and legal decisions that have flowed from the
White House since Sept. 11 in particular. It is especially difficult
to comprehend this sudden memory lapse, when the consequences
of these decisions have had, and will continue to have, profound
effects on world events for decades to come.
Judge Gonzales was asked whether he had chaired meetings in which
he discussed with Justice Department attorneys such interrogation
techniques as strapping detainees to boards and holding them under
water as if to drown them. He testified that there were such meetings,
and he did remember having had some "discussions" with
Justice Department attorneys, but he cannot recall what he told
them in those meetings. When Sen. Kennedy asked if he ever suggested
to the Justice Department attorneys that they ought to "lean
forward" to support more extreme uses of torture as reported
by The Washington Post, he said, "I don't ever recall using
the term." He stated that, while he might have attended such
meetings, it was not his role but that of the Justice Department
to determine which interrogation techniques were lawful. He said,
"it was not my role to direct that we should use certain
kinds of methods of receiving information from terrorists. That
was a decision made by the operational agencies ... And we look
to the Department of Justice to tell us what would, in fact, be
within the law."
He said he could not recall what he said when he discussed with
Justice Department attorneys the contents of the now-infamous
"torture" memo of Aug. 1, 2002, the one which independent
investigative reports have found contributed to detainee abuses
first in Guantanamo and Afghanistan and, later, Iraq.
When asked whether he agreed with the now repudiated conclusions
contained in that torture memo at the time of its creation on
Aug. 1, 2002, Alberto Gonzales stated: "There was discussion
between the White House and the Department of Justice as well
as other agencies about what does this statute mean ... I don't
recall today whether or not I was in agreement with all of the
analysis, but I don't have a disagreement with the conclusions
then reached by the Department."
He added that, as counsel to the president, it was not his responsibility
to approve opinions issued by the Department of Justice. He said,
"I don't believe it is my responsibility, because it really
would politicize the work of the career professionals at the Department
One must wonder what the job of White House counsel entails,
if it does not involve giving the president the benefit of one's
thinking on legal issues.
Perhaps one reason Judge Gonzales says he does not remember what
he said in those meetings is because, as soon as the torture memo
was leaked to the press, he had to disavow it. Once it became
clear that the White House believed – based on those meetings
– that only the most egregious acts imaginable could be
prohibited as torture, the memo received universal opprobrium.
Thus, the administration had little choice but to repudiate it,
and, in June 2004, Alberto Gonzales announced its withdrawal.
He then directed the Justice Department to prepare new legal analysis
on how to interpret prohibitions against torture under U.S. and
Strangely, however, that new analysis was not available to the
public for six more months. Finally, on Dec. 30, just one week
prior to the Gonzales nomination hearing, a memorandum containing
the administration's most recent take on the subject was issued
by the Justice Department.
With the benefit of 20-20 hindsight and perhaps a keen desire
to be confirmed as the next attorney general of the United States,
Judge Gonzales told the committee on Jan. 6 that the analysis
of the Aug. 1, 2002, memo no longer represents the official position
of the Executive Branch of the United States.
If Judge Gonzales didn't see fit to question the Justice Department's
official position on torture in 2002, what made the Administration
change its mind in 2004? Was it a careful review of the legal
issues? Or simply political back-peddling in light of the public
knowledge of what its policies had brought about in Gitmo, Abu
Ghraib, and elsewhere?
I note in passing that the "torture" memo was written
in 2002 by then-Assistant Attorney General Jay Bybee, who is now
a federal judge on the Ninth Circuit Court of Appeals. God help
the Ninth Circuit. I would like the record to reflect that 18
other Senators and I voted to reject the nomination of Jay Bybee
to be a federal judge, a decision I, for one, do not regret.
The Bybee memo drew universal condemnation and scorn for at least
two of the legal opinions that were included in its text. First,
it described torture as being prohibited under U.S. law in only
very circumscribed circumstances. It defined torture so narrowly
that horrific harm could be inflicted against another human being
in the course of an interrogation overseas and not be prohibited.
According to the memo, unless such acts resulted in organ failure,
the impairment of a bodily function, or death, they could be considered
legal. In fact, the first page of the memorandum states, "We
conclude that the statute [against torture], taken as a whole,
makes plain that it prohibits only extreme acts ... This confirms
our view that the criminal statute penalizes only the most egregious
The second but equally shocking and erroneous legal conclusion
reached in the so-called "torture" memorandum states,
"We find that in the circumstances of the current war against
al Qaeda and its allies, prosecution under Section 2340A [- the
relevant provision of U.S. law prohibiting torture -] may be barred
because enforcement of the statute would represent an unconstitutional
infringement of the president's authority to conduct war"
as the commander in chief. This means the White House believed
that a president can simply "override" the U.S. law
prohibiting torture, just because he disagrees with it. He can
ignore the law by proclaiming, in his own mind, that the law is
unconstitutional. Not because a court of the United States has
found the law to be unconstitutional, but because a war-time president
decides he simply does not want to be bound by it.
What an astounding assertion! Think of it! A president placing
himself above the law, in effect, crowning himself King.
This outrageously broad interpretation of executive authority
is so antithetical to the carefully calibrated system of checks
and balances conceived by the founding fathers, it seems inconceivable
that it could be seriously contemplated by any so-called legal
expert, much less attorneys of the U.S. Justice Department or
the White House counsel.
Has this White House no appreciation for the struggle that this
nation endured upon its creation? Can it really believe that a
president can circumvent the will of the people and their legislature
by adopting and disseminating a legal interpretation that would,
in the end, protect from prosecution those who commit torture
in violation of U.S. law?
Alexander Hamilton in Federalist No. 69 described in detail exactly
how the American system can and must be distinguished from the
British monarchy. He wrote: "There is no comparison between
the intended power of the President and the actual power of the
British sovereign. The one can perform alone, what the other can
only do with the concurrence of a branch of the Legislature."
No one man, no president, not his White House counsel, nor all
of the attorneys in the Office of the Legal Counsel in the Justice
Department can, on their own, act in contravention of a law passed
No president can nullify or countermand a U.S. law to shield
from prosecution those who would commit, or attempt to commit,
torture. But that was the result sought by the White House.
When asked by Sen. Durbin if he still believes that the president
has the authority as commander in chief to ignore a law passed
by Congress – to decide on his own whether it is unconstitutional
or to simply refuse to comply with it – Judge Gonzales stated
that yes, he believes it is theoretically possible for the Congress
to pass a law that would be viewed as unconstitutional by a president,
and, therefore be ignored.
And even though the torture memo was replaced by a new memorandum
on Dec. 30, the replacement memorandum does not reject the earlier
document's shockingly overly expansive interpretation of the president's
commander in chief power. Instead, the new memo states that, because
that portion of the discussion in the earlier memo was "unnecessary,"
it has been "eliminated" from the new analysis.
Particularly disturbing is the fact that, although the new analysis
repudiates the earlier memo's conclusion that all but extreme
acts of torture are permissible, Judge Gonzales could not tell
us whether this repudiation of prior policy has been communicated
to those who are today doing the interrogating.
This is important because there is language contained in the
now-repudiated torture memo that was relied on in Guantanamo and
parts of which were included word-for-word in the military's "Working
Group Report on Detainee Interrogations in the Global War on Terrorism."
This report, dated April 2003, has never been repudiated or amended,
and may be relied upon by some interrogators in the field.
When asked whether those who are charged with conducting interrogations
have been apprised of the administration's repudiation of sections
of the Bybee memo and the administration's attendant change in
policy, Judge Gonzales did not know the answer.
Judge Gonzales continues to deny responsibility for many of the
policies and legal decisions made by this administration. But
the Fay and Schlesinger reports corroborate the fact that policy
memos on torture, ghost detainees and the Geneva Conventions,
which Judge Gonzales either wrote, requested, authorized, endorsed,
or implemented, appear to have contributed to detainee abuses
in Afghanistan, Guantanamo Bay, and Iraq, including those that
occurred at Abu Ghraib.
The International Committee of the Red Cross has told us that
abuse of Iraqi detainees has been widespread; not simply the wrongdoing
of a few, as the White House first told us. And the abuse occurred
not only at Abu Ghraib. Last week, the Los Angeles Times reported
that documents released last Monday by the Pentagon disclosed
that prisoners had lodged dozens of abuse complaints against U.S.
and Iraqi personnel who guarded detainees at another location
– a little-known palace in Baghdad that was converted into
a prison. The documents suggest, for the first time, that numerous
detainees were also abused at one of Saddam Hussein's former villas
in eastern Baghdad. The article noted that, while previous cases
of abuse of Iraqi prisoners had focused mainly on Abu Ghraib,
allegations of abuse at this new location included that guards
had sodomized a disabled man and killed his brother, then "tossed"
his dying body into a cell, on top of his sister.
Judge Gonzales admits that he was physically present at discussions
regarding whether acts of this nature constitute torture, but
don't expect him to take responsibility for them.
Don't hold me accountable, he says. It wasn't I. And he doesn't
just point fingers at the Justice Department. He spreads the blame
around. While he admitted he'd made some mistakes, he attempted
to further deflect responsibility for his actions by saying the
"operational agencies" also had responsibility to make
decisions on interrogation techniques – not him.
Here is exactly what he said:
I have a recollection that we had some discussions in my office,
but let me be very clear with the Committee. It is not my job
to decide which types of methods of obtaining information from
terrorists would be the most effective. That job responsibility
falls to folks within the agencies. It is also not my job to make
the ultimate decision about whether or not those methods would,
in fact, meet the requirements of the anti-torture statute. That
would be the job for the Department of Justice ... I viewed it
as their responsibility to make a decision as to whether or not
a procedure or method would, in fact, be lawful.
One wishes that Judge Gonzales could have told us what his job
was, rather than telling us only what it was not! Talk about passing
Well, at the end of the day, one can only wonder then, what legal
advice, if any, he actually gave the president. Does Judge Gonzales
have an opinion on the question of what constitutes torture? Does
the president? Does he or does the president have an opinion on
the related question of whether it is legal to "relocate"
detainees to "facilitate" interrogations? Do they believe
it is morally or constitutionally right? Do we know?
According to Art. II, Sec. 3 of the United States Constitution,
as head of the executive branch, the president has a legal duty
to take care that the laws be faithfully executed. The Constitution
does not say that the president "should" or "may"
undertake that responsibility: it clearly states that the president
"shall take Care that the Laws be faithfully executed."
He is duty-bound to undertake that responsibility under the Constitution
of the United States. And the president and his counsel must be
held accountable for not only failing to faithfully execute our
laws, but for trying to undermine, contravene, and gut them.
With such a track record, how can we possibly trust this man
to be the attorney general of the United States? What sort of
judgment has he exhibited?
As I stated with respect to Dr. Rice, there needs to be accountability
in our government. There needs to be accountability for the innumerable
blunders, bad decisions, and warped policies that have led the
United States to the position in which we now find ourselves:
trapped in Iraq amid increased violence; disgraced by detainee
abuses first in Guantanamo, then in Afghanistan, Iraq, and probably
in locations we have yet to discover; shunned by our allies; and
perceived by the world community, rightly, as careening down the
I do not believe our nation can rely on the judgment of a public
official with so little respect for the rule of law. We cannot
rely on the judgment of someone with so little regard for our
constitutional system of government. I simply cannot support the
nomination of someone who, despite his assertions to the contrary,
obviously contributed in large measure to the atrocious policy
failures and the contrived and abominable legal decisions that
have flowed from this White House over the past four years. For
all of these reasons, I have no choice but to vote against the
nomination of Alberto Gonzales to be the next attorney general
of the United States.