QUOTE
SEN. LEAHY: Thank you, Mr. Chairman. And I -- first off, I wanted to thank both Senator Salazar and Senator Cornyn for their introduction. Senator Salazar, a Democrat who is showing bipartisanship here, similar to, I remember, Senator Carnahan coming to introduce Attorney General Ashcroft even though he was the man who had run against her -- run against her husband.
I would also note that while al Qaeda doesn't have POW protection, Geneva still applies, as Secretary Colin Powell has stated very emphatically. I don't want to leave the impression that somehow Geneva doesn't apply just because it involves al Qaeda.
But I'd like to ask you a few questions about the torture memo that is dated back in August 1st, 2002, signed by attorney general -- Assistant Attorney General Jay Bybee, and he's now a federal appellate court judge. The memo was addressed to you, it was written at your request, and it concludes -- this is actually the memo-- this is actually the memo here; it's a fairly lengthy memo -- but it's addressed a memorandum for Alberto Gonzales, counsel to the president. And it says for an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death. In August 2002 did you agree with that conclusion?
MR. GONZALES: Senator, in connection with that opinion, I did my job as counsel to the president to ask the question.
SEN. LEAHY: I just want to know: Did you agree -- I mean, we could spend an hour with that answer, but I’m trying to keep it very simple. Did you agree with that interpretation of the torture statute back in August2002?
MR. GONZALES: If I may, sir, let me try to -- I will try to -- I'm going to give you a very quick answer, but I’d like to put a little bit of context. There obviously -- we were interpreting a statute that had never been reviewed in the courts, a statute drafted by Congress. We were trying to -- interpretation of a standard by Congress. There was discussion between the White House and the Department of Justice as well as other agencies about what does this statute mean. It was a very, very difficult -- I don't recall today whether or notI was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the department. Ultimately it is the responsibility of the department to tell us what the law means, Senator.
SEN. LEAHY: Then do you agree today that for an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death?
MR. GONZALES: I do not, sir. That does not represent the position of the executive branch. As you know –
SEN. LEAHY: But –
SEN. SPECTER: Well, let him finish his answer.
SEN. LEAHY: But it was the position in 2002.
SEN. SPECTER: Wait a minute, Senator Leahy. Let him finish his answer.
MR. GONZALES: Senator, what you're asking the counsel to do is to interject himself and direct the Department of Justice, who is supposed to be free of any kind of political influence, in reaching a legal interpretation of a law passed by Congress. I certainly give my views. There was, of course, conversation and a give-and-take discussion about what does the law mean. But ultimately -- ultimately by statute the Department of Justice is charged by Congress to provide legal advice on behalf of the president. We asked the question. That memo represented the position of the executive branch at the time it was issued.
SEN. LEAHY: Well, let me then ask you: If you're going to be attorney general, and I'll accept what you said, then let's put on the hat, if you're going to be confirmed as attorney general. The Bybee memo concludes that a president has authority as commander in chief to override domestic and international law as prohibiting torture and can immunize from prosecution anyone -- anyone -- who commits torture under his act; whether legal or not, he can immunize them.
Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief override and immunize acts of torture?
MR. GONZALES: First of all, sir, the president has said we're not going to engage in torture under any circumstances. And so you're asking me to answer a hypothetical that is never going to occur. This president has said we're not going to engage in torture under any circumstances, and therefore, that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn.
SEN. LEAHY: But I'm trying to think what type of opinions you might give as attorney general. Do you agree with that conclusion?
MR. GONZALES: Sir, again –
SEN. LEAHY: You're a lawyer, and you've held a position as a justice of the Texas Supreme Court, you’ve been the president's counsel, you've studied this issue deeply. Do you agree with that conclusion?
MR. GONZALES: Senator, I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional. And that is a position and a view not just of this president, but many, many presidents from both sides of the aisle.
Obviously, a decision as to whether or not to ignore a statute passed by Congress is a very, very serious one, and it would be one that I would spend a great deal of time and attention before arriving at a conclusion that in fact a president had the authority under the Constitution to --
SEN. LEAHY: Mr. Gonzales, I'd almost think that you'd served in the Senate, you've learned how to filibuster so well, because I asked a specific question: Does the president have the authority, in your judgment, to exercise a commander-in-chief override and immunize acts of torture?
MR. GONZALES: With all due respect, Senator, the president has said we're not going to engage in torture. That is a hypothetical question that would involve an analysis of a great number of factors. And the president
SEN. LEAHY: How about putting it this way: Do you think that other world leaders would have authority to authorize the torture of U.S. citizens, if they deemed it necessary for their national security?
MR. GONZALES: Senator, I don't know what laws other world leaders would be bound by, and I think it would -- I'm not in a position to answer that question.
SEN. LEAHY: Well, the only reason I ask this is this was the -- this memo was DOJ policy for a couple of years. And, you know, it sat there from some time in 2002, and then just a couple of weeks before 2005, late on a Thursday afternoon, it seems to be somewhat overridden. Of course that may be coincidentally because your confirmation was coming up.
Do you think if the Bybee memo had not been leaked to the press it would still be -- because it had never been shown to Congress, even though we'd asked for it -- do you think it would still be the overriding legal opinion?
MR. GONZALES: Sir, that I do not know. I do know that when it became -- it was leaked, we had concerns about the fact that people assumed that the president was somehow exercising that authority to engage in torture. And we wanted to clarify the record that the president had not authorized or condoned torture, nor had directed any actions or excused any actions under the commander-in-chief override that might otherwise constitute torture. And that was the reason that a decision was made to delete that portion of the opinion.
SEN. LEAHY: Well, do you think there's any connection whatsoever between the policies, which actually you helped to formulate, regarding the treatment and interrogation of prisoners, policies that were sent out to the Department of Defense and elsewhere, and the widespread abuses that have occurred? Do you acknowledge any accountability for such things, any connection?
MR. GONZALES: Senator, as I said in my remarks, I categorically condemn the conduct that we see reflected in these pictures at Abu Ghraib.
I would refer you to the eight completed investigations of what happened at Abu Ghraib and at Guantanamo. And there are still three ongoing. I'm talking about the Taguba report, the Fay-Jones-Kern report, the Schlesinger report, the Navy IG, the Army IG, Jacoby, Ryder, Miller -- all of these reports. And if you listen to the press briefings given in connection with the roll-out of these reports, they do conclude that with respect to the conduct -- not reflected in the photos, not the conduct that we find the most offensive, but conduct related to pure interrogations, that there was some confusion –
SEN. LEAHY: Those same reports you talk about say the Department of Defense relied on the memo.
It is quoted extensively in the DOD working group report on interrogations. That report has never been repudiated. So apparently they did rely on the memo -- on the memo. And when we find out about the abuses, we never find out from the administration, we find out because the press reports it.
Is there any accountability here anywhere? As I mentioned earlier, my son was in the military. He was held to very, very strict standards. He's trained for combat, held to very, very strict standards. The vast majority of the men and women in the military are held to those same strict standards. I'm just trying to find out where the accountability is for this terrible blot that you and I both agree is a terrible blot on the United States.
MR. GONZALES: I believe that is a very good question, Senator. And that is why we have these eight completed investigations and these three pending investigations, and why we've had four hearings involving the secretary of Defense, you've had 18 hearings involving the deputy secretary, under secretary of Defense, you’ve had over 40 briefings with the Congress, because we care very much about finding out what happened and holding people accountable. Unlike other countries, that talk about - simply talk about Geneva, if there is an allegation that we've done something wrong we investigate it. We're very serious about our commitments, our legal obligations in Iraq. And if people have done things that they shouldn't have done, in violation of our legal obligations, they are going to be held accountable.
Mr. Gonzales is making me dizzy. I would also note that while al Qaeda doesn't have POW protection, Geneva still applies, as Secretary Colin Powell has stated very emphatically. I don't want to leave the impression that somehow Geneva doesn't apply just because it involves al Qaeda.
But I'd like to ask you a few questions about the torture memo that is dated back in August 1st, 2002, signed by attorney general -- Assistant Attorney General Jay Bybee, and he's now a federal appellate court judge. The memo was addressed to you, it was written at your request, and it concludes -- this is actually the memo-- this is actually the memo here; it's a fairly lengthy memo -- but it's addressed a memorandum for Alberto Gonzales, counsel to the president. And it says for an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death. In August 2002 did you agree with that conclusion?
MR. GONZALES: Senator, in connection with that opinion, I did my job as counsel to the president to ask the question.
SEN. LEAHY: I just want to know: Did you agree -- I mean, we could spend an hour with that answer, but I’m trying to keep it very simple. Did you agree with that interpretation of the torture statute back in August2002?
MR. GONZALES: If I may, sir, let me try to -- I will try to -- I'm going to give you a very quick answer, but I’d like to put a little bit of context. There obviously -- we were interpreting a statute that had never been reviewed in the courts, a statute drafted by Congress. We were trying to -- interpretation of a standard by Congress. There was discussion between the White House and the Department of Justice as well as other agencies about what does this statute mean. It was a very, very difficult -- I don't recall today whether or notI was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the department. Ultimately it is the responsibility of the department to tell us what the law means, Senator.
SEN. LEAHY: Then do you agree today that for an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death?
MR. GONZALES: I do not, sir. That does not represent the position of the executive branch. As you know –
SEN. LEAHY: But –
SEN. SPECTER: Well, let him finish his answer.
SEN. LEAHY: But it was the position in 2002.
SEN. SPECTER: Wait a minute, Senator Leahy. Let him finish his answer.
MR. GONZALES: Senator, what you're asking the counsel to do is to interject himself and direct the Department of Justice, who is supposed to be free of any kind of political influence, in reaching a legal interpretation of a law passed by Congress. I certainly give my views. There was, of course, conversation and a give-and-take discussion about what does the law mean. But ultimately -- ultimately by statute the Department of Justice is charged by Congress to provide legal advice on behalf of the president. We asked the question. That memo represented the position of the executive branch at the time it was issued.
SEN. LEAHY: Well, let me then ask you: If you're going to be attorney general, and I'll accept what you said, then let's put on the hat, if you're going to be confirmed as attorney general. The Bybee memo concludes that a president has authority as commander in chief to override domestic and international law as prohibiting torture and can immunize from prosecution anyone -- anyone -- who commits torture under his act; whether legal or not, he can immunize them.
Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief override and immunize acts of torture?
MR. GONZALES: First of all, sir, the president has said we're not going to engage in torture under any circumstances. And so you're asking me to answer a hypothetical that is never going to occur. This president has said we're not going to engage in torture under any circumstances, and therefore, that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn.
SEN. LEAHY: But I'm trying to think what type of opinions you might give as attorney general. Do you agree with that conclusion?
MR. GONZALES: Sir, again –
SEN. LEAHY: You're a lawyer, and you've held a position as a justice of the Texas Supreme Court, you’ve been the president's counsel, you've studied this issue deeply. Do you agree with that conclusion?
MR. GONZALES: Senator, I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional. And that is a position and a view not just of this president, but many, many presidents from both sides of the aisle.
Obviously, a decision as to whether or not to ignore a statute passed by Congress is a very, very serious one, and it would be one that I would spend a great deal of time and attention before arriving at a conclusion that in fact a president had the authority under the Constitution to --
SEN. LEAHY: Mr. Gonzales, I'd almost think that you'd served in the Senate, you've learned how to filibuster so well, because I asked a specific question: Does the president have the authority, in your judgment, to exercise a commander-in-chief override and immunize acts of torture?
MR. GONZALES: With all due respect, Senator, the president has said we're not going to engage in torture. That is a hypothetical question that would involve an analysis of a great number of factors. And the president
SEN. LEAHY: How about putting it this way: Do you think that other world leaders would have authority to authorize the torture of U.S. citizens, if they deemed it necessary for their national security?
MR. GONZALES: Senator, I don't know what laws other world leaders would be bound by, and I think it would -- I'm not in a position to answer that question.
SEN. LEAHY: Well, the only reason I ask this is this was the -- this memo was DOJ policy for a couple of years. And, you know, it sat there from some time in 2002, and then just a couple of weeks before 2005, late on a Thursday afternoon, it seems to be somewhat overridden. Of course that may be coincidentally because your confirmation was coming up.
Do you think if the Bybee memo had not been leaked to the press it would still be -- because it had never been shown to Congress, even though we'd asked for it -- do you think it would still be the overriding legal opinion?
MR. GONZALES: Sir, that I do not know. I do know that when it became -- it was leaked, we had concerns about the fact that people assumed that the president was somehow exercising that authority to engage in torture. And we wanted to clarify the record that the president had not authorized or condoned torture, nor had directed any actions or excused any actions under the commander-in-chief override that might otherwise constitute torture. And that was the reason that a decision was made to delete that portion of the opinion.
SEN. LEAHY: Well, do you think there's any connection whatsoever between the policies, which actually you helped to formulate, regarding the treatment and interrogation of prisoners, policies that were sent out to the Department of Defense and elsewhere, and the widespread abuses that have occurred? Do you acknowledge any accountability for such things, any connection?
MR. GONZALES: Senator, as I said in my remarks, I categorically condemn the conduct that we see reflected in these pictures at Abu Ghraib.
I would refer you to the eight completed investigations of what happened at Abu Ghraib and at Guantanamo. And there are still three ongoing. I'm talking about the Taguba report, the Fay-Jones-Kern report, the Schlesinger report, the Navy IG, the Army IG, Jacoby, Ryder, Miller -- all of these reports. And if you listen to the press briefings given in connection with the roll-out of these reports, they do conclude that with respect to the conduct -- not reflected in the photos, not the conduct that we find the most offensive, but conduct related to pure interrogations, that there was some confusion –
SEN. LEAHY: Those same reports you talk about say the Department of Defense relied on the memo.
It is quoted extensively in the DOD working group report on interrogations. That report has never been repudiated. So apparently they did rely on the memo -- on the memo. And when we find out about the abuses, we never find out from the administration, we find out because the press reports it.
Is there any accountability here anywhere? As I mentioned earlier, my son was in the military. He was held to very, very strict standards. He's trained for combat, held to very, very strict standards. The vast majority of the men and women in the military are held to those same strict standards. I'm just trying to find out where the accountability is for this terrible blot that you and I both agree is a terrible blot on the United States.
MR. GONZALES: I believe that is a very good question, Senator. And that is why we have these eight completed investigations and these three pending investigations, and why we've had four hearings involving the secretary of Defense, you've had 18 hearings involving the deputy secretary, under secretary of Defense, you’ve had over 40 briefings with the Congress, because we care very much about finding out what happened and holding people accountable. Unlike other countries, that talk about - simply talk about Geneva, if there is an allegation that we've done something wrong we investigate it. We're very serious about our commitments, our legal obligations in Iraq. And if people have done things that they shouldn't have done, in violation of our legal obligations, they are going to be held accountable.
