Senate Foreign Relations Committee Hearing on the Nomination of Alberto Gonzales to be U.S. Attorney General January 6, 2005 SECTION: CAPITOL HILL HEARING HEADLINE: HEARING OF THE SENATE FOREIGN RELATIONS COMMITTEE SUBJECT: NOMINATION OF ALBERTO GONZALES TO BE U.S. ATTORNEY GENERAL CHAIRED BY: SENATOR RICHARD G. LUGAR (R-IN) WITNESSES:ALBERTO GONZALES, NOMINATED TO BE U.S. ATTORNEY GENERAL (This is a partial transcript) FEINGOLD: I too want to congratulate you, Mr. Chairman. I have long admired your thoroughness and your independence and your judgment, and I do look forward to working with you and all the members of the committee again. Particularly appreciate the fact that you kicked off the questioning today by using a lot of your time to talk about the need to carefully look at certain provisions of the USA Patriot Act, which, of course, I agree we need to do, and I'm looking forward to a bipartisan effort to do it. You were specific about concerns, about the so-called library records provision, Section 215, and the sneak-and-peek provisions. Those are some of the ones that need that kind of review. And I want to make it clear in the record, because it sounded like the nominee was suggesting that somehow Section 215 doesn't apply to library records. It does, in fact, apply to library records. Apparently the nominee agrees and... GONZALES: I do. FEINGOLD: ... I just want to say that the previous attorney general referred to librarians in this country as being hysterical in their concern with regard to this. They were not hysterical about it and it does need the kind of review that the chairman has called for. I think it could be a great moment for the Senate when we take up this legislation and look at the problems with it and come together to fix it. FEINGOLD: And I thank the chairman for that. Welcome, Judge Gonzales, and congratulations on your nomination. In accepting the president's nomination to be attorney general, you said, "The American people expect and deserve a Department of Justice guided by the rule of law." I couldn't agree with you more. One of the things we, as senators, must decide in considering your nomination is whether as attorney general you will give the American people what they expect and deserve from their government. And I have a few questions to follow up on that. First I want to follow up on you answer to Senator Kennedy and Senator Leahy regarding the OLC memo. You told Senator Leahy that you didn't want to politicize the work of career professionals of DOJ, so you couldn't weigh in against the interpretation of the law that was expressed in that memo. But then you told Senator Kennedy that it was totally appropriate to have discussions with the DOJ while the memo was being prepared because it was a complicated statute that had never before been interpreted. I think there's something of a contradiction there, which I'd like you to comment on, but I'd like to make two other points first. First, the authors of the torture memo, in fact, Judge, were political appointees, not career professionals. Second, the issue is whether you disagreed with that memo and expressed that disagreement to the president. You're the president's lawyer. Isn't it your job to express your independent view to the president if you disagree with the opinion of the Justice Department? Or do you just simply pass on the DOJ's opinion no matter how erroneous or outrageous, and just say to the president in effect, "This is what the DOJ says the law is"? GONZALES: Thank you, Senator, for that question. Let me try to clarify my comments regarding my role in connection with the memo and my role generally, as I view it, as counsel to the president. It is, of course, customary, and I think to be expected, that there would be discussion between the Department of Justice and the counsel's office about a legal interpretation of, say, a statute that had never been interpreted before, one that would be extremely emotional, say, if you're talking about what are limits of torture under a domestic criminal statutes. And so there was discussion about that. But I understand and it's my judgment that I don't get to decide for the executive branch what the law is. Ultimately, that is the president, of course. But by statute, the Department of Justice is given the authority to provide advice to the executive branch. And so, while I certainly participate in discussions about these matters, at the end of the day, that opinion represents the position of the department and therefore the position of the executive branch. FEINGOLD: Well, I'm puzzled by that because I think it must be your job as counsel to the president to give him your opinion about whether the DOJ document was right before he makes a judgment to approve it. And I always assumed, anyway, that that would be the job of the president's lawyer. GONZALES: I certainly do, of course, give the president my own opinion about particular matters. GONZALES: But as I said earlier in response to a question, my own judgment, my own conclusions very often are informed and very often influenced by the advice given to me by the Department of Justice. And often I communicate with the president not only, sort of, my views, but the views of the department, which, of course, by statute, that's their job to do, and so that the president has that information in hand in weighing a decision. FEINGOLD: I'm still puzzled by it. If you were my lawyer, I'd sure want to know your opinion about something like that independent. But let me move on. I want to now ask you about the role you had when you were counsel to then-Governor Bush. You prepared what are referred to as clemency memos summarizing a particular death row inmate's case and his plea for clemency from the governor. As I understand it, you and your staff would prepare these memos and then present them to the governor, who would make a final decision on whether to deny or grant clemency to the inmate with an imminent execution date. Now, according to my staff's review of the clemency memoranda, it appears that you presented these memos to the governor almost always on the day of execution. Why is that? On such a grave matter as life and death, why was the decision left until the day of execution? GONZALES: The ultimate decision may have been left or came close to the time of the execution because that was the desire of the governor. However, those memos reflect a summary of discussions that often occurred between my office and the governor in connection with every execution. It was not unusual -- in fact it was quite common -- that I would have numerous discussions with the governor well in advance of a scheduled execution. We often knew when executions were scheduled. If I were in talking to the governor about a particular matter and we had an opportunity, I would say, "Governor, we have an execution coming up in three weeks. One of the bases of clemency I'm sure that'll be argued is, say, something like mental retardation. These are the issues that have to be considered." And so there would be a rolling series of discussions in connection with every execution. But as to when the ultimate decision was going to be made, it was often the day before or the day of an execution. And an additional, very important reason for that is because a governor under Texas law has very limited authority under the constitution to grant clemency. GONZALES: He can only grant clemency, he can only grant a pardon, he can only grant a commutation, he can only grant a reprieve, beyond 30 days upon a recommendation of the Board of Pardon and Parole. And often the board would not meet and would not vote until just prior to an execution. And of course, the governor wanted to wait and see what recommendation the Board of Pardon and Parole had, with respect to a request for clemency. FEINGOLD: I recognize that. It's true that the Texas governor has a more limited clemency power, compared to other governors. But the governor does appoint the members of the Board of Pardon and Paroles. And I think his grant of a reprieve could have signaled to the board that a case deserves closer attention. I guess I want to know -- in this way you just described, the process worked -- did you ever seek additional time in order to allow the governor adequate time to review and understand a case? In other words, after he read the memo that was presented on the day of the scheduled execution, was there ever an occasion when more time was requested? GONZALES: I don't remember an occasion when more time was requested when we presented that final memo. I do remember many occasions when I would go to the governor and talk about the facts of a particular case and the basis of clemency and the governor would -- if I expressed concerns or questions, the governor would direct me to go back and find out and to be absolutely sure, because while the governor believed in the death penalty, he believes that it deters crimes and saves lives, he also believes very firmly that it should be applied fairly and only the guilty should be punished. FEINGOLD: Well, on that point, one of the cases involved an inmate on death row named Carl Johnson. He was executed in September 1995, during the first year that Governor Bush was in office, and you were his counsel on these matters. Mr. Johnson was represented by a lawyer named Joe Cannon, who slept through the major portions of the trial and who was apparently notorious in legal circles for this behavior. In his challenges appealing the trial and conviction, Mr. Johnson argued consistently that he had had ineffective assistance of counsel, primarily based on the sleeping lawyer who represented him at trial. In your memo to the governor discussing this case and in pending execution, however, you failed to make any mention whatsoever of the basis for Mr. Johnson's appeal. You go to great lengths to describe the underlying facts of the murder, but there's no mention at all of the fact that this lawyer slept through the major portions of the trial. I'd like you to, in a second, explain this omission. I want to know how the governor could have weighed the clemency memo fully and properly if you had failed to even indicate the basis for the clemency request. GONZALES: Senator, as I described to you, the process -- and those memos reflected the end of a process of educating the governor about the facts of a particular case. And the fact that it may not have been included in the memo -- we may have had numerous discussions about it. He may have said, "Has that issue been reviewed in the courts carefully and thoroughly?" And we may have gone back -- I don't remember the facts of this particular case. But we may have gone back, our office may have gone back and seen that, yes, in fact, this question of ineffective assistance of counsel had been reviewed numerous times in our court and had found the allegations frivolous. FEINGOLD: Well, this is a very famous case. It's hard for me to imagine that you don't know the specifics of it. And it's almost unimaginable to me that a final formal legal memo to the governor would not have included reference to the fact that this man's lawyer slept during the trial. SPECTER: Senator Feingold's time is up, but Judge Gonzales, you may answer the question. GONZALES: I don't have a response, Senator, unless there was a question. (CROSSTALK) SPECTER: If there has been a question, postulate the question, Senator Feingold. FEINGOLD: It was a statement. Thank you, Mr. Chairman. SPECTER: Thank you. Senator Cornyn? CORNYN: Thank you, Mr. Chairman. Judge Gonzales, has it been your experience as a lawyer that sometimes lawyers disagree? GONZALES: That has been my experience, yes, sir. CORNYN: Well, that's been my experience too. And I guess it's best exemplified by the lawyers on this committee who from time to time will disagree with one another, and certainly that's understandable when we disagree about policy matters, even inferences to be drawn from facts which we all know to be true. But I think perhaps, if I heard correctly, the senator from Delaware was questioning whether my facts were correct (inaudible) presented the opening statement referred to a number of acknowledgements of the correctness of your judgment and the president's decision that the Geneva Conventio XXX to grant clemency. GONZALES: He can only grant clemency, only grant a pardon, he can only grant a commutation, he can only grant a reprieve, beyond 30 days upon a recommendation of the Board of Pardons and Parole. And often the board would not meet and would not vote until just prior to an execution. And of course, the president -- the governor wanted to wait and see what recommendations the Board Of Pardons and Parole had, with respect to a request for clemency. FEINGOLD: I recognize that. It's true that the Texas governor has a more limited clemency power, compared to other governors. But the governor does appoint the members of the Board of Pardon and Paroles. And I think his grant of a reprieve could have signaled to the board that a case deserves closer attention. I guess I want to know -- in this way you just described the process worked -- did you ever seek additional time in order to allow the governor adequate time to review and understand a case. In other words, after he read the memo that was presented on the day of the scheduled execution, was there ever an occasion when more time was requested. GONZALES: I don't remember an occasion when more time was requested when we presented that final memo. I do remember many occasions when I would go to the governor and talk about the facts of a particular case and the basis of clemency and the governor would -- if I expressed concerns or questions, the governor would direct me to go back and find out and to be absolutely sure because while the governor believed in the death penalty, he believed that it deters crime to save lives, he also believes very firmly that it should be applied fairly and that only the guilty should be punished. F: Well, on that point, one of the cases involved, an inmate on death row named Carl (ph) Johnson. He was executed in September 1995, during the first year that Governor Bush was in office and you were his counsel on these matters. Mr. Johnson was represented by a lawyer named Joe Cannon (ph), who slept through the major portions of the trial and who was apparently notorious in legal circles for this behavior. In his challenges, appealing the trial and conviction, Mr. Johnson, argued insistently that he had had ineffective assistance of counsel, primarily based on the sleeping lawyer who represented him at trial. In your memo to the governor discussing this case and in pending execution, however, you failed to make any mention whatsoever of the basis for Mr. Johnson's appeal. You go to great lengths to describe the underlying facts of the murder, but there's no mention at all of the fact that this lawyer slept through the major portions of the trial. I'd like you to, in a second, explain this omission. I want to know how the governor could have weighed the clemency memo fully and properly if you had failed to even indicate the basis for the clemency request. FIX MATCHn does not formally apply to terrorists. And so, I'd like to just quickly refer specifically to the pages, and I'd like to ask unanimous consent that they be made part of the record. ******************************************** SPECTER: Thank you, Senator Brownback. And we turn now to Senator Feingold. FEINGOLD: Thank you, Mr. Chairman. Judge Gonzales, thank you for your patience in answering all these questions today. SPECTER: Before you begin, Senator Feingold, might I again say to any senators who are looking for a second round of questions, that now is a good time to come to the hearing room, and would ask the staff for senators who are interested in a second round to notify your principals so we can move ahead. I think there is a realistic likelihood of finished up the hearing today if all senators are present to take the time in an orderly sequence. Pardon the interruption, Senator Feingold. FEINGOLD: Thank you, Mr. Chairman. SPECTER: The floor is yours, and we'll start the clock at the beginning. FEINGOLD: Thank you for the opportunity to ask another round of questions. Again, thanks, Judge Gonzales. Let me return first to the death penalty issue and then move on to some other questions. We'd talked earlier about your specific role vis-a-vis Governor Bush in clemency proceedings and about a couple cases. Let me ask you more generally: Critics of your clemency memos say you did make serious inquiries into viable claims of innocence. Based on your review of the information you gathered in those cases, were you certain then and are you certain today that all the individuals whose execution you and Governor Bush approved were in fact guilty? GONZALES: If, in fact, that there were questions about guilt or innocence or issues raised in a clemency petition that had not been reviewed by the courts, then the position of then-Governor Bush was that he would not grant clemency. Obviously, the paramount concern was whether or not -- was this person guilty of the crime convicted of? And you must understand, Senator, that as counsel I didn't have the kind of resources you would normally find in a D.A.'s office. I wouldn't have the opportunity or resources to go out, reinterview witnesses and physically examine evidence. Oftentimes, there were allegations made in a clemency petition that had never been made in the trial, or had been raised in the courts and had been rejected, had been looked at by the courts and had been summarily rejected. And so the fact that something is raised in a clemency petition and is not mentioned in the memo doesn't mean that it was ignored, by any stretch of the imagination. FEINGOLD: What I'm asking here, Judge, is your personal opinion at this point. GONZALES: My personal opinion... FEINGOLD: This is, I'm sure you'll be the first to say, an incredibly difficult process for anyone to be involved in. At this point, your own opinion, are you certain that all of the individuals whose executions you and Governor Bush approved were, in fact, guilty? GONZALES: I could not have made a recommendation for the governor to deny clemency if there was any question in my mind about the guilt or innocence of someone who had submitted a petition for clemency to this governor. FEINGOLD: I guess I'll leave it at that. Thank you. Would you be in favor of statutes, on the state or federal level, that would permit access to evidence for DNA for other forensic testing to determine if an innocent person has been executed if a colorable claim of innocence has been made? I understand that there is such legislation being considered in Texas at this time. GONZALES: This is after the fact, after someone has been executed? FEINGOLD: Yes, correct. GONZALES: Senator, I think that's something that I could want to look at. I hesitate to comment on legislation without looking at the specific language of the legislation, and obviously the administration speaks with one voice about legislation. I will say that if we are going to apply the death penalty, we need to make sure that, as I said earlier to you, it should be applied fairly and only the guilty should be punished. As technology evolves and the use of DNA has become more and more common, I think it is something that we ought to consider. FEINGOLD: Well, I'd ask then, if you could provide me in writing, after you had a chance to look at the Texas legislation, your reaction to it. GONZALES: I'd be happy to do that, Senator. FEINGOLD: Let me switch to a subject that's come up a lot here today. In the August 2002 memorandum, the Justice Department concludes that the president, as commander in chief, may authorize interrogations, that violate the criminal laws prohibiting torture and that the Congress may not constitutionally outlaw such activity when it's authorized by the president. This is the claim, essentially, that the president is above the law so long as he is acting in the interests of national security. The December 30 rewrite of the August memorandum does not repudiate this view. It simply says the issue is irrelevant because the president has prohibited torture. Today in response to questions on this subject, you have been unwilling to repudiate this legal theory. You've danced around the question a bit, but as I understand your answers so far, you have said there may be a situation where the president would believe a statute is unconstitutional and would, therefore, refuse to comply with it, but would abide by a court's decision on its constitutionality. FEINGOLD: You also, I am told, said that many presidents have asserted the power not to enforce a statute that they believe is unconstitutional. But there is a difference between a president deciding not to enforce a statute which he thinks is unconstitutional and a president claiming to authorize individuals to break the law by torturing individuals or taking other illegal action. So what I want to do is press you on that, because I think, perhaps, you've misunderstood the question. And it's an important one. It goes to a very basic principle of the country, that no one, not even the president of the United States, is above the law. Of course, the president is entitled to assert that an act of Congress is unconstitutional. This president did so, for example, with respect to some portions of our McCain-Feingold bill when he signed it. But his Justice Department defended the law in court, as it is bound to do with every law duly enacted by the Congress. And his campaign and his party complied with the law, while a court challenge was pending. No one asserted that the president had the power to ignore a law that he thought was unconstitutional. The question here is: What is your view regarding the president's constitutional authority to authorize violations of the criminal law, duly enacted statutes that may have been on the books for many years, when acting as commander in chief? Does he have such authority? The question you have been asked is not about a hypothetical statute in the future that the president might think is unconstitutional; it's about our laws and international treaty obligations concerning torture. The torture memo answered that question in the affirmative. And my colleagues and I would like your answer on that today. And I also would like you to answer this: Does the president, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country? GONZALES: Senator, the August 30th memo has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes. So it's been rejected by the executive branch. I categorically reject it. And in addition to that, as I've said repeatedly today, this administration does not engage in torture and will not condone torture. And so what we're really discussing is a hypothetical situation that... FEINGOLD: Judge Gonzales, I've asked a broader question. I'm asking whether, in general, the president has constitutional authority -- does he at least in theory have the authority to authorize violations of the criminal law when there are duly enacted statutes, simply because he's commander in chief? FEINGOLD: Does he have that power? GONZALES: Senator, in my judgment, you phrase it as sort of a hypothetical situation. I would have to know what is the national interest that the president may have to consider. What I'm saying is, it is impossible to me, based upon the question as you've presented it to me, to answer that question. I can say is that there is a presumption of constitutionality with respect to any statute passed by Congress. I will take an oath to defend the statutes. And to the extent that there is a decision made to ignore a statute, I consider that a very significant decision and one that I would personally be involved with, I commit to you on that, and one we would take with a great deal of care and seriousness. FEINGOLD: Well, that sounds to me like the president still remains above the law. GONZALES: No, sir. FEINGOLD: You know, if this is something where you take a good look at it, you give a presumption that the president ought to follow the law, to me, that's not good enough under our system of government. GONZALES: Senator, if I might respond to that, the president is not above the law. Of course he is not above the law. But he has an obligation too. He takes an oath as well. And if Congress passes a law that is unconstitutional, there is a practice and a tradition recognized by presidents of both parties that he may elect to decide not to enforce that law. Now I think that that would be... FEINGOLD: I recognized and I tried to make that distinction, Judge, between electing not to enforce as opposed to affirmatively telling people they can do certain things in contravention of the law. GONZALES: Senator, this president is not -- it's not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes. FEINGOLD: Finally, will you commit to notify Congress if the president makes this type of decision and not wait two years until a memo is leaked about it? GONZALES: I will commit to advise the Congress as soon as I legally can, yes, sir. FEINGOLD: Well, I hope that would be a very brief period of time. And I thank you again, Judge Gonzales. GONZALES: Thank you, Senator. FEINGOLD: Thank you, Mr. Chairman.

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