Update [2005-1-6 19:25:48 by Armando]:
I will be on Air America's Majority Report
tonight in the 9:20 p.m segment to discuss Gonzales. Katerina vanden Heuvel will be up before me. Isn't that an outrage? I should go first. Kidding of course. So listen in if you can. No f bombs though.
I have reviewed the transcript of Gonzales' morning testimony (I only caught some snippets of the televised testimony) and I must say I am appalled. From unacceptable answers on torture, Presidential power, to non-answers of basic legal questions, it was an awful performance. Frankly, besides not being morally qualified, I now have some doubts about Gonzales being professionally qualified for the position. Take this initial exchange with Sen Specter:
[GONZALES:] With respect to access to library records, to take a specific point, obviously you're referring to Section 215 of the Patriot Act. Two-fifteen relates to obtaining business records. It never mentions library records. Two-fifteen allows the government to obtain certain types of business records, hotel records, credit card records, rental records, transportation records, in connection with -- it's got to be related to a foreign terrorist -- a foreign intelligence operation. And the government cannot do that without first going to a judge. The government goes to the FISA court and obtains a warrant to do that.
SEN. SPECTER: But there is no requirement for a showing of probable cause before that judicial order is entered, Judge Gonzales. And the question is, why can't we have that traditional probable cause requirement on the obtaining of those records?
MR. GONZALES: Certainly, Senator, you could do that. But right now, today, a prosecutor could obtain a grand jury subpoena, if it was relevant to a criminal investigation, without meeting that standard, and obtain access to those very same library records and --
SEN. SPECTER: But when the prosecutor obtains those records on a grand jury subpoena -- and I have some familiarity with that -- it's subject to judicial supervision. There can be a motion to quash.
Gonzales seemed not to understand that it is the lack of due process PRIOR to search, without a probable cause finding by a court that is the problem. It struck me that Specter was a bit shocked by Gonzales' ignorance. Frankly, so was I. But perhaps Gonzales misspoke. On to the more fundamental problems on the flip.
My comments within the trancripts will be in italics.
On the August 1, 2002 Memorandum:
[LEAHY]: I'd like to ask you a few questions about the torture memo that is dated back in August 1st, 2002 . . . addressed to you, it was written at your request, 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 August 2002?
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 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. Ultimately it is the responsibility of the department to tell us what the law means, Senator.
Ok, did you catch that? Gonzales AGREES with the definition of torture provided in the August 1, 2002 memo. We can stop right now. Unacceptable. Leahy is shocked. Watch his next question:
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. [But but but, he just said . . . is this guy all there?]
SEN. LEAHY: But --
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.
WTF? Seriously What The Fuck? Why was he getting the fucking memo then? Why did he pass it on to the CIA and DOD? This answer is beyond acceptable.
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 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? 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 --
One more time -WTF? The President will decide if he will comply with a duly enacted law. Well Gawddamn - and here I thought it was the Supreme Court that determined the Constitutionality of laws. WTF? This guy is horrible.
SEN. FEINGOLD: . . . 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?
MR. 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 counselor to the president. It is, of course, customary, and I think to be expected, that there would be discussions between the Department of Justice and the counsel's office about 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 the limits of torture under a domestic criminal statute. 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.
SEN. 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 assumed -- I have always assumed, anyway, that that would be the job of the president's lawyer.
MR. GONZALES: I certainly do, of course, give the president my own opinions about particular matters. But as I said earlier in response to a question, my own judgment and 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.
SEN. 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.
Of course Feingold is absolutely right. Gonzles is either a fool or a knave or both. The key thing is he forwarded the memos as Adminstration policy to DOD and the CIA. And we know the results. Again, unacceptable.
SEN. RICHARD DURBIN (D-IL): . . . My question to you is, would you not also concede that your decision and the decision of the president to call into question the definition of torture, the need to comply with the Geneva Conventions, at least opened up a permissive environment for conduct which had been ruled as totally unacceptable by presidents of both public -- both parties for decades? . . . Then let's go to specific questions. Can U.S. personnel legally engage in torture or cruel, inhuman or degrading treatment under any circumstances?
MR. GONZALES: Absolutely not. I mean, our policy is we do not engage in torture.
SEN. DURBIN: Good. Glad that you stated that for the record. Do you believe there are circumstances where other legal restrictions, like the War Crimes Act, would not apply to U.S. personnel? (Pause.)
MR. GONZALES: Senator, I don't believe that that would be the case. But I would like the opportunity -- I know I want to be very candid with you and obviously thorough in my response to that question. It is sort of a legal conclusion, and I would like to have the opportunity to get back to you on that.
SEN. DURBIN: I'll give you that chance. In your August memo, you created the possibility that the president could invoke his authority as commander in chief not only to suspend the Geneva Convention but the application of other laws. Do you stand by that position?
MR. GONZALES: I believe that I said in response to an earlier question that I do believe it is possible, theoretically possible, for the Congress to pass a law that would be viewed as unconstitutional by a president of the United States. And that is not just the position of this president. That's been the position of presidents on both sides of the aisle. In my judgment, making that kind of conclusion is one that requires a great deal of care and consideration. But if you're asking me if it's theoretically possible that Congress could pass a statute that we view as unconstitutional, I'd have to say -- concede, sir, that that's -- I believe that that's theoretically possible.
SEN. DURBIN: But you believe he has that authority; he could ignore a law passed by this Congress, signed by this president or another one, and decide that it is unconstitutional and refuse to comply with that law?
MR. GONZALES: Senator, again, you're asking me where the -- hypothetically, does that authority exist? And I guess I would have to say that hypothetically that authority may exist. But let me also just say that we certainly understand and recognize the role of the courts in our system of government. We have to deal with some very difficult issues here, very, very complicated. Sometimes the answers are not so clear. The president's position on this is that ultimately the judges, the courts will make the decision as to whether or not we've drawn the right balance here. And in certain circumstance the courts have agreed with the administration positions; in certain circumstances, the courts have disagreed. And we will respect those decisions.
SEN. DURBIN: Fifty-two years ago, a president named Harry Truman decided to test that premise -- Youngstown Sheet and Tube versus the Supreme Court -- or in the Supreme Court -- versus Sawyer in the Supreme Court. The Supreme Court said, as you know, "President Truman, you're wrong. You don't have the authority to decide what's constitutional, what laws you like and don't like." I'm troubled that you would think, as our incoming attorney general, that a president can pick or choose the laws that he thinks are unconstitutional and ultimately wait for that test in court to decide whether or not he's going to comply with the law.
MR. GONZALES: Senator, you asked me whether or not it was theoretically possible that the Congress could pass a law that we would view as unconstitutional. My response was -- is that obviously we would take that very, very seriously, look at that very carefully. But I suppose it is theoretically possible that that would happen. Let me just add one final point. We in the executive branch, of course, understand that there are limits upon presidential power; very, very mindful of Justice O'Connor's statement in the Hamdi decision that "a state of war is not a blank check for the president of the United States" with respect the rights of American citizens. I understand that, and I agree with that.
Unfucking believable. Of course, in the Hamdi case, Gonzales' team argued for a blank check. Unacceptable. If there was any doubt, there can be none now - the man is unacceptable. No Democrat with self respect should support the confirmation of Alberto Gonzales.