U.S. Senate Judiciary Committee Hearing
Confirmation Hearings for Alberto Gonzales to be Attorney General
of the United States
January 6, 2005
(partial transcript)
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.
SPECTER: Thank you very much, Senator Feingold.
Watch my
questioning of then White House Counsel Alberto Gonzales during his
January 6, 2005 Confirmation Hearing to be Attorney General of the United
States
Read
my January 30, 2006 Letter to Attorney General Gonzales asking him about
his misleading testimony regarding warrantless surveillance.
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