New Haven Independent

Lieberman took the Senate floor on Feb. 3, 2005, to speak in favor of Gonzales’ nomination. Here’s what he said, according to the Congressional Record (151 Cong Rec S 923, Vol. 151, No. 10, EXECUTIVE SESSION):

“The two most significant points of contention are Judge Gonzales’s work as White House Counsel early in 2002, in the memo he wrote and the involvement he had in the policy with regard to the application of the Geneva Conventions; and, second, what relationship he had with the memo of Mr. Bybee, head of the Office of Legal Counsel at the Justice Department, with regard to the definition of torture under the Convention Against Torture.

“In both of these cases, it seems to me, as I listen to my colleagues who are opposed to the nomination, they take Judge Gonzales’s work in both of these areas to be indications of perhaps his lack of independence, lack of good judgment which they believe disqualifies him for this position. And some — I am trying to be fair here — raise questions about whether both of these memos, certainly the second one, the Bybee memo, in any way or in some way contributed to the horrific behavior we saw in the prison abuse scandals at Abu Ghraib. I want to briefly speak to both.

On Treating U.S. Detainees In Accordance with the Geneva Conventions:

“The first is the work that Judge Gonzales did early in 2002, within months after the attack against us of September 11 and the initiation of our own war against terrorism in Afghanistan. I know people have quoted from the memo he wrote with some derision. [*S953] I think you have to appreciate the context. As I look back post-September 11, it seems to me in Judge Gonzales’s memo and the memos submitted by the State Department, by the Defense Department and others, there is a very serious and classical American debate going on about how to handle al-Qaida and the Taliban, and prisoners taken from their membership, and what is the relevance of the Geneva Convention to those people. It is an argument by a nation that cares about the rule of law. You can agree with Judge Gonzales’s position in this matter or not. I happen to agree with the ultimate decision made. And the decision was, in my opinion, a reasonable one and ultimately a progressive one. The decision was that under the terms of the Geneva Conventions, al-Qaida simply is not a state party to a convention, it is a terrorist group, and as such its members were not entitled to prisoner-of-war status.

“There is a sentence in Judge Gonzales’s letter that was quoted with great derision, laughter, as if it were over the edge. ‘In my judgment, this new paradigm,’ which is the post-September 11 war on terrorism, renders quaint some of the provisions requiring that captured enemy’ — we are talking here about al-Qaida ‘be afforded such things as commissary privileges, scrip advances of monthly pay, athletic uniforms and scientific instruments.’

“I think, respectfully, Judge Gonzales was being restrained and diplomatic in using the word ‘quaint.’ To offer these benefits—access to a canteen to purchase food, soap and tobacco, a monthly advance of pay, and the ability to have and consult personal financial accounts, the ability to receive scientific equipment, musical instruments or sports outfits—to Khalid Shaikh Mohammed, who planned the attacks against us on September 11, would not be quaint, It would be offensive.

“It would be offensive. It would be ridiculous. It would be ultimately unjust.

“A different conclusion was reached about the Taliban. A summary of the opinion says, although we never recognized the Taliban as a legitimate Afghan government, Afghanistan is a party to the Geneva Conventions, and therefore the President has determined that the Taliban is covered by the conventions.

“But then they cite that under the terms of the conventions, Taliban detainees do not qualify for prisoner-of-war status.

“Then the progressive part of this opinion, coming out in February 2002, says that even though the detainees are not entitled to prisoner-of-war privileges, they will be provided many POW privileges as a matter of policy. All detainees in Guantanamo are being provided three meals a day that meet Muslim dietary laws, water, medical care, clothing and shoes, shelter, showers, soap and toilet articles, foam sleeping pads, blankets, towels, washcloths, the opportunity to worship, correspondence materials and a means to send mail, and the ability to receive packages of food and clothing subject to security screening. Detainees will not be subjected to physical or mental abuse or cruel treatment.

“That is the policy that Judge Gonzales helped them form. That is the policy that our Government issued. To me, it is a remarkably just policy.

“I see no basis in anything in the record of Judge Gonzales’s participation in this that would lead me to override presumption in his favor.

On the Bybee Torture Memo

“The Bybee memo — the memo from the Office of Legal Counsel in August of 2002 interpreting the Convention Against Torture and the American statute implementing the conventions — is a separate matter. It is very important to say that this memo was written by the independent Office of Legal Counsel at the Department of Justice with a proud record of independence of opinion.

“You may disagree with its conclusions. I disagree with a lot of its content and conclusions. But it is a lengthy, 50-plus pages, single-spaced document, quite scholarly, with over 25 footnotes, as I recall—and offered to Judge Gonzales in his role as Counsel to the President.

“I want to repeat again: This was not Judge Gonzales’s memo. It was the Office of Legal Counsel’s memo.

“It is not clear what Judge Gonzales did with this memo. He refused at his hearing before the Judiciary Committee to reveal exactly what he advised the President about the memo. That was frustrating to the committee members, and I understand that. But I must say as a former attorney general, as a lawyer, I respect the right of the Counsel to the President to keep private for reasons of precedent and executive privilege the private counsel he gives to the President of the United States.

“I repeat that there are parts of that Bybee memo which I find profoundly offensive. But it was not the Gonzales memo. On the record, we do not know what he advised the President as a result of it.

“In questions and answers before the committee, he said he agreed with the conclusion but not all of the analysis in it. It is hard to know what that means. What we do know is that in June of last year, presumably after the Abu Ghraib scandal broke, the Attorney General and White House Counsel were asked to reconsider and withdraw the opinion of August 2002, and reissued the opinion in December of 2004 with just about all of the objectionable matter — to me objectionable — being taken out of it and presumed objectionable to most others. So it is no longer a prevailing memo.

“Again, Judge Gonzales said repeatedly at the hearing he would not countenance torture — repeated what is the fact; that the administration made very clear, presumably with his counsel, that the rules of the Geneva Conventions applied to the Iraq war because Iraq was a duly formed government, a sovereign state, and a party to the Geneva Conventions.

“What happened at Abu Ghraib was embarrassing, was hurtful to our cause in the world, was offensive, and it is being dealt with within the military justice system as we have seen.

“Questions are raised about the connection, I suppose, between the Bybee memo and whatever involvement Judge Gonzales had entered in the events of Abu Ghraib. There is simply no evidence to make the connection, certainly between Judge Gonzales and what happened at Abu Ghraib in any of the independent reviews that have gone on, most particularly Mr. Schlesinger’s independent review which said there was no connection between so-called higher-ups and what happened at Abu Ghraib.

“In the end, I have to ask myself, because of a memo written by somebody else, Mr. Bybee at the Office of Legal Counsel, which has in it material that I find, as I said, profoundly offensive, that Judge Gonzales received and did something with, am I prepared to vote to deny him confirmation as Attorney General of the United States? To me personally that would be an unjust result. That is why I will vote to confirm.

“I understand the frustration of members of the Judiciary Committee about some of the answers—many of the answers that Judge Gonzales gave at the hearing. Some of them were evasive and some were legalistic. But that wouldn’t be, would it, the first time the committee had a witness before it that proceeded in that particular way, particularly one who has privileges that he occupies and lives under as Counsel to the President of the United States.

“That is why I am going to vote for Judge Gonzales—to confirm his nomination. Nothing that I see in the report rises to a level high enough to overcome the presumption in favor of him as a nominee of the President.”

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