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  2005-02-03 U.S. Senate—Gonzales confirmation
Harrison Weblog

2005 blog


Keeping up with Jewish officeholders
Gonzales wins Senate confirmation
 as attorney general while losing 
among Jewish senators 3-8
,  Feb. 3, 2005

The 11 Jewish senators split 3-8 for confirming Alberto Gonzales as U.S. Attorney General, but the overall Senate voted 60-36 in favor of his nomination. There were four abstentions.

With the exception of Sen. Joseph Lieberman (D-Conn) who voted with Republicans Norm Coleman of Minnesota and Arlen Specter of Pennsylvania in favor of confirming Gonzales, among the Jewish senators it was nearly a party-line vote. 

Casting "nays" on Gonzales' nomination were Senators Barbara Boxer and Dianne Feinstein of California, Russ Feingold and Herb Kohl of Wisconsin, Frank Lautenberg of New Jersey, Carl Levin of Michigan, Charles Schumer of New York, and Ron Wyden of Oregon.

Explaining his vote, Lieberman said he believed a "President is entitled to the benefit of a doubt in his appointments to his cabinet." He said before deciding, he met with Gonzales and reviewed his record. Noting the concern many of his fellow Democrats expressed about Gonzales' position on the treatment of prisoners (see previous story), Lieberman said he agreed with Gonzales that "under the terms of the Geneva Convention, al Qaeda simply is not a state party to the Convention, is a terrorist group and as such its members were not entitled to prisoner of war status." 

Lieberman took note that "there's a sentence in Judge Gonzales’s opinion that has been quoted with great derision, laughter, as if it was over the edge. He wrote, 'The new paradigm war on terrorism renders "quaint" some of the provisions requiring that a captured enemy be afforded such things as commissary privileges, script advances of monthly pay, athletic uniforms and scientific instruments.' I think 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 patience, the ability to have and consult personal financial accounts, the ability to receive scientific equipment, musical instruments or sports outfits. Giving these benefits to Khalid Sheikh Mohammed, who planned the attacks against us on September 11, wouldn't be quaint. It would be offensive. It would be ridiculous. It would be ultimately unjust." 

Lieberman went on to say: 

A conclusion -- a different, interesting kind of conclusion was reached about the Taliban, which is, as the summary of the opinion says, 'Although we never recognized the Taliban as a legitimate Afghan government, Afghanistan is a party to the Geneva Convention and, therefore, the President has determined that the Taliban are covered by that Convention.' But then they decided under the terms of the convention, Taliban detainees do not qualify for prisoner of war status. 

Then, in the progressive part of this opinion, coming out in February of 2002, 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 at Guantanamo are being provided three meals a day that meet Muslim diet terry laws, water, medical care, clothing and shoes, shelter, showers, soap and toy let articles, foam sleeping pads and blankets, towels and wash cloths, the opportunity to worship, correspondence materials and a means to send mail, the ability to receive packages of food and clothing subject to security screening. The 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, and I see no basis in anything in the record of Judge Gonzales’s participation in this that would lead me to override the presumption in his favor. 

The Bybee memorandum from August of 2002 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 -- with a lot of its content and conclusions. But it is a lengthy, 50-plus, single-spaced document, 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 memo. It is not clear what Judge Gonzales had to do 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, 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. 

So I repeat again, there are parts of that Bybee memo that I find profoundly offensive, but it was not the Gonzales memo, and on the record, we do not know what he advised the President as a result of it. In questions and answer before the committee he said he agreed with the conclusion but not all the analysis in it. 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. They issued the opinion in December of 2004 with just about all of the objectionable material taken out of it – the material that was objectionable to me and I presume to most others. So it is no longer a prevailing memo. 

Again, Justice Gonzales said repeatedly at the hearing that 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 Convention applied to the Iraq war because Iraq was a duly formed government, a sovereign state, and a party to the Geneva Convention. And what happened at Abu Ghraib was embarrassing, was hurtful to our cause in the world, and was offensive. 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, whatever involvement Judge Gonzales had in it, and the events at Abu Ghraib. There is simply no evidence to make a connection certainly between Judge Gonzales and what happened at Abu Ghraib. And any of the independent reviews that have gone on, most particularly Mr. Schlesinger's independent review, said that there was no connection between so-called higher-ups and what happened at Abu Ghraib. 

So, 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’ve 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? And to me, personally, that would be an unjust result. And 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, some were legalistic, but that wouldn't be the first time that a witness before a committee had 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’m going to vote for Judge Gonzales and confirm his nomination, because nothing that I see in the record rises to a level high enough to overcome the presumption in favor of him as a nominee of the President..
  —Donald H. Harrison