[NV Greens] Fwd: [usgp-dx] Senator Robert C. Byrd on A. Gozales

[Paul Etxeberri]

>
>
>An excellent speech by Senator Robert Byrd. One only wishes there were
>more Senators and Congressmen who would speak out along these lines. The
>speech states that Bush has failed to meet his constitutional
>responsibility to take care that the laws are faithfully executed.
>Flowing from that is that he should be removed from office.
>Jimmy
>Senator Robert C. Byrd
>
>http://www.alternet.org/story/21170/
>
>3 February 2005
>
>Respecting the Spirit and Letter of the Law
>    By Senator Robert Byrd
>
>Sen. Byrd delivered the following remarks regarding the nomination of
>Alberto Gonzales to be the nation's next attorney general. During the
>speech, the senator expressed strong concerns about Mr. Gonzales' role in
>the prisoner abuse scandals that have arisen from cases in Iraq and
>Afghanistan and at Guantanamo Bay, and the use of torture as an approved
>American interrogation policy. Sen. Byrd also told his colleagues that
>the nominee, as the White House counsel, has been responsible for
>programs and policies that undermine the principles of the Constitution
>of the United States.
>
>Alberto Gonzales is counsel to the president of the United States. For
>the past four years, Alberto Gonzales has served as the chief legal
>advisor to President Bush, housed in the West Wing of the White House, a
>stone's throw from the Oval Office.
>
>The official biography of Alberto Gonzales on the White House web site
>states that, before he was commissioned to be White House counsel, Judge
>Gonzales was a justice on the Texas Supreme Court. Prior to that, he
>served as the 100th Secretary of the State of Texas, where one of his
>many duties was to act as a senior advisor to then-Gov. George W. Bush.
>Before that? He was general counsel to Gov. Bush for three years.
>
>So, for over a decade, Alberto Gonzales has been a close confidante and
>advisor to George W. Bush, and the president has confirmed his personal
>and professional ties to Judge Gonzales on many occasions. The president
>has described him as both a "dear friend" and as "the top legal official
>on the White House staff." When he nominated Alberto Gonzales to be the
>next attorney general of the United States, the president began by
>asserting, "This is the fifth time I have asked Judge Gonzales to serve
>his fellow citizens, and I am very grateful he keeps saying 'yes' ... as
>the top legal official on the White House staff, he has led a superb team
>of lawyers."
>
>In praising his nomination of Alberto Gonzales, the president
>specifically stressed the quintessential "leadership" role that Alberto
>Gonzales has held in providing the president with legal advice on the war
>on terror. The president stated specifically that it was his "sharp
>intellect and sound judgment" that "helped shape our policies in the war
>on terror." According to the president, Alberto Gonzales is one of his
>closest friends who, again in the words of the President, "always gives
>me his frank opinion."
>
>Imagine, then how perplexing and disheartening it has been to review the
>responses, or should I say, lack thereof, that were provided by Alberto
>Gonzales to Members of the Senate Judiciary Committee at his confirmation
>hearing on Jan. 6. It seemed as if, once seated before the committee,
>Judge Gonzales forgot that he had, in fact, been the president's top
>legal advisor for the past four years.
>
>It was a strangely detached Alberto Gonzales who appeared before the
>Senate Judiciary Committee. Suddenly, this close friend and advisor to
>the president simply could not recall forming opinions on any number of
>key legal and policy decisions made by the Bush White House over the past
>four years. And this seemed particularly true when it came to decisions
>which, in retrospect, now appear to have been wrong.
>
>When asked his specific recollection of weighty matters, Judge Gonzales
>could provide only vague recollections of what might have been discussed
>in meetings of monumental importance, even during a time of war. He could
>not remember what he advised in discussions interpreting the U.S. law
>against torture, or the power of the president to ignore laws passed by
>Congress - discussions which resulted in decisions that reversed over 200
>years of legal and constitutional precedents relied on by 42 prior
>presidents. That's pretty hard to believe.
>
>In fact, if one did not know the true relationship between the president
>and this nominee, or had never heard the president refer to the "frank"
>advice he has received from Judge Gonzales, one would think from reading
>his hearing transcript that Alberto Gonzales was not really the White
>House Counsel. Instead, one would think he is simply an old family friend
>who, yes, is happy to work near the seat of power, but makes no big
>decisions, has no legal opinions of his own, and certainly feels no
>responsibility to provide independent recommendations to the president.
>
>I find it hard to believe that the top legal advisor to the president
>cannot recall what he said or did with respect to so many of the enormous
>policy and legal decisions that have flowed from the White House since
>Sept. 11 in particular. It is especially difficult to comprehend this
>sudden memory lapse, when the consequences of these decisions have had,
>and will continue to have, profound effects on world events for decades
>to come.
>
>Judge Gonzales was asked whether he had chaired meetings in which he
>discussed with Justice Department attorneys such interrogation techniques
>as strapping detainees to boards and holding them under water as if to
>drown them. He testified that there were such meetings, and he did
>remember having had some "discussions" with Justice Department attorneys,
>but he cannot recall what he told them in those meetings. When Sen.
>Kennedy asked if he ever suggested to the Justice Department attorneys
>that they ought to "lean forward" to support more extreme uses of torture
>as reported by The Washington Post, he said, "I don't ever recall using
>the term." He stated that, while he might have attended such meetings, it
>was not his role but that of the Justice Department to determine which
>interrogation techniques were lawful. He said, "it was not my role to
>direct that we should use certain kinds of methods of receiving
>information from terrorists. That was a decision made by the operational
>agencies ... And we look to the Department of Justice to tell us what
>would, in fact, be within the law."
>
>He said he could not recall what he said when he discussed with Justice
>Department attorneys the contents of the now-infamous "torture" memo of
>Aug. 1, 2002, the one which independent investigative reports have found
>contributed to detainee abuses first in Guantanamo and Afghanistan and,
>later, Iraq.
>
>When asked whether he agreed with the now repudiated conclusions
>contained in that torture memo at the time of its creation on Aug. 1,
>2002, Alberto Gonzales stated: "There was discussion between the White
>House and the Department of Justice as well as other agencies about what
>does this statute mean ... 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."
>
>He added that, as counsel to the president, it was not his responsibility
>to approve opinions issued by the Department of Justice. He said, "I
>don't believe it is my responsibility, because it really would politicize
>the work of the career professionals at the Department of Justice."
>
>One must wonder what the job of White House counsel entails, if it does
>not involve giving the president the benefit of one's thinking on legal
>issues.
>
>Perhaps one reason Judge Gonzales says he does not remember what he said
>in those meetings is because, as soon as the torture memo was leaked to
>the press, he had to disavow it. Once it became clear that the White
>House believed - based on those meetings - that only the most egregious
>acts imaginable could be prohibited as torture, the memo received
>universal opprobrium. Thus, the administration had little choice but to
>repudiate it, and, in June 2004, Alberto Gonzales announced its
>withdrawal. He then directed the Justice Department to prepare new legal
>analysis on how to interpret prohibitions against torture under U.S. and
>international law.
>
>Strangely, however, that new analysis was not available to the public for
>six more months. Finally, on Dec. 30, just one week prior to the Gonzales
>nomination hearing, a memorandum containing the administration's most
>recent take on the subject was issued by the Justice Department.
>
>With the benefit of 20-20 hindsight and perhaps a keen desire to be
>confirmed as the next attorney general of the United States, Judge
>Gonzales told the committee on Jan. 6 that the analysis of the Aug. 1,
>2002, memo no longer represents the official position of the Executive
>Branch of the United States.
>
>If Judge Gonzales didn't see fit to question the Justice Department's
>official position on torture in 2002, what made the Administration change
>its mind in 2004? Was it a careful review of the legal issues? Or simply
>political back-peddling in light of the public knowledge of what its
>policies had brought about in Gitmo, Abu Ghraib, and elsewhere?
>
>I note in passing that the "torture" memo was written in 2002 by
>then-Assistant Attorney General Jay Bybee, who is now a federal judge on
>the Ninth Circuit Court of Appeals. God help the Ninth Circuit. I would
>like the record to reflect that 18 other Senators and I voted to reject
>the nomination of Jay Bybee to be a federal judge, a decision I, for one,
>do not regret.
>
>The Bybee memo drew universal condemnation and scorn for at least two of
>the legal opinions that were included in its text. First, it described
>torture as being prohibited under U.S. law in only very circumscribed
>circumstances. It defined torture so narrowly that horrific harm could be
>inflicted against another human being in the course of an interrogation
>overseas and not be prohibited. According to the memo, unless such acts
>resulted in organ failure, the impairment of a bodily function, or death,
>they could be considered legal. In fact, the first page of the memorandum
>states, "We conclude that the statute [against torture], taken as a
>whole, makes plain that it prohibits only extreme acts ... This confirms
>our view that the criminal statute penalizes only the most egregious
>conduct."
>
>The second but equally shocking and erroneous legal conclusion reached in
>the so-called "torture" memorandum states, "We find that in the
>circumstances of the current war against al Qaeda and its allies,
>prosecution under Section 2340A [- the relevant provision of U.S. law
>prohibiting torture -] may be barred because enforcement of the statute
>would represent an unconstitutional infringement of the president's
>authority to conduct war" as the commander in chief. This means the White
>House believed that a president can simply "override" the U.S. law
>prohibiting torture, just because he disagrees with it. He can ignore the
>law by proclaiming, in his own mind, that the law is unconstitutional.
>Not because a court of the United States has found the law to be
>unconstitutional, but because a war-time president decides he simply does
>not want to be bound by it.
>
>What an astounding assertion! Think of it! A president placing himself
>above the law, in effect, crowning himself King.
>
>This outrageously broad interpretation of executive authority is so
>antithetical to the carefully calibrated system of checks and balances
>conceived by the founding fathers, it seems inconceivable that it could
>be seriously contemplated by any so-called legal expert, much less
>attorneys of the U.S. Justice Department or the White House counsel.
>
>Has this White House no appreciation for the struggle that this nation
>endured upon its creation? Can it really believe that a president can
>circumvent the will of the people and their legislature by adopting and
>disseminating a legal interpretation that would, in the end, protect from
>prosecution those who commit torture in violation of U.S. law?
>
>Alexander Hamilton in Federalist No. 69 described in detail exactly how
>the American system can and must be distinguished from the British
>monarchy. He wrote: "There is no comparison between the intended power of
>the President and the actual power of the British sovereign. The one can
>perform alone, what the other can only do with the concurrence of a
>branch of the Legislature."
>
>No one man, no president, not his White House counsel, nor all of the
>attorneys in the Office of the Legal Counsel in the Justice Department
>can, on their own, act in contravention of a law passed by Congress.
>
>No president can nullify or countermand a U.S. law to shield from
>prosecution those who would commit, or attempt to commit, torture. But
>that was the result sought by the White House.
>
>When asked by Sen. Durbin if he still believes that the president has the
>authority as commander in chief to ignore a law passed by Congress - to
>decide on his own whether it is unconstitutional or to simply refuse to
>comply with it - Judge Gonzales stated that yes, he believes it is
>theoretically possible for the Congress to pass a law that would be
>viewed as unconstitutional by a president, and, therefore be ignored.
>
>And even though the torture memo was replaced by a new memorandum on Dec.
>30, the replacement memorandum does not reject the earlier document's
>shockingly overly expansive interpretation of the president's commander
>in chief power. Instead, the new memo states that, because that portion
>of the discussion in the earlier memo was "unnecessary," it has been
>"eliminated" from the new analysis.
>
>Particularly disturbing is the fact that, although the new analysis
>repudiates the earlier memo's conclusion that all but extreme acts of
>torture are permissible, Judge Gonzales could not tell us whether this
>repudiation of prior policy has been communicated to those who are today
>doing the interrogating.
>
>This is important because there is language contained in the
>now-repudiated torture memo that was relied on in Guantanamo and parts of
>which were included word-for-word in the military's "Working Group Report
>on Detainee Interrogations in the Global War on Terrorism." This report,
>dated April 2003, has never been repudiated or amended, and may be relied
>upon by some interrogators in the field.
>
>When asked whether those who are charged with conducting interrogations
>have been apprised of the administration's repudiation of sections of the
>Bybee memo and the administration's attendant change in policy, Judge
>Gonzales did not know the answer.
>
>Judge Gonzales continues to deny responsibility for many of the policies
>and legal decisions made by this administration. But the Fay and
>Schlesinger reports corroborate the fact that policy memos on torture,
>ghost detainees and the Geneva Conventions, which Judge Gonzales either
>wrote, requested, authorized, endorsed, or implemented, appear to have
>contributed to detainee abuses in Afghanistan, Guantanamo Bay, and Iraq,
>including those that occurred at Abu Ghraib.
>
>The International Committee of the Red Cross has told us that abuse of
>Iraqi detainees has been widespread; not simply the wrongdoing of a few,
>as the White House first told us. And the abuse occurred not only at Abu
>Ghraib. Last week, the Los Angeles Times reported that documents released
>last Monday by the Pentagon disclosed that prisoners had lodged dozens of
>abuse complaints against U.S. and Iraqi personnel who guarded detainees
>at another location - a little-known palace in Baghdad that was converted
>into a prison. The documents suggest, for the first time, that numerous
>detainees were also abused at one of Saddam Hussein's former villas in
>eastern Baghdad. The article noted that, while previous cases of abuse of
>Iraqi prisoners had focused mainly on Abu Ghraib, allegations of abuse at
>this new location included that guards had sodomized a disabled man and
>killed his brother, then "tossed" his dying body into a cell, on top of
>his sister.
>
>Judge Gonzales admits that he was physically present at discussions
>regarding whether acts of this nature constitute torture, but don't
>expect him to take responsibility for them.
>
>Don't hold me accountable, he says. It wasn't I. And he doesn't just
>point fingers at the Justice Department. He spreads the blame around.
>While he admitted he'd made some mistakes, he attempted to further
>deflect responsibility for his actions by saying the "operational
>agencies" also had responsibility to make decisions on interrogation
>techniques - not him.
>
>Here is exactly what he said:
>
>
>
>I have a recollection that we had some discussions in my office, but let
>me be
>very clear with the Committee. It is not my job to decide which types of
>methods of obtaining information from terrorists would be the most
>effective.
>That job responsibility falls to folks within the agencies. It is also
>not my job to
>make the ultimate decision about whether or not those methods would, in
>fact,
>meet the requirements of the anti-torture statute. That would be the job
>for the Department of Justice ... I viewed it as their responsibility to
>make a decision as
>to whether or not a procedure or method would, in fact, be lawful.
>
>
>
>One wishes that Judge Gonzales could have told us what his job was,
>rather than telling us only what it was not! Talk about passing the buck!
>
>Well, at the end of the day, one can only wonder then, what legal advice,
>if any, he actually gave the president. Does Judge Gonzales have an
>opinion on the question of what constitutes torture? Does the president?
>Does he or does the president have an opinion on the related question of
>whether it is legal to "relocate" detainees to "facilitate"
>interrogations? Do they believe it is morally or constitutionally right?
>Do we know?
>
>According to Art. II, Sec. 3 of the United States Constitution, as head
>of the executive branch, the president has a legal duty to take care that
>the laws be faithfully executed. The Constitution does not say that the
>president "should" or "may" undertake that responsibility: it clearly
>states that the president "shall take Care that the Laws be faithfully
>executed." He is duty-bound to undertake that responsibility under the
>Constitution of the United States. And the president and his counsel must
>be held accountable for not only failing to faithfully execute our laws,
>but for trying to undermine, contravene, and gut them.
>
>With such a track record, how can we possibly trust this man to be the
>attorney general of the United States? What sort of judgment has he
>exhibited?
>
>As I stated with respect to Dr. Rice, there needs to be accountability in
>our government. There needs to be accountability for the innumerable
>blunders, bad decisions, and warped policies that have led the United
>States to the position in which we now find ourselves: trapped in Iraq
>amid increased violence; disgraced by detainee abuses first in
>Guantanamo, then in Afghanistan, Iraq, and probably in locations we have
>yet to discover; shunned by our allies; and perceived by the world
>community, rightly, as careening down the wrong path.
>
>I do not believe our nation can rely on the judgment of a public official
>with so little respect for the rule of law. We cannot rely on the
>judgment of someone with so little regard for our constitutional system
>of government. I simply cannot support the nomination of someone who,
>despite his assertions to the contrary, obviously contributed in large
>measure to the atrocious policy failures and the contrived and abominable
>legal decisions that have flowed from this White House over the past four
>years. For all of these reasons, I have no choice but to vote against the
>nomination of Alberto Gonzales to be the next attorney general of the
>United States.
>------------------------------
>
>
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-- 
Paul Etxeberri

"Forests precede civilizations and deserts follow"   ---Chateaubriand