SPECTER: Senator Biden?
BIDEN: Thank you, Mr. Chairman.
In 10 minutes -- the core questions I want to ask will probably occur in the second round, Judge.
Let me begin, though, by saying I congratulate and welcome the new chairman. I think that if anyone was made for this job, it's the senator from Pennsylvania, who I think is the finest constitutional lawyer in the country -- maybe not the country, but in the Senate. And I welcome his...
(LAUGHTER)
Seriously, I think it befits his background to chair this very difficult committee, and I wish him well, and he has my cooperation.
SPECTER: Thank you very much, Senator Biden. Thank you.
BIDEN: Judge, I think we got off on, sort of, an unusual footing here. And I think that our colleague in the committee, sort of, fired a gun that had not been shot yet. I don't know of anybody who's announced they're against your being the next attorney general. Even those who have doubts about you say you're going to be confirmed. And so this is not about the president and his judgment.
BIDEN: It is appropriate for us to understand the president is not a lawyer. He doesn't know from shinola about the treaty.
By the way, nor do previous presidents. Nor do previous presidents. That's why they have legal advisers. That's why they hire brilliant graduates from Harvard Law School and former judges to advise them.
I'm being deadly earnest here. It's not a joke.
So I don't judge the president on whether or not he supports or didn't support torture. He signed off on a memo that may, in fact, in the minds of many, in fact, constitute torture. And he says he doesn't. That's irrelevant here.
And, Judge, this is not about your intelligence. This hearing's not about your competence. It's not about your integrity. It's about your judgment, your candor. Because you're going to be making some very difficult decisions as attorney general, as every attorney general has, decisions on matters we can't even contemplate now.
When I got here in 1972, the idea that anybody would be making judgments about cloning was bizarre.
Within four years, you're going to make judgments on issues we haven't even contemplated.
So I want to know about your judgment. It's your judgment.
And we're going to -- you're going to be the A.G. You're not going to be legal counsel anymore. You are no longer the president's lawyer. You are the people's lawyer. Your oath is to the people of the United States.
I know you know that.
GONZALES: Yes, sir.
BIDEN: And therefore -- and this is not a Supreme Court hearing, although some suggest it foreshadows that.
As a Supreme Court nominee, you could sit there and say, "I don't want to comment on that law or interpret it because I may have to judge it."
As the attorney general, you're responsible to tell us now what your judgment is on what the law means. It is your obligation now for us to be able to assess your judgment -- your legal judgment.
You're in no way -- as you implied to two of the questioners, you're in now way jeopardizing a future case. That's malarkey, pure malarkey.
So we're looking for candor, old buddy. We're looking for you when we ask you a question to give us an answer, which you haven't done yet.
I love you, but you're not very candid so far.
(LAUGHTER)
And so please do not use the strawman, "Well, as the future attorney general, I may not be able to comment on what that law means." You are obliged to comment.
BIDEN: It's your job to make a judgment before a case is taken. That's your judgment we're looking at.
And so, it seems to me that -- and the other point I'd like to raise, because I'm only going to get to the questions in my second round really, is my good friend from Texas. He held up three reports who didn't say what they said he said. The three reports that he held up that I'm aware of, maybe four, saying -- asserting essentially that they confirmed the judgment that you made in your recommendations to the president of the United States of America relating to torture and other matters.
Now, the reason why it is appropriate to ask you about Abu Ghraib is not to go back and rehash Abu Ghraib, but it's relevant as to whether or not what occurred at Abu Ghraib came as a consequence of the judgments made and embraced by the president that were then essentially sent out to the field.
The Schlesinger report that was cited -- it finds, quote, "Lieutenant General Sanchez signed a memo authorizing a dozen interrogation techniques beyond standard Army practice, including five beyond those applied at Guantanamo. He did so," quote, "using reasoning from the president's memo of February 7th, 2002."
So I say to my friend from Texas, that's why this is relevant.
The very report cited say that -- and I won't go through them all -- the Red Cross report -- the Red Cross did not sign off and say what -- that, you know, the conduct or the recommendations or the memorandum were in fact appropriate.
And so I won't go through it all now, but I will, if we need to, in further questioning.
So, again, I want to, sort of, clarify here: This is about the judgment you have exercised and whether or not the next four years, the judgment you're going to give a president, which he understandably should rely upon.
BIDEN: This is not a man who has your legal credentials. That's why he has you, to make a recommendation to him.
And it's appropriate for him to accept that recommendation unless on its face an average citizen or an informed president who's not a lawyer would say, "No, that can't make any sense."
So that's why we're worried about this. That's what this is about.
And there is, sort of, a -- there is a split here in the Congress, there's a split in the country about what's appropriate in this time of dire concern about terror.
You know, there was that play we've all seen, "A Man for All Seasons," and there's an exchange in there where Sir Thomas More is engaging Roper, and Roper says -- a young man came to seek a job -- he said, "Arrest him. He means you harm." And More said, "He's broken no law." And Roper said, "But he means you harm."
And if my recollection is correct, you have Thomas More turning to Roper and saying, "This country is planted thick with laws, coast to coast. Man's law is not God's. And if you cut them down, Roper, as you would, what will you do when the devil turns 'round on you? Yes, I give the devil benefit of law for my own safety's sake."
That's the fundamental principle we debate among ourselves here, no matter how you cut it. And that's what the debate that took place on these torture memos between Taft and Yoo.
I have a copy of the report, the memo, sent by the secretary of state to you all on February 7th, which I'm not going to make public. But in that memo he takes significant issue with the recommendations coming out of your shop, and Mr. Yoo's, and he ends by saying, "Let's talk. We need to talk."
And he goes into great detail, as other reports do. Powell, contemporaneously on the 7th says, basically -- and I have the report right here -- says basically, "Look, you go forward with the line of reasoning you guys are using and you're going to put my former troops in jeopardy."
BIDEN: This is about the safety and security of American forces.
And he says in here what you're doing is putting that in jeopardy.
You have the former head of JAG, the top lawyer in the United States military saying, "Hey, man, this is way beyond the interrogation techniques you're signing off, way beyond what the military manual for guidance of how to deal with prisoners says."
And so the point I'm trying to make here -- and I will come back with questions. If I have any time -- well, I don't have any time -- is this is important stuff because there was a fundamental disagreement within the administration.
And based on the record, it seems to me, although it may not be totally -- it may not be dispositive -- your judgment was not as good as the judgment of the secretary of state. Your judgment was not as good or sound as the chief lawyer from the JAG. Your judgment was not as sound.
And the question I want to debate about is the judgment -- how did you arrive at this, different than the serious people like you, who thought what you were doing, recommending to the president in the various memos, was jeopardizing the security of American troops? And that's what I want to get back to.
But I want to explain to the public and anybody listening, this is not about your integrity. This is not a witch hunt. This is about your judgment. That's we're trying to do.
And so when I get to ask my questions, I hope you'll be candid about it.
Because -- not that it's relevant -- I like you. I like you. You're the real deal.
SPECTER: Senator Biden, your red light is on.
BIDEN: My red light is on.
(LAUGHTER)
Thank you.
SPECTER: Judge Gonzales, while Senator Biden is awaiting round two to formulate a question...
(LAUGHTER)
... I think you ought to be given an opportunity to respond to Senator Biden's observations and implicit, perhaps, two dozen questions.
So the floor is yours.
GONZALES: Senator Biden, I'm not -- when you're referring to the Powell memo, I'm not sure which memo you're referring to. And I presume you're referring...
BIDEN: Let me give you a copy of it.
Just for the record, Mr. Chairman, it's dated January 11th, 2002, to John Yoo from William Taft, legal adviser. And there is overwhelming evidence that you saw it, there was discussion about it. And that's what I'm referring to.
GONZALES: There was a great deal of debate within the administration -- as that memo partly reflects -- about what would be required and perhaps a policy judgment to be made by the president.
And the fact that there was disagreement about something so significant I think should not be surprising to anyone.
BIDEN: No, it's not.
GONZALES: Of course not.
And reasonable people can differ.
In the end, it is the Department of Justice who is charged by statute by the definitive legal advice on behalf of the executive branch to the president of the United States.
BIDEN: With due respect, that doesn't matter. I don't care about their judgment. I'm looking at yours.
GONZALES: Well, sir, of course I conveyed to the president my own views about what the law requires, often informed by what the Department of Justice says the law is, because, again, by statute you have conferred upon them that responsibility.
I can tell you that with respect to the decision the president ultimately made, everyone involved, including the secretary of state, including the chairman of the Joint Chiefs -- all the principals who had equities in the decision about the application of Geneva had an opportunity to present their views and their concerns directly to the president of the United States and he made a decision.
SPECTER: Thank you, Judge Gonzales.
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