SEN. 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 interest 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 of it, but as I understand your answer 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. 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 actions.
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 has 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?
MR. 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 you really are -- what we’re really discussing is a hypothetical situation that --
SEN. FEINGOLD: I -- Judge Gonzales, let me ask a broader question. I’m asking you whether in general the president has the constitutional authority, does he at least in theory have the authority to authorize violations of the criminal law under duly enacted statutes simply because he’s commander in chief? Does he -- does he have that power?
MR. GONZALES: Senator, I -- you -- in my judgment, you phrase it sort of a hypothetical situation. I would have to know what -- what is the -- 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 will take with a great deal of care and seriousness.
SEN. FEINGOLD: Well, that sounds to me like the president still remains above the law.
MR. GONZALES: No, sir.
SEN. FEINGOLD: Again, you know, if this is something where -- where it -- you take a good look at it, you give a presumption that the president ought to follow the law, that -- you know, that’s -- to me, that’s not good enough under our system of government.
MR. GONZALES: Senator, if I might respond to that, the president is not above the law. Of course he’s 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 --
SEN. FEINGOLD: I recognize that, 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.
MR. GONZALES: Senator, this president is not -- I -- it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.
SEN. 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?
MR. GONZALES: I
will to advise the Congress as soon as I reasonably can, yes, sir.
SEN. FEINGOLD: Well, I hope that would be a very brief period of time. And I thank you, again, Judge Gonzales.
http://www.nytimes.com/2005/01/06/p...tml?ex=1138856400&en=ed446549b9fb9784&ei=5070
