SEN. LEAHY: I just want to know: Did you agree — I mean, we could spend an hour with that answer, but I'm trying to keep it very simple. Did you agree with that interpretation of the torture statute back in August 2002?
MR. GONZALES: If I may, sir, let me try to — I will try to — I'm going to give you a very quick answer, but I'd like to put a little bit of context. There obviously — we were interpreting a statute that had never been reviewed in the courts, a statute drafted by Congress. We were trying to — interpretation of a standard by Congress. There was discussion between the White House and the Department of Justice as well as other agencies about what does this statute mean. It was a very, very difficult — 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. Ultimately it is the responsibility of the department to tell us what the law means, Senator.
SEN. LEAHY: Then do you agree today that for an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death?
MR. GONZALES: I do not, sir. That does not represent the position of the executive branch. As you know —
SEN. LEAHY: But —
SEN. SPECTER: Well, let him finish his answer.
SEN. LEAHY: But it was the position in 2002.
SEN. SPECTER: Wait a minute, Senator Leahy. Let him finish his answer.
MR. GONZALES: Senator, what you're asking the counsel to do is to interject himself and direct the Department of Justice, who is supposed to be free of any kind of political influence, in reaching a legal interpretation of a law passed by Congress. I certainly give my views. There was, of course, conversation and a give-and-take discussion about what does the law mean. But ultimately — ultimately by statute the Department of Justice is charged by Congress to provide legal advice on behalf of the president. We asked the question. That memo represented the position of the executive branch at the time it was issued.
SEN. LEAHY: Well, let me then ask you: If you're going to be attorney general, and I'll accept what you said, then let's put on the hat, if you're going to be confirmed as attorney general. The Bybee memo concludes that a president has authority as commander in chief to override domestic and international law as prohibiting torture and can immunize from prosecution anyone — anyone — who commits torture under his act; whether legal or not, he can immunize them.
Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief override and immunize acts of torture?
MR. GONZALES: First of all, sir, the president has said we're not going to engage in torture under any circumstances. And so you're asking me to answer a hypothetical that is never going to occur. This president has said we're not going to engage in torture under any circumstances, and therefore, that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn.
SEN. LEAHY: But I'm trying to think what type of opinions you might give as attorney general. Do you agree with that conclusion?
MR. GONZALES: Sir, again —
SEN. LEAHY: You're a lawyer, and you've held a position as a justice of the Texas Supreme Court, you've been the president's counsel, you've studied this issue deeply. Do you agree with that conclusion?
MR. GONZALES: Senator, I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional. And that is a position and a view not just of this president, but many, many presidents from both sides of the aisle.
Obviously, a decision as to whether or not to ignore a statute passed by Congress is a very, very serious one, and it would be one that I would spend a great deal of time and attention before arriving at a conclusion that in fact a president had the authority under the Constitution to —
SEN. LEAHY: Mr. Gonzales, I'd almost think that you'd served in the Senate, you've learned how to filibuster so well, because I asked a specific question: Does the president have the authority, in your judgment, to exercise a commander-in-chief override and immunize acts of torture?
MR. GONZALES: With all due respect, Senator, the president has said we're not going to engage in torture. That is a hypothetical question that would involve an analysis of a great number of factors.
And he wants to be Attorney General of the United States.