Transcript Excerpt
Senate Judiciary Committee Confirmation Hearing - Published: January 6, 2005
Read entire transcript | Features: January 7, 2005 || January 10, 2005

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SEN. KENNEDY: Thank you.

I wanted to talk in the time that's available about immigration issues and some civil rights issues and then quickly on the death penalty, what you're going to do. Those are the three areas I'd like to try and cover.

One is the -- which we talked about -- the state and local law enforcement of immigration laws. You're familiar with this. In 2002 the Department of Justice reversed long-standing policies -- supported the inherent authority of states to enforce federal immigration laws, and this -- that reversal was based on an Office of Legal Counsel opinion that's not been made public. And I've asked for a copy of the opinions; so have others of the Congress; interested parties have asked for it too. The refusal to -- it's been the subject of a lawsuit. The department's response failed to provide the opinion but simply offered its conclusion without any discussion.

I have difficulty finding a good reason why the department continues to keep the opinion and its legal analysis secret, especially since it reverses a long-standing policy that scores of police chiefs, police departments around the country, including many in your home state of Texas, have denounced the idea of involving state and local police in federal immigration enforcement. Last month the International Association of Chiefs of Police issued a report expressing concern. They and others believe it will destroy the remarkable progress they've made with community policing in which police have worked closely with the public, including immigrant communities, and developed productive bonds of trust -- concerns raised by law enforcement shared by many conservative and security experts. I can't believe I'm quoting Grover Norquist -- Bob Barr, the Heritage Foundation all say this could be an unmanageable burden on the law enforcement officials.

So could you tell us why -- quickly as you could -- the secrecy, and can you tell us whether you'd support them releasing the OLC opinion on the authority to --

MR. GONZALES: Senator, thank you for that question. You and I did talk about that in your office. This matter is in litigation, as you indicated; there is FOIA litigation about the release of the memo. The conclusions are known. It's the analysis, the deliberations that went into the opinion that I think the department is seeking to protect.

Let me just emphasize, though, or try to provide reassurance about this.

There is no requirement, of course, upon state and locals to enforce federal immigration laws. This is purely voluntary. In fact, of course, some states have prohibitions; they couldn't do it even if they wanted to. In some cases the department, as I understand it, has entered into with state or local departments, in terms of memorandums of understanding in order to enforce this. We're certainly -- I certainly am sensitive to the notion that some local law enforcement people don't want to exercise this authority. Well, we're not saying that they have to. But if they want to and they can assist in fighting the war on terror, that's what this opinion allows us to do.

Personally, I would worry about a policy that permits someone, a local law enforcement official, to use this authority somehow as a club to harass -- they might be undocumented aliens, but otherwise lawful citizens. That would be troubling. That would be troubling to the president who, as a governor of a -- former governor of a border state understands and appreciates the roles that immigrants and undocumented aliens play in our society.

But it is in litigation, and it would probably be better if I didn't speak more about that.

SEN. KENNEDY: All right. Well, I'm going to move on to some of these other areas, but we can come back.

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