[Congressional Record Volume 153, Number 167 (Wednesday, October 31, 2007)]
[Senate]
[Pages S13592-S13595]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF JUDGE MICHAEL MUKASEY
Mr. KYL. Mr. President, I wish to urge the swift confirmation of
Judge Michael Mukasey as Attorney General. It has been 6 weeks now, and
the Senate Judiciary Committee has not even taken up the nomination. It
is past time to fill this vacancy.
There is no question this nominee is qualified to serve. I don't need
to recite his qualifications. They were mentioned by many Members at
Judge Mukasey's nomination hearing.
The distinguished majority leader said:
Judge Mukasey has strong professional credentials and a
reputation for independence. A man who spent 18 years on the
Federal bench surely understands the importance of checks and
balances and knows how to say no to the President when he
oversteps the Constitution.
There is no question, the Nation would be well served by Judge
Mukasey's confirmation. Indeed, in recommending Judge Mukasey to serve
on the Supreme Court, Senator Schumer noted that Judge Mukasey, and the
others he recommended:
. . . were legally excellent, ideologically moderate,
within the mainstream, and have demonstrated a commitment to
the rule of law.
Surely, if a man is qualified and independent enough to be on the
Supreme Court, we should have far fewer concerns when nominating him to
serve the remaining time of about 1 year as Attorney General.
It seems to me that what this debate boils down to is politics. Some
Members want more information about his views. I would note that he
testified for 2 full days and has answered nearly 500 written
questions. The initial reaction from many of my Democratic colleagues
was that he was extremely forthcoming and they were pleased with his
candidness. But for some Senators, apparently this is not enough. It
almost seems to me as if some of my colleagues are willing to hold this
nomination hostage until he gives them exactly the answers they want,
even when he is unable as a legal matter to do that.
Let me explain why. Judge Mukasey has not been briefed on classified
programs, and he will not be briefed on classified programs until he
becomes the Attorney General, but some of my colleagues now seem to be
saying he should have to make pronouncements about the legalities of
those programs even when he doesn't know their details--can't know
their details. How is this independent?
I would suggest this: My colleagues don't want an Attorney General
who is independent; they want an Attorney General who will kowtow to
their views and make pronouncements over
[[Page S13593]]
issues on which he is not legally allowed to opine. That is, of course,
the opposite of independence.
Since the beginning of this Congress, Democratic Senators have
repeatedly called for new leadership at the Department of Justice. They
have said the work of the Department is too important to delay
confirmation of a new Attorney General. Well, now is the time for them
to act.
Before the nomination, Senator Schumer said:
Let me say, if the President were to nominate somebody,
albeit a conservative, but somebody who put the rule of law
first, someone like a Mike Mukasey, my guess is that they
would get through the Senate very, very quickly.
Well, my colleague would have guessed wrong. It hasn't been quick.
The Senate Judiciary Committee has not moved quickly, and this is all
the worse because the average amount of time between nomination and
confirmation of the last nine Attorneys General has been 21 days.
Already Judge Mukasey has been pending for about twice that period of
time--6 weeks--longer than any Attorney General nominee in 20 years. If
these delays continue, obviously new records are sure to be broken.
The bottom line here is that President Bush has nominated a
distinguished and nonpolitical candidate to be the next Attorney
General. The Senate should reciprocate by using the confirmation
process not to settle old scores or to politicize the nomination.
Independence has to mean something. We do not want an Attorney General
who refuses to give his honest legal opinions to the President, and we
don't want one who is forced to make commitments to the Senate that are
not grounded in facts or law.
The Department of Justice needs an Attorney General with the
foresight and experience to resolve the issues the Nation's top law
enforcement agency faces and to tackle the difficult challenges
especially presented in a post-
9/11 world. The qualities and background of Judge Michael Mukasey,
combined with his extensive experience in national security and
terrorism cases, commend him to serve as Attorney General in these
challenging times. It is important for the Senate to move on with this
important business of the Nation so that Judge Mukasey can be voted on
by the Senate.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I wish to be associated with the remarks of
the distinguished Senator from Arizona. I think he summed it up pretty
well, but let me just make some comments myself about the Mukasey
nomination.
Just when you thought it might be safe to venture back into the
confirmation water, the partisan sharks rush in and push you right back
onto the beach. Today is 40 days--40 days--since the Senate received
the nomination of Judge Michael Mukasey to be Attorney General of the
United States, 40 days in the partisan wilderness for a man who is
superbly qualified and widely respected and whose service is
desperately needed.
Before addressing what is being done to Judge Mukasey, let me remind
my colleagues who he is. Michael Mukasey has spent four decades serving
the law and the country. He spent 16 years in private legal practice, 4
years as a Federal prosecutor, and 19 years as a Federal district court
judge. He was head of the Official Corruption Unit during his service
as assistant U.S. attorney and chief judge during his last 6 years as a
U.S. district judge, both in the Southern District of New York.
Judge Mukasey's service in that particular jurisdiction gave him the
expertise in national security issues that makes him especially
qualified to lead a Justice Department that is being retooled for the
war on terrorism and especially since the war on terrorism continues as
we stand here on the floor. He presided over the 9-month trial of Omar
Abdel Rahman and sentenced him to life in prison for the 1993 plot to
blow up the World Trade Center.
When the U.S. Court of Appeals for the Second Circuit affirmed Judge
Mukasey's decision, it took the unusual step of commenting on how he
handled the trial. These are the appeals court's words. Judge Mukasey:
. . . presided with extraordinary skill and patience,
assuring fairness to the prosecution and to each defendant
and helpfulness to the jury. His was an outstanding
achievement in the face of challenges far beyond those
normally endured by a trial judge.
That was the U.S. Court of Appeals for the Second Circuit on August
16, 1999.
That is a remarkable statement. Appeals courts review district court
decisions, but rarely do they comment in this manner on district court
judges.
Both generally and specifically, by any reasonable or objective
standard, Judge Mukasey is eminently qualified to be our next Attorney
General. By the standards set by my Democratic colleagues themselves,
Judge Mukasey should by now have become Attorney General Mukasey. My
Democratic colleagues have repeatedly said that the Justice Department
needs new leadership and needs it now. The Senator from New York, Mr.
Schumer, whom my colleague from Arizona quoted, is a Judiciary
Committee member and a serious one. He has said:
We can't afford to wait because justice is too important.
He is not alone in making that statement among the Democrats. The
Democratic mantra is, justice is too important to wait; we need a new
Attorney General now. My Democratic colleagues also offered criteria,
offered a description of the kind of Attorney General we need right
away. The chairman of the Judiciary Committee, Senator Leahy, said:
We want the best man or woman who can run the place,
restore the sense of commitment and restore the sense of
integrity to the Department of Justice.
The Senator from New York, Mr. Schumer, who knows him well, said the
nominee would have to be someone of unimpeachable integrity,
experience, and someone who could hit the ground running.
I respectfully say to my Democratic colleagues that Judge Mukasey
fits your bill. He can run the place. He is a man of integrity and
experience. He certainly can hit the ground running.
It appeared for a short, brief time that my Democratic colleagues
thought so too. After a full day of testimony, Chairman Leahy told
Judge Mukasey that his answers showed his independence and his
agreement that political influence has no place in law enforcement.
Mr. Schumer, the distinguished Senator from New York, said:
The most important qualities we need in an Attorney General
right now are independence and integrity, and looking at
Judge Mukasey's career and his interviews that we have all
had with him, it seems clear that Judge Mukasey possesses
these vital attributes.
I ask unanimous consent that these and some other quotes be printed
in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. HATCH. We need a new Attorney General now. In fact, we needed him
40 days ago. Justice is too important to wait. Judge Mukasey meets the
criteria. He is qualified. He is ready to lead. Then why is Judge
Mukasey not already on the job leading the Justice Department to where
Americans think it needs to be? Why is his nomination stalled, 40 days
into the confirmation process, without even a committee vote?
It is certainly not because this is the way Attorney General nominees
have been treated in the past. In my 31 years in this body, we have
taken an average of 3 weeks to move an Attorney General nominee from
nomination to confirmation. It has already been twice that long--40
days and counting--for Judge Mukasey, and he was only today put on the
Judiciary Committee agenda for next week.
Let me rewind the confirmation clock to 1993, the last time a
Democratic Senate evaluated a nominee for Attorney General. Janet Reno,
the Democratic nominee, received very different treatment than this
Republican nominee is receiving today. Miss Reno's nomination went
through the entire confirmation process from initial receipt to final
confirmation in less time than Judge Mukasey's nomination has been
sitting in the Judiciary Committee since this hearing.
While the Judiciary Committee will not vote on Mukasey's nomination
until at least next week, the committee did not even wait for a markup
to approve the Reno nomination.
I was the ranking member on the Judiciary Committee, and I supported
[[Page S13594]]
then-Chairman Biden's request to vote on Miss Reno's nomination at the
end of the hearing. I knew Janet Reno was very liberal. I knew she
didn't agree with most Republican Senators. But she was qualified. She
was a decent person. To be honest with you, the Senate unanimously
confirmed her the very next day after the hearing, without even a
markup.
While Senators gave Judge Mukasey nearly 500 written questions, after
2 days of oral testimony--500 written questions, the answers to which
he already has provided, I might add--no Senators gave even a single
question to Miss Reno.
What happened? Why such radically different treatment when a
Democratic nominee for Attorney General comes up? It is simply because
a Republican rather than a Democrat is in the White House and because
we have a different approach toward matters.
Most of us believe when a President is elected, that President, he or
she, should have the right to the nominees they put up, as long as they
are competent and decent.
The need for new Justice Department leadership remains. Judge
Mukasey's obvious qualifications are the same. What happened that his
nomination is now being obstructed, slowed down, and delayed? The
latest excuse is that Judge Mukasey will not state on the fly a legal
conclusion for a Justice Department he has not yet led about whether
the coercive interrogation technique known as waterboarding constitutes
torture. He will not come to legal conclusions before he can apply
appropriate legal standards to appropriate facts. I think that is a
mark in his favor. He should be praised, not criticized, for taking
this approach.
Rather than focusing on his refusal to answer a question that he
should not answer, I want to remind my colleagues what Judge Mukasey
has said on this subject. Everyone appeared pleasantly surprised when
Judge Mukasey denounced torture during his hearing. He went so far as
to explain how torture violates not only statutes or treaties but the
United States Constitution itself.
Judge Mukasey said if waterboarding properly can be labeled torture,
then it too is unconstitutional. In a letter dated yesterday, Judge
Mukasey said he considers techniques such as waterboarding personally
repugnant. But personal conclusions are not the same as legal
conclusions. So Judge Mukasey outlined in detail the kind of analysis
he would follow to decide whether such interrogation techniques
constitute torture prohibited by the Constitution, or cruel, inhuman,
or degrading treatment prohibited by statute and the Geneva
Conventions.
I ask unanimous consent that his letter be printed in the Record
following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 2.)
Mr. HATCH. Judge Mukasey wrote:
Legal questions must be answered based solely on the actual
facts, circumstances and legal standards presented.
How can he possibly be criticized for making legal judgments by
applying legal standards to appropriate facts? What kind of crazy,
topsy-turvy confirmation process is this? My Democratic colleagues
demanded over and over that, if confirmed, Judge Mukasey must exercise
his own independent judgment and that he must answer legal questions on
his own; that he must not base advice on political pressure. But now
they criticize him for doing precisely what they told him to do.
Democrats now criticize Judge Mukasey for saying he will exercise his
own independent judgment and answer legal questions on his own, without
basing his advice on political pressure. My Democratic colleagues
cannot insist that Judge Mukasey be independent toward a Republican
President but compliant toward a Democratic Senate. They cannot declare
that the Constitution is not whatever President Bush says it is, but
demand Judge Mukasey's agreement that the Constitution is whatever
Senate Democrats say it is.
We should stop playing partisan political games with this nomination.
The Justice Department is too important for this type of stuff. Judge
Mukasey is eminently qualified to provide the leadership the Department
needs now. His insistence that independent legal judgment rather than
emotion or partisan pressure will guide him only enhances his fitness
for taking the helm at the Justice Department.
Forty days into the partisan wilderness is more than enough. We
should confirm Judge Michael Mukasey without further delay.
I yield the floor.
Exhibit 1
democrats say the justice department needs new leadership now
Senator Chuck Schumer (D-NY): May 24, 2007: ``This nation
needs a new Attorney General, and it can't afford to wait.'';
August 27, 2007: ``the Justice Department . . . desperately
needs new leadership.''
Senator Sheldon Whitehouse (D-RI): June 11, 2007: ``the
U.S. Department of Justice is a precious institution in our
democracy . . . and we need to take some action.''
Democrats Praise Judge Mukasey
Senator Chuck Schumer (D-NY): May 22, 2007: ``If the
president were to nominate somebody . . . like a . . . Mike
Mukasey, my guess is they would get through the Senate very,
very quickly.''; October 17, 2007: ``The most important
qualities we need in an Attorney General right now are
independence and integrity. And looking at Judge Mukasey's
career and his interviews that we have all had with him, it
seems clear that Judge Mukasey possesses these vital
attributes.''; October 18, 2007: ``He could get a unanimous
vote out of this committee. . . . It's not a done deal yet.
But he could.''
Senator Pat Leahy (D-VT): October 16, 2007: ``I would
expect him to be confirmed.''; October 17, 2007: ``I
appreciate [not only] the succinctness of your answers but
the clarity of them.''
Senator Ben Cardin (D-MD): October 17, 2007: ``I've been
very impressed by the direct answers that you've given to
very important questions.''
Exhibit 2
michael b. mukasey
Hon. Patrick J. Leahy, Hon. Joseph R. Biden, Jr., Hon. Dianne
Feinstein, Hon. Charles E. Schumer, Hon. Benjamin L.
Cardin, Hon. Edward M. Kennedy, Hon. Herb Kohl, Hon.
Russell D. Feingold, Hon. Richard J. Durbin, Hon. Sheldon
Whitehouse,
Dear Chairman Leahy, Senators Kennedy, Biden, Kohl,
Feinstein, Feingold, Schumer, Durbin, Cardin and Whitehouse:
Thank you for your letter of October 23, 2007. I well
understand the concerns of the Senators who signed this
letter that this Country remain true to its ideals, and that
includes how we treat even the most brutal terrorists in U.S.
custody. I understand also the importance of the U.S.
remaining a nation of laws and setting a high standard of
respect for human rights. Indeed, I said at the hearing that
torture violates the law and the Constitution, and the
President may not authorize it as he is no less bound by
constitutional restrictions than any other government
official.
I was asked at the hearing and in your letter questions
about the hypothetical use of certain coercive interrogation
techniques. As described in your letter, these techniques
seem over the line or, on a personal basis, repugnant to me,
and would probably seem the same to many Americans. But
hypotheticals are different from real life, and in any legal
opinion the actual facts and circumstances are critical. As a
judge, I tried to be objective in my decision-making and to
put aside even strongly held personal beliefs when assessing
a legal question because legal questions must be answered
based solely on the actual facts, circumstances, and legal
standards presented. A legal opinion based on hypothetical
facts and circumstances may be of some limited academic
appeal but has scant practical effect or value.
I have said repeatedly, and reiterate here, that no one,
including a President, is above the law, and that I would
leave office sooner than participate in a violation of law.
If confirmed, any legal opinions I offer will reflect that I
appreciate the need for the United States to remain a nation
of laws and to set the highest standards. I will be mindful
also of our shared obligation to ensure that our Nation has
the tools it needs, within the law, to protect the American
people.
Legal opinions should treat real issues. I have not been
briefed on techniques used in any classified interrogation
program conducted by any government agency. For me, then,
there is a real issue as to whether the techniques presented
and discussed at the hearing and in your letter are even part
of any program of questioning detainees. Although I have not
been cleared into the details of any such program, it is my
understanding that some Members of Congress, including those
on the intelligence committees, have been so cleared and have
been briefed on the specifics of a program run by the Central
Intelligence Agency (``CIA''). Those Members know the answer
to the question of whether the specific techniques presented
to me at the hearing and in your letter are part of the CIA's
program. I do not.
I do know, however, that ``waterboarding'' cannot be used
by the United States military because its use by the military
would be a clear violation of the Detainee Treatment Act
(``DTA''). That is because ``water-
[[Page S13595]]
boarding'' and certain other coercive interrogation
techniques are expressly prohibited by the Army Field Manual
on Intelligence Interrogation, and Congress specifically
legislated in the DTA that no person in the custody or
control of the Department of Defense (``DOD'') or held in a
DOD facility may be subject to any interrogation techniques
not authorized and listed in the Manual.
In the absence of legislation expressly banning certain
interrogation techniques in all circumstances, one must
consider whether a particular technique complies with
relevant legal standards. Below, I provide a summary of the
type of analysis that I would undertake, were I presented as
Attorney General with the question of whether coercive
interrogation techniques, including ``waterboarding'' as
described in your letter, would constitute torture, cruel,
inhuman or degrading treatment, or a violation of Common
Article 3 of the Geneva Conventions.
The statutory elements of torture are set forth in 18
U.S.C. Sec. 2340. By the terms of the statute, whether a
particular technique is torture would turn principally on
whether it is specifically intended to cause (a) severe
physical pain or suffering, or (b) prolonged mental harm
resulting from certain specified threats or acts. If, after
being briefed, I determine that a particular technique
satisfies the elements of section 2340, I would conclude that
the technique violated the law.
I note that the Department of Justice published its
interpretation of 18 U.S.C. Sec. 2340 in a December 30, 2004
memorandum to then-Deputy Attorney General James B.
Comey, which superseded the memorandum of August 1, 2002
that I testified was a ``mistake.'' I understand that the
December 30, 2004 memorandum remains the Department's
prevailing interpretation of section 2340. Although the
December 30, 2004 memorandum to Mr. Comey does not discuss
any specific techniques, it does state that ``[w]hile we
have identified various disagreements with the August 2002
Memorandum, we have reviewed this Office's prior opinions
addressing issues involving treatment of detainees and do
not believe that any of their conclusions would be
different under the standards set forth in this
memorandum.''
Even if a particular technique did not constitute torture
under 18 U.S.C. Sec. 2340, I would have to consider also
whether it nevertheless would be prohibited as ``cruel,
inhuman or degrading treatment'' as set forth in the DTA and
the Military Commissions Act (``MCA'')--enacted after the
Department of Justice's December 30, 2004 memorandum to Mr.
Comey--which extended the Convention Against Torture's
prohibition on ``cruel, inhuman or degrading treatment'' to
individuals in United States custody regardless of location
or nationality. Congress specified in those statutes, as the
Senate had in consenting to the ratification of the
Convention Against Torture, that the Fifth, Eighth, and
Fourteenth Amendments to the U.S. Constitution would control
our interpretation of the phrase ``cruel, inhuman or
degrading treatment.''
The Fifth Amendment is likely most relevant to an inquiry
under the DTA and MCA into the lawfulness of an interrogation
technique used against alien enemy combatants held abroad,
and the Supreme Court has established the well-known ``shocks
the conscience'' to determine whether particular government
conduct is consistent with the Fifth Amendment's due process
guarantees. See County of Sacramento v. Lewis, 523 U.S. 833,
850 (1998); Rochin v. California, 342 U.S. 165, 174 (1952). A
legal opinion on whether any interrogation technique shocks
the conscience such that it constitutes cruel, inhuman or
degrading treatment requires an understanding of the relevant
facts and circumstances of the technique's past or proposed
use. This is the test mandated by the Supreme Court itself in
County of Sacramento v. Lewis in which it wrote that ``our
concern with preserving the constitutional proportions of
substantive due process demands an exact analysis of
circumstances before any abuse of power is condemned as
conscience shocking.'' 523 U.S. 833, 850 (1998) (emphasis
added). As the Supreme Court has explained, a court first
considers whether the conduct is ``arbitrary in the
constitutional sense,'' a test that asks whether the conduct
is proportionate to the governmental interests involved. Id.
at 847. In addition, the court must conduct an objective
inquiry into whether the conduct at issue is ``egregious'' or
``outrageous'' in light of ``traditional executive behavior
and contemporary practices.'' Id. at 847 n.8. This inquiry
requires a review of executive practice so as to determine
what the United States has traditionally considered to be out
of bounds, and it makes clear that there are some acts that
would be prohibited regardless of the surrounding
circumstances.
I would have to ensure also that any technique complies
with our Nation's obligations under the Geneva Conventions,
including those acts, such as murder, mutilation, rape, and
cruel or inhuman treatment, that Congress has forbidden as
grave breaches of Common Article 3 under the War Crimes Act.
With respect to any coercive interrogation technique, the
prohibition on ``cruel or inhuman treatment'' would be of
particular relevance. That statute, similar in structure
to 18 U.S.C. Sec. 2340, prohibits acts intended (a) to
cause serious physical pain or suffering, or (b) serious
and non-transitory mental harm resulting from certain
specific threats or acts. Also, I would have to consider
whether there would be a violation of the additional
prohibitions imposed by Executive Order 13440, which
includes a prohibition of willful and outrageous personal
abuse inflicted for the purpose of humiliating and
degrading the detainee.
As I testified, any discussion of coercive interrogation
techniques necessarily involves a discussion of and a choice
among bad alternatives. I was and remain loath to discuss and
opine on any of those alternatives at this stage for the
following three principal reasons: First, to repeat, I have
not been made aware of the details of any interrogation
program to the extent that any such program may be
classified, and thus do not know what techniques may be
involved in any such program that some may find analogous or
comparable to the coercive techniques presented to me at the
hearing and in your letter. Second, I would not want any
uninformed statement of mine made during a confirmation
process to present our own professional interrogators in the
field, who must perform their duty under the most stressful
conditions, or those charged with reviewing their conduct,
with a perceived threat that any conduct of theirs, past or
present, that was based on authorizations supported by the
Department of Justice could place them in personal legal
jeopardy. Third, for the reasons that I believe our
intelligence community has explained in detail, I would not
want any statement of mine to provide our enemies with a
window into the limits or contours of any interrogation
program we may have in place and thereby assist them in
training to resist the techniques we actually may use.
I emphasize in closing this answer that nothing set forth
above, or in my testimony, should be read as an approval of
the interrogation techniques presented to me at the hearing
or in your letter, or any comparable technique. Some of you
told me at the hearing or in private meetings that you hoped
and expected that, if confirmed, I would exercise my
independent judgment when providing advice to the President,
regardless of whether that advice was what the President
wanted to hear. I told you that it would be irresponsible for
me to do anything less. It would be no less irresponsible for
me to seek confirmation by providing an uninformed legal
opinion based on hypothetical facts and circumstances.
As I testified, if confirmed I will review any coercive
interrogation techniques currently used by the United States
Government and the legal analysis authorizing their use to
assess whether such techniques comply with the law. If, after
such a review, I determine that any technique is unlawful, I
will not hesitate to so advise the President and will rescind
or correct any legal opinion of the Department of Justice
that supports use of the technique. I view this as entirely
consistent with my commitment to provide independent judgment
on all issues. That is my commitment and pledge to the
President, to the Congress, and to the American people. Each
and all should expect no less from their Attorney General.
Sincerely,
Michael B. Mukasey.
The PRESIDING OFFICER (Mr. Brown). The Senator from Texas is
recognized.
Mr. CORNYN. Mr. President, may I inquire how much more time this side
of the aisle has in morning business?
The PRESIDING OFFICER. The Senator from Texas would have 12 minutes.
____________________