[Congressional Record Volume 153, Number 167 (Wednesday, October 31, 2007)]
[Senate]
[Pages S13611-S13617]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  ON THE NOMINATION OF MICHAEL MUKASEY

  Mr. WHITEHOUSE. Madam President, the Senate is now called upon to 
consider President Bush's nominee to succeed Alberto Gonzales as 
Attorney General of this Nation the person we must rely on to repair 
what has been left broken to uphold the rule of law where political 
loyalties once ruled and to lead the Department of Justice forward at a 
time of upheaval; and of urgency.
  In many ways, President Bush has made a fine appointment in Judge 
Michael Mukasey; far better than we have come to expect in this 
administration. He is not a political hack. He is not a partisan 
ideologue. He is not an incompetent crony. We have had our share of 
those. No, he is a brilliant lawyer, a distinguished jurist, and by all 
accounts a good man.
  And no one feels more keenly than do I the need for repair and 
recovery of the Department of Justice. In a small way, I served this 
Department, as a U.S. Attorney, and I feel how important this great 
institution is to our country; and how important an Attorney General--
such as Judge Mukasey could be--is to this great institution.
  I wish it were so easy. But there are times in history that rear up, 
and become a swivel point on which our direction as a Nation can turn.
  The discussion of torture in recent days has made this such a point. 
Suddenly, even unexpectedly, this time has come.
  It calls us to think--What is it that makes this country great? 
Whence cometh our strength?

[[Page S13612]]

  First, of course, is a strong economy, to pay for military and 
foreign aid activities; to attract the best and the brightest from 
around the world to our land, and to reward hard work and invention, 
boldness and innovation.
  Now is not the time to discuss how we have traded away our heartland 
jobs, how our education system is failing in international competition, 
how a broken health care system drags us down, how an unfunded trillion 
dollar war and the borrowing to pay for it compromise our strength. For 
now, let me just recognize that a strong economy is necessary to our 
strength.
  But a strong economy is only necessary, not sufficient. Ultimately, 
America is an ideal. America for centuries has been called a ``shining 
city on a hill.'' We are a lamp to other nations. A great Senator on 
this floor said ``America is not a land, it's a promise.''
  Torture breaks that promise; extinguishes that lamp; darkens that 
city.
  When Judge Mukasey came before the Judiciary Committee, he was asked 
about torture and about one particular practice which has its roots in 
the Spanish Inquisition. Waterboarding involves strapping somebody in a 
reclining position, heels above head, putting a cloth over their face 
and pouring water over the cloth to create the feeling of drowning. As 
Senator John McCain, who spent years in a prison camp in North Vietnam, 
has said, ``It is not a complicated procedure. It is torture.''
  The Judge Advocates General of the United States Army, Navy, Air 
Force and Marines have agreed that the use of simulated drowning would 
violate U.S. law and the laws of war. Several Judge Advocates General 
told Congress that waterboarding would specifically constitute torture 
under the Federal Anti-Torture Statute, making it a felony offense.
  Judge Mukasey himself acknowledged that ``these techniques seem over 
the line or, on a personal basis, repugnant to me.'' He noted that 
waterboarding would be in violation of the Army Field Manual.
  But in our hearing last week, asked specifically whether the practice 
of waterboarding is constitutional, he would say no more than: ``if it 
amounts to torture, it is not constitutional,'' and since then he has 
failed to recognize that waterboarding is clearly a form of torture, is 
unconstitutional, and is unconditionally wrong.
  There are practical faults when America tortures. It breaks the 
Golden Rule--do unto others as you would have them do unto you, 
enshrined in the Army Field Manual with the question, if it were done 
to your men, would you consider it abuse?
  There are practical concerns over whether torture actually works, 
whether it is sound, professional interrogation practice. I am not an 
expert, but experts seem to say it is not.
  But the more important question is the one I asked earlier--whence 
cometh our strength as a nation? Our strength comes from the fact that 
we stand for something. Our strength comes from the aspirations of 
millions around the globe who want to be like us, who want their 
country to be like ours. Our strength comes when we embody the hopes 
and dreams of mankind.
  September 11 was a terrible catastrophe that rocked our Nation to its 
core. But tens of thousands of Americans, nearly 30,000 men, died in 
the Argonne Forest, and we did not lose our character as a nation. Are 
we not as strong now as then?
  September 11 was a terrible catastrophe that challenged our economy, 
our politics, and our way of life. But Japan withstood two nuclear 
explosions, and it is today an economically and culturally vibrant 
country. Are we not made of stuff as strong as they?
  September 11 was a terrible catastrophe, and it lives on as a test 
for our Nation. But the real catastrophe would be if we sell our 
birthright for a mess of pottage, if we sell our destiny as a lamp to 
other nations and a beacon to a suffering world, for bits of coerced 
intelligence.
  I don't think anyone intended this nomination to turn on this issue. 
So many of us saw with relief an end to the ordeal of the Department of 
Justice, and wished this nomination to succeed.
  But for whatever reason, this moment has appeared, unbidden, as a 
moment of decision on who we are and what we are as a nation. What path 
will we follow? Will we continue America's constant steady path toward 
the light?
  Will we trust in our ideals? Will we recognize the strength that 
comes when men and women rise in villages and hamlets and barrios 
around the world and say, that is what I want my country to be like; 
that is the world I choose, and turn their faces toward our light?
  Or, to borrow from Churchill, will we head down ``the stairway which 
leads to a dark gulf. It is a fine broad stairway at the beginning, but 
after a bit the carpet ends. A little farther on there are only 
flagstones, and a little farther on still these break beneath your 
feet''? Will we join that gloomy historical line leading from the 
Inquisition, through the prisons of tyrant regimes, through gulags and 
dark cells, and through Saddam Hussein's torture chambers? Will that be 
the path we choose?
  I hope not.
  I am torn--deeply torn between this man and this moment. This is a 
good man, I believe. But this moment can help turn us back toward the 
light, and away from that dark and descending stairway. If this moment 
can awaken us to the strength of our ideals and principles, then, with 
whatever strength I have, I feel it is my duty to put my shoulder to 
this moment, and with whatever strength God has given me, to push 
toward the light.
  One might argue that this makes Mr. Mukasey an innocent victim in a 
clash between Congress and the President--that no nominee for Attorney 
General will be able to satisfy Congress or the American people on the 
question of torture, because the President or perhaps the Vice 
President will not allow any nominee to draw that bright line at what 
we all know in our hearts and minds to be abhorrent to our Constitution 
and our values.
  That is exactly the point. If we allow the President of the United 
States to prevent, to forbid, a would-be Attorney General of the United 
States--the most highly visible representative of our rule of law--from 
recognizing that bright line, we will have turned down that dark 
stairway. I cannot stand for that. I will oppose this nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Madam President, it is my understanding that we are in the 
30 hours of postcloture on the motion to proceed on SCHIP. Am I 
correct?
  The PRESIDING OFFICER. That is correct.
  Mr. ENZI. I thought it might be a good idea for somebody to actually 
talk about that. To quote from Shakespeare:

       A rose by any other name would smell as sweet.

  But the so-called new SCHIP plan is essentially the same as the old 
one, and it still stinks.
  I rise today to speak about the State Children's Health Insurance 
Program, or what people on Capitol Hill are calling SCHIP.
  SCHIP was created by a Republican Congress in 1997 to help low-income 
kids get health insurance. The goal of the program is to help kids who 
do not qualify for Medicaid but also cannot afford to get health 
insurance on their own, receive the care they need. This program was 
temporarily extended until November 16, 2007, which is coming up 
shortly. I am here today to speak about how important it is for 
Congress to work with the President to reauthorize this critical 
program in a way that gets every single low-income child who needs 
insurance insured.
  If it were not for politics, this would have been solved last week. 
It would have been solved last month.
  We have been working on this issue in the Senate for a few months 
now. And the longer we work on it, the more political it becomes. I 
worried that some Members in this Chamber have lost sight of the goal: 
making sure all the low-income children in this country have health 
care.
  The press has been reporting that Members of the body have claimed 
that all the concerns were addressed in the last version of the bill 
the House voted on last week. That is not correct. The concerns were 
not addressed. This so-called new bill still fails to put low-income 
children first by gutting the administration's requirement to enroll at

[[Page S13613]]

least 95 percent of the kids below 200 percent of poverty before 
expanding the program to cover the higher income population.
  This so-called new bill still expands the Children's Health Insurance 
Program to higher income families by using income disregards, which is 
clarifying certain expenses so they do not count toward income. How 
much are we going to let people exclude and still consider them poor?
  When the House debated this bill last week, Representative Dingell, 
the chairman of the Energy and Commerce Committee, participated in the 
colloquy with Representative Burgess and explained how the income 
disregard loophole works.
  What this means in plain English is, the majority party knows there 
is a provision in the bill that could lead to children from families 
earning over $100,000 going into Government health care. This is 
exactly what I mean when I say we have lost focus when it comes to this 
bill. This program is intended to help low-income kids, not kids in 
families earning as much as $100,000 a year.
  The so-called new bill still allows the enrollment of adults, though 
the bill does transition childless adults off the SCHIP into Medicaid. 
Parents still receive SCHIP coverage.
  The so-called new bill still removes 2 million individuals from 
private coverage and puts them on Government-run health care at the 
taxpayer's expense.
  Congress needs to ensure this program is paying for health insurance 
for kids who do not currently have health insurance, not switching kids 
from private insurance to Government-run health insurance.
  We need to help all Americans get health insurance, but there are 
better, more efficient ways than spoiling a good children's plan. I 
have introduced a first-class, 10-step plan that would help us achieve 
the goal of comprehensive health care reform for every American. Any 
one of those steps would improve the situation for almost all 
Americans. All 10 steps would improve it for every American.
  But to get back to what is wrong with this new bill, the so-called 
new bill still expands SCHIP to illegal immigrants by weakening 
citizenship verification requirements. Let me repeat that. This so-
called new bill still expands the SCHIP program to illegal immigrants 
by weakening citizenship verification requirements.
  Now, the so-called new bill still is not paid for. It is relying on a 
budget trick to get around the budget rule. I am the only accountant in 
the Senate. I am sure there are others who can count. There are 
documents that show this information, but this so-called new bill still 
includes a tobacco tax increase, and the proposed tax hike is highly 
regressive, with much of the tax burden being shouldered by low-income 
taxpayers.
  Now, I am not a fan of tobacco. I have spoken on this floor many 
times about why I am so adamantly against tobacco usage. But using a 
tobacco tax to pay for children's health insurance does not make sense 
because you have to keep the program funding level stable in the 
future, and that would require 22 million more smokers.
  We are going to help children's health by talking 22 million more 
people into smoking and keeping the ones who are smoking now from 
quitting? It does not sound like a health care plan to me.
  The so-called new bill still contains district-specific earmarks. 
Again, we know we have lost focus on children's health insurance when 
the bill contains earmarks for certain districts. Clearly, the so-
called new bill has not changed that much from the previous bill. We 
have to put low-income kids first, and this bill does not do that.
  I have cosponsored the Kids First Act, S. 2152. The bill would 
provide Federal funding for children in need and require the money 
actually be spent on children from families with lower incomes.
  This bill is a good step in the direction of the compromise, and I 
hope the majority will see that and start working with the minority to 
pass something the President can sign rather than putting the kids in 
jeopardy by continuing to play politics.
  I would be remiss if I did not mention what a great job my home State 
of Wyoming is doing in the way that they are administering SCHIP. 
Wyoming first implemented its SCHIP program, called Kid Care CHIP, in 
Wyoming in 1999. In 2003, Wyoming formed a public-private partnership 
with Blue Cross/Blue Shield of Wyoming and Delta Dental of Wyoming to 
provide health, vision, and dental benefits to nearly 6,000 kids in 
Wyoming. That is a pretty significant part of our population. Wyoming 
is the least populated State in the Nation.
  These partnerships have made Kid Care CHIP a very successful program 
in Wyoming. All children enrolled in the program receive a wide range 
of benefits, including inpatient and outpatient hospital services, lab 
and x ray services, prescription drugs, mental health and substance 
abuse services, not to mention dental and vision services.
  Families share in the cost of the children's health care by paying 
copayments for a portion of the care provided. These copays are capped 
at $200 a year per family--not per child, per family.
  Wyoming is also engaged in an outreach campaign targeted to find and 
enroll the additional 6,000 kids who are eligible for the Kid Care CHIP 
but are not enrolled. I am proud of the great job Wyoming is doing in 
implementing its program.
  I am proud to say that even if the program were not reauthorized, 
Wyoming has enough money to run its program for another year because 
folks there know how to budget and plan. I sure hope it does not come 
to that. We need to get it extended. We need to get it extended right 
now.
  I hope Congress will be able to set the politics aside and put the 
kids first. We have a job to do for all the kids in the States that are 
not as fiscally responsible as Wyoming. They will start running out of 
money, so we owe it to them to work across the aisle and with the 
President and get a bill signed into law. I will cover this some more 
tomorrow when more have spoken and there are some arguments to counter.

  There is a way that we can come to a compromise and arrive at a 
solution. In fact, some of the negotiations I was involved with last 
week I thought had been reached. And then when I saw the bill that was 
voted out by the House, I saw a little recidivism there. I thought we 
had done better than that. But, obviously, we had not. Obviously, we 
need to keep working.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Salazar). The assistant majority leader is 
recognized.


                           Mukasey Nomination

  Mr. DURBIN. Mr. President, it is my great honor to serve in the 
Senate and represent my State of Illinois. It is a singular honor and 
responsibility.
  Unlike the House of Representatives where I was honored to serve for 
14 years, in the Senate we are often called on to judge people; not 
ideas, not bills, not expenditures, but people. I think it defines one 
of the fundamental differences between the House and the Senate.
  So often when it comes to the President's appointments and Cabinet 
officials, those who serve us in public life, we have to take the 
measure of a person and decide whether that person is the right one for 
the moment, if that person has the integrity and the skill and the 
values to serve this great Nation.
  It is a heavy burden. Sometimes I am sure I have gotten it wrong, and 
other times right. You are never quite sure. In this situation, as a 
member of the Senate Judiciary Committee, I am faced with this question 
about filling the vacancy after the resignation of Attorney General 
Alberto Gonzales.
  I was not a fan of Attorney General Gonzales. I voted against his 
nomination. There were many reasons. I will not go through the long 
litany. But I did not believe he was the right person for the job. I 
thought his appointment to lead the Department of Justice was the 
appointment of a man more loyal to a President than to our Constitution 
and his special responsibility in our Cabinet.
  But even beyond that, I was haunted, haunted by the involvement of 
Attorney General Gonzales in a historic decision made by the Bush 
administration.
  America has never been the same since 9/11/2001. We can all recall 
exactly where we were at that moment, the

[[Page S13614]]

horror that came over us as we realized how many innocent Americans 
would lose their lives with this unprovoked terrorist attack on the 
United States, the grief we shared with families and friends after that 
loss, witnessing all of the funerals and hearing all of the sad 
stories.
  Determined, this Congress came together in a matter of days and 
declared war on those responsible. Now there have been many times in my 
public career when I have been called on to decide whether to go to 
war. These are the decisions which may look easy from the outside but 
are never easy.
  You know that when a nation goes to war, people will die. You hope it 
will be the enemy, but you know it will be some of our own, and 
innocent people as well. You find yourself tossing and turning thinking 
about what is the right thing to do.
  When it came to the declaration of war on the Taliban and al-Qaida 
for what happened on 9/11, there was no tossing and turning. With 
resolve, the Senate unanimously voted to embark on that war, to make it 
clear that the United States would not tolerate what had happened on 9/
11.
  Of course, shortly thereafter, another challenge presented itself to 
the Senate when it came to the war in Iraq. I thought that was a much 
different issue. In fact, I thought it was an unwise policy decision to 
go forward. I joined 22 of my colleagues in voting against the 
authorization for the use of military force by President Bush.
  I think history has shown that the decision to go to war in Iraq was 
one that was ill-fated and may go down as one of the worst decisions in 
the history of our Nation. But what happened in addition to those two 
declarations of war is also going to be written in the annals of 
history.
  What did we do to protect America? Well, if you look back in our 
history, you will find that whenever we are insecure and frightened and 
believe we are in danger, we make a number of decisions to find 
security and peace of mind. Then over time we reflect on those 
decisions. And over time some of them do not stand the test of being 
consistent with our basic values.
  We were debating some of those decisions even today in the Judiciary 
Committee. The question of warrantless wiretapping, the conflict 
between privacy and security. It is almost always an issue when America 
is at war or there is a question of our security. It is an issue today: 
telephone records, records of e-mail traffic, and so forth.
  What right does the Government have, and under what circumstances can 
the Government violate the privacy of an individual in an effort to 
protect our Nation? That debate will continue. It is far from resolved.
  But there was another debate involved after 9/11 that I did not 
anticipate. I did not imagine at the time, in all of my grief and all 
of my concern, that this administration would actually call into issue 
the question of how America would treat its prisoners after 9/11.
  The reason it never dawned on me was the fact that for decades now 
the United States has been in a position of global leadership when it 
comes to the morally right position on the treatment of prisoners.
  We have prided ourselves on our coauthorship of the Geneva 
Conventions, an international standard of conduct relative to the 
treatment of prisoners in a time of war. We have prided ourselves on 
our own Constitution which bars cruel and unusual punishment. We have 
said that a democracy, the one we revere, the one that is part of our 
very national being, is a civilized nation, a nation that will draw 
lines and live by those lines when others might not.
  Other countries in the world think perhaps we get on a high horse 
sometimes when it comes to this. Each year the Department of State puts 
out a human rights scorecard on the world. We grade the world on issues 
such as torture, treatment of prisoners, treatment of political 
dissent, use of child soldiers, genocidal policies. The United States 
makes an announcement: These are the countries that are not living up 
to those standards. We stand in judgment of other nations. That is why 
it came as a surprise to me, as slowly the information trickled out 
from this White House and this administration, that the Bush 
administration was raising fundamental questions about whether we would 
change the way we treated prisoners, detainees in the so-called war on 
terrorism.
  As we learned, some of the decisions of this administration were 
particularly troubling. They called the Geneva Conventions, which had 
guided us for almost half a century, quaint, and some referred to them 
as obsolete; they said that we had to do more when it came to terror. 
It appears at some point there was a change of heart in the 
administration and they backed off some of the early harsh language in 
the so-called Bybee memo and went on to revert to some standards closer 
to where our Nation had always been. The fact is, there was not only 
active discussion, but it appears there was active conduct involved in 
the treatment of prisoners far different than what we had said to the 
world was our standard of treatment and our standard of care.
  I am old enough to recall the Vietnam war. I often say to groups I 
speak to in Illinois and other places that certain words bring certain 
images. When the words ``Vietnam war'' are brought to mind and I am 
asked of the first snapshots in my mind, the first one that presents 
itself is the black-and-white grainy photograph of the mayor of a South 
Vietnamese hamlet shooting pointblank at the head of a political 
prisoner. The second image is of a little girl stripped naked running 
down a road with her arms extended, burned from napalm. I will never 
get those images out of my mind.
  I am afraid there are images of the war in Iraq that will stay with 
people for a long time as well. One of them, sadly, will be images from 
Abu Ghraib prison and the treatment of Iraqi prisoners. A prisoner on a 
stool with his head covered with a bag, his arms extended with 
electrodes connected; I am afraid that is an image that will be with us 
for a long time and in the minds of many will be an unfair 
characterization of America and what we are about.
  That was one of the reasons why I could not vote for the nomination 
of Attorney General Gonzales. I knew he was complicit in these 
conversations, these policies, this change when it came to the issue of 
torture. I find it difficult to rationalize how a person whose job it 
is to uphold the rule of law could be party to that.
  Now comes a vacancy, an opportunity to consider a successor--Judge 
Michael Mukasey, former Federal judge from New York, a person who has 
given his life to the law, an extraordinarily gifted, talented, able 
jurist, who left the bench for private practice. Some have described 
Judge Mukasey as aspiring to the role of caretaker because it is a year 
and a few months away from the President's end of office. But the 
person confirmed to fill that job has a much bigger responsibility than 
caretaker. He will bear a heavy burden of doing his part to restore 
honor and dignity to the Department of Justice.
  I believe Michael Mukasey could do that if he not only brought the 
skills of a judge and the administrative skills that he might bring to 
the job, but also brought with him a clear break from Attorney General 
Gonzales's views on the issue of torture. It is the Attorney General's 
role to uphold the law and American values. Former Attorney General 
Gonzales failed in that role.
  The late historian Arthur Schlesinger, Jr. said this about the 
Justice Department's legal defense of torture:

       No position taken has done more damage to the American 
     reputation in the world--ever.

  That is a powerful statement from a man who made his life as a 
historian and close adviser to President John Kennedy and close 
confidant of many others at the highest levels of public life, to say 
that no position taken has done more damage to America's reputation in 
the world than this administration's position on torture.
  Judge Mukasey has a distinguished record. I had hoped his background 
as a member of the Federal judiciary would give him the independence 
and integrity necessary for the job of Attorney General. On the first 
day of his testimony I was so relieved and refreshed; he answered 
questions. He didn't say ``I don't know'' and duck and dodge. When 
confronted with hard questions, such as will you be prepared to walk 
away from this President if asked to do something that you feel 
inconsistent with the Constitution and laws of the

[[Page S13615]]

land, he was resolute and firm in his answers. I thought maybe this is 
the right person. This is a man who, because of his background and 
station in life, doesn't need this job but would take it for public 
service and be willing to stand up for principle. It was so refreshing.
  Then came the second day of questions. I had a chance to ask him a 
question toward the end of the hearing. The room was almost empty. 
People had come to the conclusion on the second day that it was 
a foregone conclusion that Judge Mukasey would be approved as the 
nominee by the Judiciary Committee and submitted to the Senate. I asked 
him late in the questioning about the issue of torture. In fact, I was 
specific. I went beyond the general questions of torture because the 
administration said clearly: We do not have a policy of torture. We 
don't engage in torture.

  I then went to specific forms of torture, things that have been done 
to prisoners in detention over the centuries which are commonly 
regarded as torture. I asked him about waterboarding. Judge Mukasey 
refused to answer the question and said:

       I don't know what's involved in the technique. If 
     waterboarding is torture, torture is not constitutional.

  Sheldon Whitehouse of Rhode Island is my colleague. He called this 
response by Judge Mukasey ``a massive hedge.'' I think Senator 
Whitehouse was kind. For those who heard his remarks a few minutes ago, 
I told him it was one of the most powerful statements I had heard as a 
Senator in analyzing the challenge we now face on the Judiciary 
Committee with this nomination.
  I had hoped I would have heard from Judge Mukasey words that were 
spoken to me and to the committee and to America by people who have 
given their lives to considering this difficult topic.
  Retired RADM John Hutson, former Navy Judge Advocate General, 
testified at Judge Mukasey's confirmation hearing. He was asked about 
Judge Mukasey's statements and position on waterboarding. This is what 
he said:

       Other than, perhaps the rack and thumb screws, water-
     boarding is the most iconic example of torture in history. It 
     was devised, I believe, in the Spanish Inquisition. It has 
     been repudiated for centuries. It's a little disconcerting to 
     hear now that we are not quite sure where waterboarding fits 
     in the scheme of things. I think we have to be very sure 
     where it fits in the scheme of things.

  Those are the words of Admiral Hutson. I was troubled by Judge 
Mukasey's position on waterboarding. I joined with all of my Democratic 
colleagues in the Judiciary Committee and sent him a letter. I wanted 
to give him a fair opportunity to reflect on the questions and his 
answers and to give us a complete statement of his views on this issue. 
I felt it was important and only fair to give him that chance. Last 
night we received his reply. To say the least, it was disappointing. We 
asked Judge Mukasey a simple, straightforward question. Is 
waterboarding illegal? His response took four pages. In it was very 
little.
  He said waterboarding was ``on a personal basis, repugnant to me.'' 
But he refused to say whether waterboarding was illegal because 
``hypotheticals are different from real life'' and it would depend on 
``the actual facts and the circumstances.''
  With all due respect, that is an evasive answer. Frankly, while Judge 
Mukasey has not been confirmed yet, that answer sounds too reminiscent 
of his predecessor. For the past 5 years, whenever we have asked the 
administration whether torture techniques such as waterboarding are 
illegal, they always have the same response: That is a hypothetical 
question, and it depends on the facts and circumstances.
  Let's be clear. Waterboarding is not a hypothetical. Waterboarding or 
simulated drowning is a torture technique that has been used at least 
since the Spanish Inquisition and is used today by repressive regimes 
around the world. I have come to the floor, Senator McConnell has come 
to the floor, and many others, to decry what is happening in Burma 
today where the military junta is not only killing innocent Burmese 
people in the streets but engaging in torture and detention of citizens 
who are only trying to speak their heart. The Burmese military has 
reportedly used waterboarding against democracy activists as they 
violently repressed demonstrations in recent weeks. Whether 
waterboarding is torture is certainly not a hypothetical question to 
these Burmese democracy activists. These are some techniques that are 
so clearly illegal that it doesn't depend on facts and circumstances. 
They should always be off limits. Would it depend on the facts and 
circumstances whether it is torture to pull out someone's fingernails? 
Do you want to know more? Would it depend on facts and circumstances 
whether rack-and-thumb screws are torture?
  Judge Mukasey refused to say whether waterboarding is illegal, but 
many others have answered this question and they didn't need four pages 
to do it. Following World War II, the United States prosecuted Japanese 
military personnel as war criminals for waterboarding American 
servicemen. The Judge Advocates General, the highest ranking military 
lawyers in each of the U.S. military's four branches, told me 
unequivocally waterboarding is illegal.
  To take one example, BG Kevin M. Sandkuhler, Staff Judge Advocate to 
the Commandant of the Marine Corps, stated:

       Threatening a detainee with imminent death, to include 
     drowning, is torture.

  Senator John McCain, a Republican colleague from Arizona, who knows 
more than anyone on this floor about being a prisoner and being treated 
as a prisoner, spoke to this issue with credibility and clarity. This 
is what he said of waterboarding:

       In my view, to make someone believe that you are killing 
     him by drowning is no different than holding a pistol to his 
     head and firing a blank. I believe that it is torture, very 
     exquisite torture.

  Earlier this week Senator McCain was asked about Judge Mukasey's 
refusal to say whether waterboarding was torture. This is how he 
responded:

       Anyone who says they don't know if waterboarding is torture 
     or not has no experience in the conduct of warfare and 
     national security.

  Senator John Warner, one of the authors of the Military Commissions 
Act, during the floor debate on the same legislation said that 
waterboarding is ``in the category of grave breaches of Common Article 
3 of the Geneva Conventions'' and would be ``clearly prohibited'' by 
the Military Commissions Act.
  Our own State Department has long recognized that waterboarding is 
torture and cruel, inhuman and degrading treatment. The State 
Department has repeatedly criticized other countries for using 
waterboarding in its annual Country Reports on Human Rights Practices.
  How can we on one hand say our Secretary of State is going to look at 
the conduct of the world and issue a report every year and find that if 
they are engaged in waterboarding and the torture of prisoners, they 
have violated human rights, and have a nominee for Attorney General of 
the United States of America uncertain until he knows a little bit more 
about the facts and circumstances surrounding the use of waterboarding?
  It is important to note that although Judge Mukasey was equivocal and 
evasive on the issue of waterboarding, there were other issues he was 
happy to volunteer strong opinions on. For example, I asked him whether 
he believes the Second Amendment secures an individual right to bear 
arms. Unlike waterboarding, which is widely condemned, this is an 
unsettled legal question.
  The Bush administration takes the position that the Second Amendment 
protects an individual right to bear firearms, but that view has been 
rejected by most Federal appeals courts and conflicts with the holding 
of the U.S. Supreme Court in United States v. Miller. Judge Mukasey did 
not hesitate and ask for facts and circumstances. He said:

       Based on my own study, I believe that the Second Amendment 
     protects an individual right to keep and bear arms.

  On this contentious, debated, constitutional issue about the Second 
Amendment, he wasted no time coming to a legal conclusion. But when it 
comes to the issue of waterboarding he refuses.
  Every reason Judge Mukasey has offered in his letter to us for his 
failure to take a position on waterboarding

[[Page S13616]]

falls short. He says he has not been briefed on the administration's 
interrogation programs. Isn't it ironic, because if he were briefed, he 
would have refused to answer the question, saying it is classified. 
What I am asking about are basic principles, and he refuses to answer.
  Now he argues he cannot answer the question because he has not been 
briefed. As we made clear in our letter, we are not asking Judge 
Mukasey's views of the administration's interrogation program. We are 
asking him for his personal opinion on waterboarding.
  He also argues he cannot take a position on waterboarding because it 
would ``provide our enemies with a window into the limits or contours 
of any interrogation program.''
  With all due respect, what does that say about us? If you would go to 
the Internet now and run a search on the term ``waterboarding,'' you 
would find there are 18 million references to it--18 million. This is 
not a term shrouded in mystery. It is a term well known and well 
discussed across the world.
  If the argument is being made by Judge Mukasey that we want to leave 
our enemies in doubt as to whether we engage in waterboarding, what 
does it say about us? If the United States does not explicitly and 
publicly condemn waterboarding, it is certainly more difficult to argue 
that enemy forces cannot use the same tactics. That has always been the 
gold standard. If this tactic of interrogation were applied to an 
American soldier, would the United States cry foul? Would we say it is 
torture, cruel, inhuman, and degrading?
  There is no doubt in my mind we would say any American soldier 
subjected to waterboarding is a victim of torture. We said it after 
World War II, and we prosecuted those Japanese military officials 
responsible.
  Why now in the 21st century is there any doubt in Judge Mukasey's 
mind? Sadly, if the Senate confirms Judge Mukasey, it will tell the 
world the American Attorney General has not made up his mind about a 
form of torture that has been repudiated for centuries.
  Many of us have a vision of America after this administration. We 
look beyond January 20, 2009. We hope we will live in a better and 
safer world. We hope the next President, whoever that may be, will 
rebuild alliances with countries that have stood by our side through 
thick and thin throughout our history--countries which are now 
estranged by the policies of this administration.
  We hope whoever the next President will be, that person will seek to 
restore the image of America in the world, tell people who we are, 
because many have such wrong and bad impressions of this great Nation. 
We certainly expect the next President to reestablish the values that 
define us: fairness and justice, clarity of purpose--a caring nation, 
dedicated to peace.
  When the history of this war on terror and this Bush administration 
is written, I am afraid many of the actions of this administration will 
fall into a sad and regretful category--a category that includes the 
suspension of habeas corpus during the Civil War, the Sedition Act of 
World War I, the Japanese internment camps in World War II, the Army-
McCarthy hearings of the Cold War, the enemies list of the Nixon 
administration--overreactions by a government so consumed with the idea 
of security that that government lost its way when it came to our basic 
and fundamental values.
  We cannot lose our way when it comes to the choice of the next 
Attorney General. As good a person as he may be, his response to this 
question--this basic and fundamental question on policies of the 
interrogation of prisoners leaves me no alternative but to oppose Judge 
Mukasey's nomination to be Attorney General of the United States.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, back in August, I stood right here on the 
Senate floor and shared the story of a little girl from my home State. 
I did that because I wanted to illustrate why it is our moral 
obligation as Americans to renew and improve the Children's Health 
Insurance Program, or CHIP.
  Shortly afterward, the Senate approved the CHIP bill by an 
overwhelming margin because Senators on both sides of the aisle agreed 
that all children should be able to see a doctor when they are sick. 
They supported reauthorizing CHIP because it would reduce the number of 
uninsured American children by a third.
  Well, President Bush vetoed it.
  Now it is 3 months later, and I am frustrated and angry that I have 
to stand here again talking about CHIP and that we are still trying to 
get the White House to understand.
  The supporters of this bill have agreed to a compromise. We want to 
make this program work. We are back with another bill now that we think 
meets everyone's needs. So today I come back to the floor to remind 
President Bush and anyone else who still questions how important it is 
to approve this program now--about that little girl from Yakima, WA, 
because it is time for the President to stop blocking her health care.
  The little girl I want to tell you about is Sydney. She is 9 years 
old. In many ways, Sydney is like any other happy child in America. She 
loves to sing. She loves to dance. She does well in school. She has a 
lot of friends. But Sydney is different in one way. She has a life-
shortening genetic condition called cystic fibrosis. It requires her to 
take and I quote from her a ``bucketful'' of medicine every day.
  She has already spent weeks of her young life in the hospital hooked 
up to an IV of antibiotics which help her to live another day. All of 
that is possible because of the health care she has received as part of 
the CHIP program.
  Her mom, Sandi DeBord, told me about Sydney because she was very 
frightened that CHIP might no longer be available for her daughter. She 
wrote to me and said:

       I know for a fact that without this bit of assistance, her 
     life would end much sooner due to the inability to afford 
     quality health care for her.

  Her life would end because she could not afford health care. What a 
sad note. I am here to tell the story again because, sad to say, 3 
months later I cannot assure Sydney's mom that CHIP will always be 
there. In fact, the news has become even more worrisome.
  Just today, in the New York Times, it reported that because of the 
President's refusal to work with Congress on this bill, several States 
are now planning to start dropping children from the program in order 
to save money. Unless something changes, California says it is going to 
start dropping 64,000 kids a month in January--64,000 kids a month.
  A study from the Congressional Research Service found that nine 
States--Alaska, Georgia, Illinois, Iowa, Maine, Maryland, 
Massachusetts, New Jersey, and Rhode Island--are all going to run out 
of money by March. Twelve more States are going to run out between 
April and September. This is a tragedy, and it is our moral obligation 
to fix this. That is what we are trying to do now in the Senate.
  As Sydney's story shows us, the need for the Children's Health 
Insurance Program is clear. It does not matter if you are a Republican 
child or a Democrat child or a progressive or a conservative; making 
sure our children get health care is the right thing to do.

       When a child gets a cut that requires stitches or comes 
     down with a fever or has an earache or any other imaginable 
     problem, they ought to be able to get help, period. This is 
     the United States of America. But, unfortunately, today, in 
     this country, that is not the case. Millions of kids do not 
     get the medicine or the care they need.

  We know the ranks of our uninsured children are growing because as 
the cost of living rises and wages remain stagnant, more and more 
parents are struggling to afford any health care.
  Most of us in the Senate know this. The CHIP program has had strong 
Republican support, and I particularly thank Senator Grassley and 
Senator Hatch, who cosponsored the original 1997 bill, and have been 
working so hard with Senator Baucus and Senator Rockefeller since.
  But even with that bipartisan support in the Senate, President Bush 
has complained about the bill that passed. As an excuse to delay the 
program, he and a few Republican supporters say we have been unwilling 
to work with them. They say it will increase costs. I am here to say 
that is not the case. Despite what the President says, we listened to 
their concerns, and in this bill that is now before the Senate we 
address those concerns.
  This bill we are now considering addresses the concerns we heard over 
and

[[Page S13617]]

over that children of illegal immigrants will be covered by requiring 
that States not only verify names and Social Security numbers, but they 
also check citizenship information in the Social Security 
Administration's database. So that issue is gone.
  Secondly, it ends the coverage of childless adults by the end of 1 
year. So that issue is gone.
  Finally, this bill concentrates on making sure the poorest kids get 
covered first. So that issue is gone.
  This bill also helps bridge the gap for another 3.9 million children 
whose parents cannot afford insurance. And this program is paid for. I 
want to say that again. This program is paid for.
  President Bush just asked us to borrow $196 billion for the war in 
Iraq and Afghanistan for this year alone. But he opposes children's 
health insurance, even though we found a way to pay for every penny of 
it for the next 5 years. The $35 billion cost for CHIP's initiatives 
comes solely from a 61-cent excise tax increase on cigarettes and other 
tobacco products. No other programs are cut. Social Security is not 
raided. We are not increasing the deficit. Not only will this provide 
millions of children with health care, experts actually estimate it is 
going to get 1.7 million adults to quit smoking and prevent millions of 
kids from ever getting hooked. So this is good for our kids' health 
care now, and it is going to make a lot of kids healthier in the 
future.
  Children's health should not be about politics. I have said this over 
and over. It is about making sure kids see a doctor when they need to. 
Kids are not Democrats; they are not Republicans. They are just kids 
who deserve health care.
  Unfortunately, President Bush has let health care for our children 
get caught up in a desperate attempt to appeal to his dwindling number 
of supporters.
  We know CHIP is the right thing to do. Americans know it is the right 
thing to do. More than 65 percent of them oppose President Bush's veto.
  So to President Bush--and to any of our colleagues out there who 
still see this as a debate over politics and numbers--I want to remind 
you once more of a little girl who is 9 years old whose name is Sydney 
and the millions of other kids out there who depend on us to do the 
right thing.
  Sydney is still fighting cystic fibrosis, and her mom is still 
wondering whether she will be able to take care of her in the future. I 
hope we can tell her that we will.

  So on behalf of Sydney, on behalf of the 73,000 uninsured children in 
my State alone, and the more than 8 million children in this country, I 
thank all of my colleagues who worked so hard on this bill and 
supported it to this point. I urge the President to stop blocking this 
critical program for our kids.
  Mr. President, I yield the floor.

                          ____________________