[Congressional Record Volume 153, Number 173 (Thursday, November 8, 2007)]
[Senate]
[Pages S14147-S14182]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


        NOMINATION OF MICHAEL B. MUKASEY TO BE ATTORNEY GENERAL

  Mr. REID. Mr. President, I ask unanimous consent the Senate now 
proceed to executive session to consider Executive Calendar No. 374, 
the nomination of Michael Mukasey to be Attorney General of the United 
States; that there be a time limitation of 5 hours of debate equally 
divided between the chairman and ranking member of the Judiciary 
Committee, with the Democratic time divided as follows: Senator Leahy, 
45 minutes; Senator Dorgan, 15 minutes; Senator Durbin, 20 minutes; 
Senator Cardin, 10 minutes; Senator Reed, 15 minutes; Senator Kennedy, 
10 minutes; Senator Harkin, 10 minutes; Senator Boxer, 15 minutes; 
Senator Salazar, 10 minutes; that upon the conclusion or yielding back 
of the time, the leaders be recognized for 10 minutes each, with the 
majority leader going last; that the Senate then vote on confirmation 
of the nomination; the motion to reconsider be laid on the table; the 
President be immediately notified of the Senate's action, and the 
Senate then resume legislative session; that the Senate then, without 
intervening action or debate, vote adoption of the conference report on 
H.R. 3222.
  The PRESIDING OFFICER. Is there objection?
  Mr. LOTT. Mr. President, I wish to put in the Record that this has 
been cleared with the leader on our side also. I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The majority leader.
  Mr. REID. Mr. President, I appreciate the cooperation of everyone. 
This has been a difficult day. These are very sensitive issues we are 
dealing with, with the troops and the financing of the country, in 
addition to the nomination of a Cabinet officer. It is a time when you 
need cooperation from both sides. That is what we have had. It has not 
been easy. I extend my appreciation to my colleagues on the other side 
of the aisle and the cooperation of my Members. I would finally say 
that for those of you who have had questions asked by Democrats and 
Republicans, we are going to finish the farm bill. There is some real 
movement on that with amendments. I feel comfortable we will be able to 
get that done in the near future. I appreciate everyone's cooperation.
  The PRESIDING OFFICER. The clerk will report the nomination.
  The assistant legislative clerk read the nomination of Michael B. 
Mukasey, of New York, to be Attorney General.
  The PRESIDING OFFICER. The assistant majority leader.
  Mr. DURBIN. Mr. President, the Senate is now taking up the nomination 
of Judge Michael Mukasey to be the next Attorney General of the United 
States. It is a nomination which has become controversial. Judge 
Mukasey has served his country in many different ways. He served as a 
Federal judge before he retired, then went into private practice and 
was summoned to serve as Attorney General by this President. I had a 
chance to meet with him personally in my office. One cannot help but be 
impressed by the man's intelligence and erudition. He clearly is a 
person of strongly held beliefs and it takes little time to appreciate 
that when you meet him.
  I left, after meeting him in my office, believing his nomination 
hearings would be interesting, and they were. On the first day, Judge 
Mukasey was a great witness, saying things that needed to be said about 
his plans to change the Department of Justice from the days of Alberto 
Gonzales, about his feeling of responsibility to the country not to 
abide by any decisions made by the President that were inconsistent 
with the law or the Constitution.
  He went so far as to say he would resign before he would allow that 
to occur. I can recall speaking to my colleagues, including Senator 
Schumer, who sat next to me in the Judiciary Committee, and saying: 
What a breath of fresh air, how refreshing that he would be so candid 
and forthright. After all the years of Alberto Gonzales dodging 
questions, refusing to answer, here was a man who answered the 
questions. That was the first day.
  Then came the second day of the hearing. When my turn came to ask 
questions, I proceeded to ask Judge Mukasey specific questions about 
torture. His answers to those questions led to a great deal of 
controversy and lead us to this moment in the Senate debate.

[[Page S14148]]

  When we write the history of this early 21st century in America, 
there are going to be countless stories of courage and compassion: 
Firefighters and police officers racing into the burning Twin Towers 
minutes before they collapsed on 9/11.

  The passengers on United Airlines flight 93 overcoming hijackers and 
plunging to certain death instead of allowing the terrorists to reach 
what many believe was their intended target, the U.S. Capitol, and 
those of us working in the building at the time. Those passengers on 
that flight were true American heroes. Those of us in the Senate and 
the House and all of us in the Capitol will be forever in their debt.
  There were hundreds of thousands of brave service men and women, 
every single one of them volunteers, leaving families and friends to 
defend our country. Thousands of them have come home to America in 
flag-draped coffins. Stories of courage and stories of compassion.
  Sadly, during the same period, there have been stories of cowardice 
and cruelty. A short way down Pennsylvania Avenue from this Capitol 
building is the U.S. Department of Justice. In that building, attorneys 
manipulated the law to justify practices which were unthinkable in 
America. They put our troops at risk and sacrificed principles for 
which America has always stood and for which thousands died on 9/11 and 
the years since. They did tremendous harm to the image of this great 
Nation. The late historian Arthur Schlesinger, Jr., said this about the 
Bush administration's torture policy:

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

  Alberto Gonzales was an architect of the Bush administration's 
torture policy. As White House counsel, he recommended the President 
set aside the Geneva Conventions. The phrase ``Geneva Conventions'' 
brings to mind civility, fairness, and justice. How did Alberto 
Gonzales characterize the Geneva Conventions? He called them ``quaint'' 
and ``obsolete.'' He requested and approved the infamous Justice 
Department torture memo that limited the definition of torture to abuse 
that causes pain equivalent to organ failure or death.
  Now we are asked to consider the nomination of Judge Michael Mukasey 
to succeed Alberto Gonzales. Judge Mukasey is obviously intelligent, 
with a distinguished record. But that is not enough. In light of 
Alberto Gonzales's shameful role in justifying torture, Judge Mukasey 
bears a special burden to make clear where he stands on the issue. I am 
sorry to say he has not met that burden.
  Prior to his confirmation hearing when I met him in private, his 
responses troubled me. He told me ``there is a whole lot between pretty 
please and torture'' and that coercive techniques short of torture are 
sometimes effective. When I reminded Judge Mukasey that cruel, inhuman, 
and degrading treatment are illegal under U.S. law, he said he thought 
these terms were ``subjective'' and suggested the President might have 
authority as Commander in Chief to ignore the prohibition.
  In light of these responses, which troubled me greatly, I decided to 
follow up with the questions I asked at his confirmation hearing. I 
asked him whether the torture technique known as waterboarding is 
illegal. He refused to answer, saying:

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

  Frankly, I was surprised that Judge Mukasey was unfamiliar with 
waterboarding. This is not a new technique. It may be one of the oldest 
recorded forms of torture in the world.
  Retired RADM John Hutson, former Navy Judge Advocate General, also 
testified at Judge Mukasey's hearing. He was asked about Judge 
Mukasey's position on waterboarding. This is what he said:

       Other than perhaps the rack and thumbscrews, waterboarding 
     is the most iconic example of torture in history. . . . It 
     has been repudiated for centuries. It's a little 
     disconcerting to hear now that we're 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.

  To give Judge Mukasey a chance to clarify his views, I wrote him a 
letter, which all 10 Democrats on the Senate Judiciary Committee 
signed, and asked him a very straightforward question. Certainly, 
straightforward questions need to be fielded by lawyers, by judges, and 
the Attorney General.
  The question was this: Is waterboarding illegal?
  It took Judge Mukasey four pages, in a response to our committee, to 
say nothing. He refused to say whether waterboarding was illegal 
because ``hypotheticals are different from real life.'' He went on to 
say it would depend on ``the actual facts and circumstances.''
  Waterboarding is not hypothetical. This old woodcut dates back to the 
Spanish Inquisition, 515 years ago. It shows a prisoner being subjected 
to waterboarding. This is no new idea. It is simulated drowning to 
create panic in the mind of the detainee and to force compliance.
  The Spanish inquisitors referred to waterboarding as ``tormenta de 
toca,'' after the linen towel they placed over a victim's mouth and 
nose during the procedure. Waterboarding was part of an elaborate 
regime of torture that included the rack and dislocating limbs by means 
of a pulley.
  Here we are 500 years later, and it is still being used today, sadly, 
in Burma by the military dictatorship. There are no facts and 
circumstances that need to be considered--it either is or it isn't 
torture.
  Judge Mukasey would not say whether waterboarding was torture. Many 
others have, and they did not need four pages of legal obfuscation. I 
received a letter from four retired military officials about Judge 
Mukasey's position on waterboarding. This is what they said:

       This is a critically important issue--but it is not, and 
     never has been, a complex issue. . . . Waterboarding 
     detainees amounts to illegal torture in all circumstances. To 
     suggest otherwise--or even to give credence to such a 
     suggestion--represents both an affront to the law and to the 
     core values of our nation.

  In a recent statement on the Mukasey nomination, Republican Senators 
John McCain, John Warner, and Lindsey Graham wrote:

       Waterboarding, under any circumstances, represents a clear 
     violation of U.S. law. . . . anyone who engages in this 
     practice, on behalf of any U.S. government agency, puts 
     himself at risk of criminal prosecution.

  The Judge Advocates General, the highest ranking military lawyers in 
America--all four branches--testified unequivocally to the Senate 
Judiciary Committee that waterboarding is illegal and violates Common 
Article 3 of the Geneva Conventions. If these high-ranking military 
officials and our fellow colleagues in the Senate can answer this 
question so directly, why can't Judge Mukasey?
  Let's take an example.
  BG Kevin M. Sandkuhler, Staff Judge Advocate to the Commandant of the 
Marine Corps, stated that ``threatening a detainee with imminent death, 
to include drowning, is torture.'' No equivocation there. Nothing about 
``facts and circumstances.'' He did not need to hear more. Simulated 
drowning is torture.
  Malcolm Nance is a former master instructor and chief of training at 
the U.S. Navy Survival, Evasion, Resistance and Escape School. He 
trained Navy SEALS to resist torture, including waterboarding. Listen 
to what Mr. Nance, former master instructor of the SEALS, had to say:

       I know the waterboard personally and intimately. . . . I 
     personally led, witnessed and supervised waterboarding of 
     hundreds of people. . . . Waterboarding is a torture 
     technique. Period. There is no way to gloss over it or 
     sugarcoat it. . . . Waterboarding is slow motion suffocation 
     with enough time to contemplate the inevitability of black 
     out and expiration--usually the person goes into hysterics on 
     the board. . . . When done right it is controlled death.

  Each year, our State Department stands in judgment of the human 
rights record of the world. It is a rather bold thing for us to do, to 
say that our Nation has the moral authority to judge all the nations in 
the world when it comes to human rights. This is not the first 
President to do it. Many before have. Our own State Department has long 
recognized that waterboarding is torture and repeatedly criticized 
countries such as Sri Lanka and Tunisia for the use of the technique--a 
technique Judge Mukasey will not even acknowledge as torture.
  For over 100 years, our Government has treated waterboarding as a 
crime.

[[Page S14149]]

Judge Evan Wallach, who used to work for majority leader Harry Reid, is 
a former military lawyer and expert on waterboarding. He recently wrote 
a study that concluded:

       In all cases, whether the water treatment was applied by 
     Americans or to Americans, or simply reviewed by American 
     courts, it has uniformly been rejected as illegal, often with 
     severely punitive results. . . .

  In April of 1902, 105 years ago, during the U.S. occupation of the 
Philippines, Secretary of War Elihu Root directed that officers alleged 
to have used water torture be tried by court-martial. That year, U.S. 
Army MAJ Edwin Glenn was convicted of having ordered and directed the 
application of the so-called water cure. Army Judge Advocate General 
George Davis said of Major Glenn that he was guilty of ``a resort to 
torture with a view to extort a confession.'' Mr. President, 105 years 
ago we convicted an American soldier of engaging in torture, for using 
waterboarding in the Philippines.
  What happened after World War II? The United States prosecuted 
Japanese military personnel as war criminals for waterboarding U.S. and 
other prisoners.
  At the U.S. military commission at Yokohama, we tried three Japanese 
defendants for torture. The charges included ``fastening [an American 
Prisoner of War] on a stretcher and pouring water up his nostrils.'' 
During the trial, Thomas Armitage, one of the American victims, 
described it. This is what he said:

       [T]hey would lash me to a stretcher then prop me up against 
     a table with my head down. They would then pour about two 
     gallons of water from a pitcher into my nose and mouth until 
I lost consciousness.

  What did we say of the Japanese soldiers responsible for that heinous 
conduct? We said they were guilty of war crimes--war crimes against 
American soldiers and prisoners. They were convicted and sentenced to 
between 15 and 25 years of confinement at hard labor--for a crime that 
this man who would be our Attorney General cannot acknowledge as 
obvious, clearly illegal, and inconsistent with America's values.
  In the trial of a Japanese soldier for the torture and murder of 
Philippine civilians, one victim testified:

       I was ordered to lay on a bench and [they] tied my feet, 
     hands and neck to that bench lying with my face upward. After 
     I was tied to the bench [they] placed some cloth on my face 
     and then with water from the facet they poured on me until I 
     became unconscious.

  What does it take? What does it take to get this man who wants to be 
the premier law enforcement official in America to acknowledge the 
obvious? Waterboarding is torture. Waterboarding is illegal. 
Waterboard- ing is unconstitutional and inconsistent with American 
values.
  Some within this administration share the puzzlement that Judge 
Mukasey has over torture. Apparently, Vice President Dick Cheney is 
one. He was asked whether it would be acceptable to him to give a 
detainee ``a dunk in the water.'' The Vice President's response was: 
``it's a no-brainer for me.''
  And the Bush administration now seems to have reined in the State 
Department, despite the fact that we have condemned other nations for 
waterboarding. Earlier this week, John Bellinger, the State 
Department's top legal adviser, was asked whether there could be any 
circumstances in which a foreign government could justify waterboarding 
an American citizen. Listen to this response from the Bush 
administration as to whether an American citizen could be waterboarded:

       One would have to apply the facts to the law, the law to 
     the facts, to determine whether any technique, whatever it 
     happened to be, would cause severe physical pain or 
     suffering.

  Incredible. We prosecuted Japanese soldiers for doing this to 
Americans, and now this administration, maintaining this notion that 
somehow this is a hazy, undefinable concept, will not even clearly 
condemn the use of waterboarding to torture Americans.
  Judge Mukasey's position on waterboarding is troubling, but there are 
other serious concerns which I explained during the Judiciary Committee 
debate. He would not answer direct questions about other torture 
techniques even though the Judge Advocates General had made it clear 
they were torture. Sadly, time and again, he said his response would 
depend on the facts and circumstances.
  Mr. President, I do not know when--I do not know if I will be here to 
see it; I may not be alive at the time--but history will be written 
about this moment. The history will be written about what we have done 
as a nation under the administration of George W. Bush. There will be 
good things said, I am sure, but there will also be chapters written 
about, how this administration raised an issue which we thought was a 
settled matter, how this administration has now brought in play the 
question of torture, how this administration has identified this great, 
caring, and good Nation with that issue.
  Our only hope is that men and women of courage within this 
administration and outside will stand up and say clearly, once and for 
all, torture is un-American, torture is ineffective, and torture is 
unacceptable when applied to detainees in our control or to Americans 
in the control of others. Judge Mukasey would not say that. He was 
unwilling to make those statements.
  I think this issue transcends many other issues. Some will come 
before us and say the problem here is Congress just has not done its 
job. If Congress would sit down and really put a good definition of 
torture together, then maybe we could ask Judge Mukasey about it, ask 
whether he would enforce it.
  Really? Mr. President, 105 years ago, the United States knew 
waterboarding was torture and prosecuted an American soldier for 
engaging in it. Sixty years ago, we knew waterboarding was torture and 
prosecuted Japanese soldiers for war crimes. And now, in this moment in 
history, is there really any uncertainty? The real uncertainty is what 
the administration has done in the name of our country in the treatment 
of prisoners.
  When the history of this time is written, there will be stories of 
courage and stories of cowardice. Rest assured, the United States will 
not be viewed kindly if we confirm as the chief law enforcement officer 
of this country someone who is unwilling or unable to recognize torture 
when he sees it.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields time?
  The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, the allocation has been made of 5 hours 
equally divided on the confirmation of Judge Michael Mukasey to be 
Attorney General and also to cover the Department of Defense 
appropriations bill.
  I have been informed that I will be in charge of the allocation of 
time. So I say to my colleagues who want to speak in favor of former 
Judge Mukasey or who want to speak on the Defense appropriations bill 
on the Republican side, come to the floor and let me know how much time 
you would like. The Democrats who are speaking in favor of Judge 
Mukasey will come out of my time as well. We ought to have some idea as 
to how much time will be required. Five hours will put us close to 
midnight.
  The ways of the Senate are wondrous. It is hard to figure out--we had 
our last vote at 11:45 and finished shortly after noon and could have 
started this debating process early in the afternoon. But, as I say, in 
the wondrous ways of the Senate, we could not begin it until 7 o'clock, 
until we had reached an agreement on procedural details, which might 
well have been done earlier. But I have been here a while, and I 
learned a long time ago the Senate is a lot smarter than I am, and we 
follow--we play the cards we are dealt. But I don't think there is any 
need for us to be in session until midnight, although things could get 
lively and perhaps some stray television viewers will turn on C-SPAN 2; 
they certainly wouldn't do it during the daytime when the soaps are on. 
But, it may well be that the time will be yielded back. And so, I 
inform my colleagues to not necessarily expect to vote as late as 
midnight, although that may be the case.

  Now, on to former Federal Judge Michael Mukasey. He is a man with an 
outstanding record. If you went to central casting, you couldn't find a 
better prospect to be Attorney General of the United States on 
substance or on qualifications. He graduated from Columbia University 
in 1963, Yale Law School in 1967, and was on the Board of Editors of 
the Yale Law Journal. With credentials from Yale, including the Board 
of Editors, and his high academic standing,

[[Page S14150]]

these are excellent qualifications. He was an associate in a major New 
York law firm for 5 years after graduating from law school. He was then 
an assistant United States Attorney for the Southern District of New 
York from 1972 to 1976 and was chief of the Official Corruption Unit 
for 2 years. Then, he returned to the practice of law for 11 years and 
became a Federal judge in 1988, serving for almost two decades, through 
2006. He was Chief Judge of the Federal Court in the Southern District 
of New York in Manhattan from 2000 to 2006 where he presided over some 
very important trials involving terrorism. The courthouse for the 
Federal court in New York was just a few blocks from the Trade Towers, 
which were victimized on September 11, 2001.
  Now, a great deal has been said about the issue of waterboarding. The 
Senator from Illinois who just spoke said the morals of our country 
will be judged by what has gone on with Judge Mukasey's confirmation 
process. We have worked through this issue, and I believe we have a 
satisfactory resolution of it, which accomplishes the substance of what 
the Senator from Illinois was decrying.
  I am opposed to waterboarding. I think waterboarding is torture. When 
the issue was before the U.S. Senate on the Military Commission Act, we 
had a vote, and this body voted 53 to 46 not to classify waterboarding 
as torture. That is what the Senate did. In another legislative matter, 
the Detainee Treatment Act, waterboarding was prohibited. But, as of 
this moment, the Congress of the United States has not spoken on the 
matter.
  Now Judge Mukasey has stated that if waterboarding is declared the 
equivalent of torture, as Attorney General he will uphold that 
congressional determination, even if the President seeks to reject the 
statute by virtue of the President's Article 2 powers as Commander in 
Chief and other inherent authority, which the President possesses under 
Article 2. Now that is exactly what the President did on the Terrorist 
Surveillance Program. The Foreign Intelligence Surveillance Act enacted 
in 1978 specifies that the exclusive way to wiretap is to go to a 
Federal judge with a statement of probable cause and get a warrant--
judicial approval--to do the wiretapping. But, President Bush said he 
had authority to disregard the statute because he had constitutional 
authority.
  As a matter of constitutional doctrine, you can't amend the 
Constitution with a statute. To amend the Constitution, you have to 
have a constitutional amendment. An amendment must pass the Congress by 
a two-thirds vote and be ratified by three-fourths of the States.
  So the President took the position that his constitutional power 
superseded the statute, and he rejected it and ignored it. I have grave 
doubts about the propriety of what the President did. We didn't find 
out about it until it was disclosed in the newspapers in mid-December 
of 2005 when we were in the midst in this Chamber of debating the 
PATRIOT Act. I chaired the Judiciary Committee, and I was at this 
podium managing that bill when the news broke in the morning papers 
that day, and a number of Senators said they were prepared to vote for 
the PATRIOT Act until they found out what had been done secretly under 
the Terrorist Surveillance Program.
  As the record shows, we didn't pass the bill until early in 2006. But 
the relevance of that procedure is that there was concern that even if 
Congress said waterboarding was torture and was therefore illegal, the 
President might seek to use his Article 2 powers to ignore that law.
  The first disclosure that former Judge Mukasey would not uphold that 
type of Presidential action came with a disclosure by Senator Schumer 
about a meeting he had with former Judge Mukasey last Friday. It 
appeared in the press that Judge Mukasey would say the congressional 
enactment was controlling. I then had a discussion by telephone with 
Judge Mukasey last Monday morning to be explicit and to confirm what I 
had read in the papers. Not wanting to rely on that, Judge Mukasey told 
me he that it was his legal judgment that Congress had the 
constitutional authority to legislate, to say waterboarding was torture 
and was, therefore, illegal. And if such legislation was enacted, then 
it was Judge Mukasey's legal judgment that the President could not 
supersede the statute and could not rely on Article 2 power to ignore 
that finding. That was confirmed in writing.
  I ask unanimous consent that a copy of that letter dated last Monday, 
November 5, be printed in the Record.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. SPECTER. I said in the letter, as the record will show, if Judge 
Mukasey had any difference with my statement, he should let me know 
promptly. I know it was received by White House personnel, and 
we communicated, staff to staff, about it, and that is a binding 
commitment. That commitment, in conjunction with Judge Mukasey's 
response to my questioning--I asked him if the President of the United 
States ignored his advice as Attorney General if and when confirmed on 
a matter of serious import, would Judge Mukasey resign as Attorney 
General, just as Attorney General Elliot Richardson had resigned on the 
Saturday Night Massacre when efforts were made to stop the 
investigation of President Nixon at that time, and Judge Mukasey said 
he would resign. So, I think we have a very solid record.

  Now, I do believe there were reasons Judge Mukasey did not express a 
judgment on waterboarding as being torture, although candidly it would 
have been my preference if he had done so and if he had agreed with my 
vote on the subject. But, Judge Mukasey said in written responses that 
he believed he could not make that pronouncement without placing people 
at risk to be sued or perhaps even criminally prosecuted. A few weeks 
ago, former Secretary of Defense Rumsfeld was in Paris at a time when 
people sought legal process against him. It was unclear whether it was 
a criminal procedure or a civil procedure, but we do know that many 
nations are exercising extraterritorial jurisdiction when they may 
consider conduct to be a violation of the law against humanity.
  We know, for example, that Israeli Prime Minister Sharon was 
indicted, I believe it was in Belgium. They couldn't serve the warrant, 
but had he gone to Belgium. He would have been subject to that process. 
We know the case of Pinochet from Chile where extraterritorial 
jurisdiction was sought as to him. So this is a matter of some 
considerable import.
  Professor Goldsmith wrote, speaking from his experience as Assistant 
Attorney General in the Office of Legal Counsel, that members of the 
administration had expressed concerns that they might be subject to 
civil liability or even criminal liability if it was later determined 
that some of their conduct was illegal. So, Judge Mukasey faced a 
situation where an expression of an opinion by him would put people at 
risk.
  Professor Goldsmith, in a book which was recently published, 
documented the concern that members of the administration had 
expressed. Judge Mukasey also sought to explain his unwillingness to 
give a legal opinion on whether waterboarding was torture because he 
hadn't been read into the program. I thought that was inadequate and 
insufficient. While it is true he was not read into the program, there 
is no doubt it would have been easy for him to have been read into the 
program. The investigation which had been conducted prior to the 
President submitting his name to the Senate as a nominee for Attorney 
General was very thorough, and there is no doubt that he would have 
been entrusted with whatever classified information was involved in 
being informed on the issue of waterboarding. So I thought that was an 
excuse and not weighty--or not a valid excuse.
  Parenthetically, I think it is worth noting that there are members of 
the Judiciary Committee who were called upon to pass on Judge Mukasey's 
qualifications who had not been read into the program on waterboarding; 
that is, to know specifically what it was, whether it was used, what it 
was all about, was it entirely hypothetical, or what the facts were. We 
have some members of the Judiciary Committee--four--who are on the 
Intelligence Committee. The chairman and I as ranking member were read 
into the program. I tried to get the administration to read

[[Page S14151]]

the members of the Judiciary Committee into the program, but the 
administration wouldn't do it. Now, they read the Intelligence 
Committee into the program, and I think the Intelligence Committee 
should have been read into the program, but the operative committee to 
pass on Judge Mukasey was not the Intelligence Committee. It was the 
Judiciary Committee. We voted on Judge Mukasey with members of the 
Judiciary Committee not knowing the specifics on waterboarding to have 
a sufficient basis, in my view, to cast an intelligent vote. But the 
administration precluded that. This evening, there will be about 80 
Senators--if they stay up until midnight, or whenever it is that we 
vote--who will be voting on Judge Mukasey and waterboarding is going to 
be a central issue of the debate tonight--without knowing the details 
of what waterboarding is.

  The brutal fact is that the administration has not given Congress the 
information Congress should have received so that we can perform our 
oversight function. The Intelligence Act requires that members of the 
Intelligence Committee be notified of matters such as the secret 
terrorist surveillance program, and it may be that a few Members of 
Congress--the Speaker of the House, the senior Republican in the House, 
the majority leader of the Senate, and the minority leader of the 
Senate--were informed about the terrorist surveillance program. It may 
be that, finally, the chairman and ranking members on the Intelligence 
Committee in both Houses were informed. But the full committee, under 
the statute, was supposed to be informed. The administration didn't 
follow the statute as they should have. It was only when the 
confirmation of General Hayden came before the Senate that the 
administration finally notified the Intelligence Committee.
  I voted against General Hayden to be Director of the CIA as a protest 
vote. I said he was well qualified for the job, and I voted against him 
as a protest because the administration had not followed the law. They 
should have informed me, as chairman of the Judiciary Committee in the 
109th Congress, and Senator Leahy, as ranking member. That is a 
statement of what might be considered as a collateral matter. It is 
relevant in this discussion because Judge Mukasey was not read into the 
program. I think he should have been. I don't know that he would have 
said anything more. But now the ball is squarely in our court--the 
congressional court. Legislation is pending that would make 
waterboarding torture and, therefore, illegal.
  This is the kind of question which I think is a quintessential 
example of what the Congress of the United States ought to decide. In a 
representative democracy, the Congress ought to make the determination 
of what is the appropriate public policy, and the Congress ought to 
assess the risk of terrorism--what is the risk to the United States?--
and then consider the conduct of waterboarding. What does it do? How 
frequently has it been used, if at all? Where is there an intent to use 
it? The Congress ought to make this evaluation and make the decision. 
We are the proper people to decide that issue. If the Congress enacts 
legislation that is signed into law, then Judge Mukasey has stated 
unequivocally that he would enforce it.
  Then there is another issue we all dance around, and that is the 
issue of the so-called ticking-bomb case. That is the situation 
described where a terrorist may come into possession of a powerful 
weapon--perhaps even a nuclear weapon--and, regrettably, that is not 
beyond the realm of possibility. There might be a situation where 
someone would know information that could stop the ticking bomb and 
injury to an enormous number of people could be prevented. What is to 
be done in that situation?
  The generalized statements that have been made by so-called leaders 
in our society are that we ought not to define that situation. They 
say, if we were to say that torture, waterboarding, or some other 
extreme form of interrogation were legal under even the most limited 
circumstances, that we would give legitimacy to waterboarding, to 
torture. And then with an exception, you find people that say--as the 
expression goes, the hole is so big, you could drive a truck through 
it. But, if this Senate and the House take up our duty to decide 
whether waterboarding is torture, we ought to make a decision as to 
whether it could be used in any circumstance. Perhaps we should decide 
it should be used in no circumstance.
  There has also been discussion about legislation to define the 
extraordinary circumstances when torture would be permitted--with a 
warrant application to a judge. We ask for judicial approval on 
wiretapping or warrants of arrest or on a variety of issues.
  Then there are some who the surmise that if the President was faced 
with a situation of a ticking bomb, it would be up to the President to 
act under those exigent circumstances, and he could be relied upon. But 
that is not so easy either because it may well be--and I think, in 
fact, is--that agents of the CIA would not undertake, under a 
Presidential order, a violation of U.S. law because no one is above the 
law. Even if the President were to authorize it, the President doesn't 
do the waterboarding or interrogation. Those people would be unwilling 
to undertake something that was a violation of law.
  There was a famous case, after World War I, where a ship was sunk by 
a submarine. The survivors in the lifeboat were at sea, and the 
submarine surfaced. The commander ordered the gunner to shoot the 
people in the lifeboat. The gunner resisted for a while, and then he 
followed his orders. He shot and killed the people in the lifeboat. The 
gunner was prosecuted, and he defended that he was following orders. 
The court said that you cannot follow illegal orders. Anybody should 
know better than to shoot people in a lifeboat.
  So we have a major issue to consider as it relates to the 
confirmation of Judge Mukasey, and I think the ball is now in our 
court. He will enforce legislation that equates waterboarding with 
torture.
  There are a couple of other points worthy of comment. I was not 
satisfied with Judge Mukasey's response to my questions on signing 
statements. We have seen that the President of the United States now 
does not follow the constitutional options when legislation is 
presented to him having been passed by both bodies, both Houses, where 
the Constitution says the President has the choice of signing it or 
vetoing it. We now find that he signs it and issues the signing 
statement, cherry-picking, deciding which of the provisions he will 
enforce and which he will not enforce.

  One of the measures passed by Congress by a 90-to-9 vote of the 
Senate was prohibiting interrogation that met certain standards. The 
President had a famed rapprochement with Senator McCain on the point. 
They came to terms. We passed the McCain language. Then the President 
issued a signing statement which, in effect, said he retained his 
Article II powers not to follow it.
  The PATRIOT Act, which came out of the committee during my tenure as 
chairman, gave the FBI substantial additional powers. In consideration 
of that, we reserved additional oversight. And then, notwithstanding 
that negotiation approved by the President's agents at the Department 
of Justice, the President issued a signing statement cherry-picking and 
leaving him free to disregard the oversight provision.
  I think Judge Mukasey should have been unequivocal in condemning that 
practice and should have said he would advise the President to either 
sign legislation or veto it but not to cherry-pick. He had a very 
artful answer where he says he will try to avoid this kind of tension 
and conflict between the executive branch and the Congress. While I 
don't like that, I don't think it is a sufficient reason to vote 
against him.
  Judge Mukasey was forthright on his views as to habeas corpus. He 
acknowledged that habeas corpus is a constitutional right, unlike his 
predecessor, who really rejected the plain English of the Constitution, 
which states that habeas corpus is a constitutional right.
  Considering all of these factors, it is my judgment, after meeting 
informally with former Federal Judge Mukasey and participating in the 
extensive hearings and reviewing answers to many written questions, 
that Judge Mukasey is well qualified to be Attorney General. I think it 
unfortunate that there will be many negative votes

[[Page S14152]]

against him. I think those negative votes will be in the context of 
this waterboarding issue, where there are very substantial emotional 
and political considerations involved, and Senators exercise rights to 
vote as they choose. But I do believe that even those who vote against 
Judge Mukasey will acknowledge his qualifications. He is well qualified 
by way of academic and professional background, and he has a very 
sterling record as a judge; that he is honest, forthright, and 
talented. He is a lawyer's lawyer or a judge's judge. When you talk to 
him or question him at a hearing, you get back very sophisticated, 
erudite answers, analytically displaying a vast knowledge of the 
Constitution and the cases which have been interpreted. What weighs 
heavily in my mind on Judge Mukasey is the urgent need of the 
Department for new leadership.
  I thank the chairman for having a special markup on Tuesday. It was 
extra work for the committee, but Senator Leahy called the Judiciary 
Committee together for an extra markup. He has exercised the leadership 
to bring this matter to a vote tonight.
  I thank the distinguished majority leader also for scheduling the 
vote, because the Department of Justice needs Judge Mukasey at work 
tomorrow morning. They need to have him sworn in sometime between the 
vote of confirmation tonight and 8 a.m. tomorrow, when people ought to 
report to work at the Department of Justice. The Department of Justice 
has been categorized as dysfunctional, in disarray. It is in urgent 
need of an Attorney General. When that is done, I think we will see 
some nominations for Deputy, which is vacant. An Associate Attorney 
General is only an acting deputy, and a number of assistants are only 
acting.
  All things considered, I think it is in the national interest that we 
confirm former Federal Judge Mukasey. I predict he will do a sterling 
job as Attorney General.
  How much time remains, Mr. President?
  The ACTING PRESIDENT pro tempore. The Senator has 2 hours remaining 
under his control.
  Mr. SPECTER. I thank the chair and yield the floor.

                               Exhibit 1


                                                  U.S. Senate,

                                 Washington, DC, November 5, 2007.
     Hon. Michael B. Mukasey,
     Avenue of the Americas,
     New York, NY.
       Dear Judge Mukasey: I think it is important to have our 
     telephone conversation of this morning on the record so I'm 
     writing to confirm the following:
       (1) In your opinion, Congress has the constitutional 
     authority to legislate that waterboarding is torture and is 
     therefore illegal; and
       (2) If such legislation is enacted, it is your opinion that 
     the President would not have the authority under Article II 
     of the Constitution to overrule that legislation.
       If I have inaccurately stated our conversation, I would 
     appreciate your prompt advice.
       As we discussed, the New York Times on Saturday quoted 
     Senator Schumer on your commitment to the same effect. If I 
     do not hear from you to the contrary, I intend to release 
     this letter to the news media because this information would 
     be important on the Senate's consideration of your 
     confirmation.
           Sincerely,
                                                    Arlen Specter.

  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized.
  Mr. LEAHY. Mr. President, how much time has been reserved for the 
Senator from Vermont?
  The ACTING PRESIDENT pro tempore. The Senator has 45 minutes.
  Mr. LEAHY. How much time is reserved overall for those in opposition 
to this nomination?
  The ACTING PRESIDENT pro tempore. An hour and 45 minutes. Twenty has 
been used, so 1 hour 25 minutes remains.
  Mr. LEAHY. I thank the Chair.
  Mr. President, this debate is as much a discussion of principles that 
are vital to American ideals and to the American soul as it is a debate 
about who is going to act as the Attorney General for the next 14 
months.
  During the Judiciary Committee's consideration of this nomination 
earlier this week, Senators Kennedy, Kohl, Feingold, Durbin, Cardin, 
Whitehouse, and I made clear the fallacy that would disregard settled 
law and discredit America's role in the struggle for liberty and human 
dignity, something we should all support.
  On the way to rationalizing support for a particular nominee, just as 
with rationalizing support for a particular piece of legislation, it 
may be tempting this once--just this once, we might tell ourselves--
tacitly to abet the arguments of those who want to define torture down 
to make it something less. Whatever the temptation--whatever the 
temptation, this once--we cannot rationalize away our core American 
ideals, the rule of law, and the principle that in America, not even 
the President is above the law.
  The President and Vice President should not be allowed to violate our 
obligations under the Convention Against Torture and the Geneva 
Conventions, should not be allowed to disregard U.S. statutes, such as 
our Detainee Treatment Act and War Crimes Act. They should not be 
allowed to overturn more than 200 years of our Nation's reverence for 
human rights and moral leadership around the world.
  The administration has compounded its lawlessness by cloaking its 
policies and miscalculations under a veil of secrecy. They left the 
Congress, they left the courts, and, most importantly, they left the 
American people in the dark about what they were doing. The President 
says we do not torture, but then he had his lawyers redefine 
``torture,'' and he had them do that in secret memos, in fundamental 
conflict with American values and law.
  Again, yesterday, I wrote to the White House counsel reiterating my 
earlier request for this administration's secret, purported 
justifications for having Americans engage in waterboarding and other 
treatment that would violate our Nation's obligations and values.
  I ask unanimous consent to have printed in the Record a copy of my 
most recent letter to Counsel Fielding on this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                 Washington, DC, November 7, 2007.
     Mr. Fred Fielding, Esq.,
     Office of the Counsel to the President,
     The White House, Washington, DC.
       Dear Mr. Fielding: I have not received a reply to the 
     letter I sent to you almost two weeks ago seeking a fuller 
     accounting of this Administration's legal justifications and 
     policies with regard to torture and interrogation. Another 
     copy of my unanswered October 25, 2007, letter is enclosed.
       Over the past few days I have read in the press that there 
     may, in fact, be three legal memoranda from the Justice 
     Department's Office of Legal Counsel in 2005, not just two, 
     that have been withheld from us. Apparently, the 
     Administration has conceded the existence of three such 
     memoranda in court filings this week. Without even an 
     accounting from you and the Administration, it is impossible 
     for me to know.
       As I have previously noted, the Committee does not yet have 
     a complete picture of the Administration's historic position 
     on the legal basis and standards for detention, transfer, and 
     interrogation in connection with counter-terrorism efforts. 
     It is important that you share with the Senate Judiciary 
     Committee all legal opinions on these issues from the Office 
     of Legal Counsel and elsewhere in the Department of Justice 
     and the Administration. I noted in my previous letter that 
     you have not, despite our repeated requests, provided us with 
     the 2005 memoranda that apparently authorize the use of 
     combinations of cruel and extreme practices. We are fast 
     approaching the one-year anniversary of my November 15, 2006, 
     request for ``any and all Department of Justice directives, 
     memoranda, and/or guidance . . . regarding CIA detention and/
     or interrogation methods.''
       I regret that you did not take the opportunity created with 
     the announced resignation of Alberto Gonzales to work with us 
     to put these matters to rest. The first step would have been 
     disclosure of the legal memoranda still being kept secret 
     from the Senate Judiciary Committee. That has yet to occur. 
     As you have recently witnessed, without these materials and a 
     shared understanding of what the Administration has been 
     doing, is doing, its justifications, its legal analysis, and 
     its purported basis for overriding our laws and treaty 
     obligations, many Members of the Committee remain very 
     concerned.
       Much of the controversy and discussion surrounding the 
     Committee's consideration of the President's nomination of 
     Michael Mukasey to serve as Attorney General arose from these 
     matters. The Administration's lack of cooperation greatly 
     contributed to the controversy and ultimately to the 
     opposition to that nomination.
           Sincerely,
                                                    Patrick Leahy,
                                                         Chairman.

  Mr. LEAHY. Mr. President, I agree with the generals, the admirals, 
and the judge advocates general that waterboarding is torture and is 
illegal. The generals, the admirals, the judge

[[Page S14153]]

advocates general say waterboarding is torture and illegal.
  I ask unanimous consent to have printed in the Record a copy of a 
letter I received from MG John Fugh, RADM Don Guter, RADM John Hutson, 
and BG David Brahms, dated November 2.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                 November 2, 2007.
     Hon. Patrick J. Leahy,
     Chairman, U.S. Senate,
     Washington DC.
       Dear Chairman Leahy: In the course of the Senate Judiciary 
     Committee's consideration of President Bush's nominee for the 
     post of Attorney General, there has been much discussion, but 
     little clarity, about the legality of ``waterboarding'' under 
     United States and international law. We write because this 
     issue above all demands clarity: Waterboarding is inhumane, 
     it is torture, and it is illegal.
       In 2006 the Senate Judiciary Committee held hearings on the 
     authority to prosecute terrorists under the war crimes 
     provisions of Title 18 of the U.S. Code. In connection with 
     those hearings the sitting Judge Advocates General of the 
     military services were asked to submit written responses to a 
     series of questions regarding ``the use of a wet towel and 
     dripping water to induce the misperception of drowning (i.e., 
     waterboarding). . . ,'' Major General Scott Black, U.S. Army 
     Judge Advocate General, Major General Jack Rives, U.S. Air 
     Force Judge Advocate General, Rear Admiral Bruce MacDonald, 
     U.S. Navy Judge Advocate General, and Brigadier Gen. Kevin 
     Sandkuhler, Staff Judge Advocate to the Commandant of the 
     U.S. Marine Corps, unanimously and unambiguously agreed that 
     such conduct is inhumane and illegal and would constitute a 
     violation of international law, to include Common Article 3 
     of the 1949 Geneva Conventions.
       We agree with our active duty colleagues. This is a 
     critically important issue--but it is not, and never has 
     been, a complex issue, and even to suggest otherwise does a 
     terrible disservice to this Nation. All U.S. Government 
     agencies and personnel, and not just America's military 
     forces, must abide by both the spirit and letter of the 
     controlling provisions of international law. Cruelty and 
     torture--no less than wanton killing--is neither justified 
     nor legal in any circumstance. It is essential to be clear, 
     specific and unambiguous about this fact--as in fact we have 
     been throughout America's history, at least until the last 
     few years. Abu Ghraib and other notorious examples of 
     detainee abuse have been the product, at least in part, of a 
     self-serving and destructive disregard for the well-
     established legal principles applicable to this issue. This 
     must end.
       The Rule of Law is fundamental to our existence as a 
     civilized nation. The Rule of Law is not a goal which we 
     merely aspire to achieve; it is the floor below which we must 
     not sink. For the Rule of Law to function effectively, 
     however, it must provide actual rules that can be followed.
       In this instance, the relevant rule--the law--has long been 
     clear: Waterboarding detainees amounts to illegal torture in 
     all circumstances. To suggest otherwise--or even to give 
     credence to such a suggestion--represents both an affront to 
     the law and to the core values of our Nation.
       We respectfully urge you to consider these principles in 
     connection with the nomination of Judge Mukasey.
           Sincerely,
         Rear Admiral Donald J. Guter, United States Navy (Ret.), 
           Judge Advocate General of the Navy, 2000-02; Rear 
           Admiral John D. Hutson, United States Navy (Ret.), 
           Judge Advocate General of the Navy, 1997-2000; Major 
           General John L. Fugh, United States Army (Ret.), Judge 
           Advocate General of the Army, 1991-93; Brigadier 
           General David M. Brahms, United States Marine Corps 
           (Ret.), Staff Judge Advocate to the Commandant, 1985-
           88.

  Mr. LEAHY. Mr. President, these distinguished military officers, flag 
officers, people who are charged with knowing what is our law, what is 
our Constitution, what are our treaty commitments, and what are the 
rules our military must follow, write with absolute clarity, and I 
quote the significant sentence from their letter:

       Waterboarding is inhumane, it is torture, and it is 
     illegal.

  They also quote the sitting judge advocates general of the military 
services from our committee's hearing last year in which they 
unanimously and unambiguously agreed that waterboarding is inhumane, it 
is illegal, it is a violation of law.
  Think for a moment, if another nation picked up an American and 
waterboarded that American and we heard about it; no Senator, no 
American would have to know the circumstances and the purported 
justifications for it. We would condemn it. All 100 of us would be on 
the floor condemning it, and 435 members of the other body would be 
condemning it. Whoever was President of the United States would condemn 
it. But you know what, that was before this debate began, and now, 
tragically, this administration has so twisted America's role and our 
laws and values that apparently our own State Department is now ordered 
they cannot say that waterboarding of an American is illegal.
  Mr. President, that is how far we have sunk. I ask unanimous consent 
to have printed in the Record a copy of a letter I sent to Secretary 
Rice protesting this order.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                 Washington, DC, November 6, 2007.
     Hon. Condoleezza Rice,
     Secretary of State,
     Washington, DC.
       Dear Secretary Rice: There are reports that one of your 
     principal aides and legal advisers, a Mr. John Bellinger, is 
     taking the legal position that he cannot say whether it is 
     permissible to waterboard Americans and that it depends on 
     the facts and circumstances. I could not disagree more 
     strongly. There are no conceivable facts or circumstances 
     that would justify waterboarding an American anywhere in the 
     world for any reason. Our treaty obligations and domestic law 
     make waterboarding illegal. Please respond without delay and 
     set this matter straight.
           Sincerely,
                                                    Patrick Leahy,
                                                         Chairman.

  Mr. LEAHY. Mr. President, senior State Department legal officers are 
told that waterboarding, which has been recognized as torture, not for 
the last 10 years or 50 years or 100 years, but has been recognized as 
torture for the last 500 years, is a ``technique'' they cannot rule out 
as something a foreign intelligence service might be justified in using 
against Americans. This is ``Alice in Wonderland.''
  Never mind that President Teddy Roosevelt, no shrinking violet he, 
prosecuted American soldiers for this more than 100 years ago. Never 
mind that we prosecuted Japanese soldiers for waterboarding Americans 
during World War II. Never mind what repressive regimes are doing to 
this day around the world. It is appalling.
  When it comes to our core values--the things that make our country 
great, that define America's place in the world--it does not depend on 
the circumstances; it depends on our core values. America, the great 
and good nation that has been a beacon to the rest of the world on 
human rights, does not torture, it should not stand for torture, and it 
should stand against torture.
  I ask unanimous consent to have printed in the Record a copy of a 
letter I received from the National Religious Campaign Against Torture, 
dated November 1.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       National Religious Campaign


                                              Against Torture,

                                 Washington, DC, November 1, 2007.
     Hon. Patrick Leahy,
     Chairman, U.S. Senate, Committee on the Judiciary, 433 
         Russell Senate Office Building, U.S. Senate, Washington, 
         DC.
       Dear Senator Leahy: The National Religious Campaign Against 
     Torture (NRCAT), a campaign of over 130 religious 
     organizations working together to abolish U.S.-sponsored 
     torture and cruel, inhuman or degrading treatment of anyone, 
     without exception, is deeply concerned about the responses 
     Judge Michael Mukasey gave both at his nomination hearing and 
     in his most recent written response on the subject of 
     torture. We believe his answers leave open the door to the 
     use of techniques by the U.S. government that would be cruel, 
     inhuman and degrading and that could amount to torture. This 
     is true not only for waterboarding, which is clearly illegal 
     and a form of torture, but also for a number of other 
     techniques we understand the CIA has used and may continue to 
     use.
       Our country already knows what happens when we have an 
     Attorney General who countenances torture and cruel, inhuman 
     or degrading treatment. We lose our moral compass; decent 
     Americans are called upon on our behalf to commit acts that 
     damage their souls; our soldiers who may be captured are 
     placed in greater jeopardy; we are shamed in the eyes of the 
     world.
       It is time to turn a new page; the confirmation of a new 
     Attorney General is such an opportunity. It would be tragic 
     to allow an individual who has not clearly rejected the 
     illegal and immoral practices of torture and cruel, inhuman 
     degrading treatment to become the leading law enforcement 
     officer of our nation.
       NRCAT members, who include representatives from the 
     Catholic, evangelical Christian, mainline Protestant, 
     Orthodox Christian, Unitarian Universalist, Jewish, Quaker,

[[Page S14154]]

     Muslim, and Sikh communities, believe that torture violates 
     the basic dignity of the human person that all religions, in 
     their highest ideals, hold dear. It degrades everyone 
     involved--policy-makers, perpetrators and victims--and it 
     contradicts our nation's most cherished values. We believe 
     that any policies that permit torture and inhuman treatment 
     are shocking and morally intolerable.
       We urge you to approve a nominee as Attorney General who is 
     unequivocal in his or her stance against the use of torture 
     and cruel, inhuman or degrading treatment.
           Sincerely,
     Linda Gustitus,
       President.
     Rev. Richard Killmer,
       Executive Director.
  Mr. LEAHY. Mr. President, what do we set as an example? We lose our 
way on this question of torture. When America arranged to have a 
Canadian citizen, changing a plane in the United States on the way to 
Canada, sent to Syria to be tortured, what did we tell the rest of the 
world? I will tell you what we told the rest of the world: Here we have 
the outrageous conduct of President Musharraf's Government in Pakistan. 
He is closing down the courts, he is closing down the opposition, he is 
closing down the press. We have to meekly say: Please don't do that; we 
do send you billions of dollars in aid; please don't destroy democracy.
  A Cabinet Minister in his Government was interviewed yesterday on a 
Canadian show. When he was asked if he was ashamed of the images the 
world was seeing of Pakistanis being clubbed by police in the streets, 
part of his reply was this: Are other countries--referring to the 
United States--ashamed of taking persons from another country to a 
third country and torturing them? Are they ashamed?
  I would like to think as Americans we hold the high moral ground, but 
we can be lectured because we have not, by the likes of a member of the 
Cabinet of a despotic regime in Pakistan, and there is no answer to it. 
There is no answer to it because what he objects to us doing is sending 
a citizen of another country who was on our land to Syria to be 
tortured, and we have no answer to that because this administration and 
this Government did it.
  I am proud to be an American. I am so happy my maternal grandparents 
immigrated to this country from Italy and gave me a chance to be an 
American, as did my great-grandparents from Ireland. I am proud of it. 
I am proud to see my children growing up as Americans, now my 
grandchildren, as I know the distinguished Presiding Officer whose 
family has been in this country much longer than mine is proud of his 
American heritage. But torture should not be what America stands for. 
Indeed, the better example is set by the Army Field Manual, which 
instructs our forces to consider how we would react if what a soldier 
is about to do to someone was done to an American soldier. How would 
our soldiers react if they found somebody waterboarding an American 
soldier? They would do everything to rescue them because it would be 
wrong and it would be illegal. It is not just illegal and wrong if 
somebody else does it, it is illegal and it is wrong if we do it.
  Sadly, when I cited this very standard in a written question to Judge 
Mukasey and asked if it would be an abuse if another country 
waterboarded an American, he sidestepped the question, and he failed to 
condemn even waterboarding of Americans. When we found our State 
Department to begin to do the same, I saw a pattern.
  In their recent letter to the nominee, Senators Warner, McCain, and 
Graham do not take that approach. They recognize, as I do and I hope 
all Senators do, that waterboarding, under any circumstances, 
represents a clear violation of U.S. law. That is what Senators Warner, 
McCain, and Graham said. As chairman of the Senate Judiciary Committee, 
I agree with them.
  When the administration and others state that we cannot state whether 
America waterboards people because it would tip off our enemies, they 
have it precisely wrong. That is about as effective as Saddam Hussein 
hinting that he had weapons of mass destruction, even though he did 
not, as he tried to impress his enemies.
  In refusing to say we do not waterboard prisoners, what do we do? We 
end up giving license to others. When the United States cannot state 
unequivocally that waterboarding is torture and illegal and will not be 
tolerated, what does that mean for other Governments? What comfort does 
that provide the world's most repressive regimes? How does it allow the 
United States, that hitherto has been a beacon for human rights, to 
criticize or lecture these repressive regimes that torture that way?
  Some have sought to find comfort in Judge Mukasey's personal 
assurance that he would enforce a future, some kind of new law against 
waterboarding if Congress were to pass one. Even some in the press have 
used that talking point from the White House. Any such prohibition 
would have to be enacted over the veto of this President, a President 
who has not ruled out the use of waterboarding.
  But the real damage in this argument is not its futility. The real 
harm is that it presupposes we don't already have laws and treaty 
obligations against waterboarding. As we know, when we enter a treaty, 
it becomes the law of the land. We have laws already against it. We 
don't need a new law. No Senator should, with any kind of clear 
conscience, abet this administration's legalistic obfuscations by 
those, such as Alberto Gonzales, who take these positions, or John Yoo 
and David Addington, by agreeing somehow that the laws we already have 
on the books do not already make waterboarding illegal. We have been 
properly prosecuting water torture for more than 100 years.
  Vote for the nominee or vote against the nominee, but don't hide 
behind some kind of a cloak and say maybe we should have a law in the 
future. We have that law. This is as if, when somebody murders somebody 
with a baseball bat, they were to say: We had a law against murder, but 
we never mentioned baseball bats. Murder is murder; torture is torture. 
Our laws make both illegal, and our laws--but especially our values--do 
not permit this to be an open question or even one that depends on who 
is doing the waterboarding. We cannot say it is wrong when other 
countries do it but, of course, it is right when we do it because our 
heart is pure. That is a prescription for disaster. That is what 
heightens the risk to American citizens and soldiers around the world, 
and it gives repressive regimes comfort, and that is something I will 
not do.
  I will not accept this fallacious argument. I will not accept this 
pretense that it is OK because we have not yet passed a law, when that 
has always been the law in the United States. It was in Theodore 
Roosevelt's day, it was when we prosecuted Japanese soldiers after 
World War II for waterboarding, and it is today.
  It would be like saying we haven't a specific law for some of the 
things done in Abu Ghraib. Of course, we had not. We knew such actions 
violated every principle of our law. Are we going to say, however, it 
was all right because we didn't have spelled out in the law every 
single thought that could be raised about torture so we could 
specifically cite to that?
  Mr. President, hasn't there been enough harm done to the United 
States by the images of Abu Ghraib? Hasn't there been enough harm done 
to the United States by this Government intentionally taking a Canadian 
citizen and sending that citizen to Syria to be tortured? Hasn't there 
been enough harm done to this country that we don't need to have 
Senators stand on the floor of the Senate and say: Well, maybe sometime 
in the future we should have a law against waterboarding, when our top 
military and everybody else all agree this is already against the law.
  Now, I wish I could support Judge Mukasey's nomination because I like 
him. I like his legal abilities. I like his background as a prosecutor. 
He is a tough, no-nonsense prosecutor. But we are dealing with an 
administration that has been acting outside the law, an administration 
that has now created a confirmation contortion. Mr. President, I am not 
a moral contortionist, and I am not going to aid and abet the 
confirmation contortions of this administration. When many of us voted 
to confirm General Petraeus, the administration turned around and, for 
political advantage, tried to claim when we voted to confirm the 
general, we also voted for the President's war policies. Well, I did 
not vote for a war in Iraq. I voted against it. And I do not vote to 
allow torture. And just as I do not support this President's Iraq 
policy, I do not support his torture policy

[[Page S14155]]

or his views of unaccountability or unlimited Executive power.
  No one is more eager to restore strong leadership and independence to 
the Department of Justice than I. For almost 3 years, it has been 
leaderless. For almost 3 years, it has engaged in every single effort 
not to follow the law, but to find ways around the law. That has 
created a terrible problem of morale among the very wonderful men and 
women, the talented men and women who work there.
  We all know what we need most right now is an Attorney General who 
believes and understands there must be limitations on Executive power. 
Whether the Executive is a Republican or a Democratic President, there 
have to be limitations. America needs to be certain of the bedrock 
principles of our laws and our values and that no President, no 
American, can be authorized to violate them. In America, no one is 
above the law. The President of the United States is not above the law. 
He is not allowed to place anybody else above the law. That is what has 
maintained this democracy for over 200 years.
  When we began considering this nomination, I observed that the 
Department of Justice has experienced an unprecedented crisis of 
leadership. It is a crisis that has come more and more into view as 
Senator Specter and I have led a bipartisan group of concerned Senators 
serving on our Judiciary Committee to consider a U.S. attorney firing 
scandal, a confrontation over the legality of the administration's 
warrantless wiretapping program, and the politicization of hiring at 
the Department of Justice. What we have seen is not just poor 
leadership, but the complete breakdown of the principles that have 
always embodied the Department of Justice and the position of Attorney 
General.
  For me, the issue has never been personal to Alberto Gonzales. The 
Judiciary Committee's investigations into the Department's many 
scandals were not designed to force the resignation of Alberto 
Gonzales, but rather to restore the integrity and the mission of the 
Department of Justice. My goal was not to force his resignation but to 
restore the Department of Justice. That the administration had him 
remain more than 6 months after the U.S. attorney firing scandal was 
known continued the harm and forestalled the restoration of order.
  It was not just the fact that he lost my confidence that forced him 
to leave. It was not the Senate passing a resolution of no confidence. 
Rather it was our bipartisan efforts in which Republicans and Democrats 
who care about Federal law enforcement and the Department of Justice 
joined together to press for accountability.
  The issue during the Senate confirmation of Alberto Gonzales remains 
today. The Department of Justice has always set out to enforce the law 
and to ensure that no one, not even the President, is above the law. As 
we consider the nomination of Michael Mukasey, we must determine what 
kind of Attorney General he would be and whether he will stand for the 
rule of law against the demands of this White House.
  I began my consideration of this nomination as I did with the last 
Attorney General nomination, hoping to be able to support the nominee. 
After the hearing for the last nominee in 2005, I decided that I could 
not vote for the confirmation of Alberto Gonzales. I did so noting, as 
Justice James Iredell had in 1792, that the person who serves as 
Attorney General ``is not called Attorney General of the President, but 
Attorney General of the United States.'' This is a different kind of 
Cabinet position, distinct from all the others, and it requires greater 
independence. The departing Attorney General never understood this. 
Instead, he saw his role as a facilitator for this White House's 
overreaching policies and partisan politics.
  The crisis of leadership that led to the resignation of the entire 
senior leadership of the Department and their staffs, as well as Karl 
Rove and his two top aides at the White House, has taken a heavy toll 
on the tradition of independence that had long guided the Department of 
Justice and protected it from political influence. As a former 
prosecutor I know that the dismay runs deep, from the career attorneys 
at Justice and in our U.S. attorney offices, straight down to the cops 
on the beat.
  The Senate should only confirm a nominee who will bring a commitment 
to the rule of law and American liberties and values back to the 
Justice Department. As I have reviewed Judge Mukasey's nomination, I 
have found much to like. He has impressive credentials, vast experience 
as a lawyer and a judge, and a refreshingly straightforward manner. I 
liked him when I met him, and I am convinced that he is a man of 
integrity and would not be governed merely by personal or political 
loyalty.
  At his hearing, he answered firmly that he would not tolerate 
political meddling in investigations or litigation and would end hiring 
based on politics, and he was clear in asserting that he would resign 
if the President insisted on going forward with a course of action he 
had found to be illegal. These were encouraging signs.
  But I am concerned that he shares with this administration a view of 
virtually unbridled executive power and authority. In these uncertain 
times, it may be tempting simply to defer the Commander in Chief, but I 
believe that in difficult times, it is more important than ever to 
insist on the rule of law and the principles that have made our country 
unique in the world for more than 200 years. Even Judge Mukasey's 
strong promise to resign if the President insists on an illegal course 
of action loses its power if he believes the President to be largely 
unconstrained by law. If nothing the President can do would be illegal, 
there would never be an occasion for him to make such a principled 
stand.
  That is why I was so disappointed by Judge Mukasey's answers 
suggesting that he sees little occasion to check the President's power. 
I was disturbed by his insistence that, with regard to warrantless 
wiretapping and the Foreign Intelligence Surveillance Act, the 
President has inherent authority outside of the statute and could 
authorize and immunize conduct contrary to the law. I fail to see a 
valid distinction justifying his assertion that the President could 
have the power of an executive override in the surveillance context, 
but not in the torture context, and I worry about where his reasoning 
could lead us.
  I was disappointed in his abandoning his initial answer to parrot the 
White House's conclusion that a U.S. attorney could not bring a 
congressional contempt citation to a grand jury. That is the mechanism 
in the law that allows an independent court the opportunity to referee 
any claim of executive privilege that the executive and legislative 
branches could not resolve amongst themselves. He, instead, insisted 
that the solution in such a situation was an ``accommodation'' of the 
kind that this administration has been consistently unwilling to make. 
Once again, his position leads me to worry that he would allow this 
President's unprecedented assertions of power to go completely 
unchecked.
  I was saddened to hear Judge Mukasey say that he apparently would not 
support habeas corpus rights for detainees, rejecting a core legal 
right and a basic American value which Senator Specter and I have 
fought so hard to restore. I was disappointed to see him echo in 
response to my questions the same administration policy on 
extraordinary rendition that has led to several disgraceful episodes 
for this Nation and fail to commit even to review the case of Maher 
Arar, a prominent and disturbing episode of rendition.
  Which brings me back to the issue that came to dominate the 
consideration of this nomination, the issue of torture. The United 
States does not torture. The United States does not inflict cruel, 
inhuman, and degrading treatment. This is part of the moral fiber of 
our country and our historical place as a world leader on human rights, 
and it has long been fixed in our laws, our Constitution, and our 
values.
  That is why I was so saddened when Judge Mukasey, given repeated 
opportunities, refused to say that the ancient and extreme technique of 
waterboarding, a brutal practice in which a person is subjected to 
simulated drowning, is illegal. There may be interrogation techniques 
that require close examination and extensive briefings. Waterboarding 
is not among them. Judge Mukasey does not need a

[[Page S14156]]

classified briefing to learn about waterboarding. He could go to the 
library to read about waterboarding that was done as far back as the 
Spanish Inquisition, or about American prosecutions of Japanese war 
criminals for waterboarding after World War II. Evan Wallach, a judge 
at the U.S. Court of International Trade, a professor who teaches the 
law of war, and a former JAG officer, wrote an insightful column in 
last Sunday's Washington Post that I ask unanimous consent be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    Waterboarding Used To Be a Crime

                           (By Evan Wallach)

       As a JAG in the Nevada National Guard, I used to lecture 
     the soldiers of the 72nd Military Police Company every year 
     about their legal obligations when they guarded prisoners. 
     I'd always conclude by saying, ``I know you won't remember 
     everything I told you today, but just remember what your mom 
     told you: Do unto others as you would have others do unto 
     you.'' That's a pretty good standard for life and for the 
     law, and even though I left the unit in 1995, I like to think 
     that some of my teaching had carried over when the 72nd 
     refused to participate in misconduct at Iraq's Abu Ghraib 
     prison.
       Sometimes, though, the questions we face about detainees 
     and interrogation get more specific. One such set of 
     questions relates to ``waterboarding.''
       That term is used to describe several interrogation 
     techniques. The victim may be immersed in water, have water 
     forced into the nose and mouth, or have water poured onto 
     material placed over the face so that the liquid is inhaled 
     or swallowed. The media usually characterize the practice as 
     ``simulated drowning.'' That's incorrect. To be effective, 
     waterboarding is usually real drowning that simulates death. 
     That is, the victim experiences the sensations of drowning: 
     struggle, panic, breath-holding, swallowing, vomiting, taking 
     water into the lungs and, eventually, the same feeling of not 
     being able to breathe that one experiences after being 
     punched in the gut. The main difference is that the drowning 
     process is halted. According to those who have studied 
     waterboarding's effects, it can cause severe psychological 
     trauma, such as panic attacks, for years.
       The United States knows quite a bit about waterboarding. 
     The U.S. government--whether acting alone before domestic 
     courts, commissions and courts-martial or as part of the 
     world community--has not only condemned the use of water 
     torture but has severely punished those who applied it.
       After World War II, we convicted several Japanese soldiers 
     for waterboarding American and Allied prisoners of war. At 
     the trial of his captors, then-Lt. Chase J. Nielsen, one of 
     the 1942 Army Air Forces officers who flew in the Doolittle 
     Raid and was captured by the Japanese, testified: ``I was 
     given several types of torture. . . . I was given what they 
     call the water cure.'' He was asked what he felt when the 
     Japanese soldiers poured the water. ``Well, I felt more or 
     less like I was drowning,'' he replied, ``just gasping 
     between life and death.''
       Nielsen's experience was not unique. Nor was the 
     prosecution of his captors. After Japan surrendered, the 
     United States organized and participated in the International 
     Military Tribunal for the Far East, generally called the 
     Tokyo War Crimes Trials. Leading members of Japan's military 
     and government elite were charged, among their many other 
     crimes, with torturing Allied military personnel and 
     civilians. The principal proof upon which their torture 
     convictions were based was conduct that we would now call 
     waterboarding.
       In this case from the tribunal's records, the victim was a 
     prisoner in the Japanese- occupied Dutch East Indies:
       A towel was fixed under the chin and down over the face. 
     Then many buckets of water were poured into the towel so that 
     the water gradually reached the mouth and rising further 
     eventually also the nostrils, which resulted in his becoming 
     unconscious and collapsing like a person drowned. This 
     procedure was sometimes repeated 5-6 times in succession.
       The United States (like Britain, Australia and other 
     Allies) pursued lower-ranking Japanese war criminals in 
     trials before their own tribunals. As a general rule, the 
     testimony was similar to Nielsen's. Consider this account 
     from a Filipino waterboarding victim:
       Q: Was it painful?
       A: Not so painful, but one becomes unconscious. Like 
     drowning in the water.
       Q: Like you were drowning?
       A: Drowning --you could hardly breathe.
       Here's the testimony of two Americans imprisoned by the 
     Japanese: They would lash me to a stretcher then prop me up 
     against a table with my head down. They would then pour about 
     two gallons of water from a pitcher into my nose and mouth 
     until I lost consciousness. And from the second prisoner: 
     They laid me out on a stretcher and strapped me on. The 
     stretcher was then stood on end with my head almost touching 
     the floor and my feet in the air. . . . They then began 
     pouring water over my face and at times it was almost 
     impossible for me to breathe without sucking in water.
       As a result of such accounts, a number of Japanese prison-
     camp officers and guards were convicted of torture that 
     clearly violated the laws of war. They were not the only 
     defendants convicted in such cases. As far back as the U.S. 
     occupation of the Philippines after the 1898 Spanish-American 
     War, U.S. soldiers were court-martialed for using the ``water 
     cure'' to question Filipino guerrillas.
       More recently, waterboarding cases have appeared in U.S. 
     district courts. One was a civil action brought by several 
     Filipinos seeking damages against the estate of former 
     Philippine president Ferdinand Marcos. The plaintiffs claimed 
     they had been subjected to torture, including water torture. 
     The court awarded $766 million in damages, noting in its 
     findings that ``the plaintiffs experienced human rights 
     violations including, but not limited to . . . the water 
     cure, where a cloth was placed over the detainee's mouth and 
     nose, and water producing a drowning sensation.''
       In 1983, federal prosecutors charged a Texas sheriff and 
     three of his deputies with violating prisoners' civil rights 
     by forcing confessions. The complaint alleged that the 
     officers conspired to ``subject prisoners to a suffocating 
     water torture ordeal in order to coerce confessions. This 
     generally included the placement of a towel over the nose and 
     mouth of the prisoner and the pouring of water in the towel 
     until the prisoner began to move, jerk, or otherwise indicate 
     that he was suffocating and/or drowning.''
       The four defendants were convicted, and the sheriff was 
     sentenced to 10 years in prison.
       We know that U.S. military tribunals and U.S. judges have 
     examined certain types of water-based interrogation and found 
     that they constituted torture. That's a lesson worth 
     learning. The study of law is, after all, largely the study 
     of history. The law of war is no different. This history 
     should be of value to those who seek to understand what the 
     law is--as well as what it ought to be.

  Mr. LEAHY. More than 100 years ago, in 1901 and 1902, U.S. military 
commissions charged American officers with waterboarding detainees in 
the Philippines, and President Theodore Roosevelt wrote:

       Great as the provocation has been in dealing with foes who 
     habitually resort to treachery, murder and torture against 
     our men, nothing can justify the use of torture or inhuman 
     conduct of any kind on the part of the American Army.

  This country's abhorrence for cruel treatment of detainees goes back 
further still to General George Washington who wrote of captured troops 
during the Revolutionary War:

       Treat them with humanity, and let them have no reason to 
     complain of our copying the brutal example of the British 
     Army in their treatment of our unfortunate brethren.

  Those are American standards and American values that should not be 
compromised.
  As RADM John Hutson, former Judge Advocate General of the Navy, 
testified to the Judiciary Committee:

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

  Judge Mukasey acknowledged that, in evaluating interrogation 
techniques, we look to standards such as whether the conduct ``shocks 
the conscience,'' whether it is ``outrageous,'' or whether it is ``for 
the purpose of humiliating and degrading the detainee.'' He was 
unwilling, though, to say that waterboarding meets these standards. To 
me, it is not a hard call that waterboarding shocks the conscience, 
that it is outrageous, that it humiliates and degrades detainees. I do 
not believe that the question whether waterboarding is illegal is 
subject to a balancing test. It is. Indeed, it is that kind of 
``balancing test'' that has allowed this President to claim the 
discretion to commit so many abuses that have brought such disgrace on 
this great country.
  Senator McCain, who knows too much about the issue of torture, said 
recently:

       Anyone who knows what waterboarding is could not be unsure. 
     It is a horrible torture technique used by Pol Pot and being 
     used on Buddhist monks as we speak. People who have worn the 
     uniform and had the experience know that this is a terrible 
     and odious practice and should never be condoned in the U.S. 
     We are a better nation than that.

  I agree.
  Nothing is more fundamental to our constitutional democracy than our 
basic notion that no one is above the law. This administration has 
undercut that precept time after time. They are now trying to do it 
again, with an issue as fundamental as whether the United States of 
America will join the ranks

[[Page S14157]]

of those governments that approve of torture. That is why I will vote 
no on the President's nomination.
  Mr. President, I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, before yielding 20 minutes to the 
distinguished Senator from California, I praise Senator Feinstein for 
her work on the confirmation of Judge Mukasey. As is customary for 
Senator Feinstein, she is present at all the hearings, at all the 
Judiciary Committee business, and comes to the meetings extraordinarily 
well prepared. I think she has a natural advantage, however, because 
she is not a lawyer.
  It is a very difficult matter in this body to state the facts and to 
cross party lines, and to do so requires a number of factors. It 
requires a lot of confidence and judgment, and it requires a lot of 
courage to stand up as one of very few.
  Her vote and Senator Schumer's vote were indispensable to move the 
nomination to the Senate floor. So she has 20 minutes.
  Mrs. FEINSTEIN. I thank the ranking member of the Judiciary 
Committee.
  Mr. President, shortly the Senate will vote on whether to confirm 
Michael Mukasey as the next Attorney General or whether to leave the 
Department of Justice without a real leader for the next 14 months.
  I believe that is the issue. I will vote to confirm Judge Mukasey.
  For me, the Department of Justice has always been the beacon of law 
enforcement and justice around the world. I have always truly believed 
we had a state-of-the-art system of justice that functioned 
independently of whoever happened to hold the White House or whoever 
was in the Congress. This beacon has been dimmed in the last 7 years, 
and I am one who finds the Department in disarray today.
  I think the real issue before us today is: Can this nominee be a 
strong and independent leader of the Justice Department in the 
remaining time of this administration? Can he depoliticize the 
Department? Can he restore its morale? Will he be independent from the 
White House?

  If your answer is yes, then I believe we should vote for him. If it 
is no, then you don't mind an Acting Attorney General for the next 14 
months.
  Ten of the most important positions in the Department today have no 
permanent person serving but are either acting or interim. Mr. 
President, 21 out of 93 U.S. Attorney positions are vacant, and only 
two nominees are pending before the Senate for confirmation.
  Cases have been brought based on partisan considerations instead of 
the facts and the law. U.S. Attorneys who did not initiate partisan 
prosecutions were summarily fired. The Civil Rights Division has been 
weakened and politicized.
  Judge Mukasey has shown he will be a strong and independent Attorney 
General.
  He couldn't be any more different from Alberto Gonzales. Alberto 
Gonzales owed his political career, and his legal career to a great 
extent, to President Bush. Judge Mukasey does not. He has followed an 
independent path. And he has been, for 18 years, a Federal district 
court judge--yes, following the rule of law, not the rule of man. He 
has stood on his own, he has litigated on his own, he has judged on his 
own.
  Judge Mukasey, in my view, is going to be a very different Attorney 
General. And it is hard for me to understand why everyone in this body 
doesn't come to the same conclusion just by judging his background 
against the background of the prior Attorney General. That is very hard 
for me to understand. Their backgrounds--their legal backgrounds, their 
service backgrounds--are so entirely different.
  If you read the 178 pages of answers to questions that were submitted 
by Senators, some as many as 30, 35 questions, you see the independence 
of Judge Mukasey. In response to question 20 by Senator Kennedy, Judge 
Mukasey said this:

       There can be no political litmus test for the hiring of 
     career civil service employees. This is, and must be, a 
     bedrock principle.

  He added that he would have ``zero tolerance'' in this area.
  Isn't that what we want?
  On the issue of politically motivated prosecutions, which, as I have 
said, I believe there have been by this department, he said, in the 
transcript, dated 10/17/07, page 19:

       Partisan politics plays no part in either the bringing of 
     charges or the timing of charges.

  And in response to question 20(a) by Senator Durbin he also said he 
would recommend the firing of any U.S. Attorney who brought or planned 
to bring a case for partisan gain.
  Isn't that what we want?
  With regard to election crime prosecutions, he wrote this:

       The closer to an election, the higher the standard that 
     must be met for charges to be brought.

  That was in response to question no. 18 from Senator Kennedy.
  In addition, Judge Mukasey made it clear he will work to fix the many 
problems that have arisen in the Department's Civil Rights Division. He 
wrote this to us:

       The Civil Rights Division occupies a crucial place in the 
     Department precisely because it continues to carry out the 
     work of the civil rights movement by enforcing the Nation's 
     civil rights laws. I strongly support the mission of the 
     Civil Rights Division and will ensure that it has the tools 
     and resources it needs to fulfill its mandate.

  This was in answer to a question submitted by Senator Leahy.
  I think these answers alone show it is not going to be business as 
usual in the Department of Justice.
  Isn't that what we want?
  Now, the President has said publicly he will not send another nominee 
to the Senate. So what does that mean? It means if we don't confirm 
this nominee, we will effectively have an Acting Attorney General for 
the remaining 14 months of this President's tenure.
  And what does that mean? It could likely mean that Peter Keisler, who 
has been an architect of Bush administration policies at DOJ for more 
than 5 years, will remain as Acting Attorney General for the rest of 
this administration.
  Is that what we want?
  It means most likely there will be recess appointments this winter 
for the 10 major leadership positions in the Department.
  And what does that mean? Simply stated: The administration could put 
in place the most egregious and political leadership, and we--the 
Senate--could do nothing about it. We would have reduced transparency 
and reduced congressional oversight.
  Now this is the realpolitik. This is the likelihood, should Judge 
Mukasey fail confirmation.
  I believe it is the fundamental and driving factor for confirmation 
of this nominee. Not to confirm him will leave this vital department 
open to a continuation of egregious past actions, and we have railed 
against those past actions for years now. We have a chance to make a 
change.
  We don't select the nominee, the President selects the nominee.
  Does he have failed character? No. Does he lack in experience? No. 
Does he have the temperament to be Attorney General? He has proven it 
with 18 years as a Federal judge.
  Does he know one of the most important areas of the law--national 
security law? He has tried some of the major terrorist cases that have 
been tried in Article III courts in the United States of America, and 
defendants have gone to prison.
  Now, I have seen people pound their breasts here on torture. And none 
of us want torture.
  There is a difference between U.S. law and treaty law. We have passed 
certain U.S. laws. We have passed a Military Commissions Act. That is a 
law of the United States of America. We have passed the Detainee 
Treatment Act. That is a law of the United States of America. The 
Detainee Treatment Act prohibits waterboarding for any military 
personnel anywhere in the world.
  So, to the opponents of this nomination: We have passed a law. They 
say it is not necessary to pass a law, but in fact we have passed a law 
prohibiting waterboarding. And Judge Mukasey has said the Detainee 
Treatment Act is binding on the President and binding on this country.
  The one exception is, there is no U.S. law that deals with the CIA. 
That is the exception. There are prestigious human rights groups that 
say it

[[Page S14158]]

doesn't matter; the Geneva Conventions and the Conventions Against 
Torture prevail. The President is saying I have Article II authority, 
and AUMF authority, and my view of Presidential power.
  So what will solve it? A constitutional confrontation? The Supreme 
Court? What solves it?
  My belief is, it is so easy: Instead of pounding our chests, simply 
do what we did in the Detainee Treatment Act, but do it for the CIA and 
prohibit waterboarding. End of debate.
  Some people want to keep the issue alive rather than solve the 
problem. I am not one of those people. I believe we should end the 
ambiguity, and simply prohibit waterboarding across the board.
  I do not believe Judge Mukasey should be denied confirmation for 
failing to provide an absolute answer on this one subject.
  Nobody should think anything else is happening tonight. He would be 
denied confirmation because he said, I would like an opportunity to 
look at these laws, to look at these treaties, to read the legal 
opinions that have been written, and then have time to make up my mind.
  Maybe we will want people to snap to and issue immediate judgments. 
This man has been a judge for 18 years. Maybe he likes to consider the 
facts before he makes a decision. I don't think that should be 
disqualifying.
  We can bring him before the Judiciary Committee in late January and 
simply say: Judge Mukasey, now-Attorney General Mukasey, you have had 
an opportunity to look at the law. What is your opinion?
  At the same time, I can say to you quite honestly, I believe 
waterboarding is illegal. I don't think it should be countenanced by 
the United States of America. I am not a lawyer, and I have not been 
for 18 years--or even 1 year--a Federal judge.
  I believe waterboarding is prohibited under the Convention Against 
Torture and the Geneva Conventions. But it is not prohibited by name. 
It is prohibited in terms of its effects. There is a certain grayness 
for some--for some.
  The opponents of this nomination have not given us any reason to 
think an acting or interim Attorney General would give us a better 
answer about waterboarding.
  As a matter of fact, I would hazard a guess they would not. I would 
hazard a guess that if this nominee goes down, the exact same policies 
that have characterized the last 7 years will continue for the next 14 
months. Am I being too abrupt to suggest we are missing something, that 
we should not get overwhelmed by the pounding of the chest against 
torture--that this is our chance for change?
  If Judge Mukasey were not a respected judge, if he didn't have the 
legal background, if he didn't have the streak of independence--and 
read 178 pages of questions and answers and you will see that streak of 
independence--I would tend to agree with some of what has been said 
here. But I do not, because I seriously believe this is the only chance 
this Senate is going to be offered to put new leadership in the 
Department of Justice.
  If, in fact, you believe it is in disarray, then there is only one 
action to take. If you believe it has been politicized, there is only 
one action to take.
  The former Attorney General has not been independent, and he said he 
wore two hats--one serving the White House and one serving the people. 
If you believe there is only one hat an Attorney General can wear, and 
that is serving the people, then you have no choice other than Judge 
Mukasey. That is because otherwise, there will be an Acting Attorney 
General, not subject to confirmation, not subject to questioning, not 
subject to any kind of oversight--but, again, an arm of the White 
House.
  Most of the major newspapers in my State have editorialized in favor 
of Judge Mukasey. This is what the San Diego Union-Tribune had to say 
about him:

       Torture is antithetical to American values. President Bush 
     ought to issue an Executive order explicitly outlawing 
     waterboarding. That said, Mukasey is not to blame for the 
     Bush administration's interrogation policies. In his 
     confirmation hearings, he has demonstrated a firm commitment 
     to defend the Constitution. He merits confirmation by the 
     Senate.

  They got it.
  The Detroit Free Press had this to say:

       As Attorney General, Mukasey can be expected to fight hard 
     for what's legal rather than what's expedient.

  Don't we want that?

       At least that's a step toward restoring the rule of law in 
     the last 14 months of the Bush administration. The full 
     Senate should confirm Mukasey, lest the president's next pick 
     be someone with a more malleable sense of right and wrong.

  Then, a paper from my State, The Sacramento Bee, got it right:

       As a replacement for Alberto Gonzales, Michael Mukasey, the 
     nominee for U.S. attorney general, would bring a restorative 
     independence of mind to the job. . . . Mukasey appears likely 
     to operate in the open and with a higher respect for the 
     system of the U.S. Government than for personal ties.

  A critical question.

       We would expect him to urge the president to work with 
     Congress. The Senate should confirm Mukasey to begin the 
     cleanup at Justice.

  This is the only chance we have. It is not as if we can turn him down 
and the administration is going to send us another nominee. They have 
already said they will not.
  I do not believe that voting down this nominee will do even a bit of 
good in preventing torture. No one has explained why more of the same 
at the Justice Department would be better than putting Judge Mukasey in 
charge.
  I do believe he will be a truly nonpolitical, nonpartisan Attorney 
General; that he will make his views very clear; and that, once he has 
the opportunity to do the evaluation he believes he needs on 
waterboarding, he will be willing to come before the Judiciary 
Committee and express his views comprehensively and definitively.
  In conclusion, this nominee had no part in the administration's 
policies or legal opinions with respect to torture. We should not blame 
him for them. How can this man be the standard-bearer for torture? He 
is not. Why is he being treated as such?
  We should give this nominee an opportunity to look at these treaties, 
look at the laws, read the opinions, and we should do what we are here 
to do--legislate and prohibit waterboarding across the board.
  I thank the ranking member.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from New Jersey is 
recognized.
  Mr. MENENDEZ. Mr. President, I ask unanimous consent I control the 
time allocated to Senator Reed of Rhode Island, who has indicated he 
will not be using that time.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. MENENDEZ. Mr. President, I further ask unanimous consent that the 
next Democratic speakers be the following: Senators Cardin, Boxer, 
Kennedy, Salazar and Sanders but not necessarily in that order.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, would the sequence permit alternating 
between those four against Judge Mukasey?
  Mr. MENENDEZ. It would.
  The ACTING PRESIDENT pro tempore. The order would so provide.
  Mr. SPECTER. So provided, for alternation?
  The ACTING PRESIDENT pro tempore. For alternation.
  Mr. SPECTER. I thank the Chair, thank the Senator from New Jersey, 
and pardon the interruption.
  The ACTING PRESIDENT pro tempore. The Senator from New Jersey is 
recognized.
  Mr. MENENDEZ. Mr. President, how much time do I have?
  The ACTING PRESIDENT pro tempore. Fifteen minutes.
  Mr. MENENDEZ. Mr. President, I rise today to express my opposition to 
the nomination of Judge Michael Mukasey to be the next Attorney General 
for the United States. This has not been an easy decision for me to 
make.
  I met Judge Mukasey before the judiciary hearings and liked him 
immensely on a personal level. We discussed the unprecedented and 
extremely harmful politicization that that has occurred within the 
Justice Department since the beginning of the

[[Page S14159]]

Bush administration. I was encouraged by the steps he said he would 
take to reverse it. We talked about the problems of leaking secret 
grand jury information, and I was impressed by his commitment to 
investigate any allegations of grand jury leaks and to terminate any 
responsible prosecutors.
  In fact, after my meeting, I thought that I could comfortably vote to 
confirm Judge Mukasey as our next Attorney General. But, then came the 
judiciary hearings.
  On the second day of the hearings, Judge Mukasey was specifically 
asked whether waterboarding was illegal. Now, before I get to Judge 
Mukasey's answer, let me describe what waterboarding is. And, let me 
make clear that my description contains no classified information--
nothing that Judge Mukasey would need special security clearance to 
know.
  The term waterboarding can be used to describe several different 
interrogation techniques. In one, the victim is immersed in water. In 
another, water is forced into the victim's nose and mouth. In the 
third, water is poured onto material--like cellophane--that is placed 
over the victim's face so that the victim inhales and swallows the 
water.
  Regardless of which technique is used, the victim experiences the 
sensations of drowning: they struggle, they panic, they hold their 
breath. They inhale water into their lungs--they vomit and sometimes 
black out. This is not simulated drowning. It is simulated death. The 
drowning is real.
  Despite this public knowledge of what constitutes waterboarding, 
Judge Mukasey refused to say whether waterboarding was illegal. 
According to the judge ``hypotheticals are different from real life.'' 
Therefore whether waterboarding was illegal would depend on ``the 
actual facts and circumstances''--things he did not know I have a hard 
time understanding what facts and circumstances could make the 
procedures I just described legal. I have a hard time understanding 
what facts and circumstances could make them somehow not cruel and 
inhumane. The only thing I don't have a hard time understanding is why 
Judge Mukasey's evasive and non-committal comments sound so familiar.
  We have heard them before and all too often. Time and time again, 
other members of the Bush administration have played word games to 
justify their use of illegal or inappropriate interrogation techniques.
  Judge Mukasey tried to backpedal by saying that he found 
waterboarding personally repugnant. Well, as many of us know, whether 
someone finds a law personally repugnant often has no impact on whether 
that person will enforce the law. Whether they find an action 
personally repugnant often has no impact on whether they will prosecute 
that action.

  Judge Mukasey also said he would uphold any law that Congress passes 
in the future outlawing waterboarding. I am not sure how reassuring 
this statement is, since waterboarding is already illegal in the United 
States. Why should Congress have to pass a law prohibiting something 
that is already illegal?
  Judge Mukasey should be well aware that waterboarding is illegal. On 
October 31, Senators McCain, Graham, and Warner--all experts in the 
area of interrogation and military justice--wrote a letter to Judge 
Mukasey stating, without a shadow of a doubt that ``waterboarding, 
under any circumstances, represents a clear violation of U.S. law.'' 
And my colleagues should know this. They authored the 2005 prohibition 
on cruel, inhuman, and degrading treatment that the President signed 
into law. During the debate, they made it very clear that the so-called 
``McCain amendment'' prohibits waterboarding or other extreme 
techniques that ``shock the conscience.''
  I ask unanimous consent that a letter concerning waterboarding from 
Senators McCain, Warner and Graham and letters of opposition and 
concern from the American-Arab Anti-Discrimination Committee and the 
American Psychological Association be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. MENENDEZ. Knowing what we know about waterboarding, there is no 
way anyone can argue that it does not shock the conscience.
  The McCain amendment is not the only provision of U.S. law 
prohibiting waterboarding. The 2006 Military Commissions Act clearly 
prohibits the practice. It enumerates the grave breaches of common 
article III of the Geneva Conventions that constitute offenses under 
the War Crimes Act. And, it explicitly prohibits acts that inflict 
``serious and nontransitory mental harm.'' As my colleagues stated so 
clearly in their letter ``Staging a mock execution by inducing the 
misperception of drowning is a clear violation of this standard.''

  In fact, the U.S. has successfully prosecuted individuals who have 
engaged in waterboarding. After World War II, U.S. Military Commissions 
accused and successfully convicted Japanese soldiers for torturing 
American prisoners through the use of waterboarding. How can we stand 
here over 60 years later and confirm an individual to be our country's 
highest ranking law enforcement official if he will not enforce laws we 
have already prosecuted?

  There is no reason to believe that waterboarding is anything but 
illegal. There is no compelling argument that it could ever be 
consistent with U.S. law. There is no ambiguity here. No shades of 
gray. It is clear to me that water boarding is illegal. It is clear to 
my colleagues Senators McCain, Graham, and Warner that waterboarding 
violates U.S. law. The only person that it is not clear to is Judge 
Mukasey.
  I have spent some time trying to understand why Judge Mukasey refused 
to confirm something that is so clear under our laws. The only thing I 
can come up with is that his statement is consistent with the current 
Bush administration policy. It protects administration officials who 
have admitted waterboarding occurred on their watch, and it tacitly 
permits President Bush to continue utilizing waterboarding as an 
interrogation technique.
  It strikes me as more than a little coincidental that on his first 
day of testimony before the Judiciary Committee, Judge Mukasey was not 
afraid to depart with administration policy and assert his 
independence. Yet on the second day of testimony, he all of a sudden 
began to play the role of loyal footsoldier.
  One has to wonder whether this change of heart occurred under 
pressure from the administration. If nothing else, it certainly makes 
me wonder whether Judge Mukasey will be as independent of a thinker and 
an actor as he led us all to believe he would be.
  I hope that I am wrong about Judge Mukasey. This is a critical point 
in history for the Justice Department. Since the beginning of the Bush 
administration, we have seen the influence of political appointees 
expand exponentially. We have seen good, qualified, dedicated 
prosecutors fired and replaced by Bush loyalists. We have seen the 
number of civil rights prosecutions drop, and we have seen clearly 
discriminatory voter I.D. laws approved by partisan political 
appointees over the objections of experienced career employees.
  The Justice Department clearly needs new leadership. It needs to be 
cleaned up. It needs someone who will not only stop the continuing 
politicalization but reverse the effects of what has already happened.
  If confirmed, I hope that Judge Mukasey will be that kind of leader. 
I hope that he will exhibit the independence and honesty that he said 
he would when I met with him. I hope he is as committed to upholding 
the laws of the United States as Attorney General as he appeared to be 
as a United States Judge. I hope that his statements on waterboarding 
are an exception to, not an indication of, the role he will play as 
Attorney General.
  But, I cannot vote on hope alone. I have to vote on facts. And, given 
the facts available, I simply cannot support Judge Mukasey's 
nomination.

                               Exhibit 1

                                                      U.S. Senate,


                                  Committee on Armed Services,

                                 Washington, DC, October 31, 2007.
     Hon. Michael B. Mukasey,
     Patterson Belknap Webb & Tyler LLP,
     New York, NY.
       Dear Judge Mukasey: We welcome your acknowledgement in 
     yesterday's letter that the interrogation technique known as 
     waterboarding is ``over the line'' and ``repugnant,'' and we 
     appreciate your recognition

[[Page S14160]]

     that Congress possesses the authority to ban interrogation 
     techniques. These are important statements, and we expect 
     that they will inform your views as Attorney General. We also 
     expect that, in that role, you will not permit the use of 
     such a practice by any agency of the United States 
     Government.
       You have declined to comment specifically on the legality 
     of waterboarding, deeming it a hypothetical scenario about 
     which it would be imprudent to opine. Should you be 
     confirmed, however, you will soon be required to make 
     determinations regarding the legality of interrogation 
     techniques that are anything but hypothetical. Should this 
     technique come before you for review, we urge that you take 
     that opportunity to declare waterboarding illegal.
       Waterboarding, under any circumstances, represents a clear 
     violation of U.S. law. In 2005, the President signed into law 
     a prohibition on cruel, inhuman, and degrading treatment as 
     those terms are understood under the standards of the U.S. 
     Constitution. There was at that time a debate over the way in 
     which the Administration was likely to interpret these 
     prohibitions. We stated then our strong belief that a fair 
     reading of the ``McCain Amendment'' outlaws waterboarding and 
     other extreme techniques. It is, or should be, beyond dispute 
     that waterboarding ``shocks the conscience.''
       It is also incontestable that waterboarding is outlawed by 
     the 2006 Military Commissions Act (MCA), and it was the clear 
     intent of Congress to prohibit the practice. As the authors 
     of the statute, we would note that the MCA enumerates grave 
     breaches of Common Article 3 of the Geneva Conventions that 
     constitute offenses under the War Crimes Act. Among these is 
     an explicit prohibition on acts that inflict ``serious and 
     nontransitory mental harm,'' which the MCA states (but your 
     letter omits) ``need not be prolonged.'' Staging a mock 
     execution by inducing the misperception of drowning is a 
     clear violation of this standard. Indeed, during the 
     negotiations, we were personally assured by Administration 
     officials that this language, which applies to all 
     agencies of the U.S. Government, prohibited waterboarding.
       We share your revulsion at the use of waterboarding and 
     welcome your commitment to review existing legal memoranda 
     covering interrogations and their consistency with current 
     law. It is vital that you do so, as anyone who engages in 
     this practice, on behalf of any U.S. government agency, puts 
     himself at risk of criminal prosecution, including under the 
     War Crimes Act, and opens himself to civil liability as well.
       We must wage and win the war on terror, but doing so is 
     fully compatible with fidelity to our laws and deepest 
     values. Once you are confirmed and fully briefed on the 
     relevant programs and legal analyses, we urge you to publicly 
     make clear that waterboarding can never be employed.
           Sincerely,
                                                      John McCain,
                                            United States Senator.
                                                   Lindsey Graham,
                                            United States Senator.
                                                      John Warner,
     United States Senator.
                                  ____

                                                     American-Arab


                                Anti-Discrimination Committee,

                                 Washington, DC, November 1, 2007.
     Hon. Patrick Leahy,
     Chairman, Senate Committee on the Judiciary, Washington, DC.
       Dear Chairman Leahy: On November 5, as the Senate Committee 
     on the Judiciary convenes a nomination hearing for Attorney 
     General Nominee Judge Michael Mukasey, the American-Arab 
     Anti-Discrimination Committee (ADC), the nations premier 
     organization dedicated ensuring the civil rights of Arab 
     Americans, would like to express its opposition to Judge 
     Mukasey's confirmation.
       Judge Mukasey has disappointed our national expectations 
     and failed our patriotic legacy as champions of democracy, 
     human rights, and due process. He refused to name the 
     practice of waterboarding as torture, has cast doubts as to 
     whether non-citizens in U.S. custody should enjoy the 
     protection of the U.S. Constitution, and has advocated for 
     the creation of separate national security courts, casting 
     doubt on our time-proven judiciary system.
       It should be noted that all four currently serving Judge 
     Advocates General for our armed forces are on record in 
     qualifying waterboarding as torture and constituting a war 
     crime. The Attorney General is the nation's chief law 
     enforcement officer and is tasked with the application of the 
     rule of law. The Attorney General must be able to maintain 
     the delicate balance between national security and individual 
     liberties and rights. Judge Mukasey's hesitancy on these 
     vital matters, his doubts as to whether the U.S. 
     Constitution, our supreme law of the land, applies to non-
     citizens, foreshadow a possible unwillingness on his part to 
     enforce the role of law, including that of our Constitution 
     and international legal standards; standards that our nation 
     has championed for decades.
       It is time for President Bush to nominate an attorney 
     general who stands up for the values that have defined our 
     nation; Judge Mukasey is not such a nominee. As our nation's 
     largest non-profit organization dedicated since 1980 to 
     defending the civil rights of Americans of Arab descent, we 
     ask that you stand up as a patriot and a leader in defense of 
     our national values and oppose Judge Mukasey's confirmation 
     as the next attorney general.
       Thank you for your consideration of this matter. Should you 
     or your staff have any questions concerning this matter or 
     ADC's work with the U.S. Department of Justice please do not 
     hesitate to contact ADC Legislative Director Christine 
     Gleichert at C[email protected] or (202) 244-2990.
           Very truly yours,
                                         Kareem W. Shora, JD, LLM,
     National Executive Director.
                                  ____

                                            American Psychological


                                                  Association,

                                 Washington, DC, November 1, 2007.
     Hon. Patrick J. Leahy,
     Chairman, Senate Judiciary Committee,
     Washington, DC.
     Hon. Arlen Specter
     Ranking Member, Senate Judiciary Committee,
     Washington, DC.
       Dear Chairman Leahy and Ranking Member Specter: We are 
     writing on behalf of the American Psychological Association 
     (APA), the world's largest scientific and professional 
     organization of psychologists, to commend and support your 
     ongoing efforts related to the confirmation hearing and 
     follow-up correspondence to Attorney General nominee Michael 
     B. Mukasey. We highly value your commitment to ensure that 
     the next U.S. Attomey General is dedicated to safeguarding 
     the physical and psychological welfare and human rights of 
     individuals incarcerated by the U.S. government in foreign 
     detention centers. We are all too aware of reports of a 2002 
     memorandum by then Assistant U.S. Attorney General Jay Bybee 
     that granted power to the President to issue orders in 
     violation of the Geneva Conventions and international laws 
     that prohibit torture and cruel, inhuman, or degrading 
     treatment. (Fortunately, this memorandum has since been 
     disavowed by President Bush and overridden by his Executive 
     Order in July of this year.)
       In a separate letter to President Bush, we urged him to 
     regard the ongoing Senate confirmation process involving his 
     Attorney General nominee as a timely opportunity to expand 
     his recent Executive Order to clarify that ``enhanced'' 
     interrogation techniques, such as forced nudity, 
     waterboarding, and mock executions, which are defined as 
     torture or cruel, inhuman, or degrading treatment by the 
     Geneva Conventions and the United Nations Convention Against 
     Torture, shall not be used or condoned by the U.S. 
     government. We also urged the government to disallow any 
     testimony resulting from the use of these techniques.
       APA unequivocally condemns the use of torture and cruel 
     inhuman, or degrading treatment or punishment under any and 
     all conditions, including the detention and interrogation of 
     both lawful and unlawful ``enemy combatants,'' as defined by 
     the U.S. Military Commissions Act of 2006 (see attached 
     August 2007 resolution). Accordingly, we also urge the 
     Congress and the Bush administration to establish policies 
     and procedures to ensure the judicial review of these 
     detentions, which in some instances have gone on for years 
     without any determination of their legality.
       Psychologists consulting to the military and intelligence 
     communities, like their colleagues in domestic forensic 
     settings, use their expertise to promote the use of ethical, 
     effective, and rapport-building interrogations, while 
     safeguarding the welfare of interrogators and detainees. 
     It is always unethical for a psychologist to plan, design, 
     or assist, either directly or indirectly, in interrogation 
     techniques delineated in APA's 2007 resolution and any 
     other techniques defined as torture or cruel, inhuman, or 
     degrading treatment or punihment under the Geneva 
     Conventions, the United Nations Convention Against 
     Torture, and APA's 2006 Resolution Against Torture.
       There are no exceptional circumstances whatsoever to these 
     prohibitions, whether induced by a state of war, threat of 
     war, or any other public emergency, or in the face of laws, 
     regulations, or orders. APA will support psychologists who 
     refuse to work in settings in which the human rights of 
     detainees are not protected. Moreover, psychologists with 
     knowledge of the use of any prohibited interrogation 
     technique have an ethical responsibility to inform their 
     superiors and the relevant office of inspectors general, as 
     appropriate, and to cooperate fully with all government 
     oversight activities to ensure that no individual is 
     subjected to this type of treatment.
       We look forward to working with the Senate Judiciary 
     Committee to develop policies on interrogation that provide 
     for ethical and effective means to elicit information to 
     prevent acts of violence. Our own work in this area is 
     ongoing, and we plan to make available a casebook and 
     commentary (upon completion) to provide guidance on the 
     interpretation of our resolution. If you have any questions 
     or are in need of additional information, please contact 
     APA's Director of Ethics, Stephen Behnke, J.D., Ph.D., at 
     (202) 336-6006 or at [email protected], or our Senior Policy 
     Advisor, Ellen Garrison, Ph.D., at (202) 336-6066 or 
     [email protected].
           Sincerely,
                                      Sharon Stephens Brehm, Ph.D,
                                                        President.
                                        Norman B. Anderson, Ph.D.,
     Chief Executive Officer.
                                  ____

       Attachment

[[Page S14161]]

   Reaffirmation of the American Psychological Association Position 
  Against Torture and Other Cruel, Inhuman, or Degrading Treatment or 
  Punishment and its Application to Individuals Defined in the United 
                  States Code as ``Enemy Combatants''

       Whereas the mission of the American Psychological 
     Association is to advance psychology as a science and 
     profession and as a means of promoting health, education and 
     human welfare through the establishment and maintenance of 
     the highest standards of professional ethics and conduct of 
     the members of the Association;
       Whereas the American Psychological Association is an 
     accredited non-governmental organization at the United 
     Nations and so is committed to promote and protect human 
     rights in accordance with the United Nations Charter and the 
     Universal Declaration of Human Rights;
       Whereas the American Psychological Association passed the 
     2006 Resolution Against Torture and other Cruel, Inhuman or 
     Degrading Treatment or Punishment, a comprehensive and 
     foundational position applicable to all individuals, in all 
     settings and in all contexts without exception;
       Whereas in 2006, the American Psychological Association 
     defined torture in accordance with Article 1 of the United 
     Nations Declaration and Convention Against Torture and Other 
     Cruel, Inhuman, or Degrading Treatment or Punishment,

       [T]he term ``torture'' means any act by which severe pain 
     or suffering, whether physical or mental, is intentionally 
     inflicted upon a person for such purposes as obtaining from 
     him or a third person information or a confession, punishing 
     him for an act he or a third person has committed or is 
     suspected of having committed, or intimidating or coercing 
     him or a third person, or for any reason based on 
     discrimination of any kind, when such pain or suffering is 
     inflicted by or at the instigation of or with the consent or 
     acquiescence of a public official or other person acting in 
     an official [e.g., governmental, religious, political, 
     organizational] capacity. It does not include pain or 
     suffering arising only from, inherent in, or incidental to 
     lawful sanctions [in accordance with both domestic and 
     international law];

       Whereas in 2006, the American Psychological Association 
     defined the term ``cruel, inhuman, or degrading treatment or 
     punishment'' to mean treatment or punishment by a 
     psychologist that, in accordance with the McCain Amendment, 
     is of a kind that would be ``prohibited by the Fifth, Eighth, 
     and Fourteenth Amendments to the Constitution of the United 
     States, as defined in the United States Reservations, 
     Declarations and Understandings to the United Nations 
     Convention Against Torture and Other Forms of Cruel, 
     Inhuman or Degrading Treatment or Punishment done at New 
     York, December 10, 1984.'' Specifica1ly, United States 
     Reservation I.1 of the Reservations, Declarations and 
     Understandings to the United Nations Convention Against 
     Torture stating, ``the term `cruel, inhuman or degrading 
     treatment or punishment' means the cruel, unusual and 
     inhumane treatment or punishment prohibited by the Fifth, 
     Eighth, and/or Fourteenth Amendments to the Constitution 
     of the United States.'' ii
       Be it resolved that the American Psychological Association 
     reaffirms unequivocally the 2006 Resolution Against Torture 
     and Other Cruel, Inhuman, or Degrading Treatment or 
     Punishment in its entirety in both substance and content (see 
     Appendix A);
       Be it resolved that the American Psychological Association 
     affirms that there are no exceptional circumstances 
     whatsoever, whether induced by a state of war or threat of 
     war, internal political instability or any other public 
     emergency, that may be invoked as a justification for torture 
     or cruel, inhuman, or degrading treatment or punishment, 
     including the invocation of laws, regulations, or orders;
       Be it resolved that the American Psychological Association 
     unequivocally condemns torture and cruel, inhuman, or 
     degrading treatment or punishment, under any and all 
     conditions, including detention and interrogations of both 
     lawful and unlawful enemy combatants as defined by the U.S. 
     Military Commissions Act of 2006;
       Be it resolved that the unequivocal condemnation includes 
     an absolute prohibition against psychologists' knowingly 
     planning, designing, and assisting in the use of torture and 
     any form of cruel, inhuman or degrading treatment or 
     punishment;
       Be it resolved that this unequivocal condemnation includes 
     all techniques defined as torture or cruel, inhuman or 
     degrading treatment under the 2006 Resolution Against Torture 
     and Other Cruel, Inhuman, or Degrading Treatment or 
     Punishment, the United Nations Convention Against Torture, 
     and the Geneva Convention. This unequivocal condemnation 
     includes, but is by no means limited to, an absolute 
     prohibition for psychologists against direct or indirect 
     participation in interrogations or in any other detainee-
     related operations in mock executions, water-boarding or any 
     other form of simulated drowning or suffocation, sexual 
     humiliation, rape, cultural or religious humiliation, 
     exploitation of phobias or psychopathology, induced 
     hypothermia, the use of psychotropic drugs or mind-altering 
     substances used for the purpose of eliciting information; as 
     well as the following used for the purposes of eliciting 
     information in an interrogation process: hooding, forced 
     nakedness, stress positions, the use of dogs to threaten or 
     intimidate, physical assault including slapping or shaking, 
     exposure to extreme heat or cold, threats of harm or death; 
     and isolation, sensory deprivation and over-stimulation and/
     or sleep deprivation used in a manner that represents 
     significant pain or suffering or in a manner that a 
     reasonable person would judge to cause lasting harm; or the 
     threatened use of any of the above techniques to the 
     individual or to menbers of the individual's family;
       Be it resolved that the American Psychological Association 
     calls on the United States government--including Congress, 
     the Department of Defense, and the Central Intelligence 
     Agency--to prohibit the use of these methods in all 
     interrogations and that the American Psychological 
     Association shall inform relevant parties with the United 
     States government that psychologists are prohibited from 
     participating in such methods;
       Be it resolved that the American Psychological Association, 
     in recognizing that torture and other cruel, inhuman or 
     degrading treatment and punishment can result not only from 
     the behavior of individuals, but also from the conditions of 
     confinement, expresses grave concern over settings in which 
     detainees are deprived of adequate protection of their human 
     rights, affirms the prerogative of psychologists to refuse to 
     work in such settings, and will explore ways to support 
     psychologists who refuse to work in such settings or who 
     refuse to obey orders that constitute torture;
       Be it resolved that the American Psychological Association 
     asserts that any APA member with knowledge that a 
     psychologist, whether an APA member or non-member, has 
     engaged in torture or cruel, inhuman, or degrading treatment 
     or punishment, including the specific behaviors listed above, 
     has an ethical responsibility to abide by Ethical Standard 
     1.05, Reporting Ethical Violations, in the Ethical Principles 
     of Psychologists and Code of Conduct (2002) and directs the 
     Ethics Committee to take appropriate action based upon such 
     information, and encourages psychologists who are not APA 
     members also to adhere to Ethical Standard 1.05;
       Be it resolved that the American Psychological Association 
     commends those psychologists who have taken clear and 
     unequivocal stands against torture and cruel, inhuman or 
     degrading treatment or punishment, especially in the line of 
     duty, and including stands against the specific behaviors (in 
     lines 81 through 100) or conditions listed above; and that 
     the American Psychological Association affirms the 
     prerogative of psychologists under the Ethical Principles of 
     Psychologists and Code of Conduct (2002) to disobey law, 
     regulations or orders when they conflict with ethics;
       Be it resolved that the American Psychological Association 
     asserts that all psychologists with information relevant to 
     the use of any method of interrogation constituting torture 
     or cruel, inhuman, or degrading treatment or punishment have 
     an ethical responsibility to inform their superiors of such 
     knowledge, to inform the relevant office of inspectors 
     general when appropriate, and to cooperate fully with all 
     oversight activities, including hearings by the United States 
     Congress and all branches of the United States government, to 
     examine the perpetration of torture and cruel, inhuman, or 
     degrading treatment or punishment against individuals in 
     United States custody, for the purpose of ensuring that no 
     individual in the custody of the United States is subjected 
     to torture or cruel, inhuman, or degrading treatment or 
     punishment;
       Be it resolved that the APA Ethics Committee shall proceed 
     forthwith in writing a casebook and commentary that shall set 
     forth guidelines for psychologists that are consistent with 
     international human rights instruments, as well as guidelines 
     developed for health professionals, including but not limited 
     to: Common Article 3 of the Geneva Conventions; The United 
     Nations Convention Against Torture and Other Cruel, 
     Inhuman, or Degrading Treatment or Punishment; The United 
     Nations Principles of Medical Ethics Relevant to the Role 
     of Health Personnel, particularly Physicians, in the 
     Protection of Prisoners and Detainees against Torture and 
     Other Cruel, Inhuman, or Degrading Treatment or 
     Punishment; and The World Medical Association Declaration 
     of Tokyo: Guidelines for Physicians Concerning Torture and 
     other Cruel, Inhuman or Degrading Treatment or Punishment 
     in Relation to Detention and Imprisonment;
       BE IT RESOLVED that the American Psychological Association, 
     in order to protect against torture and cruel, inhuman, or 
     degrading treatment or punishment, and in order to mitigate 
     against the likelihood that unreliable and/or inaccurate 
     information is entered into legal proceedings, calls upon 
     United States legal systems to reject testimony that results 
     from torture or cruel, inhuman, or degrading treatment or 
     punishment.


                                endnotes

       \i\ Defined as both unlawful enemy combatants and lawful 
     enemy combatants as set forth in the U.S. Military 
     Commissions Act of 2006 (Chapter 47A; Subchapter I: 
     Sec. 948a. Definitions)
       ``(1) Unlawful enemy combatant.--
       (A) The term `unlawful enemy combatant' means--
       ``(i) a person who has engaged in hostilities or who has 
     purposefully and materially supported hostilities against the 
     United States

[[Page S14162]]

     or its co-belligerents who is not a lawful enemy combatant 
     (including a person who is part of the Taliban, al Qaeda, or 
     associated forces); or
       ``(ii) a person who, before, on, or after the date of the 
     enactment of the Military Commissions Act of 2006, has been 
     determined to be an unlawful enemy combatant by a Combatant 
     Status Review Tribunal or another competent tribunal 
     established under the authority of the President or the 
     Secretary of Defense.
       ``(B) Co-belligerent.--In this paragraph, the term 
     `cobelligerent', with respect to the United States, means any 
     State or armed force joining and directly engaged with the 
     United States in hostilities or directly supporting 
     hostilities against a common enemy.
       ``(2) Lawful enemy combatant.--The term `lawful enemy 
     combatant' means a person who is--
       ``(A) a member of the regular forces of a State party 
     engaged in hostilities against the United States;
       ``(B) a member of a militia, volunteer corps, or organized 
     resistance movement belonging to a State party engaged in 
     such hostilities, which are under responsible command, wear a 
     fixed distinctive sign recognizable at a distance, carry 
     their arms openly, and abide by the law of war; or
       ``(C) a member of a regular armed force who professes 
     allegiance to a government engaged in such hostilities, but 
     not recognized by the United States.
       ``Article V.
       No person shall be held to answer for a capital, or 
     otherwise infamous crime, unless on a presentment or 
     indictment of a Grand Jury, except in cases arising in the 
     land or naval forces, or in the Militia, when in actual 
     service in time of War or public danger; nor shall any person 
     be subject for the same offence to be twice put in jeopardy 
     of life or limb; nor shall be compelled in any criminal case 
     to be a witness against himself, nor be deprived of life, 
     liberty, or property, without due process of law; nor shall 
     private property be taken for public use, without just 
     compensation.
       Article VIII.
       Excessive bail shall not be required, nor excessive fines 
     imposed, nor cruel and unusual punishments inflicted.
       Article XlV.
       Section 1. All persons born or naturalized in the United 
     States, and subject to the jurisdiction thereof; are citizens 
     of the United States and of the State wherein they reside. No 
     State shall make or enforce any law which shall abridge the 
     privileges or immunities of citizens of the United States; 
     nor shall any State deprive any person of life, liberty, or 
     property, without due process of law; nor deny to any person 
     within its jurisdiction the equal protection of the laws.
       Resolution Adopted by the Council of Representatives of the 
     American Psychological Association on August 19, 2007.

  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I yield 10 minutes to the distinguished 
Senator from Alabama, Mr. Sessions.
  Mr. SESSIONS. Mr. President, I believed we were moving toward a very 
harmonious vote on Judge Mukasey's confirmation. I have been 
disappointed that has not occurred.
  Opponents have latched on to complaints about torture and a specific 
classified procedure that Judge Mukasey has never seen or studied in 
detail. Since he refused to express a legal opinion on that one 
specific technique, they have asserted that he supports torture, and 
many have decided to vote against him. I think that is unfair to the 
judge.
  I will recall that Judge Mukasey was called to the attention of the 
President through Senator Schumer who has spoken highly of him and who 
voted for him in the committee, as did Senator Feinstein, two 
Democratic colleagues. Senator Schumer apparently has known him and his 
reputation in New York for some time. The President attempted to reach 
out and to pick a nominee who appeared to be above politics, apart from 
politics, a person who had a history of competence and integrity.
  Being a Federal judge is about as removed from the normal give and 
take of politics and compromise and wheeling and dealing as you can 
get. And he served in that position for many years but also had 
experience as an assistant U.S. attorney involved in leading a public 
corruption section in New York which was pretty sizable and important 
and dealt with a lot of important cases.
  He was on the Law Review at Yale and has all of the kind of academics 
credentials and practical experience you would look for and is the kind 
of U.S. Attorney General I, and I think people of both parties can feel 
comfortable with. I really do believe that.
  I was hopeful we would see a nominee such as Larry Thompson, a 
longtime friend of mine. He served as former Deputy Attorney General of 
the United States, a former U.S. attorney; Ted Olson, who served as 
Solicitor General; or former Attorney General Bill Barr. These are a 
few individuals who would be considered normal Republican appointees 
for this position and whose views are well known to be in accord with 
those of the President on most issues. But, instead, the President 
reached out and appointed someone who appeared to have strong 
bipartisan support.
  I am sorry we have had some of these complaints because I think they 
distort the record and what the judge actually said in his testimony 
and are inaccurate in a number of different ways.
  The issue of torture has been discussed in great detail. But in many 
ways it has not been handled with accuracy, and the issues have not 
been squarely addressed. They have been sort of sloughed over, and he 
has been accused of things, and others, including the President and 
former Attorney Generals and the military and other people have been 
accused of things in an inaccurate fashion.
  I think I would like to make a few comments about how I see the legal 
situation that we find ourselves in and how things have developed. 
Prior to the Supreme Court's ruling in 2006 in Hamdan, a legitimate 
position, clearly, for the United States was that our personnel, when 
they were dealing with unlawful combatants, were bound by the torture 
statute, title 18, U.S. Code, Section 2340. That is the controlling 
statutory authority. It defined torture. It was passed overwhelmingly 
by Congress in 1994.
  It was passed by a vote of 92 to 8. Every current member of the 
Senate Judiciary Committee who was here in the Senate in 1994 voted for 
it. Senator Biden, Senator Feingold, Senator Feinstein, Senator 
Grassley, Senator Hatch, Senator Kennedy, Senator Kohl, Senator Leahy, 
and Senator Specter all voted for this act.
  I asked Mr. Jack Goldsmith, former head of the Office of Legal 
Counsel in the Department of Justice under President Bush who resigned 
because he was not happy with some of the things that were being done, 
about the legal landscape regarding torture prior to the Hamdan 
decision--and he wrote a book about it.
  I asked Mr. Goldsmith about the landscape prior to Hamdan--which 
found that the Common Article III of the Geneva Convention applied to 
enemy unlawful combatants detained at Guantanamo Bay. But that decision 
did not occur until the summer of 2006, so prior to that, pretty 
clearly, the authority that controlled the U.S. military in dealing 
with unlawful combatants, which we, I think, had every right to 
conclude were not covered by the Geneva Conventions, was the torture 
statute Congress passed in 1994. That is the statute that our military 
was compelled to comply with.
  And so the statute on torture is pretty clear. The people who drafted 
it wanted to make sure that whether in the United States or out of the 
United States that persons in our custody ought not to be tortured.
  That certainly is an honorable and appropriate goal, and they did 
that. They passed this statute in which they defined torture:

       As used in this chapter (1) ``torture'' means an act 
     committed by a person acting under the color of law 
     specifically intended to inflict severe physical or mental 
     pain or suffering (other than pain or suffering incidental to 
     lawful sanctions) upon another person within his custody or 
     physical control;
       (2) ``severe mental pain or suffering'' means the prolonged 
     mental harm caused by or resulting from--
       (A) the intentional infliction or threatened infliction of 
     severe physical pain or suffering.

  And it goes on.
  Playing music or segregating a prisoner or giving one prisoner less 
food or less quality food than you give another one, placing them in 
stressful conditions clearly does not qualify under this torture 
statute as inflicting severe physical or mental pain.
  Our military had lawyers. As Mr. Goldsmith, who was a critic, really, 
of this administration's behavior, said in his testimony and in his 
book, they were awash with lawyers. They had lawyers all over the 
place. Everything was read by lawyers. He said the CIA had 100 lawyers. 
I don't know how many in the Department of Defense and others he made 
reference to were there trying to figure out how to conduct 
interrogations at a time when our

[[Page S14163]]

country had been attacked, 3,000 people had been killed, and we were 
trying to figure out if there were other cells in our country and other 
groups prepared to kill more Americans.
  I remember when Senator John Ashcroft was nominated for Attorney 
General, and they were jumping on him about all of this and what should 
be done and what they had heard that somebody might have done. An 
exasperated then-Senator, Attorney General nominee Ashcroft responded 
to one question in frustration by saying: Well, the problem I have with 
you, Senator, is, it is not my definition of torture that counts, it is 
the one you enacted into law.
  So that is what we enacted into law. If people are not happy with 
it--I think it is a legitimate statute, but if they are not happy with 
it, so be it. That is the one we passed into law. Our lawyers were 
telling our intelligence people and others who were apprehending 
terrorists who were committed to destroying America that they had to 
comply with this statute.
  The ACTING PRESIDENT pro tempore. The time of the Senator has 
expired.
  Mr. SESSIONS. I ask unanimous consent for 1 additional minute.
  The ACTING PRESIDENT pro tempore. Does the Senator from Pennsylvania 
yield an additional minute to the Senator from Alabama?
  Mr. SPECTER. What is the request pending?
  Mr. SESSIONS. One additional minute.
  Mr. SPECTER. Granted.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SESSIONS. There is another matter of some importance. A number of 
Senators have demanded that Judge Mukasey make express statements of 
law regarding the separation of powers, and they have asked him these 
questions as a condition of his confirmation. Several Senators alluded 
to private conversations in which they say Judge Mukasey stated that a 
President cannot act outside the parameters set by the legislative 
branch, I guess on most any matter. Particularly, I guess it dealt with 
FISA. I believe this contradicts the fundamental separation of powers 
set forth in the Constitution by our Founding Fathers. The oath the 
President takes is to faithfully execute the Office of the President 
and to preserve, protect, and defend the Constitution of the United 
States. That is written in the Constitution.
  While the original FISA statute was being debated in 1978, then 
Carter administration Attorney General Judge Griffin Bell testified:

       The current bill recognizes no inherent power of the 
     President to conduct electronic surveillance, and I want to 
     interpolate here to say that this does not take away the 
     power of the President under the Constitution.

  I associate myself with the remarks of Griffin Bell and recognize 
that nothing we can do in this Congress can impede on the powers vested 
in the Executive by the Constitution. Congress cannot curtail the 
constitutional powers of the Executive by statutory law.
  The ACTING PRESIDENT pro tempore. The time of the Senator has 
expired.
  Mr. SPECTER. How much more time would the Senator like?
  Mr. SESSIONS. One additional minute.
  Mr. SPECTER. Granted.
  Mr. SESSIONS. The purported conversations that Senators indicate they 
have had apparently took place in private settings and not in a 
confirmation hearing held by the Judiciary Committee where these 
statements could be made a part of the record or cross-examined or 
where the words could be recorded with any accuracy. These types of 
promises, though touted as justification for a vote, perhaps, are not 
legislative history and have not been made a part of the record of this 
nomination. They cannot be a part of a legislative history of any kind.
  Furthermore, I would suggest that if Judge Mukasey did, in fact, say 
that in a categorical manner, which I really doubt, he would be in 
error. Any President has certain constitutional powers that cannot be 
taken away by statute.
  I yield the floor.
  Mr. SPECTER. Mr. President, how much time remains on each side?
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania has 1 
hour 26 minutes; the Senator from Vermont has 1 hour 36 minutes.
  The Senator from Maryland is recognized for 10 minutes.
  Mr. CARDIN. Mr. President, I have the opportunity to serve on the 
Judiciary Committee, so I participated in the confirmation hearings on 
Judge Mukasey. I had a chance to personally meet with him. I had the 
chance to propound written questions and received written answers from 
him. Throughout this process, all of us have been looking for a person 
to be the next Attorney General who would be an Attorney General for 
the American people and not just the President of the United States.
  I cannot accept Judge Mukasey's answer on waterboarding. As my 
colleagues have said, waterboarding is an interrogation technique that 
simulates death by drowning. The original question that was asked Judge 
Mukasey on the second day of the confirmation hearings asked 
specifically about waterboarding. He didn't really answer the question. 
I must tell you, I gave him the benefit of the doubt on that question. 
He indicated that he may not have been familiar with what waterboarding 
is. I found that difficult to believe, but okay. He would have a chance 
to reflect upon it, be able to look at the historical information on 
waterboarding, and we asked him a written question followup as to 
whether he would comment on the interrogation technique of 
waterboarding.
  The question was asked. As waterboarding is generally known, it has 
been used for centuries. Judge Mukasey would not give us a direct 
answer as to whether waterboarding was torture and prohibited under 
U.S. law. Then we find out that Judge Mukasey says: Look, if Congress 
passes a statute that specifically outlaws waterboarding, I would 
enforce that statute. That is not necessary because waterboarding is 
already illegal. But that causes me some additional problems.
  Let me talk a little bit about the various issues because to me it is 
more than just waterboarding. We are talking about torture and the U.S. 
position on torture and the U.S. leadership in advancing human rights 
as the leader of the free world. I believe that reputation has been 
damaged.
  The United States historically has provided clarity and leadership on 
advancing human rights issues. There should be no doubt that 
waterboarding is torture and waterboarding is illegal. My colleagues 
have cited the torture statutes that have been passed by the Congress 
that make it clear that this kind of conduct would fall under the 
general definition of torture and is illegal in the United States.
  It is internationally condemned under the Geneva Conventions article 
3. Our Constitution prohibits torture, and waterboarding would fall 
under that. We prosecuted Japanese officials after World War II as war 
criminals because they waterboarded American soldiers.
  We recently passed the McCain amendment that said that cruel, 
inhumane, and degrading treatment or punishment of persons under the 
detention, custody, or control of the United States would not be 
permitted. So there should be no doubt that waterboarding is torture 
and illegal.
  Admiral Hutson, who testified before the committee on a panel of 
outside witnesses, told us a little bit more about the historical 
aspects of waterboarding. He is a former Judge Advocate General, former 
senior uniformed legal advisor to the Secretary of the Navy and the 
Chief of Naval Operations. He stated that waterboarding ``is the most 
iconic example of torture.'' It was devised during the Spanish 
Inquisition, and its use has been repudiated for centuries. This is not 
a new technique. It is well known. I don't believe we need to pass 
another statute. It is clear already.
  I have heard my colleagues say: All we have to do is pass a statute. 
Does that mean we are going to have to pass a statute that outlaws all 
types of specific uses of torture such as mock execution or forced 
nudity or attack dogs or the use of rack or thumb screws? Are we going 
to have to outlaw those specific techniques because it is not clear 
under our statute of torture that is illegal today? I hope not. I hope 
it is clear that these techniques are torture, as is waterboarding, and 
it is illegal.
  Admiral Hutson put it best when he said the Attorney General, as our 
chief

[[Page S14164]]

law enforcement officer, has to be absolutely unequivocal as to what is 
torture and what is not. On torture, I want the President of the United 
States and the Attorney General to be very clear to the international 
community that the United States will not tolerate torture being used 
by the United States, waterboarding being used by the United States or 
used against any American. We have to be clear about that.
  I want our Government to use all resources at its disposal if a 
foreign agent attempts to torture an American, including waterboarding 
of an American. It has been said, but can you imagine the resolution 
that would be brought before this body if an American soldier was 
waterboarded by a foreign enemy, what we would be doing here, each one 
of us?
  I have my concern because I want our country to be clear on this 
issue. I have the President of the United States, in a signing 
statement on the McCain amendment, saying: Well, maybe torture doesn't 
apply to me. Now I have an Attorney General nominee who tells us that 
he can't tell us with precision that waterboarding is illegal?
  We do have international responsibilities. We are the leader of the 
free world. I am proud to represent this body in the Helsinki 
Commission as the chair, to speak up internationally on human rights 
issues. I find myself defending America. I am having a hard time on 
this issue as to where we stand on the issue of torture.
  Judge Mukasey is not responsible--let me make it clear because some 
of my colleagues have intimated this--for the Bush administration's 
policies on torture or on techniques to interrogate. He is not 
responsible. He had nothing to do with it. But I do believe we need to 
make sure he will stand up to the Bush administration to challenge 
these tactics if they, in fact, are illegal. Judge Mukasey is a good 
person. He is an honorable man. But on the critical issue of whether he 
will stand up to the President and give independent advice as to what 
is torture and what is not, I have my doubts.
  I will be voting against his confirmation.
  I yield back the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, we have about 3 hours remaining of time, 
and I note Senators on the floor speaking in opposition to Judge 
Mukasey. So I would ask my colleagues who want to speak in favor to 
come to the floor so we can make some evaluation as to how much time we 
need, and perhaps some can be yielded back. We are not required to vote 
on Friday morning necessarily.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from California is 
recognized for 15 minutes.
  Mrs. BOXER. Mr. President, thank you very much.
  Mr. President, I rise to express my opposition to the nomination of 
Judge Michael Mukasey to be our next Attorney General. I thank Chairman 
Leahy and his committee, including Senator Specter and members I see 
here, Senator Kennedy, for working hard to examine the nominee's record 
and, frankly, for asking the tough questions, which I think gave us a 
real look into the mind and the heart of this man.
  I have respect for Judge Mukasey's background, his dedication to 
public service, his reputation as a distinguished jurist, and as a good 
man. But when evaluating our Nation's chief law enforcement official, 
we must weigh far more than background and likability. Particularly 
now--particularly now--when we are following the disastrous tenure of 
Alberto Gonzales, particularly now, when we have lost so much more 
leadership in the world because of what is happening in Iraq, and, 
unfortunately, what has happened in Abu Ghraib, we need to look past 
likability and qualifications.
  We must firmly believe our next Attorney General must always put his 
loyalty to the Constitution above his loyalty to the President. We have 
a President and a Vice President who have dangerously abused their 
Executive power and who have undermined the public trust. This is not a 
partisan opinion.
  Listen to what John Dean, White House Counsel to President Richard 
Nixon, wrote:

       Not since Nixon left the White House have we had such greed 
     over presidential power, and never before have we had such 
     political paranoia. . . . History never exactly repeats 
     itself, but it does some rather good imitations.

  When an administration spies on its own citizens without a warrant, 
strips habeas corpus rights from those held by America, and fires its 
own U.S. attorneys for political reasons, that is a shocking abuse of 
Executive power.
  When an administration thinks it can just ignore an entire coequal 
branch of Government, even using signing statements to reinterpret or 
disregard more than 750 laws that Congress has passed, that is a 
shocking abuse of Executive power.
  When an administration silences its own officials, rewriting 
testimony, redacting testimony, shelving reports, refusing to let 
experts publicly speak the truth, that is a shocking abuse of Executive 
power.
  I have seen this so many times with this administration. The latest 
time was with global warming experts whose truths the White House find 
``inconvenient.'' And what did they do? They redacted testimony of the 
CDC Director, the Center for Disease Control Director, when we asked 
her to come before the Environment Committee of the Senate and tell us 
what would the health effects of unfettered global warming be. What 
would happen? The White House muzzled her by slashing her testimony. 
They gave all kinds of excuses as to why it was done. None of them were 
real.
  Then, when I wrote to the President, and I said: Mr. President, we 
need to hear what Dr. Gerberding has to say about the impacts of global 
warming on the health of our people; Mr. Fielding, White House Counsel, 
wrote back: Oh, gee, we are not going to send you her original 
testimony you have asked for. Oh, no, that would be an abuse of 
executive privilege. Let me restate that: That would be an abuse of the 
separation of powers. And he asserted executive privilege. Imagine 
asserting executive privilege for something like the health effects of 
global warming. It is unbelievable.
  So now we need an Attorney General who is going to be the people's 
lawyer, not the President's lawyer, not the one who is going to tell 
us: Oh, yeah, we just cannot do anything about it, Congress.
  We need an Attorney General who is going to check this unprecedented 
abuse of power, not rubberstamp it.
  Unfortunately, because of the deep and thorough questioning of the 
Judiciary Committee, and my reading of that, I cannot support Judge 
Mukasey.
  Judge Mukasey ruled that President Bush had the authority to detain 
American citizens as enemy combatants without criminal charges or 
habeas corpus rights; likewise, during his confirmation hearing, Judge 
Mukasey failed to demonstrate that he would independently evaluate this 
President's broad assertion of executive privilege.
  When asked if he would permit the U.S. attorney to execute 
congressional contempt citations when the White House refuses to 
provide documents to Congress, Judge Mukasey did not say yes. He should 
have said yes.
  The statute is clear. The statute is clear that when Congress issues 
a contempt citation, the U.S. attorney is required to bring the matter 
to a grand jury.
  What Judge Mukasey said was, he would have to look at it. He would 
have to see if it really was reasonable. The fact is, that is not what 
the statute says. There is no ``reasonable'' test. When the Congress 
issues a contempt citation, the U.S. attorney is required to bring the 
matter to a grand jury. If the President says ``executive privilege,'' 
it does not matter. But the judge said he would look at it and see if 
the President was being reasonable.

  So we have to send a clear and unequivocal message to the Justice 
Department staff. We have to send a clear message to the American 
people and to the world that the United States honors and respects and 
will never turn away from our Constitution.
  It is so amazing to me. We have a crisis in Pakistan where a 
dictator--unfortunately, is what I am saying General Musharraf is 
behaving like--has suspended the Constitution--and everyone here, all 
of us, feel terrible about this, including the President of the United 
States, who, as I understand it,

[[Page S14165]]

talked to him on the phone and told him to restore the Constitution--
and here we cannot get papers from this White House.
  I am not comparing that in any way, shape, or form to the kind of 
suspension of the Constitution we see abroad. But I am saying in this 
country--in this country--everyone assumes the Constitution will be 
followed. That is why we need an Attorney General now, in 2007, who is 
going to be so strong on the point.
  Yes, he should have said if Congress issues a contempt citation, of 
course, we will do what we have to do under the law. So it is not 
enough to hope the nominee will exercise independent judgment and stand 
up to this President and Vice President. We must know from the record 
before us that this nominee will uphold the Constitution and our laws 
and do it clearly and unequivocally.
  Now, that is a high standard. I admit that. But that is what the 
people of this great Nation deserve, nothing less. Unfortunately, Judge 
Mukasey's response to questions about torture do not meet the standard.
  During his confirmation hearing, the nominee was asked whether 
waterboarding is illegal. Now, I know a lot of people have discussed 
this, and perhaps we are all being repetitious. But I think we need to 
say how we feel.
  This is a moment for this Senate. This has been a long day for all of 
us. I know for me it has been a big day. I helped to lead, along with 
Senator Inhofe, an override of a very important bill. I had a hearing 
on global warming. I had a briefing on global warming. I have been at 
it, just as we all have.
  But I came out to the floor because I think this is an important 
moment where Members have to be heard. We must know from the record 
before us that the nominee will uphold the Constitution and our laws. 
And, yes, it is a high standard that the people deserve.
  So when the nominee was asked whether waterboarding is illegal, he 
responded if waterboarding is torture, then, in fact, it is 
unconstitutional. So I have to ask this rhetorical question: If 
waterboarding is torture? If? We are talking about a brutal 
interrogation technique that simulates drowning.
  Not surprisingly, members of the Judiciary Committee were not 
satisfied with this answer. And I praise them. They probed, they 
questioned, they asked again: Is waterboarding illegal?
  This time, the judge responded with a four-page letter that, once 
again, failed to answer. He called the question ``hypothetical.'' He 
said his legal opinion would depend on ``the actual facts and 
circumstances.'' Depend on ``the actual facts and circumstances'' if 
waterboarding is torture? Is this the message we want to send to the 
world, that our evaluation of a brutal tactic depends on ``facts and 
circumstances''?
  In fact, Judge Mukasey's answer was a bit too similar to a statement 
by Alberto Gonzales that the legality of torture techniques ``would 
depend on circumstances.''
  This is not a clear answer. This is not unequivocal. And it is not 
what we need in an Attorney General now, in 2007, when the world is 
turning away from America as a moral leader.
  Teddy Roosevelt did not have to consider the ``facts and 
circumstances'' in 1902 when he court-martialed and removed an American 
general in the Philippines for allowing his troops to engage in 
waterboarding. That was 1902, the last century, the turn of the last 
century, and we have someone equivocating on this point? President 
Roosevelt said then nothing can justify the use of torture or inhuman 
conduct by our military.
  Senators McCain, Warner, and Graham did not have to consider ``the 
facts and circumstances'' when they wrote to Judge Mukasey:

       Waterboarding, under any circumstances, represents a clear 
     violation of U.S. law.

  Waterboarding today is not a hypothetical. It is used in Burma 
against supporters of democracy. Waterboarding is an unconstitutional 
form of cruel and inhumane treatment. It is illegal under U.S. laws--
from the Torture Act, which prohibits acts ``specifically intended to 
inflict severe physical or mental pain or suffering,'' to the Detainee 
Treatment Act, which prohibits ``cruel, inhuman or degrading 
treatment.''
  It is illegal under international laws, such as the Geneva 
Conventions, which are not quaint. Those conventions prohibit cruel, 
humiliating, and degrading treatment.

  Following World War II, the United States convicted several Japanese 
soldiers for waterboarding American and allied POWs. Let me repeat: 
Following World War II, the United States convicted several Japanese 
soldiers for waterboarding American and allied POWs. What kind of 
statement are we hearing from Judge Mukasey? Our law and our history 
are crystal clear, so why can't Judge Mukasey state in unequivocal 
terms that waterboarding is torture and that is illegal?
  Mr. President, I ask unanimous consent for 1 additional minute and I 
will sum up.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mrs. BOXER. Mr. President, our country is at a critical point in our 
history. This President and Vice President have shown reckless 
disregard for the rule of law and the institutions sworn to uphold it.
  Now, more than ever before, we need an Attorney General who can 
exercise independent judgment and who will exercise independent 
judgment. We need an Attorney General who shows every day, by word and 
by deed, that the United States is still the world's standard bearer 
for the rule of law. We need an Attorney General who will truly turn 
the page and write a new chapter for the Justice Department and for our 
country.
  It is very rare that I vote no on these kinds of nominations. I do it 
now and then. But I have to say, regretfully, tonight I have concluded 
Judge Mukasey does not meet the critical standard and at this time I 
feel very strongly that he should not be confirmed.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Massachusetts is 
recognized for 10 minutes.
  Mr. KENNEDY. Mr. President, the Department of Justice is in a state 
of crisis. Under Attorney General Gonzales, it too often served as a 
rubberstamp for the White House and as a pawn for political gain, 
rather than as the Nation's guardian of the rule of law. It ignored the 
law and authorized torture and warrantless surveillance. It let 
politics drive decisions about who should be prosecuted. It fired U.S. 
attorneys who would not go along. It hired and punished career 
attorneys on the basis of their personal politics, and it abandoned 
enforcement of our civil rights laws.
  After such an unacceptable period of tarnished leadership of the 
Department, we need a clear, decisive, and straightforward Attorney 
General who is not afraid to stand up for the Constitution and the rule 
of law--especially when that means disagreeing with the President of 
the United States.
  I had hoped Judge Mukasey would be that person. He is, clearly, an 
able lawyer, and his commitment to public service as an assistant U.S. 
attorney and Federal judge is admirable. As a Federal judge for almost 
19 years, he was, by all accounts, fair and conscientious in the 
courtroom. But after listening to Judge Mukasey's testimony and 
considering his responses to written questions from the members of the 
Judiciary Committee, I have concluded he is not the right person to 
lead the Justice Department at this crucial period of our history.
  The next Attorney General must restore confidence in the rule of law. 
He must show the American people and the world America has returned to 
its fundamental belief in the rule of law as the bedrock protector of 
our national values. Only an Attorney General who is not afraid to 
speak truth to power can be such a leader. Regrettably, Michael Mukasey 
has shown he is not that leader.
  Similar to many of my colleagues and many American citizens, I am 
deeply troubled by Judge Mukasey's evasive answers about torture. He 
has repeatedly refused to acknowledge that waterboarding--the 
controlled drowning of a prisoner--is torture. Instead, he has said 
only that torture is unconstitutional without being willing to say 
whether waterboarding is torture.
  As the record makes clear, courts and tribunals have consistently 
found waterboarding to be an unacceptable act of torture. As Malcolm 
Nance, a former master instructor and chief of training at the U.S. 
Navy Survival,

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Evasion, Resistance and Escape School, said of waterboarding:

       For the uninitiated, it is horrifying to watch and if it 
     goes wrong, it can lead straight to terminal hypoxia. When 
     done right it is controlled death.

  During the questions for Judge Mukasey in the Judiciary Committee, he 
was asked these questions:

       Is the use of a wet towel and dripping water to induce the 
     misperception of drowning (i.e, waterboarding) legal?

  Listen to what the Judge Advocates said:
  ``No,'' said RADM Bruce McDonald, U.S. Navy Judge Advocate General.
  ``No,'' said BG Kevin Sandkuhler, U.S. Marines, Judge Advocate 
General.
  ``No. An interrogation technique that is specifically intended to 
cause severe mental suffering involving a threat of imminent death by 
asphyxiation is torture,'' said MG Jack Rives, U.S. Air Force Judge 
Advocate General.

  ``Inducing the misperception of drowning as an interrogation 
technique is not legal,'' said MG Scott Black, U.S. Army Judge Advocate 
General.
  Waterboarding is an ancient and barbaric technique. In the fifteenth 
and sixteenth centuries, interrogators of the Spanish inquisition used 
it. It was used against slaves in this country. In World War II, it was 
used against our soldiers by Japan. In the 1970s, it was used against 
political opponents of the Khmer Rouge and the military dictatorships 
of Chile and Argentina. As I speak, it is being used against 
prodemocracy activists by the military dictators of Burma. This is the 
company the Bush administration embraces when it refuses to renounce 
waterboarding.
  But Judge Mukasey is unwilling to say waterboarding violates the law. 
He calls it repugnant, and it obviously is. But he refuses to condemn 
it as unlawful. Why? The answer seems painfully obvious. Former 
intelligence officers and supervisors have admitted--and the Vice 
President has confirmed--that the CIA has waterboarded detainees. Had 
Judge Mukasey renounced waterboarding as unlawful, he would have had to 
assert his independence and speak the truth about this administration's 
lawlessness. He was unwilling to do so.
  We were told Judge Mukasey had agreed to enforce a new law 
prohibiting waterboarding if Congress passed it. There are two problems 
with this statement. First, enforcing laws passed by Congress that are 
constitutional is the job of the Attorney General. It is a prerequisite 
to occupying the office, not a concession to be offered to win 
confirmation.
  But, second, waterboarding is already illegal. It is illegal under 
the Geneva Conventions, which prohibit ``outrages upon personal 
dignity,'' including cruel, humiliating, and degrading treatment. It is 
illegal under the Torture Act, which prohibits acts ``specifically 
intended to inflict severe physical or mental pain or suffering.'' It 
is illegal under the Detainee Treatment Act, which prohibits ``cruel, 
inhumane, or degrading treatment,'' and it violates the Constitution. 
The Nation's top military lawyers and legal experts across the 
political spectrum have condemned waterboarding as illegal. After World 
War II, the United States prosecuted Japanese officers for using 
waterboarding. What more does this nominee need to enforce existing 
laws?
  The Attorney General must have the legal and moral judgment to know 
when an activity rises to the level of a violation of our Constitution, 
treaties or statutes. But this nominee wants to pass the buck to 
Congress. He has failed to demonstrate that he will be the clear, 
decisive, and straightforward leader the Department of Justice so 
desperately needs.
  This administration has recklessly brushed aside the rule of law for 
7 years. We need an Attorney General who will stand up to this 
destructive conduct and say: No more. We cannot afford to take our 
chances on the judgment of an Attorney General who either does not know 
torture when he sees it or is willing to look the other way to suit the 
President.
  I urge the Senate to vote no on this nomination.
  Mr. SPECTER. Mr. President, before yielding 15 minutes to the Senator 
from New York, I would like to note to my colleagues we have Senator 
Graham listed with a request for a short period of time, and the only 
request pending for those in support of Judge Mukasey, so unless other 
Senators come to the floor, at least on our side, we may be nearing the 
end of debate. I think it is appropriate to put all Senators on notice 
that we could be voting perhaps shortly after 10 or the 10:30 range.
  I yield 15 minutes, as I said, to Senator Schumer.
  The ACTING PRESIDENT pro tempore. The Senator from New York is 
recognized for 15 minutes.
  Mr. SCHUMER. Thank you very much, Mr. President. I wish to thank 
Senator Specter for yielding time and I wish to thank all my colleagues 
for this debate.
  I intend to vote to confirm Michael B. Mukasey to be the 81st 
Attorney General of the United States. I do so for one overarching 
reason: the Department of Justice, one of the crown jewels among our 
Government institutions--once the crown jewel--is now adrift and 
rudderless. It desperately needs a strong and independent leader at the 
helm to set it back on course. A number of people's lives who are 
affected day to day in quiet but material ways by what this Justice 
Department does are at risk. We don't hear from them. Their issues, 
whether it is the ability to vote or the right to be safe or the 
ability to be protected from economic crime, we don't hear about that. 
But it matters.
  Under previous leadership--or lack thereof--the Justice Department 
has become adrift. The Justice Department has become rudderless. The 
Justice Department has become politicized. The Justice Department has 
become an agency where morale is as low as it has ever been. So we 
desperately need a strong and independent leader at its helm to set it 
back on course, and that is not a trivial statement or a statement to 
be forgotten or passed over. I believe Judge Mukasey is that person.
  As almost everyone in America knows, the Justice Department has been 
run into the ground by the Bush administration, especially under 
Alberto Gonzales. As I said when I introduced Judge Mukasey, he will be 
inheriting an agency experiencing its greatest crisis since Watergate 
and, if confirmed, his tasks will be no less momentous and no less 
difficult than that facing Edward Levi when he took the reins of John 
Mitchell's Justice Department after Watergate. A department in such 
crisis should not be left to an unconfirmed and unaccountable 
caretaker.
  We need to look no further than our own investigation in the Senate 
Judiciary Committee to see that we need a real leader at the top of the 
Justice Department. What we learned in that investigation over the last 
9 months leads inexorably to the conclusion we cannot afford a 
caretaker Attorney General for the next 14 months.
  Let me review--because they seem almost forgotten in this Chamber 
tonight--some of the most disturbing revelations. We learned that 
outstanding U.S. attorneys were dismissed without cause or, worse, 
because they may have been too tough on Republicans or too soft on 
Democrats. We learned that career Civil Rights Division lawyers have 
been driven out in droves; that when these lawyers said that civil 
rights were being violated or the Voting Rights Act was being violated, 
they were overruled by political decisions made from the top.
  In my judgment, there was no way that any fair Justice Department 
would have allowed the voter ID process that is now in place in Georgia 
and take back the ability to vote that was fought for so long and hard.
  We learned that individuals appear to have been prosecuted for 
political reasons. In the other House, the Judiciary Committee did an 
extensive investigation, and in the process of doing one, it appears 
more and more likely that a Democratic Governor in Alabama is sitting 
in jail because of a political prosecution. How can we have that in 
America? How can we allow that? How can we countenance it?
  We learned that White House liaison Monica Goodling unlawfully 
rejected young lawyers for career jobs because they were not 
conservative ideologues.
  We learned that there were improper political litmus tests in hiring 
decisions in the Civil Rights Division, in the prestigious Honors 
Program, and even in the Summer Law Intern Program. So politics 
permeated the Justice Department--the Department,

[[Page S14167]]

above all, that should be immune from politics and had been until this 
administration.
  We learned that Bradley Schlozman, in violation of the Department's 
own policy, brought indictments on the eve of an election in Missouri, 
seemingly to influence the result. We learned that politics seems to 
have trumped professionalism in decisionmaking about voting rights 
cases, tobacco litigation, and other matters. The list goes on and on.
  Justice is sacred in this country. It is the Justice Department that 
must produce justice.
  In sum, we learned that politics has been allowed to infect all 
manner of decisionmaking at the Department of Justice.
  Now we are on the brink of a reversal. There is virtually universal 
agreement, even from those who oppose Judge Mukasey, that he would do a 
good job in turning the Department around in these areas.
  One of my colleagues who is voting against the nominee nonetheless 
lauded Judge Mukasey as ``a brilliant lawyer, a distinguished jurist 
and, by all accounts, a good man.''
  Another colleague on the Judiciary Committee, who is also voting nay, 
had this to say:

       Over the remaining 15 months of the Bush Presidency, the 
     Department must recover its credibility and its reputation. . 
     . . Judge Mukasey appears to have the intelligence, the 
     experience, and the stature to undertake this very important 
     task.

  Such comments of confidence echo the comments of those who have 
appeared before the judge in court. As a jurist, Judge Mukasey has a 
well-deserved reputation for efficiency, fairness, and integrity. 
Indeed, even those who didn't always receive the benefit of a favorable 
ruling from the judge have been quick to describe the judge's basic 
fairness and decency.
  Upon his retirement from the bench, one of Jose Padilla's lawyers 
said, ``I admire him greatly'' and described herself as ``another 
weeping fan.'' That is a lawyer for Mr. Padilla.
  Another Padilla lawyer has said, ``I don't always agree with where he 
comes out, but I am happy, always happy to draw him as a judge. You are 
going to get your day in court.'' He went on to say that ``his sense of 
fairness and due process--it's more than intellectual. It's really down 
to the genetic level. It's in his DNA.''
  There are many such testimonials for Judge Mukasey. Because he is so 
dead wrong on torture, which I think he is, does not take away all of 
these other things. And if we are to reject him, make no mistake about 
it, we will not have somebody in his place who can live up to that 
standard. Should we reject Judge Mukasey, President Bush has already 
said he would install an acting caretaker Attorney General who could 
serve for the rest of his term without the advice and consent of the 
Senate. It would be another Alberto Gonzales or maybe even worse. It 
would be the Cheney-Addington wing running the Justice Department on 
the issues of security. Judge Mukasey is hardly perfect. He would not 
be the person I would have nominated, but he is clearly head and 
shoulders better than what we would get. That is not something to be 
dismissed. That is not something to be forgotten. It is hardly 
mentioned on this floor.
  The main function of the Justice Department would be taken back and 
railroaded far from where it should be, and it would be gone for 
another long 14 months. It would mean accepting and exacerbating the 
declining morale at the highest levels of the Department. It would mean 
delaying vital reforms relating to depoliticizing prosecutions. It 
would mean tolerating continued vacancies in many of the top positions 
at the Justice Department. Perhaps most important, it would mean 
surrendering the Department to the extreme ideology of Vice President 
Cheney and his Chief of Staff, David Addington. All the work we have 
done--the hearings, the letters, the requests to get the Attorney 
General to resign--would be undone in a quick moment. That is serious, 
colleagues.
  I have complete respect for people who disagree. It is a values 
choice. But let's not forget that a caretaker Attorney General will not 
be close to Judge Mukasey on the issues that brought the downfall of 
Attorney General Gonzales. Let us also not forget that Judge Mukasey 
has had a long and distinguished career. Because his views on torture 
are different from so many of ours, including my own, does not 
evaporate all of these other important considerations.
  Let me be clear on the torture question, which understandably 
motivates so many of my colleagues. I deeply oppose this 
administration's opaque, mysterious, and inexplicable policy on the use 
of torture. This is not a policy that was constructed by Judge Mukasey.
  In particular, I believe that the cruel and inhumane technique of 
waterboarding is not only repugnant but also illegal under current laws 
and conventions, period. I also support Congress's efforts to pass 
additional measures that would explicitly ban this and other forms of 
torture. I voted for Senator Kennedy's antitorture amendment in 2006, 
and I am a cosponsor of a similar bill in this Congress. If it was 
important to do it in 2006, it is also important to do it in 2007.
  When Judge Mukasey came before the Senate Judiciary Committee last 
month, he refused to state that waterboarding was illegal. That was 
unsatisfactory, that was wrong, and that will be a blemish on his 
distinguished career for as long as he lives. But he has personally 
made it clear that if Congress passed further legislation in this area, 
the President would have no legal authority to ignore it--not even 
under some theory of inherent authority granted by article II of the 
Constitution. That is a very important point.

  My colleagues say we will never pass an amendment on torture and 
waterboarding. That may be; it may not. But the fact that Judge Mukasey 
has rejected the overreaching theory of the unitary executive certainly 
in this area, and in others, says something about what kind of Attorney 
General he will be on torture, on wiretapping, and on all of the other 
issues where basically this Department and this administration thought 
Congress should have no say at all.
  Furthermore, maybe it will be the courts that will rule torture is 
illegal. Judge Mukasey will abide by those court decisions that make 
waterboarding illegal. Judge Mukasey will allow those court decisions 
to stand. I don't think we doubt that.
  The expansive article II argument, of course, is one that this 
administration--in the form of President Cheney and David Addington--
has explicitly endorsed. In an infamous torture memo, the following 
passage was reportedly insisted upon by David Addington:

       Prohibitions on torture must be construed as inapplicable 
     to interrogations undertaken pursuant to his commander-in-
     chief authority. . . . Congress may no more regulate the 
     President's ability to detain and interrogate enemy 
     combatants than it may regulate his ability to direct troop 
     movements on the battlefield.

  That is a horrible statement. Unlike either of his predecessors, 
Judge Mukasey specifically rejects this view.
  I asked him:

       If Congress were to legislate against certain forms of 
     coercive interrogation, such as waterboarding, in all 
     circumstances, not just relating to those in the Department 
     of Defense custody, would it be acting within its 
     constitutional authority?

  He answered ``yes.'' No qualifier. And contrary to the views of the 
Vice President and his Chief of Staff, he specifically stated that the 
President would not have legal authority to ignore it, even under his 
inherent authority under article II. For a Bush nominee, this is no 
small commitment. It is a dramatic difference from both Attorney 
General Ashcroft and Attorney General Gonzales. It is a quantum leap 
over the views of Alberto Gonzales and signals that we may yet get an 
independent review--and perhaps reversal--of some of the worst of the 
administration's legal policies.
  I also believe this because I asked him what he thought of a book 
written by Jack Goldsmith called ``The Terror Presidency.'' Mr. 
Goldsmith, as many will recall, was the former head of the Office of 
Legal Policy, the principal person who sounded the alarm over badly 
reasoned and overreaching legal opinions within the Government. He was 
the courageous official who started the process that led to the 
infamous showdown in the hospital room of John Ashcroft over the 
President's warrantless wiretapping program.
  In his book, Mr. Goldsmith is a relentless critic of the unilateral 
my-

[[Page S14168]]

way-or-the-highway approach of Vice President Cheney and David 
Addington. When I asked Judge Mukasey what he thought of the book, he 
said he thought it was superb, and he endorsed many of its arguments. 
He also told me privately that the administration's unilateral approach 
to legal policy was likely responsible for its low approval ratings in 
the polls. So we have a nominee who is head and shoulders above his 
predecessors in a number of ways, including in his commitment to work 
with Congress.
  One more thing on the issue of torture, my colleagues. Let's assume 
Congress cannot pass a law, and let's assume even that the courts do 
not rule the way we think they should. Still, Judge Mukasey will be 
head and shoulders different, very possibly, than a caretaker. Mukasey 
would be more likely than a caretaker to find on his own that 
waterboarding and other coercive techniques are illegal. He didn't say 
they are illegal. A caretaker would. He said he would have to study 
them. He should not have to. There is still a chance that somebody 
regarded as thoughtful and independent, and a lawyer above all, may--
and I cannot say he will, and I wish I could--find on his own that 
waterboarding and other coercive techniques are illegal. Certainly, 
there is more of a chance with Judge Mukasey than with a caretaker. So 
even if you are voting on the issue of torture alone--which I am not--
to vote down Judge Mukasey and install an independent caretaker will 
not solve the problem of torture and, in all likelihood, will leave us 
worse off, not better.
  Judge Mukasey's answers to our questions demonstrated more openness 
to ending the practices we abhor than either of those who were the 
previous Attorney General nominees.
  In many respects, Judge Mukasey reminds me of Jim Comey, a former 
Deputy Attorney General in the Bush administration who has been widely 
praised for his independence. Would we turn down Jim Comey knowing his 
courage? No. Today, would we turn down Goldsmith? No. Both of them have 
very conservative views.

  Might I have an additional 5 minutes to finish my remarks, I ask my 
colleague from Pennsylvania.
  Mr. SPECTER. The Senator may.
  The PRESIDING OFFICER (Mr. Menendez). The Senator is recognized.
  Mr. SCHUMER. Mr. President, again, if the issue is torture alone, we 
clearly will be as bad off as we are today with a caretaker. We may--
not will, maybe not even likely--have a chance, a decent chance of 
being better with Mukasey than with the alternative. And as with Comey 
and Goldsmith, no, Mukasey will not have our views particularly on 
issues of security. No one this President nominates will. That is why 
we are working so hard to get a new President with different views. But 
on issues of the rule of law and independence and integrity, Judge 
Mukasey will clearly be much better than others.
  I wish to say this to my colleagues, a vast majority of my colleagues 
who oppose this nomination: I respect their views. I understand the 
anger and the anguish about what this administration has done to that 
beautiful lady who stands in the harbor of the city in which I live. I 
share that anguish. I share it. Unfortunately, we are in a world where 
this administration will continue for another 14 months.
  Let me ask my colleagues to think about this: Let's say we reject 
Judge Mukasey tonight and the caretaker is installed, and 6 months from 
now the exact same policies we abhor continue. Will this have been a 
great victory?
  I understand the importance of standing up to the President. Few 
would accuse me of not doing that. And I understand the importance of 
symbolic victory. But this is a tough choice because there is a lot at 
stake on the other side. There is at stake the integrity of a 
department which is in shambles, which is politicized, and which has 
routinely rejected the rule of law which is the fundamental wellspring 
of this Nation and this democracy. And we have a chance, at least a 
good part of the way, to restore it. The Department of Justice is the 
front-line agency safeguarding our civil rights, fighting public 
corruption, curbing violent crime, enforcing environmental laws, and 
much more.
  I deplore the administration's opaque policy on torture, as I 
mentioned before, but I also care about attempts to affect elections 
through suspiciously timed criminal prosecutions. I care about criminal 
cases brought for political reasons. I care about allegations that our 
leading law enforcement agency is stocked with inexperienced cronies 
rather than experienced professionals. I care about a downward spiral 
in civil rights cases brought in recent years. I care about a loss of 
morale among a 100,000-person strong institution and every week, at one 
airport or another in this country, how insistent U.S. attorneys came 
to me and said: Do something. Judge Mukasey, in all likelihood, will do 
something. A caretaker will not. I don't want to turn those pleas 
aside, even though I have strong disagreement with Mr. Mukasey on many 
substantive issues, torture among them. I care about a continuing 
uptick in violent crime due to a department's failure to keep its eye 
on the ball and not have the most qualified people in important 
positions. I care about the Department, and I care about justice. And 
it is not a small matter to take someone who is measurably better than 
what his replacement would be and reject it.
  Again, this is value choice. There are good arguments on each side. 
People's values will have them come down on different sides. But anyone 
who thinks this is an easy choice, anyone who thinks that should Judge 
Mukasey be rejected things will improve from the desperate, deplorable 
state in which they are now is wrong.
  No one questions that Judge Mukasey would do much to turn around the 
Justice Department and move to remove the stench of politics from this 
vital institution. I believe we should give him that chance. There is 
too much at stake not to.
  Mr. BINGAMAN. Mr. President, I rise today to speak about the 
nomination of Michael Mukasey to be the next United States Attorney 
General.
  First, let me say that by all accounts Judge Mukasey is a good man 
with a long distinguished record. In his testimony before the Senate 
Judiciary Committee, he made clear that he understands the need to 
restore the public's trust and confidence in the Department of Justice. 
I also believe he demonstrated a willingness to take the necessary 
steps to de-politicize the Department, and to provide the leadership 
required to repair its credibility.
  However, I am also deeply troubled by the positions Judge Mukasey has 
taken regarding several important issues. Much has been said about 
Judge Mukasey's unwillingness to clearly state that certain 
interrogation techniques, such as waterboarding, are unlawful and 
amount to torture. I share this concern, but I would also like to 
highlight another area that I find particularly disturbing; that is the 
idea that the President doesn't have to comply with a constitutional 
law passed by Congress.
  Over the last 6 years, the Bush administration has put forth a view 
of Executive power that is incredibly expansive, and in my opinion, an 
unjustified and dangerous threat to our fundamental rights and our 
commitment to the rule of law.
  The President has asserted the right to unilaterally imprison 
whomever he wants without judicial review, whether or not they are a 
United States citizen, if he determines that they are a so-called 
``enemy combatant.'' The administration has taken the position that the 
President can authorize the use of techniques that amount to torture, 
and then immunize any person acting pursuant to his orders from 
criminal liability. The President also authorized warrantless 
surveillance in direct contravention to the Foreign Intelligence 
Surveillance Act.
  In all of these instances, the President justified his actions on the 
basis that he was acting within his authority as commander-in-chief to 
defend the country, and that neither Congress nor the courts can 
infringe on this power. While many of these assertions have ultimately 
been rejected by Federal courts, Congress, or overturned internally 
when they became public, the President continues to assert that there 
are few restraints on his power when it comes to national security 
matters.
  During his confirmation hearing, Judge Mukasey stated that he would 
step down if he determined that the

[[Page S14169]]

President's actions were unlawful and the President refused to heed his 
advice to change course. Although this does signal a welcomed degree of 
independence, I remain concerned about what Judge Mukasey will find to 
be ``lawful.''
  Let me read an exchange that took place during a hearing in the 
Senate Judiciary Committee which illustrates this point.

       Senator Leahy: . . . where Congress has clearly legislated 
     in an area, as we've done in the area of surveillance with 
     the FISA law, something we've amended repeatedly at the 
     request of various administrations . . . if it's been 
     legislated and stated very clearly what must be done, if you 
     operate outside of that, whether it's with a presidential 
     authorization or anything else, wouldn't that be illegal?
       Judge Mukasey: That would have to depend on whether what 
     goes outside the statute nonetheless lies within the 
     authority of the president to defend the country.
       Senator Leahy: Can the President put someone above the law 
     by authorizing illegal conduct?
       Judge Mukasey: If by illegal you mean contrary to a statute 
     but within the authority of the President to defend the 
     country, the President is not putting somebody above the law, 
     the President is putting somebody within the law.

  While this view may be consistent with the current administration's 
position regarding Executive authority, this stance is not consistent 
with how the powers of the president have traditionally been 
interpreted. The notion that the President may disregard a valid law by 
citing his inherent power to defend the country is disconcerting.
  And frankly, it is all too reminiscent of President Nixon's assertion 
that actions taken in the name of national security, whether or not 
they are in accordance with relevant statues, are by definition legal 
if they are carried out on behalf of the President. This assertion was 
widely rejected, as it should have been.
  As our Nation's highest law enforcement officer, it is essential that 
the Attorney General faithfully execute laws passed by Congress. It is 
one thing for the Attorney General to state that he or she will not 
enforce a certain measure because it is unconstitutional; however, it 
is a very different matter if the Executive Branch asserts that it is 
not bound by a law that is clearly constitutional.
  It is for this reason that I cannot support the nomination of Judge 
Mukasey to be the next Attorney General.
  Mr. ALLARD. Mr. President, I rise today in support of President 
Bush's nomination of Judge Michael B. Mukasey to serve as Attorney 
General of the United States. I am pleased that leadership is bringing 
Judge Mukasey's nomination to the Senate floor. It has been more than 
45 days since his nomination, making him the longest pending nominee 
for Attorney General in more than 20 years.
  Judge Mukasey expressed to me earlier today his desire to fill the 
leadership void at the Justice Department and assured me that he is 
prepared to address the challenges we face as a nation. I greatly 
appreciate his attention to the important issues pertaining to Colorado 
and his strong commitment to the rule of law.
  Judge Mukasey demonstrated a fine record of management as the 
presiding judge over one of the busiest judicial districts in the 
Nation and I am confident that he is qualified to be our next Attorney 
General and aware of the challenges we face at the Justice Department.
  I am truly impressed with this Nominee's background. I would point 
out that Judge Mukasey is not a Washington insider. Judge Mukasey 
recently worked as a partner at the New York law firm of Patterson, 
Belknap, Webb and Taylor. Judge Mukasey has spent his career in New 
York since President Ronald Reagan nominated Mukasey to serve on the 
U.S. District Court for the Southern District of New York in 1987. He 
spent almost 19 years as a Federal judge, including serving as chief 
judge until his retirement from the bench in 2006.
  Judge Mukasey has shown a strong commitment to the rule of law and 
has a demonstrated record of managing one of the busiest judicial 
districts in the Nation. Both attributes qualify him to lead the 
Department of Justice in fulfilling its mission of enforcing all of the 
Nation's laws fairly and vigorously.
  Judge Mukasey's record as a Federal district judge shows a strong and 
independent commitment to the rule of law. As chief judge of the 
Southern District of New York, he managed one of the busiest dockets in 
the Nation. His work following the attacks of September 11 ensured that 
individuals could access the courthouse even in the immediate aftermath 
of a national emergency.
  Attorney General Mukasey would not hesitate to say no to anyone, 
including the President. No man is above the law, and Judge Mukasey has 
stated that he would resign rather than participate in a violation of 
the law.
  I would also point out that Judge Michael Mukasey has a very strong 
background on national security issues, most notably as a federal 
district court judge. He has ruled in national security cases involving 
at least 15 different defendants. Moreover, he has issued at least two 
dozen national security related opinions.
  I strongly urge my colleagues to cast a vote in favor of Judge 
Michael B. Mukasey's confirmation as the 81st Attorney General of the 
United States.
  Mr. LEVIN. Mr. President, tonight the Senate will vote on the 
nomination of Judge Michael Mukasey to be Attorney General. His 
nomination comes at a critical time. At this moment in history, America 
is faced with serious challenges both at home and abroad. We are at war 
in Iraq and Afghanistan and are engaged in a long-term struggle against 
al-Qaida and other extremists. Military might alone will not be enough 
for us to win these fights. Strengthening America's security requires 
us to harness the power of our ideals and values and lead a global 
effort to confront these threats. When we project moral hypocrisy or 
suggest that our commitment to our fundamental values depends on the 
circumstances, we lose the support of the world in our common efforts 
against common enemies, thereby compromising our own security.
  The pictures of American soldiers mistreating prisoners at Abu Ghraib 
and the stories of detainee abuse at Guantanamo Bay compromised our 
moral authority and our ability to lead the global struggle against al-
Qaida. America must demonstrate an unambiguous commitment to basic 
human rights. And this is not some intellectual musing. It is hard 
headed pragmatism.
  Earlier this year, I visited some of our veterans at a Michigan VA 
hospital. I asked one Korean war veteran who was lying in his bed: What 
can we do to help you? And do you know what he said? ``Win back the 
respect of people around the world for America.'' That veteran 
understands that the erosion of support for America makes us less 
secure and weakens us in a way that military force cannot remedy.
  I have devoted significant time looking into the issue of detainee 
abuse and considering what is appropriate when it comes to the 
treatment of detainees in U.S. custody. Building back the respect for 
America that the Michigan veteran and all of us seek requires a 
definitive commitment to treating all people--even our enemies--in a 
manner consistent with both our laws and basic human rights.
  Last month I asked Judge Michael Mukasey, President's Bush's nominee 
to be Attorney General of the United States, what I thought was a 
straightforward question for the record:

       Would you consider it inhumane to secure a detainee onto a 
     flat surface and slowly pour water directly onto the 
     detainee's face or onto a towel covering the detainee's face 
     in a manner that induced a perception by the detainee that he 
     was drowning?

  That question to Judge Mukasey should have prompted a simple answer 
of ``yes.'' But the Judge said that, while the tactic is ``repugnant'' 
to him, he could not say it was inhumane without evaluating the ``facts 
and circumstances.'' Judge Mukasey's ambiguous response is more than 
deeply troubling, it sends a message--from the man nominated to head 
the Department of Justice--that abuses of detainees in U.S. custody may 
not have been categorically wrong, but that such acts might have been 
justified by the circumstances.
  In 2002, the Department of Defense requested authority to use a 
number of aggressive interrogation techniques--including mock 
drowning--on detainees held at Guantanamo Bay. FBI agents vigorously 
objected to the aggressive techniques. One stated in a

[[Page S14170]]

legal analysis that aggressive techniques, including mock drowning, 
were ``not permitted by the U.S. Constitution.''
  Another FBI agent also expressed alarm to his Justice Department 
colleagues over a DOD interrogation plan for a detainee held at 
Guantanamo Bay, saying ``You won't believe it!'' An e-mail described 
abuses that a FBI agent had witnessed, including detainees being 
chained in fetal positions on the floor for 18 to 24 hours at a time, 
having urinated and defecated on themselves and being subjected to 
extreme cold.
  If Judge Mukasey were to be confirmed to lead the Department of 
Justice, he would take charge of the FBI. How would Judge Mukasey 
respond to those FBI agents? Would he have said that the validity of 
those objections depended on the ``circumstances''?
  Over the past 5 years, the Department of Justice has repeatedly 
issued aggressive legal opinions that seek to exploit any possible 
legal ambiguity to justify the administration's policies. In 2002, for 
example, the Department of Justice issued a now disavowed memo finding 
that physical pain had to be ``equivalent in intensity to the pain 
accompanying serious physical injury, such as organ failure, impairment 
of bodily function, or even death'' to constitute torture. The 
Executive order that the President issued in July of this year 
interprets Common Article 3 of the Geneva Conventions to bar only those 
outrageous acts that are done ``for the purpose of humiliating or 
degrading the individual.'' The Geneva Conventions make no such 
distinction. These results-driven interpretations of law have 
contributed to the negative image of the United States in the world, 
leaving many to question why we attempt to impose standards on other 
countries that we do not require of ourselves. These interpretations 
endanger our troops when captured because their captors will cite these 
interpretations to justify abuses of our troops.
  It does a disservice to our Nation for a person who has been 
nominated to lead the Department of Justice to hide behind purposeful 
ambiguities, particularly at a time when our Nation's prestige has been 
so tarnished by abuses against detainees in our custody. The legality 
of mock drowning--waterboarding--does not depend on the circumstances. 
It is illegal.
  Waterboarding clearly runs afoul of three Federal statutes--the 1994 
antitorture statute, the Military Commissions Act, and the Detainee 
Treatment Act--and it is inconsistent with our obligations under Common 
Article 3 of the Geneva Conventions.
  In his answers to questions from the Judiciary Committee, Judge 
Mukasey refused to state whether waterboarding constitutes torture 
under U.S. law. Under the Federal antitorture statute adopted in 1994, 
18 U.S.C. Sec.  2340, an act is torture if it is specifically intended 
to cause ``severe physical or mental pain or suffering.'' The statute 
defines ``severe mental pain and suffering'' as mental harm caused by, 
among other things, ``threat of imminent death.'' Pouring water over a 
detainee's face to create the sensation of drowning is intended to 
threaten imminent death.
  In questions for the record of an August 2006 Senate Judiciary 
Committee hearing, Senator Durbin asked each of the Judge Advocates 
General, JAGs, of the Marine Corps, Air Force, Army, and Navy whether, 
in their personal view: ``the use of a wet towel and dripping water to 
induce the misperception of a drowning (i.e., waterboarding) (was) 
legal?'' The answer from each of the JAGs was an unequivocal ``No.'' 
The Marine Corps JAG responded to Senator Durbin ``Threatening a 
detainee with imminent death, to include drowning, is torture under 18 
U.S.C. Sec.  2340''--the anti-torture statute. Similarly, the Air Force 
JAG stated: ``An interrogation technique that is specifically intended 
to cause severe mental suffering involving a threat of imminent death 
by asphyxiation is torture under 18 U.S.C Sec.  2340.'' And the Army 
JAG responded: ``inducing the misperception of drowning as an 
interrogation technique is not legal.''

  Whether the practice of mock drowning is legal is a question that our 
Nation's top military lawyers had no problem answering. But the nominee 
for Attorney General says that it depends on ``circumstances,'' it 
could be ``yes,'' it could be ``no.''
  The U.S. Navy's Survival, Evasion, Resistance, and Escape--SERE--
School trains our troops, whose dangerous assignments leave them 
susceptible to being captured, to resist and survive abusive tactics 
that might be used by the enemy. Waterboarding is one of the tactics 
that troops are exposed to at Navy SERE school. Listen to how a former 
master instructor and chief of training at the Navy's SERE school 
described waterboarding in an October 31, 2007, article in the New York 
Daily News:

       Waterboarding is slow-motion suffocation with enough time 
     to contemplate the inevitability of blackout and expiration. 
     Usually the person goes into hysterics on the board. For the 
     uninitiated, it is horrifying to watch. If it goes wrong, it 
     can lead straight to terminal hypoxia--meaning, the loss of 
     all oxygen to the cells.''

  As he put it, ``waterboarding is a torture technique--without a 
doubt. There is no way to sugarcoat it.''
  A U.S. Federal court has concluded that mock drowning constitutes 
torture. The Ninth Circuit Court of Appeals examined an interrogation 
technique used by the Philippine military under Ferdinand Marcos 
whereby ``all of [the victim's] limbs were shackled to a cot and a 
towel was placed over his nose and mouth; his interrogators then poured 
water down his nostrils so that he felt as though he was drowning.'' 
The court referred to this practice as ``water torture'' and found 
against those responsible for this and other illegal acts.
  By contrast, Judge Mukasey not only refuses to state that 
waterboarding is torture, he also refuses to say whether it constitutes 
``cruel or inhuman treatment,'' which is illegal under the Military 
Commissions Act of 2006.
  Congress enacted the Military Commissions Act in the wake of Abu 
Ghraib scandal. The statute bans interrogations tactics that constitute 
``cruel or inhuman treatment,'' which it defines as any act generally 
intended to cause ``serious mental or physical pain and suffering.''
  Medical experts who have treated and observed the survivors of water 
torture have described the physical and psychological severity of the 
practice and its long-term effect. Dr. Allan Keller, associate 
professor of medicine at New York University, NYU, School of Medicine 
and director of the Bellevue/NYU Program for Survivors of Torture, 
recently testified before the Senate Intelligence Committee that a 
person subjected to the waterboard, ``gags and chokes, [and] the terror 
of imminent death is pervasive, with all of the physiologic and 
psychological responses expected, including an intense stress response, 
manifested by tachycardia, rapid heart beat and gasping for breath. 
There is a real risk of death from actually drowning or suffering a 
heart attack or damage to the lungs from inhalation of water.'' Dr. 
Keller put it plainly, the ``clinical experience and data from the 
medical literature are clear and unequivocal. These techniques can 
cause significant and long lasting psychological and often physical 
pain and harm.''
  It is clear that waterboarding involves ``serious'' physical or 
mental pain or suffering and therefore constitutes illegal ``cruel or 
inhuman treatment'' under the Military Commissions Act. Yet in response 
to questions from Senator Kennedy and Senator Biden, Judge Mukasey 
would not say whether waterboarding is ``cruel or inhuman'' under this 
legal standard.
  When asked whether the practice of mock drowning on detainees was 
``cruel, inhuman, or degrading,'' which is a violation Detainee 
Treatment Act, Judge Mukasey would not respond to the question, simply 
giving his stock answer that his analysis depends on the 
``circumstances.''
  Congress passed the Detainee Treatment Act in 2005 to make clear that 
inhumane treatment is illegal. The Detainee Treatment Act prohibits 
subjecting any detainee in U.S. Government custody or control, wherever 
held, to ``cruel, inhuman, or degrading treatment or punishment.'' 
Those terms were defined to restrict any conduct that would constitute 
cruel, unusual, and inhumane treatment or punishment prohibited by the 
U.S. Constitution, which includes conduct that ``shocks the 
conscience.''
  There can be no question that mock drowning ``shocks the conscience'' 
and

[[Page S14171]]

rises to the level of ``cruel, inhuman, or degrading treatment or 
punishment'' under the Detainee Treatment Act.
  I asked Judge Mukasey whether the practice of mock drowning on 
detainees was ``inhumane,'' which would be a violation of Common 
Article 3 of the Geneva Conventions. Judge Mukasey would not respond to 
that question, again giving his stock answer that his analysis depends 
on the ``circumstances.'' Regardless of what the President's recent 
Executive order would suggest, the humane standard of Common Article 3 
has never varied depending on the type of information in someone's 
possession or the purpose behind the acts.
  The Army Field Manual on Intelligence, which sets standards for 
military interrogations consistent with the Geneva Conventions and with 
U.S. law that prohibits ``torture or cruel, inhuman, or degrading 
treatment or punishment'' explicitly bans certain coercive techniques 
including ``waterboarding.''
  Throughout history America has condemned waterboarding by seeking 
prosecution of enemies who have used the technique on American 
servicemembers. Following the Second World War, U.S. military 
commissions and international tribunals prosecuted individuals who had 
used waterboarding, or similar forms of water torture on civilians and 
Allied forces. The U.S. military commissions in the Pacific theater 
explicitly held that the ``water cure'' was torture in prosecuting 
cases related to the mistreatment of captured U.S. bomber crews. The 
U.S. Military Commission at Yokohama, Japan also tried four Japanese 
defendants for torture, including water torture, of American and Allied 
forces. Each of the defendants was convicted and sentenced to 20 years 
hard labor.

  Would Judge Mukasey find it acceptable if U.S. soldiers were 
subjected to mock drowning by our enemies? Would he say that its 
acceptability depends on the ``circumstances''? Would Judge Mukasey say 
that he needed to know the motives of our enemies before saying that 
our soldiers who endured waterboarding had been tortured or subject to 
inhumane treatment? Would he distinguish between someone who 
waterboarded our troops to elicit information as contrasted to someone 
who used the technique on our troops for sadistic purposes?
  Judge Mukasey needs to be clear that waterboarding is illegal for the 
sake of protecting our men and women in uniform from abuse should they 
ever be captured. Judge Mukasey has not been clear and if he is 
confirmed to head our Justice Department, it will be America signaling 
moral ambiguity about what is unambiguously torture and inhumane.
  In fact, the United States has prosecuted its own servicemembers who 
have used waterboarding and similar water tortures during 
interrogations. During the American intervention in the Philippines, in 
1902, a military court rejected MAJ Edwin Glenn's defense of ``military 
necessity'' and convicted him for using water torture on a captured 
insurgent. During the Vietnam war, a soldier participated in water 
torture which was captured in photos and published in the Washington 
Post on January 21, 1968. According to the Washington Post, the soldier 
was court martialed for his involvement in the practice.
  U.S. veterans who served as interrogators in the Second World War 
recently discussed how proud they were that they were able to obtain 
vital information by using skill, not torture, and by treating a 
dangerous enemy with ``respect and justice.'' In an article in the 
Washington Post last month, one veteran proudly exclaimed:

       During the many interrogations, I never laid hands on 
     anyone. We extracted information in a battle of the wits. I'm 
     proud to say I never compromised my humanity.

  I had hoped Judge Mukasey would stand with that veteran and stand up 
for American values. But despite the clear law and history, Judge 
Mukasey engaged in legalisms and obfuscation, playing into the negative 
image that others project about the U.S.--that we apply double 
standards.
  This kind of obfuscation tarnishes America's image, which has a 
negative impact on our ability to organize and maintain alliances to 
achieve national goals. As Steven Kull, the director of the Program on 
International Policy Attitudes, stated:

       The thing that comes up repeatedly is not just anger about 
     Iraq. The common theme is hypocrisy. The reaction tends to 
     be--You were a champion of a certain set of rules. Now you 
     are breaking your own rules.

  Purposeful ambiguity about the legality of waterboarding and the 
other coercive interrogation techniques he was asked about is at the 
center of Judge Mukasey's confirmation, just as it is at the center of 
how we are viewed in the world. That ambiguity is untenable and 
unacceptable in the person who, if confirmed, will symbolize America's 
concept of justice before the world. For these reasons, I oppose Judge 
Mukasey's nomination to be Attorney General.
  Mr. FEINGOLD. Mr. President, I will vote against the nomination of 
Judge Mukasey to be the next Attorney General. This was a difficult 
decision, as Judge Mukasey has many fine qualities. I was particularly 
impressed by his determination to depoliticize the Department of 
Justice. After the debacle of the last Attorney General, this is 
obviously a very high priority. If nothing else, over the remaining 15 
months of the Bush Presidency, the Department must recover its 
credibility and its reputation. Never again should it be led by someone 
who is willing to wield its awesome power for political purposes or 
fill its most important positions with individuals chosen for their 
politics rather than their legal skills. Judge Mukasey appears to have 
the intelligence, the experience, and the stature to undertake this 
very important task.
  There are other areas where I was favorably impressed by Judge 
Mukasey. His straightforward promise to stop the disparate treatment of 
gay employees at the Department of Justice was welcome and refreshing. 
He indicated his intention to be a much more hands-on manager of the 
process for seeking the federal death penalty, and when I asked him in 
writing if a request by a U.S. attorney to discuss a death penalty 
decision with Attorney General personally was a valid reason to fire 
that U.S. attorney, he answered simply, ``No.'' If Judge Mukasey is 
confirmed, I look forward to working with him to try to ensure that 
Federal death penalty is fairly administered.
  I was also impressed that on several occasions Judge Mukasey was 
willing to admit in his written answers that some thing he had said or 
written in the past were incorrect. This administration needs more 
people who will admit they were wrong when that is the case. That kind 
of humility and honesty is often the first step toward correcting 
mistakes and reaching consensus.
  In many respects then, Judge Mukasey is a big improvement on the 
previous Attorney General. At this point in our history, however, the 
country needs more. Simply put, after all that has taken place over the 
last seven years, we need an Attorney General who will tell the 
President that he cannot ignore the laws passed by Congress. And on 
that fundamental qualification for this office, Judge Mukasey falls 
short.
  The President's warrantless wiretapping program, instituted after 9/
11 and carried out in secret until it was revealed in a New York Times 
article in December 2005, presented the Department of Justice with a 
historic test of its integrity and its commitment to the rule of law. 
Under the previous leadership, the Department failed that test. We need 
an Attorney General who, when faced with a similar crisis, will look 
the President in the eye and tell him ``No.''
  When I first met with Judge Mukasey, I questioned him about the two 
justifications for authorizing warrantless wiretaps that the Department 
has put forward publicly. With respect to the argument that the 
authorization for use of military force, or AUMF, somehow authorized 
warrantless wiretaps, he said, ``I don't see that argument.'' With 
respect to the argument that the program was legal under the 
President's article II powers, he said he was ``agnostic.''
  I and a number of my colleagues on the Judiciary Committee returned 
to this question in the hearings and in written questions for the 
record. Unfortunately, this time the results were not reassuring. He 
responded to my question for the record about the largely discredited 
AUMF justification by

[[Page S14172]]

saying that ``I still have not come to a conclusion. . . . I believe 
there are good arguments on both sides of that issue.'' That is a 
statement that ought to give pause to anyone in this body.
  His answers to questions concerning the article II justification 
indicate that he is no longer agnostic on that question, but instead he 
has become a believer that executive power trumps the laws written by 
Congress.
  Both at the hearing and in writing, Judge Mukasey stated several 
times that the President must obey all valid and constitutional 
statutes, even if he is acting to defend or protect the country. He 
also said that ``FISA is a constitutional law'' and that ``[a]s a 
general matter, therefore, the President is not free to disregard or 
violate FISA.''
  But he also stated that ``difficult separation of powers questions'' 
would arise, and would have to be resolved through the three-part test 
articulated in the Supreme Court Youngstown case, if a statute--and 
FISA in particular--were to constrain the President's constitutional 
authority. If FISA is constitutional--and Judge Mukasey says it is--
then why are these separation of powers questions so ``difficult''? 
Clearly, Judge Mukasey believes that a law can be constitutional on its 
face, but can become unconstitutional if its application constrains the 
constitutional authority of the President. There is no difference 
between this view of executive power and the theory that executive 
power trumps congressional power. There is no other way to interpret 
Judge Mukasey's statement to Senator Leahy: ``If by illegal you mean 
contrary to a statute, but within the authority of the president to 
defend the country, the president is not putting somebody above the 
law; the president is putting somebody within the law.''
  This view is simply contrary to Justice Jackson's three-part test in 
Youngstown. Youngstown makes clear that where the President's 
constitutional authority and a statute passed by Congress come into 
conflict, the President's powers are reduced by whatever powers 
Congress holds over the subject--not vice versa. Jackson states that 
when the President acts against the will of Congress, ``he can rely 
only upon his own constitutional powers minus any constitutional powers 
of Congress over the matter. Courts can sustain exclusive presidential 
control in such a case only by disabling Congress from acting upon the 
subject.'' Congress is thus free to constrain the President's 
constitutional powers to any degree it likes, as long as Congress is 
acting within its own powers in doing so; likewise, the President's 
actions may be upheld only if they are ``within his domain and beyond 
control of Congress.''
  The argument that constitutional statutes can become unconstitutional 
ignores this second part of the inquiry--whether the limitation on the 
President's authority is in an area where Congress cannot legislate. It 
is clear that wiretapping is not within the exclusive domain of the 
President, as Judge Mukasey admits that FISA is a constitutional law. 
Moreover, the executive authority that Judge Mukasey invoked most 
often--the authority to protect and defend the country--is not 
exclusive to the President. It is an authority that Congress shares, 
which Judge Mukasey admitted in answers to written questions.
  I have discussed this issue in some detail because extreme theories 
of executive power have become one of the primary, and most 
unfortunate, legacies of the Bush administration. Congress needs to be 
very clear in rejecting them, and in making respect for the rule of law 
a nonnegotiable qualification for the office of Attorney General of the 
United States.
  Let me say a word about the issue of torture, which has dominated the 
debate on the nomination of Judge Mukasey in the past week. Last week, 
the White House press secretary again implied that Members of Congress 
who have been briefed on the CIA's interrogation program have approved 
it or consented to it. That is not the case. I have vigorously opposed 
the program, and continue to do so. The program is of highly 
questionable legality, it is inconsistent with our values as a nation, 
and it does not make our Nation any safer. In fact, I believe that it 
may have the effect of exposing Americans--including military and other 
U.S. personnel--to greater risk.
  I have detailed the reasons for my strong objections to the CIA's 
program in classified correspondence, sent shortly after I was first 
briefed on it. More recently, I have stated my opposition publicly, 
although I am prohibited by classification rules from providing further 
details about my concerns in a public setting.
  In any event, neither detailed legal and factual analysis, nor 
knowledge of the operational details of the CIA's program, is necessary 
to reach a judgment on whether waterboarding is torture. Waterboarding 
has been used by some of the most evil regimes in history. It has been 
considered torture in this country for over a century. If Judge Mukasey 
won't say the simple truth--that this barbaric practice is torture--how 
can we count on him to stand up to the White House on other issues?
  America needs an Attorney General who stands squarely on the side of 
the rule of law. This is not an arid, theoretical debate. The rule of 
law is the very foundation of freedom and a crucial bulwark against 
tyranny. Congress cannot stand silent in the face of this challenge by 
the executive to the crucial underpinnings of our system of government.
  The Nation's top law enforcement officer must be able to stand up to 
a chief executive who thinks he is above the law. The rule of law is 
too important to our country's history and to its future to compromise 
on that bedrock principle.
  Mr. COBURN. Mr. President, I rise today to support the nomination of 
Judge Michael Mukasey to be Attorney General of the United States. 
Judge Mukasey is eminently qualified for this position. For almost 20 
years he served as U.S. District Judge for the Southern District of New 
York, presiding over prominent terror trials and gaining familiarity 
with complex national security issues that continue to challenge our 
Nation.
  Specifically, Judge Mukasey presided over the trial of the ``Blind 
Sheik,'' who was involved in planning the 1993 World Trade Center 
bombing. Upon conviction, Judge Mukasey sentenced the terrorist to life 
in prison. The Second Circuit Court of Appeals, in affirming the 
verdict, praised Mukasey by saying: ``The trial judge, the Honorable 
Michael B. 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.'' 
Indeed, Judge Mukasey's ruling in the Blind Sheik case presented 
extraordinary challenges--his ruling drew death threats that required 
him to receive years of 24-hour armed protection.
  Yet Judge Mukasey maintained his objectivity as a judge, ruling years 
later that while Jose Padilla--a U.S. citizen later convicted of 
Federal terrorism support charges--could be held by the government as 
an enemy combatant, he was also entitled to legal counsel. One of 
Padilla's defense lawyers who said he had ``more cases before Mukasey 
than I can count,'' praised the judge saying, ``I don't always agree 
with where he comes out . . . [but] I am always happy to draw him as a 
judge. You are going to get your day in court.'' Another of Padilla's 
lawyers said about Judge Mukasey, ``I admire him greatly,'' describing 
herself as ``another weeping fan.''
  Since his nomination, many of Michael Mukasey's colleagues and 
lawyers who appeared before him have offered statements of praise and 
support. While it would be impossible to reiterate them all, perhaps 
former U.S. Attorney Mary Jo White's statement best encapsulates the 
general sentiment. She said that Judge Mukasey ``is a man of great 
intellect and integrity with an unswerving commitment to the rule of 
law. He is independent, fair-minded and has a wealth of relevant 
experience from his years of service on the bench, in the private 
sector and as an assistant United States attorney in the Southern 
District of New York.'' I agree that Judge Mukasey's intellect, 
integrity, and experience make him uniquely qualified to serve as 
Attorney General.
  It is, however, imperative that our Attorney General put his oath to 
protect and uphold the Constitution before

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all other loyalties. As such, I looked to Judge Mukasey for assurances 
that he would put the Constitution first. Judge Mukasey gave the first 
of such assurances on October 5, 2007, the day that he was nominated, 
when he said, ``The department faces challenges vastly different from 
those it faced when I was an assistant U.S. attorney 35 years ago. But 
the principles that guide the department remain the same--to pursue 
justice by enforcing the law with unswerving fidelity to the 
Constitution.'' After studying his record and participating in the 
confirmation process, I am confident that Judge Mukasey's great respect 
for the Constitution and the rule of law is sincere.
  The Justice Department has undergone difficult times of late, but I 
know Judge Mukasey has the integrity and intellect to carry out the 
necessary work to restore the American public's trust in the 
department. America has been well-served by Judge Mukasey's past public 
service and is fortunate that such an accomplished individual--who 
entered retirement just one year ago--is willing to answer the call to 
public service once again. I thank Judge Mukasey for his continued 
sacrifice.
  I am pleased to vote in favor of Judge Michael Mukasey's nomination 
to be Attorney General of the United States and look forward to working 
with him in the future.
 Mr. McCAIN. Mr. President, I am pleased the full Senate today 
is considering the nomination of Judge Michael Mukasey as Attorney 
General of the United States. I strongly support his confirmation.
  As many of you know, the President nominated Judge Mukasey on 
September 17; however, the Senate Judiciary Committee did not vote on 
his nomination until Tuesday. This ranks as one of the longest spans 
between a nomination and a confirmation vote for an Attorney General 
nominee. This is particularly unfair to the American people who deserve 
to have in place a chief enforcer of our Nation's laws.
  I believe Judge Mukasey is the right nominee to enforce our laws, 
particularly during this time of war. As a Federal judge, he presided 
over one of the country's busiest trial courts and one that has 
overseen several terrorism-related cases. These included the trial of 
the terrorist known as ``the Blind Sheikh,'' a man who was convicted of 
conspiracy to destroy the World Trade Center.
  In comprehensive responses to questions posed by members of the 
Senate Judiciary Committee, Judge Mukasey exhibited mainstream legal 
views on constitutional checks and balances. He stated that the 
President cannot waive congressionally mandated restrictions on 
interrogation techniques, including those included in the ``McCain 
amendment'' and the Military Commissions Act. This is a particularly 
important conclusion given that, under these laws, anyone who engages 
in waterboarding, on behalf of any U.S. Government agency, puts himself 
at risk of civil liability and criminal prosecution.
  Judge Mukasey also, in a separate letter, acknowledged that the 
interrogation technique known as waterboarding is ``over the line'' and 
``repugnant.'' These are important statements, and I expect that they 
will inform his views as Attorney General. I strongly urge that, in 
that role, Judge Mukasey will publicly make clear that waterboarding is 
illegal and can never be employed.
  Waterboarding, under any circumstances, represents a clear violation 
of U.S. law. In 2005, the President signed into law a prohibition on 
cruel, inhuman, and degrading treatment as those terms are understood 
under the standards of the U.S. Constitution. There was at that time a 
debate over the way in which the administration was likely to interpret 
these prohibitions. Along with Senators Warner and Graham, I stated 
then my strong belief that a fair reading of the ``McCain amendment'' 
outlaws waterboarding and other extreme techniques. It is, or should 
be, beyond dispute that waterboarding ``shocks the conscience.''
  It is also incontestable that waterboarding is outlawed by the 2006 
Military Commissions Act, MCA, and it was the clear intent of Congress 
to prohibit the practice. As one of the authors of that statute, I 
would note that the MCA specifically prohibits acts that inflict 
``serious and nontransitory mental harm'' that ``need not be 
prolonged.'' Staging a mock execution by inducing the misperception of 
drowning is a clear violation of this standard. For this reason, during 
the negotiations that led to the MCA, my colleagues and I were 
personally assured by administration officials that this language, 
which applies to all agencies of the U.S. Government, prohibits 
waterboarding. Many of us share Judge Mukasey's revulsion at the use of 
waterboarding, and I welcome his commitment to further review its 
legality once confirmed. I expect that he will reach the same 
conclusion.
  I sincerely hope that the recent public debate over the use and 
legality of waterboarding is America's last. In discussing this 
practice, we are speaking of an interrogation technique that dates from 
the Spanish Inquisition, one that has been a prosecutable offense for 
over a century, one that was employed by the Khmer Rouge in Cambodia 
and which is reportedly being used by the thugs in Burma today against 
the innocent monks protesting their repression. Waterboarding simply 
has no place in the America I know. Let us take it off the table, once 
and for all, and move beyond this debate.
  There is evil in the world today, and it takes form in those who 
commit themselves to the destruction of America and the ideals we hold 
dear. Let us fight them, let us defend America, but let us in so doing 
never forget that we are, first and foremost, Americans. Make no 
mistake--we will prevail--but we must wage this war with fidelity to 
our laws and deepest values. These laws and values are the source of 
strength, not weakness, for though we are stronger than our enemies in 
men and arms, we are stronger still in ideals. We will win the war on 
terror not in spite of devotion to our cherished values, but because we 
have held fast to them.
  Based on the statements and responses that this nominee has provided 
over the past week, I believe that Judge Mukasey shares this view. He 
is a consensus nominee, one with a reputation as a rigorous, 
independent, and honest thinker. I am pleased to offer him our support 
and I hope that my colleagues will join us in voting for 
confirmation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, without losing my right to the floor, I 
yield to the distinguished Senator from Pennsylvania on his time to ask 
a question of the Chair.
  Mr. SPECTER. Mr. President, how much time is left on each side?
  The PRESIDING OFFICER. The Senator from Pennsylvania has 1 hour. The 
majority has a total time of 1 hour 5 minutes.
  Mr. SPECTER. Mr. President, I know of only one additional Senator who 
wishes to speak in favor of Judge Mukasey, and that request has been 
limited to 5 minutes. So I ask him to come to the floor or anyone else 
who wishes to speak on behalf of Judge Mukasey to come to the floor.
  If I may consult with my colleague, the distinguished chairman, 
perhaps we can take an inventory now as to how much time the other 
speakers will want so we can give our colleagues an idea as to when we 
will be voting.
  Mr. LEAHY. Mr. President, Senators are waiting to be recognized. I 
ask unanimous consent--the time allotted to me is 20-some-odd minutes--
that when he is recognized, the Senator from Vermont, Mr. Sanders, be 
recognized for 12 of my 24 minutes. Perhaps while the next Senator is 
speaking, I will make an attempt to find out how much more time we have 
so I can report to the Senator from Pennsylvania. I ask unanimous 
consent that when he is recognized, the Senator from Vermont, Mr. 
Sanders, be recognized for 12 minutes of my time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I reserve the remainder of my time. I yield 
the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. SALAZAR. Mr. President, I rise today to speak about the 
nomination of Judge Michael Mukasey to be the next U.S. Attorney 
General. I come to the floor tonight with a heavy heart

[[Page S14174]]

because I had hoped I would have been able to come to the floor and 
make a statement in support of Judge Mukasey.
  I reviewed the answers he gave to the Judiciary Committee and the 
written responses he gave to important questions, including the 
question of torture. After reviewing that information, I also met with 
Judge Mukasey in my office in the Senate office buildings. He was very 
generous with his time, and I very much appreciate the time he gave me 
to review some of the fundamental questions.
  There is no doubt that Judge Mukasey is a brilliant man, a talented 
and successful judge who has given a great deal to this country. So it 
is with a heavy heart that I have reached the conclusion that I cannot 
and will not support his nomination. I will not support his nomination 
because there is no room for equivocation on the American position on 
the fundamental issue of torture. There is no room for equivocation on 
that issue.
  Before coming to the Senate, I had the great privilege of serving as 
the attorney general of the State of Colorado. For me, it was an 
enormous responsibility and one which carried many duties. There were 
duties of making sure that over 10,000 people were put into prison, 
some of them serving a lifetime in prison. It was an enormous duty in 
terms of rendering tens of thousands of legal opinions to a vast State 
agency, and I understood the responsibilities of being an attorney 
general. Those responsibilities, first and foremost, were to make sure 
I was upholding the oath of office I had taken to the Constitution of 
the State of Colorado, to uphold the constitutional laws in my State, 
and to enforce those laws and to make sure no one was above the law.
  I also served as legal counsel to the Governor and to the head of 
State agencies, where I provided them legal counsel that a lawyer would 
provide to their client. As attorney general, it was not often that my 
oath to enforce Colorado's constitutional laws came into conflict with 
my responsibilities to advise and to serve the Governor. But when it 
did, it was my duty--it was my solemn duty--to defend the rule of law, 
not the Governor or the executive agency or the agency heads. On some 
occasions, driven by that solemn duty to enforce that law, I had to 
take my own clients to court to enforce the rule of law, and I did 
that.
  The Attorney General of the United States must likewise enforce our 
laws because very simply we are a nation of laws, and that is what 
makes us a special place on this globe.
  This role today is more important than at any other time in the 
history of the Justice Department. Trust in the Department is at an 
alltime low given the high-profile memos that now have become public 
which enabled torture to occur by the agents of the United States, 
which allowed for the firing of nine U.S. attorneys and other reports 
of politicization within the Department of Justice, which should never 
be politicized because it enforces our laws. Therefore, the next U.S. 
Attorney General must restore the confidence of the American people 
that the Justice Department will enforce the law regardless of the 
Attorney General's personal beliefs or who happens to sit in the Oval 
Office as President of these United States.
  I am troubled that Judge Mukasey is unwilling to clearly and 
unambiguously state that he will uphold U.S. law barring the use of 
waterboarding. I explicitly asked Judge Mukasey in my office what he 
would do as Attorney General if he were asked whether an agent of the 
United States could use waterboarding in interrogation settings. Judge 
Mukasey's response to me was disappointing. He said he did not know 
because it depended on whether there was intent to cause pain. That 
answer, in my view, is simply unacceptable given the legal history of 
this issue in this country.
  Under Common Article 3 of the 1949 Geneva Conventions, the following 
acts are prohibited at any time and at any place: First, ``violence to 
life and person, in particular . . . cruel treatment and torture, and, 
two, outrages upon personal dignity, in particular, humiliating and 
degrading treatment.''
  The War Crimes Act, as amended by the Military Commissions Act in 
2006 by this Congress, prohibits breaches of Common Article 3 of the 
Geneva Conventions which is defined in that legislation to include 
``torture and cruel and inhumane treatment.'' Torture is further 
defined as:

       The act of a person who commits, or conspires or attempts 
     to commit an act specifically intended to inflict severe 
     physical or mental pain or suffering upon another person.

  On October 5, 2005, we in this Chamber passed, by a vote of 90 to 9--
only nine Senators in this Chamber voting against the legislation--the 
Detainee Treatment Act, otherwise known by many of us as the McCain 
amendment. The amendment states:

       No individual in the custody or under the physical control 
     of the United States Government, regardless of nationality or 
     physical location, shall be subject to cruel, inhumane, or 
     degrading treatment or punishment.

  By our most basic human sensibilities, waterboarding, whereby water 
is forced into the nose, mouth, or lungs of a person to create the 
sensation that they are drowning and dying, is torture, and it is 
illegal. The feeling--from those who have spoken about this at length--
is one that causes struggle, panic, ingestion of water, vomiting, and 
psychological trauma.
  This truth, Mr. President, that this is torture, has been affirmed by 
the top lawyers in the Army, the Navy, the Air Force, and Marines, both 
current and retired. It has been affirmed by my colleagues, by some of 
my most respected colleagues on the Republican side of the aisle, for 
whom I have tremendous respect.
  Through our history, we have prosecuted those who have used the 
technique against our own people as criminals of war. When Japanese 
soldiers waterboarded American prisoners of war in World War II, we 
convicted them for their crimes. We convicted them for their crimes. 
When our own soldiers, over 100 years ago, used waterboarding in the 
1898 Spanish-American War in the interrogation of Filipino insurgents, 
they were court-martialed. In Vietnam, U.S. generals declared 
waterboarding to be illegal and strictly enforced the ban on its use.
  Mr. President, I very much recognize the importance of the advice and 
consent clause of our Constitution, in our working with the President 
in the consent function that we play with respect to his Cabinet 
appointments. I have worked very hard for 3 years on many of those 
confirmations in an effort to develop the kind of cooperation and 
collaboration that is required. However, Mr. President, there are some 
fundamental core principles for which we must stand. These principles 
are tested, no doubt, in the face of violence and war, but it is in 
these moments when these principles are all the more important. The 
fact that we do not torture, the fact that we in this Nation do not 
torture is fundamental to who we are as a people, whether it is in 
conflict, such as the conflict we are in today, or conflicts that have 
happened in the past in this Nation.
  For me, Mr. President, this is not a complex issue.
  Mr. President, I ask unanimous consent for 1 more minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SALAZAR. For me, Mr. President, this is not at all a complex 
issue. It is not open to interpretation or to equivocation. I will say 
it again: In my view, waterboarding is torture, it is illegal, and it 
is inhumane. And Judge Mukasey has refused to acknowledge that fact. 
Mr. President, I cannot, in good conscience, overlook Judge Mukasey's 
equivocation on torture.
  Our laws are clear. We need an Attorney General who will enforce 
those laws, including the laws against torture, no matter what. Mr. 
President, I will be voting against Judge Mukasey, and I would urge my 
colleagues to do the same.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. GRAHAM. Mr. President, I would ask for 5 minutes.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. And I thank the Senator from Vermont. I appreciate that.
  Mr. President, I will be voting for Judge Mukasey because I think he 
is the solution, not the problem. My good friend from Colorado made a 
very eloquent statement, and I respect him

[[Page S14175]]

greatly. This has been a good debate, and it has been long overdue.
  Where do we go, and how do we get there? What do we want to do to 
fight this war? What is in bounds, what is out of bounds? It is very 
tough, America. We are fighting a vicious enemy, one not in uniform, 
and one that will do anything to wreak havoc on this world; an enemy 
that would kill a child in a heartbeat and not think about it, in the 
name of God. So we have a real task ahead of ourselves, very difficult, 
and we have a great military.
  My question for my colleagues is, the fact that our military would do 
the things that Senator Salazar said, consciously take waterboarding 
off the table, does that make us weaker? I don't think so. I go to bed 
at night feeling pretty good about America when our military lawyers 
come before the Congress and say: We don't do that. We don't do that.
  Now, what does our enemy do when they capture one of our soldiers? We 
all know. They are brutal. They are horrible. The fact we don't cut 
their heads off, is that a sign of weakness? The fact that we will give 
them a lawyer when they won't give us one; that we will base our 
judgments on evidence, not revenge and hatred, does that make us 
weaker? No.

  The ticking time bomb is not the scenario of a terrorist who may 
possess some special knowledge. The ticking time bomb is a world that 
is losing its way. There is no shortage of people who will cut your 
head off in this world. There is a shortage of people who will stand up 
for a better way. We know what bad people will do to good people. The 
question is, what do good people do to bad people?
  We are good people, and we are struggling. And I think Judge Mukasey 
is part of the solution. He has lived a good life in the law, and he 
has been asked a question about solving a problem not of his making.
  If I thought, I say to Senator Salazar, he really believed that 
waterboarding, at the end of the day, was the legal way to do business, 
I wouldn't vote for him. He is in a bind. He can't answer that 
question. But he will one day because I have asked him. And he doesn't 
have this theory of the law that there is only one branch of Government 
in a time of war that has been pushed by this administration to the 
point of being absurd.
  He is a mainstream legal thinker. He answered my question that there 
is no power given to the President, inherent or otherwise, to avoid the 
Geneva Conventions obligations of this country or to set aside the 
McCain amendment. That was music to my ears. He is bound.
  The question for us, as we have been a part of the conventions for a 
long time, and we have led the world for a long time by being different 
from our enemy, do we reserve to our Executive in those special 
circumstances the right to set the conventions aside? You see, we are 
threatened by someone out there who has no boundaries, a group that has 
no boundaries. So do we reserve to ourselves the ability to treat them 
any way we want to because the means justifies the end?
  Well, let me tell you what will happen if we go down that road, and 
where we will wind up. What will we say to the Chinese Communist 
dictator who waterboards the Christians because they are threatened by 
the Bible? What do we say to people in China who will torture the 
Buddhist monk because they are threatened by a humble, decent religion? 
What do we say in Venezuela? What do we say anywhere in the world when 
people who feel threatened use horrible tactics simply because they are 
threatened?
  This is a good man of the law, Judge Mukasey. Over time, Senators 
Schumer and Feinstein will be shown to have done the country some 
good--a lot of good. And to those who cannot vote for Judge Mukasey 
because he didn't answer this question as directly as you would like, I 
understand. But we are about to fix a problem in the Justice Department 
that needs to be fixed, and we are going to have an honest, good debate 
about how to win this war.
  I can tell you right now, the only way we will win this war is not 
just by killing because this is not about how many of them we can kill. 
That is an endless number. This is not about a capital to conquer, an 
air force to shoot down, or a navy to sink. This is about ideas. Our 
way of living is better than theirs, only if we will have the courage 
and the common sense to embrace it and not be afraid to be good in a 
time where there is evil.
  God bless you.
  The PRESIDING OFFICER. The Senator from Vermont is recognized for 12 
minutes.
  Mr. SANDERS. Let me thank my colleague from Vermont, Senator Leahy, 
for yielding, and applaud him for the role he is playing on the 
Judiciary Committee.
  Mr. President, several weeks ago, I informed the citizens of Vermont 
that I would be voting against the confirmation of Judge Mukasey to be 
Attorney General, and tonight I am going to, in fact, be casting a 
``no'' vote.
  Mr. President, there are several reasons I will vote no on Judge 
Mukasey. First, like many of my colleagues, I was deeply disturbed by 
his response to the question of waterboarding. He apparently does not 
know whether waterboarding is torture. Well, millions of Americans know 
waterboarding is torture. People all over the world know waterboarding 
is torture. The Geneva Conventions are quite clear about waterboarding 
being torture. And, frankly, I don't think it is too much to ask for us 
to have an Attorney General who knows waterboarding is torture. That is 
one reason I am voting against Judge Mukasey, but there is a second 
reason, and perhaps maybe an even more important reason.
  For the last 6 years, it is clear that we have had a President who 
does not understand what the Constitution of the United States is 
about. What this President believes, essentially, is that he can do 
anything he wants, at any time, against anybody in the name of fighting 
terrorism. And he happens to believe the war on terrorism is unending. 
It is going to go on indefinitely. I think it is very important that we 
have an Attorney General who can explain the Constitution to a 
President who clearly does not understand it. Unfortunately, Mr. 
Mukasey is not that person.
  In the last 6 years under President Bush, we have seen the National 
Security Agency start a program which allows wiretapping without first 
obtaining a court order, to my mind, in violation of the Constitution. 
We have seen personal records that have been extensively mined for 
data. How many millions? Who knows? Nobody in the Senate really knows. 
We don't have access to that information. It is massive amounts of data 
mining, in clear violation of the privacy rights and the laws of 
America under this President.
  We have seen the phenomenon of extraordinary rendition, which has 
shifted detainees to prisons in countries abroad which allow torture. 
We have seen the firing and the politicization of the Office of the 
U.S. Attorney. We have seen detainees of the United States being denied 
the oldest right in the Western legal system--the right to habeas 
corpus. We are running a prison camp in Guantanamo where prisoners have 
minimal legal rights, which is an international embarrassment for us as 
we struggle against international terrorism. And we have seen many 
other assaults by this President on our constitutional rights and on 
the laws of this country.
  We have a President who clearly does not understand the separation of 
powers; that the Congress of the United States is an equal branch of 
our Government; that the Judiciary is an equal branch of our 
Government; that the executive branch does not have all of the power.
  A little while ago I was on a statewide TV program in Vermont. 
Somebody called in and they said: When is Congress going to begin to 
stand up to this President?
  That is a good question, and I didn't have a good answer. But what I 
can tell you, the time is long overdue for us to begin to stand up to 
this President, who thinks he can veto virtually every piece of 
legislation we send him, who ignores the Constitution of this country--
I think it is time we begin to stand up.
  I have heard some of my colleagues say, if we reject Mr. Mukasey, the 
President is not going to send us another nominee. That is the right of 
the President of the United States. But we have our rights as well. We 
have the right to demand an Attorney General

[[Page S14176]]

who supports, strongly, the Constitution and is prepared to tell the 
President when he is acting against our Constitution. That is our 
right. It is about time we began to defend our right.
  I can't blame the President for taking over the rights of Congress, 
if Congress is not prepared to stand up and fight back. I think that 
time is long overdue.
  Mr. President, if you do not want to send us another nominee, that is 
your right. We have our rights as well. I will be voting against Mr. 
Mukasey. I hope my colleagues do as well.
  In conclusion, I ask unanimous consent that letters of opposition and 
concern from the American Civil Liberties Union, the Leadership 
Conference on Civil Rights, and Common Cause be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               American Civil Liberties Union,

                                 Washington, DC, November 5, 2007.
     Re Nomination of Michael Mukasey for Attorney General
     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Leahy and Senator Specter: The American Civil 
     Liberties Union strongly urges you to oppose moving the 
     nomination of Judge Michael Mukasey for Attorney General out 
     of the Judiciary Committee unless he states that 
     waterboarding and other extreme interrogation tactics are 
     torture, within the meaning of federal law, and commits to 
     the full enforcement of federal laws against torture and 
     abuse. This commitment is important for two reasons: (1) to 
     ensure that the federal government stops, and does not 
     resume, the use of torture and abuse in interrogations; and 
     (2) to have the next attorney general committed to 
     investigating and, if appropriate, prosecuting persons who 
     authorized or committed torture or abuse.
       Mukasey's unwillingness to answer questions on whether 
     waterboarding and similar practices are torture undermines 
     the rule of law and threatens the security of Americans. In 
     response to questions from members of the Judiciary 
     Committee, Mukasey not only refused to state whether 
     waterboarding is torture when authorized by or committed by 
     the federal government, but he also refused to say whether it 
     is illegal for foreign countries to commit acts such as 
     waterboarding, electric shocks, beatings, head slaps, and 
     induced hypothermia on Americans.
       Federal law is clear that waterboarding and all other forms 
     of torture and abuse are illegal. The Anti-Torture Act 
     criminalizes the use of torture; the War Crimes Act 
     criminalizes the use of torture and abuse against detainees 
     protected by the Geneva Conventions (which includes alleged 
     Taliban and al-Qaeda detainees); the McCain Amendment of the 
     Detainee Treatment Act reaffirms the prohibition in the U.S.-
     ratified Convention Against Torture against the use of 
     torture and cruel, inhuman, and degrading treatment; the 
     U.S.-ratified Convention Against Torture prohibits all 
     torture and cruel, inhumane, and degrading treatment, and 
     general criminal laws such as federal statutes criminalize 
     conduct such as assaults by or against Americans in federal 
     facilities. These laws reflect American values, all in 
     statutes or treaties enacted or ratified under presidents 
     ranging from Ronald Reagan to George W. Bush.
       However, Mukasey refuses to answer the straightforward 
     question of whether waterboarding is torture, and thereby 
     illegal. In a four-page response to ten members of the 
     Committee, Mukasey describes how he would decide the question 
     of whether waterboarding is torture, but he states the 
     question is ``hypothetical'' and that ``the actual facts and 
     circumstances are critical.'' The actual facts and 
     circumstances of waterboarding are brutal, but fairly simple. 
     Several senators described to Mukasey all of the elements of 
     waterboarding, as practiced over the centuries by 
     dictatorships, rogue nations, and war criminals--and as 
     prosecuted by the United States against war criminals. 
     Mukasey has the law, including the Anti-Torture Act and the 
     War Crimes Act, and all of the facts before him. After 
     decades as a Federal prosecutor and Federal judge, Mukasey 
     certainly has the capacity to answer the question of whether 
     waterboarding is torture.
       In addition to undermining American values, Mukasey's 
     unwillingness to answer the question on whether waterboarding 
     is torture could threaten the security of Americans overseas. 
     In a little-noticed question-and-answer, Senator Kennedy 
     asked Mukasey, ``Do you think it would be lawful for another 
     country to subject an American to waterboarding, induced 
     hypothermia or heat stress, standing naked, the use of dogs, 
     beatings, including head slaps, or electric shocks?'' Mukasey 
     responded with his stock response that he cannot answer 
     hypotheticals, and that ``the actual facts and circumstances 
     are critical.'' This response was to a question on whether it 
     was illegal for a foreign country to shock, beat, and 
     waterboard an American citizen. The response provides no 
     assurance to American servicemen and servicewomen and 
     American intelligence personnel that the United States will 
     demand protection for them against foreign torturers.
       This line of questioning is not hypothetical. The use of 
     waterboarding and other forms of torture was reportedly 
     discussed and approved based on discussions that occurred at 
     the highest levels of government, including participation by 
     aides to the President and Vice President. The result was 
     authorization of specific forms of torture and abuse, and a 
     permissive climate that fostered even more torture and abuse. 
     Federal Government documents obtained by the ACLU through our 
     Freedom of Information Act litigation and reports of the 
     International Committee of the Red Cross documented torture 
     or abuse against U.S.-held detainees, including acts such as 
     soaking a prisoner's hand in alcohol and setting it on fire, 
     administering electric shocks, subjecting prisoners to 
     repeated sexual abuse and assault, including sodomy with a 
     bottle, raping a juvenile prisoner, kicking and beating 
     prisoners in the head and groin, putting lit cigarettes 
     inside a prisoner's ear, force-feeding a baseball to a 
     prisoner, chaining a prisoner hands-to-feet in a fetal 
     position for 24 hours without food or water or access to a 
     toilet, and breaking a prisoner's shoulders.
       Mukasey's equivocal responses to these questions on 
     waterboarding and other forms of torture and abuse reveal a 
     more fundamental and troubling problem with his views on the 
     scope of executive power--not only on torture--but on 
     government spying as well. Under the theory of executive 
     power Mukasey espoused, any restrictions on government spying 
     that Congress passes may be meaningless, since Mukasey 
     believes the president has power to engage in domestic 
     wiretapping without a warrant and outside the law. If an 
     Attorney General, whose mission is to enforce the law, 
     believes the President has the power to disregard the law, 
     our constitutional balance of powers is in peril.
       A forthright answer to a question about torture is so 
     fundamental to restoring the rule of law that the Judiciary 
     Committee should not move Mukasey's nomination out of 
     committee unless he states that waterboarding and other 
     extreme interrogation tactics are torture. American values 
     and American security both depend on his answer.
       Thank you for your attention to this matter, and please do 
     not hesitate to call us if you have any questions regarding 
     this issue.
           Very truly yours,
     Caroline Fredrickson,
                                                         Director.
     Christopher E. Ander,
     Legislative Counsel.
                                  ____



                                               Washington, DC,

                                                 November 5, 2007.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Leahy and Ranking Member Specter: On behalf 
     of the undersigned organizations, we write to express our 
     opposition to the confirmation of Judge Michael B. Mukasey to 
     the office of Attorney General. At his hearing and in his 
     responses to written questions, Judge Mukasey refused to 
     condemn waterboarding as torture, endorsed broad assertions 
     of executive authority, and failed to make firm commitments 
     to the enforcement of civil rights. For these reasons, we are 
     compelled to oppose his nomination.
       What is urgently needed in our next Attorney General is an 
     unequivocal commitment to thoughtfully and independently 
     uphold the rule of law. However, on human and civil rights 
     issues, it is difficult to distinguish Judge Mukasey's views 
     from the controversial views of this Administration. It seems 
     certain that, after his careful avoidance of making 
     commitments that might be antithetical to the 
     Administration's interests, Judge Mukasey is either unwilling 
     to exercise the independence we need in our next Attorney 
     General on critical issues, or his views align perfectly with 
     those of the President.
       On the issue of interrogation techniques, Judge Mukasey 
     acknowledged that the law holds that torture is unlawful, but 
     declined to state whether waterboarding is torture. 
     Waterboarding, a technique defined as the use of a wet towel 
     to induce the misperception of drowning, has been declared 
     unlawful by all four current Judge Advocate Generals of our 
     armed services. Judge Mukasey's condemnation of this 
     technique as ``repugnant,'' while true, is inconsequential; 
     what counts is his legal opinion of whether the practice is 
     torture. In spite of the fact that waterboarding is widely 
     classified by military officials and human rights experts as 
     unlawful torture, Judge Mukasey refused to answer this 
     question directly.
       Judge Mukasey further endorsed a view of executive 
     authority that greatly expands the power of the President at 
     the expense of the other branches of government. Judge 
     Mukasey suggested he would allow the President to engage in 
     warrantless surveillance of persons in the United States in 
     violation of congressional laws. Indeed, he outlined a view 
     of the Constitution that privileged the view of the executive 
     branch over that of Congress on matters of constitutional 
     interpretation, making it possible for the President to 
     disregard the laws of Congress based on the President's 
     constitutional judgment.

[[Page S14177]]

     In fact, under this view, the President's failure to enforce 
     a congressionally-enacted law would prevent the courts from 
     ever having an opportunity to weigh in, making the 
     President the final arbiter of constitutionality of our 
     laws.
       Finally, with respect to questions regarding how he would 
     improve civil rights enforcement, Judge Mukasey offered 
     platitudes, but no firm commitments. Civil and voting rights 
     enforcement have been low priorities within the Department of 
     Justice, making it especially important that the next 
     Attorney General have a thorough understanding of our civil 
     rights laws and be committed to the vigorous and unbiased 
     enforcement of those laws. Judge Mukasey failed to offer 
     solutions to the extremely low number of cases brought by the 
     Civil Rights Division on behalf of women and minorities in 
     employment discrimination cases. On an issue as central to 
     the civil rights community as voting rights, Judge Mukasey 
     would not commit to the straightforward proposition that a 
     voter identification requirement that disproportionately 
     impacts minorities could violate Section 2 of the Voting 
     Rights Act. His responses to questions concerning civil and 
     voting rights enforcement evidenced little understanding of 
     the problems that currently plague the Civil Rights Division.
       Nowhere is the Senate's constitutional role in reviewing a 
     presidential cabinet nominee more important than in the case 
     of a prospective Attorney General. Judge Mukasey has failed 
     to deliver on the expectation that he would be willing to 
     challenge this Administration's widely condemned human and 
     civil rights policies. As a result, there is serious doubt 
     about his suitability for the position of Attorney General 
     and about the impact his tenure would have on civil and human 
     rights in this country and elsewhere. Thus, we must urge you 
     to not confirm Judge Mukasey.
       Thank you for your consideration. If you have any 
     questions, please feel free to contact LCCR Vice President 
     and Director of Public Policy Nancy Zirkin or LCCR Counsel 
     and Policy Analyst Paul Edenfield.
           Sincerely,
       Leadership Conference on Civil Rights.
       AFL-CIO.
       AFSCME.
       American-Arab Anti-Discrimination Committee (ADC).
       Asian American Justice Center.
       Global Rights: Partners for Justice.
       Human Rights First.
       International Union, United Auto Workers.
       National Association for the Advancement of Colored People 
     (NAACP).
       National Fair Housing Alliance.
       National Urban League.
       Open Society Policy Center.
       People For the American Way.
       Service Employees International Union (SEIU).
                                  ____



                                                 Common Cause,

                                 Washington, DC, November 5, 2007.
     Senator Patrick Leahy,
     Chair, Senate Committee on the Judiciary, Washington, DC.
       Dear Senator Leahy: Common Cause believes that it would be 
     a serious mistake for the Senate Judiciary Committee to 
     confirm Judge Michael Mukasey's nomination as attorney 
     general to replace Alberto Gonzales.
       In his nomination hearings before the Senate Judiciary 
     Committee, Judge Mukasey provided evasive answers to critical 
     questions about whether ``waterboarding'' is torture, 
     feigning ignorance of the well-known procedure and dodging 
     the question when it was defined for him.
       An attorney general's first job is to protect the rule of 
     law, not to protect a President. We have just seen the damage 
     caused when an attorney general places partisan loyalty above 
     law. The country cannot withstand more of such disregard for 
     the rule of law.
       As the Committee knows--and now the American public knows 
     too well--waterboarding has been an infamous form of torture 
     dating back as far as the Spanish Inquisition. The United 
     States has both prosecuted waterboarding as a war crime when 
     used against our soldiers and court marshaled a U.S. military 
     officer who used it against our enemies, George Washington 
     University Professor Jonathan Turley wrote last week.
       Senator Charles Schumer (D-NY) stated that in conversations 
     with Judge Mukasey as late as Friday, Judge Mukasey assured 
     him that Congress could pass a law banning waterboarding and 
     other forms of torture and the President would have 
     absolutely no authority to ignore such a law. But, under the 
     Geneva Convention, adopted by the United States as law, it is 
     already against the law to use waterboarding.
       Judge Mukasey's disingenuous responses about torture shows 
     a contempt for Congress and a disturbing willingness to turn 
     his back on the law when the alternative--acknowledging 
     illegal torture--could have troubling implications for the 
     President who nominated him.
       This is unacceptable from a nominee to America's top law 
     enforcement position. And it is equally unacceptable for the 
     United States Congress to turn its back on its constitutional 
     duty.
       Judge Mukasey's non-answers on torture do not stand alone. 
     We are equally concerned about his equivocations on the 
     President's power to conduct a secret program of warrantless 
     wiretapping, despite laws duly enacted by Congress and 
     protections afforded to all Americans by the Constitution.
       It is the hope of the nation that a new attorney general 
     will be a fresh start for the Justice Department that 
     Gonzales tarnished through his partisanship and left in 
     tatters. That hope cannot be served by a nominee who begins 
     by dissembling over what the law is in order to protect the 
     Administration and the Justice Department from possible 
     unpleasant ramifications even before he has been confirmed. 
     It is difficult to see how such a nominee could repair the 
     integrity and reputation of the Justice Department, heighten 
     sagging morale or stem the exodus of career professionals 
     fleeing that agency.
       Common Cause believes this is one of the most urgent issues 
     of our day: a President who usurps greater and greater powers 
     without regard for the law or Constitution, and a Congress 
     that stands idly by and lets it happen. Common Cause took a 
     stand when the actions of President Nixon threatened to 
     unravel America's democracy, and we take the same stand now.
       The American people are watching what you do this week. The 
     whole world is watching. We need you to demand respect for 
     the rule of law, the Constitution, and the role of the United 
     States as a reliable world partner dedicated to international 
     justice. It is up to you to restore voters' confidence in the 
     vitality of America's democracy. And it is up to you to 
     safeguard our troops abroad, who become more vulnerable to 
     torture when we condone it.
       Common Cause urges you to stand firm and vote against the 
     confirmation of Judge Mukasey as our next attorney general. 
     We urge you to turn the tide on abuse of executive power and 
     show America that they can depend on you to defend the 
     Constitution and the rule of law.
           Sincerely,
                                                        Bob Edgar,
                                                President and CEO.

  The PRESIDING OFFICER. Who yields time?
  Mr. HARKIN. Mr. President, how much time do I have?
  The PRESIDING OFFICER. The Senator from Iowa has 10 minutes.
  Mr. HARKIN. Mr. President, despite the many positive attributes of 
Judge Mukasey, I cannot support his nomination for Attorney General. 
The next Attorney General must be more than a capable steward of the 
Department of Justice. I have heard a lot about that, that he can run 
it well.
  Given this administration's disdain for the rule of law, it is 
imperative the next Attorney General be a strong and independent voice 
for a return to the very basic principle that we are a government of 
laws and not of the King--the President. Regrettably, I do not believe 
Judge Mukasey will be that voice.
  Over the last 6 years, this administration, supported by faulty legal 
opinions from the Justice Department, has claimed it can ignore acts of 
Congress. The President has argued that, despite the fact that since 
1978 the Foreign Intelligence Surveillance Act has been the law of the 
land, he, the President--he has the authority, he says, despite the 
law, to eavesdrop on American citizens without a warrant or judicial 
review. He, the President, believes--the President, the King--he can 
seize American citizens on American soil, indefinitely detain them 
without charges, without providing the accused access to counsel, 
without judicial review. He--the President, the King--believes he can 
utilize interrogation techniques long considered immoral, ineffective, 
and illegal, regardless of the laws and treaties Congress has approved.
  As Justice Sandra Day O'Connor wrote, however, ``[a] state of war is 
not a blank check for the President when it comes to the rights of the 
nation's citizens.''
  At a time when we sorely need an Attorney General who will stand up 
for the rule of law, Judge Mukasey has expressed a troubling view of 
unchecked Executive power. For example, Judge Mukasey asserted that the 
President can violate congressional statutes where the President claims 
broad authority to ``defend the Nation.'' That is a loophole big enough 
to drive anything through. Judge Mukasey refused to answer whether he 
believes American citizens, detained by the President, have the right 
to habeas corpus, a right that goes back to 1215; the Magna Carta, 
articles 38 and 39 of the Magna Carta. You go read it. It says the King 
can't pick you up and throw you in jail and hold you there unless it is 
supported by evidence and testimony from your peers. That is the right 
of habeas corpus, enshrined, article I, section 9 of our Constitution. 
Mukasey refused to answer whether he believes American citizens have 
the right to habeas corpus when they are detained by the President.
  Similar to many of my colleagues--the Senator from Vermont and the

[[Page S14178]]

Senator from Colorado talked about this--I am deeply troubled by the 
judge's failure to assert that waterboarding is illegal, a process that 
simulates death by real drowning. Everybody is focused on 
waterboarding. Sadly, he also refused to answer that other terrible 
practices which this administration has used are illegal. These include 
electrical shocks, beatings, the use of dogs, forcing prisoners to 
stand naked, induced hypothermia. Judge Mukasey doesn't know--he 
doesn't know whether these are illegal. Imagine that.
  Let there be no misunderstanding. Whether waterboarding is illegal is 
not a difficult question. This Senate has repeatedly stated it, going 
back at least to the ratification of the Geneva Convention in 1955, 
that torture is a violation of our highest values and simply not 
permitted. In 2005, we adopted the McCain amendment, 90 to 9, 90 votes 
to 9. The amendment stated that cruel, degrading or inhuman treatment 
of detainees was prohibited.
  Last year, the Military Commission Act expressly made clear that the 
President is bound by the prohibitions against cruel, inhuman, and 
degrading treatment of prisoners. Yet Judge Mukasey says he doesn't 
know. He can't determine whether waterboarding is illegal because he 
has not seen the evidence. He has not seen the classified material.
  You don't need classified material. You don't need any classified 
material on this.
  RADM John Hutson, former Judge Advocate General of the Navy, 
testified that, ``other than, perhaps the rack and thumbscrews, 
waterboarding is the most iconic example of torture in history.'' He 
added, ``[I]t has been repudiated for centuries.'' Going back to the 
Spanish Inquisition and including World War II, the U.S. military has 
brought charges against those who practice this technique. In adopting 
the Military Commission Act, many Senators made clear that 
interrogation techniques such as waterboarding are illegal and 
constitute ``grave breaches'' of the Geneva Conventions.
  Given this law, given the history, it is disappointing that an 
esteemed judge, with the highest reputation in our legal community, 
would not unequivocally state that, of course, waterboarding is both 
torture and it is illegal. It wasn't a difficult question. It is a 
question any serious candidate for Attorney General should answer. 
Because he could not answer it, he is not qualified to be Attorney 
General.
  Are we going to have another Attorney General who is going to kowtow 
to the King--the President--I am sorry, I get those terms kind of 
confused when I am talking about Bush. I don't know whether he is King 
or President. According to the last Attorney General, he was King. 
Maybe this one believes the same thing. He can do whatever he wants to. 
But even in 1215, the King of England was held to the standard of 
habeas corpus. I guess we want to turn the clock back to before the 
Magna Carta.
  I am also troubled by Judge Mukasey's refusal to commit to recommend 
to the President that the detention center at Guantanamo Bay be closed. 
He said, ``There are substantial problems with Guantanamo, both 
problems of reality and problems of perceptions.'' If he believes that, 
why wouldn't he join with Secretary of Defense Gates and former 
Secretary of State Colin Powell in recommending that it be closed?
  I have a petition, signed by more than 1,000 people from around the 
United States, urging that our next Attorney General be committed to 
closing down the detention facility at Guantanamo Bay.
  I ask unanimous consent it be printed in the Congressional Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                            Text of Petition

       Revelations of human rights abuses at the prison at 
     Guantanamo Bay have damaged America's reputation and impeded 
     our efforts to fight terrorism.
       By continuing to isolate detainees on Guantanamo Bay 
     without bringing charges against them, we have forfeited our 
     moral leadership and hindered our ability to rally support in 
     our fight against terrorism. Closing this facility is our 
     single best opportunity to rally our allies in a more 
     effective fight against terrorism and reduce the risk to 
     Americans traveling abroad.
  Mr. HARKIN. Mr. President, issues such as torture and Guantanamo Bay, 
I have to admit, are somewhat personal to me. It was 20-some years 
ago--I am sorry, 37 years ago, now that I think about it, 1970--when I 
was a congressional staffer on the House side, for a committee that 
went to Vietnam to investigate our involvement in the war in Vietnam. 
During that trip over, through a series of circumstances and because of 
the bravery of a couple of young people, I was able, with two 
Congressmen--Congressman ``Gus'' Hawkins from California and 
Congressman Bill Anderson from Tennessee--to uncover the infamous tiger 
cages on Con Son Island off the coast of Vietnam.
  What did we find there? Inhuman, degrading, terrible conditions, 
where the Vietnamese had imprisoned civilians--students, human rights 
activists, along with North Vietnamese POWs--being tortured almost on a 
daily basis. It would take me more time than I have this evening to be 
able to describe to you the horrors we saw when we broke into this 
prison. It was all done with the full knowledge and consent and 
supervision of the U.S. Government. That is proven. That is on the 
record. It is on the record.
  I saw the damage that it did, what that did to us. We were always 
saying to the North Vietnamese: Treat our prisoners according to the 
Geneva Conventions, when our colleague John McCain was there, and 
others. Yet we were doing the same thing in Vietnam. If you want to go 
into the court of world opinion, you better go in with clean hands; the 
court of equity. What we are doing now in Guantanamo covers all that 
up. It does damage to our reputation. It makes us like them.
  The one thing we proved in the 1950s when Joseph McCarthy stood on 
the floor of this Senate--one thing we proved then is we did not have 
to be like the Communists to beat them. We don't have to be like the 
terrorists to beat them. The more we are like them the more likely we 
are to lose. We need an Attorney General of the United States who has 
the guts to stand before the committee and say he is going to tell the 
King that the King is wrong, and this Attorney General nominee will not 
do that.
  Oh, he may run a good department. Oh, he may do all the right things. 
But we need an Attorney General to tell this King he is wrong and that 
the rule of law will apply and the rule of law says we will not 
torture. We will not treat people with inhumane treatment. We will 
abide by the Geneva Conventions. We will not be like our enemies.
  That will send a stronger signal to the world than anything else we 
could do. For those reasons I, in good conscience, cannot in any way 
support this nominee for Attorney General.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HARKIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I ask the Senator from Connecticut how 
much time he would like.
  Mr. LIEBERMAN. Up to 5 minutes.
  Mr. SPECTER. I yield 5 minutes to Senator Lieberman, then Senator 
McConnell, the Republican leader, will speak.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I thank my friend from Pennsylvania. I 
have spoken before on the Senate floor about the nomination of Judge 
Michael Mukasey to be our next Attorney General. I can be brief.
  I have listened to my colleagues. I respect what they have said. I 
have listened to those who have spoken against Judge Mukasey's 
nomination. I am compelled to rise and speak because, with all respect, 
based on knowing this man for 43 years, I believe people are not 
treating him fairly who are contemplating voting against him.
  I respect the opinions that have been stated. But based on this long 
knowledge of this good man, I think he deserves to be confirmed by the 
Senate by a very strong vote. I met Michael

[[Page S14179]]

Mukasey when we first arrived together at law school--the same law 
school, Yale Law School.
  As I have said on the Senate floor before, the young man I met then--
smart, sensible, honorable, good sense of humor--is very much the same 
man who has been nominated by President Bush to be our next Attorney 
General, except, of course, that he is older and wiser and has had 
extraordinary experiences as an attorney in private practice, as a very 
successful assistant U.S. attorney, as a Federal judge respected by all 
who came before him, and now, in really a twist of fate, having retired 
from the bench, gone back to private practice, he comes to the 
attention of President Bush and is nominated as Attorney General.
  He carries with him all the attributes one would expect and want of 
an Attorney General. I would add this: He is exactly the right person 
to be Attorney General at this moment in our Nation's history, after 
the travails the Department has been through, the accusations of 
excessive political interference there, the questions about the 
judgment of the previous Attorney General. I cannot think of a nominee 
for Attorney General who will be more independent of the President 
nominating him than Michael Mukasey in a long time.
  Think about it. President Kennedy nominated his brother. President 
Carter nominated Griffin Bell, his attorney and close friend from 
Atlanta. President Reagan nominated his own lawyer, William French 
Smith, to be Attorney General, and so on. President Bush and Michael 
Mukasey, as far as I know, did not know each other before his 
consideration for this position. But he impressed the President based 
on his experience, his knowledge, his record; particularly his record 
in dealing with difficult cases regarding terrorism.
  He has the integrity, the sound legal judgment, and the tremendous 
work ethic to raise this Department up to where we need it to be, to 
raise the morale of the employees of the Department.
  If you look at the whole record of his experience, it seems to me, as 
I have listened to my colleagues who are opposing him, they are in 
large part expressing their opposition to the administration, to the 
judgments made by the previous Attorney General, and not being fair to 
this nominee.
  Judge Michael Mukasey is a man of the law. He is not a man of 
politics. If he was a man of politics, he would have said waterboarding 
is illegal because he knew that is what many Members of the Senate 
wanted him to say. But he did not believe, as a matter of law, as a man 
of law, that he was justified in saying that.
  I hope all my colleagues have read Judge Mukasey's response to the 
letter that was sent to him by the chairman of the Judiciary Committee 
and other members on this question of waterboarding because it tells 
you who Judge Mukasey is and what kind of Attorney General he will be. 
It is a reasoned opinion. It is a straightforward opinion. It is an 
opinion based on law.
  He says waterboarding to him personally is repugnant. He says, he 
opines, as a matter of law, that waterboarding done by employees of the 
Department of Defense is illegal. I have not heard that enough in this 
debate. He says that explicitly in this letter. Why? Because the law 
says it is illegal.
  The Detainee Treatment Act refers to the field manual of the 
Department of Defense, and that field manual said waterboarding is 
illegal; therefore, Judge Mukasey says waterboarding is illegal.
  But then he says: I cannot say that for other employees of the 
Federal Government, particularly employees of the intelligence 
community, because there is no law that says that. And I would have to 
have the evidence of what it is, the previous legal opinions to do so. 
So he answered as a man of law, not a man of politics.
  He is extremely well suited to be the Attorney General America needs 
now. I say this based on long knowledge of this man and his record. He 
ought to be confirmed overwhelmingly.
  I regret that appears not to be what will happen. But I take some 
comfort from the fact that he will be confirmed. I am confident those 
who are his detractors today will become his admirers over the next 
year and a half as he conducts himself as the Attorney General of the 
United States.
  Mr. McCONNELL. Mr. President, I am pleased that today, 7 weeks after 
he was nominated, the Senate will finally vote on the confirmation of 
Judge Michael Mukasey to be our Nation's 81st Attorney General.
  Judge Mukasey's nomination is the culmination of a process in which 
the President was extremely solicitous of the views of the Democratic 
majority. In fact, it's hard to imagine how he could have been any more 
bipiartisan with respect to this nominee. Just to recap:
  Our Democratic friends did not want the former Attorney General to 
continue in office. Well, he has resigned.
  Our Democratic colleagues wanted to be consulted on whom the next 
Attorney General should be. Well, the administration consulted 
extensively with them.
  Our Democratic colleagues said that if the ``President were to 
nominate a'' conservative ``like a Mike Mukasey,'' he ``would get 
through the Senate very, very quickly.'' Well, the President did not 
nominate someone ``like'' Mike Mukasey; he nominated Mike Mukasey 
himself. And the President received widespread acclaim for choosing a 
``consensus'' nominee.
  So it is apparent that the President acted in a very bipartisan 
fashion. Did our Democratic friends reciprocate? Let's review the 
record:
  First, they held up the nomination for weeks before even scheduling a 
hearing, a failure to act which the Washington Post termed 
``irresponsible.''
  Then, despite the fact that Judge Mukasey testified for 2 days and 
answered over 250 questions, our Democratic colleagues asked him an 
additional 500 written questions. By contrast, Attorney General Reno 
did not receive any written questions until after she was confirmed.
  Then it took our Democratic colleagues over 2 weeks to schedule a 
markup. Again, by contrast, the Judiciary Committee marked-up Attorney 
General Reno's nomination on the very same day it finished her 
hearings.
  By the time the Mukasey nomination was marked-up, this ``consensus'' 
nominee had somehow become ``controversial.'' How did this happen? The 
answer is that Judge Mukasey fell victim to the politicization of the 
confirmation process, just like another recent nominee who suddenly 
became ``controversial.''
  Both Leslie Southwick and Michael Mukasey were nominated because they 
were consensus candidates:
  Judge Southwick previously had been unanimously approved by Democrats 
on the Judiciary Committee.
  And Judge Mukasey had been repeatedly recommended by a Democratic 
member of that committee, not just for a 15-month stint as Attorney 
General but even for a lifetime position on the Supreme Court.
  Judge Southwick was suddenly deemed controversial because of two 
opinions out of 7,000. He didn't write either of them and at any rate, 
both opinions existed when the Judiciary Committee earlier approved him 
to another lifetime Federal judgeship.
  And Judge Mukasey suddenly became controversial because of one 
question out of the 750 oral and written questions he was asked. That 
one question was whether waterboarding terrorist killers legally 
constitutes torture in all applications, regardless of circumstances 
and regardless of how many American lives might hang in the balance.
  Well-known members of the vast Right Wing Conspiracy, like Professor 
Alan Dershowitz of Harvard Law School and Stuart Taylor of National 
Journal, say the answer to that question is no. But Judge Mukasey 
didn't say anything even close to that. He was far more reserved.
  Rather, Judge Mukasey promised to bring his trademark thoughtfulness 
to bear in answering this question, and swore that he would rather 
resign than countenance any illegality. In doing so, Judge Mukasey 
answered the question the way his Chief Recommender, our friend, the 
senior Senator of New York, said it ought to be answered, namely, 
``carefully.''
  Specifically, in 2004, Senator Schumer implored us to be 
``reasonable'' and not get into ``high dudgeon'' about the issue of 
torture. He noted:


[[Page S14180]]


       There are probably very few people in this room or in 
     America who would say that torture should never, ever be 
     used, particularly if thousands of lives are at stake.

  Our friend from New York noted that it is easy to ``sit back in the 
armchair'', as he put it, and demagogue the issue. But ``when you're in 
the foxhole,'' as he described it, ``it's a very different deal.''
  Senator Schumer said he respected ``the fact that the President is in 
the foxhole every day. So he can hardly be blamed for asking'' his 
Attorney General or his White House counsel or the Defense Department 
``to figure out when it comes to torture, what the law allows and when 
the law allows it and what there is permission to do.'' But, our friend 
from New York correctly cautioned, the legal analysis has ``to be done 
carefully.''
  Judge Mukasey applied just such a careful analysis to this legal 
question. And an important part of carefulness, of course, is not to 
prejudge the legality of an intelligence program that one is not read 
into, and that concerns interrogation techniques that, even if used, 
are classified.
  But despite the fact that Judge Mukasey answered the question in the 
same thoughtful manner that our friend from New York noted it demands, 
and despite the fact that Judge Mukasey was much more reserved in his 
pronouncements than Professor Dershowitz, this once-consensus candidate 
is now controversial. If my Democrat colleagues vote against Judge 
Mukasey because of his comments on waterboarding, it must mean they 
also would vote against Professor Dershowitz and Senator Schumer if 
they were nominated for Attorney General.
  I have a hard time believing that my Democratic colleagues would vote 
against Professor Dershowitz's nomination to be Attorney General. And I 
have an even harder time believing that our colleagues would vote 
against Senator Schumer if he were nominated to this position.
  In conclusion it should not have taken nearly this long to process 
Judge Mukasey's nomination. I am glad that tonight, almost 2 months 
after he was nominated, the waiting will finally end, and that Judge 
Mukasey will soon get to work at the Justice Department, the thing our 
Democratic colleagues said they wanted all along.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, I yield back the time of the majority except 
for the statement I am going to give.
  Mr. LEAHY. Mr. President, parliamentary inquiry: Is there still time 
reserved to the Senator from Vermont?
  The PRESIDING OFFICER. Yes, there is.
  Mr. LEAHY. How much?
  The PRESIDING OFFICER. Ten minutes.
  Mr. LEAHY. I don't want to interfere with the majority leader, but I 
am not about to yield back that time, if I might mention for a moment, 
and then I will yield it back so he may speak, I hate to see records 
made on this floor that bear absolutely no relationship to the facts. 
The suggestion was made that there was one question on waterboarding 
out of hundreds of questions and that created the problem. Unlike 
Senators who may have spoken that way, I was there. I was there through 
the whole hearing on the first day. I was there through the whole 
hearing on the second day. I am probably the only Senator, other than 
possibly Senator Specter, who was there for every bit of it. There were 
several questions on this issue. In fact, the reason that as chairman I 
had a second day of hearings is because of some of the questions that 
were raised on the first day of hearings. I took the transcript and 
read it during that night because of it. There were questions on 
executive privilege, but there were questions on waterboarding.
  Contrary to suggestions which seem to be more for political cover by 
some who may want to vote one way or the other, we do not need a new 
law on waterboarding. President Teddy Roosevelt did not need a law on 
that to find people had violated our laws 100 years ago. We did not 
need a new law on the question of waterboarding to prosecute Japanese 
war criminals for waterboarding Americans. We have not needed it at 
all. It is against the law. We do not need it. None of the military who 
write our Uniform Code of Military Justice need a new law to find it 
wrong. None of the Judge Advocate Generals need a new law to find it 
wrong. They have declared it wrong.
  Our treaties, our other obligations find it wrong. Up until the last 
week or so of this administration, we would have objected to any other 
country using such techniques on Americans as wrong.
  I understand the White House determines what their nominees want to 
say. That is fine. I have not lobbied any Senator one way or the other 
on this issue. But let us not pretend there was one question out of 
hundreds on waterboarding. There were many questions. Several Senators 
asked questions on this, more on the philosophy of: Is a President 
above the law? Can the President arbitrarily set people in this country 
above the laws of America or do the laws that we pass and their 
assignment to law by Presidents, is that a law that applies to every 
single American, including the President of the United States? Most of 
us feel the same way we learned in civics 101, that no one in America 
is above the law. That is the issue we raised in the Judiciary 
Committee. Those who are voting no on this is because they felt a great 
deal of concern about the answers.
  Nobody questions Judge Mukasey's legal abilities. I find him a very 
attractive candidate for Attorney General. I do not find the ability to 
continue to vote for a myth that somehow the President is above the law 
anymore than those of us who voted to confirm General Petraeus were, as 
the White House then wanted to say, saying that we believed in 
everything the President was doing in Iraq. Many of us voted against 
the war in Iraq who then voted for General Petraeus because of his 
ability as a four star general. They are entirely different things. The 
suggestion otherwise, I find beneath the quality of discourse in this 
great body. I resent it. I reject it. Let people make up their mind how 
to vote one way or the other, but don't vote on red herrings. Don't 
vote on made-up ideas that we need to pass some law in the future and 
then, of course, we can be tough. In the future, we will do something 
and then we can be tough. That is sort of like saying: Gosh, if we had 
known we weren't being told the truth, we might have voted differently 
on Iraq. If we knew that waterboarding was bad, we might have voted 
differently.
  Vote one way or the other. I will not question the motives of any 
Senator, no matter how they vote, either for or against this nominee. 
But let's not do it on a hypocritical pretext that the President is 
above the law when he is not or that the President can put any American 
above the law because he cannot. Let us not pretend that torture is not 
torture because it is, and it is beneath the great ideals of the most 
wonderful Nation on Earth.
  I thank the Senator from Nevada and yield back the remainder of my 
time.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, the hearing in this matter on Judge Mukasey 
was good. The Judiciary Committee, with Senators Leahy and Specter, did 
a good job, a full airing of this man's qualifications and ideas were 
present before the American people and the Senate. The debate that has 
transpired today dealing with Michael Mukasey has been extremely good. 
It has been good for the process. It is good for the American people to 
understand that the chief law enforcement officer of this country has 
had a fair hearing and a good debate in the Senate.
  I will vote against the nomination of Michael Mukasey for Attorney 
General. My historical analysis is different than that of my good 
friend, the senior Senator from Kentucky, much different. It is 
regrettable that I must vote no. When the President first nominated 
Michael Mukasey, I was fully prepared to support him. That is the 
history I remember.
  Judge Mukasey has a stellar reputation for integrity and judicial 
excellence throughout his decades of Government service. He has an 
excellent academic background. I was pleased to see that after the 
Gonzales debacle and with the Justice Department in shambles, the 
President finally relented to pressure from Senate Democrats to look 
beyond his inner circle at this most important appointment.

[[Page S14181]]

  I considered it significant that an administration that has shown 
such contempt for the other two branches of Government, particularly 
judges, would turn to a candidate who served in the judicial branch for 
so many years. So like many Democrats, I was predisposed to support 
this nomination. In fact, I was prepared to embrace this nomination. I, 
too, met with Judge Mukasey and told him I was impressed with his 
credentials and his background and I hoped the hearing went well.

  Well, the hearing didn't go well, from my perspective. During this 
confirmation process, Judge Mukasey expressed views about Executive 
power that I and many other Senators found deeply disturbing. I was 
outraged by his evasive hair-splitting approach to questions about the 
legality of waterboarding. After his initial comments, Judge Mukasey 
was given every opportunity to address these concerns. But he was 
unable to state clearly that waterboarding is torture and, therefore, 
illegal under U.S. law. This is not a difficult or complex legal 
question. It does not require high-level security briefings.
  I agree with former Navy General Counsel Alberto Mora and former 
Assistant Secretary of State John Shattuck who wrote in an op-ed this 
week:

       The question of whether waterboarding constitutes torture 
     is a no-brainer.

  Why is it a no-brainer? My friend, former Nevadan and now a long-time 
Federal Judge Evan Wallach, a former decorated Vietnam combat veteran 
who came back from military service in the first Gulf War and is now a 
leading expert on the law of war, wrote in a recent Washington Post 
article--in fact, it was last Sunday on the front page of the opinion 
section--

       The media usually characterize the practice as ``simulated 
     drowning'' [but] that's incorrect. To be effective, 
     waterboarding is usually real drowning that simulates death.

  The only difference between actual drowning and waterboarding is that 
the waterboarding process is halted before death. Victims inhale water, 
suffocate, and often pass out. Who could reasonably argue this is 
anything other than torture?
  Judge Wallach further points out, in a related law review article in 
the Columbia Law Review, that even under the extreme and now disavowed 
legal theories of former Justice Department officials such as John Yoo, 
waterboarding still constitutes torture.
  ``Can there be any question,'' Judge Wallach asks, ``that water 
torture, the repetitive artificial drowning and revival of another 
human being, falls within their memo's parameters?'' No. There can be 
no question at all.
  Notwithstanding the novel legal theories of the Bush administration, 
whose approval rating as we speak is 23 percent--and we wonder why--it 
has long been settled law in this Nation and around the world that 
waterboarding is torture and it is illegal. Civil and military courts 
in the United States have rejected waterboarding, as Senator Leahy has 
said more than once today, for more than 100 years, whether directed at 
or committed by Americans.
  U.S. soldiers were court-martialed for using water torture to 
question Filipino guerrillas during U.S. occupation of the Philippines 
after the 1898 Spanish-American war. After World War II, the United 
States prosecuted and convicted Japanese soldiers for waterboarding 
American allied prisoners of war. During the 1980s, a Texas sheriff was 
sentenced to 10 years in prison for using waterboarding to force 
confessions of prisoners. So this is not a new debate, nor an unsettled 
question.
  Judge Mukasey doesn't need a classified briefing from the Bush White 
House to answer the question, is waterboarding torture. He has more 
than 100 years of established American law on which to base his 
position. His position was evasive without any question, misleading. 
That is why it is so disturbing that for all his impressive years on 
the bench, Judge Mukasey could not give a simple straightforward answer 
to the question posed by members of the Judiciary Committee, Democrats 
and Republicans. His lengthy nonresponsive answer was wrong. This was a 
question that demanded brevity and certainty, not lawyerly semantics.
  My Republican colleagues, John McCain, Lindsey Graham and John 
Warner, who served as leaders in the Senate on this issue, recently 
issued a detailed legal analysis that concluded waterboarding 
``represents a clear violation of the U.S. law.''
  For purposes of this debate, let's give a little added credence to a 
man who served 7 years in a Vietnamese prison camp and was tortured 
more than half the time he was there--the rest of the time was in 
solitary confinement--John McCain. Let's give that a little more 
foundation.
  Former and sitting Judge Advocate Generals agree. On Friday in a 
letter to the chairman of the Judiciary Committee, several prominent 
former Judge Advocate Generals declared unequivocally:

       Waterboarding is inhumane, it is torture, and it is illegal 
     . . . Waterboarding detainees amounts to illegal torture in 
     all circumstances.

  I could continue at length quoting military and civilian experts who 
all agree the answer to this question is settled. And it is settled. 
But why is this issue of waterboarding so critical for the chief law 
enforcement officer of our country, the U.S. Attorney General? 
Tremendous damage has been done to the moral credibility of our great 
country, both in the eyes of our allies and of our enemies abroad, by 
the widespread belief that our country, the United States, has used 
waterboarding and other abusive interrogation techniques. The United 
States of America has done that? All over the world now they know it.

  As a result, our allies have at times refused to cooperate with us in 
the fight against terrorism, under constraints from their own laws and 
public opinion at home.
  Even if the Bush administration is no longer utilizing 
waterboarding--which I do not know now--the President's refusal to 
publicly disavow it gives license to our enemies abroad to use it. This 
puts our troops and any citizen who may fall into our enemies' hands at 
risk and serves as an ongoing recruiting tool for militant extremists.
  How do these evil people, who are trying to do damage to this 
country--how are they using the fact that America tortures people they 
want to get information from? How is this a recruiting tool for these 
bad people? A pretty good one, I would think.
  President Bush claims we must not disclose our techniques to the 
enemy. But I contend we should shout from the hills and the rooftops 
for all to hear, that no matter how hateful the actions of our enemies, 
we will never relinquish our most treasured commitment to human rights.
  That is America, Mr. President--not water torture, not thumb screws, 
not the rack.
  We should make it clear to all the world that no matter what our 
enemies do, our core American values cannot be shaken. We are a 
constitutional form of government. We deserve an Attorney General who 
will uphold this message to the world.
  Judge Mukasey's answer to the waterboarding question was important in 
itself, but it also raised for me serious doubts about whether he is 
prepared to be the truly independent voice that the Justice Department, 
which is now in shambles, so desperately needs. If he cannot stand up 
to the President on such a question of profound importance and 
simplicity with a clear legal answer, how can we be sure he would be 
more than just another mouthpiece for an administration that treasures 
secrecy and loyalty above all?
  I respect Judge Mukasey's long career in public service. I have said 
that before. We have met in person. I have said that before. And there 
is no question he is an intelligent man. In the past, he has been very 
capable.
  If he is confirmed, the eyes of every American will be on him as he 
faces the unenviable task of depoliticizing the Department of Justice 
and restoring the integrity that was so lacking under his predecessor, 
Alberto Gonzales. He will have my earnest support in that challenge.
  But in light of his responses during and following his confirmation 
hearings, I cannot stand by him today with my words or my vote.
  One day, Mr. President, historians will expend countless reams of 
paper and barrels of ink writing the story of the Bush-Cheney 
administration's extremism in support of its never-ending

[[Page S14182]]

quest to expand the reach of their Executive power. There is no 
question that this time will be remembered as a dark chapter in 
America's otherwise steady march toward justice.
  But for now, all we can do is honor the trust and authority given to 
us as individual Senators by the American people and do what we, as 
Senators, can to turn the page to a brighter day because it needs to be 
turned.
  What we can do today is reject this nomination. The next Attorney 
General must be able to stand up to the President and stand up for the 
rule of law.
  If confirmed, I hope Judge Mukasey is up to that challenge. But 
because he has not given me confidence of his independence, I will vote 
against confirmation, and I urge my colleagues to do the same.
  Mr. President, I ask for the yeas and nays on the nomination of Mike 
Mukasey to be Attorney General of the United States.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Michael B. Mukasey, of New York, to be Attorney General?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden), 
the Senator from New York (Mrs. Clinton), the Senator from Connecticut 
(Mr. Dodd), and the Senator from Illinois (Mr. Obama) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Delaware (Mr. Biden) would vote ``nay.''
  Mr. LOTT. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander), the Senator from Texas (Mr. Cornyn), 
and the Senator from Arizona (Mr. McCain).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) and the Senator from Texas (Mr. Cornyn) would have voted 
``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 53, nays 40, as follows:

                      [Rollcall Vote No. 407 Ex.]

                                YEAS--53

     Allard
     Barrasso
     Bayh
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Carper
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Corker
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Feinstein
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Landrieu
     Lieberman
     Lott
     Lugar
     Martinez
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--40

     Akaka
     Baucus
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Casey
     Conrad
     Dorgan
     Durbin
     Feingold
     Harkin
     Inouye
     Johnson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     Levin
     Lincoln
     McCaskill
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--7

     Alexander
     Biden
     Clinton
     Cornyn
     Dodd
     McCain
     Obama
  The nomination was confirmed.
  Mr. MENENDEZ. Without objection, the motion to reconsider is laid on 
the table.
  The President shall be notified of the Senate's action.

                          ____________________