[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,
[[Page S14166]]
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
[[Page S14173]]
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.
____________________