[Congressional Record Volume 153, Number 175 (Tuesday, November 13, 2007)]
[Senate]
[Pages S14253-S14254]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF MICHAEL MUKASEY

  Mr. REED. Mr. President, last week, this Senate deliberated and voted 
on the nomination of Judge Mukasey for the position of Attorney General 
of the United States. I opposed that nomination, and I believe it is 
appropriate to indicate formally and officially and publicly my 
concerns and my rationale for this vote.
  This was not a decision that was made lightly. The Constitution gives 
the President the unfettered right to submit nominees to the Senate, 
but the Constitution also gives the Senate not only the right but the 
obligation to provide advice and consent on such nominations.
  We do not name a President's Cabinet, but it does not mean we are 
merely rubberstamps for his proposals. Senatorial consent must rest on 
a careful review of a nominee's record and a thoughtful analysis of a 
nominees's ability to serve not just the President but the American 
people.
  As I have said in the past, unlike other Cabinet positions, the 
Attorney General has a very special role--decisively poised at the 
juncture between the executive branch and the judicial branch. In 
addition to being a member of the President's Cabinet, the Attorney 
General is also an officer of the Federal courts and the chief enforcer 
of laws enacted by Congress.
  He is, in effect, the people's lawyer, responsible for fully, fairly, 
and vigorously enforcing our Nation's laws and the Constitution for the 
good of all Americans.
  Although I believe Judge Mukasey to be an intellectually gifted and 
legally skilled individual, I am very concerned about his ability to 
not just enforce the letter of the law but also to recognize and to 
carry out the true spirit of the law.
  Frankly, I found Judge Mukasey's lawyerly responses to questions 
regarding the legality of various interrogation techniques, in 
particular waterboarding, evasive and, frankly, disturbing.
  Waterboarding is not a new technique, and it is clearly illegal. As 
four former Judge Advocates General of the military services recently 
wrote to Senator Leahy, in their words:

       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.

  These gentlemen have devoted themselves to their country, as soldiers 
and sailors and aviators, and also as attorneys. At the crux of their 
service was the realization that what we espoused, what we stood for, 
would also be the standard we would claim for American soldiers and 
aviators and sailors and marines if they were in the hands of hostile 
forces. It is clear in their eyes--and should be clear in our eyes--
that waterboarding is inhumane, it is torture, and it is illegal.
  It is illegal under the Geneva Conventions, under U.S. laws, and the 
Army Field Manual. The U.S. Government has repeatedly condemned the use 
of water torture and has severely punished those who have applied it 
against our forces.
  As Evan Wallach--a judge in the U.S. Court of International Trade and 
a former JAG who trained soldiers on their legal obligations--wrote in 
an opinion piece in the Washington Post, it was for such activities as 
waterboarding that members of Japan's military and Government elite 
were convicted of torture in the Tokyo war crimes trials.
  The law is clear about this horrifying interrogation technique. 
Waterboarding is illegal torture and, to suggest otherwise, damages the 
very fabric of international principle and more importantly, of what we 
would claim and demand for our own soldiers and sailors and marines.
  Now, Judge Mukasey was given several opportunities to clearly state 
that waterboarding is illegal. Instead, he went through a lengthy legal 
analysis regarding how he might determine if a certain interrogation 
technique was legal and then told us that if Congress actually wrote a 
law stating that a particular technique is illegal, he would follow the 
law. I found the last declaration almost nonsensical. This is the 
minimum requirement we would expect of any citizen of this country, 
that if we passed a law, they would follow the law.
  I think we expect much more from the Attorney General. We expect him 
to be a moral compass as well as a wise legal advisor. We expect he 
would be able to conclude, as these other experts and as our history 
has shown, that this technique is indeed illegal. We need an Attorney 
General who has the ability to both lead the Department of Justice and 
to tell the President when he is crossing his boundaries. We do not 
need a legal enabler to the President. We need an Attorney General who 
will stand up for his obligation to the Constitution, and make this his 
foremost obligation, rather than his obligation to the President.
  Not definitively stating that a technique such as waterboarding is 
illegal demonstrates to me that Judge Mukasey does not have those 
qualities we need in an Attorney General. As we learned from Attorney 
General Gonzales, we need someone who is willing to stand up to the 
President instead of helping the President negotiate around either the 
letter or the spirit of the Constitution.

  This is not just an academic exercise. If the question of whether 
waterboarding is illegal torture was asked of the parents of American 
soldiers, their answer would be quite

[[Page S14254]]

clear: Of course, it is. If it was applied to the spouse or the loved 
one of a soldier--their answer would be: Of course, it is. I think 
those people are as expert as Judge Mukasey and certainly much more 
candid.
  I also think we have risked a great deal in the administration's 
embrace of these techniques because today, as we look around the world, 
there are many nations that do not even need that kind of suggestion to 
embark on the torture of their own citizens. The Burmas of the world 
and other countries, they will use what we say and do as justification 
for what they might want to do. I think we have lost the moral high 
ground during this whole exercise going back several years.
  Finally, I would like to mention my concerns about Judge Mukasey's 
responses to questions regarding executive power. His responses to 
these questions did nothing to reassure me. In fact, I now believe that 
Judge Mukasey believes that even a constitutional statute could become 
unconstitutional if its application constrains the so-called 
constitutional authority of the President.
  As we all know, the genius of our Founding Fathers was not to allow 
power to be concentrated in the hands of the few. Indeed, they were 
particularly concerned about a concentration of power in the hands of 
the President.
  Although they made the President the Chief Executive Officer of our 
Government and the Commander in Chief, the Founding Fathers constrained 
the President through the very structure of our Government, through 
both law and treaty. The Attorney General has a duty not just to serve 
the President but also to support, protect, and defend the 
Constitution.
  I did not vote in support of Alberto Gonzales's nomination to be 
Attorney General because I was concerned about his ability to serve 
more than the President--a concern that has been borne out by the 
events over the last several months. It is largely because of his 
actions we are in the quandary we are in today with respect to torture 
and so many other issues.
  Instead of protecting our Nation's Constitution and upholding our 
laws, he engaged in actions that damaged our Nation's core values and 
put our citizens' rights at risk both here and abroad.
  Given the extreme politicization of the Department of Justice, and 
the demoralization that has followed in his wake, I believe our Nation 
needs an Attorney General who can help lead us like a beacon of light 
and help right our country's moral compass as an example again for the 
rest of the world.
  I do not think Judge Mukasey met that standard.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, what is the pending legislation?

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