[Congressional Record (Bound Edition), Volume 153 (2007), Part 21]
[Senate]
[Pages 29175-29178]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     NOMINATION OF MICHAEL MUKASEY

  Mr. CARDIN. Mr. President, I have the honor of serving on our 
Judiciary Committee, which is charged with the responsibility of 
recommending to this full body whether to confirm Judge Mukasey as the 
next Attorney General of the United States. In that capacity I have had 
the chance to sit through the confirmation hearings at which Judge 
Mukasey testified before our committee for 2 days. I chaired the third 
panel of independent witnesses and had a chance to question national 
experts in regard to the issues that I think are important and that 
must be met by our next Attorney General. I had the opportunity to 
personally meet with Judge Mukasey in my office to go over the 
priorities of the Department of Justice and how he would try to reverse 
some of the problems in that Department. I had the chance to 
specifically ask written questions to the nominee and got responses on 
those written questions.
  I must tell you, first, I do believe Judge Mukasey is an honorable 
person. He has a distinguished record of public service, and he would 
represent a refreshing change within the Department

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of Justice. He has the ability to restore morale and traditional 
professionalism, particularly among the career attorneys at the 
Department of Justice.
  But one of the critical issues in evaluating who should be our next 
Attorney General is whether that individual will exercise the 
independence that is so required by the Attorney General of the United 
States; in short, whether he will represent the people of our Nation 
and not just the President of the United States.
  We all know the record of the former Attorney General, Alberto 
Gonzales. We know about how partisan politics interfered with the 
selection and promotion of career attorneys at the Department of 
Justice. We all now know the story of the firing of the U.S. attorneys 
and how it appears that partisan politics in criminal investigations--
criminal investigations--may have interfered with the operation of the 
Department of Justice. So independence is a critically important factor 
in the next person to be the Attorney General of the United States.
  Because of Judge Mukasey's response to the questions relating to 
waterboarding, I have concern about his independence. Judge Mukasey 
refused to say that waterboarding is torture. In reply to questions 
that were asked, he responded that he would use independent judgment as 
to what constitutes torture. He said he would prosecute anyone who 
violated our laws. He said, in fact, if his views conflicted with those 
of the President of the United States in a fundamental way, and if he 
were unable to reconcile those differences, he would leave the office 
rather than compromise his views.
  Let me read three questions I asked of the Attorney General nominee. 
I asked: As Attorney General, would you order the Justice Department to 
prosecute individuals who, under 18 U.S.C 2340 and 2340(a), committed 
acts of torture?
  Judge Mukasey's answer:

       The Department of Justice has an obligation to bring 
     prosecutions to enforce all valid criminal statutes and, as I 
     explained during the hearing, torture is prohibited by 
     federal law.

  I then asked the nominee: Do you believe that any ``exceptional 
circumstances'' exist that would justify torture?
  His answer was no.
  I then asked: As Attorney General, would you authorize the use of 
torture in any circumstance?
  Once again, his answer was no.
  I cannot understand why Judge Mukasey will not tell us clearly that 
waterboarding is illegal under our laws. The fact that he leaves open 
that waterboarding could be permitted as an interrogation technique has 
me very concerned.
  Judge Mukasey now acknowledges he understands what is generally meant 
by waterboarding. I gave him the benefit of the doubt during the 
hearing. He said: I am not familiar with the technique.
  That is difficult to understand but--OK. He then had time to reflect 
and learn about waterboarding as generally understood, waterboarding 
that has been condemned for literally hundreds of years--since the 
Spanish Inquisition. He now understands what is generally meant be 
waterboarding. But during the confirmation hearing and in follow-up 
questions he would not rule out the potential use. Questions asked 
during the confirmation hearing did not ask about a specific technique 
that may have been authorized by the President for interrogating 
detainees. That is not what was asked. The question that was asked is 
about waterboarding as generally understood. It was not a hypothetical 
question.
  Waterboarding has been condemned by the United States. The United 
States prosecuted Japanese soldiers for waterboarding as a war crime 
after World War II. We brought charges as war crimes for those who 
would try to use that torture technique against Americans.
  In 2005, the Congress passed the McCain amendment which prohibits the 
use of cruel, inhumane, and degrading treatment and punishment of 
persons under the detention, custody, and control of the U.S. 
Government. We also then required that the Army must use the field 
manual while interrogating detainees.
  In 2006, the Army Field Manual specifically prohibited waterboarding. 
During our final panel of witnesses, I had a chance to question Admiral 
Hutson, who has a very distinguished record of service to our country--
former Navy Judge Advocate General, senior uniformed legal adviser to 
the Secretary of the Navy and the Chief of Naval Operations. So we had 
a chance to talk about waterboarding. He said waterboarding is one of 
the most iconic examples of torture. It was devised during the Spanish 
Inquisition. Its use has been repudiated for centuries.
  Admiral Hutson said we look to the Attorney General as our chief law 
enforcement officer. He has to be absolutely unequivocal as to what 
torture is and is not. We need clarity from our principal leaders.
  So it appears to me that Judge Mukasey was yielding to the White 
House pressure on waterboarding in answering the questions of our 
committee. I find that very troubling. I am looking for an Attorney 
General who will exercise independent judgment as to what the law of 
our country is, and that no one is above our law.
  On November 1, 2007, President Bush implied if Judge Mukasey answered 
the questions on waterboarding, he would give ``terrorists a window 
into which techniques we may use and which ones we may not use.'' I 
want the President of the United States and the Attorney General of the 
United States to tell the world, unequivocally, that the United States 
will not permit the use of torture. I am not clear about the President. 
We all remember his signing statements to the McCain amendment, which 
leaves questions as to whether torture could be allowed under some 
circumstances. Now we are not clear, with Judge Mukasey's answers, as 
to whether waterboarding could be permitted under some circumstances as 
a form of torture.
  I think it is absolutely clear our leaders must make it apparent to 
all the United States will not use torture, nor will it ever tolerate 
any other country using torture or any individuals using torture 
against an American. If a foreign agent attempts to use waterboarding, 
as it is generally understood, or any other form of torture against an 
American, I want our country to use every means at its disposal to hold 
that offender accountable.
  On November 1 the President also said Judge Mukasey could not ``go on 
the record about the details of a classified program he has not been 
briefed on.'' I agree with the President of the United States. Judge 
Mukasey was not asked about specific practices of a classified program. 
He was requested to give information about waterboarding as generally 
understood. He had an obligation to answer that question.
  The 9/11 Commission, in one of its recommendations to Congress, said 
the United States should engage its friends to develop a common 
approach toward the detention and humane treatment of captured 
terrorists. Instead, we have gone it alone. We have not sought the 
advice of the international community, and we are paying a heavy price 
for the manner in which we are proceeding. We are losing our support 
internationally as it relates to how we treat detainees. We are losing 
our ability as an international leader, as the leader in fighting for 
human rights advancements throughout the world. We are losing our 
leadership and credibility on this issue.
  I serve as the Senate cochair of the U.S. Helsinki Commission and 
delegate to the Organization for Security and Cooperation in Europe. 
The OSCE-Helsinki process was started in 1975 between the countries in 
Europe, Central Asia, Canada, and the United States. It is best known 
for its human rights dimensions. It fought during the Soviet Union 
days, behind the Iron Curtain--fought to open the process and to defend 
human rights and to stand against torture. Today we are fighting in the 
emerging democracies to make it clear the human rights of all people 
must be respected, and torture cannot be permitted while we are being 
questioned by the Organization for Security for Cooperation in Europe 
as to what we are doing.

[[Page 29177]]

  I am having a hard time finding the right answers, particularly on 
the issue of torture. As I said at the beginning, Judge Mukasey is a 
good person and an honest man. On the critical issue of standing up to 
this administration as an independent adviser against torture, I have 
my doubts. For that reason, I will be voting against his confirmation 
in the Judiciary Committee tomorrow.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Florida is 
recognized.
  Mr. NELSON of Florida. Mr. President, the subject about which the 
Senator from Maryland speaks is a subject of enormous gravity to this 
country. We have been laboring with this issue in the Intelligence 
Committee. The issue is coming to a head with regard to this nomination 
for Attorney General. Clearly, the policy of this country has to be, 
clearly: There can be no torture.
  At the same time, we have a world out there with a great deal of bad 
guys who are trying to do harm. It is important for us, when they are 
in our custody, that we get their cooperation in order to get the 
information in order to protect our country. How to strike that balance 
with no torture while still able to adequately get the information in 
the debriefing sessions--or interrogation, if you will--is the delicate 
balance this country must face and answer that question.
  America is a beacon of light to the world. We have to be different. 
The people who crafted that Constitution of ours said we are going to 
be different from the rest of the world, and we are going to protect 
freedom of speech and of religion and of assembly and of the press. We 
are going to protect our citizens from intrusion into their privacy by 
the Government, unless there is a check and balance of a separate 
branch of Government, a judge in the judicial branch, granting an order 
called a warrant so the Government can invade the privacy of the 
citizen.
  All of these things are under assault because of the abuses we have 
seen in this administration in the last 6 years. Normally, there would 
not be the abuses, but there are. That is what brings a lot of 
necessarily delicate issues into the open, issues we would much prefer 
to be deciding privately, without the full glare of sunshine, if, in 
fact, the Government was obeying the law.
  But that has not been the case. Thus, again, as the Senator from 
Maryland points out, we are coming to another very delicate situation; 
this time with regard to the nomination of a very good man, as the 
Senator says.
  But will he act unlike the previous Attorney General did? Will he act 
as the lawyer for the people instead of the lawyer for the President? 
Therein it makes it all the more difficult in some of the decisions we 
are making.


                             global warming

  I came here to speak about another subject, that is another one that 
is exceptionally important to the future not only of America but the 
future of planet Earth. And that is whether this delicate environment 
that surrounds this planet in an atmosphere is going to go into cardiac 
arrest which is going to be irreversible unless we do things now.
  There is a step in the right direction, and I wish to thank Senator 
Lieberman and Senator Warner for their efforts and their hard work in 
introducing the climate change legislation called America's Climate 
Security Act. I am a cosponsor of this act. I am because it is acts 
such as this that will start us on a path to try to reverse the 
greenhouse effect that is happening to the planet.
  What is the greenhouse effect? It is simply when we start putting 
greenhouse gases in excess into the atmosphere, gases such as carbon 
dioxide, CO2; such as nitrous oxide N2O. 
Particularly it is the carbon, carbon dioxide. They come from a variety 
of sources. Maybe 30 percent of the excess carbon dioxide is coming 
from our personal modes of transportation. Another 40 percent is coming 
from our electrical utilities plants. What happens is, if you get too 
much of these gases, such as CO2, in the air, as the Sun's 
rays come in and hit the Earth and bounce off the Earth, that heat that 
radiates out into space, these gases act like the glass top of a 
greenhouse and trap in the heat, a greenhouse that stays perfectly warm 
during the winter because of the Sun's heat coming in and cannot escape 
once inside.
  That is exactly how these greenhouse gases work. So if you get too 
much of a concentration high in the atmosphere, then the heat cannot 
radiate into space and the Earth starts to warm. So we have to go at 
the root cause of the problem--lessening the amount of those gases that 
act as this greenhouse top surrounding the Earth.
  That means cutting emissions from powerplants, from manufacturing 
plants and from transportation and cutting it significantly. This bill 
calls for cutting the levels, cutting back to the levels that were 
emitted in 1990 by 2020.
  Then it further says, 30 years after that, we would cut those 
emissions from the 1990 level another 65 percent. That is the way we 
are going to avert a catastrophic global warming catastrophic event.
  Then the seas are going to continue to rise, the Earth is going to 
continue to warm. As the Earth warms, the pestilence increases, the 
storms become more frequent and more ferocious, and if you live in a 
State as do I, a land we call paradise, but paradise is a peninsula 
called Florida, sticking down into the middle of oceans on both sides, 
then you have the greater frequency of the storms, the higher intensity 
of the storms, and all the greater pestilence that comes along with the 
storms.
  So what this bill does is it sets an overall cap on the greenhouse 
gas emissions, that would, a matter of law, have to be met over that 
period of time, 2020, then 2050.
  The way you would enforce it, the mechanism would be the buying and 
selling of credits that companies would have to have in order to get 
the amount of emissions down to what is the reduced cap.
  Now, there has already been a similar plan that has been tried, and 
that was way back almost 2 decades ago, the plan on reducing acid rain.
  It was buying and selling these credits--in some cases auctioning 
them, under the new bill--and it worked. So we have to get something 
into law and get on with the process of saving our planet.
  Earlier this year, I went with the chairman of the Environment 
Committee, Senator Boxer. She took Senators on the committee, she was 
kind enough to allow folks such as myself who were interested in this 
subject to go. We went to Greenland. Greenland is the place that has 
the biggest glacier. Why? It is an island that is 1,200 miles long from 
south to north, it is 500 miles wide. Hundreds of thousands of years 
ago it was a piece of rock. Then what would happen each year is the 
water in the Earth would evaporate, it would form clouds, the clouds 
would be cooled, the clouds would turn, instead of to rain, to snow; 
the snow would fall, and it would form a layer.
  The next year the same thing would occur. When you do that over 
hundreds of thousands of years, the snow is packed each year, and that 
layer that is 2 miles thick now becomes a glacier.
  What is happening, and what we saw with our own eyes, is that within 
a few years, already 6 miles of the glacier at its edge is receding. 
How it recedes is, it breaks off, and in the particular fjord or river 
we went to, we could see these big chunks of ice falling off the 
glacier into the fjord, floating down the fjord, and out into the 
Atlantic Ocean.
  When they get into the Atlantic Ocean, they are what you have always 
heard, an iceberg. What we saw as we went around these icebergs in a 
little boat, huge mounds of ice, but that is only 10 percent of it 
above the surface of the water. Ninety percent is underneath. Then they 
get on out into the Atlantic and they melt.
  The long and short of it is, if that entire glacier on Greenland were 
to melt--this is going to surprise you--the seas of the entire planet 
would rise 21 feet.
  Now, obviously that is going to take a long period of time. But you 
can imagine if we do not reverse what, in fact, is happening--and do 
not give me

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this stuff that one person says global warming is true and another 
person says it is not true and the press treats it as if one is 
balancing against the other.
  No; 99.99 percent of the scientists say global warming is a fact. A 
de minimis amount say it is not. Let's recognize the science, and this 
is where you have seen that major committee in the United Nations 
receive one-half of the Nobel Prize, along with the former Vice 
President of the United States.
  Global warming is a fact. You can imagine if seas start to rise. 
Suppose they rise, not 21 feet but 3 feet. Do you know what would 
happen to the coast of Florida? To the coast of Louisiana? To parts 
coming in around Hilton Head and Charleston and Houston and even all 
the way up the eastern seaboard?
  The stakes are too high. That is why I am cosponsoring this bill. 
This bill made some progress last week when it was approved by a 
subcommittee on the Environment and Public Works Committee. The full 
committee should be taking it up soon. I hope we get action and we can 
get out on the floor of the Senate and debate it.
  I hope to be able to bring to this debate the information of a bunch 
of us, led by Senator Boxer, who are going to go to Bali, Indonesia, 
for a global conference for world climate change to get the input of 
the other nations of the world that have shown they are a lot more 
concerned about this than the United States has been in the last few 
years.
  I wish to thank our colleagues, all who have been involved. I wish to 
thank Senator Boxer for her leadership. I wish to thank Senator Warner, 
who did not have to do this; he is retiring from the Senate, the senior 
Senator from Virginia. He is a conservative Republican, but he knows 
that planet Earth is in peril.
  I wish to thank Senator Lieberman, who has been at the forefront of 
these environmental issues for years. I am glad to add my voice to 
their clarion cry for immediate action before it is too late.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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