Floor statements on Mukasey: Shumer, Harkin and Leahy

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, 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-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. 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.

PDF

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 Presid ent.

Similar to many of my colleagues--the Senator from Vermont and the 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 state d 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.

PDF

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 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 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 of those governments that approve of torture. That is why I will vote no on the President's nomination.

PDF