November 8, 2007 CONGRESSIONAL RECORD — SENATE S14147 great sacrifices in our country’s name What that means is we can’t raise a The majority leader. so that we might continue to be the point of order against those earmarks Mr. REID. Mr. President, I appreciate land of the free and the home of the to strike them out of the bill. the cooperation of everyone. This has brave. Let me give me you some perspective been a difficult day. These are very We are faced tonight with a vote on on what we are talking about. The De- sensitive issues we are dealing with, a bill that our troops need, but the fense appropriations conference text with the troops and the financing of troops are not the focus of this con- was 133 pages long. The Joint Expla- the country, in addition to the nomina- ference report. This political tactic nation of Managers—470 pages long. tion of a Cabinet officer. It is a time does our troops and all Americans who The JES as they call it, contains all of when you need cooperation from both want good government, a disservice. the earmarks, all kinds of substantive sides. That is what we have had. It has I want to provide our troops with the direction and is three times as long as not been easy. I extend my apprecia- funding and the resources they need to the official conference report, and it is tion to my colleagues on the other side be successful in all their objectives. I not subject to a point of order? This is of the aisle and the cooperation of my want the Senate to consider the Fiscal wrong. It’s not what I believe most of Members. I would finally say that for Year 2008 Defense Appropriations Act us thought would escape the oversight those of you who have had questions on its merit. Legislating isn’t a barter rules of S. 1 when we voted for it. At asked by Democrats and Republicans, system, or at least it shouldn’t be. The the very least, it seems disingenuous in we are going to finish the farm bill. men and women of our armed services how we sold this bill to the American There is some real movement on that deserve better than having the funding public as a way to clean up our tax- with amendments. I feel comfortable they need to do their job being used in payer-funded shop and how we do busi- we will be able to get that done in the a horse-trading scheme so a Member of ness around here. near future. I appreciate everyone’s co- Congress can get funding for his or her I yield the floor, and I suggest the ab- operation. own special cause. There is more than sence of a quorum. The PRESIDING OFFICER. The $50 million worth of projects being The PRESIDING OFFICER. The clerk will report the nomination. slipped in this so-called CR. We are clerk will call the roll. The assistant legislative clerk read moving quickly toward midnight. I The assistant legislative clerk pro- the nomination of Michael B. Mukasey, guess that’s a fitting time to vote on a ceeded to call the roll. of New York, to be Attorney General. The PRESIDING OFFICER. The as- bill laden with pork slipped in under Mr. REID. I ask unanimous consent that the order for the quorum call be sistant majority leader. the cover of darkness. The people of Mr. DURBIN. Mr. President, the Sen- the deserve better. rescinded. The PRESIDING OFFICER (Mr. ate is now taking up the nomination of Mrs. MCCASKILL. Mr. President, Judge to be the next with great reluctance, I will vote today SANDERS). Without objection, it is so Attorney General of the United States. in opposition to passage of the 2008 De- ordered. f It is a nomination which has become partment of Defense appropriations controversial. Judge Mukasey has conference bill. This legislation con- EXECUTIVE SESSION served his country in many different tains $459 billion in funding to provide ways. He served as a Federal judge be- the resources needed to run daily mili- NOMINATION OF MICHAEL B. fore he retired, then went into private tary operations. practice and was summoned to serve as I supported this legislation when it MUKASEY TO BE ATTORNEY GENERAL Attorney General by this President. I first came to the Senate floor in Octo- had a chance to meet with him person- ber. However, I can not vote in support Mr. REID. Mr. President, I ask unan- ally in my office. One cannot help but for the final House-Senate conference imous consent the Senate now proceed be impressed by the man’s intelligence report because it contained $59 million to executive session to consider Execu- and erudition. He clearly is a person of in earmarks that were added during tive Calendar No. 374, the nomination strongly held beliefs and it takes little the closed-door conference negotia- of Michael Mukasey to be Attorney time to appreciate that when you meet tions. One of those earmarks was for $3 General of the United States; that him. million to fund a golf center that is in there be a time limitation of 5 hours of I left, after meeting him in my office, the name of the congressman who re- debate equally divided between the believing his nomination hearings quested it. What is a golf center doing chairman and ranking member of the would be interesting, and they were. on a DOD appropriations bill? Judiciary Committee, with the Demo- On the first day, Judge Mukasey was a This was a difficult decision because cratic time divided as follows: Senator great witness, saying things that need- I strongly support most of the provi- LEAHY, 45 minutes; Senator DORGAN, 15 ed to be said about his plans to change sions in this bill, and I have deep re- minutes; Senator DURBIN, 20 minutes; the Department of Justice from the spect for Chairman INOUYE and Rank- Senator CARDIN, 10 minutes; Senator days of , about his ing Member STEVENS and their efforts REED, 15 minutes; Senator KENNEDY, 10 feeling of responsibility to the country to craft a good funding bill. minutes; Senator HARKIN, 10 minutes; not to abide by any decisions made by However, I made a commitment dur- Senator BOXER, 15 minutes; Senator the President that were inconsistent ing my campaign and when I took my SALAZAR, 10 minutes; that upon the with the or the Constitution. oath of office in January to reform the conclusion or yielding back of the He went so far as to say he would re- secretive earmarking process. I time, the leaders be recognized for 10 sign before he would allow that to thought we had made real progress minutes each, with the majority leader occur. I can recall speaking to my col- with the passage and enactment of S.1, going last; that the Senate then vote leagues, including Senator SCHUMER, the ethics reform bill, that requires far on confirmation of the nomination; the who sat next to me in the Judiciary more transparency and disclosure on motion to reconsider be laid on the Committee, and saying: What a breath earmarks than there has ever been. Un- table; the President be immediately of fresh air, how refreshing that he fortunately, I have since discovered notified of the Senate’s action, and the would be so candid and forthright. there are still some gaps in the ethics Senate then resume legislative session; After all the years of Alberto Gonzales bill that need to be filled. that the Senate then, without inter- dodging questions, refusing to answer, One of which has to do with the dif- vening action or debate, vote adoption here was a man who answered the ques- ficulty of raising a 60-vote point of of the conference report on H.R. 3222. tions. That was the first day. order on earmarks added during appro- The PRESIDING OFFICER. Is there Then came the second day of the priations conference negotiations. S.1 objection? hearing. When my turn came to ask says that we can do that. But in re- Mr. LOTT. Mr. President, I wish to questions, I proceeded to ask Judge ality, we really can’t. Most of these put in the RECORD that this has been Mukasey specific questions about tor- added funding earmarks are contained cleared with the leader on our side ture. His answers to those questions in the Joint Explanatory Statement of also. I have no objection. led to a great deal of controversy and Managers, which, technically, isn’t The PRESIDING OFFICER. Without lead us to this moment in the Senate part of the conference report bill text. objection, it is so ordered. debate.

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14148 CONGRESSIONAL RECORD — SENATE November 8, 2007 When we write the history of this effective. When I reminded Judge others have, and they did not need four early 21st century in America, there Mukasey that cruel, inhuman, and de- pages of legal obfuscation. I received a are going to be countless stories of grading treatment are illegal under letter from four retired military offi- courage and compassion: Firefighters U.S. law, he said he thought these cials about Judge Mukasey’s position and police officers racing into the terms were ‘‘subjective’’ and suggested on . This is what they burning Twin Towers minutes before the President might have authority as said: they collapsed on 9/11. Commander in Chief to ignore the pro- This is a critically important issue—but it The passengers on United Airlines hibition. is not, and never has been, a complex issue. flight 93 overcoming hijackers and In light of these responses, which . . . Waterboarding detainees amounts to il- plunging to certain death instead of al- troubled me greatly, I decided to follow legal in all circumstances. To sug- lowing the terrorists to reach what up with the questions I asked at his gest otherwise—or even to give credence to such a suggestion—represents both an af- many believe was their intended tar- confirmation hearing. I asked him front to the law and to the core values of our get, the U.S. Capitol, and those of us whether the torture technique known nation. working in the building at the time. as waterboarding is illegal. He refused In a recent statement on the Those passengers on that flight were to answer, saying: Mukasey nomination, Republican Sen- true American heroes. Those of us in I don’t know what’s involved in the tech- ators JOHN MCCAIN, JOHN WARNER, and nique. If waterboarding is torture, torture is the Senate and the House and all of us wrote: not constitutional. in the Capitol will be forever in their Waterboarding, under any circumstances, debt. Frankly, I was surprised that Judge represents a clear violation of U.S. law. . . . There were hundreds of thousands of Mukasey was unfamiliar with anyone who engages in this practice, on be- brave service men and women, every waterboarding. This is not a new tech- half of any U.S. government agency, puts single one of them volunteers, leaving nique. It may be one of the oldest re- himself at risk of criminal prosecution. families and friends to defend our coun- corded forms of torture in the world. The Judge Advocates General, the try. Thousands of them have come Retired RADM , former highest ranking military lawyers in home to America in flag-draped coffins. Navy Judge Advocate General, also tes- America—all four branches—testified Stories of courage and stories of com- tified at Judge Mukasey’s hearing. He unequivocally to the Senate Judiciary passion. was asked about Judge Mukasey’s posi- Committee that waterboarding is ille- Sadly, during the same period, there tion on waterboarding. This is what he gal and violates Common Article 3 of have been stories of cowardice and cru- said: the Geneva Conventions. If these high- elty. A short way down Pennsylvania Other than perhaps the rack and ranking military officials and our fel- Avenue from this Capitol building is thumbscrews, waterboarding is the most low colleagues in the Senate can an- the U.S. Department of Justice. In that iconic example of torture in history. . . . It swer this question so directly, why building, attorneys manipulated the has been repudiated for centuries. It’s a lit- can’t Judge Mukasey? law to justify practices which were un- tle disconcerting to hear now that we’re not quite sure where waterboarding fits in the Let’s take an example. thinkable in America. They put our scheme of things. I think we have to be very BG Kevin M. Sandkuhler, Staff Judge troops at risk and sacrificed principles sure where it fits in the scheme of things. Advocate to the Commandant of the for which America has always stood To give Judge Mukasey a chance to Marine Corps, stated that ‘‘threatening and for which thousands died on 9/11 clarify his views, I wrote him a letter, a detainee with imminent death, to in- and the years since. They did tremen- which all 10 Democrats on the Senate clude drowning, is torture.’’ No equivo- dous harm to the image of this great Judiciary Committee signed, and asked cation there. Nothing about ‘‘facts and Nation. The late historian Arthur him a very straightforward question. circumstances.’’ He did not need to Schlesinger, Jr., said this about the Certainly, straightforward questions hear more. Simulated drowning is tor- Bush administration’s torture policy: need to be fielded by lawyers, by ture. Malcolm Nance is a former master No position taken has done more damage judges, and the Attorney General. to the American reputation in the world— The question was this: Is instructor and chief of training at the ever. waterboarding illegal? U.S. Navy Survival, Evasion, Resist- Alberto Gonzales was an architect of It took Judge Mukasey four pages, in ance and Escape School. He trained the Bush administration’s torture pol- a response to our committee, to say Navy SEALS to resist torture, includ- icy. As White House counsel, he rec- nothing. He refused to say whether ing waterboarding. Listen to what Mr. ommended the President set aside the waterboarding was illegal because Nance, former master instructor of the Geneva Conventions. The phrase ‘‘Ge- ‘‘hypotheticals are different from real SEALS, had to say: neva Conventions’’ brings to mind ci- life.’’ He went on to say it would de- I know the waterboard personally and inti- vility, fairness, and justice. How did pend on ‘‘the actual facts and cir- mately. . . . I personally led, witnessed and supervised waterboarding of hundreds of peo- Alberto Gonzales characterize the Ge- cumstances.’’ neva Conventions? He called them ple. . . . Waterboarding is a torture tech- Waterboarding is not hypothetical. nique. Period. There is no way to gloss over ‘‘quaint’’ and ‘‘obsolete.’’ He requested This old woodcut dates back to the it or sugarcoat it. . . . Waterboarding is slow and approved the infamous Justice De- Spanish Inquisition, 515 years ago. It motion suffocation with enough time to con- partment torture memo that limited shows a prisoner being subjected to template the inevitability of black out and the definition of torture to abuse that waterboarding. This is no new idea. It expiration—usually the person goes into causes pain equivalent to organ failure is simulated drowning to create panic hysterics on the board. . . . When done right or death. in the mind of the detainee and to force it is controlled death. Now we are asked to consider the compliance. Each year, our State Department nomination of Judge Michael Mukasey The Spanish inquisitors referred to stands in judgment of the human to succeed Alberto Gonzales. Judge waterboarding as ‘‘tormenta de toca,’’ rights record of the world. It is a rath- Mukasey is obviously intelligent, with after the linen towel they placed over a er bold thing for us to do, to say that a distinguished record. But that is not victim’s mouth and nose during the our Nation has the moral authority to enough. In light of Alberto Gonzales’s procedure. Waterboarding was part of judge all the nations in the world when shameful role in justifying torture, an elaborate regime of torture that in- it comes to human rights. This is not Judge Mukasey bears a special burden cluded the rack and dislocating limbs the first President to do it. Many be- to make clear where he stands on the by means of a pulley. fore have. Our own State Department issue. I am sorry to say he has not met Here we are 500 years later, and it is has long recognized that waterboarding that burden. still being used today, sadly, in Burma is torture and repeatedly criticized Prior to his confirmation hearing by the military dictatorship. There are countries such as Sri Lanka and Tuni- when I met him in private, his re- no facts and circumstances that need sia for the use of the technique—a sponses troubled me. He told me ‘‘there to be considered—it either is or it isn’t technique Judge Mukasey will not even is a whole lot between pretty please torture. acknowledge as torture. and torture’’ and that coercive tech- Judge Mukasey would not say wheth- For over 100 years, our Government niques short of torture are sometimes er waterboarding was torture. Many has treated waterboarding as a crime.

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14149 Judge Evan Wallach, who used to work in the water.’’ The Vice President’s re- years ago, we knew waterboarding was for majority leader HARRY REID, is a sponse was: ‘‘it’s a no-brainer for me.’’ torture and prosecuted Japanese sol- former military lawyer and expert on And the Bush administration now diers for war crimes. And now, in this waterboarding. He recently wrote a seems to have reined in the State De- moment in history, is there really any study that concluded: partment, despite the fact that we have uncertainty? The real uncertainty is In all cases, whether the water treatment condemned other nations for what the administration has done in was applied by Americans or to Americans, waterboarding. Earlier this week, John the name of our country in the treat- or simply reviewed by American courts, it Bellinger, the State Department’s top ment of prisoners. has uniformly been rejected as illegal, often legal adviser, was asked whether there When the history of this time is writ- with severely punitive results. . . . could be any circumstances in which a ten, there will be stories of courage and In April of 1902, 105 years ago, during foreign government could justify stories of cowardice. Rest assured, the the U.S. occupation of the Philippines, waterboarding an American citizen. United States will not be viewed kindly Secretary of War Elihu Root directed Listen to this response from the Bush if we confirm as the chief law enforce- that officers alleged to have used water administration as to whether an Amer- ment officer of this country someone torture be tried by court-martial. That ican citizen could be waterboarded: who is unwilling or unable to recognize year, U.S. Army MAJ Edwin Glenn was One would have to apply the facts to the torture when he sees it. convicted of having ordered and di- law, the law to the facts, to determine I yield the floor. rected the application of the so-called whether any technique, whatever it hap- The ACTING PRESIDENT pro tem- water cure. Army Judge Advocate Gen- pened to be, would cause severe physical pain pore. Who yields time? eral George Davis said of Major Glenn or suffering. The Senator from Pennsylvania. that he was guilty of ‘‘a resort to tor- Incredible. We prosecuted Japanese Mr. SPECTER. Mr. President, the al- ture with a view to extort a confes- soldiers for doing this to Americans, location has been made of 5 hours sion.’’ Mr. President, 105 years ago we and now this administration, maintain- equally divided on the confirmation of convicted an American soldier of en- ing this notion that somehow this is a Judge Michael Mukasey to be Attorney gaging in torture, for using hazy, undefinable concept, will not General and also to cover the Depart- waterboarding in the Philippines. even clearly condemn the use of ment of Defense appropriations bill. What happened after World War II? waterboarding to torture Americans. I have been informed that I will be in The United States prosecuted Japanese Judge Mukasey’s position on charge of the allocation of time. So I military personnel as war criminals for waterboarding is troubling, but there say to my colleagues who want to waterboarding U.S. and other pris- are other serious concerns which I ex- speak in favor of former Judge oners. plained during the Judiciary Com- Mukasey or who want to speak on the At the U.S. military commission at mittee debate. He would not answer di- Defense appropriations bill on the Re- Yokohama, we tried three Japanese de- rect questions about other torture publican side, come to the floor and let fendants for torture. The charges in- techniques even though the Judge Ad- me know how much time you would cluded ‘‘fastening [an American Pris- vocates General had made it clear they like. The Democrats who are speaking oner of War] on a stretcher and pouring were torture. Sadly, time and again, he in favor of Judge Mukasey will come water up his nostrils.’’ During the said his response would depend on the out of my time as well. We ought to trial, Thomas Armitage, one of the facts and circumstances. have some idea as to how much time American victims, described it. This is Mr. President, I do not know when— will be required. Five hours will put us what he said: I do not know if I will be here to see it; close to midnight. [T]hey would lash me to a stretcher then I may not be alive at the time—but his- The ways of the Senate are won- prop me up against a table with my head tory will be written about this mo- drous. It is hard to figure out—we had down. They would then pour about two gal- ment. The history will be written our last vote at 11:45 and finished lons of water from a pitcher into my nose about what we have done as a nation shortly after noon and could have and mouth until I lost consciousness. under the administration of George W. started this debating process early in What did we say of the Japanese sol- Bush. There will be good things said, I the afternoon. But, as I say, in the diers responsible for that heinous con- am sure, but there will also be chapters wondrous ways of the Senate, we could duct? We said they were guilty of war written about, how this administration not begin it until 7 o’clock, until we crimes—war crimes against American raised an issue which we thought was a had reached an agreement on proce- soldiers and prisoners. They were con- settled matter, how this administra- dural details, which might well have victed and sentenced to between 15 and tion has now brought in play the ques- been done earlier. But I have been here 25 years of confinement at hard labor— tion of torture, how this administra- a while, and I learned a long time ago for a crime that this man who would be tion has identified this great, caring, the Senate is a lot smarter than I am, our Attorney General cannot acknowl- and good Nation with that issue. and we follow—we play the cards we edge as obvious, clearly illegal, and in- Our only hope is that men and are dealt. But I don’t think there is consistent with America’s values. In the trial of a Japanese soldier for women of courage within this adminis- any need for us to be in session until the torture and murder of Philippine tration and outside will stand up and midnight, although things could get civilians, one victim testified: say clearly, once and for all, torture is lively and perhaps some stray tele- un-American, torture is ineffective, vision viewers will turn on C–SPAN 2; I was ordered to lay on a bench and [they] tied my feet, hands and neck to that bench and torture is unacceptable when ap- they certainly wouldn’t do it during lying with my face upward. After I was tied plied to detainees in our control or to the daytime when the soaps are on. to the bench [they] placed some cloth on my Americans in the control of others. But, it may well be that the time will face and then with water from the facet they Judge Mukasey would not say that. He be yielded back. And so, I inform my poured on me until I became unconscious. was unwilling to make those state- colleagues to not necessarily expect to What does it take? What does it ments. vote as late as midnight, although that take to get this man who wants to I think this issue transcends many may be the case. be the premier law enforcement offi- other issues. Some will come before us Now, on to former Federal Judge Mi- cial in America to acknowledge the ob- and say the problem here is Congress chael Mukasey. He is a man with an vious? Waterboarding is torture. just has not done its job. If Congress outstanding record. If you went to cen- Waterboarding is illegal. Waterboard- would sit down and really put a good tral casting, you couldn’t find a better ing is unconstitutional and incon- definition of torture together, then prospect to be Attorney General of the sistent with American values. maybe we could ask Judge Mukasey United States on substance or on quali- Some within this administration about it, ask whether he would enforce fications. He graduated from Columbia share the puzzlement that Judge it. University in 1963, in Mukasey has over torture. Apparently, Really? Mr. President, 105 years ago, 1967, and was on the Board of Editors of Vice President DICK CHENEY is one. He the United States knew waterboarding the Yale Law Journal. With credentials was asked whether it would be accept- was torture and prosecuted an Amer- from Yale, including the Board of Edi- able to him to give a detainee ‘‘a dunk ican soldier for engaging in it. Sixty tors, and his high academic standing,

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14150 CONGRESSIONAL RECORD — SENATE November 8, 2007 these are excellent qualifications. He until it was disclosed in the newspapers and if he had agreed with my vote on was an associate in a major New York in mid-December of 2005 when we were the subject. But, Judge Mukasey said law firm for 5 years after graduating in the midst in this Chamber of debat- in written responses that he believed from law school. He was then an assist- ing the PATRIOT Act. I chaired the he could not make that pronouncement ant United States Attorney for the Judiciary Committee, and I was at this without placing people at risk to be Southern District of New York from podium managing that bill when the sued or perhaps even criminally pros- 1972 to 1976 and was chief of the Official news broke in the morning papers that ecuted. A few weeks ago, former Sec- Corruption Unit for 2 years. Then, he day, and a number of Senators said retary of Defense Rumsfeld was in returned to the practice of law for 11 they were prepared to vote for the PA- Paris at a time when people sought years and became a Federal judge in TRIOT Act until they found out what legal process against him. It was un- 1988, serving for almost two decades, had been done secretly under the Ter- clear whether it was a criminal proce- through 2006. He was Chief Judge of the rorist Surveillance Program. dure or a civil procedure, but we do Federal Court in the Southern District As the record shows, we didn’t pass know that many nations are exercising of New York in Manhattan from 2000 to the bill until early in 2006. But the rel- extraterritorial jurisdiction when they 2006 where he presided over some very evance of that procedure is that there may consider conduct to be a violation important trials involving terrorism. was concern that even if Congress said of the law against humanity. The courthouse for the Federal court waterboarding was torture and was We know, for example, that Israeli in New York was just a few blocks from therefore illegal, the President might Prime Minister Sharon was indicted, I the Trade Towers, which were victim- seek to use his Article 2 powers to ig- believe it was in Belgium. They ized on September 11, 2001. nore that law. couldn’t serve the warrant, but had he Now, a great deal has been said about The first disclosure that former gone to Belgium. He would have been the issue of waterboarding. The Sen- Judge Mukasey would not uphold that subject to that process. We know the ator from Illinois who just spoke said type of Presidential action came with a case of Pinochet from Chile where the morals of our country will be disclosure by Senator SCHUMER about a extraterritorial jurisdiction was sought judged by what has gone on with Judge meeting he had with former Judge as to him. So this is a matter of some Mukasey’s confirmation process. We Mukasey last Friday. It appeared in considerable import. have worked through this issue, and I the press that Judge Mukasey would Professor Goldsmith wrote, speaking believe we have a satisfactory resolu- say the congressional enactment was from his experience as Assistant Attor- tion of it, which accomplishes the sub- controlling. I then had a discussion by ney General in the Office of Legal stance of what the Senator from Illi- telephone with Judge Mukasey last Counsel, that members of the adminis- nois was decrying. Monday morning to be explicit and to tration had expressed concerns that I am opposed to waterboarding. I confirm what I had read in the papers. they might be subject to civil liability think waterboarding is torture. When Not wanting to rely on that, Judge or even criminal liability if it was later the issue was before the U.S. Senate on Mukasey told me he that it was his determined that some of their conduct the Military Commission Act, we had a legal judgment that Congress had the was illegal. So, Judge Mukasey faced a vote, and this body voted 53 to 46 not to constitutional authority to legislate, situation where an expression of an classify waterboarding as torture. That to say waterboarding was torture and opinion by him would put people at is what the Senate did. In another leg- was, therefore, illegal. And if such leg- risk. islative matter, the Detainee Treat- islation was enacted, then it was Judge Professor Goldsmith, in a book which ment Act, waterboarding was prohib- Mukasey’s legal judgment that the was recently published, documented ited. But, as of this moment, the Con- President could not supersede the stat- the concern that members of the ad- gress of the United States has not spo- ute and could not rely on Article 2 ministration had expressed. Judge ken on the matter. power to ignore that finding. That was Mukasey also sought to explain his un- Now Judge Mukasey has stated that confirmed in writing. if waterboarding is declared the equiv- I ask unanimous consent that a copy willingness to give a legal opinion on alent of torture, as Attorney General of that letter dated last Monday, No- whether waterboarding was torture be- cause he hadn’t been read into the pro- he will uphold that congressional de- vember 5, be printed in the RECORD. termination, even if the President The ACTING PRESIDENT pro tem- gram. I thought that was inadequate seeks to reject the statute by virtue of pore. Without objection, it is so or- and insufficient. While it is true he was the President’s Article 2 powers as dered. not read into the program, there is no Commander in Chief and other inher- (See exhibit 1.) doubt it would have been easy for him ent authority, which the President pos- Mr. SPECTER. I said in the letter, as to have been read into the program. sesses under Article 2. Now that is ex- the record will show, if Judge Mukasey The investigation which had been con- actly what the President did on the had any difference with my statement, ducted prior to the President submit- Terrorist Surveillance Program. The he should let me know promptly. I ting his name to the Senate as a nomi- Foreign Intelligence Surveillance Act know it was received by White House nee for Attorney General was very enacted in 1978 specifies that the exclu- personnel, and we communicated, staff thorough, and there is no doubt that he sive way to wiretap is to go to a Fed- to staff, about it, and that is a binding would have been entrusted with what- eral judge with a statement of probable commitment. That commitment, in ever classified information was in- cause and get a warrant—judicial ap- conjunction with Judge Mukasey’s re- volved in being informed on the issue proval—to do the wiretapping. But, sponse to my questioning—I asked him of waterboarding. So I thought that President Bush said he had authority if the President of the United States was an excuse and not weighty—or not to disregard the statute because he had ignored his advice as Attorney General a valid excuse. constitutional authority. if and when confirmed on a matter of Parenthetically, I think it is worth As a matter of constitutional doc- serious import, would Judge Mukasey noting that there are members of the trine, you can’t amend the Constitu- resign as Attorney General, just as At- Judiciary Committee who were called tion with a statute. To amend the Con- torney General Elliot Richardson had upon to pass on Judge Mukasey’s quali- stitution, you have to have a constitu- resigned on the Saturday Night Mas- fications who had not been read into tional amendment. An amendment sacre when efforts were made to stop the program on waterboarding; that is, must pass the Congress by a two-thirds the investigation of President Nixon at to know specifically what it was, vote and be ratified by three-fourths of that time, and Judge Mukasey said he whether it was used, what it was all the States. would resign. So, I think we have a about, was it entirely hypothetical, or So the President took the position very solid record. what the facts were. We have some that his constitutional power super- Now, I do believe there were reasons members of the Judiciary Committee— seded the statute, and he rejected it Judge Mukasey did not express a judg- four—who are on the Intelligence Com- and ignored it. I have grave doubts ment on waterboarding as being tor- mittee. The chairman and I as ranking about the propriety of what the Presi- ture, although candidly it would have member were read into the program. I dent did. We didn’t find out about it been my preference if he had done so tried to get the administration to read

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14151 the members of the Judiciary Com- what is the risk to the United States?— The gunner was prosecuted, and he de- mittee into the program, but the ad- and then consider the conduct of fended that he was following orders. ministration wouldn’t do it. Now, they waterboarding. What does it do? How The court said that you cannot follow read the Intelligence Committee into frequently has it been used, if at all? illegal orders. Anybody should know the program, and I think the Intel- Where is there an intent to use it? The better than to shoot people in a life- ligence Committee should have been Congress ought to make this evalua- boat. read into the program, but the opera- tion and make the decision. We are the So we have a major issue to consider tive committee to pass on Judge proper people to decide that issue. If as it relates to the confirmation of Mukasey was not the Intelligence Com- the Congress enacts legislation that is Judge Mukasey, and I think the ball is mittee. It was the Judiciary Com- signed into law, then Judge Mukasey now in our court. He will enforce legis- mittee. We voted on Judge Mukasey has stated unequivocally that he would lation that equates waterboarding with with members of the Judiciary Com- enforce it. torture. mittee not knowing the specifics on Then there is another issue we all There are a couple of other points waterboarding to have a sufficient dance around, and that is the issue of worthy of comment. I was not satisfied basis, in my view, to cast an intelligent the so-called ticking-bomb case. That with Judge Mukasey’s response to my vote. But the administration precluded is the situation described where a ter- questions on signing statements. We that. This evening, there will be about rorist may come into possession of a have seen that the President of the 80 Senators—if they stay up until mid- powerful weapon—perhaps even a nu- United States now does not follow the night, or whenever it is that we vote— clear weapon—and, regrettably, that is constitutional options when legislation who will be voting on Judge Mukasey not beyond the realm of possibility. is presented to him having been passed and waterboarding is going to be a cen- There might be a situation where by both bodies, both Houses, where the tral issue of the debate tonight—with- someone would know information that Constitution says the President has out knowing the details of what could stop the ticking bomb and injury the choice of signing it or vetoing it. waterboarding is. to an enormous number of people could We now find that he signs it and issues The brutal fact is that the adminis- be prevented. What is to be done in the signing statement, cherry-picking, tration has not given Congress the in- that situation? deciding which of the provisions he will formation Congress should have re- The generalized statements that have enforce and which he will not enforce. ceived so that we can perform our over- been made by so-called leaders in our One of the measures passed by Con- sight function. The Intelligence Act re- society are that we ought not to define gress by a 90-to-9 vote of the Senate quires that members of the Intel- that situation. They say, if we were to was prohibiting interrogation that met ligence Committee be notified of mat- say that torture, waterboarding, or certain standards. The President had a ters such as the secret terrorist sur- some other extreme form of interroga- famed rapprochement with Senator veillance program, and it may be that tion were legal under even the most MCCAIN on the point. They came to a few Members of Congress—the Speak- limited circumstances, that we would terms. We passed the McCain language. er of the House, the senior Republican give legitimacy to waterboarding, to Then the President issued a signing in the House, the majority leader of torture. And then with an exception, statement which, in effect, said he re- the Senate, and the minority leader of you find people that say—as the ex- tained his Article II powers not to fol- the Senate—were informed about the pression goes, the hole is so big, you low it. terrorist surveillance program. It may could drive a truck through it. But, if The PATRIOT Act, which came out be that, finally, the chairman and this Senate and the House take up our of the committee during my tenure as ranking members on the Intelligence duty to decide whether waterboarding chairman, gave the FBI substantial ad- Committee in both Houses were in- is torture, we ought to make a decision ditional powers. In consideration of formed. But the full committee, under as to whether it could be used in any that, we reserved additional oversight. the statute, was supposed to be in- circumstance. Perhaps we should de- And then, notwithstanding that nego- formed. The administration didn’t fol- cide it should be used in no cir- tiation approved by the President’s low the statute as they should have. It cumstance. agents at the Department of Justice, was only when the confirmation of There has also been discussion about the President issued a signing state- General Hayden came before the Sen- legislation to define the extraordinary ment cherry-picking and leaving him ate that the administration finally no- circumstances when torture would be free to disregard the oversight provi- tified the Intelligence Committee. permitted—with a warrant application sion. I voted against General Hayden to be to a judge. We ask for judicial approval I think Judge Mukasey should have Director of the CIA as a protest vote. I on wiretapping or warrants of arrest or been unequivocal in condemning that said he was well qualified for the job, on a variety of issues. practice and should have said he would and I voted against him as a protest be- Then there are some who the surmise advise the President to either sign leg- cause the administration had not fol- that if the President was faced with a islation or veto it but not to cherry- lowed the law. They should have in- situation of a ticking bomb, it would pick. He had a very artful answer formed me, as chairman of the Judici- be up to the President to act under where he says he will try to avoid this ary Committee in the 109th Congress, those exigent circumstances, and he kind of tension and conflict between and Senator LEAHY, as ranking mem- could be relied upon. But that is not so the executive branch and the Congress. ber. That is a statement of what might easy either because it may well be— While I don’t like that, I don’t think it be considered as a collateral matter. It and I think, in fact, is—that agents of is a sufficient reason to vote against is relevant in this discussion because the CIA would not undertake, under a him. Judge Mukasey was not read into the Presidential order, a violation of U.S. Judge Mukasey was forthright on his program. I think he should have been. law because no one is above the law. views as to . He acknowl- I don’t know that he would have said Even if the President were to authorize edged that habeas corpus is a constitu- anything more. But now the ball is it, the President doesn’t do the tional right, unlike his predecessor, squarely in our court—the congres- waterboarding or interrogation. Those who really rejected the plain English of sional court. Legislation is pending people would be unwilling to undertake the Constitution, which states that ha- that would make waterboarding tor- something that was a violation of law. beas corpus is a constitutional right. ture and, therefore, illegal. There was a famous case, after World Considering all of these factors, it is This is the kind of question which I War I, where a ship was sunk by a sub- my judgment, after meeting informally think is a quintessential example of marine. The survivors in the lifeboat with former Federal Judge Mukasey what the Congress of the United States were at sea, and the submarine sur- and participating in the extensive ought to decide. In a representative de- faced. The commander ordered the gun- hearings and reviewing answers to mocracy, the Congress ought to make ner to shoot the people in the lifeboat. many written questions, that Judge the determination of what is the appro- The gunner resisted for a while, and Mukasey is well qualified to be Attor- priate public policy, and the Congress then he followed his orders. He shot ney General. I think it unfortunate ought to assess the risk of terrorism— and killed the people in the lifeboat. that there will be many negative votes

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14152 CONGRESSIONAL RECORD — SENATE November 8, 2007 against him. I think those negative commitment to the same effect. If I do not for having Americans engage in votes will be in the context of this hear from you to the contrary, I intend to re- waterboarding and other treatment waterboarding issue, where there are lease this letter to the news media because that would violate our Nation’s obliga- very substantial emotional and polit- this information would be important on the tions and values. Senate’s consideration of your confirmation. I ask unanimous consent to have ical considerations involved, and Sen- Sincerely, printed in the RECORD a copy of my ators exercise rights to vote as they ARLEN SPECTER. most recent letter to Counsel Fielding choose. But I do believe that even The ACTING PRESIDENT pro tem- those who vote against Judge Mukasey on this point. pore. The Senator from Vermont is rec- will acknowledge his qualifications. He There being no objection, the mate- ognized. rial was ordered to be printed in the is well qualified by way of academic Mr. LEAHY. Mr. President, how RECORD, as follows: and professional background, and he much time has been reserved for the has a very sterling record as a judge; U.S. SENATE, Senator from Vermont? COMMITTEE ON THE JUDICIARY, that he is honest, forthright, and tal- The ACTING PRESIDENT pro tem- ented. He is a lawyer’s lawyer or a Washington, DC, November 7, 2007. pore. The Senator has 45 minutes. Mr. FRED FIELDING, Esq., judge’s judge. When you talk to him or Mr. LEAHY. How much time is re- Office of the Counsel to the President, question him at a hearing, you get served overall for those in opposition The White House, Washington, DC. back very sophisticated, erudite an- to this nomination? DEAR MR. FIELDING: I have not received a swers, analytically displaying a vast The ACTING PRESIDENT pro tem- reply to the letter I sent to you almost two knowledge of the Constitution and the pore. An hour and 45 minutes. Twenty weeks ago seeking a fuller accounting of this Administration’s legal justifications and cases which have been interpreted. has been used, so 1 hour 25 minutes re- What weighs heavily in my mind on policies with regard to torture and interro- mains. gation. Another copy of my unanswered Oc- Judge Mukasey is the urgent need of Mr. LEAHY. I thank the Chair. tober 25, 2007, letter is enclosed. the Department for new leadership. Mr. President, this debate is as much Over the past few days I have read in the I thank the chairman for having a a discussion of principles that are vital press that there may, in fact, be three legal special markup on Tuesday. It was to American ideals and to the Amer- memoranda from the Justice Department’s extra work for the committee, but Sen- ican soul as it is a debate about who is Office of Legal Counsel in 2005, not just two, ator LEAHY called the Judiciary Com- going to act as the Attorney General that have been withheld from us. Appar- mittee together for an extra markup. ently, the Administration has conceded the for the next 14 months. existence of three such memoranda in court He has exercised the leadership to During the Judiciary Committee’s bring this matter to a vote tonight. filings this week. Without even an account- consideration of this nomination ear- ing from you and the Administration, it is I thank the distinguished majority lier this week, Senators KENNEDY, impossible for me to know. leader also for scheduling the vote, be- KOHL, FEINGOLD, DURBIN, CARDIN, As I have previously noted, the Committee cause the Department of Justice needs WHITEHOUSE, and I made clear the fal- does not yet have a complete picture of the Judge Mukasey at work tomorrow lacy that would disregard settled law Administration’s historic position on the morning. They need to have him sworn and discredit America’s role in the legal basis and standards for detention, in sometime between the vote of con- transfer, and interrogation in connection struggle for liberty and human dignity, with counter-terrorism efforts. It is impor- firmation tonight and 8 a.m. tomorrow, something we should all support. when people ought to report to work at tant that you share with the Senate Judici- On the way to rationalizing support ary Committee all legal opinions on these the Department of Justice. The Depart- for a particular nominee, just as with issues from the Office of Legal Counsel and ment of Justice has been categorized as rationalizing support for a particular elsewhere in the Department of Justice and dysfunctional, in disarray. It is in ur- piece of legislation, it may be tempting the Administration. I noted in my previous gent need of an Attorney General. this once—just this once, we might tell letter that you have not, despite our re- When that is done, I think we will see ourselves—tacitly to abet the argu- peated requests, provided us with the 2005 some nominations for Deputy, which is memoranda that apparently authorize the ments of those who want to define tor- use of combinations of cruel and extreme vacant. An Associate Attorney General ture down to make it something less. is only an acting deputy, and a number practices. We are fast approaching the one- Whatever the temptation—whatever year anniversary of my November 15, 2006, of assistants are only acting. the temptation, this once—we cannot request for ‘‘any and all Department of Jus- All things considered, I think it is in rationalize away our core American tice directives, memoranda, and/or guidance the national interest that we confirm ideals, the rule of law, and the prin- . . . regarding CIA detention and/or interro- former Federal Judge Mukasey. I pre- ciple that in America, not even the gation methods.’’ dict he will do a sterling job as Attor- President is above the law. I regret that you did not take the oppor- tunity created with the announced resigna- ney General. The President and Vice President How much time remains, Mr. Presi- tion of Alberto Gonzales to work with us to should not be allowed to violate our ob- put these matters to rest. The first step dent? ligations under the Convention Against The ACTING PRESIDENT pro tem- would have been disclosure of the legal Torture and the Geneva Conventions, pore. The Senator has 2 hours remain- memoranda still being kept secret from the should not be allowed to disregard U.S. Senate Judiciary Committee. That has yet ing under his control. statutes, such as our Detainee Treat- to occur. As you have recently witnessed, Mr. SPECTER. I thank the chair and without these materials and a shared under- yield the floor. ment Act and War Crimes Act. They should not be allowed to overturn more standing of what the Administration has EXHIBIT 1 been doing, is doing, its justifications, its than 200 years of our Nation’s rev- legal analysis, and its purported basis for U.S. SENATE, erence for human rights and moral Washington, DC, November 5, 2007. overriding our and treaty obligations, Hon. MICHAEL B. MUKASEY, leadership around the world. many Members of the Committee remain Avenue of the Americas, The administration has compounded very concerned. New York, NY. its lawlessness by cloaking its policies Much of the controversy and discussion DEAR JUDGE MUKASEY: I think it is impor- and miscalculations under a veil of se- surrounding the Committee’s consideration tant to have our telephone conversation of crecy. They left the Congress, they left of the President’s nomination of Michael this morning on the record so I’m writing to the courts, and, most importantly, Mukasey to serve as Attorney General arose from these matters. The Administration’s confirm the following: they left the American people in the (1) In your opinion, Congress has the con- lack of cooperation greatly contributed to stitutional authority to legislate that dark about what they were doing. The the controversy and ultimately to the oppo- waterboarding is torture and is therefore il- President says we do not torture, but sition to that nomination. legal; and then he had his lawyers redefine ‘‘tor- Sincerely, (2) If such legislation is enacted, it is your ture,’’ and he had them do that in se- PATRICK LEAHY, opinion that the President would not have cret memos, in fundamental conflict Chairman. the authority under Article II of the Con- with American values and law. Mr. LEAHY. Mr. President, I agree stitution to overrule that legislation. Again, yesterday, I wrote to the with the generals, the admirals, and If I have inaccurately stated our conversa- tion, I would appreciate your prompt advice. White House counsel reiterating my the judge advocates general that As we discussed, on earlier request for this administra- waterboarding is torture and is illegal. Saturday quoted Senator Schumer on your tion’s secret, purported justifications The generals, the admirals, the judge

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00048 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14153 advocates general say waterboarding is General of the Navy, 2000–02; Rear Ad- told that waterboarding, which has torture and illegal. miral John D. Hutson, United States been recognized as torture, not for the I ask unanimous consent to have Navy (Ret.), Judge Advocate General of last 10 years or 50 years or 100 years, printed in the RECORD a copy of a let- the Navy, 1997–2000; Major General but has been recognized as torture for ter I received from MG John Fugh, John L. Fugh, United States Army (Ret.), Judge Advocate General of the the last 500 years, is a ‘‘technique’’ RADM Don Guter, RADM John Hutson, Army, 1991–93; Brigadier General David they cannot rule out as something a and BG David Brahms, dated November M. Brahms, United States Marine foreign intelligence service might be 2. Corps (Ret.), Staff Judge Advocate to justified in using against Americans. There being no objection, the mate- the Commandant, 1985–88. This is ‘‘Alice in Wonderland.’’ rial was ordered to be printed in the Mr. LEAHY. Mr. President, these dis- Never mind that President Teddy RECORD, as follows: tinguished military officers, flag offi- Roosevelt, no shrinking violet he, pros- NOVEMBER 2, 2007. cers, people who are charged with ecuted American soldiers for this more Hon. PATRICK J. LEAHY, knowing what is our law, what is our than 100 years ago. Never mind that we Chairman, U.S. Senate, prosecuted Japanese soldiers for Washington DC. Constitution, what are our treaty com- DEAR CHAIRMAN LEAHY: In the course of mitments, and what are the rules our waterboarding Americans during World the Senate Judiciary Committee’s consider- military must follow, write with abso- War II. Never mind what repressive re- ation of President Bush’s nominee for the lute clarity, and I quote the significant gimes are doing to this day around the post of Attorney General, there has been sentence from their letter: world. It is appalling. much discussion, but little clarity, about the When it comes to our core values— legality of ‘‘waterboarding’’ under United Waterboarding is inhumane, it is torture, and it is illegal. the things that make our country States and international law. We write be- great, that define America’s place in cause this issue above all demands clarity: They also quote the sitting judge ad- the world—it does not depend on the Waterboarding is inhumane, it is torture, vocates general of the military services circumstances; it depends on our core and it is illegal. from our committee’s hearing last year In 2006 the Senate Judiciary Committee values. America, the great and good in which they unanimously and unam- held hearings on the authority to prosecute nation that has been a beacon to the biguously agreed that waterboarding is terrorists under the war crimes provisions of rest of the world on human rights, does inhumane, it is illegal, it is a violation Title 18 of the U.S. Code. In connection with not torture, it should not stand for tor- those hearings the sitting Judge Advocates of law. ture, and it should stand against tor- General of the military services were asked Think for a moment, if another na- to submit written responses to a series of tion picked up an American and ture. I ask unanimous consent to have questions regarding ‘‘the use of a wet towel waterboarded that American and we printed in the RECORD a copy of a let- and dripping water to induce the heard about it; no Senator, no Amer- misperception of drowning (i.e., ter I received from the National Reli- waterboarding). . . ,’’ Major General Scott ican would have to know the cir- gious Campaign Against Torture, dated Black, U.S. Army Judge Advocate General, cumstances and the purported jus- November 1. Major General Jack Rives, U.S. Air Force tifications for it. We would condemn it. There being no objection, the mate- Judge Advocate General, Rear Admiral All 100 of us would be on the floor con- rial was ordered to be printed in the Bruce MacDonald, U.S. Navy Judge Advocate demning it, and 435 members of the RECORD, as follows: General, and Brigadier Gen. Kevin other body would be condemning it. Sandkuhler, Staff Judge Advocate to the NATIONAL RELIGIOUS CAMPAIGN Commandant of the U.S. Marine Corps, Whoever was President of the United AGAINST TORTURE, unanimously and unambiguously agreed that States would condemn it. But you Washington, DC, November 1, 2007. such conduct is inhumane and illegal and know what, that was before this debate Hon. PATRICK LEAHY, would constitute a violation of international began, and now, tragically, this admin- Chairman, U.S. Senate, Committee on the Judi- law, to include Common Article 3 of the 1949 istration has so twisted America’s role ciary, 433 Russell Senate Office Building, Geneva Conventions. and our laws and values that appar- U.S. Senate, Washington, DC. We agree with our active duty colleagues. ently our own State Department is now DEAR SENATOR LEAHY: The National Reli- This is a critically important issue—but it is gious Campaign Against Torture (NRCAT), a not, and never has been, a complex issue, and ordered they cannot say that campaign of over 130 religious organizations even to suggest otherwise does a terrible dis- waterboarding of an American is ille- working together to abolish U.S.-sponsored service to this Nation. All U.S. Government gal. torture and cruel, inhuman or degrading agencies and personnel, and not just Amer- Mr. President, that is how far we treatment of anyone, without exception, is ica’s military forces, must abide by both the have sunk. I ask unanimous consent to deeply concerned about the responses Judge spirit and letter of the controlling provisions have printed in the RECORD a copy of a Michael Mukasey gave both at his nomina- of international law. Cruelty and torture—no letter I sent to Secretary Rice pro- tion hearing and in his most recent written less than wanton killing—is neither justified testing this order. response on the subject of torture. We be- nor legal in any circumstance. It is essential lieve his answers leave open the door to the to be clear, specific and unambiguous about There being no objection, the mate- use of techniques by the U.S. government this fact—as in fact we have been throughout rial was ordered to be printed in the that would be cruel, inhuman and degrading America’s history, at least until the last few RECORD, as follows: and that could amount to torture. This is years. Abu Ghraib and other notorious exam- U.S. SENATE, true not only for waterboarding, which is ples of detainee abuse have been the product, COMMITTEE ON THE JUDICIARY, clearly illegal and a form of torture, but also at least in part, of a self-serving and destruc- Washington, DC, November 6, 2007. for a number of other techniques we under- tive disregard for the well-established legal Hon. CONDOLEEZZA RICE, stand the CIA has used and may continue to principles applicable to this issue. This must Secretary of State, use. end. Washington, DC. Our country already knows what happens The Rule of Law is fundamental to our ex- DEAR SECRETARY RICE: There are reports when we have an Attorney General who istence as a civilized nation. The Rule of that one of your principal aides and legal ad- countenances torture and cruel, inhuman or Law is not a goal which we merely aspire to visers, a Mr. John Bellinger, is taking the degrading treatment. We lose our moral achieve; it is the floor below which we must legal position that he cannot say whether it compass; decent Americans are called upon not sink. For the Rule of Law to function ef- is permissible to waterboard Americans and on our behalf to commit acts that damage fectively, however, it must provide actual that it depends on the facts and cir- their souls; our soldiers who may be cap- rules that can be followed. cumstances. I could not disagree more tured are placed in greater jeopardy; we are In this instance, the relevant rule—the strongly. There are no conceivable facts or shamed in the eyes of the world. law—has long been clear: Waterboarding de- circumstances that would justify water- It is time to turn a new page; the con- tainees amounts to illegal torture in all cir- boarding an American anywhere in the world firmation of a new Attorney General is such cumstances. To suggest otherwise—or even for any reason. Our treaty obligations and an opportunity. It would be tragic to allow to give credence to such a suggestion—rep- domestic law make waterboarding illegal. an individual who has not clearly rejected resents both an affront to the law and to the Please respond without delay and set this the illegal and immoral practices of torture core values of our Nation. and cruel, inhuman degrading treatment to matter straight. We respectfully urge you to consider these become the leading law enforcement officer Sincerely, principles in connection with the nomination of our nation. of Judge Mukasey. PATRICK LEAHY, NRCAT members, who include representa- Sincerely, Chairman. tives from the Catholic, evangelical Chris- Rear Admiral Donald J. Guter, United Mr. LEAHY. Mr. President, senior tian, mainline Protestant, Orthodox Chris- States Navy (Ret.), Judge Advocate State Department legal officers are tian, Unitarian Universalist, Jewish, Quaker,

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14154 CONGRESSIONAL RECORD — SENATE November 8, 2007 Muslim, and Sikh communities, believe that erything to rescue them because it some kind of a cloak and say maybe we torture violates the basic dignity of the would be wrong and it would be illegal. should have a law in the future. We human person that all religions, in their It is not just illegal and wrong if some- have that law. This is as if, when some- highest ideals, hold dear. It degrades every- body else does it, it is illegal and it is body murders somebody with a base- one involved—policy-makers, perpetrators wrong if we do it. ball bat, they were to say: We had a and victims—and it contradicts our nation’s most cherished values. We believe that any Sadly, when I cited this very stand- law against murder, but we never men- policies that permit torture and inhuman ard in a written question to Judge tioned baseball bats. Murder is murder; treatment are shocking and morally intoler- Mukasey and asked if it would be an torture is torture. Our laws make both able. abuse if another country waterboarded illegal, and our laws—but especially We urge you to approve a nominee as At- an American, he sidestepped the ques- our values—do not permit this to be an torney General who is unequivocal in his or tion, and he failed to condemn even open question or even one that depends her stance against the use of torture and waterboarding of Americans. When we on who is doing the waterboarding. We cruel, inhuman or degrading treatment. found our State Department to begin cannot say it is wrong when other Sincerely, to do the same, I saw a pattern. countries do it but, of course, it is LINDA GUSTITUS, President. In their recent letter to the nominee, right when we do it because our heart REV. RICHARD KILLMER, Senators WARNER, MCCAIN, and GRA- is pure. That is a prescription for dis- Executive Director. HAM do not take that approach. They aster. That is what heightens the risk Mr. LEAHY. Mr. President, what do recognize, as I do and I hope all Sen- to American citizens and soldiers we set as an example? We lose our way ators do, that waterboarding, under around the world, and it gives repres- on this question of torture. When any circumstances, represents a clear sive regimes comfort, and that is some- America arranged to have a Canadian violation of U.S. law. That is what Sen- thing I will not do. citizen, changing a plane in the United ators WARNER, MCCAIN, and GRAHAM I will not accept this fallacious argu- States on the way to Canada, sent to said. As chairman of the Senate Judici- ment. I will not accept this pretense Syria to be tortured, what did we tell ary Committee, I agree with them. that it is OK because we have not yet the rest of the world? I will tell you When the administration and others passed a law, when that has always what we told the rest of the world: state that we cannot state whether been the law in the United States. It Here we have the outrageous conduct America waterboards people because it was in Theodore Roosevelt’s day, it of President Musharraf’s Government would tip off our enemies, they have it was when we prosecuted Japanese sol- in Pakistan. He is closing down the precisely wrong. That is about as effec- diers after World War II for courts, he is closing down the opposi- tive as Saddam Hussein hinting that he waterboarding, and it is today. It would be like saying we haven’t a tion, he is closing down the press. We had weapons of mass destruction, even specific law for some of the things done have to meekly say: Please don’t do though he did not, as he tried to im- in Abu Ghraib. Of course, we had not. that; we do send you billions of dollars press his enemies. In refusing to say we do not We knew such actions violated every in aid; please don’t destroy democracy. principle of our law. Are we going to A Cabinet Minister in his Govern- waterboard prisoners, what do we do? say, however, it was all right because ment was interviewed yesterday on a We end up giving license to others. we didn’t have spelled out in the law Canadian show. When he was asked if When the United States cannot state unequivocally that waterboarding is every single thought that could be he was ashamed of the images the torture and illegal and will not be tol- raised about torture so we could spe- world was seeing of Pakistanis being erated, what does that mean for other cifically cite to that? clubbed by police in the streets, part of Governments? What comfort does that Mr. President, hasn’t there been his reply was this: Are other coun- provide the world’s most repressive re- enough harm done to the United States tries—referring to the United States— gimes? How does it allow the United by the images of Abu Ghraib? Hasn’t ashamed of taking persons from an- States, that hitherto has been a beacon there been enough harm done to the other country to a third country and for human rights, to criticize or lecture United States by this Government in- torturing them? Are they ashamed? these repressive regimes that torture tentionally taking a Canadian citizen I would like to think as Americans that way? and sending that citizen to Syria to be we hold the high moral ground, but we Some have sought to find comfort in tortured? Hasn’t there been enough can be lectured because we have not, Judge Mukasey’s personal assurance harm done to this country that we by the likes of a member of the Cabinet that he would enforce a future, some don’t need to have Senators stand on of a despotic regime in Pakistan, and kind of new law against waterboarding the floor of the Senate and say: Well, there is no answer to it. There is no an- if Congress were to pass one. Even maybe sometime in the future we swer to it because what he objects to some in the press have used that talk- should have a law against us doing is sending a citizen of another ing point from the White House. Any waterboarding, when our top military country who was on our land to Syria such prohibition would have to be en- and everybody else all agree this is al- to be tortured, and we have no answer acted over the veto of this President, a ready against the law. to that because this administration President who has not ruled out the Now, I wish I could support Judge and this Government did it. use of waterboarding. Mukasey’s nomination because I like I am proud to be an American. I am But the real damage in this argu- him. I like his legal abilities. I like his so happy my maternal grandparents ment is not its futility. The real harm background as a prosecutor. He is a immigrated to this country from Italy is that it presupposes we don’t already tough, no-nonsense prosecutor. But we and gave me a chance to be an Amer- have laws and treaty obligations are dealing with an administration ican, as did my great-grandparents against waterboarding. As we know, that has been acting outside the law, from Ireland. I am proud of it. I am when we enter a treaty, it becomes the an administration that has now cre- proud to see my children growing up as law of the land. We have laws already ated a confirmation contortion. Mr. Americans, now my grandchildren, as I against it. We don’t need a new law. No President, I am not a moral contor- know the distinguished Presiding Offi- Senator should, with any kind of clear tionist, and I am not going to aid and cer whose family has been in this coun- conscience, abet this administration’s abet the confirmation contortions of try much longer than mine is proud of legalistic obfuscations by those, such this administration. When many of us his American heritage. But torture as Alberto Gonzales, who take these voted to confirm General Petraeus, the should not be what America stands for. positions, or John Yoo and David administration turned around and, for Indeed, the better example is set by the Addington, by agreeing somehow that political advantage, tried to claim Army Field Manual, which instructs the laws we already have on the books when we voted to confirm the general, our forces to consider how we would do not already make waterboarding il- we also voted for the President’s war react if what a soldier is about to do to legal. We have been properly pros- policies. Well, I did not vote for a war someone was done to an American sol- ecuting water torture for more than 100 in Iraq. I voted against it. And I do not dier. How would our soldiers react if years. vote to allow torture. And just as I do they found somebody waterboarding an Vote for the nominee or vote against not support this President’s Iraq pol- American soldier? They would do ev- the nominee, but don’t hide behind icy, I do not support his torture policy

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00050 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14155 or his views of unaccountability or un- President, is above the law. As we con- President to be largely unconstrained limited Executive power. sider the nomination of Michael by law. If nothing the President can do No one is more eager to restore Mukasey, we must determine what would be illegal, there would never be strong leadership and independence to kind of Attorney General he would be an occasion for him to make such a the Department of Justice than I. For and whether he will stand for the rule principled stand. almost 3 years, it has been leaderless. of law against the demands of this That is why I was so disappointed by For almost 3 years, it has engaged in White House. Judge Mukasey’s answers suggesting every single effort not to follow the I began my consideration of this that he sees little occasion to check law, but to find ways around the law. nomination as I did with the last At- the President’s power. I was disturbed That has created a terrible problem of torney General nomination, hoping to by his insistence that, with regard to morale among the very wonderful men be able to support the nominee. After warrantless wiretapping and the For- and women, the talented men and the hearing for the last nominee in eign Intelligence Surveillance Act, the women who work there. 2005, I decided that I could not vote for President has inherent authority out- We all know what we need most right the confirmation of Alberto Gonzales. I side of the statute and could authorize now is an Attorney General who be- did so noting, as Justice James Iredell and immunize conduct contrary to the lieves and understands there must be had in 1792, that the person who serves law. I fail to see a valid distinction jus- limitations on Executive power. as Attorney General ‘‘is not called At- tifying his assertion that the President Whether the Executive is a Republican torney General of the President, but could have the power of an executive or a Democratic President, there have Attorney General of the United override in the surveillance context, to be limitations. America needs to be States.’’ This is a different kind of Cab- but not in the torture context, and I certain of the bedrock principles of our inet position, distinct from all the oth- worry about where his reasoning could laws and our values and that no Presi- ers, and it requires greater independ- lead us. dent, no American, can be authorized ence. The departing Attorney General I was disappointed in his abandoning to violate them. In America, no one is never understood this. Instead, he saw his initial answer to parrot the White above the law. The President of the his role as a facilitator for this White House’s conclusion that a U.S. attor- United States is not above the law. He House’s overreaching policies and par- ney could not bring a congressional is not allowed to place anybody else tisan politics. contempt citation to a grand jury. above the law. That is what has main- The crisis of leadership that led to That is the mechanism in the law that tained this democracy for over 200 the resignation of the entire senior allows an independent court the oppor- years. leadership of the Department and their tunity to referee any claim of execu- When we began considering this nom- staffs, as well as Karl Rove and his two tive privilege that the executive and ination, I observed that the Depart- top aides at the White House, has legislative branches could not resolve ment of Justice has experienced an un- taken a heavy toll on the tradition of amongst themselves. He, instead, in- precedented crisis of leadership. It is a independence that had long guided the sisted that the solution in such a situa- crisis that has come more and more Department of Justice and protected it tion was an ‘‘accommodation’’ of the into view as Senator SPECTER and I from political influence. As a former kind that this administration has been have led a bipartisan group of con- prosecutor I know that the dismay consistently unwilling to make. Once cerned Senators serving on our Judici- runs deep, from the career attorneys at again, his position leads me to worry ary Committee to consider a U.S. at- Justice and in our U.S. attorney of- that he would allow this President’s torney firing scandal, a confrontation fices, straight down to the cops on the unprecedented assertions of power to over the legality of the administra- beat. go completely unchecked. tion’s warrantless wiretapping pro- The Senate should only confirm a I was saddened to hear Judge gram, and the politicization of hiring nominee who will bring a commitment Mukasey say that he apparently would at the Department of Justice. What we to the rule of law and American lib- not support habeas corpus rights for have seen is not just poor leadership, erties and values back to the Justice detainees, rejecting a core legal right but the complete breakdown of the Department. As I have reviewed Judge and a basic American value which Sen- principles that have always embodied Mukasey’s nomination, I have found ator SPECTER and I have fought so hard the Department of Justice and the po- much to like. He has impressive cre- to restore. I was disappointed to see sition of Attorney General. dentials, vast experience as a lawyer him echo in response to my questions For me, the issue has never been per- and a judge, and a refreshingly the same administration policy on ex- sonal to Alberto Gonzales. The Judici- straightforward manner. I liked him traordinary rendition that has led to ary Committee’s investigations into when I met him, and I am convinced several disgraceful episodes for this the Department’s many scandals were that he is a man of integrity and would Nation and fail to commit even to re- not designed to force the resignation of not be governed merely by personal or view the case of Maher Arar, a promi- Alberto Gonzales, but rather to restore political loyalty. nent and disturbing episode of ren- the integrity and the mission of the At his hearing, he answered firmly dition. Department of Justice. My goal was that he would not tolerate political Which brings me back to the issue not to force his resignation but to re- meddling in investigations or litiga- that came to dominate the consider- store the Department of Justice. That tion and would end hiring based on pol- ation of this nomination, the issue of the administration had him remain itics, and he was clear in asserting that torture. The United States does not more than 6 months after the U.S. at- he would resign if the President in- torture. The United States does not in- torney firing scandal was known con- sisted on going forward with a course flict cruel, inhuman, and degrading tinued the harm and forestalled the of action he had found to be illegal. treatment. This is part of the moral restoration of order. These were encouraging signs. fiber of our country and our historical It was not just the fact that he lost But I am concerned that he shares place as a world leader on human my confidence that forced him to with this administration a view of vir- rights, and it has long been fixed in our leave. It was not the Senate passing a tually unbridled executive power and laws, our Constitution, and our values. resolution of no confidence. Rather it authority. In these uncertain times, it That is why I was so saddened when was our bipartisan efforts in which Re- may be tempting simply to defer the Judge Mukasey, given repeated oppor- publicans and Democrats who care Commander in Chief, but I believe that tunities, refused to say that the an- about Federal law enforcement and the in difficult times, it is more important cient and extreme technique of Department of Justice joined together than ever to insist on the rule of law waterboarding, a brutal practice in to press for accountability. and the principles that have made our which a person is subjected to simu- The issue during the Senate con- country unique in the world for more lated drowning, is illegal. There may firmation of Alberto Gonzales remains than 200 years. Even Judge Mukasey’s be interrogation techniques that re- today. The Department of Justice has strong promise to resign if the Presi- quire close examination and extensive always set out to enforce the law and dent insists on an illegal course of ac- briefings. Waterboarding is not among to ensure that no one, not even the tion loses its power if he believes the them. Judge Mukasey does not need a

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00051 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14156 CONGRESSIONAL RECORD — SENATE November 8, 2007 classified briefing to learn about other crimes, with torturing Allied military is no different. This history should be of waterboarding. He could go to the li- personnel and civilians. The principal proof value to those who seek to understand what brary to read about waterboarding that upon which their torture convictions were the law is—as well as what it ought to be. was done as far back as the Spanish In- based was conduct that we would now call Mr. LEAHY. More than 100 years ago, waterboarding. in 1901 and 1902, U.S. military commis- quisition, or about American prosecu- In this case from the tribunal’s records, tions of Japanese war criminals for the victim was a prisoner in the Japanese- sions charged American officers with waterboarding after World War II. occupied Dutch East Indies: waterboarding detainees in the Phil- Evan Wallach, a judge at the U.S. A towel was fixed under the chin and down ippines, and President Theodore Roo- Court of International Trade, a pro- over the face. Then many buckets of water sevelt wrote: fessor who teaches the law of war, and were poured into the towel so that the water Great as the provocation has been in deal- a former JAG officer, wrote an insight- gradually reached the mouth and rising fur- ing with foes who habitually resort to ther eventually also the nostrils, which re- treachery, murder and torture against our ful column in last Sunday’s Wash- sulted in his becoming unconscious and col- ington Post that I ask unanimous con- men, nothing can justify the use of torture lapsing like a person drowned. This proce- or inhuman conduct of any kind on the part sent be printed in the RECORD. dure was sometimes repeated 5–6 times in of the American Army. There being no objection, the mate- succession. rial was ordered to be printed in the The United States (like Britain, Australia This country’s abhorrence for cruel RECORD, as follows: and other Allies) pursued lower-ranking Jap- treatment of detainees goes back fur- anese war criminals in trials before their ther still to General George Wash- WATERBOARDING USED TO BEACRIME own tribunals. As a general rule, the testi- ington who wrote of captured troops (By Evan Wallach) mony was similar to Nielsen’s. Consider this during the Revolutionary War: As a JAG in the Nevada National Guard, I account from a Filipino waterboarding vic- Treat them with humanity, and let them used to lecture the soldiers of the 72nd Mili- tim: have no reason to complain of our copying tary Police Company every year about their Q: Was it painful? legal obligations when they guarded pris- A: Not so painful, but one becomes uncon- the brutal example of the British Army in oners. I’d always conclude by saying, ‘‘I scious. Like drowning in the water. their treatment of our unfortunate brethren. know you won’t remember everything I told Q: Like you were drowning? Those are American standards and you today, but just remember what your A: Drowning —you could hardly breathe. American values that should not be mom told you: Do unto others as you would Here’s the testimony of two Americans im- compromised. have others do unto you.’’ That’s a pretty prisoned by the Japanese: They would lash As RADM John Hutson, former Judge me to a stretcher then prop me up against a good standard for life and for the law, and Advocate General of the Navy, testified even though I left the unit in 1995, I like to table with my head down. They would then think that some of my teaching had carried pour about two gallons of water from a to the Judiciary Committee: over when the 72nd refused to participate in pitcher into my nose and mouth until I lost Other than perhaps the rack and misconduct at Iraq’s Abu Ghraib prison. consciousness. And from the second prisoner: thumbscrews, water-boarding is the most Sometimes, though, the questions we face They laid me out on a stretcher and strapped iconic example of torture in history. It has about detainees and interrogation get more me on. The stretcher was then stood on end been repudiated for centuries. It’s a little specific. One such set of questions relates to with my head almost touching the floor and disconcerting to hear now that we’re not ‘‘waterboarding.’’ my feet in the air. . . . They then began quite sure where water-boarding fits in the That term is used to describe several inter- pouring water over my face and at times it scheme of things. I think we have to be very rogation techniques. The victim may be im- was almost impossible for me to breathe sure where it fits in the scheme of things. mersed in water, have water forced into the without sucking in water. Judge Mukasey acknowledged that, nose and mouth, or have water poured onto As a result of such accounts, a number of in evaluating interrogation techniques, material placed over the face so that the liq- Japanese prison-camp officers and guards uid is inhaled or swallowed. The media usu- were convicted of torture that clearly vio- we look to standards such as whether ally characterize the practice as ‘‘simulated lated the laws of war. They were not the only the conduct ‘‘shocks the conscience,’’ drowning.’’ That’s incorrect. To be effective, defendants convicted in such cases. As far whether it is ‘‘outrageous,’’ or whether waterboarding is usually real drowning that back as the U.S. occupation of the Phil- it is ‘‘for the purpose of humiliating simulates death. That is, the victim experi- ippines after the 1898 Spanish-American War, and degrading the detainee.’’ He was ences the sensations of drowning: struggle, U.S. soldiers were court-martialed for using unwilling, though, to say that panic, breath-holding, swallowing, vomiting, the ‘‘water cure’’ to question Filipino guer- waterboarding meets these standards. taking water into the lungs and, eventually, rillas. To me, it is not a hard call that the same feeling of not being able to breathe More recently, waterboarding cases have that one experiences after being punched in appeared in U.S. district courts. One was a waterboarding shocks the conscience, the gut. The main difference is that the civil action brought by several Filipinos that it is outrageous, that it humili- drowning process is halted. According to seeking damages against the estate of former ates and degrades detainees. I do not those who have studied waterboarding’s ef- Philippine president Ferdinand Marcos. The believe that the question whether fects, it can cause severe psychological trau- plaintiffs claimed they had been subjected to waterboarding is illegal is subject to a ma, such as panic attacks, for years. torture, including water torture. The court balancing test. It is. Indeed, it is that The United States knows quite a bit about awarded $766 million in damages, noting in kind of ‘‘balancing test’’ that has al- waterboarding. The U.S. government— its findings that ‘‘the plaintiffs experienced lowed this President to claim the dis- whether acting alone before domestic courts, human rights violations including, but not commissions and courts-martial or as part of limited to . . . the water cure, where a cloth cretion to commit so many abuses that the world community—has not only con- was placed over the detainee’s mouth and have brought such disgrace on this demned the use of water torture but has se- nose, and water producing a drowning sensa- great country. verely punished those who applied it. tion.’’ Senator MCCAIN, who knows too After World War II, we convicted several In 1983, federal prosecutors charged a much about the issue of torture, said Japanese soldiers for waterboarding Amer- Texas sheriff and three of his deputies with recently: ican and Allied prisoners of war. At the trial violating prisoners’ civil rights by forcing Anyone who knows what waterboarding is of his captors, then-Lt. Chase J. Nielsen, one confessions. The complaint alleged that the could not be unsure. It is a horrible torture of the 1942 Army Air Forces officers who flew officers conspired to ‘‘subject prisoners to a technique used by Pol Pot and being used on in the Doolittle Raid and was captured by suffocating water torture ordeal in order to Buddhist monks as we speak. People who the Japanese, testified: ‘‘I was given several coerce confessions. This generally included have worn the uniform and had the experi- types of torture. . . . I was given what they the placement of a towel over the nose and ence know that this is a terrible and odious call the water cure.’’ He was asked what he mouth of the prisoner and the pouring of practice and should never be condoned in the felt when the Japanese soldiers poured the water in the towel until the prisoner began U.S. We are a better nation than that. water. ‘‘Well, I felt more or less like I was to move, jerk, or otherwise indicate that he drowning,’’ he replied, ‘‘just gasping between was suffocating and/or drowning.’’ I agree. life and death.’’ The four defendants were convicted, and Nothing is more fundamental to our Nielsen’s experience was not unique. Nor the sheriff was sentenced to 10 years in pris- constitutional democracy than our was the prosecution of his captors. After on. basic notion that no one is above the Japan surrendered, the United States orga- We know that U.S. military tribunals and law. This administration has undercut nized and participated in the International U.S. judges have examined certain types of Military Tribunal for the Far East, generally water-based interrogation and found that that precept time after time. They are called the Tokyo War Crimes Trials. Leading they constituted torture. That’s a lesson now trying to do it again, with an issue members of Japan’s military and govern- worth learning. The study of law is, after all, as fundamental as whether the United ment elite were charged, among their many largely the study of history. The law of war States of America will join the ranks

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00052 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14157 of those governments that approve of Judge Mukasey has shown he will be Isn’t that what we want? torture. That is why I will vote no on a strong and independent Attorney Now, the President has said publicly the President’s nomination. General. he will not send another nominee to Mr. President, I reserve the remain- He couldn’t be any more different the Senate. So what does that mean? It der of my time. from Alberto Gonzales. Alberto means if we don’t confirm this nomi- The ACTING PRESIDENT pro tem- Gonzales owed his political career, and nee, we will effectively have an Acting pore. The Senator from Pennsylvania. his legal career to a great extent, to Attorney General for the remaining 14 Mr. SPECTER. Mr. President, before President Bush. Judge Mukasey does months of this President’s tenure. yielding 20 minutes to the distin- not. He has followed an independent And what does that mean? It could guished Senator from California, I path. And he has been, for 18 years, a likely mean that Peter Keisler, who praise Senator FEINSTEIN for her work Federal district court judge—yes, fol- has been an architect of Bush adminis- on the confirmation of Judge Mukasey. lowing the rule of law, not the rule of tration policies at DOJ for more than 5 As is customary for Senator FEINSTEIN, man. He has stood on his own, he has years, will remain as Acting Attorney she is present at all the hearings, at all litigated on his own, he has judged on General for the rest of this administra- the Judiciary Committee business, and his own. tion. comes to the meetings extraordinarily Judge Mukasey, in my view, is going Is that what we want? well prepared. I think she has a natural to be a very different Attorney Gen- It means most likely there will be re- advantage, however, because she is not eral. And it is hard for me to under- cess appointments this winter for the a lawyer. stand why everyone in this body 10 major leadership positions in the De- It is a very difficult matter in this doesn’t come to the same conclusion partment. body to state the facts and to cross just by judging his background against And what does that mean? Simply party lines, and to do so requires a the background of the prior Attorney stated: The administration could put in number of factors. It requires a lot of General. That is very hard for me to place the most egregious and political confidence and judgment, and it re- understand. Their backgrounds—their leadership, and we—the Senate—could quires a lot of courage to stand up as legal backgrounds, their service back- do nothing about it. We would have re- one of very few. grounds—are so entirely different. duced transparency and reduced con- Her vote and Senator SCHUMER’s vote If you read the 178 pages of answers gressional oversight. were indispensable to move the nomi- to questions that were submitted by Now this is the realpolitik. This is nation to the Senate floor. So she has Senators, some as many as 30, 35 ques- the likelihood, should Judge Mukasey 20 minutes. tions, you see the independence of fail confirmation. Mrs. FEINSTEIN. I thank the rank- Judge Mukasey. In response to ques- I believe it is the fundamental and ing member of the Judiciary Com- tion 20 by Senator KENNEDY, Judge driving factor for confirmation of this mittee. Mukasey said this: nominee. Not to confirm him will leave Mr. President, shortly the Senate There can be no political litmus test for this vital department open to a con- will vote on whether to confirm Mi- the hiring of career civil service employees. tinuation of egregious past actions, chael Mukasey as the next Attorney This is, and must be, a bedrock principle. and we have railed against those past General or whether to leave the De- He added that he would have ‘‘zero actions for years now. We have a partment of Justice without a real tolerance’’ in this area. chance to make a change. leader for the next 14 months. Isn’t that what we want? We don’t select the nominee, the I believe that is the issue. I will vote On the issue of politically motivated President selects the nominee. to confirm Judge Mukasey. prosecutions, which, as I have said, I Does he have failed character? No. For me, the Department of Justice believe there have been by this depart- Does he lack in experience? No. Does has always been the beacon of law en- ment, he said, in the transcript, dated he have the temperament to be Attor- forcement and justice around the 10/17/07, page 19: ney General? He has proven it with 18 world. I have always truly believed we Partisan politics plays no part in either years as a Federal judge. had a state-of-the-art system of justice the bringing of charges or the timing of Does he know one of the most impor- that functioned independently of who- charges. tant areas of the law—national secu- ever happened to hold the White House And in response to question 20(a) by rity law? He has tried some of the or whoever was in the Congress. This Senator DURBIN he also said he would major terrorist cases that have been beacon has been dimmed in the last 7 recommend the firing of any U.S. At- tried in Article III courts in the United years, and I am one who finds the De- torney who brought or planned to bring States of America, and defendants have partment in disarray today. a case for partisan gain. gone to prison. I think the real issue before us today Isn’t that what we want? Now, I have seen people pound their is: Can this nominee be a strong and With regard to election crime pros- breasts here on torture. And none of us independent leader of the Justice De- ecutions, he wrote this: want torture. partment in the remaining time of this There is a difference between U.S. The closer to an election, the higher the administration? Can he depoliticize the standard that must be met for charges to be law and treaty law. We have passed Department? Can he restore its mo- brought. certain U.S. laws. We have passed a rale? Will he be independent from the That was in response to question no. Military Commissions Act. That is a White House? law of the United States of America. 18 from Senator KENNEDY. If your answer is yes, then I believe In addition, Judge Mukasey made it We have passed the Detainee Treat- we should vote for him. If it is no, then clear he will work to fix the many ment Act. That is a law of the United you don’t mind an Acting Attorney problems that have arisen in the De- States of America. The Detainee Treat- General for the next 14 months. partment’s Civil Rights Division. He ment Act prohibits waterboarding for Ten of the most important positions wrote this to us: any military personnel anywhere in in the Department today have no per- the world. manent person serving but are either The Civil Rights Division occupies a cru- So, to the opponents of this nomina- cial place in the Department precisely be- acting or interim. Mr. President, 21 out cause it continues to carry out the work of tion: We have passed a law. They say it of 93 U.S. Attorney positions are va- the civil rights movement by enforcing the is not necessary to pass a law, but in cant, and only two nominees are pend- Nation’s civil rights laws. I strongly support fact we have passed a law prohibiting ing before the Senate for confirmation. the mission of the Civil Rights Division and waterboarding. And Judge Mukasey Cases have been brought based on will ensure that it has the tools and re- has said the Detainee Treatment Act is partisan considerations instead of the sources it needs to fulfill its mandate. binding on the President and binding facts and the law. U.S. Attorneys who This was in answer to a question sub- on this country. did not initiate partisan prosecutions mitted by Senator LEAHY. The one exception is, there is no U.S. were summarily fired. The Civil Rights I think these answers alone show it is law that deals with the CIA. That is Division has been weakened and politi- not going to be business as usual in the the exception. There are prestigious cized. Department of Justice. human rights groups that say it

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00053 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14158 CONGRESSIONAL RECORD — SENATE November 8, 2007 doesn’t matter; the Geneva Conven- will see that streak of independence—I eral; that he will make his views very tions and the Conventions Against Tor- would tend to agree with some of what clear; and that, once he has the oppor- ture prevail. The President is saying I has been said here. But I do not, be- tunity to do the evaluation he believes have Article II authority, and AUMF cause I seriously believe this is the he needs on waterboarding, he will be authority, and my view of Presidential only chance this Senate is going to be willing to come before the Judiciary power. offered to put new leadership in the De- Committee and express his views com- So what will solve it? A constitu- partment of Justice. prehensively and definitively. tional confrontation? The Supreme If, in fact, you believe it is in dis- In conclusion, this nominee had no Court? What solves it? array, then there is only one action to part in the administration’s policies or My belief is, it is so easy: Instead of take. If you believe it has been politi- legal opinions with respect to torture. pounding our chests, simply do what cized, there is only one action to take. We should not blame him for them. we did in the Detainee Treatment Act, The former Attorney General has not How can this man be the standard- but do it for the CIA and prohibit been independent, and he said he wore bearer for torture? He is not. Why is he waterboarding. End of debate. two hats—one serving the White House being treated as such? Some people want to keep the issue and one serving the people. If you be- We should give this nominee an op- alive rather than solve the problem. I lieve there is only one hat an Attorney portunity to look at these treaties, am not one of those people. I believe we General can wear, and that is serving look at the laws, read the opinions, and should end the ambiguity, and simply the people, then you have no choice we should do what we are here to do— prohibit waterboarding across the other than Judge Mukasey. That is be- legislate and prohibit waterboarding board. cause otherwise, there will be an Act- across the board. I do not believe Judge Mukasey ing Attorney General, not subject to I thank the ranking member. should be denied confirmation for fail- confirmation, not subject to ques- I yield the floor. ing to provide an absolute answer on tioning, not subject to any kind of The ACTING PRESIDENT pro tem- this one subject. oversight—but, again, an arm of the pore. The Senator from New Jersey is Nobody should think anything else is White House. recognized. happening tonight. He would be denied Most of the major newspapers in my Mr. MENENDEZ. Mr. President, I ask confirmation because he said, I would State have editorialized in favor of unanimous consent I control the time like an opportunity to look at these Judge Mukasey. This is what the San allocated to Senator REED of Rhode Is- laws, to look at these treaties, to read Diego Union-Tribune had to say about land, who has indicated he will not be the legal opinions that have been writ- him: using that time. ten, and then have time to make up my Torture is antithetical to American values. The ACTING PRESIDENT pro tem- mind. President Bush ought to issue an Executive pore. Without objection, it is so or- Maybe we will want people to snap to order explicitly outlawing waterboarding. dered. and issue immediate judgments. This That said, Mukasey is not to blame for the Mr. MENENDEZ. Mr. President, I man has been a judge for 18 years. Bush administration’s interrogation policies. further ask unanimous consent that Maybe he likes to consider the facts be- In his confirmation hearings, he has dem- the next Democratic speakers be the fore he makes a decision. I don’t think onstrated a firm commitment to defend the Constitution. He merits confirmation by the following: Senators CARDIN, BOXER, that should be disqualifying. Senate. KENNEDY, SALAZAR and SANDERS but We can bring him before the Judici- not necessarily in that order. They got it. ary Committee in late January and The ACTING PRESIDENT pro tem- The Detroit Free Press had this to simply say: Judge Mukasey, now-At- pore. Without objection, it is so or- say: torney General Mukasey, you have had dered. an opportunity to look at the law. As Attorney General, Mukasey can be ex- The Senator from Pennsylvania is pected to fight hard for what’s legal rather What is your opinion? than what’s expedient. recognized. At the same time, I can say to you Mr. SPECTER. Mr. President, would Don’t we want that? quite honestly, I believe waterboarding the sequence permit alternating be- is illegal. I don’t think it should be At least that’s a step toward restoring the tween those four against Judge countenanced by the United States of rule of law in the last 14 months of the Bush administration. The full Senate should con- Mukasey? America. I am not a lawyer, and I have firm Mukasey, lest the president’s next pick Mr. MENENDEZ. It would. not been for 18 years—or even 1 year— be someone with a more malleable sense of The ACTING PRESIDENT pro tem- a Federal judge. right and wrong. pore. The order would so provide. I believe waterboarding is prohibited Then, a paper from my State, The Mr. SPECTER. So provided, for alter- under the Convention Against Torture Sacramento Bee, got it right: nation? and the Geneva Conventions. But it is The ACTING PRESIDENT pro tem- As a replacement for Alberto Gonzales, Mi- not prohibited by name. It is prohib- chael Mukasey, the nominee for U.S. attor- pore. For alternation. ited in terms of its effects. There is a ney general, would bring a restorative inde- Mr. SPECTER. I thank the Chair, certain grayness for some—for some. pendence of mind to the job. . . . Mukasey thank the Senator from New Jersey, The opponents of this nomination appears likely to operate in the open and and pardon the interruption. have not given us any reason to think with a higher respect for the system of the The ACTING PRESIDENT pro tem- an acting or interim Attorney General U.S. Government than for personal ties. pore. The Senator from New Jersey is would give us a better answer about A critical question. recognized. waterboarding. We would expect him to urge the president Mr. MENENDEZ. Mr. President, how As a matter of fact, I would hazard a to work with Congress. The Senate should much time do I have? guess they would not. I would hazard a confirm Mukasey to begin the cleanup at The ACTING PRESIDENT pro tem- guess that if this nominee goes down, Justice. pore. Fifteen minutes. the exact same policies that have char- This is the only chance we have. It is Mr. MENENDEZ. Mr. President, I acterized the last 7 years will continue not as if we can turn him down and the rise today to express my opposition to for the next 14 months. Am I being too administration is going to send us an- the nomination of Judge Michael abrupt to suggest we are missing some- other nominee. They have already said Mukasey to be the next Attorney Gen- thing, that we should not get over- they will not. eral for the United States. This has not whelmed by the pounding of the chest I do not believe that voting down this been an easy decision for me to make. against torture—that this is our nominee will do even a bit of good in I met Judge Mukasey before the judi- chance for change? preventing torture. No one has ex- ciary hearings and liked him im- If Judge Mukasey were not a re- plained why more of the same at the mensely on a personal level. We dis- spected judge, if he didn’t have the Justice Department would be better cussed the unprecedented and ex- legal background, if he didn’t have the than putting Judge Mukasey in charge. tremely harmful politicization that streak of independence—and read 178 I do believe he will be a truly non- that has occurred within the Justice pages of questions and answers and you political, nonpartisan Attorney Gen- Department since the beginning of the

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00054 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14159 Bush administration. I was encouraged the future outlawing waterboarding. I violates U.S. law. The only person that by the steps he said he would take to am not sure how reassuring this state- it is not clear to is Judge Mukasey. reverse it. We talked about the prob- ment is, since waterboarding is already I have spent some time trying to un- lems of leaking secret grand jury infor- illegal in the United States. Why derstand why Judge Mukasey refused mation, and I was impressed by his should Congress have to pass a law pro- to confirm something that is so clear commitment to investigate any allega- hibiting something that is already ille- under our laws. The only thing I can tions of grand jury leaks and to termi- gal? come up with is that his statement is nate any responsible prosecutors. Judge Mukasey should be well aware consistent with the current Bush ad- In fact, after my meeting, I thought that waterboarding is illegal. On Octo- ministration policy. It protects admin- that I could comfortably vote to con- ber 31, Senators MCCAIN, GRAHAM, and istration officials who have admitted firm Judge Mukasey as our next Attor- WARNER—all experts in the area of in- waterboarding occurred on their watch, ney General. But, then came the judici- terrogation and military justice— and it tacitly permits President Bush ary hearings. wrote a letter to Judge Mukasey stat- to continue utilizing waterboarding as On the second day of the hearings, ing, without a shadow of a doubt that an interrogation technique. Judge Mukasey was specifically asked ‘‘waterboarding, under any cir- It strikes me as more than a little whether waterboarding was illegal. cumstances, represents a clear viola- coincidental that on his first day of Now, before I get to Judge Mukasey’s tion of U.S. law.’’ And my colleagues testimony before the Judiciary Com- answer, let me describe what should know this. They authored the mittee, Judge Mukasey was not afraid waterboarding is. And, let me make 2005 prohibition on cruel, inhuman, and to depart with administration policy clear that my description contains no degrading treatment that the Presi- and assert his independence. Yet on the classified information—nothing that dent signed into law. During the de- second day of testimony, he all of a Judge Mukasey would need special se- bate, they made it very clear that the sudden began to play the role of loyal curity clearance to know. so-called ‘‘McCain amendment’’ pro- footsoldier. The term waterboarding can be used hibits waterboarding or other extreme One has to wonder whether this to describe several different interroga- techniques that ‘‘shock the con- change of heart occurred under pres- tion techniques. In one, the victim is science.’’ sure from the administration. If noth- immersed in water. In another, water I ask unanimous consent that a let- ing else, it certainly makes me wonder is forced into the victim’s nose and ter concerning waterboarding from whether Judge Mukasey will be as mouth. In the third, water is poured Senators MCCAIN, WARNER and GRAHAM independent of a thinker and an actor onto material—like cellophane—that is and letters of opposition and concern as he led us all to believe he would be. placed over the victim’s face so that from the American-Arab Anti-Dis- I hope that I am wrong about Judge the victim inhales and swallows the crimination Committee and the Amer- Mukasey. This is a critical point in his- water. ican Psychological Association be tory for the Justice Department. Since Regardless of which technique is printed in the RECORD. the beginning of the Bush administra- used, the victim experiences the sensa- The PRESIDING OFFICER. Without tion, we have seen the influence of po- tions of drowning: they struggle, they objection, it is so ordered. litical appointees expand exponen- panic, they hold their breath. They in- (See Exhibit 1.) tially. We have seen good, qualified, hale water into their lungs—they Mr. MENENDEZ. Knowing what we dedicated prosecutors fired and re- vomit and sometimes black out. This is know about waterboarding, there is no placed by Bush loyalists. We have seen not simulated drowning. It is simu- way anyone can argue that it does not the number of civil rights prosecutions lated death. The drowning is real. shock the conscience. drop, and we have seen clearly dis- Despite this public knowledge of The McCain amendment is not the criminatory voter I.D. laws approved what constitutes waterboarding, Judge only provision of U.S. law prohibiting by partisan political appointees over Mukasey refused to say whether waterboarding. The 2006 Military Com- the objections of experienced career waterboarding was illegal. According missions Act clearly prohibits the employees. to the judge ‘‘hypotheticals are dif- practice. It enumerates the grave The Justice Department clearly ferent from real life.’’ Therefore wheth- breaches of common article III of the needs new leadership. It needs to be er waterboarding was illegal would de- Geneva Conventions that constitute of- cleaned up. It needs someone who will pend on ‘‘the actual facts and cir- fenses under the War Crimes Act. And, not only stop the continuing cumstances’’—things he did not know I it explicitly prohibits acts that inflict politicalization but reverse the effects have a hard time understanding what ‘‘serious and nontransitory mental of what has already happened. facts and circumstances could make harm.’’ As my colleagues stated so If confirmed, I hope that Judge the procedures I just described legal. I clearly in their letter ‘‘Staging a mock Mukasey will be that kind of leader. I have a hard time understanding what execution by inducing the hope that he will exhibit the independ- facts and circumstances could make misperception of drowning is a clear ence and honesty that he said he would them somehow not cruel and inhu- violation of this standard.’’ when I met with him. I hope he is as mane. The only thing I don’t have a In fact, the U.S. has successfully committed to upholding the laws of the hard time understanding is why Judge prosecuted individuals who have en- United States as Attorney General as Mukasey’s evasive and non-committal gaged in waterboarding. After World he appeared to be as a United States comments sound so familiar. War II, U.S. Military Commissions ac- Judge. I hope that his statements on We have heard them before and all cused and successfully convicted Japa- waterboarding are an exception to, not too often. Time and time again, other nese soldiers for torturing American an indication of, the role he will play members of the Bush administration prisoners through the use of as Attorney General. have played word games to justify waterboarding. How can we stand here But, I cannot vote on hope alone. I their use of illegal or inappropriate in- over 60 years later and confirm an indi- have to vote on facts. And, given the terrogation techniques. vidual to be our country’s highest facts available, I simply cannot sup- Judge Mukasey tried to backpedal by ranking law enforcement official if he port Judge Mukasey’s nomination. saying that he found waterboarding will not enforce laws we have already EXHIBIT 1 personally repugnant. Well, as many of prosecuted? U.S. SENATE, us know, whether someone finds a law There is no reason to believe that COMMITTEE ON ARMED SERVICES, personally repugnant often has no im- waterboarding is anything but illegal. Washington, DC, October 31, 2007. pact on whether that person will en- There is no compelling argument that Hon. MICHAEL B. MUKASEY, force the law. Whether they find an ac- it could ever be consistent with U.S. Patterson Belknap Webb & Tyler LLP, tion personally repugnant often has no law. There is no ambiguity here. No New York, NY. DEAR JUDGE MUKASEY: We welcome your impact on whether they will prosecute shades of gray. It is clear to me that acknowledgement in yesterday’s letter that that action. water boarding is illegal. It is clear to the interrogation technique known as Judge Mukasey also said he would my colleagues Senators MCCAIN, GRA- waterboarding is ‘‘over the line’’ and ‘‘repug- uphold any law that Congress passes in HAM, and WARNER that waterboarding nant,’’ and we appreciate your recognition

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14160 CONGRESSIONAL RECORD — SENATE November 8, 2007 that Congress possesses the authority to ban nization dedicated ensuring the civil rights In a separate letter to President Bush, we interrogation techniques. These are impor- of Arab Americans, would like to express its urged him to regard the ongoing Senate con- tant statements, and we expect that they opposition to Judge Mukasey’s confirmation. firmation process involving his Attorney will inform your views as Attorney General. Judge Mukasey has disappointed our na- General nominee as a timely opportunity to We also expect that, in that role, you will tional expectations and failed our patriotic expand his recent Executive Order to clarify not permit the use of such a practice by any legacy as champions of democracy, human that ‘‘enhanced’’ interrogation techniques, rights, and due process. He refused to name agency of the United States Government. such as forced nudity, waterboarding, and You have declined to comment specifically the practice of waterboarding as torture, has mock executions, which are defined as tor- on the legality of waterboarding, deeming it cast doubts as to whether non-citizens in ture or cruel, inhuman, or degrading treat- a hypothetical scenario about which it would U.S. custody should enjoy the protection of ment by the Geneva Conventions and the be imprudent to opine. Should you be con- the U.S. Constitution, and has advocated for firmed, however, you will soon be required to the creation of separate national security United Nations Convention Against Torture, make determinations regarding the legality courts, casting doubt on our time-proven ju- shall not be used or condoned by the U.S. of interrogation techniques that are any- diciary system. government. We also urged the government thing but hypothetical. Should this tech- It should be noted that all four currently to disallow any testimony resulting from the nique come before you for review, we urge serving Judge Advocates General for our use of these techniques. armed forces are on record in qualifying that you take that opportunity to declare APA unequivocally condemns the use of waterboarding as torture and constituting a waterboarding illegal. torture and cruel inhuman, or degrading Waterboarding, under any circumstances, war crime. The Attorney General is the na- tion’s chief law enforcement officer and is treatment or punishment under any and all represents a clear violation of U.S. law. In conditions, including the detention and in- 2005, the President signed into law a prohibi- tasked with the application of the rule of law. The Attorney General must be able to terrogation of both lawful and unlawful tion on cruel, inhuman, and degrading treat- ‘‘enemy combatants,’’ as defined by the U.S. ment as those terms are understood under maintain the delicate balance between na- Military Commissions Act of 2006 (see at- the standards of the U.S. Constitution. There tional security and individual liberties and rights. Judge Mukasey’s hesitancy on these tached August 2007 resolution). Accordingly, was at that time a debate over the way in vital matters, his doubts as to whether the we also urge the Congress and the Bush ad- which the Administration was likely to in- U.S. Constitution, our supreme law of the ministration to establish policies and proce- terpret these prohibitions. We stated then land, applies to non-citizens, foreshadow a our strong belief that a fair reading of the dures to ensure the judicial review of these possible unwillingness on his part to enforce detentions, which in some instances have ‘‘McCain Amendment’’ outlaws the role of law, including that of our Con- waterboarding and other extreme tech- gone on for years without any determination stitution and international legal standards; of their legality. niques. It is, or should be, beyond dispute standards that our nation has championed that waterboarding ‘‘shocks the conscience.’’ for decades. Psychologists consulting to the military It is also incontestable that waterboarding It is time for President Bush to nominate and intelligence communities, like their col- is outlawed by the 2006 Military Commis- an attorney general who stands up for the leagues in domestic forensic settings, use sions Act (MCA), and it was the clear intent values that have defined our nation; Judge their expertise to promote the use of ethical, of Congress to prohibit the practice. As the Mukasey is not such a nominee. As our na- effective, and rapport-building interroga- authors of the statute, we would note that tion’s largest non-profit organization dedi- tions, while safeguarding the welfare of in- the MCA enumerates grave breaches of Com- cated since 1980 to defending the civil rights terrogators and detainees. It is always un- mon Article 3 of the Geneva Conventions of Americans of Arab descent, we ask that ethical for a psychologist to plan, design, or that constitute offenses under the War you stand up as a patriot and a leader in de- assist, either directly or indirectly, in inter- Crimes Act. Among these is an explicit pro- fense of our national values and oppose rogation techniques delineated in APA’s 2007 hibition on acts that inflict ‘‘serious and Judge Mukasey’s confirmation as the next resolution and any other techniques defined nontransitory mental harm,’’ which the attorney general. as torture or cruel, inhuman, or degrading MCA states (but your letter omits) ‘‘need not Thank you for your consideration of this treatment or punihment under the Geneva be prolonged.’’ Staging a mock execution by matter. Should you or your staff have any Conventions, the United Nations Convention inducing the misperception of drowning is a questions concerning this matter or ADC’s Against Torture, and APA’s 2006 Resolution clear violation of this standard. Indeed, dur- work with the U.S. Department of Justice Against Torture. ing the negotiations, we were personally as- please do not hesitate to contact ADC Legis- There are no exceptional circumstances sured by Administration officials that this lative Director Christine Gleichert at language, which applies to all agencies of the [email protected] or (202) 244–2990. whatsoever to these prohibitions, whether U.S. Government, prohibited waterboarding. Very truly yours, induced by a state of war, threat of war, or We share your revulsion at the use of KAREEM W. SHORA, JD, LLM, any other public emergency, or in the face of waterboarding and welcome your commit- National Executive Director. laws, regulations, or orders. APA will sup- ment to review existing legal memoranda port psychologists who refuse to work in set- covering interrogations and their consist- AMERICAN PSYCHOLOGICAL tings in which the human rights of detainees ency with current law. It is vital that you do ASSOCIATION, are not protected. Moreover, psychologists so, as anyone who engages in this practice, Washington, DC, November 1, 2007. with knowledge of the use of any prohibited on behalf of any U.S. government agency, Hon. PATRICK J. LEAHY, interrogation technique have an ethical re- puts himself at risk of criminal prosecution, Chairman, Senate Judiciary Committee, sponsibility to inform their superiors and including under the War Crimes Act, and Washington, DC. the relevant office of inspectors general, as opens himself to civil liability as well. Hon. ARLEN SPECTER appropriate, and to cooperate fully with all We must wage and win the war on terror, Ranking Member, Senate Judiciary Committee, government oversight activities to ensure but doing so is fully compatible with fidelity Washington, DC. that no individual is subjected to this type of to our laws and deepest values. Once you are DEAR CHAIRMAN LEAHY AND RANKING MEM- treatment. confirmed and fully briefed on the relevant BER SPECTER: We are writing on behalf of the We look forward to working with the Sen- programs and legal analyses, we urge you to American Psychological Association (APA), publicly make clear that waterboarding can the world’s largest scientific and profes- ate Judiciary Committee to develop policies never be employed. sional organization of psychologists, to com- on interrogation that provide for ethical and Sincerely, mend and support your ongoing efforts re- effective means to elicit information to pre- JOHN MCCAIN, lated to the confirmation hearing and fol- vent acts of violence. Our own work in this United States Senator. low-up correspondence to Attorney General area is ongoing, and we plan to make avail- LINDSEY GRAHAM, nominee Michael B. Mukasey. We highly able a casebook and commentary (upon com- United States Senator. value your commitment to ensure that the pletion) to provide guidance on the interpre- JOHN WARNER, next U.S. Attomey General is dedicated to tation of our resolution. If you have any United States Senator. safeguarding the physical and psychological questions or are in need of additional infor- welfare and human rights of individuals in- mation, please contact APA’s Director of AMERICAN-ARAB carcerated by the U.S. government in foreign Ethics, Stephen Behnke, J.D., Ph.D., at (202) ANTI-DISCRIMINATION COMMITTEE, detention centers. We are all too aware of re- 336–6006 or at [email protected], or our Sen- Washington, DC, November 1, 2007. ports of a 2002 memorandum by then Assist- ior Policy Advisor, Ellen Garrison, Ph.D., at Hon. PATRICK LEAHY, ant U.S. Attorney General Jay Bybee that (202) 336–6066 or [email protected]. Chairman, Senate Committee on the Judiciary, granted power to the President to issue or- Sincerely, Washington, DC. ders in violation of the Geneva Conventions SHARON STEPHENS BREHM, PH.D, DEAR CHAIRMAN LEAHY: On November 5, as and international laws that prohibit torture President. the Senate Committee on the Judiciary con- and cruel, inhuman, or degrading treatment. NORMAN B. ANDERSON, PH.D., venes a nomination hearing for Attorney (Fortunately, this memorandum has since Chief Executive Officer. General Nominee Judge Michael Mukasey, been disavowed by President Bush and over- the American-Arab Anti-Discrimination ridden by his Executive Order in July of this Committee (ADC), the nations premier orga- year.) Attachment

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REAFFIRMATION OF THE AMERICAN PSYCHO- whether induced by a state of war or threat an ethical responsibility to abide by Ethical LOGICAL ASSOCIATION POSITION AGAINST of war, internal political instability or any Standard 1.05, Reporting Ethical Violations, TORTURE AND OTHER CRUEL, INHUMAN, OR other public emergency, that may be in- in the Ethical Principles of Psychologists DEGRADING TREATMENT OR PUNISHMENT AND voked as a justification for torture or cruel, and Code of Conduct (2002) and directs the ITS APPLICATION TO INDIVIDUALS DEFINED IN inhuman, or degrading treatment or punish- Ethics Committee to take appropriate action THE UNITED STATES CODE AS ‘‘ENEMY COM- ment, including the invocation of laws, regu- based upon such information, and encourages BATANTS’’ lations, or orders; psychologists who are not APA members Whereas the mission of the American Psy- Be it resolved that the American Psycho- also to adhere to Ethical Standard 1.05; chological Association is to advance psy- logical Association unequivocally condemns Be it resolved that the American Psycho- chology as a science and profession and as a torture and cruel, inhuman, or degrading logical Association commends those psy- means of promoting health, education and treatment or punishment, under any and all chologists who have taken clear and un- human welfare through the establishment conditions, including detention and interro- equivocal stands against torture and cruel, and maintenance of the highest standards of gations of both lawful and unlawful enemy inhuman or degrading treatment or punish- professional ethics and conduct of the mem- combatants as defined by the U.S. Military ment, especially in the line of duty, and in- bers of the Association; Commissions Act of 2006; cluding stands against the specific behaviors Be it resolved that the unequivocal con- Whereas the American Psychological Asso- (in lines 81 through 100) or conditions listed demnation includes an absolute prohibition ciation is an accredited non-governmental above; and that the American Psychological against psychologists’ knowingly planning, organization at the United Nations and so is Association affirms the prerogative of psy- designing, and assisting in the use of torture committed to promote and protect human chologists under the Ethical Principles of and any form of cruel, inhuman or degrading rights in accordance with the United Nations Psychologists and Code of Conduct (2002) to treatment or punishment; Charter and the Universal Declaration of disobey law, regulations or orders when they Be it resolved that this unequivocal con- conflict with ethics; Human Rights; demnation includes all techniques defined as Whereas the American Psychological Asso- Be it resolved that the American Psycho- torture or cruel, inhuman or degrading ciation passed the 2006 Resolution Against logical Association asserts that all psycholo- treatment under the 2006 Resolution Against Torture and other Cruel, Inhuman or De- gists with information relevant to the use of Torture and Other Cruel, Inhuman, or De- grading Treatment or Punishment, a com- any method of interrogation constituting grading Treatment or Punishment, the prehensive and foundational position appli- torture or cruel, inhuman, or degrading United Nations Convention Against Torture, cable to all individuals, in all settings and in treatment or punishment have an ethical re- and the Geneva Convention. This unequivo- all contexts without exception; sponsibility to inform their superiors of such cal condemnation includes, but is by no Whereas in 2006, the American Psycho- knowledge, to inform the relevant office of means limited to, an absolute prohibition for logical Association defined torture in ac- inspectors general when appropriate, and to psychologists against direct or indirect par- cordance with Article 1 of the United Na- cooperate fully with all oversight activities, ticipation in interrogations or in any other tions Declaration and Convention Against including hearings by the United States Con- detainee-related operations in mock execu- Torture and Other Cruel, Inhuman, or De- gress and all branches of the United States tions, water-boarding or any other form of grading Treatment or Punishment, government, to examine the perpetration of simulated drowning or suffocation, sexual [T]he term ‘‘torture’’ means any act by torture and cruel, inhuman, or degrading humiliation, rape, cultural or religious hu- treatment or punishment against individuals which severe pain or suffering, whether phys- miliation, exploitation of phobias or psycho- ical or mental, is intentionally inflicted in United States custody, for the purpose of pathology, induced hypothermia, the use of ensuring that no individual in the custody of upon a person for such purposes as obtaining psychotropic drugs or mind-altering sub- from him or a third person information or a the United States is subjected to torture or stances used for the purpose of eliciting in- cruel, inhuman, or degrading treatment or confession, punishing him for an act he or a formation; as well as the following used for third person has committed or is suspected punishment; the purposes of eliciting information in an Be it resolved that the APA Ethics Com- of having committed, or intimidating or co- interrogation process: hooding, forced na- ercing him or a third person, or for any rea- mittee shall proceed forthwith in writing a kedness, stress positions, the use of dogs to casebook and commentary that shall set son based on discrimination of any kind, threaten or intimidate, physical assault in- when such pain or suffering is inflicted by or forth guidelines for psychologists that are cluding slapping or shaking, exposure to ex- consistent with international human rights at the instigation of or with the consent or treme heat or cold, threats of harm or death; acquiescence of a public official or other per- instruments, as well as guidelines developed and isolation, sensory deprivation and over- for health professionals, including but not son acting in an official [e.g., governmental, stimulation and/or sleep deprivation used in religious, political, organizational] capacity. limited to: Common Article 3 of the Geneva a manner that represents significant pain or Conventions; The United Nations Convention It does not include pain or suffering arising suffering or in a manner that a reasonable only from, inherent in, or incidental to law- Against Torture and Other Cruel, Inhuman, person would judge to cause lasting harm; or or Degrading Treatment or Punishment; The ful sanctions [in accordance with both do- the threatened use of any of the above tech- mestic and international law]; United Nations Principles of Medical Ethics niques to the individual or to menbers of the Relevant to the Role of Health Personnel, Whereas in 2006, the American Psycho- individual’s family; particularly Physicians, in the Protection of logical Association defined the term ‘‘cruel, Be it resolved that the American Psycho- Prisoners and Detainees against Torture and inhuman, or degrading treatment or punish- logical Association calls on the United Other Cruel, Inhuman, or Degrading Treat- ment’’ to mean treatment or punishment by States government—including Congress, the ment or Punishment; and The World Medical a psychologist that, in accordance with the Department of Defense, and the Central In- Association Declaration of Tokyo: Guide- McCain Amendment, is of a kind that would telligence Agency—to prohibit the use of lines for Physicians Concerning Torture and be ‘‘prohibited by the Fifth, Eighth, and these methods in all interrogations and that other Cruel, Inhuman or Degrading Treat- Fourteenth Amendments to the Constitution the American Psychological Association ment or Punishment in Relation to Deten- of the United States, as defined in the United shall inform relevant parties with the United tion and Imprisonment; States Reservations, Declarations and Un- States government that psychologists are BE IT RESOLVED that the American Psy- derstandings to the United Nations Conven- prohibited from participating in such meth- chological Association, in order to protect tion Against Torture and Other Forms of ods; against torture and cruel, inhuman, or de- Cruel, Inhuman or Degrading Treatment or Be it resolved that the American Psycho- grading treatment or punishment, and in Punishment done at New York, December 10, logical Association, in recognizing that tor- order to mitigate against the likelihood that 1984.’’ Specifica1ly, United States Reserva- ture and other cruel, inhuman or degrading unreliable and/or inaccurate information is tion I.1 of the Reservations, Declarations treatment and punishment can result not entered into legal proceedings, calls upon and Understandings to the United Nations only from the behavior of individuals, but United States legal systems to reject testi- Convention Against Torture stating, ‘‘the also from the conditions of confinement, ex- mony that results from torture or cruel, in- term ‘cruel, inhuman or degrading treatment presses grave concern over settings in which human, or degrading treatment or punish- or punishment’ means the cruel, unusual and detainees are deprived of adequate protec- ment. inhumane treatment or punishment prohib- tion of their human rights, affirms the pre- ited by the Fifth, Eighth, and/or Fourteenth rogative of psychologists to refuse to work ENDNOTES Amendments to the Constitution of the in such settings, and will explore ways to i Defined as both unlawful enemy combat- United States.’’ ii support psychologists who refuse to work in ants and lawful enemy combatants as set Be it resolved that the American Psycho- such settings or who refuse to obey orders forth in the U.S. Military Commissions Act logical Association reaffirms unequivocally that constitute torture; of 2006 (Chapter 47A; Subchapter I: § 948a. the 2006 Resolution Against Torture and Be it resolved that the American Psycho- Definitions) Other Cruel, Inhuman, or Degrading Treat- logical Association asserts that any APA ‘‘(1) Unlawful enemy combatant.— ment or Punishment in its entirety in both member with knowledge that a psychologist, (A) The term ‘unlawful enemy combatant’ substance and content (see Appendix A); whether an APA member or non-member, means— Be it resolved that the American Psycho- has engaged in torture or cruel, inhuman, or ‘‘(i) a person who has engaged in hostilities logical Association affirms that there are no degrading treatment or punishment, includ- or who has purposefully and materially sup- exceptional circumstances whatsoever, ing the specific behaviors listed above, has ported hostilities against the United States

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14162 CONGRESSIONAL RECORD — SENATE November 8, 2007 or its co-belligerents who is not a lawful nique, they have asserted that he sup- statutory authority. It defined torture. enemy combatant (including a person who is ports torture, and many have decided It was passed overwhelmingly by Con- part of the Taliban, al Qaeda, or associated to vote against him. I think that is un- gress in 1994. forces); or fair to the judge. It was passed by a vote of 92 to 8. ‘‘(ii) a person who, before, on, or after the Every current member of the Senate date of the enactment of the Military Com- I will recall that Judge Mukasey was missions Act of 2006, has been determined to called to the attention of the President Judiciary Committee who was here in be an unlawful enemy combatant by a Com- through Senator SCHUMER who has spo- the Senate in 1994 voted for it. Senator batant Status Review Tribunal or another ken highly of him and who voted for BIDEN, Senator FEINGOLD, Senator competent tribunal established under the au- him in the committee, as did Senator FEINSTEIN, Senator GRASSLEY, Senator thority of the President or the Secretary of FEINSTEIN, two Democratic colleagues. HATCH, Senator KENNEDY, Senator Defense. Senator SCHUMER apparently has KOHL, Senator LEAHY, and Senator ‘‘(B) Co-belligerent.—In this paragraph, the known him and his reputation in New SPECTER all voted for this act. term ‘cobelligerent’, with respect to the I asked Mr. Jack Goldsmith, former United States, means any State or armed York for some time. The President at- tempted to reach out and to pick a head of the Office of Legal Counsel in force joining and directly engaged with the the Department of Justice under Presi- United States in hostilities or directly sup- nominee who appeared to be above pol- porting hostilities against a common enemy. itics, apart from politics, a person who dent Bush who resigned because he was ‘‘(2) Lawful enemy combatant.—The term had a history of competence and integ- not happy with some of the things that ‘lawful enemy combatant’ means a person rity. were being done, about the legal land- who is— Being a Federal judge is about as re- scape regarding torture prior to the ‘‘(A) a member of the regular forces of a moved from the normal give and take Hamdan decision—and he wrote a book State party engaged in hostilities against of politics and compromise and wheel- about it. the United States; I asked Mr. Goldsmith about the ‘‘(B) a member of a militia, volunteer ing and dealing as you can get. And he served in that position for many years landscape prior to Hamdan—which corps, or organized resistance movement be- found that the Common Article III of longing to a State party engaged in such but also had experience as an assistant hostilities, which are under responsible com- U.S. attorney involved in leading a the Geneva Convention applied to mand, wear a fixed distinctive sign recogniz- public corruption section in New York enemy unlawful combatants detained able at a distance, carry their arms openly, which was pretty sizable and important at Guantanamo Bay. But that decision and abide by the law of war; or and dealt with a lot of important cases. did not occur until the summer of 2006, ‘‘(C) a member of a regular armed force He was on the Law Review at Yale so prior to that, pretty clearly, the au- who professes allegiance to a government en- and has all of the kind of academics thority that controlled the U.S. mili- gaged in such hostilities, but not recognized tary in dealing with unlawful combat- by the United States. credentials and practical experience you would look for and is the kind of ants, which we, I think, had every right ‘‘Article V. to conclude were not covered by the No person shall be held to answer for a cap- U.S. Attorney General I, and I think ital, or otherwise infamous crime, unless on people of both parties can feel com- Geneva Conventions, was the torture a presentment or indictment of a Grand fortable with. I really do believe that. statute Congress passed in 1994. That is Jury, except in cases arising in the land or I was hopeful we would see a nominee the statute that our military was com- naval forces, or in the Militia, when in ac- such as Larry Thompson, a longtime pelled to comply with. And so the statute on torture is pret- tual service in time of War or public danger; friend of mine. He served as former nor shall any person be subject for the same ty clear. The people who drafted it Deputy Attorney General of the United offence to be twice put in jeopardy of life or wanted to make sure that whether in States, a former U.S. attorney; Ted limb; nor shall be compelled in any criminal the United States or out of the United Olson, who served as Solicitor General; case to be a witness against himself, nor be States that persons in our custody or former Attorney General Bill Barr. deprived of life, liberty, or property, without ought not to be tortured. due process of law; nor shall private property These are a few individuals who would That certainly is an honorable and be taken for public use, without just com- be considered normal Republican ap- pensation. appropriate goal, and they did that. pointees for this position and whose They passed this statute in which they Article VIII. views are well known to be in accord Excessive bail shall not be required, nor defined torture: excessive fines imposed, nor cruel and un- with those of the President on most As used in this chapter (1) ‘‘torture’’ means usual punishments inflicted. issues. But, instead, the President an act committed by a person acting under Article XlV. reached out and appointed someone the color of law specifically intended to in- Section 1. All persons born or naturalized who appeared to have strong bipartisan flict severe physical or mental pain or suf- in the United States, and subject to the ju- support. fering (other than pain or suffering inci- risdiction thereof; are citizens of the United I am sorry we have had some of these dental to lawful sanctions) upon another per- States and of the State wherein they reside. complaints because I think they dis- son within his custody or physical control; No State shall make or enforce any law the record and what the judge ac- (2) ‘‘severe mental pain or suffering’’ means the prolonged mental harm caused by which shall abridge the privileges or immu- tually said in his testimony and are in- nities of citizens of the United States; nor or resulting from— shall any State deprive any person of life, accurate in a number of different ways. (A) the intentional infliction or threatened liberty, or property, without due process of The issue of torture has been dis- infliction of severe physical pain or suf- law; nor deny to any person within its juris- cussed in great detail. But in many fering. diction the equal protection of the laws. ways it has not been handled with ac- And it goes on. Resolution Adopted by the Council of Rep- curacy, and the issues have not been Playing music or segregating a pris- resentatives of the American Psychological squarely addressed. They have been oner or giving one prisoner less food or Association on August 19, 2007. sort of sloughed over, and he has been less quality food than you give another The ACTING PRESIDENT pro tem- accused of things, and others, including one, placing them in stressful condi- pore. The Senator from Pennsylvania. the President and former Attorney tions clearly does not qualify under Mr. SPECTER. Mr. President, I yield Generals and the military and other this torture statute as inflicting severe 10 minutes to the distinguished Sen- people have been accused of things in physical or mental pain. ator from Alabama, Mr. SESSIONS. an inaccurate fashion. Our military had lawyers. As Mr. Mr. SESSIONS. Mr. President, I be- I think I would like to make a few Goldsmith, who was a critic, really, of lieved we were moving toward a very comments about how I see the legal this administration’s behavior, said in harmonious vote on Judge Mukasey’s situation that we find ourselves in and his testimony and in his book, they confirmation. I have been disappointed how things have developed. Prior to were awash with lawyers. They had that has not occurred. the Supreme Court’s ruling in 2006 in lawyers all over the place. Everything Opponents have latched on to com- Hamdan, a legitimate position, clearly, was read by lawyers. He said the CIA plaints about torture and a specific for the United States was that our per- had 100 lawyers. I don’t know how classified procedure that Judge sonnel, when they were dealing with many in the Department of Defense Mukasey has never seen or studied in unlawful combatants, were bound by and others he made reference to were detail. Since he refused to express a the torture statute, title 18, U.S. Code, there trying to figure out how to con- legal opinion on that one specific tech- Section 2340. That is the controlling duct interrogations at a time when our

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00058 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14163 country had been attacked, 3,000 people ing we can do in this Congress can im- The question was asked. As water- had been killed, and we were trying to pede on the powers vested in the Exec- boarding is generally known, it has figure out if there were other cells in utive by the Constitution. Congress been used for centuries. Judge our country and other groups prepared cannot curtail the constitutional pow- Mukasey would not give us a direct an- to kill more Americans. ers of the Executive by statutory law. swer as to whether waterboarding was I remember when Senator John The ACTING PRESIDENT pro tem- torture and prohibited under U.S. law. Ashcroft was nominated for Attorney pore. The time of the Senator has ex- Then we find out that Judge Mukasey General, and they were jumping on him pired. says: Look, if Congress passes a statute about all of this and what should be Mr. SPECTER. How much more time that specifically outlaws waterboard- done and what they had heard that would the Senator like? ing, I would enforce that statute. That somebody might have done. An exas- Mr. SESSIONS. One additional is not necessary because waterboarding perated then-Senator, Attorney Gen- minute. is already illegal. But that causes me eral nominee Ashcroft responded to one Mr. SPECTER. Granted. some additional problems. question in frustration by saying: Well, Mr. SESSIONS. The purported con- Let me talk a little bit about the the problem I have with you, Senator, versations that Senators indicate they various issues because to me it is more is, it is not my definition of torture have had apparently took place in pri- than just waterboarding. We are talk- that counts, it is the one you enacted vate settings and not in a confirmation ing about torture and the U.S. position into law. hearing held by the Judiciary Com- on torture and the U.S. leadership in So that is what we enacted into law. mittee where these statements could advancing human rights as the leader If people are not happy with it—I think be made a part of the record or cross- of the free world. I believe that reputa- it is a legitimate statute, but if they examined or where the words could be tion has been damaged. are not happy with it, so be it. That is recorded with any accuracy. These The United States historically has the one we passed into law. Our law- types of promises, though touted as provided clarity and leadership on ad- yers were telling our intelligence peo- justification for a vote, perhaps, are vancing human rights issues. There ple and others who were apprehending not legislative history and have not should be no doubt that waterboarding terrorists who were committed to de- been made a part of the record of this is torture and waterboarding is illegal. stroying America that they had to nomination. They cannot be a part of a My colleagues have cited the torture comply with this statute. legislative history of any kind. statutes that have been passed by the The ACTING PRESIDENT pro tem- Furthermore, I would suggest that if Congress that make it clear that this pore. The time of the Senator has ex- Judge Mukasey did, in fact, say that in kind of conduct would fall under the pired. a categorical manner, which I really general definition of torture and is ille- Mr. SESSIONS. I ask unanimous con- doubt, he would be in error. Any Presi- gal in the United States. sent for 1 additional minute. dent has certain constitutional powers It is internationally condemned The ACTING PRESIDENT pro tem- that cannot be taken away by statute. under the Geneva Conventions article pore. Does the Senator from Pennsyl- I yield the floor. 3. Our Constitution prohibits torture, vania yield an additional minute to the Mr. SPECTER. Mr. President, how and waterboarding would fall under Senator from Alabama? much time remains on each side? that. We prosecuted Japanese officials Mr. SPECTER. What is the request The ACTING PRESIDENT pro tem- after World War II as war criminals be- pending? pore. The Senator from Pennsylvania cause they waterboarded American sol- Mr. SESSIONS. One additional has 1 hour 26 minutes; the Senator diers. We recently passed the McCain minute. from Vermont has 1 hour 36 minutes. Mr. SPECTER. Granted. The Senator from Maryland is recog- amendment that said that cruel, inhu- The ACTING PRESIDENT pro tem- nized for 10 minutes. mane, and degrading treatment or pun- pore. Without objection, it is so or- Mr. CARDIN. Mr. President, I have ishment of persons under the deten- dered. the opportunity to serve on the Judici- tion, custody, or control of the United Mr. SESSIONS. There is another ary Committee, so I participated in the States would not be permitted. So matter of some importance. A number there should be no doubt that water- confirmation hearings on Judge of Senators have demanded that Judge boarding is torture and illegal. Mukasey. I had a chance to personally Mukasey make express statements of Admiral Hutson, who testified before meet with him. I had the chance to law regarding the , the committee on a panel of outside propound written questions and re- and they have asked him these ques- witnesses, told us a little bit more ceived written answers from him. tions as a condition of his confirma- about the historical aspects of water- Throughout this process, all of us have tion. Several Senators alluded to pri- boarding. He is a former Judge Advo- been looking for a person to be the vate conversations in which they say cate General, former senior uniformed next Attorney General who would be Judge Mukasey stated that a President legal advisor to the Secretary of the an Attorney General for the American cannot act outside the parameters set Navy and the Chief of Naval Oper- people and not just the President of the by the legislative branch, I guess on ations. He stated that waterboarding United States. most any matter. Particularly, I guess ‘‘is the most iconic example of tor- I cannot accept Judge Mukasey’s an- it dealt with FISA. I believe this con- ture.’’ It was devised during the Span- swer on waterboarding. As my col- tradicts the fundamental separation of ish Inquisition, and its use has been re- leagues have said, waterboarding is an powers set forth in the Constitution by pudiated for centuries. This is not a interrogation technique that simulates our Founding Fathers. The oath the new technique. It is well known. I don’t death by drowning. The original ques- President takes is to faithfully execute believe we need to pass another stat- tion that was asked Judge Mukasey on the Office of the President and to pre- ute. It is clear already. the second day of the confirmation serve, protect, and defend the Constitu- I have heard my colleagues say: All hearings asked specifically about tion of the United States. That is writ- we have to do is pass a statute. Does waterboarding. He didn’t really answer ten in the Constitution. that mean we are going to have to pass While the original FISA statute was the question. I must tell you, I gave a statute that outlaws all types of spe- being debated in 1978, then Carter ad- him the benefit of the doubt on that cific uses of torture such as mock exe- ministration Attorney General Judge question. He indicated that he may not cution or forced nudity or attack dogs Griffin Bell testified: have been familiar with what water- or the use of rack or thumb screws? boarding is. I found that difficult to be- The current bill recognizes no inherent Are we going to have to outlaw those power of the President to conduct electronic lieve, but okay. He would have a specific techniques because it is not surveillance, and I want to interpolate here chance to reflect upon it, be able to clear under our statute of torture that to say that this does not take away the look at the historical information on is illegal today? I hope not. I hope it is power of the President under the Constitu- waterboarding, and we asked him a clear that these techniques are torture, tion. written question followup as to wheth- as is waterboarding, and it is illegal. I associate myself with the remarks er he would comment on the interroga- Admiral Hutson put it best when he of Griffin Bell and recognize that noth- tion technique of waterboarding. said the Attorney General, as our chief

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00059 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14164 CONGRESSIONAL RECORD — SENATE November 8, 2007 law enforcement officer, has to be abso- Mr. President, I rise to express my excuses as to why it was done. None of lutely unequivocal as to what is tor- opposition to the nomination of Judge them were real. ture and what is not. On torture, I Michael Mukasey to be our next Attor- Then, when I wrote to the President, want the President of the United ney General. I thank Chairman LEAHY and I said: Mr. President, we need to States and the Attorney General to be and his committee, including Senator hear what Dr. Gerberding has to say very clear to the international commu- SPECTER and members I see here, Sen- about the impacts of global warming nity that the United States will not ator KENNEDY, for working hard to ex- on the health of our people; Mr. Field- tolerate torture being used by the amine the nominee’s record and, frank- ing, White House Counsel, wrote back: United States, waterboarding being ly, for asking the tough questions, Oh, gee, we are not going to send you used by the United States or used which I think gave us a real look into her original testimony you have asked against any American. We have to be the mind and the heart of this man. for. Oh, no, that would be an abuse of clear about that. I have respect for Judge Mukasey’s . Let me restate I want our Government to use all re- background, his dedication to public that: That would be an abuse of the sources at its disposal if a foreign service, his reputation as a distin- separation of powers. And he asserted agent attempts to torture an Amer- guished jurist, and as a good man. But executive privilege. Imagine asserting ican, including waterboarding of an when evaluating our Nation’s chief law executive privilege for something like American. It has been said, but can you enforcement official, we must weigh the health effects of global warming. It imagine the resolution that would be far more than background and is unbelievable. brought before this body if an Amer- likability. Particularly now—particu- So now we need an Attorney General ican soldier was waterboarded by a for- larly now—when we are following the who is going to be the people’s lawyer, eign enemy, what we would be doing disastrous tenure of Alberto Gonzales, not the President’s lawyer, not the one here, each one of us? particularly now, when we have lost so who is going to tell us: Oh, yeah, we I have my concern because I want our much more leadership in the world be- just cannot do anything about it, Con- country to be clear on this issue. I have cause of what is happening in Iraq, and, gress. the President of the United States, in a unfortunately, what has happened in We need an Attorney General who is signing statement on the McCain Abu Ghraib, we need to look past going to check this unprecedented amendment, saying: Well, maybe tor- likability and qualifications. abuse of power, not rubberstamp it. ture doesn’t apply to me. Now I have We must firmly believe our next At- Unfortunately, because of the deep an Attorney General nominee who tells torney General must always put his and thorough questioning of the Judi- us that he can’t tell us with precision loyalty to the Constitution above his ciary Committee, and my reading of that waterboarding is illegal? loyalty to the President. We have a that, I cannot support Judge Mukasey. We do have international responsibil- President and a Vice President who Judge Mukasey ruled that President ities. We are the leader of the free have dangerously abused their Execu- Bush had the authority to detain world. I am proud to represent this tive power and who have undermined American citizens as enemy combat- body in the Helsinki Commission as the public trust. This is not a partisan ants without criminal charges or ha- the chair, to speak up internationally beas corpus rights; likewise, during his on human rights issues. I find myself opinion. Listen to what , White confirmation hearing, Judge Mukasey defending America. I am having a hard House Counsel to President Richard failed to demonstrate that he would time on this issue as to where we stand independently evaluate this President’s on the issue of torture. Nixon, wrote: broad assertion of executive privilege. Judge Mukasey is not responsible— Not since Nixon left the White House have When asked if he would permit the let me make it clear because some of we had such greed over presidential power, U.S. attorney to execute congressional my colleagues have intimated this—for and never before have we had such political paranoia. . . . History never exactly repeats contempt citations when the White the Bush administration’s policies on itself, but it does some rather good imita- House refuses to provide documents to torture or on techniques to interro- tions. Congress, Judge Mukasey did not say gate. He is not responsible. He had When an administration spies on its nothing to do with it. But I do believe yes. He should have said yes. own citizens without a warrant, strips The statute is clear. The statute is we need to make sure he will stand up habeas corpus rights from those held clear that when Congress issues a con- to the Bush administration to chal- by America, and fires its own U.S. at- tempt citation, the U.S. attorney is re- lenge these tactics if they, in fact, are torneys for political reasons, that is a quired to bring the matter to a grand illegal. Judge Mukasey is a good per- shocking abuse of Executive power. jury. son. He is an honorable man. But on When an administration thinks it What Judge Mukasey said was, he the critical issue of whether he will can just ignore an entire coequal would have to look at it. He would stand up to the President and give branch of Government, even using sign- have to see if it really was reasonable. independent advice as to what is tor- ing statements to reinterpret or dis- The fact is, that is not what the stat- ture and what is not, I have my doubts. regard more than 750 laws that Con- I will be voting against his confirma- ute says. There is no ‘‘reasonable’’ test. gress has passed, that is a shocking tion. When the Congress issues a contempt I yield back the remainder of my abuse of Executive power. citation, the U.S. attorney is required time. When an administration silences its to bring the matter to a grand jury. If The ACTING PRESIDENT pro tem- own officials, rewriting testimony, re- the President says ‘‘executive privi- pore. The Senator from Pennsylvania. dacting testimony, shelving reports, lege,’’ it does not matter. But the judge Mr. SPECTER. Mr. President, we refusing to let experts publicly speak said he would look at it and see if the have about 3 hours remaining of time, the truth, that is a shocking abuse of President was being reasonable. and I note Senators on the floor speak- Executive power. So we have to send a clear and un- ing in opposition to Judge Mukasey. So I have seen this so many times with equivocal message to the Justice De- I would ask my colleagues who want to this administration. The latest time partment staff. We have to send a clear speak in favor to come to the floor so was with global warming experts whose message to the American people and to we can make some evaluation as to truths the White House find ‘‘inconven- the world that the United States hon- how much time we need, and perhaps ient.’’ And what did they do? They re- ors and respects and will never turn some can be yielded back. We are not dacted testimony of the CDC Director, away from our Constitution. required to vote on Friday morning the Center for Disease Control Direc- It is so amazing to me. We have a cri- necessarily. tor, when we asked her to come before sis in Pakistan where a dictator—un- I yield the floor. the Environment Committee of the fortunately, is what I am saying Gen- The ACTING PRESIDENT pro tem- Senate and tell us what would the eral Musharraf is behaving like—has pore. The Senator from California is health effects of unfettered global suspended the Constitution—and every- recognized for 15 minutes. warming be. What would happen? The one here, all of us, feel terrible about Mrs. BOXER. Mr. President, thank White House muzzled her by slashing this, including the President of the you very much. her testimony. They gave all kinds of United States, who, as I understand it,

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00060 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14165 talked to him on the phone and told torture techniques ‘‘would depend on It is very rare that I vote no on these him to restore the Constitution—and circumstances.’’ kinds of nominations. I do it now and here we cannot get papers from this This is not a clear answer. This is not then. But I have to say, regretfully, to- White House. unequivocal. And it is not what we night I have concluded Judge Mukasey I am not comparing that in any way, need in an Attorney General now, in does not meet the critical standard and shape, or form to the kind of suspen- 2007, when the world is turning away at this time I feel very strongly that he sion of the Constitution we see abroad. from America as a moral leader. should not be confirmed. But I am saying in this country—in Teddy Roosevelt did not have to con- I yield the floor. this country—everyone assumes the sider the ‘‘facts and circumstances’’ in The ACTING PRESIDENT pro tem- Constitution will be followed. That is 1902 when he court-martialed and re- pore. The Senator from Massachusetts why we need an Attorney General now, moved an American general in the is recognized for 10 minutes. in 2007, who is going to be so strong on Philippines for allowing his troops to Mr. KENNEDY. Mr. President, the the point. engage in waterboarding. That was Department of Justice is in a state of Yes, he should have said if Congress 1902, the last century, the turn of the crisis. Under Attorney General issues a contempt citation, of course, last century, and we have someone Gonzales, it too often served as a we will do what we have to do under equivocating on this point? President rubberstamp for the White House and the law. So it is not enough to hope the Roosevelt said then nothing can justify as a pawn for political gain, rather nominee will exercise independent the use of torture or inhuman conduct than as the Nation’s guardian of the judgment and stand up to this Presi- by our military. rule of law. It ignored the law and au- dent and Vice President. We must Senators MCCAIN, WARNER, and GRA- thorized torture and warrantless sur- know from the record before us that HAM did not have to consider ‘‘the facts veillance. It let politics drive decisions this nominee will uphold the Constitu- and circumstances’’ when they wrote about who should be prosecuted. It tion and our laws and do it clearly and to Judge Mukasey: fired U.S. attorneys who would not go unequivocally. Waterboarding, under any circumstances, along. It hired and punished career at- Now, that is a high standard. I admit represents a clear violation of U.S. law. torneys on the basis of their personal that. But that is what the people of Waterboarding today is not a hypo- politics, and it abandoned enforcement this great Nation deserve, nothing less. thetical. It is used in Burma against of our civil rights laws. Unfortunately, Judge Mukasey’s re- supporters of democracy. Waterboard- After such an unacceptable period of sponse to questions about torture do ing is an unconstitutional form of cruel tarnished leadership of the Depart- not meet the standard. and inhumane treatment. It is illegal ment, we need a clear, decisive, and During his confirmation hearing, the under U.S. laws—from the Torture Act, straightforward Attorney General who nominee was asked whether water- which prohibits acts ‘‘specifically in- is not afraid to stand up for the Con- boarding is illegal. Now, I know a lot of tended to inflict severe physical or stitution and the rule of law—espe- people have discussed this, and perhaps mental pain or suffering,’’ to the De- cially when that means disagreeing we are all being repetitious. But I tainee Treatment Act, which prohibits with the President of the United think we need to say how we feel. ‘‘cruel, inhuman or degrading treat- States. This is a moment for this Senate. ment.’’ I had hoped Judge Mukasey would be This has been a long day for all of us. It is illegal under international laws, that person. He is, clearly, an able law- such as the Geneva Conventions, which I know for me it has been a big day. I yer, and his commitment to public are not quaint. Those conventions pro- helped to lead, along with Senator service as an assistant U.S. attorney hibit cruel, humiliating, and degrading INHOFE, an override of a very important and Federal judge is admirable. As a treatment. bill. I had a hearing on global warming. Federal judge for almost 19 years, he Following World War II, the United was, by all accounts, fair and conscien- I had a briefing on global warming. I States convicted several Japanese sol- tious in the courtroom. But after lis- have been at it, just as we all have. diers for waterboarding American and But I came out to the floor because I tening to Judge Mukasey’s testimony allied POWs. Let me repeat: Following think this is an important moment and considering his responses to writ- World War II, the United States con- ten questions from the members of the where Members have to be heard. We victed several Japanese soldiers for Judiciary Committee, I have concluded must know from the record before us waterboarding American and allied that the nominee will uphold the Con- POWs. What kind of statement are we he is not the right person to lead the stitution and our laws. And, yes, it is a hearing from Judge Mukasey? Our law Justice Department at this crucial pe- high standard that the people deserve. and our history are crystal clear, so riod of our history. The next Attorney General must re- So when the nominee was asked why can’t Judge Mukasey state in un- store confidence in the rule of law. He whether waterboarding is illegal, he re- equivocal terms that waterboarding is sponded if waterboarding is torture, torture and that is illegal? must show the American people and then, in fact, it is unconstitutional. So Mr. President, I ask unanimous con- the world America has returned to its I have to ask this rhetorical question: sent for 1 additional minute and I will fundamental belief in the rule of law as If waterboarding is torture? If? We are sum up. the bedrock protector of our national talking about a brutal interrogation The ACTING PRESIDENT pro tem- values. Only an Attorney General who technique that simulates drowning. pore. Without objection, it is so or- is not afraid to speak truth to power Not surprisingly, members of the Ju- dered. can be such a leader. Regrettably, Mi- diciary Committee were not satisfied Mrs. BOXER. Mr. President, our chael Mukasey has shown he is not with this answer. And I praise them. country is at a critical point in our his- that leader. They probed, they questioned, they tory. This President and Vice Presi- Similar to many of my colleagues asked again: Is waterboarding illegal? dent have shown reckless disregard for and many American citizens, I am This time, the judge responded with a the rule of law and the institutions deeply troubled by Judge Mukasey’s four-page letter that, once again, failed sworn to uphold it. evasive answers about torture. He has to answer. He called the question ‘‘hy- Now, more than ever before, we need repeatedly refused to acknowledge that pothetical.’’ He said his legal opinion an Attorney General who can exercise waterboarding—the controlled drown- would depend on ‘‘the actual facts and independent judgment and who will ex- ing of a prisoner—is torture. Instead, circumstances.’’ Depend on ‘‘the actual ercise independent judgment. We need he has said only that torture is uncon- facts and circumstances’’ if water- an Attorney General who shows every stitutional without being willing to boarding is torture? Is this the message day, by word and by deed, that the say whether waterboarding is torture. we want to send to the world, that our United States is still the world’s stand- As the record makes clear, courts evaluation of a brutal tactic depends ard bearer for the rule of law. We need and tribunals have consistently found on ‘‘facts and circumstances’’? an Attorney General who will truly waterboarding to be an unacceptable In fact, Judge Mukasey’s answer was turn the page and write a new chapter act of torture. As Malcolm Nance, a a bit too similar to a statement by for the Justice Department and for our former master instructor and chief of Alberto Gonzales that the legality of country. training at the U.S. Navy Survival,

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00061 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14166 CONGRESSIONAL RECORD — SENATE November 8, 2007 Evasion, Resistance and Escape School, illegal under the Detainee Treatment become adrift. The Justice Department said of waterboarding: Act, which prohibits ‘‘cruel, inhumane, has become rudderless. The Justice De- For the uninitiated, it is horrifying to or degrading treatment,’’ and it vio- partment has become politicized. The watch and if it goes wrong, it can lead lates the Constitution. The Nation’s Justice Department has become an straight to terminal hypoxia. When done top military lawyers and legal experts agency where morale is as low as it has right it is controlled death. across the political spectrum have con- ever been. So we desperately need a During the questions for Judge demned waterboarding as illegal. After strong and independent leader at its Mukasey in the Judiciary Committee, World War II, the United States pros- helm to set it back on course, and that he was asked these questions: ecuted Japanese officers for using is not a trivial statement or a state- Is the use of a wet towel and dripping waterboarding. What more does this ment to be forgotten or passed over. I water to induce the misperception of drown- nominee need to enforce existing laws? believe Judge Mukasey is that person. ing (i.e, waterboarding) legal? The Attorney General must have the As almost everyone in America Listen to what the Judge Advocates legal and moral judgment to know knows, the Justice Department has said: when an activity rises to the level of a been run into the ground by the Bush ‘‘No,’’ said RADM Bruce McDonald, violation of our Constitution, treaties administration, especially under U.S. Navy Judge Advocate General. or statutes. But this nominee wants to Alberto Gonzales. As I said when I in- ‘‘No,’’ said BG Kevin Sandkuhler, pass the buck to Congress. He has troduced Judge Mukasey, he will be in- U.S. Marines, Judge Advocate General. failed to demonstrate that he will be heriting an agency experiencing its ‘‘No. An interrogation technique that the clear, decisive, and straightforward greatest crisis since Watergate and, if is specifically intended to cause severe leader the Department of Justice so confirmed, his tasks will be no less mo- mental suffering involving a threat of desperately needs. mentous and no less difficult than that imminent death by asphyxiation is tor- This administration has recklessly facing Edward Levi when he took the ture,’’ said MG Jack Rives, U.S. Air brushed aside the rule of law for 7 reins of John Mitchell’s Justice De- Force Judge Advocate General. years. We need an Attorney General partment after Watergate. A depart- ‘‘Inducing the misperception of who will stand up to this destructive ment in such crisis should not be left drowning as an interrogation technique conduct and say: No more. We cannot to an unconfirmed and unaccountable is not legal,’’ said MG Scott Black, afford to take our chances on the judg- caretaker. U.S. Army Judge Advocate General. ment of an Attorney General who ei- We need to look no further than our Waterboarding is an ancient and bar- ther does not know torture when he own investigation in the Senate Judici- baric technique. In the fifteenth and sees it or is willing to look the other ary Committee to see that we need a sixteenth centuries, interrogators of way to suit the President. real leader at the top of the Justice De- the Spanish inquisition used it. It was I urge the Senate to vote no on this partment. What we learned in that in- used against slaves in this country. In nomination. vestigation over the last 9 months World War II, it was used against our Mr. SPECTER. Mr. President, before leads inexorably to the conclusion we soldiers by Japan. In the 1970s, it was yielding 15 minutes to the Senator cannot afford a caretaker Attorney used against political opponents of the from New York, I would like to note to General for the next 14 months. Let me review—because they seem Khmer Rouge and the military dicta- my colleagues we have Senator GRA- almost forgotten in this Chamber to- torships of Chile and Argentina. As I HAM listed with a request for a short night—some of the most disturbing speak, it is being used against pro- period of time, and the only request revelations. We learned that out- democracy activists by the military pending for those in support of Judge standing U.S. attorneys were dismissed dictators of Burma. This is the com- Mukasey, so unless other Senators without cause or, worse, because they pany the Bush administration em- come to the floor, at least on our side, may have been too tough on Repub- braces when it refuses to renounce we may be nearing the end of debate. I licans or too soft on Democrats. We waterboarding. think it is appropriate to put all Sen- learned that career Civil Rights Divi- But Judge Mukasey is unwilling to ators on notice that we could be voting sion lawyers have been driven out in say waterboarding violates the law. He perhaps shortly after 10 or the 10:30 calls it repugnant, and it obviously is. droves; that when these lawyers said range. that civil rights were being violated or But he refuses to condemn it as unlaw- I yield 15 minutes, as I said, to Sen- the Voting Rights Act was being vio- ful. Why? The answer seems painfully ator SCHUMER. lated, they were overruled by political obvious. Former intelligence officers The ACTING PRESIDENT pro tem- decisions made from the top. and supervisors have admitted—and pore. The Senator from New York is In my judgment, there was no way the Vice President has confirmed—that recognized for 15 minutes. that any fair Justice Department the CIA has waterboarded detainees. Mr. SCHUMER. Thank you very would have allowed the voter ID proc- Had Judge Mukasey renounced water- much, Mr. President. I wish to thank ess that is now in place in Georgia and boarding as unlawful, he would have Senator SPECTER for yielding time and take back the ability to vote that was had to assert his independence and I wish to thank all my colleagues for fought for so long and hard. speak the truth about this administra- this debate. We learned that individuals appear to tion’s lawlessness. He was unwilling to I intend to vote to confirm Michael have been prosecuted for political rea- do so. B. Mukasey to be the 81st Attorney sons. In the other House, the Judiciary We were told Judge Mukasey had General of the United States. I do so Committee did an extensive investiga- agreed to enforce a new law prohibiting for one overarching reason: the Depart- tion, and in the process of doing one, it waterboarding if Congress passed it. ment of Justice, one of the crown jew- appears more and more likely that a There are two problems with this els among our Government institu- Democratic Governor in Alabama is statement. First, enforcing laws passed tions—once the crown jewel—is now sitting in jail because of a political by Congress that are constitutional is adrift and rudderless. It desperately prosecution. How can we have that in the job of the Attorney General. It is a needs a strong and independent leader America? How can we allow that? How prerequisite to occupying the office, at the helm to set it back on course. A can we countenance it? not a concession to be offered to win number of people’s lives who are af- We learned that White House liaison confirmation. fected day to day in quiet but material Monica Goodling unlawfully rejected But, second, waterboarding is already ways by what this Justice Department young lawyers for career jobs because illegal. It is illegal under the Geneva does are at risk. We don’t hear from they were not conservative ideologues. Conventions, which prohibit ‘‘outrages them. Their issues, whether it is the We learned that there were improper upon personal dignity,’’ including ability to vote or the right to be safe or political litmus tests in hiring deci- cruel, humiliating, and degrading the ability to be protected from eco- sions in the Civil Rights Division, in treatment. It is illegal under the Tor- nomic crime, we don’t hear about that. the prestigious Honors Program, and ture Act, which prohibits acts ‘‘specifi- But it matters. even in the Summer Law Intern Pro- cally intended to inflict severe phys- Under previous leadership—or lack gram. So politics permeated the Jus- ical or mental pain or suffering.’’ It is thereof—the Justice Department has tice Department—the Department,

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00062 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14167 above all, that should be immune from would be the Cheney-Addington wing Constitution. That is a very important politics and had been until this admin- running the Justice Department on the point. istration. issues of security. Judge Mukasey is My colleagues say we will never pass We learned that Bradley Schlozman, hardly perfect. He would not be the an amendment on torture and in violation of the Department’s own person I would have nominated, but he waterboarding. That may be; it may policy, brought indictments on the eve is clearly head and shoulders better not. But the fact that Judge Mukasey of an election in Missouri, seemingly to than what we would get. That is not has rejected the overreaching theory of influence the result. We learned that something to be dismissed. That is not the unitary executive certainly in this politics seems to have trumped profes- something to be forgotten. It is hardly area, and in others, says something sionalism in decisionmaking about vot- mentioned on this floor. about what kind of Attorney General ing rights cases, tobacco litigation, and The main function of the Justice De- he will be on torture, on wiretapping, other matters. The list goes on and on. partment would be taken back and and on all of the other issues where ba- Justice is sacred in this country. It is railroaded far from where it should be, sically this Department and this ad- the Justice Department that must and it would be gone for another long ministration thought Congress should produce justice. 14 months. It would mean accepting have no say at all. In sum, we learned that politics has and exacerbating the declining morale Furthermore, maybe it will be the been allowed to infect all manner of de- at the highest levels of the Depart- courts that will rule torture is illegal. cisionmaking at the Department of ment. It would mean delaying vital re- Judge Mukasey will abide by those Justice. forms relating to depoliticizing pros- court decisions that make Now we are on the brink of a rever- ecutions. It would mean tolerating con- waterboarding illegal. Judge Mukasey sal. There is virtually universal agree- tinued vacancies in many of the top po- will allow those court decisions to ment, even from those who oppose sitions at the Justice Department. Per- stand. I don’t think we doubt that. The expansive article II argument, of Judge Mukasey, that he would do a haps most important, it would mean course, is one that this administra- good job in turning the Department surrendering the Department to the ex- tion—in the form of President Cheney around in these areas. treme ideology of Vice President CHE- and David Addington—has explicitly One of my colleagues who is voting NEY and his Chief of Staff, David endorsed. In an infamous torture against the nominee nonetheless Addington. All the work we have memo, the following passage was re- lauded Judge Mukasey as ‘‘a brilliant done—the hearings, the letters, the re- portedly insisted upon by David lawyer, a distinguished jurist and, by quests to get the Attorney General to Addington: all accounts, a good man.’’ resign—would be undone in a quick mo- Prohibitions on torture must be construed Another colleague on the Judiciary ment. That is serious, colleagues. as inapplicable to interrogations undertaken Committee, who is also voting nay, had I have complete respect for people pursuant to his commander-in-chief author- this to say: who disagree. It is a values choice. But ity. . . . Congress may no more regulate the Over the remaining 15 months of the Bush let’s not forget that a caretaker Attor- President’s ability to detain and interrogate Presidency, the Department must recover its ney General will not be close to Judge enemy combatants than it may regulate his credibility and its reputation. . . . Judge Mukasey on the issues that brought ability to direct troop movements on the Mukasey appears to have the intelligence, the downfall of Attorney General battlefield. the experience, and the stature to undertake Gonzales. Let us also not forget that That is a horrible statement. Unlike this very important task. Judge Mukasey has had a long and dis- either of his predecessors, Judge Such comments of confidence echo tinguished career. Because his views on Mukasey specifically rejects this view. the comments of those who have ap- torture are different from so many of I asked him: peared before the judge in court. As a ours, including my own, does not evap- If Congress were to legislate against cer- jurist, Judge Mukasey has a well-de- orate all of these other important con- tain forms of coercive interrogation, such as waterboarding, in all circumstances, not just served reputation for efficiency, fair- siderations. ness, and integrity. Indeed, even those relating to those in the Department of De- Let me be clear on the torture ques- fense custody, would it be acting within its who didn’t always receive the benefit tion, which understandably motivates constitutional authority? of a favorable ruling from the judge so many of my colleagues. I deeply op- He answered ‘‘yes.’’ No qualifier. And have been quick to describe the judge’s pose this administration’s opaque, contrary to the views of the Vice Presi- basic fairness and decency. mysterious, and inexplicable policy on dent and his Chief of Staff, he specifi- Upon his retirement from the bench, the use of torture. This is not a policy cally stated that the President would one of Jose Padilla’s lawyers said, ‘‘I that was constructed by Judge not have legal authority to ignore it, admire him greatly’’ and described her- Mukasey. even under his inherent authority self as ‘‘another weeping fan.’’ That is In particular, I believe that the cruel under article II. For a Bush nominee, a lawyer for Mr. Padilla. and inhumane technique of this is no small commitment. It is a Another Padilla lawyer has said, ‘‘I waterboarding is not only repugnant dramatic difference from both Attor- don’t always agree with where he but also illegal under current laws and ney General Ashcroft and Attorney comes out, but I am happy, always conventions, period. I also support General Gonzales. It is a quantum leap happy to draw him as a judge. You are Congress’s efforts to pass additional over the views of Alberto Gonzales and going to get your day in court.’’ He measures that would explicitly ban signals that we may yet get an inde- went on to say that ‘‘his sense of fair- this and other forms of torture. I voted pendent review—and perhaps reversal— ness and due process—it’s more than for Senator KENNEDY’s antitorture of some of the worst of the administra- intellectual. It’s really down to the ge- amendment in 2006, and I am a cospon- tion’s legal policies. netic level. It’s in his DNA.’’ sor of a similar bill in this Congress. If I also believe this because I asked There are many such testimonials for it was important to do it in 2006, it is him what he thought of a book written Judge Mukasey. Because he is so dead also important to do it in 2007. by Jack Goldsmith called ‘‘The Terror wrong on torture, which I think he is, When Judge Mukasey came before Presidency.’’ Mr. Goldsmith, as many does not take away all of these other the Senate Judiciary Committee last will recall, was the former head of the things. And if we are to reject him, month, he refused to state that Office of Legal Policy, the principal make no mistake about it, we will not waterboarding was illegal. That was person who sounded the alarm over have somebody in his place who can unsatisfactory, that was wrong, and badly reasoned and overreaching legal live up to that standard. Should we re- that will be a blemish on his distin- opinions within the Government. He ject Judge Mukasey, President Bush guished career for as long as he lives. was the courageous official who started has already said he would install an But he has personally made it clear the process that led to the infamous acting caretaker Attorney General who that if Congress passed further legisla- showdown in the hospital room of John could serve for the rest of his term tion in this area, the President would Ashcroft over the President’s without the advice and consent of the have no legal authority to ignore it— warrantless wiretapping program. Senate. It would be another Alberto not even under some theory of inherent In his book, Mr. Goldsmith is a re- Gonzales or maybe even worse. It authority granted by article II of the lentless critic of the unilateral my-

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00063 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14168 CONGRESSIONAL RECORD — SENATE November 8, 2007 way-or-the-highway approach of Vice Mukasey will clearly be much better desperate, deplorable state in which President CHENEY and David than others. they are now is wrong. Addington. When I asked Judge I wish to say this to my colleagues, a No one questions that Judge Mukasey what he thought of the book, vast majority of my colleagues who op- Mukasey would do much to turn he said he thought it was superb, and pose this nomination: I respect their around the Justice Department and he endorsed many of its arguments. He views. I understand the anger and the move to remove the stench of politics also told me privately that the admin- anguish about what this administra- from this vital institution. I believe we istration’s unilateral approach to legal tion has done to that beautiful lady should give him that chance. There is policy was likely responsible for its low who stands in the harbor of the city in too much at stake not to. approval ratings in the polls. So we which I live. I share that anguish. I Mr. BINGAMAN. Mr. President, I rise have a nominee who is head and shoul- share it. Unfortunately, we are in a today to speak about the nomination ders above his predecessors in a num- world where this administration will of Michael Mukasey to be the next ber of ways, including in his commit- continue for another 14 months. United States Attorney General. ment to work with Congress. Let me ask my colleagues to think First, let me say that by all accounts One more thing on the issue of tor- about this: Let’s say we reject Judge Judge Mukasey is a good man with a ture, my colleagues. Let’s assume Con- Mukasey tonight and the caretaker is long distinguished record. In his testi- gress cannot pass a law, and let’s as- installed, and 6 months from now the mony before the Senate Judiciary sume even that the courts do not rule exact same policies we abhor continue. Committee, he made clear that he un- the way we think they should. Still, Will this have been a great victory? derstands the need to restore the Judge Mukasey will be head and shoul- I understand the importance of public’s trust and confidence in the De- ders different, very possibly, than a standing up to the President. Few partment of Justice. I also believe he caretaker. Mukasey would be more would accuse me of not doing that. And demonstrated a willingness to take the likely than a caretaker to find on his I understand the importance of sym- necessary steps to de-politicize the De- own that waterboarding and other co- bolic victory. But this is a tough partment, and to provide the leader- ercive techniques are illegal. He didn’t choice because there is a lot at stake ship required to repair its credibility. say they are illegal. A caretaker would. on the other side. There is at stake the However, I am also deeply troubled He said he would have to study them. integrity of a department which is in by the positions Judge Mukasey has He should not have to. There is still a shambles, which is politicized, and taken regarding several important chance that somebody regarded as which has routinely rejected the rule of issues. Much has been said about Judge thoughtful and independent, and a law- law which is the fundamental Mukasey’s unwillingness to clearly yer above all, may—and I cannot say wellspring of this Nation and this de- state that certain interrogation tech- he will, and I wish I could—find on his mocracy. And we have a chance, at niques, such as waterboarding, are un- own that waterboarding and other co- least a good part of the way, to restore lawful and amount to torture. I share ercive techniques are illegal. Certainly, it. The Department of Justice is the this concern, but I would also like to there is more of a chance with Judge front-line agency safeguarding our highlight another area that I find par- Mukasey than with a caretaker. So civil rights, fighting public corruption, ticularly disturbing; that is the idea even if you are voting on the issue of curbing violent crime, enforcing envi- that the President doesn’t have to torture alone—which I am not—to vote ronmental laws, and much more. comply with a down Judge Mukasey and install an I deplore the administration’s opaque passed by Congress. independent caretaker will not solve policy on torture, as I mentioned be- Over the last 6 years, the Bush ad- the problem of torture and, in all like- fore, but I also care about attempts to ministration has put forth a view of lihood, will leave us worse off, not bet- affect elections through suspiciously Executive power that is incredibly ex- ter. timed criminal prosecutions. I care pansive, and in my opinion, an unjusti- Judge Mukasey’s answers to our about criminal cases brought for polit- fied and dangerous threat to our funda- questions demonstrated more openness ical reasons. I care about allegations mental rights and our commitment to to ending the practices we abhor than that our leading law enforcement agen- the rule of law. either of those who were the previous cy is stocked with inexperienced cro- The President has asserted the right Attorney General nominees. nies rather than experienced profes- to unilaterally imprison whomever he In many respects, Judge Mukasey re- sionals. I care about a downward spiral wants without judicial review, whether minds me of Jim Comey, a former Dep- in civil rights cases brought in recent or not they are a United States citizen, uty Attorney General in the Bush ad- years. I care about a loss of morale if he determines that they are a so- ministration who has been widely among a 100,000-person strong institu- called ‘‘enemy combatant.’’ The ad- praised for his independence. Would we tion and every week, at one airport or ministration has taken the position turn down Jim Comey knowing his another in this country, how insistent that the President can authorize the courage? No. Today, would we turn U.S. attorneys came to me and said: Do use of techniques that amount to tor- down Goldsmith? No. Both of them something. Judge Mukasey, in all like- ture, and then immunize any person have very conservative views. lihood, will do something. A caretaker acting pursuant to his orders from Might I have an additional 5 minutes will not. I don’t want to turn those criminal liability. The President also to finish my remarks, I ask my col- pleas aside, even though I have strong authorized warrantless surveillance in league from Pennsylvania. disagreement with Mr. Mukasey on direct contravention to the Foreign In- Mr. SPECTER. The Senator may. many substantive issues, torture telligence Surveillance Act. The PRESIDING OFFICER (Mr. among them. I care about a continuing In all of these instances, the Presi- MENENDEZ). The Senator is recognized. uptick in violent crime due to a depart- dent justified his actions on the basis Mr. SCHUMER. Mr. President, again, ment’s failure to keep its eye on the that he was acting within his authority if the issue is torture alone, we clearly ball and not have the most qualified as commander-in-chief to defend the will be as bad off as we are today with people in important positions. I care country, and that neither Congress nor a caretaker. We may—not will, maybe about the Department, and I care the courts can infringe on this power. not even likely—have a chance, a de- about justice. And it is not a small While many of these assertions have cent chance of being better with matter to take someone who is measur- ultimately been rejected by Federal Mukasey than with the alternative. ably better than what his replacement courts, Congress, or overturned inter- And as with Comey and Goldsmith, no, would be and reject it. nally when they became public, the Mukasey will not have our views par- Again, this is value choice. There are President continues to assert that ticularly on issues of security. No one good arguments on each side. People’s there are few restraints on his power this President nominates will. That is values will have them come down on when it comes to national security why we are working so hard to get a different sides. But anyone who thinks matters. new President with different views. But this is an easy choice, anyone who During his confirmation hearing, on issues of the rule of law and inde- thinks that should Judge Mukasey be Judge Mukasey stated that he would pendence and integrity, Judge rejected things will improve from the step down if he determined that the

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00064 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14169 President’s actions were unlawful and ship void at the Justice Department ists. Military might alone will not be the President refused to heed his ad- and assured me that he is prepared to enough for us to win these fights. vice to change course. Although this address the challenges we face as a na- Strengthening America’s security re- does signal a welcomed degree of inde- tion. I greatly appreciate his attention quires us to harness the power of our pendence, I remain concerned about to the important issues pertaining to ideals and values and lead a global ef- what Judge Mukasey will find to be Colorado and his strong commitment fort to confront these threats. When we ‘‘lawful.’’ to the rule of law. project moral hypocrisy or suggest Let me read an exchange that took Judge Mukasey demonstrated a fine that our commitment to our funda- place during a hearing in the Senate record of management as the presiding mental values depends on the cir- Judiciary Committee which illustrates judge over one of the busiest judicial cumstances, we lose the support of the this point. districts in the Nation and I am con- world in our common efforts against Senator Leahy: . . . where Congress has fident that he is qualified to be our common enemies, thereby compro- clearly legislated in an area, as we’ve done in next Attorney General and aware of mising our own security. the area of surveillance with the FISA law, the challenges we face at the Justice The pictures of American soldiers something we’ve amended repeatedly at the Department. mistreating prisoners at Abu Ghraib request of various administrations . . . if it’s I am truly impressed with this Nomi- and the stories of detainee abuse at been legislated and stated very clearly what nee’s background. I would point out Guantanamo Bay compromised our must be done, if you operate outside of that, that Judge Mukasey is not a Wash- moral authority and our ability to lead whether it’s with a presidential authoriza- the global struggle against al-Qaida. tion or anything else, wouldn’t that be ille- ington insider. Judge Mukasey re- gal? cently worked as a partner at the New America must demonstrate an unam- Judge Mukasey: That would have to de- York law firm of Patterson, Belknap, biguous commitment to basic human pend on whether what goes outside the stat- Webb and Taylor. Judge Mukasey has rights. And this is not some intellec- ute nonetheless lies within the authority of spent his career in New York since tual musing. It is hard headed prag- the president to defend the country. President Ronald Reagan nominated matism. Senator Leahy: Can the President put Mukasey to serve on the U.S. District Earlier this year, I visited some of someone above the law by authorizing illegal Court for the Southern District of New our veterans at a Michigan VA hos- conduct? pital. I asked one Korean war veteran Judge Mukasey: If by illegal you mean York in 1987. He spent almost 19 years contrary to a statute but within the author- as a Federal judge, including serving as who was lying in his bed: What can we ity of the President to defend the country, chief judge until his retirement from do to help you? And do you know what the President is not putting somebody above the bench in 2006. he said? ‘‘Win back the respect of peo- the law, the President is putting somebody Judge Mukasey has shown a strong ple around the world for America.’’ within the law. commitment to the rule of law and has That veteran understands that the ero- While this view may be consistent a demonstrated record of managing one sion of support for America makes us with the current administration’s posi- of the busiest judicial districts in the less secure and weakens us in a way tion regarding Executive authority, Nation. Both attributes qualify him to that military force cannot remedy. I have devoted significant time look- this stance is not consistent with how lead the Department of Justice in ful- ing into the issue of detainee abuse and the powers of the president have tradi- filling its mission of enforcing all of considering what is appropriate when tionally been interpreted. The notion the Nation’s laws fairly and vigorously. that the President may disregard a Judge Mukasey’s record as a Federal it comes to the treatment of detainees in U.S. custody. Building back the re- valid law by citing his inherent power district judge shows a strong and inde- spect for America that the Michigan to defend the country is disconcerting. pendent commitment to the rule of veteran and all of us seek requires a de- And frankly, it is all too reminiscent law. As chief judge of the Southern finitive commitment to treating all of President Nixon’s assertion that ac- District of New York, he managed one people—even our enemies—in a manner tions taken in the name of national se- of the busiest dockets in the Nation. consistent with both our laws and basic curity, whether or not they are in ac- His work following the attacks of Sep- cordance with relevant statues, are by human rights. tember 11 ensured that individuals Last month I asked Judge Michael definition legal if they are carried out could access the courthouse even in the Mukasey, President’s Bush’s nominee on behalf of the President. This asser- immediate aftermath of a national to be Attorney General of the United tion was widely rejected, as it should emergency. States, what I thought was a straight- have been. Attorney General Mukasey would not forward question for the record: As our Nation’s highest law enforce- hesitate to say no to anyone, including ment officer, it is essential that the Would you consider it inhumane to secure the President. No man is above the a detainee onto a flat surface and slowly Attorney General faithfully execute law, and Judge Mukasey has stated pour water directly onto the detainee’s face laws passed by Congress. It is one thing that he would resign rather than par- or onto a towel covering the detainee’s face for the Attorney General to state that ticipate in a violation of the law. in a manner that induced a perception by the he or she will not enforce a certain I would also point out that Judge Mi- detainee that he was drowning? measure because it is unconstitutional; chael Mukasey has a very strong back- That question to Judge Mukasey however, it is a very different matter if ground on national security issues, should have prompted a simple answer the Executive Branch asserts that it is most notably as a federal district court of ‘‘yes.’’ But the Judge said that, not bound by a law that is clearly con- judge. He has ruled in national security while the tactic is ‘‘repugnant’’ to him, stitutional. cases involving at least 15 different de- he could not say it was inhumane with- It is for this reason that I cannot fendants. Moreover, he has issued at out evaluating the ‘‘facts and cir- support the nomination of Judge least two dozen national security re- cumstances.’’ Judge Mukasey’s ambig- Mukasey to be the next Attorney Gen- lated opinions. uous response is more than deeply eral. I strongly urge my colleagues to cast troubling, it sends a message—from the Mr. ALLARD. Mr. President, I rise a vote in favor of Judge Michael B. man nominated to head the Depart- today in support of President Bush’s Mukasey’s confirmation as the 81st At- ment of Justice—that abuses of detain- nomination of Judge Michael B. torney General of the United States. ees in U.S. custody may not have been Mukasey to serve as Attorney General Mr. LEVIN. Mr. President, tonight categorically wrong, but that such acts of the United States. I am pleased that the Senate will vote on the nomination might have been justified by the cir- leadership is bringing Judge Mukasey’s of Judge Michael Mukasey to be Attor- cumstances. nomination to the Senate floor. It has ney General. His nomination comes at In 2002, the Department of Defense been more than 45 days since his nomi- a critical time. At this moment in his- requested authority to use a number of nation, making him the longest pend- tory, America is faced with serious aggressive interrogation techniques— ing nominee for Attorney General in challenges both at home and abroad. including mock drowning—on detain- more than 20 years. We are at war in Iraq and Afghanistan ees held at Guantanamo Bay. FBI Judge Mukasey expressed to me ear- and are engaged in a long-term strug- agents vigorously objected to the ag- lier today his desire to fill the leader- gle against al-Qaida and other extrem- gressive techniques. One stated in a

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00065 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14170 CONGRESSIONAL RECORD — SENATE November 8, 2007 legal analysis that aggressive tech- to cause ‘‘severe physical or mental those responsible for this and other il- niques, including mock drowning, were pain or suffering.’’ The statute defines legal acts. ‘‘not permitted by the U.S. Constitu- ‘‘severe mental pain and suffering’’ as By contrast, Judge Mukasey not only tion.’’ mental harm caused by, among other refuses to state that waterboarding is Another FBI agent also expressed things, ‘‘threat of imminent death.’’ torture, he also refuses to say whether alarm to his Justice Department col- Pouring water over a detainee’s face to it constitutes ‘‘cruel or inhuman treat- leagues over a DOD interrogation plan create the sensation of drowning is in- ment,’’ which is illegal under the Mili- for a detainee held at Guantanamo tended to threaten imminent death. tary Commissions Act of 2006. Bay, saying ‘‘You won’t believe it!’’ An In questions for the record of an Au- Congress enacted the Military Com- e-mail described abuses that a FBI gust 2006 Senate Judiciary Committee missions Act in the wake of Abu agent had witnessed, including detain- hearing, Senator DURBIN asked each of Ghraib scandal. The statute bans inter- ees being chained in fetal positions on the Judge Advocates General, JAGs, of rogations tactics that constitute the floor for 18 to 24 hours at a time, the Marine Corps, Air Force, Army, ‘‘cruel or inhuman treatment,’’ which having urinated and defecated on and Navy whether, in their personal it defines as any act generally intended themselves and being subjected to ex- view: ‘‘the use of a wet towel and drip- to cause ‘‘serious mental or physical treme cold. ping water to induce the misperception pain and suffering.’’ If Judge Mukasey were to be con- of a drowning (i.e., waterboarding) Medical experts who have treated and firmed to lead the Department of Jus- (was) legal?’’ The answer from each of observed the survivors of water torture tice, he would take charge of the FBI. the JAGs was an unequivocal ‘‘No.’’ have described the physical and psy- How would Judge Mukasey respond to The Marine Corps JAG responded to chological severity of the practice and those FBI agents? Would he have said Senator DURBIN ‘‘Threatening a de- its long-term effect. Dr. Allan Keller, that the validity of those objections tainee with imminent death, to include associate professor of medicine at New depended on the ‘‘circumstances’’? drowning, is torture under 18 U.S.C. § York University, NYU, School of Medi- Over the past 5 years, the Depart- 2340’’—the anti-torture statute. Simi- cine and director of the Bellevue/NYU ment of Justice has repeatedly issued larly, the Air Force JAG stated: ‘‘An Program for Survivors of Torture, re- aggressive legal opinions that seek to interrogation technique that is specifi- cently testified before the Senate In- exploit any possible legal ambiguity to cally intended to cause severe mental telligence Committee that a person justify the administration’s policies. In suffering involving a threat of immi- subjected to the waterboard, ‘‘gags and 2002, for example, the Department of nent death by asphyxiation is torture chokes, [and] the terror of imminent Justice issued a now disavowed memo under 18 U.S.C § 2340.’’ And the Army death is pervasive, with all of the phys- finding that physical pain had to be JAG responded: ‘‘inducing the iologic and psychological responses ex- ‘‘equivalent in intensity to the pain ac- misperception of drowning as an inter- pected, including an intense stress re- companying serious physical injury, rogation technique is not legal.’’ sponse, manifested by tachycardia, such as organ failure, impairment of Whether the practice of mock drown- rapid heart beat and gasping for bodily function, or even death’’ to con- ing is legal is a question that our Na- breath. There is a real risk of death stitute torture. The Executive order tion’s top military lawyers had no from actually drowning or suffering a that the President issued in July of problem answering. But the nominee heart attack or damage to the lungs this year interprets Common Article 3 for Attorney General says that it de- from inhalation of water.’’ Dr. Keller of the Geneva Conventions to bar only pends on ‘‘circumstances,’’ it could be put it plainly, the ‘‘clinical experience those outrageous acts that are done ‘‘yes,’’ it could be ‘‘no.’’ and data from the medical literature ‘‘for the purpose of humiliating or de- The U.S. Navy’s Survival, Evasion, are clear and unequivocal. These tech- grading the individual.’’ The Geneva Resistance, and Escape—SERE—School niques can cause significant and long Conventions make no such distinction. trains our troops, whose dangerous as- lasting psychological and often phys- These results-driven interpretations of signments leave them susceptible to ical pain and harm.’’ law have contributed to the negative being captured, to resist and survive It is clear that waterboarding in- image of the United States in the abusive tactics that might be used by volves ‘‘serious’’ physical or mental world, leaving many to question why the enemy. Waterboarding is one of the pain or suffering and therefore con- we attempt to impose standards on tactics that troops are exposed to at stitutes illegal ‘‘cruel or inhuman other countries that we do not require Navy SERE school. Listen to how a treatment’’ under the Military Com- of ourselves. These interpretations en- former master instructor and chief of missions Act. Yet in response to ques- danger our troops when captured be- training at the Navy’s SERE school de- tions from Senator KENNEDY and Sen- cause their captors will cite these in- scribed waterboarding in an October 31, ator BIDEN, Judge Mukasey would not terpretations to justify abuses of our 2007, article in the New York Daily say whether waterboarding is ‘‘cruel or troops. News: inhuman’’ under this legal standard. It does a disservice to our Nation for When asked whether the practice of Waterboarding is slow-motion suffocation a person who has been nominated to with enough time to contemplate the inevi- mock drowning on detainees was lead the Department of Justice to hide tability of blackout and expiration. Usually ‘‘cruel, inhuman, or degrading,’’ which behind purposeful ambiguities, particu- the person goes into hysterics on the board. is a violation Detainee Treatment Act, larly at a time when our Nation’s pres- For the uninitiated, it is horrifying to Judge Mukasey would not respond to tige has been so tarnished by abuses watch. If it goes wrong, it can lead straight the question, simply giving his stock against detainees in our custody. The to terminal hypoxia—meaning, the loss of all answer that his analysis depends on legality of mock drowning— oxygen to the cells.’’ the ‘‘circumstances.’’ waterboarding—does not depend on the As he put it, ‘‘waterboarding is a tor- Congress passed the Detainee Treat- circumstances. It is illegal. ture technique—without a doubt. There ment Act in 2005 to make clear that in- Waterboarding clearly runs afoul of is no way to sugarcoat it.’’ humane treatment is illegal. The De- three Federal statutes—the 1994 A U.S. Federal court has concluded tainee Treatment Act prohibits sub- antitorture statute, the Military Com- that mock drowning constitutes tor- jecting any detainee in U.S. Govern- missions Act, and the Detainee Treat- ture. The Ninth Circuit Court of Ap- ment custody or control, wherever ment Act—and it is inconsistent with peals examined an interrogation tech- held, to ‘‘cruel, inhuman, or degrading our obligations under Common Article nique used by the Philippine military treatment or punishment.’’ Those 3 of the Geneva Conventions. under Ferdinand Marcos whereby ‘‘all terms were defined to restrict any con- In his answers to questions from the of [the victim’s] limbs were shackled to duct that would constitute cruel, un- Judiciary Committee, Judge Mukasey a cot and a towel was placed over his usual, and inhumane treatment or pun- refused to state whether waterboarding nose and mouth; his interrogators then ishment prohibited by the U.S. Con- constitutes torture under U.S. law. poured water down his nostrils so that stitution, which includes conduct that Under the Federal antitorture statute he felt as though he was drowning.’’ ‘‘shocks the conscience.’’ adopted in 1994, 18 U.S.C. § 2340, an act The court referred to this practice as There can be no question that mock is torture if it is specifically intended ‘‘water torture’’ and found against drowning ‘‘shocks the conscience’’ and

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00066 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14171 rises to the level of ‘‘cruel, inhuman, or During the American intervention in Judge Mukasey appears to have the in- degrading treatment or punishment’’ the Philippines, in 1902, a military telligence, the experience, and the under the Detainee Treatment Act. court rejected MAJ Edwin Glenn’s de- stature to undertake this very impor- I asked Judge Mukasey whether the fense of ‘‘military necessity’’ and con- tant task. practice of mock drowning on detain- victed him for using water torture on a There are other areas where I was fa- ees was ‘‘inhumane,’’ which would be a captured insurgent. During the Viet- vorably impressed by Judge Mukasey. violation of Common Article 3 of the nam war, a soldier participated in His straightforward promise to stop Geneva Conventions. Judge Mukasey water torture which was captured in the disparate treatment of gay employ- would not respond to that question, photos and published in the Wash- ees at the Department of Justice was again giving his stock answer that his ington Post on January 21, 1968. Ac- welcome and refreshing. He indicated analysis depends on the ‘‘cir- cording to , the his intention to be a much more hands- cumstances.’’ Regardless of what the soldier was court martialed for his in- on manager of the process for seeking President’s recent Executive order volvement in the practice. the federal death penalty, and when I would suggest, the humane standard of U.S. veterans who served as interro- asked him in writing if a request by a Common Article 3 has never varied de- gators in the Second World War re- U.S. attorney to discuss a death pen- pending on the type of information in cently discussed how proud they were alty decision with Attorney General someone’s possession or the purpose be- that they were able to obtain vital in- personally was a valid reason to fire hind the acts. formation by using skill, not torture, that U.S. attorney, he answered sim- The Army Field Manual on Intel- and by treating a dangerous enemy ply, ‘‘No.’’ If Judge Mukasey is con- ligence, which sets standards for mili- with ‘‘respect and justice.’’ In an arti- firmed, I look forward to working with tary interrogations consistent with the cle in the Washington Post last month, him to try to ensure that Federal Geneva Conventions and with U.S. law one veteran proudly exclaimed: death penalty is fairly administered. that prohibits ‘‘torture or cruel, inhu- I was also impressed that on several During the many interrogations, I never occasions Judge Mukasey was willing man, or degrading treatment or pun- laid hands on anyone. We extracted informa- ishment’’ explicitly bans certain coer- tion in a battle of the wits. I’m proud to say to admit in his written answers that cive techniques including I never compromised my humanity. some thing he had said or written in ‘‘waterboarding.’’ I had hoped Judge Mukasey would the past were incorrect. This adminis- Throughout history America has con- stand with that veteran and stand up tration needs more people who will demned waterboarding by seeking pros- for American values. But despite the admit they were wrong when that is ecution of enemies who have used the clear law and history, Judge Mukasey the case. That kind of humility and honesty is often the first step toward technique on American engaged in legalisms and obfuscation, correcting mistakes and reaching con- servicemembers. Following the Second playing into the negative image that World War, U.S. military commissions sensus. others project about the U.S.—that we In many respects then, Judge and international tribunals prosecuted apply double standards. Mukasey is a big improvement on the individuals who had used This kind of obfuscation tarnishes previous Attorney General. At this waterboarding, or similar forms of America’s image, which has a negative point in our history, however, the water torture on civilians and Allied impact on our ability to organize and country needs more. Simply put, after forces. The U.S. military commissions maintain alliances to achieve national all that has taken place over the last in the Pacific theater explicitly held goals. As Steven Kull, the director of seven years, we need an Attorney Gen- that the ‘‘water cure’’ was torture in the Program on International Policy eral who will tell the President that he prosecuting cases related to the mis- Attitudes, stated: cannot ignore the laws passed by Con- treatment of captured U.S. bomber The thing that comes up repeatedly is not gress. And on that fundamental quali- crews. The U.S. Military Commission just anger about Iraq. The common theme is fication for this office, Judge Mukasey hypocrisy. The reaction tends to be—You at Yokohama, Japan also tried four falls short. Japanese defendants for torture, in- were a champion of a certain set of rules. Now you are breaking your own rules. The President’s warrantless wire- cluding water torture, of American and tapping program, instituted after 9/11 Purposeful ambiguity about the le- Allied forces. Each of the defendants and carried out in secret until it was was convicted and sentenced to 20 gality of waterboarding and the other revealed in a New York Times article years hard labor. coercive interrogation techniques he in December 2005, presented the De- Would Judge Mukasey find it accept- was asked about is at the center of partment of Justice with a historic able if U.S. soldiers were subjected to Judge Mukasey’s confirmation, just as test of its integrity and its commit- mock drowning by our enemies? Would it is at the center of how we are viewed ment to the rule of law. Under the pre- he say that its acceptability depends in the world. That ambiguity is unten- vious leadership, the Department failed on the ‘‘circumstances’’? Would Judge able and unacceptable in the person that test. We need an Attorney General Mukasey say that he needed to know who, if confirmed, will symbolize who, when faced with a similar crisis, the motives of our enemies before say- America’s concept of justice before the will look the President in the eye and ing that our soldiers who endured world. For these reasons, I oppose tell him ‘‘No.’’ waterboarding had been tortured or Judge Mukasey’s nomination to be At- When I first met with Judge subject to inhumane treatment? Would torney General. Mukasey, I questioned him about the he distinguish between someone who Mr. FEINGOLD. Mr. President, I will two justifications for authorizing waterboarded our troops to elicit infor- vote against the nomination of Judge warrantless wiretaps that the Depart- mation as contrasted to someone who Mukasey to be the next Attorney Gen- ment has put forward publicly. With used the technique on our troops for eral. This was a difficult decision, as respect to the argument that the au- sadistic purposes? Judge Mukasey has many fine quali- thorization for use of military force, or Judge Mukasey needs to be clear that ties. I was particularly impressed by AUMF, somehow authorized warrant- waterboarding is illegal for the sake of his determination to depoliticize the less wiretaps, he said, ‘‘I don’t see that protecting our men and women in uni- Department of Justice. After the deba- argument.’’ With respect to the argu- form from abuse should they ever be cle of the last Attorney General, this is ment that the program was legal under captured. Judge Mukasey has not been obviously a very high priority. If noth- the President’s article II powers, he clear and if he is confirmed to head our ing else, over the remaining 15 months said he was ‘‘agnostic.’’ Justice Department, it will be America of the Bush Presidency, the Depart- I and a number of my colleagues on signaling moral ambiguity about what ment must recover its credibility and the Judiciary Committee returned to is unambiguously torture and inhu- its reputation. Never again should it be this question in the hearings and in mane. led by someone who is willing to wield written questions for the record. Unfor- In fact, the United States has pros- its awesome power for political pur- tunately, this time the results were ecuted its own servicemembers who poses or fill its most important posi- not reassuring. He responded to my have used waterboarding and similar tions with individuals chosen for their question for the record about the large- water during interrogations. politics rather than their legal skills. ly discredited AUMF justification by

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00067 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14172 CONGRESSIONAL RECORD — SENATE November 8, 2007 saying that ‘‘I still have not come to a where Congress cannot legislate. It is future to compromise on that bedrock conclusion. . . . I believe there are clear that wiretapping is not within principle. good arguments on both sides of that the exclusive domain of the President, Mr. COBURN. Mr. President, I rise issue.’’ That is a statement that ought as Judge Mukasey admits that FISA is today to support the nomination of to give pause to anyone in this body. a constitutional law. Moreover, the ex- Judge Michael Mukasey to be Attorney His answers to questions concerning ecutive authority that Judge Mukasey General of the United States. Judge the article II justification indicate invoked most often—the authority to Mukasey is eminently qualified for this that he is no longer agnostic on that protect and defend the country—is not position. For almost 20 years he served question, but instead he has become a exclusive to the President. It is an au- as U.S. District Judge for the Southern believer that executive power trumps thority that Congress shares, which District of New York, presiding over the laws written by Congress. Judge Mukasey admitted in answers to prominent terror trials and gaining fa- Both at the hearing and in writing, written questions. miliarity with complex national secu- Judge Mukasey stated several times I have discussed this issue in some rity issues that continue to challenge that the President must obey all valid detail because extreme theories of ex- our Nation. and constitutional statutes, even if he ecutive power have become one of the Specifically, Judge Mukasey presided is acting to defend or protect the coun- primary, and most unfortunate, leg- over the trial of the ‘‘Blind Sheik,’’ try. He also said that ‘‘FISA is a con- acies of the Bush administration. Con- who was involved in planning the 1993 stitutional law’’ and that ‘‘[a]s a gen- gress needs to be very clear in rejecting World Trade Center bombing. Upon conviction, Judge Mukasey sentenced eral matter, therefore, the President is them, and in making respect for the the terrorist to life in prison. The Sec- not free to disregard or violate FISA.’’ rule of law a nonnegotiable qualifica- ond Circuit Court of Appeals, in affirm- But he also stated that ‘‘difficult sep- tion for the office of Attorney General ing the verdict, praised Mukasey by aration of powers questions’’ would of the United States. arise, and would have to be resolved Let me say a word about the issue of saying: ‘‘The trial judge, the Honorable through the three-part test articulated torture, which has dominated the de- Michael B. Mukasey, presided with ex- traordinary skill and patience, assur- in the Supreme Court Youngstown bate on the nomination of Judge ing fairness to the prosecution and to case, if a statute—and FISA in par- Mukasey in the past week. Last week, each defendant and helpfulness to the ticular—were to constrain the Presi- the White House press secretary again jury. His was an outstanding achieve- dent’s constitutional authority. If implied that Members of Congress who ment in the face of challenges far be- FISA is constitutional—and Judge have been briefed on the CIA’s interro- yond those normally endured by a trial Mukasey says it is—then why are these gation program have approved it or judge.’’ Indeed, Judge Mukasey’s ruling separation of powers questions so ‘‘dif- consented to it. That is not the case. I in the Blind Sheik case presented ex- ficult’’? Clearly, Judge Mukasey be- have vigorously opposed the program, lieves that a law can be constitutional traordinary challenges—his ruling and continue to do so. The program is drew death threats that required him on its face, but can become unconstitu- of highly questionable legality, it is in- to receive years of 24-hour armed pro- tional if its application constrains the consistent with our values as a nation, tection. constitutional authority of the Presi- and it does not make our Nation any Yet Judge Mukasey maintained his dent. There is no difference between safer. In fact, I believe that it may objectivity as a judge, ruling years this view of executive power and the have the effect of exposing Ameri- later that while Jose Padilla—a U.S. theory that executive power trumps cans—including military and other citizen later convicted of Federal ter- congressional power. There is no other U.S. personnel—to greater risk. rorism support charges—could be held way to interpret Judge Mukasey’s I have detailed the reasons for my by the government as an enemy com- statement to Senator LEAHY: ‘‘If by il- strong objections to the CIA’s program batant, he was also entitled to legal legal you mean contrary to a statute, in classified correspondence, sent counsel. One of Padilla’s defense law- but within the authority of the presi- shortly after I was first briefed on it. yers who said he had ‘‘more cases be- dent to defend the country, the presi- More recently, I have stated my oppo- fore Mukasey than I can count,’’ dent is not putting somebody above the sition publicly, although I am prohib- praised the judge saying, ‘‘I don’t al- law; the president is putting somebody ited by classification rules from pro- ways agree with where he comes out within the law.’’ viding further details about my con- . . . [but] I am always happy to draw This view is simply contrary to Jus- cerns in a public setting. him as a judge. You are going to get tice Jackson’s three-part test in In any event, neither detailed legal your day in court.’’ Another of Youngstown. Youngstown makes clear and factual analysis, nor knowledge of Padilla’s lawyers said about Judge that where the President’s constitu- the operational details of the CIA’s Mukasey, ‘‘I admire him greatly,’’ de- tional authority and a statute passed program, is necessary to reach a judg- scribing herself as ‘‘another weeping by Congress come into conflict, the ment on whether waterboarding is tor- fan.’’ President’s powers are reduced by ture. Waterboarding has been used by Since his nomination, many of Mi- whatever powers Congress holds over some of the most evil regimes in his- chael Mukasey’s colleagues and law- the subject—not vice versa. Jackson tory. It has been considered torture in yers who appeared before him have of- states that when the President acts this country for over a century. If fered statements of praise and support. against the will of Congress, ‘‘he can Judge Mukasey won’t say the simple While it would be impossible to reit- rely only upon his own constitutional truth—that this barbaric practice is erate them all, perhaps former U.S. At- powers minus any constitutional pow- torture—how can we count on him to torney Mary Jo White’s statement best ers of Congress over the matter. Courts stand up to the White House on other encapsulates the general sentiment. can sustain exclusive presidential con- issues? She said that Judge Mukasey ‘‘is a trol in such a case only by disabling America needs an Attorney General man of great intellect and integrity Congress from acting upon the sub- who stands squarely on the side of the with an unswerving commitment to ject.’’ Congress is thus free to con- rule of law. This is not an arid, theo- the rule of law. He is independent, fair- strain the President’s constitutional retical debate. The rule of law is the minded and has a wealth of relevant powers to any degree it likes, as long very foundation of freedom and a cru- experience from his years of service on as Congress is acting within its own cial bulwark against tyranny. Congress the bench, in the private sector and as powers in doing so; likewise, the Presi- cannot stand silent in the face of this an assistant United States attorney in dent’s actions may be upheld only if challenge by the executive to the cru- the Southern District of New York.’’ I they are ‘‘within his domain and be- cial underpinnings of our system of agree that Judge Mukasey’s intellect, yond control of Congress.’’ government. integrity, and experience make him The argument that constitutional The Nation’s top law enforcement of- uniquely qualified to serve as Attorney statutes can become unconstitutional ficer must be able to stand up to a General. ignores this second part of the in- chief executive who thinks he is above It is, however, imperative that our quiry—whether the limitation on the the law. The rule of law is too impor- Attorney General put his oath to pro- President’s authority is in an area tant to our country’s history and to its tect and uphold the Constitution before

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00068 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14173 all other loyalties. As such, I looked to waterboarding, on behalf of any U.S. let us in so doing never forget that we Judge Mukasey for assurances that he Government agency, puts himself at are, first and foremost, Americans. would put the Constitution first. Judge risk of civil liability and criminal pros- Make no mistake—we will prevail—but Mukasey gave the first of such assur- ecution. we must wage this war with fidelity to ances on October 5, 2007, the day that Judge Mukasey also, in a separate our laws and deepest values. These he was nominated, when he said, ‘‘The letter, acknowledged that the interro- laws and values are the source of department faces challenges vastly dif- gation technique known as strength, not weakness, for though we ferent from those it faced when I was waterboarding is ‘‘over the line’’ and are stronger than our enemies in men an assistant U.S. attorney 35 years ago. ‘‘repugnant.’’ These are important and arms, we are stronger still in But the principles that guide the de- statements, and I expect that they will ideals. We will win the war on terror partment remain the same—to pursue inform his views as Attorney General. I not in spite of devotion to our cher- justice by enforcing the law with un- strongly urge that, in that role, Judge ished values, but because we have held swerving fidelity to the Constitution.’’ Mukasey will publicly make clear that fast to them. After studying his record and partici- waterboarding is illegal and can never Based on the statements and re- pating in the confirmation process, I be employed. sponses that this nominee has provided am confident that Judge Mukasey’s Waterboarding, under any cir- over the past week, I believe that great respect for the Constitution and cumstances, represents a clear viola- Judge Mukasey shares this view. He is the rule of law is sincere. tion of U.S. law. In 2005, the President a consensus nominee, one with a rep- The Justice Department has under- signed into law a prohibition on cruel, utation as a rigorous, independent, and gone difficult times of late, but I know inhuman, and degrading treatment as honest thinker. I am pleased to offer Judge Mukasey has the integrity and those terms are understood under the him our support and I hope that my intellect to carry out the necessary standards of the U.S. Constitution. colleagues will join us in voting for work to restore the American public’s There was at that time a debate over confirmation.∑ trust in the department. America has the way in which the administration I yield the floor. been well-served by Judge Mukasey’s was likely to interpret these prohibi- The PRESIDING OFFICER. The Sen- past public service and is fortunate tions. Along with Senators WARNER ator from Vermont. that such an accomplished individual— and GRAHAM, I stated then my strong Mr. LEAHY. Mr. President, without who entered retirement just one year belief that a fair reading of the losing my right to the floor, I yield to ago—is willing to answer the call to ‘‘McCain amendment’’ outlaws the distinguished Senator from Penn- public service once again. I thank waterboarding and other extreme tech- sylvania on his time to ask a question Judge Mukasey for his continued sac- niques. It is, or should be, beyond dis- of the Chair. rifice. pute that waterboarding ‘‘shocks the Mr. SPECTER. Mr. President, how I am pleased to vote in favor of Judge conscience.’’ much time is left on each side? Michael Mukasey’s nomination to be It is also incontestable that The PRESIDING OFFICER. The Sen- Attorney General of the United States waterboarding is outlawed by the 2006 ator from Pennsylvania has 1 hour. The and look forward to working with him Military Commissions Act, MCA, and it majority has a total time of 1 hour 5 in the future. was the clear intent of Congress to pro- minutes. ∑ Mr. MCCAIN. Mr. President, I am hibit the practice. As one of the au- Mr. SPECTER. Mr. President, I know pleased the full Senate today is consid- thors of that statute, I would note that of only one additional Senator who ering the nomination of Judge Michael the MCA specifically prohibits acts wishes to speak in favor of Judge Mukasey as Attorney General of the that inflict ‘‘serious and nontransitory Mukasey, and that request has been United States. I strongly support his mental harm’’ that ‘‘need not be pro- limited to 5 minutes. So I ask him to confirmation. longed.’’ Staging a mock execution by come to the floor or anyone else who As many of you know, the President inducing the misperception of drown- wishes to speak on behalf of Judge nominated Judge Mukasey on Sep- ing is a clear violation of this standard. Mukasey to come to the floor. tember 17; however, the Senate Judici- For this reason, during the negotia- If I may consult with my colleague, ary Committee did not vote on his tions that led to the MCA, my col- the distinguished chairman, perhaps we nomination until Tuesday. This ranks leagues and I were personally assured can take an inventory now as to how as one of the longest spans between a by administration officials that this much time the other speakers will nomination and a confirmation vote language, which applies to all agencies want so we can give our colleagues an for an Attorney General nominee. This of the U.S. Government, prohibits idea as to when we will be voting. is particularly unfair to the American waterboarding. Many of us share Judge Mr. LEAHY. Mr. President, Senators people who deserve to have in place a Mukasey’s revulsion at the use of are waiting to be recognized. I ask chief enforcer of our Nation’s laws. waterboarding, and I welcome his com- unanimous consent—the time allotted I believe Judge Mukasey is the right mitment to further review its legality to me is 20-some-odd minutes—that nominee to enforce our laws, particu- once confirmed. I expect that he will when he is recognized, the Senator larly during this time of war. As a Fed- reach the same conclusion. from Vermont, Mr. SANDERS, be recog- eral judge, he presided over one of the I sincerely hope that the recent pub- nized for 12 of my 24 minutes. Perhaps country’s busiest trial courts and one lic debate over the use and legality of while the next Senator is speaking, I that has overseen several terrorism-re- waterboarding is America’s last. In dis- will make an attempt to find out how lated cases. These included the trial of cussing this practice, we are speaking much more time we have so I can re- the terrorist known as ‘‘the Blind of an interrogation technique that port to the Senator from Pennsylvania. Sheikh,’’ a man who was convicted of dates from the Spanish Inquisition, one I ask unanimous consent that when he conspiracy to destroy the World Trade that has been a prosecutable offense for is recognized, the Senator from Center. over a century, one that was employed Vermont, Mr. SANDERS, be recognized In comprehensive responses to ques- by the Khmer Rouge in Cambodia and for 12 minutes of my time. tions posed by members of the Senate which is reportedly being used by the The PRESIDING OFFICER. Without Judiciary Committee, Judge Mukasey thugs in Burma today against the inno- objection, it is so ordered. exhibited mainstream legal views on cent monks protesting their repression. Mr. LEAHY. Mr. President, I reserve constitutional checks and balances. He Waterboarding simply has no place in the remainder of my time. I yield the stated that the President cannot waive the America I know. Let us take it off floor. congressionally mandated restrictions the table, once and for all, and move The PRESIDING OFFICER. The Sen- on interrogation techniques, including beyond this debate. ator from Colorado. those included in the ‘‘McCain amend- There is evil in the world today, and Mr. SALAZAR. Mr. President, I rise ment’’ and the Military Commissions it takes form in those who commit today to speak about the nomination Act. This is a particularly important themselves to the destruction of Amer- of Judge Michael Mukasey to be the conclusion given that, under these ica and the ideals we hold dear. Let us next U.S. Attorney General. I come to laws, anyone who engages in fight them, let us defend America, but the floor tonight with a heavy heart

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00069 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14174 CONGRESSIONAL RECORD — SENATE November 8, 2007 because I had hoped I would have been firing of nine U.S. attorneys and other colleagues on the Republican side of able to come to the floor and make a reports of politicization within the De- the aisle, for whom I have tremendous statement in support of Judge partment of Justice, which should respect. Mukasey. never be politicized because it enforces Through our history, we have pros- I reviewed the answers he gave to the our laws. Therefore, the next U.S. At- ecuted those who have used the tech- Judiciary Committee and the written torney General must restore the con- nique against our own people as crimi- responses he gave to important ques- fidence of the American people that nals of war. When Japanese soldiers tions, including the question of tor- the Justice Department will enforce waterboarded American prisoners of ture. After reviewing that information, the law regardless of the Attorney Gen- war in World War II, we convicted I also met with Judge Mukasey in my eral’s personal beliefs or who happens them for their crimes. We convicted office in the Senate office buildings. He to sit in the Oval Office as President of them for their crimes. When our own was very generous with his time, and I these United States. soldiers, over 100 years ago, used very much appreciate the time he gave I am troubled that Judge Mukasey is waterboarding in the 1898 Spanish- me to review some of the fundamental unwilling to clearly and unambig- American War in the interrogation of questions. uously state that he will uphold U.S. Filipino insurgents, they were court- There is no doubt that Judge law barring the use of waterboarding. I martialed. In Vietnam, U.S. generals Mukasey is a brilliant man, a talented explicitly asked Judge Mukasey in my declared waterboarding to be illegal and successful judge who has given a office what he would do as Attorney and strictly enforced the ban on its great deal to this country. So it is with General if he were asked whether an use. a heavy heart that I have reached the agent of the United States could use Mr. President, I very much recognize conclusion that I cannot and will not waterboarding in interrogation set- the importance of the advice and con- support his nomination. I will not sup- tings. Judge Mukasey’s response to me sent clause of our Constitution, in our port his nomination because there is no was disappointing. He said he did not working with the President in the con- room for equivocation on the American know because it depended on whether sent function that we play with respect position on the fundamental issue of there was intent to cause pain. That to his Cabinet appointments. I have torture. There is no room for equivo- answer, in my view, is simply unac- worked very hard for 3 years on many cation on that issue. ceptable given the legal history of this of those confirmations in an effort to Before coming to the Senate, I had issue in this country. develop the kind of cooperation and the great privilege of serving as the at- Under Common Article 3 of the 1949 collaboration that is required. How- torney general of the State of Colo- Geneva Conventions, the following acts ever, Mr. President, there are some rado. For me, it was an enormous re- are prohibited at any time and at any fundamental core principles for which sponsibility and one which carried place: First, ‘‘violence to life and per- we must stand. These principles are many duties. There were duties of son, in particular . . . cruel treatment tested, no doubt, in the face of violence making sure that over 10,000 people and torture, and, two, outrages upon and war, but it is in these moments were put into prison, some of them personal dignity, in particular, when these principles are all the more serving a lifetime in prison. It was an humiliating and degrading treatment.’’ important. The fact that we do not tor- enormous duty in terms of rendering The War Crimes Act, as amended by ture, the fact that we in this Nation do tens of thousands of legal opinions to a the Military Commissions Act in 2006 not torture is fundamental to who we vast State agency, and I understood by this Congress, prohibits breaches of are as a people, whether it is in con- the responsibilities of being an attor- Common Article 3 of the Geneva Con- flict, such as the conflict we are in ney general. Those responsibilities, ventions which is defined in that legis- today, or conflicts that have happened first and foremost, were to make sure I lation to include ‘‘torture and cruel in the past in this Nation. For me, Mr. President, this is not a was upholding the oath of office I had and inhumane treatment.’’ Torture is taken to the Constitution of the State complex issue. further defined as: Mr. President, I ask unanimous con- of Colorado, to uphold the constitu- The act of a person who commits, or con- tional laws in my State, and to enforce sent for 1 more minute. spires or attempts to commit an act specifi- The PRESIDING OFFICER. Without those laws and to make sure no one cally intended to inflict severe physical or objection, it is so ordered. was above the law. mental pain or suffering upon another per- Mr. SALAZAR. For me, Mr. Presi- I also served as legal counsel to the son. dent, this is not at all a complex issue. Governor and to the head of State On October 5, 2005, we in this Cham- It is not open to interpretation or to agencies, where I provided them legal ber passed, by a vote of 90 to 9—only equivocation. I will say it again: In my counsel that a lawyer would provide to nine Senators in this Chamber voting view, waterboarding is torture, it is il- their client. As attorney general, it against the legislation—the Detainee legal, and it is inhumane. And Judge was not often that my oath to enforce Treatment Act, otherwise known by Mukasey has refused to acknowledge Colorado’s constitutional laws came many of us as the McCain amendment. that fact. Mr. President, I cannot, in into conflict with my responsibilities The amendment states: good conscience, overlook Judge to advise and to serve the Governor. No individual in the custody or under the Mukasey’s equivocation on torture. But when it did, it was my duty—it was physical control of the United States Gov- Our laws are clear. We need an Attor- my solemn duty—to defend the rule of ernment, regardless of nationality or phys- ney General who will enforce those ical location, shall be subject to cruel, inhu- law, not the Governor or the executive laws, including the laws against tor- agency or the agency heads. On some mane, or degrading treatment or punish- ment. ture, no matter what. Mr. President, I occasions, driven by that solemn duty will be voting against Judge Mukasey, By our most basic human sensibili- to enforce that law, I had to take my and I would urge my colleagues to do ties, waterboarding, whereby water is own clients to court to enforce the rule the same. of law, and I did that. forced into the nose, mouth, or lungs of Mr. President, I yield the floor. The Attorney General of the United a person to create the sensation that The PRESIDING OFFICER. Who States must likewise enforce our laws they are drowning and dying, is tor- yields time? because very simply we are a nation of ture, and it is illegal. The feeling— Mr. GRAHAM. Mr. President, I would laws, and that is what makes us a spe- from those who have spoken about this ask for 5 minutes. cial place on this globe. at length—is one that causes struggle, The PRESIDING OFFICER. The Sen- This role today is more important panic, ingestion of water, vomiting, ator from South Carolina. than at any other time in the history and psychological trauma. Mr. GRAHAM. And I thank the Sen- of the Justice Department. Trust in This truth, Mr. President, that this is ator from Vermont. I appreciate that. the Department is at an alltime low torture, has been affirmed by the top Mr. President, I will be voting for given the high-profile memos that now lawyers in the Army, the Navy, the Air Judge Mukasey because I think he is have become public which enabled tor- Force, and Marines, both current and the solution, not the problem. My good ture to occur by the agents of the retired. It has been affirmed by my col- friend from Colorado made a very elo- United States, which allowed for the leagues, by some of my most respected quent statement, and I respect him

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00070 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14175 greatly. This has been a good debate, see, we are threatened by someone out For the last 6 years, it is clear that and it has been long overdue. there who has no boundaries, a group we have had a President who does not Where do we go, and how do we get that has no boundaries. So do we re- understand what the Constitution of there? What do we want to do to fight serve to ourselves the ability to treat the United States is about. What this this war? What is in bounds, what is them any way we want to because the President believes, essentially, is that out of bounds? It is very tough, Amer- means justifies the end? he can do anything he wants, at any ica. We are fighting a vicious enemy, Well, let me tell you what will hap- time, against anybody in the name of one not in uniform, and one that will pen if we go down that road, and where fighting terrorism. And he happens to do anything to wreak havoc on this we will wind up. What will we say to believe the war on terrorism is world; an enemy that would kill a child the Chinese Communist dictator who unending. It is going to go on indefi- in a heartbeat and not think about it, waterboards the Christians because nitely. I think it is very important in the name of God. So we have a real they are threatened by the Bible? What that we have an Attorney General who task ahead of ourselves, very difficult, do we say to people in China who will can explain the Constitution to a and we have a great military. torture the Buddhist monk because President who clearly does not under- My question for my colleagues is, the they are threatened by a humble, de- stand it. Unfortunately, Mr. Mukasey fact that our military would do the cent religion? What do we say in Ven- is not that person. things that Senator SALAZAR said, con- ezuela? What do we say anywhere in In the last 6 years under President sciously take waterboarding off the the world when people who feel threat- Bush, we have seen the National Secu- table, does that make us weaker? I ened use horrible tactics simply be- rity Agency start a program which al- don’t think so. I go to bed at night feel- cause they are threatened? lows wiretapping without first obtain- This is a good man of the law, Judge ing pretty good about America when ing a court order, to my mind, in viola- Mukasey. Over time, Senators SCHU- our military lawyers come before the tion of the Constitution. We have seen MER and FEINSTEIN will be shown to Congress and say: We don’t do that. We personal records that have been exten- have done the country some good—a don’t do that. sively mined for data. How many mil- lot of good. And to those who cannot Now, what does our enemy do when lions? Who knows? Nobody in the Sen- vote for Judge Mukasey because he they capture one of our soldiers? We all ate really knows. We don’t have access know. They are brutal. They are hor- didn’t answer this question as directly as you would like, I understand. But we to that information. It is massive rible. The fact we don’t cut their heads amounts of data mining, in clear viola- off, is that a sign of weakness? The fact are about to fix a problem in the Jus- tice Department that needs to be fixed, tion of the privacy rights and the laws that we will give them a lawyer when of America under this President. they won’t give us one; that we will and we are going to have an honest, good debate about how to win this war. We have seen the phenomenon of ex- base our judgments on evidence, not re- traordinary rendition, which has shift- venge and hatred, does that make us I can tell you right now, the only way we will win this war is not just by ed detainees to prisons in countries weaker? No. abroad which allow torture. We have The ticking time bomb is not the sce- killing because this is not about how many of them we can kill. That is an seen the firing and the politicization of nario of a terrorist who may possess the Office of the U.S. Attorney. We some special knowledge. The ticking endless number. This is not about a capital to conquer, an air force to have seen detainees of the United time bomb is a world that is losing its States being denied the oldest right in way. There is no shortage of people shoot down, or a navy to sink. This is about ideas. Our way of living is better the Western legal system—the right to who will cut your head off in this than theirs, only if we will have the habeas corpus. We are running a prison world. There is a shortage of people courage and the common sense to em- camp in Guantanamo where prisoners who will stand up for a better way. We brace it and not be afraid to be good in have minimal legal rights, which is an know what bad people will do to good a time where there is evil. international embarrassment for us as people. The question is, what do good God bless you. we struggle against international ter- people do to bad people? The PRESIDING OFFICER. The Sen- rorism. And we have seen many other We are good people, and we are strug- ator from Vermont is recognized for 12 assaults by this President on our con- gling. And I think Judge Mukasey is minutes. stitutional rights and on the laws of part of the solution. He has lived a Mr. SANDERS. Let me thank my col- this country. good life in the law, and he has been league from Vermont, Senator LEAHY, We have a President who clearly does asked a question about solving a prob- for yielding, and applaud him for the lem not of his making. not understand the separation of pow- role he is playing on the Judiciary ers; that the Congress of the United If I thought, I say to Senator SALA- Committee. States is an equal branch of our Gov- ZAR, he really believed that Mr. President, several weeks ago, I waterboarding, at the end of the day, ernment; that the Judiciary is an equal informed the citizens of Vermont that branch of our Government; that the ex- was the legal way to do business, I I would be voting against the confirma- ecutive branch does not have all of the wouldn’t vote for him. He is in a bind. tion of Judge Mukasey to be Attorney power. He can’t answer that question. But he General, and tonight I am going to, in will one day because I have asked him. fact, be casting a ‘‘no’’ vote. A little while ago I was on a state- And he doesn’t have this theory of the Mr. President, there are several rea- wide TV program in Vermont. Some- law that there is only one branch of sons I will vote no on Judge Mukasey. body called in and they said: When is Government in a time of war that has First, like many of my colleagues, I Congress going to begin to stand up to been pushed by this administration to was deeply disturbed by his response to this President? the point of being absurd. the question of waterboarding. He ap- That is a good question, and I didn’t He is a mainstream legal thinker. He parently does not know whether have a good answer. But what I can tell answered my question that there is no waterboarding is torture. Well, mil- you, the time is long overdue for us to power given to the President, inherent lions of Americans know begin to stand up to this President, or otherwise, to avoid the Geneva Con- waterboarding is torture. People all who thinks he can veto virtually every ventions obligations of this country or over the world know waterboarding is piece of legislation we send him, who to set aside the McCain amendment. torture. The Geneva Conventions are ignores the Constitution of this coun- That was music to my ears. He is quite clear about waterboarding being try—I think it is time we begin to bound. torture. And, frankly, I don’t think it stand up. The question for us, as we have been is too much to ask for us to have an I have heard some of my colleagues a part of the conventions for a long Attorney General who knows say, if we reject Mr. Mukasey, the time, and we have led the world for a waterboarding is torture. That is one President is not going to send us an- long time by being different from our reason I am voting against Judge other nominee. That is the right of the enemy, do we reserve to our Executive Mukasey, but there is a second reason, President of the United States. But we in those special circumstances the and perhaps maybe an even more im- have our rights as well. We have the right to set the conventions aside? You portant reason. right to demand an Attorney General

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00071 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14176 CONGRESSIONAL RECORD — SENATE November 8, 2007 who supports, strongly, the Constitu- statutes or treaties enacted or ratified under the law. If an Attorney General, whose mis- tion and is prepared to tell the Presi- presidents ranging from Ronald Reagan to sion is to enforce the law, believes the Presi- dent when he is acting against our Con- George W. Bush. dent has the power to disregard the law, our However, Mukasey refuses to answer the constitutional balance of powers is in peril. stitution. That is our right. It is about straightforward question of whether A forthright answer to a question about time we began to defend our right. waterboarding is torture, and thereby ille- torture is so fundamental to restoring the I can’t blame the President for tak- gal. In a four-page response to ten members rule of law that the Judiciary Committee ing over the rights of Congress, if Con- of the Committee, Mukasey describes how he should not move Mukasey’s nomination out gress is not prepared to stand up and would decide the question of whether of committee unless he states that fight back. I think that time is long waterboarding is torture, but he states the waterboarding and other extreme interroga- overdue. question is ‘‘hypothetical’’ and that ‘‘the ac- tion tactics are torture. American values tual facts and circumstances are critical.’’ and American security both depend on his Mr. President, if you do not want to The actual facts and circumstances of answer. send us another nominee, that is your waterboarding are brutal, but fairly simple. Thank you for your attention to this mat- right. We have our rights as well. I will Several senators described to Mukasey all of ter, and please do not hesitate to call us if be voting against Mr. Mukasey. I hope the elements of waterboarding, as practiced you have any questions regarding this issue. my colleagues do as well. over the centuries by dictatorships, rogue Very truly yours, In conclusion, I ask unanimous con- nations, and war criminals—and as pros- CAROLINE FREDRICKSON, sent that letters of opposition and con- ecuted by the United States against war Director. criminals. Mukasey has the law, including CHRISTOPHER E. ANDER, cern from the American Civil Liberties the Anti-Torture Act and the War Crimes Legislative Counsel. Union, the Leadership Conference on Act, and all of the facts before him. After Civil Rights, and Common Cause be decades as a Federal prosecutor and Federal WASHINGTON, DC, printed in the RECORD. judge, Mukasey certainly has the capacity to November 5, 2007. There being no objection, the mate- answer the question of whether Hon. PATRICK J. LEAHY, rial was ordered to be printed in the waterboarding is torture. Chairman, Committee on the Judiciary, U.S. In addition to undermining American val- RECORD, as follows: Senate, Washington, DC. ues, Mukasey’s unwillingness to answer the Hon. ARLEN SPECTER, AMERICAN CIVIL LIBERTIES UNION, question on whether waterboarding is tor- Ranking Member, Committee on the Judiciary, Washington, DC, November 5, 2007. ture could threaten the security of Ameri- U.S. Senate, Washington, DC. Re Nomination of Michael Mukasey for At- cans overseas. In a little-noticed question- DEAR CHAIRMAN LEAHY AND RANKING MEM- torney General and-answer, Senator Kennedy asked BER SPECTER: On behalf of the undersigned Hon. PATRICK LEAHY, Mukasey, ‘‘Do you think it would be lawful organizations, we write to express our oppo- Chairman, Committee on the Judiciary, U.S. for another country to subject an American sition to the confirmation of Judge Michael Senate, Washington, DC. to waterboarding, induced hypothermia or B. Mukasey to the office of Attorney Gen- Hon. ARLEN SPECTER, heat stress, standing naked, the use of dogs, eral. At his hearing and in his responses to Ranking Member, Committee on the Judiciary, beatings, including head slaps, or electric written questions, Judge Mukasey refused to U.S. Senate, Washington, DC. shocks?’’ Mukasey responded with his stock condemn waterboarding as torture, endorsed DEAR CHAIRMAN LEAHY AND SENATOR SPEC- response that he cannot answer broad assertions of executive authority, and TER: The American Civil Liberties Union hypotheticals, and that ‘‘the actual facts and failed to make firm commitments to the en- strongly urges you to oppose moving the circumstances are critical.’’ This response forcement of civil rights. For these reasons, nomination of Judge Michael Mukasey for was to a question on whether it was illegal we are compelled to oppose his nomination. Attorney General out of the Judiciary Com- for a foreign country to shock, beat, and What is urgently needed in our next Attor- mittee unless he states that waterboarding waterboard an American citizen. The re- ney General is an unequivocal commitment and other extreme interrogation tactics are sponse provides no assurance to American to thoughtfully and independently uphold torture, within the meaning of federal law, servicemen and servicewomen and American the rule of law. However, on human and civil and commits to the full enforcement of fed- intelligence personnel that the United States rights issues, it is difficult to distinguish eral laws against torture and abuse. This will demand protection for them against for- Judge Mukasey’s views from the controver- commitment is important for two reasons: eign torturers. sial views of this Administration. It seems (1) to ensure that the federal government This line of questioning is not hypo- certain that, after his careful avoidance of stops, and does not resume, the use of tor- thetical. The use of waterboarding and other making commitments that might be anti- ture and abuse in interrogations; and (2) to forms of torture was reportedly discussed thetical to the Administration’s interests, have the next attorney general committed to and approved based on discussions that oc- Judge Mukasey is either unwilling to exer- investigating and, if appropriate, pros- curred at the highest levels of government, cise the independence we need in our next ecuting persons who authorized or com- including participation by aides to the Presi- Attorney General on critical issues, or his mitted torture or abuse. dent and Vice President. The result was au- views align perfectly with those of the Presi- Mukasey’s unwillingness to answer ques- thorization of specific forms of torture and dent. tions on whether waterboarding and similar abuse, and a permissive climate that fos- On the issue of interrogation techniques, practices are torture undermines the rule of tered even more torture and abuse. Federal Judge Mukasey acknowledged that the law law and threatens the security of Americans. Government documents obtained by the holds that torture is unlawful, but declined In response to questions from members of ACLU through our Freedom of Information to state whether waterboarding is torture. the Judiciary Committee, Mukasey not only Act litigation and reports of the Inter- Waterboarding, a technique defined as the refused to state whether waterboarding is national Committee of the Red Cross docu- use of a wet towel to induce the torture when authorized by or committed by mented torture or abuse against U.S.-held misperception of drowning, has been de- the federal government, but he also refused detainees, including acts such as soaking a clared unlawful by all four current Judge Ad- to say whether it is illegal for foreign coun- prisoner’s hand in alcohol and setting it on vocate Generals of our armed services. Judge tries to commit acts such as waterboarding, fire, administering electric shocks, sub- Mukasey’s condemnation of this technique electric shocks, beatings, head slaps, and in- jecting prisoners to repeated sexual abuse as ‘‘repugnant,’’ while true, is inconsequen- duced hypothermia on Americans. and assault, including sodomy with a bottle, tial; what counts is his legal opinion of Federal law is clear that waterboarding raping a juvenile prisoner, kicking and beat- whether the practice is torture. In spite of and all other forms of torture and abuse are ing prisoners in the head and groin, putting the fact that waterboarding is widely classi- illegal. The Anti-Torture Act criminalizes lit cigarettes inside a prisoner’s ear, force- fied by military officials and human rights the use of torture; the War Crimes Act crim- feeding a baseball to a prisoner, chaining a experts as unlawful torture, Judge Mukasey inalizes the use of torture and abuse against prisoner hands-to-feet in a fetal position for refused to answer this question directly. detainees protected by the Geneva Conven- 24 hours without food or water or access to a Judge Mukasey further endorsed a view of tions (which includes alleged Taliban and al- toilet, and breaking a prisoner’s shoulders. executive authority that greatly expands the Qaeda detainees); the McCain Amendment of Mukasey’s equivocal responses to these power of the President at the expense of the the Detainee Treatment Act reaffirms the questions on waterboarding and other forms other branches of government. Judge prohibition in the U.S.-ratified Convention of torture and abuse reveal a more funda- Mukasey suggested he would allow the Presi- Against Torture against the use of torture mental and troubling problem with his views dent to engage in warrantless surveillance of and cruel, inhuman, and degrading treat- on the scope of executive power—not only on persons in the United States in violation of ment; the U.S.-ratified Convention Against torture—but on government spying as well. congressional laws. Indeed, he outlined a Torture prohibits all torture and cruel, inhu- Under the theory of executive power view of the Constitution that privileged the mane, and degrading treatment, and general Mukasey espoused, any restrictions on gov- view of the executive branch over that of criminal laws such as federal statutes crim- ernment spying that Congress passes may be Congress on matters of constitutional inter- inalize conduct such as assaults by or meaningless, since Mukasey believes the pretation, making it possible for the Presi- against Americans in federal facilities. president has power to engage in domestic dent to disregard the laws of Congress based These laws reflect American values, all in wiretapping without a warrant and outside on the President’s constitutional judgment.

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00072 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14177 In fact, under this view, the President’s fail- We have just seen the damage caused when The PRESIDING OFFICER. Who ure to enforce a congressionally-enacted law an attorney general places partisan loyalty yields time? would prevent the courts from ever having above law. The country cannot withstand Mr. HARKIN. Mr. President, how an opportunity to weigh in, making the more of such disregard for the rule of law. much time do I have? President the final arbiter of constitu- As the Committee knows—and now the The PRESIDING OFFICER. The Sen- tionality of our laws. American public knows too well— Finally, with respect to questions regard- waterboarding has been an infamous form of ator from Iowa has 10 minutes. ing how he would improve civil rights en- torture dating back as far as the Spanish In- Mr. HARKIN. Mr. President, despite forcement, Judge Mukasey offered plati- quisition. The United States has both pros- the many positive attributes of Judge tudes, but no firm commitments. Civil and ecuted waterboarding as a war crime when Mukasey, I cannot support his nomina- voting rights enforcement have been low pri- used against our soldiers and court mar- tion for Attorney General. The next orities within the Department of Justice, shaled a U.S. military officer who used it Attorney General must be more than a making it especially important that the next against our enemies, George Washington capable steward of the Department of Attorney General have a thorough under- University Professor Jonathan Turley wrote Justice. I have heard a lot about that, standing of our civil rights laws and be com- last week. that he can run it well. mitted to the vigorous and unbiased enforce- Senator Charles Schumer (D–NY) stated Given this administration’s disdain that in conversations with Judge Mukasey ment of those laws. Judge Mukasey failed to for the rule of law, it is imperative the offer solutions to the extremely low number as late as Friday, Judge Mukasey assured of cases brought by the Civil Rights Division him that Congress could pass a law banning next Attorney General be a strong and on behalf of women and minorities in em- waterboarding and other forms of torture independent voice for a return to the ployment discrimination cases. On an issue and the President would have absolutely no very basic principle that we are a gov- as central to the civil rights community as authority to ignore such a law. But, under ernment of laws and not of the King— voting rights, Judge Mukasey would not the Geneva Convention, adopted by the the President. Regrettably, I do not be- commit to the straightforward proposition United States as law, it is already against lieve Judge Mukasey will be that voice. that a voter identification requirement that the law to use waterboarding. Over the last 6 years, this adminis- disproportionately impacts minorities could Judge Mukasey’s disingenuous responses tration, supported by faulty legal opin- about torture shows a contempt for Congress violate Section 2 of the Voting Rights Act. ions from the Justice Department, has His responses to questions concerning civil and a disturbing willingness to turn his back and voting rights enforcement evidenced lit- on the law when the alternative—acknowl- claimed it can ignore acts of Congress. tle understanding of the problems that cur- edging illegal torture—could have troubling The President has argued that, despite rently plague the Civil Rights Division. implications for the President who nomi- the fact that since 1978 the Foreign In- Nowhere is the Senate’s constitutional role nated him. telligence Surveillance Act has been in reviewing a presidential cabinet nominee This is unacceptable from a nominee to the law of the land, he, the President— more important than in the case of a pro- America’s top law enforcement position. And he has the authority, he says, despite spective Attorney General. Judge Mukasey it is equally unacceptable for the United the law, to eavesdrop on American citi- has failed to deliver on the expectation that States Congress to turn its back on its con- stitutional duty. zens without a warrant or judicial re- he would be willing to challenge this Admin- view. He, the President, believes—the istration’s widely condemned human and Judge Mukasey’s non-answers on torture civil rights policies. As a result, there is seri- do not stand alone. We are equally concerned President, the King—he can seize ous doubt about his suitability for the posi- about his equivocations on the President’s American citizens on American soil, tion of Attorney General and about the im- power to conduct a secret program of indefinitely detain them without pact his tenure would have on civil and warrantless wiretapping, despite laws duly charges, without providing the accused human rights in this country and elsewhere. enacted by Congress and protections afforded access to counsel, without judicial re- Thus, we must urge you to not confirm to all Americans by the Constitution. It is the hope of the nation that a new at- view. He—the President, the King—be- Judge Mukasey. lieves he can utilize interrogation Thank you for your consideration. If you torney general will be a fresh start for the Justice Department that Gonzales tarnished techniques long considered immoral, have any questions, please feel free to con- ineffective, and illegal, regardless of tact LCCR Vice President and Director of through his partisanship and left in tatters. Public Policy Nancy Zirkin or LCCR Counsel That hope cannot be served by a nominee the laws and treaties Congress has ap- and Policy Analyst Paul Edenfield. who begins by dissembling over what the law proved. Sincerely, is in order to protect the Administration and As Justice Sandra Day O’Connor Leadership Conference on Civil Rights. the Justice Department from possible un- wrote, however, ‘‘[a] state of war is not AFL–CIO. pleasant ramifications even before he has a blank check for the President when it AFSCME. been confirmed. It is difficult to see how comes to the rights of the nation’s citi- American-Arab Anti-Discrimination Com- such a nominee could repair the integrity and reputation of the Justice Department, zens.’’ mittee (ADC). At a time when we sorely need an At- Asian American Justice Center. heighten sagging morale or stem the exodus Global Rights: Partners for Justice. of career professionals fleeing that agency. torney General who will stand up for Human Rights First. Common Cause believes this is one of the the rule of law, Judge Mukasey has ex- International Union, United Auto Workers. most urgent issues of our day: a President pressed a troubling view of unchecked National Association for the Advancement who usurps greater and greater powers with- Executive power. For example, Judge of Colored People (NAACP). out regard for the law or Constitution, and a Mukasey asserted that the President National Fair Housing Alliance. Congress that stands idly by and lets it hap- can violate congressional statutes National Urban League. pen. Common Cause took a stand when the where the President claims broad au- Open Society Policy Center. actions of President Nixon threatened to un- People For the American Way. ravel America’s democracy, and we take the thority to ‘‘defend the Nation.’’ That is Service Employees International Union same stand now. a loophole big enough to drive any- (SEIU). The American people are watching what thing through. Judge Mukasey refused you do this week. The whole world is watch- to answer whether he believes Amer- COMMON CAUSE, ing. We need you to demand respect for the ican citizens, detained by the Presi- Washington, DC, November 5, 2007. rule of law, the Constitution, and the role of dent, have the right to habeas corpus, a Senator PATRICK LEAHY, the United States as a reliable world partner right that goes back to 1215; the Magna Chair, Senate Committee on the Judiciary, dedicated to international justice. It is up to Carta, articles 38 and 39 of the Magna Washington, DC. you to restore voters’ confidence in the vi- DEAR SENATOR LEAHY: Common Cause be- tality of America’s democracy. And it is up Carta. You go read it. It says the King lieves that it would be a serious mistake for to you to safeguard our troops abroad, who can’t pick you up and throw you in jail the Senate Judiciary Committee to confirm become more vulnerable to torture when we and hold you there unless it is sup- Judge Michael Mukasey’s nomination as at- condone it. ported by evidence and testimony from torney general to replace Alberto Gonzales. Common Cause urges you to stand firm your peers. That is the right of habeas In his nomination hearings before the Sen- and vote against the confirmation of Judge corpus, enshrined, article I, section 9 of ate Judiciary Committee, Judge Mukasey Mukasey as our next attorney general. We our Constitution. Mukasey refused to provided evasive answers to critical ques- urge you to turn the tide on abuse of execu- answer whether he believes American tions about whether ‘‘waterboarding’’ is tor- tive power and show America that they can ture, feigning ignorance of the well-known depend on you to defend the Constitution citizens have the right to habeas cor- procedure and dodging the question when it and the rule of law. pus when they are detained by the was defined for him. Sincerely, President. An attorney general’s first job is to protect BOB EDGAR, Similar to many of my colleagues— the rule of law, not to protect a President. President and CEO. the Senator from Vermont and the

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00073 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14178 CONGRESSIONAL RECORD — SENATE November 8, 2007 Senator from Colorado talked about habeas corpus. I guess we want to turn If you want to go into the court of this—I am deeply troubled by the the clock back to before the Magna world opinion, you better go in with judge’s failure to assert that Carta. clean hands; the court of equity. What waterboarding is illegal, a process that I am also troubled by Judge we are doing now in Guantanamo cov- simulates death by real drowning. Ev- Mukasey’s refusal to commit to rec- ers all that up. It does damage to our erybody is focused on waterboarding. ommend to the President that the de- reputation. It makes us like them. Sadly, he also refused to answer that tention center at Guantanamo Bay be The one thing we proved in the 1950s other terrible practices which this ad- closed. He said, ‘‘There are substantial when Joseph McCarthy stood on the ministration has used are illegal. These problems with Guantanamo, both prob- floor of this Senate—one thing we include electrical shocks, beatings, the lems of reality and problems of percep- proved then is we did not have to be use of dogs, forcing prisoners to stand tions.’’ If he believes that, why like the Communists to beat them. We naked, induced hypothermia. Judge wouldn’t he join with Secretary of De- don’t have to be like the terrorists to Mukasey doesn’t know—he doesn’t fense Gates and former Secretary of beat them. The more we are like them know whether these are illegal. Imag- State Colin Powell in recommending the more likely we are to lose. We need ine that. that it be closed? an Attorney General of the United Let there be no misunderstanding. I have a petition, signed by more States who has the guts to stand before Whether waterboarding is illegal is not than 1,000 people from around the the committee and say he is going to a difficult question. This Senate has re- United States, urging that our next At- tell the King that the King is wrong, peatedly stated it, going back at least torney General be committed to clos- and this Attorney General nominee to the ratification of the Geneva Con- ing down the detention facility at will not do that. vention in 1955, that torture is a viola- Guantanamo Bay. Oh, he may run a good department. tion of our highest values and simply I ask unanimous consent it be print- Oh, he may do all the right things. But not permitted. In 2005, we adopted the ed in the CONGRESSIONAL RECORD. we need an Attorney General to tell McCain amendment, 90 to 9, 90 votes to There being no objection, the mate- this King he is wrong and that the rule 9. The amendment stated that cruel, rial was ordered to be printed in the of law will apply and the rule of law degrading or inhuman treatment of de- RECORD, as follows: says we will not torture. We will not tainees was prohibited. TEXT OF PETITION treat people with inhumane treatment. Last year, the Military Commission Revelations of human rights abuses at the We will abide by the Geneva Conven- Act expressly made clear that the prison at Guantanamo Bay have damaged tions. We will not be like our enemies. President is bound by the prohibitions America’s reputation and impeded our ef- That will send a stronger signal to against cruel, inhuman, and degrading forts to fight terrorism. the world than anything else we could treatment of prisoners. Yet Judge By continuing to isolate detainees on do. For those reasons I, in good con- Mukasey says he doesn’t know. He Guantanamo Bay without bringing charges science, cannot in any way support this against them, we have forfeited our moral can’t determine whether waterboarding leadership and hindered our ability to rally nominee for Attorney General. is illegal because he has not seen the support in our fight against terrorism. Clos- I yield the floor. evidence. He has not seen the classified ing this facility is our single best oppor- The PRESIDING OFFICER. Who material. tunity to rally our allies in a more effective yields time? You don’t need classified material. fight against terrorism and reduce the risk Mr. HARKIN. Mr. President, I sug- You don’t need any classified material to Americans traveling abroad. gest the absence of a quorum. on this. Mr. HARKIN. Mr. President, issues The PRESIDING OFFICER. The RADM John Hutson, former Judge such as torture and Guantanamo Bay, I clerk will call the roll. Advocate General of the Navy, testified have to admit, are somewhat personal The assistant legislative clerk pro- that, ‘‘other than, perhaps the rack and to me. It was 20-some years ago—I am ceeded to call the roll. thumbscrews, waterboarding is the sorry, 37 years ago, now that I think Mr. SPECTER. Mr. President, I ask most iconic example of torture in his- about it, 1970—when I was a congres- unanimous consent that the order for tory.’’ He added, ‘‘[I]t has been repudi- sional staffer on the House side, for a the quorum call be rescinded. ated for centuries.’’ Going back to the committee that went to Vietnam to in- The PRESIDING OFFICER. Without Spanish Inquisition and including vestigate our involvement in the war objection, it is so ordered. World War II, the U.S. military has in Vietnam. During that trip over, Mr. SPECTER. Mr. President, I ask brought charges against those who through a series of circumstances and the Senator from Connecticut how practice this technique. In adopting because of the bravery of a couple of much time he would like. the Military Commission Act, many young people, I was able, with two Con- Mr. LIEBERMAN. Up to 5 minutes. Senators made clear that interrogation gressmen—Congressman ‘‘Gus’’ Haw- Mr. SPECTER. I yield 5 minutes to techniques such as waterboarding are kins from California and Congressman Senator LIEBERMAN, then Senator illegal and constitute ‘‘grave breaches’’ Bill Anderson from Tennessee—to un- MCCONNELL, the Republican leader, of the Geneva Conventions. cover the infamous tiger cages on Con will speak. Given this law, given the history, it Son Island off the coast of Vietnam. The PRESIDING OFFICER. The Sen- is disappointing that an esteemed What did we find there? Inhuman, de- ator from Connecticut. judge, with the highest reputation in grading, terrible conditions, where the Mr. LIEBERMAN. Mr. President, I our legal community, would not un- Vietnamese had imprisoned civilians— thank my friend from Pennsylvania. I equivocally state that, of course, students, human rights activists, along have spoken before on the Senate floor waterboarding is both torture and it is with North Vietnamese POWs—being about the nomination of Judge Michael illegal. It wasn’t a difficult question. It tortured almost on a daily basis. It Mukasey to be our next Attorney Gen- is a question any serious candidate for would take me more time than I have eral. I can be brief. Attorney General should answer. Be- this evening to be able to describe to I have listened to my colleagues. I re- cause he could not answer it, he is not you the horrors we saw when we broke spect what they have said. I have lis- qualified to be Attorney General. into this prison. It was all done with tened to those who have spoken Are we going to have another Attor- the full knowledge and consent and su- against Judge Mukasey’s nomination. I ney General who is going to kowtow to pervision of the U.S. Government. That am compelled to rise and speak be- the King—the President—I am sorry, I is proven. That is on the record. It is cause, with all respect, based on know- get those terms kind of confused when on the record. ing this man for 43 years, I believe peo- I am talking about Bush. I don’t know I saw the damage that it did, what ple are not treating him fairly who are whether he is King or President. Ac- that did to us. We were always saying contemplating voting against him. cording to the last Attorney General, to the North Vietnamese: Treat our I respect the opinions that have been he was King. Maybe this one believes prisoners according to the Geneva Con- stated. But based on this long knowl- the same thing. He can do whatever he ventions, when our colleague JOHN edge of this good man, I think he de- wants to. But even in 1215, the King of MCCAIN was there, and others. Yet we serves to be confirmed by the Senate England was held to the standard of were doing the same thing in Vietnam. by a very strong vote. I met Michael

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00074 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14179 Mukasey when we first arrived to- waterboarding because it tells you who First, they held up the nomination gether at law school—the same law Judge Mukasey is and what kind of At- for weeks before even scheduling a school, Yale Law School. torney General he will be. It is a rea- hearing, a failure to act which the As I have said on the Senate floor be- soned opinion. It is a straightforward Washington Post termed ‘‘irrespon- fore, the young man I met then— opinion. It is an opinion based on law. sible.’’ smart, sensible, honorable, good sense He says waterboarding to him per- Then, despite the fact that Judge of humor—is very much the same man sonally is repugnant. He says, he Mukasey testified for 2 days and an- who has been nominated by President opines, as a matter of law, that swered over 250 questions, our Demo- Bush to be our next Attorney General, waterboarding done by employees of cratic colleagues asked him an addi- except, of course, that he is older and the Department of Defense is illegal. I tional 500 written questions. By con- wiser and has had extraordinary expe- have not heard that enough in this de- trast, Attorney General Reno did not riences as an attorney in private prac- bate. He says that explicitly in this let- receive any written questions until tice, as a very successful assistant U.S. ter. Why? Because the law says it is il- after she was confirmed. attorney, as a Federal judge respected legal. Then it took our Democratic col- by all who came before him, and now, The Detainee Treatment Act refers leagues over 2 weeks to schedule a in really a twist of fate, having retired to the field manual of the Department markup. Again, by contrast, the Judi- from the bench, gone back to private of Defense, and that field manual said ciary Committee marked-up Attorney practice, he comes to the attention of waterboarding is illegal; therefore, General Reno’s nomination on the very President Bush and is nominated as At- Judge Mukasey says waterboarding is same day it finished her hearings. torney General. illegal. By the time the Mukasey nomination He carries with him all the attributes But then he says: I cannot say that was marked-up, this ‘‘consensus’’ one would expect and want of an Attor- for other employees of the Federal nominee had somehow become ‘‘con- ney General. I would add this: He is ex- Government, particularly employees of troversial.’’ How did this happen? The actly the right person to be Attorney the intelligence community, because answer is that Judge Mukasey fell vic- General at this moment in our Nation’s there is no law that says that. And I tim to the politicization of the con- history, after the travails the Depart- would have to have the evidence of firmation process, just like another re- ment has been through, the accusa- what it is, the previous legal opinions cent nominee who suddenly became tions of excessive political interference to do so. So he answered as a man of ‘‘controversial.’’ Both Leslie Southwick and Michael there, the questions about the judg- law, not a man of politics. Mukasey were nominated because they ment of the previous Attorney General. He is extremely well suited to be the were consensus candidates: I cannot think of a nominee for Attor- Attorney General America needs now. I Judge Southwick previously had been ney General who will be more inde- say this based on long knowledge of unanimously approved by Democrats pendent of the President nominating this man and his record. He ought to be on the Judiciary Committee. him than Michael Mukasey in a long confirmed overwhelmingly. And Judge Mukasey had been repeat- time. I regret that appears not to be what edly recommended by a Democratic Think about it. President Kennedy will happen. But I take some comfort member of that committee, not just for nominated his brother. President Car- from the fact that he will be confirmed. a 15-month stint as Attorney General ter nominated Griffin Bell, his attor- I am confident those who are his de- but even for a lifetime position on the ney and close friend from Atlanta. tractors today will become his admir- Supreme Court. President Reagan nominated his own ers over the next year and a half as he Judge Southwick was suddenly lawyer, William French Smith, to be conducts himself as the Attorney Gen- deemed controversial because of two Attorney General, and so on. President eral of the United States. opinions out of 7,000. He didn’t write ei- Bush and Michael Mukasey, as far as I Mr. MCCONNELL. Mr. President, I ther of them and at any rate, both know, did not know each other before am pleased that today, 7 weeks after he opinions existed when the Judiciary his consideration for this position. But was nominated, the Senate will finally Committee earlier approved him to an- he impressed the President based on vote on the confirmation of Judge Mi- other lifetime Federal judgeship. his experience, his knowledge, his chael Mukasey to be our Nation’s 81st And Judge Mukasey suddenly became record; particularly his record in deal- Attorney General. controversial because of one question ing with difficult cases regarding ter- Judge Mukasey’s nomination is the out of the 750 oral and written ques- rorism. culmination of a process in which the tions he was asked. That one question He has the integrity, the sound legal President was extremely solicitous of was whether waterboarding terrorist judgment, and the tremendous work the views of the Democratic majority. killers legally constitutes torture in ethic to raise this Department up to In fact, it’s hard to imagine how he all applications, regardless of cir- where we need it to be, to raise the mo- could have been any more bipiartisan cumstances and regardless of how rale of the employees of the Depart- with respect to this nominee. Just to many American lives might hang in ment. recap: the balance. If you look at the whole record of his Our Democratic friends did not want Well-known members of the vast experience, it seems to me, as I have the former Attorney General to con- Right Wing Conspiracy, like Professor listened to my colleagues who are op- tinue in office. Well, he has resigned. Alan Dershowitz of Harvard Law posing him, they are in large part ex- Our Democratic colleagues wanted to School and Stuart Taylor of National pressing their opposition to the admin- be consulted on whom the next Attor- Journal, say the answer to that ques- istration, to the judgments made by ney General should be. Well, the ad- tion is no. But Judge Mukasey didn’t the previous Attorney General, and not ministration consulted extensively say anything even close to that. He was being fair to this nominee. with them. far more reserved. Judge Michael Mukasey is a man of Our Democratic colleagues said that Rather, Judge Mukasey promised to the law. He is not a man of politics. If if the ‘‘President were to nominate a’’ bring his trademark thoughtfulness to he was a man of politics, he would have conservative ‘‘like a Mike Mukasey,’’ bear in answering this question, and said waterboarding is illegal because he ‘‘would get through the Senate very, swore that he would rather resign than he knew that is what many Members of very quickly.’’ Well, the President did countenance any illegality. In doing so, the Senate wanted him to say. But he not nominate someone ‘‘like’’ Mike Judge Mukasey answered the question did not believe, as a matter of law, as Mukasey; he nominated Mike Mukasey the way his Chief Recommender, our a man of law, that he was justified in himself. And the President received friend, the senior Senator of New York, saying that. widespread acclaim for choosing a said it ought to be answered, namely, I hope all my colleagues have read ‘‘consensus’’ nominee. ‘‘carefully.’’ Judge Mukasey’s response to the letter So it is apparent that the President Specifically, in 2004, Senator SCHU- that was sent to him by the chairman acted in a very bipartisan fashion. Did MER implored us to be ‘‘reasonable’’ of the Judiciary Committee and other our Democratic friends reciprocate? and not get into ‘‘high dudgeon’’ about members on this question of Let’s review the record: the issue of torture. He noted:

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00075 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14180 CONGRESSIONAL RECORD — SENATE November 8, 2007 There are probably very few people in this about to yield back that time, if I President is above the law anymore room or in America who would say that tor- might mention for a moment, and then than those of us who voted to confirm ture should never, ever be used, particularly I will yield it back so he may speak, I General Petraeus were, as the White if thousands of lives are at stake. hate to see records made on this floor House then wanted to say, saying that Our friend from New York noted that that bear absolutely no relationship to we believed in everything the President it is easy to ‘‘sit back in the arm- the facts. The suggestion was made was doing in Iraq. Many of us voted chair’’, as he put it, and demagogue the that there was one question on against the war in Iraq who then voted issue. But ‘‘when you’re in the fox- waterboarding out of hundreds of ques- for General Petraeus because of his hole,’’ as he described it, ‘‘it’s a very tions and that created the problem. ability as a four star general. They are different deal.’’ Unlike Senators who may have spoken entirely different things. The sugges- Senator SCHUMER said he respected that way, I was there. I was there tion otherwise, I find beneath the qual- ‘‘the fact that the President is in the through the whole hearing on the first ity of discourse in this great body. I re- foxhole every day. So he can hardly be day. I was there through the whole sent it. I reject it. Let people make up blamed for asking’’ his Attorney Gen- hearing on the second day. I am prob- their mind how to vote one way or the eral or his White House counsel or the ably the only Senator, other than pos- other, but don’t vote on red herrings. Defense Department ‘‘to figure out sibly Senator SPECTER, who was there Don’t vote on made-up ideas that we when it comes to torture, what the law for every bit of it. There were several need to pass some law in the future and allows and when the law allows it and questions on this issue. In fact, the rea- then, of course, we can be tough. In the what there is permission to do.’’ But, son that as chairman I had a second future, we will do something and then our friend from New York correctly day of hearings is because of some of we can be tough. That is sort of like cautioned, the legal analysis has ‘‘to be the questions that were raised on the saying: Gosh, if we had known we done carefully.’’ first day of hearings. I took the tran- weren’t being told the truth, we might Judge Mukasey applied just such a script and read it during that night be- have voted differently on Iraq. If we careful analysis to this legal question. cause of it. There were questions on ex- knew that waterboarding was bad, we And an important part of carefulness, ecutive privilege, but there were ques- might have voted differently. of course, is not to prejudge the legal- tions on waterboarding. Vote one way or the other. I will not ity of an intelligence program that one Contrary to suggestions which seem question the motives of any Senator, is not read into, and that concerns in- to be more for political cover by some no matter how they vote, either for or terrogation techniques that, even if who may want to vote one way or the against this nominee. But let’s not do used, are classified. other, we do not need a new law on it on a hypocritical pretext that the But despite the fact that Judge waterboarding. President Teddy Roo- President is above the law when he is Mukasey answered the question in the sevelt did not need a law on that to not or that the President can put any same thoughtful manner that our find people had violated our laws 100 American above the law because he friend from New York noted it de- years ago. We did not need a new law cannot. Let us not pretend that torture mands, and despite the fact that Judge on the question of waterboarding to is not torture because it is, and it is be- Mukasey was much more reserved in prosecute Japanese war criminals for neath the great ideals of the most won- his pronouncements than Professor waterboarding Americans. We have not derful Nation on Earth. Dershowitz, this once-consensus can- needed it at all. It is against the law. I thank the Senator from Nevada and didate is now controversial. If my Dem- We do not need it. None of the military yield back the remainder of my time. ocrat colleagues vote against Judge who write our Uniform Code of Mili- The PRESIDING OFFICER. The ma- Mukasey because of his comments on tary Justice need a new law to find it jority leader is recognized. waterboarding, it must mean they also wrong. None of the Judge Advocate Mr. REID. Mr. President, the hearing would vote against Professor Generals need a new law to find it in this matter on Judge Mukasey was Dershowitz and Senator SCHUMER if wrong. They have declared it wrong. they were nominated for Attorney Gen- Our treaties, our other obligations good. The Judiciary Committee, with eral. find it wrong. Up until the last week or Senators LEAHY and SPECTER, did a I have a hard time believing that my so of this administration, we would good job, a full airing of this man’s Democratic colleagues would vote have objected to any other country qualifications and ideas were present against Professor Dershowitz’s nomina- using such techniques on Americans as before the American people and the tion to be Attorney General. And I wrong. Senate. The debate that has transpired have an even harder time believing I understand the White House deter- today dealing with Michael Mukasey that our colleagues would vote against mines what their nominees want to has been extremely good. It has been Senator SCHUMER if he were nominated say. That is fine. I have not lobbied good for the process. It is good for the to this position. any Senator one way or the other on American people to understand that In conclusion it should not have this issue. But let us not pretend there the chief law enforcement officer of taken nearly this long to process Judge was one question out of hundreds on this country has had a fair hearing and Mukasey’s nomination. I am glad that waterboarding. There were many ques- a good debate in the Senate. tonight, almost 2 months after he was tions. Several Senators asked ques- I will vote against the nomination of nominated, the waiting will finally tions on this, more on the philosophy Michael Mukasey for Attorney Gen- end, and that Judge Mukasey will soon of: Is a President above the law? Can eral. My historical analysis is different get to work at the Justice Department, the President arbitrarily set people in than that of my good friend, the senior the thing our Democratic colleagues this country above the laws of America Senator from Kentucky, much dif- said they wanted all along. or do the laws that we pass and their ferent. It is regrettable that I must The PRESIDING OFFICER. The ma- assignment to law by Presidents, is vote no. When the President first nomi- jority leader. that a law that applies to every single nated Michael Mukasey, I was fully Mr. REID. Mr. President, I yield back American, including the President of prepared to support him. That is the the time of the majority except for the the United States? Most of us feel the history I remember. statement I am going to give. same way we learned in civics 101, that Judge Mukasey has a stellar reputa- Mr. LEAHY. Mr. President, par- no one in America is above the law. tion for integrity and judicial excel- liamentary inquiry: Is there still time That is the issue we raised in the Judi- lence throughout his decades of Gov- reserved to the Senator from Vermont? ciary Committee. Those who are voting ernment service. He has an excellent The PRESIDING OFFICER. Yes, no on this is because they felt a great academic background. I was pleased to there is. deal of concern about the answers. see that after the Gonzales debacle and Mr. LEAHY. How much? Nobody questions Judge Mukasey’s with the Justice Department in sham- The PRESIDING OFFICER. Ten min- legal abilities. I find him a very attrac- bles, the President finally relented to utes. tive candidate for Attorney General. I pressure from Senate Democrats to Mr. LEAHY. I don’t want to interfere do not find the ability to continue to look beyond his inner circle at this with the majority leader, but I am not vote for a myth that somehow the most important appointment.

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00076 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY November 8, 2007 CONGRESSIONAL RECORD — SENATE S14181 I considered it significant that an ad- waterboarding is torture and it is ille- rogation techniques. The United States ministration that has shown such con- gal. Civil and military courts in the of America has done that? All over the tempt for the other two branches of United States have rejected world now they know it. Government, particularly judges, waterboarding, as Senator LEAHY has As a result, our allies have at times would turn to a candidate who served said more than once today, for more refused to cooperate with us in the in the judicial branch for so many than 100 years, whether directed at or fight against terrorism, under con- years. So like many Democrats, I was committed by Americans. straints from their own laws and public predisposed to support this nomina- U.S. soldiers were court-martialed opinion at home. tion. In fact, I was prepared to embrace for using water torture to question Fil- Even if the Bush administration is no this nomination. I, too, met with Judge ipino guerrillas during U.S. occupation longer utilizing waterboarding—which Mukasey and told him I was impressed of the Philippines after the 1898 Span- I do not know now—the President’s re- with his credentials and his back- ish-American war. After World War II, fusal to publicly disavow it gives li- ground and I hoped the hearing went the United States prosecuted and con- cense to our enemies abroad to use it. well. victed Japanese soldiers for This puts our troops and any citizen Well, the hearing didn’t go well, from waterboarding American allied pris- who may fall into our enemies’ hands my perspective. During this confirma- oners of war. During the 1980s, a Texas at risk and serves as an ongoing re- tion process, Judge Mukasey expressed sheriff was sentenced to 10 years in cruiting tool for militant extremists. views about Executive power that I and prison for using waterboarding to force How do these evil people, who are many other Senators found deeply dis- confessions of prisoners. So this is not trying to do damage to this country— turbing. I was outraged by his evasive a new debate, nor an unsettled ques- how are they using the fact that Amer- hair-splitting approach to questions tion. ica tortures people they want to get in- about the legality of waterboarding. Judge Mukasey doesn’t need a classi- formation from? How is this a recruit- After his initial comments, Judge fied briefing from the Bush White ing tool for these bad people? A pretty Mukasey was given every opportunity House to answer the question, is good one, I would think. President Bush claims we must not to address these concerns. But he was waterboarding torture. He has more disclose our techniques to the enemy. unable to state clearly that than 100 years of established American But I contend we should shout from the waterboarding is torture and, there- law on which to base his position. His hills and the rooftops for all to hear, fore, illegal under U.S. law. This is not position was evasive without any ques- that no matter how hateful the actions a difficult or complex legal question. It tion, misleading. That is why it is so of our enemies, we will never relin- does not require high-level security disturbing that for all his impressive quish our most treasured commitment years on the bench, Judge Mukasey briefings. to human rights. I agree with former Navy General could not give a simple straightforward That is America, Mr. President—not Counsel Alberto Mora and former As- answer to the question posed by mem- water torture, not thumb screws, not sistant Secretary of State John bers of the Judiciary Committee, the rack. Shattuck who wrote in an op-ed this Democrats and Republicans. His We should make it clear to all the week: lengthy nonresponsive answer was world that no matter what our enemies The question of whether waterboarding wrong. This was a question that de- do, our core American values cannot be constitutes torture is a no-brainer. manded brevity and certainty, not shaken. We are a constitutional form Why is it a no-brainer? My friend, lawyerly semantics. of government. We deserve an Attorney former Nevadan and now a long-time My Republican colleagues, JOHN General who will uphold this message Federal Judge Evan Wallach, a former MCCAIN, LINDSEY GRAHAM and JOHN to the world. decorated Vietnam combat veteran WARNER, who served as leaders in the Judge Mukasey’s answer to the who came back from military service Senate on this issue, recently issued a waterboarding question was important in the first Gulf War and is now a lead- detailed legal analysis that concluded in itself, but it also raised for me seri- ing expert on the law of war, wrote in waterboarding ‘‘represents a clear vio- ous doubts about whether he is pre- a recent Washington Post article—in lation of the U.S. law.’’ pared to be the truly independent voice fact, it was last Sunday on the front For purposes of this debate, let’s give that the Justice Department, which is page of the opinion section— a little added credence to a man who now in shambles, so desperately needs. The media usually characterize the prac- served 7 years in a Vietnamese prison If he cannot stand up to the President tice as ‘‘simulated drowning’’ [but] that’s in- camp and was tortured more than half on such a question of profound impor- correct. To be effective, waterboarding is the time he was there—the rest of the tance and simplicity with a clear legal usually real drowning that simulates death. time was in solitary confinement— answer, how can we be sure he would be The only difference between actual JOHN MCCAIN. Let’s give that a little more than just another mouthpiece for drowning and waterboarding is that more foundation. an administration that treasures se- the waterboarding process is halted be- Former and sitting Judge Advocate crecy and loyalty above all? fore death. Victims inhale water, suf- Generals agree. On Friday in a letter to I respect Judge Mukasey’s long ca- focate, and often pass out. Who could the chairman of the Judiciary Com- reer in public service. I have said that reasonably argue this is anything other mittee, several prominent former before. We have met in person. I have than torture? Judge Advocate Generals declared un- said that before. And there is no ques- Judge Wallach further points out, in equivocally: tion he is an intelligent man. In the a related law review article in the Co- Waterboarding is inhumane, it is torture, past, he has been very capable. lumbia Law Review, that even under and it is illegal . . . Waterboarding detainees If he is confirmed, the eyes of every the extreme and now disavowed legal amounts to illegal torture in all cir- American will be on him as he faces theories of former Justice Department cumstances. the unenviable task of depoliticizing officials such as John Yoo, I could continue at length quoting the Department of Justice and restor- waterboarding still constitutes torture. military and civilian experts who all ing the integrity that was so lacking ‘‘Can there be any question,’’ Judge agree the answer to this question is under his predecessor, Alberto Wallach asks, ‘‘that water torture, the settled. And it is settled. But why is Gonzales. He will have my earnest sup- repetitive artificial drowning and re- this issue of waterboarding so critical port in that challenge. vival of another human being, falls for the chief law enforcement officer of But in light of his responses during within their memo’s parameters?’’ No. our country, the U.S. Attorney Gen- and following his confirmation hear- There can be no question at all. eral? Tremendous damage has been ings, I cannot stand by him today with Notwithstanding the novel legal done to the moral credibility of our my words or my vote. theories of the Bush administration, great country, both in the eyes of our One day, Mr. President, historians whose approval rating as we speak is 23 allies and of our enemies abroad, by will expend countless reams of paper percent—and we wonder why—it has the widespread belief that our country, and barrels of ink writing the story of long been settled law in this Nation the United States, has used the Bush-Cheney administration’s ex- and around the world that waterboarding and other abusive inter- tremism in support of its never-ending

VerDate Mar 15 2010 21:24 Mar 13, 2014 Jkt 081600 PO 00000 Frm 00077 Fmt 0624 Sfmt 0634 E:\2007SENATE\S08NO7.REC S08NO7 mmaher on DSKCGSP4G1 with SOCIALSECURITY S14182 CONGRESSIONAL RECORD — SENATE November 8, 2007 quest to expand the reach of their Ex- NAYS—40 of all amendments, the committee-re- ecutive power. There is no question Akaka Inouye Nelson (FL) ported substitute amendment, as that this time will be remembered as a Baucus Johnson Pryor amended, if amended, be agreed to; the dark chapter in America’s otherwise Bingaman Kennedy Reed bill, as amended, be read the third Boxer Kerry Reid steady march toward justice. Brown Klobuchar Rockefeller time, passed, and the motion to recon- But for now, all we can do is honor Byrd Kohl Salazar sider be laid upon the table; that the the trust and authority given to us as Cantwell Lautenberg Sanders title amendment be agreed to, and the Cardin Leahy Stabenow individual Senators by the American Casey Levin motions to reconsider be laid upon the Tester people and do what we, as Senators, Conrad Lincoln table, en bloc; that any statements re- Webb Dorgan McCaskill can to turn the page to a brighter day Whitehouse lating thereto be printed in the Durbin Menendez because it needs to be turned. Feingold Mikulski Wyden RECORD. What we can do today is reject this Harkin Murray The PRESIDING OFFICER. Is there nomination. The next Attorney Gen- objection? NOT VOTING—7 eral must be able to stand up to the Mr. CRAIG. I object. Alexander Cornyn Obama The PRESIDING OFFICER. Objec- President and stand up for the rule of Biden Dodd law. Clinton McCain tion is heard. If confirmed, I hope Judge Mukasey The nomination was confirmed. f is up to that challenge. But because he Mr. MENENDEZ. Without objection, UNANIMOUS CONSENT REQUEST— has not given me confidence of his the motion to reconsider is laid on the S. 1315 independence, I will vote against con- table. firmation, and I urge my colleagues to Mr. DURBIN. Mr. President, I ask The President shall be notified of the unanimous consent that the Senate do the same. Senate’s action. Mr. President, I ask for the yeas and may proceed to the consideration of nays on the nomination of Mike f Calendar No. 336, S. 1315, at any time Mukasey to be Attorney General of the LEGISLATIVE SESSION determined by the majority leader fol- United States. lowing consultation with the Repub- The ACTING PRESIDENT pro tem- The PRESIDING OFFICER. Is there a lican leader; that when the bill is con- pore. The Senate will resume legisla- sufficient second? sidered, the only amendments in order tive session. There is a sufficient second. to the bill, other than the committee- The question is, Will the Senate ad- f reported amendment, be first-degree vise and consent to the nomination of DEPARTMENT OF DEFENSE AP- amendments that are relevant to the Michael B. Mukasey, of New York, to PROPRIATIONS ACT, 2008—CON- subject matter of the bill and that they be Attorney General? FERENCE REPORT—Continued be subject to relevant second-degree The clerk will call the roll. amendments; that upon the disposition The PRESIDING OFFICER. The The assistant legislative clerk called of all amendments, the committee-re- question is on agreeing to the con- the roll. ported substitute amendment, as ference report. Mr. DURBIN. I announce that the amended, if amended, be agreed to; the The conference report was agreed to. Senator from Delaware (Mr. BIDEN), bill, as amended, be read the third Mrs. FEINSTEIN. Mr. President, I the Senator from New York (Mrs. CLIN- time, passed, and the motion to recon- move to reconsider the vote, and I TON), the Senator from Connecticut sider be laid upon the table; that the move to lay that motion on the table. (Mr. DODD), and the Senator from Illi- title amendment be agreed to, and the The motion to lay on the table was nois (Mr. OBAMA) are necessarily ab- motions to reconsider be laid upon the agreed to. sent. table, en bloc; that any statements re- Mr. REID. Mr. President, there will I further announce that, if present lating thereto be printed in the be no more rollcall votes this week. and voting, the Senator from Delaware RECORD. The first vote next week will be at 10:10 (Mr. BIDEN) would vote ‘‘nay.’’ The PRESIDING OFFICER. Is there Tuesday morning. Mr. LOTT. The following Senators objection? I note the absence of a quorum. are necessarily absent: the Senator Mr. CRAIG. I object. The ACTING PRESIDENT pro tem- from Tennessee (Mr. ALEXANDER), the The PRESIDING OFFICER. Objec- pore. The clerk will call the roll. Senator from Texas (Mr. CORNYN), and tion is heard. The legislative clerk proceeded to the Senator from Arizona (Mr. f call the roll. MCCAIN). Mr. REID. Mr. President, I ask unan- UNANIMOUS CONSENT REQUEST— Further, if present and voting, the imous consent that the order for the S. 2168 Senator from Tennessee (Mr. ALEX- quorum call be rescinded. Mr. DURBIN. Mr. President, I ask ANDER) and the Senator from Texas The PRESIDING OFFICER. Without unanimous consent that the Senate (Mr. CORNYN) would have voted ‘‘yea.’’ objection, it is so ordered. The PRESIDING OFFICER. Are there proceed to the immediate consider- The Senate will be in order. Members any other Senators in the Chamber de- ation of Calendar No. 459, S. 2168; fur- will take their conversations off the siring to vote? ther that the committee amendments floor. The result was announced—yeas 53, be agreed to; the bill, as amended, be nays 40, as follows: f read the third time and passed; the mo- tion to reconsider be laid upon the [Rollcall Vote No. 407 Ex.] UNANIMOUS CONSENT REQUEST— table, with no intervening action or de- YEAS—53 S. 1233 bate; that any statements relating to Allard Dole Martinez Mr. DURBIN. Mr. President, I ask the bill be printed in the RECORD. Barrasso Domenici McConnell unanimous consent that the Senate The PRESIDING OFFICER. Is there Bayh Ensign Murkowski Bennett Enzi Nelson (NE) may proceed to the consideration of objection? Bond Feinstein Roberts Calendar No. 335, S. 1233, at any time Mr. CRAIG. Mr. President, I object. Brownback Graham Schumer determined by the majority leader, fol- The PRESIDING OFFICER. Objec- Bunning Grassley Sessions lowing consultation with the Repub- tion is heard. Burr Gregg Shelby Carper Hagel Smith lican leader; that when the bill is con- Mr. CRAIG. Mr. President, I wish to Chambliss Hatch Snowe sidered, the only amendments in order discuss my opposition to two bills re- Coburn Hutchison Specter Cochran Inhofe to the bill, other than the committee- ported by the Veterans’ Affairs Com- Coleman Isakson Stevens reported amendment, be first-degree mittee, but I continue to hope we can Collins Kyl Sununu amendments that are relevant to the resolve the concerns I will address Thune Corker Landrieu subject matter of the bill and that they today. Craig Lieberman Vitter Crapo Lott Voinovich be subject to relevant second-degree Unanimous consent has been sought DeMint Lugar Warner amendments; that upon the disposition to pass two controversial bills: S. 1233,

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