Statement of Senator Dianne Feinstein in Support of Judge Michael Mukasey for Attorney General

“I will vote to confirm Michael Mukasey to be our next Attorney General.

First and foremost, Michael Mukasey is not Alberto Gonzales. Rather, he has forged an independent life path as a practitioner of the law and a federal judge in the Southern District of New York.

In this capacity, he has presided over 1,600 cases over 19 years.

He has developed extensive experience on national security issues.

And he has presided over a dozen national security cases – including United States v. Rahman (1994), Padilla v. Bush (2002), and In re Application of the United States for a Material Witness Warrant (2002) -- and 10 defendants from the Rahman case were given prison sentences ranging from 25 years to life.

Judge Mukasey’s answers to hundreds of questions, both in our confirmation hearing and in writing, were crisp and succinct, and demonstrated a strong, informed, and independent mind.

I truly believe he will be a strong Attorney General and will represent the best interests of the American people.

The Justice Department is in desperate need of effective leadership. The Department is leaderless, and 10 of its top positions are vacant. Morale among U.S. Attorneys needs to be restored, priorities reassessed, and a new dynamic of independence from the White House forged.

I believe that Judge Mukasey is the best we will get and voting him down would only perpetuate acting and recess appointments, allowing the Administration to avoid the transparency that confirmation hearings provide and diminish effective oversight by Congress.

Yet, serious questions have been raised about Judge Mukasey’s views on torture and on separation of powers. These are important questions.

Regarding torture, Judge Mukasey clearly expressed his personal repugnance in the hearing. And in a letter of October 30, 2007, he reiterated his personal views and described in detail the analysis he would undertake if confirmed. He wrote:

‘I understand also the importance of the United States remaining a nation of laws and setting a high standard of respect for human rights. Indeed, I said at the hearing that torture violates the law and the Constitution, and the President may not authorize it as he is no less bound by constitutional restrictions than any other government official.

I was asked at the hearing and in your letter questions about the hypothetical use of certain coercive interrogation techniques. As described in your letter, these techniques seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans. But hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.’

Specifically, on the subject of ‘waterboarding,’ Judge Mukasey wrote:

‘I do know…that ‘waterboarding’ cannot be used by the United States military because its use by the military would be a clear violation of the Detainee Treatment Act (‘DTA’). That is because ‘waterboarding’ and certain other coercive interrogation techniques are expressly prohibited by the Army Field Manual on Intelligence Interrogation, and Congress specifically legislated in the DTA that no person in the custody or control of the Department of Defense (DOD) or held in a DOD facility may be subject to any interrogation techniques not authorized and listed in the manual.’

As Judge Mukasey wrote, ‘waterboarding’ is clearly against the law for the American military. ‘Waterboarding’ is clearly prohibited by the Convention Against Torture and the Geneva Conventions. It was again prohibited by the Detainee Treatment Act, which only covers military interrogations.

Congress should go further and explicitly ban ‘waterboarding’ and other so- called enhanced interrogation techniques for all parts of the government.

Both Senators Kennedy and Biden have introduced legislation to this effect. I believe we should put one of those bills in the FISA legislation now under consideration in the Judiciary Committee. Once this law is enacted, the Attorney General would be required to enforce it, and Judge Mukasey’s answers give every reason to believe that he would.

Yet, I believe that if he is confirmed, after he has had an opportunity to review the legal opinions and form his own views, that the Judiciary Committee should ask Judge Mukasey back and discuss this issue further.

Finally, I do not believe a President can be ‘above the law,’ and neither does Judge Mukasey. In addition Judge Mukasey explained that his view on executive power is based on a Youngstown analysis (Youngstown Sheet & Tube Company v. Sawyer 1952). Justice Jackson wrote in Youngstown that the President’s power is greatest when he is backed by a statute, and at its lowest ebb when his actions conflict with a statute. But that framework does not provide a final answer to every dispute that arises between the branches. Instead, some disagreements between the branches must eventually be resolved by the Judiciary.

Bottom line: I hope that Judge Mukasey will fairly and even-handedly represent the American people, and direct the Department wherever the facts and the law lead, not where the White House dictates.

Our nation needs a strong and independent Attorney General, and I believe that Judge Mukasey will rise to the challenge.”

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