I have the privilege of serving on the Judiciary Committee, and for the past several weeks we have been considering the nomination of Michael Mukasey to be the 81st Attorney General of the United States. 

I had the pleasure of meeting with Judge Mukasey several weeks ago in my office, and discussed my concerns with the Department of Justice in some detail with him.  I questioned Judge Mukasey extensively during our Judiciary Committee hearings, and focused my concerns on the weak record of civil rights enforcement by the Justice Department under the Bush Administration.  I had the opportunity to chair the third panel of witnesses for our Judiciary Committee hearing, and I heard from a distinguished panel of legal experts regarding their recommendation for the next Attorney General.

I believe that Judge Mukasey is an honorable person.  He has a distinguished record of public service as a federal district judge, Assistant U.S. Attorney, private practitioner, and as a law school lecturer.  I believe that Judge Mukasey would bring a refreshing change to the Department of Justice.  I also believe he would begin to restore the morale at the Department, along with the respect for professional career attorneys.

The Attorney General must serve as the attorney for the American people, and he or she must be independent from the White House.  Former Attorney General Alberto Gonzales lacked that independence.  His lack of independent judgment on pending criminal investigations and the U.S. attorney firings severely damaged his credibility and that of the Department of Justice.

I do have concerns about Judge Mukasey’s independence from the White House as it relates to issues of torture.

I am disturbed that Judge Mukasey could not bring himself to say that waterboarding is torture.  Torture is illegal under the laws of the United States and the treaties it has ratified.  The Attorney General, as the nation’s chief law enforcement office, must be able to effectively and independently enforce the laws of the United States, which includes giving candid advice to the President on what torture is and what techniques are forbidden by law.  The Attorney General, without fear or favor, must prosecute those who violate our laws against torture.  In direct questioning, Judge Mukasey responded that he would exercise that independent judgment and if necessary resign if he were unable to resolve fundamental differences with the President.

I asked Judge Mukasey several written questions for the record after his confirmation hearing.  I first asked him if, as Attorney General, he would order the Justice Department to prosecute individuals who have committed acts of torture under U.S. law.  He replied that “the Department of Justice has an obligation to bring prosecutions to enforce all valid criminal statutes, and as I explained during the hearing, torture clearly is prohibited by federal law.”  I asked Judge Mukasey if he believes that any “exceptional circumstances” exist that would justify torture.  He answered no.  I asked Judge Mukasey if, as Attorney General, he would authorize the use of torture in any circumstances.  He answered no.

I therefore have great difficulty understanding Judge Mukasey’s refusal to say that waterboarding is torture, and to leave open the possibility that waterboarding would be permitted as an interrogation technique.  Judge Mukasey now acknowledges that he understands what is generally meant by waterboarding, after he stated he was not familiar with this technique during his confirmation hearing.

The questions asked to Judge Mukasey during his confirmation hearing, and in subsequent written questions from the Committee, do not ask about a specific technique that may have been authorized by the President for use on detainees.  Our questions to Judge Mukasey related to waterboarding as generally understood.  It was not a hypothetical question.  The United States has prosecuted Japanese soldiers for using waterboarding during World War II.  In 2006, the Army released an updated version of the Field Manual that prohibits the use of waterboarding by our soldiers.  The military acted after the passage of the McCain amendment in 2005, which, first, requires Department of Defense personnel to use the Army Field Manual guidelines when interrogating detainees.  Second, the McCain amendment prohibits the use of “cruel, inhuman and degrading treatment or punishment of persons under the detention, custody, or control of the United States Government.”

During our final panel of witnesses at the confirmation hearing, I asked Admiral John Hutson about this matter.  Admiral Hutson is a distinguished and highly decorated military lawyer, and in his capacity as the former Navy Judge Advocate General was the senior uniformed legal advisor to the Secretary of the Navy and the Chief of Naval Operations.  Admiral Hutson testified, in sum, that the Attorney General as our chief law enforcement officer has to be absolutely unequivocal as to what is torture and what is not.  We should not even be close to the line of what is torture.  Admiral Hutson testified that waterboarding is one of the most iconic examples of torture, and it was devised during the Spanish Inquisition.  Its use has been repudiated for centuries.

So it appeared to me, Mr. President, that Judge Mukasey was yielding to White House pressure on the issue of waterboarding.  This is troubling to me because of the critical importance of the independence of the Attorney General.

On November 1, 2007, President Bush implied that if Judge Mukasey answered the question on waterboarding he would give “terrorists a window into which techniques we may use, and which ones we may not use.”

I want the Attorney General and the President to tell the world that the United States will not permit the use of torture.  I am concerned that after signing the McCain amendment into law the President issued a signing statement saying his administration would interpret the new law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief, and consistent with the constitutional limitations on the judicial power.”  This vague language may mean that the Administration is still claiming the right to torture detainees.  I was saddened to read the October 2007 New York Times report that the Justice Department had issued classified legal opinions in 2005 which have not been rescinded and which continue to authorize the use of waterboarding against detainees.

The United States should never use torture, nor should we ever allow torture to be used against any American.

If a foreign agent attempts to use waterboarding as generally understood or any other form of torture against an American, I want our country to use all means necessary to prosecute such an offender.

The President also said in his November 1, 2007 speech that Judge Mukasey would not “go on the record about the details of a classified program he has not been briefed on.”

I agree.  Judge Mukasey could not answer a question about a classified program.  The request from our Committee, however, dealt with waterboarding as generally understood.  He has an obligation to the Senate to answer that question, and he has not done so.

We should heed the recommendation of the 9/11 Commission that “the United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists.  New principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict.  That article was specifically designed for those cases in which the usual laws of war did not apply.  Its minimum standards are generally accepted throughout the world as customary international law.”

Our country has paid a heavy price for going it alone in this aspect of the war on terrorism.  The leadership of the United States on human rights issues has been severely compromised, which has unfortunately hampered our ability to affect human rights progress around the world.

I am privileged to serve as the Senate Co-Chairman of the U.S. Helsinki Commission and as a U.S. delegate to the Organization for Security and Cooperation in Europe (OSCE).  The Helsinki Commission was set up in 1975 to serve as a Congressional watchdog panel to make sure that the United States, Europe, and the countries of the former Soviet Union were following internationally agreed to standards for human rights.  During the Cold War the United States was a leader in promoting strong action to combat torture, and consistently criticized governments behind the Iron Curtain that used these tactics against their own citizens.

Sadly, I find that I spend most of my time in the OSCE today trying to defend the United States against international criticism.  The leadership of the United States is being questioned and challenged, and I cannot find the right answer to give my colleagues, particularly on the issue of torture.

Judge Mukasey is a good person and an honorable man.  However, on the critical issue of standing up to this Administration as an independent advisor against the use of torture, I have my doubts.

For that reason, Mr. President, I will vote against his confirmation tomorrow morning in the Judiciary Committee.