On the Nomination of Michael Mukasey

Floor Speech

ON THE NOMINATION OF MICHAEL MUKASEY -- (Senate - October 31, 2007)

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Mr. DURBIN. Mr. President, it is my great honor to serve in the Senate and represent my State of Illinois. It is a singular honor and responsibility.

Unlike the House of Representatives where I was honored to serve for 14 years, in the Senate we are often called on to judge people; not ideas, not bills, not expenditures, but people. I think it defines one of the fundamental differences between the House and the Senate.

So often when it comes to the President's appointments and Cabinet officials, those who serve us in public life, we have to take the measure of a person and decide whether that person is the right one for the moment, if that person has the integrity and the skill and the values to serve this great Nation.

It is a heavy burden. Sometimes I am sure I have gotten it wrong, and other times right. You are never quite sure. In this situation, as a member of the Senate Judiciary Committee, I am faced with this question about filling the vacancy after the resignation of Attorney General Alberto Gonzales.

I was not a fan of Attorney General Gonzales. I voted against his nomination. There were many reasons. I will not go through the long litany. But I did not believe he was the right person for the job. I thought his appointment to lead the Department of Justice was the appointment of a man more loyal to a President than to our Constitution and his special responsibility in our Cabinet.

But even beyond that, I was haunted, haunted by the involvement of Attorney General Gonzales in a historic decision made by the Bush administration.

America has never been the same since 9/11/2001. We can all recall exactly where we were at that moment, the horror that came over us as we realized how many innocent Americans would lose their lives with this unprovoked terrorist attack on the United States, the grief we shared with families and friends after that loss, witnessing all of the funerals and hearing all of the sad stories.

Determined, this Congress came together in a matter of days and declared war on those responsible. Now there have been many times in my public career when I have been called on to decide whether to go to war. These are the decisions which may look easy from the outside but are never easy.

You know that when a nation goes to war, people will die. You hope it will be the enemy, but you know it will be some of our own, and innocent people as well. You find yourself tossing and turning thinking about what is the right thing to do.

When it came to the declaration of war on the Taliban and al-Qaida for what happened on 9/11, there was no tossing and turning. With resolve, the Senate unanimously voted to embark on that war, to make it clear that the United States would not tolerate what had happened on 9/11.

Of course, shortly thereafter, another challenge presented itself to the Senate when it came to the war in Iraq. I thought that was a much different issue. In fact, I thought it was an unwise policy decision to go forward. I joined 22 of my colleagues in voting against the authorization for the use of military force by President Bush.

I think history has shown that the decision to go to war in Iraq was one that was ill-fated and may go down as one of the worst decisions in the history of our Nation. But what happened in addition to those two declarations of war is also going to be written in the annals of history.

What did we do to protect America? Well, if you look back in our history, you will find that whenever we are insecure and frightened and believe we are in danger, we make a number of decisions to find security and peace of mind. Then over time we reflect on those decisions. And over time some of them do not stand the test of being consistent with our basic values.

We were debating some of those decisions even today in the Judiciary Committee. The question of warrantless wiretapping, the conflict between privacy and security. It is almost always an issue when America is at war or there is a question of our security. It is an issue today: telephone records, records of e-mail traffic, and so forth.

What right does the Government have, and under what circumstances can the Government violate the privacy of an individual in an effort to protect our Nation? That debate will continue. It is far from resolved.

But there was another debate involved after 9/11 that I did not anticipate. I did not imagine at the time, in all of my grief and all of my concern, that this administration would actually call into issue the question of how America would treat its prisoners after 9/11.

The reason it never dawned on me was the fact that for decades now the United States has been in a position of global leadership when it comes to the morally right position on the treatment of prisoners.

We have prided ourselves on our coauthorship of the Geneva Conventions, an international standard of conduct relative to the treatment of prisoners in a time of war. We have prided ourselves on our own Constitution which bars cruel and unusual punishment. We have said that a democracy, the one we revere, the one that is part of our very national being, is a civilized nation, a nation that will draw lines and live by those lines when others might not.

Other countries in the world think perhaps we get on a high horse sometimes when it comes to this. Each year the Department of State puts out a human rights scorecard on the world. We grade the world on issues such as torture, treatment of prisoners, treatment of political dissent, use of child soldiers, genocidal policies. The United States makes an announcement: These are the countries that are not living up to those standards. We stand in judgment of other nations. That is why it came as a surprise to me, as slowly the information trickled out from this White House and this administration, that the Bush administration was raising fundamental questions about whether we would change the way we treated prisoners, detainees in the so-called war on terrorism.

As we learned, some of the decisions of this administration were particularly troubling. They called the Geneva Conventions, which had guided us for almost half a century, quaint, and some referred to them as obsolete; they said that we had to do more when it came to terror. It appears at some point there was a change of heart in the administration and they backed off some of the early harsh language in the so-called Bybee memo and went on to revert to some standards closer to where our Nation had always been. The fact is, there was not only active discussion, but it appears there was active conduct involved in the treatment of prisoners far different than what we had said to the world was our standard of treatment and our standard of care.

I am old enough to recall the Vietnam war. I often say to groups I speak to in Illinois and other places that certain words bring certain images. When the words ``Vietnam war'' are brought to mind and I am asked of the first snapshots in my mind, the first one that presents itself is the black-and-white grainy photograph of the mayor of a South Vietnamese hamlet shooting pointblank at the head of a political prisoner. The second image is of a little girl stripped naked running down a road with her arms extended, burned from napalm. I will never get those images out of my mind.

I am afraid there are images of the war in Iraq that will stay with people for a long time as well. One of them, sadly, will be images from Abu Ghraib prison and the treatment of Iraqi prisoners. A prisoner on a stool with his head covered with a bag, his arms extended with electrodes connected; I am afraid that is an image that will be with us for a long time and in the minds of many will be an unfair characterization of America and what we are about.

That was one of the reasons why I could not vote for the nomination of Attorney General Gonzales. I knew he was complicit in these conversations, these policies, this change when it came to the issue of torture. I find it difficult to rationalize how a person whose job it is to uphold the rule of law could be party to that.

Now comes a vacancy, an opportunity to consider a successor--Judge Michael Mukasey, former Federal judge from New York, a person who has given his life to the law, an extraordinarily gifted, talented, able jurist, who left the bench for private practice. Some have described Judge Mukasey as aspiring to the role of caretaker because it is a year and a few months away from the President's end of office. But the person confirmed to fill that job has a much bigger responsibility than caretaker. He will bear a heavy burden of doing his part to restore honor and dignity to the Department of Justice.

I believe Michael Mukasey could do that if he not only brought the skills of a judge and the administrative skills that he might bring to the job, but also brought with him a clear break from Attorney General Gonzales's views on the issue of torture. It is the Attorney General's role to uphold the law and American values. Former Attorney General Gonzales failed in that role.

The late historian Arthur Schlesinger, Jr. said this about the Justice Department's legal defense of torture:

No position taken has done more damage to the American reputation in the world--ever.

That is a powerful statement from a man who made his life as a historian and close adviser to President John Kennedy and close confidant of many others at the highest levels of public life, to say that no position taken has done more damage to America's reputation in the world than this administration's position on torture.

Judge Mukasey has a distinguished record. I had hoped his background as a member of the Federal judiciary would give him the independence and integrity necessary for the job of Attorney General. On the first day of his testimony I was so relieved and refreshed; he answered questions. He didn't say ``I don't know'' and duck and dodge. When confronted with hard questions, such as will you be prepared to walk away from this President if asked to do something that you feel inconsistent with the Constitution and laws of the land, he was resolute and firm in his answers. I thought maybe this is the right person. This is a man who, because of his background and station in life, doesn't need this job but would take it for public service and be willing to stand up for principle. It was so refreshing.

Then came the second day of questions. I had a chance to ask him a question toward the end of the hearing. The room was almost empty. People had come to the conclusion on the second day that it was a foregone conclusion that Judge Mukasey would be approved as the nominee by the Judiciary Committee and submitted to the Senate. I asked him late in the questioning about the issue of torture. In fact, I was specific. I went beyond the general questions of torture because the administration said clearly: We do not have a policy of torture. We don't engage in torture.

I then went to specific forms of torture, things that have been done to prisoners in detention over the centuries which are commonly regarded as torture. I asked him about waterboarding. Judge Mukasey refused to answer the question and said:

I don't know what's involved in the technique. If waterboarding is torture, torture is not constitutional.

SHELDON WHITEHOUSE of Rhode Island is my colleague. He called this response by Judge Mukasey ``a massive hedge.'' I think Senator Whitehouse was kind. For those who heard his remarks a few minutes ago, I told him it was one of the most powerful statements I had heard as a Senator in analyzing the challenge we now face on the Judiciary Committee with this nomination.

I had hoped I would have heard from Judge Mukasey words that were spoken to me and to the committee and to America by people who have given their lives to considering this difficult topic.

Retired RADM John Hutson, former Navy Judge Advocate General, testified at Judge Mukasey's confirmation hearing. He was asked about Judge Mukasey's statements and position on waterboarding. This is what he said:

Other than, perhaps the rack and thumb screws, water-boarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish Inquisition. It has been repudiated for centuries. It's a little disconcerting to hear now that we are not quite sure where waterboarding fits in the scheme of things. I think we have to be very sure where it fits in the scheme of things.

Those are the words of Admiral Hutson. I was troubled by Judge Mukasey's position on waterboarding. I joined with all of my Democratic colleagues in the Judiciary Committee and sent him a letter. I wanted to give him a fair opportunity to reflect on the questions and his answers and to give us a complete statement of his views on this issue. I felt it was important and only fair to give him that chance. Last night we received his reply. To say the least, it was disappointing. We asked Judge Mukasey a simple, straightforward question. Is waterboarding illegal? His response took four pages. In it was very little.

He said waterboarding was ``on a personal basis, repugnant to me.'' But he refused to say whether waterboarding was illegal because ``hypotheticals are different from real life'' and it would depend on ``the actual facts and the circumstances.''

With all due respect, that is an evasive answer. Frankly, while Judge Mukasey has not been confirmed yet, that answer sounds too reminiscent of his predecessor. For the past 5 years, whenever we have asked the administration whether torture techniques such as waterboarding are illegal, they always have the same response: That is a hypothetical question, and it depends on the facts and circumstances.

Let's be clear. Waterboarding is not a hypothetical. Waterboarding or simulated drowning is a torture technique that has been used at least since the Spanish Inquisition and is used today by repressive regimes around the world. I have come to the floor, Senator McConnell has come to the floor, and many others, to decry what is happening in Burma today where the military junta is not only killing innocent Burmese people in the streets but engaging in torture and detention of citizens who are only trying to speak their heart. The Burmese military has reportedly used waterboarding against democracy activists as they violently repressed demonstrations in recent weeks. Whether waterboarding is torture is certainly not a hypothetical question to these Burmese democracy activists. These are some techniques that are so clearly illegal that it doesn't depend on facts and circumstances. They should always be off limits. Would it depend on the facts and circumstances whether it is torture to pull out someone's fingernails? Do you want to know more? Would it depend on facts and circumstances whether rack-and-thumb screws are torture?

Judge Mukasey refused to say whether waterboarding is illegal, but many others have answered this question and they didn't need four pages to do it. Following World War II, the United States prosecuted Japanese military personnel as war criminals for waterboarding American servicemen. The Judge Advocates General, the highest ranking military lawyers in each of the U.S. military's four branches, told me unequivocally waterboarding is illegal.

To take one example, BG Kevin M. Sandkuhler, Staff Judge Advocate to the Commandant of the Marine Corps, stated:

Threatening a detainee with imminent death, to include drowning, is torture.

Senator JOHN MCCAIN, a Republican colleague from Arizona, who knows more than anyone on this floor about being a prisoner and being treated as a prisoner, spoke to this issue with credibility and clarity. This is what he said of waterboarding:

In my view, to make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture, very exquisite torture.

Earlier this week Senator McCain was asked about Judge Mukasey's refusal to say whether waterboarding was torture. This is how he responded:

Anyone who says they don't know if waterboarding is torture or not has no experience in the conduct of warfare and national security.

Senator JOHN WARNER, one of the authors of the Military Commissions Act, during the floor debate on the same legislation said that waterboarding is ``in the category of grave breaches of Common Article 3 of the Geneva Conventions'' and would be ``clearly prohibited'' by the Military Commissions Act.

Our own State Department has long recognized that waterboarding is torture and cruel, inhuman and degrading treatment. The State Department has repeatedly criticized other countries for using waterboarding in its annual Country Reports on Human Rights Practices.

How can we on one hand say our Secretary of State is going to look at the conduct of the world and issue a report every year and find that if they are engaged in waterboarding and the torture of prisoners, they have violated human rights, and have a nominee for Attorney General of the United States of America uncertain until he knows a little bit more about the facts and circumstances surrounding the use of waterboarding?

It is important to note that although Judge Mukasey was equivocal and evasive on the issue of waterboarding, there were other issues he was happy to volunteer strong opinions on. For example, I asked him whether he believes the Second Amendment secures an individual right to bear arms. Unlike waterboarding, which is widely condemned, this is an unsettled legal question.

The Bush administration takes the position that the Second Amendment protects an individual right to bear firearms, but that view has been rejected by most Federal appeals courts and conflicts with the holding of the U.S. Supreme Court in United States v. Miller. Judge Mukasey did not hesitate and ask for facts and circumstances. He said:

Based on my own study, I believe that the Second Amendment protects an individual right to keep and bear arms.

On this contentious, debated, constitutional issue about the Second Amendment, he wasted no time coming to a legal conclusion. But when it comes to the issue of waterboarding he refuses.

Every reason Judge Mukasey has offered in his letter to us for his failure to take a position on waterboarding falls short. He says he has not been briefed on the administration's interrogation programs. Isn't it ironic, because if he were briefed, he would have refused to answer the question, saying it is classified. What I am asking about are basic principles, and he refuses to answer.

Now he argues he cannot answer the question because he has not been briefed. As we made clear in our letter, we are not asking Judge Mukasey's views of the administration's interrogation program. We are asking him for his personal opinion on waterboarding.

He also argues he cannot take a position on waterboarding because it would ``provide our enemies with a window into the limits or contours of any interrogation program.''

With all due respect, what does that say about us? If you would go to the Internet now and run a search on the term ``waterboarding,'' you would find there are 18 million references to it--18 million. This is not a term shrouded in mystery. It is a term well known and well discussed across the world.

If the argument is being made by Judge Mukasey that we want to leave our enemies in doubt as to whether we engage in waterboarding, what does it say about us? If the United States does not explicitly and publicly condemn waterboarding, it is certainly more difficult to argue that enemy forces cannot use the same tactics. That has always been the gold standard. If this tactic of interrogation were applied to an American soldier, would the United States cry foul? Would we say it is torture, cruel, inhuman, and degrading?

There is no doubt in my mind we would say any American soldier subjected to waterboarding is a victim of torture. We said it after World War II, and we prosecuted those Japanese military officials responsible.

Why now in the 21st century is there any doubt in Judge Mukasey's mind? Sadly, if the Senate confirms Judge Mukasey, it will tell the world the American Attorney General has not made up his mind about a form of torture that has been repudiated for centuries.

Many of us have a vision of America after this administration. We look beyond January 20, 2009. We hope we will live in a better and safer world. We hope the next President, whoever that may be, will rebuild alliances with countries that have stood by our side through thick and thin throughout our history--countries which are now estranged by the policies of this administration.

We hope whoever the next President will be, that person will seek to restore the image of America in the world, tell people who we are, because many have such wrong and bad impressions of this great Nation. We certainly expect the next President to reestablish the values that define us: fairness and justice, clarity of purpose--a caring nation, dedicated to peace.

When the history of this war on terror and this Bush administration is written, I am afraid many of the actions of this administration will fall into a sad and regretful category--a category that includes the suspension of habeas corpus during the Civil War, the Sedition Act of World War I, the Japanese internment camps in World War II, the Army-McCarthy hearings of the Cold War, the enemies list of the Nixon administration--overreactions by a government so consumed with the idea of security that that government lost its way when it came to our basic and fundamental values.

We cannot lose our way when it comes to the choice of the next Attorney General. As good a person as he may be, his response to this question--this basic and fundamental question on policies of the interrogation of prisoners leaves me no alternative but to oppose Judge Mukasey's nomination to be Attorney General of the United States.

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