Hearing of the Senate Committee on the Judiciary- Mark Up to Vote on the Nomination of Michael Mukasey to be Attorney General of the United States
Statement
Hearing of the Senate Committee on the Judiciary- Mark Up to Vote on the Nomination of Michael Mukasey to be Attorney General of the United States
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SEN. RICHARD DURBIN (D-IL): Thank you, Mr. Chairman.
Mr. Chairman, Judge Mukasey has a distinguished record of public service and speaks with clarity on the law but for one issue.
His nomination hinges on that issue, the cruel, inhuman and degrading treatment of prisoners held by the American government. On that issue, the late historian Arthur Schlesinger, Jr., said this about the Bush administration's legal defense of torture, and I quote: "No position taken has done more damage to the American reputation in the world ever." End of quote.
Alberto Gonzales was an architect of the administration's torture policy. As White House counsel, he recommended the president set aside the Geneva Conventions, characterizing them as, quote, "quaint and obsolete." And he requested and disseminated the infamous torture memo that limited the definition of torture to abuse that causes pain equivalent to organ failure and death. In light of this outrage by our former attorney general, there is a heavy burden on Judge Mukasey to make his views on torture clear. I'm sorry to say he's fallen short.
During his confirmation hearing, I asked Judge Mukasey whether the torture technique known as waterboarding is illegal. He refused to answer the question. To give Judge Mukasey a chance to clarify his views on waterboarding, I wrote a letter which all 10 Democratic members of the committee signed, and we asked him a simple, straightforward question: "Is waterboarding illegal?" Judge Mukasey refused to say whether waterboarding was illegal because, quote, "hypotheticals are different from real life," close quote, and it would depend on, quote, "the actual facts and circumstances," close quote.
Waterboarding is not a hypothetical. Waterboarding or simulated drowning is a torture technique that dates back to the Spanish Inquisition. Today it is being used by the government of Burma against democracy activists.
There are no facts and circumstances which would condone waterboarding. The judge advocates general, the highest ranking military lawyers in each of the U.S. military's four branches, testified unequivocally that waterboarding is illegal and violates Common Article 3 of the Geneva Conventions.
Following World War II, the United States prosecuted Japanese military personnel as war criminals for waterboarding U.S. prisoners. Would any of us stood still for the concept that, well, we need to know the facts and circumstances of how they happened to waterboard American soldiers? We knew what waterboarding was -- also known as the water cure -- and we branded it a war crime.
Our own State Department has long recognizing -- has long recognized waterboarding as torture. Cruel, inhuman and degrading. And we each year publish a human rights report for the world to read in which we characterize those countries, like Sri Lanka and Tunisia, that use waterboarding as outside the bounds of acceptable human rights behavior.
In a recent statement, Senators McCain, Warner and Senator Graham said, and I quote, "Waterboarding under any circumstances represents a clear violation of U.S. law. Anyone who engages in this practice on behalf of any U.S. government agency puts himself at risk of criminal prosecution." End of quote. Three Republican senators, the judge advocates general and our State Department did not need to be briefed on the administration's interrogation program to conclude waterboarding is illegal. Neither should Judge Mukasey. And because he's not been briefed, offering his opinion on waterboarding won't give away any secrets.
What's the risk if we don't speak clearly on the issue of waterboarding? By what moral authority could we then condemn those -- like the repressive government of Burma -- that use this technique? And how can we speak as a nation with moral clarity in demanding that American soldiers never be subjected to waterboarding if we allow our attorney general to bob and weave when asked a single straightforward question?
Let me address this notion that Judge Mukasey should be spared from offering a straight answer because our laws and policies are unclear.
America's position on waterboarding was clear enough to convict Japanese soldiers who tortured American soldiers during World War II and clear enough for this administration to condemn waterboarding by other countries in the State Department's Annual Human Rights Report.
Some argue that we owe it to Judge Mukasey to pass additional legislation on the subject so that he can clearly understand what the law is on waterboarding. I think the law is as clear as it can be. It was clear enough for us to convict a Japanese soldier of a war crime for using it. Judge Mukasey's position on waterboarding is troubling. It's not the only concern I have.
I asked about torture techniques other than waterboarding, including painful stress positions, threatening detainees with dogs, forced nudity and mock execution. Now the Judge Advocates General told me that each of these was illegal, but Judge Mukasey said the exact same thing about these torture techniques as he did about waterboarding, that they are, quote, "hypothetical" and whether they're legal would depend on, quote, "the actual facts and circumstances."
Judge Mukasey is not alone in this legal dodge. During a July 24th hearing, I asked Attorney General Gonzales whether it would be legal for a foreign government to use torture techniques on an American citizen. He said -- and I quote -- "It would depend on circumstances, quite frankly." Judge Mukasey also refused to say whether he agrees with President Bush, Secretary of State Condoleezza Rice and Defense Secretary Robert Gates that the Guantanamo Bay detention facility should be closed. Instead he told me that Guantanamo is, in his words, "a fright wig used by the administration's critics" and that the detainees at Guantanamo receive -- and I quote -- "three hots and a cot, health care better than many Americans and taxpayer-funded Korans."
There are serious questions as well about the involvement of a controversial Justice Department nominee, Steven Bradbury, in defending illegal spying and torture, but Judge Mukasey had this to say about Mr. Bradbury, quote, "It's my understanding that Mr. Bradbury is a highly competent and dedicated public servant," end of quote. When I asked about the nine fired U.S. attorneys, Judge Mukasey punted and said, quote, "I'm not sufficiently aware of the job performance of these individuals to offer comment."
In contrast to his refusal to comment on the legality of waterboarding, Judge Mukasey was willing to reach other legal conclusions. Take an example -- the controversial issue of retroactive immunity for telecom providers who participated in the NSA warrantless surveillance program. Although he's not been briefed on the facts and circumstances of this highly classified program, Judge Mukasey nonetheless stated -- and I quote -- "Retroactive immunity, in my judgment, would appear appropriate." Another unsettled legal question, whether the Second Amendment secures an individual's right to bear arms. Judge Mukasey told me, quote, "Based on my own study, I believe the Second Amendment protects an individual's right to keep and bear arms," end of quote.
In other words, Judge Mukasey agrees with the Bush administration when it comes to retroactive immunity and the Second Amendment. Why is he willing to take a position on these controversial issues but unwilling to take a position on waterboarding? Some have argued that President Bush won't nominate anyone who will speak clearly on this issue of torture, perhaps that's true, but I'd much rather have an acting attorney general for the next 14 months than have the Senate give its consent to an attorney general nominee who refuses to repudiate a cruel, abusive technique that has been regarded as torture in the civilized world for over 500 years.
Finally, many of my colleagues and editorial writers argue that the fate of Judge Mukasey should not be decided by this one issue. But many of us have said that some issues, like race and the equality of women, really are so fundamental they transcend so many other issues. When the history of this time is written, the issue of torture will define America's values in the age of terrorism. Judge Mukasey's responses to our questions on the issue of torture make it clear that he does not understand the challenge of this moment in history.
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