After months of stonewalling by this
Administration, we are still trying to uncover the truth about the abuse
of prisoners in U.S.
custody overseas. I have long said that somewhere in the upper reaches of
the executive branch a process was set in motion that rolled forward until
it produced this scandal. To date, senior Administration officials have
avoided any accountability for these atrocities – confirming them to
presidential appointments would only underscore this Senate’s willingness
to ignore its oversight responsibility.
Last year, the Senate was asked to consider
the nomination of Jay Bybee to the Ninth Circuit Court of Appeals. During
Mr. Bybee’s nominations proceedings many Members of the Judiciary Committee
questioned him about his legal work -- as Assistant Attorney General for
the Office of Legal Counsel (OLC) at the Justice Department -- on issues
concerning interrogation techniques, the applicability of the Geneva
Conventions to individuals in U.S. custody, and the legal underpinnings of
the fight against terror. His answers were non-responsive. For example,
when I asked him to discuss his thinking about the status of detainees, Mr.
Bybee responded: “As an attorney at the Department of Justice, I am
obligated to keep confidential the legal advice that I provided to others
in the executive branch. I cannot comment on whether or not I have
provided any such advice and, if so, the substance of that advice.” One of
the nominees on our agenda today, Mr. Nahmias, has provided similar
responses to me today on similarly crucial issues.
Despite these non-responsive answers, Mr.
Bybee’s nomination was strongly pushed by the Administration and he
promised the Senate that he would be fair and impartial. So, he was
confirmed to a lifetime position on the Ninth Circuit by the Senate on
March 13, 2003 by a vote of 74-19.
Since his confirmation, we have learned of
the “torture memo” that he signed in August 2002, while his nomination was
pending for consideration by the Senate. In this memo he advised the
President that he could ignore laws forbidding torture, in violation of
international law, and that individuals acting pursuant to the president’s
commander-in-chief authority could be shielded from prosecution under U.S.
torture statutes and the U.N. Convention Against Torture for torturing
detainees. Mr. Bybee’s aggressive and partisan legal work for the
President apparently earned him a promotion to a lifetime job on the
federal bench.
Now, however, with the scandal surrounding
his recommendations, the Bush Administration has repudiated the memo and
senior Justice Department officials have said that the memo would be
withdrawn and rewritten. However, as a group of lawyers, including 12
former presidents of the American Bar Association and several former
federal judges, wrote in a memorandum to the President in August, this
subsequent repudiation “coming after public outcry, confirms [the Bybee
memo’s] original lawless character.”
Unfortunately, because of his evasiveness,
we did not know about a significant part of his record – and his failure to
follow the law – prior to his confirmation. Had Mr. Bybee’s role in
sanctioning cruel, inhumane and degrading treatment and abandoning the rule
of law been known before his confirmation, the Senate would not have
accepted his promise that he would simply follow the law. His job at the
Justice Department was akin to a judicial role in which he was supposed to
advise the President on what the law was, not what the President wanted it
to be. Mr. Bybee distorted the law to conclude what he wanted to conclude
and give the President unchecked authority to authorize barbaric acts.
The record of Mr. Bybee should give us all
pause in considering Mr. Nahmias’ nomination today. That record
demonstrates that when we confirm individuals in this Administration who do
not candidly describe their role in considering crucial legal issues we
take too great a risk. New information has come to light since Mr. Bybee’s
confirmation – information that the nominee failed to disclose to the
Senate during his consideration – that should serve as a lesson to us as we
consider the nomination of David Nahmias.
We are asked to consider the nomination of
David Nahmias to serve as a U.S. Attorney in Georgia. Mr. Nahmias has held
senior positions at the Department of Justice and unequivocally supported
broad executive power in the war on terror – positions that the Supreme
Court has soundly rejected. At the Department of Justice, he has worked on
the legal underpinnings of the President’s war against terror and given
speeches about enemy combatants and the applicability of the Geneva
Conventions, among other issues.
In speeches, he has unequivocally supported
the President’s authority as Commander in Chief to designate and detain
suspected terrorists, including American citizens, as enemy combatants
without judicial review by an Article III court. In the case of the
American citizens detained as enemy combatants, he argued that there was no
reason for judicial review of their detentions because they, “received the
absolute ultimate executive branch process,” because the “President of the
United States, operating as the Commander-in-Chief, personally reviewed
their cases, and personally designated them as enemy combatants.” The
Supreme Court strongly rejected this position this year and held that the
detainees in Guantanamo Bay and U.S. citizens being held as enemy
combatants have the right to challenge their detentions in federal courts.
Mr. Nahmias has also made other troubling
comments – such as saying that having hearings for enemy combatants would
undermine national security; and that what is “unusual about the military
commissions” is “the amount of procedural protection that’s being offered
in those commissions compared to the way they work historically and in
other parts of the world.”
I asked Mr. Nahmias questions about his
views on the rights of enemy combatants, his role in investigating,
approving, or otherwise reviewing rules, procedures, or guidelines
involving the interrogation of individuals held in the custody of the U.S.
government or an agent of the U.S. government, and his role in the
prosecution of domestic terrorism cases. His original answers were largely
non-responsive, despite the number of words used, and I sent him further
questions to clarify his record and views. Again, he failed to provide
complete responses.
For example, I asked him about his role in
the development or review of advice from the Office of Legal Counsel on the
interrogation of detainees, a serious and important issue to this Senate
and the American people. As we all now know, Mr. Bybee’s torture memo was
written during Mr. Nahmias’ tenure at the Department. This memo redefined
torture to allow all sorts of brutal treatment (such as mock burial alive,
simulated drowning, electrocution, tearing off of fingernails, and other
such barbaric treatment) so long as the pain caused is not akin to organ
failure, and concluded that, as commander in chief in the war against
terror, the President and federal agents are not constrained by anti-terror
laws.
Before confirming Mr. Nahmias to this
important appointment, Senators should know what role he played in the
development of this policy. We should know what role he continues to play
in these matters. This is an area where bipartisan leaders and attorneys
have called for increased Senate oversight and action. Unfortunately,
however, Mr. Nahmias decided to give us as limited information as possible
while on its face appearing to answer the question. He does not thoroughly
describe his communications with OLC, the nature of his work, or what he
was asked to do. Instead, he writes, “While I have participated in
portions of that internal deliberative process [related to the
interrogation of detainees], it would not be appropriate for me to comment
in detail about my involvement in the process.”
U.S. Attorneys serve as the nation’s lead
prosecutors and conduct most of the work in which the United States is a
party and should not be selected merely on the basis of partisan loyalty.
Mr. Bybee’s nomination reminds us of the importance of careful review, and
tells us something about the sort of individuals President Bush is
selecting. In his case – and the case of some of the other 200 nominees
confirmed for President Bush – the Senate has perhaps acted too promptly to
confirm nominees with questions remaining in their records.
Despite two rounds of questions, I still do
not know the full extent of Mr. Nahmias’s role in the review of
interrogation procedures for detainees, and whether he worked to sanction
cruel, inhumane and degrading treatment, or assisted in the distortion of
the rule of law to give the President unlimited authority. For this
reason, I cannot support his nomination today.
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