Statement Of Sen. Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On The Nomination Of Michael B. Mukasey

To Be Attorney General Of The United States

Burlington, Vermont

Friday, November 2, 2007
 

Nothing is more fundamental to our constitutional democracy than our basic tenet that no one is above the law. 
 

This Administration has undercut that precept time and time again.  We have seen this Administration promote immunity over accountability, secrecy over responsiveness to congressional oversight, and unilateral power over the checks and balances that have defined this Nation and protected Americans’ rights and freedom for more than two centuries. 
 

This Administration’s corrosive view that the President is above the law and may override the law as he chooses is about as extreme a view of executive power as I have witnessed.  That not only is dead wrong in constitutional terms, but it is extremely dangerous to our republic.  The cost to American liberty, to our standing in the world and to the security of our soldiers and citizens is staggering — even more than the trillion dollar cost of the war in Iraq.  The Administration has compounded its lawlessness by cloaking its policies and miscalculations under a veil of secrecy, leaving Congress, the courts and the American people in the dark about what they are doing.

 

It is the duty of the Attorney General to uphold the Constitution and the rule of law — not to try to bend the law to a President’s agenda.  When the infamous Bybee Memo came to light, even this Administration had to formally withdraw it.  Yet I am concerned that the defining down of torture, of the rule of law and of American values continues in this Administration. 
 

The United States and its Attorney General must stand for the rule of law – and stand in the breach, if need be.  There is no question in my mind that waterboarding is torture and is illegal under our laws and treaty obligations. 
 

This issue is not new.  It was an important factor in my vote against the previous nomination of Alberto Gonzales.  At that time I noted that when we came into Iraqi prisons and found torture, America’s standing to object was sorely compromised.  This week we hear reports of the militia of Muqtada al-Sadr showcasing torture victims.  The searing photographs from Abu Ghraib have made it harder to create and maintain the alliances we need to prevail against those who threaten us.  Those abuses serve as recruiting posters for the terrorists.  When the United States cannot declare clearly that waterboarding is torture, that it is illegal, and that it will not be tolerated, what does that mean to other governments, and what comfort does that provide the world’s most repressive regimes?
 

To be true to America’s purpose and values, we need a government that leads the way in upholding human rights -- not one secretly developing legalistic rationalizations for circumventing them.
 

I am proud that Congress years ago passed and has stood by the Leahy Law.  It is a law that requires our government to end assistance to any foreign security force unit if the Secretary of State has credible evidence that it has committed a gross violation of human rights, unless that government is taking effective measures to bring the responsible individuals to justice.  What kind of double standard does America set if we cannot declare waterboarding to be illegal?

If an American was captured and waterboarded, would we consider it torture and want to raise bloody hell about it?  Of course we would.
 

There are fundamental issues that require moral and legal clarity, and the willingness to act on our convictions -- and this is one of them.  The United States does not torture.  The United States does not inflict cruel, inhuman, and degrading treatment.  This is part of the moral fiber of our country and our historical place as a world leader on human rights, and it has long been fixed in our laws, our constitution, and our values. 
 

It was true when General George Washington insisted that America’s troops treat British soldiers humanely.  It was true when President Theodore Roosevelt acted in 1902 to first court martial and then dismiss an American general for allowing his troops to engage in water torture in the Philippines.  Teddy Roosevelt, the former Rough Rider and war hero, wrote:  “Great as the provocation has been in dealing with foes who habitually resort to treachery, murder and torture against our men, nothing can justify the use of torture or inhuman conduct of any kind on the part of the American Army.”  He was right.  No one acting on behalf of the United States should stoop to the level of those in human history who have resorted to torture.
 

There may be interrogation techniques that require close examination and extensive briefings.  Waterboarding is not among them.  No American should need a classified briefing to determine whether waterboarding is torture.  Waterboarding was used at least as long ago as the Spanish Inquisition.  We prosecuted Japanese war criminals for waterboarding after World War II.
 

As Rear Admiral John Hutson, former Judge Advocate General of the Navy, testified this year before the Judiciary Committee:  “Other than perhaps the rack and thumbscrews, water-boarding is the most iconic example of torture in history.…  It has been repudiated for centuries.  It’s a little disconcerting to hear now that we’re not quite sure where water-boarding fits in the scheme of things.  I think we have to be very sure where it fits in the scheme of things.”  Unquote.
 

Judge Mukasey was not asked to evaluate any secret “facts and circumstances.”  He was asked whether waterboarding is illegal.  Our law makes torture illegal, and waterboarding is torture, and it is illegal.  It is frankly not dependent on any, quote, “relevant facts and circumstances of the technique’s past or proposed use.” 

 

When it comes to our core values – the things that make our country great and that define America’s place in the world – these values do not waver from president to president.  America should continue to stand against torture.
 

I agree with Senator John McCain, who sadly knows too much about the issue of torture.  He said recently:  “Anyone who knows what waterboarding is could not be unsure.  It is a horrible torture technique used by Pol Pot and being used on Buddhist monks as we speak.”  No presidential signing statement or secret Administration memo can be allowed to change our laws’ prohibitions against waterboarding. 
 

The America I grew up in has been a beacon to the world, standing for human rights and calling out the tyrants and despots who abuse them.  Like Americans across the land, when we were growing up, Vermonters knew instinctively that it is hard to defend the moral high ground by taking the low road.
 

I am eager to restore strong leadership and independence to the Department of Justice.  I like Michael Mukasey.  I wish that I could support his nomination.  But I cannot.  America needs to be certain and confident of the bedrock principle – deeply embedded in our laws and our values – that no one, not even the President, is above the law.   
 

Accordingly, when the Judiciary Committee considers this nomination on Tuesday, I must vote no on this nomination.