Statement Of Senator Patrick Leahy
Chairman, Senate Judiciary Committee
On The Nomination Of Michael B. Mukasey
To Be Attorney General Of The United States

November 8, 2007 

This debate has boiled down to a discussion of principles that are as vital to American ideals and to the American soul as is the fleeting issue of who will act as the Attorney General for the next 14 months.  During the Judiciary Committee’s consideration of this nomination earlier this week, Senators Kennedy, Kohl, Feingold, Durbin, Cardin, Whitehouse and I made clear the fallacy that would disregard settled law and discredit America’s role in the struggle for liberty and human dignity. 

On the way to rationalizing support for a particular nominee or a particular bill, it may be tempting – just this once, we might tell ourselves – tacitly to abet the arguments of those who want to define torture down.  Whatever the temptation, we must not rationalize away our core American ideals, the rule of law, and the principle that in America, no one – not even a President – is above the law.

This President and Vice President should not be allowed to violate our obligations under the Convention Against Torture and the Geneva Conventions, or disregard U.S. statutes such as our Detainee Treatment Act and War Crimes Act.  They should not be allowed to overturn more than 200 years of our Nation’s reverence for human rights and moral leadership around the world.

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.  The President says that we do not torture, but had his lawyers redefine torture down in secret memos, in fundamental conflict with American values and law. 

Again, just yesterday, I wrote to the White House counsel, reiterating my earlier requests for this Administration’s secret, purported justifications for having Americans engage in waterboarding and other treatment that would violate our Nation’s obligations and values.

I agree with the Generals, the Admirals, and our JAG officers that waterboarding is torture and is illegal.  They write with absolute clarity: “Waterboarding is inhumane, it is torture, and it is illegal.”  They also quote the sitting Judge Advocates General of the military services from our Committee’s hearing last year in which they unanimously and unambiguously agreed that waterboarding is inhumane, illegal and a violation of law.

If an American were waterboarded anywhere in the world, no Senator and no American would have to know the “circumstances” and purported justifications for it before condemning it. Tragically, this Administration has so twisted America’s role, law and values that apparently our own State Department is now ordered that it cannot say that waterboarding of an American is illegal.  That is how far we have sunk.

Senior State Department legal officers are told that waterboarding, which has been recognized as torture for the last 500 years, is a “technique” they cannot rule out as something that a foreign intelligence service might be justified in using against Americans.  Never mind that President Teddy Roosevelt prosecuted Americans soldiers for this more than 100 years ago.  Never mind that we prosecuted Japanese soldiers for waterboarding Americans during World War II.  Never mind what repressive regimes are doing to this day around the world.  It is appalling.  

When it comes to our core values – the things that make our country great and that define America’s place in the world – it does not depend on the “circumstances.”  America, the great and good Nation that has been a beacon to the world on human rights, does not torture and should stand against torture. 

Torture should not be what America stands for.  Indeed, the better example is set by the Army Field Manual, which instructs our forces to consider how we would react if what a soldier was about to do to someone was done to an American soldier.   Sadly, when I cited this very standard in a written question to Judge Mukasey and asked if it would be an abuse if a foreign country waterboarded an American, the nominee sidestepped the question and failed to condemn even the waterboarding of Americans.

In their recent letter to the nominee, Senators Warner, McCain, and Graham do not take that approach.  They recognize, as I do and as I hope all Senators do, that:  “Waterboarding, under any circumstances, represents a clear violation of U.S. law.” 

And when the Administration and others say that we cannot state whether America waterboards people because it would “tip off” our enemies, they have it precisely wrong.  That is about as effective as Saddam Hussein hinting that he had weapons of mass destruction when he did not in order to impress his enemies.  In refusing to say that we do not waterboard prisoners, we give license to others.  When the United States cannot state unequivocally that waterboarding is torture and illegal and will not be tolerated, what does that mean for other governments, and what comfort does that provide the world’s most repressive regimes? 

Some have sought to find comfort in Judge Mukasey’s personal assurance that he would enforce a future, new law against waterboarding if this Congress were to pass one.  Unsaid, of course, is the fact that any such prohibition would have to be enacted over the veto of this President.  But the real damage of this argument is not its futility.  The real harm is that it presupposes that we do not already have laws and treaty obligations against waterboarding.  In fact, we do.  No Senator should abet this Administration’s legalistic obfuscations by those such as Alberto Gonzales, John Yoo, and David Addington by agreeing that the laws on the books do not already make waterboarding illegal.  We have been properly prosecuting water torture for more than 100 years. 

Our laws and our values do not permit this to be an open question or one that depends on who is doing the waterboarding.  That is a prescription for disaster.  That is what heightens the risks to American citizens and soldiers around the world and gives repressive regimes comfort.  That is something I will not do.

I wish that I could support Judge Mukasey’s nomination.  I like Michael Mukasey. But this is an Administration that has been acting outside the law and an Administration that has now created a “confirmation contortion.”  When many of us voted to confirm General Petreas, the Administration turned around and, for political advantage, tried to claim that when we voted to confirm the nominee, we also voted for the President’s war policies.  Just as I do not support this President’s Iraq policy, I do not support his torture policy or his views of unaccountability or unlimited Executive power. 

No one is more eager to restore strong leadership and independence to the Department of Justice than I.  What we need most right now is an Attorney General who believes and understands that there must be limitations on Executive power.  America needs to be certain of the bedrock principles in our laws and our values that no President and no American can be authorized to violate.  That is why I will vote no on the President’s nomination.

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