Congressional Record Statement
Senator Patrick Leahy
On The Nomination Of Michael B. Mukasey
To Be The Attorney General Of The United States
November 8, 2007

Mr. LEAHY. I thank the Chair.

Mr. President, this debate is as much a discussion of principles that are vital to American ideals and to the American soul as it is a debate about who is going to 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, something we should all support.

On the way to rationalizing support for a particular nominee, just as with rationalizing support for a particular piece of legislation, it may be tempting this once--just this once, we might tell ourselves--tacitly to abet the arguments of those who want to define torture down to make it something less. Whatever the temptation--whatever the temptation, this once--we cannot rationalize away our core American ideals, the rule of law, and the principle that in America, not even the President is above the law.

The President and Vice President should not be allowed to violate our obligations under the Convention Against Torture and the Geneva Conventions, should not be allowed to 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. They left the Congress, they left the courts, and, most importantly, they left the American people in the dark about what they were doing. The President says we do not torture, but then he had his lawyers redefine ``torture,'' and he had them do that in secret memos, in fundamental conflict with American values and law.

Again, yesterday, I wrote to the White House counsel reiterating my earlier request 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 ask unanimous consent to have printed in the Record a copy of my most recent letter to Counsel Fielding on this point.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

PDF Available.

Mr. LEAHY. Mr. President, I agree with the generals, the admirals, and the judge advocates general that waterboarding is torture and is illegal. The generals, the admirals, the judge advocates general say waterboarding is torture and illegal.

I ask unanimous consent to have printed in the RECORD a copy of a letter I received from MG John Fugh, RADM Don Guter, RADM John Hutson, and BG David Brahms, dated November 2.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

PDF Available.

Mr. LEAHY. Mr. President, these distinguished military officers, flag officers, people who are charged with knowing what is our law, what is our Constitution, what are our treaty commitments, and what are the rules our military must follow, write with absolute clarity, and I quote the significant sentence from their letter:

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, it is illegal, it is a violation of law.

Think for a moment, if another nation picked up an American and waterboarded that American and we heard about it; no Senator, no American would have to know the circumstances and the purported justifications for it. We would condemn it. All 100 of us would be on the floor condemning it, and 435 members of the other body would be condemning it. Whoever was President of the United States would condemn it. But you know what, that was before this debate began, and now, tragically, this administration has so twisted America's role and our laws and values that apparently our own State Department is now ordered they cannot say that waterboarding of an American is illegal.

Mr. President, that is how far we have sunk. I ask unanimous consent to have printed in the Record a copy of a letter I sent to Secretary Rice protesting this order.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

PDF Available.

Mr. LEAHY. Mr. President, senior State Department legal officers are told that waterboarding, which has been recognized as torture, not for the last 10 years or 50 years or 100 years, but has been recognized as torture for the last 500 years, is a ``technique'' they cannot rule out as something a foreign intelligence service might be justified in using against Americans. This is ``Alice in Wonderland.''

Never mind that President Teddy Roosevelt, no shrinking violet he, prosecuted American 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, that define America's place in the world--it does not depend on the circumstances; it depends on our core values. America, the great and good nation that has been a beacon to the rest of the world on human rights, does not torture, it should not stand for torture, and it should stand against torture.

I ask unanimous consent to have printed in the Record a copy of a letter I received from the National Religious Campaign Against Torture, dated November 1.

There being no objection, the material was ordered to be printed in the Record, as follows:

PDF Available.

Mr. LEAHY. Mr. President, what do we set as an example? We lose our way on this question of torture. When America arranged to have a Canadian citizen, changing a plane in the United States on the way to Canada, sent to Syria to be tortured, what did we tell the rest of the world? I will tell you what we told the rest of the world: Here we have the outrageous conduct of President Musharraf's Government in Pakistan. He is closing down the courts, he is closing down the opposition, he is closing down the press. We have to meekly say: Please don't do that; we do send you billions of dollars in aid; please don't destroy democracy.

A Cabinet Minister in his Government was interviewed yesterday on a Canadian show. When he was asked if he was ashamed of the images the world was seeing of Pakistanis being clubbed by police in the streets, part of his reply was this: Are other countries--referring to the United States--ashamed of taking persons from another country to a third country and torturing them? Are they ashamed?

I would like to think as Americans we hold the high moral ground, but we can be lectured because we have not, by the likes of a member of the Cabinet of a despotic regime in Pakistan, and there is no answer to it. There is no answer to it because what he objects to us doing is sending a citizen of another country who was on our land to Syria to be tortured, and we have no answer to that because this administration and this Government did it.

I am proud to be an American. I am so happy my maternal grandparents immigrated to this country from Italy and gave me a chance to be an American, as did my great-grandparents from Ireland. I am proud of it. I am proud to see my children growing up as Americans, now my grandchildren, as I know the distinguished Presiding Officer whose family has been in this country much longer than mine is proud of his American heritage. But 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 is about to do to someone was done to an American soldier. How would our soldiers react if they found somebody waterboarding an American soldier? They would do everything to rescue them because it would be wrong and it would be illegal. It is not just illegal and wrong if somebody else does it, it is illegal and it is wrong if we do it.

Sadly, when I cited this very standard in a written question to Judge Mukasey and asked if it would be an abuse if another country waterboarded an American, he sidestepped the question, and he failed to condemn even waterboarding of Americans. When we found our State Department to begin to do the same, I saw a pattern.

In their recent letter to the nominee, Senators Warner, McCain, and Graham do not take that approach. They recognize, as I do and I hope all Senators do, that waterboarding, under any circumstances, represents a clear violation of U.S. law. That is what Senators Warner, McCain, and Graham said. As chairman of the Senate Judiciary Committee, I agree with them.

When the administration and others state 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, even though he did not, as he tried to impress his enemies.

In refusing to say we do not waterboard prisoners, what do we do? We end up giving 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? What comfort does that provide the world's most repressive regimes? How does it allow the United States, that hitherto has been a beacon for human rights, to criticize or lecture these repressive regimes that torture that way?

Some have sought to find comfort in Judge Mukasey's personal assurance that he would enforce a future, some kind of new law against waterboarding if Congress were to pass one. Even some in the press have used that talking point from the White House. Any such prohibition would have to be enacted over the veto of this President, a President who has not ruled out the use of waterboarding.

But the real damage in this argument is not its futility. The real harm is that it presupposes we don't already have laws and treaty obligations against waterboarding. As we know, when we enter a treaty, it becomes the law of the land. We have laws already against it. We don't need a new law. No Senator should, with any kind of clear conscience, abet this administration's legalistic obfuscations by those, such as Alberto Gonzales, who take these positions, or John Yoo and David Addington, by agreeing somehow that the laws we already have on the books do not already make waterboarding illegal. We have been properly prosecuting water torture for more than 100 years.

Vote for the nominee or vote against the nominee, but don't hide behind some kind of a cloak and say maybe we should have a law in the future. We have that law. This is as if, when somebody murders somebody with a baseball bat, they were to say: We had a law against murder, but we never mentioned baseball bats. Murder is murder; torture is torture. Our laws make both illegal, and our laws--but especially our values--do not permit this to be an open question or even one that depends on who is doing the waterboarding. We cannot say it is wrong when other countries do it but, of course, it is right when we do it because our heart is pure. That is a prescription for disaster. That is what heightens the risk to American citizens and soldiers around the world, and it gives repressive regimes comfort, and that is something I will not do.

I will not accept this fallacious argument. I will not accept this pretense that it is OK because we have not yet passed a law, when that has always been the law in the United States. It was in Theodore Roosevelt's day, it was when we prosecuted Japanese soldiers after World War II for waterboarding, and it is today.

It would be like saying we haven't a specific law for some of the things done in Abu Ghraib. Of course, we had not. We knew such actions violated every principle of our law. Are we going to say, however, it was all right because we didn't have spelled out in the law every single thought that could be raised about torture so we could specifically cite to that?

Mr. President, hasn't there been enough harm done to the United States by the images of Abu Ghraib? Hasn't there been enough harm done to the United States by this Government intentionally taking a Canadian citizen and sending that citizen to Syria to be tortured? Hasn't there been enough harm done to this country that we don't need to have Senators stand on the floor of the Senate and say: Well, maybe sometime in the future we should have a law against waterboarding, when our top military and everybody else all agree this is already against the law.

Now, I wish I could support Judge Mukasey's nomination because I like him. I like his legal abilities. I like his background as a prosecutor. He is a tough, no-nonsense prosecutor. But we are dealing with an administration that has been acting outside the law, an administration that has now created a confirmation contortion. Mr. President, I am not a moral contortionist, and I am not going to aid and abet the confirmation contortions of this administration. When many of us voted to confirm General Petraeus, the administration turned around and, for political advantage, tried to claim when we voted to confirm the general, we also voted for the President's war policies. Well, I did not vote for a war in Iraq. I voted against it. And I do not vote to allow torture. And 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. For almost 3 years, it has been leaderless. For almost 3 years, it has engaged in every single effort not to follow the law, but to find ways around the law. That has created a terrible problem of morale among the very wonderful men and women, the talented men and women who work there.

We all know what we need most right now is an Attorney General who believes and understands there must be limitations on Executive power. Whether the Executive is a Republican or a Democratic President, there have to be limitations. America needs to be certain of the bedrock principles of our laws and our values and that no President, no American, can be authorized to violate them. In America, no one is above the law. The President of the United States is not above the law. He is not allowed to place anybody else above the law. That is what has maintained this democracy for over 200 years.

When we began considering this nomination, I observed that the Department of Justice has experienced an unprecedented crisis of leadership. It is a crisis that has come more and more into view as Senator Specter and I have led a bipartisan group of concerned Senators serving on our Judiciary Committee to consider a U.S. attorney firing scandal, a confrontation over the legality of the administration's warrantless wiretapping program, and the politicization of hiring at the Department of Justice. What we have seen is not just poor leadership, but the complete breakdown of the principles that have always embodied the Department of Justice and the position of Attorney General.

For me, the issue has never been personal to Alberto Gonzales. The Judiciary Committee's investigations into the Department's many scandals were not designed to force the resignation of Alberto Gonzales, but rather to restore the integrity and the mission of the Department of Justice. My goal was not to force his resignation but to restore the Department of Justice. That the administration had him remain more than 6 months after the U.S. attorney firing scandal was known continued the harm and forestalled the restoration of order.

It was not just the fact that he lost my confidence that forced him to leave. It was not the Senate passing a resolution of no confidence. Rather it was our bipartisan efforts in which Republicans and Democrats who care about Federal law enforcement and the Department of Justice joined together to press for accountability.

The issue during the Senate confirmation of Alberto Gonzales remains today. The Department of Justice has always set out to enforce the law and to ensure that no one, not even the President, is above the law. As we consider the nomination of Michael Mukasey, we must determine what kind of Attorney General he would be and whether he will stand for the rule of law against the demands of this White House.

I began my consideration of this nomination as I did with the last Attorney General nomination, hoping to be able to support the nominee. After the hearing for the last nominee in 2005, I decided that I could not vote for the confirmation of Alberto Gonzales. I did so noting, as Justice James Iredell had in 1792, that the person who serves as Attorney General ``is not called Attorney General of the President, but Attorney General of the United States.'' This is a different kind of Cabinet position, distinct from all the others, and it requires greater independence. The departing Attorney General never understood this. Instead, he saw his role as a facilitator for this White House's overreaching policies and partisan politics.

The crisis of leadership that led to the resignation of the entire senior leadership of the Department and their staffs, as well as Karl Rove and his two top aides at the White House, has taken a heavy toll on the tradition of independence that had long guided the Department of Justice and protected it from political influence. As a former prosecutor I know that the dismay runs deep, from the career attorneys at Justice and in our U.S. attorney offices, straight down to the cops on the beat.

The Senate should only confirm a nominee who will bring a commitment to the rule of law and American liberties and values back to the Justice Department. As I have reviewed Judge Mukasey's nomination, I have found much to like. He has impressive credentials, vast experience as a lawyer and a judge, and a refreshingly straightforward manner. I liked him when I met him, and I am convinced that he is a man of integrity and would not be governed merely by personal or political loyalty.

At his hearing, he answered firmly that he would not tolerate political meddling in investigations or litigation and would end hiring based on politics, and he was clear in asserting that he would resign if the President insisted on going forward with a course of action he had found to be illegal. These were encouraging signs.

But I am concerned that he shares with this administration a view of virtually unbridled executive power and authority. In these uncertain times, it may be tempting simply to defer the Commander in Chief, but I believe that in difficult times, it is more important than ever to insist on the rule of law and the principles that have made our country unique in the world for more than 200 years. Even Judge Mukasey's strong promise to resign if the President insists on an illegal course of action loses its power if he believes the President to be largely unconstrained by law. If nothing the President can do would be illegal, there would never be an occasion for him to make such a principled stand.

That is why I was so disappointed by Judge Mukasey's answers suggesting that he sees little occasion to check the President's power. I was disturbed by his insistence that, with regard to warrantless wiretapping and the Foreign Intelligence Surveillance Act, the President has inherent authority outside of the statute and could authorize and immunize conduct contrary to the law. I fail to see a valid distinction justifying his assertion that the President could have the power of an executive override in the surveillance context, but not in the torture context, and I worry about where his reasoning could lead us.

I was disappointed in his abandoning his initial answer to parrot the White House's conclusion that a U.S. attorney could not bring a congressional contempt citation to a grand jury. That is the mechanism in the law that allows an independent court the opportunity to referee any claim of executive privilege that the executive and legislative branches could not resolve amongst themselves. He, instead, insisted that the solution in such a situation was an ``accommodation'' of the kind that this administration has been consistently unwilling to make. Once again, his position leads me to worry that he would allow this President's unprecedented assertions of power to go completely unchecked.

I was saddened to hear Judge Mukasey say that he apparently would not support habeas corpus rights for detainees, rejecting a core legal right and a basic American value which Senator Specter and I have fought so hard to restore. I was disappointed to see him echo in response to my questions the same administration policy on extraordinary rendition that has led to several disgraceful episodes for this Nation and fail to commit even to review the case of Maher Arar, a prominent and disturbing episode of rendition.

Which brings me back to the issue that came to dominate the consideration of this nomination, the issue of torture. 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.

That is why I was so saddened when Judge Mukasey, given repeated opportunities, refused to say that the ancient and extreme technique of waterboarding, a brutal practice in which a person is subjected to simulated drowning, is illegal. There may be interrogation techniques that require close examination and extensive briefings. Waterboarding is not among them. Judge Mukasey does not need a classified briefing to learn about waterboarding. He could go to the library to read about waterboarding that was done as far back as the Spanish Inquisition, or about American prosecutions of Japanese war criminals for waterboarding after World War II. Evan Wallach, a judge at the U.S. Court of International Trade, a professor who teaches the law of war, and a former JAG officer, wrote an insightful column in last Sunday's Washington Post that I ask unanimous consent be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Waterboarding Used To Be a Crime

(By Evan Wallach)

As a JAG in the Nevada National Guard, I used to lecture the soldiers of the 72nd Military Police Company every year about their legal obligations when they guarded prisoners. I'd always conclude by saying, ``I know you won't remember everything I told you today, but just remember what your mom told you: Do unto others as you would have others do unto you.'' That's a pretty good standard for life and for the law, and even though I left the unit in 1995, I like to think that some of my teaching had carried over when the 72nd refused to participate in misconduct at Iraq's Abu Ghraib prison.

Sometimes, though, the questions we face about detainees and interrogation get more specific. One such set of questions relates to ``waterboarding.''

That term is used to describe several interrogation techniques. The victim may be immersed in water, have water forced into the nose and mouth, or have water poured onto material placed over the face so that the liquid is inhaled or swallowed. The media usually characterize the practice as ``simulated drowning.'' That's incorrect. To be effective, waterboarding is usually real drowning that simulates death. That is, the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, taking water into the lungs and, eventually, the same feeling of not being able to breathe that one experiences after being punched in the gut. The main difference is that the drowning process is halted. According to those who have studied waterboarding's effects, it can cause severe psychological trauma, such as panic attacks, for years.

The United States knows quite a bit about waterboarding. The U.S. government--whether acting alone before domestic courts, commissions and courts-martial or as part of the world community--has not only condemned the use of water torture but has severely punished those who applied it.

After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: ``I was given several types of torture. ..... I was given what they call the water cure.'' He was asked what he felt when the Japanese soldiers poured the water. ``Well, I felt more or less like I was drowning,'' he replied, ``just gasping between life and death.''

Nielsen's experience was not unique. Nor was the prosecution of his captors. After Japan surrendered, the United States organized and participated in the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials. Leading members of Japan's military and government elite were charged, among their many other crimes, with torturing Allied military personnel and civilians. The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding.

In this case from the tribunal's records, the victim was a prisoner in the Japanese- occupied Dutch East Indies:

A towel was fixed under the chin and down over the face. Then many buckets of water were poured into the towel so that the water gradually reached the mouth and rising further eventually also the nostrils, which resulted in his becoming unconscious and collapsing like a person drowned. This procedure was sometimes repeated 5-6 times in succession.

The United States (like Britain, Australia and other Allies) pursued lower-ranking Japanese war criminals in trials before their own tribunals. As a general rule, the testimony was similar to Nielsen's. Consider this account from a Filipino waterboarding victim:

Q: Was it painful?

A: Not so painful, but one becomes unconscious. Like drowning in the water.

Q: Like you were drowning?

A: Drowning --you could hardly breathe.

Here's the testimony of two Americans imprisoned by the Japanese: They would lash me to a stretcher then prop me up against a table with my head down. They would then pour about two gallons of water from a pitcher into my nose and mouth until I lost consciousness. And from the second prisoner: They laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air. ..... They then began pouring water over my face and at times it was almost impossible for me to breathe without sucking in water.

As a result of such accounts, a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the ``water cure'' to question Filipino guerrillas.

More recently, waterboarding cases have appeared in U.S. district courts. One was a civil action brought by several Filipinos seeking damages against the estate of former Philippine president Ferdinand Marcos. The plaintiffs claimed they had been subjected to torture, including water torture. The court awarded $766 million in damages, noting in its findings that ``the plaintiffs experienced human rights violations including, but not limited to ..... the water cure, where a cloth was placed over the detainee's mouth and nose, and water producing a drowning sensation.''

In 1983, federal prosecutors charged a Texas sheriff and three of his deputies with violating prisoners' civil rights by forcing confessions. The complaint alleged that the officers conspired to ``subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning.''

The four defendants were convicted, and the sheriff was sentenced to 10 years in prison.

We know that U.S. military tribunals and U.S. judges have examined certain types of water-based interrogation and found that they constituted torture. That's a lesson worth learning. The study of law is, after all, largely the study of history. The law of war is no different. This history should be of value to those who seek to understand what the law is--as well as what it ought to be.

Mr. LEAHY. More than 100 years ago, in 1901 and 1902, U.S. military commissions charged American officers with waterboarding detainees in the Philippines, and President Theodore Roosevelt 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.

This country's abhorrence for cruel treatment of detainees goes back further still to General George Washington who wrote of captured troops during the Revolutionary War:

Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British Army in their treatment of our unfortunate brethren.

Those are American standards and American values that should not be compromised.

As RADM John Hutson, former Judge Advocate General of the Navy, testified to 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.

Judge Mukasey acknowledged that, in evaluating interrogation techniques, we look to standards such as whether the conduct ``shocks the conscience,'' whether it is ``outrageous,'' or whether it is ``for the purpose of humiliating and degrading the detainee.'' He was unwilling, though, to say that waterboarding meets these standards. To me, it is not a hard call that waterboarding shocks the conscience, that it is outrageous, that it humiliates and degrades detainees. I do not believe that the question whether waterboarding is illegal is subject to a balancing test. It is. Indeed, it is that kind of ``balancing test'' that has allowed this President to claim the discretion to commit so many abuses that have brought such disgrace on this great country.

Senator McCain, who knows too much about the issue of torture, 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. People who have worn the uniform and had the experience know that this is a terrible and odious practice and should never be condoned in the U.S. We are a better nation than that.

I agree.

Nothing is more fundamental to our constitutional democracy than our basic notion that no one is above the law. This administration has undercut that precept time after time. They are now trying to do it again, with an issue as fundamental as whether the United States of America will join the ranks of those governments that approve of torture. That is why I will vote no on the President's nomination.

Mr. President, I reserve the remainder of my time.