M. President. I rise today to express my opposition to the nomination of Judge Michael Mukasey to be the next Attorney General for the United States. This has not been an easy decision for me to make.
I met Judge Mukasey before the judiciary hearings and like him immensely on a personal level. We discussed the unprecedented and extremely harmful politicization that has occurred within the Justice Department since the beginning of the Bush Administration. And I was encouraged by the steps he said he would take to reverse it. We talked about the problems of leaking secret grand jury information, and I was impressed by his commitment to investigate any allegations of grand jury leaks and to terminate any responsible prosecutors.
In fact, after my meeting, I thought that I could comfortably vote to confirm Judge Mukasey as our next Attorney General. But, then came the judiciary hearings.
On the second day of the hearings, Judge Mukasey was specifically asked whether waterboarding was illegal. Now, before I get to Judge Mukasey's answer, let me describe what waterboarding is. And, let me make clear that my description contains no classified information-nothing that Judge Mukasey would need special security clearance to know.
The term waterboarding can be used to describe several different interrogation techniques. In one, the victim is immersed in water. In another, water is forced into the victim's nose and mouth. In the third, water is poured onto material-like cellophane-that is placed over the victim's face so that the victim inhales and swallows the water.
Regardless of which technique is used, the victim experiences the sensations of drowning: they struggle, they panic, they hold their breath. They inhale water into their lungs -- they vomit and sometimes black out. This is not simulated drowning. It is simulated death. The drowning is real.
Despite this public knowledge of what constitutes waterboarding, Judge Mukasey refused to say whether waterboarding was illegal. According to the judge "hypotheticals are different from real life." Therefore whether waterboarding was illegal would depend on "the actual facts and circumstances" - things he did not know.
I have a hard time understanding what facts and circumstances could make the procedures I just described legal. I have a hard time understanding what facts and circumstances could make them somehow not cruel and inhumane. The only thing I don't have a hard time understanding is why Judge Mukasey's evasive and non-committal comments sound so familiar.
We've heard them before and all too often. Time and time again, other members of the Bush Administration have played word games to justify their use of illegal or inappropriate interrogation techniques.
Judge Mukasey tried to backpedal by saying that he found waterboarding personally repugnant. Well, as many of us know, whether someone finds a law personally repugnant often has no impact on whether that person will enforce the law. Whether they find an action personally repugnant often has no impact on whether they will prosecute that action.
Judge Mukasey also said he would uphold any law that Congress passes in the future outlawing waterboarding. I'm not sure how reassuring this statement is since wateboarding is already illegal in the United States. Why should Congress have to pass a law prohibiting something that is already illegal?
Judge Mukasey should be well aware that waterboarding is illegal. On October 31st, Senators McCain, Graham, and Warner - all experts in the area of interrogation and military justice - wrote a letter to Judge Mukasey stating, without a shadow of a doubt that "waterboarding, under any circumstances, represents a clear violation of U.S. law." And my colleagues should know this. They authored the 2005 prohibition on cruel, inhuman, and degrading treatment that the President signed into law. During the debate, they made it very clear that the so-called "McCain Amendment" prohibits waterboarding or other extreme techniques that "shock the conscience."
Knowing what we know about waterboarding, there is no way anyone can argue that it does not shock the conscience.
The McCain Amendment is not the only provision of US law prohibiting waterboarding. The 2006 Military Commissions Act clearly prohibits the practice. It enumerates the grave breaches of Common Article 3 of the Geneva Conventions that constitute offenses under the War Crimes Act. And, it explicitly prohibits acts that inflict "serious and nontransitory mental harm." As my colleagues stated so clearly in their letter "Staging a mock execution by inducing the misperception of drowning is a clear violation of this standard."
In fact, the U.S. has successfully prosecuted individuals who have engaged in waterboarding. After World War II, U.S. Military Commissions accused and successfully convicted Japanese soldiers for torturing American prisoners through the use of waterboarding. How can we stand here over 60 years later and confirm an individual to be our country's highest ranking law enforcement official if he wont enforce laws we've already prosecuted?
There is no reason to believe that waterboarding is anything but illegal. There is no compelling argument that it could ever be consistent with U.S. law. There is no ambiguity here. No shades of gray. It is clear to me that water boarding is illegal. It is clear to my colleagues Senators McCain, Graham, and Warner that waterboarding violates US law. The only person that it is not clear to is Judge Mukasey.
I have spent some time trying to understand why Judge Mukasey refused to confirm something that is so clear under our laws. The only thing I can come up with is that his statement is consistent with the current Bush Administration policy. It protects Administration officials who have admitted waterboarding occurred on their watch, and it tacitly permits President Bush to continue utilizing waterboarding as an interrogation technique.
It strikes me as more than a little coincidental that on his first day of testimony before the judiciary committee, Judge Mukasey was not afraid to depart with Administration policy and assert his independence. Yet, on the second day of testimony, he all of a sudden began to play the role of loyal footsoldier.
One has to wonder whether this change of heart occurred under pressure from the Administration. If nothing else, it certainly makes me wonder whether Judge Mukasey will be as independent of a thinker and an actor as he led us all to believe he would be.
I hope that I am wrong about Judge Mukasey. This is a critical point in history for the Justice Department. Since the beginning of the Bush Administration, we have seen the influence of political appointees expand exponentially. We have seen good, qualified, dedicated prosecutors fired and replaced by Bush loyalists. We have seen the number of civil rights prosecutions drop, and we have seen clearly discriminatory voter ID laws approved by partisan political appointees over the objections of experienced career employees.
The Justice Department clearly needs new leadership. It needs to be cleaned up. It needs someone who will not only stop the continuing politicalization but reverse the effects of what has already happened.
If confirmed, I hope that Judge Mukasey will be that kind of leader. I hope that he will exhibit the independence and honesty that he said he would when I met with him. I hope he is as committed to upholding the laws of the United States as Attorney General as he appeared to be as a United States Judge. I hope that his statements on waterboarding are an exception to - not an indication of-the role he will play as Attorney General.
But, I cannot vote on hope alone. I have to vote on facts. And, given the facts available, I simply cannot support Judge Mukasey's nomination.
Thank you.
