Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - November 08, 2007)

Mr. SESSIONS. Mr. President, I believed we were moving toward a very harmonious vote on Judge Mukasey's confirmation. I have been disappointed that has not occurred.

Opponents have latched on to complaints about torture and a specific classified procedure that Judge Mukasey has never seen or studied in detail. Since he refused to express a legal opinion on that one specific technique, they have asserted that he supports torture, and many have decided to vote against him. I think that is unfair to the judge.

I will recall that Judge Mukasey was called to the attention of the President through Senator Schumer who has spoken highly of him and who voted for him in the committee, as did Senator Feinstein, two Democratic colleagues. Senator Schumer apparently has known him and his reputation in New York for some time. The President attempted to reach out and to pick a nominee who appeared to be above politics, apart from politics, a person who had a history of competence and integrity.

Being a Federal judge is about as removed from the normal give and take of politics and compromise and wheeling and dealing as you can get. And he served in that position for many years but also had experience as an assistant U.S. attorney involved in leading a public corruption section in New York which was pretty sizable and important and dealt with a lot of important cases.

He was on the Law Review at Yale and has all of the kind of academics credentials and practical experience you would look for and is the kind of U.S. Attorney General I, and I think people of both parties can feel comfortable with. I really do believe that.

I was hopeful we would see a nominee such as Larry Thompson, a longtime friend of mine. He served as former Deputy Attorney General of the United States, a former U.S. attorney; Ted Olson, who served as Solicitor General; or former Attorney General Bill Barr. These are a few individuals who would be considered normal Republican appointees for this position and whose views are well known to be in accord with those of the President on most issues. But, instead, the President reached out and appointed someone who appeared to have strong bipartisan support.

I am sorry we have had some of these complaints because I think they distort the record and what the judge actually said in his testimony and are inaccurate in a number of different ways.

The issue of torture has been discussed in great detail. But in many ways it has not been handled with accuracy, and the issues have not been squarely addressed. They have been sort of sloughed over, and he has been accused of things, and others, including the President and former Attorney Generals and the military and other people have been accused of things in an inaccurate fashion.

I think I would like to make a few comments about how I see the legal situation that we find ourselves in and how things have developed. Prior to the Supreme Court's ruling in 2006 in Hamdan, a legitimate position, clearly, for the United States was that our personnel, when they were dealing with unlawful combatants, were bound by the torture statute, title 18, U.S. Code, Section 2340. That is the controlling statutory authority. It defined torture. It was passed overwhelmingly by Congress in 1994.

It was passed by a vote of 92 to 8. Every current member of the Senate Judiciary Committee who was here in the Senate in 1994 voted for it. Senator Biden, Senator Feingold, Senator Feinstein, Senator Grassley, Senator Hatch, Senator Kennedy, Senator Kohl, Senator Leahy, and Senator Specter all voted for this act.

I asked Mr. Jack Goldsmith, former head of the Office of Legal Counsel in the Department of Justice under President Bush who resigned because he was not happy with some of the things that were being done, about the legal landscape regarding torture prior to the Hamdan decision--and he wrote a book about it.

I asked Mr. Goldsmith about the landscape prior to Hamdan--which found that the Common Article III of the Geneva Convention applied to enemy unlawful combatants detained at Guantanamo Bay. But that decision did not occur until the summer of 2006, so prior to that, pretty clearly, the authority that controlled the U.S. military in dealing with unlawful combatants, which we, I think, had every right to conclude were not covered by the Geneva Conventions, was the torture statute Congress passed in 1994. That is the statute that our military was compelled to comply with.

And so the statute on torture is pretty clear. The people who drafted it wanted to make sure that whether in the United States or out of the United States that persons in our custody ought not to be tortured.

That certainly is an honorable and appropriate goal, and they did that. They passed this statute in which they defined torture:

As used in this chapter (1) ``torture'' means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) ``severe mental pain or suffering'' means the prolonged mental harm caused by or resulting from--

(A) the intentional infliction or threatened infliction of severe physical pain or suffering.

And it goes on.

Playing music or segregating a prisoner or giving one prisoner less food or less quality food than you give another one, placing them in stressful conditions clearly does not qualify under this torture statute as inflicting severe physical or mental pain.

Our military had lawyers. As Mr. Goldsmith, who was a critic, really, of this administration's behavior, said in his testimony and in his book, they were awash with lawyers. They had lawyers all over the place. Everything was read by lawyers. He said the CIA had 100 lawyers. I don't know how many in the Department of Defense and others he made reference to were there trying to figure out how to conduct interrogations at a time when our country had been attacked, 3,000 people had been killed, and we were trying to figure out if there were other cells in our country and other groups prepared to kill more Americans.

I remember when Senator John Ashcroft was nominated for Attorney General, and they were jumping on him about all of this and what should be done and what they had heard that somebody might have done. An exasperated then-Senator, Attorney General nominee Ashcroft responded to one question in frustration by saying: Well, the problem I have with you, Senator, is, it is not my definition of torture that counts, it is the one you enacted into law.

So that is what we enacted into law. If people are not happy with it--I think it is a legitimate statute, but if they are not happy with it, so be it. That is the one we passed into law. Our lawyers were telling our intelligence people and others who were apprehending terrorists who were committed to destroying America that they had to comply with this statute.

The ACTING PRESIDENT pro tempore. The time of the Senator has expired.

Mr. SESSIONS. I ask unanimous consent for 1 additional minute.

The ACTING PRESIDENT pro tempore. Does the Senator from Pennsylvania yield an additional minute to the Senator from Alabama?

Mr. SPECTER. What is the request pending?

Mr. SESSIONS. One additional minute.

Mr. SPECTER. Granted.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

Mr. SESSIONS. There is another matter of some importance. A number of Senators have demanded that Judge Mukasey make express statements of law regarding the separation of powers, and they have asked him these questions as a condition of his confirmation. Several Senators alluded to private conversations in which they say Judge Mukasey stated that a President cannot act outside the parameters set by the legislative branch, I guess on most any matter. Particularly, I guess it dealt with FISA. I believe this contradicts the fundamental separation of powers set forth in the Constitution by our Founding Fathers. The oath the President takes is to faithfully execute the Office of the President and to preserve, protect, and defend the Constitution of the United States. That is written in the Constitution.

While the original FISA statute was being debated in 1978, then Carter administration Attorney General Judge Griffin Bell testified:

The current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power of the President under the Constitution.

I associate myself with the remarks of Griffin Bell and recognize that nothing we can do in this Congress can impede on the powers vested in the Executive by the Constitution. Congress cannot curtail the constitutional powers of the Executive by statutory law.

The ACTING PRESIDENT pro tempore. The time of the Senator has expired.

Mr. SPECTER. How much more time would the Senator like?

Mr. SESSIONS. One additional minute.

Mr. SPECTER. Granted.

Mr. SESSIONS. The purported conversations that Senators indicate they have had apparently took place in private settings and not in a confirmation hearing held by the Judiciary Committee where these statements could be made a part of the record or cross-examined or where the words could be recorded with any accuracy. These types of promises, though touted as justification for a vote, perhaps, are not legislative history and have not been made a part of the record of this nomination. They cannot be a part of a legislative history of any kind.

Furthermore, I would suggest that if Judge Mukasey did, in fact, say that in a categorical manner, which I really doubt, he would be in error. Any President has certain constitutional powers that cannot be taken away by statute.

I yield the floor.

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