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Public Statements

Kennedy on Mukasey Nomination

Statement

By:
Date:
Location: Washington, DC


KENNEDY ON MUKASEY NOMINATION

Mr. President, I intend to oppose the nomination of Michael B. Mukasey to be the next Attorney General of the United States.

This is a nomination I had hoped to support. There is no doubt the Department of Justice is in desperate need of new leadership. Under Attorney General Alberto Gonzales, the Department was transformed from a genuine force for justice into a rubber stamp for others in the Administration who cared little for the rule of law.

The Office of Legal Counsel, and the Attorney General himself, repeatedly authorized programs of torturing detainees and wiretapping Americans that were both illegal and immoral.

Career attorneys who spoke up were marginalized or transferred to dead-end jobs. U.S. attorneys were fired if they refused to take orders from the White House as to who should be prosecuted.

The Civil Rights Division turned its back on its historic mission, and failed to vigorously enforce our civil rights laws. Instead of protecting the rights of all Americans, it spent time approving voter-identification laws that keep the poor, the elderly, and minorities away from the polls, and investigating phantom allegations of "voter fraud."

There has never been a time when the Department of Justice was more in need of a new direction—away from partisanship and back to its critical responsibility of protecting our rights and enforcing our laws.

We all hoped that Michael Mukasey could provide that needed leadership. He had served with distinction as a federal judge for almost 19 years. By all accounts, he was smart, fair, and conscientious in the courtroom. In some cases, he showed admirable independence, rejecting some of the Administration's most extreme legal arguments. He has the credentials and many of the capabilities to be a strong Attorney General.

But talent and experience are not all that's required for the job. The Attorney General of the United States must also be a person with an unbending commitment to justice, fairness, and equality, who will stand up for America's laws and values, even when the White House tries to steer the Department in the other direction.

I have had the chance to meet with Judge Mukasey, to listen to his testimony in the Senate Judiciary Committee, and to read through his answers to written questions submitted by Committee members. I cannot in good conscience support his nomination.

My concerns begin with Judge Mukasey's answers to our questions about waterboarding. Waterboarding is a barbaric practice in which water is poured down the mouth and nose of the detainee to simulate drowning. The nation's top military lawyers and legal experts from across the political spectrum have condemned this technique as a violation of U.S. law and a crime against humanity. Following World War II, the United States prosecuted a Japanese officer for engaging in this very practice, and that officer was convicted and sentenced to 15 years of hard labor.

Waterboarding is torture. Period. Yet Judge Mukasey refuses to say so.

His refusal was so extraordinary and unexpected that we asked the Judge a series of further questions to help us understand why an able, experienced lawyer would find it so difficult to agree that a practice used in the Spanish Inquisition was torture. But our questions were met with equivocation and evasion. Judge Mukasey told me that my questions about the legality of waterboarding were the kind of hypothetical questions that judges commonly refuse to address. But he has been nominated to be Attorney General, and an Attorney General—unlike a judge—is often called upon to determine whether an action would be legal before such an action is taken.

However, it is not just his remarks on waterboarding that trouble me. Judge Mukasey also evaded a wide range of questions on torture. He refused to commit to sharing with Congress the legal opinions of the Office of Legal Counsel that have authorized coercive interrogation techniques. He suggested that Common Article 3 of the Geneva Conventions—the basic international standard for humane treatment—may not always apply to the treatment of enemies we capture, even though the Supreme Court has rejected that view. He would not even say whether it would be unlawful for enemy forces to subject Americans to "painful stress positions, threatening detainees with dogs, forced nudity, waterboarding and mock execution."

These extreme views are not only immoral and legally flawed. They also increase the risk that our own troops will be subjected to barbaric treatment.

Judge Mukasey could not even bring himself to reject the legal reasoning behind the infamous Bybee "torture memo." That memo stated that physical pain amounted to torture only if it was "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Anything that fell short of this standard would not be torture, according to the memo.

CIA interrogators called this memo their "golden shield," because it allowed them to use virtually any interrogation method they wished. When the memo finally became public, however, the country was appalled and the memo's flaws were quickly exposed. Dean Harold Koh of Yale Law School wrote, "in my professional opinion as a law professor and a law dean, the Bybee memorandum is perhaps the most clearly legally erroneous opinion I have ever read." The Bush Administration was so embarrassed that it withdrew the memo.

When I said to Judge Mukasey that his testimony left "the alarming impression that you may agree with [the memo's] legal reasoning," he did nothing to remove that impression. He said that the memo was "a mistake," but he could not bring himself to reject its flawed reasoning.

There are only two possible explanations for Judge Mukasey's testimony on this issue. The first is that he genuinely believes that waterboarding may not always be torture, that international law does not fully protect American POWs, and that the withdrawn Bybee memorandum was not deeply flawed. If those are his beliefs, he is so far out of the mainstream of legal thought in this country that he should not serve as Attorney General.

The second explanation is that Judge Mukasey has already begun defending President Bush's Administration, instead of standing up to it when the rule of law requires it. It is quite possible that Judge Mukasey knows that waterboarding is torture, that international law protects American POWs, and that the Bybee memorandum was a moral and legal abomination. But he refuses to say so, because such answers would be deeply inconvenient to the Bush Administration.

Time and again, Judge Mukasey told us that he would be independent of the White House, that he understands that the Attorney General is not simply the President's lawyer, but is the guardian of the law for all Americans. I would like to believe Judge Mukasey. But if this issue was the first test of his independence, he has failed it.

Judge Mukasey's answers to our questions on torture remind me of nothing so much as the responses to the Senate on these issues by Attorney General Gonzales. Mr. Gonzales adopted an absurdly narrow definition of torture in order to permit extreme interrogation practices. He ignored the plain language of the Geneva Conventions prohibiting cruel and humiliating treatment. He withheld his views on how to interpret and enforce our laws against torture and cruel, inhuman, and degrading acts. He refused to discuss specific interrogation techniques or to repudiate the Bybee memo. He refused to take any firm positions.

Judge Mukasey may have dressed up his responses in more skilled legal rhetoric, but the difference between his answers and those of Mr. Gonzales is disappointingly small.

Judge Mukasey's answers make clear that this Administration simply cannot be trusted ever to renounce torture. Congress, therefore, must act now to strengthen our ban on torture. I have already introduced a bill to do that: the Torture Prevention and Effective Interrogation Act. It will apply the standards of the Army Field Manual to all U.S. government interrogations, not just Department of Defense interrogations. This basic reform will ensure that our government honors its commitment to the rights enshrined in the Geneva Conventions, which protect the values we cherish as a free society and the lives of our men and women overseas. I intend to move that legislation at the earliest possible time. Congress needs to pass it promptly.

While Judge Mukasey's views on torture are reason enough to oppose his nomination, I found little comfort in other areas as well.

For instance, Judge Mukasey argued that the President has substantial spheres of exclusive powers over which the other branches of government have no control whatever. He indicated that the President may indefinitely imprison a U.S. citizen, seized on U.S. soil, without charges, solely on the President's determination that the person is an "enemy combatant." He ridiculed critics of the PATRIOT Act. He stated that the President may sometimes violate or disregard the Foreign Intelligence Surveillance Act, despite that law's clear statement to the contrary.

Judge Mukasey also argued that the Authorization for Use of Military Force, passed by Congress immediately after the 9/11 attacks, may have authorized the President's warrantless surveillance program that was used to spy on millions of Americans for over 5 years. That is a ridiculous legal argument, which legal experts have debunked time and time again. In these statements and others, Judge Mukasey left the troubling impression that the Executive Branch can run roughshod over the constitutional role of the other branches and the civil liberties of Americans.

Finally, every Attorney General must have an unassailable commitment to civil rights. But, on issues of civil rights as well, Judge Mukasey fell short. His record on civil rights is not reassuring. As a judge, he made several decisions suggesting he was unsympathetic to victims of employment discrimination. More than once, he was overruled by the appellate court for dismissing claims of discrimination, even though the claims had merit and should have gone to the jury.

When I met with Judge Mukasey, I made clear that the Civil Rights Division is failing in its historic mission. As civil rights legend John Lewis recently testified, the Division has "lost its way." It will take clear, strong leadership to ensure that the Division once again vigorously enforces the nation's civil rights laws. When we met, I suggested specific reforms, and I mentioned published studies that have done the same. Yet when I asked Judge Mukasey about his specific plan for the Civil Rights Division, he gave only vague answers. He never acknowledged that the Division is in need of reform, and he never provided any concrete ideas on how he would revitalize the Division. There was nothing in his answers to suggest that as Attorney General, he would enforce our civil rights laws with the skill and vigor that are necessary to guarantee equal justice and equal opportunity for all Americans.

I therefore intend to oppose this nomination. Judge Mukasey appears to be a careful, conscientious and intelligent lawyer, and he has served our country honorably for many years. But those qualities are not enough for this critical position at this critical time. Over the past six years, the Bush Administration has run roughshod over the rule of law, and has taken the Department of Justice along for the ride. In light of that history, the Senate must demand an Attorney General who will speak truth to power, and follow the law, no matter what the consequences.

Judge Mukasey's equivocations and evasions on critical issues give me no confidence that he will fulfill this vital role. After six long years of reckless disregard for the rule of law by this Administration, we cannot afford to take our chances on the judgment of someone who either does not know torture when he sees it, or is willing to pretend so to suit the President.


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