Hearing of the Senate Committee on the Judiciary- Mark Up to Vote on the Nomination of Michael Mukasey to be Attorney General of the United States

Statement

Hearing of the Senate Committee on the Judiciary- Mark Up to Vote on the Nomination of Michael Mukasey to be Attorney General of the United States

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SEN. KENNEDY: Thank you. Thank you very much, Mr. Chairman.

The Department of Justice is in dire need of new leadership to guide our nation back to its constitutional moorings. Under Attorney General Gonzales, the department lost its way as a genuine force for justice. It too often served as a rubber stamp for the White House and as a facilitator and enforcer of political objectives rather than the rule of law.

After a period of such tarnished leadership in the department, we need a clear, decisive, straightforward attorney general who's not afraid to stand up for the Constitution and the rule of law, even if it means disagreeing with the president of the United States.

I had hoped that Judge Mukasey could be that person. He is certainly intelligent and has demonstrated admirable dedication to public service. As a federal judge for almost 19 years, he was by all accounts fair and conscientious in the courtroom and even showed admirable independence at times.

But after reviewing and re-reviewing Judge Mukasey's answers to questions from members of this committee, I have concluded that he is not the right person to lead the Justice Department at this critical time in our history. We need a leader who will inspire confidence in the rule of law. We need a leader who is unafraid to speak truth to power. We need a leader who is worthy of the trust we place in our attorney general to support and defend the Constitution of the United States. Michael Mukasey, regrettably, is not that leader.

Like many of my colleagues and many American citizens, I'm deeply troubled by Judge Mukasey's evasive answers about the legality of certain techniques of torture. While the nominee acknowledges that torture is unconstitutional, he has repeatedly refused to acknowledge that the controlled drowning of a prisoner, waterboarding, rises to the level of torture. What is the big mystery here? Over and over again, civilian and military tribunals have found waterboarding to be an unacceptable act of torture.

My concerns began 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 a detainee to simulate drowning. It's an ancient technique of tyrants. In the 15(th) and 16th century, it was used by interrogators in the Spanish Inquisition. In the 19th century, it was used against slaves in this country. In World War II, it was used against us by Japan. In the 1970s, it was used against political opponents by the Khmer Rouge in Cambodia and the military dictatorships of Chile and Argentina. Today it's being used against pro-democracy activists by the rulers of Burma. When we fail to reject waterboarding, this is the company that we keep.

According to ABC News, former intelligence officers and supervisors admitted in 2005 that the CIA used waterboarding.

In fact, the vice president confirmed its use. And the intelligence officers and supervisors describe the waterboarding this way: "The prisoner is bound to an incline board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to an almost instant plea to bring the treatment to a halt."

Malcolm Nance, a former master instructor and chief of the training of the U.S. Navy SEALs, described it as "horrifying to watch. If it goes wrong, it could lead straight to terminal hypoxia. When done right, it is controlled death."

Judge Mukasey cannot say to this committee that waterboarding is torture? He calls it repugnant, and indeed it is, but he refuses to condemn as unlawful.

And then in perhaps the most stunning and hollow promise reportedly made by a nominee for attorney general in my 45 years in the Senate, we are told that Judge Mukasey agreed to enforce a ban against waterboarding if Congress specifically passes one? We are supposed to find comfort in the representation by a nominee to the highest law enforcement office in the country that he will in fact enforce the laws that we pass in the future? Can our standards really have sunk so low? Enforcing the law is the job of the attorney general. It is a prerequisite, not a virtue that enhances a nominee's qualifications.

Make no mistake about it: Waterboarding is already illegal under United States law. It's illegal under the Geneva Conventions, which prohibit outrages upon personal dignity, including cruel, humiliating and degrading treatment. It's illegal under the Torture Act, which prohibits acts specifically intended to inflict severe physical or mental pain or suffering. It's illegal under the Detainee Treatment Act, which prohibits cruel, inhuman or degrading treatment, and it violates the Constitution.

The nation's top military lawyers and legal experts across the political spectrum have condemned waterboarding as torture, and after World War II, the United States prosecuted -- prosecuted -- Japanese officers for engaging in waterboarding. What more does this nominee need to enforce existing laws?

It is the job of the attorney general to enforce our Constitution, laws. The attorney general must have the legal and moral judgment to know when an activity rises to the level of a violation of our Constitution, treaties or statutes. But this nominee wants to outsource his job to Congress. That passing of the buck is completely unacceptable by a nominee who wants to be the highest justice official in our country. This nominee has failed to demonstrate that he'll be clear, decisive, straightforward leader that the Department of Justice so desperately needs.

For all these reasons, I oppose this nomination . 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 an attorney general who either does not know torture when he sees it or is willing to look the other way to suit the president.

Mr. Chairman, I'd ask that my remainder of remarks be included in the record.

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