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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


Location: Washington, DC

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


SEN. KOHL: Thank you, Mr. Chairman.

It is with great reluctance I cannot support Judge Mukasey's nomination to be attorney general. He is nominated to be this nation's top law enforcement official. His unwillingness to say what we all know -- that waterboarding is torture -- sends the wrong signal to the rest of the world, puts our own soldiers and citizens at risk, and harms our ability to win the war on terrorism. His unwillingness to condemn torture techniques as illegal calls into question his independence from the White House and suitability to be attorney general.

Many of us who opposed the nomination of Attorney General Gonzales did so because we did not believe that he could be independent of the White House. Unfortunately, our worst fears were realized. His tenure will be remembered for politics trumping the law, for accommodating the administration's desires rather than obeying the Constitution, and above all, for being the president's lawyer instead of the people's lawyer. We cannot afford to go down that road again.

After my personal meeting with Judge Mukasey, I was optimistic that he was indeed the right man to restore the Justice Department's credibility. During his hearing, he assured us that he would be independent, approach his job with an unwavering commitment to the rule of law and keep politics out of criminal prosecutions. And yet when it came time to discuss specifics that commitment was tested, and his answers fell short. Specifically on the issue of torture, some of Judge Mukasey's answers were deeply troubling. As we all know, Judge Mukasey refused to say whether waterboarding is torture. He added that he did not know what waterboarding is, and he hedged on the question of whether torture is effective. These statements demonstrate a willingness to protect the administration rather than be an independent voice within it.

It bears repeating that the question of whether waterboarding is torture is in fact no question at all. There is no argument on the other side. It is and has always been illegal, unconstitutional and simply wrong. His inability to say what everyone already knows troubles us not just for the answer, but for the possible reasons he was unwilling to give us an answer. We are forced to conclude that he cannot declare waterboarding torture because he feels that answer is necessary to offer some degree of legal protection to some people in the administration.

It is indeed telling that the president even said himself that he would never nominate someone to be attorney general who would not provide the same answer that Judge Mukasey gave us. As Judge Mukasey's answers mirror the president's on this issue and defy common sense, we are forced to question his independence as well. We are not willing to travel back down that same road again. The attorney general's loyalties must be to the Constitution, to the American people and to the law. Too much doubt on this point is disqualifying.

We need an attorney general who will dramatically changed the course of the Justice Department and restore our credibility as a nation of laws. If he is confirmed, I hope that Judge Mukasey turns out to be that man, but I fear that he will not, so I will oppose the nomination.

And I thank you, Mr. Chairman.


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