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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. GRAHAM: Thank you, Mr. Chairman.

I'm tempted to say nice things about Senator Feinstein. But I don't want to hurt you back home, so I'll pass.

The reason I voted yes is because I think Judge Mukasey really is the right guy at the right time. This nation is very much tied up in knots about how we fight this war. And as Senator Feinstein and others have expressed, the Department of Justice, Senator Specter, is really in chaos and we do need a new attorney general desperately.

And the reason I'm going to vote yes -- or have voted yes is because I believe he's a man of the law, not politics. I think you've made a very good case that he doesn't have a political patron to reward; he comes from the law.

And all those who've been in front of him -- the real test, to me, is not what we think about him -- because we're all worried about politics. I do respect my colleagues, but we live in a different world. The best way to judge someone in his position is, what do those who have gone before him say about him? What do the Democrats and Republicans, the prosecutors and defense attorneys who have practiced before him for years say about him?

The best way to understand Judge Mukasey is to listen to those who know him best and have had an opportunity to interact with him. And if you listen to them, it is a very easy decision regarding the man. He is the right guy at the right time because, unanimously, those who have been before him in his court have nothing but glowing things to say about his independence, they respect him as a judge, and that he truly is a man of the law, exactly what we need.

To Senator Schumer, thank you for recommending him to the president.

Now, he is dealing with a legacy not of his making. He is dealing with an issue that has perplexed this Congress and this country and has caused me an enormous amount of grief: How do we fight this war?

Senator Leahy, you're absolutely right that if there was an episode somewhere in the world that became public where one of our downed airmen or captured service members was subjected to this procedure known as waterboarding, there would not be one dissenting vote in this body to condemn that practice.

As we dealt with the Military Commissions Act, one of the proposals by the administration was to allow classified evidence to be given to the jury, the trier of fact, and shielded from the accused. And I wrote a letter to the secretary of State and asked her, if there was a trial in Iran where there was a captured American on Iranian soil, and the Iranians held a trial and provided evidence to the judge or their equivalent of a jury to convict our soldier or CIA operative and that person never had a chance to confront the evidence, would we cry "foul"? Would we say this is a violation of Common Article 3? Of course we would. We would be on the floor screaming to the high heavens, "Stop this bad practice."

Before I came here, I had spent a lot of time as a military lawyer. And let me tell you what drives my thinking. Most military lawyers and commanders are taught from the very first day on the job that we, the American military, are the gold standard for the profession of arms, and that we take practices off the table on purpose. We reject practices of our enemies not because it makes us weaker, but because it makes us stronger.

And every military lawyer and every military commander I've been associated with worries about things happening on our watch that could come back to haunt us, and this will surely come back to haunt us.

Now, we take extraordinary efforts to limit collateral damage. If you have not been briefed by the military as to the decision making of dropping an ordnance in Afghanistan or Iraq, you should. It is a marvelous thing, where you have ground coordination with the air asset to figure out what kind of bomb to drop to limit collateral damage. I would argue the fact that Americans tried to limit the killing of the innocent in a time of war makes us stronger, not weaker. I would argue that America taking off the table techniques that are repugnant to who we are and what we're fighting for makes us stronger, not weaker.

In 1998, here's what Ronald Reagan had to say to the Senate. The United States participation actively and effectively in the negotiating of the convention, it makes a significant step in the development during this century of international measures against torture and other inhumane treatment or punishment. Ratification of the convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

To my colleagues, there is no doubt in my mind and I dare you -- or challenge you to find a military lawyer who would begin to suggest that waterboarding is Geneva Convention compliant. It is clearly not. The CIA program we have is different than the Army Field Manual for a reason. I believe it to be legal, I believe it to be effective. I believe waterboarding to be illegal, so you can put two and two together if you'd like.

Now, I have been arguing for several years that we're at war and we should not criminalize this war. But to my colleagues who suggest that we're at war, Senator Specter, and we have to re-evaluate what techniques we use, I would argue they don't understand this country's relationship to the law and war. To the idea that our executive will reserve unto him or her the ability to engage in certain techniques for the security interests of America when those techniques are clearly out of bounds in regarding our law and international conventions, be wary of what you wish for.

If we allow our executive in certain rare circumstances to use techniques like waterboarding, then what do we say when a downed airman is in the hands of another enemy in another war and they argue, well, I had to do this because I needed to know when the next air attack was going to occur. The very child in the hands of the child molester -- what do we allow our police to do? We all want to save the child, but if they do things that are clearly out of bounds in terms of lawful interrogation techniques, do we reward them because they did a good thing or do we stand up for the law when it's hard?

If we go down the road of trying to reserve in special circumstances our ability to breach conventions and laws that we have enacted for the good, then we will have, in my opinion, given the enemy a great victory.

The world is not short of people and countries who will waterboard you. There's not a shortage of people who will cut your heads off in the name of religion. There is a shortage of people who believe in justice, not vengeance.

So I will vote for this good man of the law, and if we need to pass laws against waterboarding more specifically, I will vote for them. It is my hope, Mr. Chairman, that as the military tribunals unfold at Guantanamo Bay or wherever else they may be conducted, that the world will see something very clearly: that our military is different than our enemy, proudly so; my goal is to separate my nation from our enemy; the law is our strength, it is not our weakness; that if there's a conviction coming out of a military court-martial or a military tribunal involving a terror suspect, I want the world to know a couple of things. It was based on evidence, not the person's religion. It was based on the facts, not revenge. And the testimony wasn't coerced. That will make us stronger.

I believe Judge Mukasey will reinforce those values. Thank you, Mr. Chairman.


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