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Public Statements

Executive Session

Floor Speech

Location: Washington, DC

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

Mr. SPECTER. Mr. President, the allocation has been made of 5 hours equally divided on the confirmation of Judge Michael Mukasey to be Attorney General and also to cover the Department of Defense appropriations bill.

I have been informed that I will be in charge of the allocation of time. So I say to my colleagues who want to speak in favor of former Judge Mukasey or who want to speak on the Defense appropriations bill on the Republican side, come to the floor and let me know how much time you would like. The Democrats who are speaking in favor of Judge Mukasey will come out of my time as well. We ought to have some idea as to how much time will be required. Five hours will put us close to midnight.

The ways of the Senate are wondrous. It is hard to figure out--we had our last vote at 11:45 and finished shortly after noon and could have started this debating process early in the afternoon. But, as I say, in the wondrous ways of the Senate, we could not begin it until 7 o'clock, until we had reached an agreement on procedural details, which might well have been done earlier.

But I have been here a while, and I learned a long time ago the Senate is a lot smarter than I am, and we follow--we play the cards we are dealt. But I don't think there is any need for us to be in session until midnight, although things could get lively and perhaps some stray television viewers will turn on C-SPAN 2; they certainly wouldn't do it during the daytime when the soaps are on. But, it may well be that the time will be yielded back. And so, I inform my colleagues to not necessarily expect to vote as late as midnight, although that may be the case.

Now, on to former Federal Judge Michael Mukasey. He is a man with an outstanding record. If you went to central casting, you couldn't find a better prospect to be Attorney General of the United States on substance or on qualifications. He graduated from Columbia University in 1963, Yale Law School in 1967, and was on the Board of Editors of the Yale Law Journal. With credentials from Yale, including the Board of Editors, and his high academic standing, these are excellent qualifications. He was an associate in a major New York law firm for 5 years after graduating from law school. He was then an assistant United States Attorney for the Southern District of New York from 1972 to 1976 and was chief of the Official Corruption Unit for 2 years. Then, he returned to the practice of law for 11 years and became a Federal judge in 1988, serving for almost two decades, through 2006. He was Chief Judge of the Federal Court in the Southern District of New York in Manhattan from 2000 to 2006 where he presided over some very important trials involving terrorism. The courthouse for the Federal court in New York was just a few blocks from the Trade Towers, which were victimized on September 11, 2001.

Now, a great deal has been said about the issue of waterboarding. The Senator from Illinois who just spoke said the morals of our country will be judged by what has gone on with Judge Mukasey's confirmation process. We have worked through this issue, and I believe we have a satisfactory resolution of it, which accomplishes the substance of what the Senator from Illinois was decrying.

I am opposed to waterboarding. I think waterboarding is torture. When the issue was before the U.S. Senate on the Military Commission Act, we had a vote, and this body voted 53 to 46 not to classify waterboarding as torture. That is what the Senate did. In another legislative matter, the Detainee Treatment Act, waterboarding was prohibited. But, as of this moment, the Congress of the United States has not spoken on the matter.

Now Judge Mukasey has stated that if waterboarding is declared the equivalent of torture, as Attorney General he will uphold that congressional determination, even if the President seeks to reject the statute by virtue of the President's Article 2 powers as Commander in Chief and other inherent authority, which the President possesses under Article 2. Now that is exactly what the President did on the Terrorist Surveillance Program. The Foreign Intelligence Surveillance Act enacted in 1978 specifies that the exclusive way to wiretap is to go to a Federal judge with a statement of probable cause and get a warrant--judicial approval--to do the wiretapping. But, President Bush said he had authority to disregard the statute because he had constitutional authority.

As a matter of constitutional doctrine, you can't amend the Constitution with a statute. To amend the Constitution, you have to have a constitutional amendment. An amendment must pass the Congress by a two-thirds vote and be ratified by three-fourths of the States.

So the President took the position that his constitutional power superseded the statute, and he rejected it and ignored it. I have grave doubts about the propriety of what the President did. We didn't find out about it until it was disclosed in the newspapers in mid-December of 2005 when we were in the midst in this Chamber of debating the PATRIOT Act. I chaired the Judiciary Committee, and I was at this podium managing that bill when the news broke in the morning papers that day, and a number of Senators said they were prepared to vote for the PATRIOT Act until they found out what had been done secretly under the Terrorist Surveillance Program.

As the record shows, we didn't pass the bill until early in 2006. But the relevance of that procedure is that there was concern that even if Congress said waterboarding was torture and was therefore illegal, the President might seek to use his Article 2 powers to ignore that law.

The first disclosure that former Judge Mukasey would not uphold that type of Presidential action came with a disclosure by Senator Schumer about a meeting he had with former Judge Mukasey last Friday. It appeared in the press that Judge Mukasey would say the congressional enactment was controlling. I then had a discussion by telephone with Judge Mukasey last Monday morning to be explicit and to confirm what I had read in the papers. Not wanting to rely on that, Judge Mukasey told me he that it was his legal judgment that Congress had the constitutional authority to legislate, to say waterboarding was torture and was, therefore, illegal. And if such legislation was enacted, then it was Judge Mukasey's legal judgment that the President could not supersede the statute and could not rely on Article 2 power to ignore that finding. That was confirmed in writing.


Mr. SPECTER. I said in the letter, as the record will show, if Judge Mukasey had any difference with my statement, he should let me know promptly. I know it was received by White House personnel, and we communicated, staff to staff, about it, and that is a binding commitment. That commitment, in conjunction with Judge Mukasey's response to my questioning--I asked him if the President of the United States ignored his advice as Attorney General if and when confirmed on a matter of serious import, would Judge Mukasey resign as Attorney General, just as Attorney General Elliot Richardson had resigned on the Saturday Night Massacre when efforts were made to stop the investigation of President Nixon at that time, and Judge Mukasey said he would resign. So, I think we have a very solid record.

Now, I do believe there were reasons Judge Mukasey did not express a judgment on waterboarding as being torture, although candidly it would have been my preference if he had done so and if he had agreed with my vote on the subject. But, Judge Mukasey said in written responses that he believed he could not make that pronouncement without placing people at risk to be sued or perhaps even criminally prosecuted. A few weeks ago, former Secretary of Defense Rumsfeld was in Paris at a time when people sought legal process against him. It was unclear whether it was a criminal procedure or a civil procedure, but we do know that many nations are exercising extraterritorial jurisdiction when they may consider conduct to be a violation of the law against humanity.

We know, for example, that Israeli Prime Minister Sharon was indicted, I believe it was in Belgium. They couldn't serve the warrant, but had he gone to Belgium. He would have been subject to that process. We know the case of Pinochet from Chile where extraterritorial jurisdiction was sought as to him. So this is a matter of some considerable import.

Professor Goldsmith wrote, speaking from his experience as Assistant Attorney General in the Office of Legal Counsel, that members of the administration had expressed concerns that they might be subject to civil liability or even criminal liability if it was later determined that some of their conduct was illegal. So, Judge Mukasey faced a situation where an expression of an opinion by him would put people at risk.

Professor Goldsmith, in a book which was recently published, documented the concern that members of the administration had expressed. Judge Mukasey also sought to explain his unwillingness to give a legal opinion on whether waterboarding was torture because he hadn't been read into the program. I thought that was inadequate and insufficient. While it is true he was not read into the program, there is no doubt it would have been easy for him to have been read into the program. The investigation which had been conducted prior to the President submitting his name to the Senate as a nominee for Attorney General was very thorough, and there is no doubt that he would have been entrusted with whatever classified information was involved in being informed on the issue of waterboarding. So I thought that was an excuse and not weighty--or not a valid excuse.

Parenthetically, I think it is worth noting that there are members of the Judiciary Committee who were called upon to pass on Judge Mukasey's qualifications who had not been read into the program on waterboarding; that is, to know specifically what it was, whether it was used, what it was all about, was it entirely hypothetical, or what the facts were. We have some members of the Judiciary Committee--four--who are on the Intelligence Committee. The chairman and I as ranking member were read into the program. I tried to get the administration to read the members of the Judiciary Committee into the program, but the administration wouldn't do it. Now, they read the Intelligence Committee into the program, and I think the Intelligence Committee should have been read into the program, but the operative committee to pass on Judge Mukasey was not the Intelligence Committee. It was the Judiciary Committee. We voted on Judge Mukasey with members of the Judiciary Committee not knowing the specifics on waterboarding to have a sufficient basis, in my view, to cast an intelligent vote.

But the administration precluded that. This evening, there will be about 80 Senators--if they stay up until midnight, or whenever it is that we vote--who will be voting on Judge Mukasey and waterboarding is going to be a central issue of the debate tonight--without knowing the details of what waterboarding is.

The brutal fact is that the administration has not given Congress the information Congress should have received so that we can perform our oversight function. The Intelligence Act requires that members of the Intelligence Committee be notified of matters such as the secret terrorist surveillance program, and it may be that a few Members of Congress--the Speaker of the House, the senior Republican in the House, the majority leader of the Senate, and the minority leader of the Senate--were informed about the terrorist surveillance program. It may be that, finally, the chairman and ranking members on the Intelligence Committee in both Houses were informed. But the full committee, under the statute, was supposed to be informed. The administration didn't follow the statute as they should have. It was only when the confirmation of General Hayden came before the Senate that the administration finally notified the Intelligence Committee.

I voted against General Hayden to be Director of the CIA as a protest vote. I said he was well qualified for the job, and I voted against him as a protest because the administration had not followed the law. They should have informed me, as chairman of the Judiciary Committee in the 109th Congress, and Senator Leahy, as ranking member. That is a statement of what might be considered as a collateral matter. It is relevant in this discussion because Judge Mukasey was not read into the program. I think he should have been. I don't know that he would have said anything more. But now the ball is squarely in our court--the congressional court. Legislation is pending that would make waterboarding torture and, therefore, illegal.

This is the kind of question which I think is a quintessential example of what the Congress of the United States ought to decide. In a representative democracy, the Congress ought to make the determination of what is the appropriate public policy, and the Congress ought to assess the risk of terrorism--what is the risk to the United States?--and then consider the conduct of waterboarding. What does it do? How frequently has it been used, if at all? Where is there an intent to use it? The Congress ought to make this evaluation and make the decision. We are the proper people to decide that issue. If the Congress enacts legislation that is signed into law, then Judge Mukasey has stated unequivocally that he would enforce it.

Then there is another issue we all dance around, and that is the issue of the so-called ticking-bomb case. That is the situation described where a terrorist may come into possession of a powerful weapon--perhaps even a nuclear weapon--and, regrettably, that is not beyond the realm of possibility. There might be a situation where someone would know information that could stop the ticking bomb and injury to an enormous number of people could be prevented. What is to be done in that situation?

The generalized statements that have been made by so-called leaders in our society are that we ought not to define that situation. They say, if we were to say that torture, waterboarding, or some other extreme form of interrogation were legal under even the most limited circumstances, that we would give legitimacy to waterboarding, to torture. And then with an exception, you find people that say--as the expression goes, the hole is so big, you could drive a truck through it. But, if this Senate and the House take up our duty to decide whether waterboarding is torture, we ought to make a decision as to whether it could be used in any circumstance. Perhaps we should decide it should be used in no circumstance.

There has also been discussion about legislation to define the extraordinary circumstances when torture would be permitted--with a warrant application to a judge. We ask for judicial approval on wiretapping or warrants of arrest or on a variety of issues.

Then there are some who the surmise that if the President was faced with a situation of a ticking bomb, it would be up to the President to act under those exigent circumstances, and he could be relied upon. But that is not so easy either because it may well be--and I think, in fact, is--that agents of the CIA would not undertake, under a Presidential order, a violation of U.S. law because no one is above the law. Even if the President were to authorize it, the President doesn't do the waterboarding or interrogation. Those people would be unwilling to undertake something that was a violation of law.

There was a famous case, after World War I, where a ship was sunk by a submarine. The survivors in the lifeboat were at sea, and the submarine surfaced. The commander ordered the gunner to shoot the people in the lifeboat. The gunner resisted for a while, and then he followed his orders. He shot and killed the people in the lifeboat. The gunner was prosecuted, and he defended that he was following orders. The court said that you cannot follow illegal orders. Anybody should know better than to shoot people in a lifeboat.

So we have a major issue to consider as it relates to the confirmation of Judge Mukasey, and I think the ball is now in our court. He will enforce legislation that equates waterboarding with torture.

There are a couple of other points worthy of comment. I was not satisfied with Judge Mukasey's response to my questions on signing statements. We have seen that the President of the United States now does not follow the constitutional options when legislation is presented to him having been passed by both bodies, both Houses, where the Constitution says the President has the choice of signing it or vetoing it. We now find that he signs it and issues the signing statement, cherry-picking, deciding which of the provisions he will enforce and which he will not enforce.

One of the measures passed by Congress by a 90-to-9 vote of the Senate was prohibiting interrogation that met certain standards. The President had a famed rapprochement with Senator McCain on the point. They came to terms. We passed the McCain language. Then the President issued a signing statement which, in effect, said he retained his Article II powers not to follow it.

The PATRIOT Act, which came out of the committee during my tenure as chairman, gave the FBI substantial additional powers. In consideration of that, we reserved additional oversight. And then, notwithstanding that negotiation approved by the President's agents at the Department of Justice, the President issued a signing statement cherry-picking and leaving him free to disregard the oversight provision.

I think Judge Mukasey should have been unequivocal in condemning that practice and should have said he would advise the President to either sign legislation or veto it but not to cherry-pick. He had a very artful answer where he says he will try to avoid this kind of tension and conflict between the executive branch and the Congress. While I don't like that, I don't think it is a sufficient reason to vote against him.

Judge Mukasey was forthright on his views as to habeas corpus. He acknowledged that habeas corpus is a constitutional right, unlike his predecessor, who really rejected the plain English of the Constitution, which states that habeas corpus is a constitutional right.

Considering all of these factors, it is my judgment, after meeting informally with former Federal Judge Mukasey and participating in the extensive hearings and reviewing answers to many written questions, that Judge Mukasey is well qualified to be Attorney General. I think it unfortunate that there will be many negative votes against him. I think those negative votes will be in the context of this waterboarding issue, where there are very substantial emotional and political considerations involved, and Senators exercise rights to vote as they choose. But I do believe that even those who vote against Judge Mukasey will acknowledge his qualifications. He is well qualified by way of academic and professional background, and he has a very sterling record as a judge; that he is honest, forthright, and talented. He is a lawyer's lawyer or a judge's judge. When you talk to him or question him at a hearing, you get back very sophisticated, erudite answers, analytically displaying a vast knowledge of the Constitution and the cases which have been interpreted. What weighs heavily in my mind on Judge Mukasey is the urgent need of the Department for new leadership.

I thank the chairman for having a special markup on Tuesday. It was extra work for the committee, but Senator Leahy called the Judiciary Committee together for an extra markup. He has exercised the leadership to bring this matter to a vote tonight.

I thank the distinguished majority leader also for scheduling the vote, because the Department of Justice needs Judge Mukasey at work tomorrow morning. They need to have him sworn in sometime between the vote of confirmation tonight and 8 a.m. tomorrow, when people ought to report to work at the Department of Justice. The Department of Justice has been categorized as dysfunctional, in disarray. It is in urgent need of an Attorney General. When that is done, I think we will see some nominations for Deputy, which is vacant. An Associate Attorney General is only an acting deputy, and a number of assistants are only acting.

All things considered, I think it is in the national interest that we confirm former Federal Judge Mukasey. I predict he will do a sterling job as Attorney General.


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