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Despite Waterboarding Stance, Senate Committee Approves Mukasey’s Attorney General Nomination

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Michael Mukasey ultimately owed his approval by the committee to the two Democrats who broke with their party to support him: Chuck Schumer of New York and Dianne Feinstein of California. His confirmation had been in doubt after he refused to condemn waterboarding as a form of torture. Now his nomination is expected to go to the Senate floor by next week, where he is virtually assured to win confirmation. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The Senate Judiciary Committee approved the nomination of Michael Mukasey to be attorney general on Tuesday by a vote of 11 to eight. Mukasey ultimately owed his approval by the committee to two Democrats who broke with their party to support him: Chuck Schumer of New York and Dianne Feinstein of California. They joined all nine Republicans on the panel in backing Mukasey. Eight Democrats voted against him.

Mukasey’s confirmation had been in doubt after he refused to condemn waterboarding as a form of torture. Now, his nomination is expected to go to the Senate floor by next week, where he is virtually assured to win confirmation.

The Judiciary Committee’s ranking Republican, Senator Arlen Specter of Pennsylvania, said at yesterday’s hearing he had been dissatisfied with some of Mukasey’s responses to questions about waterboarding and torture, but that he ultimately decided to approve his nomination.

SEN. ARLEN SPECTER: What do we have to say about the morality of waterboarding? Is it banned by some international commitment, the Geneva rules? A very fuzzy — very fuzzy area.

Justice Jackson made a lot of famous statements, and one of his most famous statements was that the Constitution is not a suicide pact. Not a suicide pact. So we’re not bound by the Constitution to undertake conduct which would be a suicide, so that it is my thought that Judge Mukasey went about as far as he could go.

I thought he was not on solid ground when he said he wasn’t read into the program, that he didn’t know what waterboarding was. Waterboarding is generally well known. Not being read into the program, I thought, was — candidly — an excuse, and a flimsy excuse. Certainly, he had been investigated sufficiently so the president was confident to tell him the highest secrets of the country, and he could have been read into it and could have given us a judgment.

And he said, in answers to my letter of October 24, that he was reluctant to put people at risk, and we know that a couple of weeks ago former Secretary of Defense Rumsfeld was served with legal process, unclear exactly what it was, perhaps a warrant of arrest. We know that some countries are exercising extraterritorial jurisdiction on crimes against humanity, that Prime Minister Sharon was under indictment from Belgium. And we know what happened with Pinochet, so that there is a risk factor. So I think he went about as far as he could go, and I think now it’s a matter for the Congress.

I want to express one other concern, and that is a concern about what Judge Mukasey may have as a view of excessive executive authority. I’m very concerned about the presidential signing statements, where we pass legislation and under the Constitution he has the authority to either veto it or sign it, and he cherrypicks. But he did it in two contexts, which were very troubling. One was, after his negotiations with Senator McCain, when we legislated on interrogation, he signed the bill and said he didn’t have to follow it. And we passed out of this committee the PATRIOT Act, passed the Congress, and we gave the FBI additional powers on the condition that we had more oversight. Then he signed the PATRIOT Act, and he said he didn’t have to abide by the conditions on oversight.

And I asked Judge Mukasey about that, and I got back an answer which is totally unsatisfactory. He said, “I agree with you that presidential signing statements should not be a vehicle for creating unnecessary confrontation.” Well, what does that mean? Is there necessary confrontation? And he says he will keep in mind the concerns when advising the president. I think the attorney general should have said, “If the president negotiates an arrangement with Congress, signs a bill, he ought to stand by it and not act to the contrary.”

But all factors considered, I think that the balance is decisively in favor of confirming Judge Mukasey. And I look forward to congressional consideration of this issue of waterboarding. We’re the people who ought to decide it. And with his assurances in writing that he will back us up, that’s good enough for me.

AMY GOODMAN: Pennsylvania Senator Arlen Specter, the ranking Republican on the Senate Judiciary Committee. Senator Patrick Leahy, the Committee Chair, decided to call for a vote before any other panel members spoke.

SEN. PATRICK LEAHY: So why don’t we call the roll and then go back to individuals in order of seniority on both sides? We’ll alternate sides. Clerk will call the roll.

CLERK: Mr. Kennedy.


CLERK: Mr. Biden.

SEN. PATRICK LEAHY: No, by proxy.

CLERK: Mr. Kohl.


CLERK: Mrs. Feinstein.


CLERK: Mr. Feingold.


CLERK: Mr. Schumer.


CLERK: Mr. Durbin.

SEN. PATRICK LEAHY: No, by proxy.

CLERK: Mr. Cardin.


CLERK: Mr. Whitehouse.


CLERK: Mr. Specter.


CLERK: Mr. Hatch.


CLERK: Mr. Grassley.


CLERK: Mr. Kyl.


CLERK: Mr. Sessions.


CLERK: Mr. Graham.


CLERK: Mr. Cornyn.

SEN. PATRICK LEAHY: Aye, by proxy.

CLERK: Mr. Brownback.


CLERK: Mr. Coburn.


CLERK: Mr. Chairman.


CLERK: Mr. Chairman, the votes are 11 yeas, eight nays.

SEN. PATRICK LEAHY: The nomination is passed by the committee. It will be sent to the floor, and the leader will set a time to schedule. Could I — one, I appreciate the interest of all the members of the public in the committee’s work. There are many people who have come to hear this hearing. I expect everyone here to be respectful of the committee and other members of the public. And if there are — certainly, everybody is able to express an opinion, but not audibly. If there are audible expressions of opinion, I am directing the police to remove the people who do that, whether they agree with my position or not.

AMY GOODMAN: Senator Leahy, threatening to remove protesters from the hearing room after some members of the antiwar group CODEPINK who were in attendance spoke out in opposition during the vote roll. Massachusetts Senator Ted Kennedy was the first to speak after the committee vote.

SEN. TED KENNEDY: 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, 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 an 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 am 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 15th 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 described the waterboarding this way: the prisoner is bound to an inclined board, feet raised and head slightly below the feet; cellophane is wrapped over the prisoners 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 [and] if it goes wrong, it can 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 will be a 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.

AMY GOODMAN: Democratic Senator Ted Kennedy, speaking in the Senate Judiciary Committee. When we come back from break, the two Democratic senators who voted for Mukasey’s confirmation: Feinstein and Schumer. Stay with us.


AMY GOODMAN: California Democratic Senator Dianne Feinstein was one of two Democrats who broke with her party to support Michael Mukasey’s nomination as attorney general.

SEN. DIANNE FEINSTEIN: The president has said publicly that he will not send another nominee to the Hill. What does that mean? It means that for the remaining 14 months of this president’s tenure, we will effectively have an acting attorney general. It means that most likely there will be recess appointments this winter of the ten positions in the department which are filled by acting or interim individuals. I don’t believe a leaderless department is in the best interest of the American people or the department itself. And I think that’s something really worthy of consideration. I believe the president would not send another nominee to the Hill. I believe he appointed this man because he believes he is mainstream. I believe there was even discussion about whether he should appoint him or appoint somebody who was even more conservative.

Now, let me bring up the subject of torture. I believe waterboarding is illegal. I believe it’s prohibited under the Convention Against Torture and the Geneva Conventions. I believe that waterboarding is prohibited for the United States military under the Detainee Treatment Act and the United States Criminal Code. And I believe that neither the military nor the CIA should use waterboarding. But I don’t believe that Judge Mukasey should be denied confirmation for failing to provide an absolute answer on this one subject.

Now, as was said earlier, last week Judge Mukasey specifically told Senator Schumer that if Congress passes a law that outlaws waterboarding in all circumstances, the president would have no legal authority, no inherent authority under Article II to ignore it. Now, I know that there are very prestigious civil rights groups in this country that believe that this difference in United States law, in other words, the Detainee Act on one side providing a prohibition against waterboarding for anyone in any branch of the military and no specific coverage of the CIA, there are those that believe it doesn’t really matter; what the CIA does is still covered under these international treaties to which we are a signatory. I believe that’s correct. Nonetheless, it is very easy to remedy, and it is very easy to simply say waterboarding is prohibited in any vehicle that we may have before us. I think there is an argument that can be made to do that, to take this off of the table of any other discussion and to make it very, very clear. So that’s something I think we’re going to have to decide and come to grips with in these months.

But I really believe that this man is going to be an independent breath of fresh air in this department. I really believe, though, that he has a very short time in which to put his imprimatur on the department. And I would hope that he moves rapidly. I hope he will step forward and be a truly non-political, nonpartisan attorney general, that he will make his views very clear, and that once he has the opportunity to do the evaluation he feels he needs on waterboarding, will be willing to come before this body and express his views comprehensively and definitively.

Thank you very much, Mr. Chairman.

SEN. PATRICK LEAHY: Thank you. Without —- there will be -—

PROTESTER: Shame on you! Shame on you!

SEN. PATRICK LEAHY: Officers, will you remove the person?

AMY GOODMAN: Committee Chair Patrick Leahy, directing security to remove a protester from the hearing room after they spoke out at the end of Senator Feinstein’s comments. The remaining protesters, members of the antiwar group CODEPINK, stood up in silence in the back of the room, holding up signs in opposition to Mukasey and torture.

Later in the hearing, New York Senator Charles Schumer, the other Democrat who broke with his party to support Mukasey’s nomination, explained the reasons behind his vote. Schumer had initially recommended Mukasey to the White House as a consensus candidate.

SEN. CHARLES SCHUMER: Today, I voted today to confirm Michael Mukasey as attorney general of the United States. I did so for one overarching reason: the Department of Justice, once the crown jewel among our government institutions, is adrift and rudderless; it desperately needs a strong and independent leader at the helm to set it back on course, and I believe Judge Mukasey is that person.

As this committee’s own investigation has found over the last nine months, the department has been run into the ground by the Bush administration. The department has been mired in scandal: inexplicably fired U.S. attorneys, political prosecutions, ideological litmus tests for career lawyers, mass departures by civil rights lawyers. The list goes on and on. But now we’re on the brink of a reversal. There is virtually universal agreement, even from those who oppose Judge Mukasey, that he would do a good job in turning the department around in these areas.

We need a leader to take care of the department, not a caretaker as the president has promised if we reject Judge Mukasey. To accept such an unaccountable caretaker, I believe, would be to surrender the department to the extreme ideology of Vice President Dick Cheney and his chief of staff, David Addington, without check. All the work we have done, the months and months and months of hearings and discussions, all the work we have done to pressure Attorney General Gonzales to resign, would be undone in a moment.

Now, let me be clear on the torture question. I deeply oppose this administration’s opaque policy on the use of torture, its refusal to reveal what forms of interrogation it considers acceptable. I deeply oppose all forms of torture. It debases us and opens our own citizens to abuse abroad. Specifically, I believe that the cruel and inhumane technique of waterboarding is not only repugnant, but also illegal under current laws and conventions, period. I also support Congress’s efforts to pass additional measures that would explicitly ban this and other forms of torture.

When Judge Mukasey came before the Senate Judiciary Committee, he refused to state that waterboarding was illegal. That was unsatisfactory to me and many members of the committee on both sides of the aisle. But he has personally made clear to me that if Congress passed further legislation in this area, the president would have no legal authority to ignore it, and Judge Mukasey would enforce it. From a Bush nominee, this is no small commitment, as it flatly contradicts David Addington’s own view of executive power and the President’s authority to order torture. And this is an important point.

Even without the proposed law in place, Judge Mukasey would be more likely than a caretaker to find on his own that waterboarding is illegal. Indeed, his written answers to our questions have demonstrated more openness to ending the practices we abhor than either of this president’s previous attorney general nominees have. We could expect no such openness from a caretaker attorney general. In many respects, Judge Mukasey reminds me of Jim Comey, a former deputy attorney general in the Bush administration, who disagreed with us on many issues, but displayed admirable, unique independence. He has been widely praised for it.

Now, I understand and greatly respect the view of some of my colleagues that the tortured question trumps all other considerations. For the Senate to make a bold declaration about torture and waterboarding by rejecting Judge Mukasey is appealing, but to defeat him would abandon the hope of instituting many of the reforms called for by our investigation. And if six months from now with a caretaker attorney general the same policies continue, the victory in defeating Mukasey would seem hollow. No one questions that Judge Mukasey would do much to remove the stench of politics from the Justice Department. I believe we should give him that chance.

AMY GOODMAN: New York Democrat Charles Schumer, explaining why he supported Mukasey’s nomination as attorney general. The Senate’s Democratic leaders are expected to schedule a vote by next week, where he is virtually assured of being confirmed.

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