Carl Levin: Statement of Sen. Levin Opposing Mukasey Nomination

November 8, 2007 -- Tonight the Senate will vote on the nomination of Judge Michael Mukasey to be Attorney General. His nomination comes at a critical time. At this moment in history, America is faced with serious challenges both at home and abroad. We are at war in Iraq and Afghanistan and are engaged in a long-term struggle against al Qa’ida and other extremists.

Military might alone will not be enough for us to win these fights. Strengthening America’s security requires us to harness the power of our ideals and values and lead a global effort to confront these threats. When we project moral hypocrisy or suggest that our commitment to our fundamental values depends on the circumstances, we lose the support of the world in our common efforts against common enemies, thereby compromising our own security.

The pictures of American soldiers mistreating prisoners at Abu Ghraib and the stories of detainee abuse at Guantanamo Bay compromised our moral authority and our ability to lead the global struggle against al Qa’ida. America must demonstrate an unambiguous commitment to basic human rights. And this is not some intellectual musing. It is hard headed pragmatism.

Earlier this year, I visited some of our veterans at a Michigan VA hospital. I asked one Korean War veteran who was lying in his bed: What can we do to help you? And do you know what he said? “Win back the respect of people around the world for America.” That veteran understands that the erosion of support for America makes us less secure and weakens us in a way that military force cannot remedy.

I’ve devoted significant time looking into the issue of detainee abuse and considering what is appropriate when it comes to the treatment of detainees in U.S. custody. Building back the respect for America that the Michigan veteran and all of us seek requires a definitive commitment to treating all people – even our enemies – in a manner consistent with both our laws and basic human rights.

Last month I asked Judge Michael Mukasey, President’s Bush’s nominee to be Attorney General of the United States, what I thought was a straightforward question for the record: “Would you consider it inhumane to secure a detainee onto a flat surface and slowly pour water directly onto the detainee’s face or onto a towel covering the detainee’s face in a manner that induced a perception by the detainee that he was drowning?”

That question to Judge Mukasey should have prompted a simple answer of “yes.” But the Judge said that, while the tactic is “repugnant” to him, he could not say it was inhumane without evaluating the “facts and circumstances.” Judge Mukasey’s ambiguous response is more than deeply troubling, it sends a message – from the man nominated to head the Department of Justice – that abuses of detainees in U.S. custody may not have been categorically wrong, but that such acts might have been justified by the circumstances.

In 2002, the Department of Defense requested authority to use a number of aggressive interrogation techniques – including mock drowning – on detainees held at Guantanamo Bay. FBI agents vigorously objected to the aggressive techniques. One stated in a legal analysis that aggressive techniques, including mock drowning, were “not permitted by the U.S. Constitution.”

Another FBI agent also expressed alarm to his Justice Department colleagues over a DOD interrogation plan for a detainee held at Guantanamo Bay, saying “You won’t believe it!” An e-mail described abuses that a FBI agent had witnessed, including detainees being chained in fetal positions on the floor for 18 to 24 hours at a time, having urinated and defecated on themselves and being subjected to extreme cold.

If Judge Mukasey were to be confirmed to lead the Department of Justice, he would take charge of the FBI. How would Judge Mukasey respond to those FBI agents? Would he have said that the validity of those objections depended on the “circumstances”?

Over the past five years, the Department of Justice has repeatedly issued aggressive legal opinions that seek to exploit any possible legal ambiguity to justify the Administration’s policies. In 2002, for example, the Department of Justice issued a now disavowed memo finding that physical pain had to be “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death” to constitute torture. The Executive Order that the President issued in July of this year interprets Common Article 3 of the Geneva Conventions to bar only those outrageous acts that are done “for the purpose of humiliating or degrading the individual.” The Geneva Conventions make no such distinction. These results-driven interpretations of law have contributed to the negative image of the United States in the world, leaving many to question why we attempt to impose standards on other countries that we do not require of ourselves. These interpretations endanger our troops when captured because their captors will cite these interpretations to justify abuses of our troops.

It does a disservice to our Nation for a person who has been nominated to lead the Department of Justice to hide behind purposeful ambiguities, particularly at a time when our nation’s prestige has been so tarnished by abuses against detainees in our custody. The legality of mock drowning (waterboarding) does not depend on the circumstances. It is illegal.

Waterboarding clearly runs afoul of three federal statutes – the 1994 anti-torture statute, the Military Commissions Act, and the Detainee Treatment Act – and it is inconsistent with our obligations under Common Article 3 of the Geneva Conventions.

In his answers to questions from the Judiciary Committee, Judge Mukasey refused to state whether waterboarding constitutes torture under U.S. law. Under the federal anti-torture statute adopted in 1994 (18 U.S.C. § 2340), an act is torture if it is specifically intended to cause “severe physical or mental pain or suffering.” The statute defines “severe mental pain and suffering” as mental harm caused by, among other things, “threat of imminent death.” Pouring water over a detainee’s face to create the sensation of drowning is intended to threaten imminent death.

In questions for the record of an August 2006 Senate Judiciary Committee hearing, Senator Durbin asked each of the Judge Advocates General (JAGs) of the Marine Corps, Air Force, Army, and Navy whether, in their personal view: “the use of a wet towel and dripping water to induce the misperception of a drowning (i.e., waterboarding) (was) legal?” The answer from each of the JAGs was an unequivocal “No.” The Marine Corps JAG responded to Senator Durbin “Threatening a detainee with imminent death, to include drowning, is torture under 18 USC § 2340” (the anti-torture statute). Similarly, the Air Force JAG stated: “An interrogation technique that is specifically intended to cause severe mental suffering involving a threat of imminent death by asphyxiation is torture under 18 U.S.C § 2340.” And the Army JAG responded: “inducing the misperception of drowning as an interrogation technique is not legal.”

Whether the practice of mock drowning is legal is a question that our nation’s top military lawyers had no problem answering. But the nominee for Attorney General says that it depends on “circumstances,” it could be “yes,” it could be “no.”

The U.S. Navy’s Survival, Evasion, Resistance, and Escape (SERE) School trains our troops, whose dangerous assignments leave them susceptible to being captured, to resist and survive abusive tactics that might be used by the enemy. Waterboarding is one of the tactics that troops are exposed to at Navy SERE school. Listen to how a former master instructor and chief of training at the Navy’s SERE school described waterboarding in an October 31, 2007 article in the New York Daily News: “Waterboarding is slow-motion suffocation with enough time to contemplate the inevitability of blackout and expiration. Usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch. If it goes wrong, it can lead straight to terminal hypoxia - meaning, the loss of all oxygen to the cells.” As he put it, “waterboarding is a torture technique - without a doubt. There is no way to sugarcoat it.”

A U.S. federal court has concluded that mock drowning constitutes torture. The Ninth Circuit Court of Appeals examined an interrogation technique used by the Philippine military under Ferdinand Marcos whereby “all of [the victim’s] limbs were shackled to a cot and a towel was placed over his nose and mouth; his interrogators then poured water down his nostrils so that he felt as though he was drowning.” The court referred to this practice as “water torture” and found against those responsible for this and other illegal acts.

By contrast, Judge Mukasey not only refuses to state that waterboarding is torture, he also refuses to say whether it constitutes “cruel or inhuman treatment,” which is illegal under the Military Commissions Act of 2006.

Congress enacted the Military Commissions Act in the wake of Abu Ghraib scandal. The statute bans interrogations tactics that constitute “cruel or inhuman treatment,” which it defines as any act generally intended to cause “serious mental or physical pain and suffering.”

Medical experts who have treated and observed the survivors of water torture have described the physical and psychological severity of the practice and its long-term effect. Dr. Allan Keller, Associate Professor of Medicine at New York University (NYU) School of Medicine and Director of the Bellevue/NYU Program for Survivors of Torture, recently testified before the Senate Intelligence Committee that a person subjected to the waterboard, “gags and chokes, [and] the terror of imminent death is pervasive, with all of the physiologic and psychological responses expected, including an intense stress response, manifested by tachycardia, rapid heart beat and gasping for breath. There is a real risk of death from actually drowning or suffering a heart attack or damage to the lungs from inhalation of water.” Dr. Keller put it plainly, the “clinical experience and data from the medical literature are clear and unequivocal. These techniques can cause significant and long lasting psychological and often physical pain and harm.”

It is clear that waterboarding involves “serious” physical or mental pain or suffering and therefore constitutes illegal “cruel or inhuman treatment” under the Military Commissions Act. Yet, in response to questions from Senator Kennedy and Senator Biden, Judge Mukasey would not say whether waterboarding is “cruel or inhuman” under this legal standard.

When asked whether the practice of mock drowning on detainees was “cruel, inhuman, or degrading,” which is a violation Detainee Treatment Act, Judge Mukasey would not respond to the question, simply giving his stock answer that his analysis depends on the “circumstances.”

Congress passed the Detainee Treatment Act in 2005 to make clear that inhumane treatment is illegal. The Detainee Treatment Act prohibits subjecting any detainee in U.S. Government custody or control, wherever held, to “cruel, inhuman, or degrading treatment or punishment.” Those terms were defined to restrict any conduct that would constitute cruel, unusual, and inhumane treatment or punishment prohibited by the U.S. Constitution, which includes conduct that “shocks the conscience.”

There can be no question that mock drowning “shocks the conscience” and rises to the level of “cruel, inhuman, or degrading treatment or punishment” under the Detainee Treatment Act.

I asked Judge Mukasey whether the practice of mock drowning on detainees was “inhumane,” which would be a violation of Common Article 3 of the Geneva Conventions. Judge Mukasey would not respond to that question, again giving his stock answer that his analysis depends on the “circumstances.” Regardless of what the President’s recent Executive Order would suggest, the humane standard of Common Article 3 has never varied depending on the type of information in someone’s possession or the purpose behind the acts.

The Army Field Manual on Intelligence, which sets standards for military interrogations consistent with the Geneva Conventions and with U.S. law that prohibits “torture or cruel, inhuman, or degrading treatment or punishment” explicitly bans certain coercive techniques including “waterboarding.”

Throughout history America has condemned waterboarding by seeking prosecution of enemies who have used the technique on American servicemembers. Following the Second World War, U.S. military commissions and international tribunals prosecuted individuals who had used waterboarding, or similar forms of water torture on civilians and Allied forces. The U.S. military commissions in the Pacific Theater explicitly held that the “water cure” was torture in prosecuting cases related to the mistreatment of captured U.S. bomber crews. The U.S. Military Commission at Yokohama, Japan also tried four Japanese defendants for torture, including water torture, of American and Allied forces. Each of the defendants was convicted and sentenced to twenty years hard labor.

Would Judge Mukasey find it acceptable if U.S. soldiers were subjected to mock drowning by our enemies? Would he say that its acceptability depends on the “circumstances”? Would Judge Mukasey say that he needed to know the motives of our enemies before saying that our soldiers who endured waterboarding had been tortured or subject to inhumane treatment? Would he distinguish between someone who waterboarded our troops to elicit information as contrasted to someone who used the technique on our troops for sadistic purposes?

Judge Mukasey needs to be clear that waterboarding is illegal for the sake of protecting our men and women in uniform from abuse should they ever be captured. Judge Mukasey has not been clear and if he is confirmed to head our Justice Department, it will be America signaling moral ambiguity about what is unambiguously torture and inhumane.

In fact, the United States has prosecuted its own servicemembers who have used waterboarding and similar water tortures during interrogations. During the American intervention in the Philippines, in 1902, a military court rejected Major Edwin Glenn’s defense of “military necessity” and convicted him for using water torture on a captured insurgent. During the Vietnam War, a soldier participated in water torture which was captured in photos and published in the Washington Post on January 21, 1968. According to the Washington Post, the soldier was court martialed for his involvement in the practice.

U.S. veterans who served as interrogators in the Second World War recently discussed how proud they were that they were able to obtain vital information by using skill, not torture, and by treating a dangerous enemy with “respect and justice.” In an article in the Washington Post last month, one veteran proudly exclaimed, “During the many interrogations, I never laid hands on anyone. We extracted information in a battle of the wits. I’m proud to say I never compromised my humanity.”

I had hoped Judge Mukasey would stand with that veteran and stand up for American values. But despite the clear law and history, Judge Mukasey engaged in legalisms and obfuscation, playing into the negative image that others project about the U.S – that we apply double standards.

This kind of obfuscation tarnishes America’s image, which has a negative impact on our ability to organize and maintain alliances to achieve national goals. As Steven Kull, the director of the Program on International Policy Attitudes, stated: “The thing that comes up repeatedly is not just anger about Iraq. The common theme is hypocrisy. The reaction tends to be – You were a champion of a certain set of rules. Now you are breaking your own rules.”

Purposeful ambiguity about the legality of waterboarding and the other coercive interrogation techniques he was asked about is at the center of Judge Mukasey’s confirmation, just as it is at the center of how we are viewed in the world. That ambiguity is untenable and unacceptable in the person who, if confirmed, will symbolize America’s concept of justice before the world. For these reasons, I oppose Judge Mukasey’s nomination to be Attorney General.

Source: Senator Carl Levin

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