Statement of Senator Boxer on the Nomination of Judge Michael Mukasey to be Attorney General

November 8, 2007 -- Washington, D.C. – The following are Senator Barbara Boxer’s (D-CA) remarks as prepared for delivery on the Senate floor:

Mr. President, I rise today to express my opposition to the nomination of Judge Michael Mukasey to be our next Attorney General.

I thank Chairman Leahy and his committee for working hard to examine the nominee’s record and help us provide the advice and consent required by our Constitution.

I have respect for Judge Mukasey’s background, his dedication to public service, and his reputation as a distinguished jurist and a good man.

But when evaluating our nation’s chief law enforcement official we must weigh far more than background and likeability.

We must firmly believe that our next Attorney General must always put his loyalty to the Constitution above loyalty to the President.

Unfortunately, this is the wrong nominee at the wrong time.

We have a President and Vice President who have dangerously abused their executive power and undermined the public trust.

And this isn’t a partisan opinion. Listen to what John Dean, White House Counsel to President Richard Nixon wrote: “Not since Nixon left the White House have we had such greed over presidential power, and never before have we had such political paranoia … History never exactly repeats itself, but it does some rather good imitations.”

When an Administration spies on its own citizens without a warrant, strips habeas corpus rights from those held by America and fires its own U.S Attorneys for political reasons…that’s a shocking abuse of executive power.

When an Administration thinks it can just ignore an entire co-equal branch of government…even using signing statements to reinterpret or disregard more than 750 laws Congress has passed…that’s a shocking abuse of executive power.

When an Administration silences its own officials—rewriting testimony, shelving reports, refusing to let experts publicly speak the truth—that’s a shocking abuse of executive power.
I’ve seen this so many times with global warming experts whose truths the White House find “inconvenient.” What happens when the CDC Director wants to speak out before our EPW Committee about the health effects of global warming? The White House muzzles her by slashing her testimony.

We need an Attorney General who is going to check, not rubber stamp, this unprecedented abuse of executive power.

And, unfortunately, I don’t believe that nominee is Judge Mukasey.

Judge Mukasey ruled that President Bush had the authority to detain American citizens as enemy combatants without criminal charges or habeas corpus rights.

And, likewise, during his confirmation hearing, Judge Mukasey failed to demonstrate that he would independently evaluate this president’s broad assertion of executive privilege.

When asked if he would permit the U.S. Attorney to execute congressional contempt citations when the White House refuses to provide documents to Congress, Judge Mukasey didn’t say yes.

He should have.

The statute is clear that when Congress issues a contempt citation, the U.S. Attorney is required to bring the matter to a grand jury. In answering the question, Judge Mukasey sounded like the President’s attorney, not the people’s attorney. He basically avoided the question.

We must send a clear and unequivocal message to the Justice Department staff, to the American people, and to the world – that the United States honors and respects and will never turn away from our Constitution.

It’s not enough to be better than his predecessor.

It’s not enough to “hope” that the nominee will exercise independent judgment and stand up to this President and Vice President.

We must know, from the record before us, that the nominee will uphold the Constitution and our laws, clearly and unequivocally.

That’s a high standard – but it’s what the American people deserve – nothing less.

Unfortunately, Judge Mukasey’s response to questions about torture do not meet this standard.

During his confirmation hearing, the nominee was asked whether waterboarding is illegal. He responded that if waterboarding is torture, then it is unconstitutional.

If, waterboarding is torture? If? We are talking about a brutal interrogation technique that simulates drowning.

Not surprisingly, members of the Judiciary Committee were not satisfied with this answer, so they asked again: Is waterboarding illegal?

This time, Judge Mukasey responded with a four page letter that once again failed to answer. He called the question “hypothetical” and said that his legal opinion would depend on “the actual facts and circumstances.”

Depend on the actual facts and circumstances?

If waterboarding is torture ?

Is this the message that we want to send to the world? That our evaluation of a brutal tactic depends the facts and circumstances?

In fact, Judge Mukasey’s answer was a bit too similar to a statement by Alberto Gonzales that the legality of torture techniques “would depend on circumstances.”

This is not clear, it is not unequivocal, and it is not what we need in an Attorney General. It is not what we need in an Attorney General, now – in 2007—when the world is turning away from America as a moral leader.

Teddy Roosevelt did not have to consider the “facts and circumstances” in 1902 when he court-martialed and removed an American general in the Philippines for allowing his troops to engage in waterboarding. President Roosevelt said that nothing can justify the use of torture or inhuman conduct by our military.

Senators McCain, Warner and Graham, didn’t have to consider “the facts and circumstances” when they wrote to Judge Mukasey: “Waterboarding, under any circumstances, represents a clear violation of U.S. law.”

Waterboarding is not a hypothetical – it is used in Burma against supporters of democracy.

Waterboarding is an unconstitutional form of cruel and inhumane treatment.

It is illegal under U.S. laws—from the Torture Act, which prohibits acts “specifically intended to inflict severe physical or mental pain or suffering” to the Detainee Treatment Act, which prohibits “cruel, inhuman or degrading treatment.”

It is illegal under international law, such as the Geneva Conventions, which prohibit cruel, humiliating and degrading treatment.

Following World War II, the U.S. convicted several Japanese soldiers for waterboarding American and Allied POWs.

Our law and history are crystal clear: So why can’t Judge Mukasey also state in unequivocal terms that waterboarding is torture, and that it is illegal?

Mr. President, our country is at a critical point in its history. This President and Vice President have shown reckless disregard for the rule of law and the institutions sworn to uphold it.

Now, more than ever before, we need an Attorney General who can exercise independent judgment.

We need an Attorney General who shows every day, by word and deed, that the U.S. is still the world’s standard bearer for the rule of law.

We need an Attorney General who will truly turn the page and write a new chapter for the Justice Department and for our country.

Regretfully, I have concluded that Judge Mukasey cannot meet the critical standard, and I will vote against his confirmation.

Source: Senator Barbara Boxer

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