Ted Kennedy: Kennedy On The Nomination Of Michael Mukasey For Attorney General

(As Prepared for Delivery)

November 9, 2007 -- "Mr. President, the Department of Justice is in a state of crisis. Under Attorney General Gonzales, it too often served as a rubber stamp for the White House and as a pawn for political gain, rather than as the nation’s guardian of the rule of law. It ignored the law and authorized torture and warrantless surveillance. It let politics drive decisions about who should be prosecuted. It fired U.S. Attorneys who would not go along. It hired and punished career attorneys on the basis of their personal politics, and it abandoned enforcement of our civil rights laws.

After such an unacceptable period of tarnished leadership of the Department, we need a clear, decisive and straightforward Attorney General who is not afraid to stand up for the Constitution and the rule of law – especially when that means disagreeing with the President of the United States.

I had hoped that Judge Mukasey could be that person, but as I have stated, I will vote against his confirmation as Attorney General. He is clearly an able lawyer, and his commitment to public service as an Assistant United States Attorney and federal judge are admirable. As a federal judge for almost 19 years, he was by all accounts fair and conscientious in the courtroom. But after listening to Judge Mukasey’s testimony and considering his responses to written questions from members of the Judiciary Committee, I have concluded he is not the right person to lead the Justice Department at this crucial time in our history.

The next Attorney General must restore confidence in the rule of law. He must show the American people and the world that America has returned to its fundamental belief in the rule of law as the bedrock protector of our national values. Only an Attorney General who is not afraid to speak truth to power can be such a leader. Regrettably, Michael Mukasey has shown that he is not that leader.

Like many of my colleagues and many American citizens, I am deeply troubled by Judge Mukasey’s evasive answers about torture. He has repeatedly refused to acknowledge that waterboarding --the controlled drowning of a prisoner – is torture. Instead, he has said only that torture is unconstitutional, without being willing to say whether waterboarding is torture.

As the record makes clear, courts and military tribunals have consistently found waterboarding to be an unacceptable act of torture. As Malcolm Nance, a former Master Instructor and Chief of Training at the US Navy Survival, Evasion, Resistance and Escape School, said of waterboarding: “For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death.”

Waterboarding is an ancient and barbaric technique. In the fifteenth and sixteenth centuries, interrogators of the Spanish Inquisition used it. It was used against slaves in this country. In World War II, it was used against our soldiers by Japan. In the 1970’s, it was used against political opponents of the Khmer Rouge and the military dictatorships in Chile and Argentina. As I speak, it is being used against pro-democracy activists by the military dictators of Burma. This is the company that the Bush Administration embraces when it refuses to renounce waterboarding.

But Judge Mukasey is unwilling to say that waterboarding violates the law. He calls it repugnant, and it obviously is. But he refuses to condemn it as unlawful. Why? The answer seems painfully obvious. Former intelligence officers and supervisors have admitted – and the Vice President has confirmed – that the CIA has waterboarded detainees. Had Judge Mukasey renounced waterboarding as unlawful, he would have had to assert his independence and speak the truth about this Administration’s lawlessness. He was unwilling to do it.

We were told that Judge Mukasey had agreed to enforce a new law prohibiting waterboarding if Congress passed it. There are two problems with this statement. First, enforcing laws passed by Congress that are constitutional is the job of the Attorney General. It is a prerequisite to occupying the office, not a concession to be offered to win confirmation.

But, second, waterboarding is already illegal. It is illegal under the Geneva Conventions, which prohibit “outrages upon personal dignity,” including cruel, humiliating, and degrading treatment. It is illegal under the Torture Act, which prohibits acts “specifically intended to inflict severe physical or mental pain or suffering.” It is 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 illegal. After World War II, the United States prosecuted Japanese officers for using in waterboarding. What more does this nominee need to enforce existing 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 pass the buck to Congress. He has failed to demonstrate that he will be the clear, decisive and straightforward leader that the Department of Justice so desperately needs.

This Administration has recklessly brushed aside the rule of law for the past seven years. We need an Attorney General who will stand up to this destructive conduct and say “no more.” 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. "

Source: Senator Ted Kennedy

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