Tom Harkin: Harkin Opposes Nomination Of Attorney General Nominee Mukasey

November 9, 2007 -- Washington, D.C. – U.S. Senator Tom Harkin (D-IA) today announced on the Senate floor his opposition to the nomination of Attorney General nominee Judge Michael Mukasey. Among other reasons, Harkin was most disappointed with Mukasey’s refusal to denounce torturous practices such as waterboarding and electric shocks, and his failure to recommend closing the Guantanamo Bay detention facility – even though Republican officials like former Secretary of State Colin Powell and Defense Secretary Robert Gates have agreed it should be shut down.

“Over the last six years, this Administration has shown it believes it can ignore the law, can eavesdrop on Americans without a warrant, and can indefinitely detain citizens without access to counsel or judicial review,” said Harkin. “Unfortunately, on these fundamental issues, Judge Mukasey has expressed a troubling view of unchecked executive power that make him unfit to be an objective check on the power of the Bush Administration.”

Senator Tom Harkin’s “AS PREPARED” statement follows:

“Mr. President, despite the many positive attributes of Judge Mukasey, I cannot support his nomination for Attorney General.

“The next Attorney General must be more than a capable steward of the Department of Justice. Given this Administration’s disdain for the rule of law, it is imperative that the next Attorney General be a strong and independent voice for a return to the very basic principle that we are a government of laws and not of men. Regrettably, I do not believe that Judge Mukasey will be that voice.

“Over the last six years, this Administration, supported by faulty legal opinions from the Justice Department, has claimed that it can ignore acts of Congress. This President has argued that despite the fact that since 1978 the Foreign Intelligence Surveillance Act has been the law of the land, he has the authority to eavesdrop on American citizens without a warrant or court review. This Administration believes that it can seize American citizens on American soil, and indefinitely detain them without charges, without providing the accused access to counsel, or without judicial review. The President believes he can utilize interrogation techniques long considered immoral, ineffective and illegal, regardless of the laws and treaties Congress has approved.

“As Justice Sandra Day O’Connor wrote, however, “[a] state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.” At a time when this nation needs an Attorney General who will stand up for the rule of law, Judge Mukasey has expressed a troubling view of unchecked executive power. For example, Judge Mukasey asserted that the President can violate Congressional statutes where the President claims broad authority to “defend the nation.” Judge Mukasey has refused to answer whether he believes American citizens detained by the President have the right to habeas corpus, a right that goes back to the Magna Carta almost 800 years.

“Like many of my colleagues, moreover, I am deeply troubled by Judge Mukasey’s well known refusal to assert that waterboarding – a practice which simulates death by real drowning – is illegal. Sadly, he also refused to answer that other terrible practices which this Administration has used are illegal. These include electrical shocks, beatings, the use of dogs, forcing prisoners to stand naked, and induced hypothermia.

“Let there be no misunderstanding: whether waterboarding is illegal is not a difficult question. Simply because this Administration believes it has the inherent authority to ignore the law and has consistently distorted the meaning of the word “torture” does not mean that Congress has not made clear that practices like waterboarding are prohibited.

“The Senate has repeatedly made clear, going back at least to the Senate’s ratification of the Geneva Convention in 1955, that torture is a violation of our highest values and is simply not permitted. In 2005, the Senate adopted the McCain amendment, by a vote of 90-9. That amendment reaffirmed that cruel, degrading or inhumane treatment of detainees was prohibited. Last year, the Military Commissions Act, which I opposed because it eliminated the right of habeas corpus, again expressly made clear that the President is bound by the prohibitions against cruel, inhuman and degrading treatment of prisoners.

“Nor can there be any question that waterboarding – a horrific practice going back to the Spanish Inquisition – is prohibited. As Senator McCain has described it, it is a “very exquisite torture.” Rear Admiral John Hutson, former Judge Advocate General of the Navy, has testified that “other than, perhaps the rack and thumbscrews, water boarding is the most iconic example of torture in history.” He added, “[i]t has been repudiated for centuries.” Going back to the Spanish-American War and including World War II, the U.S. military has brought charges against those who practice this terrible technique. In adopting the Military Commission Act, many Senators made quite clear that interrogation techniques like waterboarding are illegal and constitute “grave breaches” of the Geneva Conventions.

“Given the law, it is disappointing that an esteemed judge with the highest reputation in our legal community would not unequivacably state that of course waterboarding is both torture and illegal. It was not a difficult question and a question any serious candidate for attorney general should answer.

“I am also greatly troubled by Judge Mukasey’s refusal to commit to recommend to the President that the detention center at Guantanamo Bay be closed. Judge Mukasey has acknowledged that “there are substantial problems with Guantanamo, both problems of reality and problems of perceptions.” If he truly believes that, it is troubling that he was not willing to join Secretary of Defense Gates and former Secretary of State Powell in recommending that it be closed.

“Issues like torture and Guantanamo Bay are personal for me. I have seen first hand the terrible damage to our reputation and our war efforts that result when we do not live up to our highest principles. In 1970, as a staff assistant to a committee in the House of Representatives, I traveled to Vietnam. There, I saw, and brought back photographs of the so-called tiger cages at Con Son Island, off the coast of Vietnam, where Viet Cong and some North Vietnamese prisoners, were held, incommunicado, tortured and killed, with the full knowledge, support, and sanction of the United States, all in clear violation of the Geneva Convention.

“I saw then the damage to done our reputation. And, I am seeing the same damage done today by this Administration. Practices that certainly rise to the level of torture, as well as the continued operation at the detention center at Guantanamo Bay – which I have introduced legislation to close – have hurt our ability to wage an effective fight against the terrorists who attacked us on September 11, 2001. They are used in our enemy’s recruiting efforts and are used by those who wish ill will to our brave soldiers. We need an attorney general who is committed to bringing an end to these stains on our nation’s honor, and I am, sadly, not convinced Judge Mukasey is that person.

“Mr. President, the lawlessness in the Executive Branch must end. Because I cannot be confident, however, that Judge Mukasey will provide the necessary check on the excesses of the Administration, I regrettably cannot support this nomination.”

Source: Senator Tom Harkin

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