Wednesday, November 7, 2007

Kennedy and Specter on Mukasey and the onus of torture

I thought Ted Kennedy's dissenting comments on the Senate Judiciary Committee's confirmation of Mukasey were very eloquent:

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 nineteen 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 fifteenth and sixteenth century, it was used by interrogators in the Spanish Inquisition. In the nineteenth 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 US 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 forty-five 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.

And while Arlen Specter voted in favor of confirmation, his statement also reads as eloquent dissent, with an "although" tacked onto the beginning:
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. The 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.
He might as well have concluded with, "But this is Opposite Day, so I'm voting to confirm him."

    And now! Ten films I happened to watch recently...

  • The Seeker: The Dark is Rising (2007)
  • The Black Stallion (1979)
  • Raising Arizona (1987)
  • Big Fish (2003)
  • The Last Mimzy (2007)
  • Meet the Robinsons (2007)
  • An Inconvenient Truth (2006)
  • Bee Movie (2007)
  • O Brother, Where Art Thou? (2000)
  • Ratatouille (2007)

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