Statement Of Chairman Patrick Leahy
On The Nomination Of Michael B. Mukasey To Be Attorney General Of The United States

November 6, 2007

I spoke in Vermont last Friday about my decision to vote against the President’s nomination. I wish to emphasize a few important points this morning.

Nothing is more fundamental to our constitutional democracy than our basic notion that no one is above the law. This Administration has undercut that precept time after time. They are now trying to do it again, with an issue as fundamental as whether the United States of America will join the ranks of those governments that approve of torture. This President and Vice President should not be allowed to violate our obligations under the Convention Against Torture and the Geneva Conventions or disregard U.S. statutes such as our Detainee Treatment Act and War Crimes Act. They should not be allowed to overturn more than 200 years of our Nation’s human rights and moral leadership around the world.

The Administration has compounded its lawlessness by cloaking its policies and miscalculations under a veil of secrecy, leaving Congress, the courts, and the American people in the dark about what they are doing. The President says that we do not torture, but had his lawyers redefine torture down in secret memos, in fundamental conflict with American values and law.

I agree with the Generals, the Admirals, and our JAG officers that waterboarding is torture and is illegal. If an American were waterboarded anywhere in the world, would we have to know the “circumstances” and purported justifications for it before condemning it? Of course not.

Some have sought to find comfort in Judge Mukasey’s personal assurance that he would enforce a future, new law against waterboarding if this Congress were to pass one. Unsaid, of course, is the fact that any such prohibition would have to be enacted over the veto of this President.

But the real damage of this argument is not its futility. The real harm is that it presupposes that we do not already have laws and treaty obligations against waterboarding. In fact, we do. No Senator should abet this Administration’s legalistic obfuscations by those such as Alberto Gonzales, John Yoo, and David Addington by agreeing that the laws on the books do not already make waterboarding illegal. We have been prosecuting water torture for more than 100 years.

When a top legal adviser at our State Department cannot say that the waterboarding of an American is illegal, and our State Department cannot forcefully rule it out as a “technique” that might be okay for other countries’ foreign intelligence services to use against U.S. citizens, we see how far wrong this Administration has headed. When asked at a recent public debate whether he could imagine any circumstance in which waterboarding could be justified on an American national by a foreign intelligence service, John Bellinger of the State Department said, “one would have to apply the facts to the law” and when pressed he said that he was not willing to “include it or exclude it” and that he did not want to “get involved in abstract discussions.” That is so wrong that it is chilling.

When it comes to our core values – the things that make our country great and that define America’s place in the world – it does not depend on the circumstances. America, the great and good Nation that has been a beacon to the world on human rights, does not torture and should stand against torture.

That is not what America stands for. Indeed, the better example is set by the Army Field Manual, which instructs our forces to consider how we would react if what a soldier was about to do to someone was done to an American soldier.

In their recent letter to the nominee, Senators Warner, McCain, and Graham recognize, as I do and as I hope all Senators do, that: “Waterboarding, under any circumstances, represents a clear violation of U.S. law.”

Finally, when the Administration and others say that we cannot say whether America waterboards people because it would tip off our enemies, they have it precisely wrong. That is about as effective as Saddam Hussein hinting that he had weapons of mass destruction when he did not in order to impress his enemies. In refusing to say that we do not waterboard prisoners, we give license to others. When the United States cannot state clearly that waterboarding is torture and illegal and will not be tolerated, what does that mean for other governments, and what comfort does that provide the world’s most repressive regimes?

I wish that I could support Judge Mukasey’s nomination. I like Michael Mukasey. But this is an Administration that has been acting outside the law and an Administration that has now created a “confirmation contortion.” When many of us voted to confirm General Petreas, the Administration turned around and, for political advantage, tried to claim that when we voted to confirm the nominee, we also voted for the President’s war policies. Just as I do not support this President’s Iraq policy, I do not support his torture policy or his views of unaccountability or unlimited Executive power.

No one is more eager to restore strong leadership and independence to the Department of Justice than I. What we need most right now is an Attorney General who believes and understands that there must be limitations on Executive power. America needs to be certain of the bedrock principles in our laws and our values that no President and no American can be authorized to violate. Accordingly, I vote no on the President’s nomination.