Statement of Senator Dick Durbin

Senate Judiciary Committee Markup
Nomination of Judge Michael Mukasey to be Attorney General,November 6, 2007

Judge Mukasey has a distinguished record of public service and, but for one issue, speaks with clarity on the law. His nomination hinges on that issue: the cruel, inhuman and degrading treatment of prisoners held by our government.

On that issue, the late historian Arthur Schlesinger Jr. said this about the Bush Administration’s legal defense of torture: “No position taken has done more damage to the American reputation in the world—ever.”

Alberto Gonzales was an architect of this Administration’s torture policy. As White House Counsel, he recommended that the President set aside the Geneva Conventions, calling them “quaint” and “obsolete.” And he requested and disseminated the infamous torture memo that limited the definition of torture to abuse that causes pain equivalent to organ failure or death.

In light of this outrage by our former Attorney General, there is a heavy burden on Judge Mukasey to make his views on torture clear. I am sorry to say that he has fallen short.

During his confirmation hearing, I asked Judge Mukasey whether the torture technique known as waterboarding is illegal. He refused to answer this question.

To give Judge Mukasey a chance to clarify his views on waterboarding, I wrote him a letter, which all ten Democratic members of the Committee signed. We asked Judge Mukasey a simple and straightforward question: Is waterboarding illegal?

Judge Mukasey refused to say whether waterboarding was illegal because, quote, “hypotheticals are different from real life” and it would depend on, quote, “the actual facts and the circumstances.”

This is not a “hypothetical.” Waterboarding, or simulated drowning, is a torture technique that was used in the Spanish Inquisition. And today it is used in Burma against democracy activists.

There are no “facts and circumstances” in which we should condone waterboarding. The Judge Advocates General, the highest-ranking military lawyers in each of the U.S. military’s four branches, testified unequivocally that waterboarding is illegal and violates Common Article 3 of the Geneva Conventions.

Following World War II, the United States prosecuted Japanese military personnel as war criminals for waterboarding U.S. prisoners. And our own State Department has long recognized that waterboarding is torture and cruel, inhuman and degrading treatment and has repeatedly criticized countries such as Sri Lanka and Tunisia for using waterboarding.

In a recent statement, Senators McCain, Warner, and Graham said, quote, “Waterboarding, under any circumstances, represents a clear violation of U.S. law. … anyone who engages in this practice, on behalf of any U.S. government agency, puts himself at risk of criminal prosecution.”

These Republican Senators, the JAGs, and our State Department did not need to be briefed on the Administration’s interrogation program to conclude that waterboarding is illegal. Neither should Judge Mukasey. And because he has not been briefed, offering his opinion on waterboarding won’t give away any secrets.

Consider the risk if we do not speak clearly about waterboarding and torture. By what moral authority can we condemn repressive governments like Burma that use waterboarding? And how can we speak with moral clarity in demanding that enemy forces not subject American prisoners to waterboarding?

Let me address this notion that Mukasey should be spared from offering a straight answer on waterboarding because our laws and policies are unclear on the subject. America’s position on waterboarding was clear enough to convict Japanese soldiers who tortured American soldiers during World War II and clear enough for the Bush Administration to condemn waterboarding by other countries in the State Department’s annual Human Rights report.

Judge Mukasey’s position on waterboarding is troubling, but there are other serious concerns.

I asked Judge Mukasey about torture techniques other than waterboarding, including painful stress positions, threatening detainees with dogs, forced nudity, and mock execution. The JAGs told me that each of these techniques is illegal. But Judge Mukasey said the exact same thing about these torture techniques as he did about waterboarding: they are “hypothetical” and whether they’re legal would depend on “the actual facts and circumstances.”

Judge Mukasey is not alone in this legal dodge. During a July 24th hearing, I asked Attorney General Gonzales whether it would be legal for a foreign government to use these torture techniques on an American citizen. He said, “[I]t would depend on circumstances, quite frankly.”

Judge Mukasey also refused to say whether he agrees with President Bush, Secretary of State Condoleeza Rice and Defense Secretary Robert Gates that the Guantanamo Bay detention facility should be closed. Instead, he told me that Guantanamo is a “fright wig” used by the Administration’s critics and that detainees at Guantanamo receive “three hots and a cot, health care better than many Americans, and taxpayer-funded Qurans.”

There are serious questions about the involvement of controversial Justice Department nominee Steven Bradbury in defending illegal spying and torture. But Judge Mukasey had this to say: “It is my understanding that Mr. Bradbury is a highly competent and dedicated public servant.” But when I asked about the nine fired U.S. Attorneys, Judge Mukasey punted, saying, “I am not sufficiently aware of the job performances of these individuals to offer comment.”

In contrast to his refusal to comment on the legality of waterboarding Judge Mukasey was willing to reach other legal conclusions. Take one example: the controversial issue of retroactive immunity for telecom providers who participated in the NSA warrantless surveillance program. Although he has not been briefed on the facts and circumstances of this highly-classified program, Judge Mukasey nonetheless stated, “retroactive immunity in my judgment would appear appropriate.”

Take another unsettled legal question: whether the Second Amendment secures an individual right to bear arms. Here is what Judge Mukasey told me: “Based on my own study, I believe that the Second Amendment protects an individual right to keep and bear arms.”

In other words, Judge Mukasey agrees with the Bush Administration when it comes to retroactive immunity and the Second Amendment. Why is he willing to take a position on these controversial issues, but unwilling to take a position on waterboarding?

Some have argued that President Bush won’t nominate anyone who will speak clearly on the issue of torture. That may be true, but I would much rather have an Acting Attorney General for the next 14 months than have the Senate give its consent to an Attorney General who refuses to repudiate a cruel and abusive technique that has been regarded as torture for over 500 years.

Finally, many of my colleagues and editorial writers argue that the fate of Judge Mukasey should not be decided by just one issue. But many of us have said that issues like race and the equality of women really are so fundamental that they transcend many other concerns.

When the history of this time is written, the issue of torture will define America’s values in the age of terrorism. Judge Mukasey’s responses to our questions on the issue of torture make it clear that he does not understand the challenge of this moment in our history.