Senate Democrats

Reid: Mukasey’s Refusal To Address Legality Of Waterboarding Renders Him Unfit For Attorney General

Washington, DCSenate Majority Leader Harry Reid made the following statement today expressing his opposition to Judge Michael Mukasey’s nomination for Attorney General:

“I will vote against the nomination of Michael Mukasey for Attorney General of the United States.  It is regrettable that I must vote no.  When the President first nominated Judge Mukasey, I was fully prepared to support him. 

“Judge Mukasey has a stellar reputation for integrity and judicial excellence throughout his decades of government service.  I was pleased to see that after the Gonzales debacle, and with the Justice Department in shambles, the President finally relented to pressure from Senate Democrats to look beyond his inner circle for this important appointment.  And I considered it significant that an Administration that has shown such contempt for the other two branches of government, particularly judges, would turn to a candidate who served in the judicial branch for so many years. 

“So, like many Democrats, I was predisposed to support this nomination.  In fact, I was prepared to embrace it.  But then, during his confirmation hearings, Judge Mukasey expressed views about executive power that I and many other Senators found deeply disturbing.  And I was outraged by his evasive, hair-splitting approach to questions about the legality of waterboarding.  After his initial comments, Judge Mukasey was given every opportunity to address these concerns — but he was unable to state clearly that waterboarding is torture, and therefore illegal under U.S. law. 

“This is not a difficult or complex legal question.  It does not require high-level security briefings.  I agree with former Navy General Counsel Alberto Mora and former Assistant Secretary of State John Shattuck – who wrote in an op-ed this week that ‘The question of whether waterboarding constitutes torture is a no-brainer.’  Why is it a no-brainer?  My good friend, Judge Evan Wallach, is a former Nevada National Guard JAG officer and a leading expert on the law of war. 

“Judge Wallach wrote in a recent Washington Post article, ‘The media usually characterize the practice as “simulated drowning” [but] that’s incorrect.  To be effective, waterboarding is usually real drowning that simulates death.’  The only difference between actual drowning and waterboarding is that the waterboarding process is halted before death.  Victims inhale water, suffocate, and often pass out.  Who could reasonably argue that this is anything other than torture?

“Judge Wallach further points out in a related law review article that even under the extreme and now disavowed legal theories of former Justice Department officials like John Yoo, waterboarding still constitutes torture.  ‘Can there be any question,’ Wallach asks, ‘that water torture, the repetitive artificial drowning and revival of another human being, falls within their memo’s parameters?’  No – there can be no question at all.

“Notwithstanding the novel legal theories of this administration, it has long been settled law – in this nation and around the world – that waterboarding is torture and it is illegal.  Civil and military courts in the United States have rejected waterboarding for more than 100 years, whether directed at or committed by Americans:  

  • U.S. soldiers were court-martialed for using water torture to question Filipino guerrillas during the U.S. occupation of the Philippines after the 1898 Spanish-American war. 
  • After World War II, the U.S. prosecuted and convicted Japanese soldiers for waterboarding American and Allied prisoners of war. 
  • And during the 1980s, a Texas sheriff was sentenced to ten years in prison for using waterboarding to force confessions out of prisoners.

“So this is not a new debate, nor an unsettled question.  Judge Mukasey doesn’t need a classified briefing from the Bush White House to answer this question.  He has more than 100 years of established American law on which to base his position.  That is why it was so disturbing that for all his impressive years on the bench, Judge Mukasey could not give a simple straightforward answer to the question posed by members of the Judiciary Committee.  His lengthy, non-responsive answer was exactly wrong.  This was a question that demanded brevity and certainty, not lawyerly semantics. 

“My Republican colleagues, Senators McCain, Graham and Warner, who have served as leaders in the U.S. Senate on this issue, recently issued a detailed legal analysis which concluded that waterboarding ‘represents a clear violation of U.S. law.’  Former and sitting Judge Advocate Generals agree.  On Friday, in a letter to the Chairman of the Judiciary Committee, several prominent former Judge Advocate Generals declared unequivocally:  ‘Waterboarding is inhumane, it is torture, and it is illegal…Waterboarding detainees amounts to illegal torture in all circumstances.

“I could continue at length, quoting military and civilian experts who all agree that the answer to this question is settled.  But why is this issue of waterboarding so critical?  Tremendous damage has been done to the moral credibility of our great nation – both in the eyes of our allies and of our enemies abroad – by the widespread belief that the U.S. has used waterboarding and other abusive interrogation techniques.  As a result, our allies have at times refused to cooperate with us in the fight against terrorism, under constraints from their own laws and public opinion at home. 

“Even if the Bush Administration is no longer utilizing waterboarding, the President’s refusal to publicly disavow it gives license to our enemies abroad to use it.  This puts our troops and any citizen who may fall into our enemies’ hands at risk – and serves as an ongoing recruiting tool for militant extremists.  President Bush claims that we must not disclose our techniques to the enemy.  But I contend that we should shout from the hills and rooftops for all to hear – that no matter how hateful the actions of our enemies, we will never relinquish our most treasured commitment to human rights. 

“We should make it clear to all the world that no matter what our enemies do, our core American values cannot be shaken.  We deserve an Attorney General who will uphold this message.  Judge Mukasey’s answer to the waterboarding question was important in itself, but it also raised for me serious doubts about whether he is prepared to be the truly independent voice that the Justice Department so desperately needs.  If he cannot stand up to the President on such a question of profound importance with a clear legal answer, how can we be sure that he would be more than just another mouthpiece for an Administration that treasures secrecy and loyalty above all?

“Let me repeat that I respect Judge Mukasey’s long career in public service.  We have met in person, and there is no question that he is both intelligent and capable.  If he is confirmed, the eyes of every American will be on him as he faces the unenviable task of depoliticizing the Department of Justice and restoring the integrity that was so lacking under his predecessor, Alberto Gonzales.  He will have my earnest support in that challenge.  But in light of his responses during and following his confirmation hearings, I cannot stand by him today with my words or my vote.

“One day, historians will expend countless reams of paper and barrels of ink writing the story of the Bush Administration’s extremism in support of its never-ending quest to expand the reach of executive power.  There is no question that this time will be remembered as a dark chapter in America’s otherwise steady march toward justice.

“But for now, all we can do is honor the trust and authority given to us by the American people and do what we, as Senators, can, to turn the page to a brighter day.  What we can do today is reject this nomination.  The next Attorney General must be able to stand up to the President and for the rule of law.  If confirmed, I hope Judge Mukasey is up to that challenge.  But because he has not given me full confidence in his independence, I will vote against confirmation and I urge my colleagues to do the same.”