Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - November 08, 2007)

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Mr. DURBIN. Mr. President, the Senate is now taking up the nomination of Judge Michael Mukasey to be the next Attorney General of the United States. It is a nomination which has become controversial. Judge Mukasey has served his country in many different ways. He served as a Federal judge before he retired, then went into private practice and was summoned to serve as Attorney General by this President. I had a chance to meet with him personally in my office. One cannot help but be impressed by the man's intelligence and erudition. He clearly is a person of strongly held beliefs and it takes little time to appreciate that when you meet him.

I left, after meeting him in my office, believing his nomination hearings would be interesting, and they were. On the first day, Judge Mukasey was a great witness, saying things that needed to be said about his plans to change the Department of Justice from the days of Alberto Gonzales, about his feeling of responsibility to the country not to abide by any decisions made by the President that were inconsistent with the law or the Constitution.

He went so far as to say he would resign before he would allow that to occur. I can recall speaking to my colleagues, including Senator Schumer, who sat next to me in the Judiciary Committee, and saying: What a breath of fresh air, how refreshing that he would be so candid and forthright. After all the years of Alberto Gonzales dodging questions, refusing to answer, here was a man who answered the questions. That was the first day.

Then came the second day of the hearing. When my turn came to ask questions, I proceeded to ask Judge Mukasey specific questions about torture. His answers to those questions led to a great deal of controversy and lead us to this moment in the Senate debate.

When we write the history of this early 21st century in America, there are going to be countless

stories of courage and compassion: Firefighters and police officers racing into the burning Twin Towers minutes before they collapsed on 9/11.

The passengers on United Airlines flight 93 overcoming hijackers and plunging to certain death instead of allowing the terrorists to reach what many believe was their intended target, the U.S. Capitol, and those of us working in the building at the time. Those passengers on that flight were true American heroes. Those of us in the Senate and the House and all of us in the Capitol will be forever in their debt.

There were hundreds of thousands of brave service men and women, every single one of them volunteers, leaving families and friends to defend our country. Thousands of them have come home to America in flag-draped coffins. Stories of courage and stories of compassion.

Sadly, during the same period, there have been stories of cowardice and cruelty. A short way down Pennsylvania Avenue from this Capitol building is the U.S. Department of Justice. In that building, attorneys manipulated the law to justify practices which were unthinkable in America. They put our troops at risk and sacrificed principles for which America has always stood and for which thousands died on 9/11 and the years since. They did tremendous harm to the image of this great Nation. The late historian Arthur Schlesinger, Jr., said this about the Bush administration's torture policy:

No position taken has done more damage to the American reputation in the world--ever.

Alberto Gonzales was an architect of the Bush administration's torture policy. As White House counsel, he recommended the President set aside the Geneva Conventions. The phrase ``Geneva Conventions'' brings to mind civility, fairness, and justice. How did Alberto Gonzales characterize the Geneva Conventions? He called them ``quaint'' and ``obsolete.'' He requested and approved the infamous Justice Department torture memo that limited the definition of torture to abuse that causes pain equivalent to organ failure or death.

Now we are asked to consider the nomination of Judge Michael Mukasey to succeed Alberto Gonzales. Judge Mukasey is obviously intelligent, with a distinguished record. But that is not enough. In light of Alberto Gonzales's shameful role in justifying torture, Judge Mukasey bears a special burden to make clear where he stands on the issue. I am sorry to say he has not met that burden.

Prior to his confirmation hearing when I met him in private, his responses troubled me. He told me ``there is a whole lot between pretty please and torture'' and that coercive techniques short of torture are sometimes effective. When I reminded Judge Mukasey that cruel, inhuman, and degrading treatment are illegal under U.S. law, he said he thought these terms were ``subjective'' and suggested the President might have authority as Commander in Chief to ignore the prohibition.

In light of these responses, which troubled me greatly, I decided to follow up with the questions I asked at his confirmation hearing. I asked him whether the torture technique known as waterboarding is illegal. He refused to answer, saying:

I don't know what's involved in the technique. If waterboarding is torture, torture is not constitutional.

Frankly, I was surprised that Judge Mukasey was unfamiliar with waterboarding. This is not a new technique. It may be one of the oldest recorded forms of torture in the world.

Retired RADM John Hutson, former Navy Judge Advocate General, also testified at Judge Mukasey's hearing. He was asked about Judge Mukasey's position on waterboarding. This is what he said:

Other than perhaps the rack and thumbscrews, waterboarding is the most iconic example of torture in history. ..... It has been repudiated for centuries. It's a little disconcerting to hear now that we're not quite sure where waterboarding fits in the scheme of things. I think we have to be very sure where it fits in the scheme of things.

To give Judge Mukasey a chance to clarify his views, I wrote him a letter, which all 10 Democrats on the Senate Judiciary Committee signed, and asked him a very straightforward question. Certainly, straightforward questions need to be fielded by lawyers, by judges, and the Attorney General.

The question was this: Is waterboarding illegal?

It took Judge Mukasey four pages, in a response to our committee, to say nothing. He refused to say whether waterboarding was illegal because ``hypotheticals are different from real life.'' He went on to say it would depend on ``the actual facts and circumstances.''

Waterboarding is not hypothetical. This old woodcut dates back to the Spanish Inquisition, 515 years ago. It shows a prisoner being subjected to waterboarding. This is no new idea. It is simulated drowning to create panic in the mind of the detainee and to force compliance.

The Spanish inquisitors referred to waterboarding as ``tormenta de toca,'' after the linen towel they placed over a victim's mouth and nose during the procedure. Waterboarding was part of an elaborate regime of torture that included the rack and dislocating limbs by means of a pulley.

Here we are 500 years later, and it is still being used today, sadly, in Burma by the military dictatorship. There are no facts and circumstances that need to be considered--it either is or it isn't torture.

Judge Mukasey would not say whether waterboarding was torture. Many others have, and they did not need four pages of legal obfuscation. I received a letter from four retired military officials about Judge Mukasey's position on waterboarding. This is what they said:

This is a critically important issue--but it is not, and never has been, a complex issue. ..... Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise--or even to give credence to such a suggestion--represents both an affront to the law and to the core values of our nation.

In a recent statement on the Mukasey nomination, Republican Senators John McCain, John Warner, and Lindsey Graham wrote:

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.

The Judge Advocates General, the highest ranking military lawyers in America--all four branches--testified unequivocally to the Senate Judiciary Committee that waterboarding is illegal and violates Common Article 3 of the Geneva Conventions. If these high-ranking military officials and our fellow colleagues in the Senate can answer this question so directly, why can't Judge Mukasey?

Let's take an example.

BG Kevin M. Sandkuhler, Staff Judge Advocate to the Commandant of the Marine Corps, stated that ``threatening a detainee with imminent death, to include drowning, is torture.'' No equivocation there. Nothing about ``facts and circumstances.'' He did not need to hear more. Simulated drowning is torture.

Malcolm Nance is a former master instructor and chief of training at the U.S. Navy Survival, Evasion, Resistance and Escape School. He trained Navy SEALS to resist torture, including waterboarding. Listen to what Mr. Nance, former master instructor of the SEALS, had to say:

I know the waterboard personally and intimately. ..... I personally led, witnessed and supervised waterboarding of hundreds of people. ..... Waterboarding is a torture technique. Period. There is no way to gloss over it or sugarcoat it. ..... Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration--usually the person goes into hysterics on the board. ..... When done right it is controlled death.

Each year, our State Department stands in judgment of the human rights record of the world. It is a rather bold thing for us to do, to say that our Nation has the moral authority to judge all the nations in the world when it comes to human rights. This is not the first President to do it. Many before have. Our own State Department has long recognized that waterboarding is torture and repeatedly criticized countries such as Sri Lanka and Tunisia for the use of the technique--a technique Judge Mukasey will not even acknowledge as torture.

For over 100 years, our Government has treated waterboarding as a crime. Judge Evan Wallach, who used to work for majority leader Harry Reid, is a former military lawyer and expert on waterboarding. He recently wrote a study that concluded:

In all cases, whether the water treatment was applied by Americans or to Americans, or simply reviewed by American courts, it has uniformly been rejected as illegal, often with severely punitive results. .....

In April of 1902, 105 years ago, during the U.S. occupation of the Philippines, Secretary of War Elihu Root directed that officers alleged to have used water torture be tried by court-martial. That year, U.S. Army MAJ Edwin Glenn was convicted of having ordered and directed the application of the so-called water cure. Army Judge Advocate General George Davis said of Major Glenn that he was guilty of ``a resort to torture with a view to extort a confession.'' Mr. President, 105 years ago we convicted an American soldier of engaging in torture, for using waterboarding in the Philippines.

What happened after World War II? The United States prosecuted Japanese military personnel as war criminals for waterboarding U.S. and other prisoners.

At the U.S. military commission at Yokohama, we tried three Japanese defendants for torture. The charges included ``fastening [an American Prisoner of War] on a stretcher and pouring water up his nostrils.'' During the trial, Thomas Armitage, one of the American victims, described it. This is what he said:

[T]hey would lash me to a stretcher then prop me up against a table with my head down. They would then pour about two gallons of water from a

pitcher into my nose and mouth until I lost consciousness.

What did we say of the Japanese soldiers responsible for that heinous conduct? We said they were guilty of war crimes--war crimes against American soldiers and prisoners. They were convicted and sentenced to between 15 and 25 years of confinement at hard labor--for a crime that this man who would be our Attorney General cannot acknowledge as obvious, clearly illegal, and inconsistent with America's values.

In the trial of a Japanese soldier for the torture and murder of Philippine civilians, one victim testified:

I was ordered to lay on a bench and [they] tied my feet, hands and neck to that bench lying with my face upward. After I was tied to the bench [they] placed some cloth on my face and then with water from the facet they poured on me until I became unconscious.

What does it take? What does it take to get this man who wants to be the premier law enforcement official in America to acknowledge the obvious? Waterboarding is torture. Waterboarding is illegal. Waterboard- ing is unconstitutional and inconsistent with American values.

Some within this administration share the puzzlement that Judge Mukasey has over torture. Apparently, Vice President Dick Cheney is one. He was asked whether it would be acceptable to him to give a detainee ``a dunk in the water.'' The Vice President's response was: ``it's a no-brainer for me.''

And the Bush administration now seems to have reined in the State Department, despite the fact that we have condemned other nations for waterboarding. Earlier this week, John Bellinger, the State Department's top legal adviser, was asked whether there could be any circumstances in which a foreign government could justify waterboarding an American citizen. Listen to this response from the Bush administration as to whether an American citizen could be waterboarded:

One would have to apply the facts to the law, the law to the facts, to determine whether any technique, whatever it happened to be, would cause severe physical pain or suffering.

Incredible. We prosecuted Japanese soldiers for doing this to Americans, and now this administration, maintaining this notion that somehow this is a hazy, undefinable concept, will not even clearly condemn the use of waterboarding to torture Americans.

Judge Mukasey's position on waterboarding is troubling, but there are other serious concerns which I explained during the Judiciary Committee debate. He would not answer direct questions about other torture techniques even though the Judge Advocates General had made it clear they were torture. Sadly, time and again, he said his response would depend on the facts and circumstances.

Mr. President, I do not know when--I do not know if I will be here to see it; I may not be alive at the time--but history will be written about this moment. The history will be written about what we have done as a nation under the administration of George W. Bush. There will be good things said, I am sure, but there will also be chapters written about, how this administration raised an issue which we thought was a settled matter, how this administration has now brought in play the question of torture, how this administration has identified this great, caring, and good Nation with that issue.

Our only hope is that men and women of courage within this administration and outside will stand up and say clearly, once and for all, torture is un-American, torture is ineffective, and torture is unacceptable when applied to detainees in our control or to Americans in the control of others. Judge Mukasey would not say that. He was unwilling to make those statements.

I think this issue transcends many other issues. Some will come before us and say the problem here is Congress just has not done its job. If Congress would sit down and really put a good definition of torture together, then maybe we could ask Judge Mukasey about it, ask whether he would enforce it.

Really? Mr. President, 105 years ago, the United States knew waterboarding was torture and prosecuted an American soldier for engaging in it. Sixty years ago, we knew waterboarding was torture and prosecuted Japanese soldiers for war crimes. And now, in this moment in history, is there really any uncertainty? The real uncertainty is what the administration has done in the name of our country in the treatment of prisoners.

When the history of this time is written, there will be stories of courage and stories of cowardice. Rest assured, the United States will not be viewed kindly if we confirm as the chief law enforcement officer of this country someone who is unwilling or unable to recognize torture when he sees it.

I yield the floor.

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