Say Anything Blog

Is Joe Lieberman the last homorable Democrat? Listen to the picture he paints of the man who should be our next Attorney General and ask yourself if the opposition to this man is based solely on BDS and the fact that Bush nominated him?

Madame President, I rise to speak on the pending nomination of Judge Michael Mukasey to be the Attorney General of the United States. And I rise to urge my colleagues on the Judiciary Committee to favorably consider this nomination because I fear that we are in danger of treating this judge very unjustly, of doing something that is not fair to him personally.

I want to state at the outset that I didn’t just meet Judge Mukasey since he was nominated for Attorney General by the President. I actually met him 43 years ago this fall, when we both entered Yale law school together. We were in the same small group in Contracts together – the occupant of the chair will appreciate the intimacy and how well you get to know somebody when you’re in a small group with a demanding Contracts professor together. The Mike Mukasey I met 43 years ago was honorable, he was bright, he was not presumptuous, he had a great sense of humor, and he had a strong sense of values – of what I again would call honor – to him.

I’ve kept in touch with Mike over the years, I can’t say we’ve seen each other a lot, but I’ve watched his career grow with great pride. A private practitioner, a distinguished and successful United States Assistant Attorney, a judge who has been extremely well regarded by all who have come before him, as was testified to before the Judiciary Committee on his nomination, handled some very difficult cases, ruled in cases regarding alleged terrorists – and did so to his own personal risk, had a security detail with him for some period of time because of threats he received after one of these cases.

I’m honored to say that Judge Mukasey asked me to introduce him to the Judiciary Committee, alongside his senator, Senator Schumer of New York. I said then what I will say here – the man I that I met 43 years ago is today essentially the same man: honorable, intelligent, a real sense of values, a commitment to public service, a man of the law, not a man of politics. Exactly the kind of person America always needs as Attorney General, but particularly needs at this moment. And I thought he handled his nomination hearing extremely well.

Now there is rising opposition to this nomination based on Judge Mukasey’s answer to a single question, which is whether he would say that the waterboarding technique of interrogation is torture. Judge Mukasey has preferred not to give the easy, I might say politically expedient, answer, and he has argued with us, he has educated us, I would add, to understand that his answer is not about whether we’re for or against waterboarding. He says himself that the techniques described – I’m reading from a letter of October 30th of this year from Judge Mukasey to members of the Judiciary Committee who had written to him – “I was asked at the hearing and in your letter questions about the hypothetical use of certain coercive interrogation techniques. As described in your letter, these techniques seem over the line and, on a personal basis, repugnant to me.”

So, this is not to say that Judge Mukasey is for waterboarding – that’s not what’s at issue here and we should not allow it to become so. He is responding as a man of the law, as a judge, as a man who would be – if we allow him – exactly the kind of Attorney General we need. He said, “Hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.”

“As a judge,” Mukasey continues, “I tried to be objective in my decision-making and to put aside even strongly held personal beliefs when assessing a legal question because legal questions must be answered based solely on the actual facts, circumstances, and legal standards presented. A legal opinion based on hypothetical facts and circumstances may be of some limited academic appeal but has scant practical effect or value.”

So bottom line, the judge is saying, “Waterboarding is repugnant, but I cannot say as a matter of law that it is torture under the law because I don’t know exactly what waterboarding is and how it’s used and I have not seen the prevailing legal memos – because they’re classified – that have governed interrogations by employees of our government.”

He says in the letter of October 30th, “I have not been briefed on techniques used in any classified interrogation program conducted by any government agency.”

So he is saying, “How can you expect me to essentially issue a legal opinion when I don’t know the facts and I can’t know the facts until and unless you allow me to be Attorney General?”

And then he says something I think is very important in his letter. He writes to the Judiciary Committee members, “I do know, however, that ‘waterboarding’ cannot be used by the United States military because its use by the military would be a clear violation of the Detainee Treatment Act. That is because ‘waterboarding’ and certain other coercive interrogation techniques are expressly prohibited by the Army Field Manual on Intelligence Interrogation, and Congress specifically legislated in the DTA that no person in the custody or control of the Department of Defense or held in a DOD facility may be subject to any interrogation techniques not authorized and listed in the manual.”

So there is a law and he has made clear that because there is a law, he definitely believes waterboarding cannot be used by Department of Defense personnel. The fact is that the Detainee Treatment Act of 2005 did not explicitly ban waterboarding or other specific techniques of interrogation as used by other employees of the federal government, including, presumably and particularly, employees of our intelligence agencies. The Detainee Treatment Act banned, and I quote, “cruel, inhuman, and degrading treatment.”

Judge Mukasey says in his letter, “In the absence of legislation expressly banning certain interrogation techniques in all circumstances, one must consider whether a particular technique complies with relevant legal standards.” And he simply cannot do this in the absence of a clear, legislative expression by Congress that waterboarding constitutes torture, without seeing the documents, without understanding the definition of waterboarding as applied in particular cases.

He is a man of the law. He is saying – as he said in his testimony and in this letter – no one, including the President, is above the law. It would have been very easy to remove any doubts and opposition about his confirmation if he had just said in this letter, waterboarding is torture.

But he responds to a higher authority – it is the law, in a nation that claims to be governed by the rule of law.

In his testimony before the Judiciary Committee, he was repeatedly questioned in regard to his independence, and following Attorney General Gonzales’ close relationship with the White House, members of the committee were clearly interested in whether Judge Mukasey would be independent of the White House, of the President. He said he would do what the law required him to do. No one is above the law, including the President.

In refusing to tell questioning members of the Judiciary Committee – colleagues of ours – what they want to hear in this case, he is also showing his independence. He is saying he will not be pressured by members of the United States Senate – including those who will determine whether he is confirmed or not, he will not simply tell them what they want to hear if he thinks it is not the legally responsible thing to do. That is exactly the kind of man I want, and I think we all should want, as Attorney General of the United States.

So he is putting his confirmation as Attorney General at risk because he believes it would not be justified as a matter of law for him to conclude, without benefit of documents that he cannot see now, that waterboarding is torture.

And for this, will we reward this good man, this public servant, this distinguished judge, this man of the law by rejecting his nomination? Here is the kind of independence, the kind of allegiance to the public interest and the rule of law that the American people want to see more of in Washington and not less. That’s why I repeat what I said at the beginning. To reject the nomination of Judge Michael Mukasey because he refuses to say what some members want him to say on this question – and he refuses as a matter of sincerely held legal belief of what his legal responsibility is – would be grossly unfair, an unjust act to this judge.

May I suggest an alternative course to my friends on the Judiciary Committee and members of the Senate who hopefully will get to consider this nomination: confirm Judge Mukasey. Based on his overall record of service, his obvious intelligence and honor and integrity, the extent to which he will raise the morale of the employees of the Department of Justice. Look at his entire record, don’t turn him down and deprive the nation of his service as our chief law enforcer because of one legal opinion he has reached that is different from yours. Confirm him – and then as Attorney General he will have access to the documents about waterboarding, he will have access to the people who may or may not have been involved in it, he will have access to the prevailing memos – and then demand that he issue a legal opinion and respond to your question. But don’t reject a man of the law, exactly the kind of man America needs today as our Attorney General.

I thank the chair, and I yield the floor.