On Tuesday, November 6, the US Senate Judiciary Committee voted 11-8 to recommend confirmation of Michael Mukasey (Pres. Bush's nominee for Attorney General). skdadl (POGGE) and I have been following this process very closely on the BnR message board. I've finally managed to compile our notes from Tuesday's session and 'enhance' them with several links, including links to the text-comments of individual Senators (as available).Note: this is NOT a transcript. Time-stamps indicate the time at which a given comment was posted to the BnR messg board.
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10:11 AM
Sen. Patrick Leahy (D-Vermont, Chairman; text of opening statement): this admin should not be able to overturn 200 years of human-rights. It has cloaked its actions in a veil of secrecy, leaving the country and congress in the dark. Secret memos in fundamental conflict with the law. I agree with our Generals and JAGs. It's illegal. If an American were waterboarded anywhere in the world, how would we react? We would condemn it. We would not ask about circumstances, we would just condemn it. A Congressional prohibition against it would be vetoed by this president. The harm is that it presupposes we don't ALREADY have laws against this practice. But we do. And now we have Addington, Gonzales etc. writing memos to the contrary. We've been prosecuting people for waterboarding for years.
Leahy: when asked at a recent public debate whether waterboarding could be excluded or included, [Rice's senior adviser on international law] John Bellinger said he had to "check the law" and couldn't answer. Shameful. As an American, we can't guarantee that we'll come to your aid. Look how low we've stooped. A better e.g. is set by our Army field manual. Sen. Graham (who's a JAG) knows this better than anyone here. Waterboarding represents a clear violation against US law. When this admin said they can't discuss certain techniques to avoid tipping off enemy is ridiculous---like Saddam bluffing about WMD.
Leahy: I wish I could support Mukasey. I like him. We have lots in common and I don't doubt his intelligence or integrity. This admin has created a "confirmation contortion," like Petraeus. When we confirmed Petraeus, Bush turned around and said we couldn't then go ahead and vote against his Iraq policy. Similar situation. We can't support Mukasey and then say torture is wrong.
10:23 AM
Sen. Arlen Specter (R-Pennsylvania, Ranking Republican; text of opening statement): [skdadl: Arlen is sniffing -- has he a cold?] Mukasey is almost like something out of Central Casting, as far as AG nominees go--stellar academic and legal background. Great intellect. We were all very anxious to confirm you. The DoJ is dysfunctional and in disarray. This dept is one of the most important we have, perhaps the most important, next to Defense. We need someone there.
Specter: but then the issue of waterboarding came up. I was dissatisfied with the answer to Sen Whitehouse's questions. The written followup answers were also unsatisfactory. But then I read Sen Schumer's comments on the weekend, wherein Mukasey assured him that Pres doesn't have power to override laws regarding torture. I wanted to be sure so I called Judge Mukasey yesterday, myself. Had conversation, got a definite answer: it's his legal opinion that the Congress has authority to make waterboarding illegal. It's his opinion that pres does not have power to disregard such an enactment. His most important answer: if Pres disregarded such an enactment, he said he'd resign.
Specter: if Congress decides waterboarding is illegal, Mukasey said he'd back that up. It's really the decision for Congress to make. What's in our security interest? How far should we go in interrogation practices? We've had the Detainee Treatment Act and Military Commissions Act where the Congress voted DOWN including waterboarding as torture (53 Yea-46 Nay).
Specter: what would be done in the so-called "ticking bomb" case. Only hypothetical up till now. For e.g.: there's about to be an even that would kill 10-1000s of Americans and someone has info to help us discover where ticking bomb is located. What happens? Public officials dance around this. We don't want to say waterboarding is ok even in extreme case. If Pres ever faced with this extreme case---his decision. Talked about warrants--rejected that idea. What do we have to say about the morality of waterboarding? Is it banned by Geneva? International rules. Justice Jackson said: "constitution is not a suicide pact," so it is my thought that Mukasey went about as far as he could go. But he wasn't on solid ground when he said he didn't know what waterboarding was. It was a flimsy excuse ("not read into the program"). His answers to my letter Oct 24 that he was reluctant to put people at risk. Rumsfeld presented with warrant of arrest in France. Some countries practice extraterritorial jurisdiction, like Sharon w/BelgiumPinochet" ( and "we all know what happened with Jeebus!)
Specter: I'm very concerned about signing statements. The President cherrypicks. He did it after negotiations w/McCain and then he wrote something that disregards most of it. Same with PATRIOT ACT, wherein Pres said he doesn't have to submit to Congressional oversight. Mukasey said that signing statements "should not be the vehicle for unnecessary confrontation." What does that mean? He should have said that: if the Pres signs the bill, he oughta abide by it.
Specter: all things considered, the evidence is in favour of confirming Mukasey.
10:25 AM
Leahy: we could call the roll now or people can continue to speak. There are a number of hearings going on right now. Ok, we'll call the roll:
Votes: 11 yea and 8 nay (9 Repubs + 2 Dems, Schumer & Feinstein)
10:33 AM
Sen. Ted Kennedy (D-Massachusetts; text of opening statement): the DoJ is in dire need of new leadership. Under Gonzales, the Dept lost its way. It has become an enforcer of political objectives rather than the rule of law. We need an AG who's not afraid to stand up for the rule of law. I had hoped that Mukasey would be this person. As a fed judge, he was by all accounts fair and showed admirable independence. After reviewing his comments to this cmtee, I am disappointed...we need a leader who will support and defend the constitution of the US. Mukasey is, regrettably, not that leader.
Kennedy: while nominee has acknowledged that torture is not constitutional. But he has refused to acknowledge that the controlled drowning of an individual is torture. It's a barbaric practice. An ancient techniques of tyrants. Used in Spanish inquisition. Used against slaves in THIS country. In WWII, in Chile, in Argentina, by Khmer Rouge. Used by Burmese junta. This is the company we keep. According to ABC news, Levin confirmed we used waterboarding (Kennedy describes technique).
Kennedy: Malcolm Nance former US Navy seal said it was "controlled death" and a "horrifying sight." Mukasey refuses to condemn this as unlawful? Perhaps the most stunning thing said by a potential AG: Mukasey refused to agree to enforce a law against waterboarding unless Congress enacts a new law? Can our standards have sunk so low? Enforcing the law is the job of the AG. Make no mistake about it: waterboarding is already against US law. Against Geneva. Against Torture Act. Illegal under Detainee Treatment Act. It violates our constitution. The Nation's top military lawyers--across the political spectrum--have testified against it. What more does this nominee need to know? The AG must have the moral judgement to know when something violates our laws and statutes. This passing of the buck is unacceptable. He has failed to convince me that he has the independence he needs.
Kennedy: we can't accept this nominee for all the reasons I've stated. I vote against him.
10:38 AM
Sen. Orrin Hatch (R-Utah; text of his statement): glad we've approved him, so that Mukasey can get to work. His qualifications have never been in doubt. I agree with Schumer who said that Mukasey will be "a strong and independent AG." Why has he been pending so long? Mukasey has unequivocally denounced torture. He said Pres can't authorize it. Clearly torture is not the real issue. He's acknowledged it violates DTA. He has pledged to analyze the decisions that may conflict with the law. He may well reach conclusion that waterboarding is torture. He said if Congress passes a law, he will enforce it.
Hatch: I believe the real issue is politicizing the DoJ. They (Democrats) demand he take a politically correct position on waterboarding. He can't b/c it's classified. They can't demand him to do this when he hasn't seen all of the info. They can't demand an AG that is independent but compliant to Dem Senate that confirms him. Can't have it both ways: can't ask him to make his own legal judgements and then also judgements important to Dem Senators.
Hatch: in 1993 when Dem Sen considered Dem Pres's Asst. AG, one of my colleagues said: "the Pres gets the benefit of the doubt"; that is the right standard. Not only does Mukasey deserve his nomination, he should already have been confirmed. Integrity...(blah blah blah). Quoting Sen. Feinstein's comments, Mukasey has a "strong independent mind."
10:42 AM
Sen. Herb Kohl (D-Wisconsin; text/press-release): his refusal to call waterboarding illegal is cause for concern. Gonzales' tenure will be remembered for politics trumping the law and for being the President's lawyer. After meeting w/Mukasey, I was confident that he would be independent and keep politics out of criminal prosecutions. But when it came to specifics, his answers fell short. His answers about torture were deeply troubling. He added that he didn't know what waterboarding is. His answers suggested a willingness to protect President.
Kohl: regarding waterboarding, it has always been illegal, unconstitutional and deeply wrong. He was unwilling to give us that answer. He is worried about offering legal protection to people. Bush has also said he won't give us a nominee who would answer differently. AG's loyalties must be independent and change the course of DoJ and restore credibility of US.
Kohl: I hope he's ok but I won't vote to confirm him.
10:45 AM
Sen. Charles Grassley (R-Iowa; text of statement): Mukasey is a "straight shooter" and "fiercely independent." We all agree DoJ needs effective leadership and a shot in the arm to boost morale (hey: is that legal? ;) )
Grassley: I feel Mukasey has been candid w/committee and he says he hasn't been briefed on specific interrogation techniques. He says that torture is against the law, against the constitution. That he'd tell the Pres that any technique that amounted to torture would be illegal. You can call him a liar if you want, but I don't believe he'd bow to any pressure to overlook illegal activity. I'm disappointed by my colleagues. If every nominee had to satisfy every thing for every Senator, he'd never be confirmed. He's demonstrated that he's his own person. I'm happy a majority of my colleagues have supported this highly qualified individual. Deserves our support, deserves to be confirmed.
10:55 AM
Sen. Dianne Feinstein (D-California; text of October 26 press release): for me, the DoJ has always been the "beacon of justice and law enforcement to the world" that functioned independently from whomever occupied White House or Congress. It's in disarray. Too many vacancies and weakened/politicized. Too many 'acting' or 'interim' positions.
Feinstein: Gonzales owed his legal career to Pres Bush. Mukasey does not. He's followed an independent path and stood on his own as both a judge and a litigant. Mukasey is going to be a very diff AG.
Feinstein: On issue of hiring, Mukasey wrote: "there can be no political litmus test for the hiring of new" staff. On politically motivated prosecutions: "partisan politics plays no part in bringing of charges or timing of charges" and said he would investigate such things. He also said, "the closer to an election, the higher the standard" for charges to be brought (Red Book v Green Book, and DoJ's Civil Rights div). He said CRD "continues to carry out work of civil rights div. I strongly support work of [this division] and will ensure it has the tools it needs to fulfill its mandate."
Feinstein: Pres has said he won't bring another nominee for AG. That would mean recess-appointments for positions currently holding Acting or Interim appointments. This is not in the best interest of either the DoJ or the country. Pres feels Mukasey is mainstream.
Feinstein: I believe waterboarding is illegal and prohibited for the United States, including by military under DTA and under US Criminal code. Neither military nor CIA should use waterboarding. But Mukasey should not be denied confirmation on the basis of his answers about this. In his letter to me, Nov 4, he said "I have no reason to believe DTA is unconstitutional"; (refers to his answers to Lindsey Graham--neither DTA nor MCA expressly bans the use of waterboarding by CIA; Mukasey says he'd have to consider whether the technique falls under the Anti-Torture Statute and Common Article III).
Feinstein: last week, Mukasey specifically told Schumer that if Congress passes law expressly against waterboarding, then Pres wouldn't have power to break that law. I know there are sophisticated civil rights lawyers who say that CIA is still covered by these international treaties to which we are signatory. I believe this is correct, yet I think it's easy for us to say waterboarding is illegal---so we can make it very, very clear and take this off the table. [skdadl notes: Feingold, sitting next to Feinstein, is looking distinctly scornful. Kennedy, sitting next to Leahy, slouched back during Grassley's testimony, looking either disgusted or sleepy...nasty distinctions between military and the CIA -- she's giving strength to argument Mukasey attempted to make. Oh, gawd, lady].
Feinstein: I really believe that this man is going to be an indy breath of fresh air. He has very little time to leave his imprimatur on the DoJ. Once he has opportunity to do the evaluation HE feels he needs, he'll be able to come before this body and express his views.
***Code Pink "disruption" Leahy calls to order***
11:04 AM
Leahy is entering Kyl's written statement to record (he's not present; I can't find his statement, but there's this September press-release stating his approval of Mukasey).
Sen. Lindsey Graham (R-SC; text of press-release regarding his vote to approve Mukasey): DoJ is in chaos. I've voted "yes" b/c I believe he comes from the law, w/o political patron. I do respect my colleagues, but we live in a different world. What do all his colleagues say about him? If you listen to them, it's a very easy decision to make. Right man, right time...[blah blah blah]....man of the law.
Graham: thank you, Sen Schumer, for confirming him. (*shaking my fist at Chuck*)
Graham: How do we fight this war? Leahy is absolutely right: if any of our servicemen were waterboarded, not one of us would pass up opportunity to condemn it. I wrote a letter to Condi: if there was a trial in Iran for a captured American, and Iranians provided evidence to Judge and that person never had chance to confront evidence? Of course we would. We'd be on the floor, screaming to heavens, "Stop this bad practice!"
Graham: most JAG are taught that US military is the "Gold Standard" b/c we reject practices of our enemies. Makes us stronger. Every mil commander worries about things that happen on our watch that will come back to haunt us. We take extraordinary efforts to combat collateral damage.
Graham: I would argue the fact that Americans try to limit killing of innocent in time of war makes us stronger. (Uhh....) I would argue taking these torture techniques off table makes us standard. Reagan negotiated measures against torture--ratification clearly states American opposition against torture. There's no doubt in [Graham's] mind that waterboarding is NOT Geneva Compliant. The CIA program is different from the Army field manual. (Explain!)
Graham: we should not criminalize this war. If people say "we're at war and we have to re-evaluate our techniques," I would say, NO. Techniques that are clearly out of bounds of laws, be careful what you wish for. What could we say if a downed airman is tortured? What if they say they needed to know when next air attack would be?
Graham: do we stand up for the law when it's hard? If we go down the road of "special circumstances," then we'll have given the enemy a great victory. The world is not short of people/countries who will waterboard you. There's not a shortage of people who will cut your heads off in the name of religion (?!). There is a shortage of people who will stand for justice and against these things.
Graham: I will vote for this man.
11:15 AM
Sen. Russ Feingold (D-Wisconsin; text and AUDIO here): voted against him, but it was a difficult decision. I was impressed with his decision to de-politicize DoJ. If nothing else, Dept must recover its credibility and reputation. Never again should it be able to choose individuals for politics, rather than legal skill. Mukasey has ability to take on this important task. He also said he'd stop discrimination of gays and lesbians at DoJ. Regarding death penalty/USAtty scandal, Mukasey is committed to making sure death penalty is fairly administered. He also admitted past errors in judgement. Humility and honesty is important, and in many ways Muk is a big improvement on AG.
Feingold: but after all that has taken place, need AG who will tell Pres he can't ignore laws passed by Congress. Mukasey falls short. Warrantless wiretapping: presented DoJ with historic test of its integrity. Need an AG who, when presented w/similar crisis, will look Pres in eye and say "no." When I asked about use of AUMF helping to authorize wiretapping, he said "I don't see that argument." He also said he was "agnostic"---the results were not reassuring. About the AUMF argument, "I still have not come to a conclusion." That's a stmt that oughta give us pause. He's no longer agnostic--exec power trumps laws passed by congress??? Mukasey said "FISA is a constitutional law" and also said Youngstown applies if statute (FISA) were to overstep President's constitutional authority. Then why is this question so difficult? I'm afraid that there's no diff between this view of exec power and the theory that exec power trumps Congressional power.
Feingold: his response to Leahy about putting somebody "within the law." This is contrary to Jackson's three-part test in Youngstown. President can only rely on his own Const powers MINUS any powers by Congress. Congress is free to constrain Pres's powers any way it likes as long as it is within their powers to do so. Mukasey ignores this. It is clear that wiretapping is not within exclusive domain of pres. The authority to defend and protect US is not exclusive to Pres. Shared by Congress. Extreme theories of exec power have become one of the most important legacies of this admin.
Feingold: last week the WH sec said Congress approved and consented to torture techniques. I object to that. I have NOT approved. I've entered my strong objections to CIA's conduct and stated my objections as publicly as I can w/o violating classified status.
Feingold: waterboarding has been considered torture in this country for over a century. If Mukasey won't say it's torture, how can we trust him to stand up to Pres? This is not arid, theoretical debate...Congress can not stand silent in face of this challenge by Pres. The nation's chief law-enforcement officer must stand up to Pres who feels he's above the law. Thank you.
11:21 AM
Sen. Sam Brownback (R-Kansas; press release here): we're missing the forest for A tree. He's uniquely qualified--ruled on national security cases, including Blind Sheikh trial. Padilla trial, including need for enemy combatant to have lawyer. Habeas corpus statutes, etc. The tail end of this admin, in middle of war on terrorism, and we have a uniquely qualified ind'l. Enemy combatants are unusual...Mukasey has dealt with these issues on a trial court basis. I want to express appreciation to Sen. Feinstein and for apologize for these personal attacks against her. (Rolling mah eyez!) These aren't easy issues and I appreciate chairman clearing room of people making personal attacks against her.
Brownback: one of the issues that came up in a Pres'l debate that I participated in--not very well---
Leahy: we're glad to have you back... (there is mucho guffawing)
Brownback: one of the questions asked whether, if you know someone has dirty bomb and plans to blow up a shopping mall...people appear to know factually what the case is...what would you do? This is an all-too-real possibility in this country today. Wrestling with a very core question: first role of fed gov is to defend country but want to stand for what is "right" etc. Feinstein's standard is the way to go (huh?!): if you've caught someone with material like that, I think any one of us would push it as far as we could, and it's your job as Pres to do that. I agree w/Sen Graham but, at the same time you want to keep people alive. Save American lives. I'm glad Mukasey is going to be confirmed. I hope we can come back and "clear up" waterboarding issue in the way that Feinstein has suggested.
11:22 AM
Sen. Chuck Schumer (D-NY; text of press-release and comments): I've voted to confirm Mukasey b/c DoJ needs a leader to set it back on course. This cmtee has found the dept run into the ground by this administration. Firing USAttys, political prosecutions, mass departures by civil rights lawyer...etc. etc. We are on the brink of a reversal.
...stream cut out...
11:26 AM
Schumer: I deeply oppose this admin's opaque policy on torture. Its refusal to clarify techniques. It opens our own citizens to abuse abroad. Waterboarding is illegal under current laws and conventions. Period. I also support passing additional laws, specifically against this practice. Mukasey has made it clear to me that if Congress passed such law, the President could not ignore it. It would flatly reject Addington et al. This is an important point. Mukasey would be more likely than a "caretaker" acting AG to do this. We could expect no such openness from a caretaker AG. Mukasey reminds me of Comey, who disagreed w/us on many issues but displayed independence and has been widely praised for this. [skdadl & I agree: Mukasey is NO James Comey :( ]
Schumer: it's appealing to reject Mukasey and make a broad statement on torture. But what if these policies continue under Acting AG 6 months from now? Victory would be a hollow one. Thank you.
[Hang your head in shame, Chuck!]
11:35 AM
Sen. Dick Durbin (D-Illinois; text of press-release): Mukasey speaks with clarity except on one issue. Arthur Schlesinger Jr said "no position taken has done more damage to American reputation in the world. Ever"; Gonzo recommended Pres set aside GCs as "quaint, obsolete"another written opportunity to do so and he still refused, saying it "would depend on actual facts and circumstances." This is NOT hypothetical. It's being used right now by Burmese military. The JAG lawyers and each military's four branches have said waterboarding illegal and against GC. Following WWII, we prosecuted Japanese for waterboarding US POWs. We knew what it was--and branded it a war crime. Our own State dept has long recognized this as torture. Each year we publish list of countries like Sri Lanka and Tunisia, that use this technique. As McCain said, waterboarding is a clear violation of US law.
Durbin: 3 Repub Sens, JAG and military did NOT need classified briefing to say waterboarding is illegal. He would not be giving away any secrets. How can we condemn countries like Burma who use this technique ( and penned memo limiting def'n of torture to organ failure, death. Mukasey has refused to make his opinions clear on this point. He refused to say waterboarding was illegal. All 10 Dem cmte members gave him POUNDING FISTS on table): let me address notion that Mukasey should be spared giving a straight answer...it was clear enough to prosecute Japanese soldiers post WWII, and clear enough for State dept. I think the law is as clear as it can be. Mukasey's position is troubling. I asked about other techniques like stress positions, mock execution and use of dogs. Jag said these were illegal. Mukasey said they were "hypothetical," and it would also depend on "facts and circumstances."
Durbin: when I asked Gonzo about same thing, he also said it would "depend on circumstances." When I asked about GTMO, Mukasey said that it "was a frightwig" used by opposition to smear admin. Mukasey said Mr. Bradbury "was a highly competent" public servant. Mukasey said he wasn't clear enough about fired USAttys to comment. Mukasey WAS able to comment on immunity to telecoms even though he hasn't been briefed: "retroactive immunity, in my judgement, would appear appropriate." Also clear answers on 2nd amendment....in other words, Mukasey agrees w/Bush admin on 2nd amendment and immunity for telecoms. Why can't he speak so clearly on torture etc?
Durbin: can't consent to nominee who won't give clear answer on torture questions. Some issues like race, equality, are so fundamental that they transcend all other issues. When history is written, torture will be seen as such an issue.
11:40 AM
Leahy: Biden isn't here so we'll enter his written statement for the record (text of Biden's press-release)
Sen. Ben Cardin (D-Maryland; text of his comments here): waterboarding is torture. I'm concerned whether Mukasey will be an independent AG. His stmts about law have made me even more concerned, b/c as Kennedy said, waterboarding IS illegal today. It's prohibited today. Rear Adm. Hutson testified on Mukasey and said that waterboarding is one of the most iconic forms of torture, and clearly illegal today. Asking Congress to pass a statute so he can enforce it---are we going to have to outlaw the rack, specifically, too?! The burden can't be on the Congress now--need an AG to enforce existing laws.
Cardin: our AG has to be absolutely unequivocal about what is/isn't torture. Mukasey has to be AG for American people. I want Pres and AG to be clear to international community. Sen Graham is correct--critical for us to be crystal clear. Now we have a pres'l signing statement saying he can do whatever he wants. And an AG nominee who says he needs to look into it? On the critical question on whether he'll be an independent adviser to the president...I have real doubts and for these reasons I oppose him.
11:45 AM
Sen. Whitehouse (D-RI; text of his statement here; VIDEO here!): Mukasey is very qualified, a very fine man, and probably quite independent. I have one hesitation when I say that: his difficulty answering a very direct question about waterboarding. Was that a display of reasonable judicial reticence? Or was it b/c he was vetted by whitehouse and that this was a "no fly zone" and that he wasn't allowed to give an answer that his intelligence, his logic would lead him to?
WH: I agree w/Feinstein that DoJ needs to be repaired. I also agree w/Graham that US is strengthened when it manifests its values. The reason I voted against Mukasey: the discussion about torture has allowed US to have moment of clarity about what SHOULD be a simple answer. I don't want to lose this moment of clarity. When VP Cheney gets on tv and tells world we don't torture...around the world, far too many people believe we torture and that that we LIE. Congress has chance to provide moment of moral clarity.
WH: I served as a USAtty. I am very deeply torn to have voted against this nominee. But I see a nation under this admin that is on a slow, sickening slide from that 'city on a hill'...have degraded our standing...and people DIED for this stuff. We have sacrificed our DoJ, which pains and grieves me.
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[Nomination has gone to the floor]
Photo: Sen. Dianne Feinstein (D-California) huddles with Sen. Chuck Schumer (D-NY) during a lull in the hearing. Credit: Susan Walsh, Associated Press
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