11/13/2007 — 

MR. REED: Mr. President, last week, this Senate deliberated and voted on the nomination of Judge Mukasey for the position of Attorney General of the United States. I opposed that nomination, and I believe it is appropriate to indicate formally and officially and publicly my concerns and my rationale for this vote.

This was not a decision that was made lightly. The Constitution gives the President the unfettered right to submit nominees to the Senate, but the Constitution also gives the Senate not only the right but the obligation to provide advice and consent on such nominations.

We do not name a President's Cabinet, but it does not mean we are merely rubberstamps for his proposals. Senatorial consent must rest on a careful review of a nominee's record and a thoughtful analysis of a nominee's ability to serve not just the President but the American people.

As I have said in the past, unlike other Cabinet positions, the Attorney General has a very special role--decisively poised at the juncture between the executive branch and the judicial branch. In addition to being a member of the President's Cabinet, the Attorney General is also an officer of the Federal courts and the chief enforcer of laws enacted by Congress.

He is, in effect, the people's lawyer, responsible for fully, fairly, and vigorously enforcing our Nation's laws and the Constitution for the good of all Americans.

Although I believe Judge Mukasey to be an intellectually gifted and legally skilled individual, I am very concerned about his ability to not just enforce the letter of the law but also to recognize and to carry out the true spirit of the law.

Frankly, I found Judge Mukasey's lawyerly responses to questions regarding the legality of various interrogation techniques, in particular waterboarding, evasive and, frankly, disturbing.

Waterboarding is not a new technique, and it is clearly illegal. As four former Judge Advocates General of the military services recently wrote to Senator Leahy, in their words:

In the course of the Senate Judiciary Committee's consideration of President Bush's nominee for the post of Attorney General, there has been much discussion, but little clarity, about the legality of "waterboarding" under United States and international law. We write because this issue above all demands clarity: Waterboarding is inhumane, it is torture, and it is illegal.

These gentlemen have devoted themselves to their country, as soldiers and sailors and aviators, and also as attorneys. At the crux of their service was the realization that what we espoused, what we stood for, would also be the standard we would claim for American soldiers and aviators and sailors and marines if they were in the hands of hostile forces. It is clear in their eyes--and should be clear in our eyes--that waterboarding is inhumane, it is torture, and it is illegal.

It is illegal under the Geneva Conventions, under U.S. laws, and the Army Field Manual. The U.S. Government has repeatedly condemned the use of water torture and has severely punished those who have applied it against our forces.

As Evan Wallach--a judge in the U.S. Court of International Trade and a former JAG who trained soldiers on their legal obligations--wrote in an opinion piece in the Washington Post, it was for such activities as waterboarding that members of Japan's military and Government elite were convicted of torture in the Tokyo war crimes trials.

The law is clear about this horrifying interrogation technique. Water boarding is illegal torture and, to suggest otherwise, damages the very fabric of international principle and more importantly, of what we would claim and demand for our own soldiers and sailors and marines.

Now, Judge Mukasey was given several opportunities to clearly state that waterboarding is illegal. Instead, he went through a lengthy legal analysis regarding how he might determine if a certain interrogation technique was legal and then told us that if Congress actually wrote a law stating that a particular technique is illegal, he would follow the law. I found the last declaration almost nonsensical. This is the minimum requirement we would expect of any citizen of this country, that if we passed a law, they would follow the law.

I think we expect much more from the Attorney General. We expect him to be a moral compass as well as a wise legal advisor. We expect he would be able to conclude, as these other experts and as our history has shown, that this technique is indeed illegal. We need an Attorney General who has the ability to both lead the Department of Justice and to tell the President when he is crossing his boundaries. We do not need a legal enabler to the President. We need an Attorney General who will stand up for his obligation to the Constitution, and make this his foremost obligation, rather than his obligation to the President.

Not definitively stating that a technique such as waterboarding is illegal demonstrates to me that

Judge Mukasey does not have those qualities we need in an Attorney General. As we learned from Attorney General Gonzales, we need someone who is willing to stand up to the President instead of helping the President negotiate around either the letter or the spirit of the Constitution.

This is not just an academic exercise. If the question of whether waterboarding is illegal torture was asked of the parents of American soldiers, their answer would be quite clear: Of course, it is. If it was applied to the spouse or the loved one of a soldier--their answer would be: Of course, it is. I think those people are as expert as Judge Mukasey and certainly much more candid.

I also think we have risked a great deal in the administration's embrace of these techniques because today, as we look around the world, there are many nations that do not even need that kind of suggestion to embark on the torture of their own citizens. The Burmas of the world and other countries, they will use what we say and do as justification for what they might want to do. I think we have lost the moral high ground during this whole exercise going back several years.

Finally, I would like to mention my concerns about Judge Mukasey's responses to questions regarding executive power. His responses to these questions did nothing to reassure me. In fact, I now believe that Judge Mukasey believes that even a constitutional statute could become unconstitutional if its application constrains the so-called constitutional authority of the President.

As we all know, the genius of our Founding Fathers was not to allow power to be concentrated in the hands of the few. Indeed, they were particularly concerned about a concentration of power in the hands of the President.

Although they made the President the Chief Executive Officer of our Government and the Commander in Chief, the Founding Fathers constrained the President through the very structure of our Government, through both law and treaty. The Attorney General has a duty not just to serve the President but also to support, protect, and defend the Constitution.

I did not vote in support of Alberto Gonzales's nomination to be Attorney General because I was concerned about his ability to serve more than the President--a concern that has been borne out by the events over the last several months. It is largely because of his actions we are in the quandary we are in today with respect to torture and so many other issues.

Instead of protecting our Nation's Constitution and upholding our laws, he engaged in actions that damaged our Nation's core values and put our citizens' rights at risk both here and abroad.

Given the extreme politicization of the Department of Justice, and the demoralization that has followed in his wake, I believe our Nation needs an Attorney General who can help lead us like a beacon of light and help right our country's moral compass as an example again for the rest of the world.

I do not think Judge Mukasey met that standard.

I yield the floor.