Statement of Senator Dick Durbin

Senate Judiciary Committee Markup
Nomination of Judge Michael Mukasey to be Attorney General,November 6, 2007

Judge Mukasey has a distinguished record of public service and, but for one issue, speaks with clarity on the law. His nomination hinges on that issue: the cruel, inhuman and degrading treatment of prisoners held by our government.

On that issue, the late historian Arthur Schlesinger Jr. said this about the Bush Administration’s legal defense of torture: “No position taken has done more damage to the American reputation in the world—ever.”

Alberto Gonzales was an architect of this Administration’s torture policy. As White House Counsel, he recommended that the President set aside the Geneva Conventions, calling them “quaint” and “obsolete.” And he requested and disseminated the infamous torture memo that limited the definition of torture to abuse that causes pain equivalent to organ failure or death.

In light of this outrage by our former Attorney General, there is a heavy burden on Judge Mukasey to make his views on torture clear. I am sorry to say that he has fallen short.

During his confirmation hearing, I asked Judge Mukasey whether the torture technique known as waterboarding is illegal. He refused to answer this question.

To give Judge Mukasey a chance to clarify his views on waterboarding, I wrote him a letter, which all ten Democratic members of the Committee signed. We asked Judge Mukasey a simple and straightforward question: Is waterboarding illegal?

Judge Mukasey refused to say whether waterboarding was illegal because, quote, “hypotheticals are different from real life” and it would depend on, quote, “the actual facts and the circumstances.”

This is not a “hypothetical.” Waterboarding, or simulated drowning, is a torture technique that was used in the Spanish Inquisition. And today it is used in Burma against democracy activists.

There are no “facts and circumstances” in which we should condone waterboarding. The Judge Advocates General, the highest-ranking military lawyers in each of the U.S. military’s four branches, testified unequivocally that waterboarding is illegal and violates Common Article 3 of the Geneva Conventions.

Following World War II, the United States prosecuted Japanese military personnel as war criminals for waterboarding U.S. prisoners. And our own State Department has long recognized that waterboarding is torture and cruel, inhuman and degrading treatment and has repeatedly criticized countries