Leahy to vote against AG nominee Mukasey

[JURIST] US Senate Judiciary Committee chairman Patrick Leahy (D-VT) [official website] said Friday that he will not support the nomination of Michael Mukasey [WH profile; JURIST news archive] as US attorney general, citing Mukasey's continuing reluctance to unequivocally denounce waterboarding [JURIST news archive] as torture. Mukasey must receive ten votes from the Senate Judiciary Committee [official website] for his nomination to advance to the full Senate with a favorable recommendation. Four Democratic committee members, including Joe Biden (D-DE), Richard Durbin (D-IL), and Sheldon Whitehouse (D-RI), and most recently, Edward Kennedy (D-MA) [official websites], have already said they will not vote for Mukasey. AP has more.

On Thursday, Kennedy said in remarks delivered on the Senate floor that he will not support the Mukasey's nomination for the same reason. Kennedy said that US reliance on waterboarding increases the chances in the future that US soldiers captured by enemy forces will be subjected to the practice as well. Both Democrats and Republicans [JURIST reports] have said they will consider opposing Mukasey's nomination if he does not clarify his position on the issue. The Judiciary Committee is scheduled to consider Mukasey's nomination [JURIST report] next Tuesday. AP has more.

4:05 PM ET - According to Leahy's statement [text] Friday:

It is the duty of the Attorney General to uphold the Constitution and the rule of law — not to try to bend the law to a President's agenda. When the infamous Bybee Memo came to light, even this Administration had to formally withdraw it. Yet I am concerned that the defining down of torture, of the rule of law and of American values continues in this Administration.


The United States and its Attorney General must stand for the rule of law – and stand in the breach, if need be. There is no question in my mind that waterboarding is torture and is illegal under our laws and treaty obligations. ...

There are fundamental issues that require moral and legal clarity, and the willingness to act on our convictions -- and this is one of them. The United States does not torture. The United States does not inflict cruel, inhuman, and degrading treatment. This is part of the moral fiber of our country and our historical place as a world leader on human rights, and it has long been fixed in our laws, our constitution, and our values. ...

There may be interrogation techniques that require close examination and extensive briefings. Waterboarding is not among them. No American should need a classified briefing to determine whether waterboarding is torture. Waterboarding was used at least as long ago as the Spanish Inquisition. We prosecuted Japanese war criminals for waterboarding after World War II.

As Rear Admiral John Hutson, former Judge Advocate General of the Navy, testified this year before the Judiciary Committee: "Other than perhaps the rack and thumbscrews, water-boarding 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 water-boarding fits in the scheme of things. I think we have to be very sure where it fits in the scheme of things." Unquote.

Judge Mukasey was not asked to evaluate any secret "facts and circumstances." He was asked whether waterboarding is illegal. Our law makes torture illegal, and waterboarding is torture, and it is illegal. It is frankly not dependent on any, quote, "relevant facts and circumstances of the technique’s past or proposed use."

When it comes to our core values - the things that make our country great and that define America's place in the world - these values do not waver from president to president. America should continue to stand against torture.

I agree with Senator John McCain, who sadly knows too much about the issue of torture. He said recently: "Anyone who knows what waterboarding is could not be unsure. It is a horrible torture technique used by Pol Pot and being used on Buddhist monks as we speak." No presidential signing statement or secret Administration memo can be allowed to change our laws' prohibitions against waterboarding. ...

I am eager to restore strong leadership and independence to the Department of Justice. I like Michael Mukasey. I wish that I could support his nomination. But I cannot. America needs to be certain and confident of the bedrock principle - deeply embedded in our laws and our values - that no one, not even the President, is above the law.

Accordingly, when the Judiciary Committee considers this nomination on Tuesday, I must vote no on this nomination.

 

About Paper Chase

Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

© Copyright JURIST Legal News and Research Services, Inc., 2013.