Senator Kennedy's Opposition Speech to the Mukasey Nomination: What part of waterboarding isn't torture?

I have a love-hate relationship with Senator Edward Kennedy and his whole clan. On the one hand, all that privilege which lets some of them get away with ... all kinds of things. On the other, this man often stands up and says the most wonderful things. And I sit there listening and thinking, "I couldn't have said it better meself."

This was one of those speeches. They played it on Democracy Now! this morning. I applauded the man.

I think it's such an important speech that I'm posting it in its entirety right here.

KENNEDY IN OPPOSITION TO THE MUKASEY NOMINATION
United States Senate Judiciary Committee Executive Session
November 6, 2007

FOR IMMEDIATE RELEASE

(As Prepared for Delivery)

The Department of Justice is in dire need of new leadership to guide our nation back to its constitutional moorings. Under Attorney General Alberto Gonzales, the Department lost its way as a genuine force for justice. It too often served as a rubber stamp for the White House and as a facilitator and enforcer of political objectives rather than the rule of law. After a period of such tarnished leadership in the Department, we need a clear, decisive and straightforward Attorney General who is not afraid to stand up for the constitution and the rule of law – even if it means disagreeing with the President of the United States.

I had hoped that Judge Mukasey could be that person. He is certainly intelligent and has demonstrated admirable dedication to public service. As a federal judge for almost 19 years, he was by all accounts fair and conscientious in the courtroom and even showed admirable independence at times. But, after reviewing and re-reviewing Judge Mukasey’s answers to questions from members of this Committee, I have concluded that he is not the right person to lead the Justice Department at this crucial time in our history.

We need a leader who will inspire confidence in the rule of law. We need a leader who is unafraid to speak truth to power. We need a leader who is worthy of the trust we place in our Attorney General to support and defend the Constitution of the United States. Michael Mukasey regrettably is not that leader.

Like many of my colleagues and many American citizens, I am deeply troubled by Judge Mukasey’s evasive answers about the legality of certain techniques of torture. While the nominee acknowledges that torture is unconstitutional, he has repeatedly refused to acknowledge that the controlled drowning of a prisoner – waterboarding -- rises to the level of torture. What is the big mystery here? Over and over again, civilian and military tribunals have found waterboarding to be an unacceptable act of torture.

Malcolm Nance, a former Master Instructor and Chief of Training at the US Navy Survival, Evasion, Resistance and Escape School, says that, as part of SEAL training, he personally led, witnessed and supervised training to resist waterboarding for hundreds of people. He describes the procedure this way:

Waterboarding is a controlled drowning. . . It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning. . . .

Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration – usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death.

According to ABC News, former intelligence officers and supervisors admitted in 2005 that the CIA used waterboarding – in fact the Vice President confirmed its use – and the intelligence officers and supervisors described waterboarding this way:

The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

But Judge Mukasey cannot say to this Committee that waterboarding is torture? He calls it repugnant, and indeed it is. But he refuses to condemn it as unlawful. And then, in perhaps the most stunning and hollow promise reportedly made by a nominee for Attorney General in my 45 years in the Senate, we are told that Judge Mukasey agreed to enforce a ban against waterboarding if Congress specifically passes one. We are supposed to find comfort in the representations by a nominee to be the highest law enforcement officer in the country that he will in fact enforce the laws that we pass in the future? Can our standards really have sunk so low? Enforcing the law is the job of the Attorney General. It’s a prerequisite – not a virtue that enhances a nominee’s qualifications.

Make no mistake about it. Waterboarding is already illegal under United States law. It is illegal under the Geneva Conventions, which prohibit “outrages upon personal dignity,” including cruel, humiliating, and degrading treatment. It is illegal under the Torture Act, which prohibits acts “specifically intended to inflict severe physical or mental pain or suffering.” It is illegal under the Detainee Treatment act, which prohibits “cruel, inhuman, or degrading treatment.” And it violates the Constitution.

The nation’s top military lawyers and legal experts across the political spectrum have condemned waterboarding as torture. After World War II, the United States even prosecuted Japanese officers for engaging in waterboarding. What more does this nominee need to enforce existing laws?

It is the job of the Attorney General to enforce our Constitution and laws. The Attorney General must have the legal and moral judgment to know when an activity rises to the level of a violation of our Constitution, treaties or statutes. But this nominee wants to outsource his job to Congress. That passing of the buck is completely unacceptable by a nominee who wants to be the highest justice official in our great country. This nominee has failed to demonstrate that he will be the clear, decisive and straightforward leader that the Department of Justice so desperately needs.

For all these reasons, I oppose this nomination. `After six long years of reckless disregard for the rule of law by this Administration, we cannot afford to take our chances on the judgment of an Attorney General who either does not know torture when he sees it, or is willing to look the other way to suit the President.

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