On Waterboarding (By SEN. TED KENNEDY)

(Re:Mukasey For Attorney General) from Democracy Now!

...Waterboarding is a barbaric practice in which water is poured down the mouth and nose of a detainee to simulate drowning. It’s an ancient technique of tyrants. In the fifteenth and sixteenth century, it was used by interrogators in the Spanish Inquisition. In the nineteenth century, it was used against slaves in this country. In World War II, it was used against us by Japan. In the 1970s, it was used against political opponents by the Khmer Rouge in Cambodia and the military dictatorships of Chile and Argentina. Today, it’s being used against pro-democracy activists by the rulers of Burma. When we fail to reject waterboarding, this is the company that we keep.

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 the waterboarding this way: the prisoner is bound to an inclined board, feet raised and head slightly below the feet; cellophane is wrapped over the prisoners face, and water is poured over him; unavoidably, the gag reflex kicks in, and a terrifying fear of drowning leads to an almost instant plea to bring the treatment to a halt. Malcolm Nance, a former master instructor and chief of the training of the US Navy Seals, described it as “horrifying to watch [and] if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death.”

Judge Mukasey cannot say to this committee that waterboarding is torture? He calls it “repugnant,” and indeed it is. But he refuses to condemn as unlawful. And then, in perhaps the most stunning and hollow promise reportedly made by a nominee for Attorney General in my forty-five 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 representation by a nominee to the highest law enforcement office 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 is 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’s illegal under the Geneva Conventions, which prohibit outrages upon personal dignity, including cruel, humiliating and degrading treatment. It’s illegal under the Torture Act, which prohibits acts specifically intended to inflict severe physical or mental pain or suffering. It’s 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. And after World War II, the United States prosecuted -- 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 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 country. This nominee has failed to demonstrate that he will be a clear, decisive, 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.