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Sam Stein Headshot

Holder: Waterboarding Is Torture, And The President Can't Torture

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The major hoopla surrounding the nomination of Eric Holder as Attorney General has focused on his role in the pardoning of tax-cheat fugitive Marc Rich during the waning days of the Clinton administration.

Lost in the discussion has been an honest look at just how clean a break Holder represents from the judicial and legal landscape that defined the Bush administration.

Asked just minutes into his confirmation hearings whether waterboarding qualified as torture, Holder was unequivocal in his response.

"If you look at the history of the use of that technique used by the Khmer Rouge, used in the inquisition, used by the Japanese and prosecuted by us as war crimes, we prosecuted our own soldiers in Vietnam, I agree with you, Mr. Chairman, waterboarding is torture," said the former deputy Attorney General.

Holder and Judiciary Chairman Patrick Leahy subsequently went through a checklist of sorts as to where the legal limits of interrogation measures stood.

Would other counties have the authority to torture captured U.S. citizens if they deemed it a national security threat?

"No, they would not," replied Holder. "It would violate the international obligations that I think all civilized nations have agreed to, the Geneva Conventions."

Could the president, if need be, use his authority as commander in chief to override acts that prohibit illegal interrogation practices or torture?

"No one is above the law," said Holder. "The president has a constitutional obligation to faithfully executive the laws of the United States. There are obligations that we have as a result of treaties we have signed and obligations to the Constitution."

Leahy and Holder broached other topics as well, from Second Amendment rights (Holder said he recognizes the right to bear arms) to a federal shield law protecting reporters from being forced to divulge their sources (Holder favors a "carefully crafted" one). But the sequence on torture stood out the most. Leahy, for one, noted that former Attorney General Alberto Gonzales never gave a "satisfactory answer" on the topic when he was being confirmed.

One question that could stem from the exchange, and seems likely to be brought up during the confirmation hearings is: if Holder believes waterboarding is torture, and if the Bush administration has admitted to waterboarding, is it his obligation to investigate or prosecute members of the Bush administration for potentially unlawful acts?

The topic of the Rich pardon eventually did come up -- the ranking Republican, Arlen Specter, made it the crux of his opening examination -- and Holder offered a measure of sorrow and responsibility for his "mistake."

"I have accepted the responsibility of making those mistakes," he said. "I've never tried to hide or blame anyone else. I have said, given the opportunity to do something different, I certainly would."

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