Senate Republicans delayed a vote on the confirmation of Eric Holder to become attorney general for at least a week in order to pressure him to say whether he will prosecute intelligence agents for torture if they were following orders and acting within what they believed to be legal guidelines.
Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, convened the panel Wednesday and asked for an immediate vote to send Holder's nomination to the Senate. Republicans called for a one-week delay, permitted by committee rules.
Holder told the Judiciary Committee last week that waterboarding is "torture" and therefore illegal. Susan J. Crawford, the top Bush administration official overseeing the trials of detainees, told the Washington Post that at least one individual held at the prison center at Guantanamo Bay was "tortured."
The question Republicans want answered before Holder is confirmed: Will you prosecute those who took part in that torture?
Sen. John Cornyn (R-Texas) said that he would block committee proceedings, scheduled to resume at 2:30 pm on Wednesday, if he did not receive answer from Holder. "I'm not going to allow things to proceed," he said. He added that it was "physically impossible" for Holder to get the answers to him by then, thus assuring a conflict would ensue.
Other GOP members of the committee, said Cornyn, are also concerned about the potential for prosecutions. The intent of the Military Commissions Act, he argued, was to provide immunity from prosecution if agents believed they were acting lawfully.
"Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was," said Cornyn.
"There were provisions providing immunity to intelligence officials based up on good faith and what they understood the law to be," said Cornyn. "I want to know if he's going to enforce congressional intent not to second guess those things in a way that could jeopardize those officials but also could cause our intelligence officials to be risk averse -- the very kind of risk aversion...that the 9/11 commission talked about when they talked about what set us up for 9/11."
Sen. Leahy said that Holder can't predetermine who he'll prosecute.
"I think no prosecutor should say, 'This is who I will prosecute and this is who I won't prosecute,' and he knows that as a former prosecutor," said Leahy of Cornyn's demand.
Leahy noted that Republicans "enthusiastically support[ed]" Bush's appointee, Michael Mukasey, "who couldn't even say that waterboarding an American abroad would be torture," and also "enthusiastically support[ed] Alberto Gonzales, the least qualified attorney general in decades."
Having supported those men, said Leahy, it's hard for them to be against Holder. "To say they want to hold up Eric Holder, the most qualified, I'm wondering, 'Why the double standard for this person above all others?"
UPDATE: Sen. Lindsey Graham (R-SC), a top Republican on the Judiciary Committee, agreed with Leahy that Holder can't rule out prosecutions before he becomes the top prosecutor.
"What I believe we should do is not politicize this, the idea of prosecutions coming from the hard left. Making a commitment that we'll never prosecute someone is probably not the right way to proceed, either," he said. "I think President Obama's administration is going to have a forward look on this, unless there's something egregious out there I think they'll move on. But no I don't expect him to rule it in or rule it out."
"In individual cases, if there's allegations of mistreatment judges can handle that and you can determine what course to take," he added. "If we've committed -- if we've made mistakes in the past, let's clean them up. But this idea of criminalizing policy differences would be bad for the country and would create a bad precedent."