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23 Jan 2009 07:49 pm

Where The Evidence Leads

by Patrick Appel

Hilzoy whacks Cornyn for delaying Holder's appointment to Attorney General. Cornyn has said that, "Part of my concern, frankly, relates to some of [Holder's] 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." Hilzoy:

If John Cornyn and his colleagues meant to immunize intelligence officials for whatever they did, they should have passed a law saying so. If they wanted to immunize intelligence officials for doing anything that the Bush administration said was OK, however implausible the administration's claims might be, they should have passed a law saying that. And if they wanted to add a codicil saying: "For the purposes of this statute, the practice known as 'waterboarding' is not a form of torture", they should have done that.

But they didn't do any of these things. They passed a law saying that people who engage in torture can be prosecuted for war crimes. Eric Holder, like many people, and like our government before George W. Bush got hold of it, believes that waterboarding is torture. Nothing in the Military Commissions Act says otherwise.

Second, because Eric Holder is not yet Attorney General, he has not yet had a chance to see what, exactly, people did to detainees over the last seven years. That being the case, it would be completely irresponsible for him to say whether he will or won't prosecute them.

...no responsible prosecutor ought to say whether or not he will prosecute a given individual before he knows where the evidence leads. If Holder were willing, at this point, to promise either that he would or that he would not prosecute people for war crimes, I would regard that as disqualifying him for the position of Attorney General.

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