To Prosecute Torture or Not to Prosecute? Cornyn's Holder Holdup Splits GOPers
Sen. John Cornyn's (R-TX) decision today to force a week-long delay in Eric Holder's Judiciary Committee confirmation vote has opened an unexpected fissure in the GOP. On the one side are Republicans who want Holder to echo President Obama's promise to "move forward" -- widely interpreted as a hint that Bush-era officials and operatives would not be prosecuted for the torture of detainees -- and on the other side is, well, Sen. Lindsey Graham (R-SC).
During today's Senate vote to confirm Secretary of State Hillary Clinton, I talked to both senators. And Graham, a former attorney in the JAG Corps, has a more even-handed view of the torture-prosecutions dilemma than Cornyn's. When we spoke this afternoon, Graham echoed Judiciary panel chairman Sen. Patrick Leahy's (D-VT) judgment that Holder should not be expected to unilaterally rule out all prosecutions related to torturous interrogations.
"The idea for prosecutions is coming from the hard left," Graham said. "Making a commitment that you'll never prosecute somebody is probably not the right way to proceed either ... I don't expect him to rule it in or rule it out."
But Cornyn certainly does. "I liked what President Obama said -- we need to be looking forward and not backward," he said this afternoon. "We've got huge problems facing this country ... I want some assurances that we're not going to be engaging in witch hunts."
Cornyn paid little heed to the political risk of holding up new leadership at the Justice Department just to stand behind Bush advisers who gave the legal go-ahead for torturous tactics that were used at Guantanamo Bay and elsewhere. I asked how he would proceed if Leahy moves forward with a committee vote on Holder before his prosecution query is answered, and Cornyn said he would place a Senate "hold" on the attorney general nominee if he has to.
Even if Holder is cleared through committee a week from today, then, the wrangling over his nomination could be far from over. Sen. Orrin Hatch (R-UT), who until now has been one of Holder's key GOP supporters, told me that "we have an obligation to help the president get his own Cabinet officials through" ... but when I asked how he would react if Holder did not promise to eschew torture prosecutions, Hatch switched gears: "That would really bother me."
Will Graham stop his party from making the torture issue its first stand against Obama? The list of questions for Holder could grow by tomorrow now that the new president has halted all military commissions at Guantanamo. Jon Kyl (AZ), the No. 2 Senate GOPer, told me that he wants Holder to answer questions about that Obama move before any confirmation vote.
Every detainee at Guantanamo is headed for his day in court, Graham said. And if something emerges during that process that suggests criminal conduct worthy of prosecution, he added, "we'll do it."
Late Update: A Senate GOP aide describes Holder's predicament as the result of playing it coy on prosecutions while being direct on his view of waterboarding. (The New York Times saw a similar undercurrent in its analysis of the confirmation hearing.)
"Holder put himself in a position of legal and rhetorical checkmate when he unequivocally described waterboarding as torture yet refused to tell the committee whether he would prosecute members of the intelligence community," the GOP aide said. "Holder can't have it both ways."
Josh
Matt
Eric
...Lindsey Graham speaking some sense? ...Holy crap!
January 21, 2009 5:34 PM | Reply | Permalink
Same as with David Brooks and Mike Huckabee. It happens from time to time, but it never lasts for long.
January 21, 2009 5:55 PM | Reply | Permalink
True. Even Pat Buchanan has some good insights from time to time. Honestly, I thought he was a pretty fair conservative commentator during the election. It was just sad watching him try to defend Palin...
January 21, 2009 6:05 PM | Reply | Permalink
Graham is a hack. He voted to support torture -- a disgrace to his having been JAG, and to his uniform, and to his oath to protect and defend the Constitution.
A racist bigot to whom party is more important than Constitution and country.
On the other hand, I don't mind the Republicans raising the profile of torture -- and using that word for it -- and prosecutions therefor. Or showing themselves for the yellow-bellied America-hating cowards they are when it comes to their convictions: they're for the rule of law -- for everyone but themselves.
January 22, 2009 9:39 PM | Reply | Permalink
God, I hate it when I agree with Lindsey Graham.
So, basically they're applying a "litmus test" to Holder. Isn't that what they consistently flip out over when Dems apply it to judicial nominations?
Needless to say, there is something fundamentally wrong with refusing to approve a nominee because of the off chance that he might uphold the law. Truth is, if they were this concerned about prosecutions, then they should've pushed their buddy W for some pardons. As my 7 year old likes to say "Too bad, so sad..."
January 21, 2009 5:39 PM | Reply | Permalink
Occasionally Lindsey Graham rises to the occasion. He's been a military prosecutor.
As for Obama "looking forward," as I've said before that's his job.
The branch of govt that "looks back" is the Judiciary. That's their job, not Obama's.
January 21, 2009 5:42 PM | Reply | Permalink
EVERY branch of gov't has both authority and DUTY to ALSO "look back". Congress doesn't make or amend legislation in a pastless vacuum. The Executive must rely on existing law, enacted "in the past". And the Judiciary bases its decisions on events which are usually "past tense".
NOWHERE did the Founders/Framers establish as law that amnesia is the proper governance of a democracy.
January 22, 2009 9:42 PM | Reply | Permalink
You're right of course, JNag, that in terms of learning and oversight, all must look back. But I'm sure you understood that in terms of investigation and prosecution, it's the Judiciary's job. :)
January 22, 2009 10:44 PM | Reply | Permalink
It's also Congress' job to investigate, in order to determine if altering existing or making new laws are necessary.
Prosecution (and whether to prosecute) is essentially in the Executive, which has the police/law enforcement power.
January 26, 2009 6:45 PM | Reply | Permalink
We always knew Holder was their target for an appointment to fight. At least they put themselves in the position of defending torture instead of Holder, and by extension the Democrats, having to defend the Marc Rich pardon. It's a great chance for Democrats to push the meme that we're just going to enforce the law, not seek political payback.
January 21, 2009 5:43 PM | Reply | Permalink
The Marc Rich pardon -- for which Republican "Scooter" Libby lobbied -- was not as represented in the mainstream media.
He was not given a full pardon. Rather, one part of the pardon made one element of his sentence more stringent; the other part absolved him of tax fraud charges, which numerous lawyers who looked at the case saw were lodged by means of distortion -- misuse -- of the underlying statute by outgoing US AG Rudy Guliani, who was preparing to run for office as "tough on crime".
January 26, 2009 6:48 PM | Reply | Permalink
Cornyn will never say "we want you to promise never to investigate torture crimes". He'll play around with euphemisms, like "witch hunt". Holder just needs to play the same game. "No, Senator, we will not engage in witch hunts. We've seen enough politically-motivated prosecution from the Justice Department over the last eight years. We will prosecute cases where there is evidence of a serious crime. No one gets a free pass."
January 21, 2009 5:45 PM | Reply | Permalink
PRECISELY! Thank you.
January 21, 2009 6:03 PM | Reply | Permalink
Thing is, in Republican Coo-Coo Land, what we call vindication of the rule of law is just hypocritical partisanship, and we're just a bunch of cynical, lying snakes seeking narrow partisan advantage, just like they are when we do these things. In their worldview, Whitewater and the Clinton impeachment was intentional, deliberate and entirely justified payback for the Democrats evil persecution of poor Richard Nixon, the Swift Boaters were fair payback for the Bork nomination, and the Seigelman and Georgia Thompson prosecutions were fair payback for, hell, who knows? Duke Cunningham? Teapot Dome?
If the DoJ prosecutes, say, Cheney, for endorsing and ordering torture, they're going to claim it's just the same as what they did to Don Seigelman and then, when they get back in, they'll restock the DoJ with Monica Goodlings and gin up a completely false political prosecution of Al Gore or Joe Biden to retaliate against us.
If we (the U.S., not the Democrats) don't prosecute the torturers and war criminals of the Bush years, the rule of law takes a catastrophic hit and they'll be emboldened to try even more abusive actions next time they get back into power. If we do prosecute them, then next time they get back in, they'll politicize the DoJ even more deeply than before to launch retaliatory even more blatantly political prosecutions against the Democrats and immunize themselves and the rule of law takes a catastrophic hit.
I'm really having trouble deciding which choice is less bad. I do know that letting how much I hate the whole rotten crowd influence my decision about that would be precisely the wrong thing to do.
January 21, 2009 6:15 PM | Reply | Permalink
Good points all Steve, but I think the remedy is to prosecute them so thoroughly that you drive the criminal wacko element out of the Republican Party or make is so small it will take another century for them to rise up again (if at all). Perhaps the traditional law-abiding Republicans of the past will then re-emerge from the shadows of their mansions and villas and this time keep the lunatic Republicans out of power. Second thing is, don't let them back in power. Reform our electoral system so their money no longer runs the table of politics. Make all elections publicly funded and equal money going to all candidates. Also, make it easier for 3rd parties to rise up so the stodgy, pro-richman center of the old Republican Party can reemerge. While it would remain a minority political party it would never ally itself with the extreme right as it does now having only one tent to find shelter in.
January 21, 2009 6:31 PM | Reply | Permalink
First, of course, where there is the lunatic claim that the desire for prosecution is only a left-wing impulse is as damnably absurd as those who make that claim.
There is no choice. The law is neither left nor right — it is non-partisan, it is the law.
As someone only just in that left-middle-ground (a little too liberal to be called truly centrist), I would have had ZERO qualms if President Obama had named Republican David Iglesias as AG. He proved (to the extent the Bushie-fascists fired him) that he does not see party when viewing the law. He only sees the laws as they are written and practiced.
One size does fit all under the blindfolded political vision of the law.
The "hit" to the political institutions we all have to worry about, as opined relentlessly by law professor Jonathan Turley, is where we fail to prosecute the practice of crime in the highest office of the land, and somebody in the Netherlands or Latvia decides to prosecute the war crimes of torture in the world court.
We redeem ourselves and receive absolution on the world stage if we clean up our own mess, but become complicit in those very crimes, down to the individual citizen, if we do not.
That's the "hit" we must avoid at all costs.
January 21, 2009 7:29 PM | Reply | Permalink
There is no choice. The law is neither left nor right — it is non-partisan, it is the law.
_____
"A system of laws, and not of men." -- John Adams.
John Adams, who detested the British, and drove the Continental Congress to decalraing independence, undertook the highly unpopular (he took heat, and worse, from both "Left" and "Right") defense of the British troops involved in the so-called "Boston Massacre".
He did so because, as he said, justice and the rule of law are to be ABOVE politics.
The Constitution and rule of law are not to be political footballs, or a game of chicken over who will or won't comply with and enforce the law, with those who do so labeled "anti-American".
January 22, 2009 10:05 PM | Reply | Permalink
The solution is to never let them get back into power.
January 21, 2009 7:59 PM | Reply | Permalink
That's all nice and all, but it's better to do something to ensure that the law is upheld now and put into place assurances so it's upheld whoever is in power. I'd like to see it more difficult to ever allow politicization to happen ever again in the DOJ.
Barring some complete party reorganization, the Republiacs will eventually return to power. Maybe not today or tomorrow, but someday--the US always seems to pendulum. Saying that the Democrats will always be on top is just not realistic.
January 21, 2009 8:27 PM | Reply | Permalink
"That's all nice and all"? I sound like an ass.
January 21, 2009 8:35 PM | Reply | Permalink
Then don't.
But also, don't assume Cornyn and McConnell speak for the rank-and-file Republicans. They just get the most media time. Mainly they're trying to slow Obama's momentum before it runs them over because they see what's happening. Obama is nothing if not a skilled politician, and I predict by mid-year he will have peeled off enough Republican votes that the Republican leadership becomes more and more marginalized and irrelevant.
Cornyn can delay the vote. He can put a hold on. He can hold his breath and stamp his feet. But Holder will be confirmed, just the same, and all Cornyn's theatrics will be for nothing. And THAT is what's bugging him.
January 21, 2009 8:49 PM | Reply | Permalink
Just so.
Also he should point out that mitigation is for the judge and jury to consider, not the prosecution.
January 21, 2009 6:33 PM | Reply | Permalink
beautifully put
January 21, 2009 11:56 PM | Reply | Permalink
Amen . .. perfectly stated and an exact plan.
Holder needs to be forceful in stating No one is above the law! All wrong doing will be prosecuted in accordance with law.
January 22, 2009 11:07 AM | Reply | Permalink
remember when republicans were tough on crime?
January 21, 2009 5:46 PM | Reply | Permalink
The plan all along was to get this confirmation divided down party lines, so Bush, Rove and Co could cry political witch hunt in any eventual prosecution of them.
They know he's going to get confirmed - they just want to sully him in the process.
January 21, 2009 6:05 PM | Reply | Permalink
Cornyn's a whore carrying Bush's water for him. He's scared. Bush is scared. GOOD! They oughtta be.
January 21, 2009 6:26 PM | Reply | Permalink
It's about time the fear-mongers get a dose of fear themselves!
Karma!
January 21, 2009 6:28 PM | Reply | Permalink
So according to the update, Holder should have watched Gonzalez and Mulkasey tapes before his hearing? Amazing.
January 21, 2009 6:35 PM | Reply | Permalink
Lindsey will always look reasonable when compared to the jackass Cornyn.
January 21, 2009 6:37 PM | Reply | Permalink
So that's what the Holder foofaraw is REALLY all about? The Republicans just can't give up being the pro-torture party? Brilliant. Man, they are suicidally stupid and vicious.
January 21, 2009 6:50 PM | Reply | Permalink
Okay, Vitter, DeMint, Cornyn... Is it too early to start looking for candidates to run against them?
January 21, 2009 7:08 PM | Reply | Permalink
Will he or won't he prosecute those who ordered torture? This is not his choice to make. There aren't two sides when it comes to whether or not you should apply justice.
You uphold and enforce the law for all.
If Holder doesn't uphold and enforce the law for all, then the Democrats are politicizing the justice system in the same way the Republicans did.
It's not within Cornyn's purview to lobby for or against justice.
January 21, 2009 7:33 PM | Reply | Permalink
And it wasn't within Pelosi's authority to declare the Constitution/impeachment "off the table"/inapplicable.
January 26, 2009 6:58 PM | Reply | Permalink
Usually quite a few Texans in and out of these boards. Have you given Cornyn a call or an email yet? I have. He needs it. Guy was a do nothing until yesterday.
January 21, 2009 7:45 PM | Reply | Permalink
jweb271 - in answer to your question...as a texan voter, but not a texan - I emailed him last night regarding his hold up of Clinton as Secretary of State. The most astonishing thing about his delay tactic with HR Clinton was the first thing out of his mouth - I will vote for her! So maybe this is just political posturing...by a real non-entity in the Senate. He must really have a big IOU from Bush. I calculated the waste of time and money...it was over $7275.00 and 3.5 hours.
Now I will email his office again, which, of course they promised right back to me...so far, no response!
January 21, 2009 8:08 PM | Reply | Permalink
In crafting my email, I came upon an angle that's pretty good, I think. Many may have already thought of this, but I'll share it just in case.
These guys endorsed McCain and McCain was trying to run as a bipartisan agent of "change" and solutions. True or not, Cornyn endorsed that sort of government, and now he is pretending to stand against it.
Good work afisher on the math. I was actually wondering that same thing.
January 21, 2009 8:31 PM | Reply | Permalink
My brother in houston has long said he was the dumbest in TX but until now I'd never appreciated just what an asset John Cornyn could be!
Not the sharpest pencil in the Texas box and that is really saying something
January 21, 2009 8:17 PM | Reply | Permalink
I have sent Cornyn several emails, asking if he would say whether waterboarding was torture or not. Please just answer in one syllable: yes, or no. The first response (this was 2006 I think) was just a form letter about national security.
So I again asked if he was a coward, afraid to say one way or another. In Texas, being called a coward is bad, and I think if he is afraid to state his position, then he is a coward. So they put me on the Republican mailing lists, sigh.
I never got an answer from my Senator, and it is interesting to see him being pro-torture in public.
January 21, 2009 8:31 PM | Reply | Permalink
Awesome. I think tomorrow I'll call to ask this same thing.
January 21, 2009 8:33 PM | Reply | Permalink
Just curious, but how long can Cornyn put a "hold" on the nomination?
January 21, 2009 8:41 PM | Reply | Permalink
They must assume that we won't frame them "Pro-Torture Republicans." They're wrong.
January 21, 2009 8:42 PM | Reply | Permalink
Coming soon to a theater near you:
"I Love You, Senator Cornhole"
Scene: campfire at dusk, west texas desert.
BIG JOHN sits, arms folded over knees, staring into fire.
Sighs, stands up, pushes hat back on head. Looks into sunset, crying:
"Torture! You sonofawhoreson bitch! I wisht I knew how ta quit chew!"
Pan down to tears in dust - FADE TO BLACK
January 21, 2009 8:45 PM | Reply | Permalink
Is it really just a non-issue that Cornyn's big threat is to place a "hold" on the nomination?
How come when our D senator from Oregon Wyden had a hold on a bill, just about a year ago on an enviornmental bill if I remember correctly, Harry Reid rode right over that -- and aside from a few blog comments on TPM threads, the issue of over-riding THAT hold had no traction among either politicians or media.
Why exactly is it again that Reid and 56-57-58 other Democratic Senators have to respect Cornyn's hold?
January 21, 2009 9:10 PM | Reply | Permalink
Cornyn is grandstanding to get his name mentioned by the media and become the 24 hour news cycle's go-to guy for a quote now that Bush is out of office and there is a leadership void in the GOP. The ONLY reason why he held up Sen. Clinton's confirmation yesterday was so he could have his name mentioned during the inauguration coverage yesterday. I mean what changed from yesterday when he blocked it to today when he voted to confirm her other than massive television coverage?
Cornyn is also front and center in the Holder confirmation - again making a stink on grounds he probably can't - holding up the nomination because the appointee states he will follow the law.
Also in the tirfecta, it was Cornyn who gave the quote regarding the possibility Reid said that the Dems will try and seat Franken this week.
He's becoming the media's go-to guy now that there is no Bush press secretary and no leadership in the GOP.
January 21, 2009 9:42 PM | Reply | Permalink
The problem is the mind-set of many Americans. While most Americans, IMO, oppose the Bush policies on torture, I don't think most Americans are fully aware of how much the torture issue has damaged America abroad, how great the stench is to the rest of the world.
Many, if not most, Americans, sincerely believe our own disapproval is all that matters. Most, I do not think, can get their minds around Americans being subject to international prosecution for war crimes. If you suggest that publicly, you are considered a member of the loony left.
After WWII, the allies prosecuted the Nazi leadership for war crimes, but they also initiated a sustained public education campaign to show the Germans just exactly what happened. They paraded German civilians past the corpses in the concentration camps and made them work burial detail. There was non-stop publicity of those war crimes. This was necessary partly because the Germans had been lied to by their media and their leaders; but mainly because many Germans either actively participated in the holocaust or tried to ignore/deny it was happening.
For "mainstream" Americans to fully understand the magnitude of the Bush Administration's crimes and the need to prosecute those responsible, both the media and those opposed to torture (including Republicans), as well as probably the Brits, the Canadians and the Germans, are going to have to mount a sustained public education campaign--not unlike what the allies did to the German civilians immediately after the war.
Until a decisive majority of Americans are made to fully comprehend the magnitude and the implications of Bush torture policy, I am afraid that not only will Cornyn and his ilk be able to get away with dragging this issue down to the gutter of partisan politics, but the Obama administration will be given leave to move on, as it seems to want to do, and not deal substantively with the past.
January 22, 2009 1:47 PM | Reply | Permalink
According to Washington Post/ABC poll, a MAJORITY of Americans WANT investigation and prosecution of the issue of torture.
Wait till the flood of suppressed documents begin to come out -- on such as the extent of the illegal wiretapping. (Clue on the latter: NO ONE was exmpe, even if they didn't communicate with anyone outside the US. And journalists got special attention.)
January 22, 2009 10:24 PM | Reply | Permalink
emptywheel is on that.
January 22, 2009 10:44 PM | Reply | Permalink
I think John Cornyn wants to be president. Most of what he's doing makes no sense except to get his name out there. He's gonna run in 2012.
January 23, 2009 9:12 AM | Reply | Permalink