Not Prosecuting Torture is a Crime in Itself

Eric HolderGeorge W. Bush wasn't going to be the president forever. That seems obvious to most people, but it almost seems to have caught Republicans in Washington by surprise. The president who brought his party to near irrelevance is gone now, but his actions linger on. Bush, having brought even more disaster to the Republican party than he did to the nation, leaves behind a legacy of crime and scandal. Having once hoped he would rebuild American government to match his vision, Bush left DC in worse shape than he found it -- the nation is impatient to see the vision undone.

Still, some Republicans seem to be completely unaware of these new realities, behaving as if nothing had changed, as if the Republican party were still wildly popular, and as if Bush's legacy is anything other than one of failure.


Eric Holder’s confirmation vote before the Judiciary Committee will be delayed for up to a week as Republican senators continue to press him on his views about interrogation and other Bush administration intelligence methods.

The Judiciary Committee was originally scheduled to vote today on Holder’s nomination as attorney general, but Republicans have objected, and under committee rules they can delay the vote for up to a week. Holder was grilled last week by Republicans on his views about interrogations, Guantanamo Bay and his involvement in the 2001 pardon of fugitive financier Marc Rich.

Sen. John Cornyn (R-Texas) is seeking more information from Holder on whether the Department of Justice will pursue criminal prosecutions of "intelligence personnel" involved in detainee interrogations.

It was going to be the pardon of Marc Rich that was going to be the bump in the road to Holder's confirmation, but he went and told the senate in testimony that waterboarding is torture. Of course, it's their fault for asking him -- no one who's given it serious thought thinks it's not. "If you look at the history of the use of that technique, " Holder said, "we prosecuted our own soldiers for using it in Vietnam... Waterboarding is torture."

The question here isn't whether Holder will be confirmed -- it's a near certainty that he will. The question is what the hell answer was it they expected? The idea that waterboarding doesn't fit the definition of torture was always a legal fiction designed to create a loophole. Only ideologues and fools bought it. Any honest reading of the law would find it to be torture.

Which leaves John Cornyn, whose vocal support for torture would cause any principled human being to be ashamed of himself, in a bit of a quandary; he can try to block Holder's confirmation, but what would be the point? The next nominee would give the same answer -- and the next and the next. See, that's the problem with being dead wrong. You have to look long and hard for someone who'll agree with you.

In fact, the torture debate is pretty much over. Turns out, we're pretty solidly against it. A Washington Post/ABC News poll finds that most respondents opposed torture -- in any circumstance. In a question that suggests even the ridiculous "ticking time bomb" scenario, people where asked, "Obama has said that under his administration the United States will not use torture as part of the U.S. campaign against terrorism, no matter what the circumstance. Do you support this position not to use torture, or do you think there are cases in which the United States should consider torture against terrorism suspects?"

58% -- a clear majority -- said no, torture should never be used, regardless of the circumstance. This would've been higher, but Republicans continue to be outside the mainstream and throw the average. For Democrats, 71% said no. Independents against torture number 56%. Only Republicans support torture, with just 42% believing it should never be used. Still, even that number shows only weak support for torture.

Their support may be a moot point, however. In their grilling of Holder over waterboarding, they may have opened a big can of worms. Not only is torture illegal, but the law requires that it be investigated and prosecuted. By getting Holder to drop the "T" word, the senate may have begun a sequence of events that guarantee prosecutions.

When Ronald Reagan signed on to the Convention Against Torture, he brought us into the realm of international law. The convention is a treaty and treaties are the be-all and end-all if international law -- torture's illegal because we agreed it should be. That convention reads, "Each State Party [i.e., signatory nation] shall ensure that all acts of torture are offences under its criminal law," and that, if torture is committed, the nation must "submit the case to its competent authorities for the purpose of prosecution."

There aren't any exceptions here. It must happen. If Holder -- or any other would-be Attorney General, for that matter -- believes that we've waterboarded detainees (and no one thinks we haven't), he has to prosecute. His hands are tied.

In fact, torture prosecutions could happen outside the US, since torture is a violation of international law and a war crime. Manfred Nowak, the United Nations Special Rapporteur on Torture, has called on the United States to prosecute George W. Bush and former Defense Secretary Donald Rumsfeld. Citing the Convention Against Torture, Nowak says the US has a "clear obligation" under law. If it doesn't happen here, it might just happen in The Hague.

Republicans seem to suddenly have become aware of reality and, like John Cornyn, are trying to put the brakes on what may very well be inevitable. They're trying to slow things down long enough to figure out what the hell to do and it may just be that there's nothing at all that can be done.


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