During his confirmation hearing today, Attorey General nominee Eric Holder unequivocally rejected torture. “No one is above the law,” Holder said repeatedly during the hearing.

Sen. John Cornyn (R-TX) could not fathom that an Attorney General would reject a practice that both is unlawful and endangers Americans. He tried to get Holder to back off his anti-torture stance by presenting an absurd “ticking time bomb” hypothetical in which thousands of American lives are at stake. “You would still refuse to condone aggressive interrogation techniques?” Cornyn asked. When Holder replied that waterboarding is not the only interrogation method, Cornyn insisted, “Assume that it was”:

HOLDER: I think your hypothetical assumes a premise that I’m not willing to concede.

CORNYN: I know you don’t like my hypothetical.

HOLDER: No, the hypothetical’s fine; the premise that underlies it I’m not willing to accept, and that is that waterboarding is the only way that I could get that information from those people.

CORNYN: Assume that it was.

HOLDER: [Laughs] Given the knowledge that I have about other techniques and what I’ve heard from retired admirals and generals and FBI agents, there are other ways in a timely fashion that you can get information out of people that is accurate and will produce useable intelligence. And so it’s hard for me to accept or to answer your hypothetical without accepting your premise. And in fact, I don’t think I can do that.

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A few minutes later, Sen. Dick Durbin (D-IL) identified where Cornyn most likely thought up his torture-is-the-only-option scenario: “I understand Senator Cornyn’s questions. They are questions that anyone who watches Jack Bauer on ’24′ would ask.”

Intelligence officials have repeatedly rejected the idea of a ticking time bomb scenario. Jack Cloonan, who spent 25 years as an FBI special agent and interrogated members of al Qaeda, said that he has “been hard pressed to find a situation where anybody” can say “that they’ve ever encountered the ticking bomb scenario” when interrogating terrorists. He said it is a “red herring” and “[i]n the real world it doesn’t happen.”

One law professor, who has extensively researched interrogation, said she had heard of only one ticking time bomb scenario. “It’s on the show ’24.’ And that’s the only one I know of.”

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Yesterday’s Washington Post story on Judge Susan Crawford’s admission that terrorism suspect Mohammed al-Qahtani was tortured in United States custody, has unsurprisingly, generated quite a lot of commentary. Much of this has treated Crawford herself basically as a whistleblower, focusing on the fact that a high Bush administration official finally, after years of denials, admitted what most sentient beings already knew to be true: Under Bush and Cheney, America tortures people.

I spoke with Ken Gude, the Associate Director of the International Rights and Responsibility Program at CAP, who read story quite differently. Gude thinks that Crawford’s statement, when combined with the Pentagon’s recent questionably sourced claims about Guantanamo Bay “increasingly returning to the fight” may be part of an effort by the outgoing administration to tie Obama’s hands in regard to detainee policies.

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Gude notes that “Susan Crawford used to work for Dick Cheney, and a lot of people are saying, ‘you see, even Susan Crawford, who used to work for Dick Cheney, has seen the light and she’s admitting to torture.’ Well, I choose to view it in a different way. She’s still doing Dick Cheney’s work in my view. She is making it much more difficult now to pursue the policy that the Obama team would like to pursue.”

On the Pentagon’s claim that 61 released detainees have returned to the fight, Gude says “it’s hard really to get any kind of assessment on its reliability.”

Previously, the defense department had issued a dossier when it made its first statement that they believed 30 detainees had returned to the fight. In that dossier, they were only able to identify seven cases of actual violence, and some of those were based on reports from foreign intelligence services that we would normally not view as terribly reliable. [...] Interestingly, that dossier has been removed from the defense department web site. We no longer have access to it. They didn’t release a similar dossier with this number 61 that they came up with this time. Interestingly, they did say that they have confirmation that 18 of the 61 have returned to the fight –- however they describe it -– and they suspect that an additional 43 have. No information was provided on how they suspect that. No information was provided on what the criteria is for returning to the battlefield.

And so we have to view this number with some skepticism.

Gude says that “when you look at it in the bigger picture –- when you combine this statement by Crawford, her first ever interview, just days before the end of the Bush administration -– when you combine that with the story out of the Pentagon…this looks like a coordinated effort to tie the hands of the Obama team, to make it much more difficult for the Obama administration to pursue its own policies on Guantanamo.”

Full transcript below. Read more