Eric Holder thinks waterboarding is torture. And so apparently Senator John Cornyn (R-TX) doesn’t want to see him confirmed unless he promises in advance to exempt everyone from torture-related prosecutions:
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.” […] “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.”
I think this definitely counts as a reason why it would have been smart for the Obama transition to actually announce something resembling a plan to deal with this situation in advance. That said, a belief that waterboarding is torture doesn’t compel Holder to prosecute anyone. In our system, prosecutors have considerable discretion regarding what investigations they pursue and what charges they bring. But it would seem strange to rule out any prosecution of anyone for doing anything under any circumstances in advance of taking office or having any opportunity to weigh the evidence. Seeking reassurance that there won’t be witch hunts is one thing, but blanket immunity from prosecution is another. Whatever you think of things like the apparent waterboarding of KSM and other “high-value” detainees nobody at all denies that there have been instances of abusive torture and other forms of detainee maltreatment some of which have even been prosecuted by the Bush administration.