After comments made in his confirmation hearing, Attorney General nominee Eric Holder will be hard pressed not to prosecute Bush, Cheney, and their co-conspirators, or to appoint a special prosecutor.
When Senator Patrick Leahy asked if waterboarding is torture and illegal, Holder agreed that it is. When Leahy then asked whether the President of the United States can immunize acts of torture, Holder said that he cannot.
When Senator Diane Feinstein said that an Inspector General's report on politicized hiring, firing, and prosecuting at the Department of Justice is evidence that officials have lied to the Senate Judiciary Committee, and that doing so is illegal, Holder replied that he will review prosecutors' determination not to pursue criminal charges.
When Senator Orrin Hatch asked if the president has the authority to engage in warrantless surveillance, Holder said no.
When Senator Russ Feingold asked the same thing, Holder stammered and stuttered and called it a "hypothetical" but said no.
When Feingold pointed out that lawyers at the Department of Justice, the White House, and the Office of the Vice President had written memos that clearly sought to sanction illegal actions, and asked "What is your view of the President's Constitutional authority to authorize violations of the law?" Holder replied that the president does not have that authority.
All of this provides powerful material for those who will seek to persuade Holder to actually enforce the laws of the land. But Holder's comments throughout the hearing suggested that it is President Elect Barack Obama who will have to be persuaded. Obama has said that a decision to prosecute will be Holder's, and Holder professed his independence from Obama. Yet, when asked for his opinions during the hearing, Holder often replied by stating what Obama's opinions were.
And when Senator Jeff Sessions asked Holder if he intended to prosecute anyone in the Bush Administration, Holder strongly suggested that he did not.
Holder also went out of his way on a number of occasions to suggest that violations of the Foreign Intelligence Surveillance Act and the Fourth Amendment through warrantless spying may have been, if not exactly legal, at least "effective" in combatting "global terrorism."
Holder said that his top priority would be "defeating our adversaries," but that he would do so while adhering to the rule of law. When Sessions asked whether the Constitution ought to perhaps itself be the top priority, Holder failed to understand the question.
Asked about closing Guantanamo, Holder suggested it would take a very long time, and said that prisoners might be tried in military courts or even military commissions. In this case and several others in which Holder declined to provide details and said that plans had not yet been worked out, he assured the senators that whatever the new president decided to do would be in accordance with "our values." No one ever asked him to specify what those values are, so we'll have to either hope they're good ones that we can believe in, or work to hold Holder to an appropriate follow through on the answers he provided regarding the crimes of his and Obama's predecessors.