Holder should respond that he won't pre-judge the outcomes of any investigations, and that he won't promise either to prosecute, or not to prosecute, any particular person or group of people.

If Cornyn worries that uncertainty might cause intelligence officials to become "risk averse", if "risk averse" means that they don't torture people, then that's fine with me.

Are the Senate Republicans a lawless cabal that wishes its members were above the law? If so, their political tenure is up for termination!

Are the Senate Republicans obstructionists who only wish their connected constituents reap privilege while common Americans have suffered under illegal policies pursued by the Bush administration?

Are Senate Republicans ready to pay the political consequences for not "putting away childish things?"

As we can, we need to call out the Republicans who cannot discern a different day has dawned here in our beloved America! -Kevo

I want to know if he's going to enforce congressional intent not to second guess those things - Cornyn

I'm trying to think of an interpretation that doesn't sound as bad as "It was Congress' intent that torture be used exactly as you will find it was used. That stuff about a few deadenders at Abu Ghraib was just insincere nonsense." Alas, I can't.

"...the very kind of risk aversion ... that the 9/11 commission talked about when they talked about what set us up for 9/11."

I seriously doubt that the faux arguments ginned up by these Republicans are even remotely related to the "kind of risk aversion that the 9/11 commission talked about".

whether he will prosecute intelligence agents for torture if they were following orders and acting within what they believed to be legal guidelines

Kinda makes one wonder why we even bothered with the Nuremberg trials. After all, Goering and Co. were just following Hitler's orders, and we should have been cool with that.

The question Republicans want answered before Holder is confirmed: Will you prosecute those who took part in that torture?

The answer should be: "We'll do what we do for any other criminal prosecution - offer them immunity in exchange for testimony against the folks who ordered them to do the torturing. We don't typically want the foot soldiers, after all, we want the ones who are responsible."

And if Cornyn really believes this:

"I want to know if he's going to enforce congressional intent not to second guess those things in a way that could jeopardize those officials but also could cause our intelligence officials to be risk averse..."

then maybe he can introduce a bill into Congress to give those folks retroactive immunity for violations of the Geneva Convention. Let's get that debate out into the open. If "Congress's intent" wasn't to make torture illegal, let's put that out there so that folks in Cornyn's district know exactly what he's advocating. They may agree with him, but they should know the facts before they know what they're agreeing with.

So Cornyn is suggesting that 9/11 was caused by not torturing people. I'm not following.

Isn't the smart (and correct) response that, per his job description, he will enforce congressional intent, by making sure the laws of the nation (the way the legislature expresses its intent) have been followed. If what they did was legal, they're safe. And if what they was illegal, why should they be protected?

Franklin, that's a good thing. If Cornyn ever DOES start making sense to you, please get help immediately!

Maybe he can offer the Republicans a deal -- he won't prosecute those who followed orders, just those who gave the orders to torture.

Holder should just use the time-tested Bush regime excuse that he can't comment on any ongoing investigations.....

Cornyn rationalized his obstructionism, telling reporters, "I want to know if he's going to enforce congressional intent not to second guess those things in a way that could jeopardize those officials but also could cause our intelligence officials to be risk averse -- the very kind of risk aversion ... that the 9/11 commission talked about when they talked about what set us up for 9/11."

What a piece of garbage Cornyn is by appealing to 9/11 as a cover for torture. First, the September 11th attacks were not not prevented because intelligence officials were too afraid to torture -- though there was probably some risk aversion caused when CIA agents offered Bush briefings titled "Bin Laden Determined to Strike at US" and were brushed off with "Ok, you've covered your ass, now."

Second, yes, intelligence officials should be risk averse when engaging in torture, just as they should be risk averse when contemplating whether to commit rape, murder, kidnapping or other crimes.

and once again, zeitgeist drifts off into a dream sequence. . .

HOLDER: Senator Cornyn, if you are suggesting I agree in advance to not prosecute even if the evidence suggests criminal acts just because the perpetrator was a member of your political party, the answer is 'no.' If that means that you, or even a majority of the Senate, will not vote to confirm me, so be it, but I will not take the position as the keeper of this nation's foundational committment to the rule of law, to no one - especially those entrusted in our government - being above the law with my independence compromised. If your position is that I should prejudge cases, or even worse if you believe that I should by offhand statement in my hearing overturn generations of important precedent that following orders, or in this case politicized legal opinions, does not excuse criminal acts, then I encourage you to say so clearly, to vote on that basis, and the American people can ultimately judge us both."

I so want Holder to call Cornyn's bluff, to outright dare him to stick to that argument in the current political environment. oh yes, yes, yes.

Kind of interesting and funny that Jonathan Turley, the civil rights attorney and frequent guest of both Olbermann and Maddow actually noted that Holder hadn't been pressed on Holder's intention to prosecute, and Turley clearly implied he felt Holder should be questioned re: the same.

But because supposedly we want those who are guilty of torture to be prosecuted for the same--

But for Cornyn to actually reveal he wants to know because for him at least--he sees prosecution as a negative--NOT a positive--and then to pull the 9/11 card and then add he would actually use this rationale to vote against confirming Holder is pretty horrifying!

And rather ironic, as it's just the opposite of what Turley's (and other liberals) are hoping for.

This prejudicial pressure (threat, really) to play that 9/11 fear card may be be why in part no-one else has heretofore pressed Holder on the issue--

Maybe others wanted to dodge this touchy issue or perhaps not want to put Holder in the hot seat or felt it's not necessary to press him at this juncture...

But in any case--

Turley raised a good point. We should probably have a better idea of where Holder stands on prosecution.
But because we want him (Holder) to prosecute-- not because we DON'T!

But I do feel for Holder--he may not be sure if he is going to prosecute and maybe he doesn't want to be cornered on this prematurely.

Oh Happy Day.

Is there sufficient rocks for those remaining to crawl under?

Can't wait for day two.

First delaying Hillary's confirmation, now helping delay Holder. If anyone had any doubt that John Cornyn is going to be a major league pain in the ass the next few years, your doubts should have evaporated by now.

Frankly, I'm hoping the GOP gets slaughtered in the 2010 Senate races (and given the number of retirements and vulnerable seats in their laps already, it's a very real possibilty) on Cornyn's watch. That should knock him down a peg.

Conservative Republicans caused the 9/11 attacks to succeed by turning a blind eye to all the warnings in 2001.

Bush officials in 2001 had other priorities besides protecting U.S. citizens from a terrorist attack.

The Bush administration in 2001 had already begun turning our federal government over to big-money lobbyists, but unfortunately none of the lobbyists were lobbying to protect U.S. citizens from a terrorist attack. All that the Bush lobbyists were concerned about was making a quick buck and trashing any regulations/laws that might get in the way of their making a quick buck.

Moreover, Attorney General John Ashcroft turned the Justice Department over to religious fundamentalist lobbyists. Ashcroft downgraded the terrorist threat level (from the top priority the Clinton administration had given it) while making the investigation and prosecution of prostitutes, pornographers and druggies a higher priority. Because of this shifting of priorities at Justice in 2001, Ashcroft threw wide the door to religious fundamentalist fanatics attacking us on 9/11 and killing close to 3,000 U.S. citizens.

Also, Condi Rice, the national security chief, held only ONE counter-terrorism cabinet-level meeting ONE WEEK before the 9/11 attacks. In the Clinton administration, these high-level meetings were held three times a week, often with counter-terrorism chief Richard Clarke chairing them, at which top law enforcement and intelligence officials shared any information they had about terrorist activities.

So, "risk aversion" was not responsible for the 9/11 attacks. Nor was the long-gone Clinton administration. Only Republicans were responsible, crazed Republicans who dropped the ball in 2001 and completely blew off the terrorist threat because they had other priorities in 2001 before 9/11, leading to so many U.S. citizens dying on U.S. soil.

Kind of like what happened in Hurricane Katrina. And Iraq. People dying because of warped and twisted Republican priorities.

I say torture them all and let 9/11 figure it out.

They're worried he's going to prosecute the Republican Party forbeing a collection of traitors, torturers, back-alley assassins, bank robbers, sex perverts and war criminals.

All of which they are.

So Cornyn is suggesting that 9/11 was caused by not torturing people. I'm not following.

I'm trying to rationalize this too, the best I can come up with is that Cornyn does not want to go back to the alleged pre-9/11 soft America mentality. I question if soft America ever existed.

Cornyn's rationalization circumvents the ethical implication and interantional consensus on the subject. It also circumvents a pandora's box - the idea that field agents followed illegal orders from President Bush and that there are serious negative reprecussions of employing unethical, and internationally criminal orders on behalf of the People of the United States.

If you believe America can do no wrong, then Cornyn is right on the money.

I know we're not his constituents, but since he was kind enough to put contact information on his site, I don't see any reason why we can't make calls or send faxes/emails to let him know that we, as Americans, are tired of him wasting America's time worrying that Holder might actually do the job he's being appointed to do. Fax (202-228-2856); Telephone (202-224-2934).

To quote President Shepherd (Michael Douglas) in "The American President": We've got serious problems, and we need serious people... This is a time for serious people, Bob, and your 15 minutes are up. My name is Andrew Shepherd, and I *am* the President.

Since when did it become the AG's job to divine and enforce Congressional 'intent'? That may or may not be a proper role for the courts, but not for the AG. That job is to apply the facts to the law and proceed accordingly.
Does Cornyn believe the AG should try to divine 'intent'? This doesn't seem like very strict constructionist view to me. Why, it smacks of a 'penumbra'!
What assholes.

This is awesome! Cornyn is admitting that agents "following orders and acting within what they believed to be legal guidelines" may in fact have acted illegally. He just implied that the orders may have been illegal and the guidelines were wrong. And that Congress authorized it.

Please, keep the man talking!

If I were Holder, I wouldn't make any definitive statement or promise without knowing the specifics of any particular case.

I seem to remember the "I was just following orders" defense not holding up at some previous tribunal. I guess now its the "24" defense--ticking timebombs everywhere!

Are the Senate Republicans a lawless cabal that wishes its [Party] members were above the law?

Yes. SASQ.

It always baffles my mind as to how these people get elected. How does this guy get elected. What an idiot.

Torturers are not like people who, say, fail to pay self-employment taxes. They are universally recognized (including in at least one US federal appellate court decision) as being, under international law, hostis humani generis—the common enemy all humanity—just like pirates and slavers. The prohibition of torture is a peremptory norm of international law, it is an absolute, non-derogable duty of every State, owed to the whole of humanity, to prosecute torturers.

Immunity to a lower-level offender to get to a mastermind might be part of a legitimate campaign against torture and thus consistent with that duty. Immunity granted for almost any other reason would seem to make the person granting immunity complicit in the torture, and likewise a common enemy of all humanity.

At 3:19, C.J. wrote: "I seriously doubt that the faux arguments ginned up by these Republicans are even remotely related to the "kind of risk aversion that the 9/11 commission talked about".

I just looked at the 9/11 report. It uses the word "risk" 67 times, and I looked at all of them. Nothing in there comes remotely close to what Cornyn seems to be arguing. Nothing about encouraging intelligence agencies to be more aggressive in extracting information from sources. To the contrary, the Commission warns of the danger of intelligence agencies being too secretive. See e.g., this at p. 417: "Each agency's incentive structure opposes sharing, with risks (criminal, civil and internal administrative sanctions)but few rewards for sharing information. . . "
Cornyn is twisting what the Commission said, as anyone with a computer can read for themselves.

It seems as though Senator Cornyn is suggesting that acts of torture were committed and laws were broken. In that capacity, I believe he is correct.

It's possible that they are worried that if he is going to prosecute torture, that he may investigate those that gave the orders to torture, and those legislators that actively supported torture.

Holder has said: no one is above the law.

Do Cornyn & Spector think that some people are actually above the law?? That is what it sounds like from where I sit.

So Cornyn is suggesting that 9/11 was caused by not torturing people. I'm not following.

It sounds like a continuation of the usual conservative blather that we were attacked because al-Qaeda thought we were "weak" and what we really should have done was be more like the Soviet Union and ruthlessly eliminate our opponents so al-Qaeda wouldn't have dared attack us.

No, seriously, that's the argument I was given. Our problem was that we weren't more of a murderous dictatorship.

It sounds like a continuation of the usual conservative blather that we were attacked because al-Qaeda thought we were "weak" and what we really should have done was be more like the Soviet Union and ruthlessly eliminate our opponents so al-Qaeda wouldn't have dared attack us.

Because, as we all know, Islamic jihadists have never dared to fight the Soviet Union.....

*slowly bangs head on desk*

After eight years of okaying Bush policies in an administration in which loyalty was held above all else, Cornyn is suddenly concerned about our intelligence officials being risk averse? Give me a break. They just don't want Holder to go after Bush and Cheney. Republicans are more concerned about covering their butts and the saving the heads of those no longer in power.

They're stalling for time until Cheney can get to a country with no extradition treaties.

Now that the Republicans know there will be no blanket pardons from Bush, they need time to make sure all the incriminating evidence has been destroyed.
Shredding and incinerating tons of files will take time, thus the stalling.
Justice will be served when the GOP finished their CYA drill.
oldswede

Maybe if his name were Eric Expediter they'd get on with it.

Okay, so it's just a hypothesis.

If Sen. Cornyn wants to clearly say Congress resolved that we should not prosecute members of the Executive branch who violate the law with regard to the fight against terrorism (or other things), then let him make that statement.

If he just wants Democrats to say torturing is bad and we shouldn't do it, then let him say torturing is good and useful and effective.

If he just wants to make noise and obstruct America, then he should keep on doing what he's been doing. Americans have their own way of setting a wayward senator straight.

In the military and, I suppose, in administration agencies & departments there has been a tradition of only punishing those who give the orders when they should know the law and what to avoid. I doubt that same standard can be applied so easily when the orders come from the President and are executed by front-line agents of the CIA.

I think the standard should be prosecuting those who SHOULD know the law because they are in a position of authority and because they have been trained to know what's right and what's not.

Prosecuting the soldiers at Abu Ghraib who behaved atrociously was partly ridiculous. It was those who were in command and gave criminal orders who should've been prosecuted -- even if the orders came down through the 'chain' of command from the President.

What does a low-level soldier who is following orders for a living know of international treaties? Officers should know better. A President should know better. A senator should know better!

Question: Will you prosecute those who took part in that torture?

Answer: Following clear legal precedent, we will investigate only those who ordered it, starting from the top. And I object to you implication that those who ordered this are guilty.

Well done, Mr. Benen. Methinks you have found a groove, and I couldn't think of a more worthy subject. The essence of removing their balls is to use a very, very sharp knife. Great demonstration of surgical skills, sir.

Who needs the Republican vot? There are more Democrats than repubs. Allow the debate and then vote.

Too bad that this reason for the hold up of the nomination is too convoluted for the lay republican to understand (they are an intellectually challenged lot).

Otherwise ordinary republicans would finally understand the kind of people the republican leaders really are - a sad bunch of bullies who are anxious to protect the right of government to coerce, brutalize ordinary people everywhere.

They can only delay this for a week. Leahy was obviously pissed when this happened but as he said they have the power to delay it for a week. Theyr'e not going to get anything for it of course apart from pissing off Holder who isn't going to do these guys any favors in the future. Next Wednesday Leahy will call a vote, Holder will be confirmed by several Republicans as well as all the Dems and it will be confirmed with a comfortable majority by the full senate by Friday of next week. It's clear that a faction in the GOP are in Jackass mode judging from this and what happened at Clinton's hearing but my guess it they are going to give the Republicans all the rope they need to hang themselves.