More On Cornyn

Steve has already written about Sen. Cornyn’s decision to delay Eric Holder’s confirmation as Attorney General for a week. I just wanted to add a couple of points. Here’s what Cornyn said about his reasons for the delay:

“Other GOP members of the committee, said Cornyn, are also concerned about the potential for prosecutions. The intent of the Military Commissions Act, he argued, was to provide immunity from prosecution if agents believed they were acting lawfully.

“Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was,” said Cornyn.

“There were provisions providing immunity to intelligence officials based up on good faith and what they understood the law to be,” said Cornyn. “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.””

First, the Military Commissions Act does not immunize intelligence agents from prosecution for anything. In Sec. 6, it provides a list of things that can be prosecuted as war crimes. One of them is torture. Another is ‘cruel or inhuman treatment’. Insofar as we can infer congressional intent from this statute, we ought to conclude that Congress intended that people who torture someone can be prosecuted: after all, Congress passed a law that expressly provides for their prosecution.

If John Cornyn and his colleagues meant to immunize intelligence officials for whatever they did, they should have passed a law saying so. If they wanted to immunize intelligence officials for doing anything that the Bush administration said was OK, however implausible the administration’s claims might be, they should have passed a law saying that. And if they wanted to add a codicil saying: “For the purposes of this statute, the practice known as ‘waterboarding’ is not a form of torture”, they should have done that.

But they didn’t do any of these things. They passed a law saying that people who engage in torture can be prosecuted for war crimes. Eric Holder, like many people, and like our government before George W. Bush got hold of it, believes that waterboarding is torture. Nothing in the Military Commissions Act says otherwise.

Second, because Eric Holder is not yet Attorney General, he has not yet had a chance to see what, exactly, people did to detainees over the last seven years. That being the case, it would be completely irresponsible for him to say whether he will or won’t prosecute them.

Imagine …

… that when Joe Biden walked into the Vice President’s office, he discovered that Cheney had created a small dungeon where his anteroom used to be, a dungeon in which he was able to personally watch as intelligence officials ripped detainees’ fingernails off. Imagine that Cheney had all this videotaped, and that between that, analysis of the fingernails that littered the room, and other forensic evidence, there was no doubt at all about what had happened.

Now imagine that interrogations of the intelligence officers in question revealed that while most of them knew perfectly well that this was illegal, despite the elaborate opinion John Yoo had written explaining why the loss of a mere fingernail, as opposed to an entire limb, cannot be considered to be torture, the one intelligence agent who had participated most enthusiastically was too dim to see this. Should anyone ask Holder to commit himself, in advance, and without knowing what he will find, not to prosecute such a person?

Obviously, this works the other way. Imagine that when Obama’s appointees begin to dig through our interrogation policy, they discover that it was all a hoax designed to deter people from joining al Qaeda. Those records of apparent torture sessions were all in code: ‘Harsh Ego Down’, for instance, meant ‘Subject received additional silken pillows, as per request; also, more Godiva chocolates.’ Maher Arar is in fact a long-time undercover CIA operative who has been pretending to be a victim of extraordinary rendition. Whenever the detainees’ lawyers visit Guantanamo, everyone pulls together to make them think the worst; afterwards, they head back to their carefully concealed beach resort and crack open another bottle of Chateau D’Yquem. Under those circumstances, even a hard-core advocate of prosecution such as myself would change her mind.

These are, of course, ludicrously extreme examples. But the basic point stands — that no responsible prosecutor ought to say whether or not he will prosecute a given individual before he knows where the evidence leads. If Holder were willing, at this point, to promise either that he would or that he would not prosecute people for war crimes, I would regard that as disqualifying him for the position of Attorney General.

John Cornyn ought to know this. He has a law degree. He served as a District Court judge for six years, on the Texas Supreme Court for seven, and as Texas’ Attorney General from 1999-2002. Either he slept through most of his career, or he just doesn’t care. In either case, he should be ashamed.