By Jason Leopold

The Senate Judiciary Committee will hold a vote Wednesday to confirm Eric Holder as Attorney General following a week-long delay orchestrated Republicans voiced concern that, among other things, Holder would immediately initiate investigations and prosecutions of Bush administration officials who participated in the torture of suspected terrorist detainees.

On Tuesday, Sen. Arlen Specter, the ranking Republican on the Judiciary Committee, who invoked his right to delay Holder’s confirmation by one week said he would back Holder, virtually guaranteeing Holder will become the nation’s first African American Attorney General when the full Senate votes on the confirmation at the end of the week. 

Specter said endorsements by former FBI Director Louis Freeh and former Deputy Attorney General James Comey weighed heavily on his decision to support Holder.

Specter added that spoke to Holder last Thursday at a private meeting about investigating officials who approved the Bush administration’s interrogation program. The senator suggested that Holder indicated that intelligence officials who tortured suspected terrorist detainees and did so based on a legal opinion from the Justice Department that authorized the methods would likely be safe from prosecution.

But Specter added that Holder told him he would not make any decisions without first reviewing individuals cases to determine whether any federal laws were broken related to the interrogation techniques used on terrorist suspects by the CIA.

“I got a satisfactory answer,” Specter said. “The gist of it is that if you have an authoritative legal opinion, that that is a defense in terms of mens rea or in terms of intent. That’s a very broad generalization, and I don’t think you can go any further than that until you examine the specific facts of the case and then the conduct is determinative.”

“You may have an opinion which allows an interrogator to go so far and perhaps the conduct vastly exceeds that, so that it wouldn’t be reasonable to think that was comprehended within the opinion. But I think you had a Department of Justice memorandum in 2002 which was in effect for a time and then later repudiated, so that it’s really going to be fact-specific.”
 
At his confirmation hearing Jan. 15, Holder said waterboarding, the drowning technique George W. Bush and Dick Cheney told CIA interrogators they could use on at least three detainees, was torture.  

Holder’s response led some Republicans and even some former Bush administration officials to opine that criminal investigations were on the horizon.

Last week, Sen. John Cornyn, R-Texas, said he wanted assurances from Holder that he would not investigate or prosecute Bush administration and intelligence officials for torture.

“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,” Cornyn said.

That view was shared by former Attorney General Michael Mukasey, who, prior to his exit from the Justice Department, told the Wall Street Journal Jan. 17, that he is worried that government lawyers and others who assisted the Bush administration in crafting interrogation policies are at risk of criminal prosecution now that Holder has defined waterboarding as torture.

“Torture is a crime,” Mukasey told the Journal, adding that he worried “about the effect on…the work of fine intelligence lawyers who are called on to make judgments on questions like that, often under tremendous time pressure — not to mention the pressure of an attack that killed 3000 people [and caused worry that] maybe there was going to be another one.”

On Monday, former Attorney General Alberto Gonzales also weighed in on the possibility of a torture probe, telling National Public Radio he doubted that he or anyone else who served in the Bush administration would be prosecuted, let alone investigated, over interrogation and surveillance policies.

“I don’t think that there’s going to be prosecution, quite frankly,” Gonzales said. “Because again, these activities for the most part, based on what I know, and obviously there are going to be some actions and activities that I’m not aware of. But in terms of what people really focused on: they were authorized, they were known at the highest levels, they were supported by legal opinions at the Department of Justice. And so, based upon those facts, I think it would be difficult, again I can’t pre-judge it and Mr. Holder if he is confirmed will have to make a decision whether to move forward with a prosecution. But under those circumstances, I find it hard to believe.”

Gonzales added that the mere discussion of torture “is extremely discouraging,” the former attorney general said.

Gonzales claims to have spoken to “senior officials at the CIA” who allegedly told Gonzales “that agents at the CIA no longer have any interest at doing anything remotely controversial, for fear that they are going to be investigated, and they’re going to have to go out and hire lawyers in order to do their job.

“And so it has a very discouraging effect,” the former Attorney General and White House counsel said. “And the net result of all of that is that people will not be doing what they need to be doing to gain intelligence that will help us connect the dots and protect our country from another attack.”

But whether or not Holder decides to pursue an investigation, a consensus seems to be building among Democratic congressional leaders that further investigations are needed into Bush’s use of torture and other potential crimes.

On Wednesday – the first working day of the Obama administration – Senate Majority Leader Harry Reid said he would support funding and staff for additional fact-finding by the Senate Armed Services Committee, which last month released a report tracing abuse of detainees at Guantanamo Bay and Abu Ghraib to Bush’s Feb. 7, 2002, decision to exclude terror suspects from Geneva Convention protections.

Senate Armed Services Committee Chairman Carl Levin, who issued that report, echoed Reid’s comments, saying “there needs to be an accounting of torture in this country.” Levin, D-Michigan, also said he intends to encourage the Justice Department and incoming Attorney General Eric Holder to investigate torture practices that took place while Bush was in office.

Two other key Democrats joined in this growing chorus of lawmakers saying that serious investigations should be conducted.

Sen. Sheldon Whitehouse, D-Rhode Island, a former federal prosecutor and a member of the Senate Judiciary Committee, said in a floor speech, “As the President looks forward and charts a new course, must someone not also look back, to take an accounting of where we are, what was done, and what must now be repaired.”

Democratic Majority Leader Steny Hoyer of Maryland told reporters: “Looking at what has been done is necessary.”

On Jan. 18, two days before Obama’s inauguration, House Speaker Nancy Pelosi expressed support for House Judiciary Committee Chairman John Conyers’s plan to create a blue-ribbon panel of outside experts to probe the “broad range” of policies pursued by the Bush administration “under claims of unreviewable war powers.”

Besides Levin’s findings on mistreatment of detainees, Conyers published a 487-page report entitled “Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush” that calls for the creation of a blue-ribbon panel and independent criminal probes into the Bush administration’s conduct in the “war on terror.”

Conyers urged the Attorney General to “appoint a Special Counsel or expand the scope of the present investigation into CIA tape destruction to determine whether there were criminal violations committed pursuant to Bush administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.”

Last year, Bush’s Attorney General Michael Mukasey appointed U.S. Attorney John Durham as special counsel to investigate whether the destruction of CIA videotapes that depicted interrogators waterboarding alleged terrorist detainees violated any laws. Durham was not given the authority to probe whether the interrogation techniques themselves violated anti-torture laws.