"If these Democrats really want to make it clear that any future U.S. interrogators who use brutal techniques should be prosecuted, then they should propose tough, clear new legislative language -- and take the political heat for it. Failure to do that will suggest that their attacks on Bush "torture" are driven more by political opportunism than by fidelity to law or human rights.
Let's compare Holder's January 15, 2009, Senate confirmation testimony and subsequent answers to written questions about waterboarding with relevant portions of the Margolis memo.
Holder: "If you look at the history of the use of that technique, used by the Khmer Rouge, used in the [Spanish] Inquisition, used by the Japanese, and prosecuted by us as war crimes -- we prosecuted our own soldiers for using it in Vietnam... waterboarding is torture.... It is clear, and has historically been uncontroversial, that waterboarding is a form of torture."
Margolis: The "historical examples of 'water torture' " used by the OPR to condemn Bybee and Yoo, including those cited by Holder, "are distinguishable from the [CIA's] proposed technique and were not analyzed under language similar to the torture statute."
In other words, Holder's historical examples prove nothing. They cited tortures far more brutal than the technique that the CIA proposed in 2002. They also involved laws that predated the 1994 legislation and imposed broader criminal prohibitions.
And, as Margolis could have added, those not-very-relevant examples have been almost the only scrap of legal analysis that Holder has ever offered to support his condemnations of the CIA's waterboarding."
http://www.nationaljournal.com/njmagazine/or_20100227_6073.php
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