WASHINGTON - President-elect Barack Obama's nominee for attorney general said unequivocally yesterday that waterboarding is torture, and he vowed to initiate an extensive and immediate "damage assessment" to fix fundamental problems within the Justice Department that he said were caused by the outgoing Bush administration.
Eric H. Holder Jr. told the Senate Judiciary Committee during a marathon hearing that the incoming Obama administration is making major course corrections on the interrogations of terror suspects and many other issues that will represent a significant break from the current policies and programs.
Early on, he was asked whether waterboarding, which simulates the feeling of drowning, constitutes torture and is illegal.
"If you look at the history of the use of that technique," Holder replied, "we prosecuted our own soldiers for using it in Vietnam ... waterboarding is torture."
Waterboarding became a controversial symbol of the Bush administration's excesses in the war on terrorism, after it admitted that the technique was used several times by the CIA on high-value al-Qaida suspects. Not only is it illegal, Holder said, but in a further break with the Bush administration, he said the president's role as commander in chief does not give him the right to circumvent the law - on that or on other controversial counterterrorism programs including warrantless surveillance.
"No one is above the law," Holder said. He said it is "the obligation of the president, as commander in chief, to follow those laws."
Holder was equally emphatic about changing the internal dynamics of the Justice Department, which he said was "badly shaken by allegations of improper political interference." He said that the damage done under Bush appears to go far beyond that of a credibility issue and into the operational workings of the department.
Obama administration officials are already scrutinizing the most controversial programs and policies of the Bush administration, on interrogation, warrantless surveillance, military tribunals for terrorists and a polarization in the Justice Department that he said has undermined civil rights investigations and many other important responsibilities, Holder said.
Holder pledged that, if confirmed, he would immediately ramp up those efforts in close coordination with congressional overseers on the committee, saying urgency is needed because the problems are undermining not only the United States' standing in the world, but the administration of law enforcement and justice here at home.
The biggest concern of the new administration, Holder, 57, said, is "to prevent those things from happening in the future."
Holder, a former judge, prosecutor and deputy attorney general, is widely expected to win easy Senate confirmation. But he was pressed about whether the new administration would use waterboarding to forcibly extract information from terrorists in a so-called "ticking bomb" scenario.
"You would still refuse to condone aggressive interrogation techniques like waterboarding to get that information which would, under my hypothetical, save perhaps tens of thousands of lives?" asked Sen. John Cornyn, a Texas Republican.
Holder repeatedly sidestepped the question, as his predecessor Michael B. Mukasey did at his confirmation hearing last year. Each time Cornyn sought to pin him down, Holder responded by saying that there are other - and better - ways of eliciting information from suspected terrorists than waterboarding, a technique widely considered to be torture.
Holder's willingness to characterize waterboarding as torture was welcomed by Democrats on the panel and was part of a theme in which he pledged to be an attorney general for the people, and one who is not swayed by the political interests of the White House or anyone else.
"Law enforcement decisions and personnel actions must be untainted by partisanship," Holder said. "Under my stewardship, the Department of Justice will serve justice, not the fleeting interests of any political party."
Holder's comments, made in his opening statement, attempted to address the accusations of Republicans that he had shown a history of taking actions that appeared to aid the Clinton White House even when they were done over the strenuous objections of his own federal law enforcement agents and prosecutors.
While he said the Obama administration will move to shut down the detention center at Guantanamo Bay, Cuba, Holder said it could take a significant amount of time to do so. He also said that some terrorists in the future could be prosecuted under some form of military commissions if they are revamped to provide better protections for the accused, and that others would be prosecuted in U.S. federal courts.
Many detainees could be transferred to other countries, Holder added, but the Obama administration is still struggling with what to do with the most dangerous terrorist suspects who cannot be tried in civilian courts.
"We're going to have to try to figure out what we do with them," Holder said.
A packed crowd, including many of his relatives, attended the confirmation hearing for Holder, the first African American nominated to be the nation's top law enforcement officer.
Holder initially sailed through a day of questioning that largely focused on his role in the Clinton pardon controversies, in part by repeatedly acknowledging his mistakes.
"My decisions were not always perfect," Holder said. "But with the benefit of hindsight, I can see my errors clearly and I can tell you how I have learned from them."