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To Prosecute Torture or Not to Prosecute? Cornyn's Holder Holdup Splits GOPers

"The idea for prosecutions is coming from the hard left," Graham said. "Making a commitment that you'll never prosecute somebody is probably not the right way to proceed either ... I don't expect him to rule it in or rule it out."

But Cornyn certainly does. "I liked what President Obama said -- we need to be looking forward and not backward," he said this afternoon. "We've got huge problems facing this country ... I want some assurances that we're not going to be engaging in witch hunts."

Cornyn paid little heed to the political risk of holding up new leadership at the Justice Department just to stand behind Bush advisers who gave the legal go-ahead for torturous tactics that were used at Guantanamo Bay and elsewhere. I asked how he would proceed if Leahy moves forward with a committee vote on Holder before his prosecution query is answered, and Cornyn said he would place a Senate "hold" on the attorney general nominee if he has to.

Even if Holder is cleared through committee a week from today, then, the wrangling over his nomination could be far from over. Sen. Orrin Hatch (R-UT), who until now has been one of Holder's key GOP supporters, told me that "we have an obligation to help the president get his own Cabinet officials through" ... but when I asked how he would react if Holder did not promise to eschew torture prosecutions, Hatch switched gears: "That would really bother me."

Will Graham stop his party from making the torture issue its first stand against Obama? The list of questions for Holder could grow by tomorrow now that the new president has halted all military commissions at Guantanamo. Jon Kyl (AZ), the No. 2 Senate GOPer, told me that he wants Holder to answer questions about that Obama move before any confirmation vote.

Every detainee at Guantanamo is headed for his day in court, Graham said. And if something emerges during that process that suggests criminal conduct worthy of prosecution, he added, "we'll do it."

Late Update: A Senate GOP aide describes Holder's predicament as the result of playing it coy on prosecutions while being direct on his view of waterboarding. (The New York Times saw a similar undercurrent in its analysis of the confirmation hearing.)

"Holder put himself in a position of legal and rhetorical checkmate when he unequivocally described waterboarding as torture yet refused to tell the committee whether he would prosecute members of the intelligence community," the GOP aide said. "Holder can't have it both ways."