Holder reaffirmed in testimony before the House today that intelligence agents that followed the advice in the OLC memos in good faith would not be prosecuted. With respect to policy-makers, Holder testified that he does not intend to criminalize politics, but that it was his duty to follow the law and enforce the law. In response to questions from Rep. Wolf, Holder further testified that other OLC memos might be released, but claimed to be unfamiliar with memos that Dick Cheney referred to recently that he claim support the "efficacy" of torture.

Mr. Schiff challenged Mr. Holder’s position on prosecutions, given his prior testimony that categorically agreed with the statement that "waterboarding is torture." Specifically referencing the authors of the torture memos, Schiff asked whether Holder was willing to disavow Yoo’s legal argument that the Executive/Commander in Chief power trumps any law that Congress might pass, noting the argument had also been made in the context of the FISA law. Holder replied with the Youngstown Steel analysis regarding the relative power of the President being relative to Congressional action in the area. Holder testified that he would not embrace the prior Administration’s expansive view of executive power.

Holder agreed (grudgingly) that agents who did not follow OLC guidance, or did so in bad faith could theoretically still be open to prosecutions.