Saturday, November 21, 2009

Attorney General Holder flubs basic questions about terrorist trials. 

The Attorney General has an exchange with Senator Lindsey Graham at last week's Senate Judiciary hearing.

We NYCers who experienced 9/11, and will have the fun of experiencing the civilian-court trial of Khalid Sheikh Mohammed and his 9/11 co-conspirators, pay attention to this sort of thing.

The AG's performance leaves even the cynical reporter from Fox News National Public Radio a bit incredulous...
The exchange started with Graham stumping Holder with a question one would have thought the attorney general would have been prepared for:

GRAHAM: Can you give me a case in United States history where a (sic) enemy combatant caught on a battlefield was tried in civilian court?

ATTY GEN. HOLDER: I don't know. I'd have to look at that. I think that, you know, the determination I've made --

SEN. GRAHAM: We're making history here, Mr. Attorney General. I'll answer it for you. The answer is no.

ATTY GEN. HOLDER: Well, I think --


SEN. GRAHAM: Well, let me ask you this. Okay, let me ask you this. Let's say we capture him tomorrow. When does custodial interrogation begin in his case?

If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?

ATTY GEN. HOLDER: Again I'm not -- that all depends. I mean, the notion that we --

SEN. GRAHAM: Well, it does not depend. If you're going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.

The big problem I have is that you're criminalizing the war, that if we caught bin Laden tomorrow, we'd have mixed theories and we couldn't turn him over -- to the CIA, the FBI or military intelligence -- for an interrogation on the battlefield, because now we're saying that he is subject to criminal court in the United States. And you're confusing the people fighting this war.

What would you tell the military commander who captured him? Would you tell him, "You must read him his rights and give him a lawyer"? And if you didn't tell him that, would you jeopardize the prosecution in a federal court?

ATTY GEN. HOLDER: We have captured thousands of people on the battlefield, only a few of which have actually been given their Miranda warnings.

[Well, it's good to know a few have!]

With regard to bin Laden and the desire or the need for statements from him, the case against him at this point is so overwhelming that we do not need to --

SEN. GRAHAM: Mr. Attorney General, my only point -- the only point I'm making, that if we're going to use federal court as a disposition for terrorists, you take everything that comes with being in federal court. And what comes with being in federal court is that the rules in this country, unlike military law -- you can have military operations, you can interrogate somebody for military intelligence purposes, and the law-enforcement rights do not attach.

But under domestic criminal law, the moment the person is in the hands of the United States government, they're entitled to be told they have a right to a lawyer and can remain silent. And if we go down that road, we're going to make this country less safe. That is my problem with what you have done.

[...] I think you've made a fundamental mistake here. You have taken a wartime model that will allow us flexibility when it comes to intelligence gathering, and you have compromised this country's ability to deal with people who are at war with us, by interjecting into this system the possibility that they may be given the same constitutional rights as any American citizen.

ATTY GEN. HOLDER: [...] The conviction of Osama bin Laden, were he to come into our custody, would not depend on any custodial statements that he would make. The case against him, both for those cases that have already been indicted --- the case that we could make against him for the -- his involvement in the 9/11 case --

SEN. GRAHAM: Right --

ATTY GEN. HOLDER: -- would not be dependent on Miranda warnings --

SEN. GRAHAM: Mr. Attorney --

ATTY GEN. HOLDER: -- would not be dependent on custodial interrogations. And so I think in some ways you've thrown up something that is -- with all due respect, I think is a red herring.


SEN. GRAHAM: With all due respect, every military lawyer that I've talked to is deeply concerned about the fact that, if we go down this road, we're criminalizing the war and we're putting our intelligence-gathering at risk. And I will have some statements from them to back up what I'm saying.

SEN. LEAHY: Senator Graham, I --

SEN. GRAHAM: My time is up.
Read the whole thing.