Skewering Civilian Trials for Terrorists
NPR (of all outlets) records this brilliant exchange between Sen. Lindsey Graham and U.S. Attorney General Eric Holder:
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: The Ghailani case — he was indicted for the Cole bombing before 9/11. And I didn’t object to it going into federal court. But I’m telling you right now. We’re making history and we’re making bad history. And let me tell you why.
If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?
ATTY GEN. HOLDER: He would certainly be brought to justice, absolutely.
SEN. GRAHAM: Where would you try him?
ATTY GEN. HOLDER: Well, we’d go through our protocol. And we’d make the determination about where he should appropriately be tried.
Cutting out a few things, continuing:
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.
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.
Props to Sen. Graham’s factchecking staff. Nice prep for that.