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Transcript, via NPRâ€”of all sourcesâ€”of Sen. Lindsey Grahamâ€™s (Chameleon-SC) pummeling of Attorney General Eric Holder (ZANU PF) on Wednesday, during the Justice Department oversight hearing held by the Senate Judiciary Committee.
SEN. GRAHAM: Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?(Tripartisan tips â€?o the hat to traditionalist conservative Larry Auster, the Republican Web sites Newsbusters (Noel Sheppard) and Hot Air, and socialist NPR.)
ATTY.. GEN. HOLDER: I don't know. I'd have to look at that. I think that, you know, the determination I've madeâ€”
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 thinkâ€”
GRAHAM: The Ghailani caseâ€”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.
SEN. GRAHAM: Would you try himâ€”why would you take him someplace different than KSM [Khalid Sheik Mohammed]?
ATTY. GEN. HOLDER: Well, that might be the case. I don't know. I'm notâ€”
SEN. GRAHAM: Well, letâ€”
ATTY. GEN. HOLDER: I'd have to look at all of the evidence, all of theâ€”
SEN. GRAHAM: Wellâ€”
ATTY. GEN. HOLDER: He's been indicted. He's been indicted already. (Off mike.)
SEN. GRAHAM: Does it matter if youâ€”if you use the law enforcement theory or the enemy combatant theory, in terms of how the case would be handled?
ATTY. GEN. HOLDER: Well, I mean, bin Laden is an interesting case in that he's already been indicted in federal court.
SEN. GRAHAM: Right.
ATTY. GEN. HOLDER: We have cases against him. (Off mike.)
SEN. GRAHAM: Right, well, where wouldâ€”where would you put him?
ATTY. GEN. HOLDER: It would depend on howâ€”a variety of factors.
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 notâ€”that all depends. I mean, the notion that weâ€”
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 overâ€”to the CIA, the FBI or military intelligenceâ€”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 toâ€”
SEN. GRAHAM: Mr. Attorney General, my only pointâ€”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 lawâ€”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.
You're a fine man. I know you want to do everything to help this country be safe, but 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.
And the main reason that KSM is going to court apparently is because the people he decided to kill were here in America and mostly civilian, and the person going into military court decided to kill some military members overseas. I think that is a perversion of the justice system.
ATTY. GEN. HOLDER: What I said repeatedly is that we should use all the tools available to us: military courts, Article III courts. 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 indictedâ€”the case that we could make against him for theâ€”his involvement in the 9/11 caseâ€”
SEN. GRAHAM: Rightâ€”
ATTY. GEN. HOLDER: â€”would not be dependent on Miranda warningsâ€”
SEN. GRAHAM: Mr. Attorneyâ€”
ATTY. GEN. HOLDER: noâ€”would not be dependent on custodial interrogations. And so I think in some ways you've thrown up something that isâ€”with all due respect, I think is a red herring.
SEN. GRAHAM: Wellâ€”
ATTY. GEN. HOLDER: It would not be somethingâ€”(inaudible)â€”
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, Iâ€”
SEN. GRAHAM: My time is up. I look forward to talking to you.
ATTY. GEN. HOLDER: Sure.
SEN. LEAHY: And Iâ€”
SEN. GRAHAM: We canâ€”there are some issues we can agree on.
ATTY. GEN. HOLDER: One thing I would say: that, with regard to those people who are captured on the battlefield, we make the determinations every day as to who should be Mirandized, who should not. Most are not Mirandized. And the people who are involved in that decision involve not only lawyers and agents but also military personnel who make the determination as to who should be Mirandized.
But again, the notion that a conviction of Khalid Sheikh Mohammed would depend on his getting Miranda rights is simply not accurate.