Attorney General Eric Holder's decision to give a federal court trial instead of a military commission hearing to five Guantanamo detainees the government has linked to the 9/11 attacks has led to criticism that the Obama Administration is transforming the war on terror from a military to law-enforcement affair.
This has led some critics to wonder if captured terrorist suspects would have to be read their Miranda rights on being captured by U.S. military or law enforcement representatives.
In one of the highlights of Wednesday's Justice Department oversight hearing by the Senate Judiciary Committee, Sen. Lindsey Graham, a South Carolina Republican, attempted to put Holder on the spot with the question: would U.S. officials need to Mirandize Osama bin Ladin if it captured him, including telling the al Qaeda leader that he had the right to remain silent?
Holder essentially said no, not necessarily. It would depend on the tack the U.S. government decided to take after capturing the terrorist leader. Graham clearly wasn't persuaded by Holder's answer.
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: 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.
SEN. GRAHAM: Would you try him — why would you take him someplace different than KSM?
ATTY GEN. HOLDER: Well, that might be the case. I don't know. I'm not —
SEN. GRAHAM: Well, let —
ATTY GEN. HOLDER: I'd have to look at all of the evidence, all of the —
SEN. GRAHAM: Well —
ATTY GEN. HOLDER: He's been indicted. He's been indicted already. (Off mike.)
SEN. GRAHAM: Does it matter if you — 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 would — where would you put him?
ATTY GEN. HOLDER: It would depend on how — 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 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.
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 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: Well —
ATTY GEN. HOLDER: It would not be something — (inaudible) —
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. I look forward to talking to you.
ATTY GEN. HOLDER: Sure.
SEN. LEAHY: And I —
SEN. GRAHAM: We can — 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.