You would think that as Attorney General, the top lawyer in the land—with years of experience behind him—Eric Holder would be able to answer simple questions put to him by Senators regarding the disposition of Khalid Shaikh Mohammed and other terrorists who the administration might want to try in the criminal court system. Yet Holder, who has to have known in advance that he would be asked these questions, seemed completely stupefied when the amiable but increasingly annoyed Senator Lindsey Graham (R-SC) asked him the simplest and most obvious possible questions when he appeared before the Judiciary Committee today.
While it wasn't the only place where Holder drew a blank, to me the key question which seemed to totally baffle Holder was when Graham asked how the Justice Department would deal with the constitutional requirement to provide certain rights and protections to any defendant in a federal criminal trial. About three-and-a-half minutes into Graham's questioning of Holder there was this exchange:
Graham: "If we captured Bin Laden tomorrow would he be entitled to Miranda warnings at the moment of capture?"
Holder: "Again, I'm not...that all depends..."
Graham: "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 criminal defendant is entitled to a lawyer and to be informed of their right to remain silent....if we caught Bin Laden tomorrow we could not turn him over to the CIA or the FBI or Military Intelligence for 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?"
At this point Holder sidestepped the question with an argument that a conviction of Bin Laden would depend not on interrogation but on statements from eyewitnesses and documentary evidence, which didn't satisfy Graham or address his basic question, though it did prompt Graham to point out the interesting distinction which Holder seems to be drawing that terrorists whose targets were primarily military should get military trials while those whose targets were civilian should get civilian trials.
What Holder did not do was address the simple question of what the legal status of confessions obtained in non-judicial interrogation is, whether anything obtained that way would be admissible in court, and at what point a captured terrorist should be given his Miranda rights and treated as a prisoner of the judicial system with the rights that go with that status.
Article comments
— go to most recent comments1 - Ruvy
Either Holder didn't know what he was talking about - or he has a rabbit to pull out from under that bald head of his. The Obamanation is run by sneaky bastards who make Tricky Dick look like a Boy Scout troop leader.
Either way, the stink of fascism is all over these fools in the Obamanation.
Q: Is the sun shining outside?
Obamanation Flunky A: Well it all depends on your frame of reference, not to mention the fact that the sun is really a star, and "outside" is hard to determine from that point of view....blah blah bullshit"
2 - Blue Sunflower
Spare me. Like the US Department of Justice hasn't already figured out whether or not there was sustainable evidence to put Mohammed on trial in the first place, including whether or not there would questions like Miranda or not.
Thank God for Holder for trying to clean up Dubya's mess in the first place. This is the USA and we have the US Constitution. Our country is NOT above the law. Mohammed needs to go to trial, and if by ANY chance he's let go it's because of DUBYA's breaking of the Constitution that did it.
And Graham should really learn his (recent) history. Two words: Zacharias Moussaoui.
3 - Arch Conservative
"This is the USA and we have the US Constitution."
Yes and apparently this administration believes it is their turn to shit all over it, along with the whacked out liberals in the House that want to imprison you if you don't buy government health insurance.
4 - Arch Conservative
"Why Can't Eric Holder Answer a Simple Question?"
You try working for "the One" and being honest with the American people. I'd bet cold hard cash, and lots of it, that you wouldn't make it to lunch before you were told "you don't have to go home but you can't stay here!"
5 - Silas Kain
Arch, why do you fail to realize that the Bush Administration tread on the Constitution more than any Administration in history? Add to that the billions of dollars that went to the defense and petroleum industries with the blessing of St George of Bush. Judging from your consistent bashing of anything contrary to your brand of conservatism I can only conclude that your probably burn votive candles before portraits of Gov George Wallace and David Duke. The greatest regret I have in my life is the hard work I put into getting Ronald Reagan elected and re-elected. And, to my progressive friends, I apologize.
6 - Dave Nalle
Silas, I have to differ with you here. the FDR administration was far more abusive of the Constitution than the Bush administration and the most important difference was that Bush passed laws which violated the Constitution and then used them very sparingly, leaving it to the next administration to abuse them, while FDR abused his unconstitutional laws aggressively while in office.
I'd also argue that the Drug War supporting administrations, starting with Carter, enacted some of the worst unconstitutional laws of all. Nothing Bush did is as bad as the asset forfeiture laws.
Dave
7 - Dave Nalle
And let me also lay on Jimmy Carter the passage of the original FISA act which started much of this, and the draft registration.
Dave
8 - Glenn Contrarian
For anyone who is griped out with Eric Holder being evasive on ONE question, I have two words:
Alberto Gonzales
9 - Deano
I stongly suspect that should Bin Laden ever come within reach of the US military or intelligence services, he would not be captured alive, whether he wants to surrender or not, so the point of Miranda would probably, in a practical sense, be rendered moot.
A public trial, while theoretically nice, would be seen as providing a platform for his rhetoric and support, and his inevitable execution would lead to perpetual martyrdom in the eyes of his followers.
I suspect a nice anonymous grave will be his fate, should anyone in the service ever pin him down.
10 - Glenn Contrarian
Deano -
It seems that bin Laden WAS once within reach of our military. Google "Osama bin Laden" with "Tora Bora".
11 - Deano
Yes Glenn, I've read the accounts of Tora Bora and most of the subsequent interviews and background. Perhaps I should have said if he is within reach again...
I think that falls under the "woulda, coulda, shoulda" school of thought...
Hindsight is always 20/20.
12 - Christopher Rose
Arch, if I see just one more personal attack from you this month like the one I just deleted, it is you that is going to be told "you don't have to go home but you can't stay here!"
13 - Daniel O'Rourke
Miranda applies when 3 elements are met:
1. GOVERNMENTAL
2. Custodial
3. Interrogation
Waivers must be KIV, blah blah blah. The fact we are 'debating' all of this is just liberal confetti falling from the rafters. Smoke filled coffee house BS. Love him or hate him, Bush was successful after 911. Since it's hard to argue with success, Obama has to put on this show trial in an attempt to smear Bush. It won't work. As a matter of fact, it is going to backfire, BIG TIME. I always knew Obama would fail. I just didn't know how breathtakingly huge a failure he would be. And I don't mean the kind of intentional America hating purposeful failure Obama wants. I mean he is going to ensure liberals are out of power for generations to come.
14 - Silas Kain
OK, Dave, I won't argue the FDR abuses. In that same vain, I've also said MANY times that the seeds of this current economic meltdown have their origins in the Clinton Administration. Since George I, Goldman Sachs operatives have been in full control of the Treasury. The bottom line is that neither "party" is free of blame. If anyone even bothered to look at the campaign finance reports just released by the DNC and RNC, there's an obvious question to be asked -- how is it that in this horrific economic meltdown, there seems to be plenty of spare cash to throw the way of political parties and candidates? That's a war the American people should be declaring on our own political system. We're just too damn lazy and stupid to realize it. The apathy of the citizenry is pathetic.
15 - handyguy
Lindsey Graham's ludicrous grandstanding hypothetical questions didn't deserve an answer. He wasn't really looking for answers. He was just trying to embarrass the administration. Holder could have handled it better, but the hearing itself was a farce.
16 - Ruvy
Holder could have handled it better, but the hearing itself was a farce.
Handyguy, the big part of Dave's article is that Holder could have handled it better. He's a lawyer, and lawyers know all about hypotheticals designed to allow them to grandstand. He ought to have cut the senator down with decisive answers. But he was not doing his job. His answers were filled with muzzy thinking. He made of fool of himself and a fool of his boss.
Why can't Holder answer a simple question?
NU? This is the incompetence you are paying for? It's YOUR tax money - not mine? Why aren't you pissed off when some suit pisses like a fool on camera?
17 - Arch Conservative
Silas....I don't rcall ending my post with GO BUSH!
Why is it that every legitimate criticsm of "the One" is met with some crack about Bush.
In case you hadn't noticed it's 2009. Bush is gone. Barry's been in charge for a year now. In that time he's added more to the deficit than Bush did in eight years. In that time he's put a tax cheat in charge of the IRS. In that time he's created a website with falsified claims about job creation. In that time he's hung the soldiers in Aghinistan out to dry because he doesn't want to take ownership of Afghanistan, make a decision, and risk losing political capital he needs for his socialist health care plan.
Am I to assume that you didn't defend Obama because you can't Silas?
Christopher..why is Cindy allowed to say anything she wants but only my responses rise to the level of "personal attacks?"
18 - Ruvy
Why is it that every legitimate criticsm of "the One" is met with some crack about Bush.
'Cause the responders don't have any other legitimate answers.
1. Obama is unwilling to release a long form birth certificate, has blocked his records from the public and attacked the one news network willing to give any kind of help to those questioning his legitmacy;
2. He has retained every violation of civil rights that Bush initiated and in addition, has countenanced unequal enforcement of the law, allowing Black Panthers who blocked voting booths to go unpunished;
3. He has obstructed the course of justice by allowing a POW to be tried as a civilian in a civilian court of law;
4. Finally, he has initiated further violation of the constitution by agreeing to negotiate gun control on an international level, and by agreeing to go to Köbnhavn next month to institute an international environment tax on your country.
Nu? There is no real answer to any of this except some dumb liberal screaming " shut up and fuck you!!" at the top of his voice. And we will see that as well, Bing, rest assured.
19 - Glenn Contrarian
Ruvy -
So you're a 'birther'.
Did you know that - according to 'birther' logic - NO ONE born in Hawaii before the late '90's was born in America? According to 'birther' logic, my youngest son is not an American citizen...even though I stood by my wife as he was born in Tripler Hospital in Honolulu.
Yeah, the 'birthers' JUST KNOW my son's not an American citizen...because I can't produce the original birth certificate for my son, because after moving several times (as military families do), stuff gets lost.
But I don't really worry about it, because the Hawaiian state government took ALL the hard-copy birth certificates and scanned them, and got rid of the hardcopies, thereby saving thousands of tax dollars in storage costs, and tens of thousands of tax dollars in personnel costs...and any time I need a new copy of the birth certificate, I contact the Hawaii state government and get another certified copy...just like President Obama DID.
BUT IT DIDN'T MATTER that President Obama got and released a copy of his birth certificate, because it's not the absolute original! So President Obama - and my youngest son - MUST NOT BE AMERICAN CITIZENS!!!!
We know this because the birthers - and Ruvy - say so.
20 - Dave Nalle
Glenn, ICE agents are headed out to get the kid now. Think Elian Gonzales...
Dave
21 - Silas Kain
I've made plenty of criticisms of "The One". And those on the Far Right who are blinded by hate, prejudice or just plain stupidity refuse to see it. If I defend Obama, I'm a lefty. If I praise Obama, I am another Obama-lemming.
Truth be told, if there were a presidential election today, I would cast my vote for Dick Cheney. Shocked, huh? And the reason? He's the only viable Presidential candidate that believes gays should have the right to marry. That, my friend, IS a conservative principle. So stick that in your pipe and inhale deeply, Arch.
22 - Ken Seemann
It is amazing to me the number of people on both sides of the argument who don't remember the saying, "Two wrongs don't make a right." If you believe Bush screwed things up, fine. That doesn't justify ANYTHING O'Bama is doing, even if what he is doing is RIGHT. Period, end of discussion. What the last person did has NO RELEVANCE. It reminds me of a story I once heard that Charles Manson came up for parole and when asked my he should go free his response was, "Well, I wasn't like that Dahmer guy--I didn't eat the people I killed." That's what I hear for arguments about why we shouldn't discuss anything O'bama is doing, let alone disagree. Why not? "Oh, because Bush was worse." Sorry, doesn't fly.
Now, to this issue. I think both Holder and Graham failed to make their point, so they both lose. I think what Graham was TRYING to say was, "Look, if you don't know AHEAD of time where you are going to try a terrorist, doesn't that leave you open to letting them off on a technicality?" Holder answered quite clearly that if Bin Laden were captured tomorrow, he didn't know whether they would try him in a military court or a civilian court. Ok, fine, they don't know. So to bring Graham's point and Holder's point together, until we know where he will be tried, we simply hold Bin Laden--and wait. In the current case we waited almost 8 years. In the meantime, it seems to me that UNTIL WE KNOW WHICH SET OF RULES APPLY (i.e. where they will be tried), we can't risk breaking the rules! So these defendants should not have been questioned under military court rules unless we were SURE they would be tried in military court. Conversely, if Bin Laden were captured tomorrow and we KNEW he would be tried in civilian court, we better Mirandize him as soon as we see him.
Let's face it--we can't play the game if we don't know the rules. That is what I THINK Graham was trying to say. And I THINK what Holder was trying to say is that we would figure out which rules to play by pretty quickly, and that with many terrorists we are making that decision the same day. Maybe with low level people, but not the high level ones. If we knew immediately what to do, Gitmo would have never been necessary. We could have caught them, made a decision, and put them in line for the next open spot on the court docket. But we couldn't, we didn't, and now we're stuck. That was stupid. That doesn't justify us being stupid a second time, but it seems as if many people are saying just that--Bush was stupid, so if O'bama's solution is stupid--oh well. Well, that's not okay with me, and it shouldn't be okay with anyone.
So what do we do? If we were playing by the rules of military court, then we finish that game. It may suck, but those are the rules everyone agreed to play by at that time. We don't change the rules of the game in the middle of the game. If the only way to assure justice by those rules is that we let terrorists go, then so be it. We take responsibility for our stupidity and vow never to let it happen again.
BUT, we also don't continue playing the old game if the rules were stupid. We put new rules in place so that the same mistakes NEVER happen again. So if we have other stuff on these same people for which we can try them, then we do that.
23 - Dan(Miller)
Here is reasonably good analysis of Attorney General Holder's testimony before the Senate Judiciary Committee. Yeah, I know its from "Faux News" and therefore not worth of reading, much less serious consideration. Still, I find myself substantially in agreement with it.
Dan(Miller)
24 - Arch Conservative
'Cause the responders don't have any other legitimate answers
That was a rhetorical question Ruvy but thanks anyway. Anyone who isn't a drooling Obama cultist knew the answer to that one before I asked it.
It's not as if I'm on here daily sing the praises of George Bush. I didn't do that even when he was in office. In fact I've probably said more negative things than positive things about him on this website.
It's not even that Obama is such a leftist hack hellbent on realizing the progressive revolution that makes me so angry. It's his attitude. The sheer disdain he has for those American citizens that don't share his views or dare to question him is just dripping from his pores. He exudes nothing but an air of arrogance and narcissism. For me it's personal. I can't stand the guy and I frankly don't see what the fuck people find so inspiring about him. He was a community organizer who strongarmed his way into Chicago politics and then happened to be the right color in the right spot at the right time. Big f-ing deal!
John Wayne's been dead for 30 years but yet every time I turn on the TV I have to listen to this arugala eating, punkass Chavez wannabe running his mouth?
Who says things weren't better in the good ole days?
25 - zingzing
"Who says things weren't better in the good ole days?"
black people, gay people, poor people, people who live in cities, most of the rest of the world, etc, etc. seriously. you'd have to be some geriatric conservative who can't quite hold his pee in anymore to believe that.
"The sheer disdain he has for those American citizens that don't share his views or dare to question him is just dripping from his pores. He exudes nothing but an air of arrogance and narcissism. For me it's personal."
how so? actually, it's pretty apparent that he's been very patient with those who don't agree with him, to the point that even those that do agree with him are getting a little perturbed with the kid gloves he handles you people with. it's actually you (and those like you) that seem to have the arrogance to believe that your point of view is better and more important and must be obeyed by those that don't agree with you. you seem to think that you won the last election and your point of view must be heard. nope. we won the last election, and after many, many years of being ignored, it's our turn. but have we taken that turn yet? nope. we're too damn worried about what you've got to say. so say what you want to say, but don't for one second think that obama is the arrogant one. you are.