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.
Holder’s evasiveness in answering the question is interesting, because the answer seems fairly obvious. Whatever goes on while the prisoner is in military custody is not part of the judicial process and interrogation there is clearly for purposes of intelligence and not admissible in court. All of that would change once he was transferred to civilian custody, at which point he would be read his rights and given a lawyer and interrogated just like any other suspect.
The dividing line between military custody and civilian custody seems absolutely clear-cut. So why was it so difficult for Holder to acknowledge it and admit that the cost of bringing terrorists to trial in civilian courts is giving them rights and protections they would not have in military custody? Doing this is hardly going to destroy his case against the terrorists. All of the physical evidence would still be admissible as would witness testimony. The only thing they would have to give up would be any confessions, and since those may have been obtained under duress they wouldn’t be admissible under any circumstances anyway.
Some who have examined the peculiar circumstances raised by the plans to try these terrorists in New York have raised questions about the lengthy incarceration in military custody being a violation of the right to a speedy trial, and issues of cruel and unusual punishment relating to interrogation techniques. These questions are actually largely irrelevant. Holder could make them all go away if he had the strength to draw that clear line between military custody and civilian custody and effectively say “what happens in GITMO stays in GITMO” and build his case on the ample, legitimate evidence against these terrorists.
Clearly the rules and standards are different when you are a military prisoner and when you are a criminal indicted for trial in a civilian court. People understand this. Why can’t Holder explain it? Lindsey Graham gave him a perfect opportunity to draw that line clearly and Holder just couldn’t bring himself to give a straight answer. Instead he gave the impression that he and the administration have no idea what they’re doing with these terrorists and haven’t thought their policy through at all, even when sensible answers ought to be simple to come up with.