This clip of Senator Lindsey Graham questioning Attorney General Eric Holder on the decision to try KSM in civilian court is well worth 4:40 of your time. The South Carolina Republican eloquently and passionately illustrates the folly of treating jihadists like common criminals.
“If you’re going to prosecute anybody in civilian court, our law is clear that the moment custodial interrorgation 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 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 that he 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 criminal court?”
Graham’s masterful performance struck me when I first saw it last night, but I was moved to post about it today after another senator, Democrat Patrick Leahy of Vermont, took issue with his colleague and said no interrogation would be necessary. “For one thing, capturing Osama bin Laden — we’ve had enough on him, we don’t need to interrogate him,” Leahy said.
Yes, we doubtless could convict Osama bin Laden based on evidence already in our hands. But Senator Leahy, don’t you think there are a few questions we might want to ask a captured bin Laden? Such as: “Dude, where you been hanging out all these years?” Or: “Hey, any of your peeps have any plans we might wanna know about?”
I don’t want to make too much out of a statement that Leahy must already regret. I sure wouldn’t want to be held accountable for the dumbest things I ever said. But it’s hard to imagine a starker demonstration of the difference between a war mentality and a crime-fighting mentality.
Update: Andy McCarthy, who has been all over the the civilian trial debacle since the news first broke last Friday, made very similar points about Senator Leahy in The Corner — posting at almost exactly the same time.