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?