After all of the yelling and screaming over whether there should be trials in civilian courts for the mastermind of the 9/11 attacks and other plotters, it became evident at a Senate hearing on Wednesday that whatever happens in those cases, it may not really matter.
Why do I say that? Because that's what the Attorney General told Senators.
The subject was first raised by a Democrat, Sen. Herb Kohl (D-WI), who got right to the point about what the future might hold for Khalid Sheikh Mohammed and four others who would be on trial in Manhattan.
"In the event, that for whatever reason, they do not get convicted, what would be your next step?" Kohl asked.
The Attorney General clearly was not interested in giving a direct answer.
"What I told the prosecutors and what I will told you of what I spoke to them about is that failure is not an option," said Holder.
"These are cases that have to be won."
The answer left Kohl a bit puzzled.
"Well, that's an interesting point of view," he said with a slightly bemused look. I'll just leave it at that."
Later, Holder gave a more complete response, acknowledging that if some like KSM were acquitted, the U.S. government would not release him.
Instead, he would be declared an "enemy combatant" and could be held indefinitely.
Isn't that something that Democrats complained about during the Bush Administration?
So there you go. The trials aren't going to matter if they go badly, because the U.S.A. is never going to set KSM free, no matter what a jury of his peers decides.
Sensing some holes in Holder's case, Sen. Lindsey Graham (R-SC) gave the Attorney General a hypothetical involving Osama Bin Laden.
"Let's say we capture him tomorrow," Graham began, "Would he be entitled to Miranda warnings at the moment of capture?"
"That all depends," said a stammering Holder, in an answer that infuriated Graham.
"The big problem I have is that you are criminalizing the war," said the South Carolina Republican.
"If we caught Bin Laden tomorrow, there are mixed theories and we couldn't turn him over to the CIA and FBI or military intelligence for an interrogation on the battlefield, because now we are saying he is subject to a civilian court in the United States."
"What would you tell the military commander who captured him? Would you tell him he must read him his rights and give him a lawyer?" asked Graham.
Holder's answer again was, "it depends."
The argument of Graham and other critics of the 9/11 trials is that if you are taking a case into federal court, then you have to play by the evidentiary rules of a civilian court.
And those rules might make a conviction quite difficult.
The story about KSM is that when he was captured, he asked for a lawyer and requested to be flown to New York.
Because he wasn't granted a lawyer, and he wasn't given his Miranda warning, could this case fall apart under the Sixth Amendment?
You make the call.
After all of the yelling and screaming over whether there should be trials in civilian courts for the mastermind of the 9/11 attacks and other plotters, it became evident at a Senate hearing on Wednesday that whatever happens in those cases, it may not really matter. Why do I say ...
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