(CNSNews.com) - Attorney General Eric Holder, under close questioning by Sen. Lindsey Graham (R-S.C.), couldn’t say what the United States would do with al-Qaeda terrorist Osama bin Laden if we ever caught him.
 
Holder testified Wednesday before the Senate Judiciary Committee about why he chose to bring Bin Laden’s lieutenant -- suspected 9/11 mastermind Khalid Shekh Mohammed  (KSM) -- to the U.S. to be tried in a civilian federal court in New York City rather than before a military tribunal.
 
Graham, a former military prosecutor, grilled Holder as if the attorney general were himself on trial, telling Holder that by trying an enemy combatant in a civilian court “We’re making history here – bad history.”
 
When asked by Graham what the U.S. would do if it caught Bin Laden, Holder said he “didn’t know” and that the U.S. would have to “go through our protocol” before deciding what to do with the Islamic terrorist.
 
When asked if Bin Laden would have to be read his rights – like any U.S. criminal defendant – the attorney general said “that all depends.”
 
Here’s a transcript of their entire exchange:
 
Sen. Lindsey Graham (R-S.C.): If Bin Laden were caught tomorrow, would it be the position of this administration that he be brought to justice?
 
Mr.  Eric Holder, attorney general: He would certainly be brought to justice –
 
Sen. Graham: Where would you try him?
 
Attorney General Holder: Well we’d go through our protocol and we’d make the determination about where he should --
 
Sen. Graham: Would you try him -- Why would you take him someplace different than KSM?
 
Attorney General Holder: Well, that might be the case, I don’t know. I’ve not looked at all of the evidence --
 
Sen. Graham: Well, does it matter if you --
 
Attorney General Holder: (interrupting) He’s been indicted already --
 
Sen. Graham: (interrupting) Does it matter if you use the law enforcement theory or the enemy combatant theory in terms of  the way that this would be handled.
 
Attorney General Holder: Bin Laden is an interesting case, in that he’s already been indicted in federal court. We have cases against him –
 
Sen. Graham: Right. Where would you put him?
 
Attorney General Holder It would depend on how --
 
Sen. Graham: 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?
 
Attorney General Holder: That all depends –
 
Sen. Graham: Well, it does not “depend.” If you are going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs, the defendant, the criminal is entitled to a lawyer and to be informed of their right to remain silent.
 
Sen. Graham: The big problem I have is that you’re criminalizing the war – that if we caught Bin Laden tomorrow, we’ve mixed (legal) theories and we couldn’t turn him over to the CIA, or 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 are confusing the people fighting this war.
 
Sen. Graham: What would you tell the military commander who captured him? Would you tell him he must read him his rights and get him a lawyer? And if you didn’t tell him that would you jeopardize the prosecution in a federal court?
 
Attorney General Holder: We’ve captured thousands of people on the battlefield, only a few of which have actually been given their Miranda warnings. With regard to bin Laden and the desire or the need for statements from him, the case against him at this point is so overwhelming as to ---
 
Sen. Graham: Mr. Attorney General, the only point I’m making, is that if we are going to use federal court as a disposition for terrorists, you take everything that comes with being in federal court. And what comes with being in federal court is that the rules in this country, unlike military law – (where) you can have military operations, you can interrogate somebody for military intelligence purposes and the law enforcement rights do not attach -- but under the domestic criminal law, the moment the person is in the hands of the United States government, they are entitled to be told they have a right to a lawyer and remain silent, and if we go down that road we’re going to make this country less safe. That is my problem with what you have done.
 
Sen. Graham: You’re a fine man, and I know you want to do everything to help this country be safe, but I think you’ve made a fundamental mistake here. You have taken a wartime model that will allow us flexibility when it comes to intelligence gathering, and you have compromised this country’s ability to deal with people who are at war with us by interjecting into the system the possibility that they may be given the same constitutional rights as any America citizen.
 
Sen. Graham: And the main reason KSM is going to court, apparently, is because the people he decided to kill were here in America and mostly civilian, and the person going to military court decided to kill some military members overseas. I think that is a perversion of the justice system.
 
Attorney General Holder: What I’ve said repeatedly is that we should use all the tools available to us – military courts, Article III courts. The conviction of Osama bin Laden, were he to come into our custody would not depend on any custodial statements he would make. The case against him, both those of those cases that have already been indicted, the case that we would make against him in the 9/11 cases, would not be dependent on custodial interrogations, so I think that in some ways, you’ve thrown up something, with all due respect, is a red herring.
 
Sen. Graham: With all due respect, every military lawyer that I’ve talked to is deeply concerned that if we go down this road, we’re criminalizing the war and we’re putting our intelligence-gathering at risk, and I will have statements to back up what I’m saying.