(CNSNews.com) – Informing a terror suspect of his right to remain silent and his right to an attorney does not prevent the government from effectively prosecuting terrorism cases, said Attorney General Eric Holder.
“What people need to understand is that giving them Miranda warning does not necessarily mean an interrogation basically stops,” Holder told the Senate Judiciary Committee on Wednesday.
“In fact, I think there is a good case to be made that once people get Miranda warnings, the information flow continues, or it stops temporarily until a lawyer, a defense lawyer, is introduced into the mix,” the attorney general said. “That lawyer then counsels his clients – especially in terrorism cases given the lengthy sentences from an Article 3 proceeding – works with his client to cooperate with the government.”
Holder has been behind the decision to prosecute 9/11 mastermind Khalid Sheikh Mohammed in a civilian court instead of a military tribunal. Holder also made the call to prosecute the attempted Christmas Day airline-bombing suspect Umar Farouk Abdulmutallab as a criminal, rather than an enemy combatant.
Republican senators on the panel were unanimous in calling for trying terrorists in military courts rather than civilian courts. Democrats stood with Holder and repeatedly said that President George W. Bush’s administration did the same thing that Holder is advocating.
Sen. Jeff Sessions of Alabama, ranking Republican on the committee, was skeptical about Holder’s view on Miranda warnings.
“The first thing a good lawyer is going to say is, don’t talk,” Sessions said. “You’re going to get less information from that procedure. That is a big reason why more of those cases need to be tried before military commissions.”
Citing a list of 400 purportedly terror-related convictions, Attorney General Holder said that the Justice Department has achieved 30 terror-related convictions in 2009 – more than any year since Sept. 11, 2001.
Holder also said that “most prosecutions came in the last administration” as a way of reasserting that the Bush administration had used civilian courts to prosecute terrorist cases. Further, Holder said only three cases have been successfully prosecuted in military courts since 9/11.
“Our history shows that Article 3 courts are quite cable of trying cases without putting at risk intelligence sources,” Holder said.
Senate Majority Whip Dick Durbin (D-Ill.) said, “Those arguing we should shift all these prosecutions to the military side would have to stop and explain why this dramatic record of success should be rejected.”
CNSNews.com has reported that the Justice Department’s list of 403 terror-related convictions includes several cases of credit card fraud, tobacco smuggling, financial fraud and even stealing breakfast cereal – all cases that judges, prosecutors and news accounts said had nothing to do with terrorism.
The DOJ provided the list to the Senate Judiciary Committee in late March in response to questions about the source of Holder’s claim that more than 300 convicted terrorists are serving in U.S. prisons.
Sessions expressed criticism of the Justice Department touting the list.
“You asserted that you know we can prosecute terrorists in our federal courts safely and securely because we have more than 300 convicted international terrorists and domestic terrorists in the Bureau of Prisons, but that was surely an exaggeration,” Sessions said.
“When, on March 22, you finally provided a list of those individuals, it was an inflated list of many hundreds lesser offenses. Many of these cases were only prosecuted before military commissions became operative,” he added.
Sen. Dianne Feinstein (D-Calif.) excoriated Republicans for criticizing the administration’s policies.
“The administration needs to have maximum flexibility,” Feinstein said. “I have served on this committee 17 years. The record is ignored. It doesn’t matter that the Bush administration brought more than 200 terrorists to justice under Article 3 courts.”
Holder said that in a few weeks he will announce where the KSM trial will occur. New York elected officials and residents have vocally opposed having the trial in their city.
But Feinstein said the attorney general should have complete say whether to try a case in a civilian or military court.
“You should have that option. You should also have the option of military tribunals,” Feinstein said. “I understand why New Yorkers feel the way they do. I also understand why America remains strong, if you remain strong. The record of Article 3 courts on convictions of terrorists in this country is unparalleled.”
Sen. Lindsey Graham (R-S.C.) asked Holder, “President Obama said that the nation is at war with al Qaeda. Do you agree with that?”
Holder answered, “Yes.”
Graham, a former military prosecutor, responded, “I would just urge you to remain strong in that thought process, because some people don’t believe we’re at war. Some people, just as patriotic as I am, believe you should be using the law enforcement model exclusively.”
Graham said there may be cases where a criminal trial is appropriate, and said the Justice Department should be “flexible, pragmatic and aggressive.”
“When one is at war, we have to realize that the rules are different than fighting crime. You agree with that?” said Graham. There was a brief pause with no answer from Holder. So Graham continued, “The law of war is different than normal criminal law.”
After another silent pause, Graham said, “In certain aspects.”
Finally Holder responded, “In certain aspects, yes.”