Under our system of criminal laws, all persons arrested for a crime have certain constitutional rights. Specifically, they do not have to answer any questions the authorities may put to them (the "right to remain silent"), and they may demand that they have an attorney present to help them (the "right to counsel") -- and if they cannot afford an attorney, the State will provide them with one at its expense. Not only do persons charged with crime have these constitutional rights, but the Supreme Court decided that they must be told of their rights as soon as they have been arrested -- the "Miranda warnings" must be given. (A local attorney here -- a former D.A. who also owned a quality printing press -- made a small fortune in the years just after the Miranda decision by printing and distributing to police departments nationwide small cards with the warnings on them, which the police could carry in their wallets or shirt pockets.)
If a person arrested for a crime is not given the Miranda warnings, the Supreme Court has ruled that any evidence gained from his subsequent interrogation will be inadmissible in a court of law. Not only will any confession be excluded, but so will any evidence of guilt discovered as a result of facts revealed in any statement or confession taken by the police -- such evidence becomes "fruit of the poisoned tree".
Thus let us look at the case against Khalid Sheikh Mohammed and his confederates. He was initially detained by the Pakistanis in 2003, and then handed over to the CIA, which spent the next three years grilling him for his knowledge about 9/11. Do you imagine that he was once read his "Miranda rights", or allowed to have an attorney, during that time period? For Mr. Holder and his prosecutors to decide that they have enough evidence of his guilt to proceed against him in federal court must mean that they acquired independent proof from sources wholly unconnected with those revealed during his prolonged interrogation. They will carry the burden of proof on that point in federal court, and will be required to demonstrate, by revealing all their sources in detail, how none of them could have been derived from the information provided by KSM and his confederates. Just the very proof of such independent sources, alone and by itself, will provide the terrorist world with an information bonanza, which they otherwise never could have had if KSM and his cohorts were tried before the military commissions authorized by Congress exactly for that reason.
(Of course, it was when Mr. Holder was in private practice that his law firm of Covington & Burling provided pro bono legal defense to eighteen Guantanamo detainees. The firm challenged the constitutionality of the military commissions, and managed to stymie the Bush Administration's use of them until just the final months of President Bush's second term. It is only consistent that Mr. Holder would now seek to undermine them altogether.)
This is such insanity! Watch in the video below how Mr. Holder squirms and tries to avoid admitting these consequences under questioning from (of all people) Senator Lindsay Graham:
When questioned about an assumed failure to give Osama bin Laden the Miranda warnings, Mr. Holder says it will not matter, because the evidence of his guilt is "overwhelming". Perhaps, but that is no way to run a railroad -- or a government engaged in a war against terrorists. Do not think for a split second that the Supreme Court will approve of denying a criminal his Miranda rights because the evidence of his guilt is "overwhelming." The Court will simply rule that the criminal cannot be prosecuted in any court, and must be set free. It has no other means of giving the police an incentive to require them to follow the dictates of Miranda in every single case.
Thus the decision to prosecute KSM and four other terrorists as ordinary criminals has monumental consequences for the conduct of the war on terror. Even if our armed forces were to capture Osama bin Laden tomorrow, they would not be able to question him. They would have to provide him with an attorney, who would advise him to remain silent throughout any interrogation. [UPDATE 11/19/2009: No sooner do I post this than we receive confirmation that the lunacy at the top now extends to the Chairman of the Judiciary Committee, Senator Patrick Leahey (D-Vt.). In an interview, he tries to defend Mr. Holder's claim that we would not need to worry about having to give bin Laden his Miranda warnings, because "we've [got] enough on him, we don't need to interrogate him."]
Making the war on terror into a war on crime is not a rational decision. It is a refusal to trace the consequences. It is, in short, madness. We can but pray that it is not the kind of madness that precedes our destruction.