Lindsey Graham goes a long way to redeem himself from many of his follies in this shredding of Holder's unconscionable position:
Andy McCarthy adds:
Attorney General Holder's exchange with Senator Lindsey Graham yesterday has, quite appropriately, gotten lots of attention. I want to drill down for a moment, though, on one element of it. The lawyer's stock in trade is precedent. Whether you're a prosecutor or any other lawyer faced with a policy question, the first
thing you want to know is what the law says on the subject: Has this come up before? Are there prior cases on point? What have the courts had to say? Those are the first-order questions — always.
Here's the relevant transcript:
SEN. GRAHAM: Yeah, nor do I. But here's my concern. Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?
ATTY GEN. HOLDER: [ACM: LONG PAUSE] 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.
How could Holder possibly not know the answer to this fundamental question — how could he, in fact, be stumped by it. If he studied and agonized over this decision as he says he did, this would have been the first issue he'd have considered: the fact that there was no legal precedent for what he wanted to do. Or, put another way, if there was a single case that supported Holder's decision, it would have been the only case we'd have been hearing about — from DOJ, the academy, and the media — for the last ten months.
Of course, if, as I've suggested, this is a political decision rather than a legal one, it would make perfect sense that the Attorney General wasn't up to speed on legal precedent. The law isn't what's driving this train.