Pelosi Won’t Say Whether Osama Bin Laden Should be Told He Has the Right to Remain Silent and Get a Lawyer

By Christopher Neefus and Karen Schuberg

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Speaker of the House Nancy Pelosi speaks about health care reform at Chinese Hospital in San Francisco on Saturday, Oct. 31, 2009. (AP Photo/Dino Vournas)

( – House Speaker Nancy Pelosi (D.-Calif.) declined to say Thursday whether Osama bin Laden, when captured by the United States, should be told he has the right to remain silent and be given a lawyer. Pelosi indicated that is not a question Americans should worry about now. asked Pelosi at her regular press briefing on Thursday: “When we capture Bin Laden, should he be told he has the right to remain silent and given a lawyer?”

Pelosi responded: “Well, let’s see, how many years has it been? Nine, eight years. Let’s worry about capturing Bin Laden and not worry about your, your question.” 

In the United States, potential criminal defendants need to  be warned of their “Miranda” rights after they have been arrested and before they have been questioned. If the arresting authorities fail to read a suspect his or her Miranda rights statements the suspect subsequently makes will likely not be admissable evidence in a trial. The version of the Miranda warning posted by the American Bar Association reads: “You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning.”


The question of reading Miranda rights to terrorists such as Bin Laden took on particular cogency after Attorney General Eric Holder announced last week that the Obama administration would try 9/11 mastermind Khalid Sheik Mohammed (KSM) in a federal civilian court, rather than in a military commission.  The need to treat captured terrorists as potential defendants in civilian courts could seriously complicate U.S. intelligence gathering on al Qaeda, which in the years after 9/11 has relied heavily on interrogating members of that organization who are captured overseas.

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Attorney General Eric Holder testifies on Capitol Hill in Washington, Wednesday, Nov. 18, 2009, before the Senate Judiciary Committee hearing on Justice Department oversight. (AP photo/Alex Brandon)

In a hearing in the Senate Judiciary Committee on Wednesday, Sen. Lindsay Graham (R-S.C.) asked Holder a series of questions about how Bin Laden’s case would be handled, and warned that he thought the United States was “making history and we’re making bad history” by trying KSM in a civilian court.When Graham asked whether the U.S. would try Bin Laden in a civilian court or military commission, 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.“If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?” Graham asked Holder. Holder’s response was “that all depends,” and Graham warned that the Obama administration’s new legal policy would confuse the military and the justice system.“Well, it does not ‘depend,’” the senator said. “The big problem I have is that you’re criminalizing the war, that if we caught bin Laden tomorrow, we’d have mixed theories and we couldn’t turn him over—to the CIA, the FBI or military intelligence—for an interrogation on the battlefield, because now we’re saying that he is the subject to criminal court in the United States.

“And you’re confusing the people fighting this war,” Graham charged. Later, the senator added, “The only point I’m making (is) that if we’re going to use federal court as a disposition for terrorists, you take everything that comes with being in federal court.”

Holder announced last Friday that he had chosen to try Mohammed in federal court in the Southern District of New York, which includes Manhattan, where the attacks on the World Trade Center occurred in 2001.

“After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice,” Holder said in his prepared announcement. “They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.”

That new legal policy is a departure not only from the Bush Administration’s philosophy in the war on terror, but also from America’s history of trying unlawful enemy combatants in military commissions.

Graham asked Holder at the hearing whether he could think of any time in American history when an “enemy combatant caught on a battlefield” was tried in a civilian court.

The top law enforcement official in the country responded that he did not know of such a precedent and would “have to look at that,” to which Graham said, “We’re making history here, Mr. Attorney General. I’ll answer it for you. The answer is no.” 

In Holder’s prepared speech last Friday, he told reporters, “I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures.”

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