In purporting to refute Sen. Lindsey Graham’s contention that the Obama administration has turned the war into a legal issue, Senate Judiciary Committee chairman Patrick Leahy proved Graham’s point. The Hill reports:

“The red herring that my friend [Sen.] Lindsey Graham [R-S.C.] was covering is not realistic,” Leahy said during an appearance on “Washington Journal” on C-SPAN. “For one thing, capturing Osama bin Laden — we’ve had enough on him, we don’t need to interrogate him,” Leahy added.

That’s September 10th counterterrorism for you. Who cares what intelligence the head of al-Qaeda might be able to give us about ongoing mass-murder plots? Who cares that by interrogating bin Laden at great length we might be able to save lots of lives? The only thing that matters is whether we have sufficient evidence to convict him at a trial beyond a reasonable doubt. Since, by Leahy and Holder’s lights, we already have an overwhelming legal case against him, so we don’t need to worry about the fact that Miranda means we can’t interview him. The litigation will be successful, so therefore it’s somehow a national security success, too.

This is exactly the problem Graham homed in on when he told the attorney general:

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 subject to criminal court in the United States. And you’re confusing the people fighting this war.

By the way, the situation is actually even worse than Sen. Graham suggested. It’s not just that bin Laden, if captured, would be entitled to Miranda warnings because he’d then be in custody (Miranda is required for all custodial interrogation in the U.S.). As Attorney General Holder noted, bin Laden has already been indicted (in 1998). Under American law, that means he is already an “accused” — the formal legal case against him has begun. If we are going to treat him like a civilian defendant with Fifth and Sixth Amendment rights, he has a right to counsel now — before we ever capture him.

Of course, KSM was also under indictment (since around 1996) when we captured him. But the Bush administration regarded that as irrelevant because KSM was an enemy combatant in wartime.

If, as Holder and Obama insist, we must adhere to the “rule of law” (a phrase they construe as “the rules and procedures of the civilian justice system”), we have to adhere to all of the “rule of law.” If they are going to pick and choose which rules they’re going to follow, how are they different from what they have spent years condemning?