Graham v Holder 384 U.S. 436 (1966)

Today I had a unique experience: I actually heard from a lawyer who is less knowledgeable and skilled—less lawyerly— than I.

This is remarkable (indeed, I am even now remarking on it) because I graduated third to last in my class of 145 after being kept back a semester. The school team mascot (which I think was a stalk of Asparagus named Ebrit), got a better grade on its final in Police Procedural class than I did.

So where, in all of this great land, did I actually find a lawyer who knew less about law than yours truly? I heard him on the radio. His name is Eric Holder, and he is your Attorney General, yes, your very own, Mr. & Mrs. America.

Most of my readers have probably never had the dubious pleasure of being in Law School, but you may have seen the movie or television show a few years back called THE PAPER CHASE, where the crusty old professor Kingsfield announces “You come in here with a skull full of mush and you leave thinking like a lawyer.” One of the ways crusty old professors ladle out the mush from the skulls of students, and train them to think like lawyers, is by means of hypotheticals. Of course, we have no time to say the whole word “hypothetical” in Law School so we call them “hypos” a word similar to what you call a needle that pierces your flesh.

The classrooms (at least in my Alma Mater at William and Mary’s Marshall-Wythe School of Law) are large semicircular lecture halls shaped something like a gladiatorial arena cut in half. To cut the students in half, the crusty old professors will call upon a student at random. The student must stand. A dread silence fills the arena. The “hypo” is uttered, and the student must, on his feet, analyze the facts, apply the law, and support his conclusion with any case law he can recall without looking at his notes. To fail at answering a hypo is to fail before the eyes of your fellow students, who will one day be your colleagues.

Nothing is worse than standing before the eyes of all and having nothing to say to the hypo. Nothing is better than lounging in your seat, not called on, and knowing the answer, and the case law, and having the argument to support either position ready on your lips. Ah! The Germans have a word for that: schadenfreude. Pleasure at another man’s distress.

Well, on the radio today, I suffered a ‘Nam style foxhole-flashback to my law student days, and felt once more that sickly-sweet yet fiendish pleasure of schadenfreude when I heard another student of the law being grilled. And toasted. And deep fat fried. And turned over on the griddle to sizzle on the other side.

But it was not law school. It was a senate hearing. Mr. Holder the Attorney General was being cross-examined by Senator Graham of the Judiciary Committee, who posed a simple question.

The hypo was this: “If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?”

The answer is so simple that even a 1L could get it (Of course, we have no time to say the whole phrase “first-year law student” in Law School, so we call them "1L").

The person in custody is entitled to a Miranda Warning at the moment of custody. Custody is defined as the moment when the party either is or feels he is not free to leave, because he is being detained by an officer of the law acting under the color of legal authority. The defendant must be informed of his Miranda Rights before any questioning, and must be reminded of them periodically, otherwise his testimony (including any evidence springing from his testimony) cannot be admitted as evidence in court.

Got it? The question is “When do Miranda Rights attach?” The answer is: “At the moment of custody.”

Holder flubbed the question. His answer was, “Again I’m not — that all depends. I mean, the notion that we –“

Wrong. Even the Asparagus Mascot of the William and Mary law school could tell you that. (The previous mascot, Pocahontas and/or Tribe Guy, would have been able to tell you that, but she got kicked off our team for being politically incorrect.) Even I, who graduated lower in class ranking than the Asparagus, Pocahontas and Tribe Guy put together, could tell you that.

Mr. Graham again provided the correct answer: “Well, it does not depend. If you’re going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.”

So why could Mr. Holder, the Attorney General — a title that implies he wears a bicorn hat and waves a gold sword, commanding whole legions and battalions of Attorney Majors, Attorney Captains, and Paralegal Paratroopers — why could the Attorney General not answer a question any 1L could have aced?

Mr. Graham also asked, “Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?”

A standard question. Every law professor at some point asks every law student to cite the precedent to support his case.

Mr. Holder’s answer: I don’t know. I’d have to look at that. I think that, you know, the determination I’ve made —

Mr. Graham: “I’ll answer it for you. The answer is no.”

I’d have to look at that? You mean you did not read the textbook, the outline, or the CrimLaw 101 Nutshell book? Don’t have your notes ready, do you? Here I must quote what any prof from my school would have said. These are the words of crusty old Professor Kingsfield from THE PAPER CHASE. “Mister Holder, here is a dime. Take it, call your mother, and tell her there is serious doubt about you ever becoming a lawyer.”

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I should also mention that Senator Graham served in the Judge Advocate General’s office – the JAG corps. GO NAVY!

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See here, friends, I may not be the best lawyer in the world. Indeed, if you have a legal problem, call the Mascot Asparagus named Ebrit instead of me. In terms of a law practice, I am a pretty darned fine science fiction writer.

But even I know the answer to the hypo.

The answer is: Once it is established that enemy soldiers captured on the battlefield have the same rights in Federal Court as civilians accused of a crime, then any soldiers or officers of Al Qaeda or other terrorist organizations brought into custody by servicemen on the battlefield have the right to remain silent, and will not be questioned by the CIA, the FBI or any military intelligence agencies, without their lawyers being present. If they cannot afford an attorney, one will be provided for them from the Public Defender’s office.

In other words, we shall no longer question or interrogate captured soldiers who know the plans of the enemy.