Sen. Graham on Holder's Sept. 11 Trial Decision: 'We're Rewarding Someone for Killing Civilians'

This is a rush transcript from "On the Record," November 18, 2009. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: How much? $849 billion, with a B -- $849 billion. The Congressional Budget Office estimates Senator Majority Leader Harry Reid's health care bill will cost $849 billion over the next 10 years. Now, according to the CBO, the bill would reduce the deficit by $127 billion the next decade.

Republican Senator Lindsey Graham joins us live. And Senator Graham, before we even get to this health care, I want to talk about Attorney General Eric Holder. You roughed him up a little bit today.

SEN. LINDSEY GRAHAM, R - S.C.: Well, he's a good man. I just think he made a bad decision. We're at war. There's a difference between fighting wars and fighting crime. Never in the history of this country have we ever taken a non-citizen enemy combatant captured on a battlefield and put him in federal court. No time in World War II did we allow anybody access to our federal courts, the Germans and the Japanese.

Al Qaeda is every bit as dangerous as the Nazis, and we're giving him the same constitutional rights as an American citizen. And the theory is because they killed 3,000 civilians, we're going to put them in civilian court, and the guy that bombed the Cole naval ship is going to go into military court. So you're giving a reward, basically, to someone for killing civilians. It makes no sense.

VAN SUSTEREN: You know, even -- even -- and another aspect to it, the sort of the practical -- if I were the criminal defense attorney, the first thing I'd do is file for a motion for change of venue because everybody's got a relative who died in the building. So now all the money spent, like, transporting them and building this facility or something -- it's not like (INAUDIBLE) popped out (ph) of New York to -- I mean, you know, it's, like...

GRAHAM: Absolutely. And in fact...

VAN SUSTEREN: Have anyone thought that one through?

GRAHAM: Tell you what it really does for the future of this country. If we capture an al Qaeda member in Pakistan or Afghanistan tomorrow, what is the military to do? Because under domestic criminal law, your lawyer...

VAN SUSTEREN: You got to Mirandize them!

GRAHAM: The moment you're in the custody of the government and you begin to be questioned, you have a right to a lawyer and to remain silent. Under military law, we can talk to you all day long to find out what you know about the enemy that we're fighting so we can get good intelligence. So now the military is going to give up intelligence-gathering because we've criminalize the war.

VAN SUSTEREN: Well, even worse is everything that he said on the battlefield without the Miranda warnings, when you get to the civil court, should get bounced out for being a violation of Miranda warnings.

GRAHAM: Exactly because once you have somebody in your custody under civilian law, they're entitled to a lawyer and to remain silent. Under military law, we want to question you about what the enemy is up to so we can protect our troops. This is a major league mistake. And I think it's offensive to the victims of 9/11 that this man would be given the same constitutional rights as an American citizen.

VAN SUSTEREN: All right, health care.


VAN SUSTEREN: It's $849 billion, your colleague across the aisle, Senator Reid -- that's his bill. One quick question. There's the so- called "doctor fix," $200 billion...


VAN SUSTEREN: ... or $250 billion. I didn't see that in this so far. So it seems like that one sort of got carved out. We're going to get that bill later? It's not part of health care?

GRAHAM: This bill has so many gimmicks, it would make the Enron people embarrassed if they wrote it. Remember Enron accounting?


GRAHAM: This is -- this is unbelievable. They say they're going to cut Medicare by $400 billion to offset the $849 billion. We can't get the will to reduce Medicare spending by $10 billion. We got 24 votes when we tried to reduce it by $33 billion. So the $400 billion cuts of Medicare is never going to happen, and it's not fair to seniors for them to happen. We're going to raise Medicare taxes. And Medicare is $36 trillion underfunded. We're not going to put a penny of it into saving Medicare. We're going to pay for the uninsured.

At the end of the day, this raises taxes. It cuts Medicare. And it will never be paid for. It's going to increase the deficit.

VAN SUSTEREN: You know, the CBO that sort of has given him this number...


VAN SUSTEREN: I went through a list quickly. We didn't -- we haven't had this this long. And there's, for instance, one thing. It's called the National Demonstration Projects on Culture Change and Use of Information Technology in Nursing Homes. That's section 6114. Now, how in the world does the CBO figure of the cost of that one? That's the most ridiculous thing! The National Demonstration Projects?

GRAHAM: Here's what we're going to do. One, you can't price all this, but eventually, if the government takes over more health care, we're going to start rationing care. And this mammogram bill (SIC) is a real concern. The public options in this bill will eventually destroy private health care.

So what I believe we've done today -- one, this was done in the dark of night. No Republican has seen the bill. This is what candidate Obama said in November 2007, We're going to have a big table and everybody's going to be invited -- labor, employers, doctors, nurses, hospital administrators, patient advocates, the drug and insurance companies. They'll get a seat at the table, and we're going to work on this process publicly. It will be on C-Span.

VAN SUSTEREN: OK, well, that -- none of that happened!

GRAHAM: Well, I haven't watched C-Span lately, but these negotiations were done by Democrats, among Democrats without any Republican input. The ink on the bill is not dry yet, and we're going to vote on this thing Friday. Now, this is what's wrong with the government.

VAN SUSTEREN: Yes, but...

GRAHAM: One sixth of the economy is going to be changed...

VAN SUSTEREN: But -- but -- but...

GRAHAM: ... without any input from the minority party.

VAN SUSTEREN: But people are going to vote on it because they think it's under the $900 billion, not taking into account the fact they've carved out $200 billion they're not even considering it's part of the health care, which brings it well over that.

GRAHAM: Right.

VAN SUSTEREN: But -- but the thing is, it's absurd to think that the CBO can give you a number on this!

GRAHAM: They can't give you...

VAN SUSTEREN: It's the most ridiculous thing!

GRAHAM: ... a number...

VAN SUSTEREN: And it's -- so it's all...


GRAHAM: ... absurd, too, Greta? We're not going to cut Medicare by $400 billion to pay for this bill. So that $400 billion will never be realized. That is a joke. We will never do that. So the cost of this bill is going to be a lot higher than they're saying. And if we do cut Medicare by $400 billion, every senior should be upset that their benefits are going to be reduced to pay for the uninsured. We can pay for the uninsured without putting seniors at risk.

VAN SUSTEREN: Senator, thank you, as always.

GRAHAM: Thank you.

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