Marc Thiessen and Andrew McCarthy Think America Should be More Like Nazi Germany or Communist China
Consider McCarthy’s basic argument that lawyers who represented detainees “aided the enemy in wartime,” and should normally be guilty of treason. If that’s true, isn’t the federal judiciary, and aren’t the Justices of the Supreme Court, also guilty of treason? In fact, aren’t the judges the kingpins of this treasonous plot to “hurt the war effort”? After all, lawyers only make arguments to judges. It doesn’t actually help detainees to make argument courts reject. It’s up to the judges to rule one way or the other. If the lawyers are aiding the enemy, they’re only minor players: It’s the judges, and especially the Justices, who are the real guilty parties, as they’re the ones that actually help the detainees by ruling in their favor. Does McCarthy think the Justices of the Supreme Court are guilty of aiding the enemy, and that (if we treat them like everybody else) they should be “indicted for coming to the enemy’s aid during wartime”?A False Analogy: Detainee Lawyers and Torture Lawyers
Second, McCarthy’s claims about the right to counsel strike me as just wrong. The Bush Administration had initially taken the view that Yaser Hamdi, detained as an enemy combatant, did not have a right to counsel. The Administration caved when the case got to the Supreme Court, though, and the Supreme Court had this to say about Hamdi’s right to counsel:
Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (emphasis added). Hamdi was a U.S. citizen, but lower courts have concluded that Gitmo detainees who are citizens of other countries also have the right to counsel. See, e.g., Al-Joudi v. Bush, 406 F.Supp.2d 13 (D.D.C. 2005) (ordering the government to inform detainee counsel about information relating to Guantanamo detainees in light of the detainees “right to counsel, which requires that counsel be able to communicate with them”).
One op-ed, by former Attorney General Michael Mukasey, supports both sets of lawyers, and denounces the Liz Cheney "Keep America Safe" conspiracy theories about them. The other, by Washington Post columnist and torture cheerleader Marc Thiessen, enthusiastically backs Cheney's character assassinations. For Mukasey, criticizing either set of lawyers "is all of a piece, and what it is a piece of is something both shoddy and dangerous" -- criticizing lawyers for the arguments they make on behalf of clients. Thiessen, rejecting the charge that Cheney's group are McCarthyites, asks "Where was the moral outrage when fine lawyers like John Yoo, Jay Bybee, David Addington, Jim Haynes, Steve Bradbury, and others came under vicious personal attack?" Thiessen has no use for moral equivalence: for him, torture lawyers are good and detainee lawyers are the equivalent of mob lawyers. But, like Mukasey, he sees a parallel between the two sets of criticisms, and agrees that those who criticize the torture lawyers but not the detainee lawyers are using a double standard, probably for illicit political reasons.Thiessen’s Inconsistency Undermines Claim That Detainee Lawyers Can’t Be Compared To John Adams
That would include me, since I called the Cheney attacks McCarthyism and have criticized the torture lawyers for years.
But in fact, the parallel is completely bogus. What makes the Cheney attacks McCarthyism is guilt by association, wrapped in innuendo, and cynically appealing to paranoia: Because you represented a detainee, you very likely sympathize with Al Qaeda, and we need to smoke you out.
Despite the backlash from prominent conservative lawyers against Liz Cheney and Keep America Safe’s “al Qaeda 7? ad that questions the loyalty of Justice Department lawyers who worked on behalf of detainees, some on the right have risen to Cheney’s defense. On Monday, torture advocate Marc Thiessen dedicated his new Washington Post column to defending the ad, saying that Cheney asked “legitimate questions about Obama administration lawyers who defended America’s terrorist enemies.” Keep America Safe subsequently referred reporters to Thiessen’s column when asked to comment on the conservative criticism.The Thiessen/Cheney/McCarthy argument in a nutshell: If you're accused of something you're guilty, let the hangings began upon arrest. There is nothing American about their point of view. Perhaps they would be happier living in Iran, China or sent back in time to fight on the side of the Third Reich - all of these regimes believed the same thing about justice as the right-wing conservatives behind "Keep America Safe".
Today, Thiessen is up with another defense of the Cheney-led attacks, writing on the Washington Post’s PostPartisan blog that defenders of the Justice Department lawyers are wrong to invoke John Adams’ defense of British soldiers after the Boston massacre:
Defenders of the habeas lawyers representing al-Qaeda terrorists have invoked the iconic name of John Adams to justify their actions, claiming these lawyers are only doing the same thing Adams did when he defended British soldiers accused in the Boston Massacre. The analogy is clever, but wholly inaccurate.
For starters, Adams was a British subject at the time he took up their representation. The Declaration of Independence had not yet been signed, and there was no United States of America. The British soldiers were Adams’ fellow countrymen — not foreign enemies of the state at war with his country.
Thiessen’s argument that Adams was defending “fellow countrymen” and “not foreign enemies” is clever, but it’s undermined by the fact that some of the lawyers Thiessen and the ad impugn did work on behalf of American citizens. In a National Review blog post promoting his PostPartisan column, Thiessen directly attacks a lawyer who advocated on behalf of a detained American citizen:
Eric Holder vs. John Adams [Marc Thiessen]
I have a piece up for the Washington Post explaining why the al-Qaeda lawyers are wrong to wrap themselves in the mantle of John Adams. Thanks to the spade work of Bill Burck and Dana Perino, we now know why Holder was stonewalling on the identities of the “Al Qaeda 7” — he was one of them! If Holder and co. are simply carrying on the traditions of John Adams, why were they hiding their roles in seeking the release of enemy combatants? If they are proud of their work, why don’t they stand up and say so?
Yesterday, Perino and Burck published an article on National Review Online detailing how Holder contributed to, but neglected to tell the Senate about, an amicus brief to the Supreme Court supporting Jose Padilla, an American citizen who was held as an enemy combatant. Another one of the lawyers smeared by the ad, Joseph Guerra, now Principal Deputy Associate Attorney General, worked on a brief urging that the Supreme Court hear Padilla’s case. Another DoJ lawyer, Assistant Attorney General Tony West, worked on the case of “American Taliban” Johh Walker Lindh, an American citizen.
The discrepancy between Thiessen’s Post Partisan argument and the facts is indicative of his arguments in general. In discussing another one of Thiessen’s inconsistent arguments, Time’s Michael Scherer — who considers Thiessen’s vocal crusade to defend the Bush administration’s torture policies “a good thing” — remarked that he was “disappointed with the quality of Thiessen’s arguments, which seem to be designed more for cable news soundbites than for serious discussion.”
