Marc Thiessen's latest defamatory shot at American legal traditions begins with something of a thought exercise -- which I imagine is intended to not be read as the disingenuous piffle that it is:
Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would -- and rightly so.
Well, it seems to me that if you wanted the Justice Department to bring down the mob or a drug cartel, the insight of a lawyer familiar with such networks would be rather invaluable. And, sure, I suppose I would take a dim view of any lawyer who financially benefits from working within a criminal syndicate. But surely no one is making the stupid argument that al Qaeda has lawyers on retainer, right?
Yet Attorney General Eric Holder hired former al-Qaeda lawyers to serve in the Justice Department and resisted providing Congress this basic information.
But are they "al-Qaeda lawyers?" As luck would have it, I know an attorney who has represented detainees: Brent Mickum, of Hollingsworth LLP. So I asked him directly. His reponse: "That's ridiculous. First and foremost, I am an American. I am a member of two state bars in good standing. I have never had a bar grievance filed against me or been the subject of disciplinary action. I have been a criminal defense attorney and have served as a DoJ prosecutor."
And Mickum has secured the release of three individuals from Gitmo: Martin Mubanga, Bisher al Rawi and Jamil el-Banna. None of them had anything whatsoever to do with al-Qaeda, it's really impossible to call him an "al-Qaeda lawyer." Bisher al Rawi, in fact, was an MI-5 informant, operating against al Qaeda. Mickum is currently one of the defense attorneys working on behalf of Abu Zubaydah. The centerpiece of Zubaydah's defense is that he, too, had nothing to do with al Qaeda, and in fact refused to work with al Qaeda. And in the current government filing in Zubaydah's case, no one is contending otherwise.
"I would turn the question back on Thiessen," Mickum says. "What do you say to the attorneys whose clients were found innocent? Are they still al-Qaeda lawyers? For every KSM, there are scores of other prisoners against whom there is no evidence of terrorism. If there is no evidence against them, why should we be maligned for trying to vindicate these people and return them to their families."
Mickum adds: "Let me give you a very recent example: Recently Pakistan announced it had captured American citizen Adam Gadahn of Riverside, an alleged spokesman and top propagandist for the Al Qaeda terrorist network. Yesterday, Pakistani intelligence officials announced they had the wrong man. Under the Bush Administration, had this suspect been in American custody, he would have been whisked away to a Black Site, tortured, determined to be the wrong person, and then transferred to GITMO to languish indefinitely. And if I took up his defense, arguing mistaken identity, I would, according to Thiessen, be deemed an al Qaeda supporter. I would also point out that if Thiessen and Liz Cheney had their way, as an al Qaida supporter, I would be a candidate for arrest and indefinite detention without charge. That may be Thiessen's and Cheney's view of the justice system in the US, but it's not mine."
But it's an easy thing to point out that the zealous defense of innocent parties is laudable. What about those mob lawyers? What about the attorneys who will make up Khalid Sheikh Mohammed's defense team? What value does our nation derive from the defense of the disreputable? As it turns out, we get plenty of value. Let me pass the mic to Julian Sanchez:
Charles Katz really was involved in illegal gambling, but it's his case that established a Fourth Amendment right to be free from warrantless wiretaps. Klansman Clarence Brandenburg really was advocating "revengeance" against Jews and African Americans (though in the latter case I'm paraphrasing)--but I owe him my right to express radical political views as long as I'm not directly inciting violence. Crucial Fourth Amendment cases protecting the sanctity of the home involved cocaine smuggling rings, marijuana growers, and thieves.
Many of them were, to put it mildly, unsympathetic characters whose "values" I would not want to be "shared" by high-ranking attorneys in the Justice Department. Fortunately, competent attorneys argued both sides of those cases, not because of their personal feelings about the defendants, but because the legal questions at the hearts of those cases had larger implications for the kind of country we're going to live in. And our constitutional order works, when it does, because the Court is directed to the full range of core issues involved by thoughtful advocates who present them forcefully and clearly.
The elegant way our criminal justice system runs as a self-sustaining engine of our larger societal values is apparently lost on Thiessen, who presents an argument so shockingly anti-American that I had to read it several times in order to believe that someone published it:
Some defenders say al-Qaeda lawyers are simply following a great American tradition, in which everyone gets a lawyer and their day in court. Not so, says Andy McCarthy, the former assistant U.S. attorney who put Omar Abdel Rahman, the "blind sheik," behind bars for the 1993 World Trade Center bombing. "We need to be clear about what the American tradition is," McCarthy told me. "The Sixth Amendment guarantees the accused -- that means somebody who has been indicted or otherwise charged with a crime -- a right to counsel. But that right only exists if you are accused, which means you are someone who the government has brought into the civilian criminal justice system." The habeas lawyers were not doing their constitutional duty to defend unpopular criminal defendants. They were using the federal courts as a tool to undermine our military's ability to keep dangerous enemy combatants off the battlefield in a time of war.
This is just the semantic version of reductio ad absurdum. Clearly, if you find yourself detained at Gitmo, you've been accused of something! And the distinction between the "civilian criminal justice system" and the alternative -- military tribunals -- is irrelevant because defendants in military tribunals are also entitled to a vigorous defense. But the habeas lawyers were doing their Constitutional duty. That's why they are called "HABEAS LAWYERS." In standing up for the rights of habeas corpus, they are acting on my behalf -- indeed, on behalf of all Americans. They are using the federal courts as a tool to undermine the idea that I can be picked up off the street, declared an enemy combatant and thrown in a hole in perpetuity.
There's also the thorny and inconvenient fact that many detainees, such as the aforementioned Martin Mubanga, Bisher al Rawi and Jamil el-Banna were not "dangerous enemy combatants" and did not return to a "battlefield" but rather, returned to their lives and families. All because they received vigorous defense. Is there any discernible benefit to national security at keeping such individuals locked up? The Supreme Court would likely take a dim view of that premise, seeing as how they ruled in Boumediene v. Bush that detainees have the right to be defended, by lawyers.
Of course, the logical basis for the case I'm making here is so unassailable that Liz Cheney plumb forgot that she's supposed to disagree with it! Instead, we get this remarkable bit of Newspeak:
AMY HOLMES: Liz, good morning. So you released a fairly provocative ad, I have to say. And you ask the question "whose values" [does] Eric Holder share? In your view, whose values does he share?
CHENEY: Well, what the ad does -- and actually it doesn't question anybody's loyalty. What the ad does is it says that there are nine lawyers in the Justice Department who used to represent al Qaeda terrorists and the Attorney General will only tell us who two of them are and we want the American people to have the right to know who the others are.
In other words, just because Keep America Safe is suggesting that the character of these lawyers could be impugned doesn't mean they are actually doing any impugning. I guess the ad they paid for is actually a fantastic simulation of the way someone could impugn their character.
It doesn't seem logical -- at least as long as you are wondering how on earth they think they can succeed at undoing a Supreme Court case or preventing these detainees from receiving a vigorous defense in accordance with American legal traditions. One is forced to consider what people like Thiessen and Cheney are up to.
First, remove the focus from the attorneys and put it on the defendants themselves. It seems to me that what Thiessen is attempting to do here is to enforce the notion that these Gitmo detainees are part of an "untouchable" class of defendants, that to insist that they receive a defense at all is in itself treasonous.
Of course, when these detainees actually start getting defended, you start to learn that there are Martin Mubangas and Bisher al Rawis in their ranks, and you start to wonder how it came to pass that such people ended up there in the first place. As Thiessen's primary role as an op-ed contributor for the Washington Post is to mount a P.R. campaign for the Bush administration, it's the sort of contention you can expect him to make, time and again. (You'll note that what Thiessen's piece is really all about is an elaborate defense of Bush's house torturers.)
Beyond that, it's important to remember that the motivations behind smearing these Justice Department lawyers are nothing but political. Eugene Robinson very ably points this out in a competing op-ed in the Post, today:
But maligning is apparently the whole point of the exercise. The smear campaign by Cheney, et al., has nothing to do with keeping America safe. It can only be an attempt to inflict political damage on the Obama administration by portraying the Justice Department as somehow "soft" on terrorism. Even by Washington's low standards, this is unbelievably dishonest and dishonorable.
In short, Thiessen and Cheney really do not give a tinned shit about influencing national security policy for the better. Their only concerns are electoral. That their attack on these Department of Justice lawyers is so outlandish is a testament to just how unsalable their ideas really are.
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