Thiessen: Everyone else in the world is wrong on John Adams analogy

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Washington Post columnist Marc Thiessen just won't give up on his defense of the witch hunt against DOJ attorneys who represented terror suspects even in the face of overwhelming criticism from conservatives and progressives alike. In his latest piece for The Washington Post, Thiessen lashes out at the critics, writing: "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."

In essence, Thiessen is saying that he is correct, and almost everyone else is wrong, since people from across the political spectrum have agreed that the DOJ attorneys were working in the Adams' tradition.

Here are just a few of the people who, unlike Thiessen, have said that there are similarities between John Adams and the attorneys who represented detainees: former independent counsel Ken Starr; Washington Post columnist Eugene Robinson; Larry Thompson, the former number two official at the Bush Justice Department; Peter Keisler, who served as acting attorney general under President Bush; senior Bush defense department officials Matthew Waxman, Charles "Cully" Stimson, and Daniel Dell'Orto; Bush associate White House counsel Bradley Berenson; former top advisers to Condoleezza Rice Philip Zelikow and John Bellinger III; Slate.com columnist Dahlia Lithwick; Atlanta Journal-Constitution columnist Jay Bookman; Col. Morris Davis, former chief prosecutor for the military commissions; Orrin Kerr, who served as special counsel to Sen. John Cornyn (R-TX) during the confirmation hearings for Justice Sonia Sotomayor; and Fox News host Bill O'Reilly. Former Bush administration Attorney General Michael Mukasey has also criticized the attack. Previously, Bush administration Solicitor General Ted Olson also defended lawyers who represented detainees from attacks.

Looking at the substance of Thiessen's attempt to differentiate Adams from the DOJ lawyers under attack, it's no wonder that so many people disagree with Thiessen. Thiessen's first argument appears to be that Adams was merely acting as a loyal British subject, defending his "fellow countrymen." Thiessen writes:

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 then appears to abandon the argument that Adams was acting in the British tradition, claiming rather that Adams was acting according to the "American tradition later enshrined in the Sixth Amendment":

Second, the British soldiers were accused of a crime. The constitution was not yet in place, but as I pointed out in my column this week, former federal prosecutor Andy McCarthy explains that the great American tradition later enshrined in 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 the government has brought into the civilian criminal justice system and lodged charges against."

Hmm. So, Adams was actually acting according to a "great American tradition" that wouldn't be enshrined until Congress passed the Bill of Rights two decades later.

One more inconvenient fact for Thiessen: The trial of the Boston Massacre took place in the Massachusetts Superior Court of Judicature, the forerunner to the Massachusetts Supreme Judicial Court, a Massachusetts state court. The U.S. Supreme Court did apply the Sixth Amendment to criminal trials in state courts until 1932, when it held in Powell v. Alabama that the right to counsel applied to the states in capital cases. Furthermore, the Supreme Court did not extend the right to counsel to state courts in all felony cases until the landmark Gideon v. Wainwright decision in 1963, nearly 200 years after the Boston Massacre trial in which Adams participated.

Thiessen then goes on to reiterate his attacks against the DOJ attorneys:

In the 234 years since Adams and his compatriots fought for our independence, the United States has held millions of enemy combatants -- and not one had ever filed a successful habeas corpus petition until the habeas campaign on behalf of Guantanamo detainees began.

[...]

The habeas lawyers are not doing what John Adams did -- representing accused criminals already in the judicial system. Rather, they have reached outside the judicial system and dragged the terrorists in.

Importantly, Gideon -- a habeas corpus case -- explicitly overruled a prior Supreme Court case, Betts v. Brady, which held that, absent a capital trial or other extraordinary circumstances, states did not have to provide counsel to defendants. Gideon actually filed the habeas corpus petition himself, but once the Supreme Court accepted the case, numerous lawyers filed briefs supporting his case. One could say: "In the [187] years since Adams and his compatriots fought for our independence, [the states tried countless American citizens] -- and not one had ever filed a successful habeas corpus petition [fully extending the Sixth Amendment to the states] until the habeas campaign on behalf of [Gideon] began."

So, by Thiessen's logic, we should be excoriating the Gideon attorneys. Behold the Gideon 32:

Abe Fortas, by appointment of the Court, argued the cause for petitioner. With him on the brief were Abe Krash and Ralph Temple.

[...]

J. Lee Rankin, by special leave of Court, argued the cause for the American Civil Liberties Union et al., as amici curiae, urging reversal. With him on the brief were Norman Dorsen, John Dwight Evans, Jr., Melvin L. Wulf, Richard J. Medalie, Howard W. Dixon and Richard Yale Feder.

[...]

A brief for the state governments of twenty-two States and Commonwealths, as amici curiae, urging reversal, was filed by Edward J. McCormack, Jr., Attorney General of Massachusetts, Walter F. Mondale, Attorney General of Minnesota, Duke W. Dunbar, Attorney General of Colorado, Albert L. Coles, Attorney General of Connecticut, Eugene Cook, Attorney General of Georgia, Shiro Kashiwa, Attorney General of Hawaii, Frank Benson, Attorney General of Idaho, William G. Clark, Attorney General of Illinois, Evan L. Hultman, Attorney General of Iowa, John B. Breckinridge, Attorney General of Kentucky, Frank E. Hancock, Attorney General of Maine, Frank J. Kelley, Attorney General of Michigan, Thomas F. Eagleton, Attorney General of Missouri, Charles E. Springer, Attorney General of Nevada, Mark McElroy, Attorney General of Ohio, Leslie R. Burgum, Attorney General of North Dakota, Robert Y. Thornton, Attorney General of Oregon, J. Joseph Nugent, Attorney General of Rhode Island, A. C. Miller, Attorney General of South Dakota, John J. O'Connell, Attorney General of Washington, C. Donald Robertson, Attorney General of West Virginia, and George N. Hayes, Attorney General of Alaska.

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Marc Thiessen
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