In newest column, Wash. Post's Thiessen defends witch hunt against DOJ lawyers

››› ››› ADAM SHAH

Washington Post columnist Marc Thiessen defended the witch hunt against Justice Department attorneys who previously represented terror suspects and other detainees, falsely suggesting that criticism of the witch hunt has come only from progressives, when, in fact, conservatives have also condemned the attacks.

Thiessen brings "shameful" attacks on DOJ lawyers to Post pages

In column, Thiessen defended attacks on DOJ lawyers, singled out Clinton-era official Walter Dellinger for criticism. From Thiessen's March 8 column:

Finally, two weeks ago, he [Attorney General Eric Holder] admitted that nine political appointees in the Justice Department had represented or advocated for terrorist detainees, but he failed to identify seven whose names were not publicly known or to directly answer other questions the senators posed. So Keep America Safe, a group headed by Liz Cheney, posted a Web ad demanding that Holder identify the "al-Qaeda seven," and a subsequent Fox News investigation unearthed the names. Only under this public pressure did the Justice Department confirm their identities -- but Holder still refuses to disclose their roles in detention policy.


Yet for raising questions, Cheney and the Republican senators have been vilified. Former Clinton Justice Department official Walter Dellinger decried the "shameful" personal attacks on "these fine lawyers," while numerous commentators leveled charges of "McCarthyism."

Numerous conservatives have joined Dellinger in condemning attacks on DOJ lawyers. According to Politico's Ben Smith, numerous conservatives signed a letter agreeing with Dellinger that the attacks on the Justice Department lawyers are "shameful." They also said the attacks "undermine the Justice system." Smith reported that the signers include:

[F]ormer Deputy Attorney General Larry Thompson, John Ashcroft's No. 2, and Peter Keisler, who served as acting attorney general during President Bush's second term. They also include several lawyers who dealt directly with detainee policy: Matthew Waxman and Charles "Cully" Stimson, who each served as deputy assistant secretary of defense for detainee affairs; Daniel Dell'Orto, who was acting general counsel for the Department of Defense; and Bradford Berenson, a prominent Washington lawyer who worked on the issues as an associate White House counsel during President Bush's first term.

Conservatives noted that DOJ lawyers acted in the tradition of John Adams. From the statement signed by Bush administration lawyers:

The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantanamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.

The American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department's strengths. The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.

Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

Wash. Post itself has criticized the attacks on DOJ lawyers. From the Post's March 5 editorial:

It is important to remember that no less an authority than the Supreme Court ruled that those held at the U.S. Naval Base at Guantanamo Bay, Cuba, must be allowed to challenge their detentions in a U.S. court. It is exceedingly difficult to exercise that right meaningfully without the help of a lawyer. It is also worth remembering that the Bush administration wanted to try some Guantanamo detainees in military commissions -- a forum in which a defendant is guaranteed legal representation. Even so, it took courage for attorneys to stand up in the midst of understandable societal rage to protect the rights of those accused of terrorism. Advocates knew that ignorance and fear would too often cloud reason. They knew that this hysteria made their work on these cases all the more important. The video from Keep America Safe proves they were right.

Thiessen misrepresents DOJ lawyers' arguments on Guantánamo detainees

Thiessen suggested DOJ's Daskal was more concerned for detainees' rights than American lives. From Thiessen's column (ellipses in the original):

One lawyer in the National Security Division of Holder's Justice Department, Jennifer Daskal, has written that any terrorist not charged with a crime "should be released from Guantanamo's system of indefinite detention" even though "at least some of these men may ... join the battlefield to fight U.S. soldiers and our allies another day." Should a lawyer who advocates setting terrorists free, knowing they may go on to kill Americans, have any role in setting U.S. detention policy? My hunch is that most Americans would say no.

In fact, Daskal argued that holding detainees indefinitely without charge is "a greater threat to the United States." From Daskal's Human Rights Watch report, "How to Close Guantanamo":

An insurgency like al Qaeda is not static, but fluid and dynamic. If the particular detainees in Guantanamo are kept out of circulation, others can -- and will -- fight in their place. The supply outstrips demand. The high-profile detentions of a few dozen potentially dangerous men in Guantanamo do little to make the United States safer. To the contrary, it delegitimizes U.S. moral authority, helps to fuel the "recuperative power" of the enemy, and undercuts critical efforts to win hearts and minds.

The United States should do everything it can to mitigate the risks posed by the release of these men. It should press their home countries to lawfully monitor returned detainees' activities and to charge and detain anyone who commits a criminal act. But some countries are unable or unwilling to take on that role. Nearly 100 of the remaining Guantanamo detainees are Yemeni. It is unlikely that the United States will ever be adequately satisfied that Yemen is taking sufficient steps to monitor and respond to acts of terrorism within its borders. Does that mean that these Yemenis should be locked up without charge -- possibly until the ends of their lives -- based on an assessment that they might pose a future risk? No. They should be released. Doing so will require an assumption of risk. It will require the United States to accept that at least some of these men may cross the border and join the battlefield to fight U.S. soldiers and our allies another day.

General Barry McCaffrey, former U.S. drug czar, following an academic mission to Guantanamo Bay, advised the Pentagon: World opinion is so united against the detention facility that "there is now no possible political support for Guantanamo going forward." It "may be cheaper and cleaner to kill them in combat then sit on them the next 15 years."

General McCaffrey makes a point. Those detained at Guantanamo present a greater threat to the United States than they would if they returned to the battlefield, where -- under the laws of war -- they can be shot and killed on sight.

Supreme Court found that Bush admin violated detainee rights in cases at issue

Thiessen claimed DOJ lawyers were "using federal courts as a tool to undermine our military." Thiessen also wrote in his column: "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."

Supreme Court repeatedly found that Bush administration was violating detainee's rights. According to a blog post cited by Thiessen, two of the Justice Department attorneys at issue represented "six Bosnian-Algerian detainees held at Guantanamo Bay," including Lakhdar Boumediene. In Boumediene v. Bush, the Supreme Court found that the Bush administration had violated Guantánamo detainees' constitutional right to present habeas corpus petitions to civilian courts. In addition, the blog post noted that another of the DOJ lawyers was Neal Katyal, who represented Salim Hamdan in the Supreme Court case of Hamdan v. Rumsfeld. In that case, the Supreme Court found that the Bush administration had violated the Geneva Conventions in its handling of detainees.

Thiessen relies on conspiracy theorist Andy McCarthy for attack on DOJ lawyers

Thiessen quoted Andy McCarthy's attack on DOJ lawyers. Thiessen countered the argument that the Justice Department lawyers "are simply following a great American tradition, in which everyone gets a lawyer and their day in court" by quoting National Review Online's Andy McCarthy. Thiessen wrote:

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.

McCarthy has questioned Obama's birth certificate, claimed that Ayers may have written Obama's book. Undermining his credibility as an Obama administration critic, McCarthy demanded a "vault copy" of President Obama's birth certificate in a National Review article, claiming that it is necessary to determine Obama's "honesty." The article contained sub-headlines such as "Who Is This Guy?" and "A Muslim Citizen of Indonesia." McCarthy has also written two blog posts claiming that former Weather Underground member William Ayers may have written Obama's memoir, Dreams from My Father.

In his book, Thiessen took attacks on DOJ lawyers to another level

In his book, Thiessen attacked lawyers who worked at firms that represented detainees. In his book, Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is Inviting the Next Attack, Thiessen not only attacked the Justice Department attorneys who represented terror suspects, but he also attacked "senior partners" at law firms in which other lawyers took on such cases for allowing "work on behalf of America's terrorist enemies" to continue.

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