Former Bush Administration speechwriter Marc Thiessen used his space at the Washington Post to defend the McCarthyite smear campaign that Liz Cheney and Bill Kristol have launched against a group of Justice Department lawyers who did Guanta'namo-related pro bono work:
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.
These opening lines already reveal Thiessen's ignorance of the American criminal justice system. The criminal defense bar that represents mobsters and drug lords charges top dollar for their work, and the lawyers who handle these cases are very often former prosecutors, well versed in the ins and outs of the criminal justice system. The contrast with the lawyers who handle the defense of the prisoners held at Guanta'namo couldn't be sharper. The first tier are men and women in uniform, members of the Judge Advocate General's corps, who provide defense for anyone called before a military court or commission. The second tier are lawyers from across the country who volunteered to support the JAG lawyers, helping to shore up their resource deficit vis-à-vis the government. These lawyers are attracted by the usual considerations that lead lawyers to perform pro bono services: the clients are indigent, and their cases raise novel or interesting legal issues which the lawyers involved will be able to test in court. In this case, they've been pretty successfuleven an overwhelmingly Republican-appointed Supreme Court has now repeatedly found that the regime the Bush Administration created in Guanta'namo was illegal.
But there's another fact that Thiessen omits. In his world, the Gitmo prisoners these lawyers are defending are terrorists, full stop. If that's the case, then why did the Bush Administration release fully two-thirds of them? Why do the largely conservative, Republican judges reviewing the habeas petitions of the balance keep finding that there's no basis to call them "terrorists"? That's been the result in about 80% of the cases heard so far. What has Thiessen and his Cheney friends in such a lather? I'd put a sharp point on it: these lawyers are putting the lie to their claims about Gitmo.
Thiessen bristles over the criticism of the Kristol-Cheney tactics as "McCarthyite." He suggests that a double standard has been applied. Where were these critics, he asks, when attacks were launched against John Yoo and Jay Bybee? Does Thiessen understand what the term "McCarthyite" means? It refers specifically to the sort of nebulous insinuation that Cheney and Kristol make with their ad: that the government is riddled with enemy sympathizers, prepared to sell the country down the river in the middle of a war. The criticism of John Yoo and Jay Bybeesustained in the Justice Department's internal reviewwas that the two lawyers failed to exercise independent professional judgment by properly defining torture and applying it to a program developed and put in place by the intelligence community. The group to which Yoo and Bybee attached themselves was housed in the White House, right around Vice President Cheney--that is, a group rather close to Marc Thiessen. No one is accusing Yoo and Bybee of treason, but rather of violating ethics rules and failing to apply the law. Their cases will now be reviewed by bar disciplinary panels who will decide the appropriate sanctions for their ethics lapses.
Marc Thiessen's work at the Washington Post looks like the work of a third-rate publicist--promoting the Cheney-Kristol Keep America Safe project. Just what is his relationship with this project? And why does Hiatt let him do this for free from the editorial pages of the Washington Post? Hiatt owes his readers some explanations.
Scott Horton is a contributor to Harper's Magazine and writes No Comment for this website, www.harpers.org. A New York attorney known for his work in emerging markets and international law, especially human rights law and the law of armed conflict, (more...