Conservative Torture Fetish Freak Marc Thiessen Makes Excuses for Stalinist Policies

Conservative Torture cheerleader Marc Thiessen Makes Excuses for Stalinist Policies

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.

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.

Nobody ever criticized the torture lawyers because of who they represented, and nobody questioned their loyalty. The criticisms were on three completely different grounds: first, that they made frivolous arguments to get around the law; second, that they violated their ethical and constitutional obligation to give candid, independent advice to the president; and third, that they facilitated a misbegotten plan to torture captives.

Lawyers, Treason, and Deception: A Response to Andrew McCarthy

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”?

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”).