To give you an idea how ridiculous Thiessen's complaint is, what follows is a statement Stewart made during the interview, and what Thiessen said at the very same time Stewart was making that statement. Stewart was explaining to Thiessen why a lawyer would defend pedophiles in court:
Stewart: Because you believe in the rule of law and that the country's fabric is decided not by the easiest cases to take but the hardest cases to take.That's pretty much how the interview went. Stewart, the host, had the unmitigated audacity to speak when his guest, Thiessen, had his points to make. Perhaps they should have put Thiessen on a stage under a spotlight and behind a lectern so we wouldn't have been annoyed by Stewart's unpatriotic interruptions.
Thiessen: But . . . but . . . but . . . This is diff . . . again . . . again . . . again . . . no, no, no . . . again . . . I'm telling you.
Anyway, Thiessen was there to defend Liz Cheney's demand that the identities of Department of Justice lawyers who represented persons suspected of terrorist activity be revealed. A video released by Cheney's group also questions the loyalties of those lawyers. The video suggests that the lawyers are themselves terrorist sympathizers: behind the words, "Whose values do they share?" can be seen an image of someone who looks a lot like Osama bin Laden. The image is moving so that you won't miss it. This is something that I have written about before. But Stewart's interview with Thiessen must also be addressed.
Why should we be concerned about the activities of these lawyers, according to Thiessen?
- "There is a vast difference between representing someone who's been accused of crimes—everybody gets a lawyer under the Sixth Amendment if you've been accused of a crime," said Thiessen. "The people in Guantanamo Bay have not been accused of crimes. They are being held as enemy combatants in a time of war." Habeas Corpus does not apply in American law to prisoners of war, but Department of Justice lawyers worked to free them.
- It is wrong to demonize the torture memo lawyers but acceptable to demonize the Department of Justice lawyers as the Al Qaeda Seven, according to Thiessen. Lawyers' time to litigate pro bono cases is limited. Suppose you spend all of your time on pro bono cases representing pedophiles. "It would raise a question," Thiessen says: "Why are you trying to free these people?"
- Some of the lawyers in question have radical views. According to Thiessen, Jennifer Daskal "has written that any terrorist who is not charged with a crime, even though they're being held as lawful combatants . . . should be released from Guantanamo and set free even though we know that they may go out and kill American soldiers. We know that Al Qaeda terrorists who have been released as a result of habeas corpus cases, the pressure of habeas corpus cases, have gone and killed American soldiers."
The problem with (1) is that it is based on an assumption that people like me simply do not accept. According to the ACLU, the Military Commissions Act (or MCA) "gives any president the power to declare—on his or her own—who is an enemy combatant, decide who should be held indefinitely without being charged with a crime and define what is—and what is not—torture and abuse." The MCA was enacted in response to the Supreme Court's ruling in Hamdan v. Rumsfeld, according to which "the Bush administration's use of military commissions to try terrorist suspects violated the U.S. Code of Military Justice and Geneva Conventions, and were not specifically authorized by any act of Congress." The Act created an independent system of law alongside the one already in existence but without the usual constitutional protections. Since anyone, including American citizens, can be declared an enemy combatant, the Act effectively cancels the Bill of Rights and habeas corpus for every United States citizen. To refuse to make the distinction Thiessen makes is to recognize the unconstitutionality of the Act and the threat people like Thiessen and Cheney pose to our very Constitution.
Consider (2). As Thiessen points out, if you are lucky enough not to have been named an enemy combatant, then you are entitled to a lawyer under the Sixth Amendment. We have this right, I presume, regardless of the intentions or motivations of the person hired or appointed to represent us. That is, the intentions or motivations of a lawyer are legally and constitutionally irrelevant. Further, notice the assumption Thiessen makes that those who have been accused of crimes or declared enemy combatants are guilty. Thiessen appears to think that entitlement to legal representation depends on whether you are perceived to be guilty, i.e., if you are suspected of a crime, then you ought not be represented by a lawyer. This is obviously a rejection of the Sixth Amendment which Thiessen claims to understand. Even the guilty and not those merely suspected of guilt are entitled to due process. Otherwise, who is to decide who is entitled to due process? Marc Thiessen? Liz Cheney?
Finally, let's address (3). Read (3) very carefully. If one were worried that people held at Guantanamo are a threat and are guilty of something, what is the obvious solution? Charge them with a crime. As Stewart pointed out, we must have some reason for holding them. So that's all you need to do. Thiessen obviously believes that the people in Guantanamo ought to be handled under the Military Commissions Act rather than our criminal justice system. But once you recognize how repugnant that approach is, the alternative is obvious. Further, does Thiessen mean to suggest that lawyers ought to be subject to a litmus test? Wouldn't this politicize the Department of Justice? Who would make these political decisions? Is Thiessen so completely stupid that he hasn't learned anything from the crisis at Justice under Alberto Gonzales?
Second-guessing the motivations of the Department of Justice lawyers is dangerous. According to the description of Thiessen's book, Thiessen "was locked in a secure room and given access to the most sensitive intelligence when he was tasked to write President George W. Bush’s 2006 speech explaining the CIA’s interrogation program and why Congress should authorize it." Well, what are Thiessen's values? Clearly, he has a vested interest in how this debate turns out. Is he not thereby open to the charge that his values are not American but rather those of self-love, as Kant would put it?
Stewart ended the on-air portion of the interview with a statement that expresses my own view about this perfectly:
The idea that you can castigate people as though they are purposefully making America less safe and in league with the terrorists that we're fighting because they disagree with your ideas about safety I think is what's offensive about this.Stewart is challenging the idea that conservatives and the Republican Party alone know how to keep the country safe, and that anyone who challenges them is both wrong and a traitor. And that is the idea that is driving both Thiessen and Cheney.
One unfortunate side-effect of this objection to Thiessen, correct as it is, is that it may appear to concede too much. Stewart persuasively argued that it is difficult to say what will make us more safe: military commissions or civilian trials. Since the issues are complex, those on both sides aren't obviously right or wrong. But this approach makes it sound as if this debate is about safety alone, and it is not. It is about the rule of law and protecting our way of life in the face of the terrorist threat. In the end, it doesn't matter whether Thiessen is right about safety. If we do what he recommends, our way of life is over. And that is why I say that Thiessen, Cheney, and people like them are a greater threat to our way of life than any terrorist.