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.