Thiessen misrepresents Daskal's views on releasing detainees

Thiessen: Daskal “said even if we know they'll go out and kill Americans, we should still release them.” From the March 10 edition of Fox News' Fox & Friends:

KILMEADE: First off, Marc, do you think -- do you think it's wrong to defend criminals? If you're a defense lawyer for a bad guy, whether it's Sammy the Bull or John Gotti, does that make you bad? Is that what they're doing?

THIESSEN: No, but they - I mean, well, first of all, what these people did, most of them, was not defend people who were in the criminal justice system. The sixth amendment says that if you're accused of a crime, you get to have legal representation. What these people were doing, most of them, was trying to spring terrorists out of Guantanamo who were held under the laws of war. Send them back out to the battlefield where they - where we have evidence they've killed Americans since. And one of these lawyers, Jennifer Daskal, has actually said even if we know that they will go out and kill Americans, we should still release them.

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 “trying to spring terrorists out of Guantanamo” in order to “send them back to the battlefield.” Thiessen stated: “The sixth amendment says that if you're accused of a crime, you get to have legal representation. What these people were doing, most of them, was trying to spring terrorists out of Guantanamo who were held under the laws of war. Send them back out to the battlefield where they - where we have evidence they've killed Americans since.” This echoes a claim Thiessen made in a March 8 Post column, in which he wrote: “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 Foxnews.com blog post cited by Thiessen in his column, 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 Foxnews.com 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.

Numerous conservatives and former Bush officials have condemned attacks on the lawyers as “shameful,” and “wrong”

Numerous conservatives condemned Liz Cheney's attacks on DOJ lawyers as “shameful.” During the segment, Kilmeade noted that Liz Cheney and her group Keep America Safe “took out an ad saying let's unearth these names [of the lawyers who represented detainees]...and condemn these people,” but that former Clinton administration Independent Counsel Kenneth Starr had “said it was wrong for Liz Cheney's group to do that.” Indeed, in addition to Starr, numerous conservatives signed a letter stating that the attacks on the Justice Department lawyers are “shameful.” They also said the attacks “undermine the Justice system.” Politico's Ben 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.

Former Attorney General Michael Mukasey also called the attacks “wrong.” In a Wall Street Journal op-ed Michael Mukasey, who served as Attorney General under George W. Bush, wrote that it's “wrong to criticize attorneys who represent alleged terrorists.” From Mukasey's op-ed:

It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility-whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It's also prudent that Congress exercise its long-established oversight responsibility to provide that assurance.

But that prudence is not properly exercised by arguing that lawyers who defended drug cases, or worked on defense teams in death-penalty cases, or helped bring legal proceedings in behalf of those detained as terrorists, are automatically to be identified with their former clients and regarded as a fifth column within the Justice Department. The rules of conduct of the District of Columbia bar, for example, direct that representation of a client not be portrayed as endorsement of the client's views or behavior.

If the Department of Justice comes to attract only lawyers who have spent their professional energy principally in avoiding matters of controversy, the quality of lawyers willing to serve at the department will decline, and the department will suffer, as will we all.

Former Bush administration official Peter D. Keisler reportedly says it's “wrong” to attack DOJ lawyers . The New York Times reported on March 4 that former Bush administration official Peter D. Keisler, “who led the Bush administration's courtroom defense against lawsuits filed by Guantanamo detainees is denouncing attacks on Obama administration appointees who previously helped such prisoners challenge their indefinite detention without trial.” From the Times report:

Peter D. Keisler, who was assistant attorney general for the civil division in the Bush administration, said in an interview that it was “wrong” to attack lawyers who volunteered to help such lawsuits before joining the Justice Department.

“There is a longstanding and very honorable tradition of lawyers representing unpopular or controversial clients,” Mr. Keisler said. “The fact that someone has acted within that tradition, as many lawyers, civilian and military, have done with respect to people who are accused of terrorism - that should never be a basis for suggesting that they are unfit in any way to serve in the Department of Justice.”

Former Bush lawyer John Bellinger calls attacks “inappropriate” “cheap shots.” On the March 4 edition of CNN's The Situation Room, former Bush administration lawyer John Bellinger said of the attacks on the DOJ lawyers, “I think those sorts of cheap shots, suggesting that a lawyer who is simply defending a client somehow shares those views, are -- really are inappropriate.” Bellinger also stated, “John Adams represented Tories who were accused of treason back in the revolution. This is the sort of work that we ought be applauding and not attacking.”

Former military commissions prosecutor under Bush Col. Morris Davis reportedly calls attacks “outrageous.” The Washington Independent's Spencer Ackerman reported on March 2 that Air Force Col. Morris Davis (Ret.), who served as a chief prosecutor for the Office of Military Commissions during the Bush administration, called the attacks on the DOJ lawyers “absolutely outrageous.” Referencing recent attacks on DOJ officials Neal Katyal and Jennifer Daskal, Morris reportedly said, “It is absolutely outrageous ... to try to tar and feather Neal and Jennifer and insinuate they are al-Qaeda supporters.”

Former Bush lawyer Reginald Brown calls attacks “beyond a cheap shot.” According to a March 4 Washington Post article, former Bush lawyer Reginald Brown stated, “It's beyond a cheap shot to suggest that a lawyer is an al-Qaeda sympathizer because he advocates a detainee's position in the Supreme Court.”

Former head of OLC under Clinton also slams attacks on DOJ lawyers as “shameful.” In a March 5 Washington Post op-ed, Walter Dellinger, head of the Office of Legal Counsel during the Clinton administration, wrote that "[t]he only word that can do justice to the personal attacks on these fine lawyers -- and on the integrity of our legal system -- is shameful. Shameful."

Fox & Friends has previously attacked DOJ lawyers who have represented terror suspects

Doocy wonders if DOJ lawyers are “sympathetic to the Al Qaeda cause.” During the February 22 edition of Fox & Friends, Doocy stated: “At least nine of President Obama's appointees to the Department of Justice have either represented Gitmo detainees -- they were their attorneys -- or advocated for Gitmo detainees.” Doocy later added, "[A]nd the argument continues, you know, if they represented these guys, are they sympathetic to the Al Qaeda cause?

Carlson: “It's almost like it was a job requirement to have defended” a terrorist. On the March 5 edition of Fox News' Fox & Friends, co-host Gretchen Carlson said of the Justice Department lawyers, “It's almost like it was a job requirement to have defended a” terrorist. She then asked, “Seriously, when somebody finally exposes this, this is trouble, is it not?”

Fox & Friends guest McCarthy: This is “something to be very concerned about if they're now in the position of making counterterrorism policy.” During the March 5 Fox & Friends, co-host Brian Kilmeade asked guest Andrew McCarthy of National Review Online: “What should we know when nine Department of Justice lawyers are involved -- they're hired right now -- were involved in advocating for Al Qaeda terrorists when they were at Gitmo before they got this job, when President Bush was in the White House.” McCarthy replied, in part: “Well, obviously I think the fact that they voluntarily represented America's enemies is something to be very concerned about if they're now in the position of making counterterrorism policy.”