Commentary: Why Marc Thiessen's wrong about 'al Qaeda 7'

WASHINGTON — Washington Post op-ed columnist and Republican speech writer Marc Thiessen continues to try to whip up public outrage about the "al-Qaeda Seven," his preferred term for Justice Department attorneys who once represented Guantanamo Bay detainees.

In his latest Washington Post blog, the former Jesse Helms wordsmith contends the Sixth Amendment rights to the legal protections necessary for a fair trial don't apply to the Gitmo detainees. Therefore, he reasons, the attorneys who represented them were going beyond their justifiable pro bono service.

But Thiessen is arguing perversely and backwards, from a premise rejected by the Supreme Court.

First, Thiessen is saying the Sixth Amendment only kicks in once an individual has been charged. The Guantanamo Bay detainees were not charged. Therefore, no Sixth Amendment rights apply. By this reasoning, the all-mighty wartime state can neutralize the Sixth Amendment simply by holding detainees in perpetual limbo. Don't charge them, and they have no rights.

Wrong. Even the all-mighty wartime state has limits. The Supreme Court, in Boumediene v. Bush, rejected the premise that Guantanamo Bay is a Constitution-free zone. Detainees can challenge their incarceration through a habeas petition. And for this, they are constitutionally entitled to the assistance of counsel.

Second, Thiessen contends that "the United States has held millions of enemy combatants" and none had filed a successful habeas petition until now. Wrong analogy. The millions of enemy combatants to whom Thiessen refers are prisoners of war, to whom Geneva Conventions apply. The Guantanamo detainees are in a different category altogether; remember, that's the way the Bush administration wanted it.

Third, Thiessen says the lawyers "reached outside the judicial system and dragged the terrorists in."

Wrong. The lawyers tested the boundaries of the judicial system. That's what cases are for. The lawyers couldn't drag anybody in unless the constitutional gatekeepers permitted. If anything, it seems Thiessen's beef is with the majority of the Supreme Court.

Fourth, Thiessen fundamentally misunderstands what it is lawyers represent. He associates them with the character of the plaintiff ("mob lawyers") rather than the right being vindicated. Thiessen accepts pro bono service only for the characteristically virtuous: "the indigent, the elderly, battered women or refugees." Conversely, he deems it improper to represent "America's terrorist enemies."

Wrong. It's not the pleasantness of the plaintiff that is important, it's the preciousness of the right. Exhibit A: Clarence Gideon. Dude was a drifter, with a criminal record. An unsavory man. His challenge, though, vindicated the Sixth Amendment right to counsel for those who could not otherwise afford one. (In Thiessen's preferred rhetorical style of membership-by-association, Gideon's case was presented at the Supreme Court by Drifters' Mouthpiece Abe Fortas.)

Fifth. Thiessen contends that detainees freed from Guantanamo "have gone back to the fight and killed Americans." Sad, but incomplete. We need to know to what degree the released men were radicalized and embittered by their harsh and lengthy imprisonment. Did Gitmo create the monsters who turned upon us? Or, as Thiessen's former master Donald Rumsfeld put it in 2003, "Are we creating more terrorists than we're killing?"

Moreover, Thiessen's statement is really an argument for perpetual detention for anyone once considered dangerous. The reasoning could apply with equal force to conventional criminal prisoners, whose recidivism rate is notoriously high. We can easily cut the recidivism rate to zero, by establishing life imprisonment as the punishment for every single crime.

But all of this is mere quibbling. Thiessen has a book to flog and a brand name to establish. The longer the "debate" goes on, the better for him.

Read more: http://blogs.mcclatchydc.com/law/2010/03/marc-thiessen-still-flogging-case-against-alqaeda-seven.html#ixzz0hzlqX48y