Should Lawyers Represent Terrorists?
NEAL CONAN, host:
And now, the Opinion Page. A few weeks ago, a conservative group called Keep America Safe, headed by Bill Kristol and Liz Cheney, the daughter of the former vice president, put this ad on a Web site.
(Soundbite of political advertisement)
Unidentified Man: So who did President Obama's Attorney General Eric Holder hire? Nine lawyers who represented or advocated for terrorist detainees. Who are these government officials? Eric Holder will only name two. Why the secrecy behind the other seven? Whose values do they share? Tell Eric Holder Americans have a right to know the identity of the al-Qaeda 7.
CONAN: After Washington Post columnist Mark Thiessen defended the ad, he appeared as a guest on "The Daily Show" and concluded that host Jon Stewart didn't let him get a word in edgewise.
(Soundbite of TV show, "The Daily Show")
Mr. JON STEWART (Host, The Daily Show): Honestly I feel you - you've made no point. I've not let you make any points.
Mr. MARK THIESSEN (Columnist, The Washington Post): I think you've talk right through me, and I was trying to get some points out (unintelligible) about the...
Mr. STEWART: I apologize...
Mr. THIESSEN: ...about the...
Mr. STEWART: I sincerely apologize.
Mr. THIESSEN: ...the effectiveness of this program and...
Mr. STEWART: I sincerely apologize.
Mr. THIESSEN: Yeah.
CONAN: And now, here's his chance, and your opportunity to respond on the controversy over the al-Qaeda 7 ad: 800-989-8255. Email us: email@example.com. You can also join the conversation on our Web site. That's at npr.org, click on TALK OF THE NATION.
And Mark Thiessen joins us here in Studio 3A. He's former chief speechwriter for President George W. Bush. Nice to have you with us on TALK OF THE NATION today.
Mr. THIESSEN: Nice to be here. Thank you.
CONAN: And since the ad came out and your column, it seems very few people are defending it.
Mr. THIESSEN: Oh, no, I don't think that's true. I think former federal prosecutor Andy McCarthy has come out for it. Other people have come out for it. There's a lot of people who are supportive of the ad I just heard about(ph).
CONAN: But many prominent conservatives, including the former attorney general, say, wait a minute, we think this is wrong-headed.
Mr. THIESSEN: Sure, some have. I think what the problem comes in is there's a distinction between the great American principle that everybody gets a lawyer and a defendant. And think there's a misunderstanding of what that exactly means. The Sixth Amendment says that if you are accused of a crime, you have a right to counsel.
Most of these people that we're talking about here who are being represented were not accused of crimes and were not in our justice system. These are people who were captured on the battlefield and they're being held under the laws of war as enemy combatants. And so if they are charged with a crime, if they're in - either in a military commission or in a criminal court, then they have - of course they have a right to representation, and the government actually provides that, military lawyers for them for - to defend themselves against those charges.
But what we're talking about has been qualitatively different, these habeas cases, where all these lawyers have come out of the woodwork and started trying to free enemy combatants held under the laws of war and send them back out to the battlefield, where - and when they have been sent back, many of them gone on and killed Americans. This is not an honorable thing to do.
CONAN: You sort of skip over the point: The Supreme Court has accepted the idea of this representation.
Mr. THIESSEN: Well, there was an unprecedented campaign to get to that point. But, you know, I find...
CONAN: But it is (unintelligible)...
Mr. THIESSEN: ...find it interesting that the people said - the Supreme Court said it must be - it must be right. When President Obama stood in the well of the House the other day and scolded the Supreme Court in front of Congress and had people cheering around the Supreme Court justice while they were sitting there stoned-faced, no one suddenly said, well, Mr. President, the Supreme court ruled. You're absolutely wrong.
CONAN: Well, he obeyed the law, and indeed...
Mr. THIESSEN: And we...
CONAN: ...the Supreme Court hardly a liberal bastion at this particular point in its history, said, wait a minute. We accept that these people deserve representation.
Mr. THIESSEN: Two hundred and thirty-four years in this country, we had held over five million enemy combatants in every war going back to the Revolution. And until the war on terror, there has not been one single successful habeas case ever in the history of this country. The idea that the enemy can - you know, it's funny...
CONAN: Until recently.
Mr. THIESSEN: ...until recently, until this campaign started, until the habeas campaign was launched. If you think about it, the people criticized the Bush administration for not abiding by the Geneva Conventions. The Geneva Conventions - nowhere in the Geneva Conventions does it say that an enemy combatant has a right to counsel, a right to challenge his detention in federal court or right to be freed before the end of hostilities. Those are the rules for lawful combatants.
What these habeas lawyers have done is effectively given rights to terrorists who do not follow the laws of war, who violates the Geneva Conventions, more rights than legal combatants have...
Mr. THIESSEN: ...which is unprecedented.
CONAN: ...in part, because they're not being held under what most people count as the laws of war, which would be the Geneva Conventions.
Mr. THIESSEN: I don't understand what your point is.
CONAN: They're not being held in accord with the Third Geneva Convention.
Mr. THIESSEN: They're being held under the laws of war. They're enemy combatants. They're illegal enemy combatants, but they don't merit Geneva Convention protection.
CONAN: Well, this is a matter of constitutional dispute. Would you not accept then?
Mr. THIESSEN: No. There's no dispute that we can hold enemy combatants under the laws of war. In fact, the courts have affirmed that we can hold enemy combatants under the law.
CONAN: So, this time you accept the Supreme Court?
(Soundbite of laughter)
Mr. THIESSEN: The - there is - if you capture somebody on the battlefield - it is undisputed - in a war that you can hold somebody who was a threat to you, to your country and to your soldiers until the end of hostilities. This is never been contested before in the history of our country.
CONAN: And you've heard the comparison, indeed, your most recent column - is on the charge, some people say, wait a minute, John Adams, the future president of the United States, defended the British soldiers charged in the Boston Massacre. Shouldn't we also provide attorneys in this case?
Mr. THIESSEN: Well, that is - it is a very clever way to wrap themselves in the American flag, except it's wrong. For one thing, John Adams represented the soldiers in the Boston Massacre before the Declaration of Independence, which means they were not foreign enemy combatants. They were his own countrymen. This is equal on a police abused case -would be today.
And second of all, they were charged with crimes. Of course, they deserve representation. That is far different than taking - then going in, reaching into the - out of the into the national security system, pulling people out, and using - basically, turning in the courts - into a battlefield in the war and terror.
CONAN: Yet, nevertheless, the principle every man deserves a lawyer seems to a great American tradition.
Mr. THIESSEN: When did - which - how many German soldiers got a lawyer in World War II? How many Japanese soldiers got a lawyer in World War II? How many soldiers in the Korean War? None.
CONAN: They were arrested in uniform and there was a degree of due process...
Mr. THIESSEN: So terrorists should have rights - because they don't wear uniforms and don't follow Geneva Convention - more rights than people who do follow the Geneva Convention?
CONAN: You have to accept that there have been mistakes made because it's hard to tell who's a terrorist and who isn't. And indeed, some of these people who were released from Guantanamo Bay and other detention facilities, were shown - there was no evidence against them.
Mr. THIESSEN: Very few. And in fact, it was the Bush Administration -even before the habeas campaign started - that had set up a system to review these people. They were - They were - They were - by the time the 2004 the Rassoul(ph) suit came, there had been at least 300 people who had been sent back from Guantanamo Bay after having been reviewed.
They were - you know, think about this. We've captured - according to Defense Department estimates, more than 80,000 people in the war on terror have been detained by the United States. Of those, just 800, less than 800 went to Guantanamo. It is very hard to get sent to Guantanamo. We were not out there scooping up dirt farmers and goat herders and dragging them halfway across the world at Guantanamo.
You had to have pretty serious evidence against you. There were review process in the field. Once they got you at Guantanamo, there was more review process. And then, 2004, they established something called the CSRT process. And they actually reviewed every single case. There were about 500 and change there, and almost everyone, except for about 30, were found to be direct threats to the United States, and those who weren't were sent home.
CONAN: There is also, as you said, many of these people have not been charged with crimes, some of them have been charged with crimes.
Mr. THIESSEN: Sure.
CONAN: And they should, of course, get a lawyer.
Mr. THIESSEN: Of course. And they're provided military lawyers by the United States government at taxpayer expense.
CONAN: And should they find themselves in civilian court, as they may or may not, depending on what happens...
Mr. THIESSEN: They should be provided lawyers as well. Of course. No one says that anyone should go into a courtroom and have a criminal charge brought against them without having the right to defend themselves. We're talking about something qualitatively different, which is interfering with the ability of the United States to conduct war.
We have, for the first time in history, lawyers on the battlefield. I mean, they have - what the effect of having these lawyers has been absolutely decimate... I went to Guantanamo Bay last fall, and I sat down with Paul Rester who's the head of the Joint Intelligence Group there. And he explained to me, he can't interrogate these people anymore because - since the habeas lawyers started showing up.
Because what you find is, if that - if you have - when you're going to interrogated a terrorist, you have to expose intelligence to them. If they're going to get intelligence on a particular part of Afghanistan where it is going to be a military operation, you start asking about that. He gets the understanding, okay, there's a military operation going on they'll me question me about.
He's meeting with the habeas lawyer a few hours later, a few days later, you know, he - that information can get out back to the field. And there have been numerous accounts, and there's a wonderful op-ed today, by Tom Joscelyn and Debra Burlingame in the Wall Street Journal, where they layout that the habeas lawyers have been a sieve of information going back and forth between the camps and back home.
CONAN: These Justice Department employees?
Mr. THIESSEN: No. The private lawyers who were going in there. When I went to Guantanamo, there's a ferry that takes you across from the landing area to the main area where the detainees are. And everybody was wearing WilmerHale hats. I mean, it was just - the place was just lousy with lawyers. And they're meeting with them every day.
And the interrogators can't question them because they can expose intelligence to them. The lawyers used they've used legal mail, which is supposed to be designed for privileged communications between lawyer and client, to send family letters back, to provide them with propaganda from the outside, with news accounts from the outside. They've - I mean, there's been a whole series of incidents that have been resulted and people in law firms had actually been sanctioned for providing this information.
When you take these enemy combatants and give them a - an outlet to communicate with the outside world, they can get intelligence out. They're even trained to do it. There's this something called the Manchester Manual, which is a terrorist document where they train them to use their lawyer visits to get information back to the brothers outside.
CONAN: Let's get some listeners in on the conversation. Our guest is Mark Thiessen, former chief speech writer for President George W. Bush, now a columnist at the Washington Post. 800-989-8255; email, firstname.lastname@example.org. And let's begin. This is Steve(ph). Steve with us out here from Washington, D.C.
STEVE (Caller): Yeah. Hi. I'm a lawyer. I'm a practicing Catholic and I was in D.C. when 9/11 happened. And I have tremendous confidence in our military personnel and interrogators, but I disagree with your guest, just based upon my personal experience. I know a tremendous number of people who feel so strongly about the events that scarred our country, that they believe that the American people deserve retribution far beyond what the military and what our, you know, our military personnel would ever dole out.
But as a Catholic like your guest, I strongly believe that we have a duty to ensure that our government respects the dignity and human rights of even our worst enemies. And I think that the question here isn't about our interrogators and military personnel, it's about whether civilian elected officials might be swayed by public opinion and cross the line.
And, you know, if civilian lawyers are the wrong way to do that, we can have a policy discussion about this. But I think it's extremely dangerous to, you know, start calling lawyers radical, start suggesting people are, you know, they're in the pockets of the enemy just because they are skeptical of government that's, you know, elected. Because that's precisely, in a free society, what we need to do to ensure that these elected officials don't cross the line.
CONAN: Mark Thiessen?
Mr. THIESSEN: I actually don't disagree with your caller in - except I disagree with the way of doing that. I don't think that habeas lawyers filing lawsuits on behalf of terrorists is the way to do. We - that's a branch of government called the Congress who has a right to either approve what the administration are doing or pass legislation disapproving it.
If they don't like the interrogation techniques, they can disapprove them. If they don't like the fact that the two detainees don't have habeas rights, they can pass legislation giving it to them. We have a democratic system of government to do this. And in fact, you know...
CONAN: The courts are part of that democratic system of government, too. The court says they do have habeas.
Mr. THIESSEN: Yet - but the tradition is - and your - if your listener is a lawyer, he knows this. The tradition is that the courts defer to the executive when it comes to matters of war. And they don't stick their nose into it in the way that they have in this particular case. But I'll give you a perfect example on habeas. The Supreme Court in the Rassoul decision actually said that they have a statutory right to habeas.
Congress went back in 2006 in part of the Military Commissions Act, and explicitly said they don't have the - took away the statutory right to habeas. And so, the court went in and overruled them, and said now they have a constitutional right to habeas. I mean, this is an interference by the court in the decisions made by the...
CONAN: (Unintelligible) activist Roberts' court.
Mr. THIESSEN: This is an interference of the courts in a decision made by Congress and the president in a time of war, it's unprecedented. I -listen, I've talked to senior, senior Justice Department officials from previous administrations - not ours - who have said that the Boumediene Decision, which gave them those rights, is not only wrong, it is probably the most dangerous decision the Supreme Court has made in its history.
CONAN: Steve, thanks very much for the phone call. Appreciate it.
STEVE: Thank you.
CONAN: Our guest is Mark Thiessen, economist for The Washington Post, author "Courting Disaster: How the CIA Kept America Safe and How Barack Obama is inviting the Next Attack." You're listening to TALK OF THE NATION from NPR News.
And let's go next to Daniel, Daniel with us from Portland.
DANIEL (Caller): Yes. I would like to know, given the description that the guest has made, how does he explain one of the clients in the al-Qaida advertisement - the al-Qaeda 7 advertisement, that is - was Jose Padilla, who is a U.S. citizen taken into custody on U.S. soil?
CONAN: Held on a Navy brig without charge for a couple of years, and later he was charged and tried and convicted?
Mr. THIESSEN: I'm not sure what the caller's point is, because Jose Padilla was not held in Guantanamo, as you say. Jose Padilla was a hardcore jihadi terrorist, who was sent here by Khalid Sheikh Mohammed to blow up apartment buildings in United States, using natural gas. He -there was actually a dinner held for him the night he left in Karachi, Pakistan, by KSM, Ammar al-Baluchi, Walid Bin Attash and Ramzi Binalshibh, the men behind the 9/11 attack, setting him and his partner off as they came to the United States.
And KSM even gave him instructions that he was to not blow up the - to choose an apartment in the building that he was going to blow up high enough so that the people trapped in the floors above could not jump out and escape. This is a man who is sent here to commit mass murder, okay? And he was - and then, you know, if he was to - when he's charged with a crime, absolutely, he has a right to representation to defend himself. But trying to free terrorists like this so they can go back to the battlefield, which is what they're trying to do with the people in Guantanamo Bay, is absolutely - it's just a terrible thing to do.
CONAN: One of the things the court did rule was that the - it was inappropriate to hold him, an American citizen, without trial in a Navy brig, without charge.
Mr. THIESSEN: I don't think that's what the final decision was. The Supreme Court, actually - there was a procedural issue, and they just -clined(ph) to rule on it. And later, he was - it was upheld that he could be held in the Navy brig.
CONAN: Let's go next to Troy, Troy with us from Iowa City.
TROY (Caller): Yes, I would like to thank you for running the ad. And I would like to say is most people are caught not having a uniform on are shot because they're spies.
CONAN: In their own country, in Afghanistan?
TROY: Well, no, these are Saudi Arabian people that are caught in Afghanistan and Iraq.
CONAN: Many of them are - some of them are, some of them are not. But anyway...
Mr. THIESSEN: It is an interesting innovation of the laws of war, that if you are actually caught violating the laws of war, you get more rights than if you follow them. I mean, the idea that we should give new rights to terrorists because we can't fight or because we have - it's a harder time to figure out who they are because they're not uniforms. And the Geneva Conventions are not - it's actually an interesting thing that people don't - a lot of people don't understand.
The Geneva Conventions were not designed to protect prisoners of war. They were designed to protect civilians in a time of war. And the way they do that is by providing certain privileges - not rights -privileges - to people who follow the laws of war, carry their weapons openly, who wear uniform, who don't hide amongst civilians, who don't target civilians, you get certain privileges. If you violate those laws, you don't get those privileges.
Now, the terrorists violate the Geneva Conventions by the very nature of their activity, and so we're supposed to give them rights that lawful combatants don't have. It's amazing.
CONAN: Troy, thanks very much for the call. We just have a few seconds left, but were there not...
Mr. THIESSEN: Sure.
CONAN: ...Bush administration lawyers who also represented some of these detainees?
Mr. THIESSEN: Apparently, there were - apparently, unbeknownst to me, there were two who the Holder administration found. And I guess some people slipped through the vetting process. It's the best I can tell.
CONAN: So they should be identified, too.
Mr. THIESSEN: I think this is about transparency, okay? You know, it's interesting, the people who criticized John Yoo and Jay Bybee and David Addington and all these people, they didnt want transparency - they wanted their heads. They wanted these people to be fired. They wanted to be disbarred. They wanted Jay Bybee to be impeached. And they want them to be jailed. All we're asking for is transparency. Who are these people, what are they doing, what's the role in detainee policy.
CONAN: Thank you very much. Mark Thiessen is co-author of "Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is inviting the Next Attack." You can find a link to his most recent column for The Washington Post, "No It's not McCarthyism" on our Web site at npr.org. Click on TALK OF THE NATION.
Mark Thiessen, thanks very much for being with us today.
Mr. THIESSEN: Thanks for having me today.
CONAN: Tomorrow, we'll talk about the battle over who writes history after the Texas school board voted to rewrite its textbooks. Join us for that.
This is TALK OF THE NATION from NPR News. I'm Neal Conan, in Washington.
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