I watched The Daily Show episode with Marc Thiessen and all I wanted to to smack his pasty fat white face. I wanted to waterboard him. But, that isn’t going to happen. Conor Friedersdorf has a take down that is worth reading. It is about an innocent man being held at Gitmo for seven years after people knew that he was innocent.
It is worth revisiting Mr. al-Rabiah’s case as America debates whether lawyers who did pro-bono work for Gitmo detainees desserve praise or scorn. Liz Cheney, William Kristol, Marc Thiessen, and Andrew McCarthy are among the folks who argue the latter — all either helped air or defended a television advertisement calling the subset of these lawyers who now work in the Obama Justice Department “the al Qaeda seven.” In the New York Times, Mr. McCarthy wrote, “Only criminal defendants are entitled to counsel, and those who represent them do indeed perform a constitutionally valuable function. It has never been the law, however, that war prisoners are entitled to counsel to challenge their detention as enemy combatants.” He goes on to assert that “the lawyers chose to offer themselves, gratis, to our enemies for litigation the Constitution does not require. They did so knowing that this litigation would be harmful to the war effort.”
Orin Kerr, a law professor who blogs at The Volokh Conspiracy, has published a devastating take-down of Mr. McCarthy’s argument. It is worth reading in full. I’ll excerpt just one sentence: “McCarthy strangely overlooks the basic fact that much of the litigation for the Guantanamo detainees concerns whether they are in fact the enemy.” Even as an abstract argument, Professor Kerr’s point is persuasive, as are all parts of his rebuttal. But the wrongheadedness of the Cheney/Kristol/Thiessen/McCarthy view can be fully appreciated only by looking at how it played out in a particular case.
Thus Mr. al-Rabiah. It isn’t just that he was an innocent man thrown into Gitmo, or that he was held even after a CIA analyst concluded that he was innocent, or that National Security Council Staffers were aware of his innocence and actively trying to bring about a review of his detention — Mr. al-Rabiah’s case is apt because after the CIA’s 2002 determination of his innocence, he spent another seven years wrongly imprisoned, regaining his freedom and seeing his children only after retaining the help of American attorneys.