Why Self-Respecting Editors Should Be Embarassed to Publish Marc Thiessen
In a recent Slate piece, a former senior military interrogator eviscerated Marc Thiessen’s book Courting Disaster, pointing out errors, omissions, and arguments so egregiously flawed that it’s a wonder their author is asked to recycle them at National Review and The Washington Post.
Consider the excerpt below. In two short paragraphs, assertions core to Mr. Thiessen’s arguments are handily rebutted:
Thiessen promulgates a theory that Islamic extremists are uniquely deserving of torture because they are doctrinally obligated to resist cooperating, after which they may disclose information. Of course this isn’t unique to Islamic extremists. The U.S. military’s own Code of Conduct and the resistance training given American soldiers impose the exact same requirements. Article V, pertaining to interrogations states: I will evade answering further questions to the utmost of my ability. Moreover, regardless of our enemy’s resistance philosophy, we have legal obligations to treat them humanely. If an American soldier is captured, would we want his obligation to resist turned into a justification that allows him to be water-boarded into cooperating?
Thiessen also asserts that Khalid Sheikh Mohammed was not rendered ineffective after his capture (and was still an active combatant) because he had knowledge of future attacks. The CIA was thus justified in torturing him. But every captured enemy has information of future plans or other valuable information about capabilities. Thiessen’s justification could be used to water-board everyone we capture. The standard for detainee treatment is not a sliding scale based on a particular captive’s knowledge. It’s a constant based on law and our principles.
It is depressing that arguments this poor actually advanced Mr. Thiessen’s career in journalism. The readers who propelled him onto the New York Times bestseller list can be forgiven if they’re not knowledgeable about United States law, the military code of conduct, or devastating counterarguments that require a bit of outside knowledge. But the editors who willingly publish this man again and again, despite the poor quality of his work and his inability to answer his strongest critics, are being negligent and unprofessional.
In his latest effort at The Washington Post, Mr. Thiessen defends Liz Cheney, Bill Kristol, and Keep America Safe in its smear campaign against Justice Department lawyers who did pro-bono work representing War on Terrorism detainees — their ad campaign labeled these lawyers “The Al Qaeda Seven.”
Mr. Thiessen writes:
Where was the moral outrage when fine lawyers like John Yoo, Jay Bybee, David Addington, Jim Haynes, Steve Bradbury and others came under vicious personal attack? Their critics did not demand simple transparency; they demanded heads. They called these individuals “war criminals” and sought to have them fired, disbarred, impeached and even jailed. Where were the defenders of the “al-Qaeda seven” when a Spanish judge tried to indict the “Bush six”? Philippe Sands, author of the “Torture Team,” crowed: “This is the end of these people’s professional reputations!” I don’t recall anyone accusing him of “shameful” personal attacks.
The standard today seems to be that you can say or do anything when it comes to the Bush lawyers who defended America against the terrorists. But if you publish an Internet ad or ask legitimate questions about Obama administration lawyers who defended America’s terrorist enemies, you are engaged in a McCarthyite witch hunt.
It is perfectly fine for the Washington Post to publish someone who argues that Bush Administration lawyers were unfairly attacked, or that the Keep America Safe campaign is justified — both views I vociferously contest, by the way — but are its readers well served by reading an author who pretends that it is somehow inherently inconsistent or hypocritical to be critical of John Yoo for the legal opinions he issued, and simultaneously defend Obama Administration lawyers who represented unsavory clients?
It is obviously spurious to frame things that way. It intentionally muddies the debate for rhetorical advantage. Yet the Washington Post chooses to cover this issue on its opinion pages by allocating space to a man who takes that most unhelpful approach. On highly controversial issues, I’ll gladly defend editors who publish writing I disagree with, and opinions I abhor, but precisely because this issues are so serious, it is important that those who grapple with them can at least offer arguments that aren’t laughably illogical or deliberately obfuscatory.
UPDATE: Glenn Greenwald expands on my critique of the latest Marc Thiessen column in The Washington Post, noting logical errors and journalistic shortcomings.
UPDATE II: Julian Sanchez has worthwhile thoughts on this subject.
The Al Queada 7 are being attacked for fulfilling their obligation as lawyers for zealous representation (and in many cases their arguments are validated by the Supreme Court).
Yoo, Bybee, Addington were attacked for failing their obligation as lawyers to provide honest, accurate legal advice. Their arguments were shown to be specious by many (all?) independent evaluators.
These are not equivalent situations that require equivalent “moral outrage.”
— john broadwater · Mar 9, 10:53 AM · #
At the rate they are going, torture supporters like the Cheneys; Yoo, Thiessen, Kristol and the like are doing more grievous and lasting damage to America than the terrorists. We are more than 8 years distant from 9-11 and the creeping moral rot and profound dishonor they introduced into our national discourse show no signs of abating.
This torture and its ancillary rendition/wiretapping/secrecy policies is shaping up to be one of the deepest betrayals of American values in our history. One could argue that it already exceeds the illegal displacement of the Cherokees, the internment of Japanese Americans in World War II and the Red Scare in infamy and if it continues much longer and burrows deeper into our discourse it may rival Jim Crow and even slavery.
It’s truly distressing that our nation’s honor means so little to these people that it’s cast aside so readily for “safety.”
— Seth Owen · Mar 9, 11:20 AM · #
I couldn’t agree more. It is perfectly fine for mainstream newspapers to open themselves to a variety of points of view. But that does not mean they must abandon timeless journalistic standards of fair and honest presentation, argumentation and documentation of fact in order to do it — as if there was some inherent liberal bias in logic and fair argument itself.
Thiessen commits three violations of these principles in his piece today, and shame on Fred Hiatt and the Post for allowing this abomination to get into print.
The first occurs in his opening graph when he uses rhetorical sleight of hand to conflate lawyers representing terrorist clients with “a bunch of mob lawyers” or “a group of drug cartel lawyers” as if lawyers recruited by the military itself to defend alleged al Qaeda terrorists somehow makes these lawyers full time “employees” of al Qaeda itself.
Second, over the years right wing media has grown very skilled at disguising and mainstreaming their own extremist messages by pretending that extremism is endemic to politics itself. To do that they constantly manufacture these fake “double standards” wherever they can to pretend that whatever outrages right wing radicals have committed somehow gets treated differently from extremes on the left because the media just doesn’t report the equally outrageous things liberals do. Thus, Thiessen points to the outraged reaction that Cheney and Kristol got when they attacked lawyers who defended terrorists, and wonders where all the outrage was when right wing lawyers like Yoo and Addington were attacked by liberals just for doing their job. What Thiessen fails to mention of course is that the “job” that they did was shredding the Constitution and their own professional standards by deliberately misinterpreting the law in order to give their “client,” the president and vice president, just what they wanted — a blank check to violate the law in order to wage the “war on terror” in whatever fashion they saw fit. And the reason we know this is that the REPUBLICAN lawyers who came in after them to clean up their mess said so when they repudiated everything they did and “took down” their radical opinions so that officials following the Office of Legal Counsel’s guidance wouldn’t risk putting themselves in jeopardy for breaking the law. This is something Thiessen completely fails to even address in his sneaky attempt to create a false similarity, probably because he think’s Yoo’s memo calling the Geneva Convention “quaint” was just fine.
Third, Thiessen fails to mention that the Andy McCarthy he uses as a legal expert in his column to talk about the appropriateness of giving 6th Amendment rights to alleged terrorists is no impartial observer but a committed right wing partisan with skin in this controversy.
Instead of actually trying to defend its ideas as conservatism becomes more extreme, the right wing in desperation is engaged in a new campaign to convince the public that its liberal critics are just a bunch of condesending snobs who pretend they are open minded but instead are intolerant of all conservative points of view just because they are conservative. It’s not the conservative ideas themselves that repulse liberals necessarily, but their shameless presentation, the unprincipled way they are advanced and argued by hack propagandists like Marc Thiessen, who deliberately employ distorted, dishonest and manipulative rhetorical tactics to achieve their ultimate objective. And the real scandal of it is, that once-respected institutions like the Washington Post let them get away with it.
— Ted Frier · Mar 9, 11:47 AM · #
Conor, it boggles the mind that in light of your spurious contentions regarding the Gitmo Three – still hanging out there without the promised follow-up – you have the gall to talk about self-respecting editors being too embarassed to publish someone.
You may think his arguments illogical or obfuscatory, but calling them that doesn’t make them so. You complain about him not answering his strongest critics, and yet you didn’t engage any of his arguments. Instead you allow that his readers (pushing him to NYT Best Seller status) can’t be faulted for not knowing any better. Perhaps you are missing something that they are not.
— Derek Smithee · Mar 9, 12:03 PM · #
@Derek,
Thiessen is a coward and a propagandist. He offers no proof for his assertions, but instead supports them with twisted logic that anyone with a brain should find squirm inducing. Comparing the torture memos to doing the dirty work to uphold the foundations of the American justice system? I am disgusted. Aren’t you? This man isn’t a patriot, and he isn’t wise. He doesn’t offer hard truths, he offers panic-induced bad ideas. That it all passes for informed commentary in a once respectable news organ is a nauseating statement on American media.
And if this isn’t self-evident, I think you need help.
— bakum · Mar 9, 01:13 PM · #
Actually, I thought the most offensive bit of Thiessen’s op-ed was the opening:
Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would — and rightly so.
Yet Attorney General Eric Holder hired former al-Qaeda lawyers to serve in the Justice Department and resisted providing Congress this basic information.
This a literally incredible comparison. According to Thiessen, there’s no difference between a law firm who chose to represent a terror suspect and the kind of attorney a mobster would choose to represent his interests. That’s outrageous.
— Tom_Meyer · Mar 9, 03:15 PM · #
Derek Smitthee,
Even now, I am doing reporting on the Gitmo three, and I am certainly not embarrassed by what I’ve written about it.
More to the point, you write, “You may think his arguments illogical or obfuscatory, but calling them that doesn’t make them so.” Well it isn’t as though I merely called them illogical and obfuscatory — I actually made or excerpted arguments backing up that assertion. Refute those arguments if you can. I won’t hold my breath.
Ted Frier,
Well put.
— Conor Friedersdorf · Mar 9, 03:41 PM · #
Conor,
I just don’t buy into your premise that Marc’s arguments are “handily rebutted” by the guy at “Slate” (and I come at this issue as someone who rejects waterboarding as torture):
1) saying that an Army manual suggests that soldiers resist telling their captors anything useful is equivalent to Islamic doctrine commanding the faithful to resist the infidel is just not credible — in the one case you have a secular institution trying to command loyalty in a difficult situation and in the other you have all might God telling you that your immortal soul is at risk if you don’t do the right thing. I would think that the Islamic radical has a distinct advantage over the average U.S. soldier.
2) treating a soldier humanely is the crux of the argument that is question begging here — if you don’t think waterboarding in all situation is torture, then you don’t think it is inhumane to use waterboarding in certain cases; for Marc the question is when and in what situations should waterboarding be used.
3) Is it really true that every “captured enemy has information of future plans or other valuable information about capabilities”? This is a slipperly slope argument that mixes apples and oranges — the obvious rejoinder is that we treat soldiers captured on a battlefield differently than terrorists captured who plan to kill civilians.
So while I know there are counter arguments to what I just wrote, I also know that Marc’s piece is hardly the egregiously flawed arguement you make it out to be. For some reason KSM and waterboarding really gets you going. I just don’t understand the outrage given the other moral horrors going on around the world right now. Which is why folks like commenter Seth are so deranged — your moral compass is out of whack when you start comparing what we did to KSM to what we did to slaves.
— Arminius · Mar 9, 03:50 PM · #
Conor,
You quoted a critique of his book, but as for the column in the Post you linked to, you haven’t even attempted to rebut his argument. You’ve called his piece illogical and obfuscatory. I reread your post- that’s the extent of your argument – that his position is so weakly reasoned that editors should be embarrassed to publish it. There are certainly valid arguments to be made, but you haven’t made them. Next time it might be wise to skip the self-righteous denigration of editors and attempt some substantive criticism.
And if you are reporting the Gitmo Three, how about an update like you promised over a month ago. Good for you that you’re not embarrassed, but your editor should be!
— Derek Smithee · Mar 9, 04:11 PM · #
Thiessen’s point is pretty simple: if you are going to criticize lawyers then you have to go all or nothing; criticizing one laywer but not another – who is just as much a lawyer as the first one – is simply unfair. The same goes for president’s I imagine.
— trizzlor · Mar 9, 05:08 PM · #
Thiessen just got eviscerated on the Daily Show. Stewart just tore through him like a wood chipper. Thiessen didn’t just look like a hysterical idiot, but a scared, whiny, coward.
Why is a comedian our country’s best interviewer?
— Patrick · Mar 10, 01:15 AM · #
I don’t read the Washington Post, since I don’t live anywhere near Washington. But I do live in a country governed under laws and concepts of individual freedom that evolved out of English Common Law, and therefore I think I see the fundamental flaw in the logic that equates criticism of Yoo, Addington, et. al. with the criticism of lawyers who acted for Guantanamo detainees. Our common legal framework rests on three assumptions: that the judicial process must uphold both the protections of individual rights and, as far as we can determine it, the truth, that the best procedure we have for doing that involves the competing presentation of facts about the case and facts about the law, and that a neutral party with known and safeguarded integrity can make a decision based on these competing presentations. Following from these premises, we can add a fourth: that since we cannot know the truth about the law or the facts in advance of the trial (the word trial has a similar meaning in both science and the law), each side must have adequate assistance to present its case as well as possible. The Nuremberg tribunal extended this common law right even to Nazis whose offences eclipsed the worst any member of al Qeada has ever done, because they rightly saw that the tribunal would have no moral force or effect without it.
It follows, therefore, that in order for courts based on English common law to work (that means American courts as well as most of the courts in the Commonwealth of Nations and some other countries), everyone, regardless of the allegations against them, must have the ability to present their case as well as possible. It further follows that attacking lawyers based on the clients they represent has the potential to damage, possibly seriously, the integrity of our courts. And in a democracy based on the rule of law, damage to the courts undermines the whole system.
This differs fundamentally from the allegations against Yoo, Addington, Libby et. al. In all of the claims made against Bush administration lawyers, I have yet to encounter a claim that simply working for one of the most unpopular, and arguably one of the least competent, administrations in US history by itself constituted any kind of offence. To the contrary, the American Foundation for Equal Rights has retained Theodore Olson, a former Bush Administration solicitor general, as co-counsel in their quest to overturn Proposition 8, thus putting considerable faith in his personal integrity. The core of the allegations against Yoo, Addington and Libby consists of the claim that they either committed crimes or else gave grossly wrong, harmful, and incompetent advice. Whether you agree with the substance of the claims against these individuals or not, the claims would remain the same whether they had worked for George Bush (II), Ronald Reagan, John Kennedy, or for that matter George Washington. The analogy between Yoo et. al. on one hand, and the lawyers who acted for defendants allegedly linked to al Qeada on the other, simply does not hold up in any sense whatever.
— John Spragge · Mar 10, 06:16 AM · #
John Spragge,
There are two problems with your analysis:
1. As for the Nuremberg trials, they happened after the war, not during, were not in the American Court system, and were against a uniformed enemy. Apples to Oranges.
2. As regards Yoo and the others, they were targeted for their legal analysis, which even if wrong, has never been a crime.
Beyond that, I think the point that is being missed is the potential conflict of interest. I think the tone of the ad was off, and arguably mccarthyite, but the request for transparency is entirely reasonable. I’ve yet to hear anyone convincingly argue otherwise. In the same way that one might be interested to know if an EPA official previously represented Exxon in the oil spill case. The real issue is not that these lawyers shouldn’t be able to work at the Justice Department, but that depending on the their prior work, they perhaps should not work on detainee issues. If they do, we should have full knowledge of their prior work.
— Derek Smithee · Mar 10, 09:22 AM · #
The reference to Nuremberg simply illustrates the breadth and importance of a defendant’s right to counsel. Even in a multi-national tribunal, the authorities responsible for the tribunal recognized that the credibility of the court depended on its fairness. The tribunal process proposed by the Bush Administration had many flaws, but it likewise never contemplated denying the accused access to counsel.
Regardless of what you may think of the allegations against Yoo et. al., they do not compare to the act of representing a distasteful defendant. I have no specific legal background, and I do not know if Yoo or the other widely criticized administration lawyers have violated any specific statutes.
As for the rest, I believe federal courts have rules governing when and how lawyers who have worked as defence attorneys can appear as prosecutors without compromising their integrity. Since I have seen no evidence that impugns the honour or integrity of the lawyers in question, I think we can rely on them to make a full disclosure of any conflicts or prior relationships in the cases they address.
In any case, I merely addressed Mr. Thiessen’s argument that the defence of lawyers who represented alleged al Qeada members involves a double standard unfair to Yoo et. al.; unless you have some other cogent argument to offer, I think I have thoroughly refuted that argument.
— John Spragge · Mar 10, 10:11 AM · #
Is it me, or does Thiessen bear more than a passing resemblance to Ubu Roi, the protagonist of Alfred Jarry’s landmark absurdist play?
http://upload.wikimedia.org/wikipedia/commons/c/c6/Ubu-Jarry.png
Patrick, small point: if Stewart was a wood chipper, shouldn’t Thiessen have torn through him?
— turnbuckle · Mar 10, 10:25 AM · #
So you haven’t seen any evidence that impugns the lawyers in question, so we should take them at their word. Fine – I don’t agree with that, but let’s go with it. There is no evidence that impugns Yoo’s honor/integrity, other than the fact that he reached a legal conclusion that some don’t like or agree with. Should we not take him at his word? That’s pretty much a classic case of a double standard.
Of course they’re not identical in every way, but the basic premise seems to be that on the one hand the lawyers are doing a good and necessary thing in representing detainees; on the other, Yoo’s work for the Bush administration was shameful, perhaps illegal?
Let’s boil it down even further: Yoo reached an unpopular (at least among this group) legal conclusion and he should be investigated for it. The justice department lawyers represented detainees, which was unpopular (at least among Thiessen’s group), and should not be investigated (in this case for the purpose of determining conflict of interest) and should in fact be applauded. Double standard.
— Derek Smithee · Mar 10, 03:19 PM · #
John Spragge,
I should add that while I don’t agree with you, these are the kind of critiques it would have been nice for Conor to make, rather than just trying to put Thiessen beyond debate and into the realm of embarrassment.
— Derek Smithee · Mar 10, 03:24 PM · #
@Derek: When your case reaches the point where you have to question the existence of objective fact and law, it may not pay to fight on. Laws exist. Facts exist. In light of known law and facts, an objective assessor can determine that a competent lawyer could not, in good faith, have reached a particular conclusion. Popularity has nothing to do with it, any more than people have to like scientific data or mathematical conclusions. The standards involved apply to everyone.
As for the representation of unpopular detainees, I don’t know how many of us have to say this and how often: popularity has nothing to do with the issue. A common law system of justice depends on the willingness and ability of lawyers to represent people accused of heinous conduct. Mr. Theissen and his friends may think their emotions should override the judicial sections of the United States constitution and twelve hundred years of jurisprudence; that still doesn’t justify their making accusations against lawyers without evidence they did anything but honourably perform a function our system requires.
— John Spragge · Mar 10, 07:03 PM · #
Spragge = exceedingly well reasoned contrast in professional obligations of Yoo/Bybee interpreting law to give their masters a pass versus attorneys defending established, vital legal process on behalf of sometimes unsavory defendants.
Smithee = crock cocktail of whatever sliding inventory of excuses casts his team in the best light.
Double standard? Sure.
— turnbuckle · Mar 10, 11:39 PM · #
This is more like a prosecuting attorney once having defended a murderer as a public defender. Nobody would consider that unusual or significant in any way, surely.
— Chet · Mar 10, 11:53 PM · #
As an afterthought: I think that when Marc Theissen started with his shtick about mob lawyers, Jon Stewart should have answered him, perfectly deadpan, if that wouldn’t depend on how many horses’ heads they’ve dumped in people’s beds. I’d like to bet that for 90% of people, as it does for me, the whole “mob lawyer” trope comes from books by John Grisham and Mario Puzo. I have no doubt that people likely to have trouble with the law keep lawyers on retainer, and I have no doubt that boutique firms exist which specialize in legal matters, such as RICO, of interest to organized crime. But I haven’t seen much in the way of non-fiction evidence for the idea that lawyers who defend organized criminals have much more unsavoury personal ethics than lawyers who specialize in suing 12 year old music downloaders for the RIAA.
— John Spragge · Mar 11, 12:07 AM · #
“In light of known law and facts, an objective assessor can determine that a competent lawyer could not, in good faith, have reached a particular conclusion.”
Wonderful, point me to the section of US code where it makes it illegal to reach a particular legal conclusion regarding interrogation. I’ll help you out – there is no law. As far as good faith, I’d say an objective assessor could conclude that he made he made the conclusion in good faith. Of course, that doesn’t make it fact, just as you suggesting the opposite doesn’t make it fact. What evidence is there that he didn’t act in good faith?
And if you want to talk about facts, there is nothing in the constitution that requires counsel for foreign detainees during conflict. I don’t come down on the side of no representation, by the way, but I think there are valid arguments on both sides that deserve to be made without impugning anyone’s integrity. In that sense, I think the KAS ad overstepped (and made a strategic mistake in taking the focus away from the conflict of interest point). But then again, Conor and others have overstepped in making this about Thiessen’s logic and even permissibility of his views in mainstream media.
— Derek Smithee · Mar 11, 10:08 AM · #
But the Constitution does require counsel (or at least the offer of it) for individuals on trial in US courts. I can’t see the moral reasoning that suggests that someone who is definitely a child rapist (for instance) deserves legal counsel paid for by taxpayers, but someone who might be a terrorist doesn’t. What you’re saying, and what Thissen is saying, is that if you’re a foreign citizen who kills a child for the sick, twisted pleasure of the act, you deserve the services of a free lawyer – but if you’re a foreign citizen who kills a child as the regrettable collateral damage of asymmetric opposition to occupation, you don’t. I can’t understand how that’s supposed to make any sense.
— Chet · Mar 11, 01:48 PM · #
Members of the office of legal counsel, like all lawyers, have a duty to exercise due diligence, and to give honest advice to their clients, in this case the United States Government and the President. Let’s look at the quality of the memos on interrogation in light of the relevant laws: USC 18 chapter 113C 2340-2340B, as well as Geneva Convention III part I, in particular articles 1 and 3(1), which contains the following restriction:
Both the US code and the Geneva Convention, as a ratified treaty, enjoy the status of law in the United States (see article 6 of the US Constitution). The prohibitions in statute and treaty do not include much in the way of wiggle room. If a lawyer advises a client that they can commit a particular act, or something very close to that act, where several statutes flatly prohibit the given act and one applicable statute (USC 18,113C.2340A) prescribes a maximum penalty of death, a reasonable assessor can potentially find negligence, incompetence, malfeasance, or all three on the part of that lawyer. An observer may, and in fact the current deputy attorney general did, conclude that any errors in Yoo’s opinion did not rise to a level punishable by disbarment or other professional sanction. But the actual record eliminates any question about the appropriateness of an investigation.
The sixth amendment to the United States Constitution explicitly provides a right to counsel in all criminal cases before American courts, and the Geneva Conventions require a competent tribunal to rule on the case of any detainee in time of war if their status as a convention prisoner of war comes into question. In any case, the issue here has nothing to do with the question of whether a detainee has a right to retain and instruct counsel. The tribunal process instituted by the Bush (II) administration included a right to counsel. The question here involved the question of whether or not the lawyers who acted for the detainees should face arbitrary sanctions years after the fact at the behest of a collection of individuals motivated by disappointment at their electoral defeat and with nothing but vague smears, a license for some ominous music, and a you-tube video.
In a democracy, anyone has the right to say whatever they want about public policy. But some arguments involve such contradictions, such bad premeses, such plain illogic that they do nothing more than waste public time. Furthermore, some bad arguments have serious consequences for the health of the body politic; consider the fugitive slave section of the US constitution, for example. In a healthy society, those ideas will face a vigorous refutation.
— John Spragge · Mar 11, 02:41 PM · #
Nice work guys!
this is just Amazing!
Thanks
— Supra TK Society · Mar 12, 04:20 AM · #