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Thiessen's misleading attack on due process

Adam Serwer is a staff writer with The American Prospect, where he writes his own blog.

Earlier this week, Washington Post columnist Marc Thiessen crowed about the difficulties the Justice Department is facing in its prosecution of alleged Tanzanian U.S. Embassy bomber Ahmed Khalfan Ghailani, after Judge Lawrence Kaplan excluded the testimony of a key witness because his identity was originally discerned through torture.

One might reasonably conclude that this shows one of the reasons why torturing people is a bad idea, but Thiessen argues that, "The Ghailani prosecution is hanging by a thread today not because of the interrogation techniques employed against him, but because of the Obama administration's ideological insistence on treating terrorists like common criminals and trying them in federal courts."

Thiessen is restating The Liquor Store Fallacy, the notion that military courts are better prepared to handle terrorism cases, while civilian courts are more suited to trying "someone who robbed a liquor store." In fact civilian federal prosecutors are far more experienced in such matters, while military prosecutors are actually the ones who are more used to prosecuting smaller scale crimes.

But the administration's "ideological insistence" is one that Thiessen's former boss presumably shared, since the Bush administration prosecuted hundreds of terrorism-related cases in civilian court, with an 88 percent conviction rate according to NYU's Center for Law and Security. Meanwhile, only four military commissions convictions have been secured since the system was created. It seems obvious why Thiessen's former boss more often used the civilian system as well -- it has a much better track record. As former CIA Director Michael Hayden recently noted, there's a "powerful continuity" between this president and the last one.

Thiessen's ultimate goal, though, isn't so much extolling the virtues of the military commissions system as defending torture. In doing so, he overstates Judge Kaplan's conclusions about the effectiveness of the Bush administration's torture program. Thiessen writes that Kaplan concluded that intelligence was obtained from Ghailani through so-called enhanced interrogation techniques while he was in CIA custody, and that "this valuable intelligence could not have been obtained except by putting Ghailani into the [CIA] program."

Except that's not actually what Kaplan wrote. He wrote that "the government had reason to believe this valuable intelligence could not have been obtained except by putting Ghailani into the [CIA] program." Kaplan doesn't draw the unilateral conclusion Thiessen wants him to draw, so he simply left out the qualifying phrase. In fact, it would be very odd for Judge Kaplan to draw a more definitive conclusion than CIA Inspector General John Helgerson, who after investigating the program, wrote in his 2004 report that "The effectiveness of particular interrogation techniques in eliciting information that might not otherwise have been obtained cannot be so easily measured." This is in character for Thiessen -- he previously tried to claim that waterboarding Khalid Sheik Mohammed prevented a terror plot that had unraveled a year before KSM was actually captured. Thiessen has also implausibly claimed waterboarding isn't torture, but he has yet to take up former SERE Instructor Malcolm Nance's offer to undergo the procedure himself.

Moreover, the argument against torture is not that it can never solicit useful information. It's that on the whole, it produces less reliable information than traditional interrogation, it hampers potential prosecution, it's a moral abomination and it's illegal. As Kaplan noted, while "no one denies the agency's purpose was to protect the United States from attack," the methods used "might give rise to civil or even criminal charges." Thiessen left that part out, too.

Thiessen's argument is that the witness's testimony might have been allowed in a military commission, where the rules of coerced evidence are more permissive. That's true -- a military commission judge recently allowed the confession of Gitmo detainee Omar Khadr despite the fact that he had been previously threatened with rape -- but it's hardly a forgone conclusion. Thiessen quotes Lt. Col. David Frakt saying, "because the Military Commission Rules of Evidence are more permissive regarding evidence derived from coerced evidence, I do think it is possible that the witness might have been allowed to testify in a military commission." I don't know how this bolsters Thiessen's argument. The regulations allow the judge to decide to admit something based on whether or not it's "in the interests of justice," but in either forum, civilian court or military commission, the admissibility of such evidence is up to the judge. Even during the Bush administration, when the rules governing admissibility of coerced evidence were even more permissive, convening authority Susan J. Crawford declined to bring charges against alleged 20th 9/11 hijacker Mohammed al-Qahtani because "His treatment met the legal definition of torture."

Meanwhile, the administration is already struggling in other cases because of evidence gleaned from coercive methods. The government is having a difficult time justifying the detention of Abdul Rahim Mohammed Uthman because two of the witnesses they're relying on were tortured. Worse, the government may need those same two witnesses to try by military commission the alleged perpetrator of the U.S.S. Cole bombing, Abd al-Rahim al-Nashiri, who was abused even beyond the "legalized" torture guidelines offered by the Bush-era Office of Legal Counsel. The administration recently postponed his prosecution.

Then there's the fact that military commissions tend to give out light sentences. Thiessen notes that if Ghailani were acquitted, the administration could continue to hold him as an enemy combatant. The sentence given to Osama bin Laden's former limo driver, Salim Hamdan, was so light that the Bush administration considered holding him as an enemy combatant after serving his alotted sentence.

Thiessen overstates his case for military commissions in other ways -- as Ben Wittes points out, he falsely suggests KSM could have been executed years ago, but it's not clear that military commissions allow the accused to plead guilty in capital crimes. The numbers speak for themselves -- out of the hundreds of terrorism cases tried in civilian court, the administration is struggling with the Ghailani case because he was tortured. But Thiessen's argument in favor of military commissions is revelatory in the sense that it reveals their true purpose -- to give the illusion of due process while actually stacking the case in the government's favor.

"The Ghailani conviction is in trouble because we didn't obtain the information in a way that's consistent with our laws," says Eric Montalvo, former marine and an attorney with Puckett and Faraj who has represented Gitmo detainees in military commissions cases. "What's the definition of justice? Is it getting a conviction? Or is it securing a process whereby the right result occurs?"

The reality is that the torture techniques employed by the Bush administration, not the law, are what's hampering Ghailani's prosecution. The case against Ghaliani is going forward, which suggests Thiessen's breathless characterization of the affair as a "catastrophe" is absurd. The "catastrophe" is that the process by which terrorists can be brought to justice has been jeopardized by the torturous interrogations Thiessen is so fond of.

UPDATE 11:54 a.m: Marcy Wheeler points out that in Judge Kaplan's latest ruling, he writes that the witness' testimony would likely have been excluded in a military commission proceeding as well. He writes that "statements obtained by torture or cruel, inhuman, or degrading treatment," and evidence derived threrefrom, and could require exclusion of Abebe's testimony. Even if they did not, the Constitution might do so, even in a military commission proceeding."

The Constitution, with all its rules and principles. What a silly document.

By Adam Serwer  | October 15, 2010; 11:03 AM ET
Categories:  Foreign policy and national security  
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Next: Dems' next challenge: Linking secret election cash to economy


"Why would I ever need to masturb@te, when I always have Sean Hannity in my pocket?" Christine O'Donnell.

Was their ever a better time for Craig Ferguson to have his robot sidekick contact Christine, and say:

"In Your Pants!!!"

Posted by: Liam-still | October 15, 2010 11:18 AM | Report abuse

"Washington Post columnist Marc Thiessen"

That this torture enthusiast was given a job at the Washington Post says everything one could want to know about the paper's decline.

Katherine Graham must be spinning in her grave.

Posted by: ifthethunderdontgetya | October 15, 2010 11:21 AM | Report abuse

Sorry. I posted on the wrong thread.

Posted by: Liam-still | October 15, 2010 11:22 AM | Report abuse

Good one, Adam. Thiessen is a dumb-ass turd whose claim to fame is working for the president who failed to stop the worst terrorist attack in American history. Some credential.

Posted by: wbgonne | October 15, 2010 11:22 AM | Report abuse

Good push-back Adam.

OT, go read this one at Benen's place:


Posted by: Ethan2010 | October 15, 2010 11:26 AM | Report abuse

I think Shep Smith had it right:

Posted by: PaciolisRevenge | October 15, 2010 11:30 AM | Report abuse

Great post, Adam. I imagine a lot of folks will link to that today.

And Ethan, thanks for the link. Johnson is a piece of work.

O/T, I think there will be some surprising poll numbers coming out starting next week. People are going to get serious about the nutjobs running on the GOP ticket and so the "generic race" model is going to go out the window.

Posted by: BGinCHI | October 15, 2010 11:35 AM | Report abuse

O/T, I think there will be some surprising poll numbers coming out starting next week. People are going to get serious about the nutjobs running on the GOP ticket and so the "generic race" model is going to go out the window.


I hope you are correct. Also too, by next week the Dems push on donor disclosure will start to be reflected in the polls.

Posted by: PaciolisRevenge | October 15, 2010 11:38 AM | Report abuse


Historically, black turnout for midterm elections has lagged behind the national average, but two new reports offer a bullish outlook for this year.

A major survey conducted by The Washington Post, the Henry J. Kaiser Family Foundation and Harvard University found that 80 percent of black Democrats are as interested or more interested in the midterms than they were in the 2008 presidential election, when their enthusiasm helped propel Barack Obama into office.

This year, 62 percent of all black Democrats say they're likely to encourage others to support certain candidates, according to the survey, compared with 47 percent of white Democrats and 57 percent of all Republicans.

Posted by: Ethan2010 | October 15, 2010 12:01 PM | Report abuse

Thiessen is correct.

There is little sense talking about this on a blog - but there is no problem with having two legal tracks.

This is WARTIME - we have intelligence demands. There is no reason to reveal ANYTHING about methods and operations in Court to anyone - lawyers and the accused who may leak information to the other side later.

This is a low-intensity war. But the issues are the same. If we had an open front and bullets were flying everyday - people would be able to see that military operations should be kept secret and that our own men could die if someone said something which might seem innocent.

I have no problem with an entirely different legal track for enemy combatants. There is NO REASON to believe that a track which MUST consider national security concerns not be separate from criminal legal tracks.

It's simple.

In a way, having two or three legal tracks PROTECTS criminals in the domestic tracks. As a nation, we really do NOT want PRECEDENTS set which may later be applied to normal domestic criminal cases. Each track is separate.

We already see this - ordinary disputes in the US have already seen the word "terroristic" attached to them. Someone got upset - that is normal emotions - that is not "terroristic"

There is actually that DANGER if we move toward one system.

This is Obama's EGO getting in the way of sound policy again. At some point the liberals wanted to say that Bush was doing something else wrong - so they focused on the handling of enemy combatents and the court system. They were just wrong - and it is the man with character who recognized that he was wrong.


Actually I would support a strong approach than Bush and Cheney took on this issue. Bush did have domestic prosecutions - much more than people realize -

So just because Bush did something means that I agree with it.

People do not realize that in an effort to knock out potential sleeper cells, Bush rounded up over 400 people in the US - (domestic criminal prosecutions) and those people are still in jail - the problems are going to emerge when they have to come out of jail - where are they going to go?


Posted by: SaveTheRainforest | October 15, 2010 12:01 PM | Report abuse

The Troll Patrol arrives signaling the time for me to go. O & O.

Posted by: suekzoo1 | October 15, 2010 12:08 PM | Report abuse


There is one problem with your comment - the blacks are not where you want them

For the most part, blacks got gerrymandered out of the equation for the House.

So it is just the Senate and Governors' races in which an increase in black turn-out will matter. And the combination of States this year - that makes the whole effect less than you think.


This nation is going to have to get off the idea that blacks vote (and therefore think) one way because of the color of their skin. That is not post-racial.

It is racist -

Ethan I have to point out that the basis of your comment is RACIST - the whole idea behind what you are saying is just because of the COLOR of someone's skin they will vote one way - THAT IS JUST LIKE SAYING THEIR OPINIONS ARE DETERMINED BY THE COLOR OF THEIR SKIN.


Posted by: SaveTheRainforest | October 15, 2010 12:18 PM | Report abuse

I suppose the author has to read what Marc Thiessen writes. I stopped a long tome ago. Thiessen, along with Yoo, Addingdon, and a number of others, is our version of Himmler. They are people who enabled torture. Now they have a vested interest in justifying it.

They, and ALL they reported to, should, under the Constitution, be prosecuted.

Posted by: AMviennaVA | October 15, 2010 12:27 PM | Report abuse

Obama fails to realize that his policy may actually BACKFIRE for the criminal protections which he is holding so high.

If a Court starts to carve out exceptions to the Bill of Rights protections to apply to these cases - then it is logical to believe that AT some point in the future, wily lawyers will try to APPLY those exceptions to regular domestic criminal protections.

So - Obama is risking going BACKWARDS on domestic criminal rights.

Obama's EGO keeps on getting in the way of CLEAR THINKING.

The EGO is the problem here - Gitmo - Afghanistan - all these things Obama is refusing to mature -- or maybe Obama's opinions on these things are slowly maturing.

This is NOT THE TIME OR THE OFFICE for on-the-job training.

This nation would be FAR better off if Obama would resign.


Posted by: SaveTheRainforest | October 15, 2010 12:31 PM | Report abuse

OT, more on the African-American vote:

* To avoid GOP romp, Democrats must get out black vote *

The study identifies 20 competitive House contests — 15 of them in the South — in districts with African-American voting populations of 10 percent or more. They include three districts in Virginia, three in Ohio, two in Louisiana and two in Arkansas.

"If Democrats retain half of these seats, it would be difficult for the GOP to gain the 40 seats necessary to regain the majority in the U.S. House," the report says. "Further, there are two GOP-held seats where black voters are a substantial bloc, and every Democratic pickup will make the GOP's goal of 40 more difficult to attain."

Posted by: Ethan2010 | October 15, 2010 12:34 PM | Report abuse

"* To avoid GOP romp, Democrats must get out black vote *"

So Dems not only have to get out the vote, but they are also going to have to be swarming all over the polling stations, because the GOP will have their voter suppression goons out in full force.

Posted by: filmnoia | October 15, 2010 12:40 PM | Report abuse


There are 15 black Republicans running for Congress this year.

Vote for them.


Posted by: SaveTheRainforest | October 15, 2010 12:41 PM | Report abuse


Are they going to pass another extension on the unemployment benefits?

All the democrats want to slam people based on tax brackets.

However, I haven't heard a peep from the democrats on the unemployment benefits. I really do not care about tax brackets - those are the people WITH jobs - I care about the people WITHOUT jobs.

That is what is wrong with the democrats.

ALL the stimulus money could have gone to creating 25 MILLION JOBS - there is ONLY 15 MILLION unemployed people - that is the level of incompetence of the Obama people.


Posted by: SaveTheRainforest | October 15, 2010 12:49 PM | Report abuse

Doesn't this blog have a moderator?

Good grief.

Posted by: PaciolisRevenge | October 15, 2010 12:51 PM | Report abuse

I will stand by my reasoning before that having two or three legal tracks - one for domestic, military and one for enemy combatants actually PROTECTS DUE PROCESS.

Because if you merge the tracks, exceptions WILL be carved out - and PRECEDENTS will be set which WILL end up being applied in domestic criminal cases.

So, having two or three tracks PROTECTS DUE PROCESS.

I know that nuance may be difficult for some liberals to handle.....

I know that many of the bloggers here have just experienced their heads EXPLODING...


Posted by: SaveTheRainforest | October 15, 2010 12:57 PM | Report abuse

Yes, SaveTheRainforest is a troll.

Still, his comments should be addressed.

I can't imagine anyone would argue with his suggestion that it is racist to think that blacks vote in a particular way simply because they are black.

But his claim that it is racist to examine poll data that looks at trends according to race is ridiculous.

My guess is that he attacked Ethan2010's post because he found the data threatening.

Posted by: mmyotis | October 15, 2010 12:58 PM | Report abuse


* Obama Performing Well Relative to Congress' Low Ratings *

Obama's 26-point average lead in approval is high versus past presidents' margins

Posted by: Ethan2010 | October 15, 2010 1:01 PM | Report abuse

All, new post on what has to happen for the Dem strategy of attacking the secret cash to work:

Posted by: Greg Sargent | October 15, 2010 1:01 PM | Report abuse


Please stop your hostile comments

You have had about 15 comments sent into the editors already.

Your hostility is inappropriate. Please stick to commenting on the topics - and not the other posters.

Posted by: SaveTheRainforest | October 15, 2010 1:11 PM | Report abuse

There is a fundamental flaw in Mr Serwer's essay. He discusses "torture". Waterboarding isn't "torture".

The left would dearly love it to be. But it isn't. the left's problem is that waterboarding works and is on the other side of the line that defines "torture".

so to make his position work, Mr Serwer must redefine the term to suit his definition. sorry, that won't work.

there is much debate about the propriety of having this trial in civilian court. given the choice between the thinking of Andy McCarthy and the hackneyed misleading Mr Serwer, I'll take the former and not the latter.

Posted by: skipsailing28 | October 15, 2010 1:33 PM | Report abuse

Thiessen and Ron Kristi have come out publicly as two of the most partisan hacks around. They seem to be the chimpy/cheeeney butt-boys-in-charge of trying, in vain, of cleaning chimpy and darth of all responsibility of being WAR CRIMINALS. It seems they're coping skills have actually gotten worse over the last couple of years and now they just sound like hacks-with-megaphones...

The batteries are getting low...

Posted by: rbaldwin2 | October 15, 2010 1:45 PM | Report abuse

Here is Andy McCarthy, essentially supporting STRF's position about multiple legal tracks:
"Contrary to the contentions of Obama partisans, Bush counterterrorism was not about removing civilian prosecution from the equation. If anything, national-security conservatives want more civilian prosecutions. We want stepped-up use of statutes, such as material support to terrorism, that enable the government to starve terrorist cells of funding and strangle plots in the cradle. We want aggressive investigation and prosecution of so-called home-grown terrorists who are inspired by Islamist ideology but without operational ties to al-Qaeda and its affiliates. We want the government to stop canoodling with the Muslim Brotherhood’s American satellites."

Sooo, use the civilian system for domestic issues, such as Sami Al Arian's support for terrorists organizations or the recent Holy Land Foundation trial. Please note, many prominent muslim organizations were named as unindicted co conspirators in that case among them none other that CAIR itself.

But in Mr McCarthy's view we should use the military system for a specific class of terrorists:

"For one category of offender, we have urged the use of military tribunals: alien enemy combatants. Very specifically, these are jihadists, plotting and carrying out attacks against Americans, as members of the al-Qaeda enemy identified by Congress in its authorization of military force. Controlling such enemy prisoners is a core aspect of war-fighting. Military tribunals have the dual benefit of keeping control of this task where it belongs — in the hands of commanders, not judges — while ensuring that our enemies are not able to exploit civilian due process as a tool of warfare."

What I find so amazing about liberals today is their worship of FDR. It forces them to ignore several decisions he made. Among them was the Quirin case which featured the prompt "trial" and execution of Nazis caught on American soil.

Posted by: skipsailing28 | October 15, 2010 1:51 PM | Report abuse

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