Marc Thiessen's enduring affection for torture
Last week, I wrote that many of those writing in support of the military commissions in the aftermath of the Ahmed Ghailani verdict, like Marc Thiessen, were actually just writing in support of torture. Then Thiessen obliged me by proving my point, spending a few sentences defending the military commissions and a few hundred words defending the Bush administration's "enhanced interrogation program."
This is because a defense of the military commissions is very hard to make. In their entire history, only five convictions have been secured through military commissions, most through plea agreement, while civilian courts convicted hundreds throughout the same period. They've yielded light sentences, except in one case where the accused simply boycotted the trial. Even with the rules tilted towards the government, they have proven to be ineffective. They're expensive and more vulnerable to overturn on appeal than convictions in civilian court. Conservatives support them not because of their efficacy, but because they sound tough. Thiessen of course, is a perfect example of this. The Obama administration's hybrid approach to trying terrorists is, sadly, almost indistinguishable from that of Obama's predecessor and Thiessen's former boss.
Thiessen addresses none of the military commissions' glaring flaws, instead merely hiding behind the words of former Attorney General Michael Mukasey, whom I noted has become much more partisan since leaving government service. Mukasey stated, "There is no question that valuable information was gotten from him that led to evidence that could have been used against him in a military commission."
This is just factually inaccurate. Even Thiessen implicitly admits that it's factually inaccurate, because in his conclusion he states that "there is no consensus that a military commission would have rejected the same evidence that was excluded in Ahmed Ghailani's civilian trial." In other words, there is question, and Thiessen himself admits Mukasey is overstating by suggesting otherwise.
Thiessen then offers this weak rhetorical defense of Mukasey:
So those who agree with civilian trials are "legal experts" but those who disagree are "partisan figures"?
I offered a pretty clear reason for this characterization in my initial post: Mukasey is now a partisan figure because he's taken to writing op-eds attacking the president that directly contradict rulings he made as a federal judge, and, in this case, making pronouncements so strident Thiessen himself has to qualify them. Thiessen didn't respond to the former point because, well, he doesn't have a response.
David Frakt, Thiessen's other source, is a former military commissions defense attorney who represented an Afghan teenager who had been subjected to the "Frequent Flier" sleep deprivation program. Obviously, Frakt has some hands-on-experience dealing with such matters.
The problem is Thiessen, as he is wont to do, overstates the conclusions of his source. After Thiessen's original op-ed weeks ago, I emailed Frakt myself to find out if Thiessen had accurately represented his views. Frakt told me:
[Thiessen] overstates things when he says that it would be practically certain that the evidence would be admitted in a commission, but I like the fact that Thiessen finally admits what I, and others, have been saying all along -- the neocons want to use military commissions precisely because they believe they can get convictions in military commissions using coerced evidence that they know would not be admissible elsewhere.
"Believe" is the key point. Because while people like Thiessen and Mukasey have continued to portray the admission of such evidence as a near or virtual certainty, in fact the evidence in this case weighs in the opposite direction. They want to believe the evidence would be admissible because they want to minimize the damage done by the Bush administration's policy of torturing terror suspects, making it harder to bring the guilty to justice. The purpose of those military commissions regulations is to account for the "inherently coercive" nature of battlefield captures, not allow evidence gleaned from torturing someone in a secret prison for years.
Which brings me to another point -- Thiessen's overstated defense of torture. Thiessen writes:
Not only did Judge Kaplan unequivocally conclude that Ghailani's CIA interrogation produced valuable intelligence, but he did so based on the arguments of the Obama Justice Department, which attested to the effectiveness of Ghailani's interrogation in a detailed brief to the court.
Notice this rhetorical sleight of hand. I never said that the CIA never got valuable information from Ghailani by torturing him, nor did I say Judge Kaplan said that. What I said was that Thiessen mislead by omitting Kaplan's qualifying statement in Thiessen's original op-ed, in which Thiessen quoted Kaplan saying, "this valuable intelligence could not have been obtained except by putting Ghailani into the [CIA] program." What Kaplan actually wrote was "the government had reason to believe this valuable intelligence could not have been obtained except by putting Ghailani into the [CIA] program." It's pathetic that Thiessen seems to think that omitting that qualifying statement isn't a mischaracterization of what Kaplan wrote.
Thiessen goes on to excerpt the Obama Justice Department's legal filings, which don't defend the CIA's interrogation methods, but rather Ghailani's treatment as an intelligence asset in the context of arguing that his right to a speedy trial was not violated. They don't comment at all on the effectiveness of those methods, but on whether or not the CIA was justified in detaining him for the purposes of interrogation.
Thiessen then quotes Kaplan's response, agreeing that Ghailani's right to a speedy trial was not violated, ignores Kaplan's qualifier that "the government had reason to believe" the new methods were necessary, and then triumphantly writes "case closed," as though he's just proved that his point. Instead of bludgeoning Post readers with non-sequitor block quotes, next time Thiessen should just post a few animated GIFs of Chewbacca the Wookie.
As I said initially, it would be odd for Judge Kaplan or Obama administration lawyers to come to a more definitive conclusion about the effectiveness of such methods than the CIA inspector general did in 2004, when he wrote that "The effectiveness of particular interrogation techniques in eliciting information that might not otherwise have been obtained cannot be so easily measured." That's the point. Thiessen wants to restrict the argument to whether or not information was obtained, rather than whether the use of illegal, immoral interrogation methods that ultimately make the prosecution of terrorists more difficult were absolutely necessary to obtain it. Thiessen can't say for certain that they were, but he does because he feels that's the best way to justify their use.
As for his defense of the military commissions, one of Thiessen's legal sources has shown his willingness to contradict his own rulings when attacking the other party. The other says Thiessen overstated what he told him. Meanwhile, the former chief prosecutor of the military commissions, a former Bush-era assistant attorney general and the judge in the case himself say that that it's likely the testimony would have been disallowed.
In all honesty, the fact that we are even arguing whether or not evidence gleaned from the use of torture techniques originally meant to elicit false confessions should be admissible in court seems utterly surreal. Thiessen's ongoing, peculiar fascination with torture has lead him to believe having a court system that would allow such statements would be a virtue rather than an utter disgrace to everything the United States is meant to stand for.
| November 29, 2010; 12:17 PM ET
Categories: Foreign policy and national security
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