Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
I'm sure it won't shock anyone to find out that Ellis Washington is also a fan of Liz Cheney and her vile campaign to portray attorneys who defended Gitmo detainees as terrorist-loving traitors. Bizarrely, he seems to think that the key thing that needs to be determined is why an attorney defended detainees:
The central question regarding the al-Qaida 7 is not whether it is permissible or even expedient for DOJ lawyers to represent the obviously guilty, because under our system of laws, criminals are entitled to counsel, but why did they do it? If they were motivated by empathy for the terrorists, then Liz Cheney is right for stating this fact. However, if they are strict constitutionalists and desire protection of our constitutional principles and were motivated by legal principle, then Cheney is wrong.
And how, pray tell, would one go about determining their motivation? I'm sure that Washington would argue that if an attorney is a liberal or is associated with the ACLU, that alone is proof that they are terrorist sympathizers. Hell, he even declares that the former Republican DOJ officials who are defending those attorneys hate America and what he imagines it stands for:
In response to Liz Cheney's attacks against the al-Qaida 7 earlier this week, a group of 19 former top officials of the Bush Justice Department signed a declaration defending DOJ policy, including: Larry Thompson (deputy attorney general, Bush-43), Peter Keisler (acting attorney general, Bush-41), Matthew Waxman, Charles "Cully" Stimson (deputy assistant secretary of defense, Bush-43), Brandford Berenson and Daniel Dell'Orto (White House counsel, Bush-41).Other DOJ sympathizers included John Bellinger III, a former legal adviser to Secretary of State Condoleezza Rice and currently a partner at the law firm of Arnold and Porter, who said regarding Liz Cheney's criticism of DOJ: "We've had a long-standing tradition in our country for lawyers to represent unpopular causes, and they shouldn't be attacked for doing so." Ken Starr, current dean of Pepperdine Law School, former solicitor general and special prosecutor during the infamous Clinton-Lewinsky sexual harassment scandal of the 1990s, said: "You do not impute the causes of the client to the lawyer who is called upon to make sure that that client's rights are being protected."
Really, Dean Starr? Where is that idea found in the Constitution?
Their GOP credentials notwithstanding, it appears that these lawyers, who I'll call "the DOJ 19" all signed that document defending Holder and seem to hold a biased view against America's original intent of the constitutional framers founded in natural-law jurisprudence. Instead these careerists are zealously defending existential DOJ bureaucracy, centralized big government and the rights of the guilty above the rights of the innocent.
Yes, this would be the proper place to shake your head with your jaw agape at the staggering stupidity of his argument. Those same founding fathers, mind you, were the ones who wrote the Bill of Rights -- which includes all those silly notions that he is rejecting, like the right to an attorney and guarantees of due process.
In the bizarro world in which Washington lives, the founding fathers built in all of those protections for due process as the very essence of justice, but any attorney who actually argues in favor of due process for these particular men is somehow being un-American and rejecting "original intent." I think we're well beyond the merely idiotic here; we're into weapons grade crazy.
And by the way, when Washington talks about those who "represent the obviously guilty" he is ignoring a good deal of reality. He ignores the fact that no fewer than five highly decorated military officers, members of the JAG corps assigned to the Gitmo tribunals -- not as defense attorneys but as prosecutors -- resigned from their positions in protest of the manifest injustice of the proceedings there and all of them said that there were many innocent men being held there.
He ignores the fact that of the Gitmo detainees given habeas corpus hearings in civilian federal courts, 75% of them have been found innocent and ordered to be released. Oh I know, he'll point to a small number of detainees that later "returned to the battlefield" -- but keep in mind that every one of them so far was released by the Bush administration without a trial, which means without an objective means of determining guilt or innocence.
Washington even declares Eric Holder a "terrorist sympathizer" and make a monumentally stupid argument about the attorneys he is attacking:
The DOJ 19 defend terrorist-sympathizer Eric Holder and the al-Qaida 7, who have time to do pro bono work for Muslim terrorists - but how much time have they given to defend vilified American heroes like: Michael McCabe, Julio Huertas and Jonathan Keefe who caught Ahmed Hashim Abed, plotter of the murder of four Blackwater USA security guards in Fallujah, Iraq, in 2004? The bodies of the four Americans were burned and hanged from a bridge while Iraqis cheered on in jubilation.
This is the same type of argument made by the STACLU folks -- they found the time to defend someone I don't like, but why haven't they defended someone I like? The reasons why this argument is ridiculous are many. Let's start with the fact that those three men already have attorneys. And there is no reason why someone who defended one person in one context is required to defend another. This is such an intellectually dishonest argument.
But wait. It actually gets worse:
The Liz Cheney controversy brings up deeper constitutional issues of natural law, original intent and the personal guarantees the constitutional framers codified in the Constitution and the Bill of Rights.
Why yes, it does. It does bring up deeper issues about those constitutional rights that you seem so zealous to deny to anyone you don't like. You're just too much of a zealot to recognize the obvious hypocrisy in your argument.
For too long society has given self-aggrandizing lawyers and the American Bar Association the moral high ground to represent irredeemable characters of the vilest ilk in the name of the Constitution, but these new traditions, like the Sixth Amendment's guarantee of an attorney, did not include the right for "We the People" to provide an attorney for these unrepentant terrorists at taxpayers expense until 1963.Gideon v. Wainwright (1963) is a landmark case in United States Supreme Court history. In this case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys. Allowing a defendant an attorney and paying for a defendant to have an attorney are two very different philosophies of jurisprudence.
Wow. Just think for a moment about this argument. First of all, the constitution does not say that individuals are "allowed" to have an attorney, it says they have an unalienable right to have one. It says that because having an attorney is the only way a defendant can be guaranteed of due process, which is the essence of justice.
Do I really have to explain that the whole point of these protections is to achieve justice, meaning that they are designed to provide the most objective means of distinguishing the guilty from the innocent so that the guilty are punished but the innocent are not? Apparently I do, at least to fevered authoritarians like Washington. That's why you hold trials and have an adversarial process, because it is the best means of discerning guilt from innocence.
Now, imagine for a moment that we premised our constitutional rights on the ability to afford them. Could the government charge defendants to hold a trial and deny a trial to those who can't afford the fee? According to Washington's "logic" it certainly could. That is exactly what he is arguing when it comes to the right to an attorney. Just as taxpayers are required to pay for the court system and we do not charge those seeking justice in the courts for the right to access those courts, the same is true of the right to an attorney, which is a crucial part of the process of justice.
To deny someone access to an attorney because they can't afford one is to pervert the process of justice and guarantee that innocent people will be railroaded and imprisoned, or even put to death. Washington, of course, does not care, just as he does not care about the the legal presumption of innocence in the first place:
The Obama administration is seemingly hell-bent on "fundamentally transforming America" as the president has stated on many occasions. One way to achieve his socialist revolution is by deconstructing all of America's fundamental institutions. Giving constitutional rights to avowed Muslim terrorists is merely a means to Obama's diabolical ends to purposely destabilize American society, thus setting the pretext to eventually create a one-party oligarchy.
Ellis. You fucking moron. The whole point of giving constitutional rights to ANY accused criminal, whether Muslim or terrorist or Christian and car thief, is so that we can discern between those who actually ARE criminals and those who aren't. That is the entire purpose of the Bill of the 4th, 5th, 6th, and 7th amendments to the Constitution - you know, the one written by those founding fathers that you pretend to revere while shitting all over the important principles they laid down in that document.
Give 'em hell, Liz Cheney! For the real conservatives out here realize that you are defending the ideals of the Founding Fathers, our liberties and America, the country we all love.
Seriously, how do you parody this? The man is invoking the ideals of the founding fathers and liberty while simultaneously arguing that anyone who actually applies those ideals is a terrorist-loving traitor. If you made this idiot up as a character in a novel, it would seem too far fetched.
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Comments
Can't wait for you to dissect his killer whale story!
Posted by: Röstigraben | March 16, 2010 9:24 AM
Ellis Washington: anti-Constitution, anti-Bill of Rights, anti-American.
Posted by: SteveWW | March 16, 2010 9:25 AM
No analogies work, we are in new territory of delusional idiotic zealotry. What's even more striking is that some people will actually consider his argument, and even worse, accept it. How does the spoon find the mouth?
And I'm not merely referring to Mr. Washington's argument, but Ms. Cheney's as well.
To me the interesting question regarding this form of advocacy is whether they realize they are effectively arguing against the Constitution while simultaneously and falsely claiming they distinguish themselves in defense of the Constitution. That is a primary question of our time considering populist conservative arguments related to constitutional matters. And of course this pattern of argument has been with us since the Constitution was ratified. What I find new here is the degree of idiocy which goes far beyond any conceivable and arguable position.
I wish we had far more research on the mental processes being exercised when encountering these sorts of so-called arguments and that research was widely disseminated.
Posted by: Michael Heath | March 16, 2010 9:28 AM
You know, the conservatives seem to be very strange people. Empathy is bad – not only for judges, but also attourneys –, and (social) justice is bad, too.
Posted by: Patrick | March 16, 2010 9:31 AM
The ability to form an argument, state that argument and defend the argument was something I first learned in 9th grade English class. I was okay at it but never quick enough on my feet to counter a complicated argument thrown at me.
Ed, with years of debate training, and Michael Heath with who knows what influence, do that exceedingly well here and I credit my increased ability to debate more effectively today as a result of reading their posts and the posts of others here. Part of my slowly increasing ability has to do with my passion for the subjects coupled with a rich information pool presented.
What Ellis Washington does is akin to word salad, call it argument salad. I can see him making a list of the points he wants to cover, but rather than organizing them into a coherent form, he just pees them out onto the page/keyboard. How else do you say our constitution is great but then propose ignoring it's protections?
Liz Cheney is a vile toddler looking to win daddy's favor. She calculates how best to do that and plows through. Washington has time to work through the inconsistencies, read other commentary and come to a reasonable conclusion. Only he doesn't. I hope Farah is paying him enough to live with his shame.
Posted by: MikeMa | March 16, 2010 10:19 AM
You're missing the important part, our Christian founding fathers would have never wanted the bill of rights to apply to Muslims. It clearly says so in the constitution!
Posted by: Mu | March 16, 2010 10:21 AM
I am a couple weeks behind on my Daily Shows, and I just watched the episode last night where Jon first talked about the Liz Cheney thing, and had the guy on the wrote the book about how scary Obama is because he's interfering with the CIA and their torture.
Many of the arguments (such as they are) seem similar. I'm guessing they have a few talking points they just repeat. They really make any kind of principled argument. When confronted with the facts (like Bush let 500 'terror detainees' go) they now, after the fact, throw Bush under the proverbial bus, but they were in full support of those policies at the time.
Posted by: FastLane | March 16, 2010 10:24 AM
Washington's use of the phrase "DoJ sympathizers" shows an amazing degree of partisan-based contempt for DoJ's mission and priorities. Which is to say, an amazing degree of partisan-based contempt for US law and law-enforcement.
Posted by: Raging Bee | March 16, 2010 10:26 AM
Give 'em hell, Ed. The only thing I hope for is that the day comes when popular culture looks back on this kind of garbage and says, "never again." I just wonder how bad things will have to get before this tissue-thin pretense of ultra-right wing logic becomes too embarrassing even for people like Washington and Cheney.
Michael Heath, it isn't really difficult to understand how the reasoning goes. We're all capable of it. You start by imagining yourself as the protector of an *unquestionably* sacred truth, and you get all of your sense of self from that image. IF you have faith and believe the sacredness is unquestionable, then you must interpret everything that happens as proof that you're right. To do otherwise would be to doubt, which is in and of itself evil.
From there, it's just a contest to see who has enough faith to keep believing and growing more strident, even in the face of what looks, to the weak, like contrary evidence.
Posted by: Charlie, Skepticism Examiner | March 16, 2010 10:30 AM
Give 'em hell, Ed. The only thing I hope for is that the day comes when popular culture looks back on this kind of garbage and says, "never again." I just wonder how bad things will have to get before this tissue-thin pretense of ultra-right wing logic becomes too embarrassing even for people like Washington and Cheney.
I'd say, "Give 'em hell, Ed, so we can use the same arguments to give 'em some more hell."
Posted by: gwangung | March 16, 2010 10:43 AM
I look at what is going on around me right now (viz the fallout from the George W Bush presidency) and wonder how this will be consigned to the history books that our future progeny will study.
There is only so much that can fit into a textbook, and one wonders how much attention will be paid to the presidency of George W. Bush. It is not really doubtful that Reagan will have a historical short-hand legacy of winning a war that wasn't fought, and Obama will have the short-hand legacy of being the first non-White president.
However, will Bush be given a bad legacy or just become one of the many presidents that we learn from a list but don't really learn much about (unless we take a university course or actually go out and do our own research)? I don't remember learning about any vilified former presidents, and although I'm sure they existed - Hoover wasn't too popular when he left office, for example - they seem (to me) to be merely glossed over, instead of set up for vilification.
Whenever I see Liz Cheney talking - or see references to something else she said - it makes me wonder what is going on, not just in what she's espousing, but also in what history will remember.
Posted by: Umlud | March 16, 2010 11:05 AM
You missed the key phrase that explains the whole thing: "obviously guilty."
Ellis Washington doesn't think we need a fair trial to determine the innocence or guilt of any "avowed Muslim terrorists." They're "obviously guilty." Hey, Ellis! Try using that as your closing argument!
"Your Honor... the defendant is obviously guilty. I mean look at him. He talks like a fag and his shit's all retarded!"
"Yeah, and he interrupted me while I was watching Ow, My Balls!!"
Posted by: FishyFred | March 16, 2010 11:24 AM
Wow, just wow. In Washington's world defendants would first be tried in the court of public opinion. If they seem innocent and have enough money then they can have access to an attorney. If they can't afford an attorney, or they are deemed "definitely guilty" by some authority (Washington himself I guess) then fuck 'em. These people really need to think through their ideas.
Posted by: penn | March 16, 2010 11:30 AM
I don't think the word "existential" means what Washington thinks it means. Ellis, here's a hint: It is not a synonym for "existing" but has its own meaning. Sorry.
Posted by: Joshua Zelinsky | March 16, 2010 11:31 AM
He's a fascist, plain and simple.
Posted by: James Hanley | March 16, 2010 12:06 PM
I can't imagine what goes on in your brain,
your arguments are beyond insane,
You must be nuts,
What a putz,
Goodness gracious, great balls of fail!
Posted by: DaveL | March 16, 2010 12:09 PM
Umlad @ 11 - I think the primary failure of the Bush legacy that currently goes ignored but won't a century from now was his avoidance of dealing with global warming coupled to energy policies that stymied subsequent political leaders from changing policy - particularly his setting a context that allowed denialism to flourish.
This is a standard by which the current President and the Democratic party will also be judged. Clinton may escape such harsh judgments though I think that will be somewhat undeserved.
I also wonder how the Republicans will backfill the story on how fierce their denialism was as global warming was actually happening. That will be an interesting development I also think will be a story told in history classes a century from now. Esquire magazine claimed in their last print edition that only 17% of the GOP leaders they queried anonymously accept global warming as a scientific fact, the rest don't believe it's even occurring, let alone that it's primarily human-caused.
Posted by: Michael Heath | March 16, 2010 12:10 PM
The second sentence annoys the crap out of me. It's a four page document! Lots of crap isn't in there, there isn't the space. Where in the quoted text did Starr even mention the Constitution? How is that a response? What is it a response to? I just don't understand what it's doing there.
The second paragraph is included because I didn't realize Sartre worked at the DOJ.
Posted by: snurp | March 16, 2010 12:25 PM
"Kill 'em all. Let God sort 'em out."
I saw that on a t-shirt, so I'm pretty sure it's in the Constitution somewhere.
Posted by: Scott Hanley | March 16, 2010 12:42 PM
"Ken Starr, current dean of Pepperdine Law School, former solicitor general and special prosecutor during the infamous Clinton-Lewinsky sexual harassment scandal of the 1990s, said: "You do not impute the causes of the client to the lawyer who is called upon to make sure that that client's rights are being protected."
Really, Dean Starr? Where is that idea found in the Constitution? "
Uh....what?
Posted by: steve s | March 16, 2010 12:50 PM
You missed my favorite part of that post: "...Sen. Joe McCarthy, one of the greatest American heroes of the 20th century. "
Posted by: MHR | March 16, 2010 12:53 PM
Charlie at 9 asked:
I don't think it'll have to get that bad. Instead I think what will have to happen is that people's backsides will have to stop reflexively tightening in fear whenever some politician says the words "9/11".
Posted by: Jeremy Shaffer | March 16, 2010 1:07 PM
One more tiny speck of fail: Isn't a one-person oligarchy technically a monarchy?
Posted by: twincats | March 16, 2010 1:11 PM
"Your Honor... the defendant is obviously guilty. I mean look at him. He talks like a fag and his shit's all retarded!"
LOL.
"I object!"
"There's that fag talk we talked about...."
Posted by: steve s | March 16, 2010 1:13 PM
Patrick "You know, the conservatives seem to be very strange people. Empathy is bad – not only for judges, but also attourneys –, and (social) justice is bad, too."
No. Empathy is good, but it only applies to the in-group. Think "tribal", where they're Hutu and everybody else is Tootsie, which was a great movie but a terrible tribe. That can't be right...
Umlud "I look at what is going on around me right now (viz the fallout from the George W Bush presidency) and wonder how this will be consigned to the history books that our future progeny will study."
It depends. Are you in Texas?
Scott Hanley "'Kill 'em all. Let God sort 'em out.' I saw that on a t-shirt, so I'm pretty sure it's in the Constitution somewhere."
"Caedite eos. Novit enim Dominus qui sunt eius." It used to be the national motto, but they changed it because it was in some weird foreign language. When they went to change it, they couldn't find the Ferrin'-to-'Merkin dictionary and, for a time, had to substitute the motto with a "Have a nice day" happy face with a bullet hole in the forehead.
MHR "You missed my favorite part of that post: '...Sen. Joe McCarthy, one of the greatest American heroes of the 20th century.'"
But he was! This is because "randomly accusing people, destroying their careers and pressuring them to destroy the lives of others" is exactly the same as "finding actual spies for the Kremlin". The same works in this post-9/11 world, where "going to Afghanistan and grabbing people off their farm based on an accusation from their neighbour (who is looking to expand his farm)" is exactly the same as "catching terrorists".
Posted by: Modusoperandi | March 16, 2010 2:32 PM
That depends on who writes the standards. ;o)
Truly, it depends on the outcome of the issues. Dubya has been involved in numerous issues where his decisions and non-decisions may play dramatic roles in our future. As Michael Heath pointed out, climate change could be a huge part of future history. If it turns out to be even half as bad as some of the models suggest, you're could see a significant amount of history discussing how presidents and parties at the turn of the century ignored the issue, etc.
To be fair, a good history teacher mentions some of those "failure" presidents if even in passing. I talk about Hoover and how he gets a bad rap. Like Carter he generally gets the blame for an economic crisis he didn't cause but failed to cope with. The real blame for those crisis lie with Harding, Coolidge, Johnson, Nixon-Ford, but in both cases the simplified argument is Hoover/Carter. If Obama fails to deal with our current economic crisis he stands to join that ignoble group (we already see this effort with morons like Limbaugh calling it "Obama's recession).
For Bush you have, nearly 7 trillion dollars in immediate debt, another 30 trillion or so in unfunded promises. The torture memos, the invasion of Iraq, failure to deal with climate change. You put all of that together, and if you assume the worst in every circumstance, Bush might just displace Nixon as the worst president in American history.
How much you see of this in a high school US history class? Depends on who writes the standards, who writes the textbooks, who does the teaching, and how good that teacher is.
Posted by: dogmeatib | March 16, 2010 2:47 PM
dogmeatib @ 26:
Limbaugh actually started making that assertion the summer of 2008 soon after it became clear that Obama was going to win the Democratic nomination. His argument that Obama owned a recession that started in Q4'07 (which he ignored) was that the stock market was going down that summer because it had concluded that Obama was going to win. He also ignored GDP estimates and a pending credit crisis having anything to do with the market going down. I'm not sure how Limbaugh explains away how strongly the markets came back starting in March-09 when it became clear how Obama and Congress were going to deal with the auto companies and stimulating the economy.
Posted by: Michael Heath | March 16, 2010 3:36 PM
Posted by: dogmeatib | March 16, 2010 3:47 PM
I'm not sure how Limbaugh explains away how strongly the markets came back starting in March-09 ...
The Fed was buying stocks. I don't remember where I saw this (I don't watch TV) but the guy had big graphs, so it must be true.
----
If we get Washington and Cheney and Michelle Bachman in a room together, will the universe implode into the singularity of stupid/crazy that would form?
Posted by: Uncle Glenny | March 16, 2010 4:49 PM
He needs to read Calder v Bull. The "natural law jurisprudence" he's talking about (a) never described the Constitution or any of its supporters; and (b) was knocked down the first time it was considered by the Supreme Court less than a decade after adoption (two of whose members were at the Constitutional Convention; Justice Paterson wrote one of the first drafts of the Constitution and can be presumed to know what it meant).
This whole is issue is nothing more than rewriting history "as it should have been." The whole nation as the Texas BoE imagines things.
Posted by: kehrsam | March 16, 2010 7:03 PM
Hm, funny, if I read the 6th amendment correctly it states "In ALL criminal prosecutions, the accused shall enjoy the RIGHT to ...to have the assistance of counsel for his defense" (leaving out all the other procedural rights in the amendment). Maybe I just don't know what the word all and right means though. Secondly his statement about Gideon v. Wainwright is simply false. All Gideon v. Wainwright did was require the states to provide a lawyer in all criminal cases. Prior to that point the federal government was required to and states were for cases involving capital crimes.
Posted by: Zaxro | March 16, 2010 9:23 PM
The fact that Mr. Washington upholds McCarthy as one of his political heroes speaks volumes. I truly hope his idea of what it means to be a "real conservative" catches fire within the GOP.
That way, it can sink to the bottom of the ocean even faster.
Posted by: CHV | March 16, 2010 10:31 PM
Uncle Glenny @ 29:
Actually, no, the Fed doesn't buy stocks nor are they holding any. They do have capital positions, e.g., AIG, but they don't go into the market and trade. The Fed mostly holds Treasuries but did do some novel investments because of the bail-out, one being their purchase of mortgage-backed securities (aka "MBS"), the root asset that got the Investment Banks in trouble.
Here's a graph showing how the Fed's assets have trended over time (third graph down). It's not easy to read without zooming, however please note their large and relatively stable balance of Treasuries usually running around at about $750 billion. As part of the bail-out they did purchase a number of various plays, the biggest being MBSs from Wall Street. I think they're currently holding about $1.2 trillion of those from a different article I read earlier this week in the WSJ.
So if that was the Rush's answer, it's flat-out incorrect. I suppose he could have argued the bail-out and the Fed's infusion of capital into Wall Street made stocks go up, but I'd argue that was a known quantity on the Street by Dec./Jan., where stocks jumped starting in March-09, two-three months later. That's an important distinction because nearly all the big players price their holdings and make their bets based on calculated future cash flows, i.e., it's a forward looking market where information is priced nearly immediately.
Posted by: Michael Heath | March 16, 2010 10:55 PM
kehrsam @ 30,
Given you brought up Calder v. Bull, I've always wondered why it is that Law Schools used to focus so much attention on Marbury v. Madison regarding judicial power to exercise judicial review over the other two branches while we never encounter Calder. While I realize Marbury was the first time a federal appellate court had overturned a statue; wasn't Calder the first case where a federal court asserted its authority to overturn legislation? Perhaps because that case didn't assert its authority of the other two branches the opinions went unnoticed?
I think Wikipedia's entry for Calder provides adequate text from the opinions to flesh-out why I ask.
Posted by: Michael Heath | March 16, 2010 11:13 PM