Dispatches from the Creation Wars

It took until the summer of 2002 for Mr. al-Rabiah to be visited by a CIA analyst and Arabic expert. "He wasn't a jihadi, but I told him he should have been arrested for stupidity," the CIA agent told New Yorker reporter Jane Mayer in an interview. Ms. Mayer's book The Dark Side goes on to explain that two National Security Council staffers -- senior terrorism expert General John Gordon, and legal adviser John Bellinger -- sought to brief President Bush about reports that an innocent man was being held at Guantanamo Bay. Before they could reach President Bush, however, they were intercepted by David Addington, legal counsel to vice-president Dick Cheney, who said, "No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it!"

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."...

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.

Ms. Cheney, Mr. Kristol, Mr. Thiessen and Mr. McCarthy assert that American lawyers who represent Guantanamo Bay detainees are helping the enemy in a time of war. Here is a case, however, where the Guantanamo Bay detainee was innocent, languished for years in custody without a lawyer despite official knowledge of his innocence, and ultimately achieved his freedom with legal help. Ms. Cheney, Mr. Kristol, Mr. Thiessen and Mr. McCarthy have no answer for people like Mr. al Rabiah and his attorneys -- their poorly reasoned McCarthyite rhetoric is bankrupt because they are unable or unwilling to acknowledge the distinction between being accused of being an enemy of America in war time, and actually being an enemy of America.

It is because of people like Ms. Cheney, Mr. Kristol, Mr. Thiessen and Mr. McCarthy -- and very particularly because of David Addington and Dick Cheney -- that innocent Mr. al-Rabiah lost eight years of freedom when he should have been released much sooner. It would be one thing if these folks were regretful about the imprisonment of innocents, apologetically explaining them away as an inevitable consequence of the fog of war. But they never express regret, even about particular past cases that we're better able to judge now that the fog has cleared. Nor is the absence of regret a sign that they are ambivalent about releasing wrongly imprisoned innocents. In maligning Gitmo lawyers, they actively attack all the attorneys who successfully proved that detainees were wrongly held!

You'd think that Ms. Cheney, Mr. Kristol, Mr. Thiessen and Mr. McCarthy would advocate for improved detainee review policies to ensure that the mistakes of the past aren't repeated -- after all, they know innocent folks were held in Gitmo for years on end. Given the benefit of hindsight, however, they'd repeat the Bush Administration's policies on enemy combatants. In other words, if we rewound to September 12, 2001, they'd knowingly favor an approach that would get Mr. al-Rabiah and others like him wrongly detained all over again, and if they'd change anything at all, it'd be taking away their access to lawyers.

Bingo. He has accurately identified the profoundly immoral core of this argument.