Remember a few days ago I wrote a few posts batting around The National Review’s Marc Thiessen for his hapless attempt to explain why “shoe bomber” Richard Reid’s case was any different from Xmas bomber Umar Farouk Abdulmutallab. This morning when I was at the playground with my family I noticed that Karl Rove had flagged for me on Twitter that Thiessen had responded with yet another rejoinder.
Thiessen makes the common mistake of believing that if you just pile enough facts on top of each other they will eventually amount to an argument. But it just doesn’t. You can find Thiessen’s post here. But the gist is that, contrary to my argument, the fact that President Bush had already okayed military tribunals in principle a month before Reid’s arrest is irrelevant because the administration had not yet had sufficient time to promulgate policies and procedures for tribunals and military detention. In other words, says Thiessen, the Reid decision was the right decision because it was the only option available at the time.
But this claim hardly stands scrutiny. It was a cardinal rule of the administration’s prosecution of the War on Terror that the commander-in-chief does not have to wait on administrative rulings or findings of fact to act in the nation’s defense. His war power is plenary. More concretely, though, Padilla, who was sent to military detention, was arrested only 6 months after Reid. Was it really all worked out by then? And if so, remember that Reid pleaded guilty only in January 2003, a full six months later. If everything had been worked out in May 2002 (for Padilla), President Bush could have plucked Reid out of the criminal court system and given him the Padilla treatment before his case ever came to trial. But he didn’t.
Thiessen’s point about Padilla doesn’t make much sense either. I said he was sent to military detention because we didn’t have enough evidence for a criminal trial. He says, no, we didn’t want to put him in a criminal court because the evidence would have allowed him to depose KSM and others then in CIA custody. In other words, I say six. And he says, Not so: it’s half a dozen! This is just another way of saying we didn’t have the evidence for a criminal trial.
More powerful though is the argument of Thiessen’s NRO colleague Andy McCarthy, a former Assistant US Attorney with extensive experience in counter-terrorism prosecutions, who posted just after him. With a soft touch — sort of tiptoeing around it, one presumes, because he doesn’t want to draw out the logical conclusion of his argument at Thiessen’s expense — McCarthy actually concedes that Thiessen’s argument really doesn’t hold up. McCarthy thinks that trying Reid — and, for that matter, Zacarias Moussaoui — in the criminal courts was just a mistake. A screw up. A bad decision.
In other words, McCarthy is saying Abdulmutallab should be tried before a military tribunal. And Reid and Moussaoui should have been too. Let’s not pretend the cases are different or that we weren’t able to send them to the brig then too.
This is all a perfectly consistent, reasonable argument. Not one I agree with, I think, for a number of different reasons. But still one that can stand on its own two feet and have its tires kicked without toppling or falling apart. What you really can’t do is claim that the Reid decision was the right one but that Abdulmutallab has to be treated differently — or that President Bush didn’t have the ability to treat Reid differently than he did. The whole question can be smashed to pieces, which McCarthy clearly gets, if you’re just willing to say: Bush made a mistake. But that seems to be beyond Thiessen’s reach.
The lesson I draw from this is that if you want quality military tribunal/torture advocacy, go to the former prosecutor, not the speech writer. And for Karl Rove, happy to joust, but really, choose better proxies!
Josh Marshall is editor and publisher of TalkingPointsMemo.com.