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Kevin Jon Heller Defends the New York Times

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Monday, July 18, 2011 at 7:35 AM

Over at Opinio Juris, Kevin Jon Heller gamely steps up to the plate to defend yesterday’s New York Times editorial:

As part of his ongoing war against the New York Times, Ben Wittes has a post today entitled “Seven Errors in Today’s New York Times Editorial.”  I occasionally agree with Wittes’ criticism of the NYT; the paper sometimes misstates the law when it criticizes the Obama administration.  But there is nothing erroneous about today’s editorial, and Wittes can only claim error because he fails to mention, much less discuss, the editorial’s most important paragraph (emphasis added):

The Obama administration justifies its handling of the Warsame case under the laws of war. But Mr. Warsame was not picked up on any recognized battlefield. The administration claims continuing authority for military detention, interrogation and trial. This applies not just to battlefield detentions, where it is often appropriate, but to detentions anywhere, and not just to personal involvement in violent attacks, but to a broad range of offenses directly or indirectly related to terrorism. That is far too broad a claim.

This paragraph is absolutely correct.  The US and al-Qaeda are not engaged in a non-international armed conflict (NIAC) in Somalia, nor is there is a different NIAC in that country.  There is also no NIAC between the US and al-Qaeda in Yemen — and even if there was, there is no evidence that Warsame was a member of AQAP or otherwise directly participated in hostilities there.  (Do we even need to discuss the administration’s ridiculous argument that the laws of war apply to Warsame because “[c]ertain elements of Al Shabab, including its senior leaders, adhere to Al Qaeda’s ideology and could conduct attacks outside of Somalia in East Africa, as it did in Uganda in 2010, or even outside the region to further Al Qaeda’s agenda”?)  The claim that the laws of war apply to Warsame’s detention, therefore, rests on the fiction of a global NIAC between the US and al-Qaeda — an idea that only the U.S. accepts, as Claus Kress (who is generally far more sympathetic to US actions than I) discusses in this excellent article.

I know it is fashionable in international law circles to discuss the question of whether there is a NIAC in this or that specific location in thinking about the scope of detention authority. But that it not the question that the U.S. courts ask when they review a detention case. There have been at least three cases I can think of off-hand in which the D.C. Circuit has confronted people seized in locations in which there definitely is not a NIAC: Bensayah, where the detainee was picked up in Bosnia, Salahi, where the detainee was picked up in Mauritania, and Almerfedi, where the detainee was captured in Iran. In none of those cases did the D.C. Circuit suggest that the location of capture precluded a detention. To be sure, it hasn’t specifically ruled that an out-of-theater capture does give rise to detention authority either, so the question is theoretically open. But the court certainly has never treated the fact of capture out of theater as a problem for the government, and I don’t know anyone who follows these cases seriously who thinks this will be a fruitful area for the detainee bar in the future. The simple question the court consistently asks, rather, is whether the detainee is “part of” Al Qaeda, a group with which the court acknowledges the United States to be in hostilities of a sort of that justify detention. And it is simply not true that detention of someone caught off of a battlefield raises a significant legal obstacle to his detention in the court in the United States that has decided these things to date.

Now, it is perfectly fine for the New York Times to disagree with the court on this point or to say that, in its view, the D.C. Circuit  is permitting too much detention or asking the wrong legal question. It’s perfectly fine for it to argue that to the extent the court is correctly reflecting U.S. domestic law, the United States is in breach of its international obligations. I would argue against all of those propositions, but I wouldn’t say any of them is beyond reasonable opinion. But the Times editorial does not do any of those things. It, rather, describes detention as “extralegal” and then describes the state of the law–in the paragraph that Kevin quotes–without reference to a significant body of case law that simply does not treat the geography of capture as an impediment to detention.

So look, in our system of government, the D.C. Circuit has a greater role in defining the law than does Claus Kress, however excellent his article may be. And journalists who repeatedly declaim the state of the law in ignorance of–or without reference to–significant bodies of case law, do so at some risk of ridicule by bloggers.

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