Clearly Illegal?

By Benjamin Wittes
Wednesday, October 6, 2010, 10:12 PM

I was amused, in reading Judge Bates' Khan opinion just now, to run across the judge's account of the scope of the government's detention authority--amused because the New York Times this morning editorialized that holding people in prolonged military detention is "certainly illegal." The editorial writer didn't bother to cite any legal authority for this bald claim; that's not altogether surprising since none exists. Still, it's worth considering how an actual judge who has to  follow actual law described the matter. Judge Bates' description would, I suspect, surprise the naive reader of the Times editorial:

The AUMF authorizes the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." AUMF, § 2(a). Such "necessary and appropriate force" includes the power to detain combatants subject to such force. See Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality opinion); AI-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) [hereinafter AI-Bihani II]. The scope ofthis power is broad: the government may detain any individual "engaged in hostilities ... against the United States," who "purposefully and materially supported hostilities against the United States or its coalition partners," or who "is part of the Taliban, al-Qaida, or associated forces." Al-Bihani II, 590 F.3d at 871-72; see also Hamlily v. Obama, 616 F. Supp. 2d 63,75 (D.D.C. 2009).

"[T]here are no settled criteria," for determining who is "part of" the Taliban, al-Qaida, or an associated force. Hamlily, 616 F. Supp. 2d at 75; accord Bensayah v. Obama 610 F.3d 718, 725 (D.C. Cir. 2010). "That determination must be made on a case-by-case basis by using a functional rather than formal approach and by focusing on the actions of the individual in relation to the organization." Bensayah, 610 F.3d at 725; accord Hamlily, 616 F. Supp. 2d at 75. The Court must consider the totality of the evidence to assess the individual's relationship with the organization. See Naji al Warafi v. Obama, ---F. Supp. 2d ----, 2010 WL 1404001, at *4 (D.D.C.2010). But being "part of" the Taliban, al-Qaida, or an associated force requires "some level of knowledge or intent." Hamlily, 616 F. Supp. 2d at 75; see also Bensayah, 610 F.3d at 725 ("purely independent conduct of a freelancer is not enough" to demonstrate an individual was "part of" an organization.).
The declassification of this opinion on the same day as the Times called all long-term military detentions "clearly illegal" raises an interesting question--at least, one that is interesting to me, as someone who served for many years as an editorial writer at a competing newspaper: What does it mean when the New York Times declares something "clearly illegal" in the face of a considerable body of law (including Supreme Court law) declaring precisely the opposite?
There are really only three possible answers to this question. The generous interpretation is to say that the New York Times is expressing an opinion here--that it is saying that long-term detention in its view should clearly be deemed illegal. The trouble is that whether something is legal or not is not really a matter of opinion, except at the margins where the law is in dispute. The Times would never write that "marijuana smoking is legal" when they mean to say that in their view pot-smoking should be legalized. Surely the Times editorial writers  owe it to their readers to acknowledge that the courts have consistently upheld some considerable detention authority under the AUMF, even if they contend that this entire line of cases is in error. The second possibility is that the Times editorial writers are grossly ignorant of the actual state of the law. The third, which may be a version of the first,  is that they don't care about the actual law and are merely using the language of law to describe a vision of the good. I'm honestly not sure what combination of factors is at play here. But unless the explanation is gross ignorance, in which case a correction should be forthcoming, I have to say that I have a deep ethical problem with a newspaper's publishing what seems to me perilously close to an intentional untruth. If the law says A, you don't get to report, even in an editorial, that the law says Not A.