Eugene Volokh and a Reader on the NYT Detention Editorials

By Benjamin Wittes
Thursday, February 3, 2011, 4:25 PM

Eugene Volokh agrees with me that the New York Times editorial page is being less than candid about the legality of non-criminal detention. He writes:

the Times is not simply saying that particular detentions might be illegal, for instance because there hasn’t been an adequate military combatant status review tribunal hearing to determine whether the detainee is indeed an enemy combatant, or because the conditions of confinement are allegedly inadequate. Rather, the claim (in this editorial and in others) appears to be that indefinite detention of suspected enemy combatants without civilian trial is unconstitutional; that claim is indeed false as a matter of existing precedents. And while in context “this is unconstitutional” may sometimes be understood by readers of some kinds of publications as “I think this is unconstitutional under the right reading of the Constitution, whatever courts might say,” I agree with Wittes that this is not how a casual reader would understand the statement in the Times editorials.

I would be interested to hear from readers inclined to defend the Times' editorial posture on this point. So far, I have heard from only one, and his defense was, well, very limited, though interesting:

I think you’re a bit unfair to the Times in your latest piece.  Note the small but critical difference between these two sentences:

The Times:  “ . . . they can be held indefinitely without trial, in violation of basic constitutional protections and international treaties.”

Ben: "Once again, the Times is clearly alleging that detention without trial is unlawful--contrary both to 'basic constitutional protections' and international law.”

The difference is “indefinitely.”  If one were giving the Times the benefit of the doubt, one could, I think, find language even among supporters of law-of-war detention suggesting that at some point in a conflict without end, years down the road, the legal framework might change.  I don’t think that argument is compelled; but neither do I think it is foreclosed.

Now, if the Times leaves the word “indefinitely” out, then I agree with you that they are in la-la land legally.

The reader in question made a good point. Perhaps the Times is not really arguing that non-criminal detention itself is illegal, merely that it is illegal if it is endless. And, to be sure, the word "indefinite" does appear in the underlying editorial--and, indeed, it or something like it seems to creep in before "detention" in a bunch of the Times' editorials. So I went back over a smattering of the Times' editorials to see if this point could account for the paper's position.

Not!

The trouble is that the Times is quite inconsistent on this matter and does not always include the word "indefinitely" or some analogue to it when claiming that detention violates the law. Back in the October editorial that started me on this kick, for example, the Times wrote: "There are more than 170 inmates left in Guantánamo. Only 36 have been referred for prosecution, some very dangerous men. Forty-eight are in a long-term detention that is certainly illegal." Note here the tense. The problem is not that at some point the detention will become illegal because it is indefinite. The detention is currently illegal in the Times' present tense view. What's more, what is "certainly illegal" is not "indefinite" detention, merely "long term detention." But how long-term before legal detention turns into a pumpkin? The Times does not say.

The December editorial, which does admittedly use the word "endless," is actually written in the past tense ("These endless detentions clashed with the most basic legal protections of the Constitution"), so it can't be their endlessness that makes them illegal; they have already become illegal, the paper seems to be saying.

Sometimes, Times editorials label military detention illegal with no time-delineation at all. For example, this one refers casually to the detention of Ahmed Ghailani as "illegal." Ghailani's detention was by that time complete, so it was neither endless nor indefinite nor even ongoing. Similarly, this one refers to Guantanamo itself as "an extra-legal offshore lockup." I'm sure there are many other such examples.

To put the matter simply, it is not indefiniteness to which the Times is objecting. It is non-criminal detention itself. The Times is not making some hypothetical point about some distant time after which the AUMF has lapsed and no longer authorizes detentions that may still at that point be ongoing. It's not talking about something that could happen. It is talking about current illegality. As best as I can determine the Times's position--and it really is so incoherent and such a moving target as to be very hard to pin down--it is that any military detention not involving POW status is per se illegal. That is a respectable position, I suppose, but it is not the law of the United States and the Times shouldn't, in my opinion, be representing it as the the law.