More on Yesterday's Times Editorial

By Benjamin Wittes
Wednesday, December 29, 2010, 9:43 AM

Bobby is quite right to link yesterday's New York Times editorial to the one about which I complained back in October. But Bobby is a more generous soul than I am, and I am disinclined to give the Times' editorial writers credit for curing the problem--even to the limited extent Bobby is (He asks: "Does this nonetheless suffice to avoid Ben’s dead-on argument from October, to the effect that the Times has an obligation to be more candid in conceding that the courts have accepted the legality of detention?  Taken in isolation, perhaps.  But I’m much less sure when one considers the editorial as a whole."). I read this editorial as simply continuing a willful pattern of misleading Times readers on the matter of the legality of detention.

Let us review the record.

Back in October, the Times declared that the Obama administration was holding people at Guantanamo Bay "in a long-term detention that is certainly illegal." I pointed out that a long line of cases declared precisely the opposite: That long-term military detention was clearly legal. And I asked the following question:

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.

Fast-forward now to yesterday, when the Times editorialized in relevant part as follows:

President Obama’s plan to close Guantánamo--thwarted by Congress--had always recognized that there would be a small core of prisoners who could not be tried because of the nature of the evidence against them or the illegal way that evidence was obtained. (Others could be tried by a civilian or military court, or sent to another country or simply released.) These endless detentions clashed with the most basic legal protections of the Constitution. But judges have upheld them because of the public-safety issues involved.

Leave aside the Times' erroneous claim that Obama had "always" recognized that a residual detention power would be necessary for Guantanamo--which he did not. The editorial repeats the earlier claim that these detentions are clearly illegal--now formulating the matter in terms of their purported "clash" with "the most basic legal protections of the Constitution." And while the new language contains a grudging acknowledgement of what is now a rather large body of case law affirming detention's legality, it strongly suggests two falsehoods about those cases: that the judges have upheld them because of some public-safety rationale and that the judges are thus flouting the most basic legal protections of the Constitution.

Here is the actual rationale for AUMF detention as described by the Hamdi plurality:

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, 317 U.S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again.

The rationale, in short, is nothing like public safety. Detention is simply an incident of warfare, justified as a means of neutralizing the enemy. What's more, in neither Hamdi nor in the post-Boumediene cases is detention framed as some tolerable departure from the usual rules. It is, rather, a function of the usual rules--but the usual rules of warfare, not criminal justice.

And just to be clear, when the Supreme Court articulated this rationale for detention, the New York Times did not complain that the justices were authorizing detention in violation of "the most basic legal protections of the Constitution." Rather, it ran an editorial entitled, "Reaffirming the Rule of Law," which reads in relevant part:

In a second case, the court ruled for Yaser Esam Hamdi, an American citizen who has been designated an enemy combatant. The government says Mr. Hamdi was captured by the Northern Alliance in Afghanistan in 2001, and he has been held for more than two years in naval brigs in Virginia and South Carolina. The government contended that Mr. Hamdi could be held indefinitely without access to a lawyer, although it eventually relented and allowed him to consult with counsel.

The Supreme Court's decision is fractured, but Justice Sandra Day O'Connor spoke for a majority when she wrote that the conditions of Mr. Hamdi's confinement were unacceptable. At the least, the court held, a citizen designated as an enemy combatant must be given access to a lawyer, told the basis on which he received the designation and accorded a fair opportunity to challenge it before a neutral decision maker.

In other words, not even the Times then questioned whether long-term military detention was consistent with the rule of law. Somehow, a position that was then a reaffirmation of the rule of law--long-term military detention checked by habeas review--has become one that violates the most basic provisions of the Constitution.

When I wrote my piece in October, I left open the question of whether the Times editorial writers were grossly ignorant of the law or were willfully publishing untruths. This editorial, alas, resolves that question. The acknowledgement of the case law that is entirely absent from the earlier editorial shows that the editorial writers are not unaware of it. They are simply misrepresenting it. This strikes me, as I said before, as perilously close to simple lying.