The New York Times Lies Its Way to Incoherence

By Benjamin Wittes
Sunday, January 9, 2011, 10:46 AM

The New York Times editorial page has really outdone itself this time. I'm afraid I can no longer hedge my account of the way it is treating the subject of the legality of  detention. The Times editorial writers are knowingly and intentionally misstating the law in order to misinform their readers. I have come to this conclusion reluctantly, but I see no other way to understand their record on the subject.

I will not rehash here the Times' record on this subject since October, when I began criticizing their editorials. For background, I refer readers to this post, and this one. The general point is that the Times repeatedly states, often in very strong terms, that detention without trial is unlawful. And it refuses, in doing so, to give a minimally correct account of the body of cases that say precisely the opposite. The latest editorial on detention, published yesterday, reads in relevant part as follows:

Much of the public and most politicians seem to feel that as long as these suspects are held out of sight on the island of Cuba, they can be held indefinitely without trial, in violation of basic constitutional protections and international treaties.

Once again, the Times is clearly alleging that detention without trial is unlawful--contrary both to "basic constitutional protections" and international law. And once again, it is doing so either without reference to or by grossly mischaracterizing a large and growing body of case law that stands for precisely the opposite proposition--the proposition that detention without trial for counterterrorism suspects can be lawful under the AUMF and, indeed, is an inherent incident of the power to wage war. Because the Times' last editorial acknowledged that "judges have upheld" these detentions (while flamboyantly misstating the basis for those decisions), I can no longer attribute these misstatements of fact to gross ignorance of these cases. They are willful, not incompetent. The Times is actively and repeatedly propounding a theory of law to its readers as though it were an established principle that the federal courts have, in fact, consistently rejected. It is no more complicated or defensible than if the Times described its preference for the legality of same sex marriage (which I share) by describing same-sex marriage as "legal in every state." I wrote editorials for nine years for the Washington Post. I worked there under three different editorial page editors. I have no doubt that not one of them would have tolerated from any editorial page staffer the repeated statement of a fact known to be false--and whose falsehood has been pointed out repeatedly in public.

And here is the weird irony in the Times' willful misstatement of the law: It makes the editorial in question completely incoherent.

The point of the editorial, after all, is not to criticize Barack Obama for failing to end non-criminal detention. It is to praise him for not defying two provisions of the defense authorization bill designed to prevent him from doing so--that is, the Times is praising Obama for acting in a fashion it describes mere sentences away as unconstitutional. Entitled "The Rule of Law," the editorial opens,

To keep the Defense Department running, President Obama was forced to sign a spending bill on Friday with a particularly harmful provision that bars spending to transfer detainees at Guantánamo Bay, Cuba, to the United States for trial. As wrongheaded as this prohibition is, the president was right not to declare his intention to defy it in an accompanying statement. By doing so, he demonstrated a greater respect for the law than did President George W. Bush.

The editorial then mentions in passing that detention is unconstitutional. And then it concludes,

Despite his objections, Mr. Obama did not say he would defy the law and try to transfer prisoners anyway. That was the right position. As a candidate, he often objected to Mr. Bush’s cavalier use of signing statements to assert that his interpretation of the law trumped that of Congress and the courts. Mr. Bush routinely and contemptuously disregarded laws that he himself signed, most famously stating that he was not bound by the ban on torturing prisoners.

The American Civil Liberties Union argues that the bill only restricts the use of Defense Department money for transferring prisoners to the United States. The administration, it argues, is free to use funds from other departments. But such a cramped reading of the law would be seen by most Americans as a defiance of Congressional intent. Taking the high ground puts President Obama in a better position to argue for the rule of law.

So let's get this straight: Non-criminal detention is unconstitutional and violates international law, but the president is "right" to submit to laws designed to force him to continue this unconstitutional practice, and he is right as well to avoid giving those laws a "cramped reading" that might enable him to act constitutionally despite their terms. In the Times' view, honoring provisions that force him to act "in violation of basic constitutional protections and international treaties" amounts to "taking the high ground" and a win for "the rule of law."

The New York Times has lied its way to utter gibberish.