Detention: Law of: Legislative Development

The New York Times Runs a Correction on an Editorial!

By Benjamin Wittes
Sunday, October 23, 2011, 10:34 AM

I awoke this morning to a genuine marvel: An actual real-live correction to a New York Times editorial on a national security issue. It reads as follows:

This article has been revised to reflect the following correction:

Correction: October 22, 2011

An earlier version of this editorial misattributed the authors of the Senate measure. It represents a deal between Senator Carl Levin and Senator John McCain, not Senator Levin alone.

The editorial, as you may have guessed from the correction, deals with the detainee provisions of the Senate NDAA. And the Times is, while late to the party, no happier about the provisions than I am. Indeed, breathless, sky-is-falling tone aside, I'm largely in agreement with the editorial--some of which even tracks arguments that first appeared in public in posts of mine on this site.

But this laudable and sudden scrupulousness about getting facts right holds real danger for the Times editorial writers. I mean, where does it all stop? If the Times feels obliged to correct its error about the authorship of the NDAA provisions, what about the several other errors in the same editorial--some of which, at least, are glaring and not subject to dispute among reasonable people?

For example, if the Times feels called to get the provision's sponsorship right, might it also feel it necessary to correct its reporting of a roll-call vote count? The editorial says of the recent Senate vote to reject the Ayotte amendment:

And yet 42 senators voted for the measure, introduced by Kelly Ayotte, the New Hampshire Republican who is a favorite of the far right. They included the usual gang of fearmongerers, John McCain, Lindsey Graham and Joe Lieberman, but also so-called Republican moderates like Susan Collins and Olympia Snowe.

This is a very special kind of 42, according to the actual vote tally--the kind of 42 that's called 47.

Then there's this passage denouncing the Senate's mandatory military custody provision:

The Senate measure would mandate military custody for any non-American citizen who is accused — not proven to be, but simply accused — of being a member of Al Qaeda, or of planning or carrying out an attack on the United States or any country deemed to be an ally at any particular time.

I yield to nobody in my disgust with Section 1032 of the Senate NDAA, but the Times' word "or" should really be an "and." This is actually an important error as it makes the bill (already plenty bad enough) seem even crazier than it really is. The text of the legislation has a little section called "Applicability to Al Qaeda and Affiliated Entities," which make clear that the the military custody requirement "shall apply to any covered person under section . . . who is determined to be–":

(A) a member of, or part of, al-Qaeda or an affiliated entity; and

(B) a participant in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners. (emphasis added)

In other words, it's not enough to be, as the Times suggests, either a member of Al Qaeda or any old guy plotting an attack against the U.S. or its allies. You have to be both a part of a terrorist group affiliated with Al Qaeda and a participant in a planned attack.

Third, leaving momentarily the realm of pure, simple, and indisputable fact, the following sentence is indefensible: "The government has mistakenly detained hundreds of men—that we know of--on suspicion of terrorism in the last 10 years." I know, it represents a kind of article of faith at the Times, but I am quite confident that no member of the Times editorial board could substantiate it. I have tracked the Guantanamo cases more closely than just about anyone, and I can honestly say that I do not "know of" "hundreds of men" who were "mistakenly detained." I certainly know definitively of some; I have suspicions about others; and there were, to be sure, hundreds of men who were released prior to any authoritative rulings in their cases--in some, but by no means all, of which cases the evidence was pretty thin. But for the Times to say that "we know of" hundreds of mistaken detentions almost certainly either overstates the level of the page's omniscience or deploys a definition of "mistaken" that many Times readers would likely find surprising.

And then there's this curious sentence: "The president has the authority needed to detain members of Al Qaeda under the laws of war." This sentence is, of course, true (though the sentence immediately following it makes clear that the Times regards that authority as "appropriate only for times of actual war," not "to all time and across the entire globe").  It is, in fact, the purest and most accurate statement of the law of detention I have ever read in a New York Times editorial. As such, it certainly requires no correction. The trouble is that its candor creates a little factual problem for a bunch of other statements in other Times editorials--like, for example, this one (“Forty-eight [men] are in a long-term detention that is certainly illegal”) and this one (“These endless detentions clashed with the most basic legal protections of the Constitution”) and this one (“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”) and this one ("Mr. Ghailani was kept in illegal detention") and this one ("Moving the prisoners is an indispensable step toward closing an extra-legal offshore lockup that has stained this nation’s reputation and become a recruitment tool for terrorists").

Now that the Times has--at very long last--demonstrated its commitment to publishing corrections by way of ensuring factual accuracy, riddle me this: how exactly does one go from "certainly illegal" to "The president has the authority" without ever saying that one erred?

UPDATE: The Times has now corrected the vote count. Its correction now reads as follows:

An earlier version of this editorial misattributed the authors of the Senate measure. It represents a deal between Senator Carl Levin and Senator John McCain, not Senator Levin alone. It also mistook the number of senators who voted for it. It was 47, not 42.

Still no correction, though, of the confusion of "and" with "or." Maybe this old video from School House Rock will help:

UPDATE II: A reader notes that the Times' " further correction on the roll call vote is still wrong. While they get the vote count right, the correction itself . . . says that the roll call vote was on the Levin-McCain amendment, when in fact it was on the Ayotte amendment." My correspondent is correct. The Levin-McCain compromise has not had a roll call vote, though it passed in committee on a 25-to-1 vote.