I am not sure how I stumbled into the role of unpaid fact-checker for the New York Times editorial page on matters of law and security. But as long as the Times keeps publishing editorials like this one, there needs to be some correction mechanism somewhere. And since the Times itself insists both on making serial factual errors and on not ever correcting any of them, the sad burden seems to fall on me. The Times, of course, has policies about correcting factual errors--not to mention presumably about not publishing facts its writers know to be false. But the editorial page on detention matters, as I have documented in the past, has not been scrupulous about observing those policies. So until the page begins correcting its own errors, Lawfare will have to serve as the correction column it should run--at least on the issues of concern to Lawfare readers. I will not, at least not in this post, argue with any of the Times's opinions--just with factual questions that seem to me beyond reasonable argumentation.
I count at least seven erroneous statements in today's editorial--most of them variants on the same theme I have been pounding on since last year. In the order in which they appear in the editorial, here they are:
1) "Ahmed Abdulkadir Warsame, who was seized by American forces in international waters, was secretly held in extralegal detention on a United States naval vessel."
The Times persists in describing non-criminal detention as illegal or improper. The use of the term "extralegal" suggests that Warsame's detention is taking place outside of the law. It isn't--at least not to the extent that the judicial branch gets to say what the law is under our particular constitutional arrangement. The Supreme Court has affirmed the propriety of non-criminal detention under the AUMF, and the D.C. Circuit has considered cases of detainees picked up--like Warsame--far from any battlefield, and has never suggested that this removes them from the ambit of AUMF detention. When the administration detains someone like Warsame and holds him for a brief period of time under the AUMF, it is operating well within the legal system. Despite repeated statements suggesting that such detention is illegal, the Times never puts forward any legal authority for this proposition. Nor can it. None exists.
2) "After weeks of military investigation, a separate team of law enforcement officials concluded that [Warsame] was not a legitimate candidate for military detention and trial."
The administration never concluded that Warsame "was not a legitimate candidate for military detention and trial." It concluded, rather, that among the various legally-available options for the disposition of his case, it preferred for a variety of reasons to avail itself of an Article III criminal trial. I know of no reason to believe that the administration has concluded that its earlier detention of Warsame lacked legitimacy or that it could not have lawfully persisted with it.
3 and 4) "President Obama has created yet another parallel system of unlimited detention and interrogation without rights outside the constitutional norms that served us well for more than two centuries before the Bush administration carelessly and needlessly tossed them aside for terrorism cases after Sept. 11, 2001."
It is not true that President Obama has created "another parallel system" of detention and interrogation. He briefly and judiciously used the same parallel system of detention that has existed under two successive administrations since September 11, 2001: military detention of the enemy in an armed conflict authorized by Congress in the AUMF. Interrogation took place under the same Army Field Manual that has been in place since September 2006.
Nor is it true that this system exists "outside of the constitutional norms that served us well for more than two centuries" (See Point 1). Military detention in armed conflict has existed for the entire history of the United States. It has never been constitutionally problematic, or even especially remarkable.
5, 6, and 7) "Now [Obama] is drifting toward establishing his own system of extralegal detention and tainted questioning. It is time to stop that drift and return to a constitutional system of law enforcement."
The Times in this single sentence repeats two of its earlier errors: that Obama is establishing a new system and that non-criminal detention is "extralegal." It also adds a new error, though I'm not quite sure what precisely that error is. To refer to returning to "a constitutional system of law enforcement" suggests either that we are currently engaged in an unconstitutional system of law enforcement or that only a system of law enforcement is constitutional for handling terrorism cases and that we should thus return to that system. Whichever the Times means, the point is factually erroneous.
If the Times means the Obama is engaged in an unconstitutional system of law enforcement when he militarily detains someone like Warsame, the editorial is wrong because military detention is not law enforcement at all. It is a war power. If, by contrast, the Times means that only a law enforcement system is constitutional for terrorism cases, it is also wrong. Military detention simply is not constitutionally defective, extralegal, unlawful, legally suspect, or any other variation of the vocabulary the Times may think up. It is a lawful means of processing certain terrorist suspects under a large and growing body of law the Times chooses not to acknowledge but which happens to be the law of the land in which the New York Times is published.
These sort of mistakes are altogether avoidable. There is nothing about the Times's normative position against non-criminal detention that requires that it serially publish statements that are not true. Plenty of detention foes manage to express their opposition to the practice without making up facts. And the Times needn't misinform its readers about basic facts either in order to argue its points. But its editorial writers don't seem remotely interested in exploring how they can make their points in a fashion consistent with the realities they are supposedly bound to report. A couple of months ago, I wrote a brief email to Andrew Rosenthal, the Times' editorial page editor, suggesting that his board and I should be in touch on these subjects. "I'm not sure if engagement on detainee, trial, and AUMF issues between your board, on the one hand, and me and my crew, on the other, would be fruitful or not," I wrote. "But it seems like we at least ought to find out." I never got a response.