Legal Commentary

Are New York Times Editorials Not Being Candid About What the Law Actually Says About Detention of Suspected Enemy Combatants?

By Eugene Volokh

So argues Benjamin Wittes (Lawfare), and suggests that there?s a pattern (see his earlier posts here and here). I read his posts and the editorials, and I think his criticisms are generally sound. Here?s an excerpt:

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.... 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.?

Note that 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.

Full post as published by The Volokh Conspiracy on February 03, 2011 (boomark / email).