McCarthy on Charlie Savage

As Lawfare readers know, I am not above criticizing the New York Times--or its estimable national security correspondent, Charlie Savage. I recently accused the Times' editorial board of lying about the law, for example, and I have also recently lamented the role that Savage's early reporting (for the Boston Globe, actually) on signing statements played in distilling a wrongheaded conventional wisdom on the subject. But this piece by Andy McCarthy on Savage seems faintly Greenwaldian in its willingness to makes assumptions about Savage's motives and intentions that McCarthy cannot possible know to be true and for which he provides no support. McCarthy is upset about this article, in which Savage reports:

The Obama administration is preparing to increase the use of military commissions to prosecute Guantánamo detainees, an acknowledgment that the prison in Cuba remains open for business after Congress imposed steep new impediments to closing the facility. Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases against detainees, which he imposed on the day of President Obama’s inauguration. That would clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees. Charges would probably then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.

Savage's story reads to me as simply a frank account of where the administration finds itself and, in its later sections, what some of the problems are that it can expect as the commissions go forward. It apparently reads to McCarthy very differently, however. "The president gives in on military commissions, grieving his cheerleaders," reads his subheading, and his lead sentence runs as follows: "President Obama is relenting on military-commission trials, and the New York Times is, shall we say, chagrined." What is the evidence that Savage is chagrined or grieved? McCarthy's beef appears to be that Savage quotes some defense lawyers raising issues we can expect them to raise as the commissions get going again--issues McCarthy thinks lack merit and won't ultimately impede trials. To be clear, I have no problem with McCarthy's expressing his views on the merits of these issues, though I personally think his view is dead wrong and that the commissions will have rough sailing ahead on a number of legal fronts. Nor do I have a problem with his criticizing Savage for being, in his apparent view, too solicitous of defense arguments or too credulous of concerns about the commissions, though I don't think this story is evidence of either of either of those tendencies. But McCarthy does not stop there. Throughout his piece, he treats Savage as a wholly-owned subsidiary of a cabal of lefty-defense types, whom he also describes as sympathetic with the enemy and having infiltrated the Obama administration. So when Savage quotes a defense lawyer trying to make an issue of the waterboarding of his client, McCarthy says that "Savage and [the defense lawyer] are bloviating"--as though they were on the same side. He complains that the Times' "immense" interest in the Nashiri case is "not because [Nashiri] killed 17 American sailors, wounded 39 others, and nearly sank a naval destroyer" but because of his waterboarding--and then selectively quotes Savage so as to ignore the non-waterboarding aspects of Nashiri's case. Savage, as I noted above, introduces Nashiri as "a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen" and goes on to report, before mentioning Nashiri's treatment in custody, that "Any charging of Mr. Nashiri would be particularly significant because the official who oversees the commissions, retired Vice Adm. Bruce MacDonald of the Navy, may allow prosecutors to seek the death penalty against him--which would set up the first capital trial in the tribunal system. The Cole bombing killed 17 sailors. Mr. Nashiri’s case would also raise unresolved legal questions about jurisdiction and rules of evidence in tribunals." McCarthy ignores all of this. What's more, McCarthy consistently confuses Savage's anticipation of issues likely to arise in commission trials with his taking a stand on the merits of those issues. For example, Savage flags an interesting question at the end of his piece:

Mr. Nashiri’s case would also test another legal proposition: whether a state of war existed between the United States and Al Qaeda at the time of the Cole bombing--before the Sept. 11 terrorist attacks and the authorization by Congress to use military force against their perpetrators. The United States initially handled the Cole attack as a peacetime terrorism crime, but the government now contends that a state of armed conflict had legally existed since 1996, when Osama bin Laden declared war against the United States. The question is important because military commissions for war crimes are generally understood to have jurisdiction only over acts that took place during hostilities.

McCarthy sneers, "A final precious angle of Savage’s report is the Times’s suddenly deep respect for military tradition" and accuses the paper--really Savage himself--of having teamed up with the "lawyerly left," which "mobilized on behalf of America’s enemies," to subvert that tradition and of discovering it only when it is no longer legally relevant. McCarthy concludes:

The Obama administration is very unhappy to be saddled with commissions, but expect the president to get over that quickly when jihadists start getting convicted. He’ll gladly take the “tough on terror” credit as his 2012 campaign gears up--credit the New York Times no doubt will somehow summon the strength to give him.

In short, without summoning a shred of evidence, or even arguing the matter explicitly at all, McCarthy makes a lot of implicit allegations against Savage--allegations not wholly unlike the ones Greenwald makes against me: that Savage is a corrupt shill for an agenda; that he is arguing points insincerely and situationally; and critically, that McCarthy is revealing what Greenwald called (with reference to me) his "overarching purpose." McCarthy does this more subtly than Greenwald does; he's a far better lawyer than Greenwald. But it's the same ugly game. For whatever it's worth, I think Savage's story was just fine--and that McCarthy's style of criticizing it, and him, is not.