The NY Times Editorial Page and Its Potentially Misleading Account of the Detention Status Quo

Robert Chesney
Tuesday, December 28, 2010, 5:28 PM
In an editorial that ran on Monday, the Times took up the laudable task of defending the administration’s plans to substantially enhance the procedural safeguards associated with the annual review board process for GTMO detainees.

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In an editorial that ran on Monday, the Times took up the laudable task of defending the administration’s plans to substantially enhance the procedural safeguards associated with the annual review board process for GTMO detainees.  All to the good if you ask me.  Inexplicably, however, the editorial seeks to bolster the case for the proposed changes by giving an utterly misleading impression of the legal status quo at GTMO.  It’s really quite bizarre, though not unprecedented. The problem is that the editorial seems at pains to depict GTMO and detention policy as things stood circa spring 2004 or earlier.  The detainees are in a "legal limbo," the editors claim, giving the uninformed reader little reason to suspect the following: - that detainees have had the right to seek habeas relief in federal court since 2008 (though as I note below the editors do offer an obscure reference in that direction late in the editorial) - that many detainees have actually prevailed in the habeas process - that from 2005 to 2008, detainees had a right to judicial review in the D.C. Circuit Court of Appeals (though the process was much less robust than habeas has turned out to be, and though only the Uighurs ever got anywhere under that system as other detainees concentrated on pursuing the right to file habeas petitions) - and, last but not least, that an annual “administrative review board” system for reconsideration of the need for continued detention already has been operating since 2005, and thus that the issue at hand is whether to substantially enhance the procedures associated with that review rather than invent the idea of annual re-screening from scratch (in fairness, the editors do offer an indirect reference to the existing system mid-way through the editorial). Judge for yourself by reading the whole thing, and asking what an uninformed reader might assume about the status quo. For what it is worth, here are the lines that jumped out at me, with my objections explained after each:
After more than a year of review, the Obama administration is preparing an executive order intended to resolve the situation of four dozen prisoners in the prison there who are caught in a legal limbo: they cannot be freed because they are considered a potentially serious terrorist threat, and they cannot be tried because the evidence against them is classified or was improperly obtained, often through torture.
This is an obvious place to note that no one would be so held without first have the opportunity to fully and fairly litigate the government’s legal and factual case for detention before a federal judge, with counsel, discovery rights, and all the other accoutrements of the post-Boumediene habeas system.  The Times could have and should have argued instead that some number of detainees have lost in the habeas process (and more will surely lose in the months ahead), that these detainees accordingly face the prospect of detention so long as the elected branches take the position that hostilities continue, and that the existing annual review system ought to be made more robust procedurally.  Perhaps that makes the status quo sound insufficiently dire? The editorial continues:
The proposed order could give these prisoners a form of legal representation and a system to review their cases.
Of course the detainees for years now have had legal representation and a system to review their cases.  Wasn’t that the point of Boumediene?   The editors no doubt primarily aim in this sentence to highlight the point that the administration is proposing to enhance the rigor of the existing annual review process by adding a right to counsel, among other things.  They should have just said so.  Again, though, that would dilute the editors’ narrative of a sharp break with the “Bush administration’s many violations of international law” at GTMO. Now, to be fair, the editorial does at least hint at the current existence of an annual review board system.  Four paragraphs in, they note that the proposed system’s right to counsel is a “change from the Bush Administration’s policy of allowing [detainees] only a ‘personal representative,’ who was unable to help them make the case for release.”  Lay readers presumably would realize at that point that something already exists by way of annual re-screening.  They’d still be unaware of habeas review unless they already knew of it, however, unless this subsequent passage clued them in:
These endless detentions clashed with the most basic legal protections of the Constitution. But judges have upheld them because of the public-safety issues involved.
This is as close as the editors get to noting the existence of robust habeas review for GTMO detainees.  I doubt most lay readers would follow the reference, though.  And talk about a grudging acknowledgment in any event.  The editors blithely assert the fundamental unconstitutionality of military detention.  We’ve seen that before; Ben called them out on the same point in an October editorial.  So this time around there is a qualifier sentence noting that judges “have upheld” the detentions, which would be fair enough except for the finely-parsed phrase “because of the public-safety issues involved.” What an interesting way to describe the avalanche of habeas rulings confirming that the government has authority to detain in at least some circumstances pursuant to the 9/18/01 AUMF.  The description isn’t obviously wrong, of course, but the sentence as a whole conveys a sense that judges have somehow only reluctantly upheld detention authority out of a sense of emergent necessity. Does this nonetheless suffice to avoid Ben’s dead-on argument from October, to the effect that the Times has an obligation to be more candid in conceding that the courts have accepted the legality of detention?  Taken in isolation, perhaps.  But I’m much less sure when one considers the editorial as a whole.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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