Salahi Coverage and the Scorecard

Just a brief follow-up on my earlier complaints about the "scorecard" approach to detainee litigation coverage.
In this post from ten days back, I argued that--among its other problems--the press's tendency simply to tally wins and losses in Guantanamo habeas cases ignores the qualitative dimensions of these cases and the rules that emerge from them. The coverage of the D.C. Circuit's argument Friday in Salahi is a great example of this. To wit, there has been almost no coverage. NPR did a brief but excellent setup piece, to which I would link, but which I can't seem to access online. The Associated Press ran this piece, the Washington Post this one. That's about all the coverage I've been able to find so far (there may be other stories that I haven't seen, but there are not a whole lot of them). By contrast, think how many stories you have read recently that casually cite one iteration or another of the Guantanamo scorecard.
This preference for crude numerical benchmarks over covering the development of substantive law is understandable enough. The numbers are easy to present and understand. The law is devilishly difficult; that's actually what makes it fun and interesting. I do not envy the reporter who has to encapsulate the substance of these cases--why they matter--in language accessible to a lay reader and in a very small number of words. I wrote such pieces for many years for the Washington Post editorial page, and it's very hard. It's much easier--and seemingly more evocative--to report true numbers that tell a story.
The trouble arises, however, when the story those numbers tell begins to drown out the much-more-important story that then does not get told: the story of the emerging law of detention. And that is what is happening here. Salahi will make important law that will affect other detainee cases and will affect the way the executive branch thinks about its power to detain suspected terrorists. It may not do so this time around, as a remand seems likely, but it will do so eventually, as will other cases lurking in the D.C. Circuit. These are not simply tally marks in a scorecard. To fail to cover them as substantive events is to misunderstand--and to misinform the public about--the way our society is making law and policy on detention questions.
If a congressional committee on Friday had marked up a major piece of legislation concerning the scope of the government's detention power with respect to people who claim to be ex-Al Qaeda, major media would all cover it. Something very close to that is what happened at the D.C. Circuit, yet you would never know that from reading the coverage. Because of the peculiar delegation of policymaking power that the Supreme Court, the Bush and Obama administrations, and Congress have all teamed up to bring about, the D.C. Circuit is writing the rules of detention in a series of cases with enormous policy consequences. Yet we tend to cover these cases as a series of individual competitions between the government and detainee counsel, not as a policymaking exercise with potentially vast consequences. It's a big mistake. My kudos to the reporters who bucked the trend.