Benjamin Wittes writes:
The Times editorial writers are knowingly and intentionally misstating the law in order to misinform their readers. . . 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. . .
Because the Times’ last editorial acknowledged that “judges have upheld” these detentions (while flamboyantly misstating the basis for those decisions), I can no longer attribute these misstatements of fact to gross ignorance of these cases. They are willful, not incompetent.
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.”
Via Volokh, who adds:
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.
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