Where Have I Seen the NYT’s Detainee Data Project Before …? And Is the Times Implying that It’s Okay to Hold Some Detainees Without Trial?

by Kenneth Anderson

The New York Times ran a front page story from its lead Guantanamo reporter yesterday.   (William Glaberson and Margot Williams, research assistance Andrei Scheinkman, “Next President Will Face Test on Detainees: Some at Guantanamo Called Serious Risks,” NYT, Monday, November 3, 2008 (behind reg. user wall), A1; plus a referenced data base of detainees used to analyze the detainee records.)

Now, where was it I first heard of what Glaberson et al. have done here – created an elaborate data base of all the detainees and their statements in front of the military commissions and various hearings, and read thousands of pages of testimony, much of it from the detainees themselves?  Where was it, again?  Oh, I remember now, it was in Benjamin Wittes’s book from not so many months ago, Law and the Long War.  Not the New York Times.  Nope.  As discussed here at Opinio Juris in a roundtable.  

Is there any reference to Wittes’s pathbreaking work in this article or even the data base?  Not so far as I can tell; if there is, my humble apologies to all concerned (no fair adding it unacknowledged afterwards, of course).  Is it remotely conceivable that the New York Times would have come up with its “project” without knowledge of Wittes’s project and widely circulated book?  Of course not.  I’m no expert on journalistic ethics, but if this were a scholarly endeavor, and I essentially did this knowing that another research project had done methodologically the same thing, and reaching many of the same conclusions – it would not technically be plagiarism, I suppose, because nothing was copied.  But it would surely be widely regarded it as a breach of scholarly ethics not to mention the other project and its work (if for no other reason that not to mention it carries the strong but incorrect implication that our project had got there first).

I don’t have a high opinion of Glaberson’s journalistic standards in any case.  I got a call from him a few months ago – he was researching a perfectly legitimate query, whether a national security task force I’m on was coming up with proposals for a civilian national security court.  Fair question although, as it happens, a dry hole.  But he was obviously in a huge hurry, obviously already had a set story-line for where he wanted to go with his story, and very quickly into the conversation tried to jam down my throat a lengthy quotation that he wanted me to agree to … “So, Professor Anderson, you would agree that ………………….. [a long time later].”  

I’ve been there before, through many years as a human rights monitor of watching journalists from the world’s leading newspapers extract prefab quotations from illiterate peasants around the developing world.  Not wanting to give offense, the peasants nearly always say yes, even though you know they have no idea what the reporter is actually saying or otherwise might actually disagree.  Bingo, money quote and away.  So Glaberson proceeded to recite a paragraph length sentence that would fit where he pretty clearly already wanted it to go; I of course said no and he seemed surprised. And irritated.  And got off the phone almost immediately thereafter, presumably in search of greater pliability.

As to the substance … as the Wall Street Journal noted in its editorial this morning, we seem to be watching the Times, after having been a steady drum for the ‘innocent shepherd’ line that so engages the human rights lawyers around the country defending this detainee or that, walk back to a position that will ultimately allow the Obama administration to keep some number of people without trial.  After all these years, we are now told that some number of these guys … might pose a serious threat.  Who would have thought, to judge by the Times’s earlier coverage, that it would put on the front page what more or less amounts to the Times’s indirect blessing to continue to hold some people without trial:

Senators John McCain and Barack Obama have said they would close the detention camp, but the review of the government’s public files underscores the challenges of fulfilling that promise.  The next president will have to contend with sobering intelligence claims against many of the remaining detainees. 

My question is how the law professors, the human rights clinics, the human rights monitors, the ACLU, etc, etc., will respond when it is an Obama administration doing precisely what Wittes said would be unquestionably necessary, Jack Goldsmith said would certainly happen, or for that matter I said … that some people would likely be held without trial simply on account of the dangers they presented, purely on the strength of intelligence claims made by the CIA and the US military.  Isn’t the problem for an Obama administration that it, and everyone advising it that I know of, committed already to the view that the intelligence known about a detainee doesn’t actually matter; you have to prove it in court, and you have to file charges, and you have to do it as a matter of criminal law … there is no room for purely intelligence-based detentions, so far as I have understood the argument from the entire human rights and civil liberties communities, the Democratic party, the UN, etc., etc?  

Tell me, in other words, why it now suddenly matters what the “intelligence” says about someone; if you want to make a case to keep them, make it in the form of charges to a federal judge.  Isn’t that what we’ve been told, for years and years now?  When HRW shakes its head in sorrow at what a botch of things the Bush administration made, by not pursuing the avenues of criminal law when it seized people for detention, by not properly keeping evidence, etc., etc., it does not mean what the NYT implies as a possibility, viz., gosh, it’s really bad what the Bush administration did, which means we’ll now have to detain you even though we don’t think we have court-room levels of evidence to charge and convict you.  What HRW has always meant is, sorrowfully, guess what, since the government screwed up, the government has to let them go.  Charge them or let them go.  How many times have I heard that since 9-11?  But in that case, what, save for the prospect of a Democratic administration having to deal with Khalid Sheikh Mohammed, has changed in the estimation of the New York Times?  

Moreover, there is also a vast body of literature out there now – starting with things like John Mueller’s Overblown, journalists such as James Fallows, and even serious scholars – who say that

  • (a) the risks of terrorism are so overblown that there is no reason for any departure from regular criminal law models, so charge the detainees or let them go and/or
  • (b) the detainees at Guantanamo, even the “really bad guys,” are damaged goods in the terrorism world, and no longer pose a risk to us, and if they pose risks, it is mostly to Afghan and Pakistani civilians if they return to the fight, not to Americans.  

Even a Khalid Sheikh Mohammed, on this view, is not actually a serious risk to the United States any more.  He’s too well known, etc.  We’re eight years down the road, after all.  You might agree or disagree, of course, that either a or b is true – I think each is false, myself.  But if either of those were the case, then the argument for some form of continued detention without charges and trial really and truly disappears as a matter of risk based on intelligence.  In that case, the reason why these prisoners are being held becomes

  • a justification from pure political expediency (no administration, especially a Democratic one with questionable security credentials, can afford to let them go) or
  • a justification from some moral, but not strictly legal, position of justice (these are the bad guys, whether we could prove it in court or not, so we’re not letting them go).  

All of which (if, by some astonishing circumstances, I woke up tomorrow and McCain had won this election) I think I would hear about a Republican administration, because I’ve heard it about the current one.  Why should a Democratic administration be cut any slack on the basic claim of charge them or let them go, especially by those who have been saying that the risks posed by the detainees is less than the risk to the integrity of the criminal justice system?

I see Deborah’s very helpful post below that gives good insight into plans various people are proposing for closing Guantanamo and where to go next.  But, having read yesterday’s Times in preparation for today’s election, I find myself increasingly interested in getting a sense of what these mean in a world in which important actors such as the NYT are already making the case that we are in precisely the situation that Ben described – a group of people you cannot try and cannot release.  I have always thought that was our condition, but I am wondering where things go, including the scenarios Deborah refers to, now that the NYT appears to be sticking its toe in a certain rubicon. 

My own bet, for what little it is worth, is that the new administration and its media confreres at places like the Times will undertake a walk-back in the form of what we might call the Spanish Inquisition … Spain, using its Continental legal system, that is, does not have a formal method of permanent detention without trial.  But instead its inquisitorial system allows for very long periods of pre-trial detention, which is how it proceeded in the Madrid bombing trials.  My guess is that we will therefore be told, to satisfy the human rights monitors, that everyone will eventually be tried in Federal court, but that some people will take a long time to get there, on account of all the bad stuff done by the Bush administration and the difficulties of investigation, evidence, etc.  No actual claim of preventive detention, and no actual claim of the legal power to impose preventive detention, but in practice nearly infinite flexibility as to when, and when not, an actual trial takes place.  

The human rights organizations and their allies, unwilling to embarrass the Obama administration, and eager to avoid anything that might lead, as a formal legal doctrine legitimized by a liberal Democratic administration and Congress, to the creation of a genuine preventive detention arrangement, will object, but only pro forma.  The Republicans won’t challenge anything that keeps the worst risks in custody.  How that will go with the lawyers representing individual detainees, I don’t know.  But that’s my guess for how it will play out.

http://opiniojuris.org/2008/11/04/where-have-i-seen-the-nyts-detainee-data-project-before-and-is-the-times-implying-that-its-okay-to-hold-some-detainees-without-trial/

4 Responses

  1. Ken, I agree with you that it’s likely that Obama will not quickly be in a position where he can charge or release all the detainees.  I wrote about this in a recent article, at http://www.crimesofwar.org/onnews/news-election08.html.  But to be fair, his campaign has never denied this–their platform statement on terrorism says explicitly that they “will develop a fair and thorough process… to distinguish between those prisoners who should be prosecuted for their crimes, those who can’t be prosecuted but who can be held in a manner consistent with the laws of war, and those who should be released or transferred to their home countries.”  It is likely that the Obama administration will want to move to a position where a much smaller number of people are being held without charge, perhaps even bringing that down to zero over time, but it seems they will keep the option in reserve for the time being at least.

  2. Anthony, nice to hear from you and thanks for the link.  Actually, I’ve always thought that was right about the Obama campaign – my questions lie with the media such as the Times, and with the human rights campaigners. I think the Times is setting the stage for others – itself, other media, campaigners, etc. – to a double standard.  Still, I don’t understand the underlying rationale.  Tell me who during the past three years in the media, the human rights groups, the civil liberties groups, 90% of the Democratic party, whose policy has not been, charge them (in Federal court) or let them go.  How on a principled basis does one – anyone – get from there to the position that there will be at least some number of people who can’t be charged and won’t be let go?  I mean, I don’t have a problem getting there, Ben Wittes doesn’t have a problem getting there, people ‘over here’ don’t have a problem with it – but for that seemingly (to me at least) quite obvious proposition I have taken untold grief, been told what a moral monster and unfit for the practice of law, etc., some of it comments on this blog.  I’m not complaining about abuse in blog comments, but wondering why it is is not sauce for the goose.  Why is it suddenly a morally and legally okay position?

  3. The Bush administration began with the premise that no captured enemy were entitled to the status of Prisoner of War. The administration used this to support coercive interrogation, while administration critics call for criminal charges. However, Afghanistan is a signatory to the Geneva Convention, on 9/10 it had a standing army of 45,000 infantry, a larger army than about 60% of UN membership. The army was not organized along Western principles but was modelled on the ad-hoc coalition of tribal militia and religiously motivated foreign volunteers that defeated the Soviets in the ’80s. However, Article 4 of the Third Geneva Convention requires us to recognize the regular armed forces of a government we do not recognize.

    Al Qaeda supported the training and equipped some soldiers during the fight with the Soviets. It had a similar structural role in the Taliban government. The US estimates that al Qaeda trained 18,000 soldiers during the ’90s, only 19 of whom participated in 9/11. I hope that the next administration is not as glib as the previous administration to simply declare without any argument or logic that an army isn’t a real army and 45,000 soldiers are not real soldiers because 19 guys attacked the US armed only with box cutters.

    If we correct the original mistake, then member of the regular armed forces of Afghanistan would be entitled to combatant immunity for their military activity. They could not be charged for civilian crimes (like conspiracy or providing material support for terrorists) or tried in civilian courts. Those who committed war crimes (like those responsible for the air piracy on 9/11) could be tried, but only in military courts. Civilians could still be charged with crimes.

    Trying a soldier in a civilian court is itself a war crime. Deciding who was a solider and who was a civilian would be difficult, but it is a problem that is long overdue. Before rushing off to potentially violate international law, it is important to sort out the fundamental issued before you just pull a different policy out of thin air without methodical analysis.

    Then some number of current detainees will be held as POWs which means by definition that they cannot be charged and should not be released.

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  1. [...] Kenneth Anderson – The human rights organizations and their allies, unwilling to embarrass the Obama administration, and eager to avoid anything that might lead, as a formal legal doctrine legitimized by a liberal Democratic administration and Congress, to the creation of a genuine preventive detention arrangement, will object, but only pro forma.  The Republicans won’t challenge anything that keeps the worst risks in custody.  How that will go with the lawyers representing individual detainees, I don’t know.  But that’s my guess for how it will play out. [...]