The Supposed “Errors” in the NYT Warsame Editorial

by Kevin Jon Heller

As part of his ongoing war against the New York Times, Ben Wittes has a post today entitled “Seven Errors in Today’s New York Times Editorial.”  I occasionally agree with Wittes’ criticism of the NYT; the paper sometimes misstates the law when it criticizes the Obama administration.  But there is nothing erroneous about today’s editorial, and Wittes can only claim error because he fails to mention, much less discuss, the editorial’s most important paragraph (emphasis added):

The Obama administration justifies its handling of the Warsame case under the laws of war. But Mr. Warsame was not picked up on any recognized battlefield. The administration claims continuing authority for military detention, interrogation and trial. This applies not just to battlefield detentions, where it is often appropriate, but to detentions anywhere, and not just to personal involvement in violent attacks, but to a broad range of offenses directly or indirectly related to terrorism. That is far too broad a claim.

This paragraph is absolutely correct.  The US and al-Qaeda are not engaged in a non-international armed conflict (NIAC) in Somalia, nor is there is a different NIAC in that country.  There is also no NIAC between the US and al-Qaeda in Yemen — and even if there was, there is no evidence that Warsame was a member of AQAP or otherwise directly participated in hostilities there.  (Do we even need to discuss the administration’s ridiculous argument that the laws of war apply to Warsame because “[c]ertain elements of Al Shabab, including its senior leaders, adhere to Al Qaeda’s ideology and could conduct attacks outside of Somalia in East Africa, as it did in Uganda in 2010, or even outside the region to further Al Qaeda’s agenda”?)  The claim that the laws of war apply to Warsame’s detention, therefore, rests on the fiction of a global NIAC between the US and al-Qaeda — an idea that only the U.S. accepts, as Claus Kress (who is generally far more sympathetic to US actions than I) discusses in this excellent article.

Once we realize that the NYT’s editorial is based on the US’s indefensible invocation of the laws of war, we can see why the editorial is not, in fact, incorrect.

1) “Ahmed Abdulkadir Warsame, who was seized by American forces in international waters, was secretly held in extralegal detention on a United States naval vessel.”

Wittes claims that “[d]espite repeated statements suggesting that such detention is illegal, the Times never puts forward any legal authority for this proposition. Nor can it. None exists.”  The NYT is absolutely correct, even if its choice of the word “extralegal” is unfortunate.  Because the laws of war do not apply to Warsame’s detention, the legality of that detention is determined by reference to international human-rights law (IHRL).  IHRL does not by any means categorically prohibit detention, but it imposes much stricter limitations on it than IHL.  And there is no question that IHRL does not permit the incommunicado detention of an individual — even one otherwise detainable — for two months, especially when that detention is preliminary to a criminal prosecution.  Warsame’s detention was thus illegal under IHRL.  (For an excellent discussion of the restrictions IHRL places on security detention, see Doug Cassel’s forthcoming article here.)

2) “After weeks of military investigation, a separate team of law enforcement officials concluded that [Warsame] was not a legitimate candidate for military detention and trial.”

Wittes claims that, in fact, “[t]he administration… concluded, rather, that among the various legally-available options for the disposition of his case, it preferred for a variety of reasons to avail itself of an Article III criminal trial.” Here Wittes is simply choosing the least charitable reading of the editorial possible because of his distaste for the NYT.  A person can be eligible for something without being a legitimate candidate for it; “candidacy” is not simply a legal term.  I’m eligible to be President of the United States, but I doubt the Democratic Party would think I’m a legitimate candidate for the job.

3 and 4) “President Obama has created yet another parallel system of unlimited detention and interrogation without rights outside the constitutional norms that served us well for more than two centuries before the Bush administration carelessly and needlessly tossed them aside for terrorism cases after Sept. 11, 2001.”

Wittes claims that, in fact, President Obama “briefly and judiciously used the same parallel system of detention that has existed under two successive administrations since September 11, 2001: military detention of the enemy in an armed conflict authorized by Congress in the AUMF.”  Again, as the NYT rightly points out in the editorial, “military detention” did not describe Warsame’s detention, because his detention was not governed by the laws of war.  AUMF detention is not military detention, at least insofar as it permits the detention of individuals who, from an international law perspective, can be detained only pursuant to IHRL.

5, 6, and 7) “Now [Obama] is drifting toward establishing his own system of extralegal detention and tainted questioning. It is time to stop that drift and return to a constitutional system of law enforcement.”

Wittes responds that “[m]ilitary detention simply is not constitutionally defective, extralegal, unlawful, legally suspect, or any other variation of the vocabulary the Times may think up. It is a lawful means of processing certain terrorist suspects under a large and growing body of law the Times chooses not to acknowledge but which happens to be the law of the land in which the New York Times is published.”   Wittes is obviously referring to the AUMF, but invoking the AUMF does not mean that the editorial is wrong.  The NYT was quite specifically discussing the law of war, not the AUMF — and as we have seen, its claims about Warsame’s detention relative to the laws of war are absolutely correct. The editorial’s harsh rhetoric is also more than justified, given that Warsame’s incommunicado detention was clearly illegal under IHRL.  (As an aside, it also would have been nice to see Wittes acknowledge that the legality of Warsame’s detention is unclear even under the AUMF, as his co-blogger Bobby Chesney did recently.)

The bottom line is that, viewed on its own terms, there is nothing erroneous about the NYT editorial.  That said, the Obama administration ultimately deserves the blame for disputes like this one, because it continually hedges concerning the source of its detention authority.  It would prefer to justify detaining Warsame and other alleged terrorists under the laws of war, because the international community clearly accepts the legitimacy of such detention.  It thus normally begins its defense of a detention decision by invoking the laws of war, as it did in Warsame’s case.  Nevertheless, when its law of war argument breaks down, the administration is more than happy to falls back on the seemingly endless detention authority granted by the AUMF.  As always, it’s heads the US wins, tails the detainee loses.

It is indeed time to stop that drift.

UPDATE: Ben kindly responds to my post here, pointing out that although “it is fashionable in international law circles to discuss the question of whether there is a NIAC in this or that specific location in thinking about the scope of detention authority… that it not the question that the U.S. courts ask when they review a detention case.”  Ben is quite right — when it comes to actual detention decisions, U.S. courts rely solely on the AUMF.  But he once again fails to acknowledge that the NYT editorial wasn’t talking about the AUMF.  As I noted, the editorial specifically addressed the Obama administration’s claim that the law of war justifies Warsame’s detention.  Indeed, “AUMF” appears nowhere in the editorial.  Ben is certainly entitled to think that the NYT’s editorial is pointless or irrelevant or uninteresting.  In fact, I’d be inclined to agree, given that the U.S. has long since abandoned any real interest in taking the law of war seriously when it comes to detention authority under the AUMF.  But he is not entitled to claim that the editorial is wrong — because it’s not.  The law of war does not apply to Warsame’s detention, much less justify it.

5 Responses

  1. Response…I do not understand this clause: “nor is there is a different NIAC in that country.”
    Somalia TFG and former ICU groups are engaged in a NIAC and the link provided says as much. Moreover, the U.S. has recently carried out drone strikes in the areas controlled by former ICU groups.
    Not sure how this might change your conclusions, but Somalia is involved in an NIAC and the U.S. is currently assisting the TFG, albeit on a limited basis, that much is clear.

  2. Warsame was captured in international waters as a suspected member of an enemy armed force during an armed conflict. His capture was reported to the ICRC, whose members visited him on the ship during his detention. The result of the investigation was to transfer him to civilian custody for criminal prosecution.
    This is not like any of the other detention cases because he was not held long term as an enemy combatant. He was captured by the navy in international waters and held for investigation under maritime law and the laws of armed conflict. Two months is not an unreasonable amount of time to investigate someone who might be an enemy combatant or a civilian criminal while you decide which law applies. In war, the armed forces have considerable power to temporarily detain and investigate those who might or might not be enemy combatants, and on the high seas the right of warships to temporarily detain is even more clearly established. Of course, most of the precedents date back to a time when it took months to travel anywhere so a few months on board a ship would be a routine time frame.
    Maritime detention does not require enemy combatant status. All enemy civilian able seamen are subject to detention during an armed conflict. The Graf Spee detained the crews of all the civilian cargo ships it sank until they could be transferred to other ships, and that reflected centuries long traditional practice.

  3. Prof Heller,

    After noting the conditions  of detention (e.g, held incommunicado), you write at one point “Warsame’s detention was thus illegal under IHRL.” Is it the case under IHRL that if certain conditions of detention are not met then the detention itself becomes unlawful? Or can it be the case that the act of detaining remains lawful but certain rights have been breached? I am not asking this rhetorically — I am not an IHRL scholar.

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  1. […] at Opinio Juris, Kevin Jon Heller gamely steps up to the plate to defend yesterday’s New York Times editorial: As part of his ongoing war against the New York […]

  2. […] underway between Ben and Kevin (the most recent contribution to it is here).  In an update to an earlier post, Kevin writes: Ben is quite right — when it comes to actual detention decisions, U.S. courts rely […]