Law and Public Policy

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

Over at Lawfare, Bobby Chesney writes:

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…

(Read the full post at Lawfare.)


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