Has My Campaign Succeeded?

The New York Times editorial today contains a notable omission: It does not say that the long-term detention of people at Guantanamo Bay is illegal. For those who have followed my quixotic campaign (here and here and here, for example) to get the Times to stop misstating the law of detention, this raises a question. Has the campaign succeeded? Mind you, if this is victory, it is victory of a limited sort. The Times isn't, to be sure, adopting my policy views or anything like that. But consider: In all of the editorials of which I have complained, there is a clear claim not merely of impropriety but of illegality.

October: "There are more than 170 inmates left in Guantánamo. Only 36 have been referred for prosecution, some very dangerous men. Forty-eight are in a long-term detention that is certainly illegal." December: "These endless detentions clashed with the most basic legal protections of the Constitution. But judges have upheld them because of the public-safety issues involved." January: "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."

Yesterday's editorial, by contrast, does not allege illegality. The closest it gets is where the Times says of the terms of Obama's Executive Order:

These are improvements, as is the more obvious requirement that procedures comply with international laws that ban torture and other forms of inhumane treatment. But the Obama administration has still chosen to accept the concept of indefinite detention without trial, which represents a stain on American justice.

The difference between "a stain on American Justice" and "clearly illegal" may seem like a small change, and it may just be a coincidence. Time will tell, since the Times isn't running a correction or anything. But if it is a deliberate effort to be more accurate, it's not really a small change at all. It's the difference between expressing an opinion within the bounds of the facts and willfully misleading readers on a matter of fact and law.