Memo to the <em>New York Times</em> Editorial Page on Detention and Lawlessness

There are no major factual blunders in yesterday's New York Times editorial on the Guantanamo Bay hunger strikes, and there's actually a fair bit in the editorial with which I agree. But I'd be negligent in my duties as the Times's Unpaid, Unofficial Ombudsman for Factual Matters in National Security-Oriented Editorials (a title I hereby grant myself) if I did not note one important, slippery factual move in the editorial's first sentence: "The hunger strike that has spread since early February among the 166 detainees still at Guantánamo Bay is again exposing the lawlessness of the system that marooned them there." Now normally, when we use the word "lawlessness," we can point to some actual law that has been violated or flouted by the person or people whose conduct we are using the word to describe. Not here. One reads the whole editorial without finding even an accusation that anyone is actually violating the law. Detainees are hungry and desperate. Fair enough. The Obama administration has cleared a bunch of detainees for transfer yet cannot effectuate those orders because it is following the law as set by Congress. Check. The administration refuses to repatriate people to Yemen right now, thus further limiting its ability to close Guantanamo. Yup. Sounds like a thorny, nasty mess, but where exactly is the lawlessness? The Times never says. The closest it comes to addressing this question is at the editorial's bottom, where it says, "The rest [of the detainees] are in indefinite detention---a legal limbo in which they are considered by the government to be too dangerous to release and too difficult to prosecute. Such detention is the essence of what has been wrong with Guantánamo from the start. The cases of these detainees must be reviewed and resolved according to the rule of law." The editorial then ends with the statement, "But the truly humane response to this crisis is to free prisoners who have been approved for release, end indefinite detention and close the prison at Guantánamo." The implication---never quite stated directly---seems to be that indefinite detention itself is a matter of lawlessness. The problem is that to the extent this is what the Times means to imply, it's not true. In fact, it was this very factual claim---which the Times used to make overtly---that caused me to launch my quixotic campaign of fact-checking in the first place (here and here and here, for example). So I'm putting the Times on notice now: You can't avoid my criticism---about which I am sure you are quaking in your boots---by using "lawless" or "rule of law" or any other euphemism for illegal behavior. If you want to call something illegal, you need to be able to make a case that there's a law that it violates. If you can't do that, you are certainly free to criticize the law that permits it (say, the transfer restrictions), but just declaring the whole area "lawless" will not do. Consider yourselves warned.