Sunday, April 28, 2013

Guantanamo as a "Political Prison"

Mark Tushnet

The Lawfare blog is a useful source for a moderately conservative spin (Steve Vladeck's posts are an exception to the spin) on developments in the law of counterterrorism -- not as useful as Marty Lederman's less frequent posts here, of course. There is, however, one real cost to reading Lawfare -- Ben Wittes's obsession with the New York Times's editorial page. His most recent post on the topic is particularly egregious. Its header is "The New York Times Declares Al Qaeda Membership Legitimate Political Activity." One clue to the difficulty is Wittes's restatement of his point: The editorial "inevitably suggests that the detainees at Guantanamo are 'political prisons,' which in turn connotes prisoners of conscience." Note how suggests and connotes turn into declares.

Substantively, Wittes's objection is that the editorial refers to Guantanamo as a "political prison," with the ensuing suggestion and connotation. But, I would have thought, the natural reading of the phrase is that Guantanamo is a prison maintained for political rather than penological (or similar) reasons, without suggesting that those detained there are prisoners of conscience. And that reading seems to me accurate enough.

Wittes's readings of the Times's editorials are not "sharp" or "astute"; they are systematically distorted by an astigmatism whose source lies in Wittes, not in the Times. (Which is not to say that the editorials are always right -- although I do observe that Wittes has taken to writing recently that the editorials he discusses do not "contain[] many factual errors in the sense of factually-false statements of the type I normally note," which is a reasonably disgraceful thing to say.) And, the effect is not only to reduce the blog's overall usefulness, but to lead this reader to distrust Wittes's readings of other documents he sometimes deals with. All in all, someone ought to take him out to the woodshed to cure him of his obsession.

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