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Bench Memos

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You Lie!



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Channeling Rep. Joe Wilson, that’s what I barked upon reading a New York Times editorial on Monday (just before embarking on some travel that prevented my writing this until now).  Lamenting the Supreme Court’s denial of certiorari in a case from the Court of Appeals for the D.C. Circuit, the Times’ editors ranted that the case was all about torture, torture, torture, and claimed that, in its ruling last April:

The [lower] court said former Secretary of Defense Donald Rumsfeld and the senior military officers charged in the complaint could not be held responsible for violating the plaintiffs’ rights because at the time of their detention, between 2002 and 2004, it was not “clearly established” that torture was illegal.

I presume that the editorial board of the Times employs one or two people who are competent to read and understand a judicial opinion.  Thus it is unforgivable for the paper to claim, as it does here, that the D.C. Circuit ruled in Rasul v. Rumsfeld last spring that it was not “clearly established,” at the time of the events complained of in Rasul’s case, ”that torture was illegal.”  What was not then ”clearly established,” the court actually said, was whether enemy combatants such as Rasul–apprehended overseas in wartime and held outside the United States, at Guantanamo–had any claims to constitutional rights that could be pressed in a federal court.  The case had absolutely nothing to do with the question whether “torture was illegal,” and the editors of the Times have no excuse not to know this perfectly well.  I expect they do know it, and prefer to retail a falsehood.



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