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Response to NYT’s Public Editor on Greenhouse Conflict—Part 1



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As I previously noted, in his column in Sunday’s New York Times, Clark Hoyt, the paper’s public editor (its “readers’ representative”) addressed my complaint—see here and here (and, for more, here and here)—about Linda Greenhouse’s coverage of Supreme Court cases in which her husband has participated.  I’m going to discuss Hoyt’s column in this post and three or so subsequent ones.

Although it’s tempting to rush right away to refute Hoyt’s strange and baseless criticisms of me, it makes more sense to address a couple other topics first.  In this post, I examine Hoyt’s substantive analysis. 

At bottom, Hoyt agrees with my complaint that Greenhouse had a conflict of interest and that the Times did not deal with it properly.  In his words:  “Like it or not, the perception is that Greenhouse is writing about something in which her husband is a player—and The Times isn’t telling the public.”  But Hoyt makes some odd turns and ends up rather lost.  A quick overview:

1.  Hoyt assures the reader that he read each of Greenhouse’s articles in the two cases at issue (Hamdan, decided in 2006, and the pending Boumediene case) and that he found no instances of bias in her reporting.  It’s remarkable that Hoyt would imagine that he has the background knowledge necessary to detect any bias.  Indeed, the most important of Greenhouse’s articles to date—her morning-after report on Hamdan—is regarded by many as stunningly biased.  Here are the first four paragraphs of a September 2006 book review by law professor Peter Berkowitz (who, I’m pleased to note, is on the policy advisory board of the Ethics and Public Policy Center, the institute I head): 

In late June, Linda Greenhouse of the New York Times breathlessly reported on the front page, above the fold and under a big headline, that in the just-announced case of Hamdan v. Rumsfeld, the Supreme Court “shredded each of the administration’s arguments.” The decision–which held that, as organized, the military tribunals the Bush administration had created to try unlawful combatants seized on the battlefield in Afghan istan, were contrary to federal law and a provision of the Geneva Conventions–was, Greenhouse gushed, “a sweeping and categorical defeat for the Bush administration.”

 

Indeed, she proclaimed, the decision was a “historic event, a definitional moment in the ever-shifting balance of power among the branches of government that ranked with the court’s order to President Nixon in 1974 to turn over the Watergate tapes or with the court’s rejection of President Harry S. Truman’s seizing [in 1952] of the nation’s steel mills.”

 

Never mind that the Court had not questioned the government’s right to detain Salim Ahmed Hamdan, allegedly Osama bin Laden’s driver and bodyguard, without charge or trial, as an unlawful combatant, until such time as the conflict between the United States and al Qaeda comes to an end. Never mind that, in a paragraph-long concurring opinion, Justice Breyer emphasized that much, if not all, of the military tribunal procedures designed by the Bush administration would pass legal muster if explicitly authorized by Congress. Never mind that the Court’s opinion commanded only a narrow five-justice majority. And never mind that Justices Scalia, Thomas, and Alito each authored powerful dissents that elaborated serious objections to which the majority’s principal legal arguments are exposed. (Chief Justice Roberts did not participate in the case because, as judge on the D.C. Court of Appeals, he joined the opinion, which Hamdan reversed, upholding the administration’s military tribunals.)

 

What was truly remarkable about Greenhouse’s performance–her lengthy article was not an op-ed column or piece of “news analysis” but a news story of the sort customarily intended to provide a dispassionate and well-rounded account of the facts–was the omission of a single reference to the features of America’s national security situation that motivated the Bush administration to turn to the use of military tribunals. In this failure to put national security considerations into the balance, let alone give them their due weight, Greenhouse and her editors at the Times typify the complacency and shortsightedness in thinking about constitutional rights and the war on terror that Judge Richard Posner’s trenchant new book seeks to correct. 

So much for Greenhouse’s lack of bias.  And so much for Hoyt’s criticizing me for stating (in what he labels “a slippery innuendo”) the impossibility of separating any bias resulting from her husband’s role from the broader political bias that pervades so much of Greenhouse’s reporting. 

2.  In one of the oddest aspects of his column, Hoyt—the supposed “readers’ representative”—maintains that it is the “constant partisan assault” on news media and the low public faith in them, rather than the duties owed trusting readers, that ought to shape how newspapers deal with conflicts of interest.  If it weren’t for all those conservative meanies, readers could be kept in the dark.

3.  Hoyt declares his view that Greenhouse shouldn’t be barred from reporting on cases in which her husband is taking part.  There may well be persuasive arguments in support of that position, but Hoyt doesn’t provide them.  It’s enough for him that Greenhouse is supposedly the best that the New York Times has to offer.  But I’m confident that the paper has plenty of other reporters who could competently fill in for her.

4.  Hoyt (soundly) says he would have preferred that editors revisit from time to time how to deal with Greenhouse’s conflict.

5.  Hoyt opines that the Times “should have clued in readers” about the fact that Greenhouse was reporting on cases in which her husband participated.  It’s not clear, though, how much of a clue he thinks readers should be given.  He says that the Times “should systematically disclose more” information about its reporters’ conflicts, but he thinks that the website biographies are the place for such disclosures.  If disclosure is an appropriate remedy for conflicts of interest, readers will be sure of receiving that disclosure only if it accompanies the very article that presents the conflict.


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