Today, more than one month after I informed Mr. Clark Hoyt, the New York Times’s public editor (or ombudsman), of Linda Greenhouse’s conflict of interest in reporting on Supreme Court cases in which her husband has participated, I received an initial response from Mr. Hoyt. In service to the value of transparency that the New York Times advocates—at least for others—I copy here the text of Mr. Hoyt’s e-mail response (emphasis added):
Thank you for writing. I am aware of your blog post and am looking into the issue. Linda Greenhouse tells me, categorically, that her husband, Eugene Fidell, has never represented any detainee, is not involved as a lawyer in the case about which you wrote and did not file a brief in that case. I’d appreciate it if you could steer me to the brief you said he filed.
I have just sent Mr. Hoyt two e-mails in reply. Here’s the heart of the first:
My blog post refers to two separate cases:
1. Here is the amicus brief in the Hamdan case in which Mr. Fidell is listed on the cover of the brief as counsel of record. As the brief states, it is submitted “in support of” the detainee Hamdan. The actual amici that Fidell was representing were the National Institute of Military Justice and the D.C. Bar.
2. In the pending Boumediene case, Mr. Fidell submitted an amicus brief in the D.C. Circuit “in support of” Boumediene and other detainees. Here’s the D.C. Circuit’s opinion. On page 4, Mr. Fidell is listed as having submitted an amicus brief for the National Institute of Military Justice “in support of the detainees”. (I don’t have a copy of the actual brief; I’ll see if I can obtain it. [It's item 2 in second e-mail below.])
As my blog post notes, in the Supreme Court briefing in Boumediene, Mr. Fidell is listed in the amicus brief submitted (in support of petitioner detainees) on behalf of the Constitution Project (and other entities) as one of the signatories to the Constitution Project’s Statement on Restoring Habeas Corpus Rights Eliminated By The Military Commissions Act. That amicus brief is here.
To sum up:
I don’t see what significance Linda Greenhouse could possibly attach to the question whether her husband was representing a detainee (as opposed to an amicus in support of the detainee), and I never stated that he was. Mr. Fidell “is” not presently involved as a lawyer in Boumediene. But he was involved as a lawyer, and did submit a brief, in this same case at the D.C. Circuit stage, and he has been and remains publicly aligned, as a signatory to amicus Constitution Project’s statement, with the position of the detainees. Further, he submitted an amicus brief in the Supreme Court in support of the detainees in Hamdan, so it would seem difficult for Ms. Greenhouse to reconcile whatever line she is trying to draw in the Boumediene case with her course of conduct in Hamdan.
And here’s the second:
1. Here’s an amicus brief submitted in the Supreme Court on behalf of the National Institute [of] Military Justice in Boumediene. < Mr. Fidell is president of the National Institute [of] Military Justice.
2. Here’s the amicus brief submitted by Mr. Fidell in the D.C. Circuit in the Boumediene case.
At the risk of spelling out the obvious:
1. When Greenhouse tells Hoyt “categorically” that Fidell “has never represented any detainee,” she is making an irrelevant evasion. By representing amici in support of detainees in both the Hamdan and Boumediene cases (the former in the Supreme Court, the latter in the D.C. Circuit stage), Fidell was actively participating in the same cases that Greenhouse was reporting on. Moreover, the fact that the National Institute of Military Justice—the entity that Fidell heads—has filed an amicus brief in support of detainees in the Supreme Court in the Boumediene case independently raises a conflict of interest for Greenhouse, as does Fidell’s separate status as signatory of a statement submitted by amicus Constitution Project.
2. When Greenhouse tells Hoyt “categorically” that Fidell “is not involved as a lawyer in the case about which you wrote” (by which he evidently means only to refer to Boumediene), she obscures the fact that Fidell was involved, and submitted an amicus brief, at the D.C. Circuit stage of the same case and, equally or more importantly, that the entity he heads remains involved as an amicus in the Supreme Court proceeding. She also fails to explain how she could report on the Hamdan case, where Fidell was “involved as a lawyer” at the Supreme Court, as he filed an amicus brief on behalf of the National Institute of Military Justice.
3. When Greenhouse tells Hoyt “categorically” that Fidell “did not file a brief in” Boumediene, she obscures the fact that Fidell did file an amicus brief at the D.C. Circuit stage of the same case and, equally or more importantly, that the entity he heads filed a brief in the Supreme Court proceeding. Again, she also fails to explain how she could report on the Hamdan case, where Fidell did file a brief.
Memo to Greenhouse: It’s well past time for you to come clean. Remember, it’s always the coverup that kills you.