Monday, January 02, 2012

PolitiFact rules ACLU claims: Mostly False?

Last month, Glenn Greenwald wrote a post criticizing W. Gardner Selby's Politifact analysis of one of Ron Paul's recent statements:

PolitiFact and the scam of neutral expertise

Greenwald pointed to Selby's work as, yet another, example of politically biased sources being cited as "neutral experts". From the blog post:

But the real import of PolitiFact‘s analysis is that it relies entirely on two supposedly neutral legal “experts”: The Brooking Institution’s Benjamin Wittes and University of Texas Law School’s Robert Chesney, both of whom co-founded and write together on the “Lawfare” blog (along with former Bush DOJ lawyer Jack Goldsmith). That duo mocks as “nonsense” and “preposterous” Paul’s view that these new AUMF standards vest the President with dangerous levels of discretion. They ridicule Paul’s concerns even as Chesney admits that “Paul fairly points out the lack of a definition of associated forces.” PolitiFact then blindly relies upon what these two experts told them to declare Paul’s concerns to be “largely false.”

Just on the level of credentials, in what sense is Wittes — who, just by the way, is not a lawyer and never studied law — more of an expert on these matters than, say, Ron Paul or Kevin Drum? And why are the pronouncements of Robert Chesney that this AUMF language is not dangerously permissive more authoritative than the views on the same topic of ACLU lawyers or Professor Hafetz, who say exactly the opposite? Both Wittes and Chesney are perfectly well-versed in these issues, but so are countless others who have expressed Paul’s exact views. Why is the Wittes/Chesney opinion that these AUFM standards are perfectly narrow and trustworthy — and that’s all it is: an opinion — treated by PolitiFact as factually dispositive, while the views of Paul and those who agree with him are treated as false? That is preposterous nonsense.

As Greenwald points out, the ACLU, an organization that employs the top constitutional law experts in the country, had echoed Paul's concerns about the bill, but were not cited in this article. Was this an oversight?

I e-mailed Politifact, to see if they had a response to Greenwald's piece, and was contacted by Mr. Selby himself. The only problem with the article, he insisted, was that he had incorrectly referred to Benjamin Wittes as a lawyer. He acknowledged that there were many groups, including the ACLU,  that were discussing this issue, and claimed he contacted the ACLU to request a "sideline expert" for his article.  I responded with the following:

If you were aware that there were many groups making the same point as Ron Paul, then why is there no mention of them in the article? How do you purport to provide a factual analysis of his statement without citing all available facts?

Did you choose not to cite the opinions of the ACLU or any of these other groups because none of them responded to you in time? 

In response, he stated there were "no advocacy groups" mentioned in the article. It appears he didn't believe it was necessary to cite those experts, because he cited and quoted Paul's spring update, which explained his view on the issue.

I took that to mean he felt it would be redundant to cite both Paul's spring update and the ACLU's arguments on the issue. If that's the case, since he has judged Paul's position here as "mostly false", he is also judging the ACLU's claims here as "mostly false".

When I asked if this was really the case, he stopped responding to me (and, consequently, never gave me permission to publish our e-mail exchange in full).


Since Politifact published that piece, numerous experts have weighed in on Paul's side of the debate.

Tom Malinowski, Washington Director for Human Rights Watch and former special assistant to President Bill Clinton, wrote the following for Foreign Policy:

What Libyan Rebels Could Teach Obama About the Rule of Law

President Barack Obama had threatened to veto the legislation, but now says he will sign it. There are "waivers" in the bill that will allow him -- and future presidents, should they agree with him -- to evade its strictures. But the Congress has nonetheless made the militarization of law enforcement against terrorism the rule in America going forward. Civilian justice is to be the exception -- employed only on those occasions when the president of the United States personally waives the rule.

A couple weeks after critiquing Politifact's piece, Glenn Greenwald, himself a former Constitutional and civil rights litigator, weighed in on the ramifications of the bill:

Three myths about the detention bill 

Myth #3: U.S. citizens are exempted from this new bill

This is simply false, at least when expressed so definitively and without caveats. The bill is purposely muddled on this issue which is what is enabling the falsehood

...The only provision from which U.S. citizens are exempted here is the “requirement” of military detention. For foreign nationals accused of being members of Al Qaeda, military detention is mandatory; for U.S. citizens, it is optional. This section does not exempt U.S citizens from the presidential power of military detention: only from the requirement of military detention.

This past week, the ACLU reiterated it's stance on the bill as President Obama signed it into law:

President Obama Signs Indefinite Detention Bill Into Law

President Obama's action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law,” said Anthony D. Romero, ACLU executive director. “The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.  The ACLU will fight worldwide detention authority wherever we can, be it in court, in Congress, or internationally.

In rating Paul's position here as "mostly false", Mr. Gardner has caused Politifact to take a political stand in an ongoing legal debate, which goes far beyond their mission of simply "fact-checking" political statements.

Has Mr. Gardner allowed his personal political biases to compromise his journalistic integrity? Perhaps his article was just poorly researched, and he is too proud to issue a retraction. Whichever the case, it's grossly unprofessional, and so long as it stands uncorrected/unretracted, it should be a source of embarrassment to an organization that believes:

we are true believers in journalism as an instrument of democracy. Even as we seek to reach customers in new ways, we see our primary obligation as helping citizens participate fully in the democratic process. 

Passing off politically biased material as "neutral" neither helps the democratic process, nor is it an example of good journalism.

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