In an utterly irresponsible article by Carol Williams, the L.A. Times misstates the holding of a federal appellate opinion today:
Then-Atty. Gen. John Ashcroft violated the rights of U.S. citizens in the fevered wake of the Sept. 11 terrorist attacks by ordering arrests on material witness warrants when the government lacked probable cause, a federal appeals court said in a scathing opinion Friday.
The federal appeals court said no such thing.
Simply put, Carol Williams is taking the court’s assumptions — which the court carefully explains are only assumptions — and reporting those assumptions as fact. The L.A. Times is reporting that the court found Ashcroft engaged in illegal behavior, when all we know is that a plaintiff has alleged that Ashcroft engaged in illegal behavior.
Further, as explained below, Williams claims that all three judges on the panel criticized Ashcroft’s detention policy as unconstitutional, when one of the judges says the exact opposite.
Let’s start with Williams’s reporting of assumptions as fact. For technical legal reasons, the court explained that it was forced to temporarily assume for the sake of deciding a procedural issue that everything the plaintiff said about Ashcroft’s alleged policy was true:
[B]ecause Ashcroft chose to exercise his right to appeal before a fuller record could be developed, we proceed as we must in a review of all Rule 12(b)(6) motions, accepting as true all facts alleged in the complaint, and drawing all reasonable inferences in favor of the plaintiff.
This does not mean that the court believes the plaintiff’s allegations are true. The plaintiff could be proved totally wrong about the facts at trial. Indeed, the court itself points out that the plaintiff’s allegations might not even be enough to get past summary judgment:
Were this case before us on summary judgment, and were the facts pled in the complaint the only ones in the record, our decision might well be different. In the district court, moving forward, [plaintiff] al-Kidd will bear a significant burden to show that the Attorney General himself was personally involved in a policy or practice of alleged violations of § 3144.
In other words, the court is here clearly saying that the plaintiff has not yet proved his allegations — even though, according to Carol Williams, the court has already declared the case over and Ashcroft guilty. (More illustration of the point here.)
Williams also falsely suggests that the panel unanimously condemned Ashcroft:
Members of the panel, all appointees of Republican presidents, characterized Ashcroft’s detention policy as “repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”
Williams here implies that all three members of the panel signed on to that quote. It is difficult to find the words to describe how dishonest this implication is. In fact, one of the three judges dissented from the ruling — agreeing only with the portion of the majority opinion that ruled in favor of Ashcroft. (At the very end of the article, Williams notes that a judge dissented in part and concurred in part, but does not explain that the dissenting judge agrees with Ashcroft on every point where he expresses an opinion.) That judge, Carlos Bea, declares in no uncertain terms that he does not agree with the language quoted by Carol Williams:
The majority opinion closes with a quote from Blackstone. [The Blackstone quote immediately precedes the language quoted by Carol Williams. –Ed.] What Blackstone describes and condemns therein—the indefinite and secret detention of individuals accused of no crime in harsh conditions—is simply not a description of this case.
The dissenting judge explicitly says that the plaintiff failed to plausibly allege that Ashcroft was doing anything illegal:
[N]one of the allegations contain facts that plausibly establish Ashcroft’s knowledge that his subordinates were obtaining material witness warrants on the basis of deliberately or recklessly false evidence or on facially invalid warrants. Some of al-Kidd’s allegations suggest precisely the opposite—that Justice Department officials were careful to ensure they had probable cause to believe that the targeted witness had information material to a criminal proceeding and was likely to flee before seeking a material witness warrant. . . . [N]othing in al-Kidd’s allegations plausibly suggests Ashcroft instructed, encouraged, or tolerated his subordinates to detain individuals as to whom there was no objective probable cause to arrest.
In the face of this language from the dissenting judge, it is utterly shameful for Williams to trumpet the earlier quote and suggest that all three Republican-appointed judges declared “Ashcroft’s detention policy” to be unconstitutional.
Is Williams just a know-nothing out of her depth discussing legal opinions — or is there something more sinister going on here? As you evaluate that issue, recall that Carol Williams has for years engaged in a little jihad of her own against the Bush administration regarding the war on terror, particularly relating to Gitmo. In an opinion piece about Gitmo, Williams wrote:
[W]e understood why a hunger strike early this month began with 89 prisoners but swiftly fell off to a few defiant handfuls with the onset of painful and undignified force-feeding.
Are you starting to see where she’s coming from now?
The Readers’ Representative can be reached at Readers.Rep@latimes.com.