One of my very favorite readers, who shall go unnamed, writes:
Whenever you do these [overly effusive adjectives removed by editor] critiques of LATimes articles, I suggest you e-mail them as well to both the offending reporter and his/her editor, respectfully asking for their response, and that you then routinely blog those responses (or lack thereof).
I cannot possibly refuse this reader’s request. And so, I have sent this e-mail to Carol Williams, with a copy to national editor Roger Smith:
A recent article of yours asserts that a federal court found that John Ashcroft had violated the rights of U.S. citizens by crafting an unconstitutional detention policy:
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.
But the court said no such thing. Instead, the court carefully explained that it was required to assume the plaintiff’s facts to be true for purposes of reviewing a motion to dismiss:
[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.
The court added 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.
The court clearly said that it had not made the factual findings that you claimed it had made.
Similarly misleading was your suggestion 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.”
You here imply that all three members of the panel signed on to that quote. But a dissenting judge said precisely the opposite:
The majority opinion closes with a quote from Blackstone. [The Blackstone quote immediately precedes the language you quote in your article.] 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.
This 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.
While you do tell readers, at the tail end of the article, that one judge concurred in part and dissented in part, you did not communicate to readers that this judge fully agreed with Ashcroft’s position — and indeed, concurred only in that portion of the majority opinion that ruled in favor of Ashcroft.
I believe that the article was substantially misleading to readers, and I would like to know the reaction of you or your editor to my points.
In accordance with my reader’s request, I will blog any response I receive.