L.A. Times’s Carol Williams Badly Misstates Holding of Federal Decision Regarding John Ashcroft
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.
UPDATE: Thanks to Hugh Hewitt for the link. Thanks also to Michelle Malkin for linking the post.
You see, it is all about how this person feels.
Facts don’t matter as much as feelings. Watch the reaction to your critique—“yeah, but…” Too bad the law isn’t supposed to be about that kind of thing. It’s starting to, though.
Get ready for a LOT more of this.
Eric Blair (721b15) — 9/5/2009 @ 12:21 pmPatterico…
If you didn’t get that patio furniture before, I see the LA Times does have some ads with nice looking sales on the stuff.
Other than that I thought the paper sucked today… they also took “locals” assertions regarding civilian casualties from a NATO bombing of hijacked fuel trucks at face value…. before the on the ground investigation has even begun.
SteveG (97b6b9) — 9/5/2009 @ 12:31 pmNot that the Reader’s Rep will find anything wrong with the article, and will ignore any suggestion otherwise…
Scott Jacobs (d027b8) — 9/5/2009 @ 12:34 pmI don’t see anything for it but that stupid judges like these ones need to anticipate how dirty socialist journalists will not might twist what they write. In future they need to directly and clearly address what their opinion does not say as well as what it does say. That’s the very real world they live in and they need to deal with it. The dirty socialists journalists are a known known. The stupid judges gave this dirty socialist Los Angeles Times hoochie her dirty socialist propaganda fodder on a silver platter it seems to me. They should apologize to Mr. Ashcroft cause of how stupid they are.
happyfeet (6b707a) — 9/5/2009 @ 12:35 pmThe Times is beyond irresponsible. The sooner they close up shop the better.
Mike K (4baa9f) — 9/5/2009 @ 12:42 pmThe article is obviously false, and the allegations obviously defamatory. Is it actionable yet?
I doubt if Ashcroft will sue, but I hope he does.
Fred Z (f7d2b1) — 9/5/2009 @ 12:54 pmThey must have all of their editors and staff working overtime on the Van Jones story and just did not have time to read the decision closely.
Huey (b957d9) — 9/5/2009 @ 12:55 pmDoes this clueless twit have a law degree? Or is she simply in waaaay over her head?
Mike Myers (3b216c) — 9/5/2009 @ 1:00 pmSomeone this incompetent should not be writing articles about appellant decisions. While the posture of a case at this point is a technical matter, the language of the opinion itself clearly states what are and what are not factual judgements versus assumptions made for the purpose of the appeal.
Basic incompetence.
SPQR (26be8b) — 9/5/2009 @ 1:02 pmThey shouldn’t even be writing about the Neighborhood Association’s latest meeting. There is some serious “duuuuuuuuuh” going on here.
Scott Jacobs (d027b8) — 9/5/2009 @ 1:04 pmTruth is irrelevant. Agenda is the overriding factor. In all instances when agenda fails the truth test, redact all references with truth and run with agenda. That is how you build your small-business periodical (out of a big-business periodical).
John Hitchcock (3fd153) — 9/5/2009 @ 1:14 pmDoes this clueless twit have a law degree?
Does that make a difference anymore? Our elected representatives are well – represented from the law professions, yet are not even able to articulate the basic tenets of the Constitution during the townhall meetings going on last month.
Dmac (a93b13) — 9/5/2009 @ 1:14 pmAt the Los Angeles Times, there are
Official Internet Data Office (4e6ad1) — 9/5/2009 @ 1:18 pmfourthreetwooneno layers of editors.In the 3rd paragraph of her story Williams describes the panel as consisting of judges appointed by Republican presidents.
I believe there was a recent post here about the LA Times not mentioning judges in a controversial ruling having been appointed by Democrats. I haven’t been able to find it in the archives. If anyone recalls that post please give the details. I would like to compare the 2 stories for the readers’ representative.
Stu707 (0981d5) — 9/5/2009 @ 1:20 pmHere is the LAT bio on Williams,
CJ [Carol J. Williams] will take up the legal affairs beat that was until recently held by Henry Weinstein and is a worthy successor to him. Her 25 years as a correspondent — 18 for The Times — has brought CJ to Moscow, the Balkans, Afghanistan, Iraq, Haiti and Cuba, among other newsworthy but often uncomfortable datelines. She has covered wars and revolutions, the building up of market economies and the breaking down of empires. She is currently based in Miami, dividing her reporting between the Foreign and National staffs. Her assignments have included the 2004 rebellion in Haiti, the transfer of power from Fidel Castro to his brother Raul, several hurricanes and, most notably, the detention facilities and war crimes court at the U.S. naval base at Guantanamo Bay.
Dana (863a65) — 9/5/2009 @ 1:25 pmIn all of those assignments, CJ has demonstrated the insight, energy and drive that have made her among the best foreign correspondents in the business. A native of Rhode Island, she graduated from high school on Guam, earned a BA from the University of Washington, then started her journalism career with newspapers in the Seattle area before going overseas with the AP, for whom she won the first of four Overseas Press Club awards in 1988. She joined The Times in 1990.
In articles discussing elected officials’ legal and moral lapses but omitting party affiliation, I automatically decide it is an article about Democrats. Articles discussing elected officials’ legal and moral lapses and include party affiliation almost invariably point to Republicans.
I do not have a sense of the “feeling on the street” regarding political appointees. But when a “journalist” feels the need to point out all the appointees presiding were Republican appointees, it is obvious to me that inclusion was not for honorable “just the fax, ma’am” reasons but for agenda-promotion.
When I was doing my UoP thing recently, I noted the message that “everyone has a bias” and it was important to understand the bias in order to more accurately read or listen, but there was absolutely no mention of agenda. While I agree that everyone is biased, someone writing or speaking from an agenda is far different and far more dangerous than bias. Especially if that person is purported to be providing “news.”
And today, it isn’t important to note the state-run media’s bias. It is important to loudly point out their agenda.
John Hitchcock (3fd153) — 9/5/2009 @ 1:38 pmI don’t know about the accuracy of L.A. Times article, but I looked at the case of Abdullah al Kidd, and it appears to me that he was wrongfully detained for 16 days, and IMO, he’s entitled to some serious compensation.
Based on information in several articles I’ve read, the government screwed up and injured this man, and they need to make things right. This should be done without making the guy go through a lengthy court battle.
Dave Surls (ed699f) — 9/5/2009 @ 1:39 pmThe Readers’ Representative can be reached at Readers.Rep@latimes.com. Surprising that the dying tomb can still can afford to employ one given the diminishing volume of readers and its financial situation. Perhaps it’s an unpaid internship. The quicker that paper folds the better.
DCSCA (9d1bb3) — 9/5/2009 @ 1:56 pm“Fevered”?! Come to think of it, I myself was arrested two or three times.
More writerly hyperbole from the LAT.
Patricia (7aaa75) — 9/5/2009 @ 2:33 pmStu707:
Here’s the link.
Patterico (cc3b34) — 9/5/2009 @ 2:34 pmThat was the link to my post. Here is the link to the article.
Patterico (cc3b34) — 9/5/2009 @ 2:36 pm17.I don’t know about the accuracy of L.A. Times article, but I looked at the case of Abdullah al Kidd, and it appears to me that he was wrongfully detained for 16 days . . .
al-Kidd:
(1) listed on a Web site jihad as an interest; the FBI interpreted this as a reference to a holy war.
(2) sold tapes and books containing the teachings of radical sheikhs when he lived in Idaho.
(3) owned a video that had to do with the hijacking and terrorist events on September. 11, 2001.
So what? Nothing, and he was released after two weeks, having nothing of interest to offer.
Charles Bell (df0c6f) — 9/5/2009 @ 3:22 pmWhile I agree that Williams badly misstated what the ruling was about (how couldn’t I?), after reading the decision and the other stories this is a pretty disturbing abuse – on the surface – of the government’s policy on material witness detention.
To be sure, lousy journalism is a problem but compared to what was allegedly done here to Mr. Kidd without, it seems, probable cause, it’s secondary.
Lousy reporting, even lousier, it appears, law enforcement.
SteveMG (e83192) — 9/5/2009 @ 3:48 pmAny time you swallow the plaintiff’s complaint whole, it looks like he really got screwed. That is, if his lawyer did a good job.
Patterico (cc3b34) — 9/5/2009 @ 3:49 pmWait – didn’t you know that we have a “living Constitution” and it only means what 5 SCOTUS justices says it means? Shame on you for actually thinking the document means what the words state.
Horatio (e2e328) — 9/5/2009 @ 4:01 pm[…] Angeles Times is dying When their writers can’t get the facts straight, perhaps even deliberately distort them, who needs […]
Why the Los Angeles Times is dying « Public Secrets (05b5a7) — 9/5/2009 @ 4:13 pmFirst of all, it needs to be determined whether or not the decision to use Material Witness Warrants in this instance was done by political, or career, prosecutors within the DoJ, and was subsequently approved by political higher-ups, or not.
Secondly, did this individual have any particular valuable information, and did the Government have a reasonable suspicion that he did?
Not having read the appellate decision, just the reports here and elsewhere, my impression is that my questions are what the District Court is to determine in an ongoing case, if al Kidd can survive Summary Judgement.
Last re The Times and Ms.Williams:
AD - RtR/OS! (552fc3) — 9/5/2009 @ 4:27 pmAgenda Journalism is all about Teh Narrative!
After all, it’s Chinatown!
Any time you swallow the plaintiff’s complaint whole, it looks like he really got screwed.
Sure, which is why I included the qualifiers.
Do you think it was inappropriate for the two judges to make such sweeping statements based on this complaint alone? They made some pretty damning charges.
SteveMG (e83192) — 9/5/2009 @ 5:41 pmDo you think it was inappropriate for the two judges to make such sweeping statements based on this complaint alone? They made some pretty damning charges.
You’re going to have to give me quotes.
I see a lot of: “Based on the allegations . . .” and language like that.
“It seems,” “it appears,” and “on the surface” mean you’re swallowing the plaintiff’s complaint. The judges don’t say they do.
Patterico (cc3b34) — 9/5/2009 @ 5:53 pmYou’re going to have to give me quotes
Sure, let’s try their Blackstone quote:
[I]f the facts alleged in al-Kidd’s complaint are actually true, the government has recently exercised such a “dangerous engine of arbitrary government” against a significant number of its citizens, and given good reason for disfavored minorities (whoever they may be from time to fear the application of such arbitrary power to them.
That’s going beyond, even with the qualifiers, whether Ashcroft had immunity, limited or full, from the complaint.
Again, I’m agnostic (if not worse) and wonder whether that was appropriate. It clearly, to me, indicates, implicitly if not explicitly, that they believed the charges by Mr. Kidd either wholely or in part.
Otherwise, why include them?
SteveMG (e83192) — 9/5/2009 @ 6:26 pmSorry Patterico, this guy was abused and arrested for 16 days. Did you read the harm suffered by the gentleman after his arrest? The mere fact the judges denied limited/qualified immunity for Ashcroft and use the harsh terms in the decision indicates something is there. What we should do is admit we made a mistake and make this guy whole. Sometimes as humans we are going to make mistakes. Sometimes the easiest remedy is just to admit it the mistake and make the injured party whole. Besides the whole immunity theory is legal fiction and shouldn’t be allowed.
MICHAEL SPENCER (a61f2f) — 9/5/2009 @ 6:35 pmDana,
That bio was most revealing about the illogical thinking of LA Times editors. Nothing about her qualifications for a legal gig. Much about her foreign correspondent experience.
Brother Bradley J. Fikes, C.O.R. (0ea407) — 9/5/2009 @ 6:39 pmMICHAEL SPENCER DID YOU READ PATTERICO’S POST? HOW DOES WHAT YOU WROTE HAVE ANYTHING TO DO WITH THE ABJECT DIDHONESTY OF THE LA TIMES?
JD (db7dee) — 9/5/2009 @ 6:46 pmThe LA Times needs to report accurately, perhaps even more so with legal issues because it’s easy for laymen and even lawyers to misunderstand what’s going on. Surely no one here believes that because this could be a sympathetic plaintiff, that makes it okay to misstate what the court ruled?
DRJ (3f5471) — 9/5/2009 @ 6:51 pmSo the court didn’t bother to ascertain the facts before making a determination, I know it’s the 9th Circuit so I shouldn’t be surprised, but I guess I am.
bishop (996c34) — 9/5/2009 @ 6:54 pmSo the court didn’t bother to ascertain the facts before making a determination, I know it’s the 9th Circuit so I shouldn’t be surprised, but I guess I am.
The court is not supposed to, when hearing an appeal from a denial of a motion to dismiss.
Patterico (cc3b34) — 9/6/2009 @ 2:55 amWe used to say in the news business, never let the facts get in the way of a good story.
Now, its never let the facts get in the way of the Democrat Media Complex agenda.
Alta Bob (e53677) — 9/6/2009 @ 7:35 amAs Patterico says, bishop, you are missing what the court is deciding here. Indeed, that’s the point of the post, that the reporter is clueless about the opinion ( she lacks an excuse, she’s supposed to be a reporter on legal topics ).
Here, at this point in the case, the court has to assume that the plaintiff can prove everything in their complaint. It does not matter what is or is not actually “true”. The whole point is the sufficiency of the complaint itself to make allegations that result, IF TRUE, in a successful legal case for the relief they demand.
SPQR (26be8b) — 9/6/2009 @ 8:19 amMICHAEL SPENCER IS RIGHT AND YOU RACIST WINGNAZIS LURVS YOU SOME WAR AND TORTURE
JD (bd7f0f) — 9/6/2009 @ 8:45 am@20, 21
Thanks, Pat.
Stu707 (0981d5) — 9/6/2009 @ 9:22 amComment by JD — 9/6/2009 @ 8:45 am
Go easy on that Sacremental Wine, it’s still early!
AD - RtR/OS! (fad78f) — 9/6/2009 @ 9:32 amThe criticism of Carol Williams was misleading.
It was clear that if Ashcroft were innocent, the government bragging in the press (about the success of preventing terrorism by detaining possible future terrorists) was lies and the FBI testimony to Congress was perjury. Of course if it goes back to District Court, al-Kidd will have to show clearly the truth of what was alleged and connect Ashcroft to his own statements and the FBI.
Williams’ second paragraph was:
In a ruling that said Ashcroft could be sued for prosecutorial abuses, a three-judge panel of the U.S. 9th Circuit Court of Appeals denied the former attorney general immunity from liability for how he used the material witness warrants in national security investigations.
Patrick said, “Williams also falsely suggests that the panel unanimously condemned Ashcroft,” but of course that was not the case. Since sometimes one judge decides, sometimes more, she merely was describing the number on the panel. Just as when we say that “the Supreme Court ruled…” doesn’t mean it was unanimous unless so stated, his criticism is unwarranted. She clearly stated in the article that one judge disagreed.
Ashcroft did not deny that al-Kidd’s rights had been denied, only alleged that he could not be held responsible for it.
The dissenting opinion makes sense only if one ignores the media quotes and Congressional testimony bragging about al-Kidd and Al-Hussayen being prime examples of the government’s success in keeping us safe!
Two judges agreed:
http://www.ca9.uscourts.gov/datastore/opinions/2009/09/04/06-36059.pdf
Drawing on our “judicial experience and common
sense,” as the Supreme Court urges us to do, we find that al-Kidd has met his burden of pleading a claim for relief that is plausible, and that his suit on the § 3144 claim should be allowed to proceed. Id. at 1950.
1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS oF ENGLAND 131-32 (1765). The Fourth Amendment was written and ratified, in part, to deny the government of our then-new nation such an engine of potential tyranny. And yet, if the facts alleged in al-Kidd’s complaint are actually true, the government has recently exercised such a “dangerous engine of arbitrary government” against a significant number of its citizens,
and given good reason for disfavored minorities (whoever they may be from time to time) to fear the application of such arbitrary power to them.
We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint.
Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.
For the reasons indicated in this opinion, we AFFIRM in part and REVERSE in part the decision of the district court.
(All three judges agreed that Ashcroft could not be held responsible for the conditions of al-Kidd’s detainment, since there was no evidence presented that linked him to that.)
Ruth Walker (9a894f) — 9/6/2009 @ 2:02 pm[…] those lines, I still intend to follow up with Carol Williams about that story I blogged about yesterday. Stay tuned for that, and as always, thanks for reading. And if you like it here, spread the word. […]
Patterico’s Pontifications » August Best Traffic Month Since the Election (e4ab32) — 9/6/2009 @ 2:06 pm“So what?”
So, it looks like they threw the guy into a dungeon for 16 days (amongst other things), when he hadn’t done anything wrong.
You can’t do that.
If the articles I’ve read are correct…this guy needs to be compensated.
Dave Surls (315df2) — 9/6/2009 @ 2:24 pmI think we’re very close to the day when the Times’ Rep will change her address to:
PC14 (82e46c) — 9/6/2009 @ 2:44 pmReader.Rep@latimes.com
They are right.
See the Korematsu decision for details.
Michael Ejercito (833607) — 9/6/2009 @ 5:37 pm[…] recent article about a 9th Circuit ruling. Regular readers will recall that I wrote a detailed criticism of Williams’s article, noting that Williams had incorrectly summarized a court decision regarding a lawsuit brought […]
Patterico’s Pontifications » L.A. Times Issues Lengthy Correction to Carol Williams’s Article re Ashcroft (e4ab32) — 9/10/2009 @ 7:13 am