Scalia: A legend in his own mind

In his dissenting opinion in Boumediene v. Bush, which conferred the right of judicial review on detainees at Guantanamo and elsewhere, Antonin Scalia flatly declared:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

In support of this contention, he claims:

In the short term... the [majority's] decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.

He goes on to cite several incidents from the GWOT "battlefield" — a very flexible concept for Scalia — as alleged in such sources as the minority report of a Senate committee and several articles from WaPo. Most of the alleged incidents occurred in 2004.

Mark Denbeaux, a professor at Seton Hall University School of Law (SHUSL), with the assistance of several law students, deconstructed Scalia's claims in a detailed 22-page report that found:

"Justice Scalia’s reliance on the these sources would have been more justifiable had the urban legend he perpetuated not been (one would have thought) permanently interred by later developments, including a 2007 Department of Defense Press Release and hearings before the House Foreign Relations Committee less than two weeks before Justice Scalia’s dissent was released.

[...]

"Justice Scalia’s claim of 30 recidivist detainees is belied by all reliable data. Such a statement simply repeats, without appropriate judicial analysis or skepticism towards the statements of parties before the Court, inaccurate data disseminated by the Department of Defense. Despite being repeatedly debunked, this statement has been reflexively accepted as true by Members of Congress and much of the American public. Justice Scalia is only the most recent disseminator of an urban legend that refuses to die."

The SHULS study found that only one released Gitmo detainee (designated "ISN 220") later took up arms against U.S. forces or their allies, and he was not released as a result of any legal process. In fact, the report found that "the decision to release ISN 220 was made by political officers in the Department of Defense and was contrary to the recommendations of the military officers."

Scalia's false claims go to the heart of the rationale for holding detainees without judicial review: if any doubt exists, keep them locked up indefinitely for fear that they might attack the U.S. or its allies [1]. This falsehood will be repeated many times by October 8th, when the first Gitmo trial begins.

Scalia's dissent is yet another variant of the Willie Horton Syndrome (see below and here) in U.S. politics. No politician or member of SCOTUS wants to be blamed for the release of a prisoner who later attacks U.S. troops or civilians. While this impulse may be understandable, an opaque system that includes torture and indefinite detentions is not the solution. A transparent judicial process is better able to balance legitimate security considerations with the due-process rights of those who have been unfairly accused and imprisoned.

NOTES

[1] Unless there's enough international pressure to force their release, of course.

[H/T to Scott Lemieux at Lawyers, Guns and Money
and M. Duss at Think Progress]