Justice Scalia and the Urband Legend of Recidivist Guantanamo Detainees

By Adam Deutsch

In the recent pinnacle Supreme Court decision Boumediene v. Bush, the court decided by narrow majority that alleged terrorists held as prisoners at Guantanamo Bay, have a right to access US courts to refute their prisoner status and argue for release. The decision has raised controversy and concern for many reasons. Justice Antonin Scalia’s dissent fueled the fire by using rescinded false statements made by the Department of Defense to argue that the US will be at a great security risk by allowing prisoners to access the court system, rather than relying on the Federal Government and military to determine what prisoners are eligible for release.

Using a June 2007 Senate Minority Report based on misinformation provided by the Department of Defense, Scalia illustrated the future “danger” posed by the decision, writing “at least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.” Scalia’s statement has been proven false by recent Congressional hearings and additional press releases from the Department of Defense. Scalia’s use of knowingly rescinded information discredits the integrity of the Supreme Court, and serves to perpetuate a series of false information and unwarranted fears held by the general public.

In the latest report commissioned by Congress and published by the Seton Hall University School of Law Center for Policy and Research, entitled Justice Scalia, The Department of Defense, and the Perpetuation of an Urban Legend: The Truth about Recidivism of Released Guantanamo Detainees, the issue of recidivist prisoners is analyzed using Department of Defense and other government released data. During the past 16 months the Department of Defense has regularly refuted its own information, and has backtracked on its own statements concerning operations and prisoner information at Guantanamo Bay. The most recent information released by the Department of Defense on May 20, 2008, reduces the claimed number of recidivist prisoners from 30 to 12. Of the 12 prisoners released who have allegedly returned to the battle field, only six were included in the original 2007 information from which Scalia based his dissent. The May 20 release also states that not one of the 12 prisoners has killed an American, and 11 of the 12 have either been killed or are being held in prison once again.

Justice Scalia, having ignored the most accurate up to date data, perpetuates a myth that when suspected terrorists who have not been proven guilty are given access to courts to argue for their release, they do so with the intention of taking up arms against the US if freedom is ever granted. Scalia prefers that the release of prisoners be determined by political branches of government rather than the court system. The courts however, are better trained for analyzing evidence and weighing the cost and demands of varying party interests such as public security, political goals, and individual freedoms. Thus far, it has been the political arm of the government determining what prisoners are eligible for release. The decisions of the Executive Branch have lead to the release of the “12 recidivist” prisoners, and have made several poor judgments in determining what prisoners to release.

One striking example is prisoner #220 who was released against the advice of the Combatant Status Review Tribunal which reported that if released there would be an abnormally high risk that he would kill Americans upon release from Guantanamo Bay. Ignoring this report by prison officials, political appointees at the Department of Defense ordered prisoner #220 to be released. Within the year, #220 had become a suicide bomber in Iraq, leaving behind a video tape describing his hostility toward America and reporting on his experience at Guantanamo.

The story of prisoner #220 may not have ended in the death of Iraqi civilians if his only method of release was through the US court system. Contrary to Justice Scalia’s analysis, a court would have been less likely to ignore the military’s Combatant Status Review Tribunal report about the potential danger of prisoner #220. In fact, poor judgment is more likely to occur in the hands of the Military and Executive Branch, because they are motivated to make decisions based upon international politics and diplomatic deal making rather than purely objective analysis. It is now undisputed that there are both innocent persons and persons with terrorist intentions held at the Guantanamo Bay prison. By allowing prisoners and the government to present evidence regarding their status to a trained judge in the US court system, America will be able to maintain a level of integrity expected by its citizens and the world while lowering the likelihood that true dangers such as prisoner 220 are released only to take up arms against the US and its allies.

To read Justice Scalia, The Department of Defense, and the Perpetuation of an Urban Legend: The Truth about Recidivism of Released Guantanamo Detainees and any prior reports published by the Center for Policy and Research, please visit http://law.shu.edu/center_policyresearch/Guantanamo_Reports.htm.

Seton Hall University School of Law, New Jersey’s only private law school, and a leading law school in the New York metropolitan area, is dedicated to preparing students for the practice of law through excellence in scholarship and teaching, with a strong focus on clinical education. The Center for Policy and Research enables students to gain practical experience while engaging in research and analysis that promotes respect for the national security law and practices of the U.S. government, as well as the reliability of forensic evidence for criminal investigations and prosecution. Seton Hall Law is located in Newark, NJ and offers both day and evening degree programs. For more information, visit http://law.shu.edu

© Copyright 2008 by Adam Deutsch, published by permission of the author. Produced using Fedora Linux.

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