Tuesday, June 17, 2008
I received the following in email this afternoon:
The Center for Policy and Research at Seton Hall University School of Law has published a new report analyzing false information published as fact in Justice Scalia's dissent to last weeks Guantanamo Bay focused Boumediene v. Bush Supreme Court decision.
Adam Deutsch, one of the attorneys contributing to the report, has submitted the following for posting. My own impressions on reading the report follows:
JUSTICE SCALIA AND THE URBAN LEGEND OF RECIDIVIST GUANTANAMO DETAINEES
In last week’s 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 Justice Antonin Scalia’s dissent fueled the fire by using rescinded false statements made by the Department of Defense to argue that the US will be at a great security risk by allowing prisoners to access the court system,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 Scalia’s use of knowingly rescinded information discredits the integrity of the Supreme Court, and serves to perpetuate a series of false information and unwarranted fears held by the general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 [link].
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
I won't charge Adam for the Seton Hall ad. My own reactions as I read the report follow, given the following caveats: I am not a lawyer and have mostly followed the GTMO goings-on on a headline basis -- there are too many issues involved for a non-expert to sort out in a serious manner. George Will welcomes the decision, while Cliff May has a collection of doomsayers.
Anyway, some notes, cleaned up from my reply to Deutsch:
I think the idea that the Judiciary is less political than the Executive is over-stated in the report. Big surprise, a group of defense attorneys are happy that the battle ground has been shifted closer to their turf -- be honest, they like the increase in power which they, like everyone, are always seeking.
The report muddies the water with its spin that perhaps because none of these people (released detainees) killed Americans, or, because they were subsequently re-apprehended or killed in theaters outside Iraq or Afghanistan they therefore had not necessarily "returned to the battlefield." It's called the GLOBAL War on Terror, and what front they were captured on or whether they killed Americans or our allies (or just sabotaged our goals), the bottom line is the same. This intentional muddying betrays the report's basic bias.
Finally, while critical of current methods, the report doesn't walk out what the problems will be with the new procedure -- as one for-instance: will we now be treated to the spectacle of prisoners released on procedural grounds (evidence dismissed as fruit of the poison tree, for instance) as is so common in civilian courts ("not a single detainee has been released as a result of habeas corpus." says the report..."Yet," say I)?
The report would be a lot more effective, and reach more people on all sides of the issue if it had stuck to correcting the data, and avoided grinding a political ax (getting in to what our conclusions from that numerical correction should necessarily be). As it is, there are still many, many questions left unanswered that are not addressed by the simple (albeit I will admit, important) question of 30 or 12 -- a difference this report attempts to make far too much hay out of. Do data in one report, keep politics under separate cover.
A nit: p. 7: While Justice Scalia is clearly wrong about the number of detainee recidivists, his larger point seems to be that the Government...
Shouldn't that be the "Executive"? The courts are also part of the Government...and while on the surface they may be less accountable to daily political considerations, every indication is that judges very often carry their own politics with them and are not in any way immune to such considerations. Again, I'm not surprised a group of lawyers wants to forward this idea, but the rest of us need to see through it.
I have to disagree with your analysis. After reading the article and a number of other responses to the dissent in Boumediene, I ask, "why fear what will happen if we let procedures that have been around for 200 years take over?" The federal court systems are tried and true. Additionally, yourself and others like the dissenting judges see this decision as freeing all the detainees! [whom are presumably all guilty as you've written.] All this decision does is allow detainees, who have never been charged with any crime...some for over 6 years now... to contest their "enemy combatant" status before a neutral arbiter with the facts against them before them. If we have issues against them, what is to fear? I believe there was never a need for new "law" in the first place if these detainees are truly terrorists. Unfortunately our forces are responsible for the apprehension of a mere 3% of detainees down in GITMO. The rest from bounty hunters in Pakistan. It's no wonder none have ever been charged. The only way to keep them in there is to use scare tactics and fear that justice may be brought to the innocent through a tried and true system already set in place. shame many cannot see this point.
JH,
1) Who (provide at least one citation) is presuming "all" are guilty?
2) Who (again, citation please) imagines this means "freeing all the detainees"?
3) In what sense is the fed. judiciary "tried and true" in these types of battlefield and in general extraordinary situations? Things to keep in mind in supplying an answer here include 1) problems relevant to evidence collection, 2) problems related to witnesses (e.g., our military personnel, their compatriots on foreign soil), 3) what type of classified evidence, supplied to their legal counsel, is likely to reach outside press and other sources, including lieutenants and up among jihadist/salafist leadership (as it in fact did in the case of WTC '93 conspirator Omar Abdel Rahman)?
I have another dozen or more lines of inquiry, but that'll do for now.
And "only" 12?
This number itself is by no means guaranteed in the least since the contrasting report here sets an exceedingly high bar. Specifically it states that the standard needing to be met to be classified as having "returned to the fight" is to require virtually certain evidence: "fingerprints, DNA, conclusive photographic match, or reliable, verified, or well corroborated intelligence reporting - identifies a specific former DoD detainee from GTMO as directly involved in terrorist activity."
As one way of viewing the situation, that's fine, but it does reflect an absolutely high standard. Hence if it's true Scalia's 30 reflects some maximum or outlier number, it's likewise true that 12 represents the absolute lower bounds, not some guaranteed or absolute truth, despite the rhetoric and sophistry deployed in the report noted in this post.
And I love the blithe "what is to fear?" line.
commenting author,
lol you have 0 clue. you should attempt to read beyond the headlines...you should probably remove your comments before people continue to laugh at you