Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Along with the myth that all the detainees held at Guantanamo Bay were "captured on the battlefield" there is another myth being repeated over and over again by Bush administration apologists: the myth that 30 men released from Guantanamo Bay "returned to the battlefield" to fight against the United States. It can most prominently be found in Justice Scalia's dissent in Boumediene, where he claimed that "at least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield."
A new study out of Seton Hall Law School debunks this myth quite thoroughly by tracing it to the source and showing how the Defense Department's own reports show it to be false. For instance:
The July 2007 press release issued by the Department of Defense raised serious questions about the claims of recidivism made by the Department's own Principal Deputy General Counsel and Minority Views.5 Although it did repeat the number 30, the Press Release made clear that that number included not only those former detainees who could have in any sense been said to have engaged in combat against the United States or its allies but also those who returned "to militant activities, participat[ed] in anti-US propaganda or other activities through intelligence gathering and media reports."In short, while Principal Deputy General Counsel Dell'Orto and the Minority Views publicly
insisted that some 30 former Guantánamo detainees have "returned to waging war against the
United States and its allies," the Department's July 2007 News Release flatly contradicted this
claim. Rather than thirty supposed recidivists waging war, the Press Release described at most
fifteen (15) possible recidivists. Even more surprising, only seven (7) of these individuals are
identified by name and were alleged to have returned to any battlefield or any combat. The other
eight (8) of the fifteen (15) individuals alleged by the Government to have "returned to the fight"
are accused of nothing more than speaking critically of the Government's detention policies.
That last part is very important: they included in those figures people who had criticized their own detention at Guantanamo Bay - criticizing their own unjustified detention was classified as "returning to the battlefield against the US and its allies." Seriously:
As we developed in detail in The Meaning of "Battlefield," these other "recidivists" included the Tipton Three (who recounted their Guantánamo experiences for Michael Winterbottom's commercial film, The Road to Guantánamo) whose speech was apparently viewed as problematic and five (5) Uighur's who remained detained in a refugee camp in Albania but who had an editorial submitted on their behalf which was critical of the US Guantánamo policy.
The study also points to testimony from the Defense Department in front of a Congressional subcommittee on May 20, 2008 - three weeks before the court ruling came down - which contradicted that July 2007 press release and claimed only 12 had been caught fighting against the US after their release. But even of those 12, there is reason to doubt the accuracy of this claim:
Of the twelve, five (5) are listed as "killed" (one of whom is ISN 220, a Kuwaiti national whose story is spelled out below), and one is listed as "at large." There are five more listed as "arrested" and only one listed as "captured." It is not clear what the distinction is, but it may indicate where the apprehension occurred - "on the battlefield" or elsewhere. The "arrested individuals" included two Moroccans, two Russians, and one Turkish national, all of whom were arrested in their home country. There is no information about the charges filed, nor any information that these individuals attacked or plan to attack America. Further, it is not clear that actions against Morocco, Russia, and Turkey can be fairly characterized as "return[ing] to the fight."
The study also points out that not a single one of the detainees they claim returned to the battlefield were released as a result of a court hearing, even the military tribunals at Gitmo, but were released by order of political appointees at the Pentagon - often over the objections of the military:
While Justice Scalia is clearly wrong about the number of detainee recidivists, his larger point seems to be that the Government, not the courts, should be trusted with separating the sheep from the goats. However, one of the greatest ironies of the whole recidivism debate is that not a single detainee has been released as a result of habeas corpus. All recidivists have been released by the Department of Defense, which has never explained why it released such individuals to "return to waging war" against us. Any assessment of the relative strengths of judicial and political processes should be made with full awareness of the story of ISN 220, who "returned to the fight" not as the result of any judicial ruling but rather because of a decision made by the political appointees at the Department of Defense who released him despite the objections of the military...While the documents which have been released strongly suggest that ISN 220 should still
be detained, there are no available records indicating why he was released or who is responsible
for the release. The only thing that can be said with assurance is that, Justice Scalia to the
contrary notwithstanding, no federal judge is responsible. Perhaps if the process were more
transparent, such a grave mistake would not have been made.
Another myth bites the dust.
Politics
Comments
Again, Scalia is rehashing right-wing talking points without really checking its accuracy. Typical.
Posted by: Heathen Dan | June 23, 2008 10:10 AM
You know, Ed, I am begginning to understand your fascination with Scalia. Such a subtle, rich and intricate combination of acumen and knuckle dragging stupidity... it horrifies me, yet I can't away.
Posted by: Valhar2000 | June 23, 2008 10:43 AM
Even if this allegation was truthful, it bears emphasis exactly what is implied on the other side.
Because of the obfuscating cloud that shrouds Guantanamo Bay, we have no way of knowing precisely how many humans have been detained without due process of law, but the total number is over 700. We also have no way of knowing how many of the detainees have been subsequently released, and what the terms were in the release, but we know that in some cases the terms included that the country of nationality for the detainees had to agree to terms of imprisonment in their country first.
Being exceedingly generous to the present Administration, I'll use the a figure of 300 total detainees released from Guantanamo Bay. Using their statistic of 30 recidivists results in 270 detainees who may very well have been detained unjustly and subjected to inhumane treatment.
Do not be confused; at issue here is not the coddling of terrorists. It is instead the state asserting the right to run roughshod over any and all. They seek immunity for having treated innocents with actions of "Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy of...a civilized nation".
I am shamed and appalled by my Nation's actions. They are diametrically opposed to The Dreamtime America, and act as an insidious force the threatens the Nation's soul.
Posted by: a knight | June 23, 2008 11:06 AM
Valhar-
He fascinates me endlessly. He's so obviously a man of enormous intellect and just as obviously a man of great charm and wit. At times he has the ability to cut through bullshit like few people can; at other times he is bullshit's most prominent spokesman. It's maddening, but like you said, I can't turn away either.
Posted by: Ed Brayton | June 23, 2008 11:12 AM
Posted by: Ginger Yellow | June 23, 2008 11:37 AM
I second Ed's comments on Scalia. He's a puzzle. I had the opportunity to hear him speak to a class once, and he is a great speaker, both engaging and informative.
But at one point he said every American should read the Federalist Papers because they explain the meaning of the Constitution. Leaving the historiographical problems aside (and they are very substantial problems), the fact is that most of the Supreme Court cases that the public cares deeply about concern the Bill of Rights (including the Gitmo case), and the only mention of a Bill of Rights in the Federalist Papers is an argument against having one. It is quite simply impossible to use the Federalist Papers to interpret the meanings of the Bill of Rights.
So I prompted one of my students to ask him if he thought all Americans should read the Antifederalist papers, where the arguments for a Bill of Rights are found. His reply, which made everyone except me laugh, was a disdainful, "Well, they lost."
It struck me as beyond astonishing that a justice of the Supreme Court would not recognize that the antifederalists were responsible for the creation of the Bill of Rights, and that without the promise that one would be added as soon as possible, the Constitution quite possibly would have been defeated. The historian Herbert Storing, the compiler and editor of The Complete Anti-Federalist, argued that by virtue of demanding, and achieving, the inclusion of a Bill of Rights, the anti-federalists deserve to be included among the list of founders. Were Scalia a decent historian of the Constitution, he'e be aware of this.
And Scalia has claimed that the Constitution is a legal document, hence we need lawyers to interpret it. Were he a better political scientist, he'd know that constitutions are foundational political documents, more the source of law than simple law itself.
And yet, he frequently writes a clearer assessment of cases than anyone else on the Court. Case in point being his dissent in McConnell v. FEC (the case concerning McCain-Feingold, John McCain's attack on the First Amendment--which he has now followed up with his attack on the 5th Amendment, in his response to the Court's Gitmo ruling).
Posted by: James Hanley | June 23, 2008 11:37 AM
Such is the nature of the shill.
Posted by: Julian | June 23, 2008 11:38 AM
James-
What I find interesting about Scalia as well is how often he is absolutely right and absolutely wrong simultaneously in a written opinion. Several times he has written a dissent, or even a concurrence, that lambastes the other justices - quite correctly - for offering up a vague, subjective, inconsistent rationale for their decision and demands - again, quite correctly in most cases - a bright line rule that offers specific guidance to lower courts and legislatures on what is and is not constitutional. But then the bright line rule he favors is so often the wrong one.
It's similar to Clarence Thomas. I absolutely agree with Thomas and we both disagree with Scalia that the Declaration of Independence is an important tool for interpreting the constitution correctly. But while he gets the premise right, Thomas almost never applies that principle coherently or consistently, almost invariably getting it wrong when he actually puts it into practice.
Posted by: Ed Brayton | June 23, 2008 1:10 PM
"Dreamtime America"
I rather like that phrase . . .
Posted by: Dan S. | June 23, 2008 1:32 PM
If anyone can really be called a "judicial activist," it's Scalia: he's perfectly able to apply the law when it fits his opinions, but when it doesn't, he just tosses it out the window and lets his emotions rule without constraint instead. His dissent on Habeas for "enemy combattants" had nothing to do with ConLaw and everything to do with his own right-wing opinions and hysteria over poorly understood threats to America. All in all, I'd say he's untrustworthy and unfit to serve as a judge at any level.
Posted by: Raging Bee | June 23, 2008 1:48 PM
Ed, I agree with your assessment. Scalia has the right conceptual approach, but so often falls down trying to apply it.
I lean toward his side on using the Declaration as an interpretive tool, though. I think it's a bit iffy--although less iffy than, as he does, using the Federalist papers to analyze Bill of Rights cases.
Posted by: James Hanley | June 23, 2008 3:30 PM
If anyone has the opportunity, please inquire of Antonin Scalia how an original intent perspective of jurisprudence can possibly be justified callously ignoring the following two collections:
The Papers Of James Madison, Purchased By Order Of Congress;
Being His Correspondence And Reports Of Debates
During The Congress Of The Confederation
And His Reports Of Debates In The Federal Convention;
Under The Superintendence Of Henry D. Gilpin.
J. & H. G. Langley, 1841
Google Books
Volume I - 19.4mb
Volume II - 21.6mb PDF
Volume III - 18.4mb PDF
The Records of the Federal Convention of 1787,
edited by Max Farrand
(New Haven: Yale University Press, 1911)
Google Books:
Volume I - 8.4mb PDF
Volume II - 9.5mb PDF
Volume III - 9.8mb PDF
Also accessible at:
Library of Congress
The Liberty Fund
I would be interested in hearing the flailing rationalisation for the non-inclusion of these texts in his divination through auguring the Constitution's texts. The concept of original intent is a game, it is not a form of righteous Constitutional Interpretation. How could it be possible to synthesise the intentions of so many different individuals working hard in a process of compromises?
The whole process of original intent does something else few Americans would find palatable if they rationally thought about it: It completely ignores the thoughts and words of Thomas Jefferson.
Mr. Brayton, You are very much in error believing that The Declaration of Independence has no utility in a true process of originalism. It sits at the very bedrock of this Nation's foundation and asserts rights of humanity which are both preexistent and preeminent to the state. It is the very wellspring that feeds the river of liberty. Our rights are NOT derived as gifts from they state, instead the state has been granted a limited power over a subset of our rights in the interests of a stable society.
A people who believe their rights originate from the state, can never be free.
A system of law which has differing standards of applicability, based solely upon citizenry, can never be just.
A American future in with the people did not once again chain and muzzle its leviathan, which in our understandable thirst for vengeance just after September 11, 2001, we loosed upon this earth as rabid wolf amongst the sheep, will never again experience peace.
Nobody ever said that defending liberty was easy, or would not present serious obstacles to overcome. We are Americans, and as such, supposed to be better than the rest. The time for choosing has come for all. There is no escaping this. Are you a friend of liberty, or its enemy?
Posted by: a knight | June 23, 2008 10:53 PM
Justics Scalia has been getting invited to ACLU get togethers. I emailed them an asked them why...the following is just one of our email conversations about Scalia being at the 2008;
MY EMAIL:
Create Date: Mon, May 5, 2008 5:11 AM
From: Corey Mondello
Subject: Justice Scalia and "Our Lady Liberty" June 2008
Justice Scalia and "Our Lady Liberty" June 2008
Dear ACLU,
I hope you will rethink your invitation to Justice Antonia Scalia to speak and honor your president Nadine Strossen at you’re "Our Lady Liberty: Celebrating Nadine Strossen: in June this year.
I believe that his current statement, to "Get over it" when questioned about the 2000 election, and the very fact that he does not seem to vote in favor for American's civil rights.
He does not believe that the Construction should be upheld and it is a shame that the is on the Supreme Court, further ruining America .
I was extremely shocked when I received your news letter in the mail with Justice Scalia’s photo in it.
I support all you do in allowing everyone equal rights, free speech etc¦.
However, to have Justice Scalia involved in anything that the ACLU is part of, is a disgrace on your organization and makes me question my economical membership and donations.
I ask you to remove Justice Scalia in the celebration honoring ACLU President Nadine Strossen.
Thank you.
Sincerely,
Corey Mondello
Boston , Massachusetts
5-5-08
ACLU REPLY:
Dear Friend,
Thank you for contacting the American Civil Liberties Union.
I am sorry that you disagree with our inclusion of Justice Scalia in events at our Member Conference.
Justice Scalia participated in the ACLU's 2007 Member Conference in a debate with the ACLU's President Nadine Strossen. During that debate, Ms. Strossen noted that Justice Scalia is a friend and valued legal colleague, which is why he was invited to speak at our celebration of Ms. Strossen's work.
Sincerely,
Kitt Barrett
Member Services Coordinator
ACLU National Office
125 Broad Street
New York, NY 10004
212-549-2545
kbarrett@aclu.org
[][][][][][][][][][][][][][][][][][][][][][]
PLEASE DO NOT SUPPORT THE ACLU !!!
Corey Mondello
Boston, Massachusetts
www.CoreyMondello.com
6-24-08
Posted by: Corey Mondello | June 24, 2008 7:19 AM