Do Antonins dream of electric . . . fences?
As my colleague Marjorie Cohn notes, Justice Scalia apparently relied on incorrect information in his Boumediene dissent. The paragraph in question reads:
In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.
As Marjorie notes, the “30 have returned to the battlefield” statement appears to be inaccurate. A report by Mark Denbeaux shows that the number comes from an old DoD statement that has been withdrawn, and further suggests that, at most, 12 former detainees are known to have resumed fighting, and that no Americans are known to have been killed by any released detainees. I don’t know that the Denbeaux report fully refutes Scalia’s point. The Denbeaux report does not address all of the other statements in Justice Scalia’s paragraph. (As Denbeaux notes, we really don’t know what most former detainees are up to — we don’t have good information tracking for them.) If only the number 30 is wrong, then I think Scalia’s broader point still stands.
But let’s focus on the really important point, here. There’s a delicious hidden irony in the dissent paragraph, stemming from the type of argument made, and the source relied upon. That is, Justice Scalia implies that detainees ought to remain confined, because there is a chance that they will engage in future violent acts. And what is his major evidence for this argument? A minority report.
Is Justice Scalia trying to outdo the Chief Justice in sneaking pop culture into opinions? Do Antonins dream of electric . . . fences?