Justice Scalia, the Department of Defense, and the Perpetuation of an Urban Legend: The Truth About Recidivism of Released Guantánamo Detainees

10 Pages Posted: 7 Sep 2012

See all articles by Mark Denbeaux

Mark Denbeaux

Seton Hall Law School

Joshua W. Denbeaux

Denbeaux & Denbeaux

R. David Gratz

affiliation not provided to SSRN

Daniel Lorenzo

affiliation not provided to SSRN

Mark Muoio

affiliation not provided to SSRN

Grace Brown

affiliation not provided to SSRN

Jennifer Ellick

affiliation not provided to SSRN

Jillian Camarote

affiliation not provided to SSRN

Douglas Eadie

affiliation not provided to SSRN

Paul Taylor

affiliation not provided to SSRN

Date Written: February 11, 2012

Abstract

The defining characteristic of an “urban legend” is its ability to perpetuate itself not only without factual support but also in the face of overwhelming factual evidence to the contrary. While it is unsurprising to find urban legends kept alive in the unmoderated precincts of the internet, it is shocking to discover one depicted as truth in an opinion written by a United States Supreme Court Justice.Just this month, however, Justice Antonin Scalia, in his dissent in Boumediene v. Bush, repeated the persistent yet false accusation that “[a]t least 30 of those prisoners hitherto released from Guantánamo Bay have returned to the battlefield.” His source for this misinformation was a year-old Senate Minority Report, which in turn was based on misinformation provided by the Department of Defense.

Justice Scalia’s reliance upon the these sources would be more justifiable had this urban legend not (one would have thought) been permanently interred by later developments, including a Department of Defense press release issued in 2007, as well as hearings held before the House Foreign Relations Committee less than two weeks before Justice Scalia’s dissent was released.

On December 10, 2007, the Seton Hall Center for Policy and Research issued a report entitled The Meaning of “Battlefield”: An Analysis of the Government’s Representations of “Battlefield Capture” and “Recidivism” of the Guantánamo Detainees, demonstrating that statements asserting that thirty former detainees had returned to the battlefield were inaccurate. Further developments, including recent hearings before Congress at which more information was provided by the Department of Defense, confirm that the claim there have been thirty recidivists is simply wrong and has no place in a reasoned public debate about Guantánamo.

Keywords: Guantánamo, urban legend, United States Supreme Court Justice, Justice Antonin Scalia, Boumediene v. Bush

Suggested Citation

Denbeaux, Mark and Denbeaux, Joshua W. and Gratz, R. David and Lorenzo, Daniel and Muoio, Mark and Brown, Grace and Ellick, Jennifer and Camarote, Jillian and Eadie, Douglas and Taylor, Paul, Justice Scalia, the Department of Defense, and the Perpetuation of an Urban Legend: The Truth About Recidivism of Released Guantánamo Detainees (February 11, 2012). Seton Hall Public Law Research Paper No. 2003610, Available at SSRN: https://ssrn.com/abstract=2003610 or http://dx.doi.org/10.2139/ssrn.2003610

Mark Denbeaux (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Joshua W. Denbeaux

Denbeaux & Denbeaux ( email )

R. David Gratz

affiliation not provided to SSRN

Daniel Lorenzo

affiliation not provided to SSRN

No Address Available

Mark Muoio

affiliation not provided to SSRN

Grace Brown

affiliation not provided to SSRN

Jennifer Ellick

affiliation not provided to SSRN

Jillian Camarote

affiliation not provided to SSRN

No Address Available

Douglas Eadie

affiliation not provided to SSRN

Paul Taylor

affiliation not provided to SSRN

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