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

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