Returned To The Battlefield

by hilzoy

In his dissent in Boumedienne (pdf), Justice Scalia wrote:

"At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield."

When I read this, I wondered about the word 'returned', since it seems to assume that these detainees were enemy combatants when they were captured. But I didn't wonder whether 30 prisoners had, in fact, taken up arms against the US since their release. I don't keep track of these things, and the idea that people whom we had locked up for years, without justification, might take up arms against us didn't seem all that farfetched.

Silly me. Luckily, researchers at the Seton Hall Law Center for Policy and Research were paying closer attention. They tracked down the sources of Scalia's claim (Scalia cites a Senate Minority Report, which cites a CNN story, which cites the DoD.) One published statement by the DoD's Principal Deputy General Counsel, made shortly before the CNN story, cites the number thirty, but gives no details. But a DoD press release issued about six weeks after the CNN story does. This press release seems to have been pulled, but luckily, a copy is included as Appendix 1 in this paper (pdf).

The first thing to notice about it is that it says that 30 detainees have returned not to the battlefield, but to "the fight". Since I have become accustomed to treating the words of this administration the same way I treat such words as "Orange Juice Drink: Made With Real Orange Juice!" (which automatically makes me wonder: OK, so exactly how many drops of orange juice per vat of corn syrup would that involve?), I naturally thought: ah, "the fight". I wonder what counts as returning to "the fight"? Luckily, the DoD elaborates:

"we are aware of dozens of cases where they have returned to militant activities, participated in anti US propaganda or other activities through intelligence gathering and media reports. (Examples: Mehsud suicide bombing in Pakistan; Tipton Three and the Road to Guantanamo; Uighurs in Albania)"

Well, this clarifies things somewhat. The Tipton Three were three British citizens who were captured in Afghanistan, and suspected of being members of al Qaeda, in part because they were thought, wrongly, to be in a videotape of a rally featuring bin Laden. After British intelligence cleared them of that charge (one of the three had in fact been working at a Curry's electronics store in Birmingham when the rally was taking place in Afghanistan), they were released. And after that, they participated in the movie The Road To Guantanamo. Apparently, this counts as "returning to the battlefield".

And then there are the Uighurs. Here's Sabin Willett:

"It turns out that clients of our firm, who were sent to Albania in 2006, were two of the 30. What fight had they returned to? Abu Bakker Qassim had published an op-ed in The New York Times. Adel Abdul Hakim had given an interview. These press statements were deemed hostile by the Department of Defense.

Surely the Pentagon was joking? They weren't.

So I can't speak for the other 28, if indeed there are another 28, but for the two men I do know about, giving hostile interviews constituted "returning to the fight.""

You can read Abu Bakker Qassim's "return to the battlefield" here. Be careful of the bullets whistling past your ears as you click through to the NYT Op-Ed page battlefield!

Last December, the researchers at Seton Hall compared the DoD's claims to publicly available government documents and concluded (pdf):

"Extending to the Government the benefit of the doubt as to ambiguous cases, the list of possible Guantánamo recidivists who could have been captured or killed on the battlefield consists of two individuals: Mohammed Ismail and Mullah Shazada. If an apartment complex in Russia falls within the definition of “battlefield,” then as of June 2007—after the Department of Defense had already cited thirty (30) as the total number of recidivists—an additional individual, Ruslan Odizhev, can be added to the list. Thus, at most—of the approximately 445 detainees who have been released from Guantánamo—three (3) detainees, or less than one percent (1%), have subsequently returned to the battlefield to be captured or killed. Two (2) other detainees (Abdul Rahman Noor and Mohammed Nayim Farouq), while not re-captured or killed, are claimed to be engaged in military activities, although the information provided by the Government in this regard cannot be cross-checked."

Since then, the DoD has changed the number of detainees it claims have returned to the battlefield from thirty to twelve, of whom six are new. (They did this before Scalia wrote his opinion, but oddly enough, he didn't mention this change.) The Seton Hall researchers (pdf):

"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""

***

In this country, we assume that people are innocent until proven guilty. It should go without saying that innocent people will die because we adopt this principle. When we let people we suspect committed homicide go free because the government cannot prove the case against them, for instance, we run the risk that they will kill again.

We think it is worth it because we do not have the option of locking up all and only guilty people against whom we have insufficient evidence. We have to choose between letting the government lock people up when it cannot make a case against them, knowing that some, perhaps most, of these people will be innocent; and requiring that the government actually make a case against someone, in which case we will of course let some guilty people go free.

If we want to call this principle into question, it's not enough to say: if we let people go, they might kill Americans. That's what I call "cost analysis": asking whether some alternative has costs, and if it does, deciding that we can't possibly adopt it, without asking whether it has benefits as well, and whether any proposed alternative is better. Of course requiring that the government be able to make a case against people it throws in jail has costs.

But those costs are exactly the same in the rest of the law. And it would amaze me if the number of Americans who were killed during the last decade as a result of our letting people accused of homicide go free did not exceed the number killed on 9/11. Should we conclude from this fact that we should stop asking the government to prove its case against suspected murderers? That we should give up not just our right not to be thrown in jail unless there's a case against us, but also a fundamental principle of justice? I don't think so. And I don't think that terrorism is, in this respect, different from other crimes. I do think that the rules required to hold someone captured on a genuine battlefield and held as an enemy combatant should be different from those required to hold an ordinary criminal: as right-wing bloggers are forever reminding us, wartime does not allow for, say, a careful recitation of Miranda rights. But I think this holds only on actual battlefields, and this line of argument is made untenable by the Bush administration's insistence on calling the entire earth the battlefield in the war on terror.

But if we're going to get into a debate about whether the costs of taking people to be innocent until proven guilty are too high, it's crucial to know what those costs actually are. And claiming that participating in a documentary about your arrest and detention, granting an interview, or writing an op-ed constitute "returning to the fight" do not help at all. They merely darken counsel by words without knowledge.

Comments

[cleek]

In this country, we assume that people are innocent until proven guilty.

for select values of "we"

[novakant]

you read my mind, cleek

[Jesurgislac]

But given this is a group of people who thinks Ronald Reagan was a veteran because of his experience as a submarine captain, or George W. Bush was a veteran because of his jet fighter experience then this probably does count as "returning to the fight".

[von]

IMHO, Scalia's dissent was a terrible piece of legal writing. The tenuous nature of this "fact" of which he took judicial notice merely reinforces my view.

Roberts' dissent was much, much better. As noted previously, I ultimately agreed with the majority opinion. Roberts, however, made a pretty good case for the opposite outcome.

[Turbulence]

Thanks von. I'm still unclear on what we disagree about: is it issues relating to "on the table" or is it the legality of blockade under your scenario or is it the likely outcome of a blockade under your scenario?

[Turbulence]

Sorry, that last comment belonged in a different thread!

[Ugh]

And after that, they participated in the movie The Road To Guantanamo. Apparently, this counts as "returning to the battlefield".

If I crap all over the MBFs at the DOD for this kind of BS, do I hate the troops?

[Nell]

Yes, and once again we're dazzled by the brilliant scholarship of the Chief Justice.

Should his clerks be embarrassed, or did he in this case insist on doing his own "research"?

[Turbulence]

Nell, Scalia is not the chief justice.

On a separate note, why shouldn't we expect that Supreme Court justices will write all manner of random unsubstantiated crap in their opinions? They face no sanction for doing it. Their public reputation will not be damaged since the media have little interest in scrutinizing SC opinions. And even if their opinions are totally loony, they're still Supreme Court justices and thus worthy of being feted or given awards or asked to speak.

It seems a little silly to give a group of people so much power while at the same time having no mechanism to remove or effectively sanction them absent the most egregious of conduct. Perhaps this system would work better if we only used perfect judges; I understand that there is large supply of those lying around.

[Nell]

Thanks, Turb; my own brilliant scholarship on display.

Roberts was a less obviously shameful choice, in that he at least uses legal reasoning rather than Fox talking points. Scalia is just a buffoon.

The Seton Hall takedown, particularly if it is given wide publicity, is a real sanction. It's just about the only lawful kind available.

Given that, let there be as much of it as possible. Marty Lederman examines the implications of another part of Scalia's Boumediene dissent, his statement that

[the Court] sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner."

[Emphasis Lederman's]

[Jeff]

It seems a little silly to give a group of people so much power while at the same time having no mechanism to remove or effectively sanction them absent the most egregious of conduct.

Often not even then (see Bush v Gore)

[david]

I should like this to get some attention in the press. Anybody running with it? Scalia looks quite awful in a way that might stick, unlike the regularly occuring awfulness that doesn't stick.

[Aubrey]

My main problem is that nobody ever stops to define the term "the battlefield". In the era of asymetric warfare, the term "battlefield" is obsolete. The "battlefield" is anywhere and everywhere in the War on Terrorism (I hate to use that term, and lend it credence.)

Not only is it obsolete, but it shows how Scalia (and the Bush Administration) have a fundamental misconception of the times.

[trilobite]

Scalia is just a buffoon

Scalia is not usually a buffoon. Quite the contrary. Most litigators I know think of Scalia as the gold standard. He made that rep by some of the most brilliant, incisive, relentlessly logical writing ever to come out of the Court. His opinions often, perhaps usually, appeared to be result-driven, but again and again, he made the case so solidly that it was difficult-to-impossible to poke holes in it. He created, almost single-handedly, a new and consistent conservative jurisprudence that no litigator today can disregard. If you argue on constitutional issues, you must confront Scalia's framework, not just because he is still on the Court, but because the way he framed the issues is too strong to ignore.

Then he went and ruined it all with Bush v. Gore, and went totally nuts in Boudiemme. Perhaps he has lost it. But until more evidence comes in, he cannot be dismissed as a mere buffoon.

[Katherine]

"His opinions often, perhaps usually, appeared to be result-driven, but again and again, he made the case so solidly that it was difficult-to-impossible to poke holes in it"

Not so much. But he certainly used to sound smarter than this.

[liberal japonicus]

I worry what will happen when 24 is cancelled.

[OCSteve]

Not with a ten foot pole…

[Timothy Burke]

Now *this* is a story which really should be ALL OVER the newspapers. Front page. Seriously. It would be bad enough *just* as a piece of DoD propaganda. To find it appearing in a dissent from a Supreme Court justice who has a reputation for being tough-minded is simply sick and deserves lengthy, expressive exposure in every major daily as the scandal that it is.

[Steve Ely]

Is it just me, or is the formatting weird on the quote between "Luckily, the DoD elaborates" and "Well, this clarifies things somewhat"?

[Lewis Carroll]

It's a good thing that Scalia, as a strict Originalist, scrupulously maintains allegiance to the text and intent of the Constitution and doesn't allow ideology to cloud his judgment.

I mean, just imagine if he ignored the law as laid out in the Constitution and instead sought pretexts to arrive at his preferred result. That would be awful.

Thank God we don't have to worry about that.

[Lewis Carroll]

It's a good thing that Scalia, as a strict Originalist, scrupulously maintains allegiance to the text and intent of the Constitution and doesn't allow ideology to cloud his judgment.

I mean, just imagine if he ignored the law as laid out in the Constitution and instead sought pretexts to arrive at his preferred result. That would be awful.

Thank God we don't have to worry about that.

[nitpicker]

For some of those who we've released, it would be odd if they hadn't "returned to the battlefield" since the battlefield is currently in their old neighborhood.

[Dan]

Brilliant, hilzoy.

[CharleyCarp]

No question, the returned to the battlefield meme is annoying. From a legal perspective, though, the thing I find more annoying is the assertion that German prisoners from WWII were held in the cointinental United States, and didn't have a right of habeas corpus. For this he cites no case, just an article. In which it is asserted that no one would have thought they could file.

Obviously, someone who surrendered in uniform isn't going to file a habeas petition: he's not going to argue that he is a civilan mistakenly thought to have been a combatant. The Quirin defendants did petition, though, and while they lost on the merits, their case wasn't summarily dismissed because no one accused of being a foreign combatant can file a habeas petition. One could say the same about the 18th century English cases -- they went out on the facts, that is, the conduct and not the identity of the petitioner.

Nonetheless, it's important for people to pretend that the Gitmo prisoners are getting something new. It distracts from the fact that what is happening is that the President is trying to get away with something that was outlawed in 1679.

[Clarence Wilmot]

Great post.

[George Arndt]

If Scalia and his ilk wanted to be logically consistent, they would advocate holding all those accused of murder indefinitely without charges. How else could they guarantee that no guilty person is ever set free? Of course, we would have to get rid of the pesky Constitution...

[Jeff]

Actually, considering that we've imprisoned, tortured and battered so many innocent men, and kept them locked up for no good reason, I'm surprised more haven't "returned to the battlefield".

Especially if BOB were anything approaching right, and violence was a necessary part of Islam.

[Barbara]

Scalia is not exactly a buffoon, and is actually at his strongest when writing about law and economics questions (e.g., antitrust). But in other cases, his opinions often underwhelm. He reminds of someone who is so smart and so used to being right, he never learned how to explain himself to others who disagree. He simply cannot imagine that what he sees is less than obvious to everyone around him. In the past few years, he has also developed a tendency to do what he did in th is case, which is to veer dangerously close to accusing his opponents of being vile and immoral in cases where he really emotionally vested. In other words, he stops relying on legal reasoning.

[NB]

Another great article. Thanks for writing and publishing it!

[John J.]

As Steve Ely pointed out, that first blockquote has some odd characters (they look to be whitespace characters to me). If you view the post in Firefox you will see them, but I expect when you go to edit it you don't. These characters are breaking my feed reader :(

[hilzoy]

Hmm: I don't see them in Safari.

[dmbeaster]

Then he went and ruined it all with Bush v. Gore, and went totally nuts in Boudiemme. Perhaps he has lost it. But until more evidence comes in, he cannot be dismissed as a mere buffoon.

I think you are looking at the aftermath of an authoritarian who has been unable to win over others with his brilliance, and no longer bothers to dress up his knee jerk views. Particularly appalling was his recent public comments that torture did not violate the eighth amendment prohibition on cruel and unusual punishment because it was not punishment.

I think he has soured from being unable to win a lot of the big ones over the years or otherwise -- Kennedy and O'Connor must have driven him nuts. He has not been a justice able to win over the others with his arguments.

[Enlightened Layperson]

In the past few years, he has also developed a tendency to do what he did in th is case, which is to veer dangerously close to accusing his opponents of being vile and immoral in cases where he really emotionally vested. In other words, he stops relying on legal reasoning.

What I personally find offensive is not that Scalia becomes emotionally vested in cases, or even that he considers opponents vile and immoral, but that he becomes emotinoally vested in locking people away in a black hole full of torture regardless of guilt, or of allowing executions of the innocent, or of allowing torture before conviction -- and then accusing people who oppose these things of being vile and immoral!

[CharleyCarp]

Chalk me up as someone who's never been impressed with Justice Scalia.

[russell]

I think you are looking at the aftermath of an authoritarian

Aftermath is after. Scalia's still on the bench.

Unfortunately.

Thanks -

[please read the original source]

Did anyone here actually fully read the paper?
Justice Scalia’s recent perpetuation of the urban legend of 30 detainee recidivists is both
false and unfortunate. It neither contributes to a meaningful public debate nor reflects appropriate
judicial skepticism about representations by parties before the Court.
Further, as a party to Boumediene, the Department of Defense had a duty to the Court to correct
any false impressions that its Principal Deputy Counsel had created by his testimony. The
perpetuation of this particular urban legend concerning a matter of literally life and death does
not reflect well on any of those involved.

During oral arguments in front of the court it would perhaps behoove the opposing counsel to challenge the assertion. According to the paper on its face the Principal Deputy Counsel abrogated his duty. Don't think that you can blame Scalia for that. You can cherry pick all you want but it is still dishonest to do so.

[Nell]

@please: Help a non-lawyer out here.

During oral arguments in front of the court it would perhaps behoove the opposing counsel to challenge the assertion.

Did the government lawyers made this assertion in arguments before the court, then, and Scalia simply repeated it?

trilobite: Then he went and ruined it all with Bush v. Gore, and went totally nuts in Boudiemme. Perhaps he has lost it. But until more evidence comes in, he cannot be dismissed as a mere buffoon.

Fine. Enough evidence is in to say that he is behaving as a buffoon.

Perhaps a combination of pique that he didn't get the nod for Chief Justice and confidence that Roberts will do the heavy lifting has Justice Scalia feeling that he isn't obliged to make legal arguments or to display a judicial temperament.

[Nell]

@russell: I think dmbeaster's meaning is captured by you're looking at what results when an authoritarian who has been unable to win over others with his brilliance no longer bothers to dress up his knee jerk views.

[Gary Farber]

"Is it just me, or is the formatting weird on the quote between 'Luckily, the DoD elaborates' and 'Well, this clarifies things somewhat'?"

Yes, it's totally screwed up, with weird non-standard characters inserted before and after each word, making it difficult to read quickly.

[Gary Farber]

"Hmm: I don't see them in Safari."

I suspect you could reset it to see them, but perhaps not, since Apple tends to restrict choices a great deal. In any case, the non-standard characters are there, very visibly, in other browsers.

If you use Safari, and don't try resetting what set of characters you read, I'd suggest simply doing a "cut" on what appears to you to be one of those blanks, and then doing a global search and replace with an actual empty space, and that would likely fix the problem, and do so faster than manually replacing all the screwy characters, although you could presumably do it manually in under a minute.

[Noumenon]

Extending to the Government the benefit of the doubt as to ambiguous cases, the list of possible Guantánamo recidivists who could have been captured or killed on the battlefield consists of two individuals: Mohammed Ismail and Mullah Shazada.

I have not read the two reports all the way through, but it looks to me like this claim from "On the Battlefield" relies on the fact that seven of the names the DoD provided could not be found on Guantanamo detainee records. But in the later report you cite, the DoD provided ISN numbers for six of the seven, and also provided six other names they claimed had been caught on the battlefield, bringing their total to 12. So I think this quote from the earlier report is no longer accurate.

The reason I found this problem is that I cited your post to my father, he said "What about the Guantanamo suicide bombers?" That was Ajmi, ISN 220 in the second report. If you remember the discussion of him, he most definitely deserves to be named in any list of "Guantanamo recidivists captured or killed on the battlefield."

[hilzoy]

Noumenon: the "two" quote said that two of the people the DoD originally identified could be said to have returned to the battlefield. It was made last December, and was based on this analysis (pdf):

"• at least 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;
• ten (10) of the individuals have neither been re-captured nor killed by anyone;
• and of the five (5) individuals who are alleged to have been re-captured or killed, the names of two (2) do not appear on the list of individuals who have at any time been detained at Guantánamo, and the remaining three (3) include one (1) individual who was killed in an apartment complex in Russia by local authorities and one (1) who is not listed among former Guantánamo detainees but who, after his death, has been alleged to have been detained under a different name."

As Ajmi had not blown himself up at the time the DoD made the statement being analyzed, or at the time this report was written, he isn't part of this analysis.

He does, of course, appear in the DoD's later account, mentioned above. The second Seton Hall report (pdf) devotes quite a lot of space to his case; I discuss it here.