Impeach Antonin Scalia. Impeach Him Now

Outsourced to Hilzoy:

Obsidian Wings: Returned To The Battlefield: 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... a DoD press release.... [I]t 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!"... I naturally thought: ah, "the fight"... 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.... (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... suspected of being members of al Qaeda... thought, wrongly, to be in a videotape of a rally featuring bin Laden. After British intelligence cleared them... 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.... "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... giving hostile interviews constituted 'returning to the fight.'"...

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..."

In this country, we assume that people are innocent until proven guilty.... 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.... [I]f 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 wisdom.

Comments

[Joe Ardent]

So, I have now a question about the SCOTUS record. Presumably, somewhen down the line, the SCOTUS will be called upon to rule on a case to which this is applicable. In the interests of considering all possible inputs on the matter at hand, the concurring and dissenting opinions from Boumedienne are examined by this future court.

In so doing, will this future bench have some fairly guaranteed way of being privy to this kind of analysis? Are there, in other words, "margin notes" for these opinions? Some sort of system of commenting on the opinions while the issues are still fresh so that future readers may have the benefit of the context in which they were issued?

I'm guessing the answer is "no, no such mechanism exists". Which raises the question: how can such a mechanism be provided?