Sunday, June 22, 2008
Justice Scalia's dissent in Boumedienne vs. Bush, which I mentioned last week, argued not only that more Americans would be killed as a result of the majority opinion, but that 30 detainees released from Guantanamo had already "returned to the battlefield" and had been responsible for a number of deaths. I do not know how often Supreme Court Justices have been caught putting false information into their opinions, but that is what has happened here. Some Seton Hall law professors, bless their hearts, have published a report exploding this data as an urban legend--one which the Pentagon had already had to repudiate. The maximum number of released detainees (none of whom, of course, was released thanks to court proceedings) who have taken up arms is twelve, and none of them has been responsible for the death of an American. In releasing their report the professors made an interesting point: for all its imperfections the adversarial process is the best one we have found for determining the truth, and it would have a much better chance of making sound decisions about who has to be detained and tried and who does not.