Sunday, June 22, 2008
Postscript to Habeas Corpus
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.
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4 comments:
If I weren't an old woman myself, I'd say the 4 dissenters sounded like old women, carrying on about how "we'll all be murdered in our beds!"
My deepest apologies to my female contemporaries for the analogy.
The most fundamental flaw in Scalia's opinion isn't his misstatement of facts, but rather his profound ignorance of the implications of his reasoning. The issue is hardly novel. Indeed, it is most succintly set forth in the moluth of Sir Thomas More in Robert Bolt's classic play and film, "A Man for All Seasons (I defer to David as to whether the quotation has any basis in history):"
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
Not only did Scalia put incorrect data into his dissent, he also signed Roberts' dissent, which said that the practical impact of the majority's decision, in terms of the actual fate of the detainees, would be slight. This contrasts with, perhaps even contradicts, Scalia's
own effort to conjure 'a parade of horribles' resulting from the majority's decision. Yet Scalia apparently was untroubled by this arguable contradiction between the two dissents.
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