Justice Scalia, very big, very fat liar REVISITED

Want to read words of praise for the late Supreme Court Justice Antonin “Nino” Scalia by a renowned liberal legal scholar? Harvard’s Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, has just the article for you, praising both Nino’s integrity and his “extraordinary life-loving laugh.” Want to read an ill-tempered diatribe by a law-school drop-out? Don’t touch that dial.
I’ve drawn my headline from, well, from a previous ill-tempered diatribe, Justice Scalia, very big, very fat liar, which, clearly, I intend to revisit.

My original outburst arose in response to Justice Scalia’s dissent in Boumediene v. Bush, a decision by the Court issued on June 12, 2008 that extended the right of habeas corpus to aliens imprisoned in Guantanamo under suspicion of being “enemy combatants,” defined by the Secretary of the Navy when establishing the Combatant Status Review Tribunals in Guantanamo as “an individual who was part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” The Court’s decision was a classic 5-4 squeaker, with Justice Kennedy (of course) providing the Court “liberals” with a majority.

In a previous decision, Hamdi v. Rumsfeld, the Court found that U.S. citizens detained in Guantanamo had rights of due process. In Hamdi, Scalia, joined by Justice Stevens, went the furthest in opposing the government’s claim of arbitrary powers of detention, arguing that, absent a formal decision by Congress to suspend the right of habeas corpus, the government could either try the defendant, Yaser Esam Hamdi, in a regular court of law or release him. But, for Scalia, granting such rights to individuals who were not U.S. citizens, as the Court did in Boumediene, was a bridge too far.

Chief Justice Roberts filed a notably testy 28-page dissent—“ Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants”—joined by Scalia and Justices Alioto and Thomas. But even that extravagance wasn’t enough to Nino, who filed his own, charging that the Court’s decision “will almost certainly cause more Americans to be killed.” Continuing in this vein, on pp. 3-4 of his dissent, Scalia unleashed the following:

“At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex- Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.

“These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection.”

Fortunately for those who desire accuracy in their Supreme Court decisions, Mark Denbeaux, professor at the Seton Hall University School of Law, who followed the Guantanamo horror from the get-go, put together an enjoyable little takedown titled Justice Scalia, the Department of Defense, And the Perpetuation of an Urban Legend: The Truth About The Alleged Recidivism Of Released Guantánamo Detainees. As professor Denbeaux demonstrates, Justice Scalia’s peroration is nothing more than a collection of disingenuous half-truths, outright falsehoods, and intentional deceptions.

In the first place, Scalia references his “At least 30” to the Minority Views of Senate Report 110-90, accompanying the Habeas Corpus Restoration Act Of 2007. How did five Republican senators determine who had “returned to the battlefield”? Well, they didn’t. They watched CNN. CNN, in turn, said they got it from the Department of Defense. Professor Denbeaux, sportingly doing Justice Scalia’s legwork for him¹, tracks down testimony by Department of Defense Principal Deputy General Counsel Daniel J. Dell’Orto, delivered before the Armed Services Committee in April of 2007 (the Senate report was issued in June 2007), which also used the “30” figure, although according to Dell”Orto, it was “just short of thirty, I think…It’s a combination of thirty we believe have either been captured or killed on the battlefield.”

However, as Professor Denbeaux points out, that was in April 2007. In July 2007, the Department of Defense issued a press release that did a little reworking of the activities attributed to the Gitmo 30: “Our reports indicate that at least 30 former GTMO detainees have taken part in anti-coalition militant activities after leaving U.S. detention.” In fact, the press release only identifies 15 “recidivists” and, of those 15, charges 8 with nothing more than engaging in anti-U.S. propaganda—not a surprising response, one might say, to being abducted from one’s country and thrust into a carefully constructed legal black hole/hell hole courtesy of the land of the free and the home of the brave.

Furthermore, Professor Denbeaux points out that the Department of Defense supplied another statement, on May 20, 2008, in connection with a congressional hearing, that identified a mere 12 recidivists who had returned “to the fight”, though not necessarily, it would seem, “to the battlefield.” Five of these individuals—two Moroccans, two Russians, and one Turk—are simply described as having been “arrested,” all in their home country. Why, wonders the good professor, is this considered conclusive evidence of “returning to the fight,” when no explanation of the charges filed is given, nor is there any evidence of any anti-U.S. activity at all?

Is it reasonable to expect information available on May 20 to be incorporated in a decision handed down on June 12? Well, the Supreme Court can move pretty quickly when it wants to, as its track record in Bush v. Gore indicates. Il Nino’s robe was flappin’ in the wind on that one. Scalia’s dissent did cite an article appearing in the May 8, 2008 issue of the Washington Post. Furthermore, that article itself contained the following: “[T]he Defense Intelligence Agency has estimated that as many as three dozen former Guantanamo detainees are confirmed or suspected of having returned to terrorist activities. International human rights groups and lawyers for Guantanamo detainees have disputed that estimate, saying only a handful of former detainees have left U.S. custody and gone on to fight U.S. forces.”²

I have a few things to add to Professor Denbeaux’s demolition job on both Il Nino and the DoD.³ In the first place, I would like to inspect, with some care, those florid phrases “returned to the battlefield” and “returned to the fight”, rendered more prosaically in the 2007 DoD memo “have taken part in anti-coalition militant activities.” Scalia, carefully following the line established by the DoD and the Minority Five, imply that all the GTMO detainees were captured “on the battlefield”—“we know they’re guilty because they were damn well shooting at us.” But, well, if Scalia and his band of leave no stone unturned legal eagles had bothered to read a Feb. 2006 study by, yes, Professor Mark Denbeaux, entitled *Report On Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data”, they would have found that “Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody.” The “battlefield” of Nino’s fevered imagination vanishes into the mists.

Furthermore, Scalia himself tells us that the “30” were released because the military tribunals found that they were not “enemy combatants”. ⁴ If you were never on a battlefield, how can you “return” to it? How can you “return to the kill” when there’s no evidence that you ever killed anyone? And how can you be a “recidivist” if you were never convicted of any crime? Nino, with his hair-raising list of murders—or, at least, newspaper accounts of allegations of such, none of which, by the way, involved Americans—implies that, because an individual is accused of a crime after incarceration, that proves he was guilty of a crime prior to incarceration, and not just any crime, but acts of terror directed against citizens of the United States. It goes without saying that nowhere in his discussion does it occur to Scalia that any of his so-called “recidivists” might actually have been innocent, or that they might have been radicalized by the brutal and arbitrary treatment they received at the hands of the U.S. government.

The Bush Administration’s treatment of the prisoners in Guantanamo was straight out of Kafka—the worse the crime you are charged with, the more certain your guilt—“the worst of the worst,” in the infamous words of Secretary of Defense Donald Rumsfeld, even though, according to Wikipedia, the DoD released 200 prisoners without even bothering to bring them before the celebrated “Combatant Status Review Tribunals”—“ the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants,” according to CJ Roberts, as though there were something noble about being “generous” to people who have not yet been convicted of any crime, the whole notion of “innocent until proven guilty” having fallen by the wayside long before.

In times of crisis, we look to courts to supply reason to balance passion, Yet Justice Scalia’s dissent in Boumediene v. Bush (and, most fortunately, it was a dissent) deliberately exalts passion over reason, displays a stunningly injudicious temperament, calls for blood rather than justice, and shows us a man entirely given over to anger and fear, a man who wants someone—anyone—to suffer, as a scapegoat for his anguish, and justice be damned.

Afterwords
I had originally planned a single piece that would serve to vent all my bile on the subject of Nino Scalia, but it seems I underestimated my bile content severely. It will take at least two more entries to settle all my scores with him. I am testy indeed!