Scalia, McCain And Yoo Push Discredited "Gitmo 30" Talking Point

Earlier, I detailed how John McCain, John Yoo and Justice Antonin Scalia in the wake of the Court's Boumediene decision all continued to peddle the d

Scalia, McCain and Yoo Earlier, I detailed how John McCain, John Yoo and Justice Antonin Scalia in the wake of the Court's Boumediene decision all continued to peddle the discredited Republican talking point about "30 former Guantanamo detainees" who had "returned to the fight." Now a devastating new report released Tuesday from Seton Hall professor Mark Denbeaux puts to rest the Scalia's "urban legend."

That figure of 30 terror recidivists unleashing a bloodbath had been debunked by earlier studies from Denbeaux's team and recent investigations from the McClatchy papers. But Denbeaux's updated analysis, including the revelations that the Defense Department itself backtracked from the infamous Gitmo 30 in July 2007 and May 2008, shows the extent to which Justice Scalia engaged in cherry-picking dubious data to bolster his blood-curdling Boumediene dissent last week. And it hasn't stopped the exaggerated number of Gitmo repeat terrorists (like the cry of "worse than Dred Scott") from becoming a standard Republican talking point since the Court's restoration of habeas corpus last week.

Birth of a Sound Bite

The sound bite dates back to the summer of 2007, when the Pentagon released its own study to counter an earlier analysis by Denbeaux which questioned the intelligence value of Al Qaeda and Taliban personnel held by the U.S. The New York Times said "it paints a chilling portrait of the detainees," and quoted Pentagon spokesman Jeffrey Gorden on one of its key findings:

"Our reports indicate that at least 30 former Guantanamo detainees have taken part in anti-coalition militant activities after leaving U.S. detention," he said. "Some have been killed in combat in Afghanistan and Pakistan."

That figure quickly became a staple among Republicans in the debate over Guantanamo Bay and the status of the detainees in the wake of the Court's Hamdan decision and the subsequent passage of the Military Commissions Act. With the Senate Judiciary Committee now in Democratic hands, GOP Senators Kyl, Sessions, Graham, Cornyn, and Coburn prominently featured the 30 released detainees in their minority report arguing against the Habeas Corpus Restoration Act of 2007:

"At least 30 detainees who have been released from the Guantanamo Bay detention facility have since returned to waging war against the United States and its allies. A dozen released detainees have been killed in battle by U.S. forces, while others have been recaptured."


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It is worth noting, as the Committee's majority report did, that all detainees released from Guantanamo Bay were freed not by civilian courts, but by the military's own tribunals and commissions:

"Indeed, those Guantanamo detainees who have been released since 9/11--discussed at length by critics of this legislation--have been freed by the military following its own process, not by federal judges on habeas review."

Conservatives Wave the Bloody Shirt

In his Boumediene dissent, Justice Scalia regurgitated the now-familiar talking point, citing the news accounts contained in the minority report of Kyl et al:

"In the short term, however, the decision is devastating. 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)... ...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."

In his own tirade in the Wall Street Journal on Tuesday, John Yoo in turn approvingly cited Scalia's Boumediene dissent as proof of the coming bloodbath the Court's majority has enabled:

"Just as there is always the chance of a mistaken detention, there is also the probability that we will release the wrong man. As Justice Antonin Scalia's dissenting opinion notes, at least 30 detainees released from Guantanamo Bay -- with the military, not the courts, making the call -- have returned to Afghanistan and Iraq battlefields."

And in his own blistering attack on the Court's ruling on Friday, John McCain picked up the torch, virtually ensuring that the Gitmo 30 will be a bludgeon used against Barack Obama through November:

"30 of the people who have already been released from Guantanamo Bay have already tried to attack America again."

A Claim Debunked

Of course, there seems to be one minor problem with the tale told by Mssrs Kyl, McCain, Scalia and Yoo. Like much else that passes for Bush administration propaganda, it's a wild exaggeration at best.

During a December 11, 2007 appearance before the Senate Judiciary Committee, Denbeaux presented an analysis of the same data to reach a starkly different conclusion. The Seton Hall professor and detainee lawyer contended:

Just as the Government's claims that the Guantanamo detainees "were picked up on the battlefield, fighting American forces, trying to kill American forces," do not comport with the Department of Defense's own data, neither do its claims that former detainees have "returned to the fight." The Department of Defense has publicly insisted that at least thirty (30) former Guantanamo detainees have "returned" to the battlefield, where they have been re-captured or killed. To date, however, the Department has described at most fifteen (15) possible recidivists, and has identified only seven (7) of these individuals by name. More strikingly, data provided by the Department of Defense reveals that:

- at least eight (8) of the fifteen (15) individuals identified 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, two (2) of the individuals' names do not appear on the list of individuals who have at any time been detained at Guantanamo, 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 Guantanamo detainees but who, after his death, has been alleged to have been detained under a different name.

No doubt, Denbeaux's role as a defense attorney for detainees held by the United States in Cuba means his analysis will (and should) draw extra scrutiny. But in its devastating three-part probe into the American detainee system, McClatchy largely confirmed Denbeaux's 2007 assessment:

A study published by a professor at the Seton Hall School of Law found that 45 percent of 516 Guantanamo detainees examined had committed hostile acts against the United States or its allies, and that only 8 percent of them had been al Qaida fighters. The study drew on unclassified Department of Defense transcripts and documents from military tribunals at Guantanamo...

...So who got it right?

It's not possible to say definitively. However, a McClatchy investigation came to conclusions similar to the Seton Hall study, and West Point's statistical breakdown, under close examination, helps explain how Guantanamo's cellblocks became filled with innocents and low-level Taliban grunts.

Now, Denbeaux's new report ("Justice Scalia, the Department of Defense, and the Perpetuation of an Urban Legend") puts the final nail in the coffin for the right-wing's Gitmo 30 fear-mongering. The press release accompanying the June 17 study noted, "The '30' number, however, was corrected in a DoD press release issued in July 2007, and a DoD document submitted to the House Foreign Relations Committee on May 20, 2008 abandons the claim entirely." That House hearing occurred two weeks before Scalia published his stinging Boumediene dissent. And Seton Hall's findings, all available in the public domain, are more damning still:

- At most 12, not 30, detainees "returned to the fight."

- Of these 12, it is by no means clear that all are properly characterized as having been so engaged since their release.

- According to the Department of Defense's published and unpublished data not a single detainee was ever released by a court. Moreover, every released detainee was released by political appointees of the Department of Defense, sometimes over the objection of the military.

- According to the Department of Defense's published and unpublished data and reports, not a single released Guantánamo detainee has ever attacked any Americans.

- The Department of Defense's statements regarding recidivism are inconsistent with each other and often contradictory.

- This may be because, despite the importance of detainee recidivism, the Department of Defense's sources of information are media reports. - Despite national security concerns, the Department of Defense does not have a system for tracking the conduct or even the whereabouts of released detainees.

There is no question that some number of those held at Guantanamo Bay are indeed the "worst of the worst," as the trial of Khalid Sheikh Muhammed and associates makes clear). (As McClatchy's massive probe this past week shows, many more were not.) And as the DoD, the 2007 Senate Judiciary Committee report, Denbeaux and some conservative bloggers rightly point out, a handful committed new terrorist atrocities in Iraq, Kuwait, Afghanistan and Russia after their release from U.S. custody in Cuba.

But John McCain and friends notwithstanding, the claim that "30 of the people who have already been released from Guantanamo Bay have already tried to attack America again" is simply not true. Of course, that doesn't mean we've heard the last of the Gitmo 30.

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