Die Another Day

Slate's blog on legal issues.
June 22 2008 3:29 PM

Die Another Day

I'm glad Dahlia chose to open her " Breakfast Table" discussion with Walter Dellinger, Jack Goldsmith, and Cliff Sloan with a note about Boumediene and Justice Antonin Scalia's absurd sky-is-falling dissent arguing that detainees will exit the habeas process to fight us again on the battlefield. Ever the public intellectual, Scalia took to the Charlie Rose show to offer this apocalyptic prediction:

Something like 30 of the people that the military have released from Guantanamo have returned to the battlefield and killed Americans and others. Do you expect that number to be reduced when judges are making the decision who know less than the military?" He reiterated that "the result of that answer is more people, more Americans will be killed. I think that's almost for sure.

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Scalia's wrong, and his canards must be crushed.

First, it should be noted that Justice Scalia conflates and mischaracterizes the enemy in his dissent. In his third paragraph, he lumps together the actions of diametrically opposed terrorist groups, including the 1983 Hezbollah attack on a Marine barracks in Beirut and several al-Qaida attacks since then, to make a grand argument that "America is at war with radical Islamists."

In fact, different groups coming from very different traditions launched the attacks he lists in staccato fashion. It's wrong to list Hezbollah , a Shiite group supported by Iran, and al-Qaida, an extremist Sunni group aided over the course of its history by Pakistan and Saudi Arabia, in the same breath. We are not fighting a monolithic Islamist threat. Rather, we are engaged in a struggle against a very diverse constellation of groups. These groups' diversity creates tactical and strategic opportunities. (See, for e.g., the successful military diplomacy in Iraq which split Sunni moderates from Sunni extremists affiliated with al-Qaida in Iraq.) This may seem like a minor footnote to Justice Scalia. But it is a strategic error of grand proportions. And it's the same kind of strategic glaucoma the White House shows when it visualizes and describes America's global war on terrorism. 

Second, there's the point about detainees returning to the battlefield. As I wrote for Slate in October 2004 , this, too, is a myth that obscures the real problems at the heart of our Guantanamo regime. The 30 detainees Scalia refers to effectively bulls---ted their way out of Gitmo. The military bought their stories and released them. Scalia sets up a false dichotomy by saying that judges will be to blame for more cases like these 30, unless we keep the military in charge. But the military is responsible for releasing these 30!!! At least with habeas corpus proceedings, or something like them, we might get a better factual inquiry than the sham tribunals being run by the Pentagon at Gitmo today.

But what's most absurd is this: Justice Scalia totally ignores the way Gitmo itself (and the lack of meaningful legal process there) radicalizes the detainee population. The real problem is not that we are now giving some modicum of due process (how much remains to be seen) to detainees. Rather, the problem is that we've created an extra-legal detention and interrogation regime and that this regime's output is a person more radical and prone to violence against the United States than when he entered Gitmo. If anything, the habeas proceedings will mitigate this by providing one small measure of justice to the detainees at Gitmo.

Phillip Carter is an Iraq veteran who now directs the veterans research program at the Center for a New American Security.

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