Report: Scalia’s Claim That Released Gitmo Prisoners Have Killed Americans Is An ‘Urban Legend’

A new report from the Seton Hall University School of Law explodes the myth that some 30 detainees released from Guantanamo Bay prison have “returned to the battlefield” against American forces.

This conservative urban legend was recently parroted by Supreme Court Justice Antonin Scalia in his dissent from the Court’s Boumediene decision. Scalia wrote that granting habeas corpus rights to Gitmo detainees “will almost certainly cause more Americans to be killed,” and supported this view by asserting that “at least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.”

The new Seton Hall report (pdf) states that “Justice Scalia’s claim of 30 recidivist detainees is belied by all reliable data” :

Despite being repeatedly debunked, this statement has been reflexively accepted as true by Members of Congress and much of the American public. Justice Scalia is only the most recent disseminator of an urban legend that refuses to die. […]


[Scalia’s] source was a year-old Senate Minority Report, which in turn was based on misinformation provided by the Department of Defense.

Justice Scalia’s reliance on these sources would have been more justifiable had the urban legend he perpetuated not been (one would have thought) permanently interred by later developments, including a 2007 Department of Defense Press Release and hearings before the House Foreign Relations Committee less than two weeks before Justice Scalia’s dissent was released.

Among the report’s conclusions:

— According to the Department of Defense’s published and unpublished data and reports, not a single released Guantánamo detainee has ever attacked any Americans.

— Despite national security concerns, the Department of Defense does not have a system for tracking the conduct or even the whereabouts of released detainees.

While there is little evidence that fighters interred at Guantanamo Bay — that is, those who were fighters before they got there — have attacked Americans, there is quite a bit of evidence that, for those falsely imprisoned there and for many young Muslims watching around the world, Guantanamo has a politically radicalizing effect. Maintaining Guantanamo and other illegal detention sites hurts America’s image abroad, and calls into question America’s support for human rights and the rule of law. There is no good argument against closing it down.

Cross-posted on The Wonk Room.