Scalia on the Battlefield

As I wrote a few weeks back, there are some pretty

serious factual flaws

in Justice Scalia’s


rant. Is the 30 men “returned to the battlefield” one of them?


says yes.


says no.


says everyone makes mistakes, but the military makes less than the rest of us (more on that below).

We may well never know about these particular 30. On the face of it, there are plenty of reasons not to take a Pentagon claim to the 30-detainees effect at face value. DoD hasn’t exactly established an unblemished record of credibility on detention matters. And the data DoD have released leaves one wondering. For example, among the 30 DoD says it’s counting are the five Uighurs who were released to Albania these are the ethnic Muslim Chinese detainees who couldn’t be sent back to China given the high likelihood they’d be tortured there and were instead taken in by the Albanians. As best one can discern, their only post-release “offense” to date seems to be having talked (from the comfort of their Albanian U.N. refugee facility) to Tim Golden at the New York Times about their time at Gitmo. Asymmetric warfare, I take it. One could go on. Or just read more about it in places like here or here . In any case, as I thought the recent McClatchy study of released Gitmo detainees helped show, Eric, it does looks like at least some of the folks who left Gitmo and then worked against the United States were indeed radicalized there so they weren’t particularly going “back” to the “battlefield;” they were joining it for the first time. 

Bigger picture, it seems to me Phil is right to point out that the military is the one who made the decision to let these particular guys out presumably demonstrating that the existing detainee status-review process is not only rights-abusing but error-prone in every direction (keeping those who should be released, releasing those who perhaps should be still detained). On the other hand, is it possible that some former Gitmo detainees were let go and then did bad things? Yes. All the more reason to figure out how/whether we can do Gitmo better. 

So who better to do it? Here’s where Orin and Eric lose me. Why assume, as Orin puts it, that because “[j]udges don’t have a lot of experience in figuring out which detainees are real terrorists and which aren’t,” judges are likely to do a worse job in making these status determinations than the military? I admit, that seems awfully counterintuitive to me. For a long, uninterrupted period of time now, nonmilitary judges have been making daily decisions about, for example, whether an individual committed a bad act or not, whether (for sentencing purposes) a detainee poses a likelihood of future dangerousness, whether a detainee is mentally competent to stand trial, may be a flight risk, likely poses a risk to himself or the community (for purposes of civil commitment), and whether and to what extent information they consider in all of this is probative or reliable.

On the military side, there’s some parallel experience to be found in the often very good military justice system and, to an extent, in the services’ criminal investigative divisions, although of course we all know the military has engaged neither at Gitmo (either with respect to status hearings or to trial). Indeed, often in the institutional military equivalent of a status hearing administrative, investigative-type proceedings in wartime the first-order “judges” are just whomever the relevant field commander appoints (experience or indeed any relevant training not necessarily required, as I understand it). With respect to “mere” detainee status determinations in particular, the last time before 9/11 the U.S. military was involved in any major detention operation was the 1991 Iraq war long enough ago for plenty of those folks with any actual hands-on experience in such ops to have left the service. And for those who remain, the 1991 cases turned out not to offer particularly relevant experience anyway, as it was made clear to the military they should not follow the same procedures this time around as it did then. 

The military houses plenty of smart people, of course, but is it an institution obviously better suited to deciding who’s a terrorist and who’s not? Eric says the reason it is has to do with comparative incentives: a military “judge” has a more immediate interest in getting the judgment right than a civilian judge. I dunno. Eric’s point a) is speculative (most judges I know aren’t crazy about terrorists either), b) assumes the military decisions aren’t complicated by political guidance that skews their decision-making (not our recent experience), c) also wrongly assumes the military isn’t thwarted by other federal government agencies with other incentives (like the CIA’s apparent refusal to share evidence with the CSRTs), and d) assumes that these folks with the best interests at heart have the training and resources they need to make an informed decision (hasn’t looked that way either). One could go on here, too.

In the meantime, I’m left with an impression: The courts have done pretty well with who’s-who judgments and with far less of the devastatingly adverse strategic security consequences than our current Gitmo approach. And they have the power, at least in theory, by constitutional structure, judicial order, and institutional competence, to escape failings b), c), and d). So lemme try again: What is it in particular about Gitmo that courts can’t handle?