Newark, NJ—Seton Hall Law’s Center for Policy and Research has issued a report revealing that Justice Scalia’s dissenting opinion in Boumediene v. Bush, which accords Guantánamo detainees the right to habeas corpus review in federal court, cites inaccurate information that was retracted by its original source, the Department of Defense (DoD).

On June 12, Supreme Court Justice Antonin Scalia’s dissenting opinion on the ruling stated that “[a]t least 30 of those prisoners hitherto released from Guantánamo Bay have returned to the battlefield.” The statistic was endorsed by a Senate Minority Report issued June 26, 2007, which cites a media outlet, CNN. CNN, in turn, named the DoD as its source. 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.

Professor Mark Denbeaux, director of the Seton Hall Law Center for Policy and Research commented, “As lawyers and judges we have an obligation to be careful with our facts. The notion that 30 detainees ‘returned to the battlefield’ was disproved a year ago. It is distressing that Justice Scalia in Boumediene was not more careful in such an important matter, especially since he was relying uncritically on information that originated with a party in the case before him.”

Justice Scalia, The Department Of Defense, and the Perpetuation of an Urban Legend: the Truth about Recidivism of Released Guantánamo Detainees, the Center’s ninth Guantánamo Report, is based entirely on the Government’s own documents, many of which were procured through Freedom of Information Act suits. The prior Reports have been cited by the Senate Armed Services Committee, the House Armed Services Committee, the House Appropriations Committee, and the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security; and introduced into the Congressional Record.

In December 2007 the Center issued The Meaning of “Battlefield” (http://law.shu.edu/news/meaning_of_battlefield_final_121007.pdf), which disproved the original claim decrying the fate of 30 former Guantánamo detainees. Justice Scalia, the Department of Defense, and the Perpetuation of an Urban Legend, which serves as a follow-up to The Meaning of “Battlefield,” concludes that the DoD’s statements regarding recidivism are inconsistent with one another other and often contradictory—because the DoD does not have a system for tracking the conduct, or even the whereabouts, of released detainees.

Joshua Denbeaux, senior fellow and co-author of the report, stated, “A Supreme Court ruling that includes patently inaccurate information diminishes the Court’s credibility and tarnishes the international reputation of the highest court in the United States. Just as disturbing, DoD seems incapable of producing credible information about what has actually happened to former Guantánamo detainees. If the decision to release detainees had been made by the courts, rather than political appointees of DoD, America would be safer.”

Justice Scalia, the Department of Defense, and the Perpetuation of an Urban Legend was compiled by the Center’s student and graduate research fellows. The report may be read at http://law.shu.edu/center_policyresearch/reports/urban_legend_final_63008.pdf.

Seton Hall University School of Law, New Jersey’s only private law school, and a leading law school in the New York metropolitan area, is dedicated to preparing students for the practice of law through excellence in scholarship and teaching, with a strong focus on clinical education. The Center for Policy and Research enables students to gain practical experience while engaging in research and analysis that promotes respect for the rights of individuals worldwide. The students examine primary sources pertaining to national security law and practices of the U.S. government, as well as the reliability of forensic evidence for criminal investigations and prosecution. Seton Hall Law is located in Newark, NJ and offers both day and evening degree programs. For more information, visit http://law.shu.edu.