Tuesday, July 1, 2008


In his dissent in the Boumedienne case Justice Scalia argues against the granting of habeas corpus relief on the grounds that 30 of those who have been voluntarily released from Guantanamo returned to the battlefield, and thus he claims, more Americans will almost certainly be killed if such relief is granted. Initially, there is substantial debate as to whether his factual predicate is accurate, but even assuming that it is, his logic is chilling.

The logic: If detainees receive a hearing, they will be released. Those that are released will return to the battlefield and kill more Americans. Therefore, detainees should not receive a hearing. There are many meritorious arguments against granting habeas relief to detainees in these unique circumstances, but the danger that they might be released after a hearing is not one of them. The argument certainly presupposes that the detainees are guilty, and that the hearings, rather than resulting in freeing the innocent, will be freeing the guilty. It assumes inexplicably that those against whom there is evidence of criminal conduct and/or terrorism, nonetheless will be released.

The reason that I find the logic so chilling is because it could be easily extended to anyone charged with a crime (although here the detainees were labelled, but not charged with anything). Justice Scalia seems to be arguing that since a hearing runs the risk of freeing someone who is guilty and likely to commit further crimes, or in this case, acts of terror, that the answer is not to grant them a hearing, but rather leave them confined indefinitely. So persons charged with murder should not receive a trial, because they might be acquitted and murder again. Furthermore, his argument completely ignores the possibility (and the evident likelihood) that many of the detainees are innocent, and at a minimum, should be granted the opportunity to establish it. His argument makes no sense unless one presumes that the detainees are guilty----and therein lies the chill.