Really, there's no difference anymore.

In his dissent in Boumedienne (pdf), Justice Scalia wrote:

"At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield."

When I read this, I wondered about the word 'returned', since it seems to assume that these detainees were enemy combatants when they were captured. But I didn't wonder whether 30 prisoners had, in fact, taken up arms against the US since their release. I don't keep track of these things, and the idea that people whom we had locked up for years, without justification, might take up arms against us didn't seem all that farfetched.

Researchers at Seton Hall decided to examine this claim, originally made by the Pentagon:

"we are aware of dozens of cases where they have returned to militant activities, participated in anti US propaganda or other activities through intelligence gathering and media reports. (Examples: Mehsud suicide bombing in Pakistan; Tipton Three and the Road to Guantanamo; Uighurs in Albania)"

What did the Tipton Three do?

The Tipton Three were three British citizens who were captured in Afghanistan, and suspected of being members of al Qaeda, in part because they were thought, wrongly, to be in a videotape of a rally featuring bin Laden. After British intelligence cleared them of that charge (one of the three had in fact been working at a Curry's electronics store in Birmingham when the rally was taking place in Afghanistan), they were released. And after that, they participated in the movie The Road To Guantanamo. Apparently, this counts as "returning to the battlefield".

They were interviewed for a movie about Guantanamo. That's what the Pentagon (and now Alito) considers "returning to the battlefield".

What about the Uighurs in Albania? One penned a New York Times op-ed, the other gave an interview to a reporter of the same newspaper.

"It turns out that clients of our firm, who were sent to Albania in 2006, were two of the 30. What fight had they returned to? Abu Bakker Qassim had published an op-ed in The New York Times. Adel Abdul Hakim had given an interview. These press statements were deemed hostile by the Department of Defense.

Surely the Pentagon was joking? They weren't.

So I can't speak for the other 28, if indeed there are another 28, but for the two men I do know about, giving hostile interviews constituted "returning to the fight.""

So what did the Setan Hall researchers conclude?

"Extending to the Government the benefit of the doubt as to ambiguous cases, the list of possible Guantánamo recidivists who could have been captured or killed on the battlefield consists of two individuals: Mohammed Ismail and Mullah Shazada. If an apartment complex in Russia falls within the definition of "battlefield," then as of June 2007—after the Department of Defense had already cited thirty (30) as the total number of recidivists—an additional individual, Ruslan Odizhev, can be added to the list. Thus, at most—of the approximately 445 detainees who have been released from Guantánamo—three (3) detainees, or less than one percent (1%), have subsequently returned to the battlefield to be captured or killed. Two (2) other detainees (Abdul Rahman Noor and Mohammed Nayim Farouq), while not re-captured or killed, are claimed to be engaged in military activities, although the information provided by the Government in this regard cannot be cross-checked."

The DoD has updated their list of former detainees who have "returned to militant activities", from 30 to 12, with six of the names new to the list.

All of this is public information, yet a Supreme Court Justice is using admittedly discredited government propaganda for his written opinions.

Bravo, Scalia, you are a perfect representative of your side of the ideological divide, trading in wingnut paranoia and unsubstantiated propaganda.