In the wake of the Supreme Court's restoration of habeas corpus rights in its Boumediene decision Friday, John McCain and his allies on the right have predictably forecast an American bloodbath at the hands of terrorists unleashed from Guantanamo. While Justice Antonin Scalia claimed the ruling would "almost certainly cause more Americans to be killed," Newt Gingrich contended the Supreme Court "could cost us a city." As for McCain, he simply regurgitated a soon-to-be familiar GOP talking point, "30 of the people who have already been released from Guantanamo Bay have already tried to attack America again."
Unfortunately for McCain and his Republican echo chamber, recent investigations from the McClatchy papers and Seton Hall University professor Mark Denbeaux suggest those figure for Gitmo recidivists, like so much else Bush administration propaganda, is apparently much exaggerated.
In July 2007, the Pentagon released a study by a terrorism study center at West Point to refute earlier findings from Denbeaux and his colleagues. As the New York Times noted:

It paints a chilling portrait of the detainees, asserting that publicly available information indicates that 73 percent of them were a "demonstrated threat" to American or coalition forces. In all, it says, 95 percent were at the least a "potential threat," including detainees who had played a supporting role in terrorist groups or had expressed a commitment to pursuing violent jihadist goals. The study is based on information from detainees' hearings in 2004 and 2005.

And in what would become the foundation for John McCain's sound bite Friday, the report dug through the data from the Combatant Status Review Tribunals (CSRT) to conclude, as Pentagon spokesman Jeffrey Gorden put it:

"In fact, our reports indicate that at least 30 former Guantanamo detainees have taken part in anti-coalition militant activities after leaving U.S. detention," he said. "Some have been killed in combat in Afghanistan and Pakistan."

But during a December 11, 2007 appearance before the Senate Judiciary Committee, Denbeaux presented an analysis of the same data to reach a starkly different conclusion. The Seton Hall professor and detainee lawyer contended:

Just as the Government's claims that the Guantanamo detainees "were picked up on the battlefield, fighting American forces, trying to kill American forces," do not comport with the Department of Defense's own data, neither do its claims that former detainees have "returned to the fight." The Department of Defense has publicly insisted that at least thirty (30) former Guantanamo detainees have "returned" to the battlefield, where they have been re-captured or killed. To date, however, the Department has described at most fifteen (15) possible recidivists, and has identified only seven (7) of these individuals by name. More strikingly, data provided by the Department of Defense reveals that:
- at least eight (8) of the fifteen (15) individuals identified alleged by the Government to have "returned to the fight" are accused of nothing more than speaking critically of the Government’s detention policies;
- ten (10) of the individuals have neither been re-captured nor killed by anyone;
- and of the five (5) individuals who are alleged to have been re-captured or killed, two (2) of the individuals' names do not appear on the list of individuals who have at any time been detained at Guantanamo, and the remaining three (3) include one (1) individual who was killed in an apartment complex in Russia by local authorities and one (1) who is not listed among former Guantanamo detainees but who, after his death, has been alleged to have been detained under a different name.

No doubt, Denbeaux's role as a defense attorney for detainees held by the United States in Cuba means his analysis will (and should) draw extra scrutiny. But in its devastating three-part probe into the American detainee system, McClatchy largely confirmed Denbeaux's assessment:

A study published by a professor at the Seton Hall School of Law found that 45 percent of 516 Guantanamo detainees examined had committed hostile acts against the United States or its allies, and that only 8 percent of them had been al Qaida fighters. The study drew on unclassified Department of Defense transcripts and documents from military tribunals at Guantanamo...
...So who got it right?
It's not possible to say definitively. However, a McClatchy investigation came to conclusions similar to the Seton Hall study, and West Point's statistical breakdown, under close examination, helps explain how Guantanamo's cellblocks became filled with innocents and low-level Taliban grunts.

There is no question that some number of those held at Guantanamo Bay are indeed the "worst of the worst" (as the trial of Khalid Sheikh Muhammed and associates makes clear). But the Pentagon's 2007 study was a political document (as the Times reported, "Colonel Felter acknowledged, however, that military officials had indicated they wanted to contest the Seton Hall report"). And no doubt, we haven't heard the last of those 30 terror recidivists from John McCain and his friends.
UPDATE: Denbeaux and his Seton Hall colleagues on June 17th issued a new report in response to Scalia's Boumediene dissent. Pointing out that the DoD itself abandoned the "30 released detainees" claim, Denbeaix et al term the Scalia/McCain/Yoo talking point an "urban legend."