Sunday, March 26, 2006

Justice Scalia Opposes Civil Trials for Military Detainees.


Justice Scalia has, in recent years, become involved in a number of cases where his potential recusal garnered headlines. For example:

Elk Grove Unified School District v. Newdow, the "pledge of allegiance case" out of California. Several months before the case was scheduled to be argued before the U.S. Supreme Court, Scalia was a speaker at a "Religious Freedom Day" ceremony. During his speech, Sclaia criticized how courts and society have handled church-state issues in recent years. Mayor Bill Beck of Fredericksburg, Va, who introduced Scalia at the ceremony, recalled Scalia's remarks as making it "clear that he thought anyone who did not want school children to say the Pledge of Allegiance with the words 'under Go' in it deserved a spanking." The party in that case seeking to have "under God" removed from the Pledge, Michael Newdow, affirmatively requested Scalia's recusal. The request brought a great deal of public commentary and debate about the relatively non-specific ""rules" that dictate when Justices of SCOTUS decide to recuse themselves and when they decide not to. Ultimately, Scalia decided to recuse himself from the case.

Somewhat similarly, the question of whether Scalia should recuse himself from a case arose concerning a case in which Vice President Dick Cheney was the named party. In that case, while the case was pending before SCOTUS, Cheney and Scalia went on a duck hunting trip in Louisiana together; a trip "sponsored" by an energy company. The case involved whether energy companies played too significant a role in developing Bush's energy policy and involved requests for Cheney to disclose the names of individuals who had comprised an energy task force. Scalia commented to the L.A. Times that he did "'not think [his] impartiality could reasonably be questioned' and that the only thing really wrong with the trip was that the hunting was 'lousy.'" Scalia ultimately refused to recuse himself.


And now it's happening again. According to SCOTUS Blog, this time the issue concerns comments Scalia made a couple of weeks ago in Switzerland concerning whether alien military detainees are entitled to civil trials. SCOTUS Blog reports:

[I]n response to a question about affording constitutional rights to Guantanamo detainees, he states unequivocally that "foreigners, in foreign countries, have no rights under the American Constitution" and that "nobody has ever thought otherwise." But see Rasul v. Bush, 542 U.S. 466, 483 n.15 (2004).

Of potential relevance to the current docket, in answer to one question from the audience (just after the 56:00 mark), Justice Scalia expresses incredulity at the notion that detainees captured "on the battlefield" should receive a trial in civil courts. It is, he says, a "crazy idea." To a follow-up question about the Geneva Conventions and other human rights treaties, he responds with evident disdain: "What do they mean? They mean almost anything." The questioner then refers again to a hypothetical Guantanamo detainee, at which point Justice Scalia interjects: "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son. And I am not about to give this man who was captured in a war a full jury trial. I mean it's crazy."

SCOTUS is scheduled to hear arguments on Tuesday in Hamdan v. Rumsfeld, a case in which, inter alia, a military detainee at Guantanamo Bay is asserting a right to be tried in a civilian court or by court-martial, rather than in the Pentagon's military tribunal. Other issues include the extent to which the Geneva Conventions protect detainees.

Stay tuned for updates on whether Justice Scalia concedes that his statements in Switzerland at least bring his partiality into question and merit recusal.

**UPDATES:**
Kierkegaard Lives Post-Argument Post (March 29, 2006)
How Appealing Links to Coverage (March 28, 2006)
How Appealing Links to Coverage (March 27, 2006)

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