Supreme Court: Detainees' Rights—Scalia Speaks His Mind
By Michael Isikoff
03/27/06 "Newsweek" -- -- April 3, 2006 issue - The Supreme
Court this week will hear arguments in a big case: whether to
allow the Bush administration to try Guantánamo detainees in
special military tribunals with limited rights for the accused.
But Justice Antonin Scalia has already spoken his mind about
some of the issues in the matter. During an
unpublicized March 8 talk at the University of Freiburg in Switzerland, Scalia
dismissed the idea that the detainees have rights under the U.S.
Constitution or international conventions, adding he was
"astounded" at the "hypocritical" reaction in Europe to Gitmo.
"War is war, and it has never been the case that when you
captured a combatant you have to give them a jury trial in your
civil courts," he says on a tape of the talk reviewed by
NEWSWEEK. "Give me a break." Challenged by one audience member
about whether the Gitmo detainees don't have protections under
the Geneva or human-rights conventions, Scalia shot back: "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'm not about to give this man who was captured in
a war a full jury trial. I mean it's crazy." Scalia was
apparently referring to his son Matthew, who served with the
U.S. Army in Iraq. Scalia did say, though, that he was concerned
"there may be no end to this war."
The comments provoked "quite an uproar," said Samantha Besson, a
member of the Freiburg law faculty who had invited Scalia to
give his talk, which was mostly about his "originalist"
interpretation of the Constitution. This isn't the first time
Scalia has commented on matters before the court: two years ago
he recused himself from a Pledge of Allegiance case after making
public comments about the matter. "This is clearly grounds for
recusal," said Michael Ratner of the Center for Constitutional
Rights, a human-rights group that has filed a brief in behalf of
the Gitmo detainees. "I can't recall an instance where I've
heard a judge speak so openly about a case that's in front of
him—without hearing the arguments." Other experts said it was a
closer call. Scalia didn't refer directly to this week's case,
Hamdan v. Rumsfeld, though issues at stake hinge in part on
whether the detainees deserve legal protections that make the
military tribunals unfair. "As these things mount, a legitimate
question could be asked about whether he is compromising the
credibility of the court," said Stephen Gillers, a legal-ethics
expert. A Scalia recusal (it's entirely up to him) would create
problems; Chief Justice John Roberts has already done so in
Hamdan because he ruled on it as an appellate judge. A Supreme
Courtspokeswoman said Scalia has no comment.
© 2006 MSNBC.com
