Justice Scalia Announces Opposition to Trials in Civil Courts for Alien Military Detainees
Just over two weeks ago, on March 8th, Justice Scalia gave a speech at the University of Fribourg in Switzerland, the school at which he spent his junior year abroad in the mid-1950’s. Apparently he permitted it to be filmed, because the video of the speech, a follow-up Q&A, and a short interview, can be viewed here. Justice Scalia is characteristically combative and provocative. For instance, in response to a question about Bush v. Gore, he responds: “Come on, get over it.” He states that the real question in the case was whether the election was to be decided by the Florida Supreme Court or by the U.S. Supreme Court — “not a very hard question,” in his view — and “there was no way we could have turned that case down.” He then states that the Florida Supreme Court — but not the U.S. Supreme Court — was “politically motivated.” And in 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.” (I believe that Scalia’s son Matthew served with the U.S. Army in Iraq.)
This coming Tuesday, the Court will hear arguments in Hamdan v. Rumsfeld, a case in which the questions include, among other things, whether a detainee held at Guantanamo can be tried for an alleged violation of the laws of war in the Pentagon’s military tribunal instead of in a civilian court or by court-martial, and whether and to what extent the Geneva Conventions protect Guantanamo detainees. The Chief Justice, who heard the case in the court of appeals, has already recused. Will there be eight Justices sitting on Tuesday, or only seven? Cf. Cheney v. U.S. District Court, 124 S. Ct. 1381, 1394 (2004) (Scalia, J., in chambers) (explaining that he had, on the basis of “established principles and practices,” recused himself from Elk Grove Unified School Dist. v. Newdow because he had “said or done something which requires that course”).
The “established principles and practices” for Supreme Court Justice recusal are notoriously uncodified, and obscure. In Newdow, Justice Scalia recused after having been reported to have said in a speech that “judges who ban . . . the words ‘under God’ in the Pledge of Allegiance are misinterpreting the Constitution.” But there’s no sure way of knowing whether Justice Scalia will view his Fribourg remarks as analogous for purposes of recusal. [Note: In his remarks, Justice Scalia referred to detainees captured “on the battlefield.” Whether that describes Hamdan might depend on what is meant by “the battlefield.” The SG represents that “[i]n November 2001, petitioner was captured in Afghanistan during the course of active hostilities in that country and transferred to the control of the United States armed forces. After an extensive screening process, petitioner was determined to be an enemy combatant and transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention.” Hamdan’s brief states that he was “captured in Afghanistan by indigenous forces while attempting to return his family to Yemen,” and was “turned over to American forces in exchange for a bounty.” It later states that Hamdan was “apprehended on the field of battle in a war between the United States and the government of Afghanistan.”]
Notably, in his statement in Cheney, Justice Scalia suggested that recusal might be disfavored where it would leave the Court with an even number of Justices, thus raising the prospect of affirmance by an equally divided Court and no ruling on the merits. In Hamdan, the possibility of a 4-4 affirmance will exist if Justice Scalia does not recuse.
[Full disclosure: Both Goldstein and Howe, and my colleague Neal Katyal, represent Hamdan, and I have advised counsel about the merits of the case. But I do not represent any party to the case and I do not have any stake in it. Nor do I know whether any party will file a motion for recusal.]
[CLARIFICATION: I am not expressing any view here about whether or not Justice Scalia should recuse himself from Hamdan. I don’t really have sufficeint knowledge of what the Court’s “established principles and practices” are, or ought to be.]
[UPDATE: Michael Isikoff picks up the story in Newsweek. I’m given reason to believe that Mike may well be responsible for ferreting out this tape in the first place and putting it in circulation in a manner that eventually reached me.]
Scalia basically gave up being a judge years ago and became, for the most part, a right-wing pundit on the bench. His dissents read like they should be published by Regnery, and his speeches are full of grotesque Coulteresque smears (accusing the Florida court of being “politically motivated” is something I’d expect to hear from Tom DeLay, not a judge). What a tragedy that this man is considered the model for a good conservative justice.
Comment by M.A. — March 26, 2006 @ 11:27 am
With the caveat that I have not been able to view the video yet (slow connection), I find the comments reported by Professor Lederman quite troubling. I’ll assume for purposes of my comment that Justice Scalia was correct both in recusing himself in the Newdow case and in refusing to recuse himself in Cheney.
Taking those two recent cases as the clearest precedents, Scalia’s comments in Switzerland seem far closer to what he said about the Pledge of Allegiance than to the situation underlying the Cheney controversy. In short, his comments indicate that he had decided the merits of the Hamdan case before briefing and argument and, one can logically infer, on the basis of considerations that were as much personal and political as legal in nature.
Now, I realize that there is often a fine line between giving a speech that outlines a well-defined judicial philosophy and commenting on issues that “may” come before the Court. It is entirely different, however, to address a topic that is not only percolating in the lower courts or on the minds of the legal community, but that is actually on the Court’s docket at the moment.
The Pledge of Allegiance case, if I recall correctly, was not yet on the Court’s docket when Scalia addressed it in his speech. Hamdan was. Under these circumstances, Scalia made a serious error in speaking as he did about the issues involved in that case. Whether or not he should ultimately recuse himself is a question that I leave for others. But I would be surprised if this news did not at least prompt a motion for recusal.
Comment by LegalThoughts — March 26, 2006 @ 1:35 pm
While I understand the concern, I doubt this will lead to actual recusal by Justice Scalia. Having watched the video, he responded to a hypothetical question that was designed to articulate European concern for the so-called mistreatment of Guantanamo detainees. Justice Scalia responded in equally broad political terms that, at least historically, prisoners of war have never enjoyed the full procedural due process measures accorded to US citizens in a civil trial. Far from commenting on DTA’s congruence with the Geneva Convention or even as to what rights a enemy combatant might legally enjoy in a military commission, Justice Scalia simply stated that the treatment of Guantanamo prisoners was coterminous with those protections similar prisoners have historically been granted.
Moreover, his comment that he is not about to “give this man who was captured in a war a full jury trial” must be considered in the context of his other remarks. Justice Scalia was speaking about the opprobrious practice of judges that fancy themselves as Plutonic philosopher kings supplementing thier own moral sense of justice for the will of a democratic government. Thus the idea that he believes it would be inappropriate to divine new rights for enemy combatants that have never previously been bestowed upon such persons before was offered to support his larger thesis.
In Casey, Justice Scalia wrote, “To portray Roe as the statesmanlike “settlement” of a divisive issue, a jurisprudential Peace of Westphalia, is nothing less that Orwellian.” And, in Carhart, he wrote, “The notion that the Constitution of the United States, designed, among other things, “to establish justice, insure domestic tranquility,… and secure the blessings of liberty to ourselves and our posterity,” prohibits the states from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.” Do these broad statements preclude his participation in future abortion cases? Of course not. And this is because, whether he is dissenting in an opinion whose primary issue may again be before him or whether he makes similarly broad statements as to how his judicial philosophy may impact other areas of the law during a lecture, he is not commenting on the specific facts of a pending case. Unlike the Newdow case, where he said what the outcome of a specific issue should be, his Switzerland comments only stated how discovering new rights for enemy combatants that were never previously compelled would run counter to an originalist judicial philosophy.
Indeed, it is not at all clear that Justice Scalia has added anything that we did not already know from his dissenting opinion in Hamdi. In that opinion, he was clear to distinguish US citizens from that the enemy combatants in Quirin, and went on to conclude by stating:
“[The reasoning in this opinion] appl[ies] only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different.”
While I agree that Justice Scalia may have ventured about as close to the line of permissible comment regarding a topic currently before the court as is tolerable, I don’t see anything in his remarks that are overtly reticent as to the specific facts and issues presented by Hamdan. To be sure, when one considers the context his Switzerland remarks, I don’t believe Justice Scalia has added anything to the public square that we didn’t already know about him from his dissent in Hamdi and his other public comments over the years. For these reasons, I believe it to be unlikely that he will actually recuse himself for this case.
Comment by JPS2L — March 26, 2006 @ 3:03 pm
I can’t get the video to play so I’m posting with that caveat but I wonder if a recusal motion couldn’t survive despite the possible “on the battefield” distinction since Scalia’s comments about his son indicate he may feel he has a person stake in this decision. I don’t really know the recusal rules but that is what jumped out at me in the excerpted portions of the speech.
Comment by timself — March 26, 2006 @ 5:56 pm
To quickly add to my assertion that we have not learned anything from Justice Scalia’s Switzerland comments that we did not already know, I would also note his dissent in Rasul v. Bush (2004):
“The consequence of this holding, as applied to aliens outside the country, is breathtaking. It permits an alien captured in a foreign theater of active combat to bring a petition against the secretary of defense. … Each detainee (at Guantanamo) undoubtedly has complaints _ real or contrived _ about those terms and circumstances. … From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the executive’s conduct of a foreign war.”
My only other thought on this topic is simply that justice Scalia’s son served in Iraq, not Afghanistan, where I understand Hamdan was detained. Accordingly, I am not sure that he has quite as much of a personal investment in the outcome of this case as may have been previously assumed.
Comment by JPS2L — March 26, 2006 @ 6:19 pm
I think JPS2L has it exactly right in pointing out that there is precisely zero doubt which side Justice Scalia or Justice Ginsburg is going to vote in an abortion case, but that should not preclude their participation. An even better example: Justices Brennan and Marshall spent most of the 1970s and all of the 1980s believing that the death penalty was per se unconstitutional. Their votes could scarcely be considered unpredictable in any capital case that came before the court. Should they have recused themselves from every capital case before the court, since their mind was made up without reference to the particulars of a given case, long before briefing and argument?
However, I don’t entirely agree with JPS2L’s differentiation of Newdow; if the memory serves, the incident which resulted in Scalia’s recusal in that case said little that Scalia had not already said in his Lee v. Weisman dissent:
Can anyone that dissent and come to any conclusion other than that Scalia regards the question of whether or not the pledge of allegiance is constitutional as fascetious? My gut reaction is that Scalia should not have recused himself in Newdow, and he should not recuse himself in this case either.
Comment by Simon — March 26, 2006 @ 7:50 pm
I’m not a Supreme Court scholar, I teach High School government, but I love keeping up on the Court and thank all of you for your work.
At what point would Scalia’s comments be considered violating the “good behavior” stipulation for tenure on the Court. Would comments such as these potentially lead to Congressional action (assuming any interest in this Congress to investigate anything), or does this stipulation for removal from the bench simply apply to illegal actions?
Comment by noonan — March 26, 2006 @ 8:47 pm
In addition to issues of bias and recusal raised by Justice Scalia’s remarks, there are two more particular points that they raise on which I would appreciate some comment. First, he refers to the detainees as having been captured by US forces in combat. In many cases that is not true. Many of the detainees are known to have been handed over to US forces, or sold to them. They were not captured by the United States, certainly were not taken in combat by the United States, and in many cases were not taken in combat by anyone. How is it that Scalia and the Bush administration can talk and act as if all of the detainees were captured in combat when many, perhaps most were not?
Second, I don’t understand why Guantanamo Bay does not count as US soil for this purpose. Are not military bases treated as US soil for legal purposes, just as embassies and consulates are? If a child were to be born at Guantanamo Bay, would that child not be an American citizen by jus solis? Are crimes comitted at Guantanamo Bay not considered under the jurisdiction of US courts?
Comment by billposer — March 26, 2006 @ 9:03 pm
Ed Whelan does make an excellent legal argument over at Bench Memos. However, I think analyzing this issue in terms of legal procedure is incomplete. We must look to politics.
Chiefly, Who is Scalia addressing? Obivously, at the lowest level of generality, he was replying to a question posed; thus, he was addressing the poser of the question. At a higher level of generality — one that takes politics into account, Scalia is mobilizing conservatives (e.g., Ed Whelan and his audience, Rush Limbaugh and his audience) by making provocative statements that the AP will most probably air. Because he makes what is a convincing argument if true — the Court has NEVER done XYZ, it automatically puts conservatives on notice that if the Court does XYZ, then the Court is deserving of criticism.
An obvious rejoinder is that Hamdan, as a case, was likely to garner extraordinary attention and criticism in any event; but this rejoinder is too general. The relevant theory is that Scalia cares about the kind of criticism to which the Court is exposed and cares about the the size of the audience that pays attention, because the effect of his statement (from which one could try to induce his motive) is to influence the internal dynamics of the Court. Why?
Let’s see. Roberts is recusing himself, and there is the possibility of a 4-4. Alito has been confirmed as a “conservative” jurist, but has yet to take a position on the War on Terror as a Supreme Court Justice. The stakes are high for Alito’s reputation within the conservative community — “Don’t become a Kennedy” — and this only serves to raise the stakes. In other words, a decisive win is needed, a persuadable vote could be on the fence, and a likely vote is out of play.
But Alito is not enough. Scalia needs to force the hand of those who seek to keep Court opinions consistent with public opinion and those who hope to steer the Court onto a path on the right side of history. One need only scroll down on www.orinkerr.com to see a post on Breyer commenting about O’Connor, and one only need look to Kennedy’s majority opinions in Gonzalez v. Oregon, Roper v. Simmons, and Lawrence v. Texas to note that there are Justices who care about international opinion, national opinion, and public opinion in general, because they believe it links the Court’s jurisprudence to public legitimacy. The line that Scalia is drawing here by making a provocative statement from Switzerland, much as John Kerry did from Davos, Switzerland in calling for Alito’s filibuster (I will not quote Hegel here, but I think the farce came first in this context), is that the elites of the United States and the elites of Europe have different mass bases before which they must appear legitimate. A Supreme Court opinion that is consistent with what elites in Switzerland think and inconsistent with what the mass of Americans think would appear an illegitimate opinion: Scalia is actively promoting the likelihood that those interested in legitimacy vote his way by stirring up opposition to an outcome inconsistent with what American public opinion will be after it is shaped by his comment that the Court NEVER DOES XYZ (and the implicit: a. the Court never does XYZ for categorically good reasons; and b. thus, the Court should not do XYZ in the case of Hamdan). In other words, this is not just a push on Alito, but also a push on Breyer and Kennedy to separate from Stevens, who thinks Rasul was a wonderful day in the park, rather than a departure from bedrock American principles. If you think about it, that’s 5 votes: assuming Scalia and Thomas will vote how Scalia suggests he might, Alito, Breyer, and Kennedy are the other “gettable” votes for Scalia in the absence of Roberts. (Note: This analysis is not a slight against Thomas; Thomas is more conservative than Scalia.)
So, what is Scalia doing? Trying to cobble together a 5-3 in the absence of Roberts! Is that a reason for him to recuse himself? Well, he was just giving a personal response to a question asked at a conference. The newspapers didn’t have to report it. And we can’t really prove what Scalia’s motives were, only speculate as to what they likely were given the foreseeability of their impact on public opinion, if covered by the press. That doesn’t sound like evidence of pre-judging a case to me; at worst, it sounds like advocacy. But is it really advocacy? Scalia is not responsible for MSNBC having reported on these statements (with a picture in which he looks dastardly) 6 times in the past hour (and it isn’t even 6 a.m. yet!). Scalia is likewise not responsible for Newsweek choosing to run its article prior to the oral arguments in Hamdan as opposed to afterward (e.g., after the decision is handed down). And given that this is what Scalia might have said during conference with the other Justices in any event (i.e., he would have aired these views prior to the decision being issued), what, really, is the problem? It begins to seem like the news media is trying to create a clamor for recusal because that will sell more magazines and advertising time on cable news.
Waitasecond: corporations interested in selling stuff and a Supreme Court Justice (a member of the political elite) having an opinion that a signifigant number of Americans find controversial…hmm, this doesn’t really sound as provocative or as novel as I thought when I began writing it.
Comment by Commentator — March 27, 2006 @ 5:58 am
I’m still trying to figure out how stating a view, even one framed in such strong words, is incompatible with being open enough to new arguments in a particular case that you haven’t yet heard that would eventually convince you that you were wrong in the initial view. In that light, this idea that stating views before hearing a case requires recusal just seems to me to be a non sequitur. One need not be unwilling to listen honestly to arguments in order to have a view on the matter before the arguments of a particular come across one’s radar.
What’s interesting to me is that Senator Schumer regularly makes this point at confirmation hearings, knowing full well that if the nominees listened to him then someone (other than him) would then be able to denounce the answer and call the justice later on the recuse themselves from any cases related to the answer. I have to wonder about the motivation here. In the light of people’s wrongheaded views on this issue, I can’t see how it’s a good idea to go shooting off one’s mouth, especially at confirmation hearings, but I don’t see anything wrong with it in principle, certainly nothing that should morally require recusal even if there’s some convention that judges have that does assume it should be done.
Comment by Jeremy Pierce — March 29, 2006 @ 4:40 pm