Justice Scalia Announces Opposition to Trials in Civil Courts for Alien Military Detainees
on Mar 25, 2006 at 8:44 pm
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.]
