Full Version: Scalia Gives Guantanamo Case Preview
Justice Antonin Scalia evidently has played his hand a little early on the pending legal rights case of Guantanamo detainees.
Newsweek evidently obtained a recording of a speech Scalia gave in Switzerland. In it, he details pretty clearly his views on the legal status of Guantanamo detainees:
Questions for debate:
1) Should Scalia recuse himself from the pending Hamdan vs. Rumsfeld? Why or Why not?
2) If Scalia does recuse for bias, as Chief Justice Roberts already has due to the fact that he ruled already in an appellate capacity, what does this mean for the outcome of the case? Will Hamdan win?
Newsweek evidently obtained a recording of a speech Scalia gave in Switzerland. In it, he details pretty clearly his views on the legal status of Guantanamo detainees:
QUOTE
"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."
Questions for debate:
1) Should Scalia recuse himself from the pending Hamdan vs. Rumsfeld? Why or Why not?
2) If Scalia does recuse for bias, as Chief Justice Roberts already has due to the fact that he ruled already in an appellate capacity, what does this mean for the outcome of the case? Will Hamdan win?
1) Should Scalia recuse himself from the pending Hamdan vs. Rumsfeld? Why or Why not?
Is publicizing your opinion about a legal issue grounds for recusal? Should Justice Ginsberg recuse herself from abortion cases because she is known to be pro-choice?
Recusal Statutes
Having one's philosophy known in not the same as losing one's impartiality.
The Hamdan case boils down to whether or not a captured enemy combatant is entitled to a full jury trial or court martial instead of a military tribunal. Scalia saying that we have never granted jury trials to captured enemies is not an indication of bias. It is an indication of knowledge of pertinent history.
2) If Scalia does recuse for bias, as Chief Justice Roberts already has due to the fact that he ruled already in an appellate capacity, what does this mean for the outcome of the case? Will Hamdan win?
Traditionally, POWs are held until the end of hostilities. For example, in Korea POWs were held until truce talks began in 1951. Repatriation of captives actually prolonged the war when many North Koreas refused to be shipped back to the North.
In WW2, 400,000 German POWs were held in Britain until at least 1946. These POWs were forced to do the work on local farms and construction sites. The Geneva Convention was revised in 1949 partially due to what went on in the USSR POW camps.
Hamdan's case is that he is being unlawfully detained. I think he will lose that case on the merits. He was captured in Afghanistan and has admitted to being Osama bin Laden's personal driver and bodyguard. I think a reasonable person can be convinced that he is an unlawful enemy combatant (i.e. a terrorist).
The lower court has ruled that Hamdan, if tried, must be tried by a court martial under the UCMJ because his status under the Geneva Convention has not been decided by a tribunal. It has also ruled that Hamdan cannot be tried under military tribunal unless the procedures for that court are changed (currently, it allows evidence against the defendant to be kept secret from him).
The Appeals Court reversed this decision, saying that the President himself is a competent authority to determine a detainee's status under the Geneva Convention and thus allowing a military tribunal instead of a court martial Appeals court decision.
Is publicizing your opinion about a legal issue grounds for recusal? Should Justice Ginsberg recuse herself from abortion cases because she is known to be pro-choice?
Recusal Statutes
QUOTE
United States Code, Title 28, Section 455
Disqualification of Justice, Judge, or Magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(
He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or a personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the the third degree of relationship to either of them, or the spouse of such a person:
Disqualification of Justice, Judge, or Magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(
He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or a personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the the third degree of relationship to either of them, or the spouse of such a person:
Having one's philosophy known in not the same as losing one's impartiality.
The Hamdan case boils down to whether or not a captured enemy combatant is entitled to a full jury trial or court martial instead of a military tribunal. Scalia saying that we have never granted jury trials to captured enemies is not an indication of bias. It is an indication of knowledge of pertinent history.
2) If Scalia does recuse for bias, as Chief Justice Roberts already has due to the fact that he ruled already in an appellate capacity, what does this mean for the outcome of the case? Will Hamdan win?
Traditionally, POWs are held until the end of hostilities. For example, in Korea POWs were held until truce talks began in 1951. Repatriation of captives actually prolonged the war when many North Koreas refused to be shipped back to the North.
In WW2, 400,000 German POWs were held in Britain until at least 1946. These POWs were forced to do the work on local farms and construction sites. The Geneva Convention was revised in 1949 partially due to what went on in the USSR POW camps.
Hamdan's case is that he is being unlawfully detained. I think he will lose that case on the merits. He was captured in Afghanistan and has admitted to being Osama bin Laden's personal driver and bodyguard. I think a reasonable person can be convinced that he is an unlawful enemy combatant (i.e. a terrorist).
The lower court has ruled that Hamdan, if tried, must be tried by a court martial under the UCMJ because his status under the Geneva Convention has not been decided by a tribunal. It has also ruled that Hamdan cannot be tried under military tribunal unless the procedures for that court are changed (currently, it allows evidence against the defendant to be kept secret from him).
The Appeals Court reversed this decision, saying that the President himself is a competent authority to determine a detainee's status under the Geneva Convention and thus allowing a military tribunal instead of a court martial Appeals court decision.
QUOTE(Amlord @ Mar 27 2006, 11:18 AM)
Traditionally, POWs are held until the end of hostilities. For example, in Korea POWs were held until truce talks began in 1951. Repatriation of captives actually prolonged the war when many North Koreas refused to be shipped back to the North.
This is an interesting point. Haven't hostilities in Afghanistan ended? And if they haven't what is the line of demarcation for ending the hostilities there or in Iraq?
I actually agree with your reasoning on Hamdan, for the most part. I think he's a poor litmus test for POW/detainee status for the folks in Gitmo. He was in fact captured as part of our operations in Afghanistan in the early days. But now that Afghanistan has a new functioning government that we recognize, when exactly are those hostilities declared as being at an end?
I guess the larger question that could prove to be a topic unto itself is, given that Al Qaeda is not a nation state, how are we to determine when hostilities have ended? If we cannot, does that make the AUMF unconstitutionally broad?
It looks to me like if it was appropriate for Roberts to recuse himself, it's even more appropriate for Scalia to do so. Roberts at least had come to his opinion through proper judicial deliberation, in the context of the case before him. At his confirmation hearing, when Senators kept pressing him to answer questions on the law, citing the fact that he had already issued opinions on the law in the course of his work as a judge, he had explained that those instances happened only after hearing all the arguments of counsel and discussing and debating the issue thoroughly with his associates. He said that that's quite different from giving his opinions right there in the Senate chamber, when he hasn't had occasion to go over it completely. Such is the way with Scalia and his comments.
The only thing I might say in Scalia's defense is that it doesn't appear that he intended for his comments to reach a wider audience than the one he was addressing in that room. Nonetheless, it's also his responsibility to understand that any statements he makes before a large group of people have the potential to get out to the outside world.
The only thing I might say in Scalia's defense is that it doesn't appear that he intended for his comments to reach a wider audience than the one he was addressing in that room. Nonetheless, it's also his responsibility to understand that any statements he makes before a large group of people have the potential to get out to the outside world.
While I appreciate where you're coming from in relation to a personal philosophy, Amlord, one thing that is not being considered in relation to Hamdan's POW status is that we are not at war. Our invasion of Afghanistan was just as illegal as our invasion of Iraq - and there was no declaration of war by Congress in either case. As Doclotus indicated, the fact that the Bush administration's "war" is being waged against a tactic rather than a nation or alliance further muddies the water. These may well be issues that arise during the course of this case.
Clearly, Scalia has already reached a conclusion in this regard: "War is war" - even when it's not a legal "war". He has further indicated a personal bias: "I had a son on that battlefield and they were shooting at my son". He has even reached and publicly announced a verdict before hearing a single argument: "I'm not about to give this man who was captured in a war a full jury trial."
Now, if that doesn't demonstrate a case where a judge's "impartiality might reasonably be questioned", what the hell does?
To me, this goes beyond having one's personal philosophy known. Were Justice Ginsberg on record as saying something like "I have a daughter who was raped and got pregnant as a result - and I'm not about to let some bit of legislation dictate that she cannot abort that pregnancy - it's crazy!", you'd have an apt comparison. So far as I know, Ginsberg's position is limited to personal philosophy. Scalia's is not.
Clearly, Scalia has already reached a conclusion in this regard: "War is war" - even when it's not a legal "war". He has further indicated a personal bias: "I had a son on that battlefield and they were shooting at my son". He has even reached and publicly announced a verdict before hearing a single argument: "I'm not about to give this man who was captured in a war a full jury trial."
Now, if that doesn't demonstrate a case where a judge's "impartiality might reasonably be questioned", what the hell does?
To me, this goes beyond having one's personal philosophy known. Were Justice Ginsberg on record as saying something like "I have a daughter who was raped and got pregnant as a result - and I'm not about to let some bit of legislation dictate that she cannot abort that pregnancy - it's crazy!", you'd have an apt comparison. So far as I know, Ginsberg's position is limited to personal philosophy. Scalia's is not.
1) Should Scalia recuse himself from the pending Hamdan vs. Rumsfeld? Why or Why not?
Based on federal ethics law he should recuse himself. There is an article in the Legal Times on his previous recusal and this law:
I'd say that based on the comments he made he is unable to view the case with an open mind and his impartiality here could certainly be reasonably questioned.
Based on federal ethics law he should recuse himself. There is an article in the Legal Times on his previous recusal and this law:
QUOTE
"Scalia's action is extraordinarily important," says Hofstra University School of Law professor Monroe Freedman, who organized a conference last month on judicial ethics that focused in part on off-the-bench speech by judges. The recusal was a rare acknowledgment by a justice that his public comments left him unable to "view the case with an open mind," Freedman says, adding that Scalia "tries to be principled" on matters of ethics. Freedman thinks advocates should be scouring other justices' speeches for signs of bias.
"It was probably the right thing for Justice Scalia to do," adds University of Pennsylvania Law School professor Geoffrey Hazard Jr. "And perhaps one might say that, more often, justices ought to do this when they've been emphatic in their prior pronouncements off the bench."
~snip~
Like all federal judges, the justices are subject to a federal ethics law -- 28 U.S.C. Section 455(a) -- that requires recusal when a judge's "impartiality might reasonably be questioned." But they make their recusal decisions without judicial review -- and usually don't bother to explain those decisions to the public.
"It was probably the right thing for Justice Scalia to do," adds University of Pennsylvania Law School professor Geoffrey Hazard Jr. "And perhaps one might say that, more often, justices ought to do this when they've been emphatic in their prior pronouncements off the bench."
~snip~
Like all federal judges, the justices are subject to a federal ethics law -- 28 U.S.C. Section 455(a) -- that requires recusal when a judge's "impartiality might reasonably be questioned." But they make their recusal decisions without judicial review -- and usually don't bother to explain those decisions to the public.
I'd say that based on the comments he made he is unable to view the case with an open mind and his impartiality here could certainly be reasonably questioned.
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