Antonin Scalia recently questioned the rights of detainees in Guantanamo Bay under the Geneva convention:
“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.”
Coincidentally, the Supreme Court is set to hear the case of Salim Ahmed Hamdan tomorrow. Hamdan, allegedly a former employee of Osama Bin Laden, is challenging the Bush administration’s right to hold military tribunal, questioning whether it violates national and international law by not granting prisoner-of-war protections. Hamdan claims that he did not receive a fair process, an argument that will apparently fall on Scalia’s deaf ears. Despite the fact Scalia’s assertions were not related specifically to this week’s case, U.S. code states , “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” More specifically, a judge should withdraw him/herself where if there is “a personal bias or prejudice.”
And for a little more background on Scalia’s approach to this issue, here is his dissent from Rasul v. Bush in 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.”
It’s entirely possible that Scalia will recuse himself from Hamdan, much like he did in a case on the Pledge of Allegiance in 2004, after he expressed an opinion on the case beforehand.
