March 26, 2006

Newsweek Argues for Scalia Recusal

Michael Isikoff at Newsweek questions whether or not Supreme Court Justice Scalia should recuse himself from hearing cases pertaining to the Guantanamo detainees because of some off the cuff remarks at a speech in Switzerland. Its an interesting query. Their is precedent for it. He recused himself from a Pledge of Allegience case two years ago for comments made prior to the case's final ruling. Sitting Justices are not supposed to comment on cases before them The question is whether the comments were specific enough to reference Hamdan v. Rumsfeld, and the specific issues the case represents. You be the Judge:

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.
No queries, however, on America's sleepiest Justice.

During recent oral arguments over political redistricting in Texas, Supreme Court Justice Ginsburg, according to The Associated Press, took a nap. "The subject matter was extremely technical," AP reported, "and near the end the argument Justice Ruth Bader Ginsburg dozed in her chair." By Bloomberg News' reckoning, the snooze lasted a quarter of an hour.


Anonymous Anonymous said...

Scalia is either not so bright (which I don't think is the case) or disingenuous (which I think is obviously true). Comparing detention without trial for "enemy combatants" to prisoners of war captured on a conventional battlefield obscures huge problems with his logic. First, a "war on terror" is a war without end. Prisoners of war have always had the right to expect that at the end of the conflict they will be allowed to return home to their farms, factory job, family, life. If the war will never have a clear end, are we to condone locking people up forever without any hope of release or trial? Second, Scalia ignores an even larger problem, the problem of identifying an "enemy combatant" in the first place. The essence of a guerilla war is that distinguishing a "combatant" from a civilian is very difficult, which is the whole reason why an outgunned resistance chooses to fight a guerilla war in the first place. Without offering any kind of procedure for a neutral evaluation of the evidence against detainees, the one thing we can be certain of is that at least some if not most of the people at Guantanamo don't belong there. That's not acceptable, and Scalia does not seem to care.

Tue Mar 28, 02:40:00 PM  

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