During an unpublicized March 8 talk at the University of Freiburg in Switzerland, 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."
The problem is that the court is set to hear a case today that will be deciding this exact issue, causing a group of retired army generals to ask Scalia to recuse himself from the case.
In a letter delivered to the court late yesterday, a lawyer for the retired officers cited news reports of Scalia's March 8 remarks to an audience at the University of Freiburg in Switzerland. Scalia reportedly said it was "crazy" to suggest that combatants captured fighting the United States should receive a "full jury trial," and dismissed suggestions that the Geneva Conventions might apply to detainees at Guantanamo Bay, Cuba.
Scalia's remarks "give rise to the unfortunate appearance that, even before briefing was complete, he had already made up his mind" about issues in the case, the lawyer, David H. Remes, wrote. Noting that Scalia reportedly had discussed the rights of accused terrorists in the context of his son Matthew's recent tour as an Army officer in Iraq, Remes wrote that this creates an appearance of "personal bias arising from his son's military service."
The case to be heard today -- Hamdan v. Rumsfeld , No. 05-184 -- is one of the most important terrorism-related cases to reach the court. It is a challenge by Osama bin Laden's former chauffeur, now being held at Guantanamo Bay, to the legality of the military commission that seeks to try him for war crimes. Military trials for terrorist suspects are a centerpiece of the Bush administration's anti-terrorism policy, but they have been criticized by human rights activists, especially in Europe.
During the confirmation hearings of Alito and Roberts, the two judges refused to answer questions if the case could come before the court. I do not understand the double standard here. How can these people have a fair trial, when Scalia has already made up his mind and spoke on it? This is a very important case for human rights, so hopefully Scalia will do what is right and recuse himself. Everyone deserves to have an impartial panel judge them in court.