AP report on Scalia's controversial Gitmo comments ignored issue of recusal
SUMMARY: In an article on a recent speech by Supreme Court Justice Antonin Scalia, in which he said that Guantánamo detainees are not entitled to legal protection under the U.S. Constitution or international conventions, the AP left out the serious questions about whether he should recuse himself from an upcoming case involving the rights of Guantánamo Bay detainees.
In a March 26 article on a recent speech by Supreme Court Justice Antonin Scalia, in which he said that detainees held at the Pentagon's prison facility at Guantánamo Bay, Cuba, are not entitled to legal protection under the U.S. Constitution or international conventions, the Associated Press left out any mention of the significance of Scalia's comments -- that the Supreme Court is scheduled on March 28 to hear the case of Hamdan v. Rumsfeld, which concerns precisely the issue on which Scalia was indicating his views. Scalia's statements raise serious questions about whether he should recuse himself, an issue wholly ignored in the AP story.
During an unpublicized March 8 lecture at the University of Freiburg in Switzerland, Scalia told the audience that the legal rights of the detainees held at Guantánamo are not protected by the U.S. Constitution nor the Geneva Conventions. Newsweek broke the story in a brief article in its April 3 issue:
"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 [Scalia] 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.
The article, written by Newsweek investigative correspondent Michael Isikoff, went on to broach the question of whether Scalia's comments obligate him to sit out as the court rules on Hamdan. Federal law requires a justice to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." From the April 3 Newsweek article:
"This is clearly grounds for recusal," said Michael Ratner of the Center for Constitutional Rights, a human-rights group that has filed a brief in behalf of the Gitmo detainees. "I can't recall an instance where I've heard a judge speak so openly about a case that's in front of him -- without hearing the arguments." Other experts said it was a closer call. Scalia didn't refer directly to this week's case, Hamdan v. Rumsfeld, though issues at stake hinge in part on whether the detainees deserve legal protections that make the military tribunals unfair. "As these things mount, a legitimate question could be asked about whether he is compromising the credibility of the court," said Stephen Gillers, a legal-ethics expert.
Gillers appeared to be referring a number of incidents in which critics raised questions about Scalia's conduct. As Isikoff noted, Scalia recused himself from a 2004 case concerning the Pledge of Allegiance after commenting publicly on the issue. In 2004, Scalia joined Vice President Dick Cheney on a hunting trip to Louisiana. At the time, the Supreme Court was considering the legality of the Bush administration's refusal to turn over documents relating to the private meetings of Cheney's energy task force. Scalia rejected subsequent calls for him to recuse himself from the case. Similarly, while deciding a 2004 case concerning gay rights, Scalia spoke at a dinner hosted by the Urban Family Council, an advocacy group opposed to gay rights. Scalia has also been criticized for his participation in judicial junkets. For example, he was found "on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo.," during the swearing-in of Chief Justice John G. Roberts Jr. on January 23. Most recently, Scalia raised eyebrows on March 26 when he made an obscene gesture outside of a Boston cathedral in response to a reporter's question about his impartiality on matters pertaining to the separation of church and state.
Following the online publication of the Newsweek piece, AP released an un-bylined March 26 article on Scalia's controversial remarks. But while the AP noted that the court is scheduled to hear Hamdan in the coming days, it ignored the question of whether Scalia is obligated to recuse himself. Numerous newspapers reprinted the article in their March 27 editions, including The Washington Post, the Los Angeles Times, and The Kansas City Star, also without mentioning the recusal issue.
By contrast, a March 26 Reuters article noted that Ratner and Father Robert Drinan, a professor of judicial ethics at the Georgetown University Law Center, argued that Scalia is now obligated to recuse himself from Hamdan:
Ethics experts said the impression that Scalia had already made up his mind before the hearing should mean that he will voluntarily drop out of the proceedings. However, Newsweek said he did not refer specifically to this week's case.
"He should remove himself when there is a reasonable doubt of his impartiality," said Father Robert Drinan, a professor of law at Georgetown University and long-standing human rights campaigner, who teaches judicial ethics.
"It should logically be a reason for his recusal but I don't think he'll do it ... he's so stubborn" said Drinan.
[...]
"A judge has to have an open mind; when he hears the articles and reacts to briefs. If he's made up his mind on a particular issue, he shouldn't be sitting (in)," said Michael Ratner, president of the Center for Constitutional Rights.
"Here he has publicly said that this is what my position is, before the arguments ... It's really stacking the deck," Ratner said. CCR has argued for Guantanamo prisoner rights.
A March 26 United Press International article and a March 27 New York Sun article similarly noted that Scalia's comments raise the issue of recusal.
"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." Imagine his son captured on the battlefield in Irak during the invasion, sent by Saddam in a detention camp or executed with the really same argument : what would the neo-cons reactions be ??? The Geneva convention have been created to as much as possible avoid this doble standard treatment of the prisoners of war. By the way, one of the neo-cons arguments to deny a trial to the Gitmo detaines is that they have not been captured in a conventional battlefield, and so they are not soldiers, even if the Geneva convention specifically adresses civilian prisonners (criminal, insurgents, etc). I think this "judge" made his mind without even glancing at the facts.
The war on terror is not confined to one country, and the terrorists are not soldiers, so anyone captured as terrorists are not prisoners of war and could be detained indefinitly without ever being indicted. Actually: these people should be tried by the UN tribunal, especially because they planned to destroy several countries, not just the US. Further, there seems to be very little evidence against many of these people. Its really Kafka: they are detained, so they must have done something otherwise they would not have been detained, and Scalia works very well in that respect.
Mr. Scalia apparently believes that "I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy." He also apparently believes that international conventions don't apply to those who are accused of being belligerents or prisoners/detainees of war.
I thought that was why we had the trial? The executive accuses and then an impartial forum evaluates the evidence and renders a decision. Appeals are to insure the fairness of the process and correct errors that occured during the trial. I guess a person isn't entitled to claim innocence, mistake or explanation which legally excuses their conduct. The comments are deplorable from someone who is supposed to uphold the rights of the individual from government excesses, assure the independence of the judiciary and protect the integrity of the process.
I have no problem with Scalia stating his views on Constitutional matters, which this clearly IS: whether an "enemy combattant" is to be afforded any kind of due process.
I believe he is WRONG, Constitutionally AND morally, to have the view he does, but that does not mean he should recuse himself on this basis.
Without SOME sort of judicial review, the establishing of anyone's STATUS is against all of our principles of justice. We will just be taking someone's WORD, for example, that this person was actually seized on a battlefield. Without due process, we cannot know if this is true or not. And without establishing this status, how can even Scalia know to deny this person any rights at all?
This issue is whether Scalia can and should telegraph his legal position. He certainly SHOULD, as should all justices in their confirming hearings and beyond. In their writings and rulings, they "give away" their positions, so why not in speeches as well?
Supreme Court justices should feel FREE to express their reasoning on such constitutional questions, as long as they don't pre-decide a particular case. We WANT them to tell us what their stance is, hopefully before they are confirmed.
As to RECUSAL, there are reasons for recusal apart from expressing views on constitutional issues. Scalia, for example, is a Bush partisan. When plaintiff BUSH came before the court in 2000, was Scalia impartial to the outcome? He was not. At the very least, his sons hoped to work in the Bush Administration (and in fact were appointed following poppa's "decision"). In addition, Bush had stated his desire to appoint more justices LIKE Scalia. Flattering, perhaps, but also a case for eliminating impartiality; Scalia was predisposed to ruling in favor of Bush. This was a prime instance where a justice should have recused himself for personal bias reasons, and failure to do so should be an impeachable (and removal) offense.
Scalia should have long since been removed from office. He may be "brilliant", but he is also corrupt, and often simply WRONG, and his claims to be supporting the Constitution have little support from his record. He supports a "unitary executive", and therefore rejects the Constitution's carefully laid out checks and balances. Only with one-party/monarchy rule, can such a partisan escape being answerable to the people.
As Justice Ginsburg stated, "A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process." While one may argue that Justice Ginsburg was referring only to the confirmation process, my understanding is that this principle is applied after confirmation as well.
While Justice Scalia's comments do not actually go to the point of the case coming before the Supreme Court today, I believe he did cross the line of impartiality. First, he implies that all Gitmo detainees are legitimate prisoners of war. That assertion now seems dubious based on reports that Afghan warlords may have fingered individuals to remove rivals. Second, his reference to his son demonstrates an emotional issue which is influencing his thinking on the issue, instead of restricting his thinking to the legal issues. Therefore, I don't see how he can be impartial in the specific case before the court.
Why? Just because you disagree with his views? I'm sure nine socialists on the bench would suit you fine.
Tex posted: "When plaintiff BUSH came before the court in 2000, was Scalia impartial to the outcome? He was not."
I wonder if Breyer and "Sleepy" Ginsberg were "impartial"? I doubt it. Would someone please wake up Ruth. She's snoring to loudly.
First, I explained why Scalia should be impeached and charged with NOT being impartial. Failure to recuse when bias is evident BEFORE a case is heard is grounds for removal. Impeachment would present all the FACTS, and removal (or not) would be based on that evidence.
In addition to Scalia OBVIOUSLY having decided Bush v Gore before hearing the case, Clarence Thomas' WIFE was vetting Bush Administration staffers, and had a vested interest in Bush winning. Also, Justice O'Conner showed her bias at an election night party, when the announcement of GORE winning in Florida elicited a horror-stricken exclamation from Sandra (obviously, she did NOT want Gore to win). Again, this evidence should be presented at the Impeachment (as a censure for O'Conner, since she no longer sits on the bench).
As to the other Justices, bring on the evidence for their bias, but also note which Justices VOTED TO HEAR THIS CASE IN THE FIRST PLACE. The 200 year tradition and precedent of the Supreme Court was that they REFUSED TO HEAR cases that were "purely political", as Bush v Gore WAS. Hearing the case at ALL was the mistake ... it should have been left up to the STATE, and perhaps the Congress.
So, your post is nonsensical. I have presented the FACTS of the bias which brought the Republican members of the Supreme Court in violation of their oath to be impartial. It should be subjected to Impeachment charges ... there is no statute of limitations on these violations.
If you think the "liberal" justices can be similarly charged, make the case.
Got something besides a trollpost? If you can't see the scandal in the Supreme Court ruling (where two justices should have recused themselves), then you're a typical democracy hating conservative/facist. Not meant as an insult, just an accurate description.
Wow that is a tough one. Let me think.
"I got nothing, hey Daniel Webster can you help me out here."
1 : to form an opinion about through careful weighing of evidence and testing of premises 2 : to sit in judgment on : TRY 3 : to determine or pronounce after inquiry and deliberation
Thanks D. Well, let's see the case isn't before the court yet. So the is technically no evidence. And you can't sit in judgement as the case is again not in the court. Man "...after inquiry and deliberation..." is pretty specific also in its timeline. I say by weighing in on this issue in the manner he has Scalia has pretty well define himself as being unfit to judge this case. Of course that has never stopped a judge from deciding a case before, just ask Justice Samuel Alito.
The Sicilian gesture of flicking the chin with the back of the fingers is not obscene, but rather it means "I don't care" according to this site :[link to www.loyola.edu] GesturesIt is hardly a respectful gesture, but it stops short of obscene.
Visit the Schapira Blog, What we know so far ...
“… and tell ’em Big Mitch sent ya!”
"Justice Scalia's principal justification for issuing a stay on the Florida recount resumption, permitted by the Florida Supreme Court, was that the recount would "threaten irreparable harm to petitioner (Bush) ... by casting a cloud upon what he claims to be the legitimacy of his election." SCALIA ASSUMES HERE THAT BUSH HAS WON [and this "stay" was issued on the Saturday BEFORE the case was to be heard on the following Monday], but it is also clear that he feared that if the recount continued, the election could go to Gore. Taking issue with this hollow opinion, judicial conservative Terrance Sandlow stated, "The balance of harms so unmistakably were on the side of Gore," and further, the stay was "an unmistakable partisan decision without any foundation in law."
[link to www.commondreams.org]
Of course Bush has a "presumption to have won". But for a Supreme Court justice to adopt that presumption as TRUTH, absent hearing all evidence on the case, is to show BIAS of the precise nature that requires recusal. Scalia damned himself. All that's needed is an impeachment charge ... Scalia has already plead GUILTY.
Now I'm not so sure he's that intelligent. NPR ran an item yesterday discussing the possibility of recusal. In that item, they also played an excerpt of Scalia indicating that in a war without a conclusion (the war on terror), he was troubled by the moral dilemma of indefinite detentions.
At first my reaction was that maybe Scalia does have some compassion. That soon gave way to the realization of how much of an idiot he is for accepting the notion that fighting terrorism is a war in the classic sense. Does he not recognize the threat an indefinite war poses to our Consitution and to freedom in general?