Scalia Remarks Draw Criticism Before Guantanamo Case

U.S. Supreme Court Justice Antonin Scalia may be asked to disqualify himself from a Supreme Court case. His remarks about the rights of Guantanamo detainees in a speech earlier this month have caused ethical complaints because he and the other justices are about to hear an appeal from Guantanamo prisoners.

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Supreme Court Justice Antonin Scalia has once again been asked to disqualify himself from an important Supreme Court case. This time the controversy is over remarks he made related to a major case the Supreme Court is scheduled to hear tomorrow. The case tests the President's power to unilaterally set up military tribunals to try prisoners at Guantanamo Bay for war crimes. NPR Legal Affairs Correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

Earlier this month at the University of Friborg in Switzerland, Scalia gave his boilerplate speech about constitutional interpretation. But when it came time for the question and answer period, the Justice faced queries on a different subject, the prisoners at Guantanamo.

A tape of the even became available over the weekend and it shows Scalia responding to some clearly hostile questions from his European audience about Guantanamo.

Supreme Court Justice ANTONIN SCALIA: I am, I am astounded at the world reaction to Guantanamo. We are in a war. We are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in a war. War is war and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It's a crazy idea to me.

TOTENBERG: The case to be heard tomorrow, however, does not involve claims that the prisoners are entitled to civil trials. The prisoners are claiming they're entitled at minimum to trials under the uniform code of military justice, rather than the trials set up by the president under procedures the president establishes with judges and juries he appoints. Justice Scalia didn't address those questions.

Justice SCALIA: I am astounded at the, the, I would say hypocritical reaction in Europe, as though the Europeans always gave trials to people that they captured on the battlefield. I mean give me a break.

TOTENBERG: And Scalia added a personal note with a reference to one of his sons who served in Iraq.

Justice SCALIA: If I had a son on that battlefield, and they were shooting at my son, and I'm not about to give this, this man who was captured in a war a full jury trial.

TOTENBERG: Scalia did, however, concede that this war is different from others and presents a particular problem.

Justice SCALIA: Guantanamo is sad. Guantanamo is a problem for only one reason. Not because people captured in a war are being held without trial. That happens all the time. The problem with Guantanamo, and I don't know how to solve this problem, is that there may be no end to this war. Who makes peace in this war? That's the problem. How, how long are you going to keep these people in Guantanamo? That's the problem that I worry about and that is a serious moral problem if you like.

TOTENBERG: Because Scalia's comments were not foursquare about the case to be heard tomorrow involving a prisoner named Hamdan, ethics experts said the question of recusal is not clear cut. But most agreed with agreed with Boston University Legal Ethics Professor Nancy Moore that the remarks are problematic.

Professor NANCY MOORE (Professor of Ethics, Boston University): They're not commenting specifically on the Hamdan case. Nevertheless, based on the transcript that I've seen, he basically takes the position that anyone who would question the detention of these individuals at Guantanamo, and would suggest that they have some right to question their detention, is crazy. And it seems to me that reasonable people could draw the inference, and as I think would draw the inference, that he has, has a closed mind on the issues that are likely to be raised in the Hamdan proceeding.

TOTENBERG: Late today, five retired generals and admirals who had filed briefs supporting the Guantanamo Prisoners sent the court a letter urging Scalia to recuse himself. The Justice's remarks said the five give rise to unfortunate appearance that, at minimum, Scalia's impartiality might reasonably be questioned. The court is already one justice short in the Hamdan case, Chief Justice John Roberts has recused himself because he participated in the case in the lower court before his nomination to the Supreme Court.

Nina Totenberg, NPR News, Washington.

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