This week, the Supreme Court will hear arguments on whether the special military commissions created by the Bush administration to try Guantanamo detainees violate national and international law, as human rights groups charge. But Justice Antonin Scalia doesn’t have to wait for arguments — his mind is already made up. Newsweek reports that in a controversial unpublicized March 8 speech, Scalia “dismissed the idea that the detainees have rights under the U.S. Constitution or international conventions.”
“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.
Scalia needs to follow the law and recuse himself from the case, as he did two years ago in a case involving the Pledge of Allegiance. According to Newsweek, some experts doubt whether recusal is warranted since Scalia “didn’t refer directly to this week’s case.” But the statute governing inappropriate judicial speech — Title 28, Section 455 of the U.S. Code — does not require such a reference. It 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.
The ball is now in Scalia’s court — he alone decides whether he will rule on the case. A Court spokesperson said he had “no comment.”