Lawyers for detainees at Guantánamo Bay will argue before the Supreme Court this week that their clients are entitled to more in the way of legal protections than military tribunals are likely to grant. When it comes to persuading Antonin Scalia, they might as well save their breath.
As Newsweek is reporting, Scalia made his views on detainee rights abundantly clear during a talk at the University of Fribourg in Switzerland earlier this month. "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," Scalia said. "Give me a break."
When an audience member pressed Scalia, asking him whether the detainees don't have rights under international conventions, the justice made it clear that his objection wasn't just legal but personal. "If [a detainee] was captured by my army on a battlefield, that is where he belongs," he said. "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's son Matthew served with the U.S. Army in Iraq.
The Center for Constitutional Right's Michael Ratner tells Newsweek that Scalia's comments ought to be ground for recusal in the case. Supreme Court justices get to make that call for themselves, however. Scalia has recused himself before -- he did it in Michael Newdow's Pledge of Allegiance case after making public comments beforehand -- but Newsweek says there's a reason he might be wary of doing so this time around: The court is already short-handed, John G. Roberts having recused himself from the case earlier because he heard it as an appellate judge.
Legal ethics expert Stephen Gillers tells Newsweek that Scalia's latest comments may be part of a problem -- quack, quack! -- that's bigger than the question of recusal. "As these things mount," Gillers says, "a legitimate question could be asked about whether he is compromising the credibility of the court."