The SCOTUS is about to hear the case of Hamdan v. Rumsfeld, in which Osama bin Laden’s former chaffeur, now detained at Guantanamo Bay, is challenging the legality of the military commission that seeks to try him for war crimes. A group of retired U.S. generals and admirals is asking Justice Scalia to recuse himself from that case, because recent public comments suggest he has already made up his mind before briefs have even been submitted. http://seattletimes.nwsource.com/html/nationworld/2002894066_scalia28.html:
(Actually, Hamdan is not seeking a “full jury trial,” but a court martial, like what U.S. soldiers get. As opposed to the “military tribunal” that is set to try him.)
Is this the kind of situation where a judge should recuse himself from the case?
I don’t know. This just seems like such a no-brainer that I can’t see any conclusion other than the one Scalia has voiced. On what basis could the guy possibly claim the same rights as a US soldier? It amazes me that the SCOTUS is even hearing this case. But I’m open to being educated on the subject by some of our resident legal experts.
Whatever the decision, I think Scalia should exercise more judgement when speaking in public. Perhaps he can consider it to be an act of “judicial restraint”.
Can you point to any item of jurisprudential ethics that indicate that merely commenting publicly upon a general legal principle is grounds for recusal?
Especially if that principle has been the focus of two published opinions from the same justice.
Canon 3A(6) of the Code of Conduct for United States Judges:
“A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge’s direction and control. This proscription does not extend to public statements made in the course of the judge’s official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.”
I’m assuming that’s the one that is the biggest concern.
This proscription does not extend to public statements made in the course of the judge’s official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.”
Please note that Scalia was speaking at a university. And he has written on this subject before, in two published opinions. I don’t believe his remarks in Switzerland went beyond what he has already written.
And nobody dare suggests a justice recuse himself on the basis of his prior written opinions.
Well, the fact that Scalia has a voting record (not caring which way it goes in this example) should be grounds for recusal if you favor having him recuse himself in this circumstance, no? I’d like to think that if something came up that changed his mind, Scalia (or any other justice) would be open to the new facts.
It might be an ingredient in the cake of recusal, to give out your opinion on such things when it’s so close to the time in which you have to make a decision on a similar thing. I don’t necessarily want to see any judge have to recuse themselves. That means that the judges are recognizing they have impartiality. (this is assuming that judges, by nature, are impartial. whether they are or not is another topic)
I dunno, but shouldn’t everyone be represented by counsel, have a right to call witnesses in their defense, etc. I don’t know “the guy” but until there is some sort of hearing before a disinterested arbitor all that there is against him is an accusation by a biased accuser.
Just curious, has he ever recused himself on the SC? If he doesn’t see a problem with making a hunting trip with Deadeye Dick Cheney while a case involving him was before the court, then it’s hard to see what he would see as grounds for recusal.
He hasn’t actually written opinions on exactly this subject before, to my knowledge. Rasul v. Bush and Fahad al Odah v. United States dealt with whether U.S. courts had jurisdiction over Guantanamo detainees petitions for writs of habeas corpus under existing federal law. The Hamden case is about whether the President has the authority, either inherent, constitutional, or authorized by Congress, to create a military commission to try enemy combatants with standards that would not satisfy due process requirements in U.S. Courts or courts-martial under the Uniform Code of Military Justice.
Scalia’s comment that enemy combatants aren’t entitiled to a full jury trial could have been a scholarly discussion of the 64 year old case of Ex Parte Quirin, but it’s much more likely to have been a comment on the case that was being argued before him in a couple of weeks. His characterization of the petitioner’s argument as “crazy,” if true, takes it out of the realm of scholarly discourse. It’s doubtful that he’d recuse himself, but his remarks sure don’t pass the smell test.
It’s more like he’s claiming the rights of a prisoner of war. The military tribunal issue hasn’t been visited since World War II, and given the controversial nature of the current Executive Order (which came two months after 9/11), it was really only a matter of time until the issue came before the current Court. The order makes the military commission the sole trier of both fact and law, allows both conviction and sentencing on the vote of 2/3 of those comission members present, and carries penalties of up to life imprisonment or death. Regardless of whether you’re for or against the issue, that’s pretty intense. It’s one of the big legal commotions of our time, and the Court can’t duck it forever.
Bt God I think you hit it. Scalia must have been talking in general about long past events. He certainly wouldn’t comment, even tangentially, on situations that would be quite likely to come before the Supreme Court. That clearly would be improper even in an academic setting and he would never do that. :rolleyes:
I agree as far as the “Full Jury trial” bit goes. In the USA the Defense team gets full personal information on each Jury member, including information on their home address, kids and so forth. That’s just too much to give potential terrorists and too much of a risk to ask for someone getting $13 a day. Sorry.
There doesn’t seem to be a lot of difference between the “Military Tribunal” and a “Court Martial” (other than if tried in a “Court Martial” we’d be admitting he’s a POW, and thus a member of an organized open uniformed army, which is doesn’t appear he is). He is getting counsel, the right to call witnesses in his defence, cross examination and so forth. And, from WWII, where the Nazi sabotuers were tried with just this sort of Military tribunal, there seems to be case law.
Bear in mind where the criticism is coming from: A group of retired U.S. generals and admirals. They are doing this, of course, because they hate America, but the stated reason is that they want Geneva Conventions protections available for the Gitmo detainees, to make sure U.S. troops will not be denied the same protections if they should fall into enemy hands. Underground terrorist cells care nothing for such things, of course, but it could be a real concern if we ever go to war with an enemy that might be strong enough to capture some of our troops, and charge them with war crimes, while its own government is for the moment intact. E.g., if we have a protracted conflict with Iran, that situation would more than likely come up at some point.
The above, however, is not a legal but a policy argument. Legally – well, I guess Mr. Hamdan’s lawyers will make every conceivably relevant argument that trial by a “military tribunal” is improper in this case.
Please excuse this slight hijack, but I find it ironic that a justice who complains about the use of foreign law in SCOTUS opinions himself spends his free time giving lectures in foreign countries about our laws. (And when I say “giving” I mean speaking in exchange for a presumably large fee. )
There might be some minimum level of standards that a tribunal has to have, but I was going by the OP’s characterization that he wanted the same type of court martial as a US soldier would get. If the OP got that wrong, then maybe there’s more to it.
I don’t particularly like the tribunals that are being set up for the Gitmo detainees, but it’s unlcear that the constitution requires more. The lower court said “no”, and I’m just surprised the Supremes didn’t let that decision stand.
I was making a legal point, not a policy one, so I don’t see that your comments are relavent wrt to my post. There are lots of good reasons to give these guys more than they might deserve, but there isn’t any legal reason to do so.
Baloney. Every juror sitting on a street gang member’s trial faces the same risk.
I want any errors made to be made in favor of the accused. The system I think is best is one that makes it difficult for the sovereign to throw anyone at all into confinement and keep them there without an independent hearing as to the legitimacy of the confinement. The military is an arm of the executive and it’s members ultimately report to the executive as Commander-in-Chief. And the executive is also the accuser. That is far from a hearing before a disinterested party.
I have said before and will say again. This is a ratcheting process. Every step that infringes on anyone’s rights sooner or later will infringe on yours and mine, or those of our descendants. Over the years in response to various emergencies, actual or perceived, we have moved the ratchet quite a way toward more and more latitude for the sovereign and less for the individual vs. the sovereign.
I agree that the 9/11 attacks were terrible. But they did not in any way threaten the national existence. Over time, continued expansion of the power of the sovereign and erosion of the individual’s protection against the sovereign will do just that.
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