# Scalia dismisses idea Gitmo detainees have right to trial. Grounds for recusal? **URL:** \ **Category:** Great Debates\ **Created:** [March 28, 2006, 5:59pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271 "2006-03-28T17:59:53Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [March 29, 2006, 3:33am UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/41 "2006-03-29T03:33:36Z")
> [@David Simmons](#): > > There is no doubt, on thinking it over further, that Congress has the power to pass all laws necessary and proper to carry out the Constitutional mandate for Congress to see to the general welfare, common defense, and so on. So it’s going to take some heavy lifting. I guess maybe the only attack would be that laws giving the president such power aren’t “proper” given the guarantees in the amendments. And I suspect no attorney would go to the Supreme Court with that. Damn! By Damn! I mean that it appears to me that right in the Constitution are the makings of a dictatorship if people are scared badly enough. Goering’s quote about being able to get the people to buy anything if they are scared enough seems to be true. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 29, 2006, 3:51am UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/42 "2006-03-29T03:51:03Z")
> [@David Simmons](#): > > By Damn! I mean that it appears to me that right in the Constitution are the makings of a dictatorship if people are scared badly enough. Goering’s quote about being able to get the people to buy anything if they are scared enough seems to be true. I don’t know about that. If we were talking about US citizens, it would be completely different. In fact it is completely different-- see how things went for Hamdi and Padilla. Bush is only a dictator outside the US. ---
**Author:** ![Diceman](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Diceman](https://boards.straightdope.com/u/Diceman)\ **Post date:** [March 29, 2006, 4:52am UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/43 "2006-03-29T04:52:19Z")
I don’t like this military tribunal business one little bit, but I’m forced to agree with Scalia. The detainees are not members of a legitimate military force, and hence cannot be considered POWs. “Unlawful combatant” is as good a description as you’re likely to get. I’d also like to point out that the Gitmo tribunal isn’t any more biased than the Nuremberg Tribunal was. If the Nuremberg Tribunal has been accepted as legitimate for the past 60 years, then on what basis can the current tribunal be declared invalid? Again, I don’t like what 's going on down there. But this is one of those cases where legality and morality diverge. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 29, 2006, 5:36am UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/44 "2006-03-29T05:36:44Z")
Offhand, I’d say a judge is only required to recuse himself from a case because he has direct involvment with it. The fact that he has expressed opinions on it should not require him to recuse himself. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [March 29, 2006, 6:34am UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/45 "2006-03-29T06:34:08Z")
> [@John Mace](#): > > I don’t know about that. If we were talking about US citizens, it would be completely different. In fact it is completely different-- see how things went for Hamdi and Padilla. > > Bush is only a dictator outside the US. You mean right now. However, with a frightened populace what are the chances of overturning any of the precedents that are believed to increase public safety? I believe there is too little appreciation for the cumlative effect of such precedents. Isn’t there already in place from the Civil War a precedent for suspension of _habeas corpus_ for US citizens in time of war? So couldn’t a US citizen be imprisoned and using the precedent couldn’t the President deny a court order to produce the prisoner if things got really dicey? I don’t mean tomorrow, but if the habit of increasing the sovereign power contiues I can see it as a distinct possibility in the future. I don’t take a lot of comfort from the fact that right now a dictatorship is highly unlikely. A Jewish of friend of mine was born in Freiburg, Germany. She remembers her relatives discussing the persecution of the Jews when she was a child. Her father insisted that he was going to get his family out, which he finally did. But most of the relatives were saying that their family had been Germans for 500 years and it wouldn’t happen to them. She doesn’t know where most of them are now. I really believe that we need to preserve as much freedom as possible for future generations. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [March 29, 2006, 7:12am UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/46 "2006-03-29T07:12:35Z")
**David Simmons** , this is only slightly a hijack. How would you describe the scope of the _powers_ of this Chief Executive compared to other administrations you have lived through? ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [March 29, 2006, 7:33am UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/47 "2006-03-29T07:33:51Z")
> [@Zoe](#): > > **David Simmons** , this is only slightly a hijack. > > How would you describe the scope of the _powers_ of this Chief Executive compared to other administrations you have lived through? Well, FDR did have Japanese sent to internment by executive order. The entire economy was pretty much under executive department control with wage and price controls and government allocation of vital resources. WWII was, of course, a war in which the entire nation participated. It was entirely different from the Iraq case where professional volunteers do the fighting and everyone else enjoys a tax cut. However, it’s true that the executive had considerable power during the war. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [March 29, 2006, 7:40am UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/48 "2006-03-29T07:40:18Z")
> [@David Simmons](#): > > Well, FDR did have Japanese sent to internment by executive order. The entire economy was pretty much under executive department control with wage and price controls and government allocation of vital resources. > > WWII was, of course, a war in which the entire nation participated. It was entirely different from the Iraq case where professional volunteers do the fighting and everyone else enjoys a tax cut. However, it’s true that the executive had considerable power during the war. I must add though that at no time did FDR ever sign a law and also issue a statement that it didn’t apply to the Presidency in wartime. My contention is not that GW is trying to be a dictator. However, sooner or later a Huey Long with a lot more malice will come along. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 29, 2006, 12:23pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/49 "2006-03-29T12:23:10Z")
Okay, bunch of comments. First, only one person on this planet has the power to require Justice Scalia to recuse himself – and that person is Justice Scalia himself. Of course, everybody from anonymous message board posters to the other eight justices have the right to put pressure on him to do so – but under our system, only he is the proper judge of his putative need to recuse himself. Even C.J. Roberts is not entitled to require it of him. Second, I for one am grateful that the discussion here has not degenerated into Bush-bashing or Bush-defense. I especially approve of the comment that it sets a bad precedent. IMO, _anybody_ taken into custody by agents of the U.S. pursuant to law is entitled to some form of fair trial, even, and perhaps especially, if the evidence against them is overwhelming. It may not be constitutionally mandated to give an enemy alien intending to make _de facto_ war upon us one, but it’s part and parcel of our tradition to ‘do it right’ and prove guilt before a judge before executing a sentence. The typical Western posse with the cliché that “he’s entitled to a fair trial and a first-class hangin’” speaks to that. Nobody doubts that the cattle rustler/train robber/bad guy of whatever sort is in fact guilty, but as a people we go through the form of establishing that guilt and permitting him to advance a defence if he so chooses. **David Simmons** , a Doper-at-law will have to speak to the gist of _Ex parte Valladingham_ (which by memory is the name of the relevant case), but it’s my understanding that the decision said, in essence, (a) President Lincoln had no right to suspend _habeas corpus_, (b) Congress was the appropriate party to do so, and they approved Lincoln’s doing so retroactively, and © that being the situation, the case was effectively moot. The case is not on all fours with the present circumstance, though, since this involves enemy aliens, while the other involved an American citizen charged with being a Confederate sympathizer who acted contrary to law. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 29, 2006, 12:33pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/50 "2006-03-29T12:33:39Z")
> [@Polycarp](#): > > **David Simmons** , a Doper-at-law will have to speak to the gist of _Ex parte Valladingham_ (which by memory is the name of the relevant case), but it’s my understanding that the decision said, in essence, (a) President Lincoln had no right to suspend _habeas corpus_, (b) Congress was the appropriate party to do so, and they approved Lincoln’s doing so retroactively, and (c) that being the situation, the case was effectively moot. The case is not on all fours with the present circumstance, though, since this involves enemy aliens, while the other involved an American citizen charged with being a Confederate sympathizer who acted contrary to law. I think you men _Ex Parte Milligan_. And one of the multitude of issues before the court in _Hamdan_ may be the authority of Congress to regulate habeas. In December, our fine members of Congress removed statutory habeas relief to the prisoners in Guantanemo (oddly enough as part of the torture resolutions) and tried to apply it retroactively. One issue is whether they can make that make that stick against cases that were already filed, such as Hamdan. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 29, 2006, 1:42pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/51 "2006-03-29T13:42:49Z")
> [@Little Nemo](#): > > Offhand, I’d say a judge is only required to recuse himself from a case because he has direct involvment with it. The fact that he has expressed opinions on it should not require him to recuse himself. But, a judge is supposed to go into a case with an open mind. Everyone knows the general drift of Scalia’s thinking (and of every other justice’s but the two newest); it’s all right that they have legal and political opinions, in general terms. But to express definite opinions about specific questions of law that will be at issue in a pending case is another matter, isn’t it? ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [March 29, 2006, 2:16pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/52 "2006-03-29T14:16:09Z")
> [@Polycarp](#): > > **David Simmons** , a Doper-at-law will have to speak to the gist of _Ex parte Valladingham_ (which by memory is the name of the relevant case), but it’s my understanding that the decision said, in essence, (a) President Lincoln had no right to suspend _habeas corpus_, (b) Congress was the appropriate party to do so, and they approved Lincoln’s doing so retroactively, and (c) that being the situation, the case was effectively moot. The case is not on all fours with the present circumstance, though, since this involves enemy aliens, while the other involved an American citizen charged with being a Confederate sympathizer who acted contrary to law. That was my point. There is now an approved precedent for denying _habeas corpus_ to a US citized during wartime. Building on that our future malicious Huey Long might also begin to cut into those other frivolous impediments to the executive’s desires, such as the right to counsel, public trial, etc. After all, we’re trying to save the nation here and one person shouldn’t be able to hinder that. ---
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [March 29, 2006, 2:43pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/53 "2006-03-29T14:43:48Z")
> [@Bricker](#): > > I’d say your irony meter is severely miscalibrated. The complaint Justice Scalia has is in the courts relying on foreign law for precedential or persuasive effect. It’s a far cry from simply studying foreign law to determine which provisions thereof might be wisely imitated and applied by the appropriate law-making authority. > > In short: Scalia doesn’t suggest we can learn nothing from foreign law. He suggests that the courts are not the places to implement such knowledge. In that assertion the Honorable Justice Scalia is simply wrong. Our courts have a long and distinguished history of citing and relying on foreign law (for instance, read some of the old contract law cases relying on English common law if you don’t believe me) but this isn’t the thread to debate that. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 29, 2006, 2:50pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/54 "2006-03-29T14:50:28Z")
> [@zamboniracer](#): > > In that assertion the Honorable Justice Scalia is simply wrong. Our courts have a long and distinguished history of citing and relying on foreign law (for instance, read some of the old contract law cases relying on English common law if you don’t believe me) but this isn’t the thread to debate that. That’s different. Our legal system is **based** on the English CL system. Can’t find a cite, but I think there was an early Act of Congress adopting the English common law _in toto_ to the extent compatible with the U.S. Constitution and statutes enacted thereunder. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [March 29, 2006, 3:17pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/55 "2006-03-29T15:17:46Z")
> [@BrainGlutton](#): > > That’s different. Our legal system is **based** on the English CL system. Can’t find a cite, but I think there was an early Act of Congress adopting the English common law _in toto_ to the extent compatible with the U.S. Constitution and statutes enacted thereunder. So what exactly is wrong with adopting _any_ legal principle from any source whatever “to the extent compatible with the U.S. Constitution and statutes enacted thereunder?” ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [March 29, 2006, 3:33pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/56 "2006-03-29T15:33:24Z")
> [@David Simmons](#): > > So what exactly is wrong with adopting _any_ legal principle from any source whatever “to the extent compatible with the U.S. Constitution and statutes enacted thereunder?” There would be nothing wrong with it, of course. But it isn’t the role of the courts to find law on their own. If there is a law passed by a foreign country that ought to be passed here, it is properly the role of the legislature to go and do it. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 29, 2006, 3:49pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/57 "2006-03-29T15:49:38Z")
> [@Mr. Moto](#): > > There would be nothing wrong with it, of course. But it isn’t the role of the courts to find law on their own. If there is a law passed by a foreign country that ought to be passed here, it is properly the role of the legislature to go and do it. That is close to the most absurd statement I’ve ever seen you make. Go find out the difference between “law” and “a law” – in fact, ask **Bricker** , so you won’t think I’m playing liberal-interpretation games. It is **exactly** the job of the courts to “find law on their own.” It’s their job to apply the relevant principles of law, including the applicable constitutional, statutory, and precedential references, to the case before it – and **make law** by adjudicating that particular case. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 29, 2006, 4:13pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/58 "2006-03-29T16:13:09Z")
> [@David Simmons](#): > > So what exactly is wrong with adopting _any_ legal principle from any source whatever “to the extent compatible with the U.S. Constitution and statutes enacted thereunder?” The difference is, American courts are expected take “judicial notice” of decisions in common-law jurisdictions, American and foreign, but not others. At that, such decisions are not binding on a state court unless issued by an appellate court of the same state. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 29, 2006, 4:20pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/59 "2006-03-29T16:20:51Z")
> [@David Simmons](#): > > You mean right now. However, with a frightened populace what are the chances of overturning any of the precedents that are believed to increase public safety? Sounds like an argument in favor of more Scalia-type justices. He issued the stongest rebuke against executive power in the Hamdi case. > [@](#): > > I believe there is too little appreciation for the cumlative effect of such precedents. Isn’t there already in place from the Civil War a precedent for suspension of _habeas corpus_ for US citizens in time of war? So couldn’t a US citizen be imprisoned and using the precedent couldn’t the President deny a court order to produce the prisoner if things got really dicey? I don’t mean tomorrow, but if the habit of increasing the sovereign power contiues I can see it as a distinct possibility in the future. It’s right there in the constution, but can only be done by Congress, and not just because we’re at war. Again, see the decision in [Hamdi vs Rumsfeld](http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld). In particular, read Scalia’s opinion. > [@](#): > > Justice Antonin Scalia’s dissent, joined by Justice John Paul Stevens, went the farthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only in times of “insurrection” or “rebellion”), which hadn’t happened; or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi’s detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 29, 2006, 4:25pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/60 "2006-03-29T16:25:01Z")
> [@BrainGlutton](#): > > Everyone knows the general drift of Scalia’s thinking (and of every other justice’s but the two newest); it’s all right that they have legal and political opinions, in general terms. But to express definite opinions about specific questions of law that will be at issue in a pending case is another matter, isn’t it? I don’t see why. A judge’s legal and political opinions will have the same influence on his judgment whether or not he articulates them publicly. The only difference is the importance of maintaining the appearance of impartiality, but those already convinced that’s a polite fiction won’t have that view changed by the judge’s silence. One might even say it’s \*helpful \* to have the judge’s human prejudices out in the open so that legal arguments can address them more effectively. [Previous page](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271.md?page=2) [Next page](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271.md?page=4)