# 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:** 16\ **Page:** 4
**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, 4:32pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/61 "2006-03-29T16:32:21Z")
> [@Polycarp](#): > > 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. I think I just expressed myself poorly there. Of course a court may make new case law. However, that generally is done from existing case law, statutary law, common law, or the federal and state constitutions. Treaty obligations also have the force of law. The notion that courts could take a law binding only on citizens of a foreign country and make that law binding on the citizens of this country without the assent of a legislative body is a relatively new and novel concept. I find it an undemocratic and a repugnant one, as well. If you find a law pased by Burkina Faso to be the just and good one that would solve many of our problems, it wouldn’t be out of line to ask your representative to study the law and introduce similar legislation here. I don’t think it would be proper, though, for a judge to find in the constitution of Burkina Faso some right or obligation that must be respected here. That constitution is binding over in Burkina Faso only. ---
**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, 4:44pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/62 "2006-03-29T16:44:01Z")
> [@Mr. Moto](#): > > The notion that courts could take a law binding only on citizens of a foreign country and make that law binding on the citizens of this country without the assent of a legislative body is a relatively new and novel concept. I find it an undemocratic and a repugnant one, as well. No one’s suggesting that – only that American courts should take account of foreign legal standards, as persuasive but not binding; just as, now, they take notice of other American states’ decisions. ---
**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, 7:16pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/63 "2006-03-29T19:16:50Z")
> [@BrainGlutton](#): > > 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. That is incorrect. The term “judicial notice” generally pertains to the facts via evidence in a particular case, not to the application of either precedent case law or pursuasive materials. If it was material to the case, the Court could take judicial notice of the fact that George W. Bush is president in 2006, or of facts in a reference book about what the weather was like in a certain place on a given day. See Irving Younger’s book, _The Advocates’s Deskbook: The Essentials of Trying a Case_ , pp 81-112 ---
**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, 8:03pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/64 "2006-03-29T20:03:59Z")
> [@zamboniracer](#): > > That is incorrect. The term “judicial notice” generally pertains to the facts via evidence in a particular case, not to the application of either precedent case law or pursuasive materials. If it was material to the case, the Court could take judicial notice of the fact that George W. Bush is president in 2006, or of facts in a reference book about what the weather was like in a certain place on a given day. See Irving Younger’s book, _The Advocates’s Deskbook: The Essentials of Trying a Case_ , pp 81-112 You’re right. I cannot recall the technical term for a court taking note of a decision by a court in another jurisdiction, but I’m sure there is one. ---
**Author:** ![Banquet\_Bear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/banquet_bear/32/373_2.png) [@Banquet\_Bear](https://boards.straightdope.com/u/Banquet_Bear)\ **Post date:** [March 30, 2006, 12:34pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/65 "2006-03-30T12:34:21Z")
> [@Diceman](#): > > 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. …with all due respect, I can’t understand opinions like this. You think the Nuremberg Tribunal and the Guantanemo Tribunals are comparable? I suggest you start reading some of the unclassified evidence against the remaining 517 detainees, and please explain to me how the two situations are remotely comparable. Show me how many deaths the detainees are responsible for. Show me the Taliban Leadership, like Mayors, Police Chiefs, or government officials that are currently detainees at Guantanemo. Please explain how the two situations compare. The evidence against the Nazi regime was overwhelming. The evidence against the detainees include such devestating allegations as the detainee fled from a bombed camp. > **[U.S. Department of Defense](https://www.defense.gov/)** > > The Department of Defense is America's largest government agency. With our military tracing its roots back to pre-Revolutionary times, the department has grown and evolved with our nation. We are no longer guessing: we can read most of the evidence that the US government has on the detainees. There maybe thirty people at Guantanemo who could be called the "baddest of the bad. Only 5% of detainees were captured by US Forces on the battlefields of Afghanistan-the rest were “gifts.” If the US government or you think that the detainees are “unlawful combantants”, then I challenge you to a simple task: prove it. [My previous Guantanemo threads, advancing the same arguement since 2003…](http://boards.straightdope.com/sdmb/showthread.php?t=358963) ---
**Author:** ![Banquet\_Bear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/banquet_bear/32/373_2.png) [@Banquet\_Bear](https://boards.straightdope.com/u/Banquet_Bear)\ **Post date:** [March 30, 2006, 12:40pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/66 "2006-03-30T12:40:53Z")
…and to my embarrasement, I find out that the US Defense Department has rejigged their site, rendering the above cite useless: try this one: > **[U.S. Department of Defense](https://www.defense.gov/)** > > The Department of Defense is America's largest government agency. With our military tracing its roots back to pre-Revolutionary times, the department has grown and evolved with our nation. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 30, 2006, 1:30pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/67 "2006-03-30T13:30:38Z")
> [@Diceman](#): > > 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. Arguably, as a **description.** Not as a **legal classification,** determinative of their rights. Furthermore, it now appears that many of the detainees never were members of any military force, legitimate or otherwise, or terrorist underground; just poor schmucks their neighbors turned in for the reward. ---
**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 30, 2006, 2:55pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/68 "2006-03-30T14:55:05Z")
> [@BrainGlutton](#): > > Arguably, as a **description.** Not as a **legal classification,** determinative of their rights. Furthermore, it now appears that many of the detainees never were members of any military force, legitimate or otherwise, or terrorist underground; just poor schmucks their neighbors turned in for the reward. The term “Unlawful combatant” presumes guilt in advance. Many of us in Germany at the time of the Nuremburg Trials questioned them. There wasn’t much doubt that some sort of retribution was due the leaders, like Goering, but the further down the hierarchy it went the more the defandants resembled us. In addition those trials were not the unilateral action of a single country acting on the unexamined word of the executive as to the procedure that would be used. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 30, 2006, 8:59pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/69 "2006-03-30T20:59:44Z")
For a more succinct view of Scalia’s probable response when asked this question, [click here](http://news.bostonherald.com/localRegional/view.bg?articleid=132848&format=text) and repeat “Vaffanculo!” ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [March 30, 2006, 11:34pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/70 "2006-03-30T23:34:04Z")
This is a strange incident. You’d think Scalia would simply refrain from this sort of thing until after the case has been heard and voted on, but he’s got a long record of being a bit of a nutter when it comes to inciting problems like this. This case is arguably worse than the pledge case from which he recused himself, because at least in that he didn’t indicate outright how he was going to rule. The difference here is that if he recuses, it will be far more likely to affect the outcome, since one of the other conservatives has already had to recuse himself over prior involvement with this particular case in a different capacity than a SC judge. I suspect whether or not he does will have far more to do with politics than judicial ethics. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [March 30, 2006, 11:51pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/71 "2006-03-30T23:51:17Z")
> [@ElvisL1ves](#): > > For a more succinct view of Scalia’s probable response when asked this question, [click here](http://news.bostonherald.com/localRegional/view.bg?articleid=132848&format=text) and repeat “Vaffanculo!” I am _so_ getting that on a t-shirt. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 31, 2006, 4:40am UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/72 "2006-03-31T04:40:59Z")
> [@Apos](#): > > I suspect whether or not he does will have far more to do with politics than judicial ethics. Why should he care about politics? That’s why an SC justice has a lifetime appointment – it’s supposed to make him immune to political pressure. ---
**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 31, 2006, 5:38am UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/73 "2006-03-31T05:38:24Z")
> [@BrainGlutton](#): > > Why should he care about politics? That’s why an SC justice has a lifetime appointment – it’s supposed to make him immune to political pressure. I would expect him, or anyone for that matter, to want a president who would appoint justices who would have the preferred slant on the law. There were some constutional cases arose in 1901 as to whether or not the people in the territories aquired as a result of the Spanish-American War were entitled to the protection of the US Constitution. Some said the Constitution “follows the flag” and others said no. Mr. Dooley (Finley Peter Dunne) wrote of the matter in his satirical column: > [@](#): > > … no matter whether th’ Constitution follows th’ flag or not, th’ Supreme Coort follows th’ election returns. Was the 2000 Florida election decision taken away from the Florida court on a 100% legal basis? ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [March 31, 2006, 7:45am UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/74 "2006-03-31T07:45:27Z")
> [@](#): > > Why should he care about politics? That’s why an SC justice has a lifetime appointment – it’s supposed to make him immune to political pressure. A perhaps laudable goal, but entirely silly. People have political allegiances regardless of whether they stand to gain money or higher office, and payoffs in real life can be as personal as they are monetary. Scalia is a good chum of this administration, and very politically charged. Why would he recuse himself if the result is that they’d lose and the court might decide something against his politics? ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [April 6, 2006, 6:24pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/75 "2006-04-06T18:24:36Z")
The case is now pending before the Court, and raises some issues not previously addressed by the Court. IIRC, didn’t Scalia also refer to the fact that his son had served in the Army and had faced, on the battlefield, those allied with the Gitmo internees? Come on. He should recuse himself to avoid even the appearance of impropriety. How could anyone doubt that he’d prejudged the case? No judge who publicly and unabashedly says that the arguments of one side are “crazy” should remain on the case. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 6, 2006, 6:40pm UTC](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271/76 "2006-04-06T18:40:26Z")
> [@Elendil's Heir](#): > > The case is now pending before the Court, and raises some issues not previously addressed by the Court. IIRC, didn’t Scalia also refer to the fact that his son had served in the Army and had faced, on the battlefield, those allied with the Gitmo internees? > > Come on. He should recuse himself to avoid even the appearance of impropriety. How could anyone doubt that he’d prejudged the case? No judge who publicly and unabashedly says that the arguments of one side are “crazy” should remain on the case. Scalia said that it was crazy to suggest that combatants captured fighting the United States should receive a “full jury trial.” As far as I can tell, no one is making that argument before the Court. So Scalia did NOT say that the arguments of one side are crazy. Did he? [Previous page](https://boards.straightdope.com/t/scalia-dismisses-idea-gitmo-detainees-have-right-to-trial-grounds-for-recusal/350271.md?page=3)