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Free to Dissent

Why Justice Scalia need not recuse himself from the Hamdan case.

9:30 AM, Mar 27, 2006 • By DAVEED GARTENSTEIN-ROSS
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WHEN IT HEARS ARGUMENTS IN Hamdan v. Rumsfeld this Tuesday, the Supreme Court will consider whether the Bush administration can try Guantanamo detainees in special military tribunals, or whether the detainees' cases have to be heard in federal court. In the run-up to the hearing, liberal proponents of federal judicial involvement declared their own war--on Justice Scalia's right to participate in the legal debate.

It began with a Newsweek report about a speech Scalia delivered on March 8 at the University of Freiburg in Switzerland. (Unfortunately, no transcript of his remarks has been published.) There, Justice Scalia allegedly told attendees that "[w]ar 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." Asked if detainees captured on the field were entitled to relief under the Geneva Convention, he allegedly said, "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."

Following these remarks, at least one organization litigating the Hamdan case has called on Scalia to recuse himself because he has already formulated an opinion on the matter. Liberal bloggers have begun to follow suit.

The stakes of a Scalia recusal are high: With Chief Justice Roberts already recused (because he heard the case as an appellate-court judge), Justice Scalia would need to win the support of only three more justices to deadlock the Court at 4-4. Such a "tie" would leave intact the lower court's decision, that Guantanamo detainees have no enforceable rights in federal court.

Scalia has been through this before: In January 2003, he discussed the constitutionality of the pledge of allegiance's "under God" reference in a public speech. Nine months later, he had to recuse himself from hearing Michael Newdow's establishment clause challenge to the pledge.

At first blush, Justice Scalia's latest remarks seem like an even more compelling cause for recusal. While his remarks about the pledge occurred before the case was on the Supreme Court's docket, here the court was scheduled to hear arguments less than a month after the Freiburg speech. But a closer examination reveals that there is more than meets the eye: Scalia's remarks don't put forward anything different from the views he already articulated in two published opinions, a dissent in Rasul v. Bush and another dissent in Hamdi v. Rumsfeld. And that fact makes all the difference.

RASUL V. BUSH GAVE RISE to the Hamdan case by holding that the federal statute that provides habeas corpus relief to prisoners also applies to Guantanamo detainees. After Rasul, the Bush administration established military commissions designed to hear the detainees' cases. Now, in Hamdan, the Supreme Court is asked to determine whether these commissions satisfy the detainees' habeas rights, or whether they should be allowed to obtain relief in federal court.

Justice Scalia wrote a strong dissent in Rasul that was joined by Chief Justice Rehnquist and Justice Thomas. He disagreed with the court's reading of the federal statute at issue, concluding that the detainees had no right to bring such claims in federal court. He argued that the Court's reading of the statute--and its departure from the previously controlling case, Johnson v. Eisentrager--was dangerous in the context of the ongoing war on terror:

Departure from our rule of stare decisis in statutory cases is always extraordinary; it ought to be unthinkable when the departure has a potentially harmful effect upon the Nation's conduct of a war. The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs. For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders' reliance upon clearly stated prior law, is judicial adventurism of the worst sort. I dissent.