Fox News' John Gibson and Andrew Napolitano lauded U.S. Supreme Court Justice Antonin Scalia while discussing whether Scalia should recuse himself from a case involving a Guantánamo Bay prisoner after Scalia stated that prisoners at Guantánamo Bay have no legal rights.
During the March 28 edition of Fox News' The Big Story, host John Gibson and Fox News senior judicial analyst Andrew P. Napolitano lauded U.S. Supreme Court Justice Antonin Scalia while discussing whether Scalia should recuse himself from the Hamdan v. Rumsfeld case after Scalia stated, in a March 8 speech, that prisoners at the U.S. military prison at Guantánamo Bay, Cuba, have no legal rights. Gibson started the segment by saying that Napolitano was "throwing our boy Scalia under the bus" for arguing that Scalia should recuse himself from the case. Despite arguing for Scalia's recusal, Napolitano emphasized that he "love[s]" Scalia and that the Justice is a "great man."
Salim Ahmed Hamdan, a former chauffeur of Osama bin Laden, is challenging the legality of miltary commissions President Bush established in November 2001 to try detainees for alleged war crimes. In addition to questioning Bush's authority in setting up the commissions, critics have said they violate a detainee's rights under the Geneva Conventions and do not allow for a meaningful appeals process.
From the March 28 edition of Fox News' The Big Story with John Gibson:
GIBSON: The U.S. Supreme Court began hearing landmark arguments about the rights of Gitmo detainees today. Chief Justice John Roberts has recused himself from the case. He was on an appeals court that ruled against the defendant before he joined the high court. Now, some people want Justice Scalia to recuse himself, too. Here to talk about the issue, Fox News senior judicial analyst, Judge Andrew Napolitano. So, first of all, you're throwing our boy Scalia under the bus.
NAPOLITANO: I am not throwing him under the bus.
GIBSON: You are throwing him under the bus. You know --
NAPOLITANO: He --
GIBSON: -- tell people what he said.
NAPOLITANO: OK. He -- he used words which, if they had been used by a trial court judge or an intermediate-level appellate judge, the person would have been removed from the court.
GIBSON: Now, he was --
NAPOLITANO: He said --
GIBSON: -- in Switzerland.
NAPOLITANO: He was in Switzerland. And he basically --
GIBSON: He gave a speech.
NAPOLITANO: Gave a speech about 10 days ago. And he basically said: "I've already decided this case. I've already decided that the government is right." Second question: "Why is that?" "Well, my son was in Afghanistan [Note: Scalia's son served in Iraq, not Afghanistan]."
GIBSON: But that isn't what he said.
NAPOLITANO: "And those guys that now want a trial shot at my son."
GIBSON: That is an interpretive version, Judge.
NAPOLITANO: Yeah. It's not literal.
GIBSON: He said -- he -- he was asked, "Do the prisoners at Gitmo deserve the Geneva Conventions, deserve a trial?" And he said no. "They were captured on the field of battle. I can do anything I want with them."
NAPOLITANO: Why -- why not, Mr. Justice?
GIBSON: Yeah. The second question was, well, you know, why not? He said, among other things, "They were shooting at my son."
NAPOLITANO: Yeah. So, look, here's the rule. If a judge or a justice has formed an opinion about a case, based upon some effect on the family member, you got to get off the case. In -- in this particular instance, there is no provision to force him off.
GIBSON: But the family member is 250,000 American troops, or 300,000, that have been through the area and gotten shot at by these guys.
And doesn't -- and your man, Scalia, you -- you like him.
NAPOLITANO: I love the guy.
GIBSON: All right, your man, Scalia --
NAPOLITANO: But when you go into a court, you expect the judge to have an open mind, not to have decided the case before it's even argued.
GIBSON: OK. But it is going to be argued. There are going to be very persuasive lawyers standing before him.
NAPOLITANO: It happened today.
GIBSON: If -- if they are good, they may convince him.
NAPOLITANO: But, remember, their job is not to change his mind from one position to another. Their job is to take him from a position of neutrality and win him over. It's a profound issue that they're talking about. Four hundred people in Guantánamo Bay filed complaints in federal district court, saying, hey, why am I here? The Congress then rewrote the law, saying, you don't have the right to file these complaints anymore. You first go through a military tribunal. If you lose, then you can file a complaint.
So, can the Congress take away their right to seek this relief midstream? That's what the Supreme Court has to discuss.
GIBSON: All right, if Scalia should recuse himself, must he?
NAPOLITANO: I think, morally, he must. Legally, he doesn't have to, because, legally, he is the court of last resort. If you're asking me, can the other justices on the court legally compel him to do so, the answer is no. That is an individual decision, unique to each justice. Back in the old days, when I was on a trial court in New Jersey, had I not recused myself, because I thought the outcome might affect my son or brother, my bosses would have kicked me off. But he has no bosses.
GIBSON: Well, once again, you're throwing our boy, Scalia, under the bus.
NAPOLITANO: He's a great man. He can deal with this.
GIBSON: Judge Andrew Napolitano, thanks.