AP report on Scalia's controversial Gitmo comments ignored issue of recusal

››› ››› JOSH KALVEN

In an article on a recent speech by Supreme Court Justice Antonin Scalia, in which he said that Guantánamo detainees are not entitled to legal protection under the U.S. Constitution or international conventions, the AP left out the serious questions about whether he should recuse himself from an upcoming case involving the rights of Guantánamo Bay detainees.

In a March 26 article on a recent speech by Supreme Court Justice Antonin Scalia, in which he said that detainees held at the Pentagon's prison facility at Guantánamo Bay, Cuba, are not entitled to legal protection under the U.S. Constitution or international conventions, the Associated Press left out any mention of the significance of Scalia's comments -- that the Supreme Court is scheduled on March 28 to hear the case of Hamdan v. Rumsfeld, which concerns precisely the issue on which Scalia was indicating his views. Scalia's statements raise serious questions about whether he should recuse himself, an issue wholly ignored in the AP story.

During an unpublicized March 8 lecture at the University of Freiburg in Switzerland, Scalia told the audience that the legal rights of the detainees held at Guantánamo are not protected by the U.S. Constitution nor the Geneva Conventions. Newsweek broke the story in a brief article in its April 3 issue:

"War 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," he [Scalia] says on a tape of the talk reviewed by NEWSWEEK. "Give me a break." Challenged by one audience member about whether the Gitmo detainees don't have protections under the Geneva or human-rights conventions, Scalia shot back: "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." Scalia was apparently referring to his son Matthew, who served with the U.S. Army in Iraq.

The article, written by Newsweek investigative correspondent Michael Isikoff, went on to broach the question of whether Scalia's comments obligate him to sit out as the court rules on Hamdan. Federal law requires a justice to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." From the April 3 Newsweek article:

"This is clearly grounds for recusal," said Michael Ratner of the Center for Constitutional Rights, a human-rights group that has filed a brief in behalf of the Gitmo detainees. "I can't recall an instance where I've heard a judge speak so openly about a case that's in front of him -- without hearing the arguments." Other experts said it was a closer call. Scalia didn't refer directly to this week's case, Hamdan v. Rumsfeld, though issues at stake hinge in part on whether the detainees deserve legal protections that make the military tribunals unfair. "As these things mount, a legitimate question could be asked about whether he is compromising the credibility of the court," said Stephen Gillers, a legal-ethics expert.

Gillers appeared to be referring a number of incidents in which critics raised questions about Scalia's conduct. As Isikoff noted, Scalia recused himself from a 2004 case concerning the Pledge of Allegiance after commenting publicly on the issue. In 2004, Scalia joined Vice President Dick Cheney on a hunting trip to Louisiana. At the time, the Supreme Court was considering the legality of the Bush administration's refusal to turn over documents relating to the private meetings of Cheney's energy task force. Scalia rejected subsequent calls for him to recuse himself from the case. Similarly, while deciding a 2004 case concerning gay rights, Scalia spoke at a dinner hosted by the Urban Family Council, an advocacy group opposed to gay rights. Scalia has also been criticized for his participation in judicial junkets. For example, he was found "on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo.," during the swearing-in of Chief Justice John G. Roberts Jr. on January 23. Most recently, Scalia raised eyebrows on March 26 when he made an obscene gesture outside of a Boston cathedral in response to a reporter's question about his impartiality on matters pertaining to the separation of church and state.

Following the online publication of the Newsweek piece, AP released an un-bylined March 26 article on Scalia's controversial remarks. But while the AP noted that the court is scheduled to hear Hamdan in the coming days, it ignored the question of whether Scalia is obligated to recuse himself. Numerous newspapers reprinted the article in their March 27 editions, including The Washington Post, the Los Angeles Times, and The Kansas City Star, also without mentioning the recusal issue.

By contrast, a March 26 Reuters article noted that Ratner and Father Robert Drinan, a professor of judicial ethics at the Georgetown University Law Center, argued that Scalia is now obligated to recuse himself from Hamdan:

Ethics experts said the impression that Scalia had already made up his mind before the hearing should mean that he will voluntarily drop out of the proceedings. However, Newsweek said he did not refer specifically to this week's case.

"He should remove himself when there is a reasonable doubt of his impartiality," said Father Robert Drinan, a professor of law at Georgetown University and long-standing human rights campaigner, who teaches judicial ethics.

"It should logically be a reason for his recusal but I don't think he'll do it ... he's so stubborn" said Drinan.

[...]

"A judge has to have an open mind; when he hears the articles and reacts to briefs. If he's made up his mind on a particular issue, he shouldn't be sitting (in)," said Michael Ratner, president of the Center for Constitutional Rights.

"Here he has publicly said that this is what my position is, before the arguments ... It's really stacking the deck," Ratner said. CCR has argued for Guantanamo prisoner rights.

A March 26 United Press International article and a March 27 New York Sun article similarly noted that Scalia's comments raise the issue of recusal.

Posted In
Justice & Civil Liberties, Detention
Network/Outlet
Associated Press
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