Bill O'Reilly falsely suggested that only the “nutty left” wants Supreme Court Justice Antonin Scalia to recuse himself from the Hamdan v. Rumsfeld case. In fact, a group of retired military officials and even conservative Fox News analyst Andrew P. Napolitano have joined the Center for Constitutional Rights and Rep. John D. Conyers (D-MI) in calling for Scalia's recusal from the case.
On the March 28 broadcast of his nationally syndicated radio show, Bill O'Reilly falsely suggested that only the “nutty left” wants Supreme Court Justice Antonin Scalia to recuse himself from the Hamdan v. Rumsfeld case that came before the court that day. In a March 8 speech, Scalia declared that prisoners at the U.S. military prison at Guantánamo Bay, Cuba, have no legal rights; the Hamdan case is challenging the legality of military commissions President Bush established in November 2001 to try detainees for alleged war crimes. In fact, a group of retired military officials and even conservative Fox News judicial analyst Andrew P. Napolitano have joined the Center for Constitutional Rights and Rep. John D. Conyers (D-MI) in calling for Scalia's recusal from the case.
As reported in Newsweek, "[d]uring an unpublicized March 8 talk at the University of Freiburg in Switzerland, Scalia dismissed the idea that the detainees have rights under the U.S. Constitution or international conventions, adding he was 'astounded' at the 'hypocritical' reaction in Europe to Gitmo." After an audience member reportedly questioned Scalia as to whether detainees have legal rights acquired by “the Geneva or other human-rights conventions,” Scalia responded:
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.
As Newsweek noted, “Scalia was apparently referring to his son Matthew, who served with the U.S. Army in Iraq.”
Scalia's comments have created a controversy over whether he should recuse himself from hearing the Hamdan case. The Newsweek report noted that Center for Constitutional Rights president Michael Ratner, whose group “has filed a brief in behalf of the Gitmo detainees,” stated: “This is clearly grounds for recusal. 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.” Additionally, according to The Washington Post, Conyers, ranking Democrat on the House Judiciary Committee, has also expressed concerns about Scalia's ability to remain impartial while hearing the case.
But Ratner and Conyers are not the only ones who have suggested that Scalia recuse himself from the Hamdan case.
As Media Matters for America has previously noted, O'Reilly's Fox News colleague Napolitano -- far from being a member of the “nutty left” -- argued Scalia had the responsibility to recuse himself from the case. Speaking to Fox News host John Gibson during the March 28 edition of The Big Story with John Gibson, Napolitano stated:
NAPOLITANO: 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.
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.
But, remember, their job [the lawyers involved in the case] 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.
I think, morally, he must [recuse himself].
Napolitano also stated that he “love[d]” Scalia, adding, “He's a great man. He can deal with this.”
Additionally, as a March 28 Washington Post article noted, five retired military officials who “have filed a friend of the court brief in the case opposing the military commissions” cited Scalia's comments as a source of “particular concern” because they are “directly at issue in the case.” The retired officers argued that “denying Geneva Conventions protections to detainees at Guantanamo Bay could result in their denial to U.S. troops by their captors abroad.”
In Hamdan v. Rumsfeld, Salim Ahmed Hamdan, a former chauffeur of Osama bin Laden, is challenging the legality of military 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 broadcast of Westwood One's The Radio Factor with Bill O'Reilly:
O'REILLY: Finally, chief justice -- not chief justice but Supreme Court Justice Antonin Scalia made some comments about how captured terrorists should be treated by the USA. Now, the Supreme Court is going to hear -- going to hear a case where the crazy left wants all of the captured terrorists to be tried in civilian court, no matter where they're caught. This is insane. But that's what the far left wants. Now, Scalia was in Switzerland and said this.
SCALIA (audio clip) We are in a war here capturing these people on the battlefield. We never gave a trial in civil courts to people captured in war. We captured a lot of Germans during World War II, and they were brought not to Guantánamo, but to the soil of the United States. We didn't give them a trial.
O'REILLY: All right, so obviously, Scalia's not going to vote for civilian trials for terrorists, and I don't think most of the other Supreme Court people will either. But now, the nutty left wants Scalia to recuse himself from the vote. You know, it's just the same -- on and on and on and on. But these nuts -- aye-aye-aye.