Lawyers representing Hamdan, one of nine men at Guantanamo charged with war crimes, will argue President Bush lacked authority to create the commission two years ago, and that its design violates the rights of war prisoners under the 1949 Geneva Convention. The administration will argue that since al Qaeda is not a traditional army, men such as Hamdan who are associated with it are not POWs, but "enemy combatants," and thus not protected by the Geneva Conventions. It also will argue that Mr. Bush, as commander in chief, has constitutional authority to create such commissions -- an authority bolstered by Congress' passage of the broad Authorization for Use of Military Force shortly after September 11. Scott Sillman, a professor at Duke University Law School, contends that "many of the cases which the administration is using to justify its policies regarding the detention and trial of enemy combatants in the war on terrorism were decided after World War II, which was a decidedly different context." "Hamdan gives the court the opportunity to define this war on terrorism, to give us a more current view of the constitutional authority of the president in this new type of war and the tools available to him in fighting it," Mr. Sillman said.I'm still not sure I see how the context of the WWII period is relevant to the use of these commissions. Is the "current view" really any different than that is WWII? Or is this author trying to push that more recent changes in the Geneva Conventions are more relevant, even if the US is not a signatory to those changes?
Controversy isn't helping. Scalia seems to have taken to talking on the case. SCOTUSblog has a discussion of the issue and whether Scalia should recuse himself.
Just over two weeks ago, on March 8th, Justice Scalia gave a speech at the University of Fribourg in Switzerland, the school at which he spent hus Junior Year abroad in the mid-1950's. Apparently he permitted it to be filmed, because the video of the speech, a follow-up Q&A, and a short interview, can be viewed here. Justice Scalia is characteristically combative and provocative. For instance, in response to a question about Bush v. Gore, he responds: "Come on, get over it." He states that the real question in the case was whether the election was to be decided by the Florida Supreme Court or by the U.S. Supreme Court -- "not a very hard question," in his view -- and "there was no way we could have turned that case down." He then states that the Florida Supreme Court -- but not the U.S. Supreme Court -- was "politically motivated." And in response to a question about affording constitutional rights to Guantanamo detainees, he states unequivocally that "foreigners, in foreign countries, have no rights under the American Constitution" and that "nobody has ever thought otherwise." But see Rasul v. Bush, 542 U.S. 466, 483 n.15 (2004).I suppose Ed Whelan at NRO's bench memos makes a good case against recusal.
Of potential relevance to the current docket, in answer to one question from the audience (just after the 56:00 mark), Justice Scalia expresses incredulity at the notion that detainees captured "on the battlefield" should receive a trial in civil courts. It is, he says, a "crazy idea." To a follow-up question about the Geneva Conventions and other human rights treaties, he responds with evident disdain: "What do they mean? They mean almost anything." The questioner then refers again to a hypothetical Guantanamo detainee, at which point Justice Scalia interjects: "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 am not about to give this man who was captured in a war a full jury trial. I mean it's crazy." (I believe that Scalia's son Matthew served with the U.S. Army in Iraq.)
Many folks were surprised that Scalia believed himself obligated to recuse in Newdow. The mere fact that a justice has made public comments that would or might have some bearing on a case that comes before the Court has never been regarded as requiring recusal. What distinguished Scalia's comments regarding the Pledge of Allegiance - and what I strongly believe led to his decision to recuse - is that Scalia commented directly on the lower-court ruling that later came before the Court. By contrast, the comments that Scalia made in Switzerland that would or might have some bearing on Hamdan were not (from Lederman's account) directed at the ruling below in Hamdan.Scalia's remarks are humorous in a way. He really does strike one as cantankerous. I have to agree that giving these enemy combatants a US constitutional trial is beyond reasonable. I have noted a lot of howling in the editorials about the amount of time that this has all taken to get the commissions started and process the detainees, but most seem to be missing that the vast majority of the delay has been caused by suits in the US justice system on the legality of the commissions. Hamdan itself has been in appeals for quite a long time.
One can quarrel whether this formalist line is sensible. But anyone who thinks it isn't would end up concluding either that Supreme Court justices for decades have been failing to recuse in lots of cases where they should or, far more plausibly, that Scalia should not have recused himself in Newdow.
Now the complicated ramblings of the case will finally begin. And in a few months we may actually have an answer.