On Tuesday, the Supreme Court will hear argument in a case involving Ali Hamdan, a former chauffer to Osama bin Laden, and the authority of the President to detain foreign combatants without trial.
Seized by U.S. forces in Afghanistan and imprisoned at Guantanamo Bay, Cuba, Osama bin Laden’s former chauffeur is now seeking victory over President Bush in a new arena: the Supreme Court.
In oral arguments Tuesday, an attorney for Salim Ahmed Hamdan will ask the justices to declare unconstitutional the U.S. military commission that plans to try him for conspiring with his former boss to carry out terrorist attacks.
Significant as that demand is, its potential impact is much wider, making Hamdan’s case one of the most important of Bush’s presidency. It is a challenge to the broad vision of presidential power that Bush has asserted since the terrorist attacks of Sept. 11, 2001.
In blunt terms, Hamdan’s brief calls on the court to stop “this unprecedented arrogation of power.” Just as urgently, the administration’s brief urges the court not to second-guess the decisions of the commander in chief while “the armed conflict against al Qaeda remains ongoing.”
The case itself has broad implications for the War on Terror, and the seperation of powers among and between the branches of government. What makes it more interesting, however, is this report about some recent comments by Justice Antonin Scalia.
The Supreme Court this week will hear arguments in a big case: whether to allow the Bush administration to try Guant?namo detainees in special military tribunals with limited rights for the accused. But Justice Antonin Scalia has already spoken his mind about some of the issues in the matter. During 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. “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 says on a tape of the talk reviewed by NEWSWEEK. “Give me a break.”
The article goes on to question whether, given his remarks, Scalia should recuse himself from hearing the Hamdan case. As the article points out, though, a Scalia recusal could pose problems:
A Scalia recusal (it’s entirely up to him) would create problems; Chief Justice John Roberts has already done so in Hamdan because he ruled on it as an appellate judge.
Some might dismiss the suggestion that Scalia should recuse himself from hearing the Hamdan case as media bias, but I disagree. In general, it is considered inappropriate for judges to comment publicly on issues before the Court. While the issues in the Hamdan case aren’t entirely the same as those that Scalia commented on, they are similar enough to raise questions of propriety that, generally, suggest that Justice Scalia should decide against ruling in this case.
Whether that means he should recuse himself is a question I will leave to others. At the same time, though, as much as I respect Justice Scalia, I must agree with Captain Ed’s conclusion:
Scalia is, without a doubt, one of the more brilliant legal minds on the bench at any level. However, when it comes to decorum and judicial temperament, it seems that Scalia has some room for improvement.
More discussion of this issues at SCOTUS Blog
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