U.S. Supreme Court Justice Antonin Scalia dismissed the idea that Guantanamo detainees have constitutional rights

Reuters
US high court judge said to slam detainee rights
By Alister Bull

WASHINGTON (Reuters) - U.S. Supreme Court Justice Antonin Scalia dismissed the idea that Guantanamo detainees have constitutional rights and called European concerns over the issue hypocritical, Newsweek magazine reported on Sunday.

The comments, which Newsweek said were recorded at a private appearance by Scalia in Switzerland on March 8, emerge before a Supreme Court hearing this week on a legal challenge by a Guantanamo prisoner against U.S. military tribunals.

"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," Scalia said in the talk at the University of Freiburg, according to Newsweek. "Give me a break."

Court officials were not immediately available for comment.

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.

Scalia caused an outcry in 2004 for refusing to recuse himself from an energy policy case involving Vice President Dick Cheney, following the disclosure that they had been on a duck-hunting trip together the year before.

Scalia, asked at Freiburg whether detainees at the U.S. naval base at Guantanamo Bay, Cuba have protections under international conventions, gave the suggestion short shrift.

'IT'S CRAZY'

"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," he said. Scalia's son Matthew served with the U.S. Army in Iraq.

Newsweek said it had reviewed a recording of the talk.

It said Scalia added that he was "astounded" at "hypocritical" reaction in Europe to the Guantanamo prison.

Lawyers for Salim Ahmed Hamdan, accused of being Osama bin Laden's bodyguard and driver, present oral arguments before the Supreme Court on Tuesday to challenge U.S. President George W. Bush's authority to try prisoners before military tribunals.

Chief Justice John Roberts has recused himself from the hearing because he ruled on the case while he was on a federal appeals court. Scalia has previously recused himself from a case -- one involving the Pledge of Allegiance to the U.S. flag -- after making public remarks on it.

"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.

The Hamdan case is considered an important test of the administration's policy in the war on terrorism. The tribunals, formally called military commissions, were authorized by Bush after the September 11 attacks and have been criticized by human rights groups as being fundamentally unfair.

There are about 500 suspected al Qaeda and Taliban prisoners at the U.S. military base at Guantanamo Bay in Cuba.

The administration's argument was based on a law signed by Bush on December 30 that limits the ability of Guantanamo prisoners caught in the president's war on terrorism to challenge their detention in federal courts.