Scalia's Recusal Sought in Key Detainee Case

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By Charles Lane
Washington Post Staff Writer
Tuesday, March 28, 2006

On the eve of oral argument in a key Supreme Court case on the rights of alleged terrorists, a group of retired U.S. generals and admirals has asked Justice Antonin Scalia to recuse himself, arguing that his recent public comments on the subject make it impossible for him to appear impartial.

In a letter delivered to the court late yesterday, a lawyer for the retired officers cited news reports of Scalia's March 8 remarks to an audience at the University of Freiburg in Switzerland. Scalia reportedly said it was "crazy" to suggest that combatants captured fighting the United States should receive a "full jury trial," and dismissed suggestions that the Geneva Conventions might apply to detainees at Guantanamo Bay, Cuba.

Scalia's remarks "give rise to the unfortunate appearance that, even before briefing was complete, he had already made up his mind" about issues in the case, the lawyer, David H. Remes, wrote. Noting that Scalia reportedly had discussed the rights of accused terrorists in the context of his son Matthew's recent tour as an Army officer in Iraq, Remes wrote that this creates an appearance of "personal bias arising from his son's military service."

The case to be heard today -- Hamdan v. Rumsfeld , No. 05-184 -- is one of the most important terrorism-related cases to reach the court. It is a challenge by Osama bin Laden's former chauffeur, now being held at Guantanamo Bay, to the legality of the military commission that seeks to try him for war crimes. Military trials for terrorist suspects are a centerpiece of the Bush administration's anti-terrorism policy, but they have been criticized by human rights activists, especially in Europe.

The retired officers are Brig. Gen. David M. Brahms, Brig Gen. James P. Cullen, Vice Adm. Lee F. Gunn, Rear Adm. John D. Hutson and Rear Adm. Donald J. Guter. They have filed a friend of the court brief in the case opposing the military commissions, on the grounds that denying Geneva Conventions protections to detainees at Guantanamo Bay could result in their denial to U.S. troops by their captors abroad. Scalia's speech was first reported by Newsweek's Web site on Sunday.

Newsweek quoted Scalia as describing European reaction to Guantanamo Bay as "hypocritical."

In his letter to the court, Remes said Scalia's reported reference to the Geneva Conventions was of particular concern to the retired officers as it is directly at issue in the case. Their brief supports the view of the petitioner, Salim Ahmed Hamdan, that the conventions apply to him and could entitle him to a court-martial trial like that which U.S. soldiers receive.

Other calls for Scalia's recusal came yesterday from the Center for Constitutional Rights, a civil rights organization that supports the challenge to the military commissions, and from Rep. John D. Conyers (Mich.), the ranking Democrat on the House Judiciary Committee.

Court rules say that justices must recuse in cases where their impartiality "might reasonably be questioned." But it is up to each justice to make that decision. Court analysts said yesterday it is unlikely Scalia will recuse from the case.

This is the third time in recent years Scalia has faced pressure to recuse. In 2004, he recused from a case on the constitutionality of the phrase "under God" in the Pledge of Allegiance, after speaking out on the case at a rally in Virginia.

Last year, he faced calls for his recusal from a case involving Vice President Cheney after it became public that they had gone duck hunting together. In that case, Scalia refused to step aside.


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