Scalia weighs in again on controversy

[Firetxmi]

Scalia weighs in again on controversy

By MARK SHERMAN, Associated Press Writer
1 hour, 16 minutes ago

Justice Antonin Scalia's statement that inflicting pain on a terrorism suspect to elicit critical information could be constitutional was not the first — or second or even third — time he has commented on a legal controversy that ultimately could be settled by the Supreme Court.

If past practice is any guide, Scalia won't let his remarks or his critics' complaints stop him from taking part in the court's work.

Scalia, in his 22nd year on the high court, is the most outspoken of the nine justices and the one who most seems to relish taking on his opponents in public.

"At times, Justice Scalia seems to follow Oscar Wilde's rule that the only way to be rid of temptation is to yield to it," said Jonathan Turley, a law professor at George Washington University. "He is a brilliant jurist, even if you don't agree with his views. His greatest liability has always been a lack of self control when it comes to public statements."

In 2006, a few weeks before the court heard arguments over the rights of detainees at Guantanamo Bay, Cuba, Scalia told an audience in Switzerland that the Constitution doesn't protect foreigners who are held there.

"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. Give me a break," Scalia said.

He ignored a request from five retired generals to withdraw from the case and dissented from a ruling in favor of the detainees. Two years earlier, Scalia also dissented in the court's first decision extending some legal rights to the Guantanamo prisoners.

Recusals are personal, and justices decide themselves whether they have conflicts in cases. They generally don't say why they are not taking part in a case. It is rare for a justice to take himself out of a case because of such public comments.

Scalia, 71, rebuffed calls in 2004 to step aside from a dispute involving Vice President **** Cheney when it was disclosed Scalia accompanied Cheney on a hunting trip while the court was considering the case.

"I think the proudest thing I have done on the bench is not allow myself to be chased off that case," Scalia said later at a law school forum in Connecticut.

The Supreme Court has not been asked yet to rule on aggressive interrogations, including waterboarding, as part of the fight against terrorism. But many legal experts expect the subject could reach the justices in the next year or two.

In London recently, Scalia sat down with British Broadcasting Corp. radio for a lengthy interview that touched on several topics, including harsh U.S. interrogation techniques that have drawn criticism at home and around the world.

Scalia said aggressive interrogation could be appropriate to learn where a bomb was hidden shortly before it was set to explode or to discover the plans or whereabouts of a terrorist group.

"It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that," Scalia said in an interview aired Tuesday.

Scalia said that determining when physical coercion could come into play was a difficult question. "How close does the threat have to be? And how severe can the infliction of pain be? I don't think these are easy questions at all, in either direction," he told the BBC's "Law in Action" program.

Tuesday's interview was not even the first time Scalia has spoken about what is permissible when attempting to stop a terrorist attack.

In Canada last June, he made similar, abbreviated remarks when he spoke about the improbability of fictional TV counter-terrorist agent Jack Bauer being punished for torturing terrorism suspects to reveal information that could help authorities foil an imminent attack.

"Is any jury going to convict Jack Bauer? I don't think so," Scalia said, as reported by the Globe and Mail newspaper. "So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."

University of Pennsylvania law professor Kermit Roosevelt said Supreme Court justices probably should not be taking sides in public in political controversies.

But no one should be surprised that Scalia or other justices hold strong views on issues, Roosevelt said.

The justices are not like trial judges. "Obviously, it's a problem to have a judge who says I think this guy is guilty before the evidence comes in," said Roosevelt, who served as a clerk to Justice David Souter. "But because the Supreme Court is dealing with legal issues and not factual issues, it's much more understandable that they would have views on these issues before the cases come to them."

The one case in which Scalia agreed not to take part was a challenge to the inclusion of the words "under God" in the Pledge of Allegiance. Scalia withdrew after publicly criticizing a California court decision that said including "under God" improperly mixes church and state.

The Supreme Court eventually allowed the challenged words to remain, but sidestepped the larger question about whether the pledge unconstitutionally blends church and state.
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A glance at Scalia controversies

By The Associated Press 46 minutes ago

A glance at incidents or comments involving Supreme Court Justice Antonin Scalia that prompted calls for him to step aside in individual Supreme Court cases.

___

2006: While a case about detainees at Guantanamo Bay, Cuba, is pending before the Supreme Court, Scalia tells a Swiss audience that the U.S. Constitution does not protect foreigners held at Guantanamo's military prison. Scalia ignores a request from five retired U.S. generals that he withdraw from the case. Scalia eventually dissents from a ruling that extends some rights to the detainees.

2004: Scalia goes duck hunting with Vice President **** Cheney while the court is considering Cheney's request to keep private the details of closed-door White House strategy sessions on an energy policy. He rejects arguments that his impartiality was compromised by the hunting trip and is part of a 7-2 decision effectively keeping the meetings private.

2003: Scalia speaks at a rally sponsored by the Knights of Columbus in Virginia to denounce attacks on the Pledge of Allegiance when a challenge to the pledge was pending before the court. Scalia says that the effort to remove God from the Pledge of Allegiance was "contrary to our whole tradition." He decides not to take part in the case.

2000: Scalia is part of a 5-4 ruling in the Florida recount case that seals George W. Bush's presidential victory. Some Democrats had called for him to step aside from the case because his son, Eugene, worked at the same firm as Bush's top Supreme Court lawyer, Theodore Olson.

1996: Scalia, speaking at Catholic University, says there is no right to die in the Constitution, as the court was weighing the issue of physician-assisted suicide. He had previously expressed the same view in a 1990 opinion. Scalia was part of a unanimous ruling in 1997 that there is no constitutional protection for doctor-assisted suicide.


Link:http://news.yahoo.com/s/ap/20080213/ap_on_go_ca_st_pe/scalia_torture;_ylt=ArJmf5ovsaP13G9_zCygbE8D5gcF

Link:http://news.yahoo.com/s/ap/20080213/ap_on_go_ca_st_pe/scalia_moments_glance;_ylt=Aph1krkXl4N5xfk_SB.tpS8D5gcF

I'd like to know what hank thinks about this as well.....

[2Sheds_Jackson]

It would seem to require quite a leap of faith to believe that these justices don't already hold opinions on the very public legal issues that appear before them - and therefore requiring them to keep quiet would only be for the sake of appearances, no? Let's face it - they all have similarly staked out their positions intellectually whether they say them out loud or not.

[Hollis]

Some issues are just not black and write or clear. As he said,

"Scalia said that determining when physical coercion could come into play was a difficult question. "How close does the threat have to be? And how severe can the infliction of pain be? I don't think these are easy questions at all, in either direction," he told the BBC's "Law in Action" program."

How much pain, Justing getting arrested/cuffed has some pain. OK, not much but there still is a pain. How do you draw a pain scale? The extremes are obvious, but when they start to move together, the differences becomes blurred. In a almost gray world it is difficult to say where white or black begins.

I think a Political opinion is no surprise, every time a person is nominated for the bench, his/her politics is reviewed and commented on.

[hank]

I pretty much agree with that article. Scalia's biggest problem is not his ideology but his mouth. He is never gracious to the parties in victory or defeat and that is hard to stomach. His opinions are obviously well thought out but a joke to interpret.

On this issue, though, I do agree with him to a certain extent. I argued a Guantanamo moot court question in law school and spent countless hours arguing/researching the point. From a stare decisis perspective there is no doubt that gitmo detainees have no constitutional rights. The exact same issue came up in WWII and the rule laid down was: Unless you are in the US proper you don't get constitutional benefits. Gitmo is not even a possession, it is land leased from Cuba. Thus the con doesn't protect prisoners there.

That being said it does seem fundamentally unfair that prisoners get taken prisoner in a foreign country and moved to Gitmo then are found to not have rights under the con. I think that is the only logical attack (and ultimately it is the attack that has won). Scalia's purely stare decisis analysis thus oversimplifies Gitmo and torture IMHO. Ultimately the rest of the Court agrees with me (hee hee).

The offshoot of this is whether we can torture in Gitmo and I think the same arguments apply. Does the con prohibit torture of US citizens? No doubt. What about people we detain in a foreign country and move to Gitmo. Technically no, but is it fair or just? I don't think so. If those detainees were held in the US we couldn't torture them. If they are POWs under the Geneve Convention as POWs even in a foreign country we couldn't torture them. But we classify them as falling outside the Geneva's protections, put them somewhere we know the con doesn't protect them then torture them. That seems fundamentally unfair.

Bottom line is as a constitutional matter based only on previous decisions Scalia is correct I think. But the constitution never anticipated this situation. Thus you have to think a little outside the box. If you step back and look at what the Govt is doing (w/r/t Gitmo and torture) I don't think there are many good arguments that it is just or fair. And, ultimatly, fairness and justice are the underpinnings of the con. The loophole that is Gitmo shouldn't be used offensively by our govt to get around these bedrock principles and IMHO it has been. For whatever reason, Scalia refuses to look past stare decisis and thus if given the chance he would allow the loophole to outdo the bedrock. I don't agree with that but I can't dispute that his argument has a certain logic.

FYI, when I argued this I had to write a brief on one side of the issue but then argue orally both sides. I wrote the brief arguing that it was constitutional to torture/hold them at Gitmo and wrote a nice brief (even convinced myself a little). Then when I argued it I ended up coming around and making what I thought was a much better argument against constitutionality. Whatever you think, you have to admit that it isn't cut and dried.

2 sheds - there is no doubt you are correct. These guys find ways to justify the opinions they have up front. I've known several people who clerked for SC justices and they all say it. The Justice's minds are made up ahead of time. That is why they wait so long to take a case on a particular issue. They don't want any facts that will mess up their pre-conceived opinions. Rehnquist was notorious for this.

Hollis - I see your point but remember that for the SC the issue is not to define torture as a matter of fact. They consider the issue in the abstract as a matter of law. Thus, if the trial court says it was torture as a matter if fact, then the SC can't overturn that. For them it is much more a question of "whatever torture is, is it constitutional?" I guess to that extent I would have to disagree with Scalia. Its not his place to define torture, only to say whether its constitutional. Trial courts will make that determination as a matter of fact.

I welcome all the usual enthralling arguments pointing out why I am a slimey lawyer liberal commie pinko f*g and that the victims of 911 didn't get fair treatment so why should the boys in Gitmo or elsewhere.

hank

[Hollis]

Thanks for the read Hank. Historically we also have had POW camps outside of the US. My understanding they would fall under military law and the Geneva Convention if applicable. I would say Gitmo is not a unusual affair from that view. I also think due to the possibility of how dangerous those detainees are, Gitmo is a good place.

What I see is the word "torture", now that it is politicized it's meaning can be anything from a uncomfortable experience to the worse of human depravity. I think there is a lot of discussion on LE interrogation techniques on this subject, but that is not general/media knowledge.

I wonder how much of this is new turf. After WWII, in Germany, werewolves (nazi terrorists) where shot by firing squad. I saw a photo of up to maybe 20 nazis, lined up against a wall to be shot. Saboteurs, spys, partisans met their fate that way. Maybe what is happening now it how publicized and politicized this has become is changing the old way of dealing with illegal combatants in a very public manner.

[hank]

You are certainly right about the POWs in foreign countries. The case on point about that issue dealt with German POWs held in MS. Ultimately they were found to have constitutional rights. Japanese prisoners, on the other hand, held in US occupied land in the Phillipines were found to not have constitutional rights. It is an interesting and somewhat logical distinction.

Remember what has happened here that is very different from WWII. First, WWII was a congressionally declared war (the only kind contemplated by the constitution). Second, we invaded these countries fighting a piutched war with another country, captured POWs, and usually did not transport them outside the country in which they were captured. The POWs were without question POWs under the Geneva convention. Thus, no torture (for purely non-US constitutional reason) and no constitutional rights.

Here, no declared war and no "country" is our enemy. We invade a country like Afghanistan, capture people who often are not Afghans, fly them out of the country to a place which we control but which is not US sovereign territory, then use methods prohibited by the Geneva convention. That is what rubs constitutional and lawyer types the wrong way.

I'll admit that I personally don't care about the torture so far as it relates to citizenship - I just don't think we should be doing it at all for any reason. But that personal belief doesn't impact whether the Gitmo detainees should have constitutional protections. What I will never understand is why we didn't leave them in Afghanistan. It would be a much easier position for the Govt if the stuff happened in Afghanistan. Maybe its an Afghan-relations based issue. I don't know.

The other interesting thing here is that for some of these guys they were at some point held in the US (like Padilla and that other guy I can never remember). There can be no doubt that they had constitutional rights while in the US. Padilla for one has subsequently been given constitutional protection.

Its a close and interesting question for those non-US citizens who never entered the US.

hank

[hank]

By the way (and totally off-topic) I came within "that much" of getting to argue in front of Scalia. I lost a regional competition in the final by like 2 points. If I had won I would have gone to NYC for the final where Scalia would have been one of the 9 judges on the panel. I still kick myself about that. It was a 2-man competition so its hard to say who "lost" it for our team but I'll always think "what if."

hank

[JJC]

I though citizenship is not a decider as to whether you get habeas corpus or due process when you are a combatant. In Ex Parte Quirin SCOTUS ruled that the captured Germans on American soil did not have the right to due porcess and habeas corpus, because they were illegal combatants. Quirin himself was an U.S. citizen and the court didn't give him constitutional rights.

I like how Scalia dissented in Hamdi v. Rumsfeld in favor of full due process for American citizen combatants, not the scam of "minimal due process," that the majority opinion came up with. Scalia is right, it's either congress should suspend habeas corpus for U.S. citizens involved with Jihad or charge them with treason under civil courts with full due process rights.

[Firetxmi]

Is Gitmo different from any other U.S. Military base?

For example, U.S. citizens that are on a military base- do they not have the same Constitutional protections? I have always heard that a U.S. military base is like your in your own county in a foreign land (legally that is). Wouldn't that be why a child born on a U.S. base in a foreign land is a U.S. citizens.



2004: Scalia goes duck hunting with Vice President **** Cheney while the court is considering Cheney's request to keep private the details of closed-door White House strategy sessions on an energy policy. He rejects arguments that his impartiality was compromised by the hunting trip and is part of a 7-2 decision effectively keeping the meetings private.


Also, about the above- wouldn't most "good" judges recuse themselves (that, or not choose to go on a trip with someone who case they are hearing)?

[Hollis]

Military bases are a different entity. Also there is international law, the agreement with Cuba on the rental of the land.

Why would he recuse himself, All you need to do is mention a ex-parti contact. Judges do not live in a void. He knows he is a judge. Also he is only one in nine. Also the law at that level is not like a criminal proceeding.

HANK.............. help.

[hank]

In Ex Parte Quirin SCOTUS ruled that the captured Germans on American soil did not have the right to due porcess and habeas corpus, because they were illegal combatants.

Check Eisentrager v. Johnson (i think johnson is right but its definitely eisentrager) it has a sister opinion which I can't remember. For non-US citizens they have to be on sovereign US soil to get habeas corpus (and other constitutional) rights.

The lease is the important distinction with Gitmo becasue we have a lease in perpetuity for that land from the previous Cuban govt. The argument has always been that Gitmo is different than a simple military base b/c of the perpetuity. I'm not sure the distinction even works now but that is the one currently recognized for non-US citizens. Padilla changed the standard for US citizens.

As for recusal no a SC justice would not recused unless he had a relationship with a party (which Ginzburg has done recently). Predispostion on a legal issue is not a usual ground for recusal. It is generally done only when the judge would appear to not be impartial bc he knows or has represented one of the parties. Roberts had to recused bc he argued for a particular client previously - that is an example.

Interestingly, Scalia did not recuse himself from a case a few years ago even though his son worked for one of the parties - Bush v. Gore I think. Wasn't Scalia's son workign for Bush? I may not be remembering that right.

hank

[Andrew Chalmers]

All other US military bases are governed by Status of Forces Agreements.

Guantanamo is slightly different because the lease was negotiated at a time when the United States and Cuba were not exactly negotiating on a level playing field. And no status of forces agreement was ever negotiated dealing with legal jurisdictions between the United States and Cuba.

In re Scalia's refusal to recuse himself in Bush v. Gore... some folks were asking him to recuse himself on the grounds that his son worked in the same firm as Theodore Olson.


But regarding Scalia's commentary... I'm not so bothered by his preexisting opinion... but more concerned about the long term legitimacy of the Supreme Court as an institution. A judge's refusal to recuse himself does not in itself mean that a decision was tampered by un-judicial bias, but the perception of it (even the slightest tint) hurts the legitimacy of the court.

[Bulletproof]

What is the status of foreign U.S. military bases? Are they part of the US territory or foreign one?

[Andrew Chalmers]

What is the status of foreign U.S. military bases? Are they part of the US territory or foreign one?

They remain the territory of the state hosting the military base.

But that doesn't mean that US service members are not within the jurisdiction of US laws. Certain laws proscribe conduct via the nationality principle (regulating conduct of US nationals regardless of territoriality).

Also... one has to look at the specific Status of Forces Agreement to determine which state party has waived, priority, or concurrent jurisdiction for any given alleged offense/legal issue and any given personnel.

[Bulletproof]

They remain the territory of the state hosting the military base.

But that doesn't mean that US service members are not within the jurisdiction of US laws. Certain laws proscribe conduct via the nationality principle (regulating conduct of US nationals regardless of territoriality).

Also... one has to look at the specific Status of Forces Agreement to determine which state party has waived, priority, or concurrent jurisdiction for any given alleged offense/legal issue and any given personnel.

Does it mean a cop can go on the base and arrest a soldier for any given reason or they need that famous agreement between both?

[Andrew Chalmers]

Does it mean a cop can go on the base and arrest a soldier for any given reason or they need that famous agreement between both?

Detention/Arrest is often a different issue. Again... one has to look at the state parties involved, the status of the accused, the offense alleged to have occurred, and the working relationship between the parties.

With specific information & a particular Status of Forces Agreement to look at - one cannot really speculate any further in detail.

[Bulletproof]

So if I understood what Hank said, Guantanamo is in a big gray zone. No international laws, charts, conventions seem to apply, since we can't define what is Guantanamo...right?

[Andrew Chalmers]

So if I understood what Hank said, Guantanamo is in a big gray zone. No international laws, charts, conventions seem to apply, since we can't define what is Guantanamo...right?

Not quite - Guantanamo is still governed by customary international law and treaties that bind the United States government & its military. The US can't legally commit genocide, war crimes or piracy on Guantanamo - because customary international law binds all, cannot be waived, and is not limited via territoriality.

A big issue regarding treaty obligations is whether they are self-enacting (given legal effect in US courts). This is an issue because the US legal tradition views itself as a dualist system when it comes to international law. Treaties and international law may have effect in US courts if they either are enacted into US law via acts of Congress (pursuant to its Constitutional powers), specified in the treaty, or is considered customary international law (laws of nations).

[Bulletproof]

Guantanamo was conceded by the Cuban government in 1903 but it not part of the US soil? The hell...

[Andrew Chalmers]

Guantanamo was conceded by the Cuban government in 1903 but it not part of the US soil? The hell...

A concession in the form of a lease does not transfer sovereignty - but only provides for the administration by a foreign state.

Read the treaty... it isn't that hard to find

http://www.yale.edu/lawweb/avalon/diplomacy/cuba/cuba002.htm

[Hollis]

In the US a cop has no jurisdiction on a Military base. Military bases are Federal reservation. Cops fall under State or municipal jurisdictions. Not sure how a Federal Marshal would work it. They would probably have to be cleared by a PMO. The military base would fall under the Commander of that base/military law.

[Bulletproof]

A concession in the form of a lease does not transfer sovereignty - but only provides for the administration by a foreign state.

Read the treaty... it isn't that hard to find

http://www.yale.edu/lawweb/avalon/diplomacy/cuba/cuba002.htm

Thanks for the link, i guess the dictionnary bull****ed me...again.

[hank]

So if I understood what Hank said, Guantanamo is in a big gray zone. No international laws, charts, conventions seem to apply, since we can't define what is Guantanamo...right?

Andrew addressed this well. Gitmo is not a gray zone with respect to anything except which country can claim it as sovereign territory. A US base in Germany is undeniably the sovereign territory of Germany. Gitmo, bc of the lease is not Cuban sovereign territory. Cuba cannot enter Gitmo (Marines can tell us about this in detail) which is distinct from a regular base.

Whether or not a German policeman can come on a US bas and arrest a US soldier is not the point. The point is that its still German soil and governed by an agreement. The Cuban lease is much more restrictive on Cuba's rights to that dirt. That is the basis for the Gitmo distinction.

The other issue here is our characteriztion of the detainess under Geneva. There are undoubtedly Geneva experts who will correct me, but we have chosen not to designate Gitmo prisoners as POWs. That designation appears to be correct (not in uniform when captured I think is a factor) but it adds to the Gray Zone.

The result of the lease and non-POW designation is that the Gitmo boys don't fit into any recognized hole and thus have been denied any rights at all.

I should make it perfectly clear that I think it is perfectly acceptable for Scalia and any other SC Justice to have preconceived ideas about cases. Since they are not deciding facts, only law, the will by definition have a preconceived idea. Its just the nature of what they do. Much of what happens at the SC would not fly for a trial court judge but that is expected.

hank

[California Joe]

Regardless of what is legal I think the greatest damage done is in the "perception" that the US is lying and using loopholes in our own legal system to essentially beat information out of suspects that have not been charged with anything. Can't torture under the Constitution? Don't bring them here. Violate the Geneva Convention? They aren't soldiers and we aren't technically at war. Torture them? Change the definition of torture.

Depends on your definition of "is" p-)

[hank]

Regardless of what is legal I think the greatest damage done is in the "perception" that the US is lying and using loopholes in our own legal system to essentially beat information out of suspects that have not been charged with anything. Can't torture under the Constitution? Don't bring them here. Violate the Geneva Convention? They aren't soldiers and we aren't technically at war. Torture them? Change the definition of torure.

Depends on your definition of "is" p-)

Well said Mr. Cali Joe. Couldn't agree more and it only took you one paragraph. If want a job writing briefs and stuff come to Decatur and I'll hook you up.

hank

[California Joe]

I'd like that hank.

I realize the world is not black and white and that combatting terrorism is a dirty business that is conducted in shadows. But we are beginning to look like hypocrits and that worries me.

[Laconian]

In the US a cop has no jurisdiction on a Military base. Military bases are Federal reservation. Cops fall under State or municipal jurisdictions. Not sure how a Federal Marshal would work it. They would probably have to be cleared by a PMO. The military base would fall under the Commander of that base/military law.

You are correct on the state and locals. US Marshals, and other Federal types have jurisdiction on Federal reservations, including mil bases, and can make arrests, serve warrants, subpoenas, etc. w/o clearing it through the Provost Marshal. They do however usually give courtesy calls, etc. to coordinate efforts.

This is a great thread and I've enjoyed reading it. Great discussion. hank, Decatur? Stop by the Trackside Tavern or Eddie's Attic?

[hank]

You are correct on the state and locals. US Marshals, and other Federal types have jurisdiction on Federal reservations, including mil bases, and can make arrests, serve warrants, subpoenas, etc. w/o clearing it through the Provost Marshal. They do however usually give courtesy calls, etc. to coordinate efforts.

This is a great thread and I've enjoyed reading it. Great discussion. hank, Decatur? Stop by the Trackside Tavern or Eddie's Attic?

You bet, love both places. Don't get to Eddie's Attic as much but Eat at Trackside Tavern pretty regularly. My office is right downtown in Decatur but I live in Atlanta.

hank

[Laconian]

Oh, that's awesome! I guest bar tended at the Trackside when one of the Indigo Girls albums came out, a million years ago. The Chief of Decatur PD and I are good buds, as are several the guys there. My first policing job.

There was an awesome diner, Thumbs Up, made great omelettes.

[hank]

Oh, that's awesome! I guest bar tended at the Trackside when one of the Indigo Girls albums came out, a million years ago. The Chief of Decatur PD and I are good buds, as are several the guys there. My first policing job.

There was an awesome diner, Thumbs Up, made great omelettes.

Thumbs up may have moved bc its now close to downtown ATL (or maybe now has a second location I don't know). I love that place. Terrible service is kind of expected but the food is awesome

Indigo girls still make appearances all the time. They are iconic in Decatur. Their restaurant is right down the street but I think they've sold it now to the Raving Brands guys (Moe's originators).

hank

[Firetxmi]

Thanks for all the info hank. I had no idea about the legalities of military bases.

I agree with you on the whole Gitmo issue hank.