Marty Lederman has an interesting post on a recent talk by Justice Scalia in which he discussed the rights of Guantanamo detainees. I tend to agree with Ed Whelan that Scalia won’t recused himself in Hamdan based on this talk, as the comments he made were general and not directed at a specific lower court ruling.
Scalia’s Comments on Guantanamo Detainee Rights
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The comments were general. But they do seem to dispel any illusion that Justice Scalia has an open mind when it comes to these cases. When asked whether detainees have any protections under Geneva convention or human rights conventions, he apparently said:
“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.”
Can a judge really save himself from accusations of prejudgment and bias simply by giving the back of the hand to a large category of cases rather than just one?