Supreme Court Justice Antonin Scalia was asked Monday to stay out of a case involving a foreign detainee because of remarks Scalia made about the rights of enemy combatants.
Speaking at the University of Freiberg in Switzerland on March 8, Scalia said foreigners waging war against the United States have no rights under the Constitution.
Justices were hearing arguments Tuesday in the case of Salim Ahmed Hamdan, a former driver for Osama bin Laden. His lawyers argue that President Bush overstepped his authority when he ordered Hamdan and other alleged enemy combatants to face special military trials.
Hamdan’s lawyers have not called for Scalia to step aside. Instead, five retired generals who support Hamdan’s arguments sent a letter late Monday to the court with the request that Scalia withdraw from participating in the case. They say Scalia appears to have prejudged the case.
The retired generals said Scalia’s speech in Switzerland “give rise to the unfortunate appearance that … the justice had made up his mind about the merits” of Hamdan’s arguments.
In the speech, first reported by Newsweek, Scalia repeated his views from 2004 that enemy combatants held at Guantanamo Bay, Cuba, should not have access to U.S. courts and traditional legal rights.
The retired generals said that the justice may have “personal animus” to the Hamdan case because he has a son who served in the military in Iraq.
Justices decide for themselves whether they have conflicts and should stay out of cases.
Two years ago, the Supreme Court ruled that the detainees could use U.S. courts to challenge their detention. Scalia disagreed with that ruling, and in the recent speech repeated his beliefs that enemy combatants have no legal rights.
The Hamdan case will go forward without Chief Justice John Roberts, who had voted in the case as a lower court judge.
The letter came from five retired generals and admirals: Navy Rear Adm. Donald J. Guter; Navy Rear Adm. John D. Hutson; Vice Adm. Lee F. Gunn; Marine Brig. Gen. David M. Brahms; and Army Brig. Gen. James P. Cullen.
© 2006 The Associated Press