During an unpublicized March 8 talk at the University of Freiburg in Switzerland, Scalia dismissed the idea that the detainees have rights under the U.S. Constitution or international conventions, adding he was "astounded" at the "hypocritical" reaction in Europe to Gitmo. "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," he says on a tape of the talk reviewed by NEWSWEEK. "Give me a break." Challenged by one audience member about whether the Gitmo detainees don't have protections under the Geneva or human-rights conventions, Scalia shot back: "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."One assumes that by March 8 Justice Scalia had the briefs in Hamdan v. Rumsfeld and knew the basic facts. Here are some legitimate questions about those facts:
1) Where is the "battlefield"?
2) Under what conditions were "detainess" (why can't we just call them "prisoners"?) captured? It is widely accepted by now that Americans are paying for information leading to the capture of "insurgents" and "terrorists," and everyone is playing that game by turning in their enemies and their rivals. For those inclined to be skeptical of such reports, I would remind you that Aparasim Ghosh works for TIME Magazine.
3) On what grounds are they being held? Most face no charges, have no appeal, can't even get representation by counsel, and are being held "for the duration of the war." And how long with this war on evil last? Until the Last Trump?
4) Who determined whether or not they were "combatants"? George W. Bush? A soldier on the "battlefield"?
5) Are we really determined to ape the Roman Empire to the point of having one law for citizens, another for "detainees" and "enemy combatants"? Is that how we promote democracy and "let freedom reign"? By making sure democracy only covers certain people, and freedom leaves us free to do as we damned well please?
6) Why does everyone hate the Geneva Conventions?
7) If the statement "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," is not grounds to demand recusal, what is?