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On the eve of landmark arguments in a case asserting the legal rights of detainees at Guant�namo Bay, Cuba, Supreme Court Justice Antonin Scalia was asked Monday to step aside from the case because of remarks he made earlier this month on the issue. Authors of a major amicus curiae brief on the side of Guant�namo detainee Salim Hamdan said Scalia’s remarks during a speech in Switzerland “give rise to the appearance that, even before briefing in this case was complete, the justice had made up his mind about the merits.” The letter seeking recusal was sent to Supreme Court clerk William Suter late Monday with the request that it be passed on to Scalia. According to Court custom, a request for a justice’s recusal is addressed to the individual justice, not to the full Court, because it is the justice’s decision alone whether or not to recuse. No immediate response from the justice was forthcoming, making it likely that Scalia’s recusal decision will not be known until arguments begin Tuesday morning, and Scalia either remains seated or gets up and leaves the Court chamber. At a Supreme Court Historical Society event at the Court Monday night that featured Scalia, he made no comment about the controversy. Covington & Burling partner David Remes wrote the recusal letter on behalf of five retired generals and admirals whose brief he filed in the case Hamdan v. Rumsfeld, set for argument Tuesday morning. The military officials argue in their brief that American soldiers will be in jeopardy if the United States does not handle Guant�namo detainees according to the Geneva conventions. “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,” Scalia was quoted as saying during March 8 remarks in Switzerland. “Give me a break.” Scalia’s comments were first reported over the weekend on Newsweek‘s Web site and on Scotusblog.com. Newsweek also quoted Michael Ratner of the Center for Constitutional Rights, which represents many of the detainees, as saying, “This is clearly grounds for recusal.” Georgetown University Law Center professor Neal Katyal, who will argue the case Tuesday on behalf of Hamdan, has not commented on the recusal issue. The topic of Scalia’s talk was, “Does the U.S. legal system work?” and it was delivered at the University of Fribourg in Switzerland, where Scalia spent his junior year abroad nearly 50 years ago as an undergraduate at Georgetown University. Though some reports indicated it was a private talk, a university press release beforehand said the public was invited, and a videotape of the talk does not appear to have been made surreptitiously. The remarks that veered close to the Hamdan case came during the question-and-answer period afterward. “Foreigners, in foreign countries, have no rights under the American Constitution,” Scalia was quoted as saying. “Nobody has ever thought otherwise.” Without apparently specifying to whom he was referring, Scalia also 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 am not about to give this man who was captured in a war a full jury trial. I mean, it’s crazy.” Scalia’s son Matthew served in Iraq as an Army captain with the First Armored Division. The young Scalia, a 1995 graduate of the U.S. Military Academy, wrote about his experiences in the Oct. 25, 2004, issue of Legal Times. Remes’ letter makes reference to Scalia’s family connection to the war, suggesting that Justice Scalia’s remarks “create the appearance of personal bias arising from his son’s military service in Iraq.” Three years ago, remarks Scalia made in public got him in similar trouble, this time in a case challenging inclusion of the words “under God” in the Pledge of Allegiance. Scalia criticized the lower court ruling that said public-school children should not be forced to recite the pledge as written. He recused himself from the case at the request of California atheist Michael Newdow, who had brought the case before the court. Edward Whelan, a former Scalia law clerk who heads the Ethics and Public Policy Center, said in a column on National Review Online on Sunday that the two situations were different. Whereas Scalia had commented on the actual Pledge of Allegiance ruling that was being appealed to his Court, his comments about enemy combatants were more general, not focused on the specific case before him, in Whelan’s view.
Tony Mauro can be contacted at [email protected].

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