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On the eve of landmark arguments over the legal rights of detainees at Guant�namo Bay, Cuba, Supreme Court Justice Antonin Scalia is facing controversy over remarks he made earlier this month that some interpret as showing his hand on the issue. “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.” The Court will hear arguments Tuesday in Hamdan v. Rumsfeld, a challenge to the system of military commissions President George W. Bush created as the way to handle enemy combatants. Salim Hamdan, allegedly a former chauffeur for al Qaeda leader Osama bin Laden, was captured in Afghanistan in November 2001. 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.” 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, a sister publication of The National Law Journal. 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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