Five retired generals and admirals, taking part as friends-of-the-court in the war-on-terrorism case of Salim Ahmed Hamdan, on Monday asked Justice Antonin Scalia to step aside when the Supreme Court considers Hamdan’s challenge to the war-crimes tribunals named “military commissions.” Hamdan v. Rumsfeld (05-184) is to be argued Tuesday.
In a three-page letter to the Court’s clerk (available here), the attorney for those individuals argued that “Justice Scalia ahould recuse himself from further participation in this case in light of remarks that the Justice made earlier this month at the University of Fribourg in Switzerland. Those remarks, since widely publicized, give rise to the unfortunate appearance that, even before the briefing in this case was complete, the Justice had made up his mind about the merits.”
Hamdan’s own attorneys have not asked the Justice to recuse. In response to queries, his lawyers issued this statement: “Hamdan’s counsel have been asked regarding our position on the recusal of Justice Scalia from the case in light of the letter suggesting recusal that was filed today. We take no position on the issue.”
Under the Court’s usual procedures, such a request is not formally docketed, but is simply “received,” and may be passed on to the Justice who is challenged. It is up to that individual Justice to decide whether to recuse or to take part. Justice Scalia, challenged for out-of-court remarks he had made about the Pledge of Allegiance litigation, did recuse himself from the Court’s ruling on that issue in June 2004. But, challenged over a hunting trip he had made with Vice President Cheney, Scalia declined to take himself out of a case involving the government energy task force that Cheney had chaired; that case, too, was decided in June 2004.
The new challenge was filed by David H. Remes of Covington and Burling, who is counsel for retired generals David M. Brahms and James P. Cullen and retired admirals Lee F. Gunn, John D. Hutson and Donald J. Guter.
Remes said that Scalia’s comments in Switzerland “also give rise to the unfortunate appearance that the Justice may bring to this case a personal animus toward Petitioner and those similarly situated arising from the military service of the Justice’s son in Iraq. In a case that is fundamentally about fair process, it is especially important that this Court’s own process be perceived to be fair.”
The letter recited an account of Scalia’s remarks in the online site of Newsweek magazine. The retired military officers are taking part in the case to support Hamdan’s challenge to military commission procedures based on the 1949 Geneva Convention.
The letter concludes” Amici respectfully submt that, at the very least, Justice Scalia’s impartiality ‘might reasonably be questioned’ in this case based on his remarks at the University of Freiburg and that the Justice;’s remarks may violate Canon 3-A-6 [of the Code of Conduct for United States Judges.” It suggests that Scalia’s comments make it appear that he had made uphis mind about the Geneva Convention issue, and that he has a personal bias because of his son’s military service.
Scalia has no obligation to respond to the letter. Indeed, the only indication of a reaction could be whether he remains on the bench Tuesday after the Court finishes the scheduled first argument, and prepares to hear the Hamdan case.
If Scalia were to step aside, it would mean that the case would be heard by only seven Justices, since Chief Justice John G. Roberts, Jr., is not taking part, having served on the D.C. Circuit Court panel that upheld the war crimes tribunals.
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