Justice Scalia statement about Gitmo
HOWARD H SCHWEBER
hhschweber at facstaff.wisc.edu
Mon Mar 27 08:10:59 PST 2006
"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..."
On the one hand, so much for the idea of a "neutral magistrate." But more substantively, if Justice Scalia means what he is saying, doesn't that imply that Gitmo detainees should be treated as prisoners of war and hence entitled to full Geneva Accord protections?
Incidentally, I still want to hear any response to why the President's most recent signing statement does not cross the line to become Coleman nullification. In the earlier discussion on this list, various people adopted the OLC's position that a signing statement that expresses the President's understanding of a statute and its relation to his duties is proper.
But here we have a statement that directly contradicts a central provision of the statute. That is, the President has asserted -- more directly than on any prior occasion that I can think of -- the position that Congress lacked the authority to enact the notification provisions. (This position has been repeatedly asserted in Justice Dept. memoranda, but I don't think the President himself has so publicly taken this position before now.) This seems to me to create a perfect "impasse"; by definition, any action Congress takes in the form of further legislation to try to compel the President to abide by the notification provisions will be liable to rejection on the same grounds. Consequently, this seems to me a proper subject for judicial adjudication, and a proper basis for legislative standing even if one accepts the earlier arguments about the (unintended) latitude afforded under the AUMF, etc.
I raise this question seeking education, so I don't say something stupid on this subject to my students! Please feel free to write to me off-list if the general interest in the subject has been exhausted.
Dept. of Poli. Sci
Official Judge, 2005 City of Madison Halloween Costume Contest
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