O Justice, where art thou?

Whatever decorum, discretion, and restraint that used to mark Supreme Court justices (at least, as one thought) seems to be dissipating rapidly. From Mr. Alito's thank you note to James Dobson, to speeches by Ms. Ginsburg and Mr. Scalia and Ms. O'Connor (who at least is speaking now from retirement), there seems to be a sea change.

Today comes word, yet again, from Mr. Scalia. According to Newsweek:

During an unpublicized March 8 talk [a big, 1 hour audio-video file!] at the 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."

Newsweek, reasonably, raises the issue of whether or not Scalia should recuse himself from an upcoming case this week, Hamdan v. Rumsfeld, that contests what legal rights Guantanamo detainees deserve or should have.

But that is not what strikes me. Rather it is Scalia's perception that apparently all Guantanamo detainees are "combatants", who were "captured . . . on a battlefield", where they were "shooting at my son".

First, I will give him the benefit of the doubt that he does not think all of them were specifically targeting his own son. Nevertheless, it is astounding how he personalizes this. Recusal may be appropriate on the basis of his making these comments at all, but this personal, felt connection to the case itself seems sufficient grounds for him to step back all by itself. Victims give evidence in the trial of their assailant: they do not serve on juries; they do not serve as judges.

Secondly, how does Mr. Scalia know that these detainees, particularly detainee Hamdan, were combatants captured on a battlefield? By most accounts that is not so. According to a recent article by Tom Malinowski, Washington advocacy director of Human Rights Watch, for example:

Fewer than half were caught on battlefields in Afghanistan or by U.S. troops. A majority were turned over by Pakistan (often for cash bounties). Few "combatants" are even accused of having fought. Many are held simply because they were living in a house associated with the Taliban or working for a charity linked to the group.

One might give the military and its civilian leadership in The Regime the benefit of the doubt in waging war against an unconventional foe, where the term "battlefield" becomes more nebulous. ("War is war"-- but not always.) But it is precisely here that the issue of legal rights comes up. How do we know these non-uniformed, not captured-in-actual-battle people are enemy combatants? Their case is more like that of an accused criminal than that of a conventional uniformed soldier. They need a trial, a fair trial, to determine the appropriateness of their status as P.O.W., or whatever.

The standard rules do not apply very clearly. Mr. Scalia's son may have been shot at. One can understand his feelings. But Mr. Hamdan has a father, too. Do we know that Mr. Hamdan was shooting or preparing to shoot at anyone? Is there a fair and recognizably just procedure by which this can be determined? This is the question to be answered and the issue to be addressed. But Mr. Scalia seems already to know the final outcome without benefit of a hearing. Convict first; ask questions later. In Mr. Scalia's case, it is not the question of justice in military tribunals about which we have to worry, but rather whether justice can be served in the Supreme Court.

All Mr. Scalia usually seems prepared to do is to apply this rule or that to a case and not ask the bigger questions about what is right. This time, he doesn't even need evidence. Recuse? Nah. Resign. Mr Scalia, you may be a lawyer and a sitting member of the Supreme Court, but you do not merit the title "Justice". Mr. Scalia, I hold you in contempt.