Antonin Scalia's Principles

One of the most awkward intruders into policy debate is the "matter of principle." Utilitarian arguments can be dismissed as irrelevant because "it's a matter of principle." There is nothing necessarily wrong with this, but it can be difficulty to understand other people's principles sometimes. To one who disagrees, it can be very hard to understand why any issue, from rejection of torture to unrestricted access to guns could be an all-important moral principle regardless of consequences.

Which leads to the subject of Justice Antonin Scalia. During recent arguments about Guantanamo detainees in the case of Boumediene v. Bush, Scalia made it clear (as he has in the past) that a critical matter of principle was at stake for him; his determination to restrict human rights to US citizens and residents. Hearing arguments, he repeatedly asked, "Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?"

Scalia's determination to restrict basic rights to citizens is well established. In the case of Hamdi v. Rumsfeld (involving a US citizen captured in Afghanistan), Scalia was emphatic. The streamlined procedure Sandra Day O'Connor set for to determine whether Hamdi was an enemy combatant violated his right of due process as a citizen. A US citizen captured and accused of fighting for the enemy must be either tried for treason, with full protections of the criminal justice system, or released. Not coincidentally, the streamlined procedure O'Connor proposed could have been made available to non-citizens challenging their detention as well. A full criminal trial for every captured enemy soldier would, of course, be impossible. By setting such high standards, Scalia was taking care to restrict his protection to US citizens.

In the cases of Hamdan v. Rumsfeld and Rasul v. Bush, Scalia was positively outraged that his colleagues would allow non-citizens detained outside the US access to our courts, calling it a "monstrous scheme." To Scalia, the issue is simple. Our detainees at Guantanamo are non-citzens being held outside the US and have been declared "enemy combatants" by the executive. No further argument is allowed (at least in court). To suggest such people have any enforceable rights would be "monstrous."

Presumable Scalia does not see anything "monstrous" in holding people taken far from the theater of combat, whose ties to our enemy is questionable. Or in holding a man as an enemy combatant for nearly four years after he was determined not to be. Nor in the widespread allegations of abuse at Guatanamo. To Scalia, all these are subordinate to an all-important principle: non-citizens declared the enemy and held outside the US must not be given access to our courts.

In fairness to Scalia, he has legitimate concerns what would happen to our ability to fight wars if every prisoner of war taken could challenge his status in federal court. As he put it in Rasul, "Over the course of the last century, the United States has held millions of alien prisoners abroad. . . . A great many of these prisoners would no doubt have complained about the circumstances of their capture and the terms of their confinement. The military is currently detaining over 600 prisoners at Guantanamo Bay alone; each detainee undoubtedly has complaints--real or contrived--about those terms and circumstances." Giving real or alleged captured enemies access to the courts may tie the military up in endless trials and evidentiary issues.

In the fog of war it is entirely reasonable for the Army, when in doubt whether it has captured an enemy fighter or a non-combatant, to err on the side of detaining rather than releasing the captive. There is nothing wrong with that provided that (1) detention is temporary, until the detainee's status can be determined, (2) the procedures for determining status are fair, and (3) the detainee is treated humanely in the meantime. At Guantanamo, none of these conditions have been met. Scalia doesn't care.

But many military people do. The military has well-established procedures for dealing with people who may or may not be the enemy, set forth in Army Regulation 190-8. A group of retired military offices has submitted a brief to the Supreme Court on the subject. Regulation 190-8 requires that in case of doubt a hearing must be held before a competent tribunal "shortly after capture." All prisoners are to be given the privileges of a prisoner of war until status is determined. Anyone found to be an innocent civilian must be released. Confusion about who is or is not a combatant is common during war; the brief reports that "[I]n the 1991 Gulf War, nearly 1,200 hearings resulted in the release of about 75% of those initially detained."

The retired military officers criticize the procedures used at Guantanamo on four grounds:

(1) Pressure from command prevents impartial decision;

(2) Evidence obtained by torture is allowed, contrary to the Geneva Conventions;

(3) Military necessity requires an extremely abbreviated procedure for battlefield status hearing. There is no such necessity in the case of prisoners held thousands of miles from the scene of combats, years after their capture.

(4) Anyone unjustly found to be an enemy combatant faces detention, not for a war of limited duration, but for a multi-generations "War on Terror."

(Justice Stevens made similar comments in his partial dissent in Hamdi.)

In short, Justice Scalia's fears are unfounded. The courts are being involved only because the Bush Administration is refusing to follow long-established military procedures for handling prisoners. There is no sound reason why it cannot return to them.

He may have a point, however, in the question of whether such procedures are required by constitutional law.