Tuesday, March 28, 2006


Justice Scalia, Hamdan and some retired military officers

If some people had their way, Justice Scalia would have to recuse himself from every case so I don’t take seriously such calls. But the Washington Post’s Charles Lane does and writes up one such push for recusal by a group of retired military officers. (Their brief can be found here)

“The retired officers are Brig. Gen. David M. Brahms, Brig Gen. James P. Cullen, Vice Adm. Lee F. Gunn, Rear Adm. John D. Hutson and Rear Adm. Donald J. Guter. They have filed a friend of the court brief in the case opposing the military commissions, on the grounds that denying Geneva Conventions protections to detainees at Guantanamo Bay could result in their denial to U.S. troops by their captors abroad.”

A few comments: A list of retired officers is always impressive when it is made up of flag rank retirees but this list contains some familiar names. All five were signatories to a Letter to the Editor to Stars & Stripes in January 2005 expressing opposition to Alberto Gonzales’ nomination to be Attorney General. (January 25, 2005 Letter to the Editor) BG Brahms and Admiral Hutson co-signed another letter in December 2005 opposing efforts to strip federal courts of jurisdiction over habeas corpus petitions filed by Gitmo prisoners (Protect Habeas Corpus at Guantanamo). Adm. Gunn publicly endorsed John Kerry in the 2004 election ( "12 Generals and Admirals Endorse John Kerry..." ) All but Adm.Gunn were military lawyers.

This is not meant to impugn these men. As a Navy man myself, I respect and appreciate what they did and the success they had in their profession. But they are not typical of the military. A career as a military lawyer is an entirely different perspective than that of a line officer trained for combat (although, to be fair, Adm Gunn was a Surface Warfare Officer and others did see combat). And I think their history of partisanship on this issue does taint their call for Justice Scalia’s recusal and he is correct not to recuse himself

Finally, their position on this issue is one of policy not legal process. On the face of it, their position that how we treat our Gitmo captives could impact how our soldiers are treated is not an unreasonable one. But whether they should be afforded GC status is a different question than whether they are legally entitled to it. The Supreme Court should not be addressing such policy arguments as the Justices have no demonstrated competence in this arena.

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