Scalia Criticizes Europe on Gitmo

Justice Antonin Scalia reportedly told an overseas audience this month that the U.S. Constitution does not protect foreigners held at America's military prison in Guantanamo Bay, Cuba.

Scalia also told the audience at the University of Freiberg in Switzerland that he was "astounded" at the "hypocritical" reaction in Europe to the prison, said this week's issue of Newsweek magazine.

The comments came just weeks before justices were to take up an appeal from a detainee at Guantanamo Bay.

Justices will hear arguments Tuesday on Salim Ahmed Hamdan's claim that President Bush has overstepped his constitutional authority in ordering a military trial for the former driver of al-Qaida leader Osama bin Laden, held at the prison for nearly four years.

Two years ago, the Supreme Court ruled that the detainees could use U.S. courts to challenge their detention. Scalia disagreed with that ruling, and in the recent speech repeated his beliefs that enemy combatants have no legal rights.

"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," Newsweek quoted Scalia as saying in the speech. "Give me a break."

Scalia's dissent in the Rasul v. Bush case in 2004 said:

"The consequence of this holding, as applied to aliens outside the country, is breathtaking. It permits an alien captured in a foreign theater of active combat to bring a petition against the secretary of defense ... Each detainee [at Guantanamo] undoubtedly has complaints — real or contrived — about those terms and circumstances ... From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the executive's conduct of a foreign war."

Newsweek said Scalia was challenged by an audience member in Switzerland about whether Guantanamo detainees have protection under the Geneva or human rights conventions. He 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 said.

Scalia's son Matthew, served in Iraq.