FEBRUARY 25, 2008  

Tortured Logic: Scalia's Remarks at Odds With Constitution


By John Burton
This article appears on Page 6.

      In a radio interview broadcast Feb. 12 in Great Britain, U.S. Supreme Court Justice Antonin Scalia stated that nothing in the Constitution prohibits federal agents from using torture while questioning their captives.
      The media buried the story, and none of the leading presidential candidates, despite recent revelations of CIA waterboarding, had anything to say about it.
      Appearing on the BBC Radio 4 program "The Law in Action," Scalia told Clive Coleman, "The United States Constitution gives rights to Americans wherever they are and to foreigners who are in America, who are in the United States. It doesn't give rights to everybody in the world."
      Scalia was responding to a question about Guantánamo Bay.
      "I don't have a warrant to go investigating the actions of my country throughout the world to see whose rights they've violated," he said. "I mean, there may be some natural law up there in the sky, but the American Constitution doesn't give rights to these people ... [T]he text of the Constitution does not confer rights on people of the world."
      It does little to advance the image of the United States abroad for a sitting justice of the Supreme Court to assert that the Constitution allows federal agents to go anywhere outside the United States and do whatever they want to non-U.S. citizens, who have absolutely no remedy whatsoever for their mistreatment in any U.S. court.
      Coleman, obviously somewhat flabbergasted, then asked Scalia his opinion on torture, saying that the Eighth Amendment's prohibition of "cruel and unusual punishment" would seem to make the issue "a no-brainer."
      Scalia disagreed. Referring to "so-called torture," he said, "Smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles" would not violate the Constitution. Coleman pointed out the argument's premise - that government agents would just happen to be holding captive someone with exactly the information needed to diffuse a ticking bomb - was highly unlikely. Referred to "sticking needles under his fingernails" to get information, Coleman asked Scalia, "You think that should be allowed?"
      "It would be absurd to say that you cannot use something under the fingernails, smack him in the face, it would be absurd to say you couldn't do that," Scalia responded. He added, "I certainly know you can't come in smugly and with great self-satisfaction and say 'Oh, it's torture and therefore it's no good.'"
      Scalia then broadened the hypothetical scenario where he would sanction torture: "It may not be a ticking bomb in Los Angeles but it may be, 'Where is this group we know is plotting some very painful action against the United States? Where are they and what are they currently planning?'"
      Scalia did not indicate, however, what government officials might be granted the extraordinary powers to decide which group's members might be lawfully subjected to torture to discover their plans. Given the tenor of recent high court decisions, he and certain of his brethren would likely find that power to reside exclusively in the executive branch and its exercise to be beyond the scope of any legislative control or judicial review.
      Scalia's use of extreme rhetorical fantasies about ticking bombs to set up arguments of "necessity" and "public good" as justifications for denying a democratic right as basic as the freedom from torture has been the stock in trade of every despot in history. His views are antagonistic to the most fundamental democratic principles on which the United States was established.
      Obviously, it is not just the Eighth Amendment prohibition against "cruel and unusual punishment" that condemns torture, but also the Fifth Amendment provisions barring self-incrimination and guaranteeing due process. These two clauses of the Bill of Rights, taken together, were clearly intended to bar the government from wanton infliction of pain for any purpose.
      Patrick Henry, among the most eloquent of the founders, once said that if the Constitution were to be ratified without the Bill of Rights, the new government "may introduce the practice of ... torturing, to extort a confession of the crime. They will ... tell you that there is such a necessity of strengthening the arm of government, that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone."
      The Supreme Court made this same point more than seventy years ago in
 Brown v. Mississippi, 297 U.S. 278 (1936): "Coercing the supposed state's criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief inequity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The constitution recognized the evils that lay behind these practices and prohibited them in this country."
      The silence following Scalia's statements has been deafening. The evening newscasts and cable networks did not report them. Aside from burying dispatches from the Associated Press and Reuters in inside pages the day after the broadcast, none of the major U.S. newspapers reported them. None of the three leading presidential contenders commented on Scalia's defense of torture, despite the high likelihood that the next president will have appointment opportunities that could significantly affect the future trajectory of the Supreme Court.
      This sorry state of affairs did not happen overnight. For the last six years, the population of the United States has been subjected to a relentless government and media barrage juxtaposing protection from terrorist attacks against the maintenance of basic democratic rights. People are constantly being told that the so-called "war on terror" cannot be waged successfully within the confines of constitutional protections from unreasonable searches, coerced confessions and cruel punishments.
      The end result is that today a sitting justice can endorse torture without fearing calls for his resignation or impeachment.

 John Burton is a Pasadena-based civil rights attorney.


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