Supreme Court Justice Antonin Scalia has raised his voice over the recent release of the Senate’s torture report. This report revealed that the CIA used far harsher methods than previously reported on terrorism suspects and failed to report it fully to the George W. Bush Administration. The public response has been outrage. The response from Scalia is that it is not a big deal.
Scalia has even taken the position that the Constitution does nothing to prohibit torture.
“We have laws against torture. The Constitution itself says nothing about torture. The Constitution speaks of punishment. If you condemn someone who has committed a crime to torture, that would be unconstitutional.”
Scalia suggested that if the stakes are high enough then torture is acceptable.
“We have never held that to be contrary to the Constitution. I don’t see any article of the Constitution that would contravene—listen, I think it’s very facile for people to say, “Oh, torture is terrible.” You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person?”
There is so much wrong here that it is difficult to count.
First, let’s look at the feasibility of torture. This age-old violation is very effective at getting confessions. There is no doubt about that. Of course, there is no way of knowing if the confession is true, completely made up or confessed because it is what the torturer wants to hear. Torture someone long enough, and that person will confess to any crime in history. All the tortured wants is for the torture to stop. Creating pain is not a truth serum. Indeed, it is the opposite. Lies are spat forth in dire attempts to get the pain to cease.
It is one of the favorite arguments of torture supporters that torture is justified when a secret nuclear bomb has been planted in a large city. In Scalia’s example, that is Los Angeles. According to Scalia and the rest of the pro-torture backers, the only way to uncover this ticking nuclear bomb is to torture the person who knows where it is.
Actually, this is one of the least likely incidents where torture will work. If there are 24 hours to go before the detonation, all the terrorist needs to do is keep confessing to fake sites. First, it is at site “A.” Next, it is site “B” or “C” or “D.” All along the clock ticks toward zero. While one site is checked, crucial time slips away. If the torturers keep torturing while a site is checked out, the terrorist knows that he only needs to hold out for a few more hours to achieve his goal. He has no incentive to tell the truth because the torture isn’t going to stop anyway. The torturers have no way of knowing what is true and what is lie, so they just keep torturing. The terrorist is going to continue to be tortured until the bomb detonates. No one is going to crack a true believer by torture when a clock is ticking to destruction. Of all the incidents where torture may be used, one with a time limit is the least likely to succeed.
Back to the Constitution, Scalia wants people to believe that there are no protections in the Constitution to prohibit torture. He specifically refers to the Eighth Amendment, which reads:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
To a certain degree, Scalia has a point there. Cruel and unusual punishments are prohibited under the Constitution. The key word here is punishment. Punishment is usually identified as what a court metes out. According to Scalia, since a court wouldn’t have rendered a verdict on someone detained on charges of terrorism, then the Eighth Amendment clause prohibiting cruel and unusual punishment need not apply.
Yes, this is a member of the Supreme Court, and one of its more influential members at that, specifically stating that the Constitution is ready to give a nod and wink to pulling out someone’s fingernails or waterboarding them as long as they are not convicted of a crime.
Torture is scary, but Scalia’s ignorance, or more likely, his willingness to twist the Constitution into anything he wants it to read is what is even scarier.
There are some who believe that if the terrorist is a non-citizen, then the Bill of Rights doesn’t apply any way. Think again. The Bill of Rights repeatedly refers to “people” not “citizens.” This is a primary reason that terrorism subjects are kept in places like Guantanamo Bay. Even the torture advocates realize that if suspects are brought onto American soil, then there is no way that they can be denied the Bill of Rights.
The Bill of Rights, through previous court interpretations, refutes Scalia’s assertion that torture is okay under the Constitution. Courts have long ago determined that torture is a violation of the Fourth Amendment’s right to unreasonable search or seizure. It is also a violation of the Fifth Amendment’s right against self-incrimination. It can also be added in that torture is a violation of the Fifth and Fourteenth Amendment’s guarantee to due process. In addition, anyone who thinks that the Founding Fathers intended for prohibitions against torture on people who are convicted of crimes, but allowed the torture of someone who is merely a suspect should apply for an internship under Scalia. He is looking for sycophants like you to lick his boots.
Then there are an entire range of international documents that prohibit torture and ill-treatment of prisoners that the U.S. has ratified and many carry the force of law . These include the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment.
For those who think that terrorism suspects are prisoners of war and not criminals so that none of this applies, there is the Geneva Convention. Torture is not an acceptable action to inflict on any POW. Of course, if terrorism suspects were really POWs, then there wouldn’t be criminal prosecutions against terrorism. Over the last few years, American officials have tried to have it both ways. Terrorists are criminals so the Geneva Convention doesn’t apply; terrorists are POWs so the Bill of Rights doesn’t apply.
Terrorists are not nice people. They are disgusting, vile scum. Yet, if there is not enough evidence to hold and convict them, then how can anyone be sure that the right person is being detained? Once convicted, they should never be left to wander freely. These aren’t the common criminals who are seeking to steal a buck and live the good life. These are die-hard fanatics who want other people dead because it fits their self-righteous ideology.
However, the greatest danger is not from the terrorists. It comes from people like Scalia who are ready to surrender the long-held rights of Americans so that they can create an America of one nation, under God and torture available for all.
The fact is that America has tortured people and broken its covenant as a freedom loving country that respects human rights. We have embarked upon an extraordinarily dangerous road. If terrorists can be tortured because of what they might know, then what stops torturing someone who is part of a conspiracy to murder many people? What prevents the torture of someone who has made plans to murder someone? Or rape someone? Or burglarize and burn a business or home? Once torture is allowed constitutionally for a single extreme case, what prevents it from being part of regular police work to combat crime? Absolutely nothing.
That is why Antonin Scalia’s recent thoughts should give pause for every American. One of the nine people who interpret the Constitution has just announced that the Constitution doesn’t protect you from torture. That is as scary as the threat from any terrorist.