Scalia Openly Condones Torture

By: Law is Cool · April 29, 2008 · Filed Under Administrative, Civil Rights, Constitutional Law, Criminal Law, Ethics, International Law, Legal Reform, Marketing/PR in Law, Pop Culture · 11 Comments

Creating a Legal Storm

US Supreme Court Justice, Antonin Scalia, made his first major television appearance this week on 60 Minutes.

Previously he has severely restricted media access, especially in his court, citing his,

First Amendment right not to speak on the radio or television when I do not wish to do so.

In 2004, he even had his security guards erase a recording of a speech he had made in Mississippi.

Scalia is a known controversial figure on the Supreme Court, going by the name Nino in reference to the storms he creates. He is often remembered for his objection to the Roe v. Wade ruling that allowed abortion in the U.S. in 1973.

He told 60 Minutes,

You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can�I was going to say it can split the baby! I should not use� A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change

Smartest Man on Supreme Court of US

Ed Lazarus, author of Closed Chambers, was interviewed by Brian Lamb in 1998,

LAMB: Who’s the smartest member of the Supreme Court now? Mr. LAZARUS: Oh, I don’t whether I could–you know, I don’t know what their IQ scores are. I will say this that–that Justice Scalia is a enormously powerful in–in–intellect. And he has a very powerful writing style. And he’s very sure of himself. And those factors combine to make him extraordinarily influential. He has a–a very steadfast view, although as I point out in the book, he–he’s not always consistent. But–but he puts forward a powerful ideology, and he’s–he’s quick as can be. And–and that makes him very influential.

Support for Torture

Perhaps Scalia’s greatest contemporary controversy is his recent support for the use of torture. In the 60 Minutes interview he stated,

STAHL: If someone�s in custody, as in Abu Ghraib, and they are brutalized, by a law enforcement person � if you listen to the expression �cruel and unusual punishment,� doesn�t that apply?

SCALIA: No. To the contrary. You think � Has anybody ever referred to torture as punishment? I don�t think so.

STAHL: Well I think if you�re in custody, and you have a policeman who�s taken you into custody�

SCALIA: And you say he�s punishing you? What�s he punishing you for? � When he�s hurting you in order to get information from you, you wouldn�t say he�s punishing you. What is he punishing you for?

Scalia’s ideas are infiltrating the Canada as well. At a conference in Ottawa last year, Scalia repeated these comments on a panel on terrorism and torture said,

Thankfully, security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?’

The statement was in reference to Scalia’s comments on the show,

Jack Bauer saved Los Angeles. … He saved hundreds of thousands of lives. …Are you going to convict Jack Bauer?. Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer? I don’t think so. ..So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.

And earlier this year, Scalia told the BBC,

You can’t come in smugly and with great self satisfaction and say ‘Oh it’s torture, and therefore it’s no good.’

You can’t?

Article 2 of the UN Convention Against Torture states,

Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
An order from a superior officer or a public authority may not be invoked as a justification of torture.

Ali on Think Progress cites Human Rights First, who point out torture raises other constitutional questions besides 8th Amendment violations:

[I]t seems Justice Scalia has forgotten about the 5th Amendment�s guarantee of due process. Furthermore, a court holding a witness in contempt for refusing to cooperate with a judicial proceeding is, in fact, quite different than an interrogator resorting to physical abuse when a prisoner refuses to talk.

Anne Applebaum dispels The Torture Myth in the Washington Post,

Just for a moment, let’s pretend that there is no moral, legal or constitutional problem with torture. Let’s also imagine a clear-cut case: a terrorist who knows where bombs are about to explode in Iraq. To stop him, it seems that a wide range of Americans would be prepared to endorse “cruel and unusual” methods.

She thinks people like Scalia should stick to their fictional television, and avoid making judgments on subjects they know nothing about.

Applebaum interviews an array of military specialists who say that torture simply doesn’t work, and would provide faulty intelligence,

Aside from its immorality and its illegality, says Herrington, torture is simply “not a good way to get information.” In his experience, nine out of 10 people can be persuaded to talk with no “stress methods” at all, let alone cruel and unusual ones. Asked whether that would be true of religiously motivated fanatics, he says that the “batting average” might be lower: “perhaps six out of ten.” And if you beat up the remaining four? “They’ll just tell you anything to get you to stop.”

Canadians are “idiots”

Scalia’s ideological basis is grounded in an “originalist” and “textualist” interpretation of the Constitution. He condemns judicial activism that introduces flexibility into the Constitution to allow for changing times and values.

Canada adopts the opposite approach, and a need for a broad and liberal reading of the Constitution to change with the times is Constitutionally entrenched.

Such flexibility has allowed for same-sex marriage in Canada, but also allowed women to sit in the Senate in Edwards v. Canada (Attorney General), also known as the Persons case, because women were finally legally deemed to be people too.

Privy Council cited Sir Robert Borden in Canadian Constitutional Studies in the Persons case,

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. Like all written constitutions it has been subject to development through usage and convention.

The danger in adopting Scalia’s rigid approach instead is openly apparent. NPR interviewed him yesterday and said,

By this logic, if capital punishment was constitutional in 1791, it would be constitutional today. Theoretically, this means that putting people in stocks in the public square, a punishment used in 1791, is also constitutional.

His response was,

I would say that may be very stupid, but it’s not unconstitutional, if indeed it was a punishment that was at that time accepted.

But a stupid argument is probably better than being called an idiot, which is what Scalia does for those who disagree with his Constitutional interpretation,

People who believe the Constitution would break if it didn’t change with society are “idiots.”

Publicity for Money, Or Avoiding Being Demonized?

All of this recent publicity for someone who has so strongly shunned and even attacked the media seems strange.

But the Law Times reports that his current media blitz is part of a recent (subsidized) strategy to improve his his image,

My kids have been working on me to get out and do more public appearances. They think it makes it harder to demonize you — and I agree.

It’s also probably no coincidence that on Monday he released his book, Making Your Case: The Art of Persuading Judges.

Adam Cohen claims in the New York Times that Scalia’s many antics, which also include obscene gestures and refusing recusal (due to conflict of interest), are bring disrepute to the highest legal institution in the most powerful country on Earth.

Cohen says,

More than any modern justice, Justice Scalia seems intent on presenting himself to the world as an outspoken champion of conservative values. But conservatives are people who believe in respecting and preserving existing institutions. There is nothing conservative about diminishing a great institution like the Supreme Court by making inflammatory and partisan off-the-bench statements and ignoring the rules of ethical judging.

And if you’re looking to avoid being demonized by the media and the public, being the poster boy for Abu Ghraib probably isn’t the best way to do it.