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.
good article!
The dictionary defines punishment as “severe, rough, or disastrous treatment” as well as Scalia’s definition. Torture certainly falls in this category. Scalia’s argument is hogwash.
It’s plain that you’re made unsettled or horrified by many of Antonin Scalia’s views, but you don’t make an argument. You quote his remarks as if they’re self-evidently irrational or evil, so that of course you don’t even need to say what’s wrong with them, let alone make a counter-argument. You’ve written a carefully restrained little piece in which, without really saying much, you appeal to the shared prejudices of readers similar to yourself, so as to be sure of their favorable reception of your article. But do you understand that you can’t win an argument without making one?
Law is Cool: Thank you for your comments. There is actually very little controversy on this subject among the experts. It seems it is only the general public, and a few members of the judiciary, that are confused.
The Torture Myth, cited in the article, does address Scalia’s perspectives in greater depth.
We also cited Canadian doctrine that is largely incompatible with his philosophy for legal comparative purposes.
The Center for Victims of Torture outline 8 simple reasons why it does not work:
1. Torture does not yield reliable information
2. Torture does not yield information quickly
3. Torture will not be used only against the guilty
4. Torture has a corrupting effect on the perpetrator
5. Torture has never been confined to narrow conditions
6. Psychological torture is damaging
7. Stress and duress techniques are forms of torture
8. We cannot use torture and still retain the moral high ground
But if you are looking for more detailed information beyond what we provided in the post, we can also direct you to Robert Fisk of the Independent, who shows that historically torture has not worked either. Darius Rejali goes further, and demonstrates that often cited examples of successful torture are actually misleading.
Here’s a rebuttal to CIA Director Michael Hayden’s claims that torture is effective:
Jeannine Bell, a Professor at Indiana University School of Law, states in One Thousand Shades of Gray: The Effectiveness of Torture,
But perhaps you would heed Brig. Gen. David R. Irvine, who taught prisoner interrogation and military law for 18 years, and is currently a lawyer,
He goes through a number of contemporary cases where information gained through torture has been erroneous and misleading, wasting time and resources of the intelligence community. But he also points out broader concerns,
There is a sense of irony here, in that the country claiming to fight people that hate its freedom (they do not) is also the only Western nation openly employing and advocating the use of barbaric torture practices that are only prevalent in the nations it seeks to “enlighten.”
Former FBI Interrogator Jack Cloonan says that torture does not help collect intelligence. Instead, it actually legitimizes terrorism, and gives them more reason to fight an enemy:
So this is the type of material and resources we are using to draw our conclusions.
What exactly is Scalia using, aside from his favorite Tuesday night sitcom?
You lost me at “experts.” The nature of expertise is a problem I’m not aware has been solved. When I find statable rules of expertise with which it seems good to agree, I will apply them myself to determine who is and is not expert, in what way, and to what extent–if, indeed, expertise can be in any way partial.
Law Is Cool: Fair enough.
Is it adequate to say that those in the field overwhelmingly oppose the practice? Or can we go on empirical evidence alone, and see where the balance lies? In either case, we did provide more depth and substance beyond the brief article initially presented.
Your own subjective perspective of assessment is not conducive to any sort of common ground.
“You lost me at “experts.” The nature of expertise is a problem I’m not aware has been solved. When I find statable rules of expertise with which it seems good to agree, I will apply them myself to determine who is and is not expert, in what way, and to what extent–if, indeed, expertise can be in any way partial.”
huh? What exactly are you stating? In terms you may understand: eschew obfuscation please.
http://www.washingtonpost.com/wp-dyn/content/article/2008/04/28/AR2008042802982_pf.html
Law is Cool: Thank you for the link. We assume this is the passage you are referring to:
This only appears to substantiate that Scalia’s position on torture is not in accordance with best practices. We have briefly referred to some of the procedural concerns at Guantanamo Bay previously.
Scalia didn’t directly endorse torture. And what happend at Abu Graib wasn’t any worse than your standard football team hazing ritual at an American college. These were jail guards on a power trip. (Gee, like that never happens in jails all over the World everyday.).
But to your other point, torture works. It is well documented that the Soviet Union, the Nazis, the East-German Stasi, and Pinoche’s Junta (to name a few) used it to great effect in order to get people to inform on their associates. And don’t think that Canadian soldiers didn’t use a few dirty tactics at the end of WWII to get information on where Nazi arms caches were located.
The problem with torture is that it’s like a new tax. The state will always introduce a new tax making it sound like it’s a temporary measure, or to solve a specific problem. (McGuinty’s Health Premium comes to mind.). However, before long, the new tax becomes a permanent fixture that feeds into the general revenue of the state. Once the state starts torturing one segment of society, it won’t stop torturing. It will always find a new enemy to torture, until everyone is finally at risk. The state should never be given the power to torture.
Law is Cool: We would be interested in seeing your “documentation” that torture works. All the academic material we see says otherwise.
It is interesting that you would advocate tactics adopted by the “Soviet Union, the Nazis, the East-German Stasi, and Pinoche’s Junta.”
My post above clearly indicates that I do not advocate torture. I wrote: “the state should never be given the power to torture.”. I don’t know where you get the impression that I advocate torture.
As for documentation that torture works, one need only read real-life accounts of persons who lived in the Soviet Union, for example. There are a myriad of those. I recall the autobiography of a British doctor who was tortured by Pinoche’s secret police using electric shock in Chile. She describes the whole process, how she tried to hold out from giving information. Eventually, she could no longer, and she gave them the names of her associates who were allied with Allende.
You cite “academic material” as proof that torture doesn’t work. How is a university laboratory supposed to replicate a torture session? I’d like to see your “documentation” that torture doesn’t work.
Law is Cool: The opposition to torture is not only based on its lack of morality, but also its lack of effectiveness.
University labratories are not needed to demonstrate that torture doesn’t work – we have many real life cases.
See the sources listed above, including Prof. Bell‘s work.
I don’t want to get in on the debate about whether torture does or does not work. I’ll just focus on Scalia’s argument. Let me know what you folks think.
Here’s my issue. Scalia is basically saying that the constitution does not allow torture of prisoners in a punishment context. No “cruel and unusual punishment.” So once an individual is an a penal environment or has been found guilty of a crime, it is not constitutionally acceptable to subject that individual to physical or psychological violence.
So, in the penal context, it’s not ok. But what Scalia’s saying is that in the NON-penal context, it’s totally fine. He may or may not be explicitly condoning torture, but he’s at the very least saying that it’s constitutional to do it to someone who is not a prisoner being punished.
Scalia’s an originalist. Therefore, it seems to me that he’s suggesting that the framers of the constitution thought it unreasonable to subject someone who is guilty of a crime to cruelty, but that it is perfectly reasonable to subject someone who has NOT been found guilty of a crime, and therefore presumed innocent, to cruelty.
Clearly this cannot be correct. This is not what those who signed the constitution intended.