Scalia says: Torture is OK
Posted 2 years 5 weeks ago byThe above headline is what most people will take away from this story about an interview Supreme Court Justice Antonin Scalia gave to BBC radio today. But what Scalia is really saying is that the Constitution is not a suicide pact, and that in the event of a "ticking bomb" situation, physical interrogation is not "torture," but legally and morally sound. Although, I must admit, that I am tickled with his use of language when discussing the constitutional context of cruel and unusual punishment:
"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?" he asked.
"It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game" Scalia said. "How close does the threat have to be? And how severe can the infliction of pain be?"
And lest you think the ultra-conservative Scalia is frighteningly outside the mainstream on this issue, John McCain, Hillary Clinton and Bill Clinton are on board with the "ticking bomb" rough-housing exception -- even if they're conveniently squishy about it.
This is an important question that Congress does a lot of preening about while adding little to the debate. They haul AG Mike Mukasey to Capitol Hill and berate him over waterboarding, but have not explicitly banned it despite several opportunities. And into the vacuum rush people to absurdly declare everything from "stress positions" to slapping the belly of a terrorist detainee as torture.
Now, I'm among those who think it best if Congress simply stays out of this subject –- especially when the biggest concern of congressional leaders a few years ago was whether even waterboarding (which usually lasts less than a minute and does no permanent damage) was a tough enough.
Laying out, publicly, the details of every vital interrogation technique only helps our enemy train to resist it. There is zero credible evidence that Gitmo is some sort of torture chamber, or that rough interrogation techniques are even all that common. U.S. military personnel are trained to treat humanely even the most hardened terrorist detainees -- and those who violate policy suffer harsh punishment.
In a time of war, where timely intelligence gathering is everything, let's just have a little faith in the humanity of our armed forces and leave it at that.
Thoughts
Why torture is constitutional
Submitted on February 13th, 2008 by Chuck_JohnsonThe book to read on this one is Leonard Levy's Origins of the Fifth Amendment.
Dershowitz of Harvard Law has unearthed this history, much to the chagrin of civil libertarians. Torture pre-trial is legal and maybe it ought to even be a part of policy, in rare circumstances.
The history of the cruel and unusual clause is much more complex.
Habeas corpus and the Military Commissions Act
Submitted on February 13th, 2008 by BenJohn B writes: "As a result of the so-called anti-torture bill signed by President Bush, the president can, by executive order, suspend the right of habeus corpus to any citizen he pleases for any reason."
There is a lot of chatter about how the law redefines "unlawful military combatant" in such a way as to potentially include any do-gooder who naively sends a check to a charity front for Hezbollah. Maybe. Probably. Although not likely in the time remaining of George W. Bush's administration.
Nevertheless, the section of the Military Commissions Act that covers habeas corpus is quite specific. Here it is, in all its gloriously legalistic detail:
(Boldface mine.) Aliens, needless to say, aren't citizens. The habeas provisions, therefore, apply to illegal foreign enemy combatants. I see no mention of executive orders. We can argue about whether foreign terrorists should be cut off from "all laws but one." And I'm not at all confident that the federal government will respect our basic rights as citizens, because the natural tendency of government is to drift toward tyranny no matter which party is running the show. But I don't believe this law does what you say it does.
Yes. I said "every person"
Submitted on February 13th, 2008 by Jim LakelyA thoughtful post, John. Thanks. (And I like your taste in movies and music. A cool old-school reference in Son Volt, and new-school, in Sigur Ros. Don't see that every day).
Anyway, we do, as a rule (actually, in the rules of conduct written into our military manuals) treat our enemy combatants humanely. The exceptions you cite -- Abu Ghraib and Baghrab -- have been fully investigated and the criminals who committed those crimes have been vigorously prosecuted and will continue to be. I think the fact that those incidents are retreating into the historical rear-view mirror is evidence of how well our military is cracking down on such "horrors." Even waterboarding, which some of our own military personnel endure in training, has been used on only three very high-level targets and has, by all accounts, saved lives. I'm not losing any sleep over the non-lethal breaking of Khalid Sheikh Muhammad.
But we actually have much to lose by granting habeas rights to unlawful enemy combatants -- terrorists who have invaluable information about the very real threats to Americans that are out there. Do we really want every enemy combatant "lawyering up" as soon as they are snatched by military personnel? Shall we read them their Miranda rights? Putting such cases into civilian courts, which is what you seem to argue, exposes our war-time enemies to procedures that could very well reveal the most sensitive tactics we are taking to counter this threat. That's not to mention exposing the identity of our CIA personnel and special ops guys to the enemy. If you think such things won't happen, you haven't paid good enough attention to the tactics and activities of previous American lawyers for terrorist defendants.
You don't like the anti-torture bill? Take it up with Congress. They gave it to this president, and future ones. And I'd actually like to see some real, serious examples of this slippery slope we're supposedly ready to slide down if not for the republic's precarious grip by a fingernail.
The fact is, John, that you and I see the war on terror in different ways. You seem to think it can be effectively fought as a legal matter. Just prosecute the guys. Yes, that may satisfy a misguided sense of fairness. But it would tend to leave people dead. Law enforcement and the courts are there to clean up the mess after the fact. I prefer to stop the mess from happening. And -- to get back to my original point -- if some non-citizens who have absolutely have no right to American constitutional protections are subjected instead to what is actually a more open and fair procedure (through more liberal military tribunals) than any similarly situated enemies in the history of this country ...
Well, like I said. I'll sleep well knowing that we have not entered a Long Dark Night.
Jim, you said: Every person
Submitted on February 12th, 2008 by John B.Jim, you said:
Every person in the world does not have a right to enjoy the protections of the U.S. Constitution, as the founders well knew.
Two responses to this:
1) Non-citizens may not have a constitutional right to those protections, but it seems to me that we lose nothing whatsoever by treating non-citizens with the same basic respect for human rights that are implicit in the Eighth Amendment via the injunction against cruel and unusual punishment--and everything to lose by not doing so. Indeed: the blindness of Scalia and other pro-torture advocates to the fact that we have given this nation's enemies the horrors of Abu Ghraib and Baghrab to use as propaganda tools as they see fit is something that I find incomprehensible: a slippery slope they do not recognize we've already headed down.
Which leads me to #2: as a result of the so-called anti-torture bill signed by President Bush, the president can, by executive order, suspend the right of habeus corpus to any citizen he pleases for any reason. We have already seen, in the Jose Padilla case, what our government will do to citizens even when it has only the slimmest of evidence. How can you, sir, or any of us any longer be so confident that this administration will respect our basic rights as citizens--especially given that we now have an attorney general who has said in an open hearing that it is his office that will decide what is legal and what is not?
I fervently want to enjoy those constitutional rights; unfortunately, we are at present ruled by an administration that has decided on its own--no court decided these things--that it does not have to let anyone enjoy those rights if it doesn't want us to. Saying things like, "A little torture is okay" is--already--the elephant's nose under the tent.
Re: Scalia, torture and the constitution
Submitted on February 12th, 2008 by Jim LakelyAgreed. I also have not seen a transcript. But I'll let my interpretation stand, as it seems obvious to me that the question of what's permitted under the constitution and who's protected under it are categorically linked.
The constitution
Submitted on February 12th, 2008 by JoelJim writes:
I'll grant you that. But -- and I'll also grant you I haven't seen a transcript of this interview -- it appears that Scalia himself is framing this question in terms of what's permissible under the constitution, not who is protected under it.
I'll reserve further comment on this aspect of Scalia's comments until a transcript is available, in the interest of accuracy and fairness. And for the rest: I think you've heard it from me already.
Re: Scalia and torture
Submitted on February 12th, 2008 by Jim LakelyArrghh! You beat me to the subject! Makes the obvious Joel Bait less enticing. Drat. (But I am encouraged that my prediction about the headline proved correct).
At any rate, I think you (and the BBC) misunderstand Scalia's point, which is rather narrow.
Scalia is right in that the Eighth Amendment to the U.S. Constitution -- which was crafted, remember, to govern only the people (read: citizens) of the United States -- refers to punishments for domestic crimes. The U.S. Constitution has never, and should not, apply to foreign nationals who have fought U.S. troops on foreign land -- "enemy combatants" who have not adhered to any of the traditional rules of war, let alone have signed or adhere to the guidelines of, say, the Geneva Conventions. Indeed, the Supreme Court has ruled that even traditional foreign POWs have no standing to proclaim the protections of the U.S. Constitution.
Scalia is simply saying that the Eighth Amendment has no application whatsoever to unlawful enemy combatants. If it did, their current "indefinite" incarceration -- which is the status of POWs in traditional wars -- would by itself violate the Eighth Amendment.
You stand on shaky ground, my friend, when using imprecise language like "people." Every person in the world does not have a right to enjoy the protections of the U.S. Constitution, as the founders well knew.
Scalia: Torture is ok for the innocent
Submitted on February 12th, 2008 by JoelThat's my take on the story
That's not the kind of approach I can simply have faith in, I'm afraid.