Thursday, February 14, 2008

Scalia on Torture

Brian Tamanaha

The IntLawGrrls blog has posted a rough transcript of Justice Scalia’s illuminating comments on "so-called" torture in a recent interview with BBC.

BBC: Tell me about the issue of torture. We know that cruel and unusual punishment is prohibited under the 8th Amendment. Does that mean that the issue is a kind of, if it comes up before the Court, is a no-brainer?

SCALIA: Well, a lot of people think it is, but I find that extraordinary. To begin with, the Constitution refers to cruel and unusual punishment. It is referring to punishment for crime. For example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer, can just commit them to jail until you will answer the question, without any time limit on it, as a means of coercing the witness to answer as the witness should. And 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 find out where he has hidden the bomb that is about to blow up Los Angeles, is prohibited by the Consti- .... because smacking someone in the face would violate the 8th Amendment in the prison context, you can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to the society? I think it is not at all an easy question, to tell you the truth....

SCALIA: It seems to me, you have to say, as unlikely as that is, it would be absurd to say that you, you, can, I don’t know, something under the fingernails, smack him in the face – it’d be absurd to say that you can’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be, and how severe can the infliction of pain be? I don’t think these are easy questions at all, in either direction. But I certainly know that you can’t come in, smugly and, and, uh, with great self-satisfaction and say, “Oh, it’s torture, and therefore, it’s, it’s, uh, no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be, “Where is this group that we know is plotting some very painful action against the United States? Where are they and what are they currently planning?"

According to the original meaning of the Framers, then, it might not be Cruel and Unusual Punishment under the 8th Amendment to stick a blade under someone’s fingernails in an effort to obtain vital information if that person is part of a group plotting a painful action against the United States. That makes sense. The Constitution was not meant to be a suicide pact.

On to the next point:

BBC: If you look at countries with a common law tradition, of which we are one, and you are another, but also, lots of other countries around the world, and in the developing world – if they look at decision of the Supreme Court which affirm the death penalty, and which perhaps affirm torture, although that hasn’t happened yet, does that not set a moral tone?

SCALIA: Well, I urge them not to do that. I don’t look to their law. Why should they look to mine? I don’t purport to be prescribing some universal moral law. I am interpreting the meaning of the text of my Constitution, which was adopted at a certain time by my people, and had a meaning to those people at the time. That’s all I’m doing. I’m not charged with, with figuring out the content of the natural law. If you want to look at our decisions, what you could derive from it is what a wonderful Constitution we have. Or, if you don’t like it, you can say what a terrible Constitution we have. But we don’t pretend to be moral, you know, some Western mullahs, who what decide what is right and wrong for the whole world.

Alright world—stop looking at American law as a model. We don’t pretend to tell everyone else what is moral.

I’m glad we cleared that up.

Now maybe the rest of the judgmental world can leave us alone and let us do our thing.


I'm proud of Scalia for not letting his Catholic values influence his judgment.

That's totally awesome that Scalia thinks torture would be unconstitutional to use against someone who had been afforded due process of law, but it may be constitutional to use torture provided that the subject hasn't been found guilty of anything.

Even better, his claim supposes that it is acceptable to use torture as punishment for nonfeasance but not malfeasance, because he doesn't consider nonfeasance to be subject to punishment under his absurd definition.

I respect that he doesn't dress up his insane views in moderate sounding language like Roberts and Alito.

AS: ...smacking someone in the face, to find out where he has hidden the bomb...

This is the kind of argumentation proffered by the most vocal member of history's most powerful bench. And folks wonder at my despair?

Justice Scalia sometimes likes to philosophize too much. He could have begun and stopped at the obvious answer to correct the misinformed Brit that the 8th Amendment applies to crimes and not to wartime combatants. Article I grants to Congress the power to set rules for Captures.

However, Nino was dead on in answering the leading question concerning common law and the moral tone set by the Supremes. The Brit reporter is confusing his common law constitution with our written one. Unlike in Britain, Article III courts are subordinate to the Constitution and do not have authority to rewrite it to establish their own moral tone for the nation. If they do not have the authority to legislate to set the moral tone for the nation, they certainly do not have the authority to do so for other countries.

I can't believe I'm doing this, but...

Scalia has a point (an originalist point) when it comes to the 8th A. According to the original Encyclopedia Britannica, torture was the imposition of pain for purposes of interrogation. Pain after conviction, as a form of punishment, was not torture. Blackstone makes the same distinction; it's why English law could simultaneously ban torture and yet sentence traitors to be hanged, drawn and quartered.

The rest of Scalia's comments are despicable.

I have a post up at my blog about Scalia's Beeb "torture" interview (also this other one about another aspect of the Beeb interview). People are invited to carry on "Bartesque" 'discourse' on this over there.

From an update to my post, this from Ondolette:

Shortly after his return to England in 1628, Buckingham was assassinated. His knife-wielding assailant was captured, and the king was approached for a warrant to authorize his interrogation under torture. They had been routinely issued in the past. But King Charles choked at the request; there is little doubt that Donne’s sermon had a lot to do with his hesitancy. Instead of granting the warrant, the king directed that the judges of England assemble at the Inns of Court in England and render him advice. Was the torture of a suspect in connection with interrogation to be permitted by the laws of England, the monarch asked. And Blackstone records the result. The judges assembled, deliberated and issued their declaration. “Upon their honour and the honour of England,” they said, torture was against the common law.
From Challenging Torture, Scott Horton, February 4, 2008

“Seems to me you have to say, as unlikely as [the ticking time bomb scenario] is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. And once you acknowledge that, we’re into a different game. How close does the threat have to be, and how severe can an infliction of pain be?” Justice Antonin Scalia, February 12, 2008


He [Scalia] could have begun and stopped at the obvious answer to correct the misinformed Brit that the 8th Amendment applies to crimes and not to wartime combatants.

But, as I point out, Scalia's an "originalist," which means he interprets the text of the US Constitution as it was written."

And the Eighth Amendment doesn't say that: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted ... for convicted criminals but not for 'wartime combatants'" In fact, the perverse interpretation that it only applies to punishment post conviction (see my blog entry; I said "... nor is it obvious that the Eighth bans only "punishment" in the wake of a trial and conviction) is inconsistent with the fact that it also prohibits "excessive bail", which of course applies to the situation before conviction (or acquittal, as the case may be).

Scalia is certainly parsimonious in his rights; he would seem to affort the right to be free of "cruel and unusual punishment" only to those actually guilty of crimes. Interesting priorities he has....


Scalia still has Catholic values. It's just that he shares them with Tomás de Torquemada.


The question is whether under English law they were hung first, then drawn and quartered, or the other way around.


They were hung first, but cut down while still alive, and then drawn and quartered.

Scalia's right about the 8th Amendment. A punishment occurs after sentencing.

But he's wrong about the Constitution generally. The FOURTH Amendment certainly does prohibit torture (it constitutes an unreasonable seizure), and in circumstances where the Fourth Amendment doesn't apply (as with pretrial detainees), the Fifth Amendment prohibits it (see Bell v. Wolfish; Rochin v. California).

Scalia, as usual, thinks he has found the answer and everyone else is stupid; in fact, he is not as smart as he thinks.

This comment has been removed by the author.

While we are on this gruesome topic, traitors to the Crown were hung until nearly dead, then cut down, disemboweled and had their privates cut off and displayed for the amusement of the crowd. If they were still alive, then they were drawn and quartered.

This was tastefully implied but not shown in the movie Braveheart.

Our standards for "torture" have obviously evolved since those days...

Baghdad, you need to update with your blog with my recent post.

Scalia seems to forget the reference in the Constitution to "attainder" because I think that the Constitution does address whether or not someone who was not convicted of a crime could be subjected to pains, penalties and punishments.

All of which goes back to the back and forth between you and Marty Lederman earlier.

OLC may be simply saying that these actions are not torture no matter what the setting (although Bradbury is now trying to dive and jive and say that maybe they are 'now' torture because somehow the legal interpretation of torture has been changed by cases and legislation since his original opinions) but not even Scalia buys that argument.

So master of the Twister Board that he is, Scalia hands out the argument that he thinks the Administration SHOULD be using (kind of like an advisory opinion, absent the formalities of an opinion, eh?). As per my earlier comment, that is one based on necessity.

Unfortunately for all the help I think he's trying to hand out, the facts don't seem to bear out necessity, unless, somehow, a nuclear bomb in LA and "don't let me look bad on this" (from W to Tenet) are somehow both on the same "necessity" par.

I can understand how the loyal Bushies believe that -making Bush look good is JUST as important and necessary and exigent as uncovering a nuclear weapon, but I don't think most would ever buy it.

Really, you almost get the impression that Scalia is looking for a recusal battle if a case hits.

Scalia's 8A-is-only-punishment position is basically just Thomas's dissenting position, which Scalia joined, in Hudson v. McMillan and Helling v. McKinney.


I am going to defend Scalia here. He certainly does think that the Eighth Amendment only prohibits METHODS of punishment, i.e., sentencing you to 40 lashes or the rack and screw. Thus, he does not think that the IMPLEMENTATION of punishment, i.e., life in prison for possession of drugs, is governed by the 8th Amendment. So long as prison isn't a cruel and unusual punishment, it may be imposed in any duration for any offense.

But as far as I know EVERYONE on the Court believes that the 8th Amendment only governs POST-CONVICTION punishments. Thus, in Bell v. Wolfish, the Court held that the FIFTH AMENDMENT governed pre-trial detention conditions. And in Graham v. Connor, the Court held that the FOURTH AMENDMENT governed excessive force in an arrest.

Where Scalia goes awry is not in disclaiming the application of the 8th Amendment but in assuming that no other provisions in the Constitution prohibit torture.

You might be right. Looking more carefully, Scalia says that smacking someone in prison could violate the 8A, and that might not be right under his approach in Hudson and Helling. So he might well be appealing to something more broadly recognized.

I would like to ask Mr. DePalma if he knows how
interrogators of terrorists know when they have
obtained all of the information that the subject has
to give so as to know when to cease using
aggressive interrogation methods.

I hate to point this out but I'd rather be hung than hanged. And Scalia would probably agree with me, for himself, that is.

Bart wrote:
This was tastefully implied

You and Scalia both watch too many movies :-)

Do no jurists who hold to Scalia's view consider the propriety of applying torture to persons who haven't been convicted, given that, absent a conviction, we don't know if the prisoners are actually guilty of anything?

Would the full-of-himself Scalia just shrug his shoulders if a prisoner were grievously tortured during interrogation and then later acquitted of the charges against him?

Is the law only a technicality, rather than (also) an expression of our philosophy of the rights of Man and of the appropriate relationship between citizen and state?

Robert Cook:

Do no jurists who hold to Scalia's view consider the propriety of applying torture to persons who haven't been convicted, given that, absent a conviction, we don't know if the prisoners are actually guilty of anything?

Would the full-of-himself Scalia just shrug his shoulders if a prisoner were grievously tortured during interrogation and then later acquitted of the charges against him?

I've also commented on this. Is it truly possible that Scalia thinks that the protections available to convicted prisoners are greater than those few afforded the innocent? If that's his take on the 8th Amendment, then can we start accusing him of coddling criminals?

I will agree that "due process" concerns and the Fifth Amendment provide strong albeit indirect protections against such gummint maltreatment for those not previously convicted, but you could probably find some Scalia-type that might insist that the "due process" protections of "life, liberty, or property" means that they can torture you for information consistent with the U.S. Constitution as long as they don't lock you up afterwards. You're only prevented from being killed ... or your Ferrari taken.


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