Got your attention? Good. If Scalia’s comments on torture genuinely reflect his belief, then I think there is a good case to be made that he would have backed nailing Jesus to the cross. This past week Supreme Court Justice Antonin Scalia at least added his name to the list of folks who ought to be impeached because of his bizarre and disturbing endorsement of torture. Scalia, who was attending a legal conference in Ottawa, cited the exploits of the mythical terrorist fighter, Jack Bauer of 24 fame, to justify torture. Scalia opined that:
“Jack Bauer saved Los Angeles. … He saved hundreds of
thousands of lives,” Judge Scalia said. Then, recalling Season 2, where
the agent’s rough interrogation tactics saved California from a
terrorist nuke, the Supreme Court judge etched a line in the sand.
you going to convict Jack Bauer?” Judge Scalia challenged his fellow
judges. “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.”
Jesus, Joseph, and Mary!! Where is the strict constructionist who has spent years rampaging against judicial activists? Scalia now believes there are no absolutes, at least when it comes to torture? Maybe he also has concluded that Roe vs. Wade should not be overturned. That anti-abortion position is a tad “absolutist”.
No absolutes when it comes to torture? Bullshit! It is the law.
Surely Scalia is familiar with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], which entered into force June 26, 1987. The United States is a signatory to this Convention. It states:
Article 1 – No Torture
Definition: For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
The substance of the Convention is quite clear:
- Article 2 – No Exceptional Circumstances Warranting Torture
- Article 3 – No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
- Article 4 – Acts of Torture Are Criminal Offenses
Justice Scalia, your opinion is irrelevant with respect to Jack Bauer. When it comes to torture there are absolutes. It is the law.
Although not a law, the Universal Delcaraton on Human Rights, specifically proscribes torture and was drafted in the aftermath of the worst holocaust the world has ever known. Scalia, who is touted as a brilliant person, apparently believes that the threat of international terror–which accounts for fewer than 45,000 deaths worldwide since 1968–is far more severe that the 50 plus million who died during World War Two. I guess Eleanor Roosevelt and her fellow delegates, who were repulsed by the atrocities of mass murder that seized the world during the forties, did not have the chance to appreciate the insights of Jack Bauer as he regularly uses torture to save the day. Let’s face it. They wanted the international community to condemn and outlaw torture and genocide. What a bunch of absolutist pussies.
The fear of terrorism is being used to justify a host of immoral and illegal acts. The Nazis claimed that Jews were enemies of the state. The Nazis insisted that Jews, by their very existence, defiled the purity of the Nazi race and must be exterminated. They certainly did not believe that when it came to murder there were any absolutes. Murder is okay as long as your are exterminating subhumans or enemies of the state. Joseph Stalin made similar arguments in locking up millions in the Soviet Gulag. Enemies of the state–real and imagined–were deprived of liberty, tortured, and in many cases executed.
Terrorism is a real threat. But there is no evidence to support the proposition that torture prevents terrorism. In fact, we have the cases of Abu Zubaydah, Ibn Al-Shaykhal-Libi, and Khalid Sheik Mohammed. The use of torture in these cases produced no actionable intelligence. However, the use of torture has prevented these men from being used in judicial cases to prosecute other terrorists.
I never cease to be amazed when an academic desk jockey like Scalia, who touts his Catholicism as a bedrock of his moral foundation, embraces the sado masochistic eroticism of torture yet weeps crocodile tears when recalling the passion of the Christ. If we use Scalia’s non-absolutist standard we can make a case that the Romans, who flogged Jesus and ripped the flesh from his bone before they crucified him, were justified in this cruelty because the act was to preserve the sanctity of the state. You see, Jesus was a subversive who presented a threat to the Roman order. He was a different kind of terrorist, but there is no doubt that Jesus of Nazareth was an enemy of the state intent on destroying the status quo.
Let’s encourage Justice Scalia to spend less time watching mind numbing fantasy on television and more time reading the law. When it comes to torture, torture is wrong. It is the law stupid.