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FORUM COLUMN
By John Burton
This article appears on Page 6.
In a radio interview broadcast Feb. 12
in Great Britain, U.S. Supreme Court Justice Antonin Scalia stated that
nothing in the Constitution prohibits federal agents from using torture
while questioning their captives.
The media buried the story, and none of
the leading presidential candidates, despite recent revelations of CIA
waterboarding, had anything to say about it.
Appearing on the BBC Radio 4 program
"The Law in Action," Scalia told Clive Coleman, "The
United States Constitution gives rights to Americans wherever they are
and to foreigners who are in America, who are in the United States. It
doesn't give rights to everybody in the world."
Scalia was responding to a question
about Guantánamo Bay.
"I don't have a warrant to go
investigating the actions of my country throughout the world to see
whose rights they've violated," he said. "I mean, there may
be some natural law up there in the sky, but the American Constitution
doesn't give rights to these people ... [T]he text of the Constitution
does not confer rights on people of the world."
It does little to advance the image of
the United States abroad for a sitting justice of the Supreme Court to
assert that the Constitution allows federal agents to go anywhere
outside the United States and do whatever they want to non-U.S.
citizens, who have absolutely no remedy whatsoever for their
mistreatment in any U.S. court.
Coleman, obviously somewhat
flabbergasted, then asked Scalia his opinion on torture, saying that
the Eighth Amendment's prohibition of "cruel and unusual
punishment" would seem to make the issue "a no-brainer."
Scalia disagreed. Referring to
"so-called torture," he said, "Smacking someone in the
face to find out where he has hidden the bomb that is about to blow up
Los Angeles" would not violate the Constitution. Coleman pointed
out the argument's premise - that government agents would just happen
to be holding captive someone with exactly the information needed to
diffuse a ticking bomb - was highly unlikely. Referred to
"sticking needles under his fingernails" to get information,
Coleman asked Scalia, "You think that should be allowed?"
"It would be absurd to say that you
cannot use something under the fingernails, smack him in the face, it would
be absurd to say you couldn't do that," Scalia responded. He
added, "I certainly know you can't come in smugly and with great
self-satisfaction and say 'Oh, it's torture and therefore it's no
good.'"
Scalia then broadened the hypothetical
scenario where he would sanction torture: "It may not be a ticking
bomb in Los Angeles but it may be, 'Where is this group we know is
plotting some very painful action against the United States? Where are
they and what are they currently planning?'"
Scalia did not indicate, however, what
government officials might be granted the extraordinary powers to
decide which group's members might be lawfully subjected to torture to
discover their plans. Given the tenor of recent high court decisions,
he and certain of his brethren would likely find that power to reside
exclusively in the executive branch and its exercise to be beyond the
scope of any legislative control or judicial review.
Scalia's use of extreme rhetorical
fantasies about ticking bombs to set up arguments of
"necessity" and "public good" as justifications for
denying a democratic right as basic as the freedom from torture has
been the stock in trade of every despot in history. His views are
antagonistic to the most fundamental democratic principles on which the
United States was established.
Obviously, it is not just the Eighth
Amendment prohibition against "cruel and unusual punishment"
that condemns torture, but also the Fifth Amendment provisions barring
self-incrimination and guaranteeing due process. These two clauses of
the Bill of Rights, taken together, were clearly intended to bar the
government from wanton infliction of pain for any purpose.
Patrick Henry, among the most eloquent
of the founders, once said that if the Constitution were to be ratified
without the Bill of Rights, the new government "may introduce the
practice of ... torturing, to extort a confession of the crime. They
will ... tell you that there is such a necessity of strengthening the
arm of government, that they must have a criminal equity, and extort
confession by torture, in order to punish with still more relentless
severity. We are then lost and undone."
The Supreme Court made this same point
more than seventy years ago in Brown
v. Mississippi, 297 U.S. 278 (1936): "Coercing
the supposed state's criminals into confessions and using such
confessions so coerced from them against them in trials has been the
curse of all countries. It was the chief inequity, the crowning infamy
of the Star Chamber, and the Inquisition, and other similar
institutions. The constitution recognized the evils that lay behind
these practices and prohibited them in this country."
The silence following Scalia's
statements has been deafening. The evening newscasts and cable networks
did not report them. Aside from burying dispatches from the Associated
Press and Reuters in inside pages the day after the broadcast, none of
the major U.S. newspapers reported them. None of the three leading
presidential contenders commented on Scalia's defense of torture,
despite the high likelihood that the next president will have
appointment opportunities that could significantly affect the future
trajectory of the Supreme Court.
This sorry state of affairs did not
happen overnight. For the last six years, the population of the United
States has been subjected to a relentless government and media barrage
juxtaposing protection from terrorist attacks against the maintenance
of basic democratic rights. People are constantly being told that the
so-called "war on terror" cannot be waged successfully within
the confines of constitutional protections from unreasonable searches,
coerced confessions and cruel punishments.
The end result is that today a sitting
justice can endorse torture without fearing calls for his resignation
or impeachment.
John
Burton is a Pasadena-based civil rights
attorney.
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