Tuesday, February 19, 2008


Justice Scalia: the Supreme Court’s wingnut

Oh, my... how did I miss this?:

Justice Antonin Scalia said Tuesday that some physical interrogation techniques could be used on a suspect in the event of an imminent threat, like a hidden bomb about to blow up.

In such cases, “smacking someone in the face” could be justified, Justice Scalia told the British Broadcasting Corporation. He added, “You can’t come in smugly and with great self-satisfaction and say, ‘Oh, it’s torture, and therefore it’s no good.’ ”


Justice Scalia, speaking in an interview with “Law in Action,” a program on BBC Radio 4, said it would be “extraordinary” to assume that the Constitution’s ban on cruel and unusual punishment applied to “so-called” torture in the face of imminent threat. He said that the Constitution “is referring to punishment for crime.”

“And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime,” he said.

But “is it really so easy,” he said, “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?”

Oh, there is just so much wrong with Justice Scalia’s statements.

Let’s start by reminding him that we’re not talking about love taps here, not just a “smack in the face”. It’s much more serious unpleasantness, repeated beatings that have in some cases left people with permanent limps. And let’s go on to say that the torture allegations aren’t limited to beatings. We have the sleep deprivation, the “stress positions”, the isolation, the freezing-cold cells. We have the waterboarding.

Next, let’s remind him that the people we’re doing this to are in many cases guilty of nothing, and cognizant of no useful information. We’re “smacking them around” not to find the location of the fictional “hidden bomb”, but to fish for what we can catch. It’s not clear that the fishing’s been very good, and it’s well documented that information obtained from abused prisoners isn’t reliable.

We’ll point out that the “ticking bomb scenario” that Justice Scalia refers to is just completely bogus. That we can try to give credibility to it in order to justify abusing people is a testament to where our collective conscience has gone — and to where Justice Scalia’s, in particular, is.

Then we’ll note how unconscionable it is to claim that our Constitution only assures those convicted that they’ll be treated humanely, but leaves those merely accused open to indefinite incarceration and whatever cruelty we choose to inflict on them. That’s bullshit, Justice Scalia, and you should be ashamed of yourself for even trying that one on.

But what’s perhaps the most troubling about these statements is that a Supreme Court Justice has gone on record — on vehement record — with prejudgments about situations that he’s quite likely to have to adjudicate with the court. How could he possibly be fair in his judgment on the bench? How could any case of an accused “enemy combatant” trying to free himself for indefinite prison, beatings, and other abuse — call it “torture” or not — possibly get a fair hearing from Justice Scalia?

This isn’t the first time, either, that he’s done this (see here and here, for example), and he’s shown that he will not recuse himself in cases that he’s prejudged.

A man like that has no place on the Supreme Court.


lidija said...

My understanding is that he is an appreciated legal scholar. In fact, I agree with one of his most-prominent opinions (that laws should be read as they are written, not as what we think they meant to say). And then he goes off and does things like those you cite. Is it any wonder that he is not immune to the power his words have? I mean if I was to have an opinion on torture and I felt strongly about it, would I let my job stop me from getting the papers to write about my view? Furthermore, if there is nobody and nothing to stop me and to enforce my view via the highest judicial body, why would I not, if I thought it righteous and right? People get away with what we let them get away.

Ray said...

Forgive the ignorance of a mere alien, but are supreme court justices impeachable?

Just asking, and wondering on what grounds.

Barry Leiba said...

They are, yes, and that was what I was implying.

It's happened once: Samuel Chase was impeached, unsuccessfully, for just these sorts of reasons, in 1805. (Abe Fortas resigned in 1969 to avoid likely impeachment, but that was for taking money and agreeing to provide legal advice, in a very shady-looking situation.)