Scalia Is Dead Wrong On Torture

Torture is about as immoral and unconstitutional as it gets, but that’s not how Antonin Scalia sees it.

During an interview with a Swiss radio station last week, the Supreme Court Justice argued that it isn’t so clear that torturing people is wrong and ineffective.

He said,

“I think it is very facile for people to say 'Oh, torture is terrible,’ You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it's an easy question? You think it's clear that you cannot use extreme measures to get that information out of that person?”

Scalia then added that while torture may be against the law here in the U.S., he “doesn’t know what article of the Constitution that would contravene.” In other words, torturing people isn’t just morally acceptable, it’s also constitutional.

Now, I know Scalia, a Supreme Court Justice, is supposed to be an expert on these kinds of issues, but this time he’s just flat-out wrong. Even if torture were an effective way to get information from terrorism suspects during a ticking time bomb scenario - and there’s no evidence that it is - it would still without a doubt be unconstitutional.

In 1988, President Ronald Reagan signed the United States of America onto a treaty known as the United Nations Convention against Torture. And that document is very explicit when it comes to the issue of whether or not some situations make torture necessary. It reads, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Got that? Whether it’s during a “Global War on Terror,” a fight against a domestic extremist group or the interrogation of a “lone-wolf” terrorism suspect, torture is always wrong. No questions asked. End of story. And don’t let people like Antonin Scalia fool you: following the U.N. Convention against Torture is not optional - it’s required by our founding document, the same document Scalia says allows torture.

Under Article II, Section 2 of the Constitution, the President has the power to make treaties with the “advice and consent of the Senate.” And once the Senate ratifies a treaty, as it did with the Convention against Torture in 1994, that treaty becomes the law of the land, virtually equal to the Constitution itself. Article VI of the Constitution makes that very clear. It reads:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby.”

What does this mean? It means, of course, that torture is explicitly illegal, and unconstitutional to boot. We can’t overlook this, no matter what outtakes Antonin Scalia steals from “24” to try to make the point that torture “works.”

If we want to uphold our own laws and values - let alone those of the international community - we need to hold the people behind the CIA’s torture program accountable for their actions. If this means the prosecution of senior Bush administration officials, then so be it. They broke the law and violated the Constitution, and they should pay for it.

Even if the president uses his executive power to set aside the prosecution or incarceration of those officials with a pardon, that will at least put some of their most egregious their war crimes on the record, something that will go a long way towards starting a national reckoning on torture.

Our Constitution and our treaty obligations are clear: torture is wrong under all circumstances. So let’s start acting like we respect the rule of both domestic and international law.


stecoop01's picture
stecoop01 8 years 24 weeks ago

Perhaps Scalia is a masochist, and really enjoys being tortured. Let's make him ecstatic.

delster's picture
delster 8 years 24 weeks ago

If otrture is morally acceptable for foreign enemies then it would seem it could be justified to use domestically on citizens. Citizens who may participate in demonstrations, acts of civil disobedience, or perhaps being a member of a labor union. It's not that far of a stretch. In fact I really believe there have been perfectly good moral individuals in this nation that are and have been denyed employment, audited by state and federal revenue, and under electronic and internet surveillance for being concientious citizens. Good moral people who made no other offense than supporting a moral cause. I believe we have all been thrown under the bus in favor of protecting too big to fail corporations. As a self employed professional I personally have been denyed opportunity and I firmly believe it is for what I have supported.

Gator Girl 8 years 24 weeks ago

Is Scalie right on anything anymore? Not that I can see and he can't even remember what he wrote in opinions just a couple of years ago. The man is losing his mind and needs to be taken out before he can do more damage that he has already done.

As for torture, the following may apply"

The 8th Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

I do believe that torture is cruel and unusual punishment

The man is dangerous

Alan Lunn's picture
Alan Lunn 8 years 24 weeks ago

Republicans of late seem to have gotten a memo from Roger Ailes that told them to continually repeat a mantra that Obama was "trampling on the Constitution."

They would rant about him ignoring the rule of law.

Yet there is never a word of anything but praise for the Roberts 5 in SCOTUS.

Johnnie Dorman's picture
Johnnie Dorman 8 years 24 weeks ago

Great post, Gator Girl. Personally, I believe that all five of the oligarchs within the SCOTUS need to be removed. Especially after the grievous Citizens United fiasco.

DAnneMarc's picture
DAnneMarc 8 years 24 weeks ago

Gator Girl ~ You took the words right out of my mouth! Bravo. I wonder why Thom didn't cite that most obvious Amendment that every 6th grader--at least when I was a kid--knows by heart.

Scalia is a very dangerous man. He and his lackeys are singlehandedly responsible for the destruction of this nation, its laws, and everything it used to stand for. In a perfect world Scalia and his ilk would be brought up as accessories after the fact on the same charges the Bush administration deserves.

Scalia should be removed from his seat!

stecoop01's picture
stecoop01 8 years 24 weeks ago
Quote DAnneMarc:Scalia should be removed from his seat!

With extreme prejudice!


RFord's picture
RFord 8 years 24 weeks ago

Justice Scalia undoubtedly kwows for a fact that there is no way that any unconstitutional wrong doing could ever be done by any republican administration. So, if torture was done by the Bush administration it must have been constitutional and the right thing to do. So if you're reading the constitution as saying torture is unconstitutional, you're just reading it wrong??? I'm getting concerned about Justice Scalia's sanity.

PhilipHenderson's picture
PhilipHenderson 8 years 24 weeks ago

Do not look to Scalia for wisdom or naunced thought. He is an ideolog. If you attempt to find logic in his words you will be disappointed. He seems to view the United States Constitution as if were a work of fiction. He construes the meaning of words the same way as the characters in Alice in Wonderland. I expect if one of his relatives were given enhanced interrogation that he would see that as torture. The folks that George W. Bush were not POW's and were not convicted of crimes in any legal system. They are merely people taken from the battlefield or by the CIA because some informant thought they may be enemies of the United States. While some of those folks captured are certainly terrorists, others were merely caught in a web. Scalia, and his friend Dick Cheney believe that torture is a good thing despite our laws that prohibit torture.

Scalia and Cheney have used words other than torture to permit them to allow the practice. Torture by any other name is still torture. I suspect that Dick Cheney and Scalia have trouble accepting information if the news disagrees with their personal goals. I feel sad that such men have risen to leadership positions in the United States. The vast majority of Americans do not agree with either man yet they have convinced themselves that they speak for the majority. You hear that in their defense of their views, they argue that they speak for the majority. It is sad.

DAnneMarc's picture
DAnneMarc 8 years 24 weeks ago

Historically, the only thing torture has ever been successful at is to get a victim to confess to a crime they did not commit. The Salem witch trials and the Inquisition are some examples. The main motive for using torture was extortion. Once the victim confessed to a trumped up crime the state took their property and divided it up. Today, we see the same old song. The state forces innocent victims to confess to terrorism; thus, creating a terrorist threat enabling them to extort money from the American People to fight it. The MAJOR problem with this policy is that once the right not to be tortured has been removed from the law, anyone can be tortured. Precisely why we have to fight for our right, not to be tortured. The beginning of that fight has to be with the prosecution of the people in power who ordered it. No one is above the law!

2950-10K's picture
2950-10K 8 years 24 weeks ago

Confess you Heretic.........Dick's inquisition was no different!

RichardofJeffersonCity's picture
RichardofJeffer... 8 years 24 weeks ago

Supreme Court Injustice Scalia represents 1/9 of our democracy with his vote on the Supreme Court. This is why we should have a popular democracy, instead of a 5/4 politically charged overly bias bought and owned Supreme Court.

Injustice Scalia's indifference to human life, dignity and law makes him a perfect example of why power should not reside in the hands of the few. Whether it be, 435, 100, 9 or 1, that is to few people making decisions for the rest of us. Circular as my two points may be that doesn't make them any less true.

Injustice Scalia has the prudence of a despot and the heart of a serial killer.

BMetcalfe's picture
BMetcalfe 8 years 24 weeks ago

Bad judges exist, but to have one as a Supreme Court Judge is not good for anyone.

What a sad comment from a SP Justice who is there to interpret the Constitution. I think Scalia and most of the GOP serving on Capitol Hill want to agree with the former Administration - wherein IF and WHEN the President says unequivocally that when the President says it's legal, it is... And they are all still smitten with the "Jack Bauer character" from "24"; they used to quote him, you should remember... And I used to think, "We elect these people because they're supposed to be smarter than us, and yet they seem to get reality confused with a television series??!! (Gee, what's wrong with that ideology?!)

Scalia is supposed to be such a righteous man. Then if he truly were, why would he believe corporations are people? People have SOULS; corporations do not.

Can we please get someone who DOES have a soul and a conscience to work for an ammendment to the Constitution which allows for the People to bring Supreme Court Judges who abuse their rights to make decisions for all of us, to be censured or removed from the Bench after 3 bad (and obviously paid-for) decisions that discriminate, harms, or do not honor the 99% of those of us who pay their salaries? If we can take away their "For Life Judgeships" when we Americans vehemently suffer from decisions that only benefit the corporations and the extremely wealthy donors, perhaps they would weigh their opinions a little more seriously before they jeopardize the rights of the millions of taxpayers. FEAR, remember, is a great equilizer... And just perhaps they would respect moderate Presidents who ARE in touch with those of us who always seem to be dishonored and reap only the repercussions when bad rulings are made.

The opinion Scalia (also) just made against the pregnant employee for UPS who's pregnancy and health would be placed in jeopardy if she continues to work having to lift not 20 pounds for the rest of her pregnancy, but rather be terminated for not lifting up to 70 while the life of her baby and her future health could be placed in extreme danger. Scalia seems to be against women's health and rights as much as he's FOR the totally rich and the combining of church and state... This seems to me, is disrespectful of women who have families to support while they're carrying new life in their wombs. And he also seems to agree with the GOP that women who are heads of households don't deserve to be paid as much for the same work that men are paid higher.

We need to draw a firm line in the sand. We need a way to oust the ones who rely on the Bible, their personal prejudices, and their monies earned from speakerships, when they so vividly exhibit tendencies against the majority of the Americans they are appointed to serve.

ChristopehrCurrie's picture
ChristopehrCurrie 8 years 24 weeks ago

Amendment 8 to the United States Constitution clearly states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” So, regarding torture, when the dishonorable U. S. Supreme Court “Justice” Antonin Scalia said that he “doesn’t know what article of the Constitution that would contravene”, he was clearly (and maliciously) LYING!

Likewise Antonin Scalia blatantly lied when he ruled that “corporations are people” and “money equals speech”, because there is nothing in the U. S. Constitution that comes even close to supporting such dishonest claims. We shouldn't need to pass another constitutional amendment in order to negate the horrendous impacts of such obvious lies. Antonin Scalia should be IMPEACHED and removed from office IMMEDIATELY for judicial misconduct and for violating BOTH of his oaths of office!

Tom1945 8 years 24 weeks ago

I agree with Thom and the posts that support his view on torture. Furthermore, I would say that the "information" derived from the tortured pales in comparison to the "information" shown by the society that allows it.

But I find a disconnect that troubles me. Military drones, bombs, machine guns all cause more death, destruction, and misery than torture. Why are we as a nation so quick to condem torture yet allow the traditional elements of war?

Ken Duerksen's picture
Ken Duerksen 8 years 24 weeks ago

You know, last week we had plenty of opportunity to expose the inhumanity and logical fallacies of the supporters of torture - but I am disappointed to note that Monday's show avoided the topic of Obama's perfidy in regard to the corporatist Omnibus Spending Bill. That budget, that our Democratic President strong-armed Democrats into supporting, was a windfall for the crooked billionaires and bloated banks and corporations for whom the Bush torture chambers were established.

Thom, please quit shielding our shave-tail, banker's pet President from the truth of his betrayals.

Ken Duerksen's picture
Ken Duerksen 8 years 24 weeks ago

"Why are these CRIMINALS on television, allowed to present their side of the story??!"

A big part of the answer to that lies in the pathetic sentence: "That happened in the past; I want to look forward". (Barack Obama, 2009, in referrence to Bush war crminals)

Aliceinwonderland's picture
Aliceinwonderland 8 years 24 weeks ago

"Pathetic" is the word for it, Ken.

stecoop01's picture
stecoop01 8 years 24 weeks ago

I don't think Scalia has ever read the constitution. Clearly, he doesn't even know what the first three words are...

"We, The People..."

charlesatdwyer's picture
charlesatdwyer 8 years 24 weeks ago

Hi Thom,

Charles here from Tom Dwyer in Portland. I thought that with the release of the torture report you might be interested in Tom's editorial in our company newsletter. As always, he seems to be right on.

Glad to be listening to you again on XRAY.FM. With their new signal, we can actually hear over-the-air Progressivism in Portland once again! And our best holiday wishes to you, Louise, and all the crew.

Mark J. Saulys's picture
Mark J. Saulys 8 years 24 weeks ago

Torture may be unconstitutional but not because Reagan signed a treaty. It is illegal for that reason but the Constitution is a supreme body of law separate and apart from treaties or other laws. A treaty, for example, couldn't simply contradict the Fourth Amendment. It would have to be discarded in favor of the amendment or any other constitutional provision.
A law or treaty can simply be repealed, or at least the requirements aren't as stringent as for passing and repealing an amendment to the Constitution.
The constitutional provision banning torture would have to be Article VIII on "cruel and unusual punishment". What constitutes such punishment, however, is determined by the cultural mores of the period in which a controversy occurs. At the time of the first ratification of the Constitution, for example, cropping of ears was a customary punishment, perhaps even striking off the offending arm of a thief - least ways that had relatively recently been practiced in Massachusetts colony in the 1600's. Drawing and quartering was practiced in Europe, at least, as late as the 1600's.
By 1972 any form of capital punishment was deemed " cuel and unusual" by the Supreme Court. Supreme Courts reflect the mores of their period in their interpretations of the Constitution.

Vegasman56 8 years 24 weeks ago

Senator John McCain noted that in World War II, the United States militaryhanged Japanese soldiers for waterboarding American prisoners of war. The CIA confirmed having used waterboarding on three Al-Qaeda suspects: Abu Zubaydah, Khalid Sheikh Mohammed, and Abd al-Rahim al-Nashiri, in 2002 and 2003

Japanese war crimes

From Wikipedia, the free encyclopedia

So do you believe we should go down the same road as did the Japanese in World War II, I believe not. We are Americans and we are not savages. I believe that as a nation where far much more superior socially than the Islamic state. It is 9/11 was tragic and we should never forget it, the question is why did this happen. We do not have to force our beliefs and government on the rest of the world for they will reject them. Before you condemn somebody you should walk a mile in his shoes, and feel the pain and suffering they have received, then maybe you will understand someday.

In the words of Osama Bin Laden,

The events that affected my soul in a direct way started in 1982 when America permitted the Israelis to invade Lebanon and the American Sixth Fleet helped them in that. The bombardment began and many were killed and injured and others were terrorized and displaced I couldn't forget those moving scenes, blood, and severed limbs, women and children sprawled everywhere. Houses destroyed along with their occupants and high-rises demolished over their residents rockets raining down on our homes without mercy the situations was like a crocodile meeting a helpless child powerless except for his screams. Does the crocodile understand a conversation that doesn't include a weapon? And the whole world saw and heard but didn't respond. In those difficult moments, many hard-to-describe ideas bubbled in my soul, but in the end they produced an intense feeling of rejection of tyranny and gave birth to a strong resolve to punish the oppressors.”

For every action there is a reaction. Something to think about.

Waterboarding is a form of torture, more specifically a type of water torture, in which water is poured over a cloth covering the face and breathing passages of an immobilized captive, causing the individual to experience the sensation of drowning. Waterboarding can cause extreme pain, dry drowning, damage to lungs, brain damage from oxygen deprivation, other physical injuries including broken bones due to struggling against restraints, lasting psychological damage, and death.[1] Adverse physical consequences can manifest themselves months after the event, while psychological effects can last for years.[

Torture of prisoners of war

An Australian POW, Sgt.Leonard Siffleet, captured in New Guinea, about to be beheaded by a Japanese officer with a guntō, 1943.

Japanese imperial forces employed widespread use of torture on prisoners, usually in an effort to gather military intelligence quickly.[96] Tortured prisoners were often later executed. A former Japanese Army officer who served in China, Uno Shintaro, stated:

The major means of getting intelligence was to extract information by interrogating prisoners. Torture was an unavoidable necessity. Murdering and burying them follows naturally. You do it so you won't be found out. I believed and acted this way because I was convinced of what I was doing. We carried out our duty as instructed by our masters. We did it for the sake of our country. From our filial obligation to our ancestors. On the battlefield, we never really considered the Chinese humans. When you're winning, the losers look really miserable. We concluded that the Yamato race [i.e., Japanese] was superior.[

From Wikipedia

stonesphear's picture
stonesphear 8 years 23 weeks ago

If George W was left out of the loop regards to extraordinary, enhanced interrogation in order to protect the executive , as we go down the chain of command to get to the bottom of it , why is it that Donald Rumsfelds name is not as yet mentioned. Pres. Bush aside, Rumsfeld was the public face in support of "enhanced interrogation" so what did he know, what didn't he know and what did he know that he did not inform the executive in order to protect the president ?

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