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.

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