Justice Scalia: Constitution Doesn’t Prohibit Torture

MediaIte ^ | 12/14/2014 | by Matt Wilstein

[SeekAndFind]

In an interview with Radio Television Suisse this week following the release of Senate Intelligence Committee’s CIA torture report, Supreme Court Justice Antonin Scalia said he doesn’t “think it’s so clear at all” that the U.S. Constitution prohibits torture, especially in the “ticking time bomb” scenarios so often cited by defenders of the “enhanced interrogation techniques.”

“Listen, I think it’s very facile for people to say, ‘Oh, torture is terrible,’” Scalia told the Swiss radio network. “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?”

I don’t know what article of the Constitution that would contravene,” the conservative justice added in reference to the harsh treatment of terrorism suspects.

[Slyfox]

Being forced to listen to bad music is torture in my book. And apparently it works well on South American dictators.

[KoRn]

The Constitution CLEARLY prohibits torture on American CITIZENS. Is torture not cruel and unusual punishment?

On the other hand, if dealing with foreign terrorists, torture could be entirely permissible, and should be encouraged, if it leads to answers.

[SeekAndFind]

RE: The Constitution CLEARLY prohibits torture on American CITIZENS. Is torture not cruel and unusual punishment?

How about incinerating an American Citizen with a drone as in Anwar Al-Awlaki?

[PROCON]

Liberal response: But...but...but...RACIST!

[digger48]

Being forced to listen to bad music Obama is torture in my book.

[Sasparilla]

Not torture. The American terrorist murderer never knew what hit him.

[SandRat]

The Eighth Amendment (Amendment VIII) to the United States Constitution is the part of the United States Bill of Rights (ratified December 15, 1791[1]) prohibiting the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments, including torture.

The U.S. Supreme Court has ruled that this amendment’s Cruel and Unusual Punishment Clause also applies to the states. The phrases in this amendment originated in the English Bill of Rights of 1689.

[Slyfox]

I know - I make a beeline for whatever contraption his voice is emanating from and I do stop the madness pronto.

[xone]

incinerating an American Citizen

Wasn't incinerated, not a warhead option. Frags/blast do the killing, incendiary effects are secondary.

[sourcery]

The proper way to interpret the Constitution is to ask what it explicitly permits, not what it explicitly prohibits:

Alexander Hamilton, Federalist #84 (http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html):   

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."  

Hamilton wrote those words as part of what history now calls The Federalist Papers, which served as the explanation of what the Constitution meant that the people (and State Legislatures) used at the time in order to understand what they would be agreeing to if they decided to ratify the Constitution.  

You should also be aware that, relative to the other Founders, Alexander Hamilton had a VERY expansive view of the powers granted to the Federal Goverment by the Constitution.  He was in favor of a National Bank, and thought the Constitution granted the power to create and operate one.  Many other prominent Founders strongly disagreed on that point.  

Nevertheless, in the above quote from Federalist #84 Hamilton clearly states that the architecture of the Constitution is that whatever power is not explicitly granted is denied. He also clearly denies any possibility that the General Welfare and Necessary And Proper clauses grant any power to regulate, let alone criminalize speech, since he believes that even without a First Amendment, the Federal government is not granted any such powers. (The power to regulate and the power to criminalize are NOT the same thing, by the way.)  

Here's what Thomas Jefferson had to say on the same subjects:  

"The construction applied... to those parts of the Constitution of the United States which delegate to Congress a power "to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," and "to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof," goes to the destruction of all limits prescribed to [the General Government's] power by the Constitution... Words meant by the instrument to be subsidiary only to the execution of limited powers ought not to be construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:385  

"They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please... Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers and those without which, as means, these powers could not be carried into effect." --Thomas Jefferson: Opinion on National Bank, 1791. ME 3:148  

"Our tenet ever was... that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated, and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money." --Thomas Jefferson to Albert Gallatin, 1817. ME 15:133  

"If, wherever the Constitution assumes a single power out of many which belong to the same subject, we should consider it as assuming the whole, it would vest the General Government with a mass of powers never contemplated. On the contrary, the assumption of particular powers seems an exclusion of all not assumed." --Thomas Jefferson to Joseph C. Cabell, 1814. ME 14:83   ‎

"I hope our courts will never countenance the sweeping pretensions which have been set up under the words 'general defence and public welfare.' These words only express the motives which induced the Convention to give to the ordinary legislature certain specified powers which they enumerate, and which they thought might be trusted to the ordinary legislature, and not to give them the unspecified also; or why any specification? They could not be so awkward in language as to mean, as we say, 'all and some.' And should this construction prevail, all limits to the federal government are done away." --Thomas Jefferson to Spencer Roane, 1815. ME 14:350  

The man who was the principal author of the Bill of Rights, was James Madison. He later became President. And as President, he vetoed a bill precisely because it called for the spending of money for a purpose not explicitly listed in Article I, section 8. It is instructive to read the letter he sent to Congress explaining his veto: http://www.constitution.org/jm/18170303_veto.htm

[OneWingedShark]

Bingo.

I find it disturbing that a USSC Justice would claim the Constitution silent on the subject.
(And, I fear, we may see this “ignorance” turned against our fellow citizen before long; the weakening of constitutional constraints ALWAYS leads to that power being used on the Citizen.)

[SamuraiScot]

I find it disturbing that a USSC Justice would claim the Constitution silent on the subject.

Aren't we talking about the torture of illegal enemy combatants? I don't know where they would have any rights at all. Not the Constitution, since they're not citizens or legal residents. Not the Geneva Conventions, since those apply only to soldiers who fit the definition of being in a regular army. They have the same status as foreign spies, as near as I can tell, which is no status. They can be shot. And I would think they could be actually tortured—as opposed to water-boarding, which is not classifiable as torture, over in reality.

I don't favor real torture. But legally, if I recall correctly, in no sovereign state in history will you find foreign spies who are accorded actual rights. Not one of which records have survived, anyway. . .

[Auntie Dem]

Shouldn’t the “excessive fines” from the 8th be redefined as “excessive taxes” now that Roberts ruled Obamacare a tax? No torture? No tax. Works for me.

[OneWingedShark]

I find it disturbing that a USSC Justice would claim the Constitution silent on the subject.

Aren't we talking about the torture of illegal enemy combatants?

That might be what the article's motivating scenario is about, but the question is about the Constitution itself.

The Constitution uses absolutist language (e.g. No person shall and In all criminal prosecutions etc), and this absolutist language is to, in the Bill of Right's words, prevent misconstruction or abuse of its powers and in the Bill of Right's particular case by means of further declaratory and restrictive clauses. — Therefore, the restrictions which are written to apply to the government are absolute in nature.

Indeed, the article [and Scalia] touches on this saying: So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.

Previously in the same paragraph, however, he gives us [rhetorically] his answer: “Are you going to convict Jack Bauer? 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, much like how everyone's supposed to handwave warrantless search/seizure in the War on Drugs because they're drug-users/-dealers and there fore evil and therefore not entitled to those protections, we're supposed to say it's ok for the government to violate these with Terrorists. — We saw this they're evil, so the[ir legal] rights don't matter argument in the investigations into the FBI/ATF/etc after Waco when they justified their actions claiming that Koresh was sexually abusing children. (He's evil, and therefore we weren't wrong!) — There's also the problem of letting the government define terrorist: what happens when they flat-out say that TEA-party, or pro-life, or Libertarian philosophies make one a terrorist? Do they suddenly lose the protections in the Bill of Rights?

It isn't so far-fetched a scenario, especially when you consider that there's precedent (*spit*) that supports it; Schenck v. United States says:

We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. […] When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.

Right there, plain as day we see them admitting that the constitutional protection should apply, but because it's not conducive to their particular politics they ignore it in favor of declaring that Congress has a right to regulate things that create a clear and present danger that they will bring about the substantive evils even by means of restricting speech/print.

I don't know where they would have any rights at all. Not the Constitution, since they're not citizens or legal residents.

The Constitution does not grant rights; moreover it is dangerous to make the constraints on government contingent on citizenship/residency… what's to keep the government from deeming some action of yours to be equivalent to renouncing your Citizenship… after all, no true American would want to abolish the Federal Reserve.

Not the Geneva Conventions, since those apply only to soldiers who fit the definition of being in a regular army. They have the same status as foreign spies, as near as I can tell, which is no status. They can be shot. And I would think they could be actually tortured—as opposed to water-boarding, which is not classifiable as torture, over in reality.

(IIRC, it's the Hague that deals w/ those matters.)
IIRC, as unlawful combatants they could be summarily executed under Geneva/Hague as they provide no protection to unlawful combatants.

This isn't to say that we should do it.

I don't favor real torture. But legally, if I recall correctly, in no sovereign state in history will you find foreign spies who are accorded actual rights. Not one of which records have survived, anyway.

I'm not enough of a [military-]history buff to have even a general sense here, but I think you are right.

[TigersEye]

Interrogation is not a form of punishment so that clause does not apply.

[Hot Tabasco]

Rudolph Mynzak, Wilhelm Mueller, Kurt Kleiwitz, Nazi war criminals enjoying their last breaths of fresh air, minutes before their execution by hanging

These monsters were rightfully sentenced to death by a court convened in Nuremburg, Germany following WW-II. Of course this only took place because the entire world was outraged at not only their actions but the atrocities of the Nazis as a whole. The entire civilized world was vested in these trials.

Unfortunately times have changed, attitudes have changed and it's now only the United States that recognizes the atrocities still being committed by not a country but rather a religion that has no allegiance to any country.

And now we, rational thinking conservatives, are being taken to task for denying known battlefield war criminals rights that are only guaranteed to citizens of this United States.

[Salvavida]

Interrogation is not a form of punishment so that clause does not apply.

Finally, someone who gets it. I was a military interrogator.

Also, Americans forget that whatever course we choose to pursue, the authority to do so comes from this original declaration: We The People. If we want to torture, or if we want to define torture so as to not include waterboarding, we have the authority to do so.

[oust the louse]

Terrorists all over the world watching and taking notes anxiously awaiting the moment when our guard is down just a little to hit us.The time is getting closer because they know they can get away with it. We are a nation of puscatores now...thanks to our “leaders”.

[TBP]

It does against American citizens, I believe.