We’re certainly not in Kansas any more. US Supreme Court Justice Antonin Scalia today defended torture on the BB Radio 4′s Law in Action show. He claimed that torture fails to violate the Constitution’s “cruel and unusual punishment” clause as it isn’t punishment, but information extraction. Unfortunately the interviewer neglected to ask him whether it is illegal under the numerous relevant laws and treaties, including the UN Convention against Torture, the War Crimes Act, and even the Military Commissions Act. Here is a BBC News article about it. The interview can be downloaded here.
US judge steps in to torture row
The most outspoken judge on the US Supreme Court has defended the use of some physical interrogation techniques.
Justice Antonin Scalia told the BBC that “smacking someone in the face” could be justified if there was an imminent threat.
“You can’t come in smugly and with great self satisfaction and say ‘Oh it’s torture, and therefore it’s no good’,” he said in a rare interview.
He also accused Europe of being self-righteous over the death penalty.
Justice Scalia is known as the most acerbic member of the Supreme Court, and is often described as the most conservative of the court’s judges.
In the interview with the Law in Action programme on BBC Radio 4, he said it was “extraordinary” to assume that the ban on “cruel and unusual punishment” – the US Constitution’s Eighth Amendment – also applied to “so-called” torture.
“To begin with the constitution… is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime.”
Justice Scalia argued that courts could take stronger measures when a witness refused to answer questions.
“I suppose it’s the same thing about so-called torture. Is it really so easy 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?” he asked.
“It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game.
“How close does the threat have to be? And how severe can the infliction of pain be?”
Justice Scalia also mocked European criticism of the US use of the death penalty.
“If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today.
“There are arguments for it and against it. But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous.”
His position was fiercely criticised by Professor Conor Gearty of the London School of Economics, one of Britain’s leading experts on human rights law.
“Antonin Scalia works hard to protect himself from having to think seriously about torture,” he said.
“His devices are quite obvious, the idea of a smack on the face – rather than sensory deprivation, or waterboarding or any of the Abu Ghraib images – and the comment about ‘so-called torture’…”
Professor Gearty accused Justice Scalia of creating a “nightmare scenario of mass destruction that all defenders of torture so need, to hide the fact that the reality of torture will be quite different”.
Law in Action will be broadcast at 1600 on Tuesday 12 February on Radio 4. The programme is also available as a podcast from bbc.co.uk/podcasts or downloaded here.
Today is a black, very black day. the Senate has voted, overwhelmingly, to authorize the President, this President, to eavesdrop on every email and telephone communication between Americans. Further, they issued a cloak of secrecy to assure that the American people will never discover what illegal eavesdropping actions were committed by their government, the Bush administration. As Glenn Greenwald points out, it took a Democratic Congress to pass this unimaginably horrible legislation. It certainly makes little sense to vote for a Democratic Congress when this is what they do with their power. Greenwald compares this Congress with the actions of the Church Committee that investigated another generation’s far less intrusive surveillance. Harry Reid and Jay Rockefeller have earned my scorn today. they are enemies of freedom. Let no one forget that:
Amnesty Day for Bush and Lawbreaking Telecoms
by Glenn Greenwald
The Senate today — led by Jay Rockefeller, enabled by Harry Reid, and with the active support of at least 12 (and probably more) Democrats, in conjunction with an as-always lockstep GOP caucus — will vote to legalize warrantless spying on the telephone calls and emails of Americans, and will also provide full retroactive amnesty to lawbreaking telecoms, thus forever putting an end to any efforts to investigate and obtain a judicial ruling regarding the Bush administration’s years-long illegal spying programs aimed at Americans. The long, hard efforts by AT&T, Verizon and their all-star, bipartisan cast of lobbyists to grease the wheels of the Senate — led by former Bush 41 Attorney General William Barr and former Clinton Deputy Attorney General Jamie Gorelick — are about to pay huge dividends, as such noble efforts invariably do with our political establishment.
It’s worth taking a step back and recalling that all of this is the result of the December, 2005 story by the New York Times which first reported that the Bush administration was illegally spying on Americans for many years without warrants of any kind. All sorts of “controversy” erupted from that story. Democrats everywhere expressed dramatic, unbridled outrage, vowing that this would not stand. James Risen and Eric Lichtblau were awarded Pulitzer Prizes for exposing this serious lawbreaking. All sorts of Committees were formed, papers written, speeches given, conferences convened, and editorials published to denounce this extreme abuse of presidential power. This was illegality and corruption at the highest level of government, on the grandest scale, and of the most transparent strain.
What was the outcome of all of that sturm und drang? What were the consequences for the President for having broken the law so deliberately and transparently? Absolutely nothing. To the contrary, the Senate is about to enact a bill which has two simple purposes: (1) to render retroactively legal the President’s illegal spying program by legalizing its crux: warrantless eavesdropping on Americans, and (2) to stifle forever the sole remaining avenue for finding out what the Government did and obtaining a judicial ruling as to its legality: namely, the lawsuits brought against the co-conspiring telecoms. In other words, the only steps taken by our political class upon exposure by the NYT of this profound lawbreaking is to endorse it all and then suppress any and all efforts to investigate it and subject it to the rule of law.
To be sure, achieving this took some time. When Bill Frist was running the Senate and Pat Roberts was in charge of the Intelligence Committee, Bush and Cheney couldn’t get this done (the same FISA and amnesty bill that the Senate will pass today stalled in the 2006 Senate). They had to wait until the Senate belonged (nominally) to Harry Reid and, more importantly, Jay Rockefeller was installed as Committee Chairman, and then — and only then — were they able to push the Senate to bequeath to them and their lawbreaking allies full-scale protection from investigation and immunity from the consequences of their lawbreaking.
That’s really the most extraordinary aspect of all of this, if one really thinks about it — it isn’t merely that the Democratic Senate failed to investigate or bring about accountability for the clearest and more brazen acts of lawbreaking in the Bush administration, although that is true. Far beyond that, once in power, they are eagerly and aggressively taking affirmative steps — extraordinary steps — to protect Bush officials. While still knowing virtually nothing about what they did, they are acting to legalize Bush’s illegal spying programs and put an end to all pending investigations and efforts to uncover what happened.
How far we’ve come — really: disgracefully tumbled — from the days of the Church Committee, which aggressively uncovered surveillance abuses and then drafted legislation to outlaw them and prevent them from ever occurring again. It is, of course, precisely those post-Watergate laws which the Bush administration and their telecom conspirators purposely violated, and for which they are about to receive permanent, lawless protection.
What Harry Reid’s Senate is about to do today would be tantamount to the Church Committee — after discovering the decades of abuses of eavesdropping powers by various administrations — proceeding in response to write legislation to legalize unchecked surveillance, bar any subjects of the illegal eavesdropping from obtaining remedies in court, and then pass a bill with no purpose other than to provide retroactive immunity for the surveillance lawbreakers. That would be an absurd and incomparably corrupt nonsequitur, but that is precisely what Harry Reid’s Senate — in response to the NYT’s 2005 revelations of clear surveillance lawbreaking by the administration — is going to do today.
Analogously, in 1973, The Washington Post won the Pulitzer Prize for its work in uncovering the Watergate abuses, and that led to what would have been the imminent bipartisan impeachment of the President until he was forced to resign in disgrace. By stark and depressing contrast, in 2006, Jim Risen, Eric Lichtblau and the NYT won Pulitzer Prizes for their work in uncovering illegal spying on Americans at the highest levels of the Government, and that led to bipartisan legislation to legalize the illegal spying programs and provide full-scale retroactive amnesty for the lawbreakers. That’s the difference between a country operating under the rule of law and one that is governed by lawlessness and lawbreaking license for the politically powerful and well-connected.
Chris Dodd went to the Senate floor last night and gave another eloquent and impassioned speech, warning of the consequences for our country from telecom amnesty. He specifically focused on the permanently and comprehensively suppressive effect it will have on efforts to investigate what the Bush administration did in illegally spying on Americans.
At around 2:25, Sen. Dodd quoted from this blog (from this post specifically regarding last week’s testimony of Michael Mukasey) concerning the consequences for our country from ensuring, as the Senate is about to do, that such blatant and deliberate governmental lawbreaking is protected and goes forever unpunished (h/t selise):
From Frank Church and the bipartisan oversight protections of the post-Watergate abuses in the mid-1970s to Jay Rockefeller, Dick Cheney, legalized warrantless eavesdropping and retroactive telecom amnesty in 2008 — that vivid collapse into the sewer illustrates as potently as anything could what has happened to this country over the last eight years.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the