U.S. Supreme Court Justice Antonin Scalia has ignited yet another firestorm over controversial comments regarding torture, made in a BBC interview broadcast last Tuesday.
During the interview, Scalia dismissed as "absurd" the suggestion that the U.S. Constitution prohibits the use of physical force in terror-related interrogations:
It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that."
...Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited by the Constitution? Because smacking someone in the face would violate the 8th Amendment in a prison context. You can’t go around smacking people about.
Is it obvious, that what can't be done for punishment can't be done to exact information that is crucial to the society? I think it's not at all an easy question, to tell you the truth.
In response, the U.S. National Lawyers Guild, a "public interest/human rights bar organization," headquarted in New York called Scalia "unfit to sit" on the Court, and called for his recusal from any case considering the constitutionality of the use of torture as an interrogation technique:
National Lawyers Guild Calls on Justice Antonin Scalia to Recuse Himself From Interrogation-Related Cases
NEW YORK - February 15 - The National Lawyers Guild calls on Supreme Court Justice Antonin Scalia to recuse himself from any case coming before the Supreme Court involving the constitutionality of torture as an interrogation technique. In a BBC interview that aired on Tuesday, Scalia defended the use of torture to extract information from persons in custody by law enforcement officials in some cases. Although no case involving the use of torture is currently before the Court, recent events suggest that such a case may be forthcoming.
Guild President Marjorie Cohn said: “The Guild is appalled that a sitting Justice of the United States Supreme Court has ventured in a public forum his belief that it is justifiable to attempt to extract information from persons in custody by the use of torture. A justice of the highest court in the land, sworn to uphold the Constitution, whose views so undermine the fundamental right of security of the person guaranteed by the Bill of Rights, is unfit to sit on that Court.”
The thrust of Scalia’s recent remarks is that he does not believe it is clear that the government is precluded from using coercive interrogation to prevent an imminent terrorist attack. He says that the Constitution forbids cruel and unusual punishment, but if torture is not meant as punishment, it may not be unconstitutional. Surely Justice Scalia knows that torture is unlawful under the U.S. Torture Statute (18 USC 2340) and the U.S. War Crimes Act (18 USC 2441). Two years ago, five retired U.S. military officers who had entered a case before the Supreme Court for Salim Ahmed Hamdan sought Scalia’s recusal after he publicly voiced skepticism abut the rights of Guantanamo detainees. Scalia declined to recuse himself.
- Garry J. Wise, Toronto