Saturday, December 13, 2014

Antonin Scalia, the Supreme Court Justice from hell, falsely claims in speech that the "US Constitution does not contravene torture" - and says other very silly things as well, as usual

Supreme Court Justice Antonin Scalia: Incompetence personified

By Patrick

If there was a TV-program called "America's Worst Judges", then Supreme Court Justice Antonin Scalia would be the most convincing participant, no doubt about it. It is already assured that his name will live in infamy, due to uncountable awful or even horrifying remarks and decisions. But there is always a way to make things even worse, this Supreme Court Justice from hell apparently thought. While virtually everybody around the world and in the USA (excluding the lovers of dictatorships and authoritarian regimes) is deeply shocked about the contents of the recently published US Senate torture report, Justice Scalia apparently does not believe that torture is such a big deal, and now said that he could find nothing in the US Constitution that contravenes torture.

The Associated Press reports:

Supreme Court Justice Antonin Scalia is joining the debate over the Senate's torture report by saying it's hard to rule out the use of extreme measures to extract information if millions of lives were threatened.

Scalia told a Swiss broadcast network that American and European liberals who say such tactics may never be used are being self-righteous.

The 78-year-old justice said he doesn't "think it's so clear at all," especially if interrogators were trying to find a ticking nuclear bomb. Scalia has made similar comments in the past, but he renewed his remarks on Wednesday in an interview with Radio Television Suisse, a day after the release of the Senate report detailing the CIA's harsh interrogation of suspected terrorists. RTS aired the interview on Friday.

"Listen, I think it's 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 said.

Scalia also said that while there are U.S. laws against torture, nothing in the Constitution appears to prohibit harsh treatment of suspected terrorists. "I don't know what article of the Constitution that would contravene," he said. Scalia spent a college semester in Switzerland at the University of Fribourg.

Oh, so it's all fine then! There are unnamed "U.S. laws", but the constitution is OK with torture, right? Well, thanks for clearing that up, Justice Scalia. Finally, everyone involved doesn't need to have a bad conscience any more.

You really need to be a brain-dead teabagger to believe this. For those people who are not totally brainwashed or completely incapable of independent thinking, the evidence to the contrary is not difficult to find, and you can bet that every law student would fail his exam if he or she claimed that Justice Scalia was correct. Because such a statement is nothing more than a very dangerous distortion of the Constitution.

Let's for example take a look at the "U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" (commonly known as the "United Nations Convention against Torture"). The USA ratified the Convention in 1994.

The ratification of this Convention makes it a "treaty" according to the US Constitution's Supremacy Clause [Article VI, Clause 2]. These treaties are one of the three things that are the supreme law of the land. The other two are the Constitution itself and federal laws (see also here).

In Article one of the U.N. Convention, torture is clearly defined as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Which of course fully covers the actions of the CIA and their money-grubbing as well as conscience-free contractors during the "enhanced interrogations" as described in the US Senate torture report.

But is Justice Scalia still right? It's not in the Constitution, right? It might be the "supreme law of the land", but hey, the Constitution itself doesn't talk about torture?

A Supreme Court Justice should know that constitutional matters are not that easy, but when Justice Scalia was appointed by Ronald Reagan to the Supreme Court in 1986, I very much doubt that his professional skills as a lawyer played the major role. So it is not surprising, but still pretty shocking, that Scalia comes across as the "Dumb of Dumber" of the Supreme Court.

Coming from a country where Supreme Court Justices are actually chosen due to their outstanding legal skills in the first place (political considerations come second), which is interesting because the German Constitutional Court was modeled after the US Supreme Court after WWII, I can just continue to scratch my head about the fact that US politicians have no problem to erode their democratic system by appointing incompetent candidates to the Supreme Court, who are obviously chosen for their political persuasions in the first place, or only for their political persuasions. When I say "US politicians", I do talk about Republicans in the first place, of course, as for example President Obama made great choices when it came to the selection of candidates for the Supreme Court.

During my own legal education in Germany, I personally met two German Supreme Court Justices in seminars, and can confirm that the lawyers who are chosen for the court are truly excellent. When appointing the judges, who are serving a 12-year-term, the politicians look for the best and brightest. The reputation of the German Constitutional Court has been very high throughout the decades, and the Court is responsible for many landmark decisions, which helped to establish a free and liberal political system. I can safely say that appointing an idiot like Scalia to the Court would be absolutely inconceivable in Germany and has so far never happened since the Court was established after WWII. Also, I am not aware that politicians in Germany have ever tried to abuse the German Constitutional Court for political gain.

But back to Scalia's claim! We still haven't fully refuted it yet, right? Well, we are in luck! Because when it comes to United Nations Convention against Torture, each country had the opportunity to submit a detailed report. The USA also submitted such a very extensive and detailed report, written in October 1999, and explained in detail why torture is prohibited by the US Constitution! Let's take a look and enlighten ourselves, even though there is apparently no hope left with Justice Scalia!


1. The Government of the United States of America welcomes the opportunity to report to the Committee against Torture on measures giving effect to its undertakings under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in accordance with article 19 thereof. The organization of this initial report follows the revised General Guidelines of the Committee against Torture regarding the form and content of initial reports to be submitted by States parties (CAT/C/4/Rev.2).

2. This report has been prepared by the U.S. Department of State with extensive assistance from the Department of Justice and other relevant departments and agencies of the Federal Government. Substantial contributions were also solicited and received from interested non-governmental organizations, academics and private citizens. The report covers the situation in the United States and the measures taken to give effect to the Convention through September 1999.

3. The United States ratified the Convention against Torture in October 1994, and the Convention entered into force for the United States on 20 November 1994. In its instrument of ratification (deposited with the Secretary General of the United Nations on 21 October 1994), the United States made a declaration pursuant to article 21, paragraph 1, recognizing the competence of the Committee against Torture, on a reciprocal basis, to receive and consider a State party’s claims that another State party is not fulfilling its obligations under the Convention. The United States also conditioned its ratification on two reservations and a number of interpretive understandings; these are included at annex I and discussed at the relevant portions of this report.

4. In 1992 the United States became a party to the International Covenant on Civil and Political Rights, some provisions of which may be considered to have wider application than those of the Convention against Torture. The initial United States report under the Covenant, which provides general information related to United States compliance with and implementation of obligations under the Covenant, was submitted to the Human Rights Committee in July 1994 (see HRI/CORE/1/Add.49 and CCPR/C/81/Add.4). The United States also ratified the International Convention on the Elimination of All Forms of Racial Discrimination at the same time as it ratified the Convention against Torture. In February 1995 the United States signed the Convention on the Rights of the Child.

5. The United States has long been a vigorous supporter of the international fight against torture. United States representatives participated actively in the formulation of the United Nations Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in 1975, and in the negotiation of the Convention against Torture. The United States continues to be the largest donor to the United Nations Voluntary Fund For Victims of Torture, having contributed over $12.6 million as of August 1999. The United States Government pursues allegations of torture by other governments as an integral part of its overall human rights policy, highlighting such issues in its annual Country Reports on Human Rights Conditions.

6. Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.

That sounds already quite good, doesn't it? I especially like this sentence:

"No exceptional circumstances may be invoked as a justification of torture. "

This was of course before the Bush-cabal tried to bend and distort the applicable laws.

If this was not clear enough yet for Justice Scalia, he is in luck, because there is much more - just another short excerpt from this extremely interesting document:

47. In 1994, Congress enacted a new federal law to implement the requirements of the Convention against Torture relating to acts of torture committed outside United States territory. This law, which is codified at 18 U.S.C. § 2340 et seq., extends United States criminal jurisdiction over any act of (or attempt to commit) torture outside the United States by a United States national or by an alleged offender present in the United States regardless of his or her nationality. The statute adopts the Convention’s definition of torture, consistent with the terms of United States ratification. It permits the criminal prosecution of alleged torturers in federal courts in specified circumstances.

48. Any act falling within the Convention’s definition is clearly illegal and prosecutable everywhere in the country. Because existing criminal law was determined to be adequate to fulfil the Convention’s prohibitory obligations, and in deference to the federal-state relationship, it was decided at the time of ratification not to propose enactment of an omnibus implementing statute for the Convention or to adopt a single federal crime of torture.

49. Torture has always been proscribed by the Eighth Amendment to the United States Constitution, which prohibits “cruel and unusual punishments”. This Amendment is directly applicable to actions of the Federal Government and, through the Fourteenth Amendment, to those of the constituent states. See Robinson v. California, 370 U.S. 660, reh’g den. 371 U.S. 905 (1962); Estelle v. Gamble, 429 U.S. 97 (1976). While the constitutional and statutory law of the individual states in some cases offers more extensive or more specific protections, the protections of the right to life and liberty, personal freedom and physical integrity found in the Fourth, Fifth and Eighth Amendments to the United States Constitution provide a nationwide standard of treatment beneath which no governmental entity may fall. The constitutional nature of this protection means that it applies to the actions of officials throughout the United States at all levels of government; all individuals enjoy protection under the Constitution, regardless of nationality or citizenship.

50. Every state constitution also contains detailed guarantees of individual liberties, in most cases paralleling the protections set forth in the federal bill of rights. For example, nearly all state constitutions expressly forbid cruel and unusual punishment (including acts constituting “torture”) and guarantee due process protections no less stringent than those in the federal Constitution. The constitutions of 33 states also contain specific protections against unreasonable searches and seizures; only two state constitutions lack explicit protection against self-incrimination in criminal cases; and only five lack double jeopardy clauses. Even in such cases, however, defendants are not deprived of the protections afforded by the federal Constitution: United States constitutional protections are applicable throughout the United States, and the constitutional due process provision is broadly construed by the courts. In some cases, state law guarantees rights not explicitly recognized by the federal Constitution (such as privacy, education or access to courts), the protections afforded by state law sometimes exceeds those required by the federal Constitution.


112. Other constitutional provisions. Because the Eighth Amendment by its terms applies to “punishments”, courts have looked to other constitutional provisions, in particular the Fourth Amendment’s protections against unreasonable searches and seizures and the due process requirements of the Fifth and Fourteenth Amendments, to preclude the abuse or ill-treatment of individuals in other custodial circumstances. These constitutional protections are applicable and enforced at all levels of government.


114. The Fourteenth Amendment provides that “[n]o State [shall] deprive any person of life, liberty or property without due process of law”. The Fifth Amendment applies to the Federal Government and similarly provides that no person shall “be deprived of life, liberty, or property without due process of law”. The principle of due process provides a broad and flexible measure of protection against abuse of state power. The due process clauses of the Fifth and Fourteenth Amendments may reach actions that are technically outside Eighth Amendment purview, such as excessive use of force by law enforcement personnel during the investigative or pre-trial stages. Denial of pre-trial release by itself may implicate substantive and procedural due process concerns. United States v. Salerno, 481 U.S. 739 (1987).

115. Although the Eighth Amendment does not apply to “pre-trial detainees”, i.e., persons lawfully arrested but not yet convicted and sentenced, the courts have ruled that such individuals enjoy equivalent protection under the Fourteenth Amendment with regard to conditions of detention. “[S]tates may not impose on pre-trial detainees conditions that would violate a convicted person’s Eighth Amendment rights.” Hamm v. DeKalb County, 774 F.2d 1567, 1573-74 (11th Cir. 1985), cert. denied 475 U.S. 1096 (1986). See also Graham v. Connor, 490 U.S. 386 (1989) (the Due Process Clause of the Fourteenth Amendment protects a pre-trial detainee from the use of force that amounts to punishment); Bell v. Wolfish, 441 U.S. 520 (1979); Ingraham v. Wright, 430 U.S. 651 (1977). In Lancaster v. Monroe County, Ala., 116 F.3d 1419 (11th Cir. 1997), a federal court of appeal stated that the minimum standard of medical care owed to a pre-trial detainee under the Fourteenth Amendment is the same as that required under the Eighth Amendment for a convicted prisoner.

Unless one is smitten with total ignorance, or is just plain malicious, there is simply no way to claim that the US Constitution is "silent" about torture.

This has of course long been acknowledged in the media as well. In an editorial, the Washington Post for example already wrote in 2005:

Interpreting the Constitution as permitting waterboarding in secret prisons is, to most experts outside the administration, legally outrageous and politically untenable. It means that the Bush administration accepts, in principle, that the FBI may use waterboarding, painful stress positions, forced nudity and other methods on Americans, in American prisons, "in certain circumstances." That's why the Justice Department has classified its memos on the subject and kept its conclusions secret. That's why President Bush and Vice President Cheney have worked so hard to stop the McCain amendment, which would pave the way for legal challenges to their interpretation. They want to give themselves the authority to commit human rights abuses without having to explain or justify themselves to the public, the world -- or an impartial court.

By the way, the United Kingdom in contrast does not even have a written constitution. According to Justice Scalia's logic, virtually everything would be constitutionally permitted then, as there clearly is "nothing" in there! Not even a piece of paper! Somebody should quickly tell the UK politicians, I am sure they will be thrilled.


Justice Scalia said in this interview several other outrageous things, as it is obviously his very own "personal style." The darling of the teabaggers strikes again, the AP report is actually very detailed, which is good to see:

The 30-minute interview touched on a range of topics, including the financing of political campaigns, the death penalty and gay marriage, about which Scalia said he should not comment because it is likely the court soon will have the issue before it. Asked about money and U.S. elections, Scalia scoffed that "women may pay more each year to buy cosmetics" than is spent on local, state and federal elections combined.

Women spend more money on cosmetics!! What an ingenious argument!

Dear US Republicans - you might think you are winning right now, but I don't think it will end well. Your lot is simply too stupid for your own good. All the dirty tricks and brainwashing won't help. The dark side will always be the loser in the end.

Have a nice weekend, everybody!

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