Antonin Scalia's Case for Torture

The outspoken Supreme Court justice weighs in on the Senate torture report.

Darren Ornitz/Reuters

Supreme Court Justice Antonin Scalia weighed in on the debate surrounding the Senate torture report on Wednesday. "I don't know what article of the Constitution that would contravene," the AP quoted him telling a Swiss university audience in reference to torture.

It's a surprising statement for a justice to make. After all, the Supreme Court has held torture to be unconstitutional since its ruling in Wilkerson v. Utah in 1878. In that case, the justices wondered what part of the Constitution would forbid such a cruel and unusual punishment:

Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.

This is no long-forgotten passage in a minor opinion, either. The Court cited Wilkerson approvingly as recently as the 2008 death-penalty case Baze v. Rees, where Chief Justice John Roberts wrote that "the Court has held that the Eighth Amendment forbids 'punishments of torture … and all others in the same line of unnecessary cruelty,' such as disembowling, beheading, quartering, dissecting, and burning alive, all of which share the deliberate infliction of pain for the sake of pain." Scalia did not join Roberts's opinion then, but he did join a concurrence of it penned by Clarence Thomas that also cited aspects of Wilkerson.

So did Scalia forget a central piece of Eighth Amendment jurisprudence? Perhaps not. What the AP report omitted was the context of his comment. The Swiss news site RTS provides a more complete recording of the event, where Scalia said:

We have laws against torture. The Constitution itself says nothing about torture. The Constitution speaks of punishment. If you condemn someone who has committed a crime to torture, that would be unconstitutional.

This makes sense under the strictest possible reading of the Eighth Amendment's prohibition of "cruel and unusual punishment," which Scalia often takes. But what about torture to obtain information? Scalia goes on:

We have never held that to be contrary to the Constitution. I don't see any article of the Constitution that would contravene—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?

His argument—that the Constitution prohibits cruel and unusual punishment but nothing else—may be logically sound, but it's morally disturbing. Scalia finds it unacceptable to torture someone after a lawful trial, but allowable to do it before or without one.

It would be one thing if Scalia limited himself to saying that only in exceedingly rare circumstances can torture be stomached, but he doesn't. It's facile for people to say "torture is terrible" because, well, it is. The United States has signed multiple treaties and passed multiple laws to that effect. Torture is a fundamental violation of human dignity. It's so terrible that the Founding Fathers prohibited its use with the Eighth Amendment, as Scalia himself says.

To buttress his stance, the justice constructed a tale of nuclear terrorism in a major American city and a desperate race against time to save millions of lives. The Senate torture report shows how detached this hypothetical scenario is from reality. In the real world, CIA personnel tortured hundreds of detainees, including ones who committed no crimes. CIA officers and contractors waterboarded detainees, in some cases hundreds of times. CIA medical personnel flooded their orifices with nutrients via plastic tubes for "behavior control." CIA officials denied detainees access to sanitary facilities and forced them to use diapers for humiliation. They forced detainees to stand on broken ankles. They subjected one to sleep deprivation for 56 hours until he could barely speak and was "visibly shaken by his hallucinations depicting dogs mauling and killing his sons and family." They threatened to murder detainees' children and sexually assault their mothers. They used the taped cries of an "intellectually challenged" detainee to coerce family members. They even shackled one detainee named Gul Rahman, naked, to a concrete floor in a "stress position," where he died of hypothermia.

No time-bomb ticked as this happened. Jack Bauer, who helped normalize torture for American audiences, didn't save the day. We're not living in a television show and torture isn't a plot device. "You think it's an easy question?" Scalia asked. The answer to that seems easy, too.