Supreme Court Justice Antonin Scalia Joins the Torture Debate…Once Again Claiming That Nothing in the Constitution Prohibits It

Supreme Court Justice Antonin Scalia

Supreme Court Justice
Antonin Scalia

By Elaine Magliaro

Mark Sherman of the Associated Press reported today that Supreme Court Justice Antonin Scalia was “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.” Sherman said that Scalia “told a Swiss broadcast network that American and European liberals who say such tactics may never be used are being self-righteous.” Scalia added that he doesn’t “‘think it’s so clear at all,’ especially if interrogators were trying to find a ticking nuclear bomb.”

During the interview, Scalia said, “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 acknowledged that the United States has laws against torture–but noted that there is nothing in the Constitution that “appears to prohibit harsh treatment of suspected terrorists.” He continued, “I don’t know what article of the Constitution that would contravene.”

This isn’t the first time that the 78-year-old justice has opined on the subject of torture. Back in February 2008, during an interview with BBC Radio’s Law in Action, he defended torture, claiming that it is not necessarily barred by the Constitution. That following April, Scalia “granted his first broad-based television interview, to Lesley Stahl on CBS’s 60 Minutes.” The Supreme Court Justice told Stahl that the torture of detainees “does not violate the 8th Amendment’s ban on ‘cruel and unusual punishment’ because…torture is not used as punishment.”

From ThinkProgress:

STAHL: If someone’s in custody, as in Abu Ghraib, and they are brutalized, by a law enforcement person — if you listen to the expression “cruel and unusual punishment,” doesn’t that apply?

SCALIA: No. To the contrary. You think — Has anybody ever referred to torture as punishment? I don’t think so.

STAHL: Well I think if you’re in custody, and you have a policeman who’s taken you into custody–

SCALIA: And you say he’s punishing you? What’s he punishing you for? … When he’s hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?

Justice Scalia defends torture


According to Daily Kos, Scalia was involved in a panel discussion about torture and terrorism law with senior judges from North America and Europe in 2007 when a Canadian judge’s passing remark – “Thankfully, security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?’ ‘ – got the legal bulldog in Judge Scalia barking.”

Daily Kos:

The conservative jurist stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. “Jack Bauer saved Los Angeles. … He saved hundreds of thousands of lives,” Judge Scalia said. Then, recalling Season 2, where the agent’s rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand.

“Are you going to convict Jack Bauer?” Judge Scalia challenged his fellow judges. “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 the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”

I’ll leave you with this:

Headzup: Scalia’s Supreme Torture



Scalia: Nothing In The Constitution Prohibits Torture (TPM)

Scalia Defends CIA Tactics After Torture Report (Time)


Scalia Defends Torture: It’s ‘Absurd’ To Say The Gov’t Can’t ‘Smack’ A Suspect ‘In The Face’ (ThinkProgress)

Scalia: Does Torture Violate ‘Cruel And Unusual Punishment’ Provision? ‘No.’ (ThinkProgress)

Scalia: The Jack Bauer Torture Test (Daily Kos)

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45 Responses to Supreme Court Justice Antonin Scalia Joins the Torture Debate…Once Again Claiming That Nothing in the Constitution Prohibits It

  1. Bruce says:

    “Should any American soldier be so base and infamous as to injure any [prisoner]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause… for by such conduct they bring shame, disgrace and ruin to themselves and their country.”
    — George Washington, charge to the Northern Expeditionary Force, Sept. 14, 1775

    “U.S. Code § 2340A – Torture

    (a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life. (b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
    (1) the alleged offender is a national of the United States; or
    (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
    (c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.”

    “The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today. The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called ‘universal jurisdiction.’ Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”
    – Ronald Reagan, President of the United States, 1984
    Address to the Nation upon signing the UN Convention On Torture

  2. Bob Kauten says:

    If I’m in exactly the right mood, which is infrequently, I find Fat Tony’s dumbass remarks hilarious. Today, I laughed.
    All this from the jackass who said, when asked whether he regretted throwing the 2000 presidential election, “Get over it.”
    Torture isn’t punishment.
    Ignorance is strength.
    War is Peace.
    Freedom is slavery.

  3. And justice is tyranny practical

  4. blouise says:

    He’s such an embarrassment. Any time I see his name or face on an ad for an upcoming event, I cringe. What will this crazy old loon say or do next to shame us all? Please, please, please retire.

  5. Roberts n Scalia retire niw


  6. WTAF is wrong with these people? We’re barbarians.

  7. They,re barbaric

    We’re insubtantial

  8. I cringe.

    Earlier today, SCOTUS granted cert for Toca v Louisiana One of the questions is whether Miller v. Alabama (“The Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders”) applies retroactively.

    1) Does the rule announced in Miller v. Alabama apply retroactively to this case?

    2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a exception?

  9. Putting juvie away for life,

    What a country!

  10. mespo727272 says:

    Scalia is with the wrong mob. He needs a wide brimmed hat, a white tie with a diamond stick pin, pin striped suit and a Tommy gun. We need Eliott Ness.

  11. buckaroo says:

    Isn’t the 1st amendment wonderful !!!

  12. Oro Lee says:

    Well, he is an expert on torturing the Constitution.

  13. Mike Spindell says:

    “Ronald Reagan, President of the United States, 1984
    Address to the Nation upon signing the UN Convention On Torture”


    How times have changed.

  14. rafflaw says:

    Justice Scalia is an example of the arrogance of the Right. Maybe Pope Francis can set him straight.

  15. pete says:


    My guess is fat tony thinks he’s got a direct line to Francis’s boss.

  16. Raff,
    If there was ever an oxymoron, it is “right wing.” Should be “wrong wing.”
    And fewer otherwise smart people are wronger than Fat Tony.

  17. He comes from the 3rd Circuit’s den of iniquity and just stepped it up some notches upon.arrival to the SCOTUS bench

  18. Bob Kauten says:

    Saint Ronnie’s gift to us, that just keeps on giving!

  19. randyjet says:

    IT is obvious Tony is getting senile and the Congress in a sane world would impeach him. This is so off the wall that it shows a severe mental defect. He also tosses the idea that one is innocent until proven guilty. For that alone he needs to go. So he thinks that it is OK to torture an assumed innocent person until they incriminate themselves and it is not unconstitutional. As we know, the police have sent many innocent people to death row with that method, yet this idiot thinks that is OK. Why haven’t we heard anything from Prof Turley about his take on this?

  20. Mornin’ mornin’ peepul. Hi Randy. Still waiting for that call from you so we can hang out more than we had a chance last time.

    More on the tortuous road to torture from retired Chief Warrant Officer Jim Wright at Stonekettle Station. There is little I can add to what Jim has to say. Powerful, eloquent, and dammit, he is spot on. He calls his essay, The Road to Hell.

    I saw that Congressional staffers have been trying to scrub the word “torture” from Wikipedia. Also was told late yesterday the American Psychological Association has been scrubbing all pages with articles connecting them to the CIA and NSA. I have not had time to check that out, but would not be a bit surprised. I am embarrassed by my own profession. I will have more to say about that at a later date.

    • randyjet says:

      Chuck, The last time I flew up there I was a passenger with my wife on Delta going back to West Hartford, CT, for my 50th high school reunion. We get to fly for free since I “retired” from my airline and we did not have the time to stop in. So for the Xmas rush, we are only flying for DHL, and UPS doing the daily runs that they have which are maxed out. The spot charter market is closed for us until the beginning of the new year. Hopefully, I will get another charter trip up to your area. For some reason, the owner of our airline does not like to fund my personal flying, though since fuel prices are dropping, he might be more amenable to that.

      I can understand why Turley would not like to antagonize Scalia by publicly criticizing him, but he has spoken out about Justices making public remarks that are partisan. I get somewhat tired of Turley bashing Obama for not prosecuting the crimes and perjury of the CIA. I can understand for practical reasons Turley’s position, but it gets rather lame when he will NOT give similar understanding to Obama and his political reasons for not prosecuting the senior members of the previous administration and his own administration. Then he will compound this by NOT doing anything himself that HE COULD DO! Namely, there is the International Criminal Court which abducted Milosevic and convicted him for crimes that EVERY country has done. There is more than enough evidence in the report, and in Cheney’s statements to go before that Court and request arrest warrants for ALL those in the Bush administration who took part in this.

  21. Randy,
    Regarding your question about JT and whether he might say anything. Having been in the position of having severe criticisms of sitting judges, when I knew I would have to appear in their courtroom in the future, I knew enough to hold my fire until they retired. Since Turley has to argue cases in front of the SCOTUS on a somewhat regular basis, he may be choosing to err on the side of diplomacy.

    Obviously, I can’t speak for Jonathan. Of all people he can speak for himself, and I have not discussed this with him. However, I am willing to give him the benefit of the doubt on the issue of the Italian loudmouth…..not Nick, but Tony.

  22. Only slightly OT because it is about those Scalia would provide cover for, America’s Chief Advocates of Torture – Dick Cheney and the GOP.

    The Torture Party: Why Republicans Defend the Most Sadistic Government Program in Recent History by Jonathan Chait

  23. bettykath says:

    “SCALIA: And you say he’s punishing you? What’s he punishing you for? ”

    He’s punishing you for not telling him what he wants to know.

    Jack Bauer is fictional, like Murphy Brown and Cliff Huxtable

  24. Amen, Amen, Amen, AMEN

    A series of comments spot on and just plain (plane) cool banter.

    Turley picks on Justice Ginsburg all the time, for far less violate than Scalia,s hubris bit off here. Thw professor knows his slings n arrows in SCOTUS cases most likely won’t get a Justice Ginsberg nod; and that saying stuff about Scald,ya during a Dem POTUS chance to get replaced

    would get JT crucified by rank n file

  25. Mike Spindell says:

    “I get somewhat tired of Turley bashing Obama for not prosecuting the crimes and perjury of the CIA.”
    “Then he will compound this by NOT doing anything himself that HE COULD DO!”

    This was what I came to realize about Jon. He was rather selective in his criticism and his activism was rather limited as well. He was on the right side regarding Bush and his critiques of Obama’s continuing the Bush policies were on the money. However, when he criticized Obama’s expansion of Executive Power which was on point, he also never provided context as to the stalled political scene in Washington. His testimony for Clinton’s impeachment was an early sign and his support of the Citizen’s United decision began to bring him into sharper focus. What snapped it for me was when he called this Black football player a “thug” (damn I forgot the player’s name) and the player was one of the most articulate and thoughtful people in the game. It was then I pored over Jon’s career to see if he had ever taken part in any Civil Rights lawsuits pertaining to discrimination and he hadn’t. The only participation I found was for the “Sister Wives” case and one must remember they were TV celebrities.

  26. I’m on my way to Supreme court soon. Have been writing for months in preparation. I use to think it was lame that judges gave counsels 30 to 60 days and/ or book / paper writers took years.

    Now I have so much respect for counsels and law school and syntax and technicalities of prose.

    Also have always known that – though my cases would never be heard – when.the Supreme Court doesnt speak

    People listen to the silence

  27. swarthmoremom says:

    Turley is under contract to Boehner and the republican caucus. He could potentially earn millions. Now why would he upset the pro torture crowd he is employed by and take some action against Cheney?

  28. Elaine M. says:


    The name of that football player is Richard Sherman.

  29. Elaine M. says:

    Bush’s willful ignorance: Why he wanted to know as little about torture as possible
    The debate over what Bush knew (and when he knew it) is important — but more for what it says about our own guilt

    It’s happening more than 10 years too late (and in a better world it wouldn’t need to happen at all), but now that the Senate Intelligence Committee has released its so-called torture report, the American people are finally having an informed debate over their government’s use of “enhanced interrogation” during the presidency of George W. Bush. The process is not always pretty — at times, in fact, it is downright chilling. But now that we know some of the harrowing details of what was done in our name, it’ll be easier for us Americans to step a bit closer to the mirror and see what we’ve become. As Glenn Greenwald put it earlier this week, “Everybody’s noses got rubbed in [the torture program] by this report.”

    Still, the human brain has an awesome capacity to reject information it finds upsetting — like proof that one’s leaders embraced practices refined by the Bolsheviks and the Gestapo. At least that’s my explanation for why some people would rather talk about alleged partisanship than “rectal rehydration.” Or why there’s been increasing focus on the question of whether the CIA “misled” President Bush about the effectiveness of the program, as well as its essential nature. The whining from conservatives over the Committee not interviewing CIA agents is a red herring, of course (as Chris Hayes has noted, arguments about process are almost uniformly disingenuous). But I think the chatter about Bush the Younger really being Bush the Clueless gets to something deeper.

  30. Swarthmoremom,

    I’d like to think (hope) that the Professor has a kevel of decency that will at least let him do a yearning to cry foul, vicariously tgrough one of his gyest bloggers.

    He cant be all bad; can he?

  31. swarthmoremom says:

    Don’t think he is all bad just not a hero, laser. He is a celebrity TV lawyer earning a living who does some estimable things and some not so estimable things. One thing I don’t like though is how he throws bait out to the bigots that populate his blog. Just my opinion………….

  32. Eliane,

    Concur – but for different reasons.

    For one, i think the “we won”, plastic turkey carrying GWB was a clueless puppet of the highest order.

    That,s why he could vacation much!

    Secondly, Cheney knows that once delvings get started that he will have to plead the 5th and that’s why Dick was si quick to publicly cry out GWB knew. In the self preservation.hopes that the vircled wagons for GWB must protect Cheney inherently.

    Finally, the disingenuous arguments are borne out of gut wrenching fear that GWB is just plain dumb and far worse a babbling fool.than Scad,ya;

    As GWB can’t be trusted not to be loosed lipped turkey who could sink.fleets

  33. There’s a pragmatic attorney (Really) who blogs “Lawyers on Strike”. The discussion about Columbia giving a time out to L’s has some great quips – including a slam on Scalia, in his recent posting “A Take on our Profession” (better pass on reading this one Bob).

    He’s blocked me from posting (as most lawyers do) after we discussed my case and his views apropos. We emailed a bit and he said he wouldn’t argue merits concerning politics;

    but I still follow his rants – heartfelt – against tyranny, cronyism and corruption.

    Here’s what he says – and I highlighted (made bold) the germane

    It doesn’t help matters to punt.

    I am reminded of a quote from Scalia that I’ll look up later, to the effect that there are limits to the resources a society can devote to criminal justice and so, you know, finality. I’ve pondered that quite a bit. Seventy-five years ago, I think, such a statement coming from a Supreme Court Justice would have been seen as not just wrong but monstrous. And the simple reason is this: it’s an inversion of the truth. Economic considerations do not constrain the law; the law constrains economic considerations. If we don’t realize that as a society we are become barbaric, as they say.

    But when lawyers and judges and even Supreme Court Justices don’t realize it we are doomed.

    I have to disagree with Andrew a little: it’s not difficult to figure out what to do about our fucked up profession. It’s just difficult to actually do it.

  34. Cheney said – “it’s in his [GWB’s] book”……

  35. bigfatmike says:

    @bettykath “SCALIA: And you say he’s punishing you? What’s he punishing you for? ”

    I was struck by that one too. As nearly as I can figure it, as long as the sadistic twit is doing it for his own pleasure and not some official purpose it is not punishment. And as long as you live through without permanent disability then it is not torture either – so there is no problem, whats the big deal?

    Aren’t we fortunate to have Scalia to guide our understand to the big issues so we don’t get tripped up on the small stuff.

  36. bettykath says:

    bfm, So if it’s being done for some official purpose it’s punishment.

  37. JMRJ says:

    @Laser: LOL I didn’t block you from posting. If you put a link in your comment it goes to a pending folder and I might not have let all of those through if I didn’t think they were relevant or something, but I never blocked you.

  38. Jmrj

    I have to post even 3 word quips with my email spelled wrong… in order to get through..same here now.

    Will contact WP manana…

    Maybe I have to debug.myself

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