Nino Scalia, Your Hairshirt Is Showing, and Your Bishop Has a Message for You

Supreme Court Justice Nino Scalia is a prominent critic of those who would turn to international treaties and agreements and to foreign law as authorities for resolving legal disputes.Scalia, who studied abroad at the University of Fribourg in Switzerland, is more accepting of the use of foreign law for purposes of ascertaining the accepted international understanding of treaties, for instance–as reflected in a speech he gave at the American Enterprise Institute on May 19, 2006. But he has been very aggressive in opposing references by American judges to foreign legal materials when addressing domestic legal issues, suggesting, for instance, that it is inappropriate for a judge examining a death penalty practice to survey how nations around the world deal with it. Scalia tells us that this departs from the notion of sovereignty introduced by the Founding Fathers. But of course, they preached a “decent respect for the common opinion of mankind” (Jefferson) and even the man most attached to the sovereignty theory, Alexander Hamilton, was famous for his copious references to foreign legal materials and precedents. But in their place, the controversial duck-hunter has found an alternative source for legal dogma. In a speech delivered in Canada last year, he repeatedly cited Fox’s “24” and its fictional hero Jack Bauer as the authorities in support of his views about torture. The Wall Street Journal reported Scalia stating: “Jack Bauer saved Los Angeles . . . . He saved hundreds of thousands of lives . . . Is any jury going to convict Jack Bauer? . . . I don’t think so.” The problem, of course, is that Jack Bauer doesn’t exist and the ticking-timebomb scenario on which “24” is built has never occurred in the entirety of human history. It seems a strange basis on which to be making law. But then it’s also strange that a man who becomes violently unsettled at the idea of considering how a court in Britain or Canada addresses a legal problem has no inhibitions about importing specious reasoning from Hollywood.

Today, Scalia strikes again in an interview with the BBC. Here’s a choice clip from his discussion with BBC Radio 4:

Justice Scalia 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?”

This is quite a list of aggressive positions on legal issues. No doubt about it, Scalia is running for the position of “torture judge.” He’s skeptical about use of the label of “torture” for trivia like a slap in the face or the insertion of needles under the fingernails. (The latter being a proposal that Harvard law professor Alan Dershowitz popularized five years ago). And there’s no doubt in my mind that he’d curl his lip at the suggestion that waterboarding is torture, too.

His legal posture is very interesting. The Constitution, he argues, bans the use of “cruel and unusual” punishment. That means no torture if you’ve been convicted of a crime. So in Scalia’s internal legal world, the application of torture to someone who’s not even been charged with a crime and who may simply be completely innocent—say a witness to some serious plot, but not a conspirator—might be just fine. This may well reflect a sort of logic, but it doesn’t reflect an appreciation of the historical roots of the prohibition on torture, which evolved over hundreds of years in English jurisprudence.

Scalia went on in his interview, conducted with the London School of Economics’s Professor Conor Gearty, to mock Europeans for their bleeding-heart concern about torture and their opposition to the death penalty.

Scalia describes himself as a devout Catholic and one of his sons is a Catholic priest. He is also widely rumored to be an adherent of a Catholic organization called Opus Dei, which embraces the practice of mortification — the voluntary offering up of discomfort or pain to God. In popular culture, Opus Dei’s embrace of mortification has been associated with the use of the hairshirt and of the cilice–a small metal chain with inwardly-pointing spikes, used to cause pain or discomfort to the wearer. What to some is an act of religious devotion, to others has tones of masochism. Church leaders seem progressively less and less fond of the notion of mortification–and concerned that those who practice it may be led into error with respect to the church’s teachings on the duty to respect the integrity of the human body. That concern is far from misplaced.

However, just as Scalia offers up his dismissive comments about torture, the National Conference of Catholic Bishops has a very different message for the community of the faithful. It issued an urgent appeal for support of a legal initiative to clarify that the standards developed by the U.S. military are binding on everyone, including the Jack Bauers of the world. The Catholic Bishops’ appeal went exactly to the points that Scalia was denigrating—practices like the slap in the face and the use of sterile needles, as well, of course, as waterboarding. And according to a report in the Wall Street Journal, the current season of “24” will be a head-on attack against the self-appointed advocates of ethics–like the Catholic bishops–who dare to challenge Jack Bauer’s use of torture techniques. Can it really be the case that in the battle of the bishops versus Jack Bauer, Scalia opts for Jack Bauer? That’s certainly the trend of Scalia’s remarks to the BBC today. Here’s what the Bishops’ appeal–just out–says:

Torture is abhorrent in the eyes of the Church as it undermines and debases the dignity of both victims and perpetrators. Pope Benedict XVI said, “I reiterate that the prohibition against torture ‘cannot be contravened under any circumstances.’”

The Bishops remind of the unequivocal teaching of the Catholic Church on torture, found in the catechism:

Respect for bodily integrity.

[2297.] Kidnapping and hostage taking bring on a reign of terror; by means of threats they subject their victims to intolerable pressures. They are morally wrong. Terrorism threatens, wounds, and kills indiscriminately; it is gravely against justice and charity. Torture which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity. Except when performed for strictly therapeutic medical reasons, directly intended amputations, mutilations, and sterilizations performed on innocent persons are against the moral law.

[2298.] In times past, cruel practices were commonly used by legitimate governments to maintain law and order, often without protest from the Pastors of the Church, who themselves adopted in their own tribunals the prescriptions of Roman law concerning torture. Regrettable as these facts are, the Church always taught the duty of clemency and mercy. She forbade clerics to shed blood. In recent times it has become evident that these cruel practices were neither necessary for public order, nor in conformity with the legitimate rights of the human person. On the contrary, these practices led to ones even more degrading. It is necessary to work for their abolition. We must pray for the victims and their tormentors.

Two things are significant about this teaching. One is that torture is placed in the same category of intrinsic evil as acts of terrorism. That is because torture is itself an act of terrorism and must be understood that way. The other is that the Church reflects on its mistaken history of keeping silence in the face of torture by temporal authority and now recognizes the need to speak against it and to call upon the faithful to do so as well. In fact many religions, not only the Catholic Church, have a record of silence on the question which was only overcome after long and painful experience.

Nino Scalia and other apologists of the Bush Administration force us to revisit the painful experiences and mistakes of the past. Their cynical comments should not go unchallenged. In fact, the bishops have a specific call to action, which I embrace:

If your Senator is listed below, please contact him or her and urge support for the anti-torture provisions (Section 327) in H.R. 2082, the Intelligence Authorization Act for FY 2008.

Check http://capwiz.com/c-span for your Senator’s telephone number and email address.

Lamar Alexander (R-TN)
Mel Martinez (R-FL)
Evan Bayh (D-IN)
John McCain (R-AZ)
Sam Brownback (R-KS)
Lisa Murkowski (R-AK)
Robert Casey (D-PA)
Ben Nelson (D-NE)
Norm Coleman (R-MN)
Ken Salazar (D-CO)
Susan Collins (R-ME)
Arlen Specter (R-PA)
Mary Landrieu (D-LA)
John Sununu (R-NH)
Joseph Lieberman (D-CT)
George Voinovich (R-OH)
Richard Lugar (R-IN)
John Warner (R-VA)