The Scalia torture paradox

The more I have had an opportunity to consider US Supreme Court Justice Antonin Scalia's decision on the constitutionality of torture, without actually having heard a case, the more enraged I have become. In fact, I actually work up sometime around 3 this morning thinking about it. In fact I may have been dreaming about it which clearly is evidence of my deteriorating mental state (but enough about me).

Justice Scalia is, of all of the right wing Supreme Court Justices, the one most beloved by the Christian right; i.e. those who feel that God's law and Christian morality (as defined by them) should be the basis for American government and jurisprudence. This is hard to reconcile with the curious nature of Justice Scalia's (non binding) opinion on torture. His thinking is diametrically opposed to any moral structures and is based on a typical lawyer's conceit; that torture of a suspect is not punishment and therefore is not covered, he asserts, by the Eighth Amendment restrictions on "cruel and unusual punishment". Ergo torture is Constitutional.

So why do the Christian right so adore Scalia? I suspect it is because that, irrespective of his reasoning, his opinions nearly always coincide with theirs; the ends justify the means.

Justice Scalia's opinion could also prove critically important, should it be adopted by a majority of the Court, as it would probably ensure that American treaty ratifications would provide absolutely no protection for the citizens of the world from torture by Americans, at least as long as they haven't been charged with or found guilty of any offence.

Illegal US detainees in Iraq, Afghanistan, Diego Garcia and places unknown as well as those held at the Guantánamo Bay Beach and Leisure Resort are already exempted from any protections under the Geneva Conventions if the US military deems them not to be prisoners of war. Scalia's thinking would also ensure that any legal or illegal detainees of the United States are not offered protections under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Why is this? The Convention clearly defines torture 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." (Article 1.1)

"It also provides that:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture."(Article 2.2)

So how is it that acts that the US is currently engaged in and has recently engaged in do not represent torture as such and therefore would be in violation of the US ratification of this treaty? Because when the US ratified the Convention a reservation was noted to the effect that "the United States considers itself bound by the obligation under Article 16 to prevent 'cruel, inhuman or degrading treatment or punishment,' only insofar as the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."* Therefore anything found acceptable by American courts under the 4th, 8th and 14th Constitutional Amendments is not covered by the Convention!

So we are trapped, if Scalia carries the day, in a situation where there are essentially no protections for foreign nationals, and few protections for Americans, from torture at the hands of Captain Codpiece and his evil minions and their undoubtedly equally evil successors.

We should be ashamed. I certainly am.

*(Note: a further American reservation to the ratification goes even further and ensures that any psychological or mental abuse must effectively cause permanent harm if these acts are to be considered to constitute torture.)