Justice Scalia has died and the accolades are rolling in. Many have used the phrase, "a great legal mind" and there will no doubt be honors and statues to follow. But on one key issue - torture - Scalia let down America and used his legal mind to construct an interpretation of the Constitution that could have been a gymnastics trick in the Olympics. When it comes to torture, Scalia, like his pal, Dick Cheney, managed to use the Constitution as his own personal toilet paper. Perhaps a little background is in order:
The whole point of America was to create a system of government that protected the individual from the state. The three branches were supposed to insure that no one group had too much power. There were checks and balances. There were rights granted the individual. Of course, someone always has to have the final say. Otherwise the system can't work and in our case it's the Supreme Court. We put them in an ornate building and make them wear robes as if to pretend these people are inherently different. They're impartial and above it all. But ultimately, they're still flawed humans and we're at their mercy. We have to hope they do a good job and remain true to the promise of America, but when they don't, we are screwed. They have the power to alter what the country looks like from then on. They can take back rights that took centuries to gain.
It's a constant battle keeping the powerful in check. Their natural position is to want more control so it is up to the system to say, "No. That's enough." For example, some powers are granted the president only in a time of war and that is one reason we have the War on Terror - as President Bush called it, "a war that will not end in our lifetimes." One result of the War on Terror is that it gives presidents the authority to do any damn thing they want. A president can arrest someone and even execute them without trial all in the name of national security. There has been a tremendous erosion of the rights of the individual and it begs the question, "If we were okay with authoritarian rule, why did we leave England in the first place?"
No issue captures the power of the state over the individual like torture. If the state can take you in a room and do whatever it wants to you, it wouldn't matter if you couldn't vote anymore. Freedom of speech? You'd be too busy screaming. The state cannot be allowed this power of inflicting cruel and unusual punishment on someone or we are living in a hellish nightmare. So that is why it was so dangerous when Scalia stated that torture was not unconstitutional. Judge Scalia: "The Constitution says nothing whatever about torture. It speaks of punishment; 'cruel and unusual punishments' are forbidden." So is torture forbidden? "If it is imposed as a punishment, yes, " Scalia said. "If you condemn someone who committed a crime to be tortured, that would be unconstitutional."
When the state wants to torture someone, you don't ask for its reasons. Instead you go to the individual chained up in the little room spitting blood out onto the floor and ask a simple question: "Do you feel like you're being punished right now?" Follow it up with, "Kind of cruel, isn't it?"
Do you see the massive potential for abuse of power here? You could be sentenced for a simple crime and the state would have the right to torture you - as long as they claim they were doing it for a reason other than punishment. How about to set an example as a deterrent? Would that be good enough? What if the state said, "We have no desire to punish this inmate. We're merely using torture so the rest of you will learn that we mean business"? How about if the state is just improving our torture methods? "We're just torturing you so we'll be ready later if we have to torture the bad guys. Think of this as patriotic torture." What if - God forbid - one of our leaders turns out to be a twisted psychopath and just enjoys it? Torture wouldn't be punishment then - it'd be for fun.
This interpretation by Scalia seems to me to be trying way too hard to give authority to people like Dick Cheney to do any damn thing they want when they get in power. It's taking a dump on the central reason America came into existence. And Scalia's reasoning is verbal gymnastics that borders on the farcical. Maybe that's what they mean when they say he had a "great legal mind." Look, he pulled that opinion out of someplace dark, but it wasn't his mind. You know what he really brought to the torture debate, right? Tortured logic.
Maybe we should go back to the beginning of the country - to phrases like "the pursuit of happiness." Maybe we should look at this from the point of view of the individual citizen. How about considering our rights and freedom instead of using the courts to return America to the type of tyrannical rule we thought we left behind? Here's how we could do it: