Garry J. Wise blogs about recuse Scalia

National Lawyers Guild: Justice Scalia "Unfit to Sit" Over Torture Comments

U.S. Supreme Court Justice Antonin Scalia has ignited yet another firestorm over controversial comments regarding torture, made in a BBC interview broadcast last Tuesday.

During the interview, Scalia dismissed as "absurd" the suggestion that the U.S. Constitution prohibits the use of physical force in terror-related interrogations:

It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that."

...Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited by the Constitution? Because smacking someone in the face would violate the 8th Amendment in a prison context. You can’t go around smacking people about.

Is it obvious, that what can't be done for punishment can't be done to exact information that is crucial to the society? I think it's not at all an easy question, to tell you the truth.

In response, the U.S. National Lawyers Guild, a "public interest/human rights bar organization," headquarted in New York called Scalia "unfit to sit" on the Court, and called for his recusal from any case considering the constitutionality of the use of torture as an interrogation technique:

National Lawyers Guild Calls on Justice Antonin Scalia to Recuse Himself From Interrogation-Related Cases

NEW YORK - February 15 - The National Lawyers Guild calls on Supreme Court Justice Antonin Scalia to recuse himself from any case coming before the Supreme Court involving the constitutionality of torture as an interrogation technique. In a BBC interview that aired on Tuesday, Scalia defended the use of torture to extract information from persons in custody by law enforcement officials in some cases. Although no case involving the use of torture is currently before the Court, recent events suggest that such a case may be forthcoming.

Guild President Marjorie Cohn said: “The Guild is appalled that a sitting Justice of the United States Supreme Court has ventured in a public forum his belief that it is justifiable to attempt to extract information from persons in custody by the use of torture. A justice of the highest court in the land, sworn to uphold the Constitution, whose views so undermine the fundamental right of security of the person guaranteed by the Bill of Rights, is unfit to sit on that Court.”

The thrust of Scalia’s recent remarks is that he does not believe it is clear that the government is precluded from using coercive interrogation to prevent an imminent terrorist attack. He says that the Constitution forbids cruel and unusual punishment, but if torture is not meant as punishment, it may not be unconstitutional. Surely Justice Scalia knows that torture is unlawful under the U.S. Torture Statute (18 USC 2340) and the U.S. War Crimes Act (18 USC 2441). Two years ago, five retired U.S. military officers who had entered a case before the Supreme Court for Salim Ahmed Hamdan sought Scalia’s recusal after he publicly voiced skepticism abut the rights of Guantanamo detainees. Scalia declined to recuse himself.

Further reading:

• Scalia's Latest Smack from Law.com - Inside Opinions: Legal Blogs
• Scalia Defends Torture: It’s ‘Absurd’ To Say The Gov’t Can’t ‘Smack’ A Suspect ‘In The Face’ from Think Progress
• Justice Scalia Defends Torture from TalkLeft
• Scalia Says 'So-Called Torture' Cannot Be Ruled Out as Interrogation Method from Law.com - Newswire

- Garry J. Wise, Toronto

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How Bush Keeps Rendition Victims Out of Courts

MASSACHUSETTS SCHOOL OF LAW

Andover, Massachusetts

A MASSACHUSETTS SCHOOL OF LAW REPORT

“Thousands” Illegally Rendered By Bush Administration for Interrogation, Torture; How Bush Changed Rendition Policy

In violation of international and U.S. law, “thousands” of alleged terrorists have been victims of “extraordinary rendition” by the Bush Administration since 9/11, two legal scholars say.

“Instead of working to bring those committing crimes against the United States to justice in U.S. courts, the Bush Administration seems intent on doing exactly the opposite---keeping such individuals away from U.S. courts, hidden in a web of secret prisons, underground interrogation cells, and in the hands of cooperative governments,” write Margaret Satterthwaite and Angela Fisher.

Satterthwaite is an assistant professor of clinical law at NYU School of Law and Fisher served as assistant research scholar with the Center for Human Rights and Global Justice.

“Extraordinary renditions, whether originating in territories under U.S. control (actual or effective) or merely carried out by U.S. agents, are unlawful and in violation of international treaties to which the United States is a party,” the authors write.

“Despite this clear prohibition, the Bush Administration continues to engage in this practice, using it to transfer detainees out of the reach of U.S. courts and into the realm of secret detentions and brutal interrogations.”

“Having altered the procedure from a transfer sanctioned by U.S. courts to a transfer that is extralegal, this Administration completed the transformation of extraordinary rendition from transfer to justice to transfer out of the justice system,” the authorities contend in an article titled “Tortured Logic: Renditions to Justice, Extraordinary Rendition, and Human Rights Law” published in “The Long Term View,” a journal of informed opinion published by the Massachusetts School of Law at Andover(Volume 6, No. 4).

The authors explain that extraordinary rendition is an updated form of “rendition to justice,” first secretly authorized in 1986 by President Reagan in National Security Decision Directive 207, which formalized U.S. policy to fight terrorism. It came into being, they say, because the U.S. in the 1980s did not have valid extradition treaties with countries that commonly housed terrorists or because those nations refused to give the suspects up.

Under Reagan, they write, “it has never been suggested that the purpose of the program was to subject the detainees to torture or cruel, inhuman, or degrading treatment. Once in the United States, the rendered individual would be treated like any other federal detainee awaiting trial.”

Satterthwaite and Fisher said President George H.W. Bush authorized specific procedures for renditions in 1993 through National Security Directive 77.

President Clinton, they noted, went further “emphasizing rendition as a key counter-terrorism strategy” and signing presidential decision directive PDD-39 on June 21, 1995, which stated, in part, “Return of suspects by force may be effected without the cooperation of the host government…” One outcome of the Clinton policy, the scholars write, was the rendition of Tal’at Fu’ad Qassim, an Egyptian national that had been granted asylum in Denmark and seized by the U.S. in Bosnia and transported to Egypt, where he was reportedly executed---the first known rendition by the U.S. of a victim to a third country with a record of torture.

Between 1998 and 2000, the CIA rendered more than two dozen suspects, then-CIA Director George Tenet testified. In 2004, Tenet testified before Congress there had been more than 80 renditions prior to September 11, 2001.

Since 9/11, the scholars wrote, renditions have been used not to obtain jurisdiction over the suspects in order to prosecute “but instead to get an individual to talk.

” Previous renditions that required approval by an inter-agency group that included the Departments of Justice and State, were now placed in the hands of the CIA, which could render suspects “without consultation.”

Satterthwaite and Fisher write extraordinary rendition is prohibited by a number of international human rights treaties the U.S. has signed, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(“CAT”), and the International Convenant on Civil and Political Rights(ICCPR, or “the Covenant”).

Both prohibit the refoulement, or transfer, of an individual to another state where the person faces the risk of torture. Both treaties require ratifying states to institute domestic laws penalizing torture and CAT specifically requires states to criminalize conspiracy and aiding and abetting in torture.

Sherwood Ross has worked as a publicist for the City of Chicago and Nassau County, N.Y.,governments; as a news director for the National Urban League; as a reporter for the Chicago Daily News; as a workplace columnist for Reuters; as a media consultant to colleges, universities, law schools and more than 100 national magazines including The New Yorker, The Atlantic, Business Week, and Foreign Policy; as a speechwriter for mayors, governors and presidential candidates, and as a radio news reporter and talk show host at WOL, Washington, D.C. He holds an award for "best spot news coverage" for Chicago radio stations in 1963. His degree from the University of Miami was in race relations and he has written a book, "Gruening of Alaska," a number of national magazine articles and several plays, including "Baron Jiro," produced at Live Arts Theatre, Charlottesville, Va., and "Yamamoto's Decision," read at the National Press Club, where he is a member. His favorite quotations are from the Sermon on The Mount.