Is Torture Constitutional? Depends On Which Judge You Ask


Opinions have been flying fast and furiously in Washington, D.C., since the release last week of the Senate report on torture of detainees by the CIA. And the latest figure to weigh in is Supreme Court Justice Antonin Scalia. In an interview with a Swiss broadcast network, Scalia said there is no prohibition against the torture of suspected terrorists or their accomplices. “I don’t know what article of the Constitution that would contravene,” Scalia added.

Upon reading Scalia’s thoughts on the subject of torture, I decided to call a good friend of my family who also happens to be a retired Georgia Superior Court judge. Judge Eli Smith served on the bench for 30 years and was known for his thoughtful consideration of legal issues. Judge Smith was not in agreement with Justice Scalia. He says the Constitution is extremely specific on the matter of how accused people are to be treated, both before, during, and after they are interrogated:

The first thing that comes to mind is the Eighth Amendment, which specifically prohibits the use of cruel and unusual punishment. Mr. Scalia might say that only applies to  Americans, but I would say that is a very narrow-minded view of how we treat all people in the system of justice we have established in America. If we read a report of police or prosecutors beating or abusing a suspect to get a confession of wrongdoing, we would quite rightly be offended by such behavior and bring those who did such things up on criminal charges themselves. There is no loophole, in my opinion, which allows one to ignore these standards when it comes to a person who is being questioned by Americans overseas or in some third country.”

Judge Smith also said history should serve as a guide on the issue of how we treat POWs, detainees, or those suspected of terrorist connections or acts:

“At the conclusion of World War II, the Americans, along with their allies, conducted war crimes tribunals for those suspected of abusing Allied POWs. One of the acts specifically mentioned in the prosecution of Japanese war criminals was waterboarding. Men were found guilty of  waterboarding and beating Allied soldiers and sentenced to be executed as a result. So that makes me wonder if we have now have one standard of justice for ourselves and another for those we declare to be our enemies. If we have changed that standard to suit our own purposes, we must understand that others can do the same to us if they so wish. Is that the kind of treatment we would condone or excuse if it happened to one of our brave military men or women?”

Before I ended my call with Judge Smith, I made a point of asking if he thought, perhaps, Americans might one day be able to agree that torture is wrong in any circumstance. “I’m an optimist,” Judge Smith told me. “But man has, time and time again, made optimists out to look like fools.”

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