Originalist sin

"It will almost certainly cause more Americans to be killed."

So wrote Antonin Scalia in his dissenting opinion in Boumediene v. Bush (as noted earlier), which permits detainees at Guantanamo and elsewhere to challenge the legality of their imprisonment by filing writs of habeas corpus in federal courts.

A few days later, with no apparent sense of irony, the Supreme Court released Scalia's opinion for the 5-4 majority in District of Columbia v. Heller, which invalidated D.C.'s ban on handguns. Scalia neglected to mention that the result in Heller is absolutely certain to "cause more Americans to be killed."

While I can't say I've gotten through all 157 pages of Heller, it's interesting to see how Scalia has parsed the 2nd Amendment's reference to "[a] well regulated Militia, being necessary to the security of a free State..." In it he finds, through breathtaking contortions, an individual right to bear arms rather than a collective right, as the phrase would plainly suggest.

It's a familiar display of sophistry and outcome jurisprudence, armed to the teeth (bad pun) with cites to often-obscure sources (including a "Linguists' Brief") over two centuries. It's as if Scalia thinks an opinion creaking under the strain of so many sources would compensate for the feeble logic of his position.

Scalia's meticulous resort to centuries of legislative history in Heller directly conflicts with his long hostility to reliance on legislative and historical sources:

It says to the bar that even an "unambiguous (and) unequivocal" statute can never be dispositive; that, presumably under penalty of malpractice liability, the oracles of legislative history, far into the dimmy past, must always be consulted. This undermines the clarity of law, and condemns litigants (who, unlike us, must pay for it out of their own pockets) to subsidizing historical research by lawyers. The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators. . . . But not the least of the defects of legislative history is its indeterminacy. If one were to search for an interpretative technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history. [Conroy v. Aniskoff, 507 U.S. 511 (1993).]

Or, as Scalia wrote a few years earlier, "the main danger in judicial interpretation of the Constitution — or, for that matter, in judicial interpretation of any law — is that the judges will mistake their own predilections for the law." [1]

Scalia's contortions evoke Harry Frankfurt's notion of bullshit:

"His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose."

Scalia's textualism, it seems, depends entirely on the context.

NOTES

[1] Antonin Scalia "Originalism: The Lesser Evil," 57 University of Cincinnati Law Review 849, 851 (1989) [as quoted here].

[A version of this entry was cross-posted as
a comment on Lawyers, Guns and Money.]

Scalia: A legend in his own mind

In his dissenting opinion in Boumediene v. Bush, which conferred the right of judicial review on detainees at Guantanamo and elsewhere, Antonin Scalia flatly declared:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

In support of this contention, he claims:

In the short term... the [majority's] decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.

He goes on to cite several incidents from the GWOT "battlefield" — a very flexible concept for Scalia — as alleged in such sources as the minority report of a Senate committee and several articles from WaPo. Most of the alleged incidents occurred in 2004.

Mark Denbeaux, a professor at Seton Hall University School of Law (SHUSL), with the assistance of several law students, deconstructed Scalia's claims in a detailed 22-page report that found:

"Justice Scalia’s reliance on the these sources would have been more justifiable had the urban legend he perpetuated not been (one would have thought) permanently interred by later developments, including a 2007 Department of Defense Press Release and hearings before the House Foreign Relations Committee less than two weeks before Justice Scalia’s dissent was released.

[...]

"Justice Scalia’s claim of 30 recidivist detainees is belied by all reliable data. Such a statement simply repeats, without appropriate judicial analysis or skepticism towards the statements of parties before the Court, inaccurate data disseminated by the Department of Defense. Despite being repeatedly debunked, this statement has been reflexively accepted as true by Members of Congress and much of the American public. Justice Scalia is only the most recent disseminator of an urban legend that refuses to die."

The SHULS study found that only one released Gitmo detainee (designated "ISN 220") later took up arms against U.S. forces or their allies, and he was not released as a result of any legal process. In fact, the report found that "the decision to release ISN 220 was made by political officers in the Department of Defense and was contrary to the recommendations of the military officers."

Scalia's false claims go to the heart of the rationale for holding detainees without judicial review: if any doubt exists, keep them locked up indefinitely for fear that they might attack the U.S. or its allies [1]. This falsehood will be repeated many times by October 8th, when the first Gitmo trial begins.

Scalia's dissent is yet another variant of the Willie Horton Syndrome (see below and here) in U.S. politics. No politician or member of SCOTUS wants to be blamed for the release of a prisoner who later attacks U.S. troops or civilians. While this impulse may be understandable, an opaque system that includes torture and indefinite detentions is not the solution. A transparent judicial process is better able to balance legitimate security considerations with the due-process rights of those who have been unfairly accused and imprisoned.

NOTES

[1] Unless there's enough international pressure to force their release, of course.

[H/T to Scott Lemieux at Lawyers, Guns and Money
and M. Duss at Think Progress]

"Into a different game..."

In an interview with the BBC on February 12th, U.S. Supreme Court Justice Antonin Scalia (left) addressed the question of torture in the following terms:

"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."

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?"

Here, once again, is Scalia's version of "strict constructionism" in action: the "punishment" narrowly refers to sanctions imposed by a court following a criminal conviction.

Scalia seems to believe that the authors of the Bill of Rights weren't really concerned about how people in pretrial custody, for whatever reason, were treated. He implies that the 9th Amendment doesn't restrict coercive interrogations during the investigative process, when the presumption of innocence applies to suspects or defendants in the U.S. legal system. So "smacking someone in the face" is permissible, then, for a suspect (or maybe even a witness) who's presumed to be innocent—but not, Scalia generously allows, for convicted criminals.

There's a separate and quite vast body of law, of course, that applies to coerced confessions by persons who are merely suspects in criminal cases. Seventy-two years ago, in Brown v. Mississippi [1], three black defendants were sentenced to death following their conviction for murder. Despite uncontested evidence of torture, the state Supreme Court affirmed the jury's verdict. Two courageous Mississippi judges dissented and described the events that led to the three "confessions:"

"The crime with which these defendants, all ignorant negroes, are charged, was discovered about 1 o'clock p.m. on Friday, March 30, 1934. On that night one Dial, a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands that he confess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testimony shows that the signs of the rope on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the state of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping... until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.

"The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present; and in this manner the defendants confessed he crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment.

"Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government."

In unanimously reversing the three convictions, the U.S. Supreme Court rejected the notion of a "trial by ordeal," stating [citations omitted]:

"The rack and torture chamber may not be substituted for the witness stand. The state may not permit an accused to be hurried to conviction under mob domination--where the whole proceeding is but a mask--without supplying corrective process...The state may not deny to the accused the aid of counsel... Nor may a state, through the action of its officers, contrive a conviction through the pretense of a trial which in truth is 'but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured...' And the trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence. The due process clause requires 'that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions...'

"It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process."

Is waterboarding even "more revolting to the sense of justice" than the treatment of the suspects in Brown? It's certainly not less revolting. Scalia's reference to a "smacking someone in the face" is disingenuous given the catalog of far greater horrors that have been inflicted on suspects in U.S. custody in places like Guantanamo and Abu Ghraib. His comments to the BBC also focus on the extreme situation facing Jack Bauer in 24: the suitcase atomic bomb that's about to go off in Los Angeles [2].

Ah, but Scalia has already argued that the "unlawful combatants" at Gitmo don't have the same legal rights, and freedom from coercion, as the defendants in the Brown case [3]. In another speech in Europe reported by the BBC , he is quoted as follows:

"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. Give me a break... If he was captured by my army on a battlefield, that is where he belongs."

Scalia, as usual, is quite reckless about expressing himself, and apparently prejudging, matters that are likely to come before the Supreme Court. To paraphrase the old bumper sticker from the days of the AT&T telecommunications monopoly, Scalia might just say: "I don't care, and I don't have to." Unlike other judges, the Supremes aren't subject to any ethical constraints whatsoever, apart from their own consciences.

While Scalia told the BBC that it would be "absurd" to rule out sticking "something under the fingernail" of a detainee in a difficult situation, at least he seems to think that detainees captured on a battlefield are entitled to the same treat as prisoners of war (although 80% of Gitmo inmates were not captured on the battlefield).

The Bush administration, meanwhile, refuses to grant the Gitmo "unlawful combatants" the same minimal rights available to POW's. The prosecution is seeking the death penalty for six detainees, a sentence that is strictly forbidden for POW's under international law, including the Third Geneva Convention of 1949. These show trials will likely be conducted as the fall election approaches, possibly winning political points for Republican waronterra candidates but deepening worldwide cynicism about the alleged "rule of law" in the U.S.

NOTES

[1] Cite: 297 U.S. 278 (1936). The prosecutor in the case was John Stennis, who was the U.S. Senator from Mississippi from 1947 to 1989.

[2] Any minimally-competent terrorist group would arrange to limit the damage to its plans that might result from the capture of any of its members, especially as the plan is about to be realized. It's likely that the terrorists who had actual possession of such a suitcase bomb would be the only ones in a cell who'd know where it was or where it would be used. Torture would be very unlikely to extract any information of value in that situation.

[3] The three defendants were described as "ignorant Negroes" even in the dissent, and no doubt they were second-class citizens. But at least they were citizens entitled to minimal constitutional protections—once their case went beyond the trial court.

PHOTO: The Washington Note