Monday, July 27, 2009


By : Mr. Antonin G. Scalia, Associate Justice, United States Supreme Court (Appointed by President Ronald Reagan 1986); Law Professor, University of Chicago (1977-1982); Annual Hero of the Federalist Society (2007); Defender of 21st Century constitutional liberty by reference to 18th Century grammar; Founder, the Justice Antonin Scalia Institute for Insulting, Degrading and Denigrating Your Professional Colleagues (Pursuant to Law and Ethics Rules, Common Decency Notwithstanding) (2008-present).

You may have heard that government agents took me into custody last week and subjected me to interrogation. For some odd reason, senior officials in our intelligence community obtained information linking me to an al-Qaeda plot to poison children’s lunches in Washington, D.C. public schools. During my custody, I was asked many questions. Since then, the wildest rumors have been circulating about it. Today I write to put these rumors to rest. Put simply, I am fine. A little tired, yes, but otherwise fine.

Nobody tortured me last week. Rather, agents from the Department of Homeland Security, the CIA and the FBI came to my home last week and informed me that they had “information” linking me to a terror plot. I responded that this was nonsense. The agents ignored my response. They told me they had to “take me into custody” to ask further questions. They said that “the safety of American children” was at stake. It angered me that someone provided false information linking me to a conspiracy to kill children. But I did not blame the officers for arresting me. After all, they were merely acting to protect American children. What did they know? They had to get the truth. If I had to suffer temporary incarceration to dispel their suspicions, I was prepared to pay that price for living in a democracy committed to safety for all.

After surrendering to the agents, they handcuffed me and put a black hood over my head. I remember being pushed into an automobile, then an airplane. The airplane took off. We were airborne for what seemed an eternity. No one spoke during the flight. When we finally landed, I was led down from the plane. I heard the agents speaking. Men answered them in a foreign language. I think it was Polish or Bulgarian, but I do not know for sure. It was Slavic, but I don’t think it was Russian. I was put into another car. I no longer heard the American agents. Now, I only heard Slavic voices.

We stopped after driving about two hours. At this point, I was taken from the car. Someone finally took the hood off my head and uncuffed me. It was early morning. I looked around. I was in a forest near an old concrete bunker. There were several trucks and jeeps parked outside the bunker. About fifteen armed men wearing green uniforms milled around the bunker entrance. I had no idea what they were saying. My eyes hurt; I could not look directly into the light because they were still sensitive. I had not slept during the whole trip. After about a minute, two soldiers with slung rifles approached me and said in accented English: “Come with us. We have some questions to ask you.”

I was taken into the bunker. A stairway led about two stories underground. There was a long hallway with steel doors lining either side. Lamps hung overhead, casting a pale white glow from above. The soldiers opened a door on the left and pushed me in. It was a large room. It smelled musty, as if there was not enough ventilation. There was a single steel table in the middle of the room, with a chair on either side. A few old-looking file cabinets stood against each wall. There was a small door at the back of the room.

“Wait here,” said one of the soldiers. “Make yourself comfortable,” he added, pointing to the chair. I sat down. The soldiers left the room. They closed the heavy steel door and locked it behind them. I sat alone for several hours. There was no bathroom and I desperately needed to relieve myself, since I had no opportunity to do so during my journey up to this point. Finally, I had to relieve myself on the floor.

Several more hours passed. I could not sleep. The chair was too uncomfortable. Strange, scattered thoughts started racing through my head. I started fixating on the bright fluorescent lights that lined the ceiling above me. They buzzed incessantly. One even flickered a little. I started scratching my head and staring at the flickering light. I wanted desperately to sleep but I couldn’t close my eyes for more than a second. I started pitying myself and cursing the whole situation. After all, I hadn’t done anything. But I immediately caught myself: “No, you have to go through this to protect the children.” Even though I was innocent, I willingly absorbed my adversity because I knew our agents had to protect Americans from terror.

Finally, the door in the back of the room creaked open. Two officers came into the room. I looked up at them. One of the officers held a file folder. The other one held a rusty steel device that looked like a leg brace. It had screws on either side and two jagged-looking “jaws.” A moment later, two soldiers came into the room with rifles. After them, another man came into the room. He was black. He was not wearing a green uniform. He looked American; the others did not. He closed the door behind him. The two officers looked back at him. “Are you ready, sir?” They asked. “Yes. Go ahead,” he responded. By his voice, I knew he was American.

“Well, Antonin,” began the officer in accented English, setting his file folder onto the table. “We can make this as easy or as difficult as you want. We know you’ve been speaking to al-Rahwiri.”

“I don’t know what this is all about,” I responded. “You obviously don’t have the right man here.”

The officer looked at me blankly. Then he turned to the other officer and gestured with his head toward the table. The other officer threw the steel device onto the table. “You were saying?” He paused, then continued: “There is no point lying to us. We know you spoke to al-Rahwiri. We know about the D.C. school district. We know you discussed cyanide with him.”

“I don’t know where you got that information, but it can’t be accurate.”

“Antonin, I don’t want to be a bad guy with you. Just tell us you plotted to kill the kids in D.C. and you can go home. If you don’t confess, this is not going to be a good day for you. Please, be easy on yourself. There’s no way out of this. I know you think you’re smart and you know about constitutional law. You think you have rights, even though you routinely deny them to others. Look, don’t be hard on yourself. Just tell us you know about the plot, then we can start talking like two civilized human beings.”

“I’m sorry, but I can’t admit to that. It’s just not true. And I will not be coerced into saying otherwise.”

“All right. Have it your way.” The officer gestured to the two soldiers, who violently restrained me. Meanwhile, the second officer picked up the metal device and dangled it in front of my face. The two soldiers strapped me to my chair with ropes. The second officer pushed the chair away from the table and grabbed my right arm. Although I tried to struggle, he placed my right thumb into a slot on the metal device. He started screwing the two jagged “jaws” together around the thumb.

At this point, I was mildly alarmed. The two jaws met around my thumb and slowly crushed it. I could literally feel the bone shattering inside my hand. It hurt quite a lot, but it was bearable. I knew that the officers were simply trying to protect children from terrorists, and that justified my physical suffering. The jaws continued to press together until my thumb was virtually squashed. But I did not cry out, nor did I confess. After all, I hadn’t done anything.

“Why don’t you just say you talked to al-Rahwiri?” asked the officer.

“Because I never talked to him,” I responded despite the bearable pain.

“Well, I don’t believe you,” the officer replied. He then turned to the American behind him. The American nodded and pointed toward a file cabinet. The officer nodded. He said something to the soldiers in his language. They let me go. They opened the file cabinet and removed what looked like garden shears. Then the second officer slowly unscrewed the device from my thumb. I did not have much of a thumb left, but I was managing well.

“Now, Antonin. You can’t hold out forever. You are pretty good liar. You are even willing to take some pain to defend your lies. But no one leaves this room without telling the truth. All right, now where were we? Oh yes, the D.C. school district. Tell us that you bought cyanide with the intention of collaborating with al-Rahwiri to poison children’s lunches.”

“I never did that. I never bought cyanide. And I never intended to poison children. I have just been writing judicial opinions and questioning lawyers at oral argument for the past 10 months.”

He looked at me incredulously. “Well, we’re asking the questions now.” He then picked up his file folder, flipped a few pages and picked one out. “If you did not buy cyanide, why do we have this order ticket from CyanID Co. Inc. memorializing the sale of 500 gallons of liquid cyanide to you, Mr. Antonin G. Scalia on July 1, 2009? You see, Antonin, don’t try to deceive us. We have evidence.”

“That’s a forgery. I never did business with that company. I never bought cyanide.”

“Antonin, please. Evidence is evidence. We even have evidence showing that you transferred funds to CyanID Co. Inc. Now, either you tell us the truth or we will draw it out of you.”

“Go ahead. I never did anything wrong.”

The officer sighed. He nodded to the two soldiers, who again braced me. The second officer tore off my shirt. He then took the garden shears and clipped off my right nipple. “Still don’t know anything, do you, Antonin?”

I did not let the officer intimidate me. “No, I don’t. I will not lie to you.” Although it hurt to lose my right nipple, clipping it off was a necessary measure calculated in good faith to protect American children from terror.

At this point, a cell phone rang. The American answered: “Phelps here.” He stood listening for several minutes, interrupting only to say, “yes,” “oh really” and “un huh” several times. Finally, he said: “Yes, sir” and hung up the phone. He gestured for the officer to approach him. He whispered something to the officer. The officer nodded, glanced over at me, looked back at the American, then saluted. The American pursed his lips, turned around, opened the back door and walked out.

Several silent moments passed. The officer said something to his comrades in his language. The soldiers cut the ropes holding me to the chair. The second officer opened the file cabinet and put away the garden shears. He then took my shirt and put it over my shoulders. Finally, the lead officer said in English: “We have received information indicating that you are no longer a suspect. You may leave now.” He abruptly turned and left the room. The second officer followed. The two soldiers stayed with me. I just sat there.

Within minutes, two doctors came into the room and bandaged my wounds. They gave me a new shirt and brought me a meal and water. Then the two soldiers helped me up, led me upstairs and placed me in a waiting truck. The truck drove to a military airfield, where an American transport jet was waiting for me. Two U.S. Air Force officers greeted me. One said: “Sorry for the misunderstanding, your honor,” then gently helped me aboard the plane. They showed me to a comfortable bed and I laid down for the flight back to the United States.

I recount these details because I believe the American people deserve to know what happened to me. Contrary to all the rumors, I was not tortured. Rather, I was subjected to legitimate investigation calculated to determine whether terrorists planned to kill American children. The Executive Branch of the Federal government has authority to pursue any means necessary to protect Americans from terror, including investigations that may appear harsh. Put simply, when our government has a legitimate purpose—such as protecting children from al-Qaeda—it may pursue any methods necessary to effectuate that purpose. Although I endured some personal discomfort as a result of this investigation, our agents cannot always be perfect. I do not fault them for zealously attempting to root out terror, even in error.

I was not tortured because torture is illegal by treaty. Our government does not act illegally, nor does it ignore its treaty obligations. Under the governing legal standard, “torture” means the “intentional infliction of severe pain for a prohibited purpose.” Applying this definition to my experience, I can say to a legal certainty that I did not suffer torture.

First, I did not suffer “severe” pain. True, the thumbscrew device crushed my right thumb. It inflicted “pain.” But it was bearable pain. Viewed objectively, the pain was not “severe.” I can imagine far worse pain. It also hurt quite a bit when the officer clipped off my right nipple. It also permanently disfigured and degraded me. Again, however, the pain was not “severe.” While no specific case under the treaty has ever addressed nipple-clipping, I am confident that—as a jurist—such mild impositions do not rise to the level of “severe” pain necessary to meet the legal definition.

Second, and more importantly, the agents in this case did not inflict pain on me for a “prohibited purpose.” Cases have held that “prohibited purposes” under the treaty definition include sadism, unlawful information acquisition, revenge and medical experiment. Here, the agents inflicted pain on me in the honest—though mistaken—belief that I conspired to poison children in the D.C. public school system. They were acting to prevent what they reasonably believed to be imminent deadly harm to American children. That is about as legitimate a purpose as you can have. It is certainly not “prohibited” to zealously protect American children. In fact, that purpose justifies everything, including the infliction of “severe pain.” Thus, even if I concluded that the agents in this case inflicted “severe” pain on me, they still would not have committed “torture,” because their purpose was not “prohibited.” To the contrary, it was eminently legitimate.

I am committed to the rule of law. The rule of law in my case clearly indicates that I did not suffer torture. We apply legal definitions as they are written, not as what “we think they mean.” Logic and precedent establish that crushing thumbs and clipping off nipples do not constitute “torture” under the governing legal standard. I therefore reject all the liberal allegations that I wrongfully suffered “torture” while in custody last week. The rule of law suffers when the public irrationally applies “colloquial” understandings to make “legal” conclusions. I refuse to turn my back on the law, even if I endured a personally uncomfortable incident.

Torture is a legal term, not a colloquial one. Under law, I did not suffer torture. In fact, I am proud to live in a society with laws that allow its government to use any methods necessary to protect children from imminent terrorist attack. When our children’s safety is at stake, I think it is entirely reasonable to allow our government to take unrestricted action against the suspected conspirators. Our Constitution is not absolute; after all, our Constitution would be worthless if terrorists could freely attack the population. And what good is government if it cannot protect itself in the most threatening circumstances?

I do not need a right nipple to continue my duties as an Associate Justice of the United States Supreme Court. I am ready to get back to work immediately. And I will continue to hold that no one commits “torture” if they inflict pain to protect children from imminent harm.


Timoteo said...

There are people in America with such blind, misguided trust in our government that they would applaud "Mr. Scalia's" position.
GREAT piece!

Balthazar Oesterhoudt said...

Thanks for that comment, Timoteo. Sadly, you are absolutely right. I have spoken to many people over the years who say that "torture is wrong," UNLESS blah blah blah. In my view, torture is morally indefensible in any circumstance, especially in a constitutional order committed to human dignity. If doing evil is necessary to stop evil, have we proved our goodness? I think not.

My other target in this piece is the disparity between practical reality and legal thinking. Justice Scalia appears ridiculous here because he claims what happened to him "was not torture under law." As readers, we immediately see that he was "tortured." But Scalia puts his full faith in legal definitions, even when they completely diverge from reality. This is a serious danger in all legal thinking. Many lawyers do it. And they relish it, too, because "legal rules" can force people to do things.