Justice Scalia and the War on Terror

How to interpret the Constitution’s directives in regard to fighting America's war with Islamists?

America suffered a great loss with the passing of Justice Antonin Scalia last weekend. While a great many Americans mourn his passing, for conservatives and defenders of our Constitution, the loss is particularly devastating.

In the coming weeks, conservatives will be lauding his legal prowess and his positions and views on a great number of issues. Scalia was a stalwart defender of the Constitutional on a great number of issues that are deemed critical in the conservative lexicon, including abortion, the Second Amendment, religious liberty, and individual freedom, among others.  

Yet there remains one key area of jurisprudence that we have not heard much about in the past few days which is just as important: how to interpret the Constitution’s directives in regard to fighting the War on Terror, or perhaps we can say, in the words of Justice Scalia himself, America’s war with radical Islamists. Interesting, that one of the great Justices in American history could say in just a few words what our current President has not been able to bring himself to say in the past seven years.

A number of cases have been decided over the past few years that give us a clear insight into Justice Scalia’s thinking about the war we are engaged in and what the Constitution says about how we can fight that war. Scalia clearly considered this issue important; he dealt with it further in his speeches and writings, considering the nature of the war and what America must do to win.

Just highlighting a few of these examples gives us a clear picture of Scalia’s brilliant cognition on America’s adherence to the Constitution in a time of war.

In the 2008 case of Boumediene v. Bush, the majority decided that terrorism suspects being held in Guantanamo Bay, Cuba, had the right to seek their release in federal court. Justice Scalia delivered a scathing dissent saying that for the first time the Supreme Court was conferring constitutional rights to non-Americans. The decision, Scalia wrote, would cost American lives:

“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. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.”

In a speech Justice Scalia made at the University of Freiberg in Switzerland in 2006, he remarked while speaking on the War on Terror:

“War is war, and it has never been the case that when you capture a combatant, you have to give him a jury trial in your civil courts. It’s a crazy idea to me. … If he was captured by my army on the battlefield that is where he belongs. I had a son on that battlefield and they were shooting at my son. And I am not about to give this man – captured in war – a full jury trial, that is just crazy.”

The potential use of torture has been one of the most contentious issues in the conduct of the War on Terror and Justice Scalia’s remarks on this topic did nothing to quiet the controversy. The Left went apoplectic in its response to Scalia’s remarks below, but what we see is a brilliant legal mind thinking through a real life issue that has confronted us in profound and new ways in the War on Terror. In that same speech at the University of Freiberg, Scalia stated:

“We have laws against torture. The Constitution itself says nothing about torture. The Constitution speaks of punishment. If you condemn someone who has committed a crime to torture, that would be unconstitutional.”

As even a leftist legal scholar must admit, this makes perfect sense under the strict reading of the Eighth Amendment’s prohibition of “cruel and unusual punishment.”  And what about using torture to obtain information?

“We have never held that to be contrary to the Constitution. I don’t see any article of the Constitution that would contravene—listen, I think it’s very facile for people to say, “Oh, torture is terrible.” You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person?”

Looking at just these few instances, what do we see?  Instead of making a knee-jerk legal opinion on an issue because of public perception or popular opinion, we can see the mind of Justice Scalia working, balancing the issue in a serious way, submitting it against the strict, originalist meaning of the Constitution and considering how it applies to the urgent real life situations that our military and intelligence officers often face.

Why is this important now?  Whoever takes Justice Scalia’s place on the Court must not just be a defender of liberty and the Second Amendment, be protective of religious liberty, and be an originalist in terms of opposing canards such as a constitutional right to privacy that the Left has created out of thin air. The next Supreme Court Justice must also have Scalia’s understanding of how America can fight and win this war and do so, all the while respecting and abiding by the Constitution. If Obama gets his way, he will surely nominate a leftist juror. And as can be seen in a great number of recently decided cases, this will move the entire court to a position in which it will hamstring the abilities of our military, intelligence services, and future Commander-in-Chief’s ability to do that which is necessary to fight, and to win.