Wednesday, June 20, 2007

Is Scalia Dissenting Again?

Remember Scalia's attack on Evangelium Vitae, when he mocked John Paul's teaching on the death penalty by calling for "new staffers at the Congregation for Prudence in the Vatican."? And now Scalia's keen sense of dissenting irony strikes again. This time, the topic is torture. And, no, Scalia is not writing a treatise on the topic in First Things. Rather, he is ad-libbing about a television show.

Scalia is a huge fan of 24, the show where the main protagonist (Jack Bauer) regularly tortures people for information. Here's what Scalia said:
"Jack Bauer saved Los Angeles. ... He saved hundreds of thousands of lives... Are you going to convict Jack Bauer?.. any jury going to convict Jack Bauer? I don't think so."So the question is really whether we believe in these absolutes. And ought we believe in these absolutes?"
Actually, Antonin, as Catholics we do believe in these absolutes. We live our lives by them. We believe torture is intrinsically evil, never justified by intent or circumstances (and those circumstances include Jack Bauer-style ticking bomb scenarios). We are not proportionalists, we are not consequentialists. Scalia once explicitly mocked Evangelium Vitae; is he now implicitly mocking Veritatis Splendour, possibly the most important of all the late pope's encyclicals? I don't want to get into too much detail here, as I've discussed the main points on why torture is absolutely unacceptable from a Catholic point of view on my very first post on Vox Nova (see here).

Sadly, Scalia's comments feed into two prevailing trends among a key element of the contemporary American right: first, the embrace of torture (just look at a Republican presidential candidate's debate), and second, the blurring of fact and fiction, reality and fantasy. You might not realize it from Scalia's rhetoric, but Jack Bauer is a fictional character. The show is supposed to be about entertainment, not a guide to foreign policy. I am a big fan of the Sopranos, but this does not mean I support "whacking" one's enemies as a solution to life's problems! From the early days of the Bush administration, Ron Suskind noted the very postmodern denial of all objective truth among some in this group, especially when a Bush aide remarked that "we create our own reality". And today, pluralities still believe that Saddam Hussein had weapons of mass destruction, and strong links to Al Qaeda. In such a nihilistic world, facts and opinion are intertwined, and reality and entertainment are blurred.

But there is a dark side to applying this philosophy to 24. A few months ago in the New Yorker, Jane Mayer noted that glorifying torture on TV was having an effect on the real world. Mayer:
"However, it had become increasingly hard to convince some cadets that America had to respect the rule of law and human rights, even when terrorists did not. One reason for the growing resistance, ... was misperceptions spread by '24,' which was exceptionally popular with his students. .. “The kids see it, and say, ‘If torture is wrong, what about '24'?’

Although reports of abuses by U.S. troops in Iraq and Afghanistan and at Guantánamo Bay, Cuba, have angered much of the world, the response of Americans has been more tepid. Finnegan attributes the fact that 'we are generally more comfortable and more accepting of this,' in part, to the popularity of '24,' which has a weekly audience of fifteen million viewers, and has reached millions more through DVD sales.

The third expert at the meeting was Tony Lagouranis, a former Army interrogator in the war in Iraq. He told the show’s staff that DVDs of shows such as '24' circulate widely among soldiers stationed in Iraq. Lagouranis said to me, 'People watch the shows, and then walk into the interrogation booths and do the same things they’ve just seen.' He recalled that some men he had worked with in Iraq watched a television program in which a suspect was forced to hear tortured screams from a neighboring cell; the men later tried to persuade their Iraqi translator to act the part of a torture 'victim,' in a similar intimidation ploy."
Remember, an official Pentagon survey of US troops in Iraq showed that more than a third support torture for gathering information, 40 percent support torture to save the life of a fellow soldier, and two-thirds would turn a blind eye to mistreating civilians. Where are they getting these attitudes? 24? The Bush administration? Probably both.

In earlier times, successive US administrations stood by the Geneva Conventions. No more. Which brings us back to Antonin Scalia. He was a key dissenter in last year's Hamden v. Rumsfeld case, which threw out Bush's military commissions on the grounds that their structures and procedures violated both the Uniform Code of Military Justice and the Geneva Conventions (especially Common Article 3 which states that detainees shall not suffer torture or outrages upon personal dignity.) As noted by Marty Lederman, the most significant finding of this ruling was that the Geneva conventions applied to Al Qaeda suspects. For the US has always applied these "minimum, fundamental standards to all detainees, whether or not the detainees themselves were party to (or abided by) Geneva or not (including, for instance, the Viet Cong)." This long-standing practice ended in 2002 when the Bush administration determined that Common Article 3 did not apply to Al Qaeda, and that for all others, the standards were to be applied only "to the extent appropriate and consistent with military necessity." In Lederman's view, therefore, the most important aspect of the Hamden decision was its ruling on Common Article 3, not what it had to say about the military commissions themselves.

But Scalia was a dissenter on this decision. His dissent was primarily on the question of jurisdiction, and he did not address Common Article 3 directly, but his silence in the face of suffering is telling. Note that the minimum protections accorded by Common Article 3 are fully in accord with Church teachings on the dignity and intrinsic worth of each and every human being. These are principles that every Catholic should support vigorously. In his World Day of Peace message, Pope Benedict lauded international humanitarian law, and called for it to be reaffirmed in "present-day situations of armed conflict, including those not currently provided for by international law". But why bothering listening to Benedict, or more pertinently, to Christ, when Jack Bauer can save the world?


love the girls said...

But what is 'Torture'?

Torture is intrinsically evil because it has a certain characteristic which separates it from other form of physical coercion.

The function of physical coercion is to cause a man to embrace his reason and to desist from acting according to the lower appetites whereas torture is the causing of a man to become irrational, which is contrary to the nature of man.

Much of what goes by the name of torture isn't torture but simply extreme forms of physical coercion which can be justified, just as all other means of physical coercion other than torture can be justified.

Are you certain that Scalia is advocating torture and not advocating extreme physical coercion with can be justified by circumstance?

I don't watch television, so I really don't know his example, but I suspect Scalia's equivocating on the term torture and proves it citing examples which are not torture per se.

Morning's Minion said...

You can't play these semantic games. What the Bush administration supported was torture. And what Jack Bauer does on the show is 110 percent torture.

love the girls said...

'Semantics'?? No, distinctions worth noting.

And actually, what the Bush Administration supported generally falls under the category of the perverse, or the sadistic, or the puerile. But not under the category of torture.

All damnable to be sure. But not damnable for the same reason as torture is damnable.

As for what the fictional character Jack Bauer does. "How can a man be 110% irrational. And if he was, how could be be moved in such a state to act in a manner which is in the least bit helpful as torture victims are known to not be helpful because they are made to act irrationally?

It's worth noting that men are moved towards doing the good either because they will the good itself or because the fear the evil consequence of not doing the good. Or as we say in confession, because I fear the loss of heaven and pains of hell. And it is also worth noting that men in hell are not made irrational by the pains of hell. Which might give us some guidance of how extreme coercion can be without crossing the limit.

dudleysharp said...

Scalia's criticism of the Church on the death penalty was right-on.

Pope John Paul II: His death penalty errors
by Dudley Sharp, Justice Matters
(contact info, below)
October 1997, with subsequent updates thru 5/07

The new Roman Catholic position on the death penalty, introduced in 1997, is based upon the thoughts of Pope John Paul II, whose position conflicts with reason, as well as biblical, theological and traditional Catholic teachings spanning nearly 2000 years.
Pope John Paul II's death penalty writings in Evangelium Vitae were flawed and their adoption into the Catechism was improper.

In 1997, the Roman Catholic Church decided to amend the 1992 Universal Catechism to reflect Pope John Paul II's comments within his 1995 encyclical, The Gospel of Life (Evangelium Vitae). Therein, the Pope finds that the only time executions can be justified is when they are required "to defend society" and that "as a result of steady improvements . . . in the penal system that such cases are very rare if not practically non existent."
This is, simply, not true.  Murderers, tragically, harm and murder, again, way too often.
Three issues, inexplicably, escaped the Pope's consideration.
First, in the Pope's context, "to defend society" means that the execution of the murderer must save future lives or, otherwise, prevent future harm.  
When looking at the history of  criminal justice practices in probations, paroles and incarcerations, we observe countless examples of when judgements and procedures failed and, because of that, murderers harmed and/or murdered, again. History details that murderers murder and otherwise harm again, time and time again -- in prison, after escape, after improper release, and, of course, after we fail to capture or incarcerate them. 
Reason dictates that living murderers are infinitely more likely to harm and/or murder again than are executed murderers. 
Therefore,  the Pope could err, by calling for a reduction or end to execution, and thus sacrifice more innocents, or he could "err" on the side of protecting more innocents by calling for an expansion of executions.
History, reason and the facts support an increase in executions based upon a defending society foundation. 
Secondly, if social science concludes that executions provide enhanced deterrence for murders, then the Pope's position should call for increased executions. 
If  we decide that the deterrent effect of executions does not exist and we, therefore, choose not to execute, and we are wrong, this will sacrifice more innocent lives and also give those murderers the opportunity to harm and murder again. 
If we choose to execute, believing in the deterrent effect, and we are wrong, we are executing our worst human rights violators and preventing such murderers from ever harming or murdering again - again, saving more innocent lives.
No responsible social scientist has or will say that the death penalty deters no one.  Quite a few studies, including 10 recent ones,  find that executions do deter. 
As all prospects for negative consequence deter some,  it is a mystery why the Pope chose the option which spares murderers and sacrifices more innocent lives. 
If the Pope's defending society position has merit, then, again, the Church must actively support executions, as it offers an enhanced defense of society and greater protection for innocent life.
Thirdly, we know that some criminals don't murder because of their fear of execution.  This is known as the individual deterrent effect.  Unquestionably, the incapacitation effect (execution) and the individual deterrent effect both exist and they both defend society by protecting innocent life and offer enhanced protections over imprisonment. Furthermore, individual deterrence assures us that general deterrence must exist, because individual deterrence could not exist without it. 

Executions save more innocent lives. 
Therefore, the Pope's defending society standard should be a call for increasing executions. Instead, the Pope and other Church leadership has chosen a position that spares the lives of known murderers, resulting in more innocents put at risk and more innocents harmed and murdered --  a position which, quite clearly, contradicts the Pope's, and other's, conclusions.
Contrary to the Church's belief, that the Pope's opinion represents a tougher stance against the death penalty, the opposite is true. When properly evaluated, the defending society position supports more executions.
Had these issues been properly assessed, the Catechism would never have been amended  --  unless the Church endorses a position knowing that it would spare the lives of guilty murderers, at the cost of sacrificing more innocent victims. 
When the choice is between

1) sparing murderers, resulting in more harmed and murdered innocents, who suffer through endless moments of incredible horror, with no additional time to prepare for their salvation, or
2) executing murderers, who are given many years on death row to prepare for their salvation, and saving more innocents from being murdered,

the Pope and the Catholic Church have an obligation to spare the innocent, as Church tradition, the Doctors of the Church and many Saints have concluded. (see reference, below)
Pope John Paul II's death penalty stance was his own, personal prudential judgement and does not bind any other Catholic to share his position. Any Catholic can choose to support more executions, based upon their own prudential judgement, and remain a Catholic in good standing.
Furthermore, prudential judgement requires a foundation of reasoned and thorough review. The Pope either improperly evaluated the risk to innocents or he did not evaluate it at all.
A defending society position supports more executions, not less. Therefore, his prudential judgement was in error on this important fact.
Furthermore, defending society is an outcome of the death penalty, but is secondary to the foundation of justice and biblical instruction.
Even though Romans and additional writings do reveal a "defending society" consideration, such references pale in comparison to the mandate that execution is the proper punishment for murder, regardless of any consideration "to defend society."  Both the Noahic covenant, in Genesis 9:6 ("Whoever sheds the blood of man, by man shall his blood be shed."), and the Mosaic covenant, throughout the Pentateuch (Ex.: "He that smiteth a man so that he may die, shall be surely put to death."  Exodus 21:12), provide execution as the punishment for unjustifiable/intentional homicide, otherwise known as murder.
These texts, and others, offer specific rebuttal to the Pope's position that if "bloodless means" for punishment are available then such should be used, to the exclusion of execution. Pope John Paul II's prudential judgement does not trump biblical instruction.
Most telling is the fact that Roman Catholic tradition instructs four elements to be considered  with criminal sanction.
1.  Defense of society against the criminal.
2.  Rehabilitation of the criminal (including spiritual rehabilitation).
3.  Retribution, which is the reparation of the disorder caused by the criminal's transgression.
4.   Deterrence
It is a mystery why and how the Pope could have excluded three of these important elements and wrongly evaluated the fourth. In doing so, though, we can confirm that his review was incomplete and improper. 
At least two Saints, Paul and Dismas, faced execution and stated that it was appropriate. They were both executed.
The Holy Ghost decided that death was the proper punishment for two devoted, early Christians,  Ananias and his wife, Saphira,  for the crime/sin of lying. Neither was given a moment to consider their earthly punishment or to ask for forgiveness. The Holy Ghost struck them dead.
For those who erroneously contend that Jesus abandoned the Law of the Hebrew Testament, He states that He has come not "to abolish the law and the prophets . . . but to fulfill them."  Matthew 5:17-22.  While there is honest debate regarding the interpretation of Mosaic Law within a Christian context, there seems little dispute that the Noahic Covenant is still in effect and that Genesis 9:6 deals directly with the sanctity of life issue in its support of execution.

(read "A Seamless Garment In a Sinful World" by John R. Connery, S. J., America, 7/14/84, p 5-8).
"In his debates with the Pharisees, Jesus cites with approval the apparently harsh commandment, He who speaks evil of father or mother, let him surely die (Mt 15:4; Mk 7:10, referring to Ex 21:17; cf. Lev 20:9). (Cardinal Avery Dulles, SJ, 10/7/2000)
Saint Pius V reaffirms this mandate, in the Roman Catechism of the Council of Trent (1566), stating that executions are acts of "paramount obedience to this [Fifth] Commandment."  ("Thou shalt not murder," sometimes improperly translated as "kill" instead of "murder").  And, not only do the teachings of Saints Thomas Aquinas and Augustine concur, but both saints also find that such punishment actually reflects charity and mercy by preventing the wrongdoer from sinning further.  The Saints position is that execution offers undeniable defense of society as well as defense of the wrongdoer.
Such prevention also expresses the fact that execution is an enhanced defense of society, over and above all other punishments.
The relevant question is "What biblical and theological teachings, developed from 1566 through 1997, provide that the standard for executions should evolve from 'paramount obedience' to God's eternal law to a civil standard reflecting 'steady improvements' . . . in the penal system?".  Such teachings hadn't changed.  The Pope's position is social and contrary to biblical, theological and traditional teachings.
If Saint Pius V was correct, that executions represent "paramount obedience to the [Fifth] Commandments, then is it not disobedient to reduce or stop executions?
The Church's position on the use of the death penalty has been consistent from 300 AD through 1995 AD.  The Church has always supported the use of executions, based upon biblical and theological principles.
Until 1995, says John Grabowski, associate professor of Moral Theology at Catholic University, " . . .  Church teachings were supportive of the death penalty.  You can find example after example of Pope's, of theologians and others, who have supported the right of the state to inflict capital punishment for certain crimes and certain cases." Grabowski continues: "What he (the Pope now) says, in fact, in his encyclical, is that given the fact that we now have the ability, you know, technology and facilities to lock up someone up for the rest of their lives so they pose no future threat to society -- given that question has been answered or removed, there is no longer justification for the death penalty."  (All Things Considered, NATIONAL PUBLIC RADIO, 9/9/97.)
The Pope's position is now based upon the state of the corrections system -- a position neither biblical nor theological in nature.  Furthermore, it is a position which conflicts with the history of prisons.  Long term incarceration of lawbreakers in Europe began in the 1500s.  Of course, long term incarceration of slaves had begun thousands of years before --  meaning that all were aware that criminal wrongdoers  could also be subject to bondage, if necessary - something that all historians and biblical scholars -- now and then --  were and are well aware of. 
Since it's inception, the Church has issued numerous pronouncements, encyclicals and previous Universal Catechisms.  Had any biblical or theological principle called for a replacement of the death penalty by life imprisonment, it would have been revealed long before 1995. 
There is, finally, a disturbing reality regarding the Pope's new standard.  The Pope's defending society standard requires that the moral concept of justice becomes irrelevant.  The Pope's standard finds that capital punishment can be used only as a vehicle to prevent future crimes. Therefore, using the Pope's standard, the moral/biblical rational -- that capital punishment is the just or required punishment for murder -- is no longer relevant to the sin/crime of murder. 
If defending society is the new standard, the Pope has decided that the biblical standards of atonement, expiation, justice and required punishments have all, necessarily, been discarded, with regard to execution.
The Pope's new position establishes that capital punishment no longer has any connection to the harm done or to the imbalance to be addressed.  Yet, such connection had always been, until now, the Church's historical, biblically based perspective on this sanction.  Under a defending society standard, the injury suffered by the murder victim is no longer relevant to their punishment.  Executions can be justified solely upon that punishments ability to prevent future harm by the murderer.

Therefore, when considering executions in regard to capital murder cases, a defending society standard renders justice irrelevant.  Yet, execution defends society to a degree unapproachable by any other punishment and, therefore, should have been fully supported by the Pope.
"Some enlightened people would like to banish all conception of retribution or desert from our theory of punishment and place its value wholly in the deterrence of others or the reform of the criminal himself.  They do not see that by doing so they render all punishment unjust. What can be more immoral than to inflict suffering on me for the sake of deterring others if I do not deserve it?" (quote attributed to the distinguished Christian writer C. S. Lewis)
Again, with regard to the Pope's prudential judgement, his neglect of justice was most imprudent.
Some Catholic scholars, properly, have questioned the appropriateness of including prudential judgement within a Catechism. Personal opinion does not belong within a Catechism and, likely, will never be allowed, again. I do not believe it had ever been allowed before.
In fact, neither the Church nor the Pope would accept a defending society standard for use of the death penalty, unless the Church and the Pope believed that such punishment was just and deserved, as well.  The Church has never questioned the authority of the government to execute in "cases of extreme gravity," nor does it do so with these recent changes. 
Certainly, the Church and the Pope John Paul II believe that the prevention of any and all violent crimes fulfills a defending society position.  There is no doubt that executions defend society at a level higher than incarceration. Why has the Pope and many within Church leadership chosen a path that spares murderers at the cost of sacrificing more innocent lives, when they could have chosen a stronger defense of society which spares more innocents?
Properly, the Pope did not challenge the Catholic biblical and theological support for capital punishment.  The Pope has voiced his own, personal belief as to the appropriate application of that penalty. 
So why has the Pope come out against executions, when his own position -- a defense of society -- which, both rationally and factually, has a foundation supportive of more executions?
It is unfortunate that the Pope, along with some other leaders in the Church, have decided to, improperly, use a defending society position to speak against the death penalty.
The Pope's position against the death penalty condemns more innocents and neglects justice.


These references provide a thorough rebuke of the current Roman Catholic Church teachings against the death penalty and, particularly, deconstruct the many improper pronouncements made by the US Bishops.
(1)"The Death Penalty", Chapter XXVI, 187. The death penalty, from the book Iota Unum, by Romano Amerio, 
in a blog     (replace dot)    domid.blogspot(DOT)com/2007/05/amerio-on-capital-punishment.html
titled "Amerio on capital punishment "Friday, May 25, 2007 
NOTE: Thoughtful deconstruction of current Roman Catholic teaching on capital punishment by a faithful Catholic Vatican insider.

(2)  "Catholic and other Christian References: Support for the Death Penalty", at

(3)  "Capital Punishment: A Catholic Perspective" at

(4) "The Purpose of Punishment (in the Catholic tradition)", by R. Michael Dunningan, J.D., J.C.L., CHRISTIFIDELIS, Vol.21,No.4, sept 14, 2003



(7) Forgotten Truths: "Is The Church Against Abortion and The Death Penalty", by Luiz Sergio Solimeo, Crusade Magazine, p14-16, May/June 2007

(8) "God’s Justice and Ours" by Antonin Scalia, First Things, 5/2002

(9) "The Death Penalty", by Solange Strong Hertz at

(10) "Capital Punishment: What the Bible Says", Dr. Lloyd R. Bailey, Abingdon Press, 1987. The definitive biblical review of the death penalty.
copyright 1997-2007 Dudley Sharp
Dudley Sharp, Justice Matters
e-mail sharp(at), 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites 
www(dot)  (Sweden)

Permission for distribution of this document is approved as long as it is distributed in its entirety, without changes, inclusive of this statement.