He was the most outspoken conservative judge of his era. And Antonin Scalia’s death last February at age 79 kicked off an epic battle for the soul of the United States Supreme Court, on which he’d served for 30 years. Now the Republicans, after blocking President Barack Obama’s bid to choose a judicially moderate successor, will reap the benefits of their stonewalling, because soon-to-be president Donald Trump is free to search for a judge exactly like Mr. Scalia. As if he could ever find one.
But before the inimitable Antonin Scalia joined the Supreme Court, he was a law professor with a wife and eight children, soon to be nine. And then Canada came calling, with a freelance job: consultant to a royal commission aimed at revamping national-security agencies.
It was the 1970s – a time when this country was reeling from revelations about out-of-control spy services. The RCMP had burned down a barn in Quebec to prevent a meeting between Quebec separatists and U.S. radicals, broken into journalists’ offices, infiltrated legitimate protest groups, stolen political-party membership lists. In 1977, the Pierre Trudeau government had set up the Royal Commission into Certain Activities of the RCMP, to be led by Justice David McDonald of Alberta. The commission offered Mr. Scalia a contract to write a report describing how the United States had confronted the notorious excesses of its own intelligence agencies, including the attempt a decade earlier to push civil-rights leader Martin Luther King Jr. to take his own life by sending him a threatening letter and an audiotape of extramarital sexual activities.
And Mr. Scalia, then in his early 40s, accepted – for the respectable, but not princely, sum of $7,500 U.S. (then worth $8,750 Canadian), based on 30 days’ work at $250 a day. The job wound up being much more onerous than he had expected: He was more than a year late delivering his report, though still in plenty of time to be useful.
The report’s scrupulously impartial (for the most part) author was not the larger-than-life figure he would one day become: a man obsessed with his own fame, and prone to scandalizing the court with his ridicule of its liberal members. (“What really astounds,” he wrote, dissenting from the 5-to-4 ruling legalizing gay marriage two years ago, “is the hubris reflected in today’s judicial Putsch.”) Here was the dispassionate, sober jurist of unmistakable power – the one who might have been. That’s the view of one of his biographers, Bruce Allen Murphy, a law professor at Lafayette College in Pennsylvania, who read the report at The Globe and Mail’s request.
“Historians will look back and say, ‘He was as brilliant as anybody who has ever served on the Supreme Court – William O. Douglas, Oliver Wendell Holmes, John Marshall.’ Of the 112 justices, we’re only talking about a handful of people who were really, really smart. But the way he did his job late in his career probably will diminish his legacy. He could have achieved so much more. Had he done his job the way he did that report for the commission, his legacy, I think, would be entirely different.”
The story of Mr. Scalia’s report to Canada at a pivotal time in its security-intelligence history has never been told. “Scalia’s gift to Canada,” is how Peter Russell, the research director who hired him, characterizes the report today. The Globe obtained the 200-plus-page document (which included 100 pages of detailed footnotes and appendixes) by making a request under the federal access-to-information law to the National Library and Archives. Why the work remained secret, and was kept in a sealed area of the National Library and Archives all these years, remains unclear.
Its influence, though difficult to pin down, exceeded anything that could have been envisioned when Mr. Scalia took on the assignment: So impressed were the Canadians who read it that it wound up in the hands of a renowned deputy attorney-general at the Canadian Justice Department, Roger Tassé, who was helping at that very moment to draft the Charter of Rights and Freedoms, which would take effect in 1982.
Ironically, the man hired by the committee whose job was to clean up Canadian security services would, years later, express support for torture in some circumstances. A provocateur with his finger on the pulse of his times, Mr. Scalia used an often brutal, terrorist-fighting secret agent from the TV show 24 to make the point: “Jack Bauer saved Los Angeles,” he said in a speech in Ottawa in 2007. “He saved hundreds of thousands of lives. Are you going to convict Jack Bauer? … Is any jury going to convict Jack Bauer?”
But no pro-torture viewpoint is visible in his neutrally titled report, United States Intelligence Law. Its theme: Countries need powerful state investigative resources to protect security, but they also need to keep those powers in check and to protect personal privacy.
The Scalia file: Scroll through the highlights and read the full documents
A hefty price tag for hands-on experience
The 1960s and seventies were a time when security services in both Canada and the United States were widely criticized for dirty tricks applied to people those services deemed “subversive.” Even Prof. Russell, now 84, had attracted the attention of the country’s spies as a political-science professor at the University of Toronto. “If you weren’t on the security service’s list of possible subversives – certainly I was – what the hell were you doing with your life?” he jokes now. When he needed a top-security clearance to work with the commission, the RCMP investigation went down a blind alley typical of the time. “One of my friends called me afterward and said, ‘They asked me if I knew if Russell had any strange sexual habits.’”
For the McDonald Commission, learning from the U.S. experience was critical. “Here’s the one Western democracy that has a constitutional bill of rights – which its courts take very seriously,” Prof. Russell recalled. “How do they draw the line? How do they balance freedom and security?”
Networking led the commission to Mr. Scalia. John Edwards, a University of Toronto law professor who was serving as special research adviser to the McDonald Commission, asked for recommendations from former U.S. attorney-general Edward Levi and top U.S. legal scholar Herbert Wechsler, both of whom he knew personally. Both named Mr. Scalia as their first choice.
Prof. Russell went on to become an éminence grise among political scientists in Canada, a professor emeritus at the U of T, and a leading analyst of our own Supreme Court. The man who hired Mr. Scalia for the commission would also later be appalled by the justice’s support of originalism – a judicial philosophy in which constitutional rights do not evolve over time, but stay rooted in the vision of the Founding Fathers of the United States. “Originalism is absolute nonsense,” Prof. Russell says. “It’s part of the idea that there is a correct and authentic way to read the bible. The U.S. Constitution has biblical importance and value. You know what bibles are like. They know what the word of God is. That’s what Scalia’s originalism fostered: that kind of biblical debate.”
By the McDonald Commission’s standards, Mr. Scalia’s expertise came at a hefty price; his report cost more than similar reports from experts in Australia and New Zealand. “Much more than we paid for our Commonwealth reports,” Prof. Russell acknowledged in a note to the commissioners, “but then the U.S. experience is more complex, and the U.S. market for academic legal services is much pricier.”
Mr. Scalia had more experience of deep intelligence matters than Prof. Russell knew about at the time. Richard Nixon had hired him as his legal adviser in the last days of his administration, and he stayed on as assistant attorney-general when Gerald Ford succeeded Mr. Nixon as president in 1974. At that time, the CIA, under an onslaught of media exposés about its dirty tricks (such as the 1960 plan to poison Congolese leader Patrice Lumumba, or the massive, illegal surveillance of U.S citizens), agreed that any covert operations abroad – the so-called “black-ops” – should be approved by the justice department. The task fell to Mr. Scalia; before he became a University of Chicago law professor, he had been attorney-general Edward Levi’s trusted adviser.
“So, believe it or not, for a brief period of time, all covert actions had to be approved by me,” he said in his 2007 Ottawa speech. “Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise.”
Clearly, though, he developed some; in correspondence with Prof. Russell as he started the work, he asked if Canada would be interested in how the U.S. government maintained oversight of covert offensive or disruptive actions abroad. Prof. Russell thought the U.S. experience was too different from Canada’s to be of much use.
However, he believes Mr. Scalia’s hands-on experience dealing with intelligence matters served Canada well. “If you read his report carefully, he knows in the real world what these agencies get up to – the bad things they get up to and the acceptable things they get up to – and it’s important to have that kind of realism.”
A densely argued report, graded ‘A-plus’
Mr. Scalia began his report by dampening expectations. “It is impossible, in a paper of the size here contemplated, to do justice to the entire subject of intelligence activities by the United States government.” He then mentions “the areas that will be slighted,” including the documenting of the many abuses of power by security agencies that were already well-known from the “popular press”; if the commission wanted to know more, he said “it is exhaustively (and perhaps somewhat exaggeratedly) set forth” in a 1975 review by a Senate committee (the Church report, named for Sen. Frank Church).
He then set out the difficulties inherent in his “modest subject”: U.S. intelligence law “is an amalgam of constitutional restrictions, developed in a case-by-case fashion by the courts; legislative prescriptions of unusually vague and ambiguous character; and administrative directives, many of which are not publicly known.” And the laws were at that moment undergoing massive change.
The paper was densely argued and by no means an easy read. It covered everything from the opening of mail to the infiltration of organizations by informants, from the supervision of security services by government to the role of judges in granting warrants.
“He wrote it almost as if he was writing a judicial decision,” Mr. Russell said, after The Globe sent him a copy to refresh his memory of it. “Did you notice the precision of his way of handling very complex legal issues? Quite impressive. I didn’t know he was going to be a judge at the time – but I might have guessed.”
“I think he opened our eyes to a lot of issues we needed to pay attention to,” Don Rickerd, who served as a commissioner, said in an interview. “I don’t think we could have found a better person to do an analysis of the American situation than Scalia.”
The commission’s other surviving member, Guy Gilbert, also gave a rave review. “The Scalia report is A-plus for me, except for the fact that it came late,” he said in an interview. (The tardiness was an irritant; Prof. Russell, in a memo in January, 1979, told the commissioners he was “very disappointed” that Mr. Scalia “has failed to meet all previous deadlines,” and that Mr. Scalia “now informs me” the remainder of the report would be ready at the end of the month. When it finally arrived in the middle of summer, Prof. Russell wrote to Mr.Scalia: “You should not feel badly about the delay.”)
Occasionally, Mr. Scalia’s characteristic wit makes itself known – though much more subtly than in his often withering Supreme Court judgments. For instance, explaining why legal constraints on intelligence agents are necessary, he writes: “But even if (as is hoped) these individuals are of an integrity well above the run of mankind, they are not entirely lacking in human frailty; and the work they pursue involves special temptations to an abuse of power, or even to a mere excess of righteous zeal.” In his 2007 speech, he was more the suspicious-of-too-many-legal-protections conservative: “I think we must beware of overlawyering the national security and intelligence process. To subject these actions to rules is one thing, but to subject them to prior lawyer or judicial approval is something else. These areas often require prompt and bold action. … The army that hits the beaches with a cadre of legal advisers is asking for trouble.”)
On why he supported, in the McDonald Commission report, the warrantless break-ins known as “black-bag jobs” (which Canadians called “rummaging around,” according to Prof. Russell): “It is surely absurd to think of being able to bug Col. Abel’s room – and even to enter the room for the purpose of implanting the bug – but not being able to slip in and copy his codebook.” (Rudolf Abel was a Soviet spy arrested in New York in a famous 1957 episode.) Mr. Scalia liked the line so much that he used it again in his Ottawa speech more than a quarter-century later.
On CoIntelPro, the FBI’s counterintelligence program that dogged Dr. King, among others: “Nothing prevents a private citizen from systematically disseminating derogatory, but true, information about a prominent political figure; but the same activity by the government would raise serious constitutional problems. The vice of the shocking CoIntelPro operation, therefore, consists not entirely (though it may in part) of the mere character of the activities conducted, but rather of the purposes for which they were employed.”
Prof. Murphy said he found the report fascinating to read.
“It’s like a time capsule. Because Scalia is now out of government [at the time]. He thinks he’s going to get back into government, but he doesn’t know for sure. He no doubt thinks he will get into the judiciary, but at that moment he’s a law professor who has seen a lot of these issues. He’s also watching in the news the CIA, the FBI and all of our defence agencies, investigation agencies, be ripped apart by the post-Watergate Church committee and Rockefeller committee investigations [into intelligence activities]. Scalia is able to get beyond that and give a very clear and high-level intellectual discussion of the issues. But the way he’s choosing his issues and hypotheticals, you can see he’s personally aggrieved by what has happened … that the worst possible disaster that could have happened to the people that he respects in the intelligence community [has happened] – that all their secrets are now being revealed on a monthly basis in magazines and newspapers. This is what can happen if you do this badly.”
Prof. Murphy said he was deeply impressed by Mr. Scalia’s approach. “He’s creating a book, he’s creating a course that will educate the commissioners as to what the issues are for them to decide.”
And educate them he did. The McDonald Commission took aim at the Canadian government’s failure to supervise the RCMP while the force committed illegal or improper acts: “The supposed political masters of the Service were ignorant of its misdeeds,” analyst Philip Rosen wrote in a report for the Library of Parliament in 2000, summarizing the McDonald Commission findings. “But this exoneration was also an inherent criticism, in that the structure of control and accountability was so weak as to allow these things to happen.” The report recommended an end to spying on legal protest and dissent, but it gave the thumbs-up to the spy techniques discussed so ably by Mr. Scalia: electronic surveillance, surreptitious entry, and mail-opening. As long as the spies received a judicial warrant first.
Prof. Russell says that what the commission learned from Mr. Scalia’s report is that a country with a bill of rights puts limits on its secret services “but it doesn’t snuff them out. It tries to strike a balance. While that’s obvious now, in those pre-Charter years that wasn’t so obvious. There were not real limits in Canada on our spooks, our collectors of covert intelligence. We learned that in the U.S., there are real limits. Some critics would say not strong enough limits, but there were certainly limits and they had to observe them. That was quite a revelation for most of the people involved with the royal commission.”
Sean Fine is The Globe and Mail’s justice writer. Follow him on Twitter: @SeanFineGlobe
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