A BBC article reports on Justice Scalia’s recent remarks on torture:
Justice Antonin Scalia told the BBC that “smacking someone in the face” could be justified if there was an imminent threat.
“You can’t come in smugly and with great self satisfaction and say ‘Oh it’s torture, and therefore it’s no good’,” he said in a rare interview.
He also accused Europe of being self-righteous over the death penalty.
As regular readers know, I share Scalia’s disdain for the smug self-satisfaction of torture opponents on this issue. I oppose torture in all but the most extreme situations, and urge supporters to recognize the downsides, as I discussed yesterday. But the moral — and as Scalia makes clear, legal — framework used to examine the issue should not a pure black and white analysis, unless your priority is to assume the mantle of self-righteousness.
In the interview with the Law in Action programme on BBC Radio 4, he said it was “extraordinary” to assume that the ban on “cruel and unusual punishment” – the US Constitution’s Eighth Amendment – also applied to “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?
“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.”
Justice 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?”
Jan Crawford Greenburg says there may be a Due Process issue:
“Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited by the Constitution? Because smacking someone in the face would violate the 8th Amendment in the prison context. You can’t go around smacking people about,” Scalia said. “Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to society? It’s not at all an easy question, to tell you the truth.”
It may be a violation of Due Process, but Scalia wasn’t asked about that.
True, but I think Scalia’s analysis would be similar. Due Process violations are measured by what shocks the conscience. Does it shock the conscience to smack someone if you’ll save a city? Of course not.
Of course, what shocks the conscience is in the eye of the beholder. Some conservatives would gleefully see literally any torture applied to a mere suspected terrorists. If he turns out to be innocent, and his body was eaten slowly by ants, so be it.
Meanwhile, some liberals are appalled if we’re mean to Khalid Sheikh Mohammed. Even if we hadn’t waterboarded him, their conscience would be shocked by smacking him in the face. These sorts of cartoon liberals exist — and they consider me a worse enemy than KSM, for suggesting that physical coercion could ever be acceptable.
The reality is never as stark as Scalia posits, of course, which will inevitably lead torture opponents to claim he is trying to minimize the real issues. Not at all. He is just demonstrating that a balancing sort of analysis must occur.
None of this means that a confession obtained this way would be admissible, by the way. It’s possible to coerce an involuntary and inadmissible confession while acting in a way that doesn’t shock the conscience. So when you’re doing your weighing and balancing, realize that you could be throwing any admissible evidence down the drain. If you’re saving millions, it’s probably worth it. If you’re not saving anyone, then you might consider that the risks outweigh the benefits.