Justice Scalia Tortures Logic Yet Again
In the interview with the Law in Action programme on BBC Radio 4, [Justice Scalia] 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.
"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?"
Sure, it's possible that in some cases interrogation might not be considered "punishment" under the 8th Amendment, but it seems Justice Scalia has forgotten about the 5th Amendment's guarantee of due process. Furthermore, a court holding a witness in contempt for refusing to cooperate with a judicial proceeding is, in fact, quite different than an interrogator resorting to physical abuse when a prisoner refuses to talk.
Justice Scalia's remarks also make one wonder: Why is the Justice so fixated on the ticking time bomb scenerio? Intelligence experts have testified to Congress that torture would be unnceccessary even in the unlikely event that this situation were to be enountered. Interrogators say that they have all of the tools they need without resorting to torture.
In his interview, Justice Scalia also asserted that the U.S. Constitution does not protect non-citizens abroad. (We'll post the audio shortly.) But, he's wrong again on this point. The constitutional power to exercise jurisdiction over a US ctizen acting abroad is not affected by the possibility that the victim is a non-American. (Were it otherwise, the U.S. could have no war crimes legislation, which it does have.) Justice Scalia is also wrong to claim that the constitution does not empower the US to reach abroad even when the perpetrator is a foreigner (e.g.,, when non-citizens harm citizens or engage in conduct detrimental to vital national interests, like counterfeiting US currency).