Tuesday, February 12, 2008

"Scalia" is Italian for "Torquemada"

Following on my previous post on Scalia's Beeb interview, here Nino Scalia opines on the subject of torture (transcript from ThinkProgress here):
Today in an interview with BBC Radio’s Law in Action, U.S. Supreme Court Justice Antonin Scalia defended torture, claiming that it is not necessarily barred by the Constitution:
"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 under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about.

"Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth."
Well, yes, Nino, it's obvious. That's why we ban forced confessions and coerced testimony, even for accused serial killers and axe-murdering pederasts, all under that Constitution that seems to have escaped your mind.

In addition, the Eighth Amendment forbids "cruel and unusual punishment", but that's hardly the only reason that torture is banned, nor is it obvious that the Eighth bans only [such*] "punishment" in the wake of a trial and conviction. "Punishment" prior to such trial and conviction would seem to have even more serious problems, you know ... like ... with "due process" and such?

But nice reprise of the "TTB" 'argument', Nino:

The BBC interviewer, however, objected to Scalia’s use of the so-called “ticking time bomb” scenario to justify government torture. “It’s a bizarre scenario,” he said. “Because the fact is, it’s very unlikely you’re going to have the one person who can give you that information. So if you use that as an excuse to commit torture, perhaps that’s a dangerous thing.” Scalia responded:

Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that.

So, tell me, Nino, where in the Constitution (see my previous post on your "literalism") does it say that "we mean what we say ... except under extreme 'circumstances' -- which we don't define anywhere -- where we're willing to let things slide a bit..."

And how -- even if we decided based on some "necessity" argument that maybe torture ought to be allowed -- do we make it so that torture is legal under some such circumstances ("crucial to this society") but is illegal under more mundane ones? Are "good intentions" when torturing enough, even if no positive "results" are obtained? Or do we just welcome the camel into the tent....


More transcript from ThinkProgress:
BBC: Tell me about the issue of torture, we know that cruel and unusual punishment is prohibited under the 8th amendment. Does that mean if the issue comes up in front of the court, it’s a ‘no-brainer?’

SCALIA: Well, a lot of people think it is, but I find that extraordinary to begin with. To begin with, the constitution refers to cruel and unusual punishment, it is referring to punishment on indefinitely — would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer or commit them to jail until you will answer the question — without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about “so-called” torture.
Contempt of court detention of reluctant witnesses, where the witness refuses to answer, can not be continued indefinitely. At some point, when it becomes apparent that the person will not comply and that continuing detention will not force compliance, the judge is duty-bound to release the resisting witness. You'd think that Nino would know that.... But to compare such detention with ("so-called" [sic]) torture is absurd.


The inestimable and indefatigable Ondolette over at Glenn Greenwald's blog comes up with some interesting historical perspective on torture and compares it with Scalia's views:
Shortly after his return to England in 1628, Buckingham was assassinated. His knife-wielding assailant was captured, and the king was approached for a warrant to authorize his interrogation under torture. They had been routinely issued in the past. But King Charles choked at the request; there is little doubt that Donne’s sermon had a lot to do with his hesitancy. Instead of granting the warrant, the king directed that the judges of England assemble at the Inns of Court in England and render him advice. Was the torture of a suspect in connection with interrogation to be permitted by the laws of England, the monarch asked. And Blackstone records the result. The judges assembled, deliberated and issued their declaration. “Upon their honour and the honour of England,” they said, torture was against the common law.
From Challenging Torture, Scott Horton, February 4, 2008
“Seems to me you have to say, as unlikely as [the ticking time bomb scenario] is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. And once you acknowledge that, we’re into a different game. How close does the threat have to be, and how severe can an infliction of pain be?” Justice Antonin Scalia, February 12, 2008

Update 2:

Professor Tamanaha has a post at Balkinization on Scalia's interview too, and I've added some commentary there as well.

Update 3:

I'd emphasise that Scalia's position seems to be that the Eighth Amendment protection against "cruel and unusual punishment" protects only those actually convicted of crimes. So, under this 'logic', it protects even the worst axe-murdering serial killers, but doesn't apply to anyone before conviction or innocent of any crimes (and apparently allows treatment of such innocents worse than that of the most sociopathic and hardened criminals). Curious priorities. And how did we ever get to such an absurd place that such a position would even need to be 'argued'?!?!?

* -- Updated (added) later


At 4:44 PM, Blogger Enlightened Layperson said...

It may not be a ticking bomb in Los Angeles, but it may be, “Where is this group that we know is plotting some very painful action against the United States? Where are they and what are they currently planning?"

And this is the perfect demonstration of what is wrong with making a "ticking bomb" exception. It is WAY more flexible than it sounds. So it begins with an immediate threat and moves that a threat that we just know is immediate even though we can't prove it and moves on to the threat that might be immediate.

The problem with the ticking bomb is not just that it is virtually impossible ever to know that a situation is a ticking bomb, it is completely impossible ever to be sure that a situation is NOT a ticking bomb. I fully concur with you that we should keep torture illegal to prevent the temptation of the "just in cases."

At 4:44 PM, Blogger Enlightened Layperson said...

PS: You're still a blogwhore, though.

At 8:17 AM, Blogger Arne Langsetmo said...

PS: You're still a blogwhore, though.

I'm aware of the charge and of the situation. But I get to cover things that I'm interested in here and in any manner I want, and I'm even trying to encourage HWSNBN to duke it out here (he did on one thread, but then has gone back to Balkinization). I've got the bandwidth to deal with "Bart"'s ad nauseam argument, plus the power to delete the second and subsequent iterations of the same nonsense when he starts repeating himself without addressing objections ... just need to lure him here first. Maybe if we could organise a boycott whereby everyone else comments here when he coumes out /w his standard stuff over there; w/o attention, he shuts up quickly.

If you don't think I'm adding anything to the conversation over there, out with it. I try to make my posts topical (and don't link them if they're off-point on Balkinization), and I try to add something, a fresh view or a different take, to most posts. And isn't it better to link than to spew pages of the same stuff in more than one forum?



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