Religion & Law

Scalia on "torture", cont'd

By Rick Garnett

So, let's bracket the question whether Justice Scalia's recent comments on torture, punishment, and the Constitution were as judicious and careful as we'd like judges' comments to be.  And, let's also take as given that all of us here at MOJ do not believe that torture, even if effective, can be justified with reference to its expected (or actual) good consequences.  What, exactly, did Justice Scalia say and why, exactly, was he wrong?

Start with this:

[Justice Scalia said that] aggressive interrogation could be appropriate to learn where a bomb was hidden shortly before it was set to explode or to discover the plans or whereabouts of a terrorist group.

''It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that,'' Scalia told British Broadcasting Radio Corp.

Now, it would be absurd (wouldn't it?) to say that precisely the same constitutional (and extra-constitutional) regulations that apply to garden-variety interrogations of suspects must apply, in the same way, to a "ticking timb bomb" interrogation.  (No, to point this out is not to say that, in the "ticking time bomb" scenario, morality does not bind or anything goes.)  So, what do we think the public authority could do differently in the ticking-time-bomb scenario?  We need not -- as a moral matter, putting aside whatever the current constitutional-law doctrines might be -- it seems to me, issue Miranda warnings and call lawyers.  And, I would think, we may use more aggressive techniques than we would otherwise want to use.  No, we cannot torture, no matter what.  But, are we sure it would be immoral to "smack in the face" someone we thought was hiding the ticking bomb?  It seems to me that "waterboarding" is on the other side of the line.  But, is a smack in the face? 

Here's more:

Scalia said that determining when physical coercion could come into play was a difficult question. ''How close does the threat have to be? And how severe can the infliction of pain be? I don't think these are easy questions at all, in either direction,'' he told the BBC's ''Law in Action'' program.

Isn't Justice Scalia right here?  That is, it *is* a "difficult question" -- isn't it? -- to determine "when physical coercion could come into play" and to determine the moral limits to the "coercion" that could ever be employed.  Does anyone think these are "easy" questions?  We all agree that human-dignity commitments constrain what may be done, even for good purposes, and even to bad people.  But, we would justly be criticized (using Scalia's term) as "smug" if we suggested that these commitments translate easily, neatly, and non-controversially to interrogation regulations.

There's this:

''Is it obvious, that what can't be done for punishment can't be done to exact information that is crucial to the society? I think it's not at all an easy question, to tell you the truth.''

Right again, right?  It is immoral, I believe, to punish someone with indefinite incarceration; it is not immoral to detain someone who refuses to give information to which the public authority has a legitimate right.

With respect to the death penalty (which I oppose), Justice Scalia said:

''Europeans get really quite self-righteous, you know, (saying) 'no civilized society uses it.' They used it themselves -- 30 years ago,'' he said, adding that a majority of Europeans probably supported capital punishment anyway.

The first point is obviously correct.  And, with respect to the second, it is, in fact, the case that the abolition of the death penalty in Europe was not brought about democratically, and that there is more popular support in Europe for capital punishment than European nations' legal regimes would suggest.

So, and again -- torture and the death penalty are, in my view, wrong.  And, I would rather Justice Scalia not amuse himself by being quite as candid and provocative as, it seems, he likes to be.  Still . . . to say this is not at all to establish that what he actually said is wrong.

Full post as published by Mirror of Justice on February 13, 2008 (boomark / email).