Religion & Law

More on Scalia and Torture

By Eduardo Penalver

I need to get ready for class, so this post has to be short and perhaps a little sloppy.  In response to the questions Rick mentions, I agree that they raise difficult issues.  (Scalia, by the way, does not agree.  He thinks it's obviously absurd to reach the conclusion that putting things under people's fingernails would not be justified even under the most extreme circumstances.  And he thinks people who hold that view are smug.)  But I think these are not even remotely useful questions to be asking.  The willingness of our decision-makers to engage in and justify torture in situations that are far less dramatic than those Scalia hypothesizes seems to me to be the problem on which we ought to focus.  The people who want to fixate on the ticking time bomb (even though what people are complaining about is that (1) we already have tortured and (2) that scenario was not the reason we did) tend to be torture apologists who favor a sliding scale approach to the morality of inflicting pain.  They don't just want to slap and put things under nails when we know that there's a ticking time bomb and we know the person in front of us can stop it -- they want to do those things when there might be a ticking time bomb or a pending assassination or a plan to hijack a plane six months from now and the person in front of us might possibly be somehow involved or know something about it.  (Today's Times has an op-ed on just this problem.)

In our popular political discourse, within which Scalia participates with great relish, the ticking time bomb is not being used to shed light on the contours of our moral imperatives in difficult situations.  Rather, it operates as a reverse slippery slope argument -- the effort is to get the interlocutor to justify an exception on the basis of an extreme hypothetical that has not come up and is unlikely ever to come up precisely in order to then use the exception thus generated to defang the effectiveness of the rule here and now. 

I'm not saying that asking the question makes one a torture apologist per se, but those who immediately (as Scalia does in this interview) go to that hypothetical without even giving lip service to the reasons someone might be justified in concluding that torture is everywhere and always wrong seem in my experience to be people trying to throw up dust to create the (a)moral space in which the torture we have committed is justified.  Scalia's not speaking inconvenient truth to power or asking hard questions that we don't want to hear.  He's just mugging for the (talk radio) crowd, impugning those who are struggling to hold the line against torture by writing them off as smug and out of touch, and defending the actions of the powerful by giving them moral cover.  There's nothing meritorious in that. 

On the comparison to the abortion question, I don't read Scalia as making nearly as subtle a point as Rick is.  He's saying that it's "absurd" to suggest that one should not torture (put things under finger nails, etc.) in the ticking time bomb scenario.  He is not saying that we might conclude that one should not torture even in those difficult circumstances but yet decline to punish the person who, confronted with that terrible situation, makes a different decision. 

Full post as published by Mirror of Justice on February 14, 2008 (boomark / email).