Religion & Law

Come on, Rick

By Eduardo Penalver

Rick says:

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?

Two things here.  First, despite Rick's heroic reconstruction, and with all due respect, this is not what the good Justice is talking about.  Scalia does not limit himself to waiving procedural niceties and a delivering smack in the face.   He never even mentions Miranda warnings and warrants.  Those points are too obvious for him.  But he does mention putting things under fingernails.   He's talking about the legitimacy of intentionally inflicting pain to extract information from a suspect, and he's using the predictable, far-fetched hypothetical favored by torture scoundrels everywhere.  His answer to this question:  it depends on the information you'll get.  This is a standard that we all reject.  I disagree completely with Scalia's (not Rick's) suggestion that it would be absurd to object to this sort of logic, not to mention to the very behavior (things under fingernails) Scalia is endorsing with his Limbaugh-esque rhetoric.

Second, given our current situation -- a government that has admitted to torturing on multiple occasions in situations decidedly less pressing than the one Scalia describes and a public that seems all too willing to support this behavior -- are Scalia's points, even if they were valid, about the finer points of defining torture really the ones that need to be made, particularly by one of the 9 men and women charged with, ultimately, policing the executive branch for this sort of thing?  Don't his comments bespeak an inappropriate nonchalance?

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