Does Terror Trump Torture?

We all know Justice Antonin Scalia is a big fan of 24's Jack Bauer, the fictional hero of the popular television show who sometimes tortures terrorists to derail their fiendish plots and save lives.  Scalia mounted a spirited defense of Bauer during a judicial conference in Ottawa last year when a Canadian judge said, "Thankfully, security agencies in all our countries do not subscribe to the mantra 'What would Jack Bauer do?' "

Scalia shot back: "Jack Bauer saved Los Angeles . . . . He saved hundreds of thousands of lives…Are you going to convict Jack Bauer?  Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so."

Now, Scalia is again weighing in on the issue of torture, telling a BBC reporter that the "ticking time bomb" scenario raised difficult questions that could possibly justify extreme measures. The interview is causing quite a stir, especially among human rights groups, which are taking Scalia to task for refusing to draw a clear line against torture in every case.

But in the interview, it's Scalia who seems to be taking folks to task--venting about people who make quick moral judgments about torture without considering the hard hypotheticals. The choice made, he suggested to the BBC reporter, depends on the circumstances. As he said in Canada last year, if law enforcement knows a terrorist has a nuclear bomb and is going to blow up LA, the American people would find that a pretty clear case. To listen to an excerpt from the interview click here.

"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 you couldn't do that. And once you acknowledge that, we're into a different game," he told the BBC interviewer. "How close does the threat have to be, and how severe can an infliction of pain be?"

He then explains what a tough call that would be.

"There are no easy answers involved, in either direction, but I certainly know you can't come in smugly and with great satisfaction and say, 'Oh, this is torture, and therefore it's no good,'" he said. "You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be, 'Where is the group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?'"

The BBC reporter started the conversation by asking Scalia whether torture would violate the Constitution's 8th Amendment, which prohibits cruel and unusual punishment. Scalia says that would be "extraordinary," because that wouldn't be "punishment" for a crime under the 8th Amendment. The 8th Amendment prohibits "cruel and unusual punishment" for crimes--but if the CIA or the police or the FBI haul someone in for interrogation and torture them, that's not "punishment."

"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 by the Constitution? Because smacking someone in the face would violate the 8th Amendment in the prison context. You can't go around smacking people about," Scalia said. "Is it obvious that what can't be done for punishment can't be done to exact information that is crucial to society? It's not at all an easy question, to tell you the truth."

It may be a violation of Due Process, but Scalia wasn't asked about that.

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