Scalia: Torture Not an Easy Constitutional Issue
Justice Antonin Scalia said there are no clear-cut answers on the constitutionality of torture in an interview with BBC Radio’s Law in Action.
Scalia said physical violence that is barred under the Eighth Amendment’s ban on cruel and unusual punishment may be allowed to extract information to prevent an imminent terrorist threat, BBC America reports.
“You can’t come in smugly and with great self-satisfaction and say, ‘Oh, this is torture and therefore it’s no good.’ You would not apply that in some real-life situations,” Scalia said.
Scalia said it’s wrong to assume that the issue of torture is, in the words of the interviewer, a constitutional “no-brainer.”
“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?” Scalia said, according to a transcript posted at Think Progress. “Because smacking someone in the face would violate the Eighth 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.”
The interviewer said legal experts had debated the issue of “ticking bomb torture,” raising scenarios in which a terrorist is flying toward the White House with nuclear weapons and the one person with the information to stop the attack is forced to reveal it by sticking a needle under his fingernails. The interviewer said such scenarios are extremely unlikely and may be dangerous when used as an excuse for torture.
“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,” Scalia responded. “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?”
A hat tip to How Appealing, which posted the story.
