By Elaine Magliaro
Mark Sherman of the Associated Press reported today that Supreme Court Justice Antonin Scalia was “joining the debate over the Senate’s torture report by saying it’s hard to rule out the use of extreme measures to extract information if millions of lives were threatened.” Sherman said that Scalia “told a Swiss broadcast network that American and European liberals who say such tactics may never be used are being self-righteous.” Scalia added that he doesn’t “‘think it’s so clear at all,’ especially if interrogators were trying to find a ticking nuclear bomb.”
During the interview, Scalia said, “Listen, I think it’s very facile for people to say, `Oh, torture is terrible.’ You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person?”
Scalia acknowledged that the United States has laws against torture–but noted that there is nothing in the Constitution that “appears to prohibit harsh treatment of suspected terrorists.” He continued, “I don’t know what article of the Constitution that would contravene.”
This isn’t the first time that the 78-year-old justice has opined on the subject of torture. Back in February 2008, during an interview with BBC Radio’s Law in Action, he defended torture, claiming that it is not necessarily barred by the Constitution. That following April, Scalia “granted his first broad-based television interview, to Lesley Stahl on CBS’s 60 Minutes.” The Supreme Court Justice told Stahl that the torture of detainees “does not violate the 8th Amendment’s ban on ‘cruel and unusual punishment’ because…torture is not used as punishment.”
STAHL: If someone’s in custody, as in Abu Ghraib, and they are brutalized, by a law enforcement person — if you listen to the expression “cruel and unusual punishment,” doesn’t that apply?
SCALIA: No. To the contrary. You think — Has anybody ever referred to torture as punishment? I don’t think so.
STAHL: Well I think if you’re in custody, and you have a policeman who’s taken you into custody–
SCALIA: And you say he’s punishing you? What’s he punishing you for? … When he’s hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?
Justice Scalia defends torture
According to Daily Kos, Scalia was involved in a panel discussion about torture and terrorism law with senior judges from North America and Europe in 2007 when a Canadian judge’s passing remark – “Thankfully, security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?’ ‘ – got the legal bulldog in Judge Scalia barking.”
The conservative jurist stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. “Jack Bauer saved Los Angeles. … He saved hundreds of thousands of lives,” Judge Scalia said. Then, recalling Season 2, where the agent’s rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand.
“Are you going to convict Jack Bauer?” Judge Scalia challenged his fellow judges. “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.
“So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”
I’ll leave you with this:
Headzup: Scalia’s Supreme Torture
SCALIA: CONSTITUTION SILENT ON TORTURE (Associated Press)
Scalia: The Jack Bauer Torture Test (Daily Kos)