Wednesday, February 13, 2008

Scalia on Torture

Scalia makes a difficult pragmatic move here. Any comments?
"You can’t come in smugly and with great self satisfaction and say ‘Oh it’s torture, and therefore it’s no good’,” he said in a rare interview. . . . In the interview with the Law in Action programme on BBC Radio 4, he said it was “extraordinary” to assume that the ban on “cruel and unusual punishment” - the US Constitution’s Eighth Amendment - also applied to “so-called” torture. “To begin with the constitution… is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime.”

Justice Scalia argued that courts could take stronger measures when a witness refused to answer questions. “I suppose it’s the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?” he asked.

“It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game. “How close does the threat have to be? And how severe can the infliction of pain be?”
Markel, SJ

1 comment:

Wild and Crazy Guys said...

I am confused by Scalia's comment. First, I think this illustrates a big problem with "strict constructionism" as a legal philosophy. Constitutional literalism is more important than questions of morality

He seems to be contradicting himself. According to him, torture as punishment for a crime would be unconstitutional. Surely the men held at Gitmo are being held for a criminal act. But I suppose Scalia's strictness trumps again, since most of the men at Gitmo are not formally charged with a crime, torture is ok.

Sounds horrible to me.

Mason Slidell