Today in an interview with BBC Radio’s Law in Action, U.S. Supreme Court Justice Antonin Scalia defended torture, claiming that it is not necessarily barred by the Constitution: 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? Because smacking someone in the face would violate the 8th 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 BBC interviewer, however, objected to Scalia’s use of the so-called “ticking time bomb” scenario to justify government torture. “It’s a bizarre scenario,” he said. “Because the fact is, it’s very unlikely you’re going to have the one person who can give you that information. So if you use that as an excuse to commit torture, perhaps that’s a dangerous thing.” Scalia responded:
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.
Listen here:
As the BBC interviewer pointed out, ticking time bomb scenarios — where a detainee has knowledge of an imminent attack — are incredibly rare, despite Scalia’s fascination with them. U.S. Air Force Reserve Colonel Steve Kleinman, a longtime military interrogator, testified to the House in November that torture would be “unnecessary” even in such scenarios. Furthermore, intelligence experts say that torture is “ineffective” because it “often produces false information.”
Sharon at Human Rights First looks at Scalia’s arguments on torture’s constitutionality.