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Original Poster: National Archives
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So we hear from the Bush administration that they don't really torture, and even if they did it wouldn't be torture if done in a time-sensitive situation, and anyway we shouldn't hamper our intelligence agencies by telling them that they can't torture (which they don't do in the first place, honest) because they may have to not-torture in some critical case in the future. Make sense? One question which doesn't get a lot of attention is whether "torture" is constitutional. Even if it is a violation of domestic law and international treaties, might it still be technically permitted under the United States Constitution?
Supreme Court Justice Antonin Scalia certainly seems to think that torturing people may not be unconstitutional, which is appropriate given the extent to which he himself tortures logic and law when trying to justify his various positions. In the current situation, he tries to justify torture by the argument that torturing to extract information would not be a form of "punishment" and therefore would not violate the constitutional prohibition against "cruel and unusual punishment."
It seems to me, you have to say, as unlikely as that is, it would be absurd to say that you, you, can, I don’t know, something under the fingernails, smack him in the face – it’d be absurd to say that you can’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? I don’t think these are easy questions at all, in either direction.
But I certainly know that you can’t come in, smugly and, and, uh, with great self-satisfaction and say, “Oh, it’s torture, and therefore, it’s, it’s, uh, no good.” 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 this group that we know is plotting some very painful action against the United States? Where are they and what are they currently planning?"
So, how is this particular argument tortuous? For one thing, Scalia has in the past argued that "cruel and unusual punishment" only excludes those practices which the Constitution's authors would have disapproved of as "cruel and unusual." This means that the death penalty for any felony would be permitted, as would punishments like ear-notching or tarring & feathering.
Clarence Thomas, with whom Scalia tends to agree, has argued that "punishment" only applies to "judges, not jailers," and thus doesn't restrict what is done to prisoners during their incarceration. Justice Harry A. Blackmun pointed out that such a view would make the torture of inmates constitutional. This is the sort of result we can easily get with strict, narrow "originalist" readings of the Constitution.
Furthermore, the Eighth Amendment isn't the only one which restricts government activity when it comes to crime. The prohibition against self-incrimination should apply here, for example. Anyone being tortured for information presumably has, well, information — specifically, information about a crime. If they aren't personally involved in the commission of that crime, then they at least have material knowledge about the crime. The first is obviously a criminal act, but so is the second — if you have material knowledge of a crime and don't tell the police, you're complicit in that crime.
So, if the police torture someone in order to force information out of them, they are in effect coercing a confession about the person's own criminal activity. That's self-evidently a violation of the constitutional ban on self-incrimination. This is an important reason why police aren't allowed to torture suspects — aside, of course, from the gross immorality of the practice, which doesn't appear to concern Antonin Scalia at all.
All this suggests that Scalia may not really believe that the constitutional prohibition on "cruel and unusual punishment" would only ban torture as a form of punishment. I think he may have only offered that rationalization to make his argument appear more erudite and sophisticated than it really is. What it amounts to is "I can't seem to find a reason to ban torture based on a self-servingly narrow reading of just one amendment to the Constitution, so I guess it's OK."
Finally, we should take Scalia's advice about applying our questions to "real-life situations." I appreciate that he says this because so much time is wasted on hypothetical thought experiments like the "ticking time bomb" scenario which simply aren't ever going to happen. They may provide interesting information about our morality and decision-making process, but they are worthless as actual guides for action.
What are the real-life situations? We need only look at police work to get the broad outlines: lots of innocent people are questioned and detained while more than a few innocent people get put on trial and even convicted. So, if we are going to look at real life, then we have to take seriously the likelihood that we'd be torturing completely innocent people and more than a few people with only tangential knowledge of what we want to learn.
Supreme Court Justice Antonin Scalia, whose patron saint must be Tomas de Torquemada, evidently regards it as "smug" to declare that the torture of innocent people is "no good." He also regards it as smug to think it is no good to torture people who may indeed be guilty of something, but who have not been convicted in any court of any wrongdoing for which they are to be tortured. He would, however, say it is "no good" to torture someone who has been found guilty by a legitimate court. This is what passes for intellectualism and sophistication among conservative jurists in America.