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Antonin Scalia's spirited defense of torture

"Listen, I think it is very facile for people to say, 'Oh, torture is terrible.'" the far-right justice complained.
Antonin Scalia
Supreme Court Justice Antonin Scalia makes gestures as he speaks at the Northern Virginia Technology Council's (NVTC) Titans breakfast gathering in McLean,...
The Associated Press reported late last week that Supreme Court Justice Antonin Scalia defended torture during a radio interview, but there was a small problem with the report: it included very few actual quotes. Given the subject matter, it seemed important to know exactly what the far-right jurist said on the subject.
Fortunately, RTS - Swiss National Radio was kind enough to provide MaddowBlog with an audio recording of its interview with the Supreme Court justice, and I was able to transcribe the relevant portion.
The interviewer asked, for example, what the U.S. Constitution says about torture. "We have laws against torture," Scalia replied. "The Constitution says nothing whatever about torture. It speaks of punishment; 'cruel and unusual' punishments are forbidden."
"So torture is forbidden, in that case?" the host asked. "If it's imposed as a punishment, yes," Scalia responded. "If you condemn someone who has committed a crime to be tortured, that would be unconstitutional."
When the interview sought clarification, asking about interrogations, Scalia interrupted mid-question. Here's his response in its entirety:

"We have never held that that's contrary to the Constitution. And I don't know what provision of the Constitution that would, that would contravene. "Listen, I think it is 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? I don't think that's so clear at all. "And once again, it's this sort of self-righteousness of European liberals who answer that question so readily and so easily. It's not that easy a question."

When the host noted that American liberals tend to agree with European liberals on the issue, Scalia added, "And American liberals too. Yes. But the Europeans are more self-righteous, I think."
If Scalia's example about a nuclear bomb in Los Angeles seems vaguely familiar, there's a good reason for that.
Back in 2007, the Wall Street Journal reported on a law conference in Ottawa, where a Canadian judge remarked during a panel discussion about terrorism, torture and the law, "Thankfully, security agencies in all our countries do not subscribe to the mantra 'What would Jack Bauer do?'"
None other than Antonin Scalia was on the same panel, and apparently did not appreciate the comment.

Justice Scalia responded with a defense of Agent Bauer, arguing that law enforcement officials deserve latitude in times of great crisis. "Jack Bauer saved Los Angeles.... He saved hundreds of thousands of lives," Judge Scalia reportedly said. "Are you going to convict Jack Bauer?" He then posed a series of questions to 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," Scalia reportedly answered himself. "So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."

Seven years later, Scalia's understanding of the propriety of torture has apparently not become any more sophisticated.
As for his argument on the merits, I'm struck by the "punishment" distinction Scalia seems eager to emphasize. In the justice's mind, if the United States tortures someone convicted of a crime, that's unconstitutional, but if officials commit torture of a prisoner who's received no trial, the Constitution is indifferent to the situation. What an odd perspective.
The Atlantic's Matt Ford had a good piece on Friday adding that Scalia is wrong on the merits -- the Supreme Court has actually weighed in against torture, as far back as 1878 -- and his hypothetical is foolish.

To buttress his stance, the justice constructed a tale of nuclear terrorism in a major American city and a desperate race against time to save millions of lives. The Senate torture report shows how detached this hypothetical scenario is from reality. In the real world, CIA personnel tortured hundreds of detainees, including ones who committed no crimes. CIA officers and contractors waterboarded detainees, in some cases hundreds of times. CIA medical personnel flooded their orifices with nutrients via plastic tubes for "behavior control." CIA officials denied detainees access to sanitary facilities and forced them to use diapers for humiliation. They forced detainees to stand on broken ankles. They subjected one to sleep deprivation for 56 hours until he could barely speak and was "visibly shaken by his hallucinations depicting dogs mauling and killing his sons and family." They threatened to murder detainees' children and sexually assault their mothers. They used the taped cries of an "intellectually challenged" detainee to coerce family members. They even shackled one detainee named Gul Rahman, naked, to a concrete floor in a "stress position," where he died of hypothermia. No time-bomb ticked as this happened. Jack Bauer, who helped normalize torture for American audiences, didn't save the day. We're not living in a television show and torture isn't a plot device. "You think it's an easy question?" Scalia asked. The answer to that seems easy, too.