"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."
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."
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.