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Scalia: Torture Not Necessarily Unconstitutional

2:33 PM, Feb 12, 2008 • By MICHAEL GOLDFARB
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We know Justice Scalia is a fan of Jack Bauer. As the Wall Street Journal quoted him last summer:

"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."

It seems Scalia has further elaborated on his position in an interview with the BBC via Think Progress. Click through to listen, but the basic gist is that Scalia doesn't believe it's clear that the government is prevented from using coercive interrogation in order to prevent an imminent terrorist attack. His argument seems to rest on the fact that the Constitution forbids cruel and unusual punishment, but if the treatment is not meant as punishment, then there is some room for maneuver. The show's host takes issue with his use of the ticking-time bomb scenario, which is often dismissed as so unlikely as to be irrelevant, but Scalia responds that once you accept the premise that there are conditions under which torture might be permissible, and he says it would be "absurd" to think otherwise, "then we're into a different game."

"How close does the threat have to be, and how severe [would the] infliction of pain be. I don't think it's easy at all, in either direction, but I certainly know you can't come in smugly and with great self-satisfaction and say 'oh, well it's torture, and therefore it's 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 planning?"

The left will portray Scalia's comments as somehow beyond the pale, but my sense is that Americans are pretty evenly divided on this as they are on most other issues relating to the war on terror. It would be troubling if the Supreme Court wasn't as well.