Antonin Scalia reacted* to the Senate torture report with a defense of torture, as reported by the AP*:
"Listen, I think it's 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?" Scalia said.That jogged a memory. What planted this scenario in Scalia's mind? Hark back to June 2007, via the Wall Street Journal Law Blog:
The Globe and Mail reported that Scalia came to the defense of Jack Bauer and his torture tactics during an Ottawa conference of international jurists and national security officials last week. During a panel discussion about terrorism, torture and the law, a Canadian judge remarked, “Thankfully, security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?’ ”The Senate report documented meticulously that in each of the eight chief instances in which the CIA has claimed that torture disrupted a terrorist attack or led to the capture of attack planners, the information allegedly obtained through their "program" was obtained elsewhere, or obtained from the detainee in question before he was tortured. The New York Times collects and links to these eight rebuttals here. But Scalia, like millions of Americans, has imprinted the imaginings of a TV producer obsessed with (or willing to endlessly exploit) the ticking-bomb scenario.
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?”
Scalia also averred in the same interview that the U.S. Constitution does not ban torture -- " "I don't know what article of the Constitution that would contravene," He went on to explain, as The Atlantic's Matt Ford relates, that the Eighth Amendment forbids cruel and unusual punishment but says nothing about using cruel and unusual means to get information. He did, to be fair, acknowledge that the U.S. has laws against torture -- and, he might have added, is a signatory to international law banning torture under any circumstances:
We have laws against torture. The Constitution itself says nothing about torture. The Constitution speaks of punishment. If you condemn someone who has committed a crime to torture, that would be unconstitutional.So what exactly is the point of claiming that the Constitution does not ban torture for reasons other than "punishment"? Is this not a reductio ad adsurdum of originalism? You can't parse language that finely to divine original intent: if you do, the result is as imaginary as Jack Bauer's rescues. Punishment, for starters, has multiple meanings. The OED's first definition opens at least one fault line in Scalia's parsing:
1. a. The action of punishing or the fact of being punished; the infliction of a penalty in retribution for an offence; also, that which is inflicted as a penalty; a penalty imposed to ensure the application and enforcement of a law.Along with enforcement of the law, "retribution" is also part of the definition -- and who would deny that retribution, revenge, was a part-motivator of the CIA's enhancements? Also on point is definition 1. b:
Psychol. Pain, deprivation, or other unpleasant consequence imposed on or experienced by an organism responding incorrectly under specific conditions so that, through avoidance, the desired learning or behavior becomes established.That is precisely what the depraved creators of the CIA torture regime claimed the program was designed to do: induce "learned helplessness" in its victims so that they would cooperate with their tormentors.
The OED's definition #2 is also germane ( my bolding):
Slang and colloq. a. Severe handling; belabouring, mauling; orig. that inflicted by a pugilist upon his opponent; extended to football, cricket and other contests; pain, damage or less inflicted (without any retributive or judicial character) as in PUNISH V.One might object that the last two definitions post-date the Constitution (first cited use for #1.b. is 1907; for #2, 1811). But these ex post facto lexicographers' constructions must have roots in earlier usages and understandings. Indeed, no less skilled a tormentor than Shakespeare's Iago had a distinctly instrumental take on punishment (my bolding):
Reputation is an idle and most false imposition: oft got without merit, and lost without deserving: you have lost no reputation at all, unless you repute yourself such a loser. What, man! there are ways to recover the general [Othello] again: you are but now cast in his mood, a punishment more in policy than in malice, even so as one would beat his offenceless dog to affright an imperious lion: sue to him again, and he's yours (Othello II. iii 266-275).Scalia might argue that Othello, as Iago portrays him, is not "punishing" Cassio with his disfavor. Iago begs to differ -- indeed, would probably in his cynicism deny that punishment (legally defined or not) ever has a moral as opposed to an instrumental component. Mitchell and Jessen, designers of the CIA torture program, might well concur.
As Ford points out, the Supreme Court has long interpreted the ban on cruel and unusual punishment to constitute a ban on torture -- that is, since Wilkerson v. Utah in 1878:
Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.Scalia would probably claim that the "cruelty" is not "unnecessary" when it's used to get information -- never mind his apparent refusal to examine the evidence as to whether such cruelty obtains valuable information. Again, though, who's to say what the justices in Wilkerson understood by "punishment"? And could the CIA's detainees be tortured without "punishing" them?
This constitutional latitudinarianism comes, let's recall, from a justice who asserted that it's unconstitutional for Congress to present Americans with a choice between buying affordable health insurance or paying a tax. According to Scalia, the Affordable Care Act is unconstitutional, and torture isn't.
* Hat tip to Bill Gardner at The Incidental Economist, who cited this story while detailing that the medical and psychological professions unequivocally forbids torture.