(no subject)

[lederhosen]

Via aries_jordan, Antonin Scalia explains the necessity of torture.

"Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?"

Let's think about what that scenario supposes:

1. Terrorists have obtained a (presumably) nuclear weapon and got it to LA. Okay, not very likely, but possible (especially given the last decade's policy failures on containment of nuclear material, but that's another post). And even more plausible if one mistakes 24 or whatever for real life.

2. The cops find out about this plot and manage to catch someone who knows where the bomb is, in enough time to do something about it, but don't manage to find the bomb itself. (Again, it could happen, although it's not a very likely scenario.)

3. The terrorists who've managed to get hold of a nuclear weapon entrust the security of the mission to somebody so weak-willed that he'll give up the information (and not lie and send them off on a wild goose chase, wasting precious time) for nothing more than a 'smack in the face'. Okay, starting to get a bit implausible here.

4. The LAPD is incapable of finding an officer willing to smack a suspect in the face without legal sanction.

From context, Scalia seems to be trying a 'shades of grey' argument - if there is some set of circumstances, however bizarre, where torture might be a good thing, then the law should not completely forbid it. The problem with that argument is that with a little imagination it can be stretched to cover just about everything, and we don't make law to cover every unlikely eventuality. Unless you're willing to draw the legal code out to several million pages of bizarre contingencies, law should probably be based on the 99.9999999% of cases where torturing prisoners is a bad thing, with judicial discretion (and if need be, Presidential pardons) to cover the unexpected.

(And yes, there are more plausible scenarios where a lot of people believe torture might be justified - but those scenarios are also less dramatic, and less persuasive to people who don't stop and think about the odds. Which is probably why Scalia didn't use them.)

Comments

[culfinriel.livejournal.com]

That's an actual quote? From a Supreme Court judge? Why are these people messing up my country? Gah!

[cavalaxis]

"Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?"

Um, yes, yes it is that easy. It's right there.

IN THE EIGHTH AMENDMENT.

Who was it, Bill Maher, who said, "I know the gov't is out there reading all my emails. I keep sending myself copies of the Constitution, in vain hope that they'll actually read it."

[cerebresque.livejournal.com]

Uh-uh.

"nor cruel and unusual punishments inflicted."

The 8th Amendment prohibits us from torturing terrorists because they're terrorists and we feel they ought to suffer. That would be a punishment.

Doesn't say a damn thing about what we're allowed to do by way of interrogation.

[cerebresque.livejournal.com]

Which is not to say that it isn't generally and, strictly defined, rightly prohibited elsewhere in law, of course; but the 8th Amendment doesn't do it.

[cavalaxis]

I'm sorry, I don't understand how that phrase skips right past the part about "excessive bail" which to me implies pre-conviction, and goes straight to post-conviction "punishments".

I would think that torture for interrogation purposes would be included on the bail side of the equation.

But I'm not a lawyer, and am not qualified to argue Constitutional law.

[cerebresque.livejournal.com]

It's three separate clauses, grammatically speaking, sharing only the "shall be"; i.e., it's forbidding three separate, unrelated things.

[silverblue.livejournal.com]

Nothing to do with this (you know my opinions on torture and the worth of any information gained), but I hear some of the Scientologists were talking about protests in Brisbane yesterday being bad because of the right to free speech guaranteed in the constitution.

[chaos-crafter.livejournal.com]

I've always liked Silverblue's suggestion on this...
If the situation is bad enough, I'll wear the consequences of breaking the law but even then the law should be applied.
That's also my feeling on the death penalty. As far as I'm concerned if I kill I should be tried for murder. Doing it in the name of the state should not excuse me any more than doing it in the name of Nazi Germany should.

[nefaria.livejournal.com]

I realize I'm in the minority position, but I don't believe my government's highest priority is to be nice. Its highest priority is to protect its citizens. I'm reminded that 9/11 would not have happened if the FBI had been granted permission to search the lead terrorist's laptop. Sometimes breaking the rules is the best course of action.

Your mention of presidential pardons and folks willing to break the law and suffer the consequences in order to preserve the integrity of the law does bear weight though.

[lederhosen.livejournal.com]

Its highest priority is to protect its citizens.

Most people agree on that principle, in some shape or form; what they don't agree on is how to prioritise protection from terrorism as compared to protection from abusive governments.

I'm reminded that 9/11 would not have happened if the FBI had been granted permission to search the lead terrorist's laptop.

The 9/11 Commission was rather less certain of that:

"A maximum U.S. effort to investigate Moussaoui conceivably could have unearthed his connections to Binalshibh. Those connections might have brought investigators to the core of the 9/11 plot. The Binalshibh connection was recognized shortly after 9/11, though it was not an easy trail to find. Discovering it would have required quick and very substantial cooperation from the German government, which might well have been difficult to obtain."

Moussaoui was arrested less than a month before 9/11; that's not much time to chase an international money trail. (And very often the problem isn't that intelligence agencies don't have enough information, it's that they don't make effective use of the information they already have. Also, note that the FBI weren't actually refused a warrant; they never actually applied for one.)

However, the 9/11 Commission goes on to note: "...publicity about Moussaoui's arrest and a possible hijacking threat might have derailed the plot" - something that could have been accomplished very easily with nothing more than they already had.

Sometimes breaking the rules is the best course of action.

Absolutely. I don't think any manmade set of rules can possibly give the right answer for every contingency. I won't say that it is universally wrong to torture somebody, just that if you can't find anybody prepared to risk jail time to do it then the circumstances can't be all that drastic.

[manna]

Legalising torture has already been tried, in Israel. It just flat-out didn't work. The Israeli supreme court, not known for being a bunch of fluffy-hearted bunnies, eventually overturned the law.

Being able to torture suspects didn't improve intelligence or catch more terrorists. Once torture was legal, it very quickly because widely applied to prisoners. Probably most damaging of all, torturing large numbers of Palestinian prisoners produced the not entirely unpredictable result of massively inflaming anti-Israeli feeling.

On a purely practical basis, all moral arguments aside, legal torture is ineffective and actually counter-productive in terms of the government protective citizens.