(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

[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.