2/12/08. Let me paraphrase what I just heard Justice Antonin Scalia say on NPR. In a replayed BBC interview, he said that he didn’t see anything in the constitution that prohibits the use of torture to get information. On the other hand, he said that the use of torture as punishment would be unconstitutional.
This is the first time I have heard this particular bit of analysis. That is the tack you’d expect him to make. A few colleagues and I had the opportunity to sit and have coffee with Scalia some years ago when he was on our campus. I left the gathering with the impression that he is a very formidable character. Defending a case in front of him would be nerve wracking.
It is worth remembering that the Supreme Court’s job is to deliberate and rule on matters of interpretation of the constitution. I would offer that the comments of a justice of SCOTUS are not to be taken as promulgation of moral authority, but rather as constitutional scholarship.
Highly civilized countries like Switzerland, The Netherlands, or Sweden have surely wrestled with the calculus of this matter. I wonder what they have concluded as to the merits of torture. Maybe they are less squeemish about it than we are.
Addendum 2/13/08: If you think about what torture really is, it is hard to come to the conclusion that Scalia is offering. Interrogation torture is a circumstance wherein a person is detained and put under the requirement to disclose information. To qualify as torture, as opposed to simple questioning, the detainee must be subject to a negative outcome. I think in the normal use of the term, merely serving time in confinement isn’t ordinarily considered torture. The customary understanding of the term includes negative treatment that produces stress, dread fear, pain and discomfort, or injury.
You could argue that infliction of negative treatment as a result of detainee non-compliance is a form of punishment. Infliction of negative treatment in anticipation of non-compliance would be cruelty. To put it another way, if the infliction of pain and suffering is not a result of non-compliance, then it must be cruelty. If it is a result of non-compliance, then it it must be considered punishment.
I’ll have to disagree with Scalia’s assertion. I cannot escape the conclusion that the application of torture in questioning is either punishment or mere cruelty and therefore unconstitutional.
The notion that our form of “negative treatment” isn’t really torture is fatuous and should be abandoned. If we want to allow our elected government to torture people, then we should amend the constitution in the customary fashion to make allowances for this action. My guess is that most thinking adults will not gladly endorse a constitutional right to torture.
Lamentations on Chemistry 
Why post this? You’ve already said you don’t believe in the principle of ‘presumptive innocence’?
Remember —“Send your Gluteal Scan to the FBI” ????
If we’re all presumptively guilty, then of course only torture might prove us innocent. Or did you think you had nothing to hide? Seems like you want to bond with your captors.
Hi Fred, I’m not sure what you mean- perhaps I have written poorly. I’m not sure that I said, or at least meant to say, that I don’t believe in presumptive innocence. In fact I do believe in, and insist upon, the presumption of innocence. My post on the the FBI that you mention was admittedly a bit glib, but I have to say that I am very troubled by the maturation of biometric data collection and the handiness that our government and its contractors have shown with it. The ease with which our society is slipping into a nanny/police state is frightening.
Regarding this post, I wrote the first half without really analyzing it. After a day to think about what Scalia said, I was struck with the notion that his argument was illogical. That is the final point.
So there is no doubt, I am against torture. Having said that, I also know that a great many people are capable of inflicting torture- myself included, no doubt. I am educated enough to know that there is a dark side to everyone and that we must be eternally vigilant of this. My opposition to torture is a recognition of this dark side to human nature and it is my microscopic way of pushing back against the dark side of our nature.
I don’t edit out stupid things that I say. Blogging is my way of trying to think through these issues. Just ask around- I’m usually wrong about most things. Thanks for your comment.