Notice one question he does not ask: how confident must the government be that the person they will torture actually possesses relevant information? The reason Scalia does not ask this question is because it would show him to be the juristic fraud and sadist he is. I'll get to that in a bit.
The discussion was situated in the context of the Eighth Amendment's cruel and unusual punishment clause. Justice Scalia conceded the Eighth Amendment would prohibit torture as punishment for crime, but avoided that prescription on the ground that the Amendment only "refers" to "punishment for crime." Since torture is done to elicit information, says Scalia, it is not "punishment" and is not forbidden by the Eighth Amendment. He went on state that it "wasn't an easy question at all" whether the constitution would preclude the government from "smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles."
The interviewer raised the point that a scenario where "you happen to have in your possession the person who has the key information to put everything right" would be "very unlikely" ever to occur. Interpreting the interviewer's failure to outright deny the legitimacy of a face smack in this hypothetical circumstance as an acceptance of his proposition, Scalia countered, "And once you acknowledge that, we’re into a different game." In other words, once you concede that the use of force, however slight, to elicit information is legitimate under any hypothetical circumstance, you have conceded that torture is acceptable and the only remaining questions are how severe and under what conditions.
Now what's wrong with this?
First, Justice Scalia, ever the sophist, is wrong that the infliction of torture to elicit information is not "punishment." It is, quite clearly, punishment for refusing to provide information that the government seeks. Moreover, the Eighth Amendment does not actually "refer" to punishment "for crime." It refers to nothing at all other than "punishment." It states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." One must wonder where Justice Scalia's textualism finds a limitation in that provision to crime. Indeed, a textualist interpretation would have to view the government's administration of torture to a person for refusing to provide information the infliction of a punishment. But Justice Scalia isn't really a textualist. He's an ideological hack, so if the jurisprudence, despite its divergence from the text, supports where he wants to go, textualism will be abandoned. And, indeed, there has developed a jurisprudence restricting the Eighth Amendment's reach to inflictions of punishments for crime. But there's a good reason for this. You see, the only time the government is ever authorized to inflict a punishment on a citizen at all is after he or she has been afforded due process.
Which takes us to the rub: due process. Something Scalia did not mention, for good reason. The question when considering whether torture to elicit information is constitutional is not whether it is cruel and unusual punishment, but whether it is punishment at all. If it is (and it obviously is), then due process must be afforded. The Fifth Amendment states: " No person shall be ... deprived of life, liberty, or property, without due process of law." To be sure, a citizen has a very strong liberty interest in remaining free from torture.
Scalia reveled in his "gotcha" argument with the British reporter. When the reporter did not deny the legitimacy of the use of force in his hypothetical, Scalia smugly and with great self-satisfaction concluded, "I certainly know you can’t come in smugly and with great self-satisfaction and say, 'Oh, it's torture and therefore it’s no good.'"
Ah, but you can! To demonstrate, I'll play my own game of gotcha with Justice Scalia. To win, I would only need to get Justice Scalia to concede that it would be impossible for any torturer to ever be 100% certain that the person they intend to torture is actually a person with information about where the ticking time bomb is hidden. It is, of course, impossible for any interrogator to have such knowledge. Even if the person had confessed to being the person who placed the bomb or having information on where it was placed, we now know that false confessions are by no means an unusual occurrence and could occur in a situation like this for various reasons. But, regardless, isn't it very unlikely that a person who confesses to knowing where a hidden bomb is does not actually know? Not any more unlikely than Justice Scalia's scenario in the first place. And once you acknowledge that, game over.
This is the answer to Scalia's hypothetical. The question he is really asking is not whether it is justified for the government to smack the face of an individual who has information about a hidden bomb, but, rather: How many innocent people may the government torture before it finds the right person with accurate information? Given that the scenario Justice Scalia posits isn't just "very unlikely" but absolutely impossible, we need not acknowledge even the torturer's "smack of the face" as legitimate. Thus, we never begin the slippery slide into social sadism that Scalia the Statist so craves. The constitution absolutely prohibits torture, and it is a very, very easy question.
Having dispensed with theory, what about the practical side? As luck would have it, we have a case study. We'll begin with an article from July 31, 2004 that was published in the New York Times:
High Qaeda Aide Retracted Claim of Link With Iraq
WASHINGTON, July 30 - A senior leader of Al Qaeda who was captured in Pakistan several months after the Sept. 11 terrorist attacks was the main source for intelligence, since discredited, that Iraq had provided training in chemical and biological weapons to members of the organization, according to American intelligence officials.
Intelligence officials say the detainee, Ibn al-Shaykh al-Libi, a member of Osama bin Laden's inner circle, recanted the claims sometime last year, but not before they had become the basis of statements by President Bush, Vice President Dick Cheney, Secretary of State Colin L. Powell and others about links between Iraq and Al Qaeda that involved poisons, gases and other illicit weapons.
Anybody want to hazard a guess as to how Ibn al-Shaykh al-Libi came to originally claim that Iraq had provided training in chemical and biological weapons to members of al Qaeda? Here's a hint, from the article:
Mr. Libi, who was captured in Pakistan in December 2001, is still being held by the Central Intelligence Agency at a secret interrogation center, and American officials say his now-recanted claims raise new questions about the value of the information obtained from such detainees.
Anybody want to hazard a guess as to what happened to high value detainees at CIA "secret interrogation centers"? Here's some more helpful information from the article:
Intelligence officials declined to say precisely when Mr. Libi changed his account, and they cautioned that they still did not know for sure which account was correct. They said they would not speculate as to whether he might have been seeking to deceive his interrogators or to please them by telling them what he thought they wanted to hear.
Anybody want to hazard a guess as to why Mr. Libi would seek to "please" his interrogators or "tell them what he thought they wanted to hear"?
Okay, so we actually know the answers to these questions now, although we did not (or pretended not to) at the time this article was published. Mr. Libi was, of course, tortured. Waterboarded, in fact. According to a November 2005 ABC News report:
According to CIA sources, Ibn al Shaykh al Libbi, after two weeks of enhanced interrogation, made statements that were designed to tell the interrogators what they wanted to hear. Sources say Al Libbi had been subjected to each of the progressively harsher techniques in turn and finally broke after being water boarded and then left to stand naked in his cold cell overnight where he was doused with cold water at regular intervals.
His statements became part of the basis for the Bush administration claims that Iraq trained al Qaeda members to use biochemical weapons. Sources tell ABC that it was later established that al Libbi had no knowledge of such training or weapons and fabricated the statements because he was terrified of further harsh treatment.
What ought to strike you, good reader, is the end to which the means of torture were put. Ostensibly it was to "protect" Americans from any future terror plot. But what was it really? It was a means of eliciting information useful to advance the administration's political decision to invade Iraq. Thus, even when the government has in its possession what by all accounts looks to be one of the "bad guys," its use of torture still had no relation to its stated objective. This is the behavior Scalia seeks to legitimize under our constitution, and it must, of course, be resolutely rejected.
Addendum: Transcript of Scalia's interview:
BBC: Tell me about the issue of torture, we know that cruel and unusual punishment is prohibited under the 8th amendment. Does that mean if the issue comes up in front of the court, it’s a ‘no-brainer?’
SCALIA: Well, a lot of people think it is, but I find that extraordinary. To begin with, the constitution refers to cruel and unusual punishment. It is referring to punishment for crime. For example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer...can just commit them to jail until you will answer the question — without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about so-called torture.
Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited by the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about. Is it obvious? That what can’t be done for punishment can’t be done to exact information that is crucial to the society? It’s not at all an easy question, to tell you the truth.
BBC: It’s a question that’s been raised by Alan Derschowitz and other people — this idea of ticking bomb torture. It’s predicated on the basis that you got a plane with nuclear weapons flying toward the White House, you happen to have in your possession — hooray! — the person who has the key information to put everything right, and you stick a needle under his fingernail — you get the answer — and that should be allowed?
SCALIA: And you think it shouldn’t?
BBC: All I’m saying about it, is that it’s a bizarre scenario, because it’s very unlikely that you’re going to have the one person that can give you that information and so if you use that as an excuse to permit torture then perhaps that’s a dangerous thing.
SCALIA: Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can the infliction of pain be?
I don't think these are easy questions at all. In either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, 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? What are they currently planning?”
