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.

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