Just broadcast on BBC Radio 4's half-hour weekly program, "Law in Action," an interview conducted with U.S. Supreme Court Justice Antonin Scalia during a recent visit to London. (photo credit)As you can hear here, the interview ranges widely, from originalism to abortion, from the plaintiffs' bar to BMW, from capital punishment to collegiality on the Court. Of particular interest to readers of this blog no doubt will be Scalia's comments regarding detention, interrogation, and -- his words -- "so-called torture." The issue of conduct during interrogation is at the heart of just-announced Gitmo prosecutions, as Elena Baylis' post yesterday demonstrated. And as also posted, the question of what rights the Constitution affords Gitmo detainees is at issue in Boumediene v. Bush, now pending before the Court on which the Justice sits.
Here's the exchange, between the BBC's Clive Coleman and Justice Scalia, on those issues:
BBC: If you look at the U.S. Supreme Court’s actions in relation to Guantánamo Bay, people might say, “Well, it took a very long time for you to come down and do the right thing."
SCALIA: Well, now you’re talking about a different issue, Guantánamo Bay, I’m talking about the United States Constitution. The United States Constitution gives rights to Americans wherever they are, and to foreigners who are in America, who are in the United States. It doesn’t give rights to everybody in the world. I don’t, I don’t have a warrant to go investigating the actions of my country throughout the world, to see whose rights they violated. I mean, there may be some natural law up there in the sky, but the American Constitution doesn’t give rights to these people. And that was the principal issue in Guantánamo, whether indeed Guantánamo Bay wasn’t within the United States, and our courts had no jurisdiction there. Just because you would like it to be so does not make it so, it seems to me. You have to consult the text of the document, and the text of the Constitution does not confer rights on people of the world.
BBC: Tell me about the issue of torture. We know that cruel and unusual punishment is prohibited under the 8th Amendment. Does that mean that the issue is a kind of, if it comes up before the Court, is 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 Consti- .... because smacking someone in the face would violate the 8th Amendment in the 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? I think it is not at all an easy question, to tell you the truth.
BBC: It’s a question that’s been raised by Alan Dershowitz and other people, this idea of ticking-bomb-torture. You know. But it’s predicated on the basis that you’ve got a plane with nuclear weapons, that’s flying toward the White House, you happen to have in your possession – hooray – the person who has the key information that can 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: I, I ....
SCALIA: All I’m saying is ...
BBC: ... think about it, it’s a bizarre scenario, because the fact is, it’s very unlikely you’re going to have the one person who 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: It seems to me, you have to say, as unlikely as that is, it would be absurd to say that you, you, can, I don’t know, something under the fingernails, smack him in the face – it’d be absurd to say that you can’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 that you can’t come in, smugly and, and, uh, with great self-satisfaction and say, “Oh, it’s torture, and therefore, it’s, it’s, uh, 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 and what are they currently planning?"
BBC: If you look at countries with a common law tradition, of which we are one, and you are another, but also, lots of other countries around the world, and in the developing world – if they look at decision of the Supreme Court which affirm the death penalty, and which perhaps affirm torture, although that hasn’t happened yet, does that not set a moral tone?
SCALIA: Well, I urge them not to do that. I don’t look to their law. Why should they look to mine? I don’t purport to be prescribing some universal moral law. I am interpreting the meaning of the text of my Constitution, which was adopted at a certain time by my people, and had a meaning to those people at the time. That’s all I’m doing. I’m not charged with, with figuring out the content of the natural law. If you want to look at our decisions, what you could derive from it is what a wonderful Constitution we have. Or, if you don’t like it, you can say what a terrible Constitution we have. But we don’t pretend to be moral, you know, some Western mullahs, who what decide what is right and wrong for the whole world.
BBC: Well, you don’t, perhaps, but many Americans do pride themselves on living in a country that’s the leader of the free world.
SCALIA: We hope to be the leader of the world. But that is set forth not primarily in our judicial opinions, it’s set forth in our laws. To put all of the praise for that, or the blame, if you want to call it blame, on the Supreme Court, is really quite foolish.
