2¢ on interrogation review

See the last item at The New York Times' "Room for Debate" for my thoughts on the news that, as foreseen by IntLawGrrl Beth Van Schaack, Attorney General Eric H. Holder, Jr. (left) has instructed Assistant U.S. Attorney John Durham to conduct a "preliminary review" of post-9/11 interrogations by the CIA to see whether U.S. law was violated. Prompting the order was release of a 2004 CIA report.
International criminal law point of comparison:
The 1999 "internal analysis," by the Office of the Prosecution at the International Criminal Tribunal for the former Yugoslavia, into whether NATO's air strikes against Serbia violated laws of war.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'I believe we are finally starting to turn the page on this extremely unfortunate chapter of recent history, with counter-terrorism measures starting to move back in to line with international human rights standards. ... But there is still much to do before the Guantanamo chapter is truly brought to a close.'

-- U.N. High Commissioner for Human Rights Navanethem Pillay (right) yesterday, in what the Washington Post called "her most detailed statement on U.S. detention policy" to date. The full statement, which alluded to the issues of interrogation, torture, accountability for complicit lawyers and doctors, and proposed "prolonged" detention without trial, is available here.

Guest Blogger: Jacqueline Ross

It's IntLawGrrls' great pleasure to welcome Jacqueline Ross (left) as today's guest blogger.
Professor of Law at the University of Illinois College of Law, Urbana-Champaign, Jacqueline is an internationally noted comparatist in the fields of evidence and criminal law and procedure. Her scholarship -- published in journals in the United States and elsewhere -- includes "Impediments to Transnational Cooperation in Undercover Operations: A Comparative Study of the United States and Italy," 52 American Journal of Comparative Law 569 (2004), winner of the Edward Wise Senior Scholar Prize from the American Society of Comparative Law for best article in comparative criminal procedure.
Jacqueline's a co-founder and co-director of the Michigan-Illinois-Princeton Workshop on Comparative Law Works in Progress, and also the co-organizer of a seminar series on Transnational Intelligence and Policing in Immigrant Communities that alternates between Institut D'Études Politiques de Paris and the University of Illinois College of Law. Her research projects include comparative studies of undercover policing in the United States, Italy, Germany, and France; and of policing in the immigrant communities of the United States and France, for which she's received a Fulbright Research Fellowship and a grant from France's Agence Nationale de Recherche.
An honors graduate of the University of Chicago Law School, Jacqueline clerked for Judge Douglas H. Ginsburg, U.S. Court of Appeals for the District of Columbia Circuit, then practiced as an Assistant U.S. Attorney in Chicago and Boston before entering academia.
In her guest post below, Jacqueline applies comparative analysis to undercut the claim, made by many a common law expert, that evidence admitted in civil law trials without any form of prior screening.
Heartfelt welcome!

Deception, interrogation & evidence

(My thanks to IntLawGrrls for the opportunity to contribute this guest post on an article I published at 28 Oxford Journal of Legal Studies 443 (2008), downloadable by subscription at the hyperlinked site; earlier, bepress.com version available here)

In my recent article, Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation in the United States and Germany, I challenged the commonly held view that civil law legal systems such as Germany do not employ formal rules of evidence comparable to those that govern American courtrooms.

Civil law systems, which commit factfinding to mixed panels of lay and professional judges, are said to have less need for formal rules of evidence that withhold information from decisionmakers. In my article, I argued that scholars have failed to recognize that evidentiary rules can restrict not only the presentation of of evidence at trial, but also the manner of its acquisition during the pretrial investigation. For this reason, existing scholarship overlooks a rich source of German evidentiary norms designed to shore up a German prohibition against deceptive interrogation. (By contrast, of course, the United States permits the police to obtain confessions through investigative lies.)

I argue that German regulation of police interrogation -- particularly its prohibition of deceptive stratagems -- plays an important role in shaping the factual record on which the legal systems assess guilt or innocence. The article identifies a number of institutional factors on which this system of pre-trial evidentiary regulation depends:

► the existence of a case file documenting all investigative acts;

► the accessibility of this case file to defense counsel and judges;

► the fact that information obtained during investigations becomes evidence as soon as it is acquired, rather than when it is presented at trial;

► verbatim transcriptions of all interrogation questions and answers, allowing prohibited investigation methods to become known;

► a more neutral investigative role assigned to police and prosecutors, who must investigate exculpatory as well as inculpatory circumstances;the requirement that convictions be justified in writing, so that appellate judges may more easily determine whether trial judges relied on confessions that should have been suppressed; and

► the fact that German evidentiary regulation centers at least as much if not more on the investigative process than on trial procedure.

(Credit for photo of German courtroom. An earlier IntLawGrrls post, challenging another assumption about civil law systems, is here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.'

-- U.S. District Judge Jeffrey S. White (N.D. Cal.) (above right), explaining why he denied a motion to dismiss a challenge to Bush-era detention and interrogation techniques. (photo credit)

In the lawsuit captioned Padilla v. Yoo, Case No. 08-00035, on which IntLawGrrls posted when it was filed, onetime "enemy combatant" detainee José Padilla (bottom left) seeks damages against John Yoo (top left), former Bush Administration lawyer and current California-Berkeley law professor. White had taught civil trial advocacy at Berkeley Law, as an adjunct, for more than 20 years before assuming the federal bench on nomination of President George W. Bush.

Those memos

They speak for themselves. Read asserted justifications of post-9/11 interrogation policy here.
Speaking volumes of a different sort: President Barack Obama's statement on the memos' release this week.

Extradition silly season

For the 3d time in a month The New York Times has disserved readers interested in matters pertaining to international or transnational criminal law.
1st there was the uncritical puff piece on the unprecedented anonymity of the newly sworn-in bench of the Special Tribunal for Lebanon.
Then there was the uncritical call for unilateral air strikes against Sudan, without any consideration of whether international law might forbid the United States or any state from engaging in such use of force.
And now there is yesterday's uncritical story on Spain and 6 Bush Administration lawyers.
This IntLawGrrl had decided the day before the Times story appeared to write nothing on this at this time, for the reason that a close read of the Spanish media on which the story is based revealed little more than a leak of a trial balloon -- a tentative signal that a criminal investigation might be opened respecting these lawyers' involvement in U.S. interrogation abuses post-9/11. Unless things have changed radically in 2 days, Spain seems far from indicting anyone. The New York Times nonetheless chose to publish the names and photographs (perhaps better described as mugshots, given the nature of the photos chosen) of all 6.
But it's not that choice that galls. What galls is the 1st clause of paragraph 23 of the Times 25-paragraph story:

The United States, however, would be expected to ignore an extradition request for former officials, ....

This declaration, made without attribution -- without even the feint of an unnamed source -- is legal nonsense.
Extradition is a treaty-based process by which 2 nation-states promise to hand over fugitives upon request; this statement of promise in the U.S.-U.K. Extradition Treaty is typical:

ARTICLE 1
Obligation to Extradite
The Parties agree to extradite to each other, pursuant to the provisions of this Treaty, persons sought by the authorities in the Requesting State for trial or punishment for extraditable offenses.

Not every request will result in extradition, however. Such treaties often are quite detailed, and conditions for extradition vary from treaty to treaty. I have been unable to locate the text of the original and supplementary U.S.-Spain extradition treaties online. Still, certain common restrictions might well be part of the U.S.-Spain framework. For instance:
► Double criminality: The offense for which the fugitive (called the "relator") is sought must have been, at the time it was allegedly committed, a felony under the laws of both countries.
► Specialty: If extradited, the relator may be tried in the requesting country only for offenses properly named in the extradition request.
► Political Offense: In some treaties, extradition will be blocked if the underlying offense is of a political nature.
► Double Jeopardy/Ne Bis in Idem: There will be no extradition if the relator already has been tried for the same offense.
► Hearing: The requested state typically will consider the relator's challenges to extradition, not only on factors like those above, but also on fundamental due process concerns, such as whether the person in custody is in fact the person sought for extradition, and whether the requesting state's statement of the bases for suspecting the relator of the stated offense is sufficient. In the United States such additional conditions are spelled out at Title 18, ch. 209 of the U.S. Code.
If the requesting state fails to meet all the requirements agreed upon in the extradition treaty and law, the requested state is fully justified in refusing the request.
Such a refusal, however, would fall far short of "ignoring" an extradition request, for it would have come after examination of the matter at hand; that is, only after the state had discharged its obligations under the extradition treaty to give due consideration both to its treaty partner's request for extradition and to the relator's challenges to same.
For the Times to suggest that the United States would do anything less evinces a lack of understanding about the law and casts innuendo where none is yet warranted.

Obama must-do: Close GTMO, end torture

[Q:] There are a number of different things that you could do early pertaining to executive orders. One of them is to shutdown Guantanamo Bay. Another is to change interrogation methods that are used by U.S. troops. Are those things that you plan to take early action on?

Mr. Obama: Yes. I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn't torture. And I'm gonna make sure that we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world.

In giving this answer during last night's 60 Minutes interview (video here), President-Elect Barack Obama (above) reaffirmed his campaign promise to turn the page and close the book on abuses committed by the United States in the wake of the terrorist attacks of September 11, 2001.
The answer's noteworthy not only for its content, but also for its crispness.
Sources named and unnamed have uttered hand-wringing "But hows?" when asked about closing the U.S. detention camp at Guantánamo (below) or about ending coercive interrogation at any U.S. site anywhere. Last week an Obama senior adviser insisted no decisions have been made. Yet Obama left no room for doubt that both goals can be achieved. (On this I agree; more on that soon.)
His answer signaled too that change may come sooner than later:
Note that Obama did not push back from the interviewer's suggestion that both were "things that you could do early" by means of executive order.

Child soldier accountability

The good news:
Upon signature last week by President George W. Bush, the Child Soldier Accountability Act became U.S. law. This means that recruitment and use in combat of children are now criminal acts subject to prosecution in U.S. courts. Criminalized is recruitment of children "under 15." As Human Rights Watch details here, that age line comports with the 31-year-old protocols to the 59-year-old Geneva Conventions; however, it is much lower than the line of 18 drawn in many later international law instruments.
The bad news:
The age-line discrepancy is no small thing.
Notwithstanding U.S. officials' apparent recognition that children recruited to serve as soldiers are victims of crime, the United States persists in its prosecution of alleged child soldiers. Among them, as we've posted, is Toronto-born Omar Khadr, was 15 years old when captured in Afghanistan. He's spent his adolescence at the U.S. military base at Guantánamo Bay, Cuba, under conditions of detention and interrogation (above; credit) that his lawyers say have harmed his mental health. The situation has been condemned by Canada's Supreme Court, and lawyers have demanded Khadr's repatriation. Although plans to start a trial by military commission yesterday have been scrapped, U.S. efforts to prosecute Khadr -- on charges of murder, attempted murder, conspiracy, material support for terrorism -- continue. In similar predicament is another detainee, Mohammed Jawad, 16 when captured; see Jamil Dakwar 's ACLU Blog post here.
Some day, perhaps, there will be a measure of accountability for the treatment of these child soldiers?

(Hat tip on news of the new U.S. law to Pamela Merchant at the Center for Justice and Accountability, a San Francisco-based NGO)

Guest Blogger: Lynne Henderson

It's IntLawGrrls' great fortune to feature Lynne Henderson (left) as today's guest blogger.

Professor of Law at the William S. Boyd School of Law, University of Nevada-Las Vegas, Lynne teaches in the areas of criminal law, constitutional law, feminist jurisprudence, and violence against women. She's an expert on victim’s rights, rape and feminist jurisprudence, all of which she's examined in her publications. She earned her bachelor's and law degrees from Stanford, where she was an associate editor of the Stanford Law Review. She's active in the the Society of American Law Teachers. Her work on a SALT committee dealing with human rights issues post-9/11 dovetails with the subject of her guest post below: accountability for interrogation and detention abuses. (It's a topic I broached a while back in this post.)

Lynne dedicates her contribution to Ida B. Wells (1862-1931). "Her courage in publishing, speaking out, and battling for civil rights for Black women and men was huge," Lynne writes of Wells. "In the face of threats, violence, fires, etc. she published as long as she could before having to flee Tennessee to Washington, D.C., but she never gave up educating and trying." Wells (left) campaigned tirelessly, but in vain, for a federal anti-lynching law. Author of an autobiography entitled Crusade for Justice (1928), Wells joins other IntLawGrrls transnational foremothers in the list just below our "visiting from ..." map at right.

Heartfelt welcome!

Child soldier in interrogation

We've posted before about Omar Khadr (right), the alleged child soldier who's been detained for years at Guantánamo and is among the 1st detainees whom to U.S. government has charged. He was seized in Afghanistan in 2002.
Now comes the videotape below of a February 2003 interrogation of the Canada-born Khadr. Though the words at times are hard to decipher, Khadr's distress is evident. At one point the woman and men who are questioning him leave the room. Khadr slumps forward, head in hands, and wails 2 syllables that some have understood to be "Help me," but that others have heard as the Arabic words "Ya Umi" -- "Oh, Mommy" in English.
At the time of this interrogation the boy was 16 years of age.

Cold War interrogations

The New York Times has alleged that U.S. interrogators lifted techniques from the late Albert D. Biderman's descriptions of Chinese Communist interrogations of Americans in the 1950's. Biderman was one of many social scientists employed by the Department of Defense to fight the Cold War's intellectual and political battles; for the larger context, see Ron Robin, The Making of the Cold War Enemy (Princeton University Press, 2001). Biderman's studies of Korean War POW's, especially March to Calumny: The Story of American POW's in the Korean War (MacMillan, 1963), and the interrogations they endured provided a critical corrective to earlier reports that had blamed U.S. prisoners for failing to resist Communist indoctrination. He argued convincingly that the torture and deprivation to which POW's were subjected, not their weaknesses compared to soldiers past, was responsible for their cooperation with their communist captors.
The 1957 Biderman article that was apparently used as a training document for contemporary interrogations was delivered at the New York Academy of Medicine in November, 1956 and later published in a medical journal. It relates how prisoners had to be trained by their Chinese captors before they could even understand what was expected of them, and that POW's only gradually became adept at concocting stories to fit "the wild but inalterable preconceptions" of their captors about the United States (622). (credit for photo of American POW's in Korea, under Chinese guard)
Consistent with his other work, Biderman in this article focuses on the nature of resistance to coercive techniques rather than on their utility. He wrote in counterpoint to journalists like the late Eugene Kinkead, whose widely read account Every War But One (W.W. Norton, 1959) castigated Korean War POW's for collaborating with their Communist interrogators. Biderman prepared a chart of interrogation methods to help explain the difficulty of answering the question he was most frequently asked (623): why did some prisoners comply while others did not? Not surprisingly, he fails to answer directly, but he does conclude that "resistance was the dominant ingredient" in prisoners' responses to coercive interrogation (625).
Biderman's article was intended to promote a better understanding of prisoner resistance, not to provide a list of interrogation techniques. The chart that was used for contemporary military training was but a minor piece of a major military sociologist's work.

(Cross-posted at Legal History Blog)

(Not) 'Nuff Said

A sample of interrogation-related documents that the U.S. government released this week, in redacted form, in response to ongoing Freedom of Information Act litigation. (hat tip)
The 1st line reads:

These enhanced techniques include:

The 2d line reads:

Water Board

You can fill in the rest.

21st C. turn of an Arendtian phrase

"Memo to the next president" is the title of Los Angeles Times reporter Tim Rutten's commentary about how hard it will be for the administration that takes office on January 20, 2009, to get the United States out of the complex mess that's typically subsumed within the single word "Guantánamo" -- how hard it will be, that is, for the United States to pull back from abusive rendition-and-detention-for-interrogation policies pursued since the terrorist attacks of September 11, 2001, and yet to work effectively to combat terrorism. Essential to Rutten's exposé is a critique of "torture memos" like those discussed in posts here and here. He writes:

America's version of banal evil lurks in the bloodless abstractions of mid-level lawyers, rather than in the gray efficiency of faceless bureaucrats.

The reference, of course, is to a term coined fully 45 years ago, in the trial reportage compiled into the book Eichmann in Jerusalem: A Report on the Banality of Evil (left). As described in this post, Banality philosopher Hannah Arendt's account of that early effort by a nation-state, Israel, to prosecute an individual in its national courts for internationally condemned crimes. In describing actions "so obscene in their nature and consequences" as "'banal,'" it's explained here, Arendt

meant to contest the prevalent depictions of the Nazi's inexplicable atrocities as having emanated from a malevolent will to do evil, a delight in murder. As far as Arendt could discern, Eichmann came to his willing involvement with the program of genocide through a failure or absence of the faculties of sound thinking and judgement. ...

For a time after 9/11, the use of words from a totalitarian past to describe the American present instant sparked controversy. Recall, for example, the furor in 2005 over Amnesty International's characterization of detention practices as an "American gulag." That harsh criticism now receives due consideration in the mainstream media -- indeed, as in Rutten's case, is set forth in the mainstream media -- is an advance in our avowedly open society. But that there remains cause for that criticism is no advance at all.

Eradicating abusive policies and, at least as importantly, the institutional structures within which they found root, indeed must be a priority item on the next President's to-do list.

(cross-posted at Slate's Convictions blog)

Because Ipse Dixit Says So

A reader of the newly declassified "torture memo" finds herself tempted to live-blog it; that is, to offer online real-time notes that otherwise would be scrawled in the margins replete with all manner of punctuation symbols (! and ? and, yes, #*?%!). Examples from the 81-page document issued on March 14, 2003, by John C. Yoo, then Deputy Assistant Attorney General, and entitled Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States:

p.4:

obtaining advance information about the identity of al Qaeda operatives and their plans may provide to be the only way to prevent direct attacks on the United States.

Underline's mine, and here's my marginal scrawl: Gov't admits own humint failure

p.4, again:

Interrogation of capture al Qaeda operatives could provide that information; indeed, in may cases interrogation may be the only method to obtain it.

My underline; marginal scrawl: if true, why did gov't use unreliable methods?

A cathartic exercise, perhaps. But it may be better to push back and take a broader look, as I tried to do after the 1st slew of such memos was released. In a 2005 article I wrote (p.2123):

The torrent of documents leaked in the course of the Abu Ghraib scandal revealed that, in point of fact, government lawyers had been well aware of the intricate legal terrain that the executive detention policy was traversing.

I noted (p.2124) that some of the disclosed

legal memoranda, particularly those that established legal sanction for the Executive’s detention and interrogation policies, relied on a legal opinion that the Constitution gives the 'President alone' power to determine 'any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response,' in order to deflect treaty language that might have circumscribed executive action.

This latest memorandum is much in that vein. It oft repeats the 'President alone' mantra, and it casts aside all law, domestic as well as foreign, that would appear to constrain the Executive. What troubles no less now than it did in 2005 is the fact that aspects of international law had evolved in ways that aided (pp.2124-25) U.S. deflection of international obligation:

[I]nternational human rights law ... reflects the universalist tendencies of ancient natural law yet is codified in positive instruments of law. Yet the internal enforceability of those instruments remained subject to the buffer mechanisms that public international law condones. It was on these mechanisms that government lawyers relied in order to insulate the United States from the effect of international obligations assumed when it became a state party to certain treaties. ...

The newly disclosed memo likewise points to mechanisms such as the non-self-execution doctrine and the conditioning of treaty ratification upon reservations as reasons that laws do not constrain executive officials -- military interrogators as an initial matter and, it may be presumed, their superiors, military and civilian.

This March 2003 memorandum goes a step further, turning its analysis inward in a way intended to shield individuals not only from the enforcement of the law of nations, but also from the enforcement of the law of this Nation.

Take as an example the 5th Amendment, which contains the guarantee not only of due process, but also of specific items such as the privilege against self-incrimination. That amendment does not apply to interrogation, it is claimed on pages 6-8,

► for the reason that it "was not designed to restrict the unique war powers of the President as Commander in Chief"; and

► with regard to extraterritorial interrogation, by reason of the 4th Amendment-based opinion by Chief Justice William H. Rehnquist in United States v. Verdugo-Urquidez (1990).

Is a reader to infer from the latter assertion, about interrogation outside the United States, that a President has the "war power" to set aside the 5th Amendment inside the United States? Footnote 10 on page 8 bolsters such an inference. Citing an October 2001 memo that appears not yet to have been disclosed, the footnote states, supplying its emphasis, that

our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

It is the 4th Amendment, of course, that protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Apparently some people were not nearly as secure as they might have thought; indeed, an Associated Press report speculates that the 2001 memo gave a green light to warrantless in-country surveillance.

Is a reader properly to assume, moreover, that Verdugo's discussion of the 4th Amendment's extraterritorial application vel non applies without further ado to post-9/11 matters? I have argued to the contrary (pp.295-99) with regard to the 4th Amendment itself, and most surely with regard to the 5th Amendment, which varies in text and background from the 4th. Counterarguments do not appear within the dense single spaces of this memorandum, however.

Instead, what is found is a steady train of affirming assertions. And more. In 2005 I had found (p.2123) in disclosed memoranda a general lack of resort to "the ipse dixits that had characterized public statements" of the Executive. Not so in this memorandum. Sweeping assertions like those on page 13, of Executive power to the exclusion of other branches, are supported almost solely by past memoranda of the Office of Legal Counsel.

In short, this latest document does nothing to alter my 2005 conclusion (p.2126), one that's at odds with what's been called the "lawyerly" nature of all this:

The disclosed memoranda provided rare and troubling evidence of the deliberate construction of a framework that appeared to be ruled by law, but was not. The framework might better be termed 'legalist' rather than 'legal'; within it, the only laws recognized were those allowing free rein for presidential prerogative dressed in the guise of legal constraints. For more than two years, laws that the Executive chose neither to acknowledge nor to accommodate seemed not to operate as law at all.

(cross-posted at Slate's Convictions blog, which has related posts here)

At our peril

Our colleague Mary Ellen O'Connell (below right) marked this week's anniversary of the invasion of Iraq with a most trenchant observation:

Five years on, the most tangible lesson of Iraq is that our nation ignores international law at its peril.

Ignored was not only the U.N. Charter's collective security regime, which constrains the use of force (about which IntLawGrrls also posted this week). Ignored as well, O'Connell wrote in her Jurist commentary, was the Geneva Conventions regime, which prohibits inhumane conditions of detention and interrogation. And yet, in the mainstream media and in the policymaking corridors of Washington,

The talk on Iraq is all about what went wrong, whether the surge is working, and when we can get out. We hear virtually nothing about international law and look set to repeat our mistakes. Violating the law has cost our nation and Iraq dearly. It has denied us the guidance of rules based on long experience and moral consensus. We have lost standing in the world, a literal fortune, and precious lives. Rather than internalizing the lesson of law violation in Iraq, we continue to defy the law in serious and self-destructive ways.

She concludes by repeating concerns that some seem poised to launch "yet another unlawful war," against Iran. (It's a concern she raised more than a year ago, as we posted.) O'Connell fears that policymakers have not learned from their mistakes:

The lesson of Iraq could not be plainer.

"We don't do stuff like that" *

It's that asterisk that's the problem.
To find out why, read the must-read New York Times op-ed by the Air Force colonel who used to be Chief Prosecutor for the military commissions at Guantánamo. That colonel, Morris Davis, explains that he resigned when superiors overruled his decision that confessions extracted by means of waterboarding would not be adduced at Gitmo trials. His successors won't rule out introduction of such evidence.
What's more, it's been disclosed that the Pentagon sent in a so-called "Clean Team," which gave detainees who'd suffered coercion during initial interrogations food and coffee in an effort to get new, untainted confessions. (Have they read Wong Sun?)
To paraphrase Col. Davis:
Why do stuff like that?

Justice Antonin Scalia on "so-called torture" and rights, if any, of Guantánamo detainees

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.