Scalia Enters Debate on Constitution and Torture

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Supreme Court Justice Antonin Scalia entered the torture debate today. He suggested that actions that would clearly be unconstitutional, if they were applied as punishment, might be permissible as interrogation techniques.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: In the last week, CIA Director Michael Hayden has acknowledged that waterboarding, an interrogation technique that the U.S. prosecuted as a war crime in World War II was used by the U.S. on three men captured after the 9/11 attacks.

Hayden and Attorney General Michael Mukasey both testified that the technique is not now being used, but both said that in certain circumstances, it might be authorized again.

Mukasey testified that the test for whether a coercive technique is justified is whether information being sought is, in essence, worth it. Congressional critics of the administration's position, including all the major candidates for president, have condemned waterboarding as torture that is outlawed by international treaties and U.S. law.

Today, Supreme Court Justice Antonin Scalia weighed in on the subject in an interview broadcast on the BBC. Scalia's focus was not on treaties or laws but on the U.S. Constitution and its ban on cruel and unusual punishment.

The Constitution span, he said, applies only to punishment, not necessarily techniques used in interrogation.

For example, incarcerating someone indefinitely for a crime might well be cruel and unusual punishment, and yet a judge can send a recalcitrant witness to jail indefinitely to force him to testify.

Justice ANTONIN SCALIA (U.S. Supreme Court): 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 Eight Amendment? In a prison context, you can go around smacking people about.

TOTENBERG: Scalia suggested that in a variety of circumstances, treatment that would be illegal for someone convicted of a crime would be permissible as an interrogation technique starting with a ticking time bomb scenario and moving on to other situations.

Justice SCALIA: It would be absurd to say that you couldn't do that. And once you acknowledge that, we're into a different game. How close does the treat 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 in 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.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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