Federal Supreme Court Justice Antonin Scalia, when interviewed by Radio Television Suisse on December 10, reportedly invoked the ticking time bomb scenario to justify the use of torture, and noted that the Constitution does not specifically prohibit the government from torturing.
“I don’t know what article of the Constitution that would contravene,” Scalia said when speaking about torture. This is highly troubling, as the Constitution does bar cruel and unusual punishments. The Senate Intelligence Committee’s report, released on December 9, on the CIA’s detention and interrogation program acquainted us with the terms “rectal hydration” and medically unnecessary “rectal feeding,” along with torture by insects, exposure to cold, and being made to stand for days on end. All of these tortures were most cruel and certainly unusual, so they would seemingly easily meet the criteria laid out in the Constitution barring such punishments.
But let us assume that Scalia does not believe that cruel and unnecessary applies here, because he believes that torturing someone in an interrogation to find a ticking time bomb is not “punishment” but rather the best means at that moment for extracting information. Scalia may view “punishment” as something which can only happen after one is convicted of a crime. In this way, Scalia would find the above punishments cruel and unusual for prisoners, but not cruel and unusual in an interrogation setting that meets a certain danger threshold.
Obviously, there would be many ways to attack Scalia’s theory here. One could ask Scalia why it is not permissible to torture a drug cartel member with possible information on future planned murders, but is permissible to torture a Pakistani goat herder who the government believes may know the whereabouts of a wanted terrorist-criminal with a bomb. We could also ask why it is not permissible to torture a serial killer who has admitted to scores of murders, but permissible to torture someone like the Boston Bombers (who killed 3 people while injuring many others). Where exactly is the line? How many lives at risk can determine whether something is truly terrorism? After all, the Sandy Hook shootings were an act of “terror” for the victims there — could we have tortured the shooter (had he lived) to determine if other plots or shooters were active? And to Scalia, why not — what makes Sandy Hook not terrorism, but a backpack bomb terrorism?
This all brings us to Scalia’s favorite “Ticking Time Bomb” plot, which he believes gives the government carte blanche to torture. Scalia may fantasize about Jack Bauer, but the true fantasy in the scenario is the ticking time bomb scenario itself. Has a terrorist ever successfully threatened an American city with a nuclear device, dirty bomb, or chemical agent? No. How can we then allow a torture program backed with the rationale that it might protect us from a ticking time bomb, when no such time bomb has ever been actively set since 9/11?
Scalia then asks, “Is any jury going to convict Jack Bauer?” And here, Scalia is completely missing the point. The point isn’t whether or not a jury will convict Jack Bauer; that isn’t Scalia’s business! The point is that in keeping laws against torture on the books, a jury would be able to acquit Jack Bauer if his actions truly did save an American city from atomic destruction. Scalia needs to trust that the juries he thinks so highly of will actually do what he wishes them to do, which is to nullify the law in certain radical instances where tough-cop tactics saved the day. Scalia is dead wrong in saying that because there might be one good tough-cop someday, all bad tough-cops ought to be given the benefit of the doubt.
I think there is something telling when torture apologists cite Jack Bauer and doomsday bomb scenarios to justify their torture regimes. It means that they have ceded all the ground of human decency and difficulty, and fight to hold only the most extreme positions left to them. Their defense of the extreme exposes them as the real ones not living in reality. This is why they fight tooth and nail to keep their programs secret and unquestioned. We must, therefore, be ever vigilant and unafraid to ask the difficult questions to poke away at the shifting sands on which the torture apologists build their foundation. In doing so, let us trust that human dignity will lead society to once again find that cruel and unusual means cruel and unusual; and that truth and courage will aid society in defusing the ticking time bombs of lies and fear.
Photo by David Little