Last year the AP’s Mark Sherman wrote that Justice Scalia had used the fictional character of Jack Bauer on Fox’s show 24 to explain why there is more “gray area” surrounding torture than critics of the practice like to admit.
“Are you going to convict Jack Bauer? Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer? I don’t think so,” Scalia argued at an Ottawa legal conference in 2007. “So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”
Then in an interview with Radio Television Suisse from this past week, Justice Scalia continued to argue that the case AGAINST torture is not as cut and dry as opponents like to pretend.
“Listen, I think it’s very facile for people to say, ‘Oh, torture is terrible. You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person?
I don’t know what article of the Constitution that would contravene,” Scalia said.
It’s an interesting point and one that has not been much discussed. Both sides agree that torture is not ideal, but the question goes much deeper than that. I believe that the USA should be above (and against) torturing prisoners but should that preclude “enhanced interrogation” when an imminent threat exists?
Maybe the legal questions of interrogation should be considered before we simply decide that all “torture” should be redacted from our government’s arsenal of defense tactics.