The devil's advocate

It is legal to torture a criminal suspect, Justice Antonin Scalia says, because by definition, torture can't be punishment if the victim has not been convicted.

"The Constitution refers to cruel and unusual punishment," Scalia said in an interview with the BBC. "It is referring to punishment for a 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," Scalia continued. "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 Eighth Amendment in a 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 extract information that is crucial to the society? I think it's not at all an easy question, to tell you the truth."

In the interview, Scalia called himself an "originalist" -- someone who believes that the Constitution must be interpreted in light of how Scalia thinks the document's writers intended it to mean, rather than how you or I think the document's writers intended it to mean.

The Eighth Amendment reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Scalia says the meaning of this is as plain as the nose on Sam Madison's face: You can't inflict a cruel and unusual punishment on someone who has been convicted of a crime. That's what the Founders plainly meant, he says. If you disagree, you're a judicial activist and a despicable believer in a "Living Constitution."

By Scalia's reasoning, the first clause of the Eighth Amendment -- "excessive bail shall not be required" -- plainly refers to people who are accused of a crime and have not been convicted. And by Scalia's reasoning, it is absolutely obvious that the next two clauses refer only to people who have been convicted of crimes. No, wait -- the second clause -- "nor excessive fines imposed" -- also clearly and plainly refers to civil cases.

Obviously, then, according to Scalia's way of thinking, the first clause applies only to criminal suspects who have been charged but not convicted, the second clause applies to people who have lost certain civil cases or have been convicted of crimes, and the third clause applies only to people who have been convicted of crimes. It's right there, plain as day, in the words as written by the Founders, he says. That's not an interpretation, it's the truth, according to Scalia. Anyone who disagrees is engaging in interpretation, which should not be allowed.

Now, does that mean torture is permitted to extract information from anyone who is suspected to have knowledge of a crime, such as the spouses and friends and children of criminal suspects? It seems clear that this would be the case, under Scalia's logic.

But maybe not. Before he made the above comments, Scalia said this in the BBC interview:

"The United States Constitution gives rights to Americans wherever they are and to foreigners who are in America. It doesn't give rights to everybody in the world. That was the principal issue in Guantanamo. Whether indeed Guantanamo Bay was within the United States and our courts had no jurisdiction there."

I'm confused. If it's legal for Americans to torture non-Americans who are not on U.S. soil -- if constitutional protections don't apply in such cases -- why does Scalia argue about the Eighth Amendment at all? He says our military base on Guantanamo Bay, which we're renting from Cuba, is not U.S. territory, and that foreigners in U.S. custody at Guantanamo Bay have no constitutional rights, so why does he argue that the Eighth Amendment doesn't prohibit torture of these people?

He's arguing simultaneously that:

• No constitutional protections apply to prisoners at Guantanamo Bay, and
• There is no Eighth Amendment prohibition of torture of the inmates at Guantanamo Bay because they have not been convicted.

That seems self-contradictory. Why make both arguments?

I can think of one reason: Scalia is willing to accept torture of Americans in American police stations and jails, as long as the people in custody have not been convicted.

I have a better idea: Accept that the Constitution bans anyone under American auspices from inflicting torture under any circumstances.

There is an easy way to deal with the ticking time bomb scenario: the executive pardon. If a cop breaks the law by torturing someone to get information that will stop bloodshed, he can explain his actions to a jury. And if the jury convicts him, he can seek a pardon. In the cliched hypothetical that Scalia describes, a governor or president would issue a pardon probably before the case even went to trial, Gerald Ford style.