Rest in Peace, Antonin Scalia.
There’s not much I can add to what’s being said about Justice Scalia, whose death was announced today. I’m not even going to talk about the work that must be done regarding President Obama’s inevitable appointment of a successor. But I do see some misconceptions being carried regarding his words on torture.
The critics are bringing this piece from the Rachel Maddow show’s blog. It refers to an interview Scalia gave to RTS (Swiss National Radio) in which he pointed out that the Constitution’s Eighth Amendment outlaws torture, but only for purposes of punishment, not interrogation.
While that might seem odd at first, this should be easy to grasp. There’s a difference between punishment and coercion for another purpose, and men of the 18th century were careful to put the word “punishment” in there. Maddow’s blogger seemed to think he could argue with the text, but the word is in there for a good reason.
It wasn’t just the Eighth Amendment either. Critics of the Bush administration’s use of harsh interrogation (but not necessarily critics of real torture by others) occasionally like to point to the Lieber Code, which Abraham Lincoln had ordered to fight the Civil War. This includes a prohibition against torture. But what those critics tend to leave out is that it prohibits “torture to extort confessions.”
They put those words in for a reason. Hundreds of thousands would die in that war. They couldn’t rule out torture for interrogation. If they could gain an advantage by torturing a few men, they were going to think of the thousands who might be saved.
Later, there were torture statutes and torture treaties, but they allowed lesser forms of harsh interrogation.
This doesn’t mean harsh interrogation is legal today. But it was only made illegal last year in the National Defense Authorization Act of 2016, which forbids any part or agent of the government from using any method not in the Army interrogation manual.
Yes, I know that Trump and others say they’ll bring back waterboarding if necessary. The next Congress can remove the restrictions, should they need to. It can be made politically possible. Most who claim to oppose it now were fine with it before. They can be fine with it again.
Until then, we’ll have to keep doing what we’re doing now: Letting our Arab allies handle prisoners whenever possible. The critics are strangely fine with that.
For now, once again, Rest in Peace, Justice Antonin Scalia.