What is truth?
Scalia on torture on the BBC (HT TPM):
“You can’t come in smugly and with great self satisfaction and say ‘Oh it’s torture, and therefore it’s no good’,” he said in a rare interview. . . . In the interview with the Law in Action programme on BBC Radio 4, he said it was “extraordinary” to assume that the ban on “cruel and unusual punishment” – the US Constitution’s Eighth Amendment – also applied to “so-called” torture. “To begin with the constitution… is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime.”
Justice Scalia argued that courts could take stronger measures when a witness refused to answer questions. “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 determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?” he asked.
“It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game. “How close does the threat have to be? And how severe can the infliction of pain be?”
“It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game. “How close does the threat have to be? And how severe can the infliction of pain be?”
I think the technical name for this is “slippery slope”.
But am I correct in reading that Scalia would support the torture of defendants up to the point where they are convicted?
Scalia is — o, yes — a “wingnut.”
But why should one be surprised — or outraged — by his comments?
I’ve given up on Scalia. In fact, a long time ago.
Scalia alone is ample justification for electing a Democrat to the White House for the next 8 to 16 years. The Supreme Court needs cleansing badly. It will take a long time to get rid of the disasterous appointments that have resulted in the current composition, but one has to start somewhere.
If Barack Obama is elected POTUS, I strong urge him to appoint Hillary Clinton to the SC at his first opportunity. And to appoint John Edwards as Attorney General and Bill Clinton as Secretary of State.
We certainly cannot blame Scalia’s education on ALL Jesuits, but why did his education so horribly fail when he went through Xavier High School in Manhattan, that he would take, consistently, a position of “situation ethics” when it comes to such major issues as the death penalty and torture? What a tragic failure of Catholic social teaching on a person of such promise! I hope he takes seriously the challenge of Ash Wednesday: Reform your life and follow the Gospel!
Perhaps a failure in Jesuit education, but just as likely a failure on the part of the student to listen. We are all free to say yes or no to the Gospel message. One thing he apparently didn’t learn was the invalidity of the “slippery slope” argument. Another is the value of distinctions: is slapping someone in the face the same as waterboarding? And a final missed lesson was that of the dignity of the human person, a teaching beloved by Catholics of conservative and liberal bent.
For me the larger question is: What goes through his mind on Good Friday when he hears the story of Jesus being tortured?
Actually, Justice Scalia did not study American Constitutional law at a Jesuit school. His law degree is from Harvard (it was his undergraduate work which was done at Georgetown). I am not sure where he studied Canon Law. I think I may have misread his comments however, as it seems from the comments above the Justice was making some sort of commentary on Canon Law or making some sort of moral judgement, but in the story on the BBC website the Justice’s comments were limited to legal interpretations of the U.S. Constitution. Could someone kindly post the link to the full text of his interview where he makes the comments on Cannon Law and morality referred to above?
MAT,
You can listen to the full interview by downloading and audio version of the program using this link:
http://downloads.bbc.co.uk/podcasts/radio4/law/law_20080212-1704.mp3
You said “the Justice’s comments were limited to legal interpretations of the U.S. Constitution.” I don’t know what your position is on the responsibilities of a Catholic justice on the Supreme Court, but the conservative Catholic argument I have gleaned from others here on dotCommonweal is that it is their job to “play by the rules” of constitutional interpretation. That is, if their interpretation of the constitution permits capital punishment or abortion, or some other practice that their Church or their own conscience condemns, it is their duty as members of the court to give their most intellectually honest interpretation of the constitution without regard to the consequences. Their only job is to interpret the constitution, not to impose their personal views or the views of the Catholic Church on the US Government or the American people.
I might make that argument myself, but it doesn’t appear to me to be consistent with what the Catholic Church expects of legislators, who have their own set of rules to play by–representing the wishes of their constituents, compromising when fully achieving a goal is not possible, following the rulings of the court (including the ruling that abortion is a constitutional right).
I sometimes wonder if a true Catholic or a true Christian can really hold an office like Supreme Court Justice or President without being totally compromised.
How are we to interpret Luke 6:24-26
Most of the Supreme Court Justices (and especially John Roberts) are rich, well traveled, and powerful.
http://money.cnn.com/2007/06/08/news/newsmakers/scotus_finances/
Have they already received their consolation?
David
“Their only job is to interpret the constitution,not to impose their views or the views of the Catholic Church on the U.S. government or the American People.”
Is it only conservatives who make this argument? Isn’t this the exact argument put forth by various Catholic legislators, mostly liberal, in justifying their support for abortion rights,federal funding for the use of fetal stem cells, etc.?
Perhaps your question should be broadened to ask whether a true christian can participate in any form of lawmaking?
Charles,
I agree that it is a valid question (n my mind) how any Catholic government official (or lawyer or judge) can “play by the rules”–that is, make, enforce, or uphold laws they personally believe to be immoral and against the teachings of the Church. I brought up what I take to be the conservative Catholic defense of the five Catholics on the Supreme Court because I thought it was inconsistent with what is expected of others in government or positions of power. I think we believed the whole matter was settled when Kennedy was elected, but it is far from settled today.
I brought up Luke 6:24-26 because I am currently reading Peter J. Gomes’ The Scandalous Gospel of Jesus, and he raises some interesting questions about whether we are paying attention to what Jesus taught: “It is no accident that although Jesus came preaching a disturbing and redistributive gospel, we do not preach what Jesus preached. Instead, we preach Jesus.”
David-
I think we need to distinguish legislators and executives from judges. What is expected of one is not really inconsistent with expectations of the other when looked at in the totality of governance. Nevertheless, aren’t all Catholics, even those in the private sector, “compromised” in some way when we engage with the greater world in this pluralistic society?
Catholic teaching basically condemns war and yet lays out certain criteria under which war may be justly waged. If I can be justified in killing a human being in defense of myself and my community, why can’t I be justified in torturing him for the same reason?–assuming that rigorous criteria are met in both cases.
It seems to me there is a difference between the use of torture as an ordinary practice and the use of it in an extraordinary circumstance, i.e., in a real emergency when it may be expected to have a real chance of saving lives.
The whole record of the Bush administration on this general issue is just horrendous, I know (Guantanamo, extraordinary renditions, Ab Gharaib) but Scalia may have a point on this one, and a point that is not refuted just by saying what a nasty man he is!
David,
As I read the Catechism, the Church makes no exceptions for torture.
As for the legality of torture (and this argument is not original for me), wouldn’t it be preferable to legally ban torture, and people in truly extraordinary circumstances would just have to take whatever measures they deemed necessary? If there is a nuclear bomb set to go off in a big city, and the authorities have in their hands the person who knows where it is and how to disarm it, is a jury really going to convict them if they use “enhanced interrogation techniques” to get the life-saving information?
It would be interesting to hear what Cathleen Kaveny has to say on this, but is it really the purpose of the law to list all the possible exceptions for extraordinary circumstances?
MAT,
I suppose almost everyone living a “secular” life in countries like the United States is compromised in more ways than one. But most of us are not rich and powerful and in control of the fate of millions and millions of lives.
I doubt that anyone at all would disagree with the atomic bomb argument. But the argument in this context is based on false premises. It depends on one knowing that there is in fact and atomic bomb and that the person one is torturing does in fact know where it is.
The people we torture we claim to torture to find out if there might be an atomic bomb. The slippery slope comes in when to do this we torture people to find out if they know people who might know about an atomic bomb. Throw into this mix people who think that there’s a vast global Muslim conspiracy against the West and you end up with Guantanamo and we start torturing people who might know about people who might know about people, etc.
In the modern world, everybody who tortures claims to be doing so for A Very Good Reason. A Very Good Reason is usually some argument about self defense. With self defense at home, I can kill a man who says he is going to kill me and who is pointing a gun at me. I can’t kill a man in self defense who says he is going to get a gun and kill me or would like to get a gun and kill me or who says he knows someone who has a gun and wants to kill me or who is a relative of someone who I think would like to kill me. But some people think we should torture people with these same sorts of degrees of separation.
My friends think that my own view of torture is cynical. But I think it should be strictly forbidden and heavily punished. Only then would we torture when it was absolutely necessary; when the facts of the situation are so compelling that they entirely mitigate the hazards of the law. This seems to be the way that killing in self defense works now (except maybe in Texas).
Despite differences in function, the judiciary, as well as the other brabches, are subject to all kinds of pressures,
Now that Fr. Martin is finished his off Broadway Stint and writing about it, I think it would be great if he would be adviser to the Supreme Court Justices, especialy the Catholic ones, on matters theological.
“My friends think that my own view of torture is cynical. But I think it should be strictly forbidden and heavily punished. Only then would we torture when it was absolutely necessary; when the facts of the situation are so compelling that they entirely mitigate the hazards of the law.”
This point, made by Unagidon (is that an Irish name?), and made previously by David Nickol, may be the last word. Admit that torture could be theoretically defensible (in extraordinary circumstances) yet keep it out of law and policy becuase this particular slippery slope is so morally dangerous. After all, though the just war analogy is relevant, the notion of torture (justified or not) seems even more loathsome than fighting in a war.