US judge Scalia on 'so-called torture'
By RAPHAEL G. SATTER, AP, Feb. 12, 2008
LONDON - One of the United States' top judges said in an interview broadcast in Britain on Tuesday that interrogators can inflict pain to obtain critical information about an imminent terrorist threat.
Supreme Court Justice Antonin Scalia said that aggressive interrogation could be appropriate to learn where a bomb was hidden shortly before it was set to explode or to discover the plans or whereabouts of a terrorist group.
"It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that," Scalia told British Broadcasting Radio Corp.
Scalia said that determining when physical coercion could come into play was a difficult question. "How close does the threat have to be? And how severe can the infliction of pain be? I don't think these are easy questions at all, in either direction," he told the BBC's "Law in Action" program.
U.S. interrogation techniques, including waterboarding, have been the subject of growing debate in the United States, and could play a role in the military trials of six men charged in connection with the Sept. 11, attacks. The issue also could find its way to the Supreme Court.
Scalia, visiting London during a break in the court's calendar, referred generally to those methods as "so-called torture," and said practices prohibited by the Constitution in the context of the criminal justice system — including indefinite detention — are readily allowed in other situations, such as when a witness refuses to answer a question in court.
"I suppose it's the same thing about so-called torture," he said in the interview. "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?
"Is it obvious, that what can't be done for punishment can't be done to exact information that is crucial to the society? I think it's not at all an easy question, to tell you the truth."
Scalia, a judicial icon among American conservatives, an acerbic wit and often abrasive personality, said Europeans had no business "smugly" decrying those techniques as torture. Earlier in the interview he also faced down criticism of the U.S. death penalty.
"Europeans get really quite self-righteous, you know, (saying) 'no civilized society uses it.' They used it themselves — 30 years ago," he said, adding that a majority of Europeans probably supported capital punishment anyway.
Scalia said that neither he nor any of the eight other Supreme Court justices who collectively make up the United States' highest court should be seen as setting the moral tone for the international community.
"I don't look to their law, why do they look to mine?" he said.
"We don't pretend to be Western mullahs who decide what is right and wrong for the whole world," he said in the broadcast.
Scalia also took issue with his "tough guy" reputation, saying he would have had trouble navigating the Supreme Court nomination process as it exists today with his feelings intact.
"I'm very tender," he said.
On the Net:
Scalia's Interview with the BBC: http://downloads.bbc.co.uk/podcasts/radio4/law/law_20080212-1704.mp3