Scalia said that it was "extraordinary" to assume that the U.S. Constitution's ban on "cruel and unusual punishment" 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," he said in an interview with the Law in Action program on BBC Radio 4.
Scalia said stronger measures could be taken 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" Scalia said. "How close does the threat have to be? And how severe can the infliction of pain be?"
Then there's this:
Scalia, who has long supported capital punishment, also ridiculed European criticism of the death penalty in the United States.
"If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today,". he said
Huh? According to this map, pretty much all of Europe has abolished the death penalty for ordinary crimes. Does Scalia really think that countries like Britain, France, Italy, Poland, Germany, etc. aren't representative democracies? Plus, the one exception on the death penalty is Belarus, a country described by Secretary of State Rice as "an outpost of tyranny." I guess Scalia's definition of representative democracies that really work is an authoritarian dictatorship.
2 comments:
Nonetheless Scalia's point that the death penalty has been abolished in European countries where public preferences (as measured by public opinion polls) would have preferred it to remain in place is valid. For example, the new members of the EU essentially were given the choice of abolishing the death penalty (among the other laundry list requirements for membership) or not being allowed to join. They sensibly chose the former, but let's not pretend that's some triumph of representative democracy--it's basically moral logrolling (existing EU members get to impose their values on new members).
And European democracies do tend to be more elite-dominated in terms of their policy outputs than the U.S. (hence the "really worked" part of the statement).
The Democracy Deficit in Europe is so well known as to be cliche. it was this to which Scalia is referring.
Also, the idea that the cruel and unusual punishment applies to penalties for crimes and not conditions while held is an old one and probably correct, if abandoned like so much else by the Supreme Court.
Why interpreting the document as its author's did is "wacky" still eludes me.
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