Yep, our favorite conservative slimeball is at it again, this time in an interview with the BBC:

[Scalia] 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.

“…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?”

Where to begin? Scalia is interpreting the Eighth Amendment here to mean that “punishments” which are cruel and unusual are only unconstitutional when they are meted out as punishments for a crime committed–meaning that it’s perfectly okay to be cruel and unusual in all other aspects. Scalia’s explanation in full:

[The Eighth Amendment] is referring to punishing one indefinitely, would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses, or 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; 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 about smacking people about. Is it obvious, that what can’t be done for punishment can’t be done to exact information that is crucial to the society?

Again, so many concerns. The Eighth Amendment only refers to the length of incarceration? And Scalia sees even that as being obviated in certain contexts? Does any right truly exist in Scalia’s eyes? What he’s saying here is that it’s okay to be cruel, so long as it does not take on the very specific form of incarcerating someone indefinitely, and even that’s OK if the witness isn’t answering questions like you want them to–in other words, no restrictions at all.

And what about the Fourth Amendment? If we believe that someone is a criminal and they have information we want, surely the revealing of this information will incriminate them. I’m not saying that’s it’s not an attractive trade-off in immediate terms, but torturing someone to reveal self-incriminating information is also in violation of the Fourth Amendment–but Scalia doesn’t even bat an eye here, does not even refer to the Fourth Amendment. Like I said, in immediate terms one would think, “of course I’d violate one person’s rights to save the lives of others”–but in constitutional terms, it’s not so easy. What Scalia is doing is stringing together rationalizations and justifications that allow him to assume what he wants to assume, with the Constitution being cut up and rearranged to suit his whims.

The interviewer brings up a very cogent point: the idea of a nuclear explosion being imminent and we happen to have the mastermind in custody and all we need to do is torture him, this is as unlikely a situation as to be imaginable. Sure, it’s fine for Jack Bauer (Scalia’s a fan, as you can guess–note his reference to a “bomb that is about to blow up Los Angeles”), but in real life, it ain’t gonna happen. The worry: that what might be reasonable in a fantasy situation could lead to an approval of torture that is used commonly in far more questionable circumstances. Scalia’s response: it’s perfectly reasonable to ask the fantasy-scenario question to open the door, and then “once you acknowledge that [torture is OK in that scenario], we’re into a different game. How close does the threat have to be? And how severe can the infliction of pain be?” So, according to Scalia, you can use the unlikeliest of scenarios to open a door which can then be used to do constitutionally questionable actions in a variety of contexts, so long as you suss them out in a way that sounds reasonable to you personally. The problem is that any action could be justified by dreaming up the most bizarre and extreme scenario possible; using Scalia’s metric, just about anything could then be rationalized as within constitutional grounds.

You can also see Scalia making excuses for torture even beyond his legal maneuverings; he speaks of “so-called” torture, characterizing it more than once as “smacking someone in the face,” as if smacking someone in the face in any way characterizes torture; this demonstrates a willingness to trivialize the infliction of horrific pain in order to further justify it. And if you look closely, he even violates his own principles: he’s willing to judge specifically how cruel you can be, after having said that the Constitution doesn’t apply. Isn’t that “legislating form the bench”?

In short, Scalia is doing what strict constructionists do best: using the letter of the law to violate the spirit of the law, and then weaseling with definitions to allow for a reconstruction of law to read into it a conservative dream of what should and should not be allowed. If you read the Bill of Rights, it is impossible to come away with the impression that the founders felt it was hunky-dory to torture criminal suspects for information. Everything there is carefully constructed to protect the rights of the innocent, and even in many cases the rights of the guilty; to assure that criminal suspects are not mistreated, that all care is taken to assure justice is being carried out fairly, and that the government is not doing anything questionable or harmful.

To parse the Bill of Rights to such extremes as to allow for torture is a clear violation of the spirit of the Bill of Rights. Of course, as a strict constructionist, Scalia spits on the spirit of the Constitution. Understand that, and you can understand the context of Scalia’s statements.