Scalia on Scalia

Antonin Scalia weighs in on those pussified liberals who are a-tryin' to take away the Preznit's right to torture people:

"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?"

It is not dignified behavior for a Supreme Court Justice to speak so disingenuously.

The so-called "ticking bomb" scenario (popularized by 24, Jusice Scalia's favorite teevee show) is a pretty dumb way to frame the torture argument. On the one hand, most reasonable, sane people would agree that under a perfectly defined "ticking bomb" scenario torture may very well be morally and ethically justified. On the other, such situations only useful as strawmen to convince non-thinkers that torture is okay.

Such a scenario assumes these facts (you have to take them as given, like an LSAT question): (1) you have a suspect in custody, (2) you know that the suspect is complicit (has some high degree of guilt in connection with the matter at hand), (3) you know that the suspect has information that, if divulged to you, will allow you to avert a catastrophic event resulting in the deaths of many innocent people, (4) without the suspect's information, the catastrophic event will occur, and (5) you can (and can only) get the suspect to reveal this information to you by torturing the suspect.

If all of these assumptions are true, you would probably be violating most ethical codes if you did not torture the suspect, gain the information, and save the populace.

But if any of these assumptions are not true, then the scenario fails; the isolated question of "is torturing an evil terrorist ok if it will save a city from being destroyed?" is no longer isolated but rather joined by a whole host of other questions and considerations. Which in turn means that while the ticking bomb scenario may be a worthwhile subject for an ethicist to consider in the abstract, as a practical matter it is virtually meaningless (except, of course, as porn-level visceral teevee entertainment).

Because, obviously, this exact kind of situation does not actually occur in real life. Most terrorism scenarios vary from this perfect scenario in many ways. The most common way is probably that whoever is holding the suspect in custody has no way of knowing what the threat is, what the suspect knows, whether the suspect's information will be helpful, whether the information can be gained from another source in time to avert the threat, etc.

In fact, most of the U.S. government torture that has been revealed up to this point has involved getting information about terrorist acts that have already occurred. As far as I am aware, there's not one documented case where information divulged under torture actually revealed (or enlarged upon) a present threat. Which isn't surprising. Terrorists have caught onto the idea of limiting the circle of people who know about a planned operation. So there are only a few people who might possible be tortured into giving away the plan. And usually when you catch a terrorist it's because the plan has already been exposed in some way. Otherwise, you're just catching a guy who might possibly be a terrorist, and then torturing him on the off-chance he is in fact a terrorist and does in fact have knowledge of an imminent threat, an ongoing operation.

So almost all torture will be either (1) punitive (beating a confession out of a suspect in connection with something he's already done), or (2) a fishing expedition (torturing a suspect to find out what, if anything, he knows about something which might be important but which you weren't previously aware of (and therefore had little or no reason to suspect in the first place)).

UPDATE: For anyone concerned about the legal jeopardy someone would be in if they did, against all odds, encounter the type of "perfect" ticking bomb scenario mentioned above, and went ahead and tortured the terrorist, thereby saving Los Angeles from imminent doom, let me put it to you this way: laws are not infallible, and cannot cover every situation. Someone confronted with such a situation needs to know that they would be breaking the law. They need to be so sure that they are saving Los Angeles that they decide to accept whatever consequences might follow. And, of course, the consequences would be that our hero would not be prosecuted or punished. There is such a thing as prosecutorial discretion, and that would be a case where it could be put to good use. A decent analogy is someone who decides to speed recklessly to get a severely injured person to a hospital in time to save that person's life. They understand that they are breaking the law, and accept the consequences. But, after all is said and done, with the benefit of hindsight, they will not be prosecuted or punished by authorities under such circumstances.

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bonus points to anyone who got the title reference.
hint: