Scalia: Face smacking could be justified

Question for Justice Scalia-

If "smacking" somone to find out where a bomb is hidden in LA is OK, is it OK for another nation to "smack" an american pilot during a war to find out when the next bombing of one of their cities will be carried out?

John McCain would really like to know.

Johnny D, Brucie, Jerry White:

Please answer Luke's question - you would be the first guys screaming if that happened to an American POW.

Talk about "The Ugly American"!! No wonder the rest of the world hates us.

Another reason to elect a Democrat to the White House - no more mistakes like Scalia.

He's a strict constructionist right? Where does it say you can do this in the Constitution? Sounds like he's creating law out of thin air. More precisely he's trampling the Constitution and the Geneva Conventions, etc, etc. Activist judge!, I spy and activist judge!

The man is a disgrace.

"You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and therefore it's no good,"

Yes you can you moron. Impeach him. Impeach him now.

After WWII, we executed Japanese war criminals for "waterboarding" US soldiers. Is execution appropriate in all cases? Hmmmm.

"Scalia also dismissed European criticism of the American death penalty, saying that if European countries truly had representive democracies, they would have capital punishment."

Unlike China, Iran, and the rest that have capital punishment.

What a mistake of historic proportions allowing this cretin on Supreme Court of the US.

We, of course don't live in a democracy, but a republic, as this muffin top must know. Now you may argue that it's still 'democracy', but I would argue it's the weakest form of democracy.

In no other western democracy is one person's vote so diluted and weak as it is here in the USA.

Before John D., Jerry White, Bruce, etc. go crazy here about the Tribune's opinion on this issue, I would direct them to the Chicago Tribune's editorial page for Sunday, Feb. 10, "Terror and Torture".

The end of the editorial says it all for me.

""The president may very well have constitutional authority to take extraordinary actions to protect the integrity and welfare of the U.S. -- end of story," said Northwestern University law professor Ron Allen. "Most likely, that power, like the power to defend against imminent attack, simply can't be curtailed by any other branch of government."

That's not a neat and clean answer, and it's not an answer that suits anyone's purposes in the intense political debate over waterboarding. But it's the right answer.

Congress has declared that the U.S. will not use torture techniques. Congress may go one step further, with legislation that would require all 16 U.S. intelligence agencies to abide by the Army Field Manual's prohibition against waterboarding. That's sound policy and the right message to send to the rest of the world.

But the Constitution is not a suicide pact, as Supreme Court Justice Arthur Goldberg wrote nearly half a century ago. It is possible that a president under the most extreme circumstances would authorize extraordinary steps to protect the nation.

And if what was at stake was the prevention of a terrorist attack on the scale of Sept. 11, the nation would more than understand."

And some of us history buffs will always look back and wonder how Germany allowed the Nazis to commit the atrocities they committed. My guess is that this type of attitude led to it happening.

Scalia is right on flag-burning, but wrong on this.
I'm appalled at how often we relive a movie scenario--if you smack a bad guy in the face, he won't hold off to countdown the timer--no, he'll cave with just enough time to defuse the bomb at 0:00:01. And you can repeatedly electroshock the good guy for months, and he'll hold firm until the bridge blows up as planned.

As others have pointed out: if it would be unacceptable treatment of American pows, it's unacceptable treatment of any prisoners we hold.

I got smacked in the face for talking back as a child. Are we suggesting that an obvious terrorist with knowledge is above basic corporal punishment. There has to be a balance when it comes to interogation techniques. If they know they won't be hurt or intimiated, what incentive is there to talk. They have proven themselves to not abide by such laws as the Geneva convention (Nick Berg, hanging burnt Marines on a bridge, etc.) therefore Geneva will not be granted.
Toughen up a bit and if you can't stand the heat, find a new home.

No right wingers are going to answer Luke's question? I didn't think those cowards would man up on this one.

Sounds like he adopts the "do as I say, not as I do" policy.

"SUPREME COURT SPEAKS"

THE STAKES ARE HIGH IN THE GOP. PROSPERITY AND PEACE ARE IN THE BALANCE.

SO WE WILL WATERBOARD, TORTURE, RENDER IN FOREIGN COUNTRIES WITHOUT THEIR KNOWLEDGE, EAVESDROP, WIRETAP AND DATA MINE ANYONE AND EVERYONE.

YES, ANTHING THAT TAKES AWAY THE DRIVE TO BECOME; IS NOW AMERICA AND WE ARE NOT GOING TO TOLERATE ANYTHING LESS THAN CORRPUTION AT THE HIGHEST LEVELS OF OUR GOVERNMENT AND OUR COURTS.

UNTIL WE OVERTURN ROE V WADE AND GET THAT DOG GONE CONSTITUTION OF OUR TO CHANGE THAT IT'S ONE MAN AND ONE WOMAN UNLESS YOU ARE A REPUBLICAN GOP SENATOR.

SO YES, TORTURE IS NOW THE AMERICAN WAY, AND UNTIL UM UM UM UM UM UM UM UM MUKASEY, AND THE GOP IS OUT OF OFFICE, THIS IS HOW IT IS GOING TO BE.

Steve S.:

It has been shown that if you torture someone long enough, they will tell you anything you want to hear from them - mostly false.

Again, what would happen if this was done to an American POW?? Would you tell them to "Toughen up a bit and if you can't stand the heat, find a new home"?

As for the things you mentioned, does that mean we should be doing the same?? Does that not make us terrorists also?

Steve: "I got smacked in the face for talking back as a child. Are we suggesting that an obvious terrorist with knowledge is above basic corporal punishment. "

What methods are we suggesting would be acceptable against a German car salesman who knows nothing whatsoever about any terrorist plot, but does have a name similar to that of an al qaeda operative? Because no matter how many times you hit him, I don't think he's going to tell you where the ticking bomb is.

Can we all just stop and think through this scenario we're asked to swallow? A dedicated terrorist, 100% guilty (pity it's only in movies he's invariably so, no mix-ups), has a bomb counting down. It will go off in 2 hours. But--someone smacks him in the face! Twice! And immediately he caves and spills everything. Do you really think this would happen--he wouldn't hold out for 2 hours? I want to get one of the WWII interrogators working on him, convincing him it's done, he's out, and might as well provide some info.

More often we seem to be after confession, not ticking bombs. I'm sure I'd confess to plenty under torture; pity that that intelligence would be false and thus useless or dangerously misleading.

It doesn't make us terrorists because we don't do it to innocent people. These are hardened warriors dedicating their souls to Allah and will cease at nothing to terrorize our people. I don't advocate torture under anyother circumstance other than imminent threat... and I'll let the experts decide when that should arise.
Have you all grown numb to what we have been through and tragedy we have since avoided thru intelligence gathering?

>>>>>Steve S.:

It has been shown that if you torture someone long enough, they will tell you anything you want to hear from them - mostly false.

Again, what would happen if this was done to an American POW?? Would you tell them to "Toughen up a bit and if you can't stand the heat, find a new home"?

As for the things you mentioned, does that mean we should be doing the same?? Does that not make us terrorists also?

Steve S, We don't torture innocent people? Did you sleep through that whole Abu Ghraib episode?

And your assertion that we only torture people when there is an "imminent threat"? We had no idea if there was any imminent threat when we tortured these three terrorists. We also have no idea if any useful information was gathered by torturing them. The story issued by the government officials who authorized the torture is that they got valuable intelligence. They also told us there were WMDs in Iraq, so pardon me if I ask for evidence to back up their statements. Maybe a video tape of the torture session, for example. Oh, that right. The government destroyed the evidence. So why is it that you believe a single word they say?

It doesn't make us terrorists because we don't do it to innocent people.

>>>>>Steve S.:

HAHAHAHAHAHAHAHA.

Tell me another one.

Please stop the knee-jerk reactions to Justice Scalia's interview - I listened to the entire thing, and what he was saying was that this isn't some black and white issue. What is torture? Its right up there with "Hope" and "Change" in terms of words politicians are using these days without any specifics.

Many of those that chastise our country on this issue don't seem to have a clear answer where the line is - is waterboarding torture? what about interrupting their sleep patterns with loud music? How about giving them their dinner 2 hours late?

Second, when do you use it - if the ticking bomb scenario is okay, then what about the bomb being built but not yet in place scenario?

What Scalia was saying was that the Constitutional right barring "cruel and unusual punishment" does not ban using coercive measure to compel a person to speak. Things we would NEVER allow as punishment for a crime we do allow when we want to compel behavior. For example, you can't punish someone with an indefinite prison term, but to compel testimony, the court can lock someone up and throw away the key until they speak.

Scalia's comments were that there's no easy path here, and I would encourage many here to substitute thought for reflex on what is a real bear of an issue.

Abu Graib was a disgrace performed by rogue military members. I don't consider that representative of traditional data gathering, but more a few sickos getting their jollys. now lets move on and talk about real issues.

I don't consider that representative of traditional data gathering, but more a few sickos getting their jollys. now lets move on and talk about real issues.

Posted by: Steve S | February 13, 2008 4:30 PM

That's funny, then how do you explain similar "enhanced interrogation" techniques documented in Afghanistan and Guantanimo? Are you saying that's just a coincidence? Looks like they were methods passed down from the top brass and tried at all sites, not "rogue" officers, whatever that means.

Our own military in Afg. stated in a report that 90% of all the 'folks' rounded up and imprisoned just happened to be at the wrong place at the wrong time and were completely innocent of any wrongdoing whatsoever.

Our own military in Afg. stated in a report that 90% of all the 'folks' rounded up and imprisoned just happened to be at the wrong place at the wrong time and were completely innocent of any wrongdoing whatsoever.

"It doesn't make us terrorists because we don't do it to innocent people.

>>>>>Steve S.:"

Our own military in Afg. stated in a report that 90% of all the 'folks' rounded up and imprisoned just happened to be at the wrong place at the wrong time and were completely innocent of any wrongdoing whatsoever.

A. Scalia;

The 'Mr. Hanky' of the Supreme Court, but even a little less welcome.

Scalia is a disgrace and a coward (another VietNam draft dodger). I wonder what he (or it) would think if one of his close family members received a waterboard treatment.
Remember: Sept. 11th happened on George Bush's watch.

"Abu Graib was a disgrace performed by rogue military members. I don't consider that representative of traditional data gathering, but more a few sickos getting their jollys. now lets move on and talk about real issues."

Performed when W was "Commander in Chief" and NOT ONE senior official has even been reprimanded. A couple of scapegoats, that's all.

There is NO accountability in this administration. NONE!

Wouldn't ya love to see A.S. b!&#h slapped real good?..

Grant:

Thank you. You are absolutely correct. For those who bothered to listen to the interview or read it (which I just finished), one would have gathered the full context of Scalia’s statements – as you have reported - which is noticeably absent from the current article, above.

The only comment I would add to yours is that, Scalia never said that “torture” or “mistreatment” are valid techniques for routine interrogations. He was asked about the use of torture and mistreatment in the “ticking bomb” scenario (as per Alan Dershowitz). That is, he was asked what could be done in the highly unlikely case of a known, imminent nuclear attack against Washington D.C., where authorities know they have a person in custody who has the information to avert the attack, but that person is not talking. One would have to assume the individual was a terrorist or sympathizer, because otherwise he or she would not intentionally withhold such information.

It was in this situation, and only this situation that, Scalia said “it would be absurd” to lay down a per se rule that authorities could not inflict pain to extract the necessary information to avert the attack. On this point, he is absolutely right.

Notwithstanding the fact that “torture” and “mistreatment” may violate various criminal laws and international treaties, the “doctrine of necessity” would excuse many variances from those laws under such extreme circumstances. The doctrine of necessity provides that a criminal act will be excused when it is: (1) committed to avert a greater evil; (2) the greater evil is known or reasonably believed to be imminent; (3) the greater evil cannot be averted by means of any lawful course of action or any less unlawful course of action; and, (4) the criminal act sought to be excused does not involve the killing of innocent third parties.

Applying that doctrine is a no-brainer when faced with the situation (as was Scalia) of using non-lethal force to extract information from a terrorist to avert a nuclear attack that would otherwise kill millions of people and take out the federal government in one shot. I would defy any of you self-righteous pseudo-liberals to explain how saving millions of lives wouldn’t justify such measures under the doctrine of necessity in these circumstances. As dogjudge observed earlier, quoting Justice Goldberg, the Constitution is not a suicide pact. Neither, for that matter, is our body of laws. And nobody forfeits survival by signing a treaty.

The use of thought instead of reflex, as Grant seeks to encourage here, doesn’t seem to come very easy. I have witnessed a number of instances where the usual suspects in “the Swamp” have elected to condemn Justices Scalia or Thomas (or another “conservative” Justice), without understanding what they were talking about. Many here simply choose, to simply assume the worst because the speaker is a judicial conservative.

Second, when do you use it - if the ticking bomb scenario is okay, then what about the bomb being built but not yet in place scenario?

Posted by: Grant | February 13, 2008 4:23 PM

The problem with this "scenario" is it has been proven that the terrorist is likely to say one thng, just to stop the torture, when there is no truth to it. There is no evidence to suggest that torture has effectively saved any lives.

Rounding up innocents and interrogating documented terrorist leaders are not the same thing. I want our defenders to find out what Al Qaida knows and how that individual knows it.
Quit being a paranoid traitor.
I appreciate the comment about Scalia's full speech. As much as everyone would love to take his comment out of context and make him to be a fool, the full context proves otherwise.
Isn't the whole point of "openmindeness" to never make a decision or be open to others? What ever happened to tolerating different opinions.... anyone??? anyone???

"For example, you can't punish someone with an indefinite prison term, but to compel testimony, the court can lock someone up and throw away the key until they speak."

Umm, really? I think I remember something in the Bill of Rights about Due Process, what was that again... oh yeah:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."

I'd like to hear resident lawyer John W's take on locking someone up and throwing away the key in the absence of any evidence that a crime has been committed.

Jones:

If you recall, one of the reporters called to the grand jury in the investigation of the Valarie Plame matter refused to disclose the identity of her source, claiming a First Amendment privilege against disclosure. The Assistant U.S. Attorney in the case sought an order compelling her answers before the grand jury. The judge who heard the application overruled her First Amendment objection and ordered her to answer. She still refused to answer. As a result, the AUSA went back and got an order adjudging her to be in civil contempt. The judge granted that order too. As a result of that order, the reporter was jailed without any definite term. Under federal law, she could have stayed in jail for many months under that civil contempt citation; at least until the grand jury’s term expired.

The reason this type of imprisonment doesn’t violate the Fifth Amendment, which you cited, is that it is not a criminal proceeding. It is, instead, a remedy the courts have to aid their own process to compel non-privileged testimony. What distinguishes it from a criminal proceeding is that a witness thrown in jail for civil contempt has a “get out of jail free” card. The witness gets to go free – and purge himself or herself from contempt - the moment he/she agrees to abide by the court’s order and testify. If, on the other hand, a witness’ change of heart could not set him or her free, then it would be a criminal contempt, and all the procedural safeguards of a criminal trial would apply, including all the guarantees of the Fifth and Sixth Amendment.

I refer you to the case of Shillitani v. United States, 384 U.S. 364 (1966), and particularly pages 368-372, for a more complete discussion of the difference. You can find it online at: http://supreme.justia.com/us/384/364/case.html

"The problem with this "scenario" is it has been proven that the terrorist is likely to say one thng, just to stop the torture, when there is no truth to it. There is no evidence to suggest that torture has effectively saved any lives.

Posted by: syj | February 14, 2008 7:33 AM

syj:

The terrorist will not have the luxury of lying his or her way out of this situation. In the "ticking time bomb" scenario, a terrorist will likely be held until his information is verified or disproven. If disproven, and given enough time remaining, the terrorist will likely face the same treatment until the correct information is given. In any event, the stakes are too high not to try.

"And some of us history buffs will always look back and wonder how Germany allowed the Nazis to commit the atrocities they committed. My guess is that this type of attitude led to it happening."

Posted by: dogjudge | February 13, 2008 11:03 AM

Actually, dogjudge, I suspect the vast majority of the German people were kept in the dark regarding the atrocities the Nazis committed in their names. A large percentage of the concentration camps were located in Poland. Even those located in Germany were in remote locations. It’s hard to object to something if you don’t know it exists.

The German people were also hoodwinked into a war that was started on a pretext – just like we were in Vietnam and Iraq. If you recall, the German Army faked an attack against Germany from Poland. That was the pretext used to begin the invasion of Poland, and the beginning of World War II in Europe.

I fear that us history buffs don’t quite appreciate just how well the Nazis controlled the flow of information.