Supreme Disagreement on Torture

Finally, one of Justice Scalia’s colleagues takes on his defense of torture. The AP has the story.



WASHINGTON (AP) — Supreme Court justices Stephen Breyer and Antonin Scalia, frequently on opposite sides of controversial cases, have shared a stage to debate their contrasting views of the Constitution.

Now, Breyer has weighed in on the debate over harsh interrogation techniques, obliquely taking issue with Scalia’s recent remarks suggesting that aggressive interrogations could be appropriate when an act of terrorism was imminent.

Breyer approvingly cited a 9-year-old Israeli court decision outlawing torture in a talk Tuesday to a Washington gathering of the Anti-Defamation League.

The Israeli Supreme Court effectively said that, in a country that has dealt with many terrorist attacks, “‘we understand why someone might want to engage in this activity, but we are judges and if we are judges, no torture,'” Breyer said. “Absolutely none.”

The justice made clear he was not talking about U.S. courts or what the outcome would be if the Supreme Court were asked to rule on aggressive interrogations as part of the fight against terrorism. Legal analysts believe such a case could make its way to the high court in the next year or two.

In February, Scalia told a BBC interviewer that an absolute ban on inflicting pain as part of an interrogation was misguided.

“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 said during a visit to London.

Last year, he defended fictional TV counter-terror agent Jack Bauer for getting physical to thwart an attack.

“Is any jury going to convict Jack Bauer? I don’t think so,” Scalia said. “So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”

The Israeli court also acknowledged that someone who tortured a suspect to reveal the location of a ticking bomb might not be punished for it, but he would have to stand trial and a court would have to accept the argument that physical force was necessary.


Published on April 16, 2008


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