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Scalia's Latest Smack

Driving to a meeting yesterday, listening to BBC via my local NPR station, I almost went off the road as I heard Supreme Court Justice Antonin Scalia come on the air and express his doubts about whether anything in the Constitution would prohibit torture of a suspect who may pose a threat to public safety. "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 told the BBC program Law in Action. Drawing a distinction between the Eighth Amendment's prohibition of cruel and unusual punishment and what he labeled "so-called torture," he continued, "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? Is it obvious, that what can't be done for punishment can't be done to exact information that is crucial to the society? I think it's not at all an easy question, to tell you the truth."

Now I'm no constitutional scholar, but what bothers me most about this comment is that it ignores the presumption of innocence. If law-enforcement authorities know someone is guilty of something that could endanger the public, nothing in the Constitution would prohibit a good smack -- or perhaps even waterboarding -- to get the person to fess up. But there's the rub: How do authorities get to that degree of certainty without some due process along the way? Perhaps this is what ABC News legal correspondent Jan Crawford Greenburg had in mind when she noted on her blog that Scalia was never asked whether torture would violate Due Process. Greenburg reminds us that Scalia is a big fan of TV counter-terrorist Jack Bauer, defending his vigilante approach to law enforcement at a conference last year with the comment, "Jack Bauer saved Los Angeles. ... He saved hundreds of thousands of lives. Are you going to convict Jack Bauer?" Note the common thread here of saving Los Angeles, at all costs.

I agree with Chuck Newton on this one, who wonders how Scalia's comments might be interpreted by law-enforcement authorities:

It is fine to call someone a terrorist, but what he is saying is taser a suspect, hit a suspect, kick the crap [out of] the suspect, water board the suspect as long as you are trying to gain information -- in short as long as they are not telling you what you think you want to hear, or not pleading to a crime they did not commit. ... What Scalia says is that the Constitution does not protect our kids, our teenagers and our young adults from the excesses of vigilante cops and corrupt public officials.

Granted, it's been a tough year for 24 fans, what with the show's star going to prison and the writers' strike delaying the season's scheduled Jan. 13 premiere. But please, Justice Scalia, let's not take it out on the Constitution. LA needs the Bill of Rights more than it needs vigilantism.

Posted by Robert J. Ambrogi on February 13, 2008 at 11:15 AM | Permalink | Comments (1)

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