This article redacts out, the specifics of Justice Scalia's comments that lead one to believe he has been watching too much 24. I want to point out the practical legal significance of the "two questions" that Justice Scalia says are the only two that remain. Once you say that torture
is acceptable, something Justice Scalia said is common sense, the only questions that remain are, when and how much.
The nature of the U.S. legal system makes coming up with answers to those questions a scary concept because our laws are not written in stone, but are subject to interpretation, and alteration. If you set answers to those questions in U.S. law those answers now become mutable. Justice Scalia's comments paint a mental image if backhanding a beligerant and dangerous terrorist mastermind mere hours or minutes before a devistating terrorist attack is executed. Light force + immidiate, credible, threat. What we already have is water boarding, sleep deprivation, and torture with dogs in the complete absence of any threat, or where the threat has already passed. With this as a starting point, a moveable line of what is acceptable becomes much more threatning to the sense of justice. Who are you to say thumbscrews and electrocution are inappropriate?
What defines an imminent threat is already a question that is litigated heavily in the U.S. in regular criminal cases. Frequently, just getting caught actually ends the threat a potentially dangerous person poses.
How does one know the person being tortured is guilty of terrorism or even knows anything of value? We have seen the intelligence community fail repeatedly in the last seven years. 9/11 was a failure of intelligence of colossal magnitute and consequence. Are we really to trust these people to make the judgement call about who it is appropriate to torture?
This is another question that, once the line is defined, becomes moveable. We are already torturnig people in Guantinamo under suspicion of terrorism or outsorcing it through extraordinary rendition. I point to the case of Maher Arar as an example of an innocent person that was apprehended under an unfounded suspicion of terrorism and tortured. It is not as if this argument for torture is being made in an academic setting, innocent people are being grabbed off the streets by the very people that are asking for the authority to torture them. The point is, people are being, and will be tortured before it is determined they are guilty of anything. Any law allowing for torture is merely a way for those who have already used torture to escape justice. Even if the defined as acceptable only in the scenario Justice Scalia proposes, its not too far a leap for local police agencys who have, say abused someone in their custody, or crooked cops who torture suspects to use a torture law to defend themselves in court.
is acceptable, something Justice Scalia said is common sense, the only questions that remain are, when and how much.
The nature of the U.S. legal system makes coming up with answers to those questions a scary concept because our laws are not written in stone, but are subject to interpretation, and alteration. If you set answers to those questions in U.S. law those answers now become mutable. Justice Scalia's comments paint a mental image if backhanding a beligerant and dangerous terrorist mastermind mere hours or minutes before a devistating terrorist attack is executed. Light force + immidiate, credible, threat. What we already have is water boarding, sleep deprivation, and torture with dogs in the complete absence of any threat, or where the threat has already passed. With this as a starting point, a moveable line of what is acceptable becomes much more threatning to the sense of justice. Who are you to say thumbscrews and electrocution are inappropriate?
What defines an imminent threat is already a question that is litigated heavily in the U.S. in regular criminal cases. Frequently, just getting caught actually ends the threat a potentially dangerous person poses.
How does one know the person being tortured is guilty of terrorism or even knows anything of value? We have seen the intelligence community fail repeatedly in the last seven years. 9/11 was a failure of intelligence of colossal magnitute and consequence. Are we really to trust these people to make the judgement call about who it is appropriate to torture?
This is another question that, once the line is defined, becomes moveable. We are already torturnig people in Guantinamo under suspicion of terrorism or outsorcing it through extraordinary rendition. I point to the case of Maher Arar as an example of an innocent person that was apprehended under an unfounded suspicion of terrorism and tortured. It is not as if this argument for torture is being made in an academic setting, innocent people are being grabbed off the streets by the very people that are asking for the authority to torture them. The point is, people are being, and will be tortured before it is determined they are guilty of anything. Any law allowing for torture is merely a way for those who have already used torture to escape justice. Even if the defined as acceptable only in the scenario Justice Scalia proposes, its not too far a leap for local police agencys who have, say abused someone in their custody, or crooked cops who torture suspects to use a torture law to defend themselves in court.
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