Scalia says courts shouldn't prohibit torture
Nick Juliano
Published: Tuesday February 12, 2008

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Supreme Court Justice Antonin Scalia rejected the notion that US courts have any control over the actions of American troops at Guantanamo Bay, argued that torture of terror detainees is not banned under the US Constitution and insisted that the high court has no obligation to act as a moral beacon for other nations.

"We don't pretend to be some Western Mullahs who decide what is right and wrong for the whole world," Scalia told a BBC interviewer Tuesday, defending narrow interpretation of the reach the US Constitution gives the nine justices on the country's high court.

Scalia said it was "extraordinary" to suggest that the 8th Amendment, which prohibits the government from engaging in "cruel and unusual punishment," could be applied to the actions of US interrogators questioning foreign subjects detained overseas. In his view, Scalia said that while the 8th Amendment would prohibit locking up someone indefinitely as punishment for a crime, for example, the CIA or military would be perfectly justified keeping a suspected insurgent or member of al Qaeda imprisoned forever if the detainee refused to answer questions.

"Is it obvious that what can't be done for punishment can't be done to extract information that is crucial to the society?" Scalia asked.

In the BBC interview, which aired on Radio 4's Law in Action, Scalia suggested that it would be inappropriate for the court to deliberately outlaw certain tactics, such as waterboarding. (The Bush administration recently acknowledged using the simulated drowning procedure at least three times on terror detainees.) Scalia said tactics critics have described as torture could be usable in so-called "ticking time bomb" scenarios or even when such a pressing deadline does not exist.

"It may not be a bomb in LA," he said. "But it may be, where is this group [believed to be plotting an attack on the US]?"

This audio is from BBC's Radio 4, broadcast February 12, 2008.