The Constitution doesn’t prohibit enhanced interrogation. It actually doesn’t even prohibit torture. It prohibits two things tangentially related – “cruel and unusual punishment” and coerced self-incrimination. Aggressive interrogation to get military intelligence is not punishment and it’s not coerced self-incrimination. But once coercion is used, the information is tainted for purposes of a trial.
Then Supreme Court Justice Antonin Scalia said:
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 under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about.
Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.
Note that neither Scalia nor I advocated going “around smacking people about.” In Scalia’s case that’s lost on the liberals who are quick to condemn his, clearly correct, point. Torture may be illegal for all sorts of reasons including statutes and treaties, it certainly is unconstitutional as punishment or to extract a confession in a criminal case, the worst forms are certainly wrong in all cases and even the milder forms are wrong in most cases, but it is not necessarily the case that any use of pain or threat to obtain intelligence is unconstitutional.
The key quote though, is this one:
There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.”
But, of course, easy smug answers are exactly what those who would impose a blanket ban on even such relatively mild techniques as sleep deprivation are interested in.
Great self-satisfaction is what I’m all about. Thanks, Justice Scalia.
Scalia Defends Torture: It’s ‘Absurd’ To Say The Gov’t Can’t ‘Smack’ A Suspect ‘In The Face’ (Note that Scalia was NOT talking about “suspects” in criminal cases. Even the headline here is misleading.)