Antonin Scalia, Interrogation, and the Ticking Clock
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The movie was from the early 1960s. I had not seen it in years. Circle of Deception is a spy-as-decoy film set in World War II. It poses a moral dilemma. Would it have been moral to mislead an American spy with false information, then deliberately let him be caught?
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The betrayal is intended to present convincingly an important piece of intelligence to Nazi authorities. The presentation would be all the more convincing if the American had to be tortured beyond his endurance for the Nazis to obtain the false information.
If that sort of undercover betrayal could save thousands of lives, would it be a moral tactic in wartime?
Such moral questions are easy to construct if we set free the imagination from the prison of the plausible.
Let’s dream of a world of unparalleled beauty, of assured justice, of peace and happiness, of health and well being, of spiritual growth for everyone. Let’s make it a world of complete security.
I suggested such a world years ago with one price. Hidden from view, away from the perfect, happy world, would be the only exception. That exception would be necessary to ensure the survival of that society. One small child, alone in darkness, would live in eternal, incredible suffering.
Would the existence of such a world be acceptable?
There is no real answer, except in the individual mind. It is a question of values.
The question presents a sort of moral ambiguity that, mercifully, does not actually exist to befuddle us. It is a mere philosophical thought experiment.
The difference between the decoy-spy and the child in torment is plausibility. We can imagine betrayal in war. The child is purely theoretical, having no basis in any reality.
We can posit of any number of philosophical cases if we enter the realm of fantasy. Suppose crops will be bountiful, and mass starvation prevented, if some captured enemy is sacrificed to the gods every year? Should that be done? It was, in some civilizations, and pretty much everyone believed it.
One scenario that exists in the American imagination is the ticking bomb situation. A terrorist is tortured into giving up the location of the bomb in time to save thousands of innocent lives. Is it moral?
Such a question is not really answerable. Like many questions of morality, it is not subject to factual verification. A friend whom I admire wrote to agree with my own uncertainty, “When I weigh potentially saving thousands of lives by torturing one who would take them I don’t think I would have a problem.”
He is joined in his judgment by Justice Antonin Scalia. As early as 2008, Justice Scalia suggested that there is no provision in the US Constitution that would prohibit torture.
To the casual reader, the Eighth Amendment prohibition against cruel and unusual punishment would apply. Waterboarding, broken bones, death by hypothermia, and rectal penetration would seem to qualify.
But Justice Scalia says that such official treatment is unconstitutional only after conviction for a crime. Punishment can only come after there is some official finding of something for which to be punished. If you are not found guilty of a crime, you are not being punished. Torture that does not come after a guilty verdict is not really punishment, so it does not break the rule against cruel and unusual punishment.
When he’s hurting you in order to get information from you, you don’t say he’s punishing you. What’s he punishing you for?
– Justice Antonin Scalia, interviewed by Lesley Stahl, April 27, 2008
Justice Scalia has, in more recent years, gone beyond mere wafer thin slicing of the Constitution. He invokes fictional television programs to support his legal opinions. A Scalia favorite, an example he takes quite seriously, is the character Jack Bauer on the program 24.
Bauer is perpetually faced with the Scalia proposition or its equivalent, the terrorist prisoner who knows the location of the nuclear bomb that can take out Los Angeles.
Justice Scalia was interviewed on a Swiss radio station and offered his legal opinion.
Listen, I think it’s very facile for people to say, ‘Oh, torture is terrible.’ You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person?
– Supreme Court Justice Antonin Scalia, December 12, 2014
Justice Scalia went on to suggest that it is not at all clear that torture is unconstitutional. “I don’t know what article of the Constitution that would contravene.”
The recent Senate report on torture summarized an exhaustive study of cases in which “enhanced” interrogation was used. It turned out that the number of cases of terrorist attacks stopped, or terrorists captured, or perpetrators killed, as a result of extreme measures was, well, zero.
In fact, this was already known to experts in the field before the terrorist attacks of 9/11. The popular image of experienced interrogators pushing naive superiors to allow torture as the only effective methods in emergency situations turned out to be the opposite of truth.
Public officials who had been trained in their living rooms by fiction on television were in perpetual conflict with veteran interrogators who had experience with the real thing. The investigators told anyone who would listen that such tactics would build resistance in some prisoners, and produce a torrent of time wasting false leads from others. And that turns out to be exactly what happened.
Army interrogation specialists published pleas to abandon torture because it was ineffective and interfered with proven techniques. One group of interrogation specialists visited writers on the set of the Jack Bauer program to urge a more realistic portrayal of torture as producing a maze of bogus information, wasting valuable investigation time while clocks ticked.
Let’s invent an additional philosophical question.
Is the ticking bomb fiction more like a World War II decoy-spy film, worth considering for its entertainment value? Or is it more like the annual human sacrifice to the gods to make a society feel a false sense of safety?
While we consider that question, here’s another.
Suppose a Supreme Court Justice becomes too tired to keep twisting the obvious meaning of the Bill of Rights? Suppose he begins to base his legal opinions on fictional television programs. Does he pose to a free republic a more real ticking clock?
This article is a collaboration between MadMikesAmerica and FairandUnbalanced.com.
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I would suggest that, at a minimum, Scalia and Thomas already do that Mr. Denning. When I read some of their opinions that is the only place I can find reasoning for their decisions or their arguments. Justice Scalia loves to twist and play with the words and Thomas is just to dumb to think of anything else.
Interrogation works. Almost all of the time. If it takes extreme measures to discover the truth, one that could save thousands of lives, I say go for it.
There are a lot of experts who say it doesn’t work Timmy. Who do you believe?
I’ve seen it work time and again first hand Rachel. It works.
Probably does I suppose as everyone has a ‘pain threshold’ they can’t go beyond – problem is, personally, I would say absolutely anything to stop the pain so precisely how accurate information is from these techniques may be open to question.
On the other hand, you may be right Timmy…after all, how have America’s, Britain’s and Australia’s security services – and, I presume, many others, managed to generally keep us safe for so long?
Tricky one methinks.