Antonin Scalia

Antonin Scalia told an interviewer that harsh interrogation techniques were constitutional and might be justified in some cases.

By Bob Egelko
January 2, 2015 – 5:39 PM

Supreme Court Justice Antonin Scalia prides himself on interpreting the Constitution as it was intended by those who drafted it. When it comes to torture of suspected terrorists, one of those drafters might be Jack Bauer.

In a message that might have been written for the finger-breaking, electroshocking interrogator of Fox-TV’s “24,” Scalia told an interviewer last month that harsh interrogation techniques were constitutional and might be justified in some cases. According to the account by the Associated Press, he was interviewed by Radio Television Suisse on Dec. 10, a day after the Senate Intelligence Committee released a summary of its report that detailed extensive use of torture by the CIA against terror suspects during the Bush administration. The report also found no evidence that water-boarding prisoners, suspending them from chains or making them stand for hours on broken legs has produced any useful intelligence.

“Listen, I think it’s very facile for people to say, ‘Oh, torture is terrible,’ ” Scalia said. “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?”

He acknowledged that U.S. laws make torture a crime, but — referring to harsh interrogation methods in general — said, “I don’t know what article of the Constitution that would contravene.”

Some of Scalia’s fellow justices might mention the Eighth Amendment, which forbids “cruel and unusual punishment.” The application of that amendment to prisoners has been debated on the court for more than 20 years, with Scalia holding a decidedly minority view.

In a 1992 case, the court reinstated a lawsuit by a Louisiana inmate who had been kicked and punched by prison guards while handcuffed and shackled. Seven justices, led by Sandra Day O’Connor, said the Eighth Amendment prohibition applies to guards who “maliciously and sadistically use force,” as the inmate alleged. Newly appointed Justice Clarence Thomas, joined by Scalia, dissented. Thomas said a prison guard’s treatment of inmates is not the type of ”punishment” covered by the Eighth Amendment, which refers only to the sentences imposed by courts.

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