"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, February 13, 2008

The Sage

You can count on an old-schooler like Justice Scalia to cut to the heart of an issue. In an interview with the BBC recently, Nino discussed using physical coercion in interrogation of certain kinds of suspects.

He began by clarifying the obvious (or what should be obvious)-- that the Eighth Amendment does not bar the use of coercive interrogation methods:

Scalia said that it was "extraordinary" to assume that the U.S. Constitution's ban on "cruel and unusual punishment" also applied to "so-called" torture.

"To begin with the Constitution ... is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime," he said in an interview with the Law in Action program on BBC Radio 4.

Scalia seemed to indicate that coercion would be appropriate in proportion to the necessity of finding the information sought and so long as the force itself was proportionate (i.e., no hacking off limbs to find out where an enemy leader is located):

"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?" he asked.
"It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game" Scalia said. "How close does the threat have to be? And how severe can the infliction of pain be?"

Although speaking in constitutional law terms, the principles Scalia touches on seem to be also in the solid mainstream of the moral teachings of his Catholic upbringing.
Scalia also had some thoughts to share about European sanctimony concerning American use of the death penalty:

"If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today," he said.
"There are arguments for it and against it. But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous," he said.
More on the morality of coercion here and in the links found in that posting.


Patrick said...

While admitting that Justice Scalia knows the Constitution far better than I do, it seems to me that torture is less related to the Eighth Amendment than the Fourth and Fifth.

The Fourth Amendment guarantees the right of the people to be secure in their persons as well as their homes etc, absent "due process of law" such as a search warrant. If water is being forced down your nose, then it is hard to say that your "person" is very secure.

Maybe more relevant is the Fifth Amendment prohibition on compelling anyone to testify against himself in a criminal trial. Some would argue that the Framers included this provision with the specific intent of preventing torture, which was actually practiced by the regime from which they ha declared independence a few years earlier.

Maybe if many lives are at stake you don't care if the info is admissible in court. But if there is no crime or potential crime, why is the person being held prisoner in the first place?

Anonymous said...

Unforetunately, Scalia is the only well known Catholic who has dared to part company with recent papal inclinations on the death penalty (funny how important tradition is until it is not important). That no Cardinal has done so with press coverage enabled... makes me think we are breeding a very conformist culture at the top....gone are the days when Paul corrected Peter in Galatians and Catherine of Siena criticized Popes in letters to them. The Vatican had a papal executioner up til the mid 19th century (Bugatti who did 516 himself) and I don't agree with that but now we are in the opposite extreme of not even wanting the secular governments to execute a Mc Veigh which as Aquinas noted was thoroughly supported by Romans 13:3-4. And in 1952, Pope Pius XII who had better and safer life sentences than we have now....said these words:

Pope Pius XII in an address in 1952

"Even when it is a question of the execution of a man condemned to death, the state does not dispose of the individual's right to live. Rather, it is reserved to the public authority to deprive the criminal of the benefit of life, when already, by his crime, he has deprived himself of the right to live." (A.A.S., 1952, pp. 779ff.)

dudleysharp said...

This, from the French daily Le Monde, December 2006 (1):

Percentage of respondents in favor of executing Saddam Hussein:  

Great Britain: 69%
France: 58%
Germany: 53%
Spain: 51%
Italy: 46%
USA: 82%

We are led to believe there isn't death penalty support in England or Europe. European governments won't allow executions when their populations support it: they're anti democratic. (2)

(1) The recent results of a poll conducted by Novatris/Harris for the French daily Le Monde on the death penalty shocked the editors and writers at Germany's left-leaning SPIEGEL ONLINE (Dec. 22, 2006). When asked whether they favored the death penalty for Saddam Hussein, a majority of respondents in Germany, France and Spain responded in the affirmative.

(2)An excellent article, “Death in Venice: Europe’s Death-penalty Elitism", details this anti democratic position (The New Republic,  by Joshua Micah Marshall, 7/31/2000). Another situation reflects this same mentality. "(Pres. Mandela says 'no' to reinstating the death penalty in South Africa - Nelson Mandela against death penalty though 93% of public favors it, according to poll. "(JET, 10/14/96). Pres. Mandela explained that ". . . it was necessary to inform the people about other strategies the government was using to combat crime." As if the people didn't understand. South Africa has had some of the highest crime rates in the world in the ten years, since Mandela's comments. "The number of murders committed each year in the country is as high as 47,000, according to Interpol statistics." As of 2006, 72% of South Africans want the death penalty back. ("South Africans Support Death Penalty",  5/14/2006,  Angus Reid Global Monitor : Polls & Research).

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