Justice Scalia said it was “extraordinary” to assume that the ban on “cruel and unusual punishment”—the US Constitution’s Eighth Amendment—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.”
Justice Scalia argued that courts could take stronger measures when a witness refused to answer questions. “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. “How close does the threat have to be? And how severe can the infliction of pain be?”
In other words, in Scalia's opinion, the Eight Amendment simply doesn't apply to restrict torture unless it's being used to punish someone who's already convicted. Well...ok, maybe. Of course, what critics are mostly talking about is the use of torture to procure confessions (a la Abu Zubaydah), not its use as punishment (which not even the Bush administration has advocated.) In that sense, it is the Due Process clause of the Fourteenth Amendment that is applicable, not the Eight amendment, and on that score the Supreme Court's jurisprudence is quite clear. From the 1936 opinion in Brown v. Mississippi, this excerpt:
Unfortunately, like many proponents of torture, Scalia seems to think all of this flies out the window if a terrorist is involved. There's always an exception isn't there, as long as the need is compelling enough right? Of course, the ancient Roman experience teaches us that exceptions eventually become the rule. Torture is pervasive and repulsive to our democracy, and Scalia should know better.
The rack and torture chamber may not be substituted for the witness stand. The state may not permit an accused to be hurried to conviction under mob domination- where the whole proceeding is but a mask-without supplying corrective process...Nor may a state, through the action of its officers, contrive a conviction through the pretense of a trial which in truth is 'but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured.' And the trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence. The due process clause requires 'that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.' Hebert v. Louisiana, 272 U.S. 312, 316 , 47 S. Ct. 103, 104, 48 A.L.R. 1102. It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.
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