In most societies, we would look to the judiciary to uphold justice. After all, aren’t "justices" supposed to evaluate and enforce basic distinctions between right and wrong? And behind this concept of justice must be a moral reckoning, a polar star, that guides them.
But in the U.S., guess again. We have as (at least, maybe more) one of our Supreme Court justices someone who is obviously morally bankrupt. Instead of some undergirding concept of right and wrong is a negotiable scale.
Let’s take a look at the most recent issue. Antonin Scalia in Great Britain decided to not only raise questions about whether waterboarding is torture, but went on to tacitly suggest that torture as an interrogation technique might be legal.
In such cases [such as trying to find a ticking bomb], "smacking someone in the face" could be justified, the outspoken Scalia told the BBC. "You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and therefore it's no good.'"
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While this is in itself hardly surprising from Scalia, consider his underlying "legal" reasoning.
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.
So, let’s see if we can understand him correctly:
What is specifically excluded by the Constitution for punishment of a person convicted of a crime (cruel and unusual punishment) is not excluded from interrogation.
So even if we are not sure legally if someone has done something wrong, up to the point a jury convicts them it is OK to apply cruel and unusual methods.
So somehow concepts of "innocent until proven guilty" and "all men are created equal and endowed with rights" only apply if we have specific statements in the Constitution that protect such people. Sure, you can’t search someone’s house without clear questions of guilt. But the constitution says nothing about knocking someone around a bit. Now that is a form of strict constructionism that many would find chilling.
Not sure if someone has stolen your wallet? Take that person to a back alley and pull out his fingernails until he empties out his wallet to show you everything he has. Smack him around a bit. After all, we wouldn’t want to question the use of torture as an examination technique . Once you have exhausted all attempts to verify either guilt or innocence, then you must act decently. If he has your wallet, then it’s only fair to only assess a modest fine, since that would be fair punishment. But the questioning beforehand, well, that comes under a different "(im)-moral" umbrella.
The same reasoning could be applied to statecraft:
Not sure if a country is holding out on you with information about hostile action? Bomb them until you can prove that their protestations of innocence were true. Only then do you have to stop, because after that it would be cruel and inhuman.
Oh, that’s right. That is what we did. Guess it must be alright – nothing is said in our Constitution about preemptive mass destruction of a country based on no evidence. And on scale of importance, why should a little torture get in our way?
I think I need a shower now.