After his well-known dissent on the death penalty, Justice Scalia now has now become a full-fledged torture supporter. In a recent BBC interview, he argued that interrogators could inflict pain to extract information about an imminent terrorist attack. He says the following:
“It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn’t, I don’t know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn’t do that… close does the threat have to be? And how severe can the infliction of pain be?…Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited by the Constitution? Is it obvious, that what can’t be done for punishment can’t be done to exact information that is crucial to the society? I think it’s not at all an easy question, to tell you the truth.”
True to form, Scalia attacked European who opposed torture in all circumstances as “smug”, linking it to their “self-righteous” opposition to the death penalty. If nothing else, he is quite right to link these subjects, core areas of the gospel of life for any Catholic. Scalia is engaging in simple consequentialism, turning something as non-negotiable as torture into something negotiable, at least in the presence of a “ticking bomb scenario”. The fact that the Church unambiguously condemns torture, and that it is listed as an intrinsically evil act– never justified by intent or circumstance– by the USCCB in the context of the upcoming US election, is simply not relevant to him. And Scalia’s opinions on torture are not just his personal ramblings, they affect his judicial decisions. He was a key dissenter in the Hamden v. Rumsfeld case, which determined that the Geneva Conventions (especially Common Article 3 which states that detainees shall not suffer torture or outrages upon personal dignity) applied to Al Qaeda suspects.
Scalia is the ultimate Protestantized Catholic, appealing to his “right” to interpret the Word of God in his own personal way. Of course, the way his Protestantized Catholicism shines forth is in his sola scriptura constitutionalism, the notion that only the original text matters. He forgets about the natural law, about those rights antecedent and superior to all positive law.
And yet while Catholic politicians who dissent on another intrinsically evil act (and we know what that is!) are hounded by the usual suspects, with demand that they be cast from the communion rails, the Cafeteria Justice openly vaunts his Catholicism and parades unmolested each year into the front pews of St. Matthew’s Cathedral for the annual Red Mass. Double standards? But of course…
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