Astonishing words from Scalia

Biretta-doff to Jeffrey Smith for this one. I usually stay out of the American political debates on torture and so on, but this report of what Judge Scalia (a man I had been inclined to respect) had to say in a recent interview astonished me.

Supreme Court Justice Antonin Scalia said that aggressive interrogation could be appropriate to learn where a bomb was hidden shortly before it was set to explode or to discover the plans or whereabouts of a terrorist group.
"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," Scalia told British Broadcasting Radio Corp.

Stick something under the fingernail? Could you imagine the outrage if it were suggested that such activities were justifiable if used against American troops? But let's read on...

U.S. interrogation techniques, including waterboarding, have been the subject of growing debate in the United States, and could play a role in the military trials of six men charged in connection with the Sept. 11, attacks. The issue also could find its way to the Supreme Court.
Scalia, visiting London during a break in the court's calendar, referred generally to those methods as "so-called torture," and said practices prohibited by the Constitution in the context of the criminal justice system — including indefinite detention — are readily allowed in other situations, such as when a witness refuses to answer a question in court.
"I suppose it's the same thing about so-called torture," he said in the interview. "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."

I can't believe that a man who should have an understanding of natural justice made that argument. He's basically saying that people outside the criminal justice system, who have neither been convicted nor charged with a crime are entitled to less protection from the law than those found guilty of a crime in a court of law? Yes, I know we're dealing with terrorists or suspected terrorists here, but there are still basic questions of principle here at issue: what prerogatives does the state have in its use of physical force and how are the natural rights of man to be respected? Scalia seems to be opening a Pandora's box here in suggesting that the State has powers of physical coercion which go beyond the regular 'law and order'/'criminal justice' areas and which do not seem consonant with the rules of law. This is worrying, especially as he's not just talking about detention, but is suggesting that it's okay to treat certain prisoners in a way which would be unconstitutional/'cruel and unusual' if these same prisoners were actually convicted of a crime. Hard cases make bad law, and these tough hypotheticals seem to be opening very dangerous ground in terms of excluding certain people from the most basic protections of the law in circumstances which seem ill-defined and open to grave abuse... abuse which would be without legal recourse as Scalia seems to be pushing the whole issue outside the regular system of legal justice.
Yes, I know we're talking about some very bad people who are deserving of contempt and stiff punishment, but justice and freedom can only be defended by sticking to the principles of justice and freedom:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake! (From A Man for All Seasons)

He made some interesting comments on other issues as well:

Scalia, a judicial icon among American conservatives, an acerbic wit and often abrasive personality, said Europeans had no business "smugly" decrying those techniques as torture. Earlier in the interview he also faced down criticism of the U.S. death penalty.
"Europeans get really quite self-righteous, you know, (saying) 'no civilized society uses it.' They used it themselves — 30 years ago," he said, adding that a majority of Europeans probably supported capital punishment anyway.
Scalia said that neither he nor any of the eight other Supreme Court justices who collectively make up the United States' highest court should be seen as setting the moral tone for the international community.
"I don't look to their law, why do they look to mine?" he said.

Hmmmm... He does raise an interesting question... to what extent should we be concerned with the exercise of justice and questions of human rights in other countries? I don't think he should be so touchy about European (sic - it's always risky to generalise about Europe... it's quite a hetrogenous continent, you know...) criticisms of the US Supreme Court. He's not under any obligation to listen to them, of course, but is it really so strange to imagine that countries might actually (*cough*) learn from each other by seeing and comparing how justice is done in the great democracies of the Western world?
(By the by... I doubt that the more hysterical and shrill critics of American justice on this side of the Atlantic would ever force themselves to think of the US Supreme Court as 'setting the moral tone for the international community'!)

I don't have time to moderate a debate on torture. Life is too busy, so there will be no comments box for this post.