Oliver Wendell Holmes is, presumably, turning over in his grave.

This morning on the BBC World Service’s NewsHour program, broadcast on WBUR, they played an interview with Justice Antonin Scalia, who among some other very dubious arguments, said by way of justifying the idea that treatment which is Constitutionally prohibited when applied to convicted criminals, is nonetheless not necessarily even bad when applied to people who have not yet been convicted of anything, but who are reluctant to give information, that you should be able to “smack a terrorist in the face” to get him to tell you “where he planted the bomb that’s about to blow up Los Angeles.”

Leaving quite aside the shocking bad faith of pretending that what the torture arguments in the US are about is a “smack in the face” rather than violent, painful, terrifying, techniques which (even when, as the arguments for waterboarding tend to claim, they don’t leave obvious physical damage, like bruising or broken bones) can have major long-term physical and especially psychological impact on their victims, and (to stick with waterboarding for a moment) which have been universally recognized as methods of torture for centuries, I’d like to point out something else, perhaps equally horrible, about Scalia’s argument.

The “bomb about to blow up LA, so you smack a guy in the face” scenario is lifted directly from the TV show 24 (the tendency of which to legitimate, if not glorify, torture is something I think Fox has to answer for, morally speaking). Scalia is attempting to make a convincing legal argument about what the US Constitution does or does not permit based on fiction. (Nor indeed is this the first time he’s fallen back on the 24 argument.) He might as well try to support rulings about police procedure based on what works on CSI, or claim that since it worked out so well in that book by Mr. Heinlein, and since “Islamofascists” are so similar, really, to hordes of giant space insects, we should consider whether military service ought not be a prerequisite to citizenship.

It’s really incredible — in the literal sense of “impossible to believe” — that anyone, let alone a Supreme Court Justice would have the gall, or the ignorance, to claim that fictional scenarios ginned up to bring in Nielsen ratings should be considered a reasonable basis for public policy and jurisprudence.  It’s even more incredible that so few people seem to be up in arms about this.  What the hell is wrong with us?

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