excerpt... "To begin with, the Constitution refers to cruel and unusual punishment. It is referring to punishment for crime. For example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime, but a court can do that when a witness refuses to answer ... as a means of coercing the witness to answer, as the witness should. And 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 find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited by the Constitution?"
"...It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game" Scalia says. "How close does the threat have to be? And how severe can the infliction of pain be?"
Hmm. Yes, that would be absurd. Good point there, except it sounds like a salesman's argument not a judge's argument. Because here's the thing, if we knew for certain that L.A. was going to blow up and we also knew for certain that "smacking someone in the face" would nix the whole thing, do you really think anybody is going to bust our balls for it. To argue against that would be a fringe opinion at best... Absurd you might say.
So after we put the condescending rhetoric aside all we are left with is, "...we're into a different game. How close does the threat have to be? And how severe can the infliction of pain be?"
No kidding. Here's where we have to step out of the T.V. and acknowledge that we will never know for certain that L.A. is going to blow up while also knowing exactly whom to "smack". It's a difficult line to draw, it always has been and always will be, no matter what the laws may say. So whenever our leaders stop putting emotional rhetoric above substantive debate we can talk about it.