If she started smashing fat fingers(which would be much better TV incidentally than the interview that her producers cut), then Scalia might start crying about the 4th and 5th amendments if he were really delirious. But 60 Minutes is not a state actor or the government so he wouldn't get too far there.

To address rottenseed's timing question, it should be made absolutely clear that torture inflicted upon American citizens is not legal whether they are incarcerated or detained before trial or seized from their homes by the popo. If you read the 8th as part of a legal procedural continuum (arrest,detention,conviction)along with the 4th and 5th, it makes sense for something crafted in legalese.

If you are unlucky enough to be tagged an "unlawful enemy combatant," however, it is now completely unclear (thanks to the purely Dick Cheney and his legal enablers) what law or procedures protects that person from torture of any kind. That is the awful truth that Scalia dances around in this clip.

To parse the word punishment or torture or even the history of 8th amd jurisprudence misses the point about what is truly outrageous about Scalia's position.

pelvis.

Check out Bell v. Wolfish and its progeny for the precedent that the Eighth Amendment is not implicated in pretrial detention settings. Nonetheless, 5th Amendment due process and liberty protections as well as 4th Amendment seizure law protect American citizens against torture, at least until Dick Cheney gets rid of those Amendments.

I don't believe for a second that Scalia is arguing that the Constitution is silent on the subject of torture and interrogation. he is just being a douchebag and correctly arguing that Eighth Amendment precedent is not applicable here.

I am sure that this Supreme Court will find a way, but I don't know how you perform the legal jujitsu that a non-citizen loses all basic human rights under all domestic and international laws merely because the President issues a signing sttaement placing them in a certain category. It stinks to high heaven.

gwiz665-

Exactly. Keep the dream alive. There is the rub of Scalia's passive originalism, though, if the judiciary permits an unchecked executive or a Congress that does the unimaginable and kisses habeas corpus goodbye. So executive branch stress positions and waterboarding will only be subject to the Geneva Conventions now if the judiciary forces them to comply.

Netrunner:

I think that Scalia's argument is simply that "unlawful combatants" aren't protected by the Constitution. If a police officer tortures an American citizen arrestee or guards cut off a American prisoner's ams and legs for fun, then I hope that Scalia's tune would change. Like a clever bastard, he answered only what was asked by 60 Minutes. Although not comporting with standard English usage, his legal read of the "cruel and unusual" clause is correct here.

I'm a Scalia fan, though. I may disagree with his worldview, but he brings the argument.

I like these kinds of posts because it highlights the fact that attorneys speak a different language than most other people. Unfortunately, I get Scalia here.

So I agree with SDGundamX (and Scalia) that the "cruel and unusual punishment" clause of the Eighth Amendment simply does not apply to the scenario sketched in Stahl's interview because the 8th Amendment doesn't apply to pretrial detention. Torture isn't "punishment" in this highly legal, technical, and circumscribed sense because the Eighth Amendment jurisprudence requires some prerequisites of State/Governmental punitive measures i.e conviction.

However, I cannot respect Scalia for wholly skirting the real issue which is whether the Fifth Amendment due process protections apply to these non-citizens who are being abused and tortured in Guantanamo and in secret American prisons around the globe. He has two big cases pending on that issue that he is likely going to be on the wrong side of so I am not surprised that he resorted to wonking out and parsing the word "punishment" into silly oblivion.

*beg

Thanks very much. I need to use the beggar's corner more to pimp these kinds of things, but I am too set in my old ways.

*discard

This one failed to make it a long time ago, but I am so happy that someone was brave enough to try it again. So horrifying.

Thanks. This one will probably top out at 2-3 votes, but I'm charmed by it.

I'll check the dead pool. I didn't remember whether pm posted this particular one.

I wish I could vote for this again.

Like everything that I do, it is mostly the truth. I was fortunate enough to spend a summer dancing and drinking in Krakow in 2001. The marching bands and singing children were wonderfully real, but thankfully, the harsh Danish martial law stayed away.

In reply to this comment by Krupo:
Your bio story intrigues me. Fiction or some kind of real account?

I never ever try to imagine the actual allocation of my tax dollars to federal agencies or programs. I would have hung myself after Bush was re-elected if I maintained a strict Paulist (Dr.& Not Apostle) view of the world. Ag has become an industrial complex, sadly, and subsidies tend to feed the beast and pass over the small farmer. At the same time, it would be extremely irresponsible to pull all forms of government support from what is often a cruel and difficult way of life.

All good points, but current agricultural subsidy policies tend to reward pure size and overproduction rather than environmentally sustainable practices, particularly in the cotton and sugar industries. And there is no question in my mind that both EU and American intransigence on this issue chokes African and 3d world agrarian development by supersizing them out of the market