Scalia is a brilliant cold-hearted bastard. Amend the constitution to abolish torture -- Scalia's interpretation that interrogation is not "punishment" is correct. However, there are statutes against torture. Still, he and the other conservatives in SCOTUS might someday overturn an anti-torture statute on the basis of some "executive power" bullshit... So the constitution must be amended to outlaw torture to prevent that from happening (unless, miraculously, obama wins the election and two of the conservatives on the court die and Obama replaces them with judges as good as Stevens) Stephens is smart enough to know Scalia's literal interpretation of the clause is right but also smart enough to dissent anyway and circumlocute a constitutional justification for it by going back to the private writings of Thomas Jefferson et al to determine the intent of the framers.

http://blogs.wsj.com/law/2007/06/20/justice-scalia-hearts-jack-bauer/

Same Clip From Ms. Stahl's interview, but Dan Abrams from MSNBC reacts more to it.

http://politics.videosift.com/video/Scalia-is-a-Chavanist-Bigot-And-Vote-For-This-Video

I would rather have a court that can actually read the constitution than sending a congress to wrap the constitution in more legalese. I'm so angry at Scalia, I can't even see straight. I won't legitimize Scalia's argument by responding to it.

But marinara, he has a point--as a judge, it's his job to uphold the law. The 8th Amendment says "cruel and unusual punishment" not "interrogation." Until lawmakers decide to change that, his hands are tied. Unless, perhaps, you think it is better to have a Supreme Court capable of creating laws on the fly--an idea that completely upsets the (albeit already tenuous) balance of power between executive, judicial, and legislative branches.

Just to be clear, I am against torture 100% under any circumstance. I'm just pointing out that those who claim torture during interrogation is "unconstitutional" because of the "cruel and unusual punishment" clause are just plain wrong. I'd be surprised if even more moderate or even liberal judges would disagree with what Scalia is saying here. There's an argument to be made for torture being unconstitutional, but one made on the basis of that clause is going to lose.

EDIT: I realized it was unclear what I was saying. The Supreme Court has already upheld that torture proscribed as a punishment for a crime is unconstitutional under the 8th Amendment. What's at issue here is torture specifically during an interrogation (before punishment has been decided by a court of law).

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.

Scalia is right - torture is not punishment, as defined by a causal "you did [crime], therefore you get [punishment]". Torture is interrogation. This means that the "cruel and unusual punishment" clause in the US constitution does not apply to torture. It does, however, apply to the Third Geneva Convention, which among other things state that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind." (Article 17: http://en.wikipedia.org/wiki/Third_Geneva_Convention ) which has been ratified by the US. It is therefore a breach of International law instead of petty domestic law.

There is however some controversy about "unlawful combatants", which are civilian enemies, which are not directly associated with another nation - these people are not covered by the Geneva Conventions (for some damn reason). One of the many horrible acts that presidency of George W. Bush has done, is to grant the president and executive branch a very broad discretion as to who it deems as an unlawful combatant. This is one of the issues that ought to be take up when the trial of George W. Bush is set in motion and the rotten, pungent underbelly of the US leadership is exposed.

(A man can dream, can't he?)

One could make the case that interrogative torture is punishment for not telling the captor what he wants to hear. It's more likely to make the prioner hate the captor more, and elicit bullshit false confessions, than get accurate information, and therefore there isn't any real reason to use it. Statutes are clear on outlawing some forms of torture, but the constitution is horribly vague on that point.

>> ^SDGundamX:
But marinara, he has a point--as a judge, it's his job to uphold the law. The 8th Amendment says "cruel and unusual punishment" not "interrogation." Until lawmakers decide to change that, his hands are tied. Unless, perhaps, you think it is better to have a Supreme Court capable of creating laws on the fly--an idea that completely upsets the (albeit already tenuous) balance of power between executive, judicial, and legislative branches.

So Scalia's argument is that while the police can't search you without a warrant, can't hold you without a charge, and can't beat or torture you as punishment for a crime, that since it's not explicitly in the constitution you can legally torture people while searching for incriminating evidence?

After all, they don't mention murder in the constitution either. Perhaps that's a new "interrogation" technique they should use.

What's the point of "innocent until proven guilty" if you can torture people who haven't even been to trial?

Judges do make law. In cases where the law is not clear on how to proceed, judges make law by setting precedent.

In cases like, say, Roe v. Wade, the supreme court created law. It's what they're there to do. It's why they're the third co-equal branch of government. It's why there wasn't armed rebellion when they anointed George Bush President.

This emphasis the religious right (and their neocon allies) place on the necessity of appointing judges who believe in the strictest possible interpretation of the letter of the law leads to people like Scalia having a position of power in this country.

As a supreme court justice, his job is not to uphold law, it's to uphold the principles of the constitution. Scalia isn't doing that job, he's just upholding the letter of it.

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.

Amendment VIII

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

pun·ish·ment
1: the act of punishing
2 a: suffering, pain, or loss that serves as retribution
   b: a penalty inflicted on an offender through judicial procedure
3: severe, rough, or disastrous treatment

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.

>> ^twiddles:

Amendment VIII
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
pun·ish·ment
1: the act of punishing
2 a: suffering, pain, or loss that serves as retribution
   b: a penalty inflicted on an offender through judicial procedure
3: severe, rough, or disastrous treatment

Thanks for the case law. The argument makes sense if you are a lawyer. Lawyers are weird.

I wasn't so much arguing the legalities of the 8th, but rather that a layman with some humanity in his heart reading the 8th and applying common sense would most likely conclude it should be forbidden to apply cruel or unusual treatment of prisoners at any time. If one wanted to be pedantic about things you would apply the legal definitions. And if your name was Scalia you would sound like a prick.

Total Bullshit.

Because it is the needless infliction of pain, torture is prohibited by the Eighth Amendment.

>> ^twiddles:
If one wanted to be pedantic about things you would apply the legal definitions. And if your name was Scalia you would sound like a prick.


It's not about being pedantic, it's about being precise. If "punishment" can mean "interrogation" then any word in a law can mean anything anyone chooses and the entire legal system crumbles.

>> ^DrPawn:
Total Bullshit.
Because it is the needless infliction of pain, torture is prohibited by the Eighth Amendment.


Interesting interpretation. So by your own logic, if a criminal has knowledge of a crime or a crime that is about to be committed, then torture is legal and justified. After all, it isn't needless in that case. The police aren't doing it just for giggles, they're doing it to solve/prevent a crime. Congratulations, your interpretation has just shown that the 8th Amendment doesn't prohibit torture. To the contrary, in your interpretation it promotes it.

This is why precision is so damn important in legal matters and why you can't get away with just swapping out words in an already written law (particularly the Constitution) just because it seems like "common sense." Common sense is often plain wrong.

Unfortunately, our legislators aren't lawyers in most cases and craft laws with vague language or gigantic loopholes. In those cases the courts wind up having to decide how to effectively carry out the law in practice. And that's where the politics come into play.

Punishing you for not telling them what they want to know?

Punishment is the stick, its the push factor. Its the whip, its the wet rag, its the electric chair, its the psychological mind games and its the cocktail of chemicals. Torture is just a specific "genre" of punishment. Is infanticide not a murder as much as homicide?

Playing word games around laws is detrimental. The words serve the spirit, not the other way around.

so let me get this straight, "cruel and unusual punishment" is contingent on where it lies on the event timeline of a criminal case?

so this means that somebody tried for a crime must, by law, get treated more "fairly" than somebody that is merely a suspect? Hmmm...I hope that's not what this means.

>> ^SDGundamX:
>> ^twiddles:
If one wanted to be pedantic about things you would apply the legal definitions. And if your name was Scalia you would sound like a prick.

It's not about being pedantic, it's about being precise. If "punishment" can mean "interrogation" then any word in a law can mean anything anyone chooses and the entire legal system crumbles.

--
By its own volition that comment should be considered pedantic. Besides I never said that punishment can or should mean interrogation. Torture is cruel and unusual punishment. Interrogation is not torture.

Also I agree with rickegee that the 5th is likely the one that applies here (IANAL). However I was merely stating an opinion that Scalia likes to dance on the head of a pin in order to justify his political beliefs.

>> ^SDGundamX:
Unfortunately, our legislators aren't lawyers in most cases and craft laws with vague language or gigantic loopholes. In those cases the courts wind up having to decide how to effectively carry out the law in practice. And that's where the politics come into play.

Well put.

I just absolutely hate that the legality of torture has somehow turned into just another "partisan political issue."

There's also a fundamental flaw in the english language here, which is that "cruel and unusual punishment" could mean either "cruel punishment and unusual punishment" or "punishment that is both cruel and unusual". We sacrifice precision for brevity.

I wish she pulled a hammer out right then and there, put his hand on a table then said, 'for every time you don't answer one of my questions, or answer them in a way I feel isn't true, I'm going to smash one of your fingers.' Then we'd see how quick the fat barrel of tripe would change his tune.

Torture in an interrogation is punishment for not telling the questioner what they want to hear.

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.

It's official. The U.S. Constitution, the document which untold thousands have given their lives to protect, and has kept this country together for over two hundred years, is now nothing more than a piece of parchment. Antiquated and meaningless, disregarded by those to whom we have entrusted its interpretation. This is truly a sad day.

The constitution was killed by the patriot act, and no one noticed at the time.

Torture is illegal to any person, who is allied to a nation that upholds the Geneva Conventions, as I pointed to above. Cruel and Unusual punishment does not cover torture as an interrogation technique and the constitution has no verdict on this use of torture. (It should, but it doesn't.)

This deserves to be in the *fear channel!

Adding video to channels (Fear) - requested by blankfist.