incredulous. perhaps it’s not explicit to an originalist, but torture could easily be defined as punishment for witholding information.

Phokus: It could also be considered Cruel. The CIA, under oath, would acknowledge that torturing only brings about ‘actionable’ intelligence slightly less than 50% of the time. When is someone who condones torture going to address that end of it? What about the other half of the time when we cruelly torture somebody who’s innocent. All we do is create another REAL enemy, not one that’s a figment of our imagination……

Combined with that BS about voter ID, this does not bode well for the future of mankind.

I believe that falls under the heading of Facism.

“Of course we’re not ‘punishing’ you because it was not our INTENT to punish you. What’s that? It hurts? Of course it hurts. It’s SUPPOSED to hurt. But don’t think of it as punishment.”

What’s next? God’s on our side?

(Merkwurdigliebe)

Scalia is treading a fine line…I believe he’s interpreting “punishment” as in punishment for a specific act…torture is usually to obtain something, rather than as a punishment for something (which there are laws against)

perhaps Scalia, as a hardcore strict constructionist, simply doesnt want the Constitution to be more broadly implied into other areas that it necesarily should not go…

lets see how this one plays out

somebody get a 1789 dictionary and check it out

Scalia is not treading a fine line, Scalia is an idiot.

If an inmate is being tortured the inmate is being punished for not telling the torturer what he wants to hear.

Really not that hard to understand. How did Scalia get on the court anyway? Are all Italians this stupid?

This reminds me of an old saying where I come from…”Poor people are never the first to be seated at the opera, but they sure do know how to fine a good catfish supper.”

This is when you pray there really is such a thing as karma.

(Merkwurdigliebe)

Sure hellooo

I’ll defer to your obvious years of constitutional scholarship and knowledge of dense, legalese verbiage (Which is what the heart of this issue is)

remember when dealing with the legal system, the words “punishment” and “torture” are not synonymous, like “libel” and “slander”

but, due to your obvious knowledge of the Constitution, which trumps Scalia’s, one supposes, you must have known this

Merkwurdigliebe,

I doubt my knowledge of the Constitution trumps Scalia’s but it sure trumps yours: torture is not mentioned in the Constitution.

And actually “libel” and “slander” are considered different (slander classically refers to spoken comments while libel refers to other communication whether it be written, images, etc…) We could have an exceedingly boring debate on whether or not they’re synonyms but what they do have in common is that they’re both articulations of a false claim, expressively stated or implied to be factual, that may harm the reputation of an individual, product, group, government or nation.

Given that definition it shouldn’t be hard for you to realize that my calling Scalia was not slander: it is not false to say that Scalia is an idiot because he said this: “When he’s hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?”

Again he is punishing you for not telling him what he wants to hear. Idiot.

The truth Merkwurdigliebe, is that YOU are guilty of libel for implying that I am guilty of both slander and libel because it is not true that I have committed BOTH (I haven’t even committed one.) This shouldn’t be too hard for you to understand but you don’t seem that bright so this may take awhile.

Scalimerk: Is punishment torture? If torture is not punishment, then what is torture? Legalese be damned guy. Take a stand. You certainly take a stance when it comes to us getting off oil or not. Take a stance here.

Ofcourse torture is punishment. What the hell else could it be? It’s definitely not a reward.

(Merkwurdigliebe)

I’m merely arguing for legalese definition’s sake

torture, no it should not be used, but to me torture is shoving bamboo under fingernails, attaching electrodes to genitalia, being beaten to death with rubber radiator hoses, burned with oil, being bled to death, starved, etc

i’m up in the air on waterboarding, but the more i learn about it, the more i dont like it, but most other “coercive interrogation” techniques, such as sleep deprivation and temperature change should be left in…my view is that with the drugs availabe today, there should be some sort of scientific alternative to beating someone for info, but some coercive interrogation has given up info every time its been used on high profile targets (Khalid Sheik Mohammed is one example)…pragmatically, it would be foolish to get rid of some forms of coercive interrogation, but they should by all means be limited as a last resort

as for Hellooo– I never accused you of libel…i used them as an example of legal verbiage…in law terms “punishment” and “torture” are not synonymous, just as “slander” and “libel” arent, the average layman uses them with way too much frequency…i didnt accuse you of anything, other than being snarky

again, the legal distinction would seem to be that punishment is for something “bad” you have done, you break a law, you suffer a punitive recourse…torture can be inflicted for little or no reason at all, but is usually for info gathering (they’re not torturing you to punish YOU, the want what you know, and torture is an expedient way to get it)

Merky: What about the other half the time when the ‘coercive techniques’ yield zero actionable intelligence? That doesn’t matter?

If torture is not punishment, then it must be either a gift, request, payment, or reward. How in the hell can you call it anything other than that? It’s a harmful, physical act ‘given’ to someone to extract information. What are they ‘giving’ them? I guess, it must be a gift………..

Misleading headline. Scalia’s point is that torture is not “punishment” under the meaning of the Eighth Amendment, because it isn’t a legal sanction for criminal acts. In other words, torture is not a form of punishment meted out under the criminal law.

He is NOT saying that it isn’t “cruel and unusual”.

Big difference.

Here, Scalia is only being consistent, following the logic in Thomas’s dissent in Hudson v. McMillian (which Scalia joined).

Let’s put this into legal context. The people being tortured are not GUILTY of anything. They have not been accorded a trial by their peers where they’ve been found guilty beyond a shadow of a doubt. (And please don’t raise citizenship issues, implying that only Americans deserve fair treatment.)

These people have been accused, mostly by associated, and are being PUNISHED for their association. If it walks like a duck and quacks like a duck, guess what, it’s a duck.

David Souter, “the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise.”

Dennis, you’re confusing Scalia’s comments on the Eighth Amendment with the voter ID case Crawford v. Marion County Election Board.

They aren’t related.

(Merkwurdigliebe)

Coach– Again, I said that such techniques should be limited and used only as a last resort…pragmatically, it would be foolish not to have them in our quiver, but I would rather err in saving American lives than anything else

Give the detainees a fair trial or send them home. Impeach Scalia!

Is anyone surprised by this? Seriously? I mean, I should think we always knew Scalia was a monster. This is just more proof of that.

U.S.,

Senior moment, ’scuse.

#%#&~!@#$% Proxy Errors.

Uhm Hmm!!If Someone Does It To Our Guys We Scream Bloody Murder!!
If we do It To Them,We Call It”Business as Usual!!”.
FYI:France;England; Canada;Germany;Don’t Bitch Too Much!!
You Guys are Equally Guilty!!

You Know,I Think It’s About Time we Replace Our Current Court with Judge Marilyn Milian;Judge Maria LOpez;Judge Alex Ferrer;Judge Joe Brown;Judge Judith Sheinlin;Judge Greg Mathis and Judge Glenda Hatchett!!
All The Cases Would Be Heard and Settled In Sixty Minutes,Not Counting station Breaks!!

Merkwurdigliebe,

You wrote:
“(they’re not torturing you to punish YOU, the want what you know, and torture is an expedient way to get it)”

No. Torture is punishment for not telling the torturer what he wants so that he may implicate you. Think of it this way: after you’ve given a torturer information, why would he continue torturing you? How does he know when to be satisfied his method has worked?

The answer is that he is not torturing you for information, he is torturing you to punish you for not telling him what he wants to hear, the only standard he can use to determine when he should stop.

U.S. Const. Amend. VIII wrote:

“In other words, torture is not a form of punishment meted out under the criminal law.”

That’s not what Scalia said. He said this: “When (a policeman) is hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?”

Again, how is it possible that policeman would know when information has been given to him that he may stop torturing? There is no way he could know. Therefore he is punishing you for not telling him what you need to to make him stop torturing you.

And either way, if torture is committed before trial as it necessarily has to for it not to be considered “punishment” for Scalia, it at least violates due process guaranteed in both the 5th and 14th Amendments. If those tortured are not brought to trial at all then their imprisonment while tortured violates article 1 (habeas corpus.) His entire original point was to argue that torture isn’t outlawed by the U.S. constitution and even though the Eighth Amendment outlaws it, if it hypothetically didn’t, article 1, 5 and 14 taken together do.

“That’s not what Scalia said.”

That’s what he meant. See Thomas’s dissent in Hudson v. McMillian. You’re just ignorant if you want to interprete what he says contrary to what he has said before – in writing – on the Eighth.

“Again, how is it possible that policeman would know when information has been given to him that he may stop torturing?”

Simple. Go out and check it. If he says the drugs are at A, and the police find drugs at A, the information is self-confirming, isn’t it?

Scalia ALSO says that torture violates other laws, and is illegal under the CAT and 18 USC 2340. It’s just not violative of the Eighth Amendment.

The rest of what you say is rubbish. “Not brought to trial” != torture. Habeas corpus is irrelevant, since Scalia never said anything about “not bringing someone to trial.” If you read his dissent in Hamdi, his position is actually very pro-Habeas, so you are only displaying your ignorance here.

His point is a very narrow one – regarding torture and the Eighth Amendment only.

If you had read the dissent in Hudson, you would have known this. In fact, the dissent says that conduct can be “criminal” and “tortious” without being violative of the Eight Amendment.

So it’s quite clear what logic he is referring to when speaks of the Eighth Amendment here. You’re just too ignorant of the case law to realize it.

For those too lazy or ignorant to look it up -

Hudson v. McMillian: “For generations, judges and commentators regarded the Eighth Amendment as *applying only to torturous punishments meted out by statutes or sentencing judges*, and not generally to any hardship that might befall a prisoner during incarceration.” (Thomas & Scalia, JJ., dissenting.)

So, it’s pretty clear what Scalia meant.

Torture is not “cruel and unusual punishment” under the meaning of the Eighth Amendment unless it is “punishment[] meted out by statutes or sentencing judges”.

Now, I understand that this is too subtle and nuanced a position for ignorant partisans to grasp – but “punishment” actually means something: legal sanctions meted out by the criminal law.

It doesn’t mean any and all brutality. In Ingraham v. Wright, the Supreme Court held that:

“Bail, fines, and punishment traditionally have been associated with the criminal process, and, by subjecting the three to parallel limitations, the text of the Amendment suggests an intention to limit the power of those entrusted with the *criminal law function of government*. An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those *convicted of crimes*.”

Again, we find that the Eighth Amendment only applies to punishments meted out under the criminal law. THAT is Scalia’s point.

Torture that is not “punishment” simply does not fall under the Eighth.

Thus, a person beaten excessively by federal agents while he is being apprehended may be able to file suit under the Federal Tort Claims Act, and government agents may indeed be criminally liable.

But you will find no case that says that the Eighth Amendment applies – simply because such a beating isn’t “punishment” dealt out by the criminal law.

As the Supreme Court has repeatedly held, the Eighth Amendment does not attach until AFTER conviction and sentencing.

Graham v. Connor: “the less protective Eighth Amendment standard applies ‘only after the State has complied with the constitutional guarantees traditionally associated with *criminal prosecutions*.’”

Torture is therefore not “cruel and unusual punishment” under the Eighth Amendment if it is not punishment meted out (per the dissent in Hudson) – or incidental to punishment meted out (per the majority opinion in Hudson) – by the criminal law.

This is the state of the law today. The mock outrage over Scalia’s comments stems from an embarrassing ignorance of Eighth Amendment law.

U.S.,

There’s an opening in the Justice Department since Yoo left. You might look into it.

You seem to revel in citing legalase to defend what is clearly a crime. You conveniently overlook common law. I’m sure scholars could cite the Bible, Koran and even the Ten Commandments to find rebuttals to your position.

Finally, how did the 8th Amendment get into this discussion? For sure Scalia didn’t cite it. At least not with the text we’ve been given. This is about right and wrong, good an bad. It’s revealing that Scalia, like so many attorneys, gets so wrapped up in ‘law,’ that he forgets human beings are involved. Perhaps that’s the real issue, he doesn’t see these people as human beings.

“…tell me why a hearse horse snickers
hauling a lawyer’s bones.”

Carl Sandburg

Dennis, the bible is not the law. I’ve cited numerous cases at common law – that is, actual case law – that show Scalia to be correct in his analysis.

And where did Scalia say that torture isn’t a crime? He has said that it *is* a crime.

It’s just not covered by the Eighth Amendment, anymore than it’s covered by the Second Amendment. This is an accurate statement of the law. It’s not a “defense” of torture.

“Cruel and unusual punishment” appears only in the 8th Amendment. The interviewer is asking in the context of constitutional law. What else could he be talking about but the 8th Amendment?

U.S.,

The interviewer ‘may’ have been citing the constitution although that phrase has received widespread popularity and only the user knows the aptness. Given it was directed to a sitting Supreme Court Justice, I suppose we can place it in a constitutional context.

Okay, I’ll give you the Bible if you’ll give me common law. You can’t cherry pick.

Reminds me of the politician who was criticized for being a liar, cheater, womanizer, embezzler and drunken gambler.

“I don’t gamble,” he responded.

Oh, I missed one point you made. That you cited Common Law, then you call it Case Law. I’m as far from being an attorney as you can get, but I don’t believe the two are the same.

Be that as it may, the debate has devolved. What we see is the Penthouse Perspective, judges ruling on ‘life’ matters without any sense of what it’s like in that ‘life.’ Judges, nay most of the legal community, are raised in a cocoon where they are isolated from reality or, better, insulated from it.

It’s my sense that Marshall and Holmes began with a sense of what was right and what was wrong and then proceeded to the Constitution to see how the matter was/is addressed.

The simplest litmus test of right v wrong is that we haven’t needed photo IDs for over 250 years, why do we need it now? And if you come up with an argument based on changing times, you’d better be prepared to overturn a whole host of Con decisions based on strict interpretations (i.e., automatic weapons).

Common law is synonymous with case law. Dude, you can’t even get the basics right. I don’t think it’s worth continuing this discussion.

I think I understand the semantics, I guess it’s correct.
But when then, is it not OK to torture? What if your being tortured just because your captors enjoy torturing. What if your being tortured because you joined a labor movement? That wouldn’t really be punishment they’re just trying to convince you to go back to work.
Idiots say there are only opinions.
Aristotle said truth is finite and here it is.

Torture is not punishment it is torture and it’s wrong.
Just as
Slavery is not employment it’s slavery and it’s wrong.

The authors of the constitution were obviously trying to protect
people from cruel and seditious practices.

If we did not have criminals in the White House we wouldn’t have
needed special legislation to protect them from the laws they had already violated.

I think I understand the semantics, I guess it’s correct.
But when then, is it not OK to torture? What if your being tortured
just because your captors enjoy torturing. What if your being tortured because you joined a labor movement? That wouldn’t really
be punishment they’re just trying to convince you to go back to work.

Idiots say there are only opinions.
Aristotle said truth is finite and here it is.

Torture is not punishment it is torture and it’s wrong.
Just as
Slavery is not employment it’s slavery and it’s wrong.

The authors of the constitution were obviously trying to protect
people from cruel and seditious practices.

If we did not have criminals in the white house we wouldn’t have
needed special legislation to protect them from the laws they had already violated.

I’m just wondering if the sarcastic remark that led off this thread wouldf have been said if Scalia had stated that there is no constitutional prohibition against murder.
That does not make murder or torturer justifiable acts. It means that federal or state laws are to cover the crime.

But if state law enforces torture as a consequence of being convicted of a crime, then the constitution speaks.

I’m not sure why this is so hard to understand.

murder is a cesation of the victims ability to pursue life, liberty and happiness. murder is implicitly forbidden within the constitution.

Torture is not a punishment for someone who is convicted, imprisonment in the midst of the hell that is the ‘correctional’ system or financial divestitude is the punishment.
it is a cohersion of information the questioner WANTS to hear in order to use to prosecute the victim or someone else, or to justify some action. Whether the information extracted is veridic or not is irrelevant to the questioner. he merely needs an affirmation of his beliefs and the ‘proof’ desired to justify their consequent actions. Invading a country for it’s oil perhaps.

“But if state law enforces torture as a consequence of being convicted of a crime, then the constitution speaks.

I’m not sure why this is so hard to understand. ”

It’s not hard to understand at all. What’s hard to understand is Scalia’s glibness in the face of simple calls for acknowledgment that torture is legally wrong, regardless of which portion of the constitution covers it or not.

This would not even be an issue if Scalia had prefaced his remarks by saying torture is always wrong and victims in this case have legal recourse, but technically that recourse doesn’t involve the 8th Amendment. The sad truth is that Scalia doesn’t want to believe the torture victims in the cases we’re talking about-those at Guantanamo, Black Sites, etc…-are entitled to legal recourse at all.

Does he know any better? Of course. Why is he acting contrary to the principles of the constitution? Scalia is a partisan defending members of his party from prosecution for the war crimes they committed and would not act the same way were a different political party responsible for those crimes. Allowing that partisanship to distort legal opinions to the degree he has is simply unacceptable from a Supreme Court justice. Scalia should be impeached.

(Jed Clampett)

What are the procedures that would be required to initiate impeachment of a supreme?

Is that even plausible?

In Justice Scalia’s mind, hurting someone does not mean you are “punishing” them. It is this detachment of reality that runs rampant throughout throughout the Bush Administration. If someone uses this twisted logic, you can usually ignore them and dismiss them. This crackpot, unfortunately, is a Chief Justice in our nation’s highest court.

While a product of the Reagan Administration, Scalia is prime example of the Bush Administration’s lack of reasoning and logic.

Too many of the posters in this thread cannot grasp that Scalia merely wants the VIIIth Amend. invoked for what it was designed, not as an additional tool — any tool! — to punish the Bush administration.

If you start invoking inapplicable rules of law to sanction repugnant behavior, you might as well have no rules at all. You sure you want that?