The Constitutional Law version of "a sphincter says what?"

For some reason, inbetween basketball games today, at one point I watched 60 minutes. Maybe I got whiff of second hand crack smoke or something, who knows. Anyway, they were interviewing Scalia about various topics — “originalism” (for the most part a crock of shit, since no two originalists seem to agree on much), the Bush v Gore decision (the ironic NYT analysis showing that if the votes were counted the way either of them wanted the other one would win should’ve deaded this as an issue. Kinda late to care now anyway), etcetera. The subject of torture came up, and he nonchalantly let fly not just a whopper, but a triple whopper with cheese. Bear witness to the Stupid, in its full glory:

“I don’t like torture,” Scalia says. “Although defining it is going to be a nice trick. But who’s in favor of it? Nobody. And we have a law against torture. But if the – everything that is hateful and odious is not covered by some provision of the Constitution,” he says.

“If someone’s in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression ‘cruel and unusual punishment,’ doesn’t that apply?” Stahl asks.

“No, No,” Scalia replies.

“Cruel and unusual punishment?” Stahl asks.

“To the contrary,” Scalia says. “Has anybody ever referred to torture as punishment? I don’t think so.”

“Well, I think if you are in custody, and you have a policeman who’s taken you into custody…,” Stahl says.

“And you say he’s punishing you?” Scalia asks.

“Sure,” Stahl replies.

What’s he punishing you for? You punish somebody…,” Scalia says.

“Well because he assumes you, one, either committed a crime…or that you know something that he wants to know,” Stahl says.

It’s the latter. And when he’s hurting you in order to get information from you…you don’t say he’s punishing you. What’s he punishing you for? He’s trying to extract…,” Scalia says.

“Because he thinks you are a terrorist and he’s going to beat the you-know-what out of you…,” Stahl replies.

“Anyway, that’s my view,” Scalia says. “And it happens to be correct.” (emphasis mine)

The unspoken acknowledgment here is that punishment is something you do to people who have been proven guilty. Sure, if there was some crime where the penalty was to have fire ants placed on your genitals, then you could have a case based on whether its cruel and unusual punishment. The way torture is actually talked about though is in applying it to extract information from a suspect, who by definition has not been proven guilty*. If anything, it is WORSE than cruel and unusual punishment; as an attempt to get self-incrimination by force, torture is pre-emptive punishment.

Seeing the paradox here in deliberately hurting people who haven’t been found guilty of anything, and thus rejecting it, is what separates us from authoritarian regimes. Why do I realize this and not Scalia?

(* – As someone who staunchly opposes the entire process by which we reached this point in history, I’d be the wrong person to bark at with “what would you do?” comments, or spewings of “KSM was tortured, didn’t that help?” For one, my 1st answer would be “I’d not occupy and manipulate the middle east for 60 years and expect the people there to smile and take it”, and my second would be “By that logic you should be promoting that tactic for domestic enforcement, give me a reason you don’t other than a] thinking you can’t get away with it yet or b] “but OMG scary mooslims!””. If you sincerely want a view on the LEGAL question, context free, then fine, here goes: technically, once they ADMIT that they are not recognized combatants, then you can yank their fingernails and then shoot them in the head, and based on my admittedly slight understanding of Geneva you wouldn’t be that far off the line. But this is not a context-free world, we are not knights in shining armor, they are not inhuman Terminators with turbans, and philosophically the Geneva Convention, the UN, the army field manual & the ICC are about as relevant to me as who led the MLB in home runs in 1979. The only questions that matter involve whether there’s anything left worth defending if it takes committing atrocities to do so, and how far things have to go before principled, open anti-imperialism goes mainstream.)

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About b-psycho

Left-libertarian blogger & occasional musician.
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