Of Course Scalia Is Right, Torture is not necessarily Punishment under the 8th Amendm

#1
OrangeEmpire

OrangeEmpire

The White Debonair
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#1
"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.

Scalia

Of course, he is right.

Thoughts?™
 
#2
#2
Scalia is almost always right. What happened in Abu Grahib wasn't torture (at least when the US was running it) and water boarding isn't torture either.

If you want to know what torture is, read "Bravo Two Zero" by Andy McNabb. He's a former Australian SAS trooper dropped behind enemy lines during the first Gulf War.
 
#4
#4
It all boils down to your personal definition of torture. I do not believe that waterboarding is torture. If we slap someone around I do not believe that is torture. If you beat someone to a pulp I would have to say that would be torture. Electrocution, burning would all be considered torture to me.
 
#5
#5
Saw an hour long interview with Scalia on the Tim Russert show.

Very interesting. One point he made about strict interpretation was that if the court finds "rights" in the Constitution that are not expressly stated, it reduces democracy since the court has deemed it settled rather than letting the people decide. More latitude is given to law makers to set the law which such a viewpoint.
 
#6
#6
TennNC said:
OE - are you serious?
Click to expand...

Where would you say his (Scalia's) legal argument is wrong?

Words have specific meanings in laws. There may be other grounds in the law or the Constitution dealing with torture but claiming torture is punishment is stretching the meaning of both words.

His comments also don't preclude laws banning torture.
 
#7
#7
volinbham said:
Where would you say his (Scalia's) legal argument is wrong?

Words have specific meanings in laws. There may be other grounds in the law or the Constitution dealing with torture but claiming torture is punishment is stretching the meaning of both words.

His comments also don't preclude laws banning torture.
Click to expand...

Isn't that b/c judges (like Scalia) interpret the meanings of the words in those laws?

Help me understand how torture is not a form of punishment.

(Taken from Webster's)

Torture (v).
1: to cause intense suffering to : torment
2 : to punish or coerce by inflicting excruciating pain

Punish (v)
1 a: to impose a penalty on for a fault, offense, or violation b: to inflict a penalty for the commission of (an offense) in retribution or retaliation
2 a: to deal with roughly or harshly b: to inflict injury on

Now, whether or not a specific technique is considered "torture" seems debatable, but according to the generally agreed upon definitions of those words, torture is a type of punishment. In the case of POWs or suspects, the "crime" might be bogus (you're the enemy, you "might" have information we need, etc.), but it's still punishing them.
 
#8
#8
Here's a piece that looks at the legal arguments of the issue.

The Weekly Standard

I've seen other pieces trashing Scalia - suggesting he says there are not Constitutional protections against torture. Having seen Scalia talk, I would assume he is making the narrow legal argument suggested in the above article - at least with regard to torture and the 8th amendment.
 
#9
#9
TennNC said:
Isn't that b/c judges (like Scalia) interpret the meanings of the words in those laws?

Help me understand how torture is not a form of punishment.

(Taken from Webster's)

Torture (v).
1: to cause intense suffering to : torment
2 : to punish or coerce by inflicting excruciating pain

Punish (v)
1 a: to impose a penalty on for a fault, offense, or violation b: to inflict a penalty for the commission of (an offense) in retribution or retaliation
2 a: to deal with roughly or harshly b: to inflict injury on

Now, whether or not a specific technique is considered "torture" seems debatable, but according to the generally agreed upon definitions of those words, torture is a type of punishment. In the case of POWs or suspects, the "crime" might be bogus (you're the enemy, you "might" have information we need, etc.), but it's still punishing them.
Click to expand...

Again, I'm simply looking at this from a legal perspective.

The question deals with 2 key issues:

1. Does the 8th amendment deal with pre-conviction treatment or is that better addressed by the 5th amendment and

2. Does the 8th amendment pertain to non-U.S. citizens?

I don't know the answer to either but these are clearly constitutional law questions. Scalia's argument may be a technical one.
 
#11
#11
TennNC said:
I know you're doing the responsible thing, looking at all sides and interpreting Scalia's remarks in a legal sense. It's just that when I hear Scalia say something like that, it contradicts my understanding of common sense.

I have this reaction, more or less:

Grand Theft Semantics | The Daily Show | Comedy Central
Click to expand...

No doubt what that's why we have the Supreme Court - they interpret the law, not common sense.

I'm sure his comments will be law school fodder for quite a while.
 
#13
#13
I think punishment MUST be a direct reaction to X action taken by the other party. The extent, even if tortuous in nature, does not necessarily fit the word torture. If someone is caught doing X act and the people doing the catching tell them they have to do 10 push-ups that's the punishment. If instead they are strung up and burned with hot irons that's the punishment. You can argue the latter is "cruel and unusual" but it's punishment. If you want to find out something from somebody (they've DONE nothing but you want to know something) and just tickle them until they tell you it fits the definition of torture more closely than the above use of hot irons does, at least as I understand the meaning of the words. Moreover, you can torture a complete stranger you know absolutely nothing about but cannot punish them. Punish them for what?
 
#14
#14
volinbham said:
Again, I'm simply looking at this from a legal perspective.

The question deals with 2 key issues:

1. Does the 8th amendment deal with pre-conviction treatment or is that better addressed by the 5th amendment and

2. Does the 8th amendment pertain to non-U.S. citizens?

I don't know the answer to either but these are clearly constitutional law questions. Scalia's argument may be a technical one.
Click to expand...

:hi:
 
#17
#17
Torture is wrong... if we just reason with someone who wants to kill you, they'll come around and tell you what you want to know.
 
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