Not sure how long this will stay up since I think Comedy Central pulls them after a day or two, but I found this funny...and then very, very disturbing. Torture is not punishment? And this is why it is not considered under US law as "cruel and unusual punishment"? WHAT THE FUCK? Why is this man among the most powerful legal minds in the country? He would probably be best fitted as special counsel to a Sith Lord. Ugh....shudder. I will see if I can track down the actual interview with Barbara Walters *correction--CBS interviewer that is not Barbara Watlers* so that we can view the statement in context.
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Scalia is a douche. He is an idiotic douche.
And btw, that's not Barbara Walters dude. That was on 6o Minutes (CBS). Even though the woman sorta resembled Barbara Walters a little bit, Mrs.Walters works for ABC, made famous by 20/20.
Ah...thank you for the correction. And yes, a douche. He also, as I recall, made the argument that if one begins from the standpoint that a person in custody might possess information that could stop a ticking bomb and then work backwards from there, torture can be legally (and morally) justified. Yet as argued in other posts on this blog, that "24"-esque scenario never happens, and real prevention is the result of tedious, detailed, accurate information intelligence gathering and investigation.
Dum, dum, dum, dum, dum-douche, dum, dum-douche....(thing Imperial March here).
Not to put myself in the same league as your perceived Sith Lord, but I'm not quite sure what you two are on about...
As far as the definition of "Cruel and Unusual Punishment" in the context of our legal system, that involves your sentencing after a trial, correct? In other words, you don't go to trial for committing a crime, and get sentenced to "20 years of torture!!! Muahahahah!!" *wrings hands evilly*
And in the frame of our debate on torture, we're talking about a poor form of interrogation technique that is used against high value prisoners taken during an armed conflict in Iraq, Afghanistan, and where-ever else.
Now, in everyday parlance, is it "cruel and unusual" to apply any kind of torture technique? Yes, of course it is. But that's not what she asked. And in the framework of our legal system, "Cruel and Unusual Punishment" refers to a very specific context. And she's asking a motherfuckin Supreme Court Justice this question. Of course he's going to answer it within the context of our legal framework. What did you expect? Would you really expect a different answer from any judge? That's like asking a programmer what a cache is, and calling him a douche bag when he quibbles with your answer.
Torture in the framwork of our past discussions is not a form of "Punishment" in our legal system any more than ANY kind of interrogation.
FFS...
Beck, I have to whole-heartedly disagree with you and Scalia both in the spirit and the intent of the law. Any justification one can make for such abuse is suspect if not absolutely wrong. Quibbling over the definition of punishment is ridiculous in this context. The reason this is of such importance is that by refining the definition of torture in a way that says torture is not punishment side-steps generally understood bans on the practice under the constitution. So, by this reasoning defining torture as non-punitive essentially makes it legal under the constitutional framework. By this reasoning, if torture is used to punish people it would not be constitutional, but using it with the intent of afflicting harm on a person for purely psychopathic enjoyment or for some other reason would be constitutionally supportable. That is just retarded and vile. Plus, Scalia's argument seems to suggest that torture is not used punitively. What else is it used for? For example, you have some suspect who does not provide the information you request, so you beat him, tear off his ear, water board him, threaten to rape his wife, shock his testicles with a car battery...What is the purpose? Punishment for not supplying the information you wanted. It is coercive. Coercion is punishment for refusing to cow to your demands. Therefore, in this context, torture is punitive and by definition punishment. Otherwise we would have to assume that torture is malicious deviance or somehow psychotic pleasure for the torturer. No one would make that argument, and I would think it would never be upheld under US law. But somehow Scalia can claim that a constitutional provision against cruel and inhuman punishment does not ban torture because torture is not punishment? That is seriously bending legal definitions in a legally unsupportable and immoral manner. Look at the context of the question too. Someone held in Abu Garib being tortured by US personnel. Are you really going to argue that their torture is not punitive? What else is it? If not punitive it is the sick enterprise of some psychotic and sadistic individual. Is that legally sanctioned? Hell no! So either way it is illegal.
Scalia is purposively bending long held interpretations of the constitution because he believes that state security trumps personal rights. He doesn't really have sold legal footing to stand on, so he bends the definition of something like "punishment" to make the use of torture justifiable. That is repugnant. There is no excuse for that.
Well, I can only say that I think you incorrect in the assumptions you are making, in so far that you are applying actions to definitions outside the context of the system. I'm not saying that torture isn't wrong, or that we should be engaged in such activities. Far from it. But saying that Torture is not Punishment isn't the same thing is saying that it's legal. That's a fallacy that just doesn't fly.
And you can fault me for quibbling over words, but the words we use to describe what is legal, what isn't, what's punishment, and what's an interrogation technique is extremely important. I don't doubt that the spirit of the law implies that torture should be illegal. But by what mechanism? I'm saying that within the frame of the common usage of these terms within the legal system, Waterboarding a suspect for information is not the same as serving a sentence in prison, picking up trash alongside the road, or wearing a transmitter on your leg. We're talking about apples and oranges.
But that quibble doesn't have any bearing on the legality/illegality of Torture. And saying so doesn't imply support for it. Yet you're absolutely prepared to vebally lynch anyone who says so, and that's just the wrong way to approach the argument.
Regardless of what you may think of Scalia, what he said is fundamentally correct. In U.S. Jurisprudence, Torture is not a punishment.
But if we want to close the gap, and make sure there are no loopholes in the legality, then our lawmakers need to do just that: absolutely, without ambiguities, define what constitutes torture, and pass laws that ban us from using it. Which we already have... but even so, they are obviously far too vague if the legality of something like Waterboarding can ever be argued.
Punishment:
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
Seems to me that if you want to quibble over words, you start with the definitions. The way I see it. 1 above doesn't help us here. 2a could easily be seen either way (for the simple fact that it is to extract information ad inflict harm when one does not get said information - ie retribution). 2b supports Beck (at least what I think Beck is saying). 3 supports Reed.
So...
From Wiki on the 8th Amendment:
"In Furman v. Georgia (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."
* The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
* "A severe punishment that is obviously inflicted in wholly arbitrary fashion."
* "A severe punishment that is clearly and totally rejected throughout society."
* "A severe punishment that is patently unnecessary."
Continuing, he wrote that he expected that no state would pass a law obviously violating any one of these principles, so court decisions regarding the Eighth Amendment would involve a "cumulative" analysis of the implication of each of the four principles."
But if that isn't convincing. As a signer of the Universal Declaration of Human Rights, are we not bound by international law to Article 5: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
Scalia is wrong. And this is just the case I present after thinking for just a few minutes and a few clicks of research.
Not to mention I am still unsure what the case for torture and punishment are. I mean, torture as you are laying it out Beck, is punishment without a trial. That's in the very least assault in our legal system.
Beck, I fully understand the importance of quibbling over definition, and I thin that here it matter a lot. The definitions that Brian posted and the court case he cites, I think, make it clear that torture is punishment. I ask the original question I proposed again: If you are not torturing someone to coerce them, to punish them for not complying with demands why are you doing it? Plus, I agree with Brian that confining punishment to post-trial actions committed by the state as a punitive measure is kind of silly. And as far as I can tell, there is no sound reasoning for that.
I am verbally lynching Scalia because as one of the most powerful legal persons in the country, his arbitrary definition of punishment opens the door to legally excuse torture by separating punishment from interrogation. The Constitution does not mention interrogation but it speaks explicitly about punishment. So, are we willing to believe that protection against torture by representatives of the US government is not a Constitutional right of all Americans? That is where this type of legally wiggling by Scalia seems to be going, and it makes me very, very uncomfortable.
Lastly, I find it problematic to push for such a fine distinction between interrogation techniques and punishment. It suggests that the spirit of the law, which I read as intending to protect people from inhumane treatment, is undermined by contextual and definitional issues over methods of information extraction and punitive retribution. That just does not sit well with me. What possible need is there to separate these in such a way if not to make the argument that there is no guaranteed protection against torture when it is used to extract information from suspects?
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