Scalia: Constitution Doesn't Outlaw Torture

[Kelvin Mace]

Source: BBC News

Just heard an interview with Scalia on BBC News (local NPR affiliate), and Scalia says the constitution doesn't prohibit torture. He says that the prohibition against "cruel and unusual punishment" certainly doesn't mean you can't inflict pain on someone to get them to divulge critical information. He then discusses the "ticking bomb" scenario.

I am trying to find a link to the story at the BBC site, but it is not posted yet. I THINK the interview is posted here: http://news.bbc.co.uk/2/hi/programmes/law_in_action/7238665.stm# , but since I don't have Real Player, I can't listen to the interview.

Update Scalia is paraphrased in the story:

Justice Scalia says that it is far from clear that torture is unconstitutional and says that it may be legal to "smack in the face" if the suspect is concealing information which could endanger the public..

In the interview, he seems quite contemptuous of the idea that you can't torture someone. I wish they would post a transcript.


Read more: http://news.bbc.co.uk/2/hi/programmes/law_in_action/7238665.stm#

---

The "ticking bomb" scenario is utter bullshit.

First, if I am a terrorist and I have such information, I know that the longer I hold out, the closer I get to making you pay for what you are doing to me. I will lie repeatedly until the bomb goes off and then the issue is moot. The more pain you inflict, the more determined I become.

Second, if you really DID ever come across the above scenario and were charged with a crime, it is highly unlikely that any jury would convict you. Legalizing torture means that it will be used across the board. The point of legalizing torture is not to protect the citizens of this country, but an excuse to obtain a legal weapon to torture people we don't like and extract "useful" confessions.

Justice (now there's a fucking ironic title) Scalia is morally bankrupt and should be impeached. Not for his stated views on torture, but for a variety of felonies that I believe that I, in the interest of "protecting America" (and with the help of a few inexpensive dental instruments", could persuade him to admit.

[HereSince1628]

1. Maybe it doesn't. But US treaty law does.

And I'd love to see about 4 dozen GOP idiotlogs defending themselves in the World Court over war crimes resulting from violations to said agreements.

And Scalia is one of the beetle-browed cons that masturbates to torture pics who should be a defendant.

[Kelvin Mace]

8. Here's a question for our Staunch Catholic Conservative

A pregnant woman knows the location of a nuclear device in new York City. Torturing her will kill her unborn child. Do you torture?

[shain from kane]

22. That's it. As a Catholic, he's an Inquisition denier. He doesn't think the Inquisitors did anything

wrong.

[juno jones]

52. I remember hearing he's opus dei,

one of those who thinks the inquisition didn't go far enough, and like our current pope, thinks galileo deserved what he got, the bloody heretic.

[unkachuck]

97. I'm sure....

....this scummy low-life piece of human waste posing as a supreme court justice, would view the death of the unborn child as 'collateral damage'....

[zabet]

34. Laws of Armed Conflict

state the illegality of torture.

[coalition_unwilling]

53. Weren't some Nazi judges on the high court sentenced for

war crimes at Nuremburg? If so, Scalia is keeping some mighty fine company. After all, Germany's Enabling Act of 1933 made much of what Hitler did "legal." But it didn't make it right or just.

[babydollhead]

2. cringe cringe...why do these guys represent The People?

I am so sick of this.

[shain from kane]

3. Well, it certainly doesn't outlaw stupidity!

[Birthmark]

4. Scalia's a vicious imbecile...

...with no understanding of the Constitution. The correct Constitutional outlook would be to discern from where in the Constitution the government derives IT'S right to torture. Instead, the addled Scalia looks for the individual's right NOT to be tortured. Typical for him...and many other "strict constructionists." Dishonest pinheads, one and all.

[saigon68]

50. He's a real Dirt Bag

[appal_jack]

66. spot-on Birthmark!!!

I think that you have neatly summarized one of the most fundamental and important, yet most-often overlooked, tenets of Constitutional governance. How can we spread this meme that the US Constitution honors the expansive, natural, inalienable rights of the People, and narrowly defines and constrains the limited powers of government?

A widespread understanding across the USA of this simple fact would create a vastly different political landscape. Instead, we have war-criminal-Scalia using his robes and taxpayer-funded salary to hoodwink us. This is more than an academic or historical problem.

-app

[Birthmark]

74. We need some of these TV Constitutional Scholars

...to talk about the Tenth Amendment every time that they get their well-coiffed mugs on TV. If that simple Amendment begins taking front and center, then a good deal of the nonsense of the last fifty years will begin to sort itself out rapidly.

We currently have the exact atmosphere that some of those Founders who were opposed to a Bill of Rights feared --that the listed Rights would become the only Rights recognized.

[Thothmes]

89. Believe you mean the 9th Amendment

The 10th deals with states rights. Not unenumerated rights.

[Birthmark]

92. The Tenth deals with both.

But you're right. I should have included the Ninth Amendment as well. Thanks.

[indepat]

87. What a shame to have confirmed someone such as Scalia who should volunteer to allow himself to

be administered the torture he sees as permissible.

[davekriss]

100. Here's a quote from a while back

Mere factual innocence is no reason not to carry out a death sentence properly reached.
-- Supreme Court Justice Antonin Scalia, First Clinically Insane Member of the Supreme Court

[Supersedeas]

103. he has quite a legacy -- that one should never be forgotten

[bowens43]

5. So , in this luntics twisted mind

torture is not cruel? Or does he see it as not being punishment?

Disgusting

[RaleighNCDUer]

21. He's being selective in his definition.

My Websters defines Punish as 1)...pain, loss, or suffering for a crime or wrongdoing 2) ...penanty on a wrongdoer for an offense 3) treat harshly or injuriously

He sees punishment as being response for wrongdoing, i.e., retribution. Torture to extract information obviously does not fit that definition. Of course, the 3rd definition DOES, but it doesn't count.

[Cant trust em]

44. If you use that argument

they'll probably try to call Webster's Dictionary liberal media.

[Bear down under]

25. Cruel, yes...

... but also becoming increasingly usual.

And what is banned by the US Constitution is not cruel OR unusual punishment but cruel AND unusual punishment. It might be possible to hold that a particular punishment has to be both cruel and unusual to be forbidden, and I believe this is one of the arguments that advocates of capital punishment use. "We've always done it, therefore it ain't unusual, therefore it ain't illegal".

The Universal Declaration of Human Rights (clause 5) goes further, prohibiting "torture or cruel, unusual or degrading punishments". Note, it says OR not AND.

Now, the US Constitution also provides that international treaties entered into by the US rank with the Constitution as "the supreme law of the land", and the Universal Declaration was assented to by the US back in 1948: so it seems Mr Scalia is skating on rather thin ice.

[donkeyotay]

69. Scalia is through the ice

As you said, the Constitution makes treaties part of our law. Scalia, duck-hunting friend of Cheney whom he helped to the vp's office instead of recusing himself, should be impeached.

[jpak]

6. How cruel and unusual from Fat Tony - but not unexpected

as he is an asshole

[jpak]

7. ack - dupe self delete

n/t

[endarkenment]

9. Scalia is a fascist liar.

See if the following paragraph rings a bell:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

[Kelvin Mace]

13. DELETE DUPE

[Kelvin Mace]

14. What Scalia sees when he reads it

We can't stick someone in jail on a whim unless we claim that a military court has jurisdiction. Once we move it to a military court, we can do whatever the Hell we want. Yaddah, yaddah, yaddah, can't make him rat on himself, unless we get him into a military court, and then the actual part of this amendment I take any heed of, nor shall private property be taken for public use without just compensation.

Private property bitches!

[donkeyotay]

70. Another good point. Torture would compel one to be a witness against oneself. nt

Not to mention that only on some stupid 24 fantasy does the justifying scenario make any sense to anyone with any sense. If you're a god awful terrist, about to accomplish your mission, well, all you'd have to do is hold out or give wrong information. Really, I think we've gotten a lot of wrong information, and I wouldn't be surprised if we don't eventually find out the color coded terra alerts - remember them?- resulted from torture.

[Kelvin Mace]

10. Can someone with Real Player

check out the interview?

[foxer]

37. Why don't you download realplayer, it's free

[Kelvin Mace]

49. Several reasons

It loads tons of crap on your computer. My existing media players work fine, and every time you update one, it breaks the others.

[LynnTheDem]

11. So let's just stand tall & proud and say

WE TORTURE PEOPLE!

Torture is GOOD when WE do it and only BAD when Saddam Hussein did it!

Let's rip off prisoners' fingernails and attach wires to the genitals and and "recycle" glass bottles!

And other nations can do the same to any American soldiers or civilians they've captured, and we won't mind!

TORTURE IS GOOD!!!

Coz TORTURE IS AS AMERICAN AS APPLE PIE!

USA! USA! USA!

NOT MY AMERICA.

[EmperorHasNoClothes]

12. Does the Constitution outlaw smacking a supreme court justice upside the head?

Really, can he be any more of a shill for Bush?

[Sal Minella]

27. Hmm. Since the safety and general welfare of the American people would be greatly enhanced if

Fat Tony stepped down from the S.C. bench, maybe a few well-trained folks could persuade him to agree to step down. Just a thought.

[Brigid]

15. Has Scalia never heard of . . .

the ban on "cruel and unusual punishment?" And there are no exceptions noted there, including a so-called "ticking bomb" scenario. What, did he sleep through his Constitutional Law classes? :wtf:

[Kelvin Mace]

19. Well, Mr. Strict Originalist says:

"The death penalty, he argues, is not covered by the 8th Amendment's ban on "cruel and unusual punishment."

He points out that at the time the Constitution was written, execution was the only penalty for felonies, and therefore cannot be excluded by the amendment"

At the point in time the Constitution was written, people owned slave, hanged folk for "witchcraft", didn't allow most people to vote, considered woman the property of men, and allowed children to work in mines, factories and farms sixteen hours a day.

[LiberalFighter]

20. Scalia is a degenerate inflicted with syphillis with one testicle stuck up his colon

[Hosnon]

88. The Ist Amendment is categorical, as is the ban on cruel and unusual punishment.

But it is not in any way exceptional to see limits on Ist Amendment rights. Most constitutional principles undergo a balancing test, with the "importance" of the right (e.g., high, medium, low) determining how necessary the abridgment must be to be constitutional.

I don't know (but would guess) that the ban on cruel and unusual punishment works much the same way. That is, in extremis, cruel and unusual punishment may not be unconstitutional.

[fasttense]

16. Torture is not used to get information.

It is used to terrorize the population. It seems the dancing supreme called Scalia is all in favor of terrorists.

[rateyes]

17. What a dumbass. Sure, it does. The Constitution explicitly states

that all ratified treaties are part of the supreme law of the land. Torture is outlawed by treaty. It is also outlawed by statutes that are not in violation of the Constitution.

Scalia should never have been confirmed.

[fascisthunter]

59. Scalia is nothing but a fascist Liar... you nailed it

[Brigid]

18. Let's waterboard Scalia.

That ought to change his mind about torture real quick.

[navarth]

30. let's taze him, bro n/t

[LiberalFighter]

23. Their security detail needs to be reduced to...

his home
his work place
in between his home and work place


Anything else they have to pay.

[alfredo]

24. The Constitution doesn't outlaw same sex marriage or evolution.

[madrchsod]

26. roberts is worse...

tony is not as conservative as roberts. roberts has already started turning this country back to the late 1800`s.

[coalition_unwilling]

61. "Back to the late 1800's"?? Try back to pre-1648 (when the

Peace of Westphalia ended the Thirty Years War and established the basis of modern international relations).

[Dinger]

28. Impeach That Monster

Gaoddamn, can this be done?

[stubtoe]

31. It's my impression that SC judges can be impeached.

This one needs to be indicted as well since he can't seem to understand what the LAW says.

[Wizard777]

62. The Justices have the lowest burden of all impeachments.

They don't even have to commit a crime. They can be removed from the bench simply for misbehaving.

Article III, Section 1; "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour,"

[Thothmes]

90. Unfortunately

Judicial decisions are in an of themselves not subject to impeachment unless you have good evidence that the decision was reached for personal gain, bribery or similar circumstance.

[nolabels]

106. Fortunately this was not a judicial ruling

Just somebody showing how much of ass they really are :shrug:

[Baby Snooks]

29. This surprises anyone?

The man is a religious Nazi. Always has been, always will be.

[stubtoe]

32. One more rec, anyone??

[endarkenment]

33. done nt.

[boricua79]

35. bullshit Scalia,

you know damned well that torture, in anyone eyes, would be cruel. Even the most dastardly man (like Saddam Hussein), if his torture would be shown on American televisions, would garner human sympathy. Hell, even just watching how afraid he was during his hanging was very saddening to me, despite the fact that he was such a murderer.

Unless you're a stone cold robot, seeing another person be tortured is cruel and unusual punishment.

The Founders wanted it banned in this country. They didn't want a repeat of what Europe used to do.

[smoogatz]

36. What a loathesome toad Scalia is.

What fucking country is this, anyway?

[Baby Snooks]

54. What country is this?

Nazi Germany. Complete with a complicit pope. Are the other four Catholic justices also Opus Dei?

[Torn_Scorned_Ignored]

38. So, the way I keep reading this

is either you are protected by International Humanitarian Law or/and the Constitution if you are a prisoner. Kind of confusing these Treaties and International Laws and Supreme Court interpretations.

Especially I imagine if you are not charged with a crime and not a prisoner, with violations of both International Humanitarian Law and the US Constitution occurring as a US citizen.

[nealmhughes]

39. Mr. Scofflia ignores a portion of the Constitution: treaties and laws Congress pass and are affirmed

by the President or a veto or pocket veto overriden by the Senate, then they, like the Constitution, itself, are the "supreme law of the land."

Additionally, all rights not reserved to the government are kept by the people.

One wishes that Tom Paine could arise from the grave, about 40 years old and somehow completly aware of all that has transpired in the 200 years or so since his death and then give Hon. Mr. Justice Scofflia a new pamphlet and preach revolution to Fat Tony and the usual suspects of Scaife, Kristol, Bush, Cheney, etc.

[FATCATs]

40. Scalia is a political hack, FDR had the

Answer to a SCOTUS that became too political.

Perhaps we need a repeat of that history lesson.

[ConcernedCanuk]

41. Scalia is dead on, again!!

.
.
.

[Javaman]

42. Welcome to the American Inquisition. nt

[Connonym]

43. I suggest we try these tactics on Scalia

and see if he'll tell us what the fuck really happened with the 2000 elections. I bet we could get it out of him and since it's not unconstitutional well wtf? right?

[End Of The Road]

45. torture, by its very definition

is "cruel." With this administration, it's just not "unusual" anymore.

[Demeter]

46. Scalia's Impeached Himself--Congress Must Follow Through

the next President must make it a priority to bring charges. Ooooh! Maybe John Edwards as Attorney General gets to dismantle the Supreme 5!

[Demeter]

47. Scalia's Impeached Himself--Congress Must Follow Through

the next President must make it a priority to bring charges. Ooooh! Maybe John Edwards as Attorney General gets to dismantle the Supreme 5!

[bamacrat]

48. Shouldn't it?

We tried and executed 6 Japanese officers for waterboarding American troops after WW2. We condemned the notion that "Al-Qieda" may have done it to Americans in Iraq. Yet, we admitted to doing it on three separate occasions. This should be against the law, and all those who authorized it or knew of its happening should be tried accordingly.

[Kelvin Mace]

51. I don't know that we executed the Japanese

for waterboarding, but we did try them for war crimes. We also prosecuted some American soldiers for it in Vietnam.

It is vile, and perfectly indicative of the moral decay in the soul of conservatives.

[coalition_unwilling]

65. N.B. We also prosecuted Nazi judges after the fall of the Third Reich -n/t

[Thothmes]

91. Which 6 Japanese officers and which of some 2000

post war crimes trials were they specifically convicted of water boarding American troops.

[daleo]

55. I rather doubt that the founding fathers were ok with torture

Scalia is a tortured soul.

[rcole11]

57. Hypocrites

I find it hard to believe that the conservatives can hold up John McCain for withstanding Vietnamese torture during the war and not leaving his countrymen on one hand. While on the other hand find nothing wrong with the continued torture of individuals they deem as "war criminals." How is this man a hero if conservatives see nothing wrong with the process?
Their hypocrisy knows no bounds.

[ReformedChris]

56. Wow, he is such a "Strict Constructionist" that follows the Founders Constitutional Ideals...

:sarcasm:

Is this what a justice of the Supreme Court is supposed to advocate? Unbelievable for him to say this, but not very surprising. The good news is that the Reagan/Bush appointees will be running out of steam sooner rather then later. Hopefully HRC or Obama will stock the court with real Justices that interpret the Constitution the way it was meant to be.

[fascisthunter]

58. Scalia is a Traitor to this Country

[9119495]

60. Screw GWB, impeach Scalia.

[yellowcanine]

64. On the first part, no thank you. On the second part, yes, let's.

[yellowcanine]

63. What about "due process?" You aren't supposed to punish anyone at all if you haven't established

guilt. No "ticking bomb" exceptions either. And if you are going to claim authority as CIC in time of war, we have international treaties that the U.S. has signed and is bound to under the Constitution. Torture that, Scalia.

[mhatrw]

67. Scalia is right. The Constitution does not outlaw torture.

However, the Bill of Rights does so perfectly explicitly.

Scalia is not a strict constructionist but instead a hypocritical opportunist who hides behind strict construction in order to promote fascism.

[lebkuchen]

68. That says it all about the state of the US right now

ass-backward, lost and going down.

[Rockerdem]

71. Scalia is probably right

The Founders were OK with slavery, weren't they? So torture was child's play by comparison, given the times. We are transferring our present values back into time.

sarcasm off

[Barrett808]

72. "I think there's just something sick about making entertainment out of real people's legal trouble"

But there's nothing sick about administrative torture, eh Tony?

[druidity33]

73. link here

from BBC News:

http://news.bbc.co.uk/2/hi/americas/7239748.stm

same interview, i think.

[Jack Rabbit]

75. Only a constitutional originalist can up with nonsense like that.

Churchill once said something to the effect of "the idea is so stupid only an intellectual could have thought of it."

[aquart]

76. Aww, he's parsing "punishment."

BTW, Bic cigarette lighters are also cheap. As are toothpicks which can be inserted under fingernails.

And never forget the potential of duct tape.

[druidity33]

77. US Judge Steps Into Torture Row

Source: BBC News

"You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and therefore it's no good'," he said in a rare interview.

snip.

In the interview with the Law in Action programme on BBC Radio 4, he said it was "extraordinary" to assume that the ban on "cruel and unusual punishment" - the US Constitution's Eighth Amendment - also applied to "so-called" torture.

"To begin with the constitution... is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime." Justice Scalia argued that courts could take stronger measures when a witness refused to answer questions.

"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?" he asked.

snip.


Read more: http://news.bbc.co.uk/2/hi/americas/7239748.stm

---

So, if you're not being punished for a crime, torture is ok?

Josh is talking about this at TPM.

[Tempest]

78. As someone in another thread on this said

Torture is illegal in America.

The Constitution specifically states treaties signed by the U.S. are legally binding.

The U.S. signed treaties that forbid torture.

[truthisfreedom]

81. But that logic is lost on Tony.

He's a "smack 'em in the face before you do anything else" kinda guy.

Look, despite the Bruce Willis swaggering bravado of his position, what he's ignoring is the numerous, very convincing studies that torture does NOT result in useful information. The cases that are being examined are of people being waterboarded, not "smacked in the face." If the punishment phase of the justice system comes first, according to Tony, maybe we should be waterboarding justices before they are appointed to find out their political positions before they get in power and start screwing up our country and the interpretation of the Constitution.

[shraby]

79. Time for the powers that be to face the

fact that Scalia is getting senile.

[druidity33]

80. can we recall

a justice from SCOTUS? Is there an impeachment provision for a lifetime appointee?

[Judi Lynn]

82. I wonder if he and Cheney talked this over together, as they have before, when they kept

company together on hunting junkets prior to big rulings in the Court which involved the White House interests.

Surely you recall that either he or Cheney treated the other one to a weekend's festivities during _{Bush 43's} first term.

It's torture knowing Scalia's there for life. He's truly hideous.

http://img.photobucket.com.nyud.net:8090/albums/v233/eastwinger/scalia.jpg

[druidity33]

83. in 3 words

you truly summed him up:

"He's truly hideous."

and that picture....


:grr:

[pdefalla]

85. When torture issues come up in the Supreme Court

Scalia should recuse himself, since he has publicly announced his personal opinion

[JerseygirlCT]

84. I guess it's not "unusual" if we do a lot of it, right?

He's vile.

[Hosnon]

86. I'll give him the benefit of the doubt as a Justice and assume that he is speaking as

a jurist. In law, it is not earth-shattering to state that something is not clear, even a controversial subject.

[Kelvin Mace]

93. Excuse me, I beg to differ,

This is not some amusing little academic discussion amongst law students and a professor, this is a Supreme Court Justice of the United States talking about issues which will have a DIRECT impact on people's lives. This is a Supreme Court Justice of the United States telling us how he will rule on a torture case when it comes before him. This is not just a violation of judicial ethics, this is a raping of judicial ethics.

The Constitution is quite clear on the matter.

While Scalia can twist the Eighth Amendment as much as he wants, international treaties ARE the supreme law of the land once ratified. Torture is illegal, PERIOD.

People are dying in US custody. People are being tortured to the point of insanity in US custody. This is real. The blood is on OUR hands if we dismiss this as an academic discussion.

[Hosnon]

94. I'm not convinced he's telling us how he'd rule on a torture case. And if he is,

he is inching closer and closer having to recuse himself.

I am very shy about saying the Constitution is clear on any matter. As I said upthread, the Ist Amendment is categorical (i.e., "quite clear") yet it is not without exception. The same is likely true for every constitutional principle, including the ban on cruel and unusual punishment.

But, yeah, via the Supremacy Clause, torture is probably illegal. I qualify that because a Treaty cannot amend the Constitution and if the issue is one of national security (and it will undoubtedly be framed as such) or any executive power granted in the Constitution, then those treaties do not apply.

Perhaps it is not diplomatic to say that the boundaries of the Constitution are horribly blurred, but they are. I have no problem letting the judiciary be heavily academic. No one, I repeat, no one, will be tortured without one of the two political branches getting the ball rolling first. That is why I vote Democratic.

[citizen4democrats]

95. Hopefully Obama will appoint good judges

Specially in case john Paul Stevens dies.

[Zorra]

96. Scalia is a sad, pathetic little man. n/t

[BearSquirrel2]

98. Scalia is a ticking bomb of tortured logic ...

He first starts with a "24" scenario stating that we cannot contribute someone from slapping a prisoner if lives are on the line. Then apparently by induction, he concludes that because we cannot forbid slapping a prisoner's face that we cannot prevent ANY form of torture because there is no place to draw the line.

I suggest strapping Scalia in a chair, getting to work and then let him decide where the line should be drawn.

I remember before the war that the military said without a doubt that they do not torture. Their #1 reason was that it was unreliable. If you torture a man, he'll tell you anything YOU WANT TO HERE!!! Not the truth ... just what you want to hear.

Of course, it's unethical as well. And we all know that breaking down this boundary with respect to foreign nationals is the first step towards the FBI being able to disappear you and torture you for months on end.

[dogfacedboy]

99. Then I guess Scalia won't mind being tortured. n/t

[Supersedeas]

101. the Neo-Con judiciary stepping into the fray of the Torture Debate

[DuaneBidoux]

102. It didn't outlaw slavery either, as long as we don't bother to define blacks as humans.

That's the trouble with this "strict constructionist" bullshit. Does that mean that everything that was present in the country when the Constitution was written is something the Constitution could not have possibly outlawed? That was one ugly country.

[conspirator]

104. what about the guillotine. Does it outlaw that? Cause the US needs it NOW! n/t

[Jeff In Milwaukee]

105. You know what I want to see?

Justice Scalia with his gonads in a vise. I'll twist the fucking lever while he explains to me that what he's experiencing isn't torture.

What a fucking tool...