Justice Scalia on 60 Minutes: Scary Quote

[pingnak]

This sort of made my skin crawl. A guy who claims to be interested in the ‘original intent’ of the constitution, splitting hairs and claiming TORTURE isn’t ‘cruel and unusual punishment’, because ‘it isn’t punishment’. Therefore torture, so long as it isn’t applied to someone who has been convicted of a crime is… constitutional.

When you split hairs like this, pretty much NO constitutional protection can exist.

Being brutalized by police to force a confession so they can get down to the real punishment is ‘legal’.

Maybe he was being facetious. Here’s the quote and links to the story and its text. I’m not cherry picking out of context. He sat there on national TV and argued the case for torture.

http://www.cbsnews.com/stories/2008/04/24/60minutes/main4040290.shtml
http://www.cbsnews.com/stories/2008/04/24/60minutes/printable4040290.shtm

The justice has been explaining his positions publicly more and more, and even delving into some thorny issues, like torture.

“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.”

[Crocodiles_And_Boulevards]

@pingnak

This sort of made my skin crawl. A guy who claims to be interested in the ‘original intent’ of the constitution, splitting hairs and claiming TORTURE isn’t ‘cruel and unusual punishment’, because ‘it isn’t punishment’. Therefore torture, so long as it isn’t applied to someone who has been convicted of a crime is… constitutional.

When you split hairs like this, pretty much NO constitutional protection can exist.

Being brutalized by police to force a confession so they can get down to the real punishment is ‘legal’.

Maybe he was being facetious. Here’s the quote and links to the story and its text. I’m not cherry picking out of context. He sat there on national TV and argued the case for torture.

http://www.cbsnews.com/stories/2008/04/24/60minutes/main4040290.shtml
http://www.cbsnews.com/stories/2008/04/24/60minutes/printable4040290.shtm

I don’t think he was being facetious. What he says makes perfect sense. You don’t torture people to punish them. Stahl cut Scalia off before Scalia could finish his point. The reason “cruel and unusual punishment” doesn’t affect torture legally is because “cruel and unusual punishment” is specifically about punishing criminals who have been found guilty at trial.

Torture is used to extract information from people, not to punish them (except in the semantic sense that, of course, torture is punishing). The only way “cruel and unusual” would be useful in this context would be if we were torturing people who had been convicted of crimes as a part of their punishment.

[pingnak]

Yeah, perhaps…

I admit I’m more pedantic than the next guy, and torture is a bit of a hot-button with me.

But if argued the right (wrong) way, anything can be claimed to be constitutional or unconstitutional.

Sure, down the path of too broadly applying restrictions lies another kind of legal madness, but this is a restriction on the GOVERNMENT.

I tend to see broadly restricting the government from doing things like TORTURE as a good thing.

[Zoe]

I agree with Crocodiles interpretation. Remember he is a nitpicker. The Justice got sidetracked on the issue of whether or not torture is a punishment. (It is not being used as punishment. It is being used to try to get information (or to inflict pain because the person in charge is sadistic. )

Notice that Scalia says this: " But who’s in favor of it? Nobody. And we have a law against torture." That should give a little comfort. Unfortunately, one branch of our government is in favor of it and is breaking the law. He seems blind to that.

[Leaper]

@pingnak

Sure, down the path of too broadly applying restrictions lies another kind of legal madness, but this is a restriction on the GOVERNMENT.

I tend to see broadly restricting the government from doing things like TORTURE as a good thing.

Of course, but that goes right into the eternal argument on the court’s power to do so - and whether they SHOULD be doing so.

[NDP]

@Zoe

I agree with Crocodiles interpretation. Remember he is a nitpicker. The Justice got sidetracked on the issue of whether or not torture is a punishment. (It is not being used as punishment. It is being used to try to get information (or to inflict pain because the person in charge is sadistic. )

Notice that Scalia says this: " But who’s in favor of it? Nobody. And we have a law against torture." That should give a little comfort. Unfortunately, one branch of our government is in favor of it and is breaking the law. He seems blind to that.

I understand the reasoning Scalia was using with his parsing of the Eighth Amendment’s wording but that doesn’t make it any less scary. His logic represents another reason why we elect a Democrat in the White House this November since McCain, as a sop to the far right, will no doubt put at least one other constitutional originalist on the Court.

[Diogenes_the_Cynic]

@Crocodiles And Boulevards

I don’t think he was being facetious. What he says makes perfect sense. You don’t torture people to punish them. Stahl cut Scalia off before Scalia could finish his point. The reason “cruel and unusual punishment” doesn’t affect torture legally is because “cruel and unusual punishment” is specifically about punishing criminals who have been found guilty at trial.

Torture is used to extract information from people, not to punish them (except in the semantic sense that, of course, torture is punishing). The only way “cruel and unusual” would be useful in this context would be if we were torturing people who had been convicted of crimes as a part of their punishment.

I understand his argument. I just think it’s specious, not the least of which because the word “punishment” is not definitionally restricted to mean a penalty, and if you want to get really pedantic about it, I would argue that torturing for information does, in fact, constitute a penalty being enforced for not answering questions.

Yeah, Scalia sounds like a sick bastard, man. I can’t believe America has gotten to the point over the last eight years that torture is something people actually think is a legitimate topic of debate.

[Crocodiles_And_Boulevards]

@Diogenes the Cynic

I understand his argument. I just think it’s specious, not the least of which because the word “punishment” is not definitionally restricted to mean a penalty, and if you want to get really pedantic about it, I would argue that torturing for information does, in fact, constitute a penalty being enforced for not answering questions.

Yeah, Scalia sounds like a sick bastard, man. I can’t believe America has gotten to the point over the last eight years that torture is something people actually think is a legitimate topic of debate.

I don’t know that this is a fair assumption to make. Any topic is open to debate, and, with this one, I don’t know that Scalia has ever been specifically asked in the appropriate context. In the above quote, Scalia was clearly asked a loaded question since Stahl specifically asked about “cruel and unusual.”

[Diogenes_the_Cynic]

@Crocodiles And Boulevards

I don’t know that this is a fair assumption to make. Any topic is open to debate, and, with this one, I don’t know that Scalia has ever been specifically asked in the appropriate context. In the above quote, Scalia was clearly asked a loaded question since Stahl specifically asked about “cruel and unusual.”

What’s “loaded” about quoting directly from the Constitution? She was asking straight up if torture was unconstitutional and he argued for a semantic weasel-hole.

[Zoe]

Did you actually see the Sixty Minutes interview, DTC?

[Crocodiles_And_Boulevards]

@Diogenes the Cynic

What’s “loaded” about quoting directly from the Constitution? She was asking straight up if torture was unconstitutional and he argued for a semantic weasel-hole.

What are you talking about? Stahl asks:

@Stahl

“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?”

And Scalia replies. What’s semantic about that? We pay these judges to BE specific and not go off spouting blanket opinions. We WANT these people to be circumspect and detail-oriented, don’t we?

[Diogenes_the_Cynic]

@Zoe

Did you actually see the Sixty Minutes interview, DTC?

I’m just responsing to the transcript. I don’t care about his weaselly qualification that “nobody likes it.” He tagged that on after saying it wasn’t unconstitutional. What’s scary about that is that he’s saying the government could legalize torture if it wanted to and that he (Scalia) would not vote to strike it down on Constitutional grounds. He’s saying it’s currently illegal, but he’s also saying the governement can change that whenever it wants, and that he would do all he could to force a favorable ruling via his contrived, semantic weasel-hole.

[Diogenes_the_Cynic]

@Crocodiles And Boulevards

What are you talking about? Stahl asks:

And Scalia replies. What’s semantic about that? We pay these judges to BE specific and not go off spouting blanket opinions. We WANT these people to be circumspect and detail-oriented, don’t we?

What’s semantic about it is that he tries to narrow the definition of “punishment” in an absurd fashion in order to excuse the sugar daddy who put him on the bench.

[Frylock]

@Diogenes the Cynic

What’s semantic about it is that he tries to narrow the definition of “punishment” in an absurd fashion in order to excuse the sugar daddy who put him on the bench.

How much do you know about how the word “punishment” in that passage has been interpreted in case law?

-FrL-

[Diogenes_the_Cynic]

@Frylock

How much do you know about how the word “punishment” in that passage has been interpreted in case law?

I couldn’t care less.

[Zoe]

What’s semantic about it is that he tries to narrow the definition of “punishment” in an absurd fashion in order to excuse the sugar daddy who put him on the bench.

That sugar daddy isn’t likely to be in trouble. He’s a little beyond that now.

[Diogenes_the_Cynic]

Legal definition of “punishment”:

PUNISHMENT - Some pain or penalty warranted by law, inflicted on a person, for the commission of a crime or misdemeanor, or for the omission of the performance of an act required by law, by the judgment and command of some lawful court.

I would argue that torturing for information is a penalty, sanctioned by the state, for not answering questions.

It seems strange to me that anyone would argue that the Founders intended to say that anything before a legal conviction can be a free-for-all. Hell, by Scalia’s perverted logic, the government can make it legal for law enforcement to rape unconvicted prisoners if they want to. Hey, they’re not doing it as a “punishment,” they’re doing it to bust a nut, so it totally Constitutional.

[Diogenes_the_Cynic]

@Zoe

That sugar daddy isn’t likely to be in trouble. He’s a little beyond that now.

I know he’s not in trouble, but Scalia is still never going to say he was wrong about anything.

[Crocodiles_And_Boulevards]

@Diogenes the Cynic

Legal definition of “punishment”:

I would argue that torturing for information is a penalty, sanctioned by a court, for not answering questions.

It sms strange to me that anyone would argue that the Founders intended for anything to go before a legal conviction. Hell, by Scalia’s perverted logic, the government can make it legal for law enforcement to rape unconvicted prisoners if the want to. Hey, they’re not doing it as a “punishment,” they’re doing it to bust a nut, so it totally Constitutional.

That’s frankly ridiculous. Just because the constitution doesn’t mention rape doesn’t mean that it’s OK to do so. We have OTHER laws that take care of these OTHER cases. Scalia is specifically addressing the specific amendment given a specific context given by Stahl. Not to mention we have other parts of the Constitution that would better serve to look at the legality of rape, murder, etc.

I don’t see where anyone is arguing that the Founders intended what you said.

[Crocodiles_And_Boulevards]

@Crocodiles And Boulevards

That’s frankly ridiculous. Just because the constitution doesn’t mention rape doesn’t mean that it’s OK to do so. We have OTHER laws that take care of these OTHER cases. Scalia is specifically addressing the specific amendment given a specific context given by Stahl. Not to mention we have other parts of the Constitution that would better serve to look at the legality of rape, murder, etc.

I don’t see where anyone is arguing that the Founders intended what you said.

And for the record, you may be right about courts sanctioning torture as a penalty for not fessing up in certain recorded cases. However, that is not something you could pull from the OP. That’s something that came in entirely outside of the context of this thread.