The right to resist self-incrimination has nothing to do with the 8th Amendment’s cruel and unusual clause—that right is in the 5th Amendment.
Scalia was specifically asked about the cruel and unusual clause.
Cuz the detainees aren’t Americans protected by the document?
Wouldn’t that fall under the demense of the Geneva Convention or some other “rules of war/enagement” policy?
As far as I’m aware, the US Constitution only applies to actual US citizens, not detainees in a time of war. Not saying torture is right, because I personally don’t agree with it because I do not think it accomplishes much and is brutal.
It has been interpreted as such, but I find no support for that proposition in the text. The way I read the text, the Bill of Rights absolutely prevents the government from infringing on certain rights … it includes no language that limits such limitation to cases involving U.S. citizens.
OK, let’s do this again…
That argument is absurd on the face of it. While our soldiers are fighting overseas, it is your contention that they must afford US constitutional protections to the enemy (soldiers or civilians) in the same way that FBI agents or policemen must do so to US citizens inside US borders? Can you tell us how that is supposed to work?
It’s easy enough to take an exceptional circumstance out of its context and make it seem like a problem.
No, within the context of an armed military action, a soldier doesn’t have to offer civil protections before firing a gun. But once someone is within the control of the U.S. government, captured, surrendered, whatever, away from the region of the conflict, there is absolutely no reason to think that person isn’t due due process, etc., in order to keep that person in custody. Otherwise, just as we have seen, there is nothing to prevent U.S. forces from rounding up just anyone, journalists, non-combatants, bystanders, and throw them in a hole forever. Each of those people should have habeas corpus and other civil rights and force the government to prove that that person was captured while actually fighting against U.S. forces. The U.S. government must be under an affirmative obligation to justify before a disinterested tribunal keeping anyone in custody for anything other than a trivial length of time.
How many times must it be pointed out that that goes against the definition of punishment that an originalist of the Scalia variety (original meaning vs. original intent) would posit?
I simply stated that that is how Scalia defines his flavor of originalism. I quote…
Here, let’s try this “Torture is punishment.”
Give that sentence to ten people and ask them if it it’s true, and you’ll get nine ‘yes’ answers. You’ll actually probably get 10, but every once in a while you might get a lawyer in the bunch, so we’ll say 9.
And let me add this …
But the case of battle is essentially a trivial exception that has escaped its bounds and justifies the violation of rights in all kinds of situations all justified by “national security.” If there is any legitimate exception to rights for the reason of national security (other than an actual, ongoing, legal military action), there is no reason to believe that the Constitution gives the executive branch exclusive power to define its bounds.
Can you quote the part of the constitution that supports that statement?
Really? Due process requires that someone not be held for “x” amount of time unless they are charged with a crime. What crime would you charge them with? And then how would you prosecute them?
Well, that’s simply not true. The fact that Bush has ignored the restraints set up to prevent that doesn’t mean that the restraints don’t exist.
How did we do that during WWII, the Korean War and the Vietnam War?
You are conflating what Bush has done in Afghanistan with the normal situation in war. I’ll give you a hint: the Geneva Conventions mandate that POWs can not be charged with crimes, so the idea of habeas corpus is completely beside the point.
Nonsense. Really.
Any word, in any situation, has a meaning that’s derived from context. As Scalia himself suggests in A Matter of Interpretation, consider the word bay:
“I live by the bay.”
“While out of a job, I kept my creditors at bay.”
“She rode into the valley on the old bay horse.”
So what does “bay” mean? At least three different things. But what does it mean in the third sentence? One very specific thing.
What does “punishment” mean? Many different things. What does it mean in the Eighth Amendment? One very specific thing.
Who cares? That’s not the way, and that’s NEVER been the way, to interpret the Constitution. I’m sure I could ask ten people what probable cause means (judging from the various threads over the years here in which that definition is stubbornly misapplied) and get eight or nine wrong answers.
If you’re going to quote Scalia, quote him fully and fairly. He explains himself quite well in his book, and I heartily recommend you read it.
Who says he can’t?? His answer was: THE EIGHTH AMENDMENT DOES NOT APPLY. He didn’t say anything about other federal law, other parts of the Constitution, or regulations made pursuant to federal alw, all of which can and should be construed to prevent torture under those circumstances. BUT NOT THE EIGHTH AMENDMENT.
You tell me. Because Justice Scalia chooses to answer correctly the squestion: Does the Eighth Amendment apply to those confined overseas by the armed forces outside of criminal rpocess, you conclude he’s an unfeeling monster. So I want to know if that applies to all people doing their job if their job produces less than salubrious result. If you can draw a distinction, please, do so. Because I did a lot of things that resulted in less-than-nice people getting out of jail that many would argue they richly deserved.
I’m sorry you see my questions as putting words in your mouth. I don’t intend them that way. When I ask a question about what you believe, I am genuinely asking a question. Sometimes, I will assume some position from what you’ve said in order to try to advance more than one step per post, but I don’t mean to put words in your mouth.
Let’s take it back a step. Would you agree that the purpose of a written Constitution is to constrain future actions of government?
So what are we to believe? That the framers were intent on protecting the rights of the accused, but built in a handy loophole so that the craft of torturer would not vanish? The accused has all manner of protections, but may be tormented cruelly if that is deemed expedient by his custodians?
Because, after all, that is not “punishment”, since nothing has been adjudicated, the great and sombre wheels have yet to turn, but once they have! well, thats very different, then torture becomes cruel and unusual punishment, whih the Founders abhorred.
Seriously? Is this what we are given to believe? If a ban on mistreatment is applied to those adjudged guilty, how in the name of all that is sensible are we to accept that it is not applied to those who have not been judged at all?
Its ok to be cruel to the accused, but not the adjudged? By what harebrained reasoning is this correct?
I put it to you that Mr Scalia’s assessment of the Founders is far more insulting than my assessment of him.
But you are ignoring the fact that other provisions of the Constitution prevent the torturing of a criminal suspect.
OK, sure enough, you got me. Scalia’s whacky idea is just plain nuts. After all, most of the judges that have sat on the Supreme Court since its inception have disagreed with Scalia’s idea.
Oh, wait.
No, they haven’t. EVERY SINGLE CASE THAT THE COURT HAS ADDRESSED involving the Eighth Amendment has affirmed that it applies only to post-conviction penalty. Every case that has sought to expand its coverage to other "punishments"has been rejected. Every freakin’ one.
Wow. Must be something in the water at the Supreme Court building, eh?
What? So, there are then two classes of persons safe from the torture chamber, but everyone else is open season?
What do they call that, when rather than answer the argument you bring in a bunch of dead guys to say you’re right?
But my question still stands: why do you believe that the Framers went to such great lengths to establish humane decency, and then built in a loophole so the torturers children might yet go to college? Perhaps it is we who have misunderstood? WOULD IT BE THE FIRST TIME EVER THAT A BUNCH OF SMART MEN DID A VERY STUPID THING? (I’ve got a caps lock, too…)
I did quote him fully and fairly. If he states different opinions about the same issue in different places, that’s on him, not me.
Again, I’m not saying I agree with how he thinks the words should be defined. I’m simply quoting him.
Whew… great thread, but long, rambling, and full of ancillary issues (e.g., the whole question of whether the Eighth applies overseas is interesting, but not really relevant as its answer may render the initial OP moot as far as Iraq is concerned). I’ve read the whole thread, but it’s late so I may have missed something—I hope my post doesn’t cover old ground.
If I understand correctly, Bricker, DSY, and others are responding as if Scalia was asked if the Second Amendment prohibited torture. Of course not—it talks about guns, militias, etc., and while there are lots to say about those subjects, the Amendment doesn’t address torture, so please stop acting like Scalia is a monster for saying so. In fact, he probably went on to explain it more detail, but the interview was edited for time and interest, so the nuance didn’t come across—and as a Supreme Court Justice (and a genius at that), he’s not used to phrasing legal discussions for those not highly trained in the legal analysis. In fact, it takes quite a lot to be able to read and comprehend a Scalia opinion, so boiling down such a sentiment to a few seconds in an interview is ridiculous.
If that were the case, the OP is much more GQ-like, in that I can’t imagine those arguing the 8th prohibits torture arguing as vociferously that the 2nd Amendment does.
But there’s something hard to accept—something that grates against many ideas of what the document stands for—that the Constitution does not prohibit such treatment, which is why a lot of folks are latching on to the Eighth as standing for such a prohibition. I don’t think folks would be so aghast if it was not the Eight, but the Eighteenth or the Eightieth so some clause or doctrine that prevents such treatment.
So may I throw out a question to Bricker et al? (Bricker is the first alphabetically I thought of, so please don’t think of this as a personally thrown gauntlet or a limited one). Anyway…
The State of Blackacre (a US State) after careful review of its state constitution and Federal law, passes a law that says:
Rhythmdvl a citizen of the United States and Blackacre and an SDMB member in good standing, is stopped on the street. Appearing to match the description of a wanted suspect, Mr. Dvl is taken into police custody (note that he is innocent). While in custody, the police repeatedly use him to practice their Taser skills.
The firm of Cecil, Zotti, and HiOpal has been retained. They are writing a brief to cover as many aspects of law as possible. Other partners have been assigned to draft sections on State Constitutional and legislation provisions, Federal law conflicts, and other Federal issues (e.g., whether the police had cause to detain Mr. Dvl). The senior partner (Cecil himself!) has asked you to outline what Federal Constitutional arguments you would use with regards to the Tasering and other treatment of lawfully detained though not convicted persons in Blackacre.
I daresay if you (the editorial you) can sum up the Constitutional arguments you’d use (or point to where I missed them upthread), you will go quite a long way to assuaging the concerns of those who insist that Scalia is a monster for saying the Eighth is misapplied, in addition to strongly bolstering your earlier arguments.
They call that obvious evidence that you’re missing something. In this case (as has been repeated over and over and over in this thread) that there is more to the constitution than the 8th amendment. This was covered quite succinctly in post #94. Here, I’ll quote it for you:
I suggest that it might be helpful to take a deep breath, and read the section in wikipedia about “self incrimination” in its article about the 5th amendment. Protections against torture during interrogations go back to English common law, even prior to the establishment of the US constitution.
The framers didn’t intend the 8th amendment to apply to interrogations because they had already covered that in the 5th, with language commonly understood at the time to prohibit coerced confessions (torture or no torture). As **Gorsnak **noted, the protections offered in the 5th are far greater than those that would be offered if we only depended on the 8th.