OK.
Why would they need to “sue” the feds? All they have to do is claim the feds violated the law. Isn’t that the most likely course of action-- bring a case against the feds in federal court for violating the law?
Well, in the hypo the torture had ended. So there is no unlawful activity to be stopped. Presumably he/she would be seeking damages.
Let me explain his recourse, and you decide whether it counts as “under the Constitution.”
The first thing is: you can’t sue the federal government, unless it consents to be sued. This is a doctrine called “sovereign immunity.”
The means by which the government has consented to be sued is federal law. The Federal Tort Claims Act (28 USC § 1346 et seq) and provisions of 42 USC § 1983 allow people to sue the federal government and federal officials for “torts,” which are civil wrongs.
This is not a constitutional remedy.
But the wrongs, the torts, in this instance arise from the violation of Constitutional guarantees.
So – the short answer is yes, his recourse under the Constitution is to sue the federal government for violations of his civil rights under the Constitution.
See what I mean here? The actual recourse is made available by federal law, not directly by the Constitution, but that federal law is triggered by “deprivation of any rights, privileges, or immunities secured by the Constitution…”
Does that make sense?
Might I try and sum up a few things?
What section(s) of the Constitution would apply to torture?
Arbitrary or not, the way in which case law and history have evolved is that the Eighth amendment is in play only post-conviction. The same conduct, when it occurs prior to conviction, is treated by the Fifth and the Fourteenth.
This is counterintuitive, and may be difficult to grasp for someone not heavily invested in the nuances of the law—it may seem like a shenanigan hinging on made-up fine hair. For someone who is, an argument that doesn’t ‘get’ the distinction is like listing to a singer that’s way off key.
For the former, consider that arguing that the Eighth is in play pre-conviction is like saying the Second Amendment gives you the right to free speech. If you’re concerned about free speech, getting into an argument with someone over whether or not the Second Amendment protects it—and drawing that argument out—not only frustrates the person trying to (rightfully) call your attention to your mistake, but completely misses the point that that person agrees with you with regards to free speech. Accept that the 8/5 semantic difference is visible after careful and detailed study of the subject, and trust that the difference is more than splitting hairs. While a later Court decision may extend the 8th to pre-conviction treatment, for the time being it doesn’t apply. But do realize that despite the actual Amendment(s) in play, the general feeling here is that the Constitution does prohibit torture.
Does the Constitution prohibit torture?
(YES)
The Constitution prohibits torture if and only if you understand and are able to grasp the weaknesses and flaws inherent to a textualist/originalist/literalist interpretation of the Constitution.
There is nothing in the 5/14th that directly speaks to the treatment of the detained. Proscriptions against maltreatment come only from reading into the term “due process” what you want to see there. While you can point to case law that supports your desired outcome, case law that defines standards, case law that determines when and where it applies, it still remains that the coverage of mistreatment’s inclusion the Amendment’s jurisprudence is a matter of convenience, not a textual interpretation. Furthermore, the ability to craft a situation in which the 5/14th wouldn’t apply, yet still insist that the constitution would prohibit such conduct, suggests a view of the Constitution as a living, malleable document.
This view has the unfortunate and dangerous side effect of emasculating much of the Constitution’s power, and accepting that it offers very little protection—its adaptability to ostensibly moral ends makes it equally adaptable to nefarious ones.
(SOMETIMES)
Via a textualist interpretation, the 8th Amendment prohibits Cruel and Unusual punishment for the convicted only. There are no protections for treatment pre-conviction, as it is not in the text. Whereas torture for the attainment of incriminating evidence may violate the Fourth Amendments “reasonable” requirements, if the person subjected to maltreatment doesn’t have a 4th Amendment claim (e.g., the secreted evidence does not incriminate them) it is unlikely to apply. There are other narrow situations where torture would be unconstitutional (e.g., bar against self incrimination), but for the most part, case law that has found maltreatment unconstitutional have been grounded in bad law.
While such cases have the force of law, they are little different from a case decided on a back-room bribe. Both have precedential value, both are enforceable, but the underpinnings are not connected to jurisprudence.
This is not to say that the Constitution shouldn’t prohibit torture, but if that is to be the case, there exists the well-documented and familiar amendment process. The reason it has not gotten to that point is a combination of improper judicial decision-making and that there is a host of legislation in existence that largely render Constitutional questions moot.
This view too eviscerates much of the Constitutional protections taken for granted, and can easily yield absurd situations. Furthermore, while strictly interpreting the text may serve as a starting point, the need to call on super-textual analysis arises quickly and unavoidably.
Where did Scalia fit in all this?
Scalia didn’t address C&U. Stahl brought it up, but Scalia wasn’t making the distinction between the 8th and the 5th. In his example he used a FourthAmendment-type hypothetical. Saying that he actually meant that it would be a violation of the 5/14 is nonsensical and puts words in his mouth. It’s awfully silly to on one hand claim that he is so precise that of course he meant that because Stahl brought up Cruel and Unusual, while glossing over his actual words.
There were two sentiments that have gotten people’s goat (pet or otherwise). First, that not everything that is outrageous is Constitutionally prohibited. As a strict textuallist, and even as an airy-fairy interpreter, this is an ugly, but not really exciting truth. I have protection from the Government putting a cross on the steps of the courthouse, I don’t have protection from them playing Michael Bolton inside.
He also claimed that torture, in certain situations (specifically one to obtain information), is not punishment. In doing so, he seemed to imply that it was acceptable conduct. Aside from legal arguments, this struck many as abhorrent. This is exacerbated by the perception that Scalia represents the specter of the right wing boogeyman, He Who Put Bush in Power, and is a cold, cruel man. Change that perception, and much of the vitriol and shock melts away, and a realist and pragmatist is revealed.
Or, as Richard Parker correctly suggests, there might be a Bivens action here. I shied away from mentioning it because of the controversy over whether Bivens is “federal common law” and not, strictly speaking, a Constitutional guarantee.
Just to be clear, Scalia does not eschew the need to call on super-tectual analysis in constitutional interpretation. It seem like you are implying that he does. In the case of the 5th amendment, understanding what is meant by “due process” and the clause concerning self incrimination requires a understanding of how those terms of art had developed in English Common Law from the time of the Magna Carta until 1787. The Framers would have been using those terms as they were understood in the legal system of the time-- they did not make them up and place them before us as a blank slate.
Well, partly. The OP also contains a healthy dose of outrage about Scalia. Understanding that Scalia isn’t expounding a new outrage on the Constitution (maybe just an old-fashioned outrage) might help alleviate some of the stress of the OP.
Sorry if that wasn’t clear—my posts are usually crafted in fits and bits between actual work (gotta earn my subscription money!), so they’re not always as lucid as I want them to be.
Far from suggesting that Scalia eschews super-technical analysis, I think he revels in it. You are correct that it would be absurd to ignore the body of history and jurisprudence that form the Constitution (else it would have to be absurdly long to be even slightly inclusive).
I don’t think he likes torture. But I think if a case based on his 4th Amendment hypothetical came before him, one that don’t legitimately fall on other grounds (e.g., the “under God” pledge case from a while back fell on standing issues, so never had to address the controversy head on, or “they’re foreigners not on American soil, so since they don’t qualify for the protection (whatever they are), we don’t have to decide what those protections are), he would be faced with either finding no Constitutional protection, or adapt the analytical methods that run contrary to his overarching judicial philosophy.
Though not perfect, I think he is as rigorous as he can be, and wouldn’t be surprised if he found there in certain situations, there is no protection. Not from a Scalia is Evil perspective, but from an accepting the logical outcome of his analytical bent.
The tension between textual/adaptable interpretation schools is similar to that between consequentialism and nonconsequentialism in ethics. It’s all too easy for a utilitarian to rip extreme Kantists to analytical shreds, just as it is easy for a Kantist to take extreme utilitarians to task. Taking either legal approach as “correct” and the other “wrong” is philosophically nonsensical, as both have no choice but to borrow from the other or end up in odd places.
That may be the source of much of the obstinate refusal in this thread to read what’s being written. It’s essentially incomprehensible to me how anyone could continue to insist, after reading all these posts, that Scalia was claiming the Constitution didn’t apply (versus correctly claiming that the Eighth Amendment didn’t apply). Or how anyone could conclude that the Eighth Amendment even SHOULD apply, in light of the protections already offered by the Fifth and Fourteenth. After all, their minds must have been whispering, it’s Scalia we’re talking about.
That obdurate reaction is disheartening on so many levels. Scalia has “crossed the aisle” many times to side with the liberal wing of the Court, driven inexorably by the same reasoning that he brings to every case. I’m surprised that Thomas doesn’t get this sort of attack; he, in my estimation, is more “reliably” conservative, in that he’s willing to pick a result first and then figure out what reasoning will get him there. Scalia relentlessly applies the same sieve, the same method, and whatever results are achieved are the results he pens.
Consider Maryland v. Craig. This was a 1990 case involving the Confrontation Clause. Maryland wanted to spare younger child victims of sexual assault the trauma of testifying in open court where they would have to see their rapist/molester. So they adopted a closed-circuit TV procedure, to be used when the physical and psychological well-being of child abuse victims would outweigh the defendant’s right to face his accusers in court.
The Maryland court reversed the defendant’s conviction, noting that the Constitution promised criminal defendants the right to confront their accusers. The Supreme Court took the case and reversed, upholding the conviction.
On the majority were: Rehnquist, White, Blackmun, Kennedy, with O’Connor as the swing vote for conviction.
On the dissent: Scalia, joined by Stevens, Brennan, and Marshall. Scalia pointed out that, as distasteful as the crime was, the fact was that the Constitution DID require an actual confrontation with an accuser.
This isn’t a guy who said, “Hey, it’s a child molester - of course he should be hammered!” and then went about figuring a new balancing test to make it seem constitutional. He was willing to stand up for the constitutional principle even though the result in the case was odious to him.
It’s cases like that that make me very confident in rejecting the “use your compassion” argument. I think the majority used their compassion to reach the “right” result, but created an unwise rule. (Interestingly, Scalia may have gotten a chance to make it right with a 2004 case called Crawford v. Washington, but adding that will make this post way too long).
What’s hard to grasp is your blanket assertion that “all the justices, including Scalia, already agree that torture is prohibited by the Constitution,” when the OP makes it clear that is not true. Scalia does not regard it as prohibited except as punishment for a crime; it’s all good as an interrogation technique.
I think the problem is that while you’re correct in the 8/5 split, that’s your analysis and not what was present in the OP-triggering interview.
Scalia did not “correctly claim that the Eight Amendment didn’t apply” except in a broken-clock fashion.
Scalia didn’t correct Stahl and bring up the 8/5 difference.
Whether or not Scalia would agree with the 8/5 difference is irrelevant.
Scalia wasn’t addressing whether torture rose to the level of a cruel and unusual act.
Scalia didn’t address whether the torture was being applied pre or post conviction.
Scalia did address a 4th Amendment issue, and suggested the constitution wouldn’t apply.
I don’t agree that tortue is a punishment for withholding info from the questioner.
Pain is used as a inducement to cooperate with the questioner, and provide him with the info he seeks. “Provide the info, and this stops.”
If, after the info is provided, and the questioner continued to torture the victim, then it could be punishment for not cooperating. (It could also be that the questioner is getting his jollies, too. But that is not punishment, it’s abuse.)
How do you get that??
Listen to how he answers questions. He discusses everything in the context of the question asked. Look at his conversation about Bush v. Gore; he says that it was not a political decision, but based on the law. But then watch how the conversation goes:
See? Define the limits of the question, and he rigorously answers within it. He just admitted that Bush v. Gore was a political decision!!
But he points out:
Same deal with the exchange about torture:
It IS correct. She’s asking about punishment as prohibited by the Eighth Amendment – the only amendment that uses ‘cruel and unusual.’ He answers in that same context. The policeman arresting and torturing someone is NOT prohibited by the ‘cruel and unusual punishment.’ He’s simply not. That’s not a new idea of Scalia’s – it’s how every single relevant Supreme Court decision has come down.
I don’t have any idea what this means. The Eighth Amendment doesn’t apply. He said the Eighth Amendment doesn’t apply. (He said this by obvious context, since Stahl asked about ‘cruel and unusual.’)
True. (As far as we know, anyway). But that’s not enough to hang him, is it? He has amply demonstrated that his style is to focus on an individual question and answer it. If your view is correct, why didn’t he mention the leading Fifth and Fourteenth Amendment cases and say they were wrong?
Really? I thought that was kinda key to the dispute.
True, Of course, he wasn’t asked that question.
He responded to the hypo that Stahl offered, a hypo that was clearly pre-conviction. So yes, he did.
And it wouldn’t. The Fourth Amendment is not relevant to this question either.
Bricker: Has Scalia written any opinions in cases involving the 5th amendment that might shed some light on what limits he sees that the 5th imposes on what law enforcement officials can or cannot do pre-conviction? I did some searching but wasn’t able to come up with anything.
First of all, he answered exactly what he was asked.
Second of all, you have no way of knowing what he actually said that was edited out of the converstaion, do you?
Thirdly, why would you expect him to do more than he did? He specifically stated that torture is prohibited by federal law. He did not assert that the Fifth or Fourteenth amendments were involved with the hypothetical raised by the reporter, because it isn’t clear that they apply to people in Abu Ghraib. Of course, if they don’t apply, neither would the Eighth Amendment anyway. He wasn’t asked, “do you mean to say that there are no constitutional provisions that prevent torture?”
Like I have said more than once in this thread: I am no fan of Justice Scalia. But to beat him up over what he said in that interview is to show either prejudice against him (in the literal sense: prejudging his answers in this case on the basis of dislike of him), or a lack of understanding of the law of the Eighth Amendment.
I was responding your incomprehension over how people can disagree with you. Some of your response misses that.
You’re making assumptions about what was going on in his mind (e.g., the “obvious context” comment). It may be “obvious” to you. It may be correct. But it’s still an assumption, and if you can recognize that the incomprehension should be comprehensible.
I think the point was that we’re many pages into this discussion, and the context has been explained over and over and over again, with cites as references. If someone still doesn’t get it, he just doesn’t want to get it.
When one has explained an unassailable position with patience and clarity, obstinance becomes the only possible ground for continued disagreement. Yep.
Dude, check out Amnesty International. It’s all abuse. You’re just parroting a couple of popular excuses for the abuses.