The question is, what is the Constitutional argument for saying people have a right not be raped by the government but that they don’t have a right not to be tortured?
Wow. Have I?
I have encountered some monumentally unqualified judges, it’s true. There was one judge who – and this was an open secret in that county – relied on his court staff to give him signals, like a baseball coach might tell a batter to swing away, so he could rule on motions.
OK. Maybe I should have restricted my comment to “felony trial judges.” Not that they’re perfect, but I don’t think I’ve ever seen, in person, a truly absolutely unqualified trial judge.
Not applicable. We’re talking about whether it’s Constiutional for the govcernment to sanction that rape and murder.
Just from reading the transcript here, I agree with Scalia - the Eighth Amendment doesn’t seem to apply to torture. That in no way implies that torture is acceptable. It seems pretty straightforward to me, I can’t see what got DtC riled up about it.
I didn’t. I questioned the idea from the quote I posted.
Clearly, torture is punishment for not answering questions. If the detainee does not believe that talking will stop the pain, what little value torture had is gone altogether. Scalia is just using this twisted reasoning to get out of ruling against the Bush administration.
Answers:
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It is not ok.
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The Constitution is not violated by the act.
I am no fan of Justice Scalia. But for goodness sake, folks, let’s look at exactly what he said. He was asked if torturing a captive at Abu Ghraib violates the Eighth Amendment. He was NOT asked it the action was unconstitutional by any other provision, he was NOT asked if it was unlawful by any provision of the US Code, and he was NOT asked his personal opinion on the moral rectitude of the action.
And he is 100% correct. Whatever protections may exist in this situation for the detainees (and I would argue that quite a few protections should apply to make “torture” unconstitutional), the protections are not found in the Eight Amendment to our national constitution, unless the “torture” is being inflicted AFTER a conviction for a crime.
Some people need to learn not to be distracted by the red herring. 
Perhaps the law only applies to the primary definition of a word because otherwise it seems clear to me that “punishment” does not only apply as penalty after a conviction (bolding mine):
Scalia seems to be using an appallingly narrow definition of “punishment”. People may decry judicial activism when a court over-broadly interprets the Constitution but it seems to me the reverse can be just as damaging if not moreso. A legal document or law simply cannot be written with enough specificity to cover all contingencies. The law does need to be able to bend to circumstance and Scalia seems to be of the mind that if it is not explicitly written out then anything goes.
That’s not the question.
First of all, we’re talking about an Eighth Amendment right not to be raped. That right exists, yes, but it doesn’t apply to all government action.
If you’re out driving at 3 AM, and a cop pulls you over, asks to see your license, then decides he likes the look of your bony ass, hauls you out of the car, bends you over the hood, and rapes you (while “Dueling Banjoes”) plays in the background) he has not violated any right you might have under the Eighth Amendment.
Are we clear on that point?
Couldn’t they fix that by amending the word “punishment” into “treatment”.
(Keep in mind that, in his view, the prevalent definition would be one from the late 18th century.)
This gets a :rolleyes:
-FrL-
What previous Court decision has ever interpreted the Eighth Amendment to apply to non-penal situations? You’re castigating Scalia for not expanding the definition – why should he be part of the first Court to do so?
Exactly, these restrictions are limitations on the government, regardless of the status of the person being subject to government power. The error indulged (so far) by our system is that idea that the Bill of Rights applies only to U.S. citizens or U.S. persons.
Interesting that you added the “in person” qualifier. Are there no trial judges you are aware of, in person or not, that are absolutely unqualified?
Yes, but you’ve already passed this class, so no credit for the right answers for you. 
With the exception of the first sentence, I agree completely with the above, because it’s precisely correct.
I added it because you said “encountered” worse judges.
I’ve heard plenty of war stories. But they’re told by the disgruntled attorney, and may not be as neutral and detached a retelling as they might be.
And of course there are plenty of instances of judges that are convicted of crimes, but that’s not the sense of our discussion. A judge that takes a bribe is “worse” in one sense, but not what we’re discussing here.
And I’m also restricting my comments to the modern era. Judges throughout history are a really mixed bag.
In what world is an Iraqi prison run according to American constitutional procedures?
I don’t know that you noticed this, but Abu Ghraib is 20 miles west of Baghdad. Seems to me Iraqi law, such as it is, applies there.
Now, certainly there are aspects of Iraqi law that impact this - status of forces agreements or their equivalent, etc. And certainly American soldiers are at all times constrained by the UCMJ, which forbids treating a prisoner in the way they were treated. These are the charges that sent Lynndie England and others to prison.
And there are treaty obligations as well.
But none of these are Eighth Amendment matters. If an Iraqi made an Eighth Amendment claim against our government for treatment in Iraq, my bet is he’d not get far in the courts because he has no standing - he isn’t American and wasn’t in America, so Eighth Amendment arguments aren’t germane.
Yes it is. I know because I’m the one who asked it.
The 8th Amendment is not relevant to my question. If you’ll go back and follow this strand of the discussion, you’ll see that Crocodiles and Boulevards claimed that “other parts of the Constitution,” (i.e. other than the 8th Amendment) protect citizens from being raped by the government. I was asking him why those other parts don’t also protect poeple from being tortured by the government. The context of my question already stipulated the exclusion of the 8th Amendment.
Well, now, let’s be careful. If the Iraqi was tried and convicted under some aspect of United States jurisdiction, then yes, the Eighth Amendment might be implicated.
So, to the extent that it was Americans who were doing the “torture,” IF the Eighth Amendment DID apply to “torture,” then the amendment might well apply in the actions that occurred in Abu Ghraib.
Notice all those “ifs” there. 
So, if our soldiers detain someone in Iraq, do they have to tell them: “You have the right to remain silent…”? If they decide to break into someone’s house to look for IEDs, do they need an American judge to give them a search warrant?