Why do you think it matters where the prison is? The Constitution places restrictions on the Government, period. It doesn’t say that the location of their actions makes any difference.
If I’m captured by the police, thrown in jail and tortured, am I being punished? Sure, for getting caught. How is physical mistreatment by the government NOT punishment?
I’m afraid I don’t agree with Scalia’s logic (what else is new?). It’s like saying the constitution is invalid because some John Hancock forgot to dot an “i” or cross a “t”.
From a humanitarian point of view, if a prisoner is tortured before trial or after, it makes no difference. I find it hard to believe the framers deliberately left this loophole.
In my opinion, they should. Actually, truth be told, we have no right to be in their country at all, so pretty much everything we do there is a crime.
How is this not a non-penal situation?
Granted IANAL but to me the Eighth Amendment applies to how you are treated by government agencies. In the case of this torture it is being done by government agencies (CIA, police, FBI, military…take your pick). They have these people detained in what to me looks like a decidedly penal situation.
Scalia seems to be saying you are only protected after you have been found guilty but prior to that the Eighth Amendment does not apply. My reading of the definition of “punishment” is that it should apply and I need not wait for a trial before I can consider myself protected from “cruel and unusual punishment”.
Sorry. I missed that context completely.
I obviously can’t speak for another poster. But I’d say the facts of the hypothetical need a bit more definition to answer the question. In general, I’d offer the opinion that the protection against rape extends to a protection against torture – in other words, the “other parts” DO protect our citizens against being tortured by our government.
But to know what applies and where, more facts are needed. As I said above, you can’t rely on the Eighth Amendment for protection when you’re being raped by the deputy on the hood of your car… but you can if you’re being raped by the bailiff as part of your sentence for carjacking.
Who is being tortured, and where are they being tortured? These are questions we have to answer to see IF the Constitution applies, and WHICH part of it does.
OK. So, during a just war, say like WWII in Germany or Japan, do the same rules apply?
IANAL but to me the crucial part here is “cruel and unusual” punishment. Being thrown in jail by the police for committing a crime may be punishment but it is not cruel or unusual.
As long as you understand that no legal authority shares this view, it’s no the basis for any law, and you should not argue as though it was… fine.
You’re free to say, “I believe this should be the law.”
You’re NOT free to say, “These acts are illegal!” and then reveal that they’re illegal only because of your opinion on what the law should actually be.
(Well, actually, you ARE free to say it. You’re not able to legitimately argue it, though).
ALl I can tell you is that the Eighth Amendment has never been held to mean that. It doesn’t apply to “treatment by government agencies.” If it did, any adverse action by any agency could be seen as a “punishment” and would need to be weighed under the C&U standard. That’s never been done.
I get it. That’s your view.
But have there been any Supreme Court cases that adopted this view before?
If not… why do you castigate Scalia for accurately reporting and following the prevailing law?
Missed the edit.
Should read:
“How is this a non-penal situation?”
See, now you’re just lying.
Courts have long recognized that their authority, except under certain limited circumstances, ends at the water’s edge. That’s why Bill Clinton, faced with lots of Cuban and Haitian refugees in the 1990s, chose to detain them at Guantanamo Bay, Cuba - where their access to American immigration courts could not be guaranteed.
Now, in a situation like this, when there is a war or the aftermath of a war, the American judiciary has very limited power in a place like Iraq, while the President has broad power granted to him via Article II.
There has been a recognition in recent years that there is judicial review over any court or tribunal processes in Guantanamo solely because there is no other authority there - the Cubans that technically own the place aren’t allowed in. For Iraq this is different. There is no way we can imagine the Supreme Court having any say over Abu Ghraib - except through the soldiers or other American citizens posted there. And any claims against them would center on matters far removed from the Eighth Amendment.
If it’s punishment, then Scalia is wrong. If it’s torture, it’s cruel or unusual. Therefore, being thrown in jail and tortured should be illegal.
Accusations of lying are not permitted in this forum. Also my statement was truthful. The Amendment says nothing about location.
He wasn’t asked whether it was illegal or not. He was asked whether it violated the 8th amendment.
I would like one of the Scalia defenders to address the argument that inflicting physical pain as retribution for not answering a question is, in fact, a penalty.
Before Scalia, plenty of other justices have sat on the Supreme Court.
Which of them agreed with the view that physical mistreatment from the government is “punishment” within the meaning of the Eighth Amendment?
There are eight other justices currently on the Supreme COurt. Which of THEM agrees with the view that physical mistreatment from the government is “punishment” within the meaning of the Eighth Amendment?
Again IANAL but here is my WAG at it:
Presumably the definition of the Eighth Amendment has not been “broadened” (I use the term loosely as I do not see it as broadening anything) because many other laws are in place to address the issue.
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The Fourth and Fourteenth Amendment to protect against unreasonable search and seizures, due process and equal protection.
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Civil Rights Act of 1871
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Federal Tort Claims Act
There are probably other laws that protect people from getting the crap knocked out of them while being detained by law enforcement but that is what I can come up with.
However, what happens when the government side-steps due process and the rest of it? The Judicial Branch is there as a check and balance on excesses of the other branches of government. In this the current SCOTUS seems to fail miserably allowing the government to run rough shod over the Constitution because it does not specifically address a given issue (why they would expect it to is beyond me).
So, the SCOTUS may not have applied the Eight Amendment in the fashion being discussed here because it looks like it has never had the need to be applied in such an instance. Generally some other law covers it and it has not been a problem. Now it is at issue, the government does seem to be playing fast and loose with the Constitution and Scalia seems content to let them do so.
Where is the evidence that the government is not able to be restricted by the self-same protections you identify?
If “torture” is prohibited by the Fifth Amendment, why is it necessary to expand the definition of “cruel and unusual punishment” to incorporate pre-conviction actions?
My mistake. Retracted.
There are two things going on here, and Stahl was a terrible journalist for confusing them.
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The US constitution does not extend, in full, to Iraq. It simply doesn’t. Iraqis are not protected by the 8th amendment unless they are in the US.
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As to whether torture violates the 8th amendment if done as part of an interrogation on US soil, I see no evidence that it does. Not everything that is bad is against the constitution. We have laws against torture, and so there is simply no need to invoke the 8th amendment. And as others have noted, there are other places in the constitution to look first-- the 5th amendment, for one.