Punishment: Any fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him, or for his omission of a duty enjoined by law. - Black’s Law Dictionary, 5th Ed.
Folks, the term “cruel and unusual punishment” didn’t just spring up out of nowhere when it was put into the Eighth Amendment. In the Bill of Rights of 1689, passed in England and adopted by William III and Mary II, Parliament declared:
. See, the very same language.
There is a sad tendency among people today to ignore the fact that much of the Constitution’s text comes to us with history attached to it. The debate in this thread is an example. We cannot simply look at the term “punishment” and run to our Websters’ and say, “but it says it means ANY ‘severe, rough or disastrous treatment’!” (to use one of the definitions found at Merriam-Webster OnLine). The phrase “cruel and unusual punishment” has a specific, long-established meaning. This is not to say that there is not room for debate about what it includes. Even at the time of the passage of the acts that became the American Bill of Rights, there was doubt exactly what it would cover (see, for example, the discussion at Eighth Amendment - GPO Access WARNING: pdf file!). But the concept of extending the meaning to something totally not in the realm of what was covered is not to be condoned.
And, indeed, the Supreme Court of the United States has agreed. In Ingraham v. Wright, 430 U.S. 651 (1977), the Court specifically refused to apply the provisions to non-criminal punishment situations. In that case, the Court did not apply the amendment to corporal punishment of school children. In refusing to apply the amendment, the Court did not rule on whether or not such punishment was “cruel and unusual.” Rather, the Court said that the actions were prohibited, if at all, by the “due process” clause of the Fourteenth Amendment.
We have the same situation here. We have action by the federal government that is not occurring post-conviction. It is, thus, not “punishment” as that term is used by the Eighth Amendment. This should not scare anyone, because there are ample other protections available to protect people from “torture.” To the extent that those provisions do not apply to people we are “torturing” in some place overseas, then the provisions of the Eighth Amendment wouldn’t apply anyway: it means that they are outside the scope of protection from the U.S. Constitution regardless of which clause we are working with.
— but he did not argue that at all. It’s like how you often say that (your) atheism is a lack of belief in God, not a belief in NoGod. Same same for Scalia, who argues that some things, like torture for information, are simply not covered in the Constitution. That doesn’t make them Constitutional.