Antonin Scalia says, "...it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face."

imverytender.jpg

Tender and succulent.

http://www.hedweb.com/animimag/pig.jpg

er, roberts is chief justice

"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.
"I don't look to their law, why do they look to mine?" he said.

good to know one of our Supreme Court justices gets his ideas about one of the major legal questions of our day from television dramas

Justice > law, you fucking retarded troglodyte.

this guy is a fuckin monster

Amendment VIII to the Constitution of the United States of America reads

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

I know this because I'm reading from the copy of the Constitution that JUSTICE ANTONIN SCALIA GAVE ME.

Fat, self-righteous, jowly, pompous asshole. FUCK that guy.

eric h.'s post is an insult to bacon everywhere

What an asshole. I really am so very fucking angry about so much of that interview.

one of ethan's classix, from a scalia-oriented thread from long ago:

the differences between scalia and rapper vinnie paz are less & less every day

-- +++, Thursday, March 30, 2006 11:33 AM (1 year ago) Bookmark Link

Jeezis, that's totally fucking crazy. He has to be one of the most reprehensible, disgusting, pig-fucking ignorant shitheads ever to serve on the Supreme Court. Doesn't make me ashamed for my country, makes me FURIOUS that bastards like him represent and lead it.

Goddam. I need a beer or something. Shit.

i'm mostly surprised at how simple-minded he seems

Right-wingnuts like Scalia 1. for his philosophy, but 2. mostly for the fact that he drives lefties crazy.

Whoa embarrassment re chief justice

I just read about a case that involved Robert Novak, Kenneth Starr, Robert Bork, and Scalia. It was like the Million Dollar Quartet of douches.

Scalia has recently been quoted as saying that "My kids have been working on me to get out and do more public appearances...They think it makes it harder to demonize you—and I agree."

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

he would probably argue that torture is not "punishment" because you haven't actually been convicted yet.

ughhhhhhhhhhhh

As others have noted, 21st-C Federalist Society/Dubya-style conservatism is more pathology than ideology or philosophya(or even theology, for that matter)

There's a whole field of discourse about what constitutes 'cruel and unusual' obviously, this has been one of the Bush admin's big gambits - really insulting word games ('is it unusual if it's been done a whole lot of times? doesn't cruelty have to be senseless?')

still mainly Scalia is trolling, he's really good at it and it wouldn't surprise me to learn that he times this kind of thing as a diversionary tactic (/tinfoil hat, but I can never fully / the tinfoil hat with this admin)

Scalia's a complicated guy. He sided without reservation with the "liberal" side of the Court in 1989 against making flag-burning unconstitutional, and there's some precedent for his contempt for the law as written. Edmund Wilson on Oliver Wendell Holmes: "It was impossible for an honest man of Holmes' probing intelligence to pretend that the law was a sacred code, which had simply to be read correcty."

btw the history of "simple-minded" men becoming associate justices on our Supreme Court is vast and unsurprising -- most of them ARE hacks. Scalia at least writes entertaining opinions.

he can write really well, which makes him seem appealing if good writing is an opiate to you like it is to me, but on balance he seems immune to arguments about human beings having dignity - complex maybe, but a bad apple

It was an opiate when I was younger. But Orwell's right: sooner or later the writing will reveal its author's chicanery and dissembling.

btw I'd rather have a Scalia on the Court -- an articulate defender of a certain kind of conservatism -- than a Harriet Meiers, who WAS a hack.

FWIW, he actually dissented from the opinion in the case I was reading, and ended up opposing the other three million dollar douches.

Whoa embarrassment re chief justice

As pointed out, Scalia is an associate justice. John Roberts is the Chief Justice.

Where I went to school, Scalia opinions caused the "Turn that shit up!!That's my JAM!" type reaction from my classmates - a conservative law school in DC. They were all very aware of what Jowls McEgo represented - a talented legal mind and writer who had a TON of chutzpah on the bench, and was a conservative with an attitude to boot.

I wish I had paid more attention to who was writing the opinions so that I might go and find a few choice quotes from him. He's really very good, and quite persuasive - but a total douche if you actually look at what he's saying.

For what its worth, one of my professors who clerked for another justice said that Scalia was a pretty entertaining guy to have contact with, and that his clerks, liberal and conservative, all got along with him very, very well.

His best friend – and tennis partner – on the Court is Ruth Bader Ginsberg.

let's interrogate Scally

I guess I appreciate the fact that he at least says "I don't know" about some questions. But the "bomb under LA" scenario really sticks in my craw. It's a little like saying "If there was a full-scale alien invasion of the earth, you'd probably support removing some checks and balances and giving the president greater power. But where do you draw the line?"

Ruth Ginsberg still plays tennis? Way to go older person.

so does Stevens!

Back to the Scalia surprise file. Remember Hamdi vs Rumsfeld:

ustice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only in times of "invasion" or "rebellion"), which hadn't happened; or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.

ginsberg and scalia on an elephant:

http://www.oyez.org/tour/rbg-room/rbg_elephant/elephant.jpg

to find out where he has hidden the bomb that is about to blow up Los Angeles

to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles
to find out where he has hidden the bomb that is about to blow up Los Angeles

to find out where the bandits are hiding pore sally jones

He sided without reservation with the "liberal" side of the Court in 1989 against making flag-burning unconstitutional, and there's some precedent for his contempt for the law as written.

isn't this because he's basically a libertarian? also this is pretty funny:

He noted that in 1989 he voted to strike down the conviction of a man who had burned the American flag, on the ground that the First Amendment protected such symbolic acts. "Scalia did not like to vote that way," he said, slipping into the third person, as he often does during comic riffs. "He does not like sandal-wearing bearded weirdos who go around burning flags. He is a very conservative fellow." Although originalists are not supposed to care about the outcome, an originalist's wife, evidently, might sometimes consider this a crock. Scalia went on, "I came down to breakfast the next morning, and my wife--she's a very conservative woman--she was scrambling eggs and humming 'It's a Grand Old Flag.' That's a true story. I don't need that! A living-Constitution judge never has to suffer that way."

I like the idea of all these elderly judges playing tennis together (and having just looked her up I see that Ginsberg isn't quite as old as I thought she was - 74 though - pretty spry!) but it worries me too. The liberal ones should be taking it easy, can't afford to lose any more.

and yeah i think he's pretty funny, and i'm glad he rides elephants and plays tennis and all, but i wish he wouldn't say dumb shit like this

he would probably argue that torture is not "punishment" because you haven't actually been convicted yet.

ughhhhhhhhhhhh

-- tehresa, Wednesday, 13 February 2008 06:54 (7 hours ago) Link

This is precisely what he said.

Am I the only one that actually heard the whole interview? It was on NPR yesterday.

how likely is it that authorities will know with certainty that there is a bomb about to blow up los angeles but not know where it is??

i know, it's a hard question to answer because such a thing has NEVER EVEN REMOTELY HAPPENED

You mean 24 is a lie? ;_;

yeah i think context is key here, from the ABC blog:

But in the interview, it's Scalia who seems to be taking folks to task--venting about people who make quick moral judgments about torture without considering the hard hypotheticals. The choice made, he suggested to the BBC reporter, depends on the circumstances. As he said in Canada last year, if law enforcement knows a terrorist has a nuclear bomb and is going to blow up LA, the American people would find that a pretty clear case. You can hear the full interview here.

"Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can't stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn't do that. And once you acknowledge that, we're into a different game," he told the BBC interviewer. "How close does the threat have to be, and how severe can an infliction of pain be?"

He then explains what a tough call that would be.

"There are no easy answers involved, in either direction, but I certainly know you can't come in smugly and with great satisfaction and say, 'Oh, this is torture, and therefore it's no good,'" he said. "You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be, 'Where is the group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?'"

i know, it's a hard question to answer because such a thing has NEVER EVEN REMOTELY HAPPENED

The terrorists have lulled you to sleep with the six and a half years of relative peace in this country. Good thing we have tennis playing, jowly, bulldog looking Supreme Court justices who are still paying attention.

Apparently, there is a basketball court directly above the actual courtroom that the clerks play on all the time. Obv, not while court is in session.

why does scalia and every other neo-tard put violent POLITICAL crime in this separate, special category??

Obv, not while court is in session.

What fun is that!

Every pithy and erudite comment about never really knowing what someone else is thinking and how some of your closest friends probably have opinions you would find reprehensible is being drowned underneath a massive "wau cock" reaction to this story.

boo freakin hoo

Surely I'm not the only person dying to know what opinions of Ned's that Dan finds reprehensible.

Well, there's the whole kittenshoes thing.

kittenshoes is torture

http://www.musikmarkt-wiesbaden.de/images/JACKSONS%20torture%20LP.JPG

whoa i remember that sleeve! very duran duran

My constitutional views on kittenshoes have evolved while in office.

Every pithy and erudite comment about never really knowing what someone else is thinking and how some of your closest friends probably have opinions you would find reprehensible is being drowned underneath a massive "wau cock" reaction to this story.

What does that have to do with anything? The main issue here isn't that people have weird ideas.

Here's Antonin playing his favorite game, Scalia vs Texas:

http://planetsean.blogspot.com/ScaliaDelay.jpg

Apparently the main issue here is that people like to freak out over stuff they disagree with that sounds a bazillion times worse when taken out of context.

Antonin Scalia, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face.

the frustrating thing about scalia is that he is nothing if not internally consistent. all those views expressed above really are rooted in a very strict and literal interpretation of the constitution. hence, torture isn't punishment because it's associated with a conviction under law. in the same interview he said that smacking around people that are already in jail would be awful and unconstitutional.

not looking abroad for legal insight is also part and parcel of his chosen reading; if all the answers are contained within the founding document, why on earth would you look to europe or where ever for assistance or influence?

i think this is why his opinions are so entertaining to read (he really IS a great writer): because he's arguing from a very entrenched and reductionist position, it's very easy for him to frame every problem within the constraints of a strict interpretation. if the practical implications of his reading are messy or immoral or unethical or whatever, who gives a shit? it's not his job to worry about that. or at least that's how i think he sees it.

Like what if we just reaaaaally need to sway him on an upcoming decision? i mean those can have hueg consequences for our nations future right?

What drives me crazy is the smug assumption that no one else has done the intellectual/moral heavy lifting WRT torture. That by "bravely" facing the fact that extreme situations might demand unusual (even illegal) responses, the pro-torture folks are going where no man has gone before. It's an absurd and condescending premise.

We all know that you can't always draw a clean line between right and wrong, acceptable and unacceptable. But we have to draw the line somewhere. That's what the rule of law is all about. Scalia basically seems to be arguing against the rule of law, arguing that even the most basic human rights and protections may be suspended when expedient. It calls into question the entire premise of the Constitution. The fact that it's framed as Constitutional literalism is just the final insult.

its not like ive convicted him of anything!

if the practical implications of his reading are messy or immoral or unethical or whatever, who gives a shit? it's not his job to worry about that.

Yeah, I think this nails it.

On that note, GBX OTM.

Apparently the main issue here is that people like to freak out over stuff they disagree with that sounds a bazillion times worse when taken out of context.

Out of context nothing. It sounds just as bad in context.

Actually it doesn't, but whatever.

ANTONIN SCALIA, THE GREEN GOBLIN HAS SUSPENDED A SUBWAY CAR OVER THE HUDSON

EVERYONE IN THE CAR WILL DIE UNLESS YOU PERSONALLY MACHINE-GUN ONE CUTE BABY WITHIN FIVE MINUTES

WHAT DO YOU DO??? OMG

if Scalia were a Marvel villain he wouldn't even need a villain name – "Scalia" is just fine.

TO TAKE A REAL-WORLD EXAMPLE: IF SOME HIGH SCHOOL STUDENTS WERE PLANNING SUCH A SUBWAY-CAR SUSPENSION SCENARIO, TAKING CUTE-BABY-MACHINE-GUNNING OFF THE TABLE WOULD LEAD TO THE DEATHS OF MANY MORE INNOCENT PEOPLE AND PROPERTY DAMAGES RUNNING INTO THE TENS OF THOUSANDS OF DOLLARS

it doesn't take the bbc's unfavorable editing to turn this into another quiet disaster in international relations

very expansive view of what can be done to a suspect if someone, somewhere, thinks there is danger? check. very cramped and nationalistic view of how law relates to justice, fairness, and human dignity? check.

Actually it doesn't, but whatever.

I understand not wanting to debate the point, but that's just a cop out. I've read the transcript. Scalia's views are in no way misrepresented or even dumbed-down in the article linked. They're mocked, but that's it.

we can grab anyone on earth and declare them an enemy combatant and there's nothing anyone, anywhere can do about it, in the US, or especially outside it, since none of those law effectively exist. and we can do whatever we want to them, and nobody can do anything about that either, because they're not convicts yet!

very expansive view of what can be done to a suspect if someone

That's what's galling here. Scalia's argument hinges on the idea that people who have been convicted or charged with crimes are guaranteed certain protections and rights. But people who are merely suspected of crimes do not (this distinction only to be invoked in "extreme circumstances," of course). Given that law enforcement & investigatory agents/bodies routinely deal with situations in which human life is at stake, it seems like a not-so-subtle plea for license to police without legal restraint.

I heard this yesterday. Obviously the guy is pretty unpleasant, but I don't think he's an idiot. His attempts to claim not to be a conservative did jibe a bit with his mention of "homosexual sodomy" etc.

His whole thing about cruel + unusual not applying is, well, I guess logically defensible. Does he generally get tied up in knots, though, or is he logically consistent in his interpretations?

You can download an MP3 of the whole interview here btw:

http://www.bbc.co.uk/radio/podcasts/law/

(lots of x-posts)

Yeah, but read what he wrote in the Hamdi decision, in which his reasoning boiled down to: charge'em or let'em go.

(xpost)

He also interestingly suggested that if all judges just went right back to the constitution, that would remove the political aspect of appointing judges.

i realize he's taking a shot at breyer (or whichever justice it is that quotes foreign precedent all the time) when he says:

"I don't look to their law, why do they look to mine?" he said. "We don't pretend to be Western mullahs who decide what is right and wrong for the whole world,"

but "why do they look to mine?" is the most offensive thing he said, much more than the cheeky 24 riffing -- foreigners look to "yours" because no other country has the means, or has given itself the right, to hold their fellow citizens indefinitely without recourse and torture them in the meantime. there's no way he doesn't know this.

In cases dealing with pretrial detainees rights, my recollection is that while the 8th Amdmt is not applicable, SCOTUS applied 14th amdmt due process reqmts to hold that those detainees must receive equivalent protections. i think its city of revere v. somebody

i also remember reading i think it was a thomas dissent where he argued that abysmal prison conditions don't violate 8th amendment, because prison conditions arent punishment, they're like, incidental. i'll see if i can find i was like !

i realize he's taking a shot at breyer (or whichever justice it is that quotes foreign precedent all the time)

It's Kennedy.

there's no way he doesn't know this.

i think he totally knows this, and doesn't understand why people in other countries would do such a thing.

worry about getting picked up and tortured? itisamystery.jpg

http://www.ocregister.com/newsimages/local/2005/08/30chapman.jpg
see theres no interpretation here im just going right back im going to the constitution the c-o-n-s-t-i-t-u-t-i-o-n dont you see me going to it going right back to it? god.

if you're a citizen or any country, who doesn't break the law, ever, why would you worry about getting picked up by the FBI for torturing people? do you really think the FBI goes around throwing people in the backs of vans and give people the lash? you've got about as much of chance as that happening as being in a plane crash, probably a lot less.

(not to say that the FBI imprisoning the wrong person doesn't happen. i just think it happens less often than you think.)

citizen of any country

the point is no one anywhere has a legal means of doing anything about it when it happens. sure it's an outside chance, but it's being justified by an even more outside and fictional chance: things that happen on television.

remember the woman from iceland who was strip searched and locked up at jfk for several hours, totally incommunicado, for overstaying a student visa by a few weeks, a decade ago? remember that? lucky for her someone decided she wasn't a threat. also, she was white. the point is the legal rabbit hole that people can be shoved into has a VERY wide opening and it goes very deep and dark very quickly.

but it's being justified by an even more outside and fictional chance: things that happen on television

yeah i agree the 24 comparison is fucked up.

but we're forgetting something...

Kind of a side point...

In the US, we have (or have historically had) two citizen classes: Full Citizens and Criminals. Full Citizens are guaranteed certain clearly-defined rights and protections. Criminals are a reduced-status subgroup: they lose some specific FC rights/protections, but retain the rest.

Suspects have in the past been seen as Full Citizens. They may be obligated to cooperate with certain procedures in order to retain FC status, but they are not a reduced-status subgroup, like Criminals.

During the Bush administration, it seems to me that there has been a big push on all fronts to create an entirely new citizen class composed of suspects and enemies of the state. This new class is portrayed as being so dangerous that they must be granted as few legal rights/protections as possible - ideally, none. It's understandable, but troubling, and I haven't seen it remarked on much.

I guess the bullet point there is Entirely New Citizen Class.

dont you wish this kind of shit was more bizarre and surprising instead of totally predictable

Mr. Que, have you ever actually read any of the stories of the Guantanamo detainees?

considering our armed forces basically passed out flyers in Afghanistan that amounted to "cartoony terrorist = big bag o' money," it's not that much of an outside chance

yes i have--i'm not saying that false imprisonment doesn't happen

i'm not saying that false imprisonment doesn't happen

-- Que

Then what are you saying? That we should simply accept them (and perhaps torture, perhaps murder) as the price of safety? 'Cuz the, "if you don't break the law, why would you worry about getting picked up by the FBI?" bit reads more like a threat than a reassurance.

Those of you who've stolen library books, beware.

Then what are you saying? That we should simply accept them (and perhaps torture, perhaps murder) as the price of safety? 'Cuz the, "if you don't break the law, why would you worry about getting picked up by the FBI?" bit reads more like a threat than a reassurance.

that's not what i'm saying.

how many people in the world do you think the US is throwing into vans and beating right now? can you ballpark it for me?

being drowned underneath a massive "wau cock"

could have done without this mental image

You mean secret renditions since 9/11? A couple hundred? At the very least.

the threat of terrorism is exaggerated
the threat of torturing innocent people is exaggerated

Agreed.

Look, in the past six years the U.S. has basically created the premise that it can invade any country it sees as linked to terrorism and then detain its citizens for any reason it pleases and without any process. That doesn't have the slightest thing to do with whether someone "breaks the law" -- there's no rule of law in that process at all.

que in commenting on the rarity of unlawful us detention i believe was responding to a poster up thread who was personally afraid of being kidnapped by the us government.

which in no way precludes him from being a heartless fascist himself. which he most certainly is!

totally hartless totally fascist: that's me

lol "hartless"

also OTM:

the threat of terrorism is exaggerated
the threat of torturing innocent people is exaggerated

in the past six years the U.S. has basically created the premise that it can invade any country it sees as linked to terrorism and then detain its citizens for any reason it pleases and without any process.

Hurting 2 OTM. Equally troubling is that this premise extends to US citizens as well. When suspected of "associating with" or "aiding" anyone even tenuously linked to terrorism, US citizens apparently lose all due process protections and citizen rights. This suspicion may even extend to Americans in general, allowing the government to suspend the rights of ALL citizens, e.g.: covert domestic wiretapping, etc.

also it's worth noting that this kind of thing hasn't happened more in part because it has been fought tooth and nail by organizations like the ACLU

the biggest problem no one's brought up w/ this torture argument is that there is no evidence that 'smacking someone in the face' or whatever actually gets a guilty person to spit out what they know

was gonna say surprised no one's said "uh, shit doesn't work, doggie."

that and its not possible to know if someone knows something and its unkind and it undermines our relations w/others

those are the four main problems

bring in the clean team!

http://www.washingtonpost.com/wp-dyn/content/article/2008/02/11/AR2008021100572_pf.html

It would be nice to know what fans of the "24" ticking time bomb scenario make of these other ridiculous hypotheses:

1) due to shonky intelligence you know that ONE out of FIVE people from the same building knows where the bomb is - the other four are innocent, but you don't know who is who. Do you torture all five to get the info?

2) you have a definite suspect this time but he's known to be a tough guy who's almost impervious to pain and bodily harm. However he's a real family man with a young daughter (who is innocent of all this bomb malarkey) - do you torture her in order to get him to fess up?

The admissions made by the men -- who were given food whenever they were hungry as well as Starbucks coffee at the U.S. prison at Guantanamo Bay, Cuba

3) If SUPERMAN knows where the ticking time-bomb is, can you use kryptonite?

the biggest problem no one's brought up w/ this torture argument is that there is no evidence that 'smacking someone in the face' or whatever actually gets a guilty person to spit out what they know

This is too easy. Anyone who's ever had a little brother knows that the judicious application of discomfort can produce aggreeable results. Torture and mistreatment do work, at least some of the time, and that's why they've been so popular throughout human history. There are negative consequences, sure, but pretending that torture doesn't work is the wrong approach here.

i hope to christ above they mean the bottled stuff. xp.

altho, gtmo has been a military base for a century before getting famous as a detention camp. ok i'm not surprised at all there's a starbucks .

torture does not produce reliable information and this has been proven statistically time and time again

This is too easy. Anyone who's ever had a little brother knows that the judicious application of discomfort can produce aggreeable results. Torture and mistreatment do work, at least some of the time, and that's why they've been so popular throughout human history. There are negative consequences, sure, but pretending that torture doesn't work is the wrong approach here.

-- contenderizer, Wednesday, February 13, 2008 11:00 AM (1 minute ago) Bookmark Link

not really dude. if someone's willing to blow up a city why would he suddenly flip because he gets hurt? + people are known to confess to crimes they have NOT committed when tortured, so how can you know the confession is real?

I think contenderizer is partly right here. Saying that torture NEVER works is facile and wrong. It's more like torture might sometimes work but is also very likely to produce false confessions and the situations in which it's used are never as cut-and-dry as "this person will reveal the key to the secret plot to blow up LA" (let alone the lol ticking bomb)

http://www.washingtonpost.com/wp-dyn/articles/A2302-2005Jan11.html

the argument is more - tortue produces enough bad info to render the good info unusable

"I find it curious that in the debate involving the so-called "ticking bomb" scenario, there has been a pre-supposition that physical, psychological, and/or emotional coercion will compel a source to provide actionable intelligence, the only issues in contention being those legal and moral arguments in favor or in opposition. To the best of my knowledge, there is no definitive data to support that supposition and considerable historical evidence to suggest the contrary."

- Former USAF interrogator Steven M. Kleinman's Statement before the Senate 9/25/07

Returning to the matter at hand:

"I'm very tender," he said.

Thomas Hilde Testimony: Unreliable, Torture Must Be Used Broadly

Thomas Hilde testifies at Helsinki Commission hearing.

Recent advocates of torture use claims of necessity and the moral importance of information it can provide as a justification. Yet information gained from torture is "notoriously unreliable," and so in practice torture is rarely an isolated procedure, says University of Maryland research professor Thomas Hilde, who edited the forthcoming book, On Torture. He specializes in international social, political and environmental ethics.

Advocates invoke the "ticking time bomb" as an example of the need for torture - often the hypothetical case of a terrorist who has planted a nuclear dirty bomb and must be tortured to reveal its location before it explodes. Hilde rejects this example as a "crude utilitarian justification for the use of torture: torturing one bad man vs. saving many innocent people...More likely...is the case of torturing many innocent people in search of what might justify the act of torture."

To be effective, torture must be used broadly in order collect patterns of information as a means of corroborating bits of data. Single bits of coerced information must be verified. "How does one know when one has meaningful or true information?" Hilde asks. "The information must... be previously unknown in order to justify using torture. Yet, its moral significance must also be previously known in order to justify the act."

Torture becomes institutionalized, Hilde maintains, by the very logic of information-gathering. "There must be trained interrogators/torturers and thus also trainers, a legal and administrative apparatus, a cadre of doctors and lawyers and data analysts, and others, all of whom would be required to suspend their moral decency...We end up with a swelling institution in search of its moral justification, causing increasing damage to innocents and ourselves, all in search of the supreme moral justification - the time bomb - only to find that, in the end, it is we who have become the moral equivalent of the time bomb."

Thomas Hilde
Research Professor
University of Maryland School of Public Policy
Contact: (202) 321-7384 (cell); thi✧✧✧@u✧✧.e✧✧

http://www.nationalreview.com/derbyshire/derbyshire111601.shtml

"The first thing to be said about torture, as a means of discovering facts, was said by Aristotle in Book 1, Chapter 15 of Rhetorica: torture doesn't work very well. Under physical torture, some people will lie; some will say anything to make the pain stop, even just for a while; and a surprising number will refuse to yield. Robert Conquest, in The Great Terror, gives a figure of "one in a hundred" for those who failed to confess under the methods used by Stalin's secret police. However, most of those pulled in by the NKVD were ordinary people guilty of nothing at all. Dedicated resistance workers, fanatical terrorists, or revolutionaries would show better stats. In his memoir Nothing to Declare, Taki Theodoracopulos tells the story of a young WWII Greek resistance fighter named Perrikos, who blew up the German HQ building in Athens on orders from Taki's father. Arrested and tortured to death by the Nazis, Perrikos revealed nothing, claiming to the end that he had acted alone, under no one's orders. There were many such cases."

^^^lolz even NRO realizes torture is fucking stupid

"so-called torture"

the only surprise is the source. Derbyshire's the man who's calling Obama "O'Bama" and an empty suit.

agreed

I honestly have never seen any good statistical data indicating that torture does or doesn't work. What I've seen, instead, are good arguments and educated opinons on both sides of the issue. Personally, I'm not expert enought to have a strong opinion either way.

But arging that "torture doesn't work" is the wrong way to go, unless you have VERY good evidence to back up your case. 'Cuz the obvious rebuttal is "no, no, look: it does work! I'll prove it to you." Which puts the whole debate on the wrong footing. We shouldn't shun torture because it's ineffective. If it worked better, would we then embrace it?

Mr. Que, in 1973 my parents were asleep in their house and the door was bashed in by two fbi agents who came into their bedroom, shone maglites in their faces, called them by their names, and said they were under arrest. it turned out they thought my dad was somebody else. because the guy they were after had a beard and my dad also had a beard. they had been spying on the house and i guess the "beard" evidence was just too overwhelming. (the guy they were looking for was a friend of my dad's who was a minister and had married two people who were in prison for conspiracy.)

The key point to take from the long quote Shakey posted is that torture DOES work, provided that you're willing to torture enough people and rigorously cross-check your data. This needs to remain a moral argument.

Tracer, that totally sucks, for real.

it was terrifying, their house was in the middle of nowhere in blount county tennessee. at least they didn't actually get arrested, thrown in jail with no lawyer, etc

The key point to take from the long quote Shakey posted is that torture DOES work, provided that you're willing to torture enough people and rigorously cross-check your data. This needs to remain a moral argument.

where is that key point? this does not NEED to remain a moral argument at all.

What if we had strong anti-torture laws across the board, but when Jack Bauer saves LA, he is pardoned?

Scalia also dissented when the court struck down California's medical marijuana law, if I remember correctly. For him, it was a state's rights issue.

one thing thats kinda confused me throughout this whole torture debate maybe you guys could help clear up jack bauer he is real?

To be effective, torture must be used broadly in order collect patterns of information as a means of corroborating bits of data. Single bits of coerced information must be verified. "How does one know when one has meaningful or true information?" Hilde asks. (...) Torture becomes institutionalized, Hilde maintains, by the very logic of information-gathering.

Describing the institutional steps needed to make torture effective.

If this isn't a moral argument, then all the pro-torture folks have to do is demonstrate that it does or at least can work. It becomes a question of improving torture in order to make it more reliable. And I think that's totally the wrong way to go.

you know the intel is real cause you send a tac team into the abandoned warehouse and there's the nuke, duh

thats not proving that torture works as an information-gathering device, thats assuming a priori that it does and describing the next steps one would take in order to make it effective

see this is why I won't just ban burt stanton or whoever is annoying some regular posters at a given moment because every time ILX massive wants to complain about some person who is boring and insipid and annoyingly gauche in their adoption of unoriginal stances on a series of subjects, ILX massive goes and has one of these threads

http://www.evemag.com/issue6/graphics/murphy.gif

"Am I real?"

contenderizer all I can do is point you to people who HAVE reviewed extensive data about torture and they seem to uniformly claim across the board that it is ineffective (thus the links/quotes I posted). I agree that this is just one of several arguments against it, but as people will tend to discount moral arguments based upon their own personal ethics, the utilitarian tack should be addressed and refuted as concisely as possible.

provided that you're willing to torture enough people and rigorously cross-check your data.

many x-posts
uh, this is kind of the textbook definition of ineffective (ie, waste of time and resources; energy expended vastly exceeds reliable data gathered etc.)

Limbaugh and company always cite the case of KSM, who endured waterboarding, but several CIA operatives doubt the integrity of the intelligence gathered, for what it's worth.

Never said that the Hilde quote proved anything. Was just trying to explain what I thought was important about it. I don't think the utility of torture has been proved or disproved. But I think arguing about whether or not it works shortchanges the moral argument.

"if the cops think someone knows who committed a murder in the meatpacking district, is it legal to beat the shit out of them until they fess up? this is a fascinating legal question etc etc"

but... most people who favor torture will automatically argue that the utilitarian argument trumps the moral argument (see Limbaugh etc)

the frustrating thing about scalia is that he is nothing if not internally consistent.

This is a myth. He was on opposite sides of a particular interpretation on the Constitution in two cases that were released ON THE SAME DAY a few years ago (Ring v. Arizona and Harris v. United States). That was the day I realized that Scalia is nothing but a talented blowhard hack.

If you want a frustrating justice who is truly internally consistent, look at Clarence Thomas.

the anti-torture position isnt going to win a moral argument against the us govt

Another angle: Ok fine let's imagine the 24 scenario actually happens, and by some unlikely happenstance we have the single mastermind of the plot to blow up LA and he knows where the bomb is and we have a psychological profile on him that says "gives in to torture."

Does anyone think that the interrogator in this situation would say to himself, "Aw nuts! Bound by the law!"

i dont think hed say "aw nuts"

also I wouldn't be surprised if once torture is institutionalized you get a kind of law of diminishing returns in effect - ie the more torture is used the less reliable information is gathered, as everyone can assume they'll be tortured whether they provide any information or not (this certainly seems to have been the case in Stalinist Russia, judging by the bio I read a year or so ago. People would just say whatever to avoid torture, creating lots of unreliable info)

x-post

the key thing here is that torture induces the prisoner to tell the torturer what they want to hear, rather than the truth

Shakey, I don't want to get caught up debating a position I don't hold. But I have done some reading on this, and I don't think the situation here is like global warming, where there's an overwhelming body of evidence that only an idiot would stand in opposition to. I think it's convenient to say that torture doesn't work, but from what I can tell, the hard evidence isn't there. The anecdotal evidence that it isn't terribly effective is VERY good, but from what I can tell, it's not correct to make a blanket statement saying that "it doesn't work".

I mean, when you refute Hilde's point by saying that institutional torture is, "the textbook definition of ineffective (ie, waste of time and resources; energy expended vastly exceeds reliable data gathered etc.)," then you invite the rebuttal: "No. Really. It works. Look at all we've learned. We foiled that cell in Basel. Saved countless lives. Would you have had them die just to save a few dollars?" The kind of argument you're making turns this into a bean-counting contest.

"bean-counting contests" are essentially inseparable from moral arguments where the US govt is concerned

well it'd be more than saving a few dollars - it would be sparing a lot of innocent people being tortured, which is kinda more important...?

KSM – one of the few suspects we know who WAS tortured – is hardly innocent. The moral question is whether you torture him anyway.

I mean basically a society that institutionalizes torture on the level Hilde is talking about would end up expending its material resources and manpower brutalizing the majority of the populace - which is not a recipe for a healthy, functioning, long-lasting society (lolz N. Korea)

well it'd be more than saving a few dollars - it would be sparing a lot of innocent people being tortured, which is kinda more important...?

But that's a moral argument, isn't it?

I mean basically a society that institutionalizes torture on the level Hilde is talking about would end up expending its material resources and manpower brutalizing the majority of the populace - which is not a recipe for a healthy, functioning, long-lasting society (lolz N. Korea)

Not necessarily. That's a worst-case scenario. The pro-torture crowd would argue that they have something much more human, reasonable and cost-effective in mind.

"humane"

In other words, torture basically "works" when you can use it indiscriminately on a population and don't care much about the collateral effects, because the goal isn't really just isolated bits of information, it's control.

"bean-counting contests" are essentially inseparable from moral arguments where the US govt is concerned

-- max

No way. Far too cynical. Morality and ethics play a huge role in determining the behavior of individuals within the government and the government as a whole. Plus there's that whole democracy angle.

one thing i don't understand is whether the pro-torture people feel that these tactics can be used against non-political suspects

could a homicide unit in philadelphia, for instance, waterboard a suspect?

In other words, torture basically "works" when you can use it indiscriminately on a population and don't care much about the collateral effects, because the goal isn't really just isolated bits of information, it's control.

No. Again, this is absurdly overstated. Torture (maybe) works when you are scientifically rigorous about the collection and verification of data. You don't have to torture everybody, and you certainly don't have to apply it "indiscriminately". Indiscriminate use of torture would, I imagine, diminsh the value of the data retreived.

youre never going to win this making a moral argument because the morality of the us government is a utilitarian morality, and its moral stance on torture is predicated on the idea that torture "works" as an information-gathering device. if you really want to get rid of torture, and not just save your conscience, youre going to need to argue that it doesnt work.

Results 1 - 10 of about 245,000 for does torture work

well it'd be more than saving a few dollars - it would be sparing a lot of innocent people being tortured, which is kinda more important...?

But that's a moral argument, isn't it?

well I think its both - on one hand I don't think its much of a stretch to consider people a "resource". what good is a brutalized and demoralized populace, they usually can't accomplish much or generate wealth etc.

x-post

i mean torture is basically built-in to us. we're conditioned to look at things as containers of resources and information. we torture the planet, essentially, to get energy from it; why not torture human beings to get information from them? the moral attitude that allows for torture is all over the place; and i think the only way to stop it is by arguing that it doesnt work.

http://www.thenation.com/doc/20050530/klein

Torture (maybe) works when you are scientifically rigorous about the collection and verification of data. You don't have to torture everybody, and you certainly don't have to apply it "indiscriminately". Indiscriminate use of torture would, I imagine, diminsh the value of the data retreived.

I don't think these two can be separated. Enforcing rigor and verifying data is a pretty slippery slope that would eventually require indiscriminate torture... and which wouldn't work for very long (see ref to law of diminishing returns above)

x-post

I mean how do you verify data except by torturing more people...?

i think the right keeps defending torture because it is desperate for something, anything, that can contain the profound anxiety unleashed free-floating on 9/11

maybe it doesn't work all the time or even most of the time, but we can IMAGINE moments in which torture does work, and that imagining is the only psychological defense they have left after having seen that guns and bombs and threats don't actually tamp that anxiety back down into its box

max is kinda right, i mean there are still lots and lots of people who defend dropping atom bombs on hiroshima and nagasaki and it's a similar moral triage they're justifying, with similarly murky and trumped-up justification

if you really want to get rid of torture, and not just save your conscience, youre going to need to argue that it doesnt work.

But what if it really does work? What if it works even some of the time, often enough to foil a few bomb plots, stamp out a few cells? What if this can be accomplished without ruffling the feathers of too many law-abiding citizens? Then where do you turn?

Corny as it may be to say so, this country was founded (and in many ways still operates) on moral principles. The trick is to turn those moral principles into hard legislation and legal precedent. And I don't think that's anywhere near as difficult as you suggest.

In 2001 the US NGO Physicians for Human Rights published a manual on treating torture survivors that noted: "perpetrators often attempt to justify their acts of torture and ill treatment by the need to gather information. Such conceptualizations obscure the purpose of torture....The aim of torture is to dehumanize the victim, break his/her will, and at the same time, set horrific examples for those who come in contact with the victim. In this way, torture can break or damage the will and coherence of entire communities."

Yet despite this body of knowledge, torture continues to be debated in the United States as if it were merely a morally questionable way to extract information, not an instrument of state terror. But there's a problem: No one claims that torture is an effective interrogation tool--least of all the people who practice it. Torture "doesn't work. There are better ways to deal with captives," CIA director Porter Goss told the Senate Intelligence Committee on February 16. And a recently declassified memo written by an FBI official in Guantánamo states that extreme coercion produced "nothing more than what FBI got using simple investigative techniques." The Army's own interrogation field manual states that force "can induce the source to say whatever he thinks the interrogator wants to hear."

I think you're making an interesting argument, contenderizer, but what have you got to back it up?

mean how do you verify data except by torturing more people...?

We verify data retrieved by torture the same way we do any other information. We go to place and check stuff out. We tap phones. We try to get a guy inside. Whatever. Let's say we torture a terror suspect, and he reveals the location of a cache of weapons. To verify this info, we simply go to the location described and see if there really are weapons there. That kind of thing. We wouldn't need to torture everybody, and it wouldn't have to be indiscriminate.

^^^ hueg waste of resources

I mean lolz at CIA/FBI running around fact-checking every false lead

they'd probably say "shit why should we be running around - let's just torture his compatriots and see what they say"

"sometimes a tortured terror suspect might give good information" =/= "torture is an effective way of extracting information"

I'm sure there's some ridiculous cost-effective analysis formula we could apply here

This reminds me of arguments I had about big-time sports at my school. "Do we argue that this wastes money or that it's wrong on a philosophical level?" "If we say it wastes money, people will listen." "But if it starts making money, we've lost our ground." "But it's probably not going to start making money," etc.

maybe we could have applied it to this thread

xpost

torture an accountant maybe

WE KNOW THERES A COST BENEFIT MODEL. TELL US WHAT IT IS OR WE DUNK YOU AGAIN.

lolz

Awesome.

give us an answer or 500 new posts by 3pm

I think you're making an interesting argument, contenderizer, but what have you got to back it up?

Well, I could go dig around for stuff, and maybe I will, but look at it this way: "Torture" is at least partially a pejorative term. It's not a clearly defined thing, like "sky" or "egg". At some fuzzy, ill-defined point bad treatment becomes mistreatment, and at another, similarly fuzzy point, mistreatment becomes "torture". Of course, we'll all easily agree that eye gouging and genital burning are torture. But what about prolonged isolation? What about sleep deprivation? What about scary stories?

When we say that "torture doesn't work" we're not really saying anything, especially if we haven't clearly defined what we mean by torture. It's clear that some forms of bad treatment can elicit information from suspects. The game of "good cop, bad cop" is essentially a mild form of torture, and you never hear any argument that it doesn't work. Causing people to be confused, worried or physically uncomfortable can loosen tongues and every cop knows this. Furthermore, no matter how information is retreived, there's always some chance that it might be bogus. Investigators always have to verify everything, anyway.

Torture" is at least partially a pejorative term. It's not a clearly defined thing, like "sky" or "egg".

LOLLLLLLLLLLLLLLLLLL. I know it when i see it.

I mean lolz at CIA/FBI running around fact-checking every false lead

That's exactly what they do, all day, every day, no matter how that lead was generated.

I figured we were going by the (granted kinda vague) "physical intimidation used to elicit information" definition of torture

WAHT U MEAN BY "EGG"?????

what if we ask them out and then break their hearts?? fuckin nobody gets over that

I know it when i see it.

Yeah, me too. But I'm not sure that everybody sees things the same way.

egg torture

http://www.andrew.cmu.edu/user/sahuber/rpd/Pictures/Broken%20Egg.JPG

That's exactly what they do, all day, every day, no matter how that lead was generated.

O RLY

lolz re: Cueball, 9/11 ad infinitum

Defining torture as physical intimidation opens the door to a lot of practices that everyone in the world but the US classes as torture. Starvation, sleep dep, forced positions, etc.

all of those are torture

yeah well the US is wrong

x-post

quel surprise

Cueball, 9/11 ad infinitum

All that proves is that they're not terribly good at what they're supposed to do. Has nothing to do with whether or not info gained by torture is as reliable as info gained by other means (magic 8-ball, trained monkeys, etc.)

Egg torture was awesome, btw

it was wrong

I am all for trained monkey intelligence gathering btw

they'll teach those eggs a lesson

From Back in June: http://blogs.wsj.com/law/2007/06/20/justice-scalia-hearts-jack-bauer/

The Globe and Mail reported that Scalia came to the defense of Jack Bauer and his torture tactics during an Ottawa conference of international jurists and national security officials last week. During a panel discussion about terrorism, torture and the law, a Canadian judge remarked, “Thankfully, security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?’ ”

Justice Scalia responded with a defense of Agent Bauer, arguing that law enforcement officials deserve latitude in times of great crisis. “Jack Bauer saved Los Angeles . . . . He saved hundreds of thousands of lives,” Judge Scalia reportedly said. “Are you going to convict Jack Bauer?” He then posed a series of questions to his fellow judges: “Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer?”

“I don’t think so,” Scalia reportedly answered himself. “So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”

yow scalia feelin himself

Here's the transcript from the BBC interview:

BBC: Tell me about the issue of torture, we know that cruel and unusual punishment is prohibited under the 8th amendment. Does that mean if the issue comes up in front of the court, it’s a ‘no-brainer?’

SCALIA: Well, a lot of people think it is, but I find that extraordinary to begin with. To begin with, the constitution refers to cruel and unusual punishment, it is referring to punishment on indefinitely — would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer or commit them to jail until you will answer the question — without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about “so-called” torture.

Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.

BBC: It’s a question that’s been raised by Alan Derschowitz and other people — this idea of ticking bomb torture. It’s predicated on the basis that you got a plane with nuclear weapons flying toward the White House, you happen to have in your possession — hooray! — the person that has the key information to put everything right, and you stick a needle under his fingernail — you get the answer — and that should be allowed?

SCALIA: And you think it shouldn’t?

BBC: All I’m saying about it, is that it’s a bizarre scenario, because it’s very unlikely that you’re going to have the one person that can give you that information and so if you use that as an excuse to permit torture then perhaps that’s a dangerous thing.

SCALIA: Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can an infliction of pain be?

There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”

what if we ask them out and then break their hearts?? fuckin nobody gets over that

-- gff, Wednesday, February 13, 2008 10:43 AM (20 minutes ago) Bookmark Link

^^
so otm

A lot of my ideas about the potential effectiveness of torture come from this book, published (rather ironically) in 2000: Unspeakable Acts, Ordinary People (The Dynamics of Torture), by Joseph Conroy. Read it last year. Fascinating and well-written, if incomplete. He interviewed a large number of torturers and torturees over a number of years, and cites interviews with and writings by many others. The book is primarily about how societies ignore, justify and/or cover-up torture, but it covers a lot of related subjects & ideas in the process. Although it's not Conrad's intent (not at all), I saw in the book a pretty good argument for the at least occasional effectiveness of torture.

By the way, I'm providing the link above to highlight the book, not the site's critique of it. Critique is worthless.

So, this is what really surprises me: Scalia is the one who brings up Jack Bauer and the exploding LA argument.

When asked about torture and the 8th amendment, supreme court justice is all like lol JACK BAUER BITCHES DO YOU WANT TO DIE?

I had honestly assumed that the interviewer brought up the ticking bomb scenario. This is much more emberrassing.

when superman locked general zod in the phantom zone, do you think any jury would have convicted him?

I know. It's hard not to get the feeling that he's slipping over into dementia.

contenderizer i think the distinction between moral and 'practical'/utilitarian etc arguments is contentious. to get all rorty, i don't make this sort of distinction and i don't see why i should. arguments are bad when they are very vague and hypothetical and they're bad when they're focussed on a very narrow set of outcomes.

people that make the distinction between moral and practical are trying to blag super metaphysical justification for what they don't want to pay attention to ("just doing my job", "bomb in LA")

i think all of us object to it both morally and on practical grounds, just saying that the moral argument has kind of been pushed into shades of gray territory or late so the effectiveness argument undermines that

so glad I had work to do today, this is a big circular clusterfuck

lol it's torturous amirite

the funny thing is that while we're all subtly arguing the finer points of this, ONE OF OUR SUPREME COURT JUSTICES IS ACTUALLY BASING HIS THINKING ON JACK FUCKING BAUER

it's not even circular, a circle requires two dimensions

the moral argument has kind of been pushed into shades of gray territory or late so the effectiveness argument undermines that

-- deej

Okay. Good point. I was saying that it seems like a tactical mistake (politically speaking) to focus primarily on the practical effectiveness of torture. But I guess the serious attention paid to this Jack Bauer OMG! bullshit kinda makes the opposite true.

dude was obv using a fictional character to argue a legal hypothetical in a lighthearted manner - im sure hes not all lol logans run in chamber

ONE OF OUR SUPREME COURT JUSTICES IS ACTUALLY BASING HIS THINKING ON JACK FUCKING BAUER

In public, on the world stage. Lighthearted or not, it's still embarassing.

srsly

hes just being purposely trite in a lol im on the supreme court bitches sort of way

embarrassing, sure. but not really in the way some on this thread are making it out to be.

yeah the dude has a sense of humor in his opinions and speeches and such

No, I'm sure Scalia is completely convinced that the Jack Bauer scenario is a viable one that needs to be diligently protected against; after all, it's not like a judge would ever have to make use of rhetoric to make a point.

If Scalia was all about Logan's Run in chambers I'd like him more!

Scalia sucks enough without distorting his comments into self-parody.

If you want a frustrating justice who is truly internally consistent, look at Clarence Thomas.

heres the Thomas dissent i was remembering, from farmer v. brennan. i read it to say that a beating while incarcerated, if not judicially imposed, is not a constitutional violation, whatever else it may be:

I adhere to my belief, expressed in Hudson and Helling v. McKinney that “judges or juries-but not jailers-impose ‘punishment.’ ” “Punishment,” from the time of the Founding through the present day, “has always meant a ‘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.’ ” (quoting Black's Law Dictionary; see also 2 T. Sheridan, A General Dictionary of the English Language (1780) (defining “punishment” as “any infliction imposed in vengeance of a crime”).

Conditions of confinement are not punishment in any recognized sense of the term, unless imposed as part of a sentence. As an original matter, therefore, this case would be an easy one for me: Because the unfortunate attack that befell petitioner was not part of his sentence, it did not constitute “punishment” under the Eighth Amendment.

wow that's fucking disgusting

hes just being purposely trite in a lol im on the supreme court bitches sort of way

Yeah, but isn't joking about TV precedents for your pro-torture legal thinking in front of a Western World that's overwhelmingly horrified by America's actions/policies in that regard kind of distasteful? It's not just a joke, at that point. It's an unambiguous "fuck you".

the case involved a postop tranny who was put into the genl prison population despite his protests that hed be raped and beaten. he was then promptly raped and beaten. xpost

It's an unambiguous "fuck you".

consider the source, dude

http://www.upi.com/NewsTrack/Top_News/2006/03/27/scalia_has_hand_gesture_for_critics/7854/

Christ Hunt3r, that reads like an SNL Weekend Update joke.

Okay, I'm not just playing devil's advocate here when I say that I can see some merit in Thomas's position. Judges are responsible for insuring that punishment is not cruel and unusual. Wardens (and other administrators) are responsible for the health and safety of the prison populace.

It is not the fault of the judge imposing sentence that the victim was raped and beaten. The legal punishment imposed in his case was (apparently) fair and just. The victim's criminal mistreatment is the fault of the individuals who decided to place him in the general population, and that is where blame should be placed.

Thomas's reading is narrow, but defensible.

it's certainly an episode of SVU xpost

(contenderizer OTM, btw)

orly

The victim's criminal mistreatment is the fault of the individuals who decided to place him in the general population, and that is where blame should be placed.

but of course, yes thats the basis of the suit, government action constituting cruel and unusual punishment by deliberate indifference of prison officials. thomas says they should have no liability under the legal theory that they violated his constitutional rights.

yeah I don't get it - said individuals were in the employ and acting on behalf of the gov't, ergo the gov't is responsible for their actions, actions which resulted in someone in their care being harmed.

lol supreme court justices acting like lawyers

No, I see Thomas's point. It's not that the prisoner should have no recourse against prison abuse or willful indifference to abuse by prison officials, it's that those things aren't officially part of the "punishment." The prisoner can seek recourse, just not under the theory that his right to freedom from cruel and unusual punishment has been violated.

Somehow that reminds me of KBR insisting that because a few of their female ex-employees have won settlements for sexual harassment & rape in Iraq, the "system is working."

I understand that distinction - but the gov't is ultimately still responsible for that prisoner's care and wellbeing while he is in custody. So the distinction seems moot to me.

x-post

Judges are responsible for insuring that punishment is not cruel and unusual. Wardens (and other administrators) are responsible for the health and safety of the prison populace.

if you happily make a decision ignoring the fact that x will probably happen because you claim its not yr responsibility yr in the same boat as kids who windmill there arms and say they aren't responsible when someone gets in the way.

i guess he made a good decision 'legally'. i'm as indifferent to seeing prisoners getting beat as the next guy, but i'd at least own up to not giving a shit.

the distinction is not "moot" at all because it reflects on what means the prisoner uses to seek recourse

Thomas is distinguishing between the punishment officially imposed (the sentence itself) and the actual treatment received. He's not saying that they government shouldn't be held responsible for the man's mistreatment, only that attacking the Constitutionality of the "punishment" is not a viable argument (in his opinion).

If we buy his idea that punishment = sentence and only sentence, then it's a good argument. I'm not entirely sure I agree, but it's not absurd. Should the goverment be held responsible on Constitutional grounds for every sort of mistreatment that a prisoner might be subjected to by his/her jailors?

To tell the truth, I'm not sure.

if you happily make a decision ignoring the fact that x will probably happen because you claim its not yr responsibility yr in the same boat as kids who windmill there arms and say they aren't responsible when someone gets in the way.

-- ogmor

OGOTM. Interesting question the Thomas dissent avoids (and which I imagine the court will never take up, though they should) is whether punishment can ever be proportionally appropriate to the crime if you know in advance that prisons are not fit for human habitation.

If you sentence a criminal to 5 years in jail, knowing that the system is broken, knowing that he might well be beaten and raped, and knowing that racist gangs virtually run the prison system, aren't you passively imposing a disproportionate sentence no matter what?

Should the goverment be held responsible on Constitutional grounds for every sort of mistreatment that a prisoner might be subjected to by his/her jailors?

14th Amendment...?

14th Amendment...?

But this wasn't the action of a state. I don't get your point.

Should the goverment be held responsible on Constitutional grounds for every sort of mistreatment that a prisoner might be subjected to by his/her jailors?
To tell the truth, I'm not sure.

well scotus in this case ruled that there are standards that prison officials must adhere to, basically that they can not knowingly disregard a substantial risk of serious harm to a prisoner.

shakey, are you being purposefully obtuse? Because you're basically trying to argue against our entire legal system.

well scotus in this case ruled that there are standards that prison officials must adhere to, basically that they can not knowingly disregard a substantial risk of serious harm to a prisoner.

Governments can be held liable for prison abuse. That's not in question here. The question is whether they can be held liable under "cruel and unusual punishment." Prisoner abuse is unlawful whether or not it's considered "punishment."

Prisoner abuse is unlawful whether or not it's considered "punishment."

That's the whole thing in a nutshell. It's not like there aren't any other avenues by which one could seek redress.

well scotus in this case ruled that there are standards that prison officials must adhere to, basically that they can not knowingly disregard a substantial risk of serious harm to a prisoner.

^^^ this is all I was getting at - by not providing the prisoner with the rights/protections guaranteed under the law, the jailers were violating the Equal Protection clause...?

but what do I know, I'm not a lawyer

if you deny responsibility for things you knowingly caused you are a wuss. it smacks of lack of conviction which smacks of shitty arguments. sartre knew it, any serious terrorist organization knows it, its even in a bright eyes song. if scalia really wants to argue his case for torture he's going to have to forcefully insist it's still valid in the less glorious instances we've seen, not play them down or try to discount them on a technical basis.

if scalia really wants to argue his case for torture he's going to have to forcefully insist it's still valid in the less glorious instances we've seen, not play them down or try to discount them on a technical basis.

This is demonstrably not true, see for example his current line of rhetoric.

i understand he is making a case that is persuasive, but i don't think its the strongest sort of argument he could/should make (which is what i meant with "really wants to argue his case")

HI DERE is right. Scalia & Co. have to get everybody on board and comfortable w/ the Jack Bauer scenario, maybe give it a few years to settle in, before they start trying to convince people that it's okay to electrocute the genitals of funny-looking greengrocers.

I think making any type of emotional appeal on this, ie insisting forcefully it's still valid, is a fundamentally weaker case than explaining why your decision is supported by the relevant law as it currently written.

what i'm saying is that being unable/unwilling to advocate/prove yr case in the worst/muddiest circumstances puts you in quite a weak position. you can argue on narrower ground (e.g. legal) to avoid those issues and instead present something internally consistent, which i think is what dan perry (??) is advocating, but just because yr presenting more positives and less negatives i don't think its fundamentally stronger. it wouldn't persuade me, necessarily. if you know yr right you shouldn't have to dodge to make yr case look better.

Dan Perry (!!) in this case appears to have a stronger understanding of what makes a successful legal argument than ogmor.

if the terms in which you are arguing are narrow though (i.e. all legal processes) then obviously your priority is to prove your position is consistent with those terms before you go outside them. but in terms of a general public argument showing bias to one set of criteria for justification (its consistent with the law) at the expense of others (doesn't matter that i knew this bad thing would happen), seems like a cop out.

x post - heh, well yes

(I don't disagree with you outside of a legal context but I am not sure if it makes sense to interpret the positions and arguments of Supreme Court justices outside of the legal context.)

but obviously a successful legal argument is exactly that and not the only criteria relevant to a discussion about torture or how to treat prisoners.

yeah i'm not sure about how to treat judges arguments exactly.

judges "opinions" in interviews vs judges "opinions" that are dicta vs judges "opinions" in decisions that have the force of law vs living in fantasyland as informed by television dramas: FITE

you forgot "vs judges getting a whole bunch of people who disagree with him to argue over nothing"

Dan Perry (!!) in this case appears to have a stronger understanding of what makes a successful legal argument than ogmor.

All guys named Dan have razor-sharp legal minds.

vs. jack bauer

xpost except I couldn't give a shit about any of this

And speaking of Jack Bauer. Those darn liberals!

Scalia is asked if torture is unconstitutional, specifically wrt the 8th amendment. Scalia answers quickly and effectively that torture does not necessarily constitute punishment and is therefore not covered by the 8th.

I'm not going to debate the merits of this argument, but he goes on.

Scalia then brings up up the ticking bomb scenario. This has nothing to do with his argument. A little later on he broadens his definition of the ticking bomb:

It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”

Just so I'm clear, why is it not important that high-profile members of my government are publicly making the case for torture, and are using this bullshit ticking bomb scenario to justify broadening the acceptability and practice of torture?

I'm not going to debate the merits of this argument, but he goes on.

This is kind of a problem, though. You absolutely HAVE to debate the merits of this argument, otherwise you don't really have grounds on which to challenge him.

Skipping over the important bit so you can say "ARE YOU FUCKING KIDDING ME" to the ridiculous bit is maybe not the best refutation tactic, you know?

I'm going to wade into this thread later, if I can. In the meantime, as to policy (not law), I can at least see an argument for torture in the ridiculously narrow situation where there really is a known ticking time-bomb and you have the guy in custody who uniquely can tell us how to defuse it and he won't unless he's tortured. The problem is that it's almost never that clean a scenario. Virtually all of the time -- if not actually all of the time -- you're dealing with someone who isn't unique, doesn't know how to stop the ticking time-bomb, we don't know if there is a ticking time-bomb, the chances of false confessions are extraordinarily high, and we have few, if any, ways of verifying whether the information we extract via torture is useful (n.1).

And so, on the one hand, the "information" obtained via torture, if any, is -- the vast majority of the time -- dubious and useless, while on the other hand, condoning torture creates a dangerous slippery slope for our civil rights, highly incentivizes officials to be over-inclusive in terms of who to torture and how, enrages other nations around the world (and, in that way, probably helps terrorist recruiting), and causes us to lose both our credibility abroad and our dignity at home. Long story short: The price to pay is far too heavy to justify torture in all but the most extraordinary circumstances (and possibly even then, too).

__________________________________
(n.1) You can be sure, tho, that if torture actually thwarted a major terrorist plot, we'd have heard about it; this Administration isn't shy about tooting its own horn, so to speak.

lawyer Dan OTM. (probably was already stated upthread but eh)

You're missing my point. I'm not challenging the argument that torture is not covered by the 8th amendment.

I'm challenging the validity of the "ticking time bomb" as a valid argument against why torture should be made illegal.

There are a lot of things that are not prohibited by the constitution that are morally wrong, many of which are illegal, because we made laws.

Scalia isn't just arguing about the constitutionality of torture, or whether torture is the same thing as cruel and unusual punishment. He is making a dubious pro-torture argument.

You can be sure, tho, that if torture actually thwarted a major terrorist plot, we'd have heard about it; this Administration isn't shy about tooting its own horn, so to speak.

Which this administration insists it did in using waterboarding on KSM in 2003; the problem is, who the fuck trusts'em anymore?

Rt.

lawyer Dan OTM. (probably was already stated upthread but eh)

Thanks. Even a stopped clock is right twice a day.

HI DERE will now be singing Orbital all day...

so this thread is basically HOLY SHIT CONSERVATIVE JUDGE DEFENDS TORTURE AND MENTIONS JACK BAUER SCENARIO ON THE RADIO OMG WTF?!?!?!!!

because what exactly is shocking or suprising about that?

It's a matter of decorum.

i mean, i dont really get where anyone who knew anything about scalia would find any reason to get riled up about this

xpost

It should be surprising. It really should be.

You're missing my point, which is "Why are you ceding the important part of his argument (ie, the Constitutional bit) and focusing on the part of his argument that doesn't matter one tiny little bit (ie, the bit completely unrelated to the Constitution and therefore out of his accepted sphere of influence)?"

Justice Scalia responded with a defense of Agent Bauer, arguing that law enforcement officials deserve latitude in times of great crisis. “Jack Bauer saved Los Angeles . . . . He saved hundreds of thousands of lives,” Judge Scalia reportedly said. “Are you going to convict Jack Bauer?” He then posed a series of questions to his fellow judges: “Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer?”

Scalia refutes his own arguments and settles this debate. We don't need special laws to address these types of situations because they exist outside the ordinary function of the law.

We say that it's illegal to steal bread. But what if you were the only person within 100 miles of burning desert, and what if you were literally dying of thirst, and what if the only drink available was a jug of water that someone had left sitting out on their back porch? It would be okay to steal the water then wouldn't it? Of course it would. And we don't need a law saying so. We don't need specific laws tailored to every absurdly unlikely situation that might, possibly, someday arise.

If we needed to torture somebody to prevent a bomb from blowing up a city, we would. And we'd find a way to deal with legal ramifications later. And that's as much thinking as ever ought to be wasted on this moronic "dilemma".

Seriously, though, it's kind of relevant beyond "oh that's shocking thing to say". Right?

contederizer, that was the point I was making re: "his point is not as ludicrous in context as it is in the BBC article". I don't agree with his conclusion but he does actually come across as someone making a reasoned argument and not a complete and utter looney.

FB, the more shocking thing here is the blatant gamesmanship going on in that BBC article, much moreso than Scalia's bad analogy.

FB, the more shocking thing here is the blatant gamesmanship going on in that BBC article, much moreso than Scalia's bad analogy.

exactly

in the article or in the interview? they both seem pretty sound to me actually, journalistically (and i don't always say that about the articles that get posted on the bbc news site)

I will give Scalia this - he was the only one in the audience shown laughing at Colbert's WH Press Corp performance

Once again, here's the transcript:

BBC: Tell me about the issue of torture, we know that cruel and unusual punishment is prohibited under the 8th amendment. Does that mean if the issue comes up in front of the court, it’s a ‘no-brainer?’

SCALIA: Well, a lot of people think it is, but I find that extraordinary to begin with. To begin with, the constitution refers to cruel and unusual punishment, it is referring to punishment on indefinitely — would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer or commit them to jail until you will answer the question — without any time limit on it, as a means of coercing the witness to answer, as the witness should. And I suppose it’s the same thing about “so-called” torture.

Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the 8th amendment in a prison context. You can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.

BBC: It’s a question that’s been raised by Alan Derschowitz and other people — this idea of ticking bomb torture. It’s predicated on the basis that you got a plane with nuclear weapons flying toward the White House, you happen to have in your possession — hooray! — the person that has the key information to put everything right, and you stick a needle under his fingernail — you get the answer — and that should be allowed?

SCALIA: And you think it shouldn’t?

BBC: All I’m saying about it, is that it’s a bizarre scenario, because it’s very unlikely that you’re going to have the one person that can give you that information and so if you use that as an excuse to permit torture then perhaps that’s a dangerous thing.

SCALIA: Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can an infliction of pain be?

There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”

information that is crucial to this society

http://inventorspot.com/files/images/internet_0.img_assist_custom.jpg

so is the issue that you dislike his choice of exaggerated and implausible strawman argument in favor of perhaps a different fantasy action television show?

xpost lol

contederizer, that was the point I was making re: "his point is not as ludicrous in context as it is in the BBC article".

-- HI DERE

Gotcha, but I think Scalia's thinking isn't clear. On the one hand, he says that "Jack Bauer" would never be convicted anyway, but he's still clearly trying to illustrate the need for specific legal permission to torture under certain circumstances. I don't think he intened to refute his own position as thoroughly as I'm arguing he did.

At least Scalia acknowledges that it's a ''tough question.''

dan i sympathize with what you're saying here but it's not as if we're castigating nikki sixx for making a really bad tiramisu, it's the senior member of the supreme court of the united states making john bolton-type arguments to a reporter from a country that has had its own citizens in guantanamo bay

i know i know scalia LOVES to talk shit like this, it is nothing new -- it still manages to boggle my mind though

is your point that this kind of public statement on the part of a US VIP is not notable? xposts

many xposts

The entire trascript is a thought experiment run out as a dialogue. Once you go past the "this isn't in my jurisdiction because the torture isn't intended as a punishment" dodge, you're dealing with an entirely ludicrous hypothetical situation that serves as its sole purpose to point out that you can manufacture any number of scenarios to draw a line as to what is "acceptable" but you can't make an effective determination as to what is "acceptable" until you are presented in the situation; it's the old "how would you react in this situation you've never been in?" question, the correct answer to which is "I don't know, I've never been in that situation." His point, which is dubious but not crazy, irrational or incomprehensible, is that if faced with an extraordinary threat, it seems unreasonable to disallow extraordinary measures to combat it. He is definitely following a "better to ask for forgiveness" methodology here and, while I don't agree with it, I don't think he's crazy or unreasonable for voicing it.

The article makes it sound like he said "lol torture is awesome I'M JACK BAUER".

so is the issue that you dislike his choice of exaggerated and implausible strawman argument in favor of perhaps a different fantasy action television show?

-- John Justen

The issue is not so much how he says it, it's what he's actually saying. Sure, "conservative talking torture, big deal," but this is one of the most direct and unequivocal pro-torture statements I've heard from a major public figure in the last few years. No fudging about what is or isn't torture. No fussy condemnation of it as a preface to endorsing it. He's just coming out and saying that America needs to torture people and needs to have special laws defining the circumstances under which this might happen. Moreover, he's couching this as a giant "fuck you" to anyone who might disagree.

It's way more crazy than you're letting on. The fact that this was presented in a discussion directed at citizens of an allied country is just icing on the cake.

i think this storm in a teacup proves that Godwins law should be renamed JACK BAUER OMGWTF's law.

I have no data to back this up but I find it incredibly hard to believe that this is the most blatant endorsement of torture to come from American conservative leadership. The most recent, yes.

I'D GIVE HITLER A TITTY TWISTER

You are a rock star
You are a rock legend to the max
You can really knock it out
You can really wupp a horse's ass

Antonin Scalia
Antonin Scalia
Antonin Scalia
Antonin Scalia

You are a rocking maniac
You are a singing hyena
You are a rock star in Jesus' name
You can really rock Saddam Hussein's ass

Antonin Scalia
Antonin Scalia
Antonin Scalia
Antonin Scalia

You are my sweet man to the end
You are my honey lover to the max
You are my sweetheart for years to come
You are so lovable to me in the long run

Antonin Scalia
Antonin Scalia
Antonin Scalia
Antonin Scalia

Taco Bell, make a run for the border

I'M ALL BROKEN UP OVER THAT MAN'S RIGHTS

anyone who thinks this is the most blatant endorsement of torture to come out of america from a public official hasn't been paying much attention to the republican public platform. i think its right between the parts about "no new taxes" and "we need to build a catapult with which to launch illegal immigrants back to their native lands"

xposts lololol

Dunno if it's the most blatant, but it's one of 'em. And "conservative leadership" is pretty broad. I'm shocked by the fact that this is coming from a Supreme Court Justice. To me, that's the equivalent of a Senator, President or Vice-President.

He's just coming out and saying that America needs to torture people and needs to have special laws defining the circumstances under which this might happen.

This doesn't actually appear to be what he's saying...? He appears to be saying "None of this is affected by the Constitution and we don't know what would be necessary so drawing a line of acceptability based on hypothetical situations is premature."

It helps to bolster your position if you disagree with the statements as written as opposed to what you are imagining them to say. My biggest objection to this thread is the hysterical overreaction to a bunch of shit that HE DID NOT EVEN SAY while completely glossing over the grounds on which a) his opinion matters, and b) he can be attacked. If you're going to object to this, what is the fucking point of objecting in the least effective, most point-missing manner possible?

xpost: My God, have you never heard Cheney or Bush give an interview?

I'm shocked by the fact that this is coming from a Supreme Court Justice. To me, that's the equivalent of a Senator, President or Vice-President.

then I think you need to go back to high school and try a little harder

Fuck, John, are you really getting all shocked that liberals bug out when conservatives endorse torture? How is this any more surprising than what Scalia said?

Tombot: Equivalent in terms of significance of office, not any other sense.

I think John (like me) is getting frustrated that liberals can't effectively attack conservatives on any issue because at some point they ceded "logic" to them so that they could claim "feelings" but haven't really noticed or capitalized on the fact that conservatives abandoned logic a couple of decades ago when they picked a senile old man to be their figurehead for President.

im a little depressed that people find this even vaguely newsworthy, so not really shocked, more dismayed than anything at how excited people are to freak out about the same shit week after week

xpost yes

That should really say "...can't seem to effectively..." because that's a massively unfair statement but SRSLY WTF PEOPLE

This doesn't actually appear to be what he's saying...?

-- HD

Yeah, I know. Got carried away, and regretted that one as soon as I posted it. The Jack Bauer stuff is clearly a hypothetical though experiment, as you pointed out earlier. Scalia's saying two things:
1) Torture could be okay under certain circumstances, and...
2) As long as it's not "punishment", it's not really a Constitutional matter.

(I'd like to point out that the above unfair statement is probably most of the reason why I like Barack Obama, beyond the whole "lol he's me if I'd gone to law school" thing.)

Dan, I agree, generally, with what you're saying, but I do disagree strenuously with Scalia's argument against the prohibition of torture, and I think it is remarkable that we are even having this conversation in my country.

I think it is entirely possible to make arguments that are not crazy, irrational, or incomprehensible but which are still morally reprehensible, and that is exactly what Scalia is doing here.

im a little depressed that people find this even vaguely newsworthy, so not really shocked, more dismayed than anything at how excited people are to freak out about the same shit week after week

Seriously? So the acceptable response would be ... what? Just shrug it off? How is that a superior way to deal?

He appears to be saying "None of this is affected by the Constitution and we don't know what would be necessary so drawing a line of acceptability based on hypothetical situations is premature."

dan maybe you missed the part where scalia says:

it would be absurd to say that you can’t stick something under the fingernails, smack them in the face

You mean the part that is still part of the hypothetical situation where someone was about to blow up Los Angeles?

yep, that exact part -- the part where you say he steps back and says drawing lines based on hypothetical situations would be premature?

he actually says it would be absurd to forbid putting objects under the suspect's fingernails. in the interview.

How about the part where he says we can't prohibit torture because you never know when you might need to torture somebody?

i'm sure dan has a way to paraphrase that to make it mean the exact opposite, i.e. reasonable thing to say

Remember that he's grounding the hypothetical not just in the 24 hrs. scenario:

I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”

That's not some jokey TV meme, he's talking about Al-Qaeda. He's talking about what's acceptable in the here and now.

Hey guess what guys? I can fucking read.

finally!

Not directed at you personally, HD. But you were pushing the "it's all just hypothetical" bit kinda hard...

there's a joke in here somewhere about scalia literally being the devil's advocate but i appear to have lost my sense of humor entirely

if I was a tinfoil hat asshole I would be postulating that this shit is just to distract everybody from the telco eavesdropping amnesty act, but I know real liberals don't give a shit about that because it isn't as easy to flex indignant over unchecked surveillance as it is when somebody mentions that putting a needle in a finger might be okay in extraordinary circumstances

A total of 18 Democrats joined all Republicans in voting for immunity: Bayh, Inouye, Johnson, Landrieu, McCaskill, Ben Nelson, Bill Nelson, Stabenow, Feinstein, Kohl, Pryor, Rockefeller, Salazar, Carper, Mikulski, Conrad, Webb, and Lincoln.

nevermind what actually got passed in the senate though! one (1) of the supreme court guys said some jerko shit in an interview with the media!

It's just as easy to "flex indignant" over unchecked surveillance, but sometimes the wind blows this way, sometimes that. Why do the momentarily misplaced enthusiasms of other people bother you so much?

we tried to start discussion on the Democratic Congress thread.

Because Tombot is really Glenn Greenwald.

(xpost)

It was also discussed on the Primaries thread. McCain was for it. Obama against. Clinton did not vote.

more xposts

You are talking about a leading figure in a country where segregation was legal until 50 years ago and racism is institutionalized to the point where studies show that having a name that is too ethinc will limit your career options. You are also talking about a country that has always been incredibly hypocritical about "inalienable rights" and who should get them. Why is this a fucking surprise to you? Are you really that naive that you think that this country has any interest in being anything more that a self-serving remorah that leeches resources to support its wealthiest citizens and reacts violently against anything that threatens that? Furthermore, do you think that the most effective way to change that is to flail about wildly on a messageboard when someone in power says something you disagree with?

I hate to be all Dr Morbius here but WAKE THE FUCK UP

And now that THAT is out of the way, yes he is implicitly applying that logic to currently-held detainees and yes I think that's reprehensible. I don't think that shrieking "OMG HE ENDORSED TORTURE" is going to change his mind because Scalia is a smart guy who probably realizes that he is endorsing torture. If you want to attack him, you need to attack the rhetorical basis that allows him to make this facile argument, namely that torture is not punishment and therefore is not covered by the 8th Amendment. I see two ways of doing this:

- Making a counter-argument that torture contravenes "innocent until proven guilty" and is in fact doling out illegal punishment before guilt is proven;

- Drafting a new amendment to the Constitution restricting the use of torture.

The former is hard but not impossible. The second is probably nigh-impossible but (to me) infinitely preferable as the Supreme Court would then be completely beholden to it until such time arises where a later amendment stikes it down.

(I am sure there are more than two ways to combat this, those were just what came to mind.)

Making a counter-argument that torture contravenes "innocent until proven guilty" and is in fact doling out illegal punishment before guilt is proven

i thought that was at least supposed to be a given?? why is that hard?

tbh i think people outside certain internet circles aren't worked up about fisa because everyone has just assumed for awhile now that everything could be tapped at any time

that senator list is like a rollcall of gold-plated jerks

Why do the momentarily misplaced enthusiasms of other people bother you so much?

because I'm bored at work, I've read a bunch of other stuff already, this thread keeps popping up to the top and it's full of BORING OLD SHIT I'VE HEARD TEN BILLION TIMES BEFORE and everybody who tries to make any kind of INTERESTING point instead of just saying "OH MY GOD WHAT A TERRIBLE PERSON" gets dogpiled!

Okay so the fact that people are taking that as a "given" and not putting it forward as a counterargument might be why these arguments are getting so much traction.

HI DERE somewhat OTM in that long rant above.

Except for the part where you say "do you think that the most effective way to change that is to flail about wildly on a messageboard when someone in power says something you disagree with?"

WTF?!? No, we flail about on messageboards for flailing's sake. It's entertaining, and, if you're lucky informative. Personally, I find that it helps clarify my own thinking. I'm not sure what you're lashing out at.

Finally, it wouldn't require a Constitutional amendment. That'd be nice, but a better short-term goal would be some legislation.

everybody who tries to make any kind of INTERESTING point instead of just saying "OH MY GOD WHAT A TERRIBLE PERSON" gets dogpiled

Why not offer some support to the interesting-point-makers, rather than just freaking out WTF YOU LOSERS SRSLY!

I'll admit that the major reason I started arguing with anybody on this thread is because right from the start folks showed up saying STFU WHY ARE YOU TALKING ABOUT THIS BORING SHIT U R DUM, and then my hackles raised.

some other great moments in argumentation you guys might want to tackle and try to work out for yourselves:

"Are you against the death penalty? Well what if someone raped and killed your family what then huh?"

"Do you believe in the right to life? No? Well what if they aborted Einstein/Ghandi/Jesus/your mom/you?"

so yeah i guess my point is that i cant comprehend how/why any of you are taking this even the least bit seriously, since logic negative 101 makes it a laughable and unworthy of discussion argumentative strategy.

YOO GUYS NO ONE EVEN WATCHES 24 ANYMORE GOD

This appears to be this thread's definition of "fun":

"DID YOU SEE WHAT HE SAID? WAHT A TOOL"
"Um, that's not precisely what he said and calling him a tool misses the point that needs to be addressed here"
"STUPID DUMBO YOU CAN'T READ"
"Okay fuck you then"
"YOU WANT A BAZILLION LITTLE TORTURE BABIES"
"No seriously, fuck you"
"FUCK YOU"
"Fuck you"
"FUCK YOU"
etc etc etc

that would be more fun to read

stop me before I mod in and edit all the posts to read like dan's summary

guys i think the only answer here is for courts to grant torture warrants specifying levels of pain depending on how good a case military prosecutors can make vs military-appointed defense lawyers

time would be of the essence cause we're talking about extreme situations, so there could be a sped-up process, kind of like speed dating

lolololololol i am bad for thinking that would be awesome right xpost

WORLDS MOST IMPORTANT XPOST NOTIFICATION RIGHT THERE PEOPLE

when scalia dies obama should appoint michelle obama to the scotus

Okay that would be awesome because that means Scalia would be dead within the next four years.

im not sure how hes not already dead - he too fat to be that old

tbh i think people outside certain internet circles aren't worked up about fisa because everyone has just assumed for awhile now that everything could be tapped at any time

you know what, TH,

...

oh fuck why don't I just do it

"tbh i think people outside certain internet circles aren't worked up about torture because everyone has just known for awhile now that waterboarding goes on all the fucking time"

also salient to the issue at hand: "Sometimes posting to ILX feels a bit like lining up all your stuffed animals and having a pretend dinner party with them."

xpost

I know what can bring this thread back together:

Bush's nominee to replace O'Connor is Harriet Miers

hey im worked up abt fisa over here - im pissed - i want my own amnesty - can i get some of that too wtf

possibly the most fucked up part of the whole fucked up thing is its gonna stop the investigative process so we wont even know what the fuck happened - much less hold anyone accountable

so yeah i guess my point is that i cant comprehend how/why any of you are taking this even the least bit seriously, since logic negative 101 makes it a laughable and unworthy of discussion argumentative strategy.

-- JJ

Yeah, the logic is elementary, and the "imminent doom" scenario is laughable. As an examination of the ideas involved, what Scalia's saying isn't interesting, and I don't think most folks were taking it seriously in that sense. To me, it IS interesting that this lazy crap was presented by a Supreme Court Justice to an audience of BBC listeners. That's primarily what I was responding to - after the initial drunken howl, I mean.

2) As long as it's not "punishment", it's not really a Constitutional matter.

I don't think we need to accept this premise, and frankly I don't. Wouldn't torture in most circumstances be prohibited by the Due Process Clauses of the Fifth and Fourteenth Amendments (Or, if you're a "real" originalist like Thomas and we're talking about a U.S. Citizen, the Privileges and Immunities Clause of the Fourteenth Amendment)? Moreover, insofar as we're not talking about citizens, there's the pesky issue of treaties.

While I understand where you guys are coming from in trying to suggest that Scalia's got a legal point, he's willfully avoiding other constitutional prohibitions when he makes the Jack Bauer move. Insofar as his remarks are limited to the Eighth Amendment they have a certain internal logic, but once he steps into the realm of hypotheticals, shouldn't he at least *mention* that there are other provisions of the Constitution that are implicated?

I'm telling you, the guy's a douche.

J, that is actually the point I am making when I say "use arguments that work, plz".

Yeah, the logic is elementary, and the "imminent doom" scenario is laughable. As an examination of the ideas involved, what Scalia's saying isn't interesting, and I don't think most folks were taking it seriously in that sense. To me, it IS interesting that this lazy crap was presented by a Supreme Court Justice to an audience of BBC listeners.

^^^This

And the fact that this lazy crap is being slung by all sorts of public officials and is a surprisingly common thing to hear. It IS treated seriously, and that is, to me, noteworthy.

Xpost, sorry Dan I'm dense!

Though he's not explicit about it, I think it's clear that when push comes to shove, he's talking about enemy combatants - see his closing statement quoted earlier. He's only couching things in terms of the 8th amendment 'cuz that's how the interviewer framed the question.

Bush admin has made it clear that they don't intend to be restrained by international treaties on this matter, and given that citizens linked to terrorism/terrorists may be treated as enemy combatants, I don't think that constitutionality is a primary concern here.

“Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”

I'll see your Mohammed Atta, and raise you a Terry Nichols. The only way to read Scalia's statement as a clear indication he's talking about only about noncitizens is to presume that he is. Which, I grant you, might be a fair presumption because he's a douchebag. Moreover, the Due Process Clauses specifically apply to all persons, which is why I only mentioned citizens in relation to the Privileges and Immunities Clause.

given that citizens linked to terrorism/terrorists may be treated as enemy combatants

I don't think that's really a fair reading of Hamdi. Eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review. It follows that citizen detainees are entitled to certain basic protections that noncitizen detainees are not entitled to. Plus, there's the whole Jose Padilla problem--can the U.S. label a citizen an enemy combatant when the citizen was arrested on native soil? The Bush Admin. chose to charge him criminally instead of allowing that question to be answered.

The only way to read Scalia's statement as a clear indication he's talking about only about noncitizens is to presume that he is.

-- J

Well, given that he's setting things in the "current" moment, I don't think it's a big leap to assume he's invoking our current (foreign) enemies.

As far as the Padilla thing goes (citizens arrested on US soil as ECs), yeah, it's an usettled issue. But you've gotta know they'll make that argument when/if necessary, 'cuz ECs are explicity excluded from due process guarantees.

True, but assuming that Scalia abides by the rationale of his Hamdi dissent, I wouldn't expect him to go along with it. Of course, it's Scalia, so I'm not sanguine about that.

(I should say, unless the Writ of Habeas Corpus is properly suspended as well)

Not sure about Scalia, but the viability of US citizens as ECs thing has had precedent since WWII: Ex parte Quirin. Indefinite detention w/o trial of any sort is another matter.

That's to say, if US citizens can be classed and tried by tribunal as ECs (and I think they can), why whould we imagine that they can't be tortured in the same manner?

" A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions." Hamdi v. Rumsfeld, 542 U.S 507 (Scalia, J., dissenting).

Check it: http://supct.law.cornell.edu/supct/html/03-6696.ZD.html

Touché

(that was an xpost, as is this)

I don't think Quirin supports that viewpoint. There's a substantial difference between treating "invading" German soldiers as enemy combatants and kidnapping some crazy Chicago gangbanger as he gets off a plane *in Chicago*. Hamdi is the case that said U.S. Citizens could be treated as unlawful combatants, but all of the majority opinions in that case seemed to recognize that Hamdi was entitled to *some* additional protection because of his status as a U.S. citizen arrested on foreign soil. If the Padilla case had gotten to the Court before they charged him criminally, we would have had the real test. But the Bush Administration blinked. And that should tell you something.

There was an American citizen involved w/ Quirin. At least, that's my understanding & recollection.

I agree, re: Padilla, but I think the issue is different there. That was more about indefinite detention w/o a trial of any sort. If they'd gotten him to and through a military tribunal, they might not have been forced into the position they were.

Sorta:

"All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority, and that he has not since lost his citizenship. The Government, however, takes the position that, on attaining his majority he elected to maintain German allegiance and citizenship, or in any case that he has, by his conduct, renounced or abandoned his United States citizenship . . . For reasons presently to be stated we do not find it necessary to resolve these contentions." Ex Parte Quirin, 342 U.S. 1 (1942).

More from Quirin:

"Petitioners do not argue, and we do not consider, the question whether the President is compelled by the Articles of War to afford unlawful enemy belligerents a trial before subjecting them to disciplinary measures. . . . We need not inquire whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents. For the Court is unanimous in its conclusion that the Articles in question could not at any stage of the proceedings afford any basis for issuing the writ. . . . Accordingly, we conclude that Charge I, on which petitioners were detained for trial by the Military Commission, alleged an offense which the President is authorized to order tried by military commission; that his Order convening the Commission was a lawful order, and that the Commission was lawfully constituted; that the petitioners were held in lawful custody, and did not show cause for their discharge. It follows that the orders of the District Court should be affirmed, and that leave to file petitions for habeas corpus in this Court should be denied."

Quirin is weird, because of what the Court refused to do. It specifically refused to address the question of whether Congress had the authority to proscribe the President's authority w/r/t enemy combatants (a question largely answered in the affirmative in Hamdan, I believe). Most importantly, though, this is how Quirin gets around the citizen/noncitizen problem:

"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and, with its aid, guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war. Cf. Gates v. Goodloe, 101 U.S. 612, 615, 617-18. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused."

Again, this is not analogous to Padilla's situation, in part because he wasn't part of an invading force, and in part because he wasn't acting as an agent of a foreign government in a time of war. The Bush Admin. has also argued that because Al Queda isn't a foreign government that the laws of war don't apply to any of their associates; you can sort of see where this leads.

God I made this thread all geeky

thank you

Again, this is not analogous to Padilla's situation, in part because he wasn't part of an invading force, and in part because he wasn't acting as an agent of a foreign government in a time of war. The Bush Admin. has also argued that because Al Queda isn't a foreign government that the laws of war don't apply to any of their associates; you can sort of see where this leads.

Forgive my denseness -- and my reluctance to wade through the legal thickets of Hamdan -- but did the Court in 2004 use the Bush administration's own logic against it?

er, I meant HAMDI

that's a great post J, and it seems to highlight the central legal strategy of the Bush administration which is "the usual rules don't apply" (but of course there are no other rules to substitute so we get to make them up as we go along yay!)

a great SET of posts, I should say

I don't think so . . . what do you mean, specifically?

Handy chart:

Hamdi - citizen, captured on foreign soil
Hamdan - noncitizen, captured on foreign soil
Padilla - citzen, captured in U.S.

Also important to your question (I think): Rasul v. Bush, which dealt with the question of whether Gitmo was a U.S. controlled area sufficient to allow foreign nationals to invoke U.S. federal jurisdiction to issue a writ of habeas corpus. Scalia dissented vehemently, arguing that Gitmo was not part of the U.S., that the petitioners were non citizens, and that therefore the habeas couldn't issue because U.S. courts had no jurisdiction.

Clear as mud, right?

(xpost, thanks!)

(Note that many of the questions we thought had been answered by Rasul are being heard again this term in Boumediene v. Bush -- god knows how that's going to turn out)

I don't think so . . . what do you mean, specifically?

This was directed at Alfred, btw.

I mean that in every one of these cases I see a pattern of attempting to create a kind of legal no-man's land

oh, ok nevermind

I mean that in every one of these cases I see a pattern of attempting to create a kind of legal no-man's land

Oh yeah, that's the whole point. That's why we have Gitmo--it's the one place in the world where no law applies. Scalia's Rasul dissent spends a lot of time talking about "sovereignty," and at the oral arguments in Boumediene he got really annoying on the subject, but the bottom line w/r/t that issue is that if U.S. law doesn't even in a limited way there, then everything that the Bush Admin. does there is fine. I mean, is Castro gonna stop 'em? During the Boumediene oral argument there was all this discussion of the lease between the U.S. and Cuba relating to Gitmo . . . to the average listener, it was pretty surreal.

It's noteworthy that they didn't try to take Padilla to Gitmo. It's also noteworthy that once the Bush Administration discovered that Hamdi was a citizen, they whisked him out of Gitmo and put him in a military prison in Virginia. At a result, Scalia had no problem at all with Hamdi's habeas petition, even though he was captured on foreign soil.

and the admin also tends to favor people who are skeptical of the very idea of "international law," no?

anthony kennedy believes in the idea of international law, and it was his vote that but the 5 in the 5-4 Bush Gore decision. you could go around and around and around with this shit but why get worked up about it? yes, bush and addington and cheney are making up the laws about terror as they go; what about this surprises you?

anthony kennedy believes in the idea of international law, and it was his vote that but the 5 in the 5-4 Bush Gore decision.

not sure what the connection is between part one of this sentence and part two

kennedy is part of the admin--helped usher in the admin. i'm sure there are plenty of people in the admin who look to international law. so what?

"what about this surprises you?" is the most common response to anything said about the Bush administration on any thread on this board. The point isn't whether it's "surprising." Obviously nothing is "surprising" by now Incidentally, sometimes I feel like ILX is primarily an original opinions contest, which isn't really the most useful means of discussing an issue -- not that I'm particularly blaming you for this Que.

I'm not saying "No one in this administration believes in international law." And since Kennedy OBVIOUSLY was not a Bush appointee, I don't see what you're getting at.

What I'm trying to say is that on the one hand the administration often takes a legal strategy of placing things outside the context of U.S. law, and that on the other hand it tends to put international law in ironic quotes, thus creating the no-mans land I'm talking about.

kennedy is part of the admin--helped usher in the admin

also sorry to chain-post but this is just silly

they're not putting int'l in ironic quotes. they're mostly ignoring it. those are two separate concepts.

there are probably a few people in the admin who give a shit about int'l law. that's all i'm saying.

kennedy is a firm believer in international law. it's pretty much him who we can thank for getting us into this mess in the first place. that's all i was saying and i realize it's an overreach.

that's all i was saying and i realize it's an overreach.

LOL this should be on the ILX Crest of Arms^^

WHO cares if the Guantamano Six were tortured?

Not me, that’s for sure, but you would have thought that the world had ended the way some of the Press reported the fact that, at long last, those accused of being the masterminds behind 9/11 were going to be tried.

They talked about kangaroo courts and acted as if these six were only on trial for shoplifting, not the cold-blooded murder of 3,000 innocents.

When will the ruling liberal elite realise we are at war with an enemy that isn’t fighting by the Queensberry rules and certainly doesn’t respect the Geneva Convention.

I wish the Yanks hadn’t used waterboarding to get the confessions but, I’m sorry, these are extraordinary times and they demand extraordinary methods.

If the liberals want to talk about the horrors of torture they should listen to the answerphone messages of the passengers on the planes as they careered into the World Trade Center, or remember the pictures of people who chose to jump rather than be burned alive. That was torture. That was pain. That was injustice.

This isn’t a game, this is war.

These madmen don’t give a warning when they are going to fly planes into buildings. The nutters of 7/7 didn’t phone the police before they pulled the strings on their rucksacks and now is not the time for social niceties and manners. Now is the time to fight fire with fire.

-- Jon Gaunt in the Sun

Nino's interview with Lesley Stahl

Weeklong series of interviews of Scalia by Peter Robinson.

Not sure if I can bring myself to watch him interviewed by someone likely supportive already of Scalia's views.

To quote Frank Black, it's educational.

The interviewer is not that bad. He asks some decent questions, although certainly doesn't grill Scalia as much as I'd like.

I found the part II very revealing, actually. Scalia likes his Constitutional Law philosophy because it provides certainty and protects him from coping with scary change.