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."

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