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."

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.