How about the part where he says we can't prohibit torture because you never know when you might need to torture somebody?
― Fluffy Bear Hearts Rainbows, Wednesday, 13 February 2008 23:37 (sixteen years ago) link
i'm sure dan has a way to paraphrase that to make it mean the exact opposite, i.e. reasonable thing to say
― Tracer Hand, Wednesday, 13 February 2008 23:38 (sixteen years ago) link
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.
― contenderizer, Wednesday, 13 February 2008 23:38 (sixteen years ago) link
Hey guess what guys? I can fucking read.
― HI DERE, Wednesday, 13 February 2008 23:41 (sixteen years ago) link
finally!
― Tracer Hand, Wednesday, 13 February 2008 23:42 (sixteen years ago) link
Not directed at you personally, HD. But you were pushing the "it's all just hypothetical" bit kinda hard...
― contenderizer, Wednesday, 13 February 2008 23:44 (sixteen years ago) link
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
― Tracer Hand, Wednesday, 13 February 2008 23:46 (sixteen years ago) link
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
― El Tomboto, Wednesday, 13 February 2008 23:48 (sixteen years ago) link
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!
― El Tomboto, Wednesday, 13 February 2008 23:50 (sixteen years ago) link
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?
― contenderizer, Wednesday, 13 February 2008 23:51 (sixteen years ago) link
we tried to start discussion on the Democratic Congress thread.
― Alfred, Lord Sotosyn, Wednesday, 13 February 2008 23:51 (sixteen years ago) link
Because Tombot is really Glenn Greenwald.
(xpost)
― Alfred, Lord Sotosyn, Wednesday, 13 February 2008 23:52 (sixteen years ago) link
It was also discussed on the Primaries thread. McCain was for it. Obama against. Clinton did not vote.
― Fluffy Bear Hearts Rainbows, Wednesday, 13 February 2008 23:54 (sixteen years ago) link
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.
― HI DERE, Wednesday, 13 February 2008 23:54 (sixteen years ago) link
(I am sure there are more than two ways to combat this, those were just what came to mind.)
― HI DERE, Wednesday, 13 February 2008 23:57 (sixteen years ago) link
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
― Tracer Hand, Wednesday, 13 February 2008 23:58 (sixteen years ago) link
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!
― El Tomboto, Thursday, 14 February 2008 00:00 (sixteen years ago) link
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, Thursday, 14 February 2008 00:00 (sixteen years ago) link
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.
― contenderizer, Thursday, 14 February 2008 00:01 (sixteen years ago) link
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!
― contenderizer, Thursday, 14 February 2008 00:03 (sixteen years ago) link
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.
― Fluffy Bear Hearts Rainbows, Thursday, 14 February 2008 00:06 (sixteen years ago) link
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.
― John Justen, Thursday, 14 February 2008 00:06 (sixteen years ago) link
YOO GUYS NO ONE EVEN WATCHES 24 ANYMORE GOD
― jhøshea, Thursday, 14 February 2008 00:08 (sixteen years ago) link
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
― HI DERE, Thursday, 14 February 2008 00:09 (sixteen years ago) link
that would be more fun to read
― El Tomboto, Thursday, 14 February 2008 00:09 (sixteen years ago) link
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
― Tracer Hand, Thursday, 14 February 2008 00:10 (sixteen years ago) link
lolololololol i am bad for thinking that would be awesome right xpost
― John Justen, Thursday, 14 February 2008 00:11 (sixteen years ago) link
WORLDS MOST IMPORTANT XPOST NOTIFICATION RIGHT THERE PEOPLE
when scalia dies obama should appoint michelle obama to the scotus
― jhøshea, Thursday, 14 February 2008 00:12 (sixteen years ago) link
Okay that would be awesome because that means Scalia would be dead within the next four years.
― HI DERE, Thursday, 14 February 2008 00:12 (sixteen years ago) link
im not sure how hes not already dead - he too fat to be that old
― jhøshea, Thursday, 14 February 2008 00:14 (sixteen years ago) link
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"
― El Tomboto, Thursday, 14 February 2008 00:14 (sixteen years ago) link
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
― John Justen, Thursday, 14 February 2008 00:14 (sixteen years ago) link
I know what can bring this thread back together:
Bush's nominee to replace O'Connor is Harriet Miers
― HI DERE, Thursday, 14 February 2008 00:15 (sixteen years ago) link
hey im worked up abt fisa over here - im pissed - i want my own amnesty - can i get some of that too wtf
― jhøshea, Thursday, 14 February 2008 00:16 (sixteen years ago) link
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
― jhøshea, Thursday, 14 February 2008 00:17 (sixteen years ago) link
-- 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.
― contenderizer, Thursday, 14 February 2008 00:22 (sixteen years ago) link
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, Thursday, 14 February 2008 00:24 (sixteen years ago) link
J, that is actually the point I am making when I say "use arguments that work, plz".
― HI DERE, Thursday, 14 February 2008 00:26 (sixteen years ago) link
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.
― Fluffy Bear Hearts Rainbows, Thursday, 14 February 2008 00:28 (sixteen years ago) link
Xpost, sorry Dan I'm dense!
― J, Thursday, 14 February 2008 00:29 (sixteen years ago) link
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.
― contenderizer, Thursday, 14 February 2008 00:36 (sixteen years ago) link
“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.
― J, Thursday, 14 February 2008 00:51 (sixteen years ago) link
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.
― contenderizer, Thursday, 14 February 2008 01:10 (sixteen years ago) link
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.
― J, Thursday, 14 February 2008 01:18 (sixteen years ago) link
(I should say, unless the Writ of Habeas Corpus is properly suspended as well)
― J, Thursday, 14 February 2008 01:19 (sixteen years ago) link
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.
― contenderizer, Thursday, 14 February 2008 01:20 (sixteen years ago) link
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?
― contenderizer, Thursday, 14 February 2008 01:22 (sixteen years ago) link
" 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).
― J, Thursday, 14 February 2008 01:26 (sixteen years ago) link