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."

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?