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."

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.

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.