Re: Scalia: Torture Constitutional (NDC)

Ray wrote:

Torture and other prisoner abuses at Abu Ghraib were in large measure
(if not entirely) about humiliation and punishment, not search or
seizure. Scalia ignored this when saying torture isn't "punishment" -
that rational for the use of torture applies not only to Abu Ghraib-
type prisoners but to U.S. citizens as well. Stahl soft-peddled the
issue by not pushing Scalia's reasoning further though - I'm with you
there.

I disagree with Scalia, I think the correct interpretation by the courts
should be that cruel and unusual treatment should be forbidden at any stage
of incarceration, not just after someone has been convicted and their
treatment is the result of sentencing (which is how I would interpret
"punishment)." However, the framers didn't use the word treatment, they
used the word punishment, so we need to build a strong case if we're going
to take their words to mean something other than what they mean on their
face. That isn't impossible, for example the Constitution refers to the
President using the pronoun "he" yet we wouldn't take that to mean a woman
cannot hold the office.

Another issue is how far U.S. legal protections apply to foreign nationals
in other nations even when they are in the custody of U.S. forces. What
would be the status of an alleged guerilla fighter in Iraq if he was
captured by American troops but then turned over to British troops, which
law holds sway, that of the U.S., Great Britain, or Iraq? Should Saddam
Hussein have been entitled to due process under American law because he was
in the custody of American soldiers? Does it matter if the prisoner is a
civilian as opposed to a uniformed soldier, what exactly is an unlawful
combatant? Are sectarian fighters not in the service of any nation entitled
to the same protections as Prisoners of War? The Constitution appears to
recognize that in some respects civilian law does not hold sway in the armed
services, how confident can we be as to which branch of U.S. law should
apply to prisoners in Iraq, supposedly a sovereign nation? Then there are
the Geneva Conventions, the War Crimes Act, and the various fumbled attempts
by the Bush administration to make it all go away. I assume nobody here
will argue that what happened at Abu Ghraib was wrong but is anyone prepared
to lay down chapter and verse on the legal details?

Scalia himself admits that judicial activism has left him in the minority in
some regards, many judges just don't want to take as strict a line as he
does in thinking that the Constitution means what it says as opposed to what
we want it to mean. However I found his position somewhat persuasive in
that not everything is a pressing Constitutional issue. If the Uniform Code
of Military Justice prohibits prisoner abuse such as took place at Abu
Ghraib and prosecutions resulted from that (albeit not high enough up the
chain of command for my taste) then where does a debate in Constitutional
terms come from? Why is Lesley Stahl guessing which Amendment applies
anyway? She'd have been on firmer ground if she'd been asking about Gitmo
where Scalia was on the losing side in a SCOTUS ruling.

However I don't get "Torture and other prisoner abuses at Abu Ghraib were in
large measure (if not entirely) about humiliation and punishment,"
punishment had nothing to do with it. That foulness resulted from the
proverbial 'other government agency' asking for abuse to psychologically
break down prisoners for easier interrogation and from some guards being
sadistic rat-bastards. But punishment? Other than for being in the wrong
place at the wrong time what were those guys being punished for? How can
you be punished when you haven't even been accused much less tried?


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