Why Scalia worries me in D.C vs. Heller...

Status
Not open for further replies.
M

Musketeer

New member
http://www.reuters.com/article/poli...Type=RSS&feedName=politicsNews&rpc=22&sp=true

Scalia said that it was "extraordinary" to assume that the U.S. Constitution's ban on "cruel and unusual punishment" also applied to "so-called" torture.

"To begin with the Constitution ... is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime," he said in an interview with the Law in Action program on BBC Radio 4.

Scalia said stronger measures could be taken when a witness refused to answer questions.
Click to expand...

I always was luke warm on Scalia because I saw him as a little too eager to grant gov't power. So the COTUS only protects you against cruel and unusual punishement AFTER you have been convicted of a crime and it doesn't apply to say, the police beating a confession out of you. :barf:

Sorry but Scalia's logic is flawed, and because it is flawed in favor of "the right" I fear many who are pro-2A will misinterpret this to believe he is therefore in allegiance with us. Scalia has a well known respect for precedent and a willingness to grant the gov't authority wherever it can be interpreted to have such. If he sees the gov't loosing too much power in a pro-2A ruling I do not know if he will go for it.
 
I always was luke warm on Scalia because I saw him as a little too eager to grant gov't power. So the COTUS only protects you against cruel and unusual punishement AFTER you have been convicted of a crime and it doesn't apply to say, the police beating a confession out of you.

Sorry but Scalia's logic is flawed, and because it is flawed in favor of "the right" I fear many who are pro-2A will misinterpret this to believe he is therefore in allegiance with us. Scalia has a well known respect for precedent and a willingness to grant the gov't authority wherever it can be interpreted to have such. If he sees the gov't loosing too much power in a pro-2A ruling I do not know if he will go for it.
Click to expand...

You are expanding what he said to an unsupported conclusion.

As far as the constitution, yes the prohibition on cruel and unusual punishment only applies to punishment, because thats what it says. To apply this prohibition to anything else would be adding language that isn't in the constitution. What happens in interrogations and detention is covered by other parts of the constitution.

Scalia is many things, but having constitutionally deficient opinions isn't one of them. Your allegation that he pads government power where he sees it slipping is simply unfounded.
 
So torture in the process of questioning is then Constitutional if any information gained is not used against you... should you survive.
 
All judges scare me, that's how it's supposed to work. The SCOTUS really scares me.


I hope this case comes down on the side of right, but will not be surprised whatever happens.
 
So torture in the process of questioning is then Constitutional if any information gained is not used against you... should you survive.
Click to expand...

No, that isn't what Scalia is indicating.

He is indicating that the 8th am means that punishment for crimes should not be cruel and unusual -- no drawing a quartering for treason or chopping off hands for shoplifting. It has no application to the issue of forced confessions.

That doesn't equate to a blanket endorsement of forced confessions.
 
So torture in the process of questioning is then Constitutional if any information gained is not used against you... should you survive.
Click to expand...

This isn't as difficult as you're making it. C&U punishment has no application to interrogation and detention. It only is applicable after someone has been convicted and is awaiting punishment.

This doesn't mean that other parts of the constitution don't protect people from having confessions beaten out of them, it simply means that this section isn't applicable.
 
This doesn't mean that other parts of the constitution don't protect people from having confessions beaten out of them, it simply means that this section isn't applicable.
Click to expand...
So does Scalia consider torture Constitutional when not done as punishment? Where in the COTUS is it NOT allowed?

Sorry but I see the COTUS as strictly limiting gov't's power over the individual. "Unless we say you can do this then the right is that of the people" and all that. I would think it pretty clear that people should be able to expect their gov't is not allowed to torture them to gain information they may or may not have. I do not think there has to be a specific prohibition in the COTUS saying "The gov't will not use waterboarding to gain information."
 
So does Scalia consider torture Constitutional when not done as punishment? Where in the COTUS is it NOT allowed?
Click to expand...

Cruel and unusual punishment is disallowed in the 8th Amendment.

Torture to obtain a confession or evidence is disallowed by the 5th amendment;
nor shall be compelled in any criminal case to be a witness against himself.
Click to expand...

Now, if government agents beat the bejesus out of you just for grins & giggles, that would fall into a separate category under state or federal laws or it could be appealed under the 9th amendment;
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Click to expand...

The 9th amendment protects unenumerated (un-numbered or non-listed) rights and one could argue that citizens have the right to not be beaten, tortured or abused while in government custody.
 
So does Scalia consider torture Constitutional when not done as punishment? Where in the COTUS is it NOT allowed?

Sorry but I see the COTUS as strictly limiting gov't's power over the individual. "Unless we say you can do this then the right is that of the people" and all that. I would think it pretty clear that people should be able to expect their gov't is not allowed to torture them to gain information they may or may not have. I do not think there has to be a specific prohibition in the COTUS saying "The gov't will not use waterboarding to gain information."
Click to expand...

I'm beginning to see why you have the problems you have.

The 5th amendment prohibits torture, coercive interrogation, and all those nasty things you've been talking about.

You made the logical leap that because Scalia doesn't think C&U punishment applies to torture/interrogation, thats he's fine with the government torturing suspects. He never said that.

Waterboarding non US citizens who are held in foreign countries doesn't implicate the constitution. Even if it did, it would not implicate the 8th amendment because this only is triggered after a conviction.

This is all really simple if you stick to the words on the page. When we start talking about "motives" or "themes" rather than what actually there, thats when we get into trouble.
 
Waterboarding is hard for me to consider torture from any historical standpoint. Although it may scare the crap out of you it should not cause any physical damage.If they did it to you for not paying your taxes, that would be punishment. Trying to find out who you are planning to kill is torture. Two different things entirely.

If that is all the Birkenstock crowd has to rally around we must not be too evil.
 
If waterboarding is simply an interrogation technique, then police should feel free to use it when interrogating criminal suspects also.

It would also be a useful tool for the IRS when auditing income tax returns.
 
If waterboarding is simply an interrogation technique, then police should feel free to use it when interrogating criminal suspects also.
Click to expand...

Fallacious argument. Because it is not constitutional to use against an american citizen in the process of a crominal interrogation does not make it torture.
 
Why is it not constitutional to use waterboarding against US citizens?
I don't see how Amendment V precludes the use of waterboarding.
 
Would not waterboarding criminal suspects here at home run afoul of the Fifth?

I am not real clear on how or if the protections of the COTUS apply to enemy combatants.
 
Unregistered, it surely is unconstitutional, under either the 5th, 8th, or 9th amendments. STAGE 2, note that the protections of the Constitution are (mostly) not limited to US citizens. Zerojunk, the definition of "torture" is generally not limited to only those things that cause physical damage...

en.wikipedia.org/wiki/Torture said:
Torture is defined by the United Nations Convention Against Torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act...
Click to expand...

Scalia was arguing that torture is legal in certain circumstances. I find that extremely disturbing, and typical of our current government. :mad:
 
Scalia was arguing that torture is legal in certain circumstances. I find that extremely disturbing, and typical of our current government.
Click to expand...

No he's not...wow...

He's saying that Cruel and Unusual Punishment refers to...well, punishment. The only way the Eighth would have anything to do with torture is if we randomly tortured folks after they were found guilty. Do you understand?

As WELL noted above, the prohibition of torture is covered by other portions of the Constitution as well as State and Federal laws.
 
As WELL noted above, the prohibition of torture is covered by other portions of the Constitution as well as State and Federal laws.
Click to expand...

I am not trying to be dense here, but I still don't see exactly how waterboarding of criminal suspects is covered by the Constitution. I don't see how the 5th amendment would prohibit it, if it is simply an interrogation technique.
 
Status
Not open for further replies.
Back
Top