Scalia's Tortured Logic

Posted by Jon Ponder, Pensito Review at 9:00 AM on May 1, 2008.

The meaning of the Eighth Amendment to the Constitution could not be clearer:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

And yet, beginning in 2002, the most senior members of the Bush administration, including Dick Cheney, Sec. of State Colin Powell, National Security Adviser Condoleezza Rice, Attorney Gen. John Ashcroft and others, met dozens of times to draft a set of torture guidelines for use by CIA interrogators. It’s no wonder that Jonathan Turley, a strong advocate of impeaching Pres. Clinton, called their actions a war crime and compared their sessions to a meeting of gangster Tony Soprano’s Bada Bing Club.

On “60 Minutes” Last Sunday, Supreme Court Justice Antonin “Nino” Scalia offered a new and, well, tortured rationale for the legality of what Bush has euphemistically called “advanced interrogation techniques”:

STAHL: If someone’s in custody, as in Abu Ghraib, and they are brutalized, by a law enforcement person — if you listen to the expression “cruel and unusual punishment,” doesn’t that apply?

SCALIA: No. To the contrary. You think — Has anybody ever referred to torture as punishment? I don’t think so.

STAHL: Well I think if you’re in custody, and you have a policeman who’s taken you into custody–

SCALIA: And you say he’s punishing you? What’s he punishing you for? … When he’s hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?

As often happens, Keith Olbermann speaks for every sane American:

The second most senior associate justice on Mr. Bush‘s Supreme Court, Antonin Scalia, on TV now repeating in essence what he said earlier, that torture is not really as the Constitution prohibits, cruel and unusual punishment…

So you can torture the innocent or not yet proved guilty but you can‘t punish the guilty with torture? You don‘t see any logical inconsistency in that idea? The concept of punishment being in and of itself, torture or vice versa, that isn’t very pretty obvious to you? You, still there, Justice buddy? OK. Not only do I want to see your diploma, now, I want to see your grade point average.

Media types and conservatives still deride Bill Clinton for saying in a deposition in a civil lawsuit a decade ago, “It depends on what the meaning of the word ‘is’ is.” And yet, here we have a Supreme Court justice playing semantics over the definition of torture — and the media has barely taken notice.