I don’t think that I will be able to forgive liberals for a long time for this – for putting me in a position where I feel compelled to defend the likes of Supreme Court Justice Anthony Scalia. However, Scalia recently made some comments about the constitutionality of torture that liberal writers have taken well out of context in order to score political points.
There are enough political points that can be scored against Scalia without making things up about him.
Scalia's comments were a part of the following exchange on the CBS news show 60 Minutes
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?
Scalia is right.
For something to count as punishment it has to be a penalty inflicted by law for the commission of a crime.
Punishment is when the law states, "Any person driving greater than 25 miles per hour within 1000 feet of a school shall be skinned alive in a vat of salt water."
This is punishment in the legal sense. It is punishment because the state has declared that this action shall be taken against a person upon conviction of a crime. It is done as retribution for a past offense.
If a soldier drags an Iraqi citizen out of his house, straps electrodes to his genitals, then connects the wires to the car battery in order to get information out of him, this is torture. It is also cruel. However, it is not punishment in the legal sense. The 8th Amendment does not apply.
There is a Constitutional prohibition that applies in this case.
No person shall be . . . deprived of life, liberty, or property, without due process of law
Plus there are all sorts of provisions for what counts as due process of law. The fact that necessity requires depriving people thought to be enemy soldiers of liberty without due process of law in terms of a trial and conviction is much of the reason why prisoners of war may not be subject to harsh punishment. The harsher the punishment, the more due process is required to prove that the punishment is justified.
The moral issue that I have with this is that those who wrote gotcha articles against Scalia on this issue should have known the truth about what he said.
Those who knew but who did not care have shown that they are the type of people who are comfortable with bearing false witness against others for the purpose of promoting (unjustified) hostility against them. We do not need these types of people in this culture. We are much better served by people who care about the truth, and who will confine their attacks to the things people actually say and do because they are wrong, and not make up fictions for the sake of promoting hostility.
Those who did not know what Scalia actually meant were intellectually reckless. They were still people motivated by a desire to hate and, as a result of that motivation, blinded themselves to relevant facts that a concerned and responsible person would have seen. I have little doubt, in most of these cases, that if a liberal had said exactly the same thing, many of these willfully blinded people would have instantly seen the fact that, "Oh, no, this liberal that I love (for being liberal) was not saying that torture is good. He was saying that torture for the sake of getting information is not punishment in the legal sense. Punishment means retribution for a past crime not harsh treatment for the purpose of extracting information."
They did not see this answer in this case because they did not want to see it. Their desire to score political points against another was stronger than their desire to see the truth, and their relative lack of interest in the truth is a moral strike against them.
We can add to the moral transgressions in this case that the writers were not only willing to distort Scalia's words in order to score gotcha points against the political right, but were also willing to distort the Constitution. At issue here is the interpretation of the 8th Amendment. An eagerness to distort the meaning of the word punishment for political ends is an eagerness to distort – to miseducate people on – the meaning of the Constitution for the sake of political expediency.
We can extend this sphere of moral culpability outward to include the audience for these writers. This type of writing exists to the degree that there is an audience for it – a group of readers whose attitude is, "Do not tell me the truth. Tell me what I want to hear." This is the attitude that makes Fox News popular, and the attitude that is responsible for a political campaign that completely lacks substance.
We can also expand this sphere of moral culpability by adding the crime of hypocrisy to the moral offenses. Many of those who embrace the distortion of Scalia’s words will condemn political rivals who are too eager to accept distortions in their own thinking.
The first thing we need are readers who are willing to demand from writers a greater respect for the truth – readers who, on discovering such a willful blindness to the facts in an issue say, "I can't trust that writer any more – time to move on and find one who respects truth over rhetoric."
We also need readers willing to condemn other readers who do not follow the same standard. Readers who are willing to say to their neighbors, "Your decision to be willfully blind to obvious distortions made for political purposes makes you a part of the problem."
Like all moral crimes, this one will never go away. However, like all moral crimes, any success we make in reducing the frequency and magnitude of these crimes makes the world a better place than it would have otherwise been.