Thursday, May 01, 2008

Scalia, Torture, and the Responsibilities of Writers

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.


The Decidenator said...

So your take on the constitution is that the government can torture all they want as long as it's not punishment?

Anonymous said...

No, he's saying that the "cruel and unusual punishment" clause isn't the one that forbids that kind of torture.

Unknown said...

I love reading your blog. It helps me to clarify my thoughts about a wide range of topics, particularly one that is pretty new for me to espouse – atheism. Your insights are nothing short of brilliant. I was blown away by your Pledge story and wish it were mandatory reading for every person in the US – no, make that the world! (Okay, I’d be satisfied if anybody in the White House or in the legislature would read it.)

I applaud your objection to “gotcha reporting,” which I share. I also applaud your willingness to take to task people with whom you normally agree, when you think they are wrong. I’m surprised, however, that you give cover to Scalia’s lexigraphic nit-picking, which he uses to obfuscate the more important point Lesley Stahl was trying to make.

Scalia’s skillful word dissecting succeeded in his clear aim, which was to derail her objection, a tactic used ad nauseum by the right. He was able to completely distract Stahl from her point and get out of answering the objection - an abjection I believe is justified, and which Scalia simply wanted to side-step.

The word “punishment” is found in the Geneva Treaty in conjunction with other directions regarding treatment of detainees. It clearly defines it to apply to the Constitution, (see below) so was not really misused at all.

In addition, the word “punishment” also means “to handle severely or roughly, as in a put to painful exertion, as a horse in racing,” neither of which require a prior infraction, according to So even in this respect, it is not entirely incorrect for Stahl to have used the term “punishment,” although the word, “treatment” might have avoided the argument.


At the end of their article, they appended the Geneva Treaty in which the word “punishment” was used and clearly also meant “treatment.”

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516).

(c) "Cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.

I don’t often make comments on blogs, because is usually an exercise in futility for me to argue with people, as I am no debater or philosopher. However, I’m hoping that you might see my point, and the atmosphere here seems to allow for discussion. Thanks for your blog. It’s one I never miss. I appreciate your insightful posts

Alonzo Fyfe said...


It seems that you are responding to the headline without reading the article.

Police brutality cases (under which torture would apply) are typically decided, not with respect to the "cruel and unusual punishment" prohibition, but under the "due process" clause.

Even if not, the Constitution was written by mortals and they did not think of everything. Over time, they expected us to notice that they had overlooked a few things, thus they gave us the power to amend the Constitution.

Alan Slipp said...

"What's he punishing you for?" Scalia asks. Oh, I don't know... being an Arab, maybe? A Muslim? Who knows what sort of underlying justification there is for treating foreign "darkies" in a way that one would be horrified by if American citizens were subjected to the same?

Many people use the expression "cruel and unusual punishment" without having a clue that it refers to something specific in law, and (at least in my experience) it often refers to mere "cruel and unusual treatment", completely absent the technical meaning of the word in question. I know I have. Most people simply don't use the word in the legal sense - which is not to say that when specifically talking about the law one should be ignorant of the definition, but the point remains.

Stahl's question was certainly badly worded, given the context, but it seems to me playing word games here misses the bigger picture. Scalia is trying to excuse torture. End of story. No amount of quibbling over definitions can change the nature of the act, which ought to horrify us if we have even a shred of human decency.

My two cents, and my first post, at that.

Alonzo Fyfe said...


Welcome. Thank you for the comment. I like intelligent comments because they give me an opportunity to further refine my efforts. Also, some people (e.g., Atheist Observer - whom I have not heard from recently) have forced me into more than one retraction.

I believe the citation you provide is consistent with my interpretation that 'treatment' is covered in the 5th Amendment and 'punishment' (as something distinct from treatment) is covered in the 8th Amendment, and that the prohibition on torture is covered by the 5th Amendment.

This is also consistent with the fact thata a police brutality lawsuit (where torture would almost certainly fall) would be a 5th Amendment "due process" lawsuit, not an 8th Amendment "cruel and unusual punishment" lawsuit.

There is broad public definition of 'punishment' that includes any ill treatment, including ill treatment that a person voluntarily performs on himself (e.g., a 'punishing' exercise routine). There is also an overly general use of the term 'torture' such as, "Man, sitting through that professor's lecture was torture!" But, clearly, these cannot be made the basis of legal interpretation.

bpabbott said...


It is my opinion that your opinion (as I understand it) is open to great manipulation by the executive authority.

The executive may informally sanction/encourage/accept such actions, and if the courts are not involved how does this reconcile?

An individual working for the government may take personal initiative to torture another ... but there no foul? ... even if the government takes no action to punish this wrong doing?

... or are you stating that torture is congruent with the constitution, and as such there is no infringement of law?

Along these lines, how is the treatment of any individual to be qualified as punishment or torture. If torture is permissible then why the need for a justice system? Could the executive, in all cases, claim that there were simply seeking information for the sake of security and kill all those they think might be deserving of it?

... I've painted quite an extreme position, because I don't expect this is what you've intended and hope you will clarify.

Ron Hager said...

Alonzo, here you are taking hundreds of words to explain Scalia's few words excusing the use of torture. Yes, read his comments again in the context of the discussion with Stahl in a forum addressed, not to legal scholars, but to the American public. In that context Scalia was excusing and supporting the use of torture. That man knows who the audience was and he dismissed any discussion beyond his assessment that he knows what is right and good and moral. Bull crap on all the excuses - he was and is, in full support of the use of torture.

Anonymous said...

So it's not punishment unless it's an act performed in congruence with a sentence by a judicial proceeding? So if a prisoner is beaten or otherwise tortured, say by the warden of some prison, it's not punishment because it wasn't in keeping with the sentence? So the constitution is only restricting the range of possible judicial authorized punishments? Is that what you really think the framers had in mind? Everything is OK as long as it's not the authorized version?

The way I interpret the word (and I don't think I'm being in the least irresponsible in doing so, despite what you say) is any act in retribution performed by the government. This includes actions by police, armed forces, judicial system, etc. I sincerely doubt that the torture that's been inflicted by our government under the Bush directives has been wholly for the purpose of inducing information, and completely without a retributive aspect.
Scalia is clearly mincing words here, and in relation to a subject as important as government sponsored torture, that's inexcusable. Bloggers can be easily forgiven for writing about what they infer from his statements. Condemning that interpretation seems inappropriate on your part.

Alonzo Fyfe said...

Some of these arguments seem to follow the pattern, "If X is not unconstitutional by the 8th Amendment then it must be permissible; torture is not permissible, so torture must violate the 8th Amendment."

Which is as invalid as arguing, "If unwarranted searches and seizures is not declared unconstitutional under the 8th Amendment then they must be permissible; unwarranted searches and seizures are not permissible; so unwaranted searches and seizures must violate the 8th Amendment.

Where are you guys getting the idea that the only alternative to saying that torture does not violate the 8th Amendment that it must be constitutional?

Particularly in light of repeated comments by this time that torture is covered under the 5th Amendment.

Which is exactly where the lawsuit would be filed if prison officials were discovered to be routinely abusing prisoners and local courts refused to take action against them.

Anonymous said...

The due process statement is just as vulnerable to word twisting as is the cruel and unusual punishment statement. Your idea that you've found some 'gotcha' in the statements of 'liberals' where you can show your intellectual superiority is what I object to here. You know what they mean, and you know how they are interpreting the word punishment, and you know they are attempting to look beyond Scalia's wordsmithing to what they believe were his real intentions. It is appropriate to object to weakening any part of the constitution, most especially this part given current events.

Matt Sigl said...

Mightn't torture itself be viewed as "punishing" someone for withholding information? What definition of "punishment" would you have to support in which this view, that torture is punishment for withholding information, is incorrect. If it is correct, as I am inclined to think it might be, then the only torture that isn't punishment at all is the completely sadistic and arbitrary kind popular in certain teen slasher flicks. Does Scalia approve this kind of torture?

I must say, Scalia's legal maneuvering with language here is worth of Lewis Carroll. The initial plausibility of his thesis is some sort of negative genius. On some tautological level I suppose I am inclined to agree with him and yet the agreement is only a very narrow sort, limited to a simple distinction between "torture" and "punishment" as narrowly construed terms. In actuality the lines are far more blurry. But Scalia, as we know, does not like shades of gray.