Scalia: It's OK to torture ... the innocent

Posted 28 weeks 1 day ago by Joel

In the interview with the Law in Action programme on BBC Radio 4, he said it was "extraordinary" to assume that the ban on "cruel and unusual punishment" - the US Constitution's Eighth Amendment - 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."

This appears to be where Scalia's famous "originalism" becomes absurd. Scalia seems to suggest that our Founding Fathers decided to ban torture for people whose guilt had been established -- but made it allowable when questions of guilt or innocence are still very much in play.

Wow.

In fact, back in the day, the judges used to pass these "torture warrants" that would allow torture in certain circumstances. Professor Dershowitz of Harvard Law was one of the first people to unearth this history.

[Full disclosure: I used to work for Dershowitz.]

Of course, many civil libertarians are worried about that, but yes, it is legal.

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