Scalia: No, really, I meant that it's OK to torture the innocent!

Posted 11 weeks 6 days ago by Joel

A couple of months ago, I suggested that Antonin Scalia's view of the Constitution allows you to torture people suspected of being terrorists -- but not people convicted of being terrorists. Jim Lakely, bless him, suggested that this only applied to foreign nationals who aren't protected by the Constitution -- so no worries, really.

Let's take a look at Scalia's "60 Minutes" appearance last night:

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?

Now Scalia's right -- earlier in the clip -- when he suggests that the Constitution doesn't ban every odious act under the sun. And it's true that in this clip, he's talking about a potential prisoner at Abu Ghraib. But he's not setting that context and arguing here that the Constitution doesn't apply to foreigners -- though he may well believe that. He's arguing that the state is prohibited from torturing you as punishment for terrorist acts -- in other words, if you've been convicted or otherwise ajudicated as a terrorist -- but if the state suspects that you're a terrorist, well, then, you're Constitutional fair game.

You're innocent until proven guilty, and we can beat you until we know you're guilty.

Seems lopsided, no?

Weirdly, though, I was charmed by his grin at the end of the clip.