Let Us Now Praise Judge Scalia, Who Gives Us Hope in This Dark Hour

I must take issue with the voices now being raised against Judge Antonin Scalia's contention that torture is not prohibited by the U.S. Constitution's explicit ban on "cruel and unusual punishment." Critics such as Scott Horton have offered withering denunciations of Scalia's claims, which were offered up in an interview with BBC radio this week. But I think they have underestimated the exquisite subtlety of Scalia's argument. Indeed, instead of rejecting this interpretation by a jurist widely praised for the sweaty muscularity of his intellect, I think we should embrace it, champion it -- and use it to put George W. Bush, Dick Cheney, and a vast host of their minions in jail.

In the interview, Scalia insists that the Eighth Amendment strictures against cruel and unusual punishment refer only to punishment; i.e., to the treatment of a prisoner who has been tried and convicted in a court of law and is now being punished via his judicially determined sentence. As the BBC and Raw Story report:

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.... [But] is it obvious that what can't be done for punishment can't be done to extract information that is crucial to the society?"

Justice Scalia argued that courts could take stronger measures when a witness refused to answer questions.

"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?" he asked.

In his reference to a bomb in Los Angeles, Scalia is of course referring to that lodestone of modern jurisprudence, the torture-happy Fox TV fictional adventure show, "24." But setting aside for a moment Scalia's zealous promotion of this innovative legal philosophy (known in scholarly circles as the "Bauer Over Blackstone" Movement), let us concentrate instead on the practical applications that Scalia's insight affords us.

Scalia says that the "cruel and unusual punishment" clause only applies to those tried, convicted and sentenced in court -- and not to anyone else. Let's grant that premise (even though some cynics might say that it is actually a piece of, well, tortured logic offered up by a partisan hack and third-rate blowhard desperate to justify filthy crimes committed by his ideological comrades). What then would we do with cruel and unusual acts perpetrated on someone who has not been tried and sentenced in court? If those acts are not covered under the Eighth Amendment, where then would they fall?

Here we will emulate Judge Scalia's own example, and illustrate our point with a hypothetical situation. We cannot not pretend to follow his muscle-bound brain into the Kierkegaardian complexities of "24," of course, so our illustration will necessarily be more homely and simple. If, for example, we were to tie Antonin Scalia to a chair and smack him in the face or stick needles under his fingernails, or chain him in a cold room for days on end, dousing him at whiles with cold water, or haul his corpulent bulk onto a table, sling his beefy head off the side and pour water down his throat and nose until he thrashed about in a death-panic like a bull-moose gored with a spear, where would we stand in the eyes of the law?

Obviously, this treatment would not be covered under the Eighth Amendment strictures, for as Scalia teaches us, these apply only to convicted prisoners. What then do we do with those who beat, torment and torture people who are not convicted prisoners? Why, they fall under the ordinary criminal code, of course. They are charged with assault, with aggravated battery, even attempted murder, or a number of other offenses, most of them going back hundreds of years in common law.

Thus does the noble judge instruct us well. There is no great constitutional conflict to be resolved here, no legal gray area to be divined only by muscular minds and/or third-rate, hard-blowing partisan hacks. The Eighth Amendment doesn't cover torture, because it doesn't need to cover torture. Those who beat, torment and torture people who are not prisoners are nothing but common criminals, subject to the common law against assault upon another person. Such acts already fall within the purview of the criminal code, and always have done so. If it is against the law to strip Antonin Scalia down to his hairy nakedness, truss him up in a "stress position," beat him and kick him, smear him with fake menstrual blood, threaten him with snarling dogs, inject him with drugs, waterboard him or subject him to other "so-called tortures," then it is against the law to do it to anybody, anytime, anywhere -- and would be so even if the Eighth Amendment never existed.

And it is equally against the law to direct someone or to pay them to carry out such criminal actions, or to engage in a conspiracy to see that such criminal actions are undertaken. The hitman alone is not guilty of murder; the one who hired him is complicit as well. Likewise the knee-capper, the enforcer sent by a crime boss, the guard at a Nazi death camp -- or indeed, a terrorist sent out by a "mastermind" who concocts a plot but doesn't actually do the deed. Those in command are also culpable in the eyes of the law.

And so Judge Scalia is perfectly correct in directing our attention to the fact that the Eighth Amendment need not apply to torture cases, and that heavyweight constitutional arguments on this issue are mere straw men, diversions from the very ordinary criminality involved -- and the very ordinary remedies available. Thes are: 1)  law enforcement investigations to determine who has committed these criminal acts, and who caused them to be done, and who took willing part in the conspiracy to carry them out; 2) the empanelling of grand juries to bring formal charges against the suspects; and 3) an open trial in a court of law to determine their guilt or innocence.

As it happens, we now have free, uncoerced confessions from most of the leading figures in the conspiracy to commit assault, aggravated battery, etc., on a number of victims. We know, for example, that George W. Bush personally approved of the acts, as did several of his top officials and legal advisers. We have copious documentary evidence, in the form of memos, findings, directives, executive orders, etc., in which a number of officials presented detailed "justifications" for the commission of these common crimes. Indeed, in much of this documentary evidence, you can find candid acknowledgements that the acts in question would in fact leave their perpetrators -- and their superiors -- open to criminal prosecution.

Actually, it is -- dare we say it? -- a "slam-dunk case." A competent prosecutor could have the whole gang tied up with a ribbon and a bow in a matter of weeks. No need for impeachment or Harvard Law School debates; just send some uniforms over to haul in the suspects and box up the evidence, get yourself a courtroom and go to work. The war crimes, mass murder and treason cases against this same gang are admittedly a more complex affair, and would take much longer to bring about. But the important thing is to get them off the streets as soon as possible, and the straightforward assault charges, to which they've already confessed, would be the quickest, easiest way to accomplish this.

So let us thank Judge Scalia for pointing the way to this swift and efficient solution. I feel sure that one of his many acolytes now thronging our legal system will be following his lead and filing these charges very soon.