Merged Scalia is dead

[wareyin]

Well, it is legally wrong. Whether it is morally wrong depends on circumstances. I think it's rare that it would be morally correct to torture somebody, but I think those situations will arise more and more in the future as the use of WMDs by terrorists becomes more realistic.



It's mostly wishful thinking on the part of torture opponents. There is no real science behind such studies because of the impossibility of doing real testing. Common sense of course tells us that torture works. Pretty obvious really. It would work on me certainly.

Common sense tells us the wrong thing all the time. In this case, it is fulfilling the wishful thinking of a torture proponent. I'll stick with the experts.

 

[BobTheCoward]

We infringe on people's rights all the time for breaking the law. Don't you think putting a person in jail infringes his rights?

It would be an infringement without due process. I'm a bit confused by the hypothetical, it is extrajudicial interrogation, right?

 

[sunmaster14]

It would be an infringement without due process. I'm a bit confused by the hypothetical, it is extrajudicial interrogation, right?

Extrajudicial? In the context of this thread? Somebody complained that Scalia would rule that torture is constitutional in certain situations. Doesn't that presume that torture would be judicially sanctioned?

 

[BobTheCoward]

Extrajudicial? In the context of this thread? Somebody complained that Scalia would rule that torture is constitutional in certain situations. Doesn't that presume that torture would be judicially sanctioned?

I didn't read the hypothetical that way. I read it as unconstitutional behavior was okay.

 

[sunmaster14]

I didn't read the hypothetical that way. I read it as unconstitutional behavior was okay.

Well, I thought the argument was about Scalia's view of torture as a constitutional matter. He didn't think the 8th Amendment prohibited its use.

 

[BobTheCoward]

Well, I thought the argument was about Scalia's view of torture as a constitutional matter. He didn't think the 8th Amendment prohibited its use.

Scalias argument is the plain text only applies to punishment. Then the examples people gave are some of the 24 TV type examples. If the former is true, the ticking time bomb examples are irrelevant. Any time someone invokes those, they are probably resorting to an extralegal veto over the Constitution.

 

[sunmaster14]

Scalias argument is the plain text only applies to punishment. Then the examples people gave are some of the 24 TV type examples. If the former is true, the ticking time bomb examples are irrelevant. Any time someone invokes those, they are probably resorting to an extralegal veto over the Constitution.

It's a violation of due process to arrest somebody without probable cause. It is not a violation of due process to arrest somebody if there is probable cause. You don't need a year's worth of criminal justice proceedings to throw somebody in jail, or even an hour's worth.

Likewise, it might not be a violation of due process to arrest somebody and torture him with probable cause - the probable cause being that he likely committed a crime and is likely concealing information that could prevent another likely crime. Dershowitz as advocated the use of torture warrants actually. In that case, there would be a somewhat more involved due process.

Personally, I don't agree with the whole torture warrant thing. I would prefer to keep torture illegal and simply have interrogators ask for forgiveness (which I would be willing to grant, depending upon circumstances) rather than permission.

 

[newyorkguy]

Most Americans -- not every single one, but most -- would agree, it's wrong to use torture.

...we and many Western countries have used torture quite liberally throughout our histories....Our police departments routinely use torture...Basically, most people are ok with torturing evil people to extract information that could save innocent lives...

Like I wrote earlier, most Americans are against the use of torture, not every single American, but most.

The 1949 Geneva Convention did outlaw torture.

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. Link to International Red Cross website

 

[sunmaster14]

Like I wrote earlier, most Americans are against the use of torture, not every single American, but most.

The Pew Research Center begs to differ.

The 1949 Geneva Convention did outlaw torture.

The 1949 Geneva Convention does not cover unlawful combatants. There is no question that al Qaeda terrorists are unlawful combatants.

 

[Cl1mh4224rd]

The 1949 Geneva Convention does not cover unlawful combatants. There is no question that al Qaeda terrorists are unlawful combatants.

I've not heard a convincing argument for why they should be treated differently, whether or not they're explicitly covered by the Geneva Convention. It just comes off as a disingenuous argument by people with disturbingly flexible morals, or a need for actual or imagined vengeance.

 

[newyorkguy]

Actually in the original statement I said most Americans think the use of torture is wrong. If you cold call people on the phone and ask them if, "Torture to gain important information from suspected terrorists," can "sometimes or often," or "rarely or never" be justified, many of the respondents will say "sometimes or often." I don't consider that a great poll especially with all the justifications people have heard about in recent years for the use of torture. It's too easy to just say, "Ummm, sometimes or often." Some pollsters admit, if they'd ask people first, "Have you ever given the use of torture, the morality of it, much thought? Have you a formed opinion?" a lot of the respondents would probably say, "No not really." And that would greatly change the results.

They also didn't ask them if they thought torture was wrong. I think a lot of the people who say it can sometimes be justified will still say it's wrong.

I would say the 1949 Geneva Convention doesn't address unlawful combatants.

 

[catsmate]

Or when there are benefits to it beyond "It makes me feel warm and fuzzy inside".

Well if properly implemented it might be cheaper.

What's your point?

The world is a better place without this awful person?

Well, a real-life situation just happened in Belgium a few weeks ago. The Belgian police caught a terrorist who knew about the plot to set off bombs at the airport and a subway station, and if the police had interrogated him properly (with torture, if necessary), the plot may well have been interrupted.

Or it might, well probably, would not. And then there's the next person the authorities are "sure" is "up to something".

 

[catsmate]

Well said. It fascinates me that this simple logic is so hard for pro-death penalty folks to understand. I'll start to consider the death penalty when we have a system that produces no false convictions.

Indeed. And topical given the exoneration of Kevin Allen Harward.

 

[jimbob]

Well, it is legally wrong. Whether it is morally wrong depends on circumstances. I think it's rare that it would be morally correct to torture somebody, but I think those situations will arise more and more in the future as the use of WMDs by terrorists becomes more realistic.



It's mostly wishful thinking on the part of torture opponents. There is no real science behind such studies because of the impossibility of doing real testing. Common sense of course tells us that torture works. Pretty obvious really. It would work on me certainly.

We do know that people confessed to witchcraft under torture.

In an earlier thread, I posted a link to an article about the North Vietnamese forces looking for traitors with torture and severely compromising their organisation as everyone confessed and then gave names of other innocent of their organisation.

 

[newyorkguy]

He actually is talking about how he has already ruled...

Are you sure? The interview was conducted in 2008 and the interviewer was asking "if."

Tell me about the issue of torture, we know that cruel and unusual punishment is prohibited under the 8th amendment. Does that mean if the issue comes up in front of the court, it’s a ‘no-brainer?’

Around the same time as the BBC interview, the Court had reaffirmed the 8th amendment ban on torture in Baze v Rees.


This is from a 2014 article in The Atlantic on another occasion when Scalia was defending the use of torture:

Supreme Court Justice Antonin Scalia weighed in on the debate surrounding the Senate torture report on Wednesday. "I don't know what article of the Constitution that would contravene," the AP quoted him telling a Swiss university audience in reference to torture.

It's a surprising statement for a justice to make. After all, the Supreme Court has held torture to be unconstitutional since its ruling in Wilkerson v. Utah in 1878. In that case, the justices wondered what part of the Constitution would forbid such a cruel and unusual punishment.

The Court cited Wilkerson approvingly as recently as the 2008 death-penalty case Baze v. Rees, where Chief Justice John Roberts wrote that "the Court has held that the Eighth Amendment forbids 'punishments of torture … and all others in the same line of unnecessary cruelty.' Link to article

 

[sunmaster14]

I've not heard a convincing argument for why they should be treated differently, whether or not they're explicitly covered by the Geneva Convention. It just comes off as a disingenuous argument by people with disturbingly flexible morals, or a need for actual or imagined vengeance.

That probably says a lot more about your willingness to consider conservative arguments than the strength of those arguments. The whole point of the Geneva Convention was to make war less horrible and damaging. The drafters of the conventions realized that it is impossible to rid the world of wars, but that it might, through judicious application of game theory, be possible to minimize the negative impact on both the soldiers fighting those wars and the civilians caught up in those wars.

The solution they came up with was a quid pro quo. You obey "civilized" rules of war, and you thereby get legal protection from "uncivilized" methods of war. If you refrain from targeting civilians, or masquerading as a civilian while engaging in combat, then the other side will do the same, and if you are captured, you will be treated humanely.

The obvious argument in favor of such a convention (and I find it hard to believe that anybody would find it unconvincing) is that it incentives combatants to follow the rules of war. If al Qaeda militants want to be treated humanely after they're captured, they should refrain from targeting civilians, and they should wear uniforms that clearly identify themselves as combatants.

 

[sunmaster14]

<snip>

The world is a better place without this awful person?

Well, there are some steps missing in that argument. So far he has not even attempted to fill them in.

Or it might, well probably, would not. And then there's the next person the authorities are "sure" is "up to something".

Everything is subject to a cost-benefit analysis. The cost of torturing somebody is not infinite, and the benefit of torturing somebody is not zero. I refer you to the extensive discussion I had in the Condoleezza Rice thread and the CIA torture report thread.

 

[sunmaster14]

We do know that people confessed to witchcraft under torture.

In an earlier thread, I posted a link to an article about the North Vietnamese forces looking for traitors with torture and severely compromising their organisation as everyone confessed and then gave names of other innocent of their organisation.

I have debunked these arguments several times already. The fact that you keep bringing them up does not inspire confidence that you can change your mind.

The key idea (for probably the 5th time at least) is that you only ask those questions to which the answers can be verified. For example, "what is the password for this encrypted file that I found on your computer?"

 

[sunmaster14]

Are you sure? The interview was conducted in 2008 and the interviewer was asking "if."

Maybe not specifically on whether torture to prevent a terrorist attack is permissible, but I'm sure he has discussed the 8th Amendment extensively in various opinions (including the one you linked to, where he agreed with the majority decision but for completely different reasons). One area he has ruled on (albeit in dissents) is on the issue of various due process rights for unlawful combatants held at Gitmo. He has essentially argued, in published opinions, that the Constitution provides little to no protection to the Gitmo detainees.

 

[newyorkguy]

Scalia claimed the 8th amendment only pertained to persons who had been convicted of crimes. Does the amendment say that?

Many legal people do not agree that torture is ever legal. One is Elizabeth Holtzman who is a lawyer, was a congresswoman and served as Brooklyn DA for four years. She says that police officers who torture someone pre-conviction can be and are charged under criminal law. Correction officers who torture someone post-conviction can be and are charged under criminal law. Soldiers who torture can be and are charged and court-martialed under the UCMJ, the Uniform Code of Military Justice.

Following WWII the U.S. charged a Japanese soldier with a war crime for waterboarding subjects. In the 1960s the U.S. court-martialed a U.S. Army soldier for waterboarding a captured North Vietnamese soldier.