"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?" Stahl asks.
"No, No," Scalia replies.
"Cruel and unusual punishment?" Stahl asks.
"To the contrary," Scalia says. "Has anybody ever referred to torture as punishment? I don't think so."
"Well, I think if you are in custody, and you have a policeman who's taken you into custody…," Stahl says.
"And you say he's punishing you?" Scalia asks.
"Sure," Stahl replies.
"What's he punishing you for? You punish somebody…," Scalia says.
"Well because he assumes you, one, either committed a crime…or that you know something that he wants to know," Stahl says.
"It's the latter. And when he's hurting you in order to get information from you…you don’t say he's punishing you. What’s he punishing you for? He's trying to extract…," Scalia says.
"Because he thinks you are a terrorist and he's going to beat the you-know-what out of you…," Stahl replies.
"Anyway, that’s my view," Scalia says. "And it happens to be correct."
So, let me understand this.... now, perhaps Scalia is saying that torture is in fact unconstitutional, but that it is simply inappropriate to look at the 'cruel and unusual punishment' prohibition for a reason. In other words, he might be against torture, but somewhere else in the Constitution is the right place to look for justification. Of course, he doesn't point to such a place, which leaves one with the impression that he's pretty much fine with torture.
At least he's consistent, if not delusional, because in the past Scalia has pointed to Jack Bauer as reasons for why we should leave the torture option on the table. Nevermind that Jack Bauer does not actually exist. I also find it interesting that, as a strict constructionalist, Scalia opposed the Boumediene ruling, which said that people designated as 'enemy combatents' (a phrase that does not appear in the Constitution) were allowed the right of habeus corpus (i.e. the right to appear in front of a court to be told why you're being held against your will).
So, let's figure this out. Scalia opposes outlawing toture, because the Constitution doesn't specifically say anywhere that you can't torture someone. But he is fine waiving the right to habeas corpus even though Article 1, Section 9 states:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public safety may require it.Perhaps Scalia is hung up on the second part, the "unless..." aspect of it. But we have to think like a strict constructionist, remember! We are not allowed to interpret what the Founders might or might not have thought a terrorist might be -- indeed, just as Scalia noted with Stahl, 'torture' is not really 'punnishment' no matter how punnishing torture might actually be. We have to stick very closely to the minimal definition of words, in order to think like Scalia. So, rebellion... well, a terrorist from another country can't be rebelling, because a rebel is, by definition, an American. Next, "invasion" -- I'm pretty sure the Founders thought of Invasions as attacks by other sovereign nations. Even using the morals of today (which Scalia wouldn't let us do), no one would say we were 'invaded' on 9/11. We were attacked, terrorized, whatever -- but we weren't invaded, there were no armies marching on our shores. So, 9/11 is no reason to suspend habeas, according to a strict reading of the Constitution.
Scalia may have cognitive dissonance, or may be just a partisan hack hiding behind the guise of conservative jurisprudence, but intellectually honest he ain't.
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