Scalia: Torture is not 'Cruel and Unusual' Punishment

From Think Progress yesterday:

Last night, Supreme Court Justice Antonin Scalia granted his first broad-based television interview, to Lesley Stahl on CBS’s 60 Minutes. There he explained that the torture of detainees does not violate the 8th Amendment’s ban on “cruel and unusual punishment” because, according to Scalia, torture is not used as punishment:

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?

This is remarkable. I would like to begin by stating the obvious fact that I am not a lawyer nor do I have exhaustive knowledge of what rights are granted to someone under the Geneva Conventions.

I would argue, however, that there does seem to me to be a clear link between torture and punishment. If someone is torturing you, they are punishing you for not divulging information that the torturer is after. I have never held witness to an interigation, but my guess is that suspected tororists would not be tortured if from the moment they were captured they provided valuable information to their captors. So regardless of whether someone's right to remain silent under incarceration is protected in instences of suspected terrorism, it does seem to me irrefutable that torture is a form of punishment.

Whether or not that punishment should be considered 'cruel and unusual' when dealing with a suspected terrorist seems open to debate at least from the standpoint of logic. But it seems utterly illogical to conclude that torture is not a form of punishment.

Note: I would just like to state for the record that I do personally beleive that torture constitutes 'cruel and unusual' punishment.