Here’s my issue. Scalia is basically saying that the constitution does not allow torture of prisoners in a punishment context. No “cruel and unusual punishment.” So once an individual is an a penal environment or has been found guilty of a crime, it is not constitutionally acceptable to subject that individual to physical or psychological violence.

So, in the penal context, it’s not ok. But what Scalia’s saying is that in the NON-penal context, it’s totally fine. He may or may not be explicitly condoning torture, but he’s at the very least saying that it’s constitutional to do it to someone who is not a prisoner being punished.

Scalia’s an originalist. Therefore, it seems to me that he’s suggesting that the framers of the constitution thought it unreasonable to subject someone who is guilty of a crime to cruelty, but that it is perfectly reasonable to subject someone who has NOT been found guilty of a crime, and therefore presumed innocent, to cruelty.

Clearly this cannot be correct. This is not what those who signed the constitution intended.

Law is Cool: The opposition to torture is not only based on its lack of morality, but also its lack of effectiveness.
University labratories are not needed to demonstrate that torture doesn’t work – we have many real life cases.
See the sources listed above, including Prof. Bell‘s work.

But to your other point, torture works. It is well documented that the Soviet Union, the Nazis, the East-German Stasi, and Pinoche’s Junta (to name a few) used it to great effect in order to get people to inform on their associates. And don’t think that Canadian soldiers didn’t use a few dirty tactics at the end of WWII to get information on where Nazi arms caches were located.

The problem with torture is that it’s like a new tax. The state will always introduce a new tax making it sound like it’s a temporary measure, or to solve a specific problem. (McGuinty’s Health Premium comes to mind.). However, before long, the new tax becomes a permanent fixture that feeds into the general revenue of the state. Once the state starts torturing one segment of society, it won’t stop torturing. It will always find a new enemy to torture, until everyone is finally at risk. The state should never be given the power to torture.

Law is Cool: We would be interested in seeing your “documentation” that torture works. All the academic material we see says otherwise.
It is interesting that you would advocate tactics adopted by the “Soviet Union, the Nazis, the East-German Stasi, and Pinoche’s Junta.”

Law is Cool: Thank you for the link. We assume this is the passage you are referring to:

Davis also decried as unethical a decision by top military officials to allow the use of evidence obtained by coercive interrogation techniques. He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. “To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind,” Davis testified. But he said Hartmann replied that “everything was fair game — let the judge sort it out.”

This only appears to substantiate that Scalia’s position on torture is not in accordance with best practices. We have briefly referred to some of the procedural concerns at Guantanamo Bay previously.

huh? What exactly are you stating? In terms you may understand: eschew obfuscation please.

Law Is Cool: Fair enough.
Is it adequate to say that those in the field overwhelmingly oppose the practice? Or can we go on empirical evidence alone, and see where the balance lies? In either case, we did provide more depth and substance beyond the brief article initially presented.
Your own subjective perspective of assessment is not conducive to any sort of common ground.

Law is Cool: Thank you for your comments. There is actually very little controversy on this subject among the experts. It seems it is only the general public, and a few members of the judiciary, that are confused.

The Torture Myth, cited in the article, does address Scalia’s perspectives in greater depth.
We also cited Canadian doctrine that is largely incompatible with his philosophy for legal comparative purposes.

The Center for Victims of Torture outline 8 simple reasons why it does not work:
1. Torture does not yield reliable information
2. Torture does not yield information quickly
3. Torture will not be used only against the guilty
4. Torture has a corrupting effect on the perpetrator
5. Torture has never been confined to narrow conditions
6. Psychological torture is damaging
7. Stress and duress techniques are forms of torture
8. We cannot use torture and still retain the moral high ground

But if you are looking for more detailed information beyond what we provided in the post, we can also direct you to Robert Fisk of the Independent, who shows that historically torture has not worked either. Darius Rejali goes further, and demonstrates that often cited examples of successful torture are actually misleading.

Here’s a rebuttal to CIA Director Michael Hayden’s claims that torture is effective:

Jeannine Bell, a Professor at Indiana University School of Law, states in One Thousand Shades of Gray: The Effectiveness of Torture,

There is widespread belief in the torture myth. Three interrelated assumptions compose the myth. The first assumption is that torture is only used against individuals whom the government has clearly established have strong ties to terrorism—i.e., we have good reason to believe that those we are torturing are either terrorists or have some connection to terrorism. Second, those who believe the myth assume that the information possessed by those who are being tortured is important. In other words, if the detainee being tortured confesses, then lives will be saved or attacks averted. Finally, the third assumption underlying the myth is that physical pressure is highly effective; if you torture the terrorists, they will give up the goods. The questionable moral and legal status of torture makes our reliance on the myth essential: it is the way such troubling behavior may be justified. Thus, we cheer when C.T.U. Agent Bauer acquires the information. His torture of the suspect has been legitimized…

How successful can interrogators who don’t use torture be? Richard Leo, one of the foremost scholars of police interrogation found that police have developed techniques which are remarkably successful at producing confessions. Leo spent several months observing police interrogators in a major urban police department and also based his observations on tapes of interrogations at another police department.81 Police in the United States are of course forbidden to torture suspects during interrogation. Leo observed no behavior that could be classified as torture; in all, only 2% of cases used coercive interrogation methods.82 Despite the absence of physical and most psychological coercion, detectives were remarkably successful at getting suspects to confess. Leo found that when detectives actually attempted to gain incriminating information, their techniques yielded a partial admission or full confession more than three-fourths of the time.83 He hypothesized that this level of success would be similar in departments where similar tech-niques are in use.84 While their precise effectiveness in the terrorism context has not been evaluated systematically, the methods used in American police departments are very similar to those experienced with interrogation—both in the U.S. and abroad assert to bet he most effective. Similar methods are also described in CIA interrogation manual and used to train interrogators.

Paradoxically, the moral and legal prohibition of physically coercive mechanisms may have had unintended consequences. Instead of steering interrogators to other mechanisms, it has increased inexperienced interrogators’ bloodlust. For poorly-trained investigators, physical coercion had become the longed-for instrument of last resort. They believe that torture will get the recalcitrant detainee to talk. Unfortunately, the infliction of pain becomes its own master. When interrogators resort to applying force, any knowledge they have about what other methods work might go out the window. From an intelligence perspective, this might be more acceptable if there were clear evidence of torture’s effectiveness.

But perhaps you would heed Brig. Gen. David R. Irvine, who taught prisoner interrogation and military law for 18 years, and is currently a lawyer,

No one has yet offered any validated evidence that torture produces reliable intelligence.

He goes through a number of contemporary cases where information gained through torture has been erroneous and misleading, wasting time and resources of the intelligence community. But he also points out broader concerns,

The inescapable fact is that America’s standing in the world, and especially in the Middle East, has never been lower. The price we have paid for our misdirected torture policies has been incalculable.

There is a sense of irony here, in that the country claiming to fight people that hate its freedom (they do not) is also the only Western nation openly employing and advocating the use of barbaric torture practices that are only prevalent in the nations it seeks to “enlighten.”

Former FBI Interrogator Jack Cloonan says that torture does not help collect intelligence. Instead, it actually legitimizes terrorism, and gives them more reason to fight an enemy:

So this is the type of material and resources we are using to draw our conclusions.
What exactly is Scalia using, aside from his favorite Tuesday night sitcom?