The Crossed Pond

I already posted about my profound disappointment in John McCain. He hasn’t been the presumptive nominee for even a month, and he’s already compromised on the single issue which most adamantly recommended him, and the only issue which bears no compromise. Andrew Sullivan has a very good blog reaction roundup (as well as his own thoughts). I’m not the only one out there deeply depressed. The McCain shine has been dulling a long time for me, but this is frankly a startling and unexpected deflation of a lot of the reason, shine or no shine, I’ve still been willing to give McCain a great deal of begrudging respect.

But there are other goings-ons in the World of American Torture as well.

On Monday I posted about the curious matter of the six Guantánamo detainees connected to 9-11 who the American government are charging with war crimes and seeking the death penalty for. Curious because war crimes are defined as violations of the Geneva Convention by American legal code, and, in being Guantánamo detainees, the government has already explicitly put its foot down that the Geneva Conventions don’t apply to them. And oh yeah, the primary evidence that will be used to try them comes from the confessions of Khalid Shaikh Mohammed…under torture. Which is…well, against the Geneva conventions (fully half of those being tried we have evidence were tortured to extract their confessions).

But the final big torture news item pertains to an interview Supreme Court Justice Antonin Scalia had with the BBC.

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.”

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.

“It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game.

“How close does the threat have to be? And how severe can the infliction of pain be?”

That’s rather extraordinary as a governing philosophy for a Supreme Court Justice. Not even for the complete dependence on the ridiculous “ticking time bomb” fantasy-land scenario, but for the extreme fuzziness of the legal logic. So 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, as a hypothetical, justifies the institutionalization of simulated drowning and much much worse with no applicable legal standards in play to govern the conduct of military or intelligence interrogators? BOY. That’s kind of like saying we need to ban all firearms in America because it is logical to not let people have backyard hydrogen bombs.

We know Scalia is 24 fan*, and he’s expressed similar sentiments before, but that’s pretty staggering. What’s also staggering, to me, is his entire philosophy on torture seems to solely revolve around that argument.

Of course, those three stories are synergistic. The Gitmo detainees being charged were not tortured to extract vital and immediate information, but to force confessions on crimes that have already occurred (as has been the case for nearly every documented case of torture in the War on Terror we’ve seen). However, President McCain assures conservatives he wants to nominate more Supreme Court justices like Antonin Scalia. Which is bad, because McCain also chooses to not bother with actually legislating on the matter, but leaving it up to the President and the justices to decide what is and is not torture.

But maybe that’s a cheap shot.

Regardless, it’s been a busy time for the advocates of torture. And that’s just this week!

Stay tuned!

*BONUS TORTURE ITEM: Joel Surnow quits 24. Sorry folks! If you want your weekly fix of jingoistic fantasty-land torture-glorifying war hero role-playing, you’re just going to have to switch to…the news!