Antonin Scalia is a vile, ideological hack who defends torture. This has nothing to do with lofty conversations about the Constitution, the living Constitution, and originalism. Scalia’s views on torture are unsound, Colonel Kurtz unsound, by any technical or common sense views. Just look at what he has to say about torture 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?
When he’s hurting you in order to get information from you, you would DEFINITELY say he’s punishing you. This much is definitive. By definition, in fact. In fact, there is a whole field of science built around the concepts of reward and punishment which has been around for a long time. It’s called operant psychology. You can read about it in every single introductory textbook on psychology, because to omit such central information would be a gross violation of intellectual honesty, and no one has the balls to do that.
Every adult of normal intelligence in this world is commonly familiar with the concepts of "carrots & sticks" in relation to the modification of voluntary behavior, so it really needs no further explication, Madame Super-Tanker oftens evokes the terms in relation to so-called rogue nations, such as Iran. You reward good behavior with carrots, and punish bad behavior with sticks. It’s that simple. It’s called "shaping," because it is commonly believed that voluntary behavior can be "shaped" by external consequences and contingencies. Surely no person at the pinnacle of a legal system that endorses punishment as an ultimate curative for behavioral problems in society can fail to understand this. According to the numbers on per capita imprisonment, we are the most punitive nation in the world. However, since these concepts have been examined in detail scientifically, they have practically speaking been elevated to the status of scientific law, specifically known as the Law of Effect.
Operant conditioning, sometimes called instrumental conditioning or instrumental learning, was first extensively studied by Edward L. Thorndike (1874-1949), who observed the behavior of cats trying to escape from home-made puzzle boxes.[4] When first constrained in the boxes, the cats took a long time to escape. With experience, ineffective responses occurred less frequently and successful responses occurred more frequently, enabling the cats to escape in less time over successive trials. In his Law of Effect, Thorndike theorized that successful responses, those producing satisfying consequences [rewards or carrots], were "stamped in" by the experience and thus occurred more frequently. Unsuccessful responses, those producing annoying consequences [punishments or sticks], were stamped out and subsequently occurred less frequently. In short, some consequences strengthened behavior and some consequences weakened behavior. B.F. Skinner (1904-1990) formulated a more detailed analysis of operant conditioning based on reinforcement, punishment, and extinction. Following the ideas of Ernst Mach, Skinner rejected Thorndike's mediating structures required by "satisfaction" and constructed a new conceptualization of behavior without any such references. Moreover, Thorndike's work with puzzle boxes produced no meaningful data to be studied other than a measure of escape times. So while experimenting with some homemade feeding mechanisms Skinner invented the operant conditioning chamber which allowed him to measure rate of response as a key dependent variable using a cumulative record of lever presses or key pecks.[5]
I personally find reasons to squabble with this so-called Law of Effect, but I am distinctly in the minority on this assessment. And anyone can plainly see that the common sense definition of punishment closely maps on to the scientific definitions.
- Positive reinforcement occurs when a behavior (response) is followed by a favorable stimulus (commonly seen as pleasant) that increases the frequency of that behavior. In the Skinner box experiment, a stimulus such as food or sugar solution can be delivered when the rat engages in a target behavior, such as pressing a lever.
In a torture situation, positive reinforcement is comparable to giving a detainee a sumptuous meal or exercise privileges in exchange for information. Positive reinforcement would also include bribing someone to name potential enemy combatants, as in the wild, wild west’s system of bounty hunters: Wanted: Dead or Alive, $1000.00 Reward.
- Negative reinforcement occurs when a behavior (response) is followed by the removal of an aversive stimulus (commonly seen as unpleasant) thereby increasing that behavior's frequency. In the Skinner box experiment, negative reinforcement can be a loud noise continuously sounding inside the rat's cage until it engages in the target behavior, such as pressing a lever, upon which the loud noise is removed.
In a torture situation, negative reinforcement is comparable to forcing a detainee listen to loud, unpleasant music in a cold metal shipping container naked. Should the detainee talk, the aversive music is removed as a reward. Negative reinforcement is also comparable to beating someone until their morale improves.
- Positive punishment (also called "Punishment by contingent stimulation") occurs when a behavior (response) is followed by an aversive stimulus, such as introducing a shock or loud noise, resulting in a decrease in that behavior.
In a torture situation, positive punishment is comparable to beating a person for withholding information. Slapping them around, or sticking things under their fingernails, as Scalia might say, because they won’t talk.
- Negative punishment (also called "Punishment by contingent withdrawal") occurs when a behavior (response) is followed by the removal of a favorable stimulus, such as taking away a child's toy following an undesired behavior, resulting in a decrease in that behavior.
In a torture situation, negative punishment is comparable to when a detainee’s Koran is taken away because he or she won’t talk. Taking away their dignity entirely by other means, such as smearing them with menstrual blood, or having them shit themselves, would also fit this definition.
Now, like I said I have big squabbles with a lot of this theoretical crap that we don’t need to get into here. Aside from certain logical errors in the Law of Effect, suffice it to say that the notion that "the beatings will continue until the morale improves" carries obvious deficiencies.
Antonin Scalia is a Lying Ideological Scumbag of the First Division, by any definition, common sense, legal, or technical. The Bush administration has explicitly advocated torture in order to get information from detainees, in order to change their voluntary behavior. Bush said it himself. This is by any definition punishment.
It is cruel and unusual, and violates the 8th amendment. It violates due process, and the 5th amendment.
In another sense, I find it hard to believe that the administration tortured people "in order to get information," because it is known to be an "unsound method," as in "Colonel Kurtz unsound," so technically maybe Scalia is correct after all. They weren’t doing it to gather information. They were just doing it as a raw display of unchecked power because they could. No matter how you spin it, Justice Rat Bastard Scalia, this is not going away.