So, apparently, Justice Scalia's argument FOR torture, and how it doesn't violate the 8th amendment is not that it isn't cruel, or that it isn't unusual, but that it isn't punishment.
From a recent interview
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?
You feel that shift in the earth? It's from the gyroscope action of George Orwell spinning in his grave. His argument seems to be that cruel and unusual is OK, as long as it's NOT for actually doing a bad thing. This man is one of the nine most powerful judges in the country. And he is the model for justices McCain says he would appoint.
There is a certain scariness in the idea that a person is willing to twist logic that much, and yet claim that he is a "Strict Constructionist". While I would certainly disagree with the point of view that Guantanamo is not in the US and therefore not subject to it's laws, or that in National Security cases the laws don't apply, but I can at least understand the mental processes someone would use to get to that conclusion. After all, the Supreme Court ruled student drug testing legal because of the danger drugs supposedly caused to kids who wanted to join the chess team (you never know, some kid might get high, wander around barefoot, and step on a rook) but they didn't try to claim that the 4th amendment clause about "the right of the people to be secure in their persons" doesn't apply because the urine is no longer part of their bodies. By Scalia's logic, it would be legal for the government to pick people off the street and torture them, as long as they hadn't done anything, and therefor were not being punished.
I don't believe that the constitution can be viewed only exactly, word-for-word as it was written. Some interpretation of the laws, and how they apply to a changing world, is necessary. That is why we have a court system, to interpret the laws. Scalia's twisted logic to interpret every word exactly as written reminds me of an
Onion Piece from a few years ago, with the joke that Scalia had made a wish from a Genie for a hundred billion bucks, and is granted a large heard of male antelope. He complains, and is told "Your honor, your wish is a sacred and unalterable document whose interpretation is not subject to the whims of society and changing social context." If he can not even stretch his mind the fractional distance between "you can't use cruel and unusual methods as a punishment for something someone did wrong" to "you can't use cruel and unusual methods to get information you believe someone got from doing something wrong" then I fear for his safety when he is reading a crosswalk sign. A mind that inflexible should stop in the middle of the road, Rainman-like, if the sign changes to "Don't Walk."
We haven't seen a lot out of Roberts or Alito yet, but if this is the kind of thinking they have, we may be in for some truly scary decisions.