Replying to a message of Dan Ceppa to Dave Drum:

 DC> -> On 05 Jun 09  11:17:00, Dave Drum got back to Dan Ceppa 
 DC> -> Re: Re-reexamining Torture ..

 DC>> The point is that it is against the law.  A jurist such as a SC judge
 DC>> should be aware of that.

 DD>> The point here is that you have misunderstood, either deliberately or
 DD>> from not being able to parse what was actually said, Scalia's
 DD>> statement(s). No where in the interview did he even imply that
 DD>> activity you claim he said was legal was, in fact, legal. He did not
 DD>> address the legality of that issue at all. Rather the definition of
 DD>> punishment.

 DC> Oh, I saw the video.  His take in the subject was that, though it
 DC> might  be morally wrong, there was nothing in the constitution to
 DC> prevent it.  

 DC> I find Scalia's reasoning reprehensible.  

Why?  The Constitution is the set of rules that the *government* is
supposed to abide by (that it doesn't is another whole subject).

The Constitution is not all-inclusive.  The fact that something is
immoral, unethical or just plain wrong doesn't mean it's unConstitutional.
Torture of prisoners being the salient example in this instance.  Mr.
Scalia was apparently referring to torture *not* being punishment (one
could argue that it certainly is punishment - for not providing the information
the interrogator wants), but that's the difference between the legal definition
of punishment and the logical definition of punishment.  Absent a trial and
conviction, whatever is done to a victim is not punishment in the legal sense,
and the Constitution does specify "cruel and unusal *punishment*" (emphasis
mine).

Of course, it seems to me that while what was done to those people may
certainly be Constitutional (in that it's not specifically barred by the
Constitution)
it would certainly be illegal under the provisions of various laws and treaties to
which this country is a signatory (and which treaties have been ratified by the
senate).  Now, whether this illegality will ever be properly dealt with is another
question.

Note that lawyers have found all sorts of ways to get around clearly stated
provisions
in the Constitution.  *Any* law that has retroactive provisions is an ex-post-facto
law, and at least those provisions must be considered unConstitutional.  But the
lawyers (and compliant SC justices) have limited that Constitutional provision to
criminal law only.  Therefore retroactive pay raises and retroactive tax increases
are perfectly Constitutional, despite the very clearly stated words to the contrary.

--- FleetStreet 1.19+