Opening Argument – The Torture Memos: Putting the President Above the Law

National Journal

Some of the attacks on the recently leaked Bush administration legal memoranda about the use of torture and lesser forms of coercion to extract information are a bit facile. It’s easy to sit in judgment on those assigned to deal with the threat of catastrophic terrorism. It’s much harder to provide morally or legally satisfying answers to questions such as this:

Opening Argument – The Perils of Torturing Suspected Terrorists

National Journal

The abuses at the Abu Ghraib prison in Iraq stand out for their pointlessness as well as their cruelty. Done in the name of collecting intelligence about insurgents, this brand of brutality has surely created more of them. Sodomy with a chemical light, threats of rape, a female soldier posing gleefully next to a stack of naked male prisoners, beatings with a broom handle, to say nothing of the possible murders: These are the techniques of sadistic amateurs, not of intelligence experts. That’s why their criminality is so obvious. 

Thomas’ Tortuous History Lessons

Justice Clarence Thomas’s eye-catching February 25 dissent in a prison-beating case left one thing a bit unclear. Suppose that instead of just loosening a few of the handcuffed prisoner’s teeth and mussing up his face while their supervisor was admonishing them "not to have too much fun," the two Louisiana penitentiary guards had gotten a little bit rough.

Suppose that they had broken both his legs, or stretched him out on a medieval rack, or torn out his fingernails, or cut off his hand, Saudi-style, or locked him naked in a freezing room.

Would that be "cruel and unusual punishment"?

No way, Thomas and his ideological mentor Antonin Scalia seem at first to suggest in Hudson v. McMillian: The Eighth Amendment was conceived two centuries ago only as a protection against punishments meted out by judges and legislatures-not against anything done to a convict once arrived at prison.

As history, that may be plausible. As constitutional law for 1992, it’s hard to stomach.

Which is why Thomas and Scalia don’t really press the point. Instead, they premise most of thei dissent on narrower grounds, indicating that they might uphold Keith Hudson’s $800 damage aware if he had suffered "serious injury."

In doing so, they expose the flaw at the heart of the "originalist" jurisprudence of which Scalia and Robert Bork are the guru’s, Thomas is an awkward apprentice, Chief Justice William Rehnquist a dabbler, and Ed Meese was once mass-marketer:

Taken to its logical conclusions, originalism leads to results intolerable even to its most ardent expositors.

These results would include constitutional indifference not only to the torture of convicts, but also to most forms of racial discrimination, ranging from state-enforced segregation of black children (the norm when the 14th Amendment was adopted) to quotas that discriminate against white males.

Locked Up in Jail, Locked Out of Court

"Since 1982 inmates increasingly have been placed two to a cell because the prison lacked space for its increasing population….Most … spend approximately 14 hours a day in their cells…. The court found that ‘[b]ecause these shared cells are so tiny, only one inmate at a time can stand in the cell; the other must lie on the bed.’… [P]hysical exercise is impossible…. Essentially, an inmate can only lie on his bunk or sit at the desk or on the bunk…. The lamp provides adequate light for the inmate on the top bunk to read, but virtually no light to the inmate on the bottom….

"Despite the small size of the cells, 20 percent to 25 percent of the inmates fear to leave them for recreation or exercise because they fear physical assault. Much of the insecurity is due to under staffing. …Weapons such as knives, ice picks, razors and homemade guns are easily available…. According to the district court, ‘the auditorium and gymnasium are virtual dens for violence. Assaults, stabbings, rapes and gang fights occur…. The corrections officers do not make rounds; they wisely choose to stand by the door next to the riot button.’

"[C]onditions… are unsanitary and dangerous…. Ventilation is grossly inadequate….[T]here are … excessive odors, heat and humidity…. Bed bugs and mice are endemic. Torn mattresses shelter mites, fleas and lice…. Most of the toilets in the cells are old and cracked. Urine sediment has accumulated in the cracks causing noxious odors…. ‘The showers are encrusted with dirt, …slime has accumulated in the chronically wet areas,’ and the smell of putrid water is inescapable.

"…They are not supervised by a guard and thus weaker inmates fear to enter them; instead they take ‘bird baths from the sinks in their cells.’…

"Medical and psychiatric treatment are also shockingly deficient."