WWS pal Adam White responds to this post from yesterday: Scalia's comment -- i.e., that torture isn't "cruel and unusual punishment" under the Eighth Amendment -- is entirely consistent with mainstream constitutional law. Generally speaking, the Eighth Amendment's ban on "cruel and unusual punishment" only covers conditions imposed by a sentence following a criminal conviction. (I may be wrong, but I believe it may also apply to fines imposed by the federal government in civil proceedings that are the functional equivalent of criminal punishments, too. Say, civil RICO forfeitures.) Torture undertaken for purposes of pre-conviction interrogation, as objectionable as it is as a general matter, simply is not "punishment" under the Eighth Amendment. Instead, torture's constitutional implications are found in the Fifth Amendment, which provides that "no person shall . . . be deprived of life, liberty, or property, without due process of law." No doubt, some left-wing knee-jerk types will challenge this analysis as right-wing nonsense. But they'd be utterly wrong. For proof, look no further than the report prepared in 2006 by the Congressional Research Service (hardly a hot-bed of neocon torture apologists) outlining the "McCain Amendment":
The Eighth Amendment's prohibition on "cruel and unusual punishment" concerns the imposition of a criminal punishment. Ingraham v. Wright, 430 U.S. 651 (1977). The constitutional restraint of persons in other areas, such as pre-trial interrogation, is found in the Due Process Clauses of the Fifth Amendment (concerning obligations owed by the U.S. federal government) and Fourteenth Amendment (concerning duties owed by U.S. state governments). These due process rights protect persons from executive abuses which "shock the conscience."
Thus, the question isn't whether harsh interrogation techniques (or even outright "torture") qualifies as "cruel and unusual punishment" under the Eighth Amendment; it's whether that conduct "shocks the conscience" so as to violate the Fifth Amendment. Obviously, that test can't be applied in the abstract -- it requires context, because that which certainly would "shock the conscience" in one situation (say, repeatedly slapping a young boy for several hours for no good reason), may not certainly "shock the concience" in another situation (say, repeatedly slapping Khalid Sheikh Mohammed for several hours in a "ticking time bomb" scenario.) This is certainly the distinction to which Scalia was referring.