Justice Antonin Scalia was interviewed by Lesley Stahl on 60 Minutes last week (part 1, part 2). Stahl asked if brutal treatment of those in custody could be considered cruel and unusual punishment:
Justice Scalia: I don’t like torture, although defining is going to be a nice trick. But, I mean, who’s in favor of it? Nobody. And we have a law against torture. But everything that is hateful and odious is not covered by some provision of the Constitution.
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. No. To the contrary. 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? You punish somebody…
Stahl: Sure. Well, because he assumes you one, either committed a crime, or that you know something that he wants to know.
Scalia: Ah, it’s the latter. And when he’s hurting you in order to get information from you, you don’t say he’s punishing you. What’s he punishing you for?
Stahl: Because he thinks you’re a terrorist and he’s gonna beat the you-know-what out of you.
Scalia: Anyway that’s my view and it happens to be correct. (smile)
Stand up and speak out to ban torture and other cruel, inhuman or degrading treatment.