Scalia, Yoo and Fitzgerald
Fifth in a series
In the 2003 memo released on Tuesday April 1, 2008, there is a discussion of whether the Constitutional guarantees in the Bill of Rights would protect anyone from torture at Gitmo.
John Yoo thinks that detainees subjected to torture are not suffering cruel and unusual punishment as prohibited by the 8th Amendment because they are not being "punished" [pdf] for a crime since they were never found guilty of anything. From page 10 of the memo:
A second constitutional provision which might be thought relevant to interrogations is the Eighth Amendment. The Eighth Amendment, however, applies solely to those persons upon whom criminal sanctions have been imposed.
The Eighth Amendment thus has no application to those individuals who have not been punished as part of a criminal proceeding, irrespective of the fact that they have been detained by the government.
The detention of enemy combatants can in no sense be deemed "punishment" for the purposes of the Eighth Amendment. Unlike imprisonment pursuant to criminal sanction, the detention of enemy combatants involves no sentence judicially imposed or legislatively required and those detained will be released at the end of the conflict.
Justice Scalia thinks that the 8th Amendment prohibition of cruel and unusual punishment cannot apply to pre-trial detention, because the defendant is not being "punished" because he has not yet been convicted of any crime and the same principle applies to other torture.
Scalia said that it was "extraordinary" to assume that the U.S. Constitution’s ban on "cruel and unusual punishment" also applied to "so-called" torture.
"To begin with the Constitution … is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime," he said in an interview with the Law in Action program on BBC Radio 4.
Scalia said stronger measures could be taken when a witness refused to answer questions.
"I suppose it’s the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?" he asked.
"It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game" Scalia said. "How close does the threat have to be? And how severe can the infliction of pain be?"
Two days after the Yoo memo was released, Pat Fitzgerald indicted a cop for beating an arrested man while that man was handcuffed to a wheelchair. The cop administered the beating with club on April 2nd and was indicted by a specially convened Grand Jury.
From the Indictment:
….defendant herein, an Officer of the Chicago Police Department, while acting under color of law, used a dangerous weapon to strike Victim A repeatedly, while Victim A was handcuffed and shackled in a wheelchair in Norwegian American Hospital, resulting in bodily injuries to Victim A, thereby willfully depriving Victim A of a right secured and protected by the Constitution and laws of the United States, that is, the right to be free from the use of unreasonable force by a person acting under color of law;…
From the press release: [pdf]
"Every citizen, regardless of being in police custody, has a Constitutional right to be free from the use of unreasonable force by law enforcement officers." Mr. Fitzgerald said.
So, which of these is not like the others?
You know, this whole Yoo memo thing has had me very down about being a fellow lawyer; but that indictment from Chicago served as a reminder that a "J.D." degree is just a tool, like a hammer. It can be used for a good purpose or a bad purpose, but is not inherently good or bad itself.
Similarly, you can use that JD degree tool as a bludgeon to destroy the freedoms and protections that Framers described so eloquently in the Constitution, but which are inalienable rights bestowed on us by the Creator not by our government or by any piece of paper no matter how revered; or you can use that JD degree to rehab and rebuild the liberties, freedoms and justice that once were the hallmark of the American way of life.
Me, I want to use all my tools for rehabbing and rebuilding what has been broken or destroyed. So, when the time comes to rebuild our system of justice, call me, I have a hammer and I have a JD.