In the course of Adam Serwer’s post about an odd conservative claim for a constitutional distinction between torture-for-punishment and prisoner abuse, Adam introduces me to a quote I hadn’t seen from Justice Scalia:

“Has anyone ever referred to torture as punishment? I don’t think so,” Scalia said. “What’s he punishing you for? He’s trying to extract” information, he said.

Here’s a specific refutation of Scalia’s imagined distinction. Earlier this month at Guantanamo Bay, a former Army medic stationed at Bagram in 2002 testified that he saw a newly-16-year old Omar Khadr standing hooded and shackled to the outermost door of his cell, known as a sallyport, with his wrists cuffed at about forehead level, just weeks after undergoing life-saving surgery to bullet wounds to his chest and shoulder. “Mr. M,” as we were to call the ex-medic, testified that he lifted Khadr’s hood and saw the boy crying. He further testified that the guards at Bagram, not the interrogators, had placed Khadr in the stress position as a punishment.

When “Interrogator #2,” an Army interrogator who subsequently testified in Khadr’s hearing, was asked if then-current Army doctrine would consider such a stress position to be out of legal and ethical bounds, Interrogator #2 answered, “It could be.”

Why a justice on the nation’s highest court would be interested in parsing torture is not something I can speak to.

Spencer Ackerman

Spencer Ackerman

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