The devil's advocate

It is legal to torture a criminal suspect, Justice Antonin Scalia says, because by definition, torture can't be punishment if the victim has not been convicted.

"The Constitution refers to cruel and unusual punishment," Scalia said in an interview with the BBC. "It is referring to punishment for a crime. For example, incarcerating someone indefinitely would certainly be cruel and unusual punishment -- for a crime. But a court can do that when a witness refuses to answer -- can just commit them to jail until you will answer the question without any time limit on it, as a means of coercing the witness to answer, as the witness should.

"And I suppose it's the same thing about so-called torture," Scalia continued. "Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited by the Constitution, because smacking someone in the face would violate the Eighth Amendment in a prison context? You can't go around smacking people about. Is it obvious that what can't be done for punishment can't be done to extract information that is crucial to the society? I think it's not at all an easy question, to tell you the truth."

In the interview, Scalia called himself an "originalist" -- someone who believes that the Constitution must be interpreted in light of how Scalia thinks the document's writers intended it to mean, rather than how you or I think the document's writers intended it to mean.

The Eighth Amendment reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Scalia says the meaning of this is as plain as the nose on Sam Madison's face: You can't inflict a cruel and unusual punishment on someone who has been convicted of a crime. That's what the Founders plainly meant, he says. If you disagree, you're a judicial activist and a despicable believer in a "Living Constitution."

By Scalia's reasoning, the first clause of the Eighth Amendment -- "excessive bail shall not be required" -- plainly refers to people who are accused of a crime and have not been convicted. And by Scalia's reasoning, it is absolutely obvious that the next two clauses refer only to people who have been convicted of crimes. No, wait -- the second clause -- "nor excessive fines imposed" -- also clearly and plainly refers to civil cases.

Obviously, then, according to Scalia's way of thinking, the first clause applies only to criminal suspects who have been charged but not convicted, the second clause applies to people who have lost certain civil cases or have been convicted of crimes, and the third clause applies only to people who have been convicted of crimes. It's right there, plain as day, in the words as written by the Founders, he says. That's not an interpretation, it's the truth, according to Scalia. Anyone who disagrees is engaging in interpretation, which should not be allowed.

Now, does that mean torture is permitted to extract information from anyone who is suspected to have knowledge of a crime, such as the spouses and friends and children of criminal suspects? It seems clear that this would be the case, under Scalia's logic.

But maybe not. Before he made the above comments, Scalia said this in the BBC interview:

"The United States Constitution gives rights to Americans wherever they are and to foreigners who are in America. It doesn't give rights to everybody in the world. That was the principal issue in Guantanamo. Whether indeed Guantanamo Bay was within the United States and our courts had no jurisdiction there."

I'm confused. If it's legal for Americans to torture non-Americans who are not on U.S. soil -- if constitutional protections don't apply in such cases -- why does Scalia argue about the Eighth Amendment at all? He says our military base on Guantanamo Bay, which we're renting from Cuba, is not U.S. territory, and that foreigners in U.S. custody at Guantanamo Bay have no constitutional rights, so why does he argue that the Eighth Amendment doesn't prohibit torture of these people?

He's arguing simultaneously that:

• No constitutional protections apply to prisoners at Guantanamo Bay, and
• There is no Eighth Amendment prohibition of torture of the inmates at Guantanamo Bay because they have not been convicted.

That seems self-contradictory. Why make both arguments?

I can think of one reason: Scalia is willing to accept torture of Americans in American police stations and jails, as long as the people in custody have not been convicted.

I have a better idea: Accept that the Constitution bans anyone under American auspices from inflicting torture under any circumstances.

There is an easy way to deal with the ticking time bomb scenario: the executive pardon. If a cop breaks the law by torturing someone to get information that will stop bloodshed, he can explain his actions to a jury. And if the jury convicts him, he can seek a pardon. In the cliched hypothetical that Scalia describes, a governor or president would issue a pardon probably before the case even went to trial, Gerald Ford style.

Huckabee: Against counting votes before he was for it

On Nov. 17, 2000, Mike Huckabee and other Republican governors said Al Gore was causing grave risk to democracy by requesting a complete vote count in Florida. They said Gore needed to "cease and desist" his legal efforts to get the votes counted. They called the Gore campaign's criticism of Katherine Harris "an outrage."

Now the Huckabee campaign calls it "an outrage" that the Washington state Republican Party isn't counting all the votes from Saturday's caucus.

Back in 2000, Huckabee and his fellow GOP governors said there was no evidence that Harris, Florida's top elections official and co-chair of the state Bush-Cheney campaign, was unbiased and fair-minded, and that any criticism of her could weaken the foundations of American democracy. Harris had halted vote recounts after she concluded that Bush had won Florida.

The New York Times' B. Drummond Ayres Jr. wrote:
The governors, convened here at a golf resort near Tampa for their annual association meeting, argued that while the race was undeniably close, there was no credible evidence of any wrongdoing by Republican election officials, particularly in Florida. In a news conference, they demanded that Vice President Al Gore concede that Gov. George W. Bush had won fair-and-square and retreat from the field.

Yesterday, Ed Rollins, chairman of Huckabee's presidential campaign, said: "It would be a disservice to every voter in Washington state to not pursue a full accounting of all votes cast." He added, "we are prepared to go to court."

Eight years ago, after the Bush campaign filed a lawsuit to prevent a Florida recount, Republicans said it was a sign of Gore's lack of character that he filed a countersuit.

Shuster is the bullet, not the target

With her conflict against MSNBC, Hillary Clinton has revealed one of her central campaign strategies against John McCain, should she get the Democratic nomination. She is attacking McCain's biggest strength, which is his reputation as a truth-tellin' straight-shootin' honest politician.

She's not yet going after McCain's reputation for honesty directly. That will come later. She is starting out by weakening McCain's protective flank: She is undermining the credibility of the media that are forever swooning about McCain's supposedly unimpeachable honesty and forthrightness.

Assailing McCain's honesty is vital strategy. Doing it indirectly, by further weakening voters' trust in the media, is a clever tactic.

The Clinton campaign is deploying David Shuster as a long-range weapon, not as a target. Many in the media fail to understand this, as in this obtuse analysis by ABC's Jake Tapper, who guesses that Clinton "is capitalizing on an ugly moment to galvanize female voters." Sure, there might be an element of trying to stoke the ire of female voters (if you assume, as Tapper does, that only women, and not men, object when accomplished young women are smeared as whores), but the Clinton campaign is hunting for bigger game. They want to persuade voters to distrust the media that instruct them to trust John McCain.

Here's a comment accompanying the Tapper analysis, from a reader who says the media have writing about Clinton with "black colored goggles":

While not many, if any, of the Media's narrative "'points" resemble factual reality, the novelization of the political landscape continues apace. This novelization has burgeoned into an unsupportable, unreadable, and unviewable fictionalization of campaign and the candidates.

It is and has been for months outright well-poisoning. The media's fictionalizing is not just a disservice to the country but an outright betrayal of the public trust.

When I turn on the news I want the NEWS, the FACTS. I don't want a narrative, I don't want to hear what you think would be fun or interesting IF it were what was happening. I want narrative, I'll read a book or watch a movie.

This is conclusion that the Clinton campaign wants voters to make. This isn't about David Shuster or the locker-room atmosphere on MSNBC. This is about convincing voters, especially non-conservatives, that they can't trust the media. Expect the Clinton campaign to push further. They will get us to ask: When will Rush Limbaugh call 16-year-old Bridget McCain a dog? When will someone on MSNBC call Bridget McCain a whore who is being pimped by her parents? Because the media obviously have a double standard, can you trust reporters when they portray McCain as being unfailingly honest and forever frank?

MSNBC's (and Chris Matthews's) crotch and Mountie fixation

Over at Hullabaloo, Digby makes the important observation that the Donner Party over at MSNBC is circling the wagons. They think the, uh, hullabaloo about David Shuster's "pimped out" comment is politically motivated -- just a way for the Clinton campaign to get positive, feel-good, noncontroversial mileage out of a stupid comment, I guess.

The towel-snapping boys in the MSNBC locker room, so eager to deny and deflect attention from their homoeroticism, have convinced themselves that they are the victims of That Harridan Hillary. How do we change their behavior? Simple. The Clinton campaign can throw the MSNBC crew's words right back at them.

The obvious place to start is to ask Chris Matthews why he was staring at the president's crotch as Bush minced across the deck of an aircraft carrier. But I'd like the Clinton campaign to ask Matthews, and press him repeatedly with follow-up questions, about this quote from Matthews: "He has the perfect chin, the perfect hair, he looks right. He looks like a Mountie. He looks like from the Royal Canadian Mounted Police. ... Can that guy capture the hearts of the American people?"

What's with Matthews's fixation on men's crotches and perfect chins and guys dressed like Mounties?

Do tell, Chris.

There's this comment in the comments section: "I think the inference is why is she making those calls? It does seem perverse when you consider she is not a politician or a political operative. There seems to me to be a feeling that if they put her up to the calls, the superdelegates will be put on the spot in a way that they wouldn't when speaking to a political operative."

I don't recall the press making an issue out of another instance of a presidential offspring delving deeply into the political process. During the presidential term of the first George Bush, his son George W. took up an office in the White House and became, in essence, his father's enforcer. I never knew about this little bit of history until 2000. What W. was doing in his father's White House was more substantial than anything Chelsea Clinton has done. But he got a pass from the press and she isn't getting one. Why the double standard?

Many voters believe Obama is a Muslim

Barack Obama has a problem. There are people out there who still think he is a Muslim, and they will refuse to vote for him because of it.

How many? I don't know of any polling data. But I know at least two people who insist that Obama is a Muslim -- and they'll never vote for a Muslim for president. They would vote for Obama if they believed he was a Christian, but they are positive that he is a Muslim.

Like you, I thought this Obama-is-a-Muslim story had been debunked more or less thoroughly. It hasn't. My first inkling of this came last week, when my conservative father-in-law mentioned Obama's prodigious fund-raising ability. Most of that $32 million raised in January, he said, "came from the Middle East."

Why did he think that? "Because he's a Muslim!" my father-in-law declared emphatically, in the same condescending tone that George Bush uses when he talks to his audience like they're all kindergartners.

"No, he's not," I said. "Obama belongs to the Church of Christ. He's a Christian."

"What are you talking about?" my father-in-law replied. "When he took office, he swore on the Koran, not the Bible. He's a Muslim, and if he's elected, he's going to let people in the Middle East call all the shots."

In the stunned silence that followed, my wife interjected. "My boss says he would vote for Clinton over McCain, but he would never vote for Obama because he's a Muslim."

Do you think these are the only two voters who have this mistaken belief? Me either.

The news about Obama's faith is not getting through to the Fox News audience -- even those Fox watchers who would be willing to vote for a Democrat instead of McCain. It's going to be difficult to push the truth past the gatekeepers of the right-wing media. The difficulty is compounded by the subtlety of the message: Obama isn't a Muslim -- not that there's anything wrong with that.

A long campaign will benefit Democrats

"It's hard to see where this doesn't go all the way to the convention," quoth Josh Marshall, writing of the competition between Hillary Clinton and Barack Obama. He's right. And it's the best thing that could happen to the Democratic Party.

The Democratic nominee will come out of the convention with an elated, motivated core of volunteers who have recent experience in canvassing door-to-door, making phone calls, stamping envelopes, and all of that drudgery that goes with working on a campaign. Having succeeded in putting their nominee over the top, there will be an army of volunteers, eager to topple the Republicans.

On the other side, a dormant McCain campaign will have to rouse itself from a six-month slumber when the general election campaign hits the stretch run from Labor Day to Election Day. In the general election, McCain volunteers will be inexperienced and rare in states that had late primaries. And the right-wing evangelicals will cross their arms and sit this one out.