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.

Who's this "we" you speak of, kemosabe?

"In the great country of the United States, we believe that you should be able to worship any way you see fit; that you're equally American, regardless of your religious beliefs," quoth our only president, during a July Fourth speech in West Virginia.

As for the Bad Guys, Bush adds: "They believe that if you don't worship the way they see it, then they're going to bring you harm. We believe in an Almighty, we believe in the freedom for people to worship that Almighty. "

Rewind the tape. "We believe in an Almighty." Rewind again. "We believe in an Almighty." Swwrp goes the tape as it rewinds yet again. "We believe in an Almighty."

We do? Gee, I was under the impression that some of us don't believe in an Almighty, and that we deserve equal treatment.

Bush says "you're equally American, regardless of your religious beliefs." Two sentences later, he says, "We believe in an Almighty."

I guess some religious beliefs are more equal than others. Someone should ask Bush if atheists, agnostics, Wiccans, Mormons and liberal Episcopalians have religious beliefs. If they do, can we all agree to treat them equally with fundamentalists and conservative evangelicals?

Bush and other Republicans are fond of boasting that we're all equal, because that's the American way -- and in the next breath, hissing about Massachusetts liberals or San Francisco values. They believe a dead Marine from the Bay Area isn't as valuable, and his death isn't as lamentable, as a dead Marine from Alabama.

(Thanks to the Rude One.)

Onward, Christian liar

I once met a guy who was an astronomer at a science museum. One of his main duties was speaking to groups of schoolchildren. Occasionally, groups of Christian homeschoolers visited. The parents would pull my acquaintance aside, and whisper: "Can you please leave out the stuff about the universe being billions of years old? We're believers in the Bible, and the Bible teaches us that the universe is 6,000 years old. That's what we're teaching our children."

Reminds me of a comedy routine -- maybe it was Steve Martin -- where the comedian brainstormed a diabolical idea: teach your kid that brown is called "red," and that red is called "green," and so on. Then have fun when the kid goes to kindergarten and makes a fool of himself.

All parents lie to their children, whether it's about the tooth fairy or why Spot disappeared. Many of these lies are harmless. But right-wing Christianists specialize in telling the most hurtful lies -- and not only to their children. They also enjoy taking advantage of vulnerable, pregnant girls and women. Our tax dollars go to pay for the distribution of these harmful lies.

Emily Minor reports in the Palm Beach Post that "faith-based pregnancy centers," where "counselors" are paid to lie to pregnant women so they won't get abortions, outnumber legitimate counseling centers and abortion clinics:

Abortion opponents are running thousands of centers, called crisis pregnancy centers — dispensing everything from baby clothes to free ultrasound pictures to prayer. There are as many as 4,000 crisis pregnancy centers in the U.S. and about 130 in Florida.
By comparison, about 1,800 centers in the U.S. provide abortions.

Florida contributes $2 million a year to pay for billboards, radio ads and training for these Christianist "counselors," and the state pays some crisis pregnancy centers $50 for each hour of face time that a "counselor" spends with a pregnant client. The state gives these Christianist pregnancy centers $4 for each phone call they receive.

The thing is, these "counselors" lie. They're so crooked they need corkscrews to put their clothes on in the morning. Minor writes:

The responsibilities of single parenting might be oversimplified. Counselors often connect abortion and breast cancer, even though today's leading medical researchers do not. Some activists tell women there's a good chance they'll miscarry after an abortion, and perhaps never have a baby at all.

And they push the rhythm method of birth control.

An abortion clinic in West Palm Beach asked clients if they had been to a crisis pregnancy center, and if so, what they were told. Only four women have filled out reports so far. One wrote: "(They) told me I could die from an abortion, that I would never have kids, preached religion, told me I should have the baby and put it up for adoption, told me I had a formed baby and how it was a sin."

Most of these places tell women that they'll get breast cancer if they get abortions, contrary to establish medical belief.

Right-wing Christians have a curious aversion to the truth. They know they lie, but they believe lying is the Christian thing to do. What would Jesus do? He would lie his head off, all day, every day, according to Christianists. Age of the universe? 6,000 years, according to the Christianists.. Global warming a problem? A bunch of nonsense, according to the Christianists.. Evolutionary biology is the most believable and useful theory of the development of life? All bullshit, according to the Christianists.

Right-wing Christians are not merely filling their children's heads with nonsense, setting up the poor youngsters for ridicule and dissillusionment when they get older. Christianists are filling up our discourse with lies. They do all of us harm. And taxpayers are paying them to do it.

History's greatest midwife to change

"We are losing our wars in the Muslim world because our vision of history is at odds with reality, " Michael Vlahos writes in, of all places The American Conservative.

Vlahos adds: "In fact, what empires have most in common is how their sacred narratives come to rule their strategic behavior—and rule it badly. In America's case, our war narrative works against us to promote our deepest fear: the end of modernity."

As I interpret it, Vlahos's argument goes like this: Our success as an empire leads us to believe that we embody the endpoint of history: American-style liberal democratic capitalism where religion is personal and not societal. When a group comes along to challenge that way of organizing the world, we regard it not as a political and philosophical disagreement, but as a mortal threat to The American Way of Life.

"The attacks were not simply a violation of the national person --as in 1941-- but an affront to all that was right and true. Yet its emotional symbolism had a darker side too -- the suggestion, felt but unvoiced by Americans, that the attacks were the first black sign of The Fall of the City, the beginning of the end of the American sacred narrative," Vlahos writes.

As we overreact, our opponents gain adherents. As they gain adherents, we tighten our embrace with authoritarian, corrupt regimes like those that run Saudi Arabia and Egypt. As our hypocrisy becomes clearer and clearer,our opponents gain more adherents. And as we attack them and they survive, they draw even more admirers. Eventually, their ideas will win many adherents. Maybe their ideas will prevail over ours.

Vlahos seems to say simultaneously that it didn't have to be this way because we could have reacted differently, and that it was inevitable that we would react this way because of our status as the world's dominant empire.

We lose our moral authority, Vlahos says, because we shut out the world's poor and dispossessed from our shiny vision of modernity. In addition, we strengthen our opponents when we demonize them. And we pick the wrong military fights, so when we lose, observers note that we are an emperor with no clothes.

We can't defeat our opponents by killing them, because most of our opponents are ordinary, unarmed civilians who disagree with our way of life, and disagree with our support for totalitarian regimes. We demonize groups such as Hamas, Hezbollah and Muqtada al-Sadr's followers. So when they win political legitimacy among their own societies, we have no one to talk to.

"America's destruction of Iraq and Afghanistan mobilized the Muslim world against us, but more than that it put the global other on notice. For much of the West and most of Islam, the lie of modernity as American altruism is dying in Iraq. Americans care about the death of their soldiers but barely a whit for the destruction of a society wrought in the name of 'democracy,'" Vlahos writes.

Eventually, maybe after we're dead, he says, we will "birth a changed world" and "cast off [our] claim to the universal." And maybe that won't be so bad. "No longer the object of all attack, we might productively rethink our national purpose."

God is not on our side

Just checking in on what Pat Robertson and Jerry Falwell said on Sept. 13, 2001, when they accused the ACLU, liberals, feminists, abortion rights supporters, gays and lesbians, and People for the American Way of seizing control of jetliners and crashing them into the World Trade Center towers, the Pentagon and a field in Pennsylvania.

JERRY FALWELL: Well, as the world knows, the tragedy hit on Tuesday morning, and at 2:00 in the afternoon, we gathered 7,000 Liberty University students, faculty, local people together, and we used the verse that I heard you use a moment ago, Chronicles II, 7:14, that God wanted us to humble ourselves and seek his face. And there's not much we can do in the Church but what we're supposed to do, and that is pray. Pray for the President that God will give him wisdom, keep bad advisors from him, bring good ones to him, praying for the families of the victims, praying for America.

… I sensed a brokenness, tears. People were sobbing at the altar. And, they have no shame about it. It was the kind of brokenness that no one could conjure, only God could bring upon us. And, that is to me the most optimistic thing that I see today as I look across America. And every city, I called a friend in Springfield yesterday. He said at least a hundred churches, Springfield, MO, at least a hundred churches have special prayer meetings for America today and tonight. And, that's happening by the thousands all over America. This could be, if we will fast and pray, this could be God's call to revival.

PAT ROBERTSON: Well, I believe it. And I think the people, the Bible says render your hearts and not your garments, and people begin to render their hearts and they weep before the Lord, and they really get serious with God, God will hear and answer. We'll see revival. I am thrilled to hear that about your church because it's happening all over.

Falwell and Robertson were thrilled with the aftermath of the terrorist attacks of Sept. 11, 2001. They said that if the deaths of thousands of civilians is what it takes to put asses in pews, then they're all for it. Just two days after Sept. 11, 2001, Falwell and Robertson announced that they were on the same side as the terrorists who had killed more than 3,000 people. Like Osama bin Laden, they don't like liberals and they don't like their fellow Americans and they want Americans to turn to the One True Religion.

There's some disagreement as to what that One True Religion is, but Falwell and Robertson didn't want to make such distinctions while they were metaphorically clasping fists with bin Laden. Dinesh D'Souza is making the same argument as Falwell and Robertson did, at book length.

But our mission today isn't to marvel at the hatred of America that Falwell and Robertson share with bin Laden. It's to ask a simple question: Why didn't God answer all those prayers that Falwell and Robertson talked about?

Why didn't God give President Bush wisdom? Why didn't God keep bad advisers from him? Why didn't God bring good advisers to him? Why didn't God comfort the families of all the victims? Why didn't God prevent America from division?

Falwell and Robertson were chirpily confident that a religious revial would result from the deaths of thousands of Americans. Where's the revival? Do Falwell and Robertson now believe that the terrorist attacks were in vain? Are they disappointed?

Damn Colties

Someone had to say it, and Joe Queenan says it best: Today's Super Bowl offers fans a chance to root for absolute good over unadulterated evil.

You have the Bears. The descendants of George Halas. Working class. Have stayed with the same stadium since 1971, continuing to love it as it aged and sagged and had a facelift. Play in the rain and snow, like real football players. NFC.

You have the Colts. Owned by the satanic Irsays. White collar. Skedaddled out of Baltimore at night like little 'fraidy cats, then lacked the class to adopt another name and logo. Play indoors, like little girls in the play area at a mall. AFC (derisive snort).

Marvin Harrison might be the greatest wide receiver ever, even better than Jerry Rice. Did you see the catch he made on the 2-point conversion in the AFC title game? But tell me: Who would you rather have a beer with -- Harrison or Muhsin Muhammad? (If you say, "Muhsin who?," that's your loss.)

A lot of people root for Peyton to win a Super Bowl. The last time I felt that way was when I was rooting, inexplicably, for John Elway of the damned AFC's Broncos. Later, I wondered, "Why care about Elway? There were about 106 guys on the combined rosters."

This game isn't about Manning. It's about what Queenan calls "the serious moral issues underlying the set-to."

Go Bears!

Update: Lance Mannion, who is rooting for the Colts, makes the case against rooting for a team solely because of the athletes' political beliefs.