Le·gal In·sur·rec·tion

That seems to be the point of David Savage's intellectually dishonest column in the L.A. Times. Savage tries to link Supreme Court Justice Clarence Thomas to the 2002 "torture memo" written by Thomas' former clerk, John Yoo.

Savage's argument is that Thomas' view of the 8th Amendment's ban on "cruel and unusual punishments" somehow is reflected in Yoo's view of 18 U.S.C. sec. 2340, a federal law which defines "torture" to require, among other things, that the perpetrator have "inflict[ed] severe physical or mental pain or suffering."

Here is what Savage writes:

In the so-called torture memos in 2002, Yoo reasoned that subjecting prisoners to simulated drowning or "stress positions" in cold cells was not illegal torture because it did not cause the intense pain of a serious injury, equivalent to "death or organ failure."

Thomas' consistent record of dismissing claims of prison brutality, most of them joined by Justice Antonin Scalia, shows that Yoo's view of torture was not that of a rogue lawyer. Instead, it represents a strain of conservative thinking that looks back in history to define cruelty and torture, rather than toward what the court has called the "evolving standards of decency."

Savage must have known he was comparing constitutional apples with statutory oranges. The 8th Amendment ban on cruel and unusual punishments had nothing to do with the specific criminal statute which has the standard for "torture" spelled out in the text of the law.

When Yoo applied an analysis requiring "severe physical or mental pain or suffering" for a finding of "torture," Yoo simply was applying the words contained in the statute. Whether certain techniques fell within that standard is the subject of much debate, but the words in the criminal law were not invented by Yoo or the result of Thomas' view of the 8th Amendment.

Thomas' view of the 8th Amendment is set forth in Hudson v. McMillian, a 1992 case cited by Savage in his column. In Hudson, Thomas deplored an attack on the prisoner by prison guards, but argued that it was not a matter for the federal Constitution unless the prisoner suffered a substantial injury.

To suggest, as Savage does, that Thomas was unconcerned about harm to prisoners was nothing more than the type of smear we have come to expect to be directed at any conservative jurist. The issue was not whether the conduct should be condemned or punished, but whether the issue was better left to the criminal and civil laws.

Here is what Thomas wrote, in pertinent part, in the Hudson case:

In my view, a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not "cruel and unusual punishment." In concluding to the contrary, the Court today goes far beyond our precedents....

Today's expansion of the Cruel and Unusual Punishments Clause beyond all bounds of history and precedent is, I suspect, yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society. Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation. To reject the notion that the infliction of concededly “minor” injuries can be considered either “cruel” or “unusual” punishment (much less cruel and unusual punishment) is not to say that it amounts to acceptable conduct. Rather, it is to recognize that primary responsibility for preventing and punishing such conduct rests not with the Federal Constitution but with the laws and regulations of the various States.

While reasonable people can differ on the constitutional interpretation (and the majority of the Court disagrees with Thomas on this issue), there still is no connection to the legal issues as to the treatment of al-Qaeda detainees abroad. And there is nothing to suggest that Thomas wants prisoners beaten or abused.

To suggest that anything Justice Thomas wrote about the 8th Amendment had anything to do with what John Yoo wrote a decade later is just plain wrong.

And to suggest that any Supreme Court Justice is responsible for the subsequent writings of his or her law clerks is just plain childish, as if there were Manchurian Law Clerks roaming the land.

Savage's column has served as the basis for a blogger at Firedoglake to write trash like this about Thomas' supposed "pro-abuse views":

This is one of the dangers of appointing a partisan hack like Thomas rather than radical, but intelligent, lawyers like Alito and Scalia. Because the partisan hack is going to launch a whole generation of lawyers ... who treat law like one big game of sophistry and human beings like objects into really prominent positions.

And I would bet that Clarence Thomas enjoys the little part he has
had in shredding our country’s Constitution.

It's only Monday morning, and my blood pressure already is rising.

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Related Posts:
DOJ To Clear Yoo and Bybee?
No Prosecution Because No Crime
Maybe Jay Bybee and Jamie Gorelick Should Be In The Dock Together

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