Reply #39: this is veering pretty far off topic

[Clovis Sangrail]

but I'm curious what constitutional 'logic' you think he uses to circumvent the 8th.
Like the 2nd it's very short.
Unlike the 2nd there isn't nearly the wiggle room on grammatical structure and the intent is pretty clear.

It isn't really debatable that torture isn't 'cruel'... torture just isn't torture without the 'cruel' aspect.
'unusual' is going to be somewhat more flexible based on current societal norms but I can't think of any way that shoving surgical needles under somebody's fingernails, as Dershowitz suggested, could be considered 'usual'.

Scalia tried to pawn this one off before with the logic that if they're not under arrest, or being charged with a crime it's not punishment. The problem with that is 2 fold.
1) punishment, by definition, doesn't require being charged with anything. It's simply the act of applying negative consequences in response to an action or lack thereof... like not answering questions.
2) if you accept this then the govt can torture anybody they want as long as they don't charge them with a crime.

:shrug:
I didn't buy Dershowitz's book and have no plans to.

I don't agree with it, but I think the Bush administration's strategy of re-defining the term 'torture' made more sense.