When, earlier this week, the Supreme Court heard arguments about whether execution by lethal injection is constitutional, Justice Antonin Scalia observed that "There is no painless requirement in the Constitution." Indeed, there is no requirement for execution in the Constitution at all. The Fifth Amendment refers to a "capital, or otherwise infamous crime," but not capital punishment.

Importantly, the Supreme Court case has been brought by inmates who aren't asking to be spared execution, only to be spared pain. Justice Scalia's chief concern is for a "national cessation of executions that could last for years." We wouldn't want that to happen, he adds, even at the risk of acknowledging that there is constitutional acceptance of pain, and the kind that the framers couldn't imagine in their wildest dreams: a three drug cocktail that renders the victim unconscious, paralyzes him, and then kills him. In Kentucky, it is illegal to euthanize an animal in this manner.

You'll recall that, in 1972, most death penalty cases were thrown out, only to be restored four years later. But, the issue of torture, cruel and unusual punishment, is greater than the death penalty, and includes kill orders given by military officers in Iraq, and elsewhere, that cross the line from justifiable wartime self-defense into legally prosecutable homicide.

Witness the case of Marine Staff Sgt, Frank Wuterich who faces arraignment on charges of voluntary manslaughter for the massacre, two years ago, of more than 20 innocent Iraqi civilians in Haditha. Wuterich is charged with taking nine lives "in the heat of sudden passion." (WaPo) Charges against his Marine subordinates have been dropped with the exception of two enlisted men, and another Marine officer.

While it is heartening to see that there is an attempt at justice, on the part of this administration, in the Haditha matter, keep in mind that Sgt. Wuterich took orders from someone, too, ,and the person who gave the thumbs-up to fire on two dozen innocent civilians must be held to account for the Marine staff sergeant's actions in much the same way that charges are brought to bear on Wuterich instead of his subordinates.

Consider, too, that the process of arraignment itself in which a person appears before a court, is apprised of pending charges, the right to counsel, and the right to trial by jury, already places the staff sergeant several paces ahead of any of the folks we currently hold in Guantanamo Bay, and elsewhere.

Not coincidentally, it was then sitting Secretary of Defense, Donald Rumsfeld, who coined the phrase "unlawful enemy combatant," and who, arguably, should be facing arraignment on charges of war crimes or, at the very least, called upon to testify as to who gave the command to preemptively slaughter dozens of innocent Iraqi civilians. After all, if the House Intelligence Committee can subpoena the former chief of the "clandestine service" of the Central Intelligence Agency, Jose Rodriguez, Jr., to talk about how hours of interrogation videotapes disappeared, why can't a court in California subpoena another retiree, Donald Rumsfeld, to testify about who knew about the massacre at Haditha, and when, as well as who gave the order to try and cover it up?

Of course, we all know that state-sanctioned killing on the battlefield is quite different from state-sanctioned killing in an execution chamber, say, in Texas, the most prolific death penalty state in the nation. Similarly, we all know that the widely published horrific photos of humiliation, taunting, physical, and psychological abuse of prisoners at Abu Ghraib show only how we treat wartime enemies, right? Not so.

On Tuesday, a class action lawsuit was filed by seven inmates at Valdosta State Prison, in Georgia, that names more twenty-four prison guards who allegedly engaged in "routine beatings and torture of restrained inmates" that resulted in the deaths of two prisoners. (AP) Further, according to the pending lawsuit, correction officers attempted to cover up their "cruel and unusual" punishments by beating up those who filed complaints against them. That a court of law, anywhere in the United States, should demand an "immediate end" to beatings in a state prison is an outrage of seismic proportions.

Clearly, the lines might have been blurred between how we detain as "enemy combatants," and those we hold in our nation's jails, when Congress passed the USA Patriot Act, which blurred the lines between law enforcement and "homeland security."

Given that virtually all of the presidential candidates profess to be religious to one degree or another, and conveniently blur the line between church and state for their own political gain, by doing so, they have also agreed to factor God into the already overcrowded marketplace, thus they must also acknowledge having converted the Almighty into a merchant of war, as well.

In the end, perhaps Justice Scalia is right. Maybe it's time to write "painless" into the Constitution. Surely, if the Supreme Court can hear arguments, and consider, about what constitutes "cruel and inhuman punishment," so can those running for President of the United States. Indeed, and they may also wish to take up the increasingly important issue of what constitutes torture. It might even be time for a constitutional injunction against nflicting pain, whether physical or psychological, as well as capital punishment.

At the very least, there needs to be a closer look at amending the Constitution to reverse the ravages of the Military Commissions Act of 2006, and ensure that no chief executive can ever legally claim immunity from war crime charges.

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