In such cases, “smacking someone in the face” could be justified, Justice Scalia told the British Broadcasting Corporation. He added, “You can’t come in smugly and with great self-satisfaction and say, ‘Oh, it’s torture, and therefore it’s no good.’ ”
His comments come amid a growing debate about the Bush administration’s use of aggressive interrogation methods on terrorism suspects, including the widely condemned waterboarding, soon after the Sept. 11 attacks.
Justice Scalia, speaking in an interview with “Law in Action,” a program on BBC Radio 4, said it would be “extraordinary” to assume that the Constitution’s ban on cruel and unusual punishment applied to “so-called” torture in the face of imminent threat. He said that the Constitution “is referring to punishment for crime.”
“And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime,” he said.
But “is it really so easy,” he said, “to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?”
“It would be absurd to say you couldn’t do that,” the justice said. “And once you acknowledge that, we’re into a different game. How close does the threat have to be? And how severe can the infliction of pain be?”
Justice Scalia also ridiculed European criticism of the death penalty in the United States.
“If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today,” he said.
“There are arguments for it and against it,” he said. “But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous.”