Justice Antonin Scalia told the BBC that "smacking someone in the face" could be justified if there was an imminent threat. "You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and therefore it's no good'," he said in a rare interview.

In the interview with the Law in Action programme on BBC Radio 4, he said it was "extraordinary" to assume that the ban on "cruel and unusual punishment" - the US Constitution's Eighth Amendment - also applied to "so-called" torture.

"To begin with the constitution... is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime."

Justice Scalia argued that courts could take stronger measures when a witness refused to answer questions.

"I suppose it's the same thing about so-called torture. Is it really so easy 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?" he asked.

Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can an infliction of pain be?

There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?”

“It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game.”

Justice Scalia also mocked European criticism of the US use of the death penalty.

"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.

"There are arguments for it and against it. But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous."

Is it really so easy 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?" he asked.

There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.”

Actually, it is. Torture is illegal and inhumane and it doesn't work.

Scalia should be impeached. And President Obama should appoint a sane person in his place.

I wish Scalia could be impeached, but you need "high crimes and misdemeanors" to impeach and as far as I know he hasn't committed a crime. He's just an arse.

Any constitutional law scholar will tell you that. There is no consistency to his opinions -- unless you consider a willingness to make the federal government more powerful over our individual rights a consistency. With very few (and surprising) exceptions, if the issue is one of personal liberty over the rights of the government, he will side with the government.

He claims to be a strict constructionist but he constructs the constitution in a way no one has ever done before, ignoring precedence and judicial history to abide by his own conclusions. Basically, he decides what he wants, regardless of the law, and then finds some stupid argument to justify his view. For a while he was always in the minority but as Bush has replaced moderate to liberal judges with those who are "Scalia-like", he now finds himself in the majority.

It will take years to undo the damage he has done to our laws.

That is why it is so important for a democrat to be elected -- if for no other reason, to place our Supreme Court back in balance. Right now, it is an 80% right wing court, and for real justice, it should be 50%.

Oh, where is torture actually banned in the Constitution? I am not talking about statutes, treaties, or administrative laws. Specifically, the Constitution, as Scalia said, and you refuted.

What impeachable offense has Scalia engaged in, other then the Beeble is always right offense?

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Geneva Conventions consist of four treaties formulated in Geneva, Switzerland, that set the standards for international law for humanitarian concerns.

Beeble is not always right, Beeble lies and distores the truth until he is right.

Oh, where is torture actually banned in the Constitution? I am not talking about statutes, treaties, or administrative laws. Specifically, the Constitution, as Scalia said, and you refuted.

Oh, where is torture actually banned in the Constitution? I am not talking about statutes, treaties, or administrative laws. Specifically, the Constitution, as Scalia said, and you refuted.

What impeachable offense has Scalia engaged in, other then the Beeble is always right offense?

I know Kidrock and Eagle are used to regarding the Constitution as mere toilet paper to be ignored as they see fit, but it actually establishes some pretty good standards and laws.

Ah insults with no facts to back it up. Did I expect more from the right-wing torture-defenders on this forum? Nope.

Actually, I beat both of you to it. Now please tell me where in the Constitution that torture is banned?

The Eighth Amendment forbids some punishments entirely, and forbids some punishments that are excessive when compared to the crime.

In Furman v. Georgia (1972), Justice Brennan wrote, "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."

The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
"A severe punishment that is obviously inflicted in wholly arbitrary fashion."
"A severe punishment that is clearly and totally rejected throughout society."
"A severe punishment that is patently unnecessary."

Justice Scalia also mocked European criticism of the US use of the death penalty.

"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.

"There are arguments for it and against it. But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous."

In 2006, TNS Sofres survey confirmed opposition of the French people to death penalty: 52% are now against death penalty, only 41% are pro-death penalty.

Fifty-two percent of those questioned were against capital punishment, while 46 percent favoured it, marking a fall in previous support, the poll by the GfK Polonia public opinion institute found. Two percent had no view.

mdana,

I think you're just taking what he says the wrong way.

I think he was just pointing out that the original draft of the constitution didn't say anything about torture. Of course, we all know that there are amendments that address the issue now.

The authors of the Constitution were clearly aware that changes would be necessary from time to time if the Constitution was to endure and cope with the effects of the anticipated growth of the nation.

mdana,

I think you're just taking what he says the wrong way.

I think he was just pointing out that the original draft of the constitution didn't say anything about torture. Of course, we all know that there are amendments that address the issue now.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.