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Scalia says 'so-called torture' may not be unconstitutional

[JURIST] US Supreme Court Justice Antonin Scalia [LII profile] Tuesday defended the use of harsh physical interrogation techniques, saying in an interview [recorded audio] with Law in Action [media website] on BBC Radio 4 that they may be justified to deter an immediate threat. Scalia argued that "so-called torture" may not necessarily be prohibited by the US constitution, as he said the Eighth Amendment bar against "cruel and unusual punishment" was only intended to apply to criminal punishments:

Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the Eighth Amendment in a prison context. You can’t go around smacking people about.

Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.
In the same interview, Scalia criticized European opposition to the death penalty as "self-righteous," saying that most Europeans probably privately support the use of capital punishment despite the official stance of European governments. BBC News has more.

Scalia has long been known for bluntly expressing controversial opinions. In 2006, he sparked a furor in the lead-up to oral arguments in Hamdan v. Rumsfeld [Duke Law backgrounder; merit briefs] on the constitutionality of using presidentially-authorized military tribunals [JURIST news archive] to try foreign terror suspects, when he commented [JURIST report] that "foreigners, in foreign countries, have no rights under the American Constitution."

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