Scalia accepts infliction of pain to get key information

U.S. Supreme Court Justice Antonin Scalia said in a radio interview broadcast Tuesday that interrogators can inflict pain to obtain critical information, such as the location of a bomb about to explode or the plans or whereabouts of a terrorist group.

“It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn’t, I don’t know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn’t do that,” Scalia told the BBC’s “Law in Action” program.

Scalia said that determining when physical coercion could come into play was a difficult question. “How close does the threat have to be? And how severe can the infliction of pain be? I don’t think these are easy questions at all, in either direction,” he said.

U.S. interrogation techniques, including waterboarding, have been the subject of growing debate in the United States and could play a role in the military trials of six men charged in connection with the Sept. 11 attacks. The issue also could find its way to the Supreme Court.

Scalia, visiting London during a break in the court’s calendar, referred generally to those methods as “so-called torture,” and said practices prohibited by the Constitution in the context of the criminal justice system -- including indefinite detention -- are readily allowed in other situations, such as when a witness refuses to answer a question in court.

“I suppose it’s the same thing about so-called torture,” he said. “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 by the Constitution?

“Is it obvious, that what can’t be done for punishment can’t be done to exact information that is crucial to the society? I think it’s not at all an easy question, to tell you the truth.”

Scalia said Europeans had no business “smugly” decrying those techniques as torture.

Earlier in the interview he also faced down criticism of the U.S. death penalty.

“Europeans get really quite self-righteous, you know, [saying,] ‘No civilized society uses it.’ They used it themselves -- 30 years ago,” he said, maintaining that a majority of Europeans probably supported capital punishment.

Scalia also took issue with his “tough guy” reputation, saying he would have had trouble navigating the Supreme Court nomination process as it exists today with his feelings intact.

“I’m very tender,” he said.