WASHINGTON – Justice Antonin Scalia's statement that inflicting pain on a terrorism suspect to elicit critical information could be constitutional was not the first — or second or even third — time he has commented on a legal controversy that ultimately could be settled by the Supreme Court.
If past practice is any guide, Scalia won't let his remarks or his critics' complaints stop him from taking part in the court's work.
Scalia, in his 22nd year on the high court, is the most outspoken of the nine justices and the one who most seems to relish taking on his opponents in public.
"At times, Justice Scalia seems to follow Oscar Wilde's rule that the only way to be rid of temptation is to yield to it," said Jonathan Turley, a law professor at George Washington University. "He is a brilliant jurist, even if you don't agree with his views. His greatest liability has always been a lack of self control when it comes to public statements."
In 2006, a few weeks before the court heard arguments over the rights of detainees at Guantanamo Bay, Cuba, Scalia told an audience in Switzerland that the Constitution doesn't protect foreigners who are held there.
"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. Give me a break," Scalia said.
He ignored a request from five retired generals to withdraw from the case and dissented from a ruling in favor of the detainees. Two years earlier, Scalia also dissented in the court's first decision extending some legal rights to the Guantanamo prisoners.
Recusals are personal, and justices decide themselves whether they have conflicts in cases. They generally don't say why they are not taking part in a case. It is rare for a justice to take himself out of a case because of such public comments.
Scalia, 71, rebuffed calls in 2004 to step aside from a dispute involving Vice President Dick Cheney when it was disclosed Scalia accompanied Cheney on a hunting trip while the court was considering the case.
"I think the proudest thing I have done on the bench is not allow myself to be chased off that case," Scalia said later at a law school forum in Connecticut.
The Supreme Court has not been asked yet to rule on aggressive interrogations, including waterboarding, as part of the fight against terrorism. But many legal experts expect the subject could reach the justices in the next year or two.
In London recently, Scalia sat down with British Broadcasting Corp. radio for a lengthy interview that touched on several topics, including harsh U.S. interrogation techniques that have drawn criticism at home and around the world.
Scalia said aggressive interrogation could be appropriate to learn where a bomb was hidden shortly before it was set to explode or to discover 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 said in an interview aired Tuesday.
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 told the BBC's "Law in Action" program.
Tuesday's interview was not even the first time Scalia has spoken about what is permissible when attempting to stop a terrorist attack.
In Canada last June, he made similar, abbreviated remarks when he spoke about the improbability of fictional TV counter-terrorist agent Jack Bauer being punished for torturing terrorism suspects to reveal information that could help authorities foil an imminent attack.
"Is any jury going to convict Jack Bauer? I don't think so," Scalia said, as reported by the Globe and Mail newspaper. "So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."
University of Pennsylvania law professor Kermit Roosevelt said Supreme Court justices probably should not be taking sides in public in political controversies.
But no one should be surprised that Scalia or other justices hold strong views on issues, Roosevelt said.
The justices are not like trial judges. "Obviously, it's a problem to have a judge who says I think this guy is guilty before the evidence comes in," said Roosevelt, who served as a clerk to Justice David Souter. "But because the Supreme Court is dealing with legal issues and not factual issues, it's much more understandable that they would have views on these issues before the cases come to them."
The one case in which Scalia agreed not to take part was a challenge to the inclusion of the words "under God" in the Pledge of Allegiance. Scalia withdrew after publicly criticizing a California court decision that said including "under God" improperly mixes church and state.
The Supreme Court eventually allowed the challenged words to remain, but sidestepped the larger question about whether the pledge unconstitutionally blends church and state.