Justice Scalia 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.
“It would be absurd to say 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 the infliction of pain be?”
Just so we're clear. We've now learned that the 8th Amendment is only about punishment. It does not cover what the state can do to you before they get around to punishing you.