Enlarge By Chris Greenberg, AP Justice Antonin Scalia has been criticized for stating his opinions on controversial issues that could come before the court. Enlarge By Tim Dillon, USA TODAY Supreme Court Justices: (back row from left) Stephen Breyer, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito, (front row from left) Anthony Kennedy, John Paul Stevens, Chief Justice John Roberts, Antonin Scalia and David Souter. WASHINGTON  Supreme Court Justice Antonin Scalia's declaration this week that torture may be justified in some situations is the latest in a pattern of blunt assertions that is rare for a sitting justice. His off-the-bench actions have, on a few occasions, led to requests that he bow out of particular pending cases. Scalia's defense of torture in some instances in a BBC interview that aired Tuesday does not coincide with a pending case at the court. Still, it comes as the nation is focused on "waterboarding" and other aggressive interrogations. CIA Director Michael Hayden told Congress that the simulated drowning technique was used on three suspects captured in connection with the Sept. 11 attacks. One, Khalid Sheik Mohammed, was among the six detainees charged Monday with plotting the attacks. On Wednesday, the Senate joined the House in voting to ban the CIA from using waterboarding and other harsh interrogation methods. "It's extremely unusual for a justice to be so opinionated about a controversy that may well come before the court," says Northwestern University law professor Steven Lubet, who teaches legal ethics. In an interview with BBC Radio 4, Scalia said torture might be permissible to gain information about an imminent threat such as a bomb. He did not address waterboarding but spoke generally of torture. "It would be absurd to say that you … couldn't do that," Scalia said. "Once you acknowledge that, we're into a different game. How close does the threat have to be? How severe can the infliction of pain be? I don't think these are easy questions at all, in either direction. "But I certainly know you can't come in smugly and with great self-satisfaction and say, 'Oh, it's torture, and therefore it's no good.' You would not apply that in some real-life situations." Scalia, 71, said the Constitution's ban on cruel and unusual punishment "is referring to punishment for crime," not actions in the course of interrogations. The comments of the 22-year Supreme Court veteran recalled his remarks at an international judicial conference in Canada last year while discussing the TV character Jack Bauer. Scalia reportedly defended the fictional federal agent in 24, who often tortures terrorist suspects to save lives. A year earlier, at the University of Freiburg in Switzerland, Scalia expressed skepticism about the rights of Guantanamo detainees. That prompted five retired U.S. military officers who had entered a high-court case on the side of detainee Salim Ahmed Hamdan to seek Scalia's recusal. Scalia declined. Washington, D.C., lawyer David Remes, who represented the retired generals and admirals, criticized Scalia's new remarks. "He was brushing aside principles of international and domestic law that have long governed the treatment of captives," Remes said. "He was treating difficult issues as easy. This is disturbing." Scalia recused himself from a 2004 dispute over the Pledge of Allegiance after criticizing a lower court ruling against inclusion of "under God" in the Pledge. He declined, however, a request to drop out of a 2004 case involving Vice President Dick Cheney, with whom Scalia had gone hunting. Scalia called his decision to stick with the case, despite public criticism, "the proudest thing" he had done as a justice. Conversation guidelines: USA TODAY welcomes your thoughts, stories and information related to this article. Please stay on topic and be respectful of others. Keep the conversation appropriate for interested readers across the map.