Antonin Scalia is a U.S. Supreme Court Associate Justice who asked a rhetorical question while Lesley Stahl was interviewing him: "...has anybody ever referred to torture as punishment? I don't think so."
It is upon that reasoning that he basis his position that torture is not punishment. He thinks punishment only comes after being found guilty in a "lawful" court. However, his reasoning is wrong.
When a police officer or FBI agent or CIA agent or anyone else tortures someone, the torturer is punishing the person usually under the guise of extracting information. The torturer is punishing the person to extract but also for not answering. "I will punish/torture you until you answer." They are interchangeable. It is that latter aspect that Scalia conveniently ignores or never considered (which is likely since he isn't as bright as he thinks he is). The torturer has already found the person guilty in the torturer's view. That's the best case scenario.
Another scenario is that while the officer is acting in his or her formal capacity as a duly authorized representative of the government, he or she may actually just be angry and transferring that anger onto someone else in the form of punishment by torture. Then when asked, the torturer simply pleads that he or she thought the "suspect" was a terrorist or had knowledge that could save lives.
Another scenario is that the officer is just mentally ill and sadistic and punishes others who are vulnerable.
Yet another scenario is that the officer just doesn't like the person and wants to punish the person.
In all of these situations, it is the government by reason of poor statutes or poor oversight or poor screening or poor court decisions, etc., that is doing the torture. How indirect that is, is a matter of viewpoint.
However, Antonin's view and John Yoo's and Alan Dershowitz's view all promote a lax atmosphere when it comes to preventing torture and cruel and unusual punishment long before a court conviction. Anyone who has been held by the police and tortured has been punished. To think otherwise is to torture the language in order to rationalize.
Think how stupid the following is. Did they punish you? No, they only tortured me.
Punishment and torture both mean to handle roughly and to hurt physically and/or psychologically. Actually, physically and psychologically always go together.
Punishment is not differentiated from torture by determining whether or not someone has been found guilty in some court envisioned by Scalia.
People are also tortured in prisons after having been found guilty. Is it only then punishment? How nonsensical is that?