It’s surprisingly disappointing just how little progress we’ve made on certain basic questions about torture. (via Andrew Sullivan)
Senior judges from North America and Europe were in the midst of a panel discussion about torture and terrorism law, when a Canadian judge’s passing remark – “Thankfully, security agencies in all our countries do not subscribe to the mantra ‘What would Jack Bauer do?’ ” – got the legal bulldog in [Justice Antonin Scalia] barking.
The conservative jurist stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. “Jack Bauer saved Los Angeles. … He saved hundreds of thousands of lives,” Judge Scalia said. Then, recalling Season 2, where the agent’s rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand.
“Are you going to convict Jack Bauer?” Judge Scalia challenged his fellow judges. “Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer? I don’t think so.
“So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”
Remember, in some legal circles, Scalia is considered one of the giants in conservative intellectual thought.
It’s likely that Scalia was using a cultural reference to prove a broader point about torture and the rule of law, but I’m not entirely sure what that point is. It seems to have something to do with Scalia’s apparent belief that those U.S. officials who commit torture deserve legal amnesty, just so long as the ends justify the means.
Just think, having this guy sitting on the Supreme Court was disconcerting before he started using fiction to rationalize torture.
I’ll spare you the tirade on why torture is morally indefensible, and why torture doesn’t provide useful information anyway, and why relying on fictional characters to justify real-life crimes is patently ridiculous, but will instead focus on two points.
First, Bauer-like scenarios don’t happen.
We’ve all watched ’24’ and rooted for Jack Bauer as he breaks all the rules in a desperate attempt to save lives.
The problem with this scenario (as many others have pointed out) is that it makes a number of assumptions that are empirically dubious. First, the ticking-bomb scenario assumes not only that we have knowledge of an imminent attack, but also that we have the right guy in custody, i.e., a person with information that can prevent that attack from happening. In real life, our intelligence is never even close to that good. Intelligence, as the WMD fiasco makes clear, is far from an exact science. A significant percentage of the people we’ve detained as suspected terrorists have turned out to be people who were just in the wrong place at the wrong time. Should someone who may or may not be a terrorist and may or may not know anything useful be tortured based solely on intelligence “chatter” about an upcoming attack? This is much closer to the type of situations that actually present themselves in real life.
Second, Bauer-like scenarios offer the wrong lessons.
The grossly graphic torture scenes in Fox’s highly rated series “24” are encouraging abuses in Iraq, a brigadier general and three top military and FBI interrogators claim.
The four flew to Los Angeles in November to meet with the staff of the show. They said it is hurting efforts to train recruits in effective interrogation techniques and is damaging the image of the U.S. around the world, according The New Yorker.
“I’d like them to stop,” Army Brig. Gen. Patrick Finnegan, dean of the U.S. Military Academy at West Point, told the magazine.
Finnegan and others told the show’s creative team that the torture depicted in “24″ never works in real life, and by airing such scenes, they’re encouraging military personnel to act illegally.
“People watch the shows, and then walk into the interrogation booths and do the same things they’ve just seen,” said Tony Lagouranis, who was a U.S. Army interrogator in Iraq and attended the meeting. “The kids see it, and say, ‘If torture is wrong, what about ’24′?” Finnegan said.
Apparently, it’s not just the kids — dangerous Supreme Court justices have come to the same conclusions.
Gary Solis, a retired law professor who designed and taught the Law of War for Commanders curriculum at West Point, tried to explain to his students that Jack Bauer would be prosecuted for his conduct. The class was not persuaded. After one particularly aggressive interrogation scene, Solis said, “I tried to impress on them that this technique would open the wrong doors, but it was like trying to stomp out an anthill.”
Maybe Solis needs to talk to Scalia, too.