You know, I shouldn’t be surprised at this point that there are a bunch of maniacs running around the upper echelons of the Republican party. But for some reason it still shocks me when I find out that, say, Justice Antonin Scalia is using Jack Bauer as an example of why torture is a-okay:
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.”
No, Justice Scalia: I just might prosecute Jack Bauer. He did, after all, break the law. Indeed, if Bauer was honorable, he’d turn himself in.
To recap: Jack Bauer was facing a very unusual scenario in Season Two. He was dealing with the certainty that there was a nuclear weapon in Los Angeles that was set to go off shortly. He knew exactly the person who had planted it. He knew he had but a couple hours to get the information out of him, or millions would die.
Given that choice, he used torture to extract the information, convincing the man he held that his children would die if he didn’t give them the information — and then making it appear that one of his children did die while the man dithered.
Justifiable under the circumstances? Perhaps. Even so, he broke the law to get the information. He used methods that no free country can condone. It worked, mind you, but its utility made it no less illegal.
Thomas Jefferson believed that there might come a time where the president would need to take extraconstitutional measures to preserve the union. And Jefferson believed, if that time came, that the president should do what needed to be done, even if it placed him afoul of the law.
But Jefferson also believed that when the crisis was complete, that it was the president’s duty to place himself before Congress, and ask them to consider whether he should be impeached for his breach of his duty to preserve, protect, and defend the Constitution.
There may come a time when someone, somewhere must do something similar to what the fictional Bauer did to defuse the proverbial ticking time bomb. But just because an action may be requisite in a moment, the same action does not translate to a general support for an action.
A police officer may have but a split-second to shoot a criminal who has a gun trained on her. That doesn’t mean she should go around shooting any criminal she sees, or thinks she sees.
Context matters. We are not living in Jack Bauer’s fictional world, where we are always facing a ticking time bomb, and torture is always justified. We are living in the real world, where we are torturing the guilty, the somewhat guilty, and the innocent alike, trying to get information that we could gain (almost certainly more accurately) through other interrogation means. And there’s no clock ticking in the background.