You are Gonna Tell Me What I Wanna Know, it’s Just a Matter of How Much You Want it to Hurt.

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.

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20 Comments

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20 responses to “You are Gonna Tell Me What I Wanna Know, it’s Just a Matter of How Much You Want it to Hurt.

  1. Reba

    Good lord. When you start basing acceptability of actions on television characters, you cannot expect to be taken seriously as a judge.

    I’d like to see whether this model applied to other professions would be just as appealing to Scalia. I thought Hollywood was supposed to be the boogey man…..

  2. blusilva

    Now that a Supreme Court Justice has given his stamp of approval to television violence, can the wingnuts all just STFU about how bad it is?

  3. God, it’s a perfect storm of judicial malfeasance and incompetence.

    He’s taking his cues from a fictional character.

    He’s arguing that it’s okay to ignore the law if he, the sworn upholder of laws, personally approves of your wrong-doing.

    He’s saying that in his interpretation of the law, torture is be morally and legally defensible, even admirable.

    He’s saying that, as Chief Justice, his job is not to interpret and defend the rule of law based on legal precedent, but to make his decisions based on how “popular” they might be.

    WHAT!

    THE!

    F!

    I say that all of the above make HIM vulnerable to impeachment, just like the twisted administration that put him in office.

  4. Jeff, you’re being far too reasonable. Scalia doesn’t deserve the effort. He wasn’t qualified for the Supreme Court when nominated and seems to have spent the years since trying to make that doubly true.

  5. DBK

    The thing that is being ignored in all of this is the converse: what if you are the President of the United States and are informed numerous times from numerous sources that an attack is going to be launched on US soil against US citizens. You don’t have all the details of the attack, but all the lights are blinking *RED* and not only is your intelligence agency warning you, but the intelligence agencies of seventeen other countries, including Jordan and Germany, have warned you thi sis going to happen. Okay, so now, if you’re the POTUS and you ignore those warnings and do nothing about it and then 3000 citizens die in a hirrble terrorist attack, should you be prosecuted? If you allow a Jack Bauer to break the law in order to protect citizens, shouldn’t you prosecute the president for not taking perfectly legal and reasonable precautions to protect citizens?

  6. DBK–

    Well, that’s crazy talk. No president would be that irresponsible.

  7. Ivory Bill Woodpecker

    I hear that more and more old-style Republicans are becoming independents or even Democrats, because they realize that their party has been taken over by a mob that is not only corrupt and extremist, but crazier than outhouse rats.

    What is it about Rethugs and fictional characters, anyway? Remember Quayle saying Murphy Brown set a bad example? Also, Bush Senior said “We need more families like the Waltons and less like the Simpsons”; shortly thereafter on an episode of “The Simpsons”, Bart said, “We’re just like the Waltons; we’re also praying the Depression will end.” [ZING!] 😛

  8. Ivory Bill Woodpecker

    Example: Virginia’s new senator James Webb. The man used to be solidly Republican; he even served as Secretary of the Navy in the REAGAN ADMINISTRATION, for the FSM’s sake! 🙂

  9. Ivory Bill Woodpecker

    Another example: talk-show hostess Stephanie Miller. Her father was Barry Goldwater’s running mate in 1964. She says she doesn’t think her dad or Barry would recognize the modern GOP as the party they had known.

  10. Lizard

    It’s amazing to me how often Scalia reveals himself to be both wrong and stupid. But his comments reflect, jarringly, that famous quotation from a White House staffer to Ron Suskind—the one in which the anonymous staffer explained that this administration exists not in “the reality-based community,” but in its own “empire,” where they create their own reality and everyone else is just an unwitting participant. They’re the scriptwriters; we’re all the actors; the outcome, as they see it, is never in doubt. In their minds, it would never happen that, say, the terrorist would give Jack Bauer false information and send him off on a wild-goose chase while the bomb exploded and everybody died. Because that’s not how they have it planned, and to acknowledge any possible plot twists would be to admit that they’re not as powerful as they like to believe.

    Disgusting, deluded, dangerous. Personally, I’d like to see a White House less like the real one and more like The West Wing. But in the meantime, I’m genuinely scared that the Republicans’ failure to distinguish real life from TV (and this nation’s generally uncritical response to both) is going to mean an easy path to the nomination for Fred Thompson.

  11. Chromosome Crawl

    ZOMG!

    Scalia once again not only reveals himself to be “wrong & stupid” – but I would prolly use a coupla different words, like “deluded” and “batshit crazy”, or my favorite run-on: “jeebus, this man is a part of the highest court in the US and he can’t differentiate btwn a fictional character who trots around doing stuff to raise corporate TV ratings and reality – hey, this ‘ere shit creek is really flowing quickly, and someone forgot to give us a paddle!”

  12. I hear that more and more old-style Republicans are becoming independents or even Democrats, because they realize that their party has been taken over by a mob that is not only corrupt and extremist, but crazier than outhouse rats.

    The attorney that handled my bankruptcy a few years ago was an old-fashioned Texas Republican. He was completely disgusted with the Republican Congress’s fucking awful bad bankruptcy repeal reform legislation. “Bought and paid for by the credit industry,” he said, sounding remarkably like a lefty. Except that he’s not. He’s a conservative in the sense of being resistant to change, not Conservative in the sense of fellating corporate contributors.

    I kind of doubt and people like him are going to vote Democrat, but he might well just sit the election out.

    Damn fine lawyer, too.

  13. Ginger Yellow

    As someone said on Crooked Timber back when Dershowitz was doing his “Torture Rules OK!” routine, the ticking time bomb scenario has no bearing on whether torture should be illegal. If, as Scalia (and Dershowitz) suggests, no jury would convict Bauer in that specific, extremely unlikely scenario, then what’s the problem with keeping it illegal? Justice would be served and the stigma against torture in other cirumstances preserved.

  14. DBK

    Jeff,

    You’re right. I don’t know what I was thinking.

  15. Ginger Yellow brings up the big point several folks have pointed out (even John McCain, I believe) – even given such an unlikely scenario, Bauer would be cleared. There is no issue here.

    As a side note, in 24, Bauer actually did hand over his badge after threatening to torture the president’s Chief of Staff, who was one of the key baddies (two seasons ago now).

    I hope to have a post up on this in the next day (or three). You deal with the hypotheticals very nicely here. The key point for me, though, is that consistently, when it comes to issues of torture, conservatives favor fantasy over reality, and hypotheticals over known facts.

  16. “Jack Bauer saved Los Angeles. … He saved hundreds of thousands of lives,” Judge Scalia said.

    Yeah … well … Justica Scalia … THAT WAS A FUCKING FICTIONAL UNIVERSE!!!!!!!!!!!!

    I mean, OMFSM, of COURSE torture WORKED then, because IT WAS WRITTEN TO!!!

    Gah!!!

    I mean, you’re justifying torture by appealing to a television show? seriously?

    *mind flees to quiet safe sunny happy place*

  17. I’ve only watched 24 sporadically, but something always strikes me.

    Why, why, WHY do the people being tortured not lie? Why is it that the most obvious, and indeed rational plot twist – Jack puts the screws on a bad guy, bad guy screams, tells him some made up shit, Jack goes off on a tangent, all hell breaks loose – is never exploited?

    Now, we know it’s not going to happen on 24 – but why doesn’t this show up on other shows?

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  19. Erin M

    Rana – Thank FSM, Scalia is not CJ. That’d be John Roberts.

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