Scalia: 'Jack Bauer Saved LA! Would you convict him?!'

[SirNitram]

Link

OTTAWA -- Justice Antonin Scalia is one of the most powerful judges on the planet.

The job of the veteran U.S. Supreme Court judge is to ensure that the superpower lives up to its Constitution. But in his free time, he is a fan of 24, the popular TV drama where the maverick federal agent Jack Bauer routinely tortures terrorists to save American lives. This much was made clear at a legal conference in Ottawa this week.

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 Judge 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."

What happened next was like watching the National Security Judges International All-Star Team set into a high-minded version of a conversation that has raged across countless bars and dinner tables, ever since 24 began broadcasting six seasons ago.

Jack Bauer, played by Canadian Kiefer Sutherland, gets meaner as he lurches from crisis to crisis, acting under few legal constraints. "You are going to tell me what I want to know, it's just a matter of how much you want it to hurt," is one of his catchphrases. Every episode poses an implicit question to its viewers: Does the end justify the means if national security is at stake? On 24, the answer is, invariably, yes.

But sometimes this message proves a little too persuasive. Last November, a U.S. Army brigadier-general, Patrick Finnegan, of West Point, went to California to meet with the show's producers. He asked if the writers would consider reining in Agent Bauer. "The kids see it, and say, 'If torture is wrong, what about 24?" he told The New Yorker in February.

He argued that "they should do a show where torture backfires." It's not just the military that's watching 24. It turns out that the judges who struggle to square the Guantanamo Bay prison camp experiment with the British Habeas Corpus Act of 1679 are watching the show, too. It was Mr. Justice Richard Mosley of the Federal Court of Canada who inadvertently started the debate, with his derogatory drive-by slight against Jack Bauer, the one that so provoked Judge Scalia.

In his day job, the Canadian judge wrestles with the implications of torture. Last winter, for example, Judge Mosley ordered an Osama bin Laden associate freed from seven years prison and into strict house arrest in Toronto.

Judge Mosley told the panel that rights-respecting governments can't take part in torture or encourage it in any way. "The agents of the state, and the agents of the Canadian state, under the Criminal Code, are very much subject to severe criminal sanction if they would engage in torture," he said.

But the U.S. Supreme Court judge choked on that position, saying it would be folly for laws to dictate that counterterrorism agents must wear kid gloves all the time. While Judge Scalia argued that doomsday scenarios may well lead to the reconsideration of rights, in his legal decisions he has also said that catastrophic attacks and intelligence imperatives do not automatically give the U.S. president a blank cheque - the people have to decide. "If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this court," he dissented in a 2004 decision. The judicial majority ruled that a presidential order meant that an American "enemy combatant" wasn't entitled to challenge the conditions of his detention, which happened to be aboard a naval brig.

As they discussed torture in Ottawa, the judicial panelists from outside the United States argued that any implicit or explicit sanction of torture is a slippery slope.

Some said that legal systems might do well to enforce anti-torture laws, even if it meant prosecuting rogue agents. "What if the guy is not the guy who's going to blow up Los Angeles? But some kind of innocent?" asked Lord Carlile of Berriew, a Welshman who acts as the independent reviewer of Britain's terrorism laws.

Torture can lead to false confessions, he said. "How do you protect that person's civil rights from the risk of very serious wrongful conviction?" But Lord Carlile, a barrister by training, added that he was also concerned with Jack Bauer's rights. "I'm sure I could get him off," he said.

One panelist deadpanned that saving Los Angeles from a nuke would likely be a mitigating factor during any sentencing of Jack Bauer.

When the panel opened to questions and commentary from the floor, a senior Canadian government lawyer said: "Maybe saving L.A. is an easy question. How many people are we going to torture to save L.A.?" asked Stanley Cohen, a senior counsel for the Justice Department, who specializes in human rights law. "How much certainty do we get to have that we have the right person in front of us?" Then Lorne Waldman, the lawyer for the famously wronged engineer Maher Arar, emerged from the crowd to say that very little of the conversation sounded hypothetical to him.

Mr. Arar was among a series of Canadian Arabs who emerged from lengthy ordeals in Syrian jails to complain of torture. Their common complaint is that Syrian torture - including beatings with electric cables - flowed from a wrongly premised Canadian investigation after 9/11.

A host of security agents, Mr. Waldman argued, acted with utmost urgency against innocents, after wrongly fearing a bomb plot was afoot.

Generally, the jurists in the room agreed that coerced confessions carry little weight, given that they might be false and almost never accepted into evidence. But the U.S. Supreme Court judge stressed that he was not speaking about putting together pristine prosecutions, but rather, about allowing agents the freedom to thwart immediate attacks.

"I don't care about holding people. I really don't," Judge Scalia said.

Even if a real terrorist who suffered mistreatment is released because of complaints of abuse, Judge Scalia said, the interruption to the terrorist's plot would have ensured "in Los Angeles everyone is safe." During a break from the panel, Judge Scalia specifically mentioned the segment in Season 2 when Jack Bauer finally figures out how to break the die-hard terrorist intent on nuking L.A. The real genius, the judge said, is that this is primarily done with mental leverage. "There's a great scene where he told a guy that he was going to have his family killed," Judge Scalia said. "They had it on closed circuit television - and it was all staged. ... They really didn't kill the family."

Gospel according to Jack

"Tell me where the bomb is or I will kill your son."

"I don't want to bypass the Constitution, but these are extraordinary circumstances."

"I need to use every advantage I've got."

"If we want to procure any information from this suspect, we're going to have to do it behind closed doors."

"I'm talking about doing what's necessary to stop this warhead from being used against us."

"When I'm finished with you, you're gonna wish that you felt this good again."

"You don't have any more useful information, do you?"

Sources: New Yorker, IMDB

24 is now the guiding principle of the American government.

[Anguirus]

I fucking hate Antonin Scalia. Though until now, I at least had some respect for him.

[DPDarkPrimus]

Can't he become too senile to serve already?

[Jack Bauer]

Its actually ... mind-numbing to think that people actually take 24 this fuckin seriously. Don't get me wrong, I love the show, its entertaining, but come on. Some of the plotlines border on cartoonish absurdity.

[Patrick Degan]

Its actually ... mind-numbing to think that people actually take 24 this fuckin seriously. Don't get me wrong, I love the show, its entertaining, but come on. Some of the plotlines border on cartoonish absurdity.

The plotline of The Eternal Jew surpassed cartoonish absurdity but it reflected the political gospel of an entire regime once upon a time. And what we've seen here is a justice of the United States Supreme Court showing himself for the outright fascist he is. He really fantasises about an executive branch divorced from all responsibility to the law and any check or balance on its power. Scalia's shown multiple times his contempt for these concepts so it's not at all surprising that he's one of the drooling fanboys for FoxAgitprop's torture-boy action/adventure show.

[Dalton]

Its actually ... mind-numbing to think that people actually take 24 this fuckin seriously. Don't get me wrong, I love the show, its entertaining, but come on. Some of the plotlines border on cartoonish absurdity.

Right now 24 is fulfilling the needs of the demographic it's aimed at: to know that the terrorists are plotting against us every single day, and to know that there'll always be a Jack Bauer around to save us all from certain doom.

Reality doesn't really rate well these days, unless it's manufactured and sliced into bite-sized pieces.

[Darth Wong]

Suppose I wrote a fictional story where a hard-nosed detective went and slaughtered a hundred innocent people but eventually managed to nail somebody who was planning to detonate a nuclear bomb in Los Angeles. Would Scalia refuse to put him on trial?

[Ariphaos]

Juries have the right to annulment in decisions, though most are never told about it and even fewer know in advance.

Though, the fault in Scalia's logic is that, in order to be defensible, such tactics have to be known to work.

[Durandal]

Great to know that our domestic policy should be based on a live-action comic book.

What's next? A law stating that being exposed to radiation should grant someone super powers?

[Molyneux]

"So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."

Say it with me, people:
Only a Sith deals in absolutes!

And just as a personal reply to Scalia: Yes. Yes, I would put Bauer on trial. It might turn into a circus, it might be a bitch to get him a fair one, but to not charge him would be a bad thing.

Of course, he'd probably get a pardon anyway. That's what they're for.

[Admiral Valdemar]

The US Army wrote to FOX asking them to stop portraying torture this way because that's simply not how it works in real-life. The desperation Jack is in to start taking apart lamps and elecro-shocking people or shooting out kneecaps is the sort of situation one would hope the US gov't never finds itself in anyway, simply because no real-life terrorist should be able to completely nullify the world's most advanced intelligence agencies.

Much as I'd like to sleep safe at night knowing Jack was real and kicking the shit out of TERRORISM, I'd be a little disturbed if the whole US has just one competent agent in the whole country who is forced to save lives at the last possible moment because everyone else is too fucking stupid/corrupt/not-signed-on-this-season.

[18-Till-I-Die]

The problem is that, in 24, it's clear beyond a shadow of doubt the villains are, in fact, evil and trying to kill people. In fact in the light of the villain's own actions what Bauer does is infinitely less gruesome, considering that the villains' have planned and attempted to use nuclear weapons on US soil more than once IIRC, amongst other such attacks.

Now heres the problem...

In the real world we have no such certainty. There is no omniscient camera that follows people and reveals their innermost thoughts, feelings and plans. So it is NOT, in our world, known beyond a shadow of doubt that these people being tortured are criminals. Nor is the danger as ever-present. In 24 the danger of literal nuclear war or some other omnious threat is, literally, always about a day away. His actions can be clearly seen as ones spontaneously doen for expediency and in a mad rush to difuse a situation that could kill millions with mere hours or even minutes to spare. Again these actions can, thus, be justified as a necessity and practicality issue. In the real world, no such ominous, constant threat exists and certainly not on such a crampt timescale.

So while, realistically, it'd be somewhat silly to try Bauer for these things, most of which were done out of practicality and with extraordinarily little time to think twice or consider other options, and more so against known enemies of the state...in the real world we have no such certainty and no such immediate threat that needs immediate answers.

[Admiral Valdemar]

Like I said, if the US gov't's seniors think running the country's defence like they do in 24 is a good thing, they need to really wake up and smell the coffee. If it wasn't for Bond villains and less than human sociopaths, CTU would be a fairly dull place to work.

[18-Till-I-Die]

Also i'd hate to think the country's defenses are THAT paper thin, that in the end it comes down to one guy with the fate of the world in his hands. Though luckily it only happens once a year or so, thank God for small miracles eh?

[Big Orange]

Admiral Valdemar, I heard that CTU has plunged right down to Torchwood Three levels of incompetence, ineffectiveness and treachery (even as far back as 24's second season CTU managed to get themselves blown up by street mobsters).

[Admiral Valdemar]

Jack and a select few CTU officers save the day routinely, because the rest of the US gov't is either too stupid or too corrupt.

I think Scalia shot himself in the foot by trying to get across the image that the entire US relies on one man who has to take things into his own hands because everyone else is useless.

[18-Till-I-Die]

Yeah i mean i LOVE Die Hard but i'd be fucking terrified if i really believed that, for all practical purposes, i was depending on one man (who must be close to 60 by now) to protect me because all of his peers and superiors are retarded or corrupt or just lazy and stupid.

Or that our entire foreign power projection depended on small, devastating attacks by John Rambo and all of the law enforcement in Texas is propped up by one Ranger named Walker. Just as all crime in New york is handled by a handful of police and DAs led by Sam Waterston and Jerry Orbach.

And, wow, THANK GOD for Serah Conner! We dodged that Judgement Day bullet by, like, an inch man!

[Singular Intellect]

And, wow, THANK GOD for Serah Conner! We dodged that Judgement Day bullet by, like, an inch man!

Actually, we only postponed it...it happened in T3 anyway.

[Molyneux]

And, wow, THANK GOD for Serah Conner! We dodged that Judgement Day bullet by, like, an inch man!

Actually, we only postponed it...it happened in T3 anyway.

That never happened! It was just a bad dream, all of it! >_<

[Glocksman]

A couple of observations:

"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."

So far, so good in that he's using Jack Bauer to frame the question.
And he's right in if a 24 style city nuking was averted at the last second by Bauer using torture, there probably wouldn't be a jury in the country that'd convict him of jaywalking, much less anything serious.

While Judge Scalia argued that doomsday scenarios may well lead to the reconsideration of rights, in his legal decisions he has also said that catastrophic attacks and intelligence imperatives do not automatically give the U.S. president a blank cheque - the people have to decide. "If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this court," he dissented in a 2004 decision.

I've never seen 24, but my understanding is that Bauer is a rogue at best and hasn't been granted authority to do everything he does by the government, and that Constitution hasn't been altered to make what he does legal.
So was Scalia playing 'devil's advocate' at this forum, or has he changed his mind about what he wrote in 2004 and now advocates legalizing Bauer's tactics?

[metavac]

Exhaustive research on interrogation most pertinent to the intelligence war seems to be almost non-existant. No one can really say what works or doesn't, because the cultural and ethnic variations in interrogee populations is too small (what does NYPD busting a drug runner have to do with interrogating an international terrorist?) and systemic study of the matter beyond non-coercive techniques in civilian enforcement has acquired a stigma since MKULTRA and KUBARAK.

[loomer]

I wish I could say I was disappointed by this. I really, really do. But I can't. It seems like the US gets more and more batshit insane every day.

[Flagg]

Suppose I wrote a fictional story where a hard-nosed detective went and slaughtered a hundred innocent people but eventually managed to nail somebody who was planning to detonate a nuclear bomb in Los Angeles. Would Scalia refuse to put him on trial?

Were the hundred dead people white Christians?

[Flagg]

A couple of observations:

"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."

So far, so good in that he's using Jack Bauer to frame the question.
And he's right in if a 24 style city nuking was averted at the last second by Bauer using torture, there probably wouldn't be a jury in the country that'd convict him of jaywalking, much less anything serious.

While Judge Scalia argued that doomsday scenarios may well lead to the reconsideration of rights, in his legal decisions he has also said that catastrophic attacks and intelligence imperatives do not automatically give the U.S. president a blank cheque - the people have to decide. "If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this court," he dissented in a 2004 decision.

I've never seen 24, but my understanding is that Bauer is a rogue at best and hasn't been granted authority to do everything he does by the government, and that Constitution hasn't been altered to make what he does legal.
So was Scalia playing 'devil's advocate' at this forum, or has he changed his mind about what he wrote in 2004 and now advocates legalizing Bauer's tactics?

It's a bit of both. In the first 4 seasons he was working for the government almost exclusively (he always went rogue at some point), while in 5 and 6 he was kind of doing things on his own while working with them. But torture was commonly used in every season, but always under the "ticking time bomb" scenario which there is already leeway for IIRC.

[Axis Kast]

Wasn't there a case in Germany in which a kidnapper abduced and hid a child before being arrested, and later refused to divulge the location?

I think a police chief made a public comment that he hoped to beat it out of the guy, and then was relieved of his job. If I remember correctly, the kid died, too.

Although that is a civil "time bomb," not one involving terrorism per se.