A Supreme Court Justice cites a television show in his deliberations on torture...?
"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."
See, this could simplify life a lot.
We could make anything legal which would be permissible to show on television.
This would shorten tedious hours of expensive legal debate, cut out all the academic pontifications, and make judicial norms much more responsive to the public mood.
It might have unfortunate side-effects on peoples' private lives, but these are desperate times.
Seriously, I have to confess that I never understood the whole "24 hour" argument for legalizing torture:
First of all, the show is fiction.
Secondly, torture, by all accounts, is ineffective.
Thirdly, it is often counterproductive.
Fourthly, we're supposed to be better than that.
Finally, in European common law, which is a root law for US constitutional law, and from which US judicial process and precedent comes, such scenarios are allowed for - in cases of overriding need, on a case-by-case basis, the law can be dispensed with.
The example that I was given, when taught the concept, is the dispensation emergency vehicles have from traffic laws - they can speed, drive into oncoming traffic, jump red lights etc - and short of recklessness or abuse of this implicit privilege (which happens but is rare) they are not stopped or charged for this blatant law breaking.
The law is dispensed with, in recognition of a greater imperative (saving a life, even potentially, outweighs civic traffic laws).
BUT, the laws are not suspended - this is not a permanent exemptions, it is case-by-case dispensation on need.
Which is a legal distinction that I gather was made and settled in the 17th century on issue of executive privilege - the executive can dispense with laws in such cases, but not suspend them.
This is a very important distinction, which certain people in DC seem to be incapable of understanding.
So wtf are we still debating this?
If there really were a nuke in New York and an FBI agent beat the crap out of a cell member to try to find out where the bomb was, for real, they would not be prosecuted, and if they were, no jury would convict them.
But, as a matter of overriding meta-principle, we DO NOT want to suspend our laws against torture to give the FBI permission to torture suspects, just in case.
The US President should find better role models than the Stuart Kings of England.
UPDATE: Apparently I can't comment on my own blog...
Anyway, to respond: yeah, it is easier to reduce moral ambiguity if you have the moral omniscience of The Author
But, look on the bright side, there's an entire new plot twist available for the next 24.
Not Jack Hisself of course, he remains unambiguously inerroneous in his sadism, gotta protect the brand
but, they can do a new secondary character, a Jack-Wannabe who is fallible: does a bit of electric drill on the pizza delivery boy in the wrong place (ambitious hard working-up-from-the-bottom born in the USA son of an East Asian businessman, prominent in the community, hard core republican and Major Donor to all the right people); then he waterboards the mid-east guy who turns out to be under-cover Mossad who thought he'd been taken by the Bad Guys (dood's being tortured from the get go, White Hats don't do that, especially in America) - course Mossad guy had the key piece of data to find the bomb, but he drowned; then they can round it out with the cigaretter burns, electric shock and almost-nude-on-camera sexual torture of the cute Iranian girl, who happens to be the US born descendant of pro-Shah Iranian refugees who was just going to USC and hoping to join the FBI as a translator in the Great War On Terror, next year after graduating...
Ratings would stay high, and most of the audience wouldn't get it, I mean on 24 things keep getting nuked anyway, despite all the torture, as I hear it
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You're forgetting another important aspect of the "24" analogy: the "jury" (in this case the viewer) is made up of eyewitnesses to the crime and know before hand the culpability of the tortured suspect. This makes a great deal of difference in the acceptance of the torture. That innocent people have been tortured by this country is undeniable. The guilt of the tortured and the infallibility of Jack Bauer is granted foreknowledge by those watching "24". That a Supreme Court justice is unable to see this essential difference is disturbing to say the least.
They always frame their examples as 'we know this guy knows', so that any refusal to torture looks indefensible.
My answer would be, "I'd let this guy go and then I'd torture you. Why? Because you know what he knows, you just admitted it, and I don't want to be bothered with language problems, and I'm certain you know I will stop at nothing to get the truth out of you, plus I know I scare the piss out of you."
That'd shut them up.
They always present torture as the only solution to a problem they don't actually have. The real situation would be they think this guy might know something that might be useful, but there are no guarantees. So, then what are the odds here? Uh, they can't say for sure. They really don't know anything, they're completely in the dark here, they're working on pretty much 100% pure wishful thinking.
It's at that point I'd start beating them on the heads with two-by-fours.
This whole discussion is one of the most ridiculous things I've ever heard.
The fact that presidential candidates and frikkin' Supreme Court justices are taking it seriously is... scary.
24 is not reality. If we were, for a day each year, faced with the kind of threats that we see on 24, including three or four (at least) times that day when major disaster came down to a last-second thread... well, we'd all be toast anyway.
You may as well ask if Darth Vader was justified in torturing Han and Chewie in order to smoke Luke out of hiding, as if that question had immediate bearing on true legal matters.
-Rob
Seems to me that Captain James Tiberius Kirk achieved good extrajudicial results without violating Starfleet protocols very much. And he did quote the Universal Declaration of Human Rights once, though I'm not nerdy enough to cite the pisode name and number.
I'm not a Star Trek type...is "pisode" a trekkie term? If not is sure looks like it should be.
Appropriately nerdy comment, b8ovin.
Okay: a "pisode" of Star Trek is defined as one where the e-lectrical power goes out in the bridge and Scotty has to manually fix things in crawlspace behind an access hatch. The Enterprise has no fuses. Power overloads are handled by sparks flying into inhabited areas.
Alternatively, a "pisode" of Star Trek is defined as one where there is shore leave, and Kirk et al sip adult beverages, before Kirk hits on the hot chick with the odd ears or skin color or small antennae, and scores. Scotty, annoyed, snaps: "Och, ye cannae organize a piss-up in a brewery! And, by the way, ye canna mix matter and antimatter cold!"
I bet if Jack Bauer tortured the Bush twins he could get them to confess to something.