if these limits may, at any time, be passed by those intended to be restrained?"
-- Chief Justice John Marshall, Marbury v. Madison, 1803
There Goes Another One
by Lee
My favorite SCOTUS justice has been, for years, Scalia. Unfortunately, he said this.
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.”
There’s more.
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.”
I made this same point with Jonah Goldberg.
As I have said many times on this blog, in a ticking time bomb scenario virtually any level of medieval barbarity could theoretically be justified. There is, however, one vitally important point to be made here. When, in modern human history, has this ever happened? The very fact that Goldberg has to cite a fictional character in order to prove this point shows just how insanely low the chances are of it ever happening. I grew up watching James Bond and Dirty Harry and I’m a big fan of 24. Note to Jonah: these are the product of the mind of a Hollywood screenwriter, not germane examples of real-world occurrences which can be used to justify geopolitical ends.
And now we have Scalia, a man who will be responsible for making vitally important decisions on these subjects, citing a fictional character and fictional scenarios to formulate real-world policy.
Allow me, though, to answer Scalia. Do we arrest Jack Bauer? Absolutely. And once he explains himself, and demonstrates how he undertook these activities because there was a nuclear weapon about to detonate, we decline to prosecute him. Killing someone is illegal. Killing someone in self defense is legal. Once the killing has taken place the burden falls on the killer to justify his actions. But you don’t just make killing people legal because sometimes you might have to kill in self defense.
Ugh. This is just nauseating.
Comments
Lee, go back and read the article. Scalia was responding to another panel member who brought up the Jack Bauer question.
I think it’s pretty critical here to realize that Scalia didn’t bring up Jack Bauer but simply responded to a point raised by someone else, with that other person having brough up Jack Bauer.
I.e., Scalia wasn’t citing a fictional character. He was responding to a point made by someone else who was citing a fictional character. HUGE difference.
Also, I think you need to take a look at the entire article and notice this passage, as it puts a lot of what Scalia said in context.
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.
All this torture is about showing off what a big set you have - we know that torture doesn’t really produce good results, but we just feel like taking out our frustrations on people we consider to be substantially less than human.
Terrorists should be interrogated in such a manner that we get whatever reliable data out of them you can, then tried and executed in a humane manner. Bodies can then be returned to the families for them to bury.
Ticking bomb scenarios are so remote as to be relegated to fiction. Deal with those instances on the actual basis that they occur, not what makes good TV.
eh, Scalia was just following precedent
Didn’t Scalia vote with the majority in the big medical marijuana case several years back? I don’t know. Obviously he’s better than some of the others in the Supreme Court, but I’ve never been quite comfortable with him.
Speaking of conservative judical heroes, I had a laugh at Robert Bork’s lawsuit against the Yale Club. What a hypocrite.
Bauer’s friends Cloe and Morris provided the needed technical expertise to arm and detonate the NUCLEAR WEAPON THAT EXPLODED IN SANTA CLARITA, KILLING 10,000.
Justice Scalia is an idiot. Bauer should be sent to Gitmo and put into nude gay pyramids until he admits his role.
scalia’s been treading closer and closer to the deep end. He authored that opinion last year that said we can lose the exclusionary rule because cops are just sooo professional these days, we can trust them not to violate our rights.
Lee, these type of comments (although you diagree with these ones specifically) are why you like Scalia. It is because he is a straight shooter and often goes against the grain while showing strong fidelity to the Constitution. Also, I second bb’s comments.
And, While I personally like Justice Thomas’ dissent (pdf)in Raich, where he said “local cultivation and consumption of marijuana is not ‘Commerce ... among the several States,’” I must admit that Scalia’s concurring opinion is consistent with the prevailing interpretation of the Commerce Clause.
And Hal, if you understood the exclusionary rule you’d know it is NOT rooted in the Constitution but is a judically-created rule. And, as you surely understand, if the judges can make the rule, the judges can dump it.
You must have gotten your impression of Scalia’s opinion in Hudson v. Michigan from someone else’s interpretation. I urge you to read it for yourself. It contains a good history of the rule and why it is inapplicable to the facts of that case. You’ll see that he never said that we can “trust them.” (If you knew Scalia, he’d never say that). He explains the social costs of applying the rule and the incentives that police have not to violate the Constitution. It is a brilliant opinion from Scalia, as usual. I am sorry you chose to take the Cliff’s Notes versions from someone with a political rather than a legal agenda.
Hal,
Read the Hudson opinion and get back to me with some thoughts. As everyone here knows, I am a practicing attorney and I know a thing or two about these things. I’d love to discuss it with you further.
Lee, let me ask you a question about what you see as an improbable situation.
If I were not to use a ticking time bomb scenario, but instead a tactical offensive by insurgent groups. Couldn’t you see how useful information yielded from detainees would be. In addition it would be critically important to extract such information in a very short time period to effectively deal with such attacks.
Before you rebuff my question, examine the battle of Stalingrad in 1942 and Kursk in 1943. The Soviet military tortured German POW’S and accurately ascertained troop concentration, times of attack, and routes of attack. Such information was helpful to the Soviets in defeating both german offensives (at a tactical levels.)
If in Iraq the military saw a group such as the Mehdi Army gathering stregnth and resources and extra manpower for a large offensive. Why is it that you can’t see how critical it is to extract information out of detainees for targets and times of the offensive?
Preventing a ticking timb bomb is most unlikely. However, torture of detainees can and has been used to unravel military offensives.
Lee Do you think we shouldn’t torture detainees if an offensive (or tactical movement) on a battlefield is imminent?
There is a big difference between smacking around a guy on the battlefield to get immediate intel (Where is the sniper, where is the IED, that sort of thing) and the systematic torture of prisoners who are officially in custody on the chance that they might know something.
Well, that certainly is true.
I read a “scalia’s new professionalism” article at the agitator every week; that’s never impressive.
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Why do we think it’s reasonable to take every conceivable action to absolutely prevent another catastrophic terrorist attack? We can’t achieve 100% prevention. It’s unreasonable to think so. Therefore, rights must be balanced with our prevention efforts.
This is the problem with the absolutist mentality. All that “never again” talk is just ignorant, emotional bullshit. I guess it makes real Murikans feel better.