Judge Scalia cites Jack Bauer as example in discussion over torture

Globe & Mail June 20, 2007
COLIN FREEZE

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

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