Many good posts have already dissected the recent comments by Justice Antonin Scalia at a panel discussion:
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.”
Without discussing the merits or flaws of 24 as entertainment, it's striking how so many conservatives view issues of national security and torture through its lens. It's disturbing that people possessing a great deal of power, or seeking it, seem to be basing their policy decisions and legal judgments almost entirely on a work of fiction. Citing Jack Bauer isn't as big a problem as invoking him as the Alpha and Omega of all "serious" discussion on important issues. Fine, mention Jack Bauer. But what about Maher Arar, the Canadian who the U.S. rendered to Syria to be tortured? What about David Hicks, the Australian whose arrest could be justified but whose treatment was abhorrent? What about all the horrible stories out of Abu Ghraib and Guantanamo?
The "ticking time bomb" scenario so beloved of conservatives is highly unlikely to occur in real life, and solving such a problem with torture is even more unlikely. But all right, let's discuss hypothetical situations. Can we also discuss reality? It's one thing to discuss torture as a concept, but where are the conservatives discussing the fact that we have tortured people (or "rendered" them to be tortured), and that at least some of those people were innocent? Where's the distress over keeping innocent people in prison without charges, or with shifting charges, for five or more years? Where's the acknowledgement that even when used on terrorists, torture generally does not work, and if anything is counterproductive?
It's no secret that many conservatives simply do not live in "the reality-based community" (read Johann Hari's piece in The New Republic on the National Review cruise, if you haven't). Still, beyond their stupefying fear and paranoia, there's a special level of self-deception and intellectual dishonesty in praising the fictional Jack Bauer and chest-thumping about who will employ torture the most ("Double Guantanamo!") when it's impossible to open a major (non-Murdoch) newspaper without reading about the consequences of such attitudes.
Consider Charles Krauthammer's 12/05/2005 piece in The Weekly Standard, "The Truth About Torture," widely hailed by conservatives, including the Powerline gang and Jonah Goldberg, among many others (Jon Swift provides a nice round-up of the religious right's views on this). Krauthammer's piece is probably the most articulate, serious conservative take on the subject, and even it doesn't hold up to prolonged scrutiny. Michael Kinsley in Slate and Andrew Sullivan in The New Republic both wrote pieces directly rebutting Krauthammer's arguments. For just a small sampling, the blogosphere is full on thoughtful, insightful pieces on torture, including an entire series on torture by Arthur Silber, "Stand Up" by Digby, "Torture" and "Black Sites" by Hilzoy, "Cowards for Torture" by the late Steve Gilliard and "Bainbridge and Sullivan" by Gregory Djerejian. I could easily find twenty more good pieces, probably from those writers alone.
Without recapping every piece linked above in exhaustive detail, the basic position is this: Torture is immoral, ineffective and illegal. A U.S. policy of torture is anathema to our country's core principles and endangers American military personnel and civilians. It severely damages our image and moral authority abroad, and that in turn undercuts us on diplomatic, economic and national security fronts. Recent NIEs conclude (in accord with common sense) that America's invasion of Iraq has made us less safe. The abuses at Abu Ghraib and Guantanamo have certainly been great recruitment tools for terrorist groups and for fostering general anti-American sentiment. Torture does not necessarily elicit the truth. It forces confessions. Those are often lies. As John McCain said when pushing for the anti-torture legislation that spurred Krauthammer's article, it's not about them (al Qaeda and other foes), it's about us. As to Krauthammer's core argument, that if rare and unlikely exceptions to a general prohibition against torture should be allowed, torture should be made legal in a limited way, as Sullivan puts it, "It is possible to concede that, in an extremely rare circumstance, torture may be used without conceding that it should be legalized." Some conservatives are honest enough to consider that innocent people can and have been tortured. Krauthammer glosses over this, as most conservatives tend to do.
Krauthammer's piece was addressed by liberals, moderates and rule-of-law conservatives. However, the majority of conservatives do not seem to have addressed the major anti-torture pieces. The Washington Post helpfully provides Technorati information on its articles. "Torture's Long Shadow," by Soviet-era torture victim Vladimir Bukovsky, came out shortly after Krauthammer's piece. It's a harrowing account that shows not only the cost to Bukovsky of being tortured, but also the cost to his torturers. Liberal and moderate blogs heavily linked and discussed the piece, but the most popular conservative bloggers and pundits seem to have ignored it. The same dynamic is true for the 5/17/07 op-ed "It's Our Cage, Too: Torture Betrays Us and Breeds New Enemies," by Charles C. Krulak and Joseph P. Hoar, two high-ranking retired military officers, who examine the "disastrous consequences" of the Bush administration's torture policies. The 5/29/07 New York Times piece "Interrogation Methods Are Criticized" received coverage by many liberal and moderate bloggers (including Hilzoy in one of the two posts linked above), but conservative bloggers seem to have mostly ignored its findings that torture does not work. The same reaction seems to have met Seymour Hersh's disturbing June 2007 New Yorker feature, "The General's Report," about the abuses at Abu Ghraib and Rumsfeld's dishonesty about them. The list could easily go on. For all their pretenses of "facing facts" and being "realists," movement conservatives consistently reject the consequences of the policies they advocate.
I freely admit I may be missing relevant conservative pieces out there. I don't have a Lexis-Nexis account, Google and Technorati aren't flawless, and I'm certainly not. I can't fully recreate the brilliance of the post by Jesus' General showing how major conservative bloggers were largely silent months ago on The Washington Post's features on the horrible outpatient care at Walter Reed. There's not one definitive article on Maher Arar out there, for example, and torture as a broader issue has been discussed for several years now. That said, it certainly seems fair to say that as a whole, conservatives prefer fantasy to reality when it comes to discussing torture and related issues.
Little Green Footballs just assumed Arar was guilty back in 2003. In 2005, Emperor Misha I of The Anti-Idiotarian Rottweiler demanded, "Do you know that [Arar] is innocent? If so, how?" When AP photographer Bilal Hussein was arrested and held with charges by the U.S. military in 2006, Glenn Greenwald and Greg Sargent pointed out that authoritarian conservatives such as John Hinderaker (who as a lawyer should know better) failed to grasp "the fact that someone is accused by the Bush administration of being a terrorist or suspected by the administration of working with terrorists does not, in fact, mean that they are a "terrorist."" Tucker Carlson demonstrated similar cognitive dissonance or hackdom when he astoundingly argued that the government just wouldn't torture anyone if it didn't work. Earlier this year at Townhall, in "Where is Jack Bauer When You Need Him?" Ben Shapiro tried to dismiss Andrew Sullivan's arguments against torture as "unconvincing," because "there is a fundamental difference between our treatment of non-citizens and our treatment of citizens. There is a fundamental difference between how we treat our friends and how we treat our enemies." Shapiro, like most movement conservatives, starts invoking good and evil, ignores how exactly we tell our friends and enemies apart, and ignores the fact that we have tortured innocent people in the real world (even assuming that torture is ever justified at all).
Again, this is not a definitive collection, but I think it accurately captures the flavor of authoritarian conservatives. Their simplistic, reductive good versus evil mindset, that Glenn Greenwald's latest book centers on, is quite clear. On the "why are they silent on this?" front, Glenn Greenwald recently documented how James Taranto and other conservatives were all atwitter over how the supposedly liberal MSM wasn't covering the completely un-newsworthy item that al Qaeda tortures. It is a conservative ritual to publicly condemn the designated enemies du jour, but it's simply a given for most civilized folks to disapprove of terrorists. As for torture specifically, liberals, moderates and rule-of-law conservatives don't despise torture because al-Qaeda does it. They condemn it because it's wrong (and ineffective, and…). As explored in an earlier post, the defining characteristic of authoritarian conservatives is their assault on greater principles and the system itself, and their attempts to elevate their beloved authority figures above such quaint niceties as the rule of law. For them, right and wrong are determined by authority, by an Us versus Them dynamic, not by independent, non-partial notions of justice or fairness. In their limited imaginations, fear of the Other always plays a role, but the idea that they themselves, or a loved one, could be unfairly treated — for instance, tortured — is inconceivable. That only happens to bad people. And if someone's been tortured, he or she must be a bad person.
It's worth noting the warped, insecure views of masculinity that comes with this chickenhawk, I'll-torture-him-more-than-you crowd. John McCain has said some irresponsible things in his time (the Bomb Iran song), but he's an actual vet who's suffered torture, and thus has great moral authority on the subject, unlike most if not all torture proponents. Tough talk is what movement conservatives want. There's the tale of conservative hawk Joe Lieberman watching the action flick Behind Enemy Lines: "whenever the American military scored an onscreen hit, Lieberman pumped his fist and said, “Yeah!” and “All right!"" Recently, Lieberman has been saber-rattling irresponsibly against Iran. (As Wesley Clark put it, "Only someone who never wore the uniform or thought seriously about national security would make threats at this point.") There's conservative Ralph Peters, upset by a poll that shows that roughly half of American troops wouldn't torture a captive even given some implausible ticking bomb scenario. Really, how dare they? There's Bush's horrible idea early in his presidency that the U.S. should withdraw from mediating Arab-Israeli conflicts because ''Sometimes a show of force by one side can really clarify things." There's Bush's angry insistence, in May 2002, that he was "going to kick [Saddam Hussein's] sorry motherfucking ass all over the Mideast." Dan Froomkin observed that it was four years ago today that Bush taunted our enemies with the line, "My answer is, bring 'em on." There's the need of "Tucker Carlson and Jonah Goldberg to search endlessly for strong, powerful, masculine figures so that they can feel those attributes and pose as one who exudes them."
Of course, there's nothing wrong with enjoying an action movie, a little escapism or a little tough talk in private, as long as one is capable of moving beyond that, or one can tell fantasy from reality. Sadly, that doesn't seem to be the case for most prominent conservatives, when a major GOP presidential candidate can misstate a crucial event in the Iraq war (and more sadly, the media misses calling him on it). At Fox News' GOP presidential debate, Brit Hume actually posed a ludicrous ticking time bomb scenario more implausible than most of the plots on Fox's show 24. It was a softball to allow the candidates to boast about how "aggressively" they'd interrogate suspects, and most of them leapt at it eagerly. The faux masculinity and competitive cruelty they showed was even more repulsive than it was laughable, as (apart from John McCain) they all bragged about how much and how quickly they'd torture, and even invoked Jack Bauer, to the audience's approval. As Stephen Colbert put it, "Nothing pumps up a crowd of primary voters in my home state like endorsements of fictional torture." Needless to say, Brit Hume never asked a question about Maher Arar, or how to deal with our human rights violations. Apart from perhaps McCain, none of these leading Republicans has the moral authority or the inclination that Patrick Leahy showed when he lambasted Alberto Gonzales for real wrongdoing, that "We knew damn well if [Arar] went to Canada he wouldn't be tortured. He'd be held and he'd be investigated. We also knew damn well if he went to Syria, he'd be tortured. And it's beneath the dignity of this country, a country that has always been a beacon of human rights, to send somebody to another country to be tortured."
Is Scalia any better than these other Republicans? He's certainly entitled to watch 24, but it's another matter to base legal guidelines according to it. The kindest assessment of Scalia's assertions is that they're silly. Yes, if Jack Bauer tortured someone, criminal law would be against him. (The "Jack Bauer" defense would hold no more than "The Chewbacca Defense.") However, depending on the circumstances, the president would likely pardon Bauer, or if the president did not, a jury would not convict Bauer. Thus, there simply is no problem with upholding the rule of law and letting justice run its proper course, other than Scalia's apparent impatience that lesser men might ever sit in judgment over great men such as he and the fictional Jack Bauer.
Ironically, Scalia's arguments even violate the internal consistency of 24, which presents more complexities than its most diehard conservative fans seem willing to consider. Over six seasons, a consistent theme has been how Bauer's extremism pushes his family and loved ones away and damages him. He started the most recent season, number six, exhausted and eager to hang it up for good because he himself had been tortured. Also in season six (incidentally, easily the weakest season), Jack Bauer tortured his own brother and his brother gave him deliberately incorrect information. Torture is unreliable, even when conducted by the hero Jack Bauer. In season five, Bauer almost lost the woman he loved, Audrey Raines, because of his willingness to torture and bully others in the name of national security. Also in season five, Bauer and Secret Service agent Aaron threatened to maim the President's Chief of Staff right in front of the President because they knew he was a mole. Immediately after they got the information, as blogger Dceiver puts it, "Aaron and Jack hand over their badges and turn themselves in for disobeying a direct order from the President! That's the rule of law in action, right there, kids. Break the law if you think that doing so is the only way to protect the country, but man up and offer to face your lumps afterward." However, that's a level of personal responsibility and accountability that Rumsfeld, Cheney, Bush, Gonzales, Yoo, Addington, Rice and the rest of the gang has never shown on any major issue or action whatsoever, whether it be related to torture and human rights or such little things as starting a war under false pretenses or losing an American city (not to mention commuting Libby's sentence).
But of course, Jack Bauer is fictional. Like many fictional heroes, he is very rarely wrong. Bush and his crew seem to believe in their infallibility as well, yet in their case it is in denial of overwhelming realities showing that's painfully not so. Their professed hatred of Hollywood notwithstanding, at times it seems that movement conservatives' foreign policy and human rights positions have been determined solely by screenings of 24, Rambo, Red Dawn and Chuck Norris movies. Fiction is fine in its place, but the aggressive rejection of reality is not. The Bush administration is dishonest about torture just as it is dishonest about the situation in Iraq and virtually every other issue. As Hilzoy put it eloquently, "Violence is not a way of getting where you want to go, only more quickly. Its existence changes your destination." Torture has a human face. It is the face of Maher Arar and the hundreds of detainees at Guantanamo, Abu Ghraib, and black sites. Vladimir Bukovsky writes that after he was tortured, "neither the doctor nor those guards could ever look me in the eye again." Sadly, detached from the consequences of their policies and rhetoric, the Bush administration and other authoritarian conservatives are still refusing to look at all.
(Maher Arar and his family.)
(Cross-posted at The Blue Herald)