now i know justice antonin scalia has a great love for theatrics, but his recent use of a fictional tv character, tough guy government agent jack bauer of the popular series 24 (which i will disclose that i've never watched), to enthusicastically bolster his justification for torture as a crime-fighting tool, has left me wondering if the good judge has any sense at all of the profound irony he's just fallen victim to. (though in the classic use of irony the victim is always oblivious to his predicament — irony is the writer's gift to the reader.)
in fact, if i may allow myself to appropriate a tv personality of my own, it was the daily show's host jon stewart who remarked, in his report on the graceless exit of former deputy secretary of state randall tobias, a casualty of this spring's dc madam scandal, that "there is nothing the administration can do that is not ironic."
the globe and mail: 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 should disturb everyone is that scalia takes import from the fact that jack bauer wins. jack bauer always gets his man. he saved california, fer chrissakes!!! and jack wins because he's willing to torture. it is of course the classic "ends justifies the means" argument, and disappointingly, not a particularly sophisticated example, considering that its source is supposed to be one of the smartest jurists in the country.
but how can scalia credit jack's willingness to torture for jack's success when the reality is that — and here is where the irony i so subtly foreshadowed kicks in — as a fictional character, jack's success or failure has absolutely nothing to do with the merits of anything he does but instead depends entirely on the desires of his scriptwriters!
the reality is that jack bauer has never saved anything or anybody. he's not real. bauer wins because the scriptwriters want him to. likewise, torture works only because the scriptwriters want it to.
in america's fight against terrorists, we don't need jack bauer. what this country needs are his scriptwriters.
torture has perhaps saved some at the expense of honour, by uncovering 30 bombs. but at the same time it has created 50 new terrorists.
— albert camus