Scalia debates the politics of "24"

Absurdity alert: Supreme Court Justice Antonin Scalia cited the TV show "24" in a debate over constitutional protections and the war on terror (via Andrew Sullivan):

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.

...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."

This example illustrates how "24" is helping to wreck the debate about torture. When people think about these issues, their minds tend to turn to the most vivid examples, even if they are unrepresentative (ie worrying about dying in a plane crash rather than a car accident). As a result, we end up focusing on the ticking time bomb scenarios featured in "24" rather than the more mundane interrogations that are vastly more common in real life.

Comments

[Rob]

I guess by your reasoning, "An Inconvenient Truth" is "helping to wreck the debate about global warming. When people think about these issues, their minds tend to turn to the most vivid examples, even if they are unrepresentative . . . ."

[Brian]

Wouldn't it have been great if some other panelist had argued back, "Well, yes, but Fred Thompson's character on Law and Order would have had problems with that opinion for the following reasons..."

Just imagine - soon TV Guide can double as a political guide as well - Red and Blue State's Prime Time hour.

[Bob]

No comments whatsoever on the Duke lacrosse case and Nifong's hearing/resignation? I am puzzled. You should be in a prime position to talk about these issues.

[ZacC]

To be fair to Brendan, he's discussed extensively the Duke Lacrosse case in the past, as a search of his website would reveal:

http://www.technorati.com/search/Nifong?from=http://www.brendan-nyhan.com&sub=searchlet

He hasn't discussed, as far as I can tell, however, Nifong's resignation/hearing.

[Robert]

Rob, do you have an example from an inconvient truth (which is a documentary, so it at least tries to potray itself as true, unlike a fictional dramatization) that is vivid and unrepresentative of the global warming debate?

I think you may have missed some distinctions between the two.

[Rob]

Robert, three months ago the New York Times had an article that described the unease of many scientists about exaggerations and misstatements in "An Inconvenient Truth." The article also quoted Mr. Gore as saying his work made “the most important and salient points” about climate change, if not “some nuances and distinctions” scientists might want. “I am trying to communicate the essence of it in the lay language that I understand,” he said.

But even putting aside the issue of whether the statements made in the movie are unqualifiedly true, it is, I think, beyond question that the movie shows "the most vivid examples, even if they are unrepresentative." I'm thinking of pictures of ice sliding off the end of glaciers into the sea and pictures of dry river beds. Given that global warming in the last hundred years has been around 1 degree, it's pretty clear that these examples were chosen because they are vivid, despite not being representative of conditions across the planet.

Brendan complained about how the use of vivid and unrepresentative examples in "24" (which by the way, I find unwatchable) helps to wreck the public debate about torture. I was merely pointing out the similarities in that respect between "24" and "An Inconvenient Truth."

And of course your point that "An Inconvenient Truth" is a documentary is worth noting. As a documentary, it ought to be held to a higher standard in terms of its truthfulness and its effect on the public debate.

[Jason]

The problem with using 24 in debates about torture is that it is fiction. Torture is a dramatic event that works in the confines of the plot of limited time AND IT ALWAYS WORKS (at least when "we" do it to the bad guys; ol' JB seems able to resist giving up information when he is tortured). Yet the little evidence that we have about torture is that it mostly does not work as a means to get information.

There are two separate questions about torture. (1) Is it an effective means to get information? and (2) is it morally acceptable conduct (can we use bad means to get good outcomes)? If the answer to the first question is no, then the second question is off the table.

[Howard]

Note to Rob -

There is a serious Al Gore supporter who goes to great length to pick apart that New York Times piece you reference. He reviews it quote by quote. Takes him four installments.

He shows that the criticism isn't based on errors of scientific fact. Either Gore had it right (and is misrepresented) or it's a difference of opinion. Problem is, Gore actually represents generally accepted scientific opinion and the critics quoted are more in the minority.

It's not my blog so I can only summarize what I read. Given the subject at hand (climatology) I didn't find it that engrossing.

This blog frequently looks into issues of "spin" and is, as I say, published by a very serious fan of Al Gore.

He does not like it when someone puts a statement into the media that isn't proven (or challenged, when false) and then it gets repeated over and over.

If anyone has an interest in reading the posts, here is the URL www.dailyhowler.com/dh031407.shtm

The first of the entries in response to the original NYT article appeared on March 14, 2007.

I do appreciate your comment about "dramatization" and "sensationalism". It can have an emotional impact that may be distracting from the actual issue at hand, when used in a documentary.