A little reminder on Torture Sunday

Dahlia Lithwick had a great column about the biggest influence on the thinking of members of the Bush administration in regards to its "interrogation" policies: Jack Bauer.

I've written a ton about this shocking phenomenon over the years, but even I didn't know that John Yoo actually cited the show in his book:

"What if, as the Fox television program '24' recently portrayed, a high-level terrorist leader is caught who knows the location of a nuclear weapon?"

... And we know for sure he knows and he knows we know he knows and we know he knows we know he knows and he STILL won't give it up even if we give him ice cream? Then what, huh? Will you be willing to waterboard him then, you lily livered terrorist symps?

I honestly don't know if this is some Straussian ruse to try to pull one over on the rubes or if these people actually believe the things they see on television. Scalia cited Bauer too. They held a seminar at the Heritage Foundation with the shows actors and producers featuring Chertoff and Limbaugh in which Chertoff said:

SECRETARY CHERTOFF: ...In reflecting a little bit about the popularity of the show "24" -- and it is popular, and there are a number of senior political and military officials around the country who are fans, and I won't identify them, because they may not want me to do that (laughter) I was trying to analyze why it's caught such public attention. Obviously, it's a very well-made and very well-acted show, and very exciting. And the premise of a 24-hour period is a novel and, I think, very intriguing premise. But I thought that there was one element of the shows that at least I found very thought-provoking, and I suspect, from talking to people, others do as well.

Typically, in the course of the show, although in a very condensed time period, the actors and the characters are presented with very difficult choices -- choices about whether to take drastic and even violent action against a threat, and weighing that against the consequence of not taking the action and the destruction that might otherwise ensue.

In simple terms, whether it's the president in the show or Jack Bauer or the other characters, they're always trying to make the best choice with a series of bad options, where there is no clear magic bullet to solve the problem, and you have to weigh the costs and benefits of a series of unpalatable alternatives. And I think people are attracted to that because, frankly, it reflects real life. That is what we do every day. That is what we do in the government, that's what we do in private life when we evaluate risks. We recognize that there isn't necessarily a magic bullet that's going to solve the problem easily and without a cost, and that sometimes acting on very imperfect information and running the risk of making a serious mistake, we still have to make a decision because not to make a decision is the worst of all outcomes.

And so I think when people watch the show, it provokes a lot of thinking about what would you do if you were faced with this set of unpalatable alternatives, and what do you do when you make a choice and it turns out to be a mistake because there was something you didn't know. I think that, the lesson there, I think is an important one we need to take to heart. It's very easy in hindsight to go back after a decision and inspect it and examine why the decision should have been taken in the other direction. But when you are in the middle of the event, as the characters in "24" are, with very imperfect information and with very little time to make a decision, and with the consequences very high on a wrong decision, you have to be willing to make a decision recognizing that there is a risk of mistake.

Here's Rush at the same seminar:

RUSH: I asked Mary Matalin, by the way, on this trip to Afghanistan, we were watching this, and I asked her -- she worked for Vice President Cheney at the time -- I said, "Do we have anything like this?"

SURNOW: (Laughter.)

RUSH: She said, "Not that I know of." What about the possibility of government officials -- back to the scholars -- government officials watching this program (we know they do) can they get ideas, creative ideas on dealing with these problems from this show, or are they strictly fans, do you think?

[...]

Speaking just as an American citizen, you mentioned the operation in Canada. This is why the show has an impact on people. We have a political party trying to shut down the program that enabled that operation in Canada to be a success. It's being called "domestic spying," when it's not. These guys put the same kind of conflict in the program. Jack Bauer, who never fails, always is the target of the government, somebody, being put in jail. It's amazing how close it is.

Rush was actually asking the right question. I laughed at him at the time,thinking he was an embarrassing torture fanboy. But it turns out that the military really was getting ideas from the show:

According to British lawyer and writer Philippe Sands, Jack Bauer—played by Kiefer Sutherland—was an inspiration at early "brainstorming meetings" of military officials at Guantanamo in September of 2002. Diane Beaver, the staff judge advocate general who gave legal approval to 18 controversial new interrogation techniques including water-boarding, sexual humiliation, and terrorizing prisoners with dogs, told Sands that Bauer "gave people lots of ideas."

“Listen, I think it’s very facile for people to say, ‘Oh, torture is terrible,’” Scalia told the Swiss radio network. “You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person?”

“I don’t know what article of the Constitution that would contravene,” the conservative justice added in reference to the harsh treatment of terrorism suspects.

As the Associated Press’ Mark Sherman reported Friday, Scalia has previously invoked the fictional Jack Bauer character from the television series 24 to make a similar point about torture.

“Are you going to convict Jack Bauer? 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,” Scalia argued at an Ottawa legal conference in 2007. “So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”