Justice Scalia: Free Jack Bauer
Speaking on an international panel of judges, Justice Scalia offered an advisory opinion on the constitutionality of Jack Bauer:
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."
Written By:beau On June 19, 2007 4:57 PM Written By:chris On June 19, 2007 9:34 PM
Scalia would be a hell of a prosecutor: "Gee the jury might nullify, I might as well stay in bed."
Maybe he'll retire so Bush can put him in as a US Attorney somewhere. For "performance" reasons.
A few comments:
1) If it is a good bet that a jury will nullify (based on the evidence to be presented at trial) a prosecutor SHOULD stay in bed (or at least prosecute something else). If political expression (or abortion, contraception, or mix-race marriage) were a crime, and juries were known to acquit, I am sure this blog would agree with me.
2) If “24” were true, there would be defenses available at common law to Bauer. This might be what Scalia is talking about. Likely justification, nullification, or self-defense might be developed at trial.
3) Finally, and, this I consider the most annoying: there are no reported cases where torture was really necessary to stop a “ticking time bomb.” I looked. I blegged on my blog. This is more of a rhetorical device. So, most of the hypos are silly.
So, Bauer is fiction. Jury nullification is possible in the face of really outdated laws. The “ticking time bomb” hypothetical is just that.
(Oh, and I am an ACS member in good standing.)
S. Cotus
The entire premise, argument and conclusion is hypothetical as it is entirely based on fiction -- absurd, unrelenting, fantastical fiction.
To dismiss Scalia's obvious endorsement of torture in his statements regarding Bauer as further fictional banter, as you seem to suggest, discredits the Justice, and justice.
That said, I don't believe the case would ever come to trial as no prosecutor would set upon a man who has saved the free world, so Scalia's opinion is moot. Which is a tremendous improvement over his other known opinions.
How does one properly deride comments such as Justice Scalia has made, much less the illegitimacy of the rhetorical strategy behind such comments, while still maintaining the tone of respect a student should show for a member of the world's most powerful bench? It is beyond me. This man is a fool and a poltroon and a blight on the profession, evil and dangerous, not just for his positions, but for his willingness to so lower the bar with respect to valid conclusions drawn from true premises.
To be clear, the absolutes Justice Scalia is sworn to uphold and protect include the absolute right to due process and all the rest of the inalienables referenced in our founding documents. But in truth the only absolute in counter-majoritarian Scalia's armamentarium is partisan posturing. It will be a grand day for justice when this man leaves the bench.