Supreme Court Justice Antonin Scalia was on a panel discussion about torture and terrorism law. During this discussion, the topic of Jack Bauer came up. (source)

…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.”

The left-wing blogosphere has erupted in a fit. Left wing bloggers are shocked and appalled that Justice Scalia supported torture. And indeed, one blogger, one of the “canaries in the coal mine” that I follow, declared himself “Croggled and appalled“.

Over at the American Constitution Society blog, the issue has drawn some comment. Most of the comments declare Scalia to be the worst thing that’s ever happened to the Supreme Court:

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.

We see more measured comments at the wsj blog.

This post at Think Progress has drawn any number ov comments. According to the commenters, Scalia is busy shredding the constitution and should be impeached. Another major thread running through the comments is exemplified by:

Wow. Scalia is basing his legal opinions on a fantasy TV show? Our republic is dead.

And

Do any of these prominent repugs live in the real world, or are they all unable to distinguish fact from fiction?

Southern Beale commented in a post:

Would someone please remind the dumber Republicans among us that Jack Bauer is a fictional character?

Well, I’d be willing to bet that Scalia is well aware that Jack Bauer is a fictional character, and that the show “24″ depicts fictional events. Any takers?

Even with a fair trial, we tolerate the ability of police officers to stop and detain people, using deadly force if needed. In many cases the police can subject suspects to very coercive methods of interrogation. Some of these, like the offering of plea bargains, are little more than legalized blackmail.

However, as soon as you offer anything except the most stringent condemnation of anything bearing the label “torture”, all hell breaks loose. If you dare question whether it’s really that far out of bounds you are considered evil incarnate. There is almost no attempt to address the substance of your remarks, and every attempt to declare your opinions illegitimate.

Although Scalia and others at the panel raised serious issues in the discussion, the noise in the left-wing hemisphere of the blogosphere denounced him for failing to reject torture out of hand. The only possible reason any of these people can imagine is that he’s evil, he’s determined to eradicate all trace of due process and civil rights, and he’s a sworn enemy of the Constitution.

Well, there is one more reason. Obviously, he must be stupid. He’s so stupid that he can’t tell the difference between a TV series and reality.

The “principled” opposition to torture blithely assumes that anyone who doesn’t agree with them wholeheartedly and unreservedly must be operating from stupidity or evil, or maybe both. This is a very convenient point of view – it saves those who hold it from ever having to think. If everyone who disagrees with you is motivated by evil, or is blindingly stupid, there’s no point in arguing with them. He’s a Conservative – end of issue.

But there are real, weighty, meaty issues to deal with. Some of these were dealt with at the panel discussion.

Does the end justify the means if national security is at stake? On 24, the answer is, invariably, yes.

“[Scalia argued] that fictional or not, federal agents require latitude in times of great crisis.”

“So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.”

While Judge Scalia argued that doomsday scenarios may well lead to the reconsideration of rights, in his legal decisions he has also said that catastrophic attacks and intelligence imperatives do not automatically give the U.S. president a blank cheque - the people have to decide. “If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this court,” he dissented in a 2004 decision.

Do the ends justify the means?

Personally, I’d say they do, but the question is, how far? To say that the ends never justify the means is to commit the same error committed by one who defines torture as “any physical or mental coercion – any.” Life is a series of trade-offs. That’s one inescapable truth. Those who insist the ends never justify the means would rather there were no such trade-offs, but they’re in for disappointment.

So the issue is not do we ever get our hands dirty, the question is how much dirt is compatible with our notions of a civilized society.

But that’s an argument that requires thought and consideration. It’s far easier to adopt a stance of ideological purity and declare all disagreement unprincipled by definition.

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