Is Scalia Dissenting Again?

Last updated on: June 20, 2007 at 4:16 pm by voxnovablog

Is Scalia Dissenting Again? 2007-06-20T16:16:00-05:00 voxnovablog

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Remember Scalia’s attack on Evangelium Vitae, when he mocked John Paul’s teaching on the death penalty by calling for “new staffers at the Congregation for Prudence in the Vatican.”? And now Scalia’s keen sense of dissenting irony strikes again. This time, the topic is torture. And, no, Scalia is not writing a treatise on the topic in First Things. Rather, he is ad-libbing about a television show.

Scalia is a huge fan of 24, the show where the main protagonist (Jack Bauer) regularly tortures people for information. Here’s what Scalia said:

“Jack Bauer saved Los Angeles. … He saved hundreds of thousands of lives… Are you going to convict Jack Bauer?.. 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?”

Actually, Antonin, as Catholics we do believe in these absolutes. We live our lives by them. We believe torture is intrinsically evil, never justified by intent or circumstances (and those circumstances include Jack Bauer-style ticking bomb scenarios). We are not proportionalists, we are not consequentialists. Scalia once explicitly mocked Evangelium Vitae; is he now implicitly mocking Veritatis Splendour, possibly the most important of all the late pope’s encyclicals? I don’t want to get into too much detail here, as I’ve discussed the main points on why torture is absolutely unacceptable from a Catholic point of view on my very first post on Vox Nova (see here).

Sadly, Scalia’s comments feed into two prevailing trends among a key element of the contemporary American right: first, the embrace of torture (just look at a Republican presidential candidate’s debate), and second, the blurring of fact and fiction, reality and fantasy. You might not realize it from Scalia’s rhetoric, but Jack Bauer is a fictional character. The show is supposed to be about entertainment, not a guide to foreign policy. I am a big fan of the Sopranos, but this does not mean I support “whacking” one’s enemies as a solution to life’s problems! From the early days of the Bush administration, Ron Suskind noted the very postmodern denial of all objective truth among some in this group, especially when a Bush aide remarked that “we create our own reality”. And today, pluralities still believe that Saddam Hussein had weapons of mass destruction, and strong links to Al Qaeda. In such a nihilistic world, facts and opinion are intertwined, and reality and entertainment are blurred.

But there is a dark side to applying this philosophy to 24. A few months ago in the New Yorker, Jane Mayer noted that glorifying torture on TV was having an effect on the real world. Mayer:

“However, it had become increasingly hard to convince some cadets that America had to respect the rule of law and human rights, even when terrorists did not. One reason for the growing resistance, … was misperceptions spread by ’24,’ which was exceptionally popular with his students. .. “The kids see it, and say, ‘If torture is wrong, what about ’24’?’

Although reports of abuses by U.S. troops in Iraq and Afghanistan and at Guantánamo Bay, Cuba, have angered much of the world, the response of Americans has been more tepid. Finnegan attributes the fact that ‘we are generally more comfortable and more accepting of this,’ in part, to the popularity of ’24,’ which has a weekly audience of fifteen million viewers, and has reached millions more through DVD sales.

The third expert at the meeting was Tony Lagouranis, a former Army interrogator in the war in Iraq. He told the show’s staff that DVDs of shows such as ’24’ circulate widely among soldiers stationed in Iraq. Lagouranis said to me, ‘People watch the shows, and then walk into the interrogation booths and do the same things they’ve just seen.’ He recalled that some men he had worked with in Iraq watched a television program in which a suspect was forced to hear tortured screams from a neighboring cell; the men later tried to persuade their Iraqi translator to act the part of a torture ‘victim,’ in a similar intimidation ploy.”

Remember, an official Pentagon survey of US troops in Iraq showed that more than a third support torture for gathering information, 40 percent support torture to save the life of a fellow soldier, and two-thirds would turn a blind eye to mistreating civilians. Where are they getting these attitudes? 24? The Bush administration? Probably both.

In earlier times, successive US administrations stood by the Geneva Conventions. No more. Which brings us back to Antonin Scalia. He was a key dissenter in last year’s Hamden v. Rumsfeld case, which threw out Bush’s military commissions on the grounds that their structures and procedures violated both the Uniform Code of Military Justice and the Geneva Conventions (especially Common Article 3 which states that detainees shall not suffer torture or outrages upon personal dignity.) As noted by Marty Lederman, the most significant finding of this ruling was that the Geneva conventions applied to Al Qaeda suspects. For the US has always applied these “minimum, fundamental standards to all detainees, whether or not the detainees themselves were party to (or abided by) Geneva or not (including, for instance, the Viet Cong).” This long-standing practice ended in 2002 when the Bush administration determined that Common Article 3 did not apply to Al Qaeda, and that for all others, the standards were to be applied only “to the extent appropriate and consistent with military necessity.” In Lederman’s view, therefore, the most important aspect of the Hamden decision was its ruling on Common Article 3, not what it had to say about the military commissions themselves.

But Scalia was a dissenter on this decision. His dissent was primarily on the question of jurisdiction, and he did not address Common Article 3 directly, but his silence in the face of suffering is telling. Note that the minimum protections accorded by Common Article 3 are fully in accord with Church teachings on the dignity and intrinsic worth of each and every human being. These are principles that every Catholic should support vigorously. In his World Day of Peace message, Pope Benedict lauded international humanitarian law, and called for it to be reaffirmed in “present-day situations of armed conflict, including those not currently provided for by international law”. But why bothering listening to Benedict, or more pertinently, to Christ, when Jack Bauer can save the world?

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