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Sunday, Nov 8, 2009
Could a bleeding heart civil-liberties lawyer and an uppity judge stop a terrorism interrogation in progress?
Not even if this was the United States of Sweden. One of the show's most dramatic twists comes when an associate of Marwan's, an ex-Marine named Joe Prado, is arrested and brought to CTU for interrogation -- which, in the world of CTU, means torture. Marwan, who's now got his nuclear warhead, needs Prado to stay silent, so he turns to a sure-fire ally: liberals. A Marwan aide informs a legal advocacy group, "Amnesty Global," that CTU is about to torture an innocent American citizen. Within 15 minutes (!) of Prado's after-midnight arrest, a self-righteous and impeccably tailored shyster named David Weiss arrives at CTU brandishing a court order protecting Prado. Immediately Jack Bauer has two people he'd like to torture (three if you count the absent judge, who explains to CTU division chief Bill Buchanan that since Prado isn't a known terrorist, the interrogation must proceed with kid gloves if at all). When President Logan won't immediately intercede, Weiss marches Prado out of CTU safe and sound. (Don't worry -- once the lawyer drives away, Jack breaks Prado's fingers until he talks.)
There are a lot of implausible scenarios in "24." The idea of a judge stopping an interrogation in progress might be the most outlandish yet. "The chances a judge would step in seem relatively low, if not impossible," says Kayyem. It's tremendously difficult to determine what's legal in the world of "24," but if the Amnesty Global lawyer pressed his case to the judge based on the prospect of Prado's imminent torture, even to the most flagrantly liberal activist judge on the bench, he would have a high evidentiary bar to clear. "You can't just walk into court and make the accusation of torture and spring the guy," says the ACLU's Emily Whitfield, another "24" addict. "The judge will say, 'What's the basis?'" And, of course, the basis is -- well, an anonymous tip from a terrorist, which wouldn't get Prado out of CTU even if a pinko attorney had on hand a stack of circumstantial evidence suggesting that abuse occurs in terrorism detentions. Then there's the small matter of the political climate. Whichever judge issues an order to stop the interrogation of a terror suspect while the United States is under attack had better be prepared for an angry mob led by Sen. John Cornyn to rip him from limb to limb.
There's a brief scene where Buchanan contends that the PATRIOT Act duly authorizes Prado's detention. Actually, it wouldn't: The act's expansions of the government's detention powers don't extend to U.S. citizens like Prado. But the feds have other tools on hand. For example, Prado could be held for questioning as a material witness in CTU's ongoing investigation of the day's attacks, since he was discovered meeting with a man on a terrorist watch list. Judges tend to defer to the government's rationale for detaining individuals in such cases.
OK, but wouldn't a useful-idiot civil libertarian at least try to free Prado? According to Whitfield, whose organization is clearly the model for Amnesty Global, if the ACLU learned of a case like Prado's, "we might make a few calls to see if the person's being held and if a public defender has been appointed... We tend to do the big-picture stuff. We're not a criminal law firm." Of course, by the time the ACLU or anyone else learned of Prado's detention, his initial interrogation would have long since ended.
Could government agents really be so reliant on torture -- even for use on American citizens?
Not constitutionally. In the United States portrayed on "24," the law is an abstraction. If CTU were a real government agency, its agents would be criminals. President Charles Logan is appalled to hear that CTU wants authorization to torture an American citizen (Prado), suggesting that on "24," as in the real world, constitutional prohibitions on torture apply; when Jack does it anyway, Logan orders the Secret Service to arrest him. Yet all throughout the day, Bauer and his CTU colleagues torture practically everyone -- including U.S. citizens -- believed to have knowledge of the terrorist conspiracy. When suspected of concealing crucial information, Secretary of Defense Heller's son Richard is subjected to sensory deprivation, a CTU analyst named Sarah is repeatedly Tasered, and Heller's son-in-law Paul is electrocuted. And if President Logan's conscience is shocked, it's apparently because the accidental commander in chief is unfamiliar with what CTU really does. When Heller's daughter Audrey is jarred by watching Jack torture her husband, the defense secretary consoles her by saying, "That's his job ... We need people like that."
Sure, a foolish consistency is the hobgoblin of little TV critics. But to take the United States as shown on "24" on its own terms, CTU possesses some nebulous authority to torture recalcitrant detainees it considers to have intelligence value. The source for its authority is obscure -- otherwise, no judge would have intervened to stop Prado's brutal interrogation. But considering the nonchalance of old-pro Heller and the CTU staff, combined with the horror of newcomer Logan, it would seem that the previous administration of President Keeler -- perhaps in response to the terrorist attacks of the first three seasons of the show -- granted CTU some ability to torture U.S. citizens. That wouldn't resolve where Keeler got the authority from -- if Congress passed a law sanctioning torture on U.S. soil, presumably Logan wouldn't have had a problem with the Prado case, dubious constitutionality aside -- but it serves as the most plausible explanation for CTU's procedures. As Kayyem puts it, on the show "there's no law." Certainly not as we'd recognize it.
Instead, there's "protocol." When Audrey learns that Jack tortured Prado, she admonishes him that he can't just "violate protocol" -- that is, the president's wishes. Never mind that there's a court order to prevent Prado from being abused. For "24," the relevant authority is the policy decision of the commander in chief, not the law. Whether the writers of the show intend it or not, the logic on display is reminiscent of the argument made by then-White House counsel Alberto Gonzales and attorneys from the Justice Department's Office of Legal Counsel in early 2002: that the Constitution grants the president maximum authority in wartime to defend the country as he sees fit, and that the stated intentions of the president (to treat al-Qaida and Taliban detainees humanely to the extent consistent with military necessity) are a fit substitute for binding law. Sure, President Bush's aides were debating how to treat noncitizen enemy combatants -- and later, in the infamous (and repudiated) Justice Department memo of August 2002 defining torture narrowly, what interrogation techniques were permissible overseas. But "24" suggests that after a few more terrorist attacks, the slope may slip further.
So does "24" endorse torture?
Yes. It's true that the torture of Richard, Sarah and Paul doesn't result in any useful information -- and of the three, only left-wing Richard can't forgive CTU for the abuse. Sarah and Paul, by contrast, seem to brush off their unfortunate treatment in recognition that torture can yield reliable intelligence, even if mistakes occur. Hence, as soon as Jack shoots a Marwan associate named Sherak in the leg, the once-recalcitrant terrorist bellows that his comrades are targeting the secretary of defense, who's almost instantaneously kidnapped. (If only Jack had shot him earlier!) Most significantly, Prado's torture yields specific and accurate information on Marwan's whereabouts just after the nuclear warhead is stolen. When Logan's orders to arrest Jack for torturing Prado allow Marwan to escape, the new president loses all confidence in his abilities to defend the country during the unfolding crisis and essentially abdicates his office. Messages don't often come clearer than that.
Or more misleading. First, "24" presents the least likely and most academic of interrogation scenarios, the "ticking bomb" case, where an apprehended suspect is likely to have information that can potentially forestall an imminent attack and the only reasonable way of making him talk is to abuse him. These conditions are practically never met in the real world, and making legal (or, in the show's case, "protocol-based") allowances for ticking-bomb cases inclines interrogators to use in routine cases a tool intended for exceptional ones. Such abuses led the Israeli Supreme Court in 1999 to ban the use of "moderate physical and psychological pressure" that a state commission established in 1987 for ticking-bomb cases.
Second, information gleaned from torture is typically worthless. As Magnus Ranstorp, a terrorism expert at the University of St. Andrews in Scotland argues, the most useful intelligence on terrorism comes from "a broader repertoire" of largely psychological tools. CTU's repertoire is almost uniformly physical, which often says more about the quality of the interrogator than the toughness of the detainee. Chris Mackey, a military interrogator who squeezed intelligence from al-Qaida and Taliban detainees in Afghanistan, recalls in his memoir "The Interrogators" how his instructors at Fort Huachuca "hammered home the idea that prisoners being tortured or mentally coerced will say anything, absolutely anything, to stop the pain." Even if we were to posit a real-life ticking bomb case -- with that ticking bomb being a nuclear detonation -- the interrogation methods that "24" says are responsible will most likely endanger American lives by producing bogus information. Not for nothing did John Negroponte, Bush's new intelligence czar, state at his confirmation hearing last month that "not only is torture illegal and reprehensible, but even if it were not so, I don't think it's an effective way of producing useful information."
If we're to take Gordon's theory of "24" as wish-fulfillment seriously, that may be one of the great ironies of the show. When measuring the distance between counterterrorism reality and fantasy, all you have to do, in Kayyem's words, is "compare John Negroponte and Kiefer Sutherland." Who would have thought that Negroponte would emerge from that matchup looking better?
