Lithwick: How Jack Bauer Shaped U.S.Torture Policy

The most influential legal thinker in the development of modern American interrogation policy is not a behavioral psychologist, international lawyer or counterinsurgency expert. Reading both Jane Mayer's stunning "The Dark Side," and Philippe Sands's "Torture Team," it quickly becomes plain that the prime mover of American interrogation doctrine is none other than the star of Fox television's "24," Jack Bauer.

This fictional counterterrorism agent—a man never at a loss for something to do with an electrode—has his fingerprints all over U.S. interrogation policy. As Sands and Mayer tell it, the lawyers designing interrogation techniques cited Bauer more frequently than the Constitution.

According to British lawyer and writer Sands, Jack Bauer—played by Kiefer Sutherland—was an inspiration at early "brainstorming meetings" of military officials at Guantánamo in September 2002. Diane Beaver, the staff judge advocate general who gave legal approval to 18 controversial interrogation techniques including waterboarding, sexual humiliation and terrorizing prisoners with dogs, told Sands that Bauer "gave people lots of ideas." Michael Chertoff, the Homeland Security chief, gushed in a panel discussion on "24" organized by the Heritage Foundation that the show"reflects real life."

John Yoo, the former Justice Department lawyer who produced the so-called torture memos—simultaneously redefining both the laws of torture and of logic—cites Bauer in his book "War by Other Means." "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?" Even Supreme Court Justice Antonin Scalia, speaking in Canada last summer, shows a gift for this casual toggling between television and the Constitution. "Jack Bauer saved Los Angeles … He saved hundreds of thousands of lives," Scalia said. "Are you going to convict Jack Bauer?"

There are many reasons that matriculation from the Jack Bauer School of Law would have encouraged even cautious legal thinkers to bend and eventually break our longstanding rules against torture. U.S. interrogators rarely if ever encounter a "ticking time bomb," someone with detailed information about an imminent terror plot. But according to the advocacy group the Parents Television Council (which has declared war on "24"), Bauer encounters a ticking time bomb an average of 12 times every season. Given that each season represents a 24-hour period, Bauer encounters someone who needs torturing 12 times per day. Experienced interrogators know that information extracted through torture is rarely reliable. But Jack Bauer's torture not only elicits the truth, it does so before the commercial. He is a human polygraph who has a way with flesh-eating chemicals.

It's no wonder high-ranking lawyers in the Bush administration erected an entire torture policy around the fictional edifice of Jack Bauer. He's a hero. Men want to be him, and women want to be there to hand him the electrical cord. Yoo wanted to change American torture law to accommodate him, and Justice Scalia wants to immunize him from prosecution. The problem is not just that they all saw themselves in Jack Bauer. The problem was their failure to see what Bauer really represents within the legal universe of "24."

For one thing, Jack Bauer operates outside the law, and he knows it. Nobody in the fictional world of "24" changes the rules to permit him to torture. For the most part, he does so fully aware that he is breaking the law. Bush administration officials turned that formula on its head. In an almost Nixonian twist, the new interrogation doctrine became: "If Jack Bauer does it, it can't be illegal."

Bauer is also willing to accept the consequences of his decisions to break the law. In fact, that is the real source of his heroism—to the extent one finds torture heroic. He makes a moral choice at odds with the prevailing system, and accepts the consequences of the system's judgment. The "heroism" of the Bush administration's torture apologists is slightly less inspiring. None of them is willing to stand up and admit, as Bauer does, that yes, they did "whatever it takes." They instead point fingers and cry "witch hunt."

If you're a fan of "24," you'll enjoy "The Dark Side." There you will meet Mamdouh Habib, an Australian, captured in Pakistan, abused by American interrogators with an electric cattle prod and threatened with rape by dogs. He confessed to all sorts of things that weren't true. He was released after three years without charges. Jack Bauer would have known inside of 10 minutes he was not a ticking time bomb. Our real-life heroes tortured him for years before realizing he was innocent.

That is, of course, the punch line. These lawyers who were dead set on unleashing an army of Jack Bauers against our enemies built a whole torture policy around a fictional character. Bauer himself could have told them that one Jack Bauer—a man who deliberately lives outside the boundaries of law—would have been more than enough.