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Tuesday, February 13th, 2007

Time Event
Reality Visits the Set of "24"

Christy Hardin Smith at Firedoglake* links a New Yorker article by Jane Mayer about the popular fantasy action show "24":



Bob Cochran [the show's co-creator] admitted, "Most terrorism experts will tell you that the 'ticking time bomb' situation never occurs in real life, or very rarely. But on our show it happens every week." [...] [Head writer Howard] Gordon [late of "X-Files"], who is a "moderate Democrat," said that it worries him when "critics say that we've enabled and reflected the public's appetite for torture. Nobody wants to be the handmaid to a relaxed policy that accepts torture as a legitimate means of interrogation." He went on, "But the premise of '24' is the ticking time bomb. It takes an unusual situation and turns it into the meat and potatoes of the show." He paused. "I think people can differentiate between a television show and reality."**

This past November, U.S. Army Brigadier General Patrick Finnegan, the dean of the United States Military Academy at West Point, flew to Southern California to meet with the creative team behind "24." Finnegan, who was accompanied by three of the most experienced military and F.B.I. interrogators in the country, arrived on the set as the crew was filming. At first, Finnegan -- wearing an immaculate Army uniform, his chest covered in ribbons and medals -- aroused confusion: he was taken for an actor and was asked by someone what time his "call" was.

In fact, Finnegan and the others had come to voice their concern that the show's central political premise -- that the letter of American law must be sacrificed for the country's security -- was having a toxic effect. In their view, the show promoted unethical and illegal behavior and had adversely affected the training and performance of real American soldiers. "I'd like them to stop," Finnegan said of the show's producers. "They should do a show where torture backfires." [...]

The meeting, which lasted a couple of hours, had been arranged by David Danzig, the Human Rights First official. Several top producers of "24" were present [though not the show's main creator, who was brainstorming with Roger Ailes of FOX News about their upcoming rightwing comedy show to counter Jon Stewart's "Daily Show"]. [...] Before the meeting, Stuart Herrington, one of the three veteran interrogators, had prepared a list of seventeen effective techniques, none of which were abusive. [...] After Howard Gordon, the lead writer, listened to some of Herrington's suggestions, he slammed his fist on the table and joked, "You're hired!" He also excitedly asked the West Point delegation if they knew of any effective truth serums.

At other moments, the discussion was more strained. Finnegan told the producers that "24," by suggesting that the U.S. government perpetrates myriad forms of torture, hurts the country's image internationally. Finnegan, who is a lawyer, has for a number of years taught a course on the laws of war to West Point seniors -- cadets who would soon be commanders in the battlefields of Iraq and Afghanistan. He always tries, he said, to get his students to sort out not just what is legal but what is right. 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, he suggested, was misperceptions spread by "24," which was exceptionally popular with his students. As he told me, "The kids see it, and say, 'If torture is wrong, what about "24"?'" He continued, "The disturbing thing is that although torture may cause Jack Bauer some angst, it is always the patriotic thing to do."

Gary Solis, a retired law professor who designed and taught the Law of War for Commanders curriculum at West Point, told me that he had similar arguments with his students. He said that, under both U.S. and international law, "Jack Bauer is a criminal. In real life, he would be prosecuted." Yet the motto of many of his students was identical to Jack Bauer's: "Whatever it takes." His students were particularly impressed by a scene in which Bauer barges into a room where a stubborn suspect is being held, shoots him in one leg, and threatens to shoot the other if he doesn't talk. In less than ten seconds, the suspect reveals that his associates plan to assassinate the Secretary of Defense. Solis told me, "I tried to impress on them that this technique would open the wrong doors, but it was like trying to stomp out an anthill." [...]

At the meeting, ["24" co-creator] Cochran demanded to know what the interrogators would do if they faced the imminent threat of a nuclear blast in New York City, and had custody of a suspect who knew how to stop it. One interrogator said that he would apply physical coercion only if he received a personal directive from the President. But Navarro, who estimates that he has conducted some twelve thousand interrogations, replied that torture was not an effective response. "These are very determined people, and they won't turn just because you pull a fingernail out," he told me. And Finnegan argued that torturing fanatical Islamist terrorists is particularly pointless. "They almost welcome torture," he said. "They expect it. They want to be martyred." A ticking time bomb, he pointed out, would make a suspect only more unwilling to talk. "They know if they can simply hold out several hours, all the more glory -- the ticking time bomb will go off!" [...]

The third expert at the meeting was Tony Lagouranis, a former Army interrogator in the war in Iraq. [...] "In Iraq, I never saw pain produce intelligence," Lagouranis told me. "I worked with someone who used waterboarding" -- an interrogation method involving the repeated near-drowning of a suspect. "I used severe hypothermia, dogs, and sleep deprivation. I saw suspects after soldiers had gone into their homes and broken their bones, or made them sit on a Humvee's hot exhaust pipes until they got third-degree burns. Nothing happened." Some people, he said, "gave confessions. But they just told us what we already knew. It never opened up a stream of new information." If anything, he said, "physical pain can strengthen the resolve to clam up." [...]

Anyway, might be worth a look. :)

93 93/93 -- AJ

* http://www.firedoglake.com/2007/02/12/where-fiction-crosses-the-long-gray-line/
Btw, firedoglake.com is liveblogging the Scooter Libby trial.
** I disagree. Show co-creator Cochran certainly doesn't, and some interrogators don't, either. Dangerous stuff, IMO. :(
Libby Trial Predictions

When I was in college I spent several intense years clerking in my dad's little Santa Monica law office -- rapidly becoming one of the first paralegals (brand new idea back then), and participating in some hundreds of cases: of all sorts, but with a specialization in criminal defense. This plus an LJ account makes me as good a judge as anybody on earth1 of the perjury and obstruction trial of I. Lewis "Scooter" Libby, Vice President Cheney's former Chief of Staff and National Security Advisor. In brief:

(1) Nobody knows anything about what juries will do. Apply large bags of salt to all commentary on same, including this one.

(2) In a normal perjury/obstruction case, Libby would be toast -- not just because his Grand Jury testimony (played in court) has been decisively refuted by a large number of highly credible witnesses,2 but because he's elected not to take the stand. I take the presumption of innocence with the utmost seriousness, and it would be hella wrong for any jury to assume a person guilty just because they elect not to testify...but I'm also here to tell you that juries ALWAYS3 assume EXACTLY that. The reasoning is simple: your liberty and honor are at stake and you don't feel like explaining yourself? You clearly have something to hide, most probably your guilt in the current case. QED.

(3) This is not a normal case in any sense of the word. First of all, juries disproportionately find more "reasonable doubt" in the cases of privileged folks (celebrities; rich, powerful white men, etc.) -- if only because they can afford lawyers who will vigorously fight their case. My dad won more cases than most criminal defense attorneys simply because he fought -- as he put it, in his mind "every case is Murder One," irrespective of ability to pay. (This also made for more favorable plea bargains, because prosecutors didn't have to go through too many trials with Dad before they wanted to avoid any more. It also kept him from making much money, but thereyago.)4

Beyond that, this is a highly politicized case. The odds that two or three jurors will be simply unwilling to convict, irrespective of the evidence, are very high: the "FOX says this is b.s.!" effect.

So...(drumroll, please):

(4) Nothing is impossible; Libby could be found Not Guilty. I put that possibility at about 1-2%. OTOH, thanks to the privilege and politics aspects, I suspect there may well be holdouts against conviction, irrespective of the evidence. I conclude that there's a 59% chance for outright conviction -- probably after extended deliberation to wear down the holdouts -- and a 39% chance of a hung jury, with little chance for a retrial if so. If the jury hangs with more than three votes for acquittal, I'd be very surprised; OTOH, the closer the hung jury is to 6-6 (or better, for acquittal), the likelier the government will not refile. In fact, I'd be very surprised if they refile even with a single holdout (11-1 to convict), for reasons unrelated to strict justice.

Whatever happens will either be described as exoneration (which short of a Not Guilty it isn't, legally speaking)...or (if a Guilty verdict) either bizarrely overturned on appeal, or pardoned by the President. Scoot actually seeing a prison, much less testifying against former boss Cheney in a subsequent case, is virtually certain never to occur.

Youse guys gots predictions? Or just want to slam the fine art of criminal defense? -- which deserves some slamming, though also the sort of system-supportive explanations I'd be happy to share.... :D

93 93/93 -- AJ

P.S. Our icon is from Charles Bragg's wonderful series of legal prints, a number of which hung in my dad's office. My favorite -- Dad's, too, I shouldn't wonder -- was probably the scummy defense lawyer holding the halo over his rotten client's head. But maybe Dad preferred this hanging judge. ;)

P.P.S. Thanks to sal93 knowing how to do it, I finally figured out (from her posted example) how to do numbered footnotes. (The command is [sup] for superscript, & [/sup] to end it, on either side of the number: [sup]1[/sup] -- only with the usual pointy command brackets, natch. Cool! No more *******'s! :D

1. Arr-arr, humor. :)
2. I'd be happy to lay this out in detail, if anyone cares. In the meantime, I don't say it lightly; this is one of the tightest perjury/obstruction cases I've ever seen.
3. Yes, I mean "always." That they sometimes find a non-testifying defendant Not Guilty anyway is most often a testament to their own sense of honor in obeying the law, whatever their personal conclusions.
4. The next book after ITNV finally comes out will be 1532 Third Street, a fictionalized account of the years in Dad's office. I can't wait. :)

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