Are You a Media Myth Buster?

Joe G
Jan 16, 2009 8:12 AM CST

The biggest problem caused by the hit show “24” was shown, again, by the NY Times contribution (“Questions of Justice,” 1/15/09) by prominent law blogger and libertarian Eugene Volokh, when he proposed asking Mr. Holder a question involving interrogation in a, quote, ticking-time bomb case, close quote.  Scalia suffers under the same misconception:  that there has ever been a ticking time bomb scenario, outside of pulse-pounding entertainment, where a known terrorist had information that, if provided, would save many lives immediately; that no non-criminal method of interrogation would produce; and that torture would produce in a reliable way.

Mentioning the ticking time bomb is a dead giveaway:  the lawyer (or Supreme Court Justice!) believes that what they see depicted in movies and on action television series is reality; that torture produces reliable results; that a victim of torture cannot lie; that interrogators know who terrorists are but cannot get them to disclose timely information; and that terrorists build bombs that tick.

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Odysseus Rex
Jan 16, 2009 8:31 AM CST

Torture….hmmmm….what exactly is “torture”?  Forcing Islamics to wear underwear on their heads?  Frightening them with barking, snarling, guard dogs.  Like Abu Grahib?  Or “waterboarding” and sleep deprivation and the occasional thumping, like Guantanamo?
What does the “national conscience” permit?  And how do we discrn the “national conscience”?  Hmmmm…
As an advisor to US and allied military commanders, I lost sleep wrestling with the issues.  Final conclusion:  It may or may not be torture, as “torture” is defined by international law, domestic statutes, and/or executive branch regulations.  If it is something bad enough that the “subject” will tell the interrogator whatever he/she wants to hear, true or false, IT’S TORTURE, and the information/intelligence is INHERENTLY UNRELIABLE!
Isn’t tTHAT a good enough reason NOT TO DO IT?

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Devin
Jan 16, 2009 10:01 AM CST

The media’s portrayal of public defenders as little more than incompetent attorneys with no fashion sense as well as that they are inexplicably “evil” in that they get “off” the “guilty”. When will it be recognized that a defendant in a criminal proceeding has the right to representation and a presumption of innocence until found guilty by a jury of their peers?

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Springfield Reformer
Jan 16, 2009 11:22 AM CST

We actually did the ticking bomb scenario as an exercise in my jurisprudence class.  The professor was, I think, trying to get us to reason our way to the position of “no torture ever.”  He was a good man, well-grounded in the religious, moral, and philosophical underpinnings of the western legal tradition.  In that context, the real question is this:  On what moral authority do you choose between the well-being of the potential torture victim and the well-being of that person’s intended victims?  The scenario makes the assumptions it does, not because those assumptions are realistic in all cases, but in order to force you to address the underlying moral question, to elucidate your own quality of moral thinking.  Therefore I think the ticking bomb question is an entirely legitimate way to evaluate nominees to national office.

As for the question itself, if our first premise is that human life in general is worth protecting and preserving, then “non-lethal torture” solves the problem because, if it works, no lives are lost.  “Lethal torture” may also work if the analysis modifies the first premise by adding a secondary premise of the “greater good,” i.e., risking the death of one individual is acceptable if it results in the survival of millions.  Is that not essentially the moral basis of the life-saving use of late-term abortion, that a less important human life may extinguished in the service of a more important human life? 

Therefore, simply avoiding harm does not solve the problem.  Someone will be harmed if torture occurs, or many will be harmed if it does not.  Therefore, some would say, mere survival is not dispositive, i.e., if millions die but we did no harm to the terrorist, that would be an acceptable outcome, because it would preserve our character.  This formulation implies a third premise, that human goodness, as in the avoidance of harm to others, is a greater good than mere survival, so much so that preserving this goodness, as a function of character, is worth risking the massive loss of human life.

This is an inherently religious point of view.  Non-theistic systems tend to pin their moral hierarchy on survival, not on some abstraction of goodness that transcends life itself.  Transcendent principles are part of that “brooding omnipresence in the sky” mentality and have no place in the rigorous formulation of positive law, right?  If, however, we once accept the notion of a transcendent principle governing this analysis, we open ourselves to the possibility of other transcendent principles which might influence the outcome.

One additional principle we may consider in this regard is that lesser harms may sometimes be inflicted in order to bring about greater goods, providing the system of “greater goods” is defensibly transcendent in nature.  Setting a dislocated bone may cause temporary pain, but it is designed to accomplish a greater well-being for the patient.  Likewise, in a war, we harm the enemy in battle in order to debilitate their attacks against us, in hopes of bringing the greater good of an eventual peace.  Neither of these acts constitutes torture per se.

But if neither pain nor harm sufficiently defines torture, what does?  True torture is evil because it rewards the torturer individually simply for making someone else suffer, or because it serves a “greater good” which is indefensible in terms of transcendent principles of goodness, or because the failure to rationally minimize the harm inflicted corrupts the character of the one performing the torture.  However, if the pain we inflict on the would-be bomber is designed to do as little harm as possible and yet accomplish the well-being of millions of would-be victims, then it is difficult to view this as torture.

In an ideal world, no one would do harm to anyone.  We are not there yet.  If we have leaders who have not thought out the moral framework in which they will operate to conduct a war, or if that framework is oversimplified to the point of being dysfunctional, then such a leader will eventually do us great, irremediable harm.  The ticking bomb question should be asked, and a well-qualified leader will be able to give a better answer than “never” or “always.”

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Ugh
Jan 16, 2009 11:32 AM CST

That no matter how a criminal case is, if the defendant can afford a top dollar criminal attorney, that attorney can just abracadabra the charges away.

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Anna S.
Jan 16, 2009 12:15 PM CST

The most frustrating media myth for me is the notion that all lawyers make a ton of money.  My brother-in-law always assumes I’m rich, no matter how often I tell him I really don’t earn that much.  My first job paid less than $60k, and after a dozen years in practice, my salary still starts with a 1!

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Avon
Jan 16, 2009 4:21 PM CST

I want to add my own viewpoint as a contingency-fee lawyer to #4 and #11.  Yes, they assume we pocket the entire fee (even more so than if it’s hourly, which may be likelier to trigger people’s image of a cash-flow, cash-overhead business).  And Yes, they assume I have lots of money, since the “average” lawyer makes more than I do.  I would guess - though I haven’t seen data - that a major source of the problem is a wider discrepancy in law than in most jobs between the average and the median.  If lawyers make an average of $150K a year, but 50% of lawyers make less than $75K, than a typical lawyer makes only half of an average salary.  Finally, perhaps the biggest skew factor exists for contingency-fee lawyers as it does for our clients:  any verdict awesome enough (in sheer size, or in outrageousness) to make the newspapers is bound to be appealed, and most likely to be drastically reduced.  Ms. Liebeck actually netted under $200,000 for the infamous cup of coffee for which she “got $3 million” - and that’s not much considering that her third-degree burns required 8 surgeries.  People simply assume that we net an entire gross which we actually never even see - and then we still want more.  Ouch.

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Anna S.
Jan 16, 2009 6:07 PM CST

#13, you make an excellent point.  The California State Bar did a study of member salaries a few years ago.  It turns out the median salary of CA lawyers was well under $100k.  But what makes the news and colors the public’s perception are the big contingency fees and the multi-million dollar profits per partner at big firms.  When you consider the expensive education that goes into being a lawyer, the heavy workload and the constant stress, even $100,000 isn’t enough, IMHO.

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rlinsk
Jan 16, 2009 10:47 PM CST

Biggest misconception that I now see: that judges have a cushy schedule and don’t work hard. Since becoming an law clerk for an appellate court, I see firsthand how dedicated and hard-working these 7 judges are. Impressive.

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PE
Jan 18, 2009 3:26 AM CST

If by media, you mean the press, then it is how often they misunderstand the important elements of a case or the significance of a decision.  If by media, you mean television entertain programs dealing with the law, it is artistic license that permits an attorney to take a civil case in the morning and start and complete a full trial that afternoon on the most complex of issues.  Apparently, in the arts, ther is no discovery and courts have no backlog.  Dream on.

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mara
Jan 20, 2009 6:27 PM CST

You think that winning will always mean something.  It doesn’t.  It’s just winning.

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Benjamin
Jan 23, 2009 8:06 AM CST

I have this legal plan from a company called Pre Paid Legal, inc. It is wonderful! Is this what everyone will have in the future?  I find this moving like HMO’s did for doctors? Great plan Great lawyers…...

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