Last night's episode of Law and Order bugged me.
The show's producers would probably say, "Good, it was meant to."
The episode was called Thinking Makes It So and the storyline was set up to manipulate viewers into cheering when a perp is made to spill the beans about where he's stashed away the little girl he kidnapped.
Ingredients. Little girl lost. Desperate cop. Sleazy, arrogant suspect who won't talk. Conveniently nearby toilet bowl.
Couple of dunkings later, the cops are riding to the little girl's rescue.
Now the lawyers take over. And for the next half hour McCoy and Borgia agonize over the morality of torture. Borgia is just sickened by the whole idea and wants to wash her hands of the case. McCoy is more torn. He wants to win the case. He's been on the job too long and has lost about all sympathy he's ever had for the criminals he prosecutes. But he believes torture in any form is wrong and he's recently signed a petition protesting the horrors at Guantanamo. He also knows that the judge made a bad decision in allowing the case to go forward. The story depends on our accepting that the only evidence that the bad guy kidnapped the little girl is that he has the little girl. Evidence obtained illegally should be excluded, therefore the case should have collapsed.
So there's a part of McCoy that wants to lose the case. To complicate matters, the kidnapper's given the smartest and most likeable of all the defense attorneys in Law and Order's rotating stable of supporting players, Randy Dworkin, who's kind of a younger, more frenetic, thoroughly American Rumpole of the Bailey, and Dworkin admits that a part of him wants to lose, he wants the cops to always be able to rescue lost children...but goddammit torturing suspects is wrong!
The writers could have cheated in one of two ways, and I think I might have preferred if they had.
They could have had Fontana dunk the wrong suspect's head in toilet.
Or they could have made the suspect a lot more dangerous and despicable.
Instead, they made it clear that up until he turned to kidnapping he'd been nothing more than a smooth-talking con artist charming rich widows out of their money. Not admirable, certainly, but not somebody obviously capable of violence of any kind, let alone murdering a little girl.
We've even met him at work being a con artist. So have Fontana and Green. They interview him in the course of their investigation and buy his line that he's had no contact with his no-goodnik son whose death in bank robbery gone awry has revealed the kidnapping. (It's complicated.) Not only is he charming and reassuring, he shows real grief at the "news" that his son's been killed. In fact, he is more cut up over his son's fate than the parents of the little girl appear to be over their daughter's kidnapping---they're involved in a bitter divorce and their anger and resentment towards each other keep getting the better of their concern for their daughter.
We find out later that the suspect has treated the little girl so well that she feels as though she's been on a little vacation. But at the time Fontana's washing the guy's hair in the john we don't know that and neither does Fontana. Fontana also doesn't know if the guy has any partners, partners who might be a lot more ruthless and dangerous.
On the other hand, the guy's ex-wife is downstairs in the house where Fontana's caught up with him and for all Fontana knows she might have information that would save him the trouble of torturing the creep.
We learn later that she did.
And she'd have gladly given it up.
Fontana didn't need to torture the guy. And he had some time to think it over and reasons to doubt himself.
So the episode sets up a debate over the use of excessive force. When is a good cop justified in giving a suspect the old third degree? The answer could be when he has good reason to think that a 6 year old little girl's life is in immediate danger if he doesn't find her this minute, but the response to that is, even the best cops make bad judgment calls and if you excuse the best cops, doesn't that give the next best cops, and the worst cops, permission in their minds to exercise their less reliable judgment?
How do you prevent that? Do you select a handful of the very best cops and write them a license to torture the way MI6 has given James Bond a license to kill?
How do you decide that this cop or that cop is a good one, good enough to trust with that decision? And that sort of mistake by a good cop has the same consequences as the same mistake made by a bad cop, anyway.
This storyline would have been more effective back in the day, I think, when the cast of characters included Ben Stone, Claire Kincaid, Adam Schiff, Lennie Briscoe, and Mike Logan, and it was Logan the hothead pushing the creep's head in the can. Back then, Law and Order allowed itself more moral ambiguity. It let its main characters be more fallible and, more than occasionally, wrong.
Back then Law and Order was about how hard it was to do the job.
Over the last few seasons it's become more about catching the bad guys and seeing they get punished.
It's become a better written, better acted run-of-the-mill cops and robbers show.
When we see a perp get what's coming to him now, we always know he deserves it and we are meant to cheer.
Last night's episode, despite all the ways it tried to work against itself, didn't manage to raise enough doubts about having that reaction.
Oddly, the script made no reference to the first episode of this season, recently repeated, in which another little girl was kidnapped. In that episode the suspect was dangerous, violent, and ruthless and the little girl was in real, immediate danger and the cops still managed to get her back without resorting to torture.
It was pure luck that they did, which would have made it very useful last night. Both sides could have used it to justify their arguments.
But, finally, I think the whole interesting moral question about cops and the limits of their judgment was overwhelmed by the writers' raising the stakes too high. When the debate went immediately from whether or not Fontana was wrong to torture the suspect to the awfulness of what's going on at Gitmo, the show's own plot was trivialized by a matter of scale.
Who cares about one fictional cop sticking one fictional and guilty criminal's head in a toilet a few times compared to what's being done to hundreds, thousands, of innocent and real human beings?
On top of that, by comparing what Fontana did to what the torturers at Gitmo and Abu Ghraib and all our secret torture centers elsewhere are up to, the writers excused him.
After all, he made one mistake in the heat of the moment. The situation was unique and not likely to be repeated---here's another reason for bringing in that other episode. Similar situations are not the same as duplicate situations.---Fontana goofed and knows he goofed, we know he'll be more careful the next time (We wouldn't have known that about Mike Logan, by the way.), and a very real good came out of it. The little girl was rescued.
So I didn't like the show.
Looked at another way, the way the writers probably wanted me to look at it, what Fontana did, although it was wrong, is a repudiation of what we're doing in our torture chambers.
First of all, the situation Fontana found himself in was unique and not not likely to be repeated.
Our torture chambers are set up and run to constantly create and repeat the situation over and over again.
Fontana had very little time to think about what to do.
The Bush Administration has had all the time in the world and has decided it just doesn't care.
The torturers Bush has employed have had all the time in the world too and they don't care.
Fontana knew that his guy was guilty and had the information he needed.
We know that probably 99 out of 100 of the people who have gone down into our torture chambers don't know anything and aren't guilty of anything except being our enemies or related to our enemies, and we tortured and continue to torture them all anyway on the off chance that one of them might turn out to be a real bad guy. In other words, we deliberately torture innocent people for the hell of it.
Fontana did not actually hurt his victim, while Major Organ Gonzales' definition of hurting someone doesn't include anything short of immediate death apparently.
And Fontana got information he needed at the moment, information that was vital at the moment, and specific to the moment.
Nothing like that has apparently come out of our torture chambers. Nothing like that can come out of them now. Too much time has passed.
Even if Saddam had had WMD and even if he had had the capability to use them against us and even if he'd been all set to use them right away, within days of his overthrow they would have been as useless to him as if they'd never existed.
Even if the members of the Taliban and al Qaida we captured in Afghanistan knew where Osama was hiding and knew he was planning another attack, within days of their capture Osama's hideout and his plans would have changed. They did change.
So we got the torture chambers up and running and kept them running after we knew that it was too late for them to do anything useful.
Nevermind that torture is reprehensible, unamerican, and almost impossible to justify except by resorting the unlikeliest and most exteme hypotheticals. Our torture chambers are wasting time, energy, and money.
And here's the point. The apologists for torture always argue as if we aren't doing what we are doing.
They always argue as if the situation we are in in Iraq and Afghanistan is the same as the one Fontana found himself in.
They always argue as if there's a nuclear bomb buried under the White House and the person being tortured knows exactly where and has the code to defuse it.
And the apologists for Bush's spy on everybody for the hell of it program always argue as if Bush was spying only on terrorists who have planted a bomb under the White House and are calling each other up on the phone to give the order to detonate it along with the code to defuse it.
They argue as if the worst possible case scenario that might justify a single instance of resorting to torture is the reality of this very moment.
So that's why what Fontana did was wrong and has to be seen as wrong and why as good and smart and right as he is he still can't allow himself to do what he did.
Because it doesn't take much for stupid, bloody-minded, cowardly, and basically terrified people to argue themselves into thinking they are good and smart and doing the right thing for the right reason, to excuse themselves everything as if they were Joe Fontana saving a little girl's life.