Legal Commentary

Talk has been circulating about John Yoo and tenure. Based on allegations that he has committed war crimes, that he has provided shoddy legal advice to the detriment of the country, and that he has advocated morally reprehensible views, some advocate that he be fired from Berkeley?s Boalt Hall School of Law. I don?t want to wade into this controversy (though, I?ll admit in passing that I do not agree, no matter how much I think that some of the underlying criticisms are probably correct, with firing a tenured faculty member based on such public pressure), but I do want to comment on an difficulty that Yoo?s case causes for one of the principle arguments used to justify extra-legal government action.

Oren Gross made an effective argument on how to justify extra-legal measures here. He argues that public officials may be justified in engaging in extra-legal actions during times of perceived emergency if they openly acknowledge their actions and if the public is willing ex post to ratify the actions. Even assuming that the acts of torture the Yoo memos purport to justify were committed under perceived emergency circumstances (a highly dubious proposition), the administration has only been partially open about its extra-legal actions, and it has not been willing to take responsibility ex post for having taken illegal actions. And while not admitting to engaging in war crimes and other illegal actions, the administration has worked hard to obtain ex post immunity from prosecution for those who carried out its policies (Military Commissions Act 2006, e.g.). Within Gross?s framework, Yoo?s memo is particularly pernicious because not only does it purport to provide legal cover for those engaging in what would otherwise be considered illegal actions, but it does not admit that the actions sanctioned are extra-legal, or illegal, in the first instance. By redefining the law to enable what would otherwise be considered torture, and by tendentiously purporting to define the scope of executive power, the memos shift the discussion away from holding administration officials responsible for what they actually have done. We are left playing semantic games between an administration that insists it does not torture (because its lawyers have implausibly defined torture so narrowly as to render even the most gruesome practices non-torturous), and the reality that the administration has engaged in torture (on any plausible account, and judicially sanctioned in other jurisdictions, of what constitutes torture). Thus, Jack Balkin can write, correctly I think, that there is little chance of any administration officials being held legally accountable for their actions. Is it nonetheless possible to hold administration officials responsible?

A practical problem is that in form, our present situation very much resembles Gross?s framework. The public has become aware of the administration?s actions and the internal means by which those actions were sanctioned, yet the mechanisms of responsibility have no outlet. Because of the particular difficulties of one administration holding a prior administration responsible for war crimes, and the near impossibility of the current administration pursuing any prosecutions of its own officials, there are fewer routes available for holding those officials responsible. The failure to prosecute or to have some more official public shaming, may reflect widespread public acceptance of torture, or it may reflect the fact that there are no institutional means by which the public can hold officials responsible (other than the ballot box). From this follows the misplaced desire by some to have Yoo fired. But does that mean we must leave things where they now stand? Must we accept that the official position of the U.S. government is that no one can be held responsible for acts of torture justified as necessary and sanctioned (or enabled) by the lawyers?

I think that Christopher Kutz makes a powerful point here, following the philosopher Bernard Williams, when he writes, ?given a people who see slavery (or another injustice [torture]) as necessary, at least let them see it as a brute and inevitable affront to their principles, not as something their principles can domesticate and make safe to perpetuate.? Even if substantively wrong, calls for Yoo to be fired are attempts to make sure affronts to our principles do not become domesticated. If it is necessary for us to live with war criminals, or with those who have engaged in extra-legal or illegal actions, let the public sphere loudly and widely reflect the fact that we see their actions as brute and barbarous affronts to our principles.

I picked up the April Mother Jones issue last night at the grocery, and the cover story fits this theme nicely: ?Torture Hits Home: When the Unthinkable Becomes Acceptable.? More than writing blog entries and law review articles like I (here and here) and others have done, I think that we do need some form of institutional accountability to ensure that torture does not become domesticated, even if no criminal charges are ever filed.