A Tortured Defense

Published on
by
the Rocky Mountain News (Colorado)

A Tortured Defense

by
Paul Campos

In 2003, when he was a deputy assistant U.S. attorney general, John Yoo wrote a long legal memorandum arguing that the president has the inherent constitutional authority to torture people.

Furthermore, Yoo claimed, the president's power to torture can't be limited by Congress, the courts, or international treaties. As long as the torture is being carried out because the president believes it's necessary, Yoo argued, it's legal and cannot be made illegal.

Yoo's arguments bothered some people quite a bit. His memo, after all, was not merely some academic exercise. Yoo provided the U.S. government with a handy legal justification for committing acts normally considered war crimes, and our government duly proceeded to torture hundreds of people in Iraq and Afghanistan, as well as at Guantanamo Bay (several of the victims died as a result).

Yoo then returned to his tenured professorship at Berkeley's law school. Now some of the people who were unhappy with Yoo for helping our government commit war crimes are wondering whether any of this might be relevant to Yoo's current employment.

That has upset Brian Leiter no end. Leiter, a professor of law and philosophy at the University of Texas and the author of a popular blog, practically exploded with outrage at the suggestion that a law professor who makes shoddy legal arguments that facilitate the commission of war crimes ought to incur some negative professional consequences.

Leiter claims that anyone calling for Yoo to be fired is "calling for him to be punished for his ideas, and nothing else." This is absurd. What's at issue aren't Yoo's ideas, but rather the very real possibility that he is a war criminal. (Indeed, U.S. courts have established what Columbia law professor Scott Horton describes as "a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.")

What's especially odd about Leiter's impassioned defense of Yoo is that Leiter also claims the Bush administration is guilty of numerous war crimes, and that, in his words, "Bush and his gang of war criminals deserve to have their status confirmed by a court of law."

Furthermore, Leiter believes Yoo's legal arguments justifying torture as a weapon in what Leiter calls "the fake war on terror" are clearly wrong.

Leiter's defense of Yoo adds up to this: Yoo hasn't been convicted of war crimes, and it isn't even clear he's personally guilty of war crimes, since he was merely giving his superiors advice on how to commit war crimes under color of law, as opposed to actually committing the crimes himself. Thus to suggest he deserves to be fired is nothing but an attack on academic freedom.

What I find most offensive about this sort of argument is its lack of seriousness. To echo Orwell, it could only be made by someone for whom "torture" is at most a word.

Leiter thinks various members of the Bush administration are war criminals, and that their worst crimes -- crimes for which they should apparently be subjected to Nuremberg-style prosecution -- include the systematic torture of helpless prisoners in the name of a phony "war on terror."

Anyone who believes this must also acknowledge that John Yoo's eagerness to make specious legal arguments in support of torture seems to have led directly to lots of people being tortured, some to death.

Under such circumstances, it takes a twisted sense of moral priorities to get outraged about the (very slim) possibility that Yoo might lose his academic sinecure because he went out of his way to help the U.S. government commit war crimes.

In the end, I suspect that for Leiter, as for so many professors of this or that, words such as "torture" and "war crimes" are indeed nothing more than words, with which they can continue to play their petty and useless academic games.

Paul Campos is a professor of law at the University of Colorado. He can be reached at paul.campos@colorado.edu.

© 2008 The E.W. Scripps Co.

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