How to Torture the Bush Six

An open letter to my fellow law professors:

Last summer, I took part in a conference at which John Yoo was
participating on another panel. It was a large event, featuring dozens
of talks, and I hadn't been aware that Yoo was speaking until the night
before my talk.

Still, I felt a stab of conscience at the idea that I was, in my own
very small way, helping to lend an aura of respectability to Professor
Yoo and his ilk by continuing to play a part in a horrible charade.
This charade pretends that the willingness of people at the top of our
government to use methods of torture associated with the darkest days
of the Inquisition, and perfected by the 20th century's worst war
criminals, is nothing but a "policy disagreement," like a squabble
about capital-gains tax rates or automaker-bailout packages.

It wasn't. It was a hideous, shameful crime, which future American generations will look back on with shame and amazement.

But this conference was nearly a year ago now, when the nation was
still in such deep denial about that crime that it was easy enough for
people to repress their qualms and continue to act as if everything was
still business as usual.

I gave my talk, and collected a nice little honorarium, before
enjoying a splendid celebratory dinner with Bill Clinton, Colin Powell,
Tom Friedman, Arianna Huffington, and many other utterly respectable
luminaries whose consciences, like mine, had not prevented them from
appearing.

I would like to think I wouldn't be willing to do the same thing
today. For one thing, after the recent disclosure of the torture memos
that Yoo helped to author with Jay Bybee, the fact that we became a
nation that tortured as a matter of official policy is now much harder
to ignore.

Given that the United States is obligated under both domestic and
international law to prosecute acts of torture, the legal consequences
of the Obama administration's stated view that waterboarding is torture
would seem clear. Spanish prosecutors have decided to indict six former
top Bush administration officials for their role in approving the
torture of Spanish citizens held at Guantanamo Bay, but it seems
unlikely that criminal charges will be brought against the Bush six in
any U.S. court-a recent Justice Department investigation decided
to not pursue prosecution. Indeed, even such comparatively weak
responses as impeaching Bybee, firing Yoo, and disbarring any of the
lawyers involved appear to be, for now, off the table.

All this raises some tough issues for the legal profession in
general, and for us legal academics in particular. Plenty of prominent
law professors have expressed some variation of the view that Bybee and
Yoo played a key role in what Yale law professor Jack Balkin has
described as "what appears to be a conspiracy to commit war crimes."

Given that it also appears no formal legal or professional
repercussions are going to follow from taking part in that conspiracy,
other than limiting the Mediterranean vacation options of the
soon-to-be-indicted co-conspirators, the real question becomes: What
next?

Here's a suggestion: When American criminal courts, Congress,
university administrators, and bar associations remain paralyzed at the
sight of extraordinarily serious crimes being committed by people at
the top of the legal pyramid, other people anywhere near those rarified
heights should use informal sanctions.

I call on my fellow legal academics to consider taking the following
steps: Refuse to take part in any event that features Bush
administration torture enablers-at least in any capacity other than as
criminal defendants. Refuse to send your students to clerk for the
likes of Bybee. Indeed, treat any association with any of these people
as toxic for all professional purposes.

For instance, if you're doing a job interview with a candidate who
has worked with or under or in the same office or the on the same city
block as any of these people, ask him or her about this subject. And
don't be bullied by nonsense about "academic freedom" if you need to
make it clear that you don't hire torturers, or those who support them.

Such informal responses may seem pathetically inadequate in the face
of such crimes. And they are. But they are better than nothing-and
nothing, unless you count much tongue-clucking-is what the legal
academy has done to date.

If you think Bybee and Yoo and the rest ought to be tried as war
criminals, then treat them like people who should be tried as war
criminals, not as respectable colleagues with whom you happen to
disagree about this or that point of legal interpretation.

Talk is cheap. And when it comes to this great moral crisis facing the American legal system, talk isn't nearly good enough.