By Paul A. Passavant and Jodi Dean
Since 2004, we have known that that the United States Government has been responsible for torture. We have known that the legal memoranda written by Berkeley law professor John Yoo during his tenure in the US Justice Department Office of Legal Counsel provided the legal arguments that enabled torture to become a matter of United States policy in the "global war on terror." (GWOT). Many have been shocked, outraged, or ashamed that the United States has banished itself from the most fundamental norm of the post-World War II international order and, some would argue, American constitutionalism and the rule of law itself. [1] Human rights organizations have struggled to discover how this system of torture has functioned, to remove victims from exposure to torture, and to hold key officials and private contractors (such as psychologists) responsible for their conduct. Despite support for these efforts, the success of organizations like Human Rights Watch (HRW), Amnesty International (AI), and the American Civil Liberties Union (ACLU) has only been limited. Both the Bush and Obama administrations frustrated and blocked their work. Others have moved on, out of cynicism, exhaustion, or preoccupation with other horrors. Nevertheless, the necessity of confronting and rejecting the US's institutionalized torture regime remains. We cannot and must not be a country that tortures.
Upon hearing that John Yoo was scheduled to appear at the annual meeting of the American Political Science Association (APSA), held August 31 - September 3, 2017, a number of Political Scientists organized a response. The theme of the annual meeting was "The Quest for Legitimacy: Actors, Audiences and Aspirations." The goal of the organizers was to ensure that the APSA did not legitimate torture by providing institutional cover for Yoo. Our response included protests at the two panels on which Yoo was speaking, both organized by the Claremont Institute, an affiliated group that participates in the annual meeting. When Yoo got up to speak, we stood and turned our backs on him. We held signs, "Stand Up Against Torture." We remained silently standing until the end of the panels. Our response to Yoo's participation in our annual meeting also included getting measures passed at the APSA business meeting that would instruct and enable the ethics committee to bring the association's concern with abuses caused or experienced by political scientists together with its stated commitment to human rights.
In an article posted on the blog of the Hannah Arendt Center for Politics and Humanities at Bard College, Samantha Hill and Roger Berkowitz express "unease" about the APSA Yoo protests. Hill and Berkowitz seem to know that torture occurred. They recognize that Yoo's memos legally enabled the construction of a torture regime. They excerpt at length Corey Robin's summary of the public record. Yoo was not offering the idle speculations of an academic, Robin reminds us, he was issuing legal memoranda whose interpretations of law were binding on the executive branch unless overturned by the Attorney General himself. Yoo was bureaucratically central to the GWOT. According to Jane Mayer's sources, "it's incredible, but John Yoo and David Addington [legal counsel to Vice President Dick Cheney] were running the war on terror almost on their own." [2] Nevertheless, Hill and Berkowitz oppose those Political Scientists who stood in silent protest when Yoo rose to speak.
Hill and Berkowitz echo some of Yoo's supporters, arguing that he should be allowed to speak at APSA because he has not been convicted of the crime of torture. This objection goes to the heart of the problem of uncheckable executive power that Yoo enabled and the key point of the protest. No one can face criminal charges unless the executive branch prosecutes those who violate the law. Obviously, the Bush administration was committed to evading, rather than enforcing, US law criminalizing torture. Moreover, as Glenn Greenwald has reported , the Obama administration actively avoided prosecuting, or otherwise holding accountable, those responsible for the practice of torture. That the state failed to act, however, does not absolve its citizens for inaction. Citizens, too, can and must take action to prevent the normalization of torture. Hill and Berkowitz are disingenuous when they argue APSA should provide Yoo with a platform until he is convicted of war crimes. They can appear to oppose torture, without having to take a stand against torture, as they wait for Yoo's prosecution.
Hill and Berkowitz miss the point of the protest. Surely Hill and Berkowitz are familiar enough with the basics of law to know the difference between a profession's code of ethical conduct and the state's criminal law. The APSA protest was targeted less at Yoo than it was at APSA. Political scientists were insisting the ethical guidelines of our profession do not permit enabling torture. The American Psychological Association (APA) has amended its code of ethics to make this clear (if it wasn't before). The APSA protest announced that it is time for APSA to catch up to the APA. Hill and Berkowitz are playing a shell game by seeking to fool their readers insofar as they criticize the APSA protest because Yoo has not yet been found criminally liable.
Hill and Berkowitz may miss the point of protest period. They say that democracy requires the work of persuasion. Yet they appear not to grasp that protests are tools of persuasion. At APSA, the protests were accompanied by discussions at Council and business meetings about changing APSA policies. Throughout the meeting, not to mention on social media before and after the meeting, there were numerous discussions regarding the appropriateness of having an architect of the US torture regime speak at APSA. The protests were central to the debate over the professional ethics of political scientists.
Hill and Berkowitz are at their worst when they offer a comparison between Yoo and Adolf Eichmann, the Nazi bureaucrat who enabled horror at a mass scale. Any torture regime requires a bureaucracy. Eichmann and Yoo are the kind of bureaucrats who transform the worst of what is humanly imaginable into a mundane institutional practice. For Hill and Berkowitz, Eichmann is unlike Yoo and was rightly punished because he "set in motion the mass murder of innocents because of their religion." In contrast, Yoo "legally rationalized the torture of a small number of terrorists who may or may not have had information that might lead to the saving of thousands of American lives." Eichmann is evil because people were killed on account of their religion - because of their identity or imagined race. Yoo, they suggest, was rationalizing the torture of terrorists to discover information to save American lives. Hill and Berkowitz use religion, ethnicity, or an imagined race, to say nothing of nationalism, to rationalize torture.
Anyone familiar with Abu Ghraib - the key event in the discovery of the Bush torture regime - knows that 70-90 percent of those detained in that space dedicated to torture were ordinary civilians and not terrorists. [3] During the GWOT, 780 people were detained at the US military base at Guantanamo Bay, Cuba. Only three of those ever convicted by military commission are currently detained there, and there are plans to prosecute only fourteen of all those held at that detention camp. Here we see the double standard deployed by Hill and Berkowitz. We must listen to Yoo and treat him as part of the community - knowing his legal work enabled torture - because he has not been convicted for participating in a torture regime. Yet such generosity does not extend to the overwhelming majority of those Muslims and Arabs who have been victims of the torture regime. They are all (potential) terrorists and their torture is, apparently, permissible.
The Hill and Berkowitz comparison of Yoo to Eichmann is striking for its repetition of the torturers' lie: the terrorist might have information. While Hill and Berkowitz spare us the "ticking time bomb" in this scenario, the torturer can never be certain whether the victim does have "information" before inflicting torture. Afterwards, one does well to doubt that the anguished confessions provided anything reliable. [4]
Hill and Berkowitz mischaracterize Yoo's legal work as "opinion," although it was meant to be "binding" on other executive branch bureaucrats in the torture regime. They treat Yoo as rationalizing torture whereas Eichmann set it in motion. This is a lie. As Mayer makes clear, US torture policy came from the lawyers in the Justice Department. Hill and Berkowitz say, "Yoo is the kind of person we need to argue with head on." A debate over torture's merits violates the fundamental ethical and legal injunction against torture. It concedes that torture might sometimes be permissible. Hill and Berkowitz are thus open to the possibility that torture was acceptable in the GWOT. The political scientists protesting Yoo refuse this possibility.
Hill and Berkowitz inoculate Yoo from accountability. They even draft Hannah Arendt into the service of their sorry endeavor, situating Yoo in an Arendtian "space of appearance" where words and actions are recognized. This misappropriation ignores Arendt's own verdict on Eichmann: he should be banished from the world. The APSA protests did not call for Yoo's banishment or execution. They called on APSA to refuse to legitimate the author of US torture policy by providing him with institutional cover. They called on political scientists to stand against torture.
Originally published at Public Seminar .
Paul A. Passavant is Associate Professor of Political Science at Hobart and William Smith Colleges in Geneva, NY.
Jodi Dean is the Harter Chair of Humanities and Social Sciences at Hobart and William Smith Colleges in Geneva, NY.
Notes
[1] Jeremy Waldron, "Torture and Positive Law: Jurisprudence for the White House," Columbia Law Review 105 (October, 2005).
[2] Corey Robin, "When Political Scientists Legitimate Torturers," August 25, 2017 (Online: coreyrobin.com, accessed September 5, 2017), citing Jane Mayer, The Dark Side (New York: Doubleday, 2008).
[3] Mark Danner, "Torture and Truth," in Mark Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror (New York: New York Review Books, 2004), 3.
[4] Darius Rejali, Torture and Democracy (Princeton: Princeton University Press, 2007), chap. 21.
