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05.11.09

How to Torture the Bush Six

Torture-memo authors John Yoo and Jay Bybee will likely not be prosecuted but law professor Paul Campos says the legal profession can punish the men who sanctioned war crimes.

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.

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.

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.

Paul Campos is a professor of law at the University of Colorado at Boulder.