Harvey's Heroes

09-03-2017

Harvey's Heroes

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Room To Speak

[caption id="attachment_19157" align="alignleft" width="214"] Photo: ED RITGER[/caption] This week a number of professors at the annual American Political Science Association conference organized a protest against Professor John Yoo, who was invited to speak on two panels. Yoo is a professor of law at the University of California Berkeley, and was an author of the so-called “Torture Memos” which legitimized advanced torture techniques during the Bush Presidency. He advised President Bush that laws and treaties barring torture do not apply to interrogators when a president is exercising wartime powers. Many lawyers believe that Yoo's memo legitimated acts of torture that violated both U.S. and international law. Political Scientists at the APSA meeting accused Yoo of violating APSA’s ethical guidelines, international human rights law, and of being a war criminal. Corey Robin penned a letter arguing against allowing Yoo to speak.

"In his celebrated diary of daily life in the Third Reich, Victor Klemperer writes: 'If one day the situation were reversed and the fate of the vanquished lay in my hands, then I would let all the ordinary folk go and even some of the leaders, who might perhaps after all have had honourable intentions and not known what they were doing. But I would have all the intellectuals strung up, and the professors three feet higher than the rest; they would be left hanging from the lamp posts for as long as was compatible with hygiene.' The reason Klemperer reserved such special contempt for the professors and intellectuals of the 1920s and 1930s was that professors and intellectuals played a special role in bringing on the horrors of the Nazi regime, as Claudia Koonz and other historians have documented. Not only did those professors and intellectuals provide some of the leading arguments for the rise of that regime, but they also served in that regime: as doctors, population experts, engineers, propagandists. And lawyers. We now come to the matter of John Yoo, Emmanuel S. Heller Professor of Law at UC Berkeley, who has been invited to address the annual conference of the American Political Science Association, which will be meeting in San Francisco next week, and whose speech acts while serving as Deputy Assistant Attorney General in the Bush administration did so much to bring about the torture regime of that era. While there is no need to rehearse all of those speech acts, we might recall that in his lengthy memo of 2003, Yoo claimed that detainees of the US military could be legally stripped of their clothing “for a period of time” and interrogated naked. If you have trouble visualizing what that might mean, have a look at these photographs from Abu Ghraib. In that same memo, Yoo mooted the possibility that actions ordinarily considered illegal—including gouging an eye, dousing a prisoner with “scalding water, corrosive acid, or caustic substance,” or biting—might well be legal in time of war: the president’s powers as commander in chief were that broad. When it comes to torture, our minds often drift to the torturer or his higher-ups in the Pentagon and the CIA. But as Jane Mayer documented in The Dark Side, the torture regime of George W. Bush was very much a lawyers’ regime. As one of Yoo’s colleagues told Mayer, “It’s incredible, but John Yoo and David Addington were running the war on terror almost on their own.” Yoo’s memos were not the idle speculations of a cloistered academic; stamped with the seal of the Office of Legal Counsel (OLC) at the Justice Department, they had the force of law, issuing binding interpretations of existing statutes that could only be overturned by the Attorney General. As Mayer explains, “For Yoo’s allies in the White House, his position at OLC was a political bonanza. It was like having a personal friend who could write medical prescriptions.” Harvard Law Professor Jack Goldsmith, who headed the OLC in 2003, adds that Yoo-type memos were essentially “get-out-of-jail-free cards.” That is why former CIA head George Tenet has written: Despite what Hollywood might have you believe, in situations like these [the capture, interrogation, and torture of Al Qaeda logistics chief Abu Zubayda] you don’t call in the tough guys; you call in the lawyers. That’s how powerful John Yoo was.... I fear that with this invitation to Yoo to address our profession, as if he were simply the author of controversial and heterodox opinions rather than the architect of a regime of torture and barbarity, the American Political Science Association has written itself a chapter in those future histories."

Numerous political scientists agreed with Robin. Several videos on Twitter show most of the room standing and turning their backs on Yoo when he got up to speak. Not wholly unreminiscent of what we saw students at Middlebury College do last spring. Except there was no audible disruption. Noted members of the field stand, hold Guantanamo-orange signs that read: “Stand up to torture.” Which, in a way, is literally what they are doing. The political scientists and theorists in the room did not disrupt Yoo’s speech, but staged a fairly routine act of political protest. Turning one’s back: a sign of disrespect. Holding a protest sign: a way to be heard without speaking. Protest is an important and noble way of expressing oneself, one we both support. But as we scrolled through the photos and watched the videos we were filled with a certain unease. There is little question that Yoo’s work during the Bush administration is ethically questionable, to say the least. But, we wonder if protesting his appearance on an academic panel was not a bad political move on the part of political scientists? Robin argues that we should not treat Yoo as if he simply represented a heterodox or controversial opinion. No, he argues, we should treat him as a war criminal. If he is a war criminal, he may still have a constitutional right to speak, but we may also feel justified in exercising our constitutional right to protest his invitation. But how do we have a conversation about the claim that Yoo is a war criminal? He has not been charged with war crimes even after eight years of a Democratic Presidency. If he hasn’t been charged (let alone found guilty) of war crimes, should we nevertheless exile him from democratic and intellectual debates? Or do we have a democratic and intellectual and political responsibility to listen to him? It strikes us that protests calling for Yoo to be charged and tried for war crimes are perfectly justified. So too are calls for him to be held legally and morally responsible. But it is problematic for an academic organization to exclude Yoo simply because some people believe he is a war criminal? The problem with the call for Yoo to be prevented from speaking is that those making this demand have not done the necessary work of persuading others that Yoo is in fact guilty. They assume Yoo is guilty. They may be right. But in a democracy with a functioning legal system, Yoo is innocent until proven guilty. And the fact is that despite numerous calls to prosecute Yoo, he has not even been charged. That suggests that there is quite a disagreement in our country over Yoo's guilt or innocence. But instead of trying to make that case, those would prevent him from speaking simply announce, repeatedly, that he is guilty and should not be allowed to speak. We see those making this argument succumbing to a basic fallacy. They think that because they have convinced themselves of something, they have satisfied the burden of making their case. Those who don't understand Yoo's guilt are simply wrong. But in a democracy, winning an argument means not convincing oneself and one's allies, but persuading others, namely a majority or at least a substantial plurality. Instead of working to persuade, Robin and others operate as if the question of Yoo's guilt is settled. Robin’s argument about the responsibility of intellectuals calls to mind Arendt’s understanding of Eichmann. But the analogy is imperfect. Yes, like Eichmann, Yoo did not personally kill anyone. And Yoo organized systems of torture while Eichmann was responsible for organizing the killing of millions of Jews. But unlike Eichmann, Yoo was operating within the lines of a democratic political system. And unlike Eichmann who bureaucratically set in motion the mass murder of innocents simply because of their religion, 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. Yoo might be responsible for the torture and murder of individuals who may or may not have been guilty of terrorism, but comparing Yoo to Nazi intellectuals who excused or rationalized the denaturalization and mass-murder of Jews is disingenuous. The question is, do we recognize John Yoo as a member of our political and academic communities? Does he get to speak where we speak? Does he get to share his thoughts, work, and research, even though it contradicts, undermines, and offends what we stand for? We think the answer to that question has to be yes. We recognize the uneasiness of this example—why should we listen or talk with someone who has rendered so many persons invisible, subject to violence and torture? But in the Arendtian spirit we cannot deny recognition to others based upon difference or opinion. Offering a space of public appearance is not an act of legitimation. Fundamentally, it is a human act of appearing before others in a space where our words and actions can be recognized, good or otherwise. If I listen to someone, it does not mean that I agree with them, it simply means that they too are a member of our political community and have a right to think, speak, and be heard. And there, in that space of being heard, in the messy web of human relationship, we have a moral and ethical obligation to hold one another accountable for what is said and done. If we deny that space of appearance, we are closing our eyes and ears to the world around us, unseemly as it sometimes strikes us. There are limits to the responsibility to hear and recognize someone as part of our political community. There are people—like Adolf Eichmann, for example—whose acts are so evil and so repulsive in their denial of the very essence of what political community stands for that to recognize them would be to undermine the very ideals of that community. In such instances, we can make the political judgment that someone should be expelled from the political community and we can try to persuade others to agree with us. That was Arendt's view and it is why she believed that Eichmann should have been killed for his crimes. But in our judgment Professor John Yoo has not in any way approached such a standard of evil that would render him unfit to be heard and argued with. On the contrary, Yoo is the kind of person we need to argue with head on. We should seek to convince him of his errors; we may even, in doing so, become aware of some of our own. —Samantha Hill and Roger Berkowitz

Form more information visit: http://coreyrobin.com/2017/08/25/when-political-scientists-legitimate-torturers/

Constituting Unity

Robert Howse rightly sees that the primary insight animating Mark Lilla's attack on identity politics is his "critique of individualism or social atomism in liberal American culture and his contrasting ideal of social and political unity, "the common good."" In line with Hannah Arendt's belief that politics means finding a unity amidst plurality, Lilla imagines politics as a search for unity and criticizes identity politics liberals for privileging identity-group-interests over a broader conception of unity. But for Howse, Lilla's argument fails because he never addresses what such a unity may be, or whether it is even possible.

"If there is a serious intellectual operating system in Lilla’s book, something beyond picking a fight with others in the chattering classes, it is Lilla’s  For Lilla, the style of liberal politics that (he claims) has been such a loser at the ballot box for liberal Democrats has its deep root in a sort of hyper-individualism: liberals he attacks define their politics not in terms of general principles about justice but personal causes and values that articulate a lifestyle, a certain image that appeals to their own kind.   The political agenda sounds like an entry on a dating site: “vegan, bi, Black Lives Matter, anti-GMO, climate justice”, to give the idea (my invention not Lilla’s). Of course, there is plenty of material here for a satirical take, and Zadie Smith’s novels, for instance, do a wonderful job of that.  But the serious question is: what kind of political unity is possible or desirable in a liberal society, given the commitment of to individual rights and political pluralism, as well as the sociological fact of diversity in contemporary liberal societies.  If we go back for a moment to an early vision of America, that in the Federalist Papers (Madison, Hamilton and Jay, framers of the US constitution and liberal thinkers of the Enlightenment), what is clear is this earlier liberal vision assumed and embraced American politics and society as a battleground of conflicting interests and agendas.  Indeed, for Madison and Hamilton, this conflict – channeled through appropriate political institutions – was a guarantee against tyranny; the authors of the Federalist worried about the danger of a majority faction imposing its agenda on the whole country, a form of oppressive unity, and they thought that a large republic would be very hard to co-opt or capture by any one movement or interest group. In Lilla’s account, Roosevelt’s New Deal vision of America, and the policies that it wrought, unified the country for decades.  Something happened starting in the late 1960s and 1970s that prepared the ground for the Reagan Revolution, which then created a new national consensus of sorts on the right.  This something, according to Lilla’s tale is mostly the fault of the kind of liberals or leftists that he dislikes. No historical evidence or sources are cited in this chronicle (it seems to spring from Lilla’s head like Athena did from that of Zeus); but anyone who has thought or written about these decades in America history will recognize Lilla’s account as a fairy-tale. First of all, the New Deal, as well as desegregation and civil rights, were fought tooth-and-nail by powerful factions in many places in America-in the courts, on picket lines, in the schoolyards, and often with violence. If there were unifying influences, these were World War II and the Cold War; a common front against these external threats helped maintain a strong base of support for the progressive elements in what Lilla calls the “Roosevelt Dispensation”.... Lilla pleads for unity – as if the cleavages produced by the disappointments with the civil rights movement and the Great Society were manufactured by activists and intellectuals merely trying to whip up trouble.  But the lack of unity reflects genuine disagreements and conflicts in American political culture that could not be simply resolved by morphing the New Deal into the Great Society."

Howse argues that Lilla has no vision of unity because he rejects both the classical liberal's embrace of individualism and the conservative claim of a naturalistic community. Instead, Howse argues we need to return to the classical ideal of a constitutional polity, the "notion of a polity where all citizens can see, in some way or another, their interests and values taken into account in public decision-making." Here Howse reflects Hannah Arendt's idea of a constitutional republic where unity is based on solidarity as opposed to pity. Such a unity cannot be built on the pity of the poor and powerless alone, for that unity excludes the rich and powerful For Arendt, solidarity encompasses all voices in a pluralist society. But such a republic, in Arendt's understanding, will be liberal only if it fully embraces plural visions of the good life, which is why she believes that essential to constitutional unity are the principles of federalism and localism. —Roger Berkowitz

Form more information visit: http://verfassungsblog.de/the-retro-style-in-liberal-politics-a-review-of-mark-lillas-the-once-and-future-liberal-after-identity-politics/