A deeply fractious, but culturally very interesting, battle is brewing at the University of California at Berkeley, symbolic epicenter of left academic activism and California-style progressivism. It is a battle that offers a cautionary tale for our times.
John Yoo, a tenured professor in the Law School, served for two years as a Bush appointee drafting some of the most controversial memoranda laying out the arguments whereby torture techniques—from water-boarding, to sleep-deprivation, to the introduction of fear-inducing insects into holding cells—could all be justified, especially at some future point of dire emergency (frequently termed the Ticking Time Bomb or TTB). Those memos have been roundly criticized by much of the legal establishment, and after his years of probably too-loyal service to the Bush administration, Yoo tried to enter quietly back into the Berkeley fold. Left activists at Berkeley have not made that easy.
His classes have been disrupted by screaming protestors and pranksters; activists—whether hooded and bound in chains, or blood-soaked and wearing his face on their backs—demonstrate publicly against him on his own campus. Retired faculty have called him a war criminal and both retired and current faculty have articulated detailed arguments for his dismissal.
To be sure, there is some possibility, slim though it be, that Yoo’s memos will get him into legal trouble (ironically enough). But that seems unlikely. So members of the Berkeley community, faculty and students and alumni, have taken it upon themselves to call for Yoo’s dismissal. There are progressives like Christopher Edley Jr., the Dean of the Law School and an advisor to the Obama-Biden transition team, who have come to Yoo’s defense, uneasily in most cases, but adamantly when it comes to the principles of academic freedom and freedom of expression.
They are right to do so. And it is important to make the reasons for this explicit.
The moral problem with torture is that it offers an argument in extremis. Memos such as the ones that have made Yoo notorious are an attempt to justify the otherwise unjustifiable, and in some cases, the unthinkable. They propose a temporary suspension of the rule of law in the name of defending the rule of law (conceived and defended primarily as a defense of our system against unprecedented violent attack). The utilitarian calculus in play seems to compute one person’s egregious suffering as counting far less in the ultimate balance than the exponential gain in “saving thousands, perhaps millions, of lives” (See Ticking Time Bomb above).
The utilitarian cannot calculate or measure things like “sacred value,” and it is ironically some conception like sacred value (“conceived not in strictly theistic terms”) that provides the foundation for arguing that torture is never permissible, no matter the circumstances. If it requires one to become a terrorist, however temporarily, in order to defeat terrorism, then the question of whether terrorism is ever justified is moot. Our answer has traditionally been that it is not. But then the conclusion is that we can never condone terrorism, or torture, not even in the name of defeating them.
And we must live true to that same creed when we confront the strange case, and the even stranger memorandum-reasoning, of a legal theorist like John Yoo.
One can never violate the rule of law to protect and preserve the rule of law.
It is because most of us who opposed the torture memoranda, and who therefore find Yoo’s reasoning offensive, believe this that we should defend his right, not only to remain at Berkeley, but to do his job unmolested (until and unless he were to be disbarred—there is an adjudication process for such things outside of the university, and it is decidedly not the “court of public opinion”).
The mistake Yoo’s opponents are making is that they are using his reasoning to argue against his reasoning (and his tenure). They are themselves proposing a suspension of the rules, and of Yoo’s academic rights, to protect a principle.
This is misguided politics, however well-intended. Let me illustrate why with a brief historical analogy.
Hegel was a college student, in effect, during the early years of the French Revolution. 1789 was his 1968. When the Revolution and the Rights of Man turned to the Terror and the guillotine, he and many others had a crisis of conscience that took many years to resolve.
When Hegel felt that he had done so, he had come to certain important conclusions. The first was this: after the French Revolution and its aftermath, the old labels of liberal and conservative, left and right, didn’t work anymore. They could not capture the moral complexity of modern politics.
The second conclusion followed from the first. The primary objective for any progressive politics after the French Revolution had to be avoiding becoming the next Terror.
How to avoid a terrorism of the left? How to avoid a politics of aggrievement, the very thing that is always a temptation when the left feels besieged by what it perceives to be a terrorism of the right? How to avoid a terrorism of response? By naming terrorism of all forms what it is, and clearly articulating why we are opposed to them all.
The current administration has faced this ethical challenge quite publicly. Decisions to speak to every major news outlet except Fox, like decisions to cancel subscriptions to the Herald Tribune do not help the left’s traditional claim to an unwavering commitment to freedom of speech, freedom of enquiry, and freedom of conscience. Neither does a campaign to oust a tenured professor from Berkeley without significant legal cause.
I understand the sense of frustration and aggrievement that creates the temptation to cut what Lincoln famously called our lingering “bonds of [civic] affection” and”mystic chords of [civic] memory.” But these are important temptations to resist.
How to avoid a violation of individual rights in the name of principle? How to avoid terrorism in the name of human rights and the war against terror?
There is only one way: by refusing to suspend the rules for anyone at any time for any reason.
So let John Yoo speak. His own words complicate his life ably enough.
