As Jack Balkin points out, for both “legal” and “political” reasons it’s unlikely that any U.S. court will prosecute war crimes committed by members of the Bush administration. This circumstance highlights both the moral and practical importance of the question asked recently by Maj. Gen. Anthony Taguba: will those who, among many other things, ordered American soldiers to torture people, be held to account, and if so how?
Consider the case of John Yoo. Yoo, a law professor at Berkeley, played a key role in making it the official policy of the United States government that it (we) could and indeed should torture people suspected of being terrorists, and, if necessary, small children.
Unlike German lawyers who helped facilitate Nazi war crimes, Yoo and other Bush administration lawyers will almost certainly not be prosecuted by U.S. courts. (Standard disclaimer: I don’t think the Bush administration is as bad as the Nazis. Disclaimer to standard disclaimer: I don’t think “not as bad as the Nazis” is an appropriate standard for legal exculpation).
It’s been suggested that the University of California investigate Yoo’s conduct, to determine if he should face employment sanctions. That, too, isn’t going to happen, for both good and bad reasons having to do with the nature of academic politics.
Given that Yoo and his ilk are very unlikely to face either criminal or civil penalties, can anything be done? One possibility is social and professional shunning. For example, earlier this month I took part in a conference at which Yoo was appearing on another panel. I wasn’t aware of this until I arrived at the conference itself (it was a large event with a couple of hundred participants), but in retrospect I wonder whether I could have justified taking part in the event if I had known Yoo was participating.
Now I acknowledge that from an academic and historical standpoint, it’s a good thing to get Yoo’s views on questions regarding the limits of presidential power, the definition and legality of torture, etc., and therefore the idea of simply refusing to invite him to conferences and the like is problematic. But subject to such caveats, I wonder (this isn’t a rhetorical device — I’m sincerely wondering) the extent to which it’s either desirable or defensible to continue to treat Yoo as an ordinary colleague, as opposed to, say, a man who at the very least is arguably a war criminal, who for legally and morally dubious reasons cannot be criminally prosecuted, or even formally sanctioned by his employer.
A natural objection to all this is that limiting the “punishment” of Bush administration officials for their crimes to things like not inviting law professors to conferences, or refusing to participate in conferences to which they’re invited, is a profoundly pathetic response to the situation. And it is indeed pathetic. But it may be better than nothing.