Hoisted from Comments: Mark Graber, John Yoo, and the Problem of Academic Evil

Blissex writes:

Grasping Reality with Both Hands: Economist Brad DeLong's Fair, Balanced, and Reality-Based Semi-Daily Journal: I am awed and impressed by BDL's arguments about Taney and Graber, which need to be recounted, because they are the central axis of the difference between the two Americas, the America of winners who send plague blankets to "untermensch" natives or who fight wars to keep treating as animals millions of imported "untermensch", and the America of losers who fight bloody wars to free their cruelly imprisoned compatriots and create the Peace Corps and try to lift even foreigners out of their poverty.

But this comment seems to be, however well meaning, extraordinarily hypocritical:

And at what point did the American people have the opportunity to condone this conspiracy with their votes? I say 'never.' For many years, the Bush Administration went out of its way to make sure we, the people, had no idea what was being done in our names with respect to "enhanced interrogation techniques." And it pretty much held the line about whether anything was being done at all until Abu Ghraib, which was sold as the doing of a few rogue National Guardsmen. The Bush Administration maintained uncertainty and deniability about its role in such activities until it was too late for the voters to indicate their outrage at the ballot box.

To me and other foreigners it seems pretty clear that the huge re-election victories of Republicans in Congress and for the presidency post 9/11 were based on a campaign of well understood "whatever it takes" wink/nudge and that the American voters enthusiastically backed a strategy of "better safe than sorry" where the rights of a few thousand brown (instead of red or black skinned) "untermensch" are insignificant compared to the safety of terrified USA voters. Torturing un-persons "just in case" seemed such an attractive option.

Am I the only malicious mind who disagrees that innocent, well meaning USA voters were hoodwinked and they did not really mean to vote for more "whatever it takes" or "better safe thansorry"? Well, some others seem to have shared the same impression, for example this Financial Times commentator (in 2006, not the day after the WTC atrocity):

http://news.FT.com/cms/s/2817d81c-b067-11da-a142-0000779e2340.html: But is clear leaders of both parties lack the confidence to challenge the mood of xenophobia that exists outside Washington. Instead they are fuelling it. In some respects the Democrats are now as guilty of stoking fears on nationalsecurity as the Republicans. Their logic is impeccable. A majority of Americans believe there will be another large terrorist attack on American soil. Such is the depth of anxiety that one-fifth or more of Americans believe they will personally be victims of a future terrorist attack. This number has not budged in the last four and a half years. Mr Bush has consistently received a much higher public trust rating on the war on terror than the Democrats. Without this -- without the constant manipulation of yellow and orange terror alert warnings at key moments in the political narrative -- Mr Bush would almost certainly have lost the presidential race to John Kerry in 2004.

But it is easy to dismiss all this as the inane gibbering of the foreign surrender monkeys that hate America and want the terrorists to win....

[Brad DeLong writes that he "doesn't see an argument" in Mark Graber's:]

[T]he Yoo memo provided constitutional justification for what may be the majoritarian constitutional understanding in the United States.... [A]s a legal matter, you could still confine conspiracy to Yoo and a few others, but there would be an awful lot of unindicted co-conspirators.... [T]he constitutional support for Yoo's position is gaining strength.... Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture than suggesting the problem might be cured by better legal methods courses in the first year of law school.

But I do see TWO ARGUMENTS here, and [a third] implicit one.

Mark Graber's first argument is the same that he uses in the Taney case, and it is that Constitutions are not legal agreements, they are political and cultural ones, and that if they are not supported by the politics and culture of the majority. Nothing new there, except that Mark Graber makes a stronger case for this than is warranted. Anyhow see Tocqueville etc. quotes below.

The second argument is encapsulated in "Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture."... [T]orture is wrong, but this is irrelevant if public opinions is in favour, and this follows from the previous argument, so changing public opinion is far more important than insisting on the respect of unpopular laws.

Both I think are fair points as far as they go -- because in the end unpopular laws can only be enforced with guns, "ultima ratio regum" and not just of kings.

Quotes from Tocqueville:

When a man or a party suffers from an injustice in the United States, to whom can he turn? To public opinion? That is what forms the majority. To the legislative body? That represents the majority and obeys it blindly. To the executive power? That is appointed by the majority and servers as is passive instrument. To the public police force? They are nothing but the majority under arms. To the jury? That is the majority invested with the right to pronounce judgements; the very judges in certain states are elected by the majority. So, however unfair or unreasonable the measure which damages you, you have to submit.

A striking example of the excesses which the despotism of the majority may occasion was seen in Baltimore during the war of 1812. At that time the war was very popular in Baltimore. A newspaper opposed to it aroused the indignation of the inhabitants by taking that line. The people came together, destroyed the printing presses and attacked the journalists' premises. The call went out to summon the militia which, however, did not respond to the call. In order to save those wretched fellows threatened with by the public frenzy the decision was taken to put them in prison like criminals.

The precaution was useless. During the night the people gathered once again; when the magistrates failed to summon the militia, the prison was forced one of the journalists was killed on the spot and the others were left for dead. The guilty parties, when standing before a jury, were acquitted.

I said to someone who lived in Pennsylvania: "Kindly explain to me how, in a state founded by Quakers and celebrated for its tolerance, free Negroes are not allowed to exercise their civil rights. They pay their taxes; is it not fair that they should have the vote?"

"You insult us," he replied, "if you imagine that our legislators committed such a gross act of injustice and intolerance."

"Thus the blacks possess the right to vote in this country?"

"Without any doubt."

"So, how does it come about that at the polling-booth this morning I did not notice a single Negro in the crowd?"

"That is not the fault of the law," said the American to me. "It is true that the Negroes have the right to participate in the elections but they voluntarily abstain from making an appearance."

"That is indeed very modest of them."

"It is not that they are refusing to attend, but they are afraid of being mistreated. In this country it sometimes happens that the law lacks any force when the majority does not support it. Now, the majority is imbued with the strongest of prejudices against the blacks and the magistrates feel they do not have enough strength to guarantee the rights which the legislator has conferred upon them."

"So you mean that the majority, which has the privilege of enacting the laws, also wishes to enjoy the privilege of disobeying them?"...

[T]he implicit one... is that instead of spending more money to gather intelligence, find proofs and thus raising taxes on USA voters, it is much cheaper to torture "people who do not look like us" as a cost-saving shortcut. Public opinion realizes that is much cheaper to torture a few thousand nobody-cares just in case, than to raise taxes on deserving, hard working "people who do look like us" to pay for better intelligence.

So those who think that the constitution is more than a piece of paper full of precatory verbiage should give that up and make the case for raising taxes on "people like us" to spare a few thousand nobody-cares "unpeople who are not like us" some cost-saving techniques.

Basically, the implicit argument is that USA voters care what's in it for them as to the case against torture, not what's in it for the potential victims of torture, who are all brown-skinned nobodies with funny foreign names, and this is what matters when one is against torture.

Finding the substantive argument against the "f*ck them, we are fully vested" position as to brown skinned suspects is more important than insisting on quaint notions like legalism which never had much traction in USA politics anyhow, except where it benefits the ruling classes...

Let me say just three things:

• The crucial middle of the American electorate in 2002 and 2004 believed George W, Bush when he said that "we do not torture" and that only "harsh interrogation measures" that were effective were being used on a very few high-value guilty criminals. You can convict a majority of the American electorate of cowardice and stupidity, but not, I think, of willful criminality
• All peoples, everywhere, are vulnerable to Reichstag Fire scenarios; we East Africa Plains Apes are who we are, and we need to try to build institutions to guard against our weaknesses.
• Constitutions are not just cultural and political agreements; they are legal, cultural, and political acts that shape the thinking of the next generation, and of the generation after that. They are attempts to improve upon whatever decisions would be made by the majority of the moment--and so the argument that they are useless because they are illegitimate if they try to stand aginst the majority of the moment is funamentally incoherent.
• Of all countries in the world, the United States is one of the leaders--when it is its bet self at least--in resisting the "f*ck them, we are fully vested" popsiiton