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Print This PageRistroph on Posner & Vermuele
Readers who enjoyed our recent symposium on Eric Posner and Adrian Vermeule’s book Terror in the Balance will definitely want to check out Alice Ristroph’s review of the book in the new issue of the Green Bag. This is no ordinary review — serious, respectful, dispassionate. Indeed, Alice’s bete noire is precisely the tendency, so prevalent in the academy, to respond to ideas as extreme as those in the book in the same measured tone that one would use to disagree with a friend. No, this is not your grandmother’s book review. The title says it all: “Professors Strangelove.”
Here is a taste:
And after comedy, there is farce. With no discernible comedic intent, a number of lawyers and law professors have reprised roles from Kubrick’s famous film. Insisting that the war on terror is too important to be left to anyone other than the President, scorning opponents of torture as sissies afraid to muss their hair, and rapidly collecting promotions and personal citations, these lawyers are teaching America to stop worrying and love the waterboard – and the wiretap, and the ethnic profiling, and the indefinite detention, and all the other strategies of our new war that might be funny if they weren’t so deadly serious.In the academy, the distinguished professors who advocate torture, executive absolutism, and other departures from the rule of law have been met with respectful, and inconsequential, disagreement. Indeed, if law professors such as John Yoo, Eric Posner, and Adrian Vermeule are today’s Ripper, Turgidson, and Kong, others in the legal academy are more akin to President Merkin Muffley. The balding, bespectacled Muffley is the only character in Dr. Strangelove who fully appreciates the moral implications of nuclear war, but his hesitancy and unfailing politeness render him a mostly ineffective counterweight to his war-mongering colleagues. He is the voice of reason, but that voice is timid and faltering. Today, academic counterparts to Merkin Muffley take exception to the bellicose program of the Professors Strangelove. But “debates” over national security in the American legal academy are choreographed events among gentlemen, usually featuring excellent sportsmanship all around. Neither side wins or loses; everyone shakes hands at the end; and everyone keeps his job, his viewpoint, and his dignity.
It is unlikely that the apologists for torture and executive absolutism will persuade many others in the legal academy to join their cause. But that is not the point. The Professors Strangelove play to an audience beyond the academy. They provide a degree of intellectual legitimacy to an ideology and a political program that has been developed, for the most part, outside the ivory tower.
Full disclosure: Alice is not only a friend, she singles me out in a footnote as one of the only people (along with Louis Fisher) willing to criticize Posner and Vermeule during the Opinio Juris symposium. Interestingly, she points out that I teach in New Zealand, seemingly implying that my physical and symbolic distance from the U.S. legal academy may have loosened my tongue. I would like to think she’s wrong about that, but I can only speculate. Fortunately, we don’t have to speculate about Alice’s bravery. I admire her for her willingness to take Posner and Vermeule on, and I think her review is as thoughtful and persuasive as it is unrestrained. Read it and decide for yourself.
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I guess when you comment from Toledo your comments are not good enough to be cited – or maybe there is some unwritten rule (one more) about selection of guests. If that is offered to me now, I respectfully decline ahead of time.
So it goes.
I do not know how many ways it is possible to say how wrong Vermeule and Posner are, how wrong Goldsmith and Posner are, and how wrong Yoo is. That is why we are seeking a new ASIL resolution.
Best,
Ben
at 8:18 pm EST Benjamin Davis
Ben,
I don’t think Alice intended to slight you. I imagine she was simply referring to the permanent OJ members and the few people we formally invited to respond to P&V. You are, of course, a valued member of the OJ community — and not simply because I often agree with you…
Kevin
at 9:08 pm EST Kevin Heller
That was a very good review. It was penetrating and to the point, and its use of the Dr. Strangelove allegory was inspired.
I also have to join Kevin in welcoming the unapologetically strident tone of the piece. I feel this tone is entirely appropriate, matched as it is by legalistic rigour, and does not breach academic propriety. I mean, let’s be honest here, for all the distinguished pedigree of the authors, these views are extremist jurisprudential outliers, which falsely claim a mantel of historicism, and do not offer a convincing response to even the handful of voices here, let alone the corpus of legal academy. I would also point out that the authors themselves are hardly sparing or generous with their characterisation of opposing viewpoints.
I feel the genteel, disengaged and excessively deferential tone used by the upper echelons of mainline liberal academia, in exchanges with such repugnant views, has too often been an enabler of those views. Far-right intellectual publications need to be engaged seriously and on a systematic basis, but that need not entail kiddy-gloves that are not certainly not used reciprocally.. Far too often the tendency is to overlook the legion of overt insults and strawman arguments that litter this literature as if ‘that’s aimed at John Pilger, not me, so I’ll just be the bigger man and carry on as if we’re all still on the same side.’ But this is just self-delusion, hiding from the cut and thrust behind a woolly bipartisan respectability that simply cedes to the other side the ability to move the goalposts of intellectual life at a whim.
at 10:59 pm EST Will
Not surprisingly, I beg to differ. I think there is a place for strident, angry polemicism, but I doubt legal academia (or academia in general) is the place for it. There are plenty of opportunities for folks to express their anger and contempt for each other and each other’s ideas outside of academic discourse. It strikes me that the main value of the civil tone usually invoked in the academy is that it focuses one’s attention on the ideas being presented, and not the the people or personalities behind the ideas. But Ristroph’s review, which skirts this line but seems mostly to avoid crossing it, reflects a troubling trend.
at 11:20 pm EST Julian Ku
Julian, I said nothing about people or personalities; nor did I address the idea of confronting an underlying agenda through stridency, though I think some academics would benefit from reading between the lines a bit more. Here, I am strictly speaking about being honest about the actual merit of the opinions and analyses in question, next to the weight of prevailing work in the area, both in international law and other relevant disciplines.
For example, I do think the ticking time bomb scenario that is so often used as starting concession against the universal of non-derogation, to make room for a sweeping Presidential prerogative, is disingenuous and lacking in credibility. As Ristroph rightly points out, there is serious and authoritative empirical literature on the subject, and that particular hypothetical is neither novel nor instructive. It is a disingenuous attempt to rob us of settled wisdom through a concoction of false certainties that never exist in reality. In that regard, I would make no apologies either as an ordinary citizen, or student of international law, to dismiss that intellectual crutch, without forfeiting my professed desire to engage rival opinion in good faith, and with academic comity.
Now, I’m not saying I think rancour isn’t an enemy of discourse. What I’m saying is I think Liberal critiques often bend over backwards with largely undeserved accommodationist deference in their treatment of what is a very narrow band of outlier legal and political opinions, and that this tone, and the soft-laced thoroughness that goes with it, isn’t at all reflected in the seriousness with which that band treats the mainstream. I mean, so often these figures simple refuse to address the best arguments and the best literature on the subject and fixate on caricatures. In contrast, I think their critics are deeply charitable in not only ignoring the outlier status of this band, but in deliberately excising vast tracts of intellectual territory and rhetoric that buttress the position, all so they can seek out the most generous framing of the opposing argument.
at 12:12 am EST Will
Yes, I would even go so far as to say that with these types of ideas, civility can be a form of violence to human dignity. The civility itself serves as a form of legitimation because we spend time trying to politely think through their ideas instead of resist. And that legitimation is of a set of ideas that bring with them in my experience all kinds of rightist/authoritarian violence.
“Hair on fire” about these things is not a necessarily bad attribute – even in academia.
It is the dilemma of democracies when authoritarianism from the right comes in – people seem unable to grasp the danger that is presented by these ideas and the threat to freedom. People are lulled along. And those who will espouse these ideas obviously are speaking the language of powerful interests who help to diffuse their ideas.
I remember persons once being a little upset at an Opinio Juris cocktail because I objected to John Bellinger being there. It was not “done”. And we learn each day in the news about what he has done and does but we are all supposed to be so civil when together.
If you see that V and P start their argument from a place (no absolute rights) that leads to the conclusion they seek it seems totally appropriate to be strident in rejecting their writing. They simply refuse to engage with anyone who thinks some rights are absolute (I guess that would include the European Court of Human Rights in the Saadi case – unanimous – absolute right against torture).
There was a french law professor who used to end his first year course with a phrase “Beware of logic.”. Human existence is not just about logic but is also about passion. Academic passion may not be rewarded in some hierarchical sense, but when we look back at who stood where, we can see who were the passionate defenders of freedom against the state and who were willing to allow the putting in place of a police state (always, of course, for others).
Kevin,
Do not worry about me. No need for nice words. It’s too condescending. Alice made the choices she made because that is the way she was taught to hear. I just said something in a way to make people hear differently.
Best,
Ben
at 12:09 pm EST Benjamin Davis
My question for those of you who support Ristroph’s review is do you (a) think that it is an aggressive, yet not ad hominem, attack or (b) think that it is an ad hominem attack but that ad hominem attacks are permissible in this circumstance. I think the two are very different and I think it is very important that we distinguish between the two.
One more point regarding the footnote you all are talking about and who has or has not spoken out against the U.S. response to 9/11 and how the person ranks in the academy. My personal feeling is this, there are professors in the academy who have a political view to the left, professors with a view to the right, and then those that really don’t have a given view. In law school, I had all three.
Those on the right have spoken about the U.S. response to terrorism as have those on the left, obviously.
My point is this, the professors in the latter category, the more general theorists whose politics you don’t really know, have not really come out with scathing critisisms of the Posners and Yoos of the world. I don’t want to overstate my cause, I can think off the top of my head of one good counter-example, but the general international law professor who doesn’t wear his politics on his sleave, say someone who practices trade or is a global administrative law person, you don’t really hear talking about sending Yoo to the Hague. Until those people weigh in, I think its really hard to build a case that Posner or Yoo are so facially wrong that they deserve some form of double secret scorn from their peers.
at 10:35 pm EST The NewStream Dream
NewStream Dream, it’s the former. I admired the clarity of review’s stridency, because it was matched by rigorous argument and so justified the emphatic tone. Neither Kevin, myself, nor Ben, have said anything that could be construed as admiration or licence for any real or imagined ad hominem attack, so I’m not sure why that needed clarification, but anyway.
I disagree with your comments about an ostensible ‘hidden’ uncertainty in international legal opinion, and the prevailing orthodoxy in US constitutional law, as regards these kinds of views. I don’t agree these aren’t radical, outlier opinions, and I don’t agree they are broadly repudiated by the best legal traditions across broad political lines.
Your tone kind of rubs me the wrong way a little here too. You seem to imply that professed liberal views, even if they are general or in other areas, are somehow a disqualifier for being able to represent anything more than ‘one side’ – which already assumes, in a crude CLS kind of way, the politicisation of law. It’s the old fallacy that truth must be somewhere in the middle, between any two given points, no matter their polarity and mass. It also discounts the radically changed goalposts we confront on these issues, (see for example Glen Greenwald’s excellent treatment of the legal politics of the original FISA Court), and the extraordinary nature of the times we are in that are evoking a demonstrable yearning for a rule of law corrective, that exists across very broad political lines.
I think this is a clear case of the Administration’s power and authority creating an in-group gloss that well and truly venerates unworthy and untenable legal argument, sustained by incorrect empirical assumptions, well beyond what it could sustain in the academy and the marketplace of ideas.
One thing I will say is this isn’t a call to ridicule by exclusion – as outliers obviously still play a valid role in discussion, especially if their place isn’t inflated. Certainly someone like Bellinger is capable of contributing good law and legal argument contrarily into the discussion. So, I would perhaps not go as far as Ben there. But Belligner is also distinguished from Posner et al, in that he at least engages with his critics directly, at least most of the time, and he doesn’t insult, strawman or dismiss. So I think that should weigh in with whatever subset of collegiality is deserved.
at 7:12 am EST Will
In the academy, the distinguished professors who advocate torture, executive absolutism, and other departures from the rule of law have been met with respectful, and inconsequential, disagreement.
I think the reviewer mistake the reason that the disagreement is inconsequential. It’s not tone, but a lack of success in the courts or public opinion as a whole.
I’d venture that his opponent’s tone has little or no relation to the probability of Mr. Yoo being convicted or held liable for anything.
at 12:35 pm EST Matthew Gross
I must say I am a little baffled given the enormous consensus of international law professors and practitioners(who I find generally not particularly liberal and really quite conservative) who supported the ASIL Resolution on use of armed force and treatment of detainees back in 2006 that there would be some perception that some persons silence meant it was somehow acceptable to “hang back” from criticizing the Vermeule’s, Posner’s, Yoo’s, Goldsmith’s, Bellinger’s and the rest of them.
I find plenty of persons who wear a conservative label who are absolutely appalled (including most notably members of the military JAG corps) by what is going on. The most recent person of this stripe is Colonel Morris Davis who is testifying for Hamdan!
I should also note that democrats and republicans are implicated in the torture and lawlessness in a manner that makes it hard to discern just what meaning the American “liberal” and “conservative” categories are really to be given. I hardly think of William Taft IV as some kind of radical liberal or for that matter Alberto Mora or some of the Reagan era persons who have disagreed strongly with what is being argued by these rightist/authoritarian types.
I thought that being against torture was not some kind of radical idea but was a pretty mainstream view. Maybe I did not get some memo that changed 500 years of experience.
Also, I should note that Professor Rishikoff of the Army War College gave a football analogy at the American Association of Law Schools meeting in January that is quite potent that the rest of the world has given a “Heisman stiff arm” to the US proposals that some new Geneva Convention needed to be put in place for this “new paradigm.” This effort has been one of John Bellinger’s efforts to enable the torture that has gone on by getting the world to ratify the exotic analyses he and others have done. The world apparently has refused to go along with that siren song.
Complaints are not ad hominem attacks but rather are about the ideas these people advocate that are just unacceptable. Why is it inappropriate to look at these persons and say “How can you let yourself believe that?” I do not understand why you have to show even an iota of respect to persons who are willing to enable appalling things. Maybe I missed a memo on that.
These persons are free to argue these appalling things but we need to call them on it and ask them, just like it was done to McCarthy 50 years ago, “Have you no shame?”
Now, there are powerful people who these persons have enabled to do awful things and those powerful persons are willing to do anything to protect themselves. I mean that Bush and Cheney ordered people tortured appears pretty obvious and that they do not want any effort to go forward to prosecute them is all part of what they can do from their positions of power.
I think New Stream is confusing the ability of the powerful to protect themselves and the impotence of those persons who seek to call them to account in the United States system with some value in the ideas persons like Vermeule and others support. The levers encouraging acquiescence with what the government wants are enormously powerful in this country as in other states. Those levers are in the hands of people who think like Vermeule.
So persons without leverage but who can speak out, do speak out. That is what world society or civil society can do to call these horrific ideas what they are.
By the way, I am not surprised that Vermeule and others do not engage. It seems to be a trait of authoritarians to not seek to engage but to make us go to the kind of “fear” that Roosevelt railed against that paralyzes critical thought. In the face of critical thought, as true believers they just dismiss us.
Yoo will go to jail of that I am sure. Hopefully sooner, but at some point. As will others. There are many people working to make that happen because we simply can not accept that America has come to this and we fear this is the only way to restore American credibility – because we have gone so far in a terrible direction.
And of course blood lust is popular in most cultures. 20 000 fine upstanding citizens use to show up at lynchings. We can all pander to that poor human quality as these persons do through the emphasis on fear. But, with God’s help and hard work (sorry for a religious connotation but I know that faith, such as Thurgood Marshall’s Episcopal faith, is a motivation of mine) time will change.
Best,
Ben
at 3:22 pm EST Benjamin Davis
’I think the reviewer mistake the reason that the disagreement is inconsequential. It’s not tone, but a lack of success in the courts or public opinion as a whole.’
I don’t think Ristroph is for a second imagining the tone of academic commentators as being an exhaustive explanation for the triumph of these views. Obviously it isn’t, and her attempt to explicitly locate the audience for these views as being outside the ivory tower is a clear shot at the fact that the views are sustained fundamentally by their convenience to those in power and populist conservative politics, rather than their ability to acquit themselves in academic battle.
So, clearly we can accept that academic woolliness is separate from the fundamental drivers for why these views exist in the first place, without denying it is a contributor to their legitimation. The point is that the academic battle is still important, and academics need not be so obliging in putting themselves on the back foot when confronting outlier work from a position of established consensus. Otherwise, you just enable and encourage the perception that this tiny minority view is really a mainline alternative position, and you create a new false middle by conceding to the other side the ability to move the goal posts.
Also, I’d just like to say thank you to Ben, for outlining some of the specifics of the consensus I have been alluding to. The unprecedented ASIL resolution and the critiques of conservatives like William Taft are both good examples of exactly what I am talking about with regard to actual consensus, and respect for the law, that exist across political lines. I think the tendency to ignore this by pointing to some supposed false uncertainty in the law is just another way of revealing you’ve been hoodwinked by the radically changing goal posts we are forced to deal with. What was once a standard rule of law position has now become a left-liberal civil liberties fetishism.
at 7:12 pm EST Will