In the wake of Rand Paul’s filibuster of John Brennan’s nomination to be the director of the CIA, I cannot help but reflect on the role my institution has played in this debate.
During Bush’s presidency, John Yoo (now a professor at Berkeley Law), of the Office of Legal Counsel, drafted the “Bybee” or “Torture” memos. These memos essentially argued that whether or not waterboarding was torture, the president had the authority to detain individuals in Guantanamo Bay and subject them to this tactic in order to protect the country. After the public learned about these memos, controversy ensued. Both Bush and Yoo received harsh criticisms from the legal and political realms.
When I was first admitted to HLS, I received a signed copy of Jack Goldsmith’s book, “The Terror Presidency” wherein he details his experiences as the head of the Office of Legal Counsel. Goldsmith, by any account a true conservative, did what he felt he had to do as a careful lawyer and person of character- he withdrew the Bybee Memos and authored new opinions that advanced arguments far less aggressive than those Yoo had endorsed. Goldsmith subsequently resigned from the Office of Legal Counsel, and accepted a Professorship at HLS. Surprisingly, as Goldsmith details in his book, his hiring was met by protest and criticism from members of the HLS faculty. These faculty members were under the mistaken belief that Goldsmith had endorsed the legal conclusions of the Bybee memos and thought that there was no place for such a person at Harvard Law.
It is an eerie feeling to be simultaneously ashamed and proud of your institution. My institution trained George Bush’s successor. My institution also trained, and later employed Professor David Barron, an incredibly talented and prolific academic and lawyer who served as Acting Assistant Attorney General for the Obama administration’s Office of Legal Counsel. More on Professor Barron later, but how incredible of an opportunity that I have been given to be a part of this community. I am at the same time ashamed. The fact that Jack Goldsmith’s hiring was protested under the mistaken belief that he had supported waterboarding makes me furious. In my own view, waterboarding is torture and should be illegal. Nonetheless, I know that this is a controversial issue, and that reasonable people in our country can disagree. I see absolutely no reason why it would be harmful for Harvard Law to have a professor, such as John Yoo, who supported the Bush Presidency’s view on waterboarding. Would it be so awful to have a Professor on our faculty who agreed with a significant portion of our country’s citizens? Even if accepting for the sake of argument that waterboarding is in violation of our Constitution, should our academic inquiry stop the debate there? Clearly not. My peers do not hesitate to question a statute or the Constitution itself if they believe that a better policy exists. Nor should they. Many Americans think that waterboarding was proper and would boldly assert this position. In short, if John Yoo were a professor at my school I would disagree with him, strongly and passionately, but I would accept his opinion as valuable in the marketplace of ideas at my institution.
In a way this issue is illustrative of a larger point- a point that I have not been able to escape during my two years here. That point is that we at Harvard Law School need to think about what our role is as an institution and if that role requires greater tolerance of dissenting views. The term diversity is used as a placeholder for many different things, but almost all at Harvard seem to agree that the pursuit of knowledge is advanced when students and academics with different views and experiences engage in respectful but candid dialogue about their disagreements. I came to Harvard ecstatic about the opportunity I was given and thrilled to meet my classmates- knowing that an incredibly gifted and experienced group would surround me. And to be very clear-my classmates have not at all disappointed me in this regard. Every day I shake hands with someone who I know will be, or already is, a great leader. However, part of the reason that I was so excited to meet my classmates is that I truly could not wait to engage them in conversations, debates, and arguments about controversial topics. While I identify as someone right of center, a libertarian or conservative, I could not wait to meet those on the other side. I looked forward to law school as an opportunity to critically evaluate arguments, and I took for granted the idea that my classmates had the same purpose in mind. I knew that my view would be in the minority, but this not at all bothered me. The legal academy is, and historically has been, liberal. I did not at all think, however, that there would exist at Harvard a culture of intolerance towards different points of view. In my naïve vision of what Harvard must be I knew that there certainly could not be a culture in place that could lead to faculty protesting the hiring of an incredibly qualified individual just because he held different views. This was my unquestioned belief before reading Goldsmith’s book and before coming to campus.
Maybe this monolithic culture is not a bad thing. After all, what if the majority of my classmates are correct on every single point of disagreement that I have with their views? What value does a wrong opinion have? Moreover, our institution trains future advocates. Public defenders, politicians, prosecutors, EPA litigators, and the like all must have a place to grow their passions and learn how to use rhetoric and reason in their plight to change the world for what they view to be the better. Maybe that is the role of my institution- to train advocates, to train passionate leaders.
So the question for my institution as I see it is this: are we solely a school for advocates, or do we need to maintain a space within our school for serious critical debate? More specifically, does the fact that the vast majority of Harvard Law students and faculty agree on one issue render a national controversy moot?
Unfortunately, I do not think so. As powerful and influential as my school is, I do not think that ushering a national debate out of our classrooms ends the discussion. Just because we in the ivory tower think an argument is done for does not mean that Americans are ready to move on. In fact, I think the waterboarding debate still rages on in a different form. Guantanamo Bay is still open, and while the new administration has a different view on waterboarding, a different controversial tactic has taken waterboarding’s place in the pages of a memo authored by the Office of Legal Counsel. David Barron academically attacked the Bush Presidency’s views on Executive power. He was right to do so. Academics are supposed to question authority. However, as has now been partially leaked, David Barron contributed to a memo that holds that the President is able to authorize the killing of an American Citizen without due process by merely labeling him or her an enemy combatant. To be fair, David Barron’s view rests on different legal arguments than did John Yoo’s memos. Putting that aside however, it seems absurd to me to argue that killing an American citizen without any trial, tribunal or process whatsoever is less morally shocking than subjecting someone to simulated drowning.
Drone strikes have been used by both the Obama and Bush administrations. While the Obama administration has increased the amount of drone strikes, presumably, President Bush would agree with President Obama that drone strikes are constitutional and necessary to our nation’s defense. The larger point is that it seems to me hard to object to waterboarding on moral grounds without also objecting to killing a person without due process.
So, where are the protestors?
Does David Barron’s voice belong at Harvard Law School? If John Yoo’s does not, it seems that David Barron’s does not either. Maybe behind closed doors the same faculty members who protested Jack Goldsmith’s hiring are demanding David Barron’s resignation. Maybe these faculty members are shunning Professor Barron, as they view his opinion to be morally unconscionable. Maybe they won’t sit with him in the faculty lunchroom. But I seriously doubt it.
I think this story highlights the danger in a monolithic culture. The danger is that without a dissenting voice to point out flaws in the majority’s ideas the majority may lose sight of its own principles. If the majority’s arguments are stronger- so be it, let them show it. No one at Harvard lacks the capacity to detect flawed reasoning. If the dissenter’s arguments are without merit, I see no reason why the majority shouldn’t welcome debate. If your view is that meritorious, I think you would do better to attempt to demonstrate its superiority rather than working to suppress the other side.
To be sure, there have been grumblings about Professor Barron’s role in the leaked memo. Professor Noah Feldman wrote a great article on the subject http://www.bloomberg.com/news/2011-10-17…). A joke was even made during our student-produced annual “Parody” comedy show.
However, those of us here who identify as conservative or libertarian, and who are not shy in sharing this identification, know what it feels like to have an argument ignored merely because it is coming from the wrong side of the political spectrum. I seriously think that this threatens our institution’s credibility and does no service to any of the students. As passionate and well trained as our advocates undoubtedly are, they would do better to learn to anticipate the other side and to take those arguments seriously.
Maybe for some at Harvard the idea of drone strikes sounds more appealing coming from David Barron than John Yoo or Jack Goldsmith’s ideas about waterboarding. If so, that to me is truly a cause for concern.