The penalties for unethical reading
Lawyers, like literary scholars, interpret texts. Strange, when you think about it, that there should be a need for interpretation — that writings and statements should not be transparent. Etymologically, an interpreter is a kind of go-between, like an ambassador: someone who carries messages from one camp to another. The interpreter undertakes to disclose, elucidate, clarify meanings though his or her reading skills.
Literary scholars can be, and are, faulted for their interpretations, which may in any case never win them a secure job. But it’s almost unimaginable that they could be fired for faulty interpretations, or be stripped of tenure or membership in the Modern Language Association. So it gives one pause to learn that John C. Yoo, a professor at the University of California at Berkeley’s Boalt Hall School of Law, is subject to an investigation that could conceivably lead to loss of his professorship or his membership in his state bar association, or both.
The investigation, undertaken by the Justice Department’s Office of Professional Responsibility, seeks to determine whether memoranda — written by Yoo, when he was at the Office of Legal Counsel at the Justice Department, and his colleagues there — were so flawed as legal interpretation that they did not meet legal standards.
The question that interests — and troubles — me here is this: Can one be guilty of misinterpretation to the degree that one is punished by loss of one’s license to interpret?
I wrote about the most famous “torture memo,” from August 1, 2002, in The Review last year, querying the kind of interpretive moves made — for instance, the use of statutes on medical-insurance benefits to define torture as that, and only that, likely to “rise to the level of death, organ failure, or the permanent impairment of a significant body function.” When I had drafted my essay, I sent it to two law professors who had greater knowledge than I of the legal issues involved.
Law Professor A replied in essence: So what else is new? Lawyers are hired guns who produce the interpretations that their bosses want, to give legal cover to actions they intend to pursue anyway. Law Professor B expressed substantial agreement with my sense that Yoo’s interpretive moves were slippery and unethical, but then went on to suggest that Yoo learned such interpretive fancy footwork by studying with professors of literature at the best universities. Yoo wrapped himself in the mantle of close textual reading to attempt to claim (unconvincingly) that the “enhanced interrogation” techniques promoted by the Bush administration did not violate the U.S legal code.
Law Professor A was certainly correct that Yoo was producing “cover your ass” legal reasoning to provide protection to policies that his superiors — likely including Vice President Dick Cheney, Secretary of Defense Donald H. Rumsfeld, then-White House Counsel Alberto Gonzales, and probably President George W. Bush himself — were already pursuing at the “black sites” where the CIA held and interrogated its “high value” suspects. Yet to call that lawyering as usual may neglect Yoo’s position as deputy to Jay S. Bybee, assistant attorney general in charge of the Office of Legal Counsel, which, according to its Web page, is supposed to provide “authoritative legal advice to the President and all the Executive Branch agencies.” That is not the same as writing briefs for a client, works of advocacy, but rather dispassionate judgments of what the law is on a given subject. In that light, Yoo’s twisted logic and demonic parsing of language really do seem reprehensible. When Jack L. Goldsmith, now a professor at Harvard Law School, took over the office, he felt obliged to withdraw the torture memos as “legally flawed” and “sloppily written.”
To Law Professor B, I would have to reply in more thousands of words than I have here. Yes, there was a moment in the academic study of literary interpretation when some students came to place a premium on producing the most-counter-to-common-sense readings imaginable and to claim that “anything goes” in the construal of a text. But that was never the lesson taught by the masters, even the masters of “deconstruction.” Most of us who spend our professional lives on interpretation believe, on the contrary, that getting the meanings of texts right has an ethical dimension, and ethical implications. We hold ourselves, and our students, responsible for demonstrating how a text may be shown to say what we claim it to say.
Nonetheless, whether others agree with my readings, I’ve never, so far as I know, been threatened with loss of my job for misinterpreting. That brings me back to Yoo’s case. Yoo’s “torture memos” have always in my view been a disgrace, the apparent legal “justification” of acts of cruelty and inhumanity that were clearly illegal, both in international and U.S. law, and the cover for policies that ought to lead to prosecution for crimes against humanity. The release in the last few weeks of the long-secret report by the International Committee of the Red Cross on the treatment of 14 “high value” detainees in custody of the CIA allowed us to see the real-world effects of Yoo’s justifications for torture. It took me several attempts to read through the report. The material is sickening, a confirmation of one’s worst nightmares about the capacity for human cruelty against fellow human beings — and all carried out in our names.
Then the release on April 16 of further secret memoranda from within the Justice Department made very clear the link between Yoo’s legal “justifications” and the acts of cruelty exercised under their protection. The memoranda were, in effect, torture warrants.
So my talk about “interpretation” may in part miss the mark: This may have been still worse than a twisted reading of legal documents — something closer to a big lie dressed in legalese. The memoranda, it seems, were written explicitly to justify cruel and inhuman behavior that Yoo knew, in detail, had taken place and was taking place — and would, with his sanction, continue to take place.
To my mind, Yoo has damned himself in the books of history. I would like to see him brought to an accounting, along with Cheney, Rumsfeld, Gonzales, and a few others. Since it is unlikely that anyone in the current administration wants to undertake a criminal prosecution of those responsible for justifying torture — even if President Obama has left that door open — I imagine that a Congressionally instigated “truth commission” (without the “reconciliation” part) might be the best way to assess the damage done to our democracy and its values.
I still remain bothered by the notion of academic punishment of Yoo for his wretched legal interpretive memoranda. It’s in part that I want academic freedom to be real, which means that it must protect those whose work we loathe as well as our own. But it is also my firm belief that there is such a thing as an ethics of reading that makes me hesitate to punish in its name. To me, that smacks of a kind of theological repressiveness, a dogmatic assertion of one’s own righteousness. Any ethics of reading needs to make a place for the possibility of error.
Yoo’s interpretive misdeeds are not primarily sins against the academy but against the profession of legal counsel. I think, then, that loss of his license to practice law would be fully justified and more appropriate than dismissal from the Boalt Hall faculty.
But I suspect Yoo’s disbarment is not much more likely than his prosecution. What should one, in all conscience, do in a case like his? I confess to a great deal of uncertainty here. But let me try to come to rest with this notion: Acts of interpretation are actions in the real world — especially where the law is concerned. That is true, as well, of the most convincing literary utterance, and thus perhaps, to some degree, of its interpretation. Henry James in his preface to his last novel, The Golden Bowl, made the claim that literature may be faulted when “it fails to lend itself to viva-voce treatment.” That, he said, is because “the spiritual and the aesthetic vision” yields its finest effects “under the closest pressure — which is of course the pressure of the attention articulately sounded.” That is, I think, James’s way of making a claim for art as an act of speech, and thus as a form of action in the world. Attention sounded would, in the case of Yoo’s torture memos, produce the horror of the imaginatively bankrupt and the morally hollow. Whatever the censure or the sanction imposed on Yoo, it needs to include making clear the real-world consequences — in documented human suffering — of clever but unethical reading.
Maybe Yoo needs to begin his penance by reading his torture memos aloud, in public. In response, the voices from the “black sites” would also have to be heard, aloud, as echo and counterpoint to the legitimation of torture. We who teach may want to use this sorry case to remind ourselves that acts of interpretation carry weight in the world. They claim to offer understanding, elucidation, guidance.
And when they speak from the Office of Legal Counsel of the United States Department of Justice, they claim to be authoritative interpretations, ones that those who have power can and do rely on. We cannot be deaf to their results.
Peter Brooks is a Mellon Visiting Professor in comparative literature and in the University Center for Human Values at Princeton University.
http://chronicle.com Section: The Chronicle Review Volume 55, Issue 35, Page B4