Truth, Torture, and 18-Year Olds (1)
This is the last week of class and the students in my first-year seminar on “Law and American Society” have been reading Mark Danner’s Torture and Truth: America, Abu Ghraib, and the War on Terror – which, if you don’t know it, is a 2004 book about the War on Terror by a journalist made famous by his exposes of the work of the U.S. and its allies in El Salvador. I used to fill up my “law and society” or legal history seminars reflections on the uses of law by “little-guy” plaintiffs or movements for social change: We'd read E.P. Thompson on the Rule of Law and Forbath, Hartog, and Minow on “Legal History from Below,” some theoretical pieces on race and gender (and, if I was feeling conscientious, then a piece on Law and Economics). Then we would look at a whole bunch of case studies. There was critique in the house, but much of it was pretty gentle, informed by Thompson’s (and mine, I guess) basically genial relationship to Anglo-American legal history.
Right around the time the Abu Ghraib photos went public, this way of teaching the history of law started to seem inadequate, even kind of insane, in the sense of operating in a world that was clearly not the one in which my students and I were living. In truth, I could have figured this out sooner, perhaps the very first time I taught a lecture class in American Legal History in the Fall semester of 2001. My students resolutely did NOT want to cancel our regular lectures to talk about what happened on 9/11—but a conversation about the history of civil liberties turned into a lot of questions I’d never heard before about why people in the United States had access to so much information, why the press was so dangerously free. They thought it was terrifying to know that the Vice President was in a secret bunker somewhere—since if they knew it, then the Enemy must know it, too. For the first and only time, I got student evaluations complaining about my politics.
Anyway, nowadays my course is kind of schizophrenic: We don’t always read E.P Thompson anymore, but we talk a lot about little guys and gals, about agency and custom and fightin’ back, and, sure, about the limits of formal legal action for promoting social change. But we end the course talking about Empire, and all that other stuff seems to kind go out the window. The week before Thanksgiving was reserved, pity my poor sleepy students, for the Insular Cases (the Constitution does not follow the flag – see Bartholomew Sparrow’s book in the Kansas Great Cases series). And now we’re hip-deep in the Torture Memos.