Judicial Activism in a Time of No Irony

I'm sitting in my office listening to the radio. In Pakistan, President-General Pervez Musharraf has shut down independent media and demanded that judges take an oath to uphold what he calls "provisional" military rule. He has denounced the courts for "judicial activism" in failing to support his suspension of Pakistan's Constitution. He has attempted to dissolve the Supreme Court and all provincial High Courts. Hundreds of opposition leaders and human rights activists have been arrested, including Imran Khan, the former cricket star. Martial law, says Musharraf, is a way to "preserve the democratic transition that I initiated."

A knock at the door. It's a student; his paper is about torture. The subject of torture is a first for me, but apparently I'm among the last on the bandwagon. The young man tells me that every course he's taking deals with torture in one way or another. Should there be judicial warrants for torture? What practices constitute it? Is organ failure an appropriate outer limit? Should state-sponsored torturers be granted immunity from prosecution? How do we reconcile international treaties barring torture? My student and I narrow his topic amid an embarrassment of choices. He decides to analyze a series of opinions by Berkeley law professor and former Justice Department official John Yoo, and I send him on his way.

Until recently, torture was about the only thing every nation on earth condemned. Until recently, there were no such equivocations about it. And until recently, "democracy" meant something other than the power of unchecked violence wielded by either a strongman or a unitary executive.

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