Well, I just watched John Yoo -- a member of the Office of Legal Counsel during the George W. Bush administration and the author of the infamous "torture memos" -- on Jon Stewart's The Daily Show. It was among the more excruciatingly awkward spectacles I've seen on television. (I've always admired Stewart's willingness to have his shows inform, not just entertain, no matter how strange it makes the viewing.) At the end of the show, with Yoo off the stage, Stewart made the point himself, recommending his viewers overseas play the tape if they catch any high-value detainees. It was one of, by my count, four jokes in the second half of the broadcast.
Why so awkward? The two never engaged. They questioned and parried. They talked past one another. Stewart couldn't catch Yoo in a lie, couldn't call his arguments what they were, and clearly seemed frustrated. He had brushed up on Yoo's infamous briefs. He wanted to engage Yoo. But the lawyer -- as brilliant a legal mind as there is in the United States, some insist, dressed in a gray wool suit, looking every bit the professor -- simply explained away.
The answers to the questions sound rote to my ears by now. (Before joining Foreign Policy, I worked at The New Yorker, and spent months researching for staff writer Jane Mayer's book The Dark Side, which is all about the extralegality of the Bush approach to the war on terror.) Concerns about the legality of harsh interrogation only come up during wartime, Yoo says. The White House asked him to define the legal limits of interrogation, and he defined them as best he could, he says. Nobody had ever addressed what interrogation is legal and what isn't, he says. We do not use law-enforcement standards during wartime, he says -- we don't read terrorists their Miranda rights when we arrest them in places like Pakistan.
Yoo established such arguments in his briefs from his tenure at OLC. Since then, the legal establishment, and the government, has cast them aside. The question of what the U.S. government can and cannot do to prisoners of war is clearly delineated in both U.S. and international legal codes. The U.S. government has confronted such questions every single time it has sent a soldier or a CIA operative overseas, anywhere from Vietnam to Kosovo, and detained suspected enemies. I was disheartened not to hear more push-back -- oh, to have, say, Harold Koh or Greg Craig in Stewart's seat! -- but not surprised.
But Yoo made a secondary argument, which I hadn't seen him make before -- one about partisan politics. When Stewart first welcomed Yoo onto the stage, he asked him how it felt to come on television knowing the animus against him. Yoo described it as the same animus Stewart, an avowed liberal, gets from hard-line conservatives. Later in the broadcast, Yoo said that some people cast aspersions on the Bush White House for the same reason that some people do on the Obama White House.
I fail to understand how despising the creative rewriting of U.S. law -- how massively, secretly expanding the powers of the executive to allow the government to torture -- is a partisan issue. Yoo and his associates, the Jay Bybees of the past administration, did the United States -- Republican and Democrat, liberal and conservative, communist and libertarian, whatever political stripe -- a tremendous disservice with their irresponsible legal freelancing. They saw the limits of the law. Rather than delineating them in black and white, they rewrote them in vibrant, torturous color.
Take just one example. It's Yoo we have to thank for the short-lived classification of harsh interrogation methods as legal as long as they do not cause organ failure. He apparently culled the language for the description from a medical textbook and turned it into law without any precedent. There's nothing partisan about seeing that for what it is.
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