International Law

Why John Stewart failed to make John Yoo squirm

During the week I blogged about John Yoo, professor of law at the University of California at Berkeley School of Law (Boalt Hall), and former Deputy Assistant Attorney General in the Bush Administration, sitting down discuss the so-called "tortute memos" he authored with Jon Stewart on The Daily Show.  Watch the interview here.

What was most surprising about the interview was how Jon Stewart really failed to lay any significant blow on John Yoo.  In fact, Yoo came off looking quite good after the interview, whereas Stewart appeared to be somewhat confused and out of his depth.  In a piece for Slate, Christopher Beam explains why Jon Stewart failed to make John Yoo squirm:

Stewart's performance was widely deemed a failure. He was too conciliatory. He didn't ask about whether torture works or not. He didn't correct Yoo on his factual fudging, such as his claim that Abu Zubayda was a No. 3 leader of Al-Qaeda, nor did he challenge him on whether interrogators had crossed the line between harsh interrogation and torture. Stewart himself later apologized for not "nailing" Yoo.

But was "nailing" him ever a possibility? Yoo has slipped the grasp of many critics through the years. Part of the reason is his demeanor: Calm, good-humored, endlessly patient. It throws people, especially those expecting a younger, Korean Dick Cheney.

But it's also Yoo's rhetorical skill. Stewart failed to "nail" Yoo not because he wasn't prepared. (Although perhaps Stewart could have quoted some of the harsher memos.) He failed because Yoo is a lawyer. The chief criticism against Yoo is that, as deputy assistant attorney general for the Office of Legal Counsel after 9/11, he gave the Bush administration legal cover to torture suspected terrorists. In a time of war, he wrote in what became known as the "torture memos," the president has expanded power to make decisions without congressional approval. When it comes to what's torture and what's not, he wrote, only treatment that inflicts suffering equivalent to organ failure "or even death" constitutes torture. In later interviews, he suggested that nothing?no law and no treaty?could stop the president for ordering torture if the circumstances required it.

Yoo wasn't advocating these techniques, he can say. He was simply answering the question of whether the Constitution allows the president to make these decisions in a time of war. Even if his interpretation of the law led to the use of these techniques, that was the decision of the person ordering them?not the person who interpreted the law as allowing them.

It's the difference between law and policy, he said. In a brief interview before his speech, I asked him if he thought some of the methods interrogators used after 9/11 crossed the line between harsh interrogation and torture. "I really don't know," he said. "It all depends on the circumstances." Lawyers are not hired to say what to do in this or that situation, he said. "That's up to the people who know all the facts."

And that's why Stewart was set up to fail. No matter what the question, Yoo was able to fall back on vagaries about constitutional interpretation, war and peace, and presidential power. Your beef isn't with me, he seemed to say. It's with the Founding Fathers. They left the powers of the presidency deliberately vague in order to give the president wiggle room, which the greatest presidents?Lincoln, FDR?have seized. Plenty of scholars dispute this view of the presidency. And Yoo's view of history may well be oversimplified, as Jeffrey Rosen argued on a panel with Yoo Thursday: Lincoln didn't consult Congress before declaring war against the South, for example, but he did afterwards.

Stewart could have raised similar points. But those aren't damning witticisms. They're nuanced arguments, to which the most likely reaction would be, "Hmm, that sounds sensible." Stewart is effective when his opponent is making a foolish point, not when he has an unorthodox Constitutional interpretation. Which is why Stewart wasn't going to pin Yoo down?even if he had done all the reading.

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Full post as published by Freedom to Differ on January 15, 2010 (boomark / email).