Jon Stewart Gives John Yoo a Free Pass

Jon Stewart hosted John Yoo on "The Daily Show" this week, and essentially gave the guy a free pass.

As Deputy Assistant Attorney General in 2003, John Yoo was the author of the infamous "torture memo" which argued that torture was allowable if the physical pain was anything less than "death, organ failure, or the permanent impairment of a significant bodily function." This memo, signed by Yoo, is available at the website of the ACLU at this link. In a debate in 2006 with Notre Dame professor Doug Cassell, Yoo apparently justified even the torture of children, in this exchange:

Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.

Torture is explicitly prohibited by the Geneva Conventions; the 1984 Convention Against Torture; the 1948 Universal Declaration of Human Rights; the International Covenant on Civil and Human Rights; and the American Convention on Human Rights. Most scholars also believe torture violates the U.S. Constitution’s prohibition on “cruel and unusual punishment.”

Jon didn't raise any of these issues with Yoo.

Last spring week, a Spanish court opened a criminal investigation against Bush administration officials, including John Yoo,for violating international law in providing the legal framework for the U.S. government’s use of torture. (See my previous post on this).

By almost any measure, the decisions of Yoo and his superiors were legally incompetent. At the very least, their recommendations, and the decisions taken by President Bush, were violations of international law. They come close to crimes against humanity. They should be brought to account in this country, under American law. But Yoo, far from facing indictments in the U.S. continues to teach at one of the most prestigious law schools in the U.S., and continues to find a hearing for his views in the pages of the New York Times and the Wall Street Journal.

Shameful.

And we expect more from Jon Stewart!

How Torture Hurts and Weakens the U.S.

Mark Danner is our contemporary Diogenes, searching (often vainly) for the honest man and using dogged empiricism to establish the truth. His focus in recent years has been on the U.S. use of torture and his latest report, in the New York Review of Books, is "The Red Cross Torture Report: What It Means."

As a followup to my recent post on the Spanish court considering criminal charges against U.S. officials for the justification and use of torture, I offer these two quotations about the effects of U.S. torture on our values and our security.

The first is from President Obama, in an interview on 60 Minutes:

I mean, the fact of the matter is after all these years how many convictions actually came out of Guantánamo? How many terrorists have actually been brought to justice under the philosophy that is being promoted by Vice President Cheney? It hasn’t made us safer. What it has been is a great advertisement for anti-American sentiment. Which means that there is constant effective recruitment of Arab fighters and Muslim fighters against US interests all around the world.... The whole premise of Guantánamo promoted by Vice President Cheney was that somehow the American system of justice was not up to the task of dealing with these terrorists.... Are we going to just keep on going until the entire Muslim world and Arab world despises us? Do we think that’s really going to make us safer?

And Danner's response to Obama's sentiments:

This is as clear and concise a summary of the damage wrought by torture as one is likely to get. Torture has undermined the United States’ reputation for respecting and following the law and thus has crippled its political influence. By torturing, the United States has wounded itself and helped its enemies in what is in the end an inherently political war—a war, that is, in which the critical target to be conquered is the allegiances and attitudes of young Muslims. And by torturing prisoners, many of whom were implicated in committing great crimes against Americans, the United States has made it impossible to render justice on those criminals, instead sentencing them—and the country itself—to an endless limbo of injustice. That limbo stands as a kind of worldwide advertisement for the costs of the US reversion to torture, whose power President Obama has tried to reduce by announcing that he will close Guantánamo.

Spanish Court Questions U.S. Use of Torture

Last week, a Spanish court took the first steps in opening a criminal investigation against Bush administration officials for violating international law in providing the legal framework for the U.S. government’s use of torture. Among those the court is expected to indict are former Attorney General Alberto Gonzales and former Justice Department lawyer John Yoo, who is now a professor at the University of California at Berkeley.

John Yoo was the author of the so-called “torture memos” which justified the use of torture and argued that the U.S. should ignore the Geneva Conventions, which explicitly prohibit torture.

The United States is a party to the Geneva Conventions, and also to the 1984 Convention Against Torture, which is binding on 145 countries, including the U.S. Torture is explicitly prohibited in numerous other international treaties, including the 1948 Universal Declaration of Human Rights; the International Covenant on Civil and Human Rights; and the American Convention on Human Rights. Most scholars also believe torture violates the U.S. Constitution’s prohibition on “cruel and unusual punishment.”

So there is plenty of legal precedent to assert that Gonzales, Yoo and other Bush administration officials—probably even the president himself-- were in violation of international law.

The Spanish initiative comes on the heels of two damaging new reports on the Bush administration’s use of torture. The Justice Department’s Office of Professional Responsibility is investigating whether the legal advice of Yoo and others “was consistent with the professional standards that apply to Department of Justice attorneys,” according to Newsweek. If Attorney General Holder accepts the report, it could be forwarded to state bar associations for possible disciplinary action.

An even more damning report by the International Red Cross on the treatment of prisoners at Guantanamo has been brought to light by Mark Danner, in a short article in the New York Times and a longer one in The New York Review of Books. The Red Cross reports—basically verbatim accounts of interviews with Guantanamo prisoners—makes absolutely clear, according to Danner, “that the United States tortured prisoners and that the Bush administration, including the president himself, explicitly and aggressively denied that fact.”

Danner concludes, as I have done in The End of the American Century, that the U.S. use of torture not only eroded our own values, but further poisoned the global reputation of the U.S. and stimulated the recruitment of terrorists around the globe. The decision to torture, writes Danner,

“harmed American interests by destroying the democratic and Constitutional reputation of the United States, undermining its liberal sympathizers in the Muslim world, and helping materially in the recruitment of young Muslims to the extremist cause. By deciding to torture, we freely chose to embrace the caricature they had made of us.”

Of course it was not just at Abu Ghraib and Guantanamo that prisoners were tortured. Jane Mayer, author of The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, convincingly shows that the use of torture was a central tool in the battle against terrorism. Even though President Bush denounced the use of torture, the tactics he denounced were exactly the same as those he had authorized and encouraged in the extensive worldwide network of secret prisons set up to hold and interrogate suspected terrorists. As the distinguished historian Alan Brinkley wrote in a review of The Dark Side:

"it would be difficult to find any precedent in American history for the scale, brutality and illegality of the torture and degradation inflicted on detainees over the last six years; and it would be even harder to image a set of policies more likely to increase the dangers facing the United States and the world.”

By almost any measure, the decisions of Yoo and Gonzales were legally incompetent. At the very least, their recommendations, and the decisions taken by President Bush, were violations of international law. They come close to crimes against humanity. They should be brought to account in this country, under American law. But Yoo, far from facing indictments in the U.S. continues to teach at one of the most prestigious law schools in the U.S., and continues to find a hearing for his views in the pages of the New York Times and the Wall Street Journal.

Perhaps it will take a European court, in the end, to have him, and other Bush officials, account for their decisions. For a Spanish court to indict them will be largely symbolic, of course, since the U.S. is unlikely to extradite them to Spain. But symbols are important. And one of the most important symbols of all was President Obama’s categorical assertion, in the first weeks of his presidency, that

“under my administration, the U.S. does not torture.”