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Stewart vs. Yoo

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John Yoo Pt. 1
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Last night's showdown between Jon Stewart and John Yoo was a shuddering disappointment. Stewart didn't lay a glove on Yoo. He began by admitting he doesn't understand this stuff, which is sometimes a feint interviewers use before showing that they, or the people who wrote their questions, really do understand this stuff. Not this time. Adam Serwer comments:

Stewart never confronted Yoo on the question of how the torture regime, reverse engineered from training meant to help soldiers resist torture, could possibly not be torture. Stewart never even contested the idea that torture was effective, despite the high profile declaration of FBI Interrogator Ali Soufan that he personally extracted all of the useful information from Zubayda prior to his being tortured. When Stewart asked Yoo whether the president could electrify someone's testicles, Yoo knew how to answer the question -- having previously implied that it would be okay for the president to order a child's testicles crushed because, "it depends on why the president thinks he needs to do that." This time he shook his head. No, no, never something so barbaric.

Stewart allowed Yoo to maintain the illusion that he was a good faith actor simply doing his job, rather than someone who had deliberately distorted the facts in order to justify the unjustifiable. After being outmaneuvered for nearly thirty minutes, Stewart grudgingly admitted that he was "not very equipped to handle the discussion". It was a sobering reminder that for years, a mostly pliant press has allowed a comedian to do a reporters' job. Yesterday, we were reminded how inadequate a solution that really is.

This outcome was predictable, though. Anyone who watched Stewart's interviews with Amity Shlaes or Betsy McCaughey saw it coming. Stewart's early takedowns came before people understood that this late-night comedian did takedowns. When Stewart appeared on Crossfire, a scolding was the last thing the hosts expected. At this point, though, Stewart's interviews are well known and so too are his political opinions. It's obvious who he'll take down and how. And so his guests come armed to rebut, and they have more experience defending themselves than Stewart has attacking them. At this point, Stewart is doing more harm than good by giving people whom he thinks are liars and frauds a platform on his show.

By Ezra Klein  |  January 12, 2010; 3:00 PM ET
 
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Comments

Agreed, Ezra. The right-wing don't need more opportunities to spew their lies.

Posted by: AZProgressive | January 12, 2010 3:03 PM | Report abuse

The most disappointing aspect of this is that Stewart definitely has the innate ability to deal with these guys. He just needs to up his game and take his role more seriously. The comedy element is still a major asset, but it needs to be balanced with a sincere interest in the issues he's dealing with. If that interest isn't there, there's no point in trying to fake it. The fakery shows.

Posted by: slag | January 12, 2010 3:25 PM | Report abuse

I thought Stewart did a reasonable enough job of revealing that Yoo's approach to his job is -- or at least was, in the Bush White House -- that of a political hack, not a lawyer. He didn't summarize the law in his memos, pointing out the weaknesses and strong points of various positions. Rather, he presented the arguments that supported torture (supposedly), and ignored anything that did not support torture. Perhaps he understood that this was what he was being asked to do -- but it's quite horrific that he went along with it.

Stewart tried to get at that, albeit clumsily ("Are you a good lawyer?") -- and Yoo just brushed it aside. But it was there for all to hear.

I'd like to hear Yoo interviewed by Jonathan Turley. But I suppose that'll never happen.

Posted by: LynnDee227 | January 12, 2010 3:43 PM | Report abuse

John Yoo is a lawyer who produced a written legal opinion on ambiguous law regarding interrogations.

If it's so terrible that his definition of torture allowed waterboarding, why hadn't a previous Congress outlawed the practice? There would then be no wiggle room for Yoo then. So the legal case against him and the Bush Administration is weak.

It's well documented that KSM gave up a lot of information after being waterboarded. Thus endeth the practical argument - i.e. torture doesn't lead to useful intelligence.

And we waterboard some of our own troops as a training exercise, to the outrage of nobody. There goes the moral argument against waterboarding.

If you want to argue that Bush's policies were stupid or ineffective against terrrorists, you may want to start with his *ban* of waterboarding.

The anti-waterboarding arguments I've read all use black-and-white thinking regarding something that is inherently grey. Think of denial of food as an interrogation technique: At some time between a detainee's first stomach rumble and death due to starvation, a detainee was "tortured." But not when the first meal was missed. KSM was waterboarded 100+ times, perhaps the line was crossed at some point. So the useful argument would be that waterboarding practices should be changed slightly rather than banned, but that doesn't serve anyone's short-term political interest.

Posted by: angrydoug1 | January 12, 2010 3:47 PM | Report abuse

"If it's so terrible that his definition of torture allowed waterboarding, why hadn't a previous Congress outlawed the practice?"

Uhh, because Congress had already banned torture. You can't expect Congress or anyone else to anticipate every possible means of torturing someone. Otherwise Yoo apologists would just claim that Congress never banned pounding knitting needles into someone's eyes so it can't be torture since it wasn't mentioned.

Posted by: steveh46 | January 12, 2010 4:10 PM | Report abuse

I think people's expectations that every time out he'll disembowel someone like he did to Jim Cramer are a little lofty. He did a pretty good job with Betsy McCaughey refuting all of her points. He didn't do a great job on Yoo, but I don't think anyone came away from the Yoo interview with the impression that Yoo was a good-faith actor - the very least you came away with was the idea that Yoo was all double-speak and highly partisan.

Posted by: twcunningham | January 12, 2010 4:13 PM | Report abuse

Quote: "If it's so terrible that his definition of torture allowed waterboarding, why hadn't a previous Congress outlawed the practice?"

Perhaps, given that we prosecuted folks for waterboarding our soldiers, it didn't seem necessary?

In any case, you've completely stepped around Yoo's shoddy work as a lawyer. The client should be provided with a legal analysis that carefully goes through the pros and cons of all positions -- not one that makes a ham-handed argument in support of a particular position (and ignores anything that doesn't support that position).

Quote: "It's well documented that KSM gave up a lot of information after being waterboarded. Thus endeth the practical argument - i.e. torture doesn't lead to useful intelligence."

Oh, come on. This simply isn't true. In fact, it's well documented (see? anyone can say that) that the good information KSM provided was provided before he was waterboarded and that the 40+ waterboardings produced nothing but whatever KSM thought his interrogators wanted to hear. IOW, lies.

Posted by: LynnDee227 | January 12, 2010 4:16 PM | Report abuse

steveh46, I appreciate that a legal language sometimes has to be broad because all the relevent specifics can't be thoroughly covered.

But you must see that broad language like 'no torture' creates implementation difficulties for CIA agents who want to both follow the law and acquire valuable information from detainees. And that it could not reasonably be considered obvious, or clearly implied, that something the US Government does to its own people (waterboarding of members of the military) is something that it cannot do to foreign enemy detainees suspected of horrific crimes.

So, somebody had to interpret the law when KSM and others were interrogated. And the job of Yoo's Office of Legal Counsel was to do just that.

I don't think you can find an MSM article, or even a well-sourced liberal blog that interviews our own military members who've been waterboarded in training and supports the broad 'torture' claim. This despite large incentives - the MSM would love a big juicy anti-Bush headline and the blogs would love to substantiate the far left's anger. So, I think the waterboarding=torture argument is contrived for pure partisan purposes.

Posted by: angrydoug1 | January 12, 2010 4:33 PM | Report abuse

*So, somebody had to interpret the law when KSM and others were interrogated. And the job of Yoo's Office of Legal Counsel was to do just that.*

Yoo's job is to interpret the law on behalf of the American people and the US government. Instead, he chose to interpret his role as making a vigorous defense for a client, which he considered to be the President. When one is in private practice, and your client has tortured someone, it is understandable that your client deserves a vigorous defense. When you are in the Office of Legal Counsel for the US government, your job is to realize, "We are the United States of America, and *we do not torture.*" Unfortunately, Yoo, like Alberto Gonzales, thought his job was to be a representative toady.

Posted by: constans | January 12, 2010 4:47 PM | Report abuse

LynnDee227, here's a link to an anti-Bush news site supporting the legality of waterboarding.

http://www.nytimes.com/2009/06/07/us/politics/07lawyers.html?pagewanted=1&_r=1

And another that shows the waterboarding was beneficial for intelligence gathering:

http://topics.nytimes.com/top/reference/timestopics/organizations/c/central_intelligence_agency/cia_interrogations/index.html?inline=nyt-classifier

You see, the popular arguments against Yoo and waterboarding - it's illegal and impractical - are false. And the moral arguments, which the legal/practial arguments often devolve to, are not matters of fact.

I don't know if Yoo's work really was "sloppy" for not presenting both sides of an argument. And I don't care. It's important that his opinion was consistent with the law, and that the opinion preceded KSM producing valuable intelligence. Sloppy work? That's small potatoes.

Posted by: angrydoug1 | January 12, 2010 4:48 PM | Report abuse

Angrydoug:
As LynnDee pointed out, we prosecuted Japanese soldiers for waterboarding our troops during WWII. And we executed them. So at that time, waterboarding was a capital offense. In what way is that "contrived for political purposes?" Please explain it to me, 'cause I'm not seeing it.

Posted by: TomServo | January 12, 2010 4:50 PM | Report abuse

Quote: "LynnDee227, here's a link to an anti-Bush news site supporting the legality of waterboarding."

You're not getting it. I don't doubt there are arguments all around this issue -- some well thought out, some specious. But ARGUMENTS are not the issue. John Yoo's shoddy work as a lawyer is. (Thus, that you've found a pro-torture argument at a site you characterize as "anti-Bush" is meaningless.)

Yoo's memo should not have been an argument in support of torture. It should have been a careful, thoughtful analysis of the law, the pros and cons of all positions on this issue. It was an abuse of his position in the Dept. of Justice to throw over his duty and ethical obligations as a lawyer and simply carry water for those who wanted to torture.

Any first year law student could put together an argument in support of torture -- especially one shot through with holes. But you don't serve your client at all by viewing your job in this way.

And his argument on the Daily Show -- that we must accept bad decisions by Presidents as the price for ensuring they have the power needed in times of emergency -- only underscores the importance of DOJ lawyers who view their job as providing the President with sound legal reasoning -- not painfully laughable rationales for doing whatever the President has decided he or she wants to do, regardless of whether it might be immoral or illegal.

Posted by: LynnDee227 | January 12, 2010 5:02 PM | Report abuse

"And that it could not reasonably be considered obvious, or clearly implied, that something the US Government does to its own people (waterboarding of members of the military) is something that it cannot do to foreign enemy detainees suspected of horrific crimes."

The US waterboards members of its own military as an example of torture they may face if captured. Not as an example of how to torture prisoners. Do you not see the difference between a one-time demonstration of a painful technique being performed by instructors and a prisoner, against their will, being repeatedly drowned?

Posted by: steveh46 | January 12, 2010 5:12 PM | Report abuse

AngryDoug:
"broad language like 'no torture' creates implementation difficulties for CIA agents." Exactly! That's the point. The language in U.S. law and in the Geneva Conventions is intentionally vague so that any interrogator will err on the side of caution. If he thinks it might possibly maybe kinda sorta be torture, he won't do it.

Posted by: randrewm | January 12, 2010 5:15 PM | Report abuse

Does anyone think Yoo did a great job of justifying torture? Or the Bush admin position? Did you feel your mind being changed to a more pro-torture position?

If not, then why get on John Stewart's case? He just Yoo enough rope to trip over and hurt himself with, if not actually hang himself.

John Stewart doesn't pretend to be anything other than what he is. I'm not always a huge fan of the show, but the idea that he's letting anybody down because he chooses a different approach (i.e., letting someone crucify themselves, rather than doing it for them) seems silly. He does a comedy/political opinion show, not a hard news show. He's not an investigative reporter. If anyone has actually "let" the John Stewart show be a "solution" to substitute for real investigative journalism, that's their own fault. It has nothing to do with John Stewart or Comedy Central.

Posted by: Kevin_Willis | January 12, 2010 5:44 PM | Report abuse

Just to be clear, Stewart eviscerated Jim Cramer less than one year ago. As was noted above, he did fine with McCaughey. She's too shameless to be cowed, but no one walked away from that thinking that she'd won the day. He apparently didn't do well against Yoo, which is a shame, but Ezra's conclusion doesn't follow - at all - from the evidence. It may be that Stewart needs better prep for these high profile interviews, but I think it's far from evident that he needs to stop doing them.

Posted by: JRoth_ | January 12, 2010 6:03 PM | Report abuse

LynnDee227, I sidestepped your issue - Yoo's alleged sloppiness - because it isn't relevant. The post is about the effectiveness, legality, and morality of waterboarding during the first half of the Bush Administration. Yoo didn't go on Stewart's show to discuss his completeness or tidiness, and Stewart had no reason to ask him about it. Ezra Klein makes a lot of blog posts; maybe one complaining about sloppy Bush era lawyers will come up and you'll have the perfect place to post.

randrewm, I have to disagree with you. When terrorism suspects are caught, our government's agents should KNOW what is and is not legal so that they can do their jobs without fear of legal or political retribution. Don't we want them to vigorously extract all potentially life-saving information they can from these suspects within the bounds of law? To wit, morale at the CIA is low these days, because agents who followed their orders and believed their orders were legal could be subjected to lawsuits from people with a political agenda, i.e. Obama and Holder.

steveh46, I do see and appreciate the difference you described. But if the one-time educational waterboard of our own citizens is legal, why isn't the same thing legal for foreign terror suspects? Every discussion and every article I read about the subject, the predominant Beltway opinion (see a few above commenters) is that all waterboarding is torture and is a moral outrage. I've never heard degrees of waterboarding discussed, and I would be receptive to that debate - perhaps the 183 dunks applied to KSM was going too far. But I don't see how the first drop of water applied to KSM's covered head represented torture and a moral and illegal abomination.

To various others, I've heard of these prosecutions about others waterboarding our soldiers in the past, 50+ years ago. But I don't know the details and have not presented a defense of them. For all I know those prosecutions were mistaken. I think much worse things were done to GIs in Japanese POW camps. But realize if we're talking about uniformed U.S. soldiers, a different standard applies than for terrorists. That would be required by the Geneva Convention. We only waterboarded KSM and two other guys - if one of them was a uniformed military member carrying arms openly, show me a link and I'll prepare to eat crow.

Good night, all.

Posted by: angrydoug1 | January 12, 2010 10:25 PM | Report abuse

"But if the one-time educational waterboard of our own citizens is legal, why isn't the same thing legal for foreign terror suspects?... But I don't see how the first drop of water applied to KSM's covered head represented torture and a moral and illegal abomination."

Then you're being willfully obtuse. If I say to a friend "Gee I wonder what getting tasered feels like" and we both agree to shock me once, is that torture? Obviously not. If someone ties me to a chair and shocks me over and over again against my will is that torture? Obviously yes.

And this isn't a hard call. The UN Convention Against Torture defines torture as ".any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

If waterboarding isn't torture, why are we using it to force someone to obtain information or a confession? If it is torture, we can't use it against anyone, uniformed or not. The US signed the UN Convention Against Torture, the Senate ratified it.

Posted by: steveh46 | January 13, 2010 9:51 AM | Report abuse

In that case, angrydoug, we'll just crush your child's testicles in front of you and see how you like it.

Posted by: allanbrauer | January 13, 2010 10:16 AM | Report abuse

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