I'm perfectly aware that Jon Stewart is not a Constitutional lawyer nor someone versed in national security law, yet, I expected him to touch on a few points which could have been unearthed with basic research or a five minute chat with someone like Scott Horton. Instead, as Kevin Drum noted,
Yoo's argument was, plainly, about what counts as torture. Stewart didn't get that - or pretended not to get that, I'm not sure which - and that led him to continually act surprised by perfectly ordinary statements from Yoo. "You're saying we'd never before considered whether torture was OK?" Stewart would ask, and Yoo would respond, "No, we were trying to figure out for the first time which interrogation techniques were torture and which ones weren't." That's really not hard to understand, but Stewart continually misunderstood it and wasted the entire first segment of the interview."
Stewart didn't bring up the preliminary findings by the Office of Legal Counsel's Office of Ethics and Professional Responsibility which found that Yoo's memos used poor legal reasoning. He also didn't bring up the leading Supreme Court case on Presidential powers and national security law - Youngstown Sheet and Tube v. Sawyer. Research on both of these topics is essential if one is to have an interview with Yoo over the memos and torture in general. Why Stewart didn't do his homework will remain a question for quite some time.
Below, I'm going to take some of John Yoo's statements/arguments and use them as Jon Stewart should have.
Yoo: There were no legal precedents for practices; this question never came up before.
Yoo: What is and isn't torture. We have never come against the question in government before.
Yoo: We had not faced the question of what interrogation methods do not constitute torture but go beyond regular law enforcement methods.
Yoo: What lies in that area between torture and humane treatment?
Yoo: Executive power is limited to what is necessary to win the war.
I can break these statements down into two categories:
1) The issue of what interrogation methods constitute torture or cruel, inhumane and degrading treatment are a "gray" area in US law.
2) The President has unlimited power in war time and can do whatever he pleases as long as his actions are necessary to win the war.
Statement 1
The Torture Act, 18 USC Section 2340, incorporates the UN Convention Against Torture into federal statutory law. Like the War Crimes Act, the Torture Act creates federal jurisdiction to prosecute torture. In the definition of "torture," severe mental pain or suffering must be caused by or result from the "intentional or threatened infliction of severe physical pain or suffering," the administration of threatened administration of "mind-altering substances," "the threat of imminent death," or threatened administration of "mind-altering substances," "the threat of imminent death," or the threat that "another person will be subjected to imminent death, or severe physical pain or suffering." However, when ratifying CAT, the US made a reservation on the law. The effect of the reservation stated that the US was bound by the Convention only to the extent that the treatment in question falls within the punishment prohibited by the 5th, 8th, and 14th Amendments of the US Constitution. Therefore, in order to be considered torture or cruel, inhumane, or degrading treatment (violations of international law, war crimes, and felonious conduct under US domestic law) the actions must be of the type prohibited by those three amendments. Again, John Yoo says that conduct that falls within this category is a "gray" area in US law. He is mistaken. The law is absolutely clear in what conduct - specific interrogation methods - are considered torture or cruel, inhumane, and degrading treatment under US law.
As a general principal in interrogations and treatment of detainees, the Supreme Court prohibits the use of "coercive cruelty." The case of Hudson v. McMillan recognized the use of "shocking with the use of electrical currents," exposure to "undue heat or cold," and infliction of psychological pain as "cruel and unusual punishment in violation of the 8th Amendment." Depriving detainees of warmth and food or use of the cold cell - "for example, a low cell temperature at night combined with a failure to issue blankets," is cruel and inhumane treatment according to the case of Wilson v. Seiter. Estelle v. Gamble found disregard for detainee medical needs an "unnecessary and wanton infliction of pain." The Supreme Court case of Brooks v. Florida described the combination of forced nudity and withholding food in a small cell as, "a shocking display of barbarism." The case of Beecher v. Alabama, discussed mock executions which are explicitly banned under the Torture Act. In that case, a police officer held a gun up to a detainee's head and threatened to kill him if he didn't tell the truth. At that time, another officer fired a rifle in another room. The court found the acts of the police officers as "gross coercion." As almost a mirror image of the treatment of US citizen - Jose Padilla, the case of Wright v. McMann, and Scarver v. Litscher, declared that solitary confinement, sensory deprivation, use of the cold cell and forced nudity, "serve to destroy completely the spirit and undermine the sanity of the prisoner" and rise to the level of conduct that violates the 8th Amendment. Stress positions, where limbs and body parts are forced into unnatural positions while the detainee is handcuffed or shackled to an object, is a per se violation of the 8th Amendment. In Littlewind v. Rayl, the court held "that the 8th Amendment was violated where [the] prisoner was restrained naked for seven hours, denied clothing for six days, denied a blanket for two days, restrained seven days in leg irons and handcuffs, and tied to a bed for eight hours." Even forced nudity or withholding detainee access to the bathroom is considered cruel, inhumane and degrading treatment that violates our Constitution and shocks the conscience.
Surely there is no longer any question that forced nudity in conjunction with stress positions, mock executions, hooding, use of dogs, smearing fecal matter and soiled tampons on the face of a detainee, and the cold cell are in violation of our Constitutional standards and a violation of federal laws criminalizing the use of cruel or inhumane treatment of detainees. Also, keep in mind that many of these techniques were used in succession on detainees instead of isolated applications. There is a conspicuous absence of binding legal decisions stating that these interrogation methods are not cruel and inhumane. The legal precedent is clear that the techniques authorized and used on detainees are violations of US law and felonies punishable up to the death penalty. To claim otherwise is being willfully ignorant of US law or intellectually dishonest. Yet, Jon Stewart didn't point out that what is considered cruel and inhumane treatment in interrogation has been developed by domestic US law.
Statement 2
Among others, Yoo claims the power to regulate the capture of enemies during wartime is possessed solely by the President's Constitutional powers. However, this argument ignores the express provisions of the Constitution. Article I, Sec. 8, delegates to Congress alone the power "[to] make rules concerning captures on land and water." Accordingly, Congress - not the Executive - possesses the authority to create rules applicable to prisoners of war and detainees. Yoo failed to address this textually demonstrable Constitutional commitment in his memo or statements. Additionally, the preeminent case in national security law is Youngstown Sheet and Tube Co. v. Sawyer. Surprisingly, it is absent from Yoo's analysis. In Youngstown, President Truman ordered the seizure of steel mills that had been shut down due to strike, so work could resume. President Truman believed the strike and lack of steel production created a threat to national security and therefore, he could force production under his Article II executive powers. However, the Supreme Court overturned Truman's order saying, "the President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Because Congress did not give the President the power to act, his actions were unconstitutional. The case also marks the influential formulation of Justice Jackson's tripartite theory on executive power where he states the President has "no monopoly on war-powers." In regards to post 9/11 treatment of detainees, Congress never delegated such authority on the President. Some may cite the AUMF as a delegation of such power, but 18 USC Section 4001 requires an order to be "pursuant to an act of Congress" and the congressional enactment must "clearly authorize detention of imprisonment." The AUMF does not contain an express grant of authority to the executive regarding prisoners, nor is the word "detention" even mentioned. Therefore, the President did not possess the authority to unilaterally determine how detainees would be handled because there was never a congressional delegation of such power to the President.
John Yoo might have responded as he did in his book, by stating that the Youngstown case is distinguishable because it deals with labor disputes. However, this assertion is undermined by the fact the opinion itself addresses executive power - not labor disputes. Clearly, the president's powers are not only limited to what is neccessary to win the war. The Supreme Court has ruled that his powers are far more limited than John Yoo believes.
In short, Yoo's predominant claims that what defines torture or cruel and inhumane treatment is a gray area in US law and the President can do whatever he pleases during wartime is demonstrably untrue. Yet, Jon Stewart let him get away with it. That is a shame. Stewart said he may invite Yoo back on the Daily Show in the future. Let's hope so and let's hope he does his homework this time.
*Disclosure
Many of the excerpts of this post are taken from my GWR or law school term paper. Because I'm unable to place footnotes in a blog post, it needs to be mentioned that many diverse sources were used to compose my paper and I cannot take full credit for all the thoughts/arguments expressed in portions of the above. Among others, thanks to Prof. Wilson Huhn (Univ of Akron Law School), Prof. Jordan Paust (Univ of Houston Law School), and Judge/Prof. Wallach (NYU)
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