Jon Stewart's Missing Homework

Last Monday, Jon Stewart interviewed former Deputy Assistant Attorney General John Yoo on the Daily Show. Many (myself included) expected a sharp back and forth over the legal reasoning used in the infamous "torture memos" authored by Yoo, but to my surprise, Yoo came away from the interview unscathed. He also came across as a likeable guy with a good sense of humor.

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)

Is it Torture?

To those who who claim that the "interrogation methods" the Bush Administration used on suspected terrorist does not constitute torture - Do you consider cutting a suspected terrorist's penis with a scalpel torture?

Just wondering.

If you don't think the US government would allow such treatment, stay tuned to the British High Court's upcoming opinion in regards to Binyam Mohammed.

Obama/Beltway Definition of "Transparency"

President Obama - January 21, 2009:
"Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency."

Fast Forward 9 months:
Now it appears that with Obama's support and urging, Congress will add an amendment to a bill that will exempt pictures of the United States (under the Bush Administration) torturing prisoners and suspected terrorists from being released under the Freedom of Information Act.

The Freedom of Information Act (FOIA) has been one of the hallmarks of healthy democratic government because it forced governmental transparency and kept the government accountable for their actions. Now, a Democratic Congress, who under George W. Bush praised the FOIA, are set to render the Act null and void simply because their leader asked for it. Forget principles and any independence if you are a Democrat, they just subserviently bow down to the commands of the President.

Here is Glenn Greenwald on the subject:

yesterday, Sen. Joe Lieberman successfully inserted into the Homeland Security appropriations bill an amendment -- supported by the Obama White House -- to provide an exemption from the Freedom of Information Act's mandates by authorizing the Defense Secretary to suppress long-concealed photographs of detainee abuse. Two courts had ruled -- unanimously -- that the American people have the right to see these photographs under FOIA, a 40-year-old law championed by the Democrats in the LBJ era and long considered a crowning jewel in their legislative achievements. But this Lieberman amendment, which is now likely to pass, undermines all of that and -- as EBay founder Pierre Omidyar put it today -- its central purpose is to "legalize suppression" of evidence of American war crimes.

What made those detainee photographs so important from the start is that they depict brutal abuse well outside of the Abu Ghraib facility and thus reveal to Americans -- and the world -- that America's torture was not, as they've been constantly told, limited to rogue sadists at Abu Ghraib and the waterboarding of three bad guys. Instead, our torture regime was systematic, pervasive, brutal, fatal, and -- because it was the by-product of conscious policies set at the highest levels of government -- common across America's "War on Terror" detention regime. These photographs would have documented those vital facts; combated the false denials from torture apologists; fueled the momentum for accountability; and revealed, in graphic and unavoidable terms, what was truly done by America's government. But a Democrat-led Congress, at the urging of a Democratic President, is now taking
extraordinary steps -- including a new law which has no purpose other than to suppress evidence of America's war crimes -- to ensure that this evidence never
sees the light of day.

As a side-comment, isn't it sad that the ACLU is the one leading the charge on getting the photos released instead of the media? And they wonder why old-school media/journalism is on the brink of extinction. Maybe if they possessed courage, patriotism and journalistic integrity it would be a different story.

Finally, here is Adam Sewer writing about the hypocrisy of Sen. Joe Liberman and his "notion" of executive accountability and transparency:

The administration, perhaps sensing that they're not really on solid legal ground when it comes to arguing that the government should be able to hide evidence of its own wrongdoing under the rubric of national security, is getting a little cover from Congress. Yesterday, the conference summary of the current homeland security appropriations bill indicates that an amendment from Sen. Joe Lieberman that would exempt the photos from the FOIA Act has been adopted, which means that the government could legally withhold the pictures if the bill is passed. The same Sen. Lieberman, deeply concerned about the constitutionality of executive branch "czars," has inserted language into a bill allowing the government to conceal evidence of its own abuses.

Evangelicals and Torture

Doesn't anyone else think that the last time we should have seen the headline "Church-Goers Like Torture More," should have been several centuries ago? Just another piece of evidence showing how distorted some of those in the evangelical church are from the true teachings of Jesus.

Here is Chris Good from the Atlantic discussing the Pew study:

Evangelicals, according to the survey, are more prone to saying torture is justifiable than members of the nation's other two main Christian groups: so-called "mainline" Protestants and white, non-Hispanic Catholics. Unaffiliateds--a conglomerated group of atheists, agnostics, and those who say their religion is "nothing in particular--support torture the least: 40 percent say it's justifiable often or sometimes.

Notice how atheists and agnostics have a clearer sense of morality. Evangelical Xianity is really making progress these days...

Enemies Foreign and Domestic

This past week, former Vice-President Dick Cheney gave an extensive interview with John Harris, Mike Allen and Jim Vandhei of Politico. I'll be quoting excerpts of the interview, but in general, Cheney warned of future terror attacks because the Obama administration is departing from many of the Bush Administration policies and is therefore putting the country at risk in the eyes of the former vice-president.


First, it seems very likely, perhaps inevitable that the U.S. is going to receive another serious terrorist attack. As former President Bush stated regularly, "we only have to fail once for the terrorists to succeed." However, it appears (at least to me) that Cheney is simply using political posturing to claim that if there is a terrorist attack in the future, the blame should lie squarely at the feet of Obama because he departed from many of the aggressive/illegal policies of the Bush Administration designed to thwart terrorist threats. Just because an attack did or did not occur during an administration's term doesn't mean it was a direct result of the policy. It is part of the analysis, but not conclusive in itself.

At the heart of Cheney's argument is the notion and belief that because a terrorist attack did not occur once they implemented their policy, it was their policy that was responsible for preventing attacks. He believes that unilateral war, torture, no due process, surveillance programs and lack of diplomacy are fundamental to the security of the United States. This claim doesn't hold up to scrutiny. The last major terrorist attack on US soil (committed by an Islamic fundamentalist) was the first world trade center bombing in 1993. In dealing with this act, President Clinton didn't impose the draconian measures similar to Bush/Cheney to ensure our security. The terrorists themselves were tried in criminal court, convicted and are rotting away in a domestic U.S. prison. Therefore, using the same logic, we can say that Clinton's approach in dealing with terrorism kept the U.S. safe. However, to stay consistent, I would argue that that logic is also flawed. To poke some more holes in Cheney's assertion - that extra-ordinary measures are needed to prevent terrorism - let's take Spain for example. After the terrorist attacks on Madrid in 2004, Spain convicted the terrorists in criminal court and decided to withdraw from Iraq. Here is Glenn Greenwald discussing their reaction to terrorist attacks and their subsequent national security (yes, the last part of his remarks are tongue-in-cheek):

Number of terrorist attacks by Islamic radicals on Spain since March, 2004 --
i.e., the last 5 years: none. Using the prevailing media-logic applied to Bush's counter-terrorism policies such as torture and Guantanamo (i.e., if a country is attacked by Terrorists, its Government then does X, and there are no Terrorist attacks for some period of time thereafter, then that is "proof" that "X stops Terrorism"), I believe these events in Spain constitute proof that the way to stop Terrorism and to keep the citizenry safe is to stop invading and occupying Muslim countries and take accused Terrorists and put them on trial with full due process rights before putting them in cages for life. After all, that's what Spain did, and there's not been another Terrorist attack for five years. Therefore, those policies have kept the Spanish people safe.

Cheney comment:

When we get people who are more concerned about reading the rights to an Al Qaeda terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry.

Let me alleviate your worries Mr. Cheney. President Obama, his administration and people like myself aren't concerned with reading them their rights. I haven't seen anyone suggest we read Miranda rights to any of the detainees. However, we are concerned with an unchecked executive declaring people "enemy combatants," holding them indefinitely and not giving them judicial review. Federalist 84 states, "the practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instruments of tyranny." We simply want a proceeding to make sure we are actually detaining terrorists instead of innocent people. The recent Boumediene ruling reinforced one of the most basic and fundamental rights of habeas. We aren't concerned with hurting the feelings of terrorists, we stand for restoring constitutional principles that have their origins in the 13th Century.

Cheney comment:

At least 61 of the inmates who were released from Guantanamo during the
Bush administration — that’s about 11 or 12 percent — have gone back into the
business of being terrorists.

No, you are wrong. Secretary Gates himself has debunked this figure along with a prominent study by Stanford School of Law Professor Mark Denbeaux, where Gates says the rate is closer to 4-5%.

Cheney comment:

The 200 or so inmates still there, he claimed, are “the hard core” whose “recidivism rate would be much higher."

I'm skeptical that Dick Cheney really knows much about the remaining GTMO detainees. Last week the press reported that the files on the detainees were a) non-existent or b) missing. If the previous administration didn't even take the time to create files on these detainees, then how can one be sure that they are the hard-core terrorists? Especially when he previously asserted that all detainees were dangerous terrorists; yet hundreds have been released without charge and others have been proven to be innocent. All I ask for is that we simply determine if they should be detained in the first place.

Cheney comment:

If you release the hard-core Al Qaeda terrorists that are held at Guantanamo, I think they go back into the business of trying to kill more Americans and mount further mass-casualty attacks, he said. If you turn ’em loose and they go kill more Americans, who’s responsible for that?

This is a straw-man. No one is advocating that we simply release hardened terrorists. We just ask that we make sure they are terrorists in the first place. If they are terrorists, then we should absolutely imprison/execute them. However, Cheney ignores the fact that the war in Iraq, Abu Gharib and torture in general has been the #1 recruiting tool for terrorist organizations. There is more Al Qaeda in Iraq now than before we invaded, Iran has become the regional power and there is the little problem of breaking the law. Gee, who is responsible for that Mr. Cheney?

Cheney comment:

Is that really a good idea to take hardened Al Qaeda terrorists who’ve already killed
thousands of Americans and put ’em in San Quentin or some other prison facility where they can spread their venom even more widely than it already is?

I can't call it a bad idea because we have been doing just that for years without any escapes, terrorist attacks on the jails or venom spreading problems. Finally, and I'm not downplaying how dangerous terrorists are, but the terrorists that have already killed thousands of Americans are already dead - they died on 9/11. But yes, I do concede that terrorists are capable of killing thousands of Americans, yet I don't see why that should prohibit us from placing them in domestic jails. Finally, the primary reason Gitmo was established wasn't because we were scared of terrorists escaping. It was established because the Bush Administration believed the geographic location of of the prison in Cuba was beyond the reach of U.S. courts. We all know how well that plan worked out.

I still believe that terrorism is one of the most serious threats we face - and will face for some time. However, I strongly disagree with Mr. Cheney on how we should deal with that threat. I do not believe it is worth throwing away our Constitutional principles to try and secure our safety. A police state would guarantee our safety, but at what cost to our liberty? I'll end with an excerpt from the Boumediene opinion.

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.

The Beginning of the End for Authorized Torture Part 2

Obama's selection of Leon Panetta has been both hailed and criticized by members of both parties. If nothing else, a non-partisan pick is an encouraging sign. However, I just wanted to pass along this article by Panetta himself written in the Washington Monthly.

Lengthy Preview:

If torture can stop the next terrorist attack, the next suicide bomber, then what's wrong with a little waterboarding or electric shock? The simple answer is the rule of law. Our Constitution defines the rules that guide our nation. It was drafted by those who looked around the world of the eighteenth century and saw persecution, torture, and other crimes against humanity and believed that America could be better than that. This new nation would recognize that every individual has an inherent right to personal dignity, to justice, to freedom from cruel and unusual punishment. We have preached these values to the world. We have made clear that there are certain lines
Americans will not cross because we respect the dignity of every human being. That pledge was written into the oath of office given to every president, "to preserve, protect, and defend the Constitution." It's what is supposed to make our leaders different from every tyrant, dictator, or despot. We are sworn to govern by the rule of law, not by brute force. We cannot simply suspend these beliefs in the name of national security. Those who support torture may believe that we can abuse captives in certain select circumstances and still be true to our values. But that is a false compromise. We either believe in the dignity of the individual, the rule of law, and the prohibition of cruel and unusual punishment, or we don't. There is no middle ground

It's about time we have someone willing to stand up to the lawlessness of the Bush Administration and end the immoral and illegal practice of torture.

The Bush Legacy

Torture and the height of fiscal irresponsibility.

The approved use of torture has never been a part of American history until Bush authorized its use against detainees in violation of U.S. and international law. If you want to know the last time a government of ours has used torture, you will have to go back over 500 years to the Star Chamber in Britain.

Here are some figures on Bush's spending:

The result of deficit spending is debt. When President Bush took office, the national debt was $5.7 trillion. Now it is $10.6 trillion -- and Congress voted in October to raise the debt ceiling to $11.3 trillion, the seventh such hike since President Bush to office and the second since last July. If, as is quite likely, we reach the new ceiling by January 20, the outgoing President will have managed to amass more debt than all of his predecessors combined.

Is there any acceptable excuse for either? Total and complete government failure.