The progressive community seems generally disappointed by Jon Stewart's interview with "torture memo" author, John Yoo on "The Daily Show" on Monday night. It serves as sorry commentary on our political culture that we have Stewart to thank, rather than a political reporter from the mainstream press, for subjecting Yoo to the toughest questioning.
But at this point frustration should be directed towards our government, which has failed to release the long-awaited Office of Professional Responsibility (OPR) report on the conduct of the "torture memo" authors or launch a full-scale inquiry into detainee torture and abuse - thereby ceding the political dialogue to torture author John Yoo and abdicating its legal obligation to fully investigate incidents of torture.
So long as the Justice Department continues to sit on the long-ago written OPR report - which Attorney General Eric Holder testified would be released by the end of November 2009 - the American public lacks the factual record documenting what led government lawyers to authorize the use of torture. Transparency and accountability are the foundations of the rule of law in a democratic society, but the Obama Administration has so far failed to fulfill its promises of delivering either. Rather, the administration has come to the defense of John Yoo in a lawsuit in federal court, voluntarily filing a brief on Yoo's behalf to shield him from liability to a detainee allegedly tortured as a result of Yoo's memos.
Now, instead of receiving and reviewing the facts about the allegedly unethical and extralegal conduct of Yoo and his torture memo colleagues, we're exposed only to Yoo's self-interested spin as he promotes his new book on television and around the country. When asked about the "torture memos" by someone like Jon Stewart, Yoo is able to shape the conversation and revert to his historical tale about the scope of executive power, a backhanded way of justifying his and his colleagues' behavior in the wake of 9/11. He goes mostly unchallenged when he excuses his "torture memos," which have been lambasted as sloppily written and legally indefensible, by saying that the question of torture had never been defined or addressed in American law before.
Except that's simply not true - the U.S. military regulations clearly spell out the definition of torture. The military law of armed conflict training clearly spells out the definition of torture. And numerous federal court prosecutions, post-war tribunals, and court-martials spanning the last hundred years have addressed the practice of waterboarding, but Yoo failed to cite any of this relevant precedent in the "torture memos." When asked why not at an event at the American Enterprise Institute on Wednesday, Yoo maintained that what some war criminals did during World War II went well beyond anyone's definition of torture and were a far cry from what Yoo described as the "discrete and small number of cases" during the Bush Administration. Waterboarding a detainee 183 times may be considered 'discrete' as in 'finite,' but under no circumstances can it be considered a small number. But as long as Yoo is the only person speaking publicly about the "torture memos," and as long as the facts of the OPR report remain buried somewhere in the Justice Department, Yoo's distorted narrative gains more and more credence. He has even been sure to tell The Daily Show and The New York Times that he never even met George Bush, subtly deflecting the leaked news reports that the White House improperly interfered with the independent judgment of DOJ lawyers in the production of the "torture memos."
Of course, the beauty of American democracy is that John Yoo is free to speak his mind about interrogation practices and executive power. But Yoo's contribution to the marketplace of ideas now gets more weight than it deserves because there has not been a thorough public accounting of what led our country to torture. A crucial first step in transparency and accountability is releasing OPR's findings as to whether Yoo and his colleagues committed ethical violations when writing the "torture memos." In the meantime, all of us -- whether members of the current administration or ordinary citizens subject to security risks and a culture of fear - have much to lose in a political dialogue whose terms have been set by John Yoo.
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