OpEdge: The Torture Man Returns

by Marc Jampole

IN ITS CONTINUING attempt to characterize as illegal the Trump Administration’s ban on immigrants and refugees from seven Muslim countries, the New York Times has either allowed itself to be manipulated by a long-time supporter of torture or doesn’t really mean when its editors frequently write that the Times thinks torture is illegal.

How else to explain why the Times published an opinion piece by torture advocate John Yoo?

Yoo was the George W. Bush lawyer who wrote the infamous Justice Department memo that said, among other things, that:

• Waterboarding is not torture
• Torture does not begin until injury to a vital organ
• If the President of the United States orders it, it isn’t torture
• The President is not bound by any international agreements regarding torture.

In his article titled “Executive Power Run Amok,” Yoo goes over some of the actions Trump has already taken that Yoo believes are unconstitutional, such as the orders to build a wall, pull out of the North American Free Trade Agreement, fire acting attorney general Sally Yates, and halt immigration from selected countries.

The American Enterprise Institute scholar begins his article by stating the obvious: that he is a strong defender of the power of the executive. He explicitly states that he feels himself the heir of Alexander Hamilton in advocating the “unitary executive,” which essentially means that the Constitution grants the president all powers not expressly given to other branches of the government. Using himself to demonstrate how truly unique Trump’s power grab has been, he writes, “But even I have grave concerns about Mr. Trump’s uses of presidential power.”

Yoo, and the Times, are both saying that even this extreme advocate of presidential power thinks Trump has overstepped the bounds of presidential power. But the power Yoo gave the president was to approve something illegal and immoral, and that’s the problem. By presenting Yoo as yet another expert in presidential power who says Trump is acting against the constitution, the Times gives de facto approval to Yoo and the actions he advocated. Here is the key statement in Yoo’s latest attempt at rehabilitating himself by being a mainstream expert on Constitutional law:

As an official in the Justice Department, I followed in Hamilton’s footsteps, advising that President George W. Bush could take vigorous, perhaps extreme, measures to protect the nation after the Sept. 11 attacks, including invading Afghanistan, opening the Guantánamo detention center and conducting military trials and enhanced interrogation of terrorist leaders. Likewise, I supported President Barack Obama when he drew on this source of constitutional power for drone attacks and foreign electronic surveillance.

Note all the deception in this paragraph: Like others in the Bush II administration, he refers to torture as “enhanced interrogation.” He equates torture with invading Iraq and opening a detention center as “extreme” measures taken to protect the country. He calls Gitmo a “detention center,” which kind of misses the point that torture occurred there. He connects his advice that torturing is okay to constitutionally questionable actions Obama took.

All these things are okay, Yoo proclaims, but not what Trump is doing. By accepting Yoo’s premise that action A and B were okay but actions C and D are not, the New York Times accepts Yoo’s assertion that torture is legal if the president orders it. Yoo did not write, “What I recommended was illegal and so are Trump’s actions.” No, what he is saying is he may have taken it to the extreme, but he remained within the lines, whereas Trump has crossed over into illegality.

This article is not the first time since the revelation of Yoo’s central role in justifying the establishment of a torture gulag that the Times has given him a chance to enhance his reputation by appearing as an expert in its pages. Why does a supposedly liberal newspaper continue to participate in the rehabilitation of this intellectually bankrupt individual? Are the Times editors that stupid that they don’t see they are being used? I know politics makes strange bedfellows, but rightwing, centrist and leftwing scholars, pundits and politicians are falling over themselves to distance themselves from Trump’s obnoxiously racist and stupidly counterproductive immigration ban. Couldn’t the editors find someone else for their daily “Trump is a dangerous ignoramus” guest column?

Marc Jampole is author of Music from Words (Bellday Books, for sale at our Pushcart). A former television reporter, he is a member of the Jewish Currents editorial board, blogs regularly (“OpEdge”) at our website, and writes frequently for our magazine.