Why Jon Stewart failed to make John Yoo squirm:
But was "nailing" him ever a possibility? Yoo has slipped the grasp of many critics through the years. Part of the reason is his demeanor: calm, good-humored, endlessly patient. It throws people, especially those expecting a younger, Korean Dick Cheney.
But it's also Yoo's rhetorical skill. Stewart failed to "nail" Yoo not because he wasn't prepared. (Although perhaps Stewart could have quoted some of the harsher memos.) He failed because Yoo is a lawyer. The chief criticism against Yoo is that, as deputy assistant attorney general for the Office of Legal Counsel after 9/11, he gave the Bush administration legal cover to torture suspected terrorists. In a time of war, he wrote in what became known as the "torture memos," the president has expanded power to make decisions without congressional approval. When it comes to what's torture and what's not, he wrote, only treatment that inflicts suffering equivalent to organ failure "or even death" constitutes torture. In later interviews, he suggested that nothing—no law and no treaty—could stop the president from ordering torture if the circumstances required it.
Yoo wasn't advocating these techniques, he can say. He was simply answering the question of whether the Constitution allows the president to make these decisions in a time of war. Even if his interpretation of the law led to the use of these techniques, that was the decision of the person ordering them—not the person who interpreted the law as allowing them.