In an interview with former deputy assistant attorney general John C. Yoo on the April 7 edition of Fox News' Special Report with Brit Hume about a federal court challenge to the Bush administration's handling of so-called "enemy combatants," Fox News Washington managing editor Brit Hume presented Yoo as an impartial legal expert. In fact, Yoo was a primary architect of the exact policy under review in the case that Hume invited him to discuss on the program. But Hume did not even identify Yoo, now a law professor at the University of California, Berkeley, as a conservative, introducing him merely as "law professor John Yoo of the University of California at Berkeley" and "a former deputy assistant attorney general in the Justice Department's Office of Legal Counsel, where he served from 2001 to 2003."
Hume's interview with Yoo focused on a recent appeal of a November 8, 2004, decision by U.S. District Court Judge James Robertson in the case of Salim Ahmed Hamdan, who admits to being Osama bin Laden's personal driver but claims he was not involved in terrorism. Robertson ruled that the military tribunal under which the Pentagon planned to try Hamdan -- along with hundreds of other suspected terrorists captured in Afghanistan and currently held in Guantánamo Bay, Cuba -- violated Hamdan's rights under the Geneva Conventions. Rejecting the Pentagon's argument that Hamdan is an "enemy combatant" entitled to no protection under the conventions, Robertson ruled:
[U]nless and until a competent tribunal determines that petitioner is not entitled to the protections afforded prisoners-of-war under Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, he may not be tried by Military Commission for the offenses with which he is charged. [p. 5].
Robertson reasoned that since Hamdan has had access to no such tribunal to determine his status under the Geneva Conventions, and since the Military Commission, which the Pentagon established to try suspected terrorists for war crimes, violates the conventions' requirement that POWs be tried "according to the same procedure as in the case of members of the armed forces of the Detaining Power," Hamdan cannot be subject to the Military Commission [p. 14]. (This commission severely limits the rights of defendants. In particular, Robertson noted that a defendant lacks the "right to be present at every phase of his trial and to see all the evidence admitted against him" [p. 27].)
Hume let Yoo criticize Robertson's ruling that Hamdan and other detainees are subject to the Geneva Conventions. But he never even hinted that Yoo's criticism was not a dispassionate legal analysis, but rather a defense of Yoo's own legal reasoning. Indeed, Yoo was largely responsible for the legal reasoning underlying President Bush's February 7, 2002, decision to exempt suspected Al Qaeda detainees from the Geneva Conventions. Less than a month earlier, on January 9, 2002, Yoo distributed a memo making precisely the argument that Robertson rejected in the Hamdan case: that the president may simply declare that the Conventions do not apply to an entire class of detainees.
Neither Hume nor Yoo provided viewers with a counterargument to the Pentagon's argument in the Hamdan case, originally crafted by Yoo, despite the fact that many experts in international law and even high-ranking officials within the Bush administration have vigorously disputed it. In a February 2, 2002, memo to then-White House counsel Alberto R. Gonzales, State Department legal adviser William H. Taft IV wrote that "a decision that the Conventions do apply is consistent with the plain language of the conventions and the unvaried practice of the United States in introducing its armed forces into conflict over fifty years" and that "a decision that the convention apply provides the best legal basis for treating the Al Qaeda and Taliban detainees in the way we intend to treat them." Then-Secretary of State Colin Powell noted a week earlier that a decision not to apply the convention would "reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops."
Expert legal opinion outside the Bush administration also directly contradicts the arguments Yoo made, unrebutted, on Special Report. Human Rights Watch wrote in a 2002 "Background Paper on Geneva Conventions and Persons Held by U.S. Forces" that "combatants captured during an international armed conflict should be presumed to be POWs until determined otherwise" and "No detainee can be without a legal status under the Conventions." Amnesty International similarly noted in 2004 that "[t]hose captured in the armed conflict in Afghanistan prior to June 2002 ... should have been presumed to be prisoners of war unless and until a 'competent tribunal' determined otherwise, as required by the Third Geneva Convention."
In addition to his role in the contentious legal debate over the Geneva Conventions, Yoo was also reportedly a primary author of the infamous August 2002 "torture memo," which argued that the president's authority as commander-in-chief allows him to order torture under certain circumstances. The memo was almost universally condemned by legal scholars, and even the administration eventually repudiated it. Though the memo, which concerned the legal boundaries governing detainee interrogations, was signed by then-assistant attorney general Jay S. Bybee (who is now a federal judge), The New York Times reported on January 5 that in fact Yoo "wrote much of the memorandum." (The Associated Press also reported that Yoo "helped write the key memo.")
In a June 25, 2004, article, the Times quoted multiple legal scholars blasting the legal reasoning of the memos as "abominable," "utterly unjustifiable," and "embarrassingly weak, just short of reckless." Eventually, both the White House and the Justice Department repudiated the memo. The Washington Post reported on June 23, 2004:
President Bush's aides yesterday disavowed an internal Justice Department opinion that torturing terrorism suspects might be legally defensible. ... Responding to pressure from Congress and outrage around the world, officials at the White House and the Justice Department derided the August 2002 legal memo on aggressive interrogation tactics, calling parts of it overbroad and irrelevant and saying it would be rewritten.
Progressive media watchdog Fairness and Accuracy in Reporting has conducted three separate surveys of the guests in Special Report's solo interview slot, which show that guests are overwhelmingly conservative and Republican. Media Matters for America has noted that on the rare occasions when a progressive does appear in the slot, the topic of the interview is almost always an issue on which that person's view happens to fall, uncharacteristically, on the conservative side. Yoo's appearance took this pattern beyond mere imbalance; rather than merely offering a single conservative perspective on a controversial conservative policy, Hume invited an author of such a policy to provide unrebutted "analysis" of a court challenge to it.