Monday, February 22, 2010

Intellectual Dishonesty, John Yoo and the Nature of Reasoning

Reasoning cannot be bent into any shape at will, despite sophomoric claims to the contrary. Reason pushes back, urging us toward more sensible conclusions and away from less sensible ones, and resisting our efforts to make of it what we will. But reason's powers over us are far from perfect, and we can resist its influence if we so choose--and we often do. Reason is, in the short term, frequently no match for the human will. Although most of us cannot simply and directly will ourselves to believe that black is white, or that 2+2=3, we do not ordinarily fight reason in such direct ways. When we want to believe something contraindicated by reason, we skulk around and nip and tuck and spin and massage the data until we can kinda sorta make the evidence look like we want it to look. When we're thinking about something complicated and interesting, there's usually enough nuance and complexity that we have a lot to work with. Squint and tilt the thing, talk yourself into ignoring this or that point, exaggerate the strength of the evidence over there--you know how to do it.

There is, perhaps, no more important point to learn than that it is almost always possible to cheat when we reason. Intellectual dishonesty is always an option. If we are clever enough and dishonest enough, we can put together a minimally convincing argument for just about anything. And minimally convincing is all it takes if one wants to believe...and is short on scruples.We can usually fool ourselves if we want to; and that is why good reasoners--honest reasoners--minimize the role of their own will when they reason, allowing themselves to be guided by their logical conscience, the voice of which is sometimes every bit as weak and hard to discern as the voice of our moral conscience sometimes is. (This is one of the lessons Charles Sanders Peirce had to teach us, though the point is not unique to him.)

None of this is new. These are pervasive facts about the human condition.

Yoo and Bybee's sophistries are just the most recent manifestation of the particular form of this particular form of human evil and irrationality--sophistry, intellectual dishonesty, bullshitting. It's a pity there's no logical hell for people like them to rot in.


Blogger The Mystic said...

Interesting post. Mind if I ask what, precisely, you think Yoo's errors in judgment were? Clearly you think he's a pretty huge piece of crap if you hope he rots in eternal damnation.

I've been interested in the whole DOJ debacle (although not enough to follow it as diligently as one might hope to) ever since I endeavored to understand Yoo's arguments in favor of the executive branch's ability to order torture to be carried out even if other branches of government explicitly forbid it.

Do you think that he's taking the idea of the Executive branch's wartime powers to an inappropriate extreme? If so, what reason do you have for believing the extreme end to which he carries the powers of the Executive branch is wrong?

It seems to me that one might defend Mr. Yoo by pointing out that, while he clearly seems to be arguing that the president CAN do anything he wants in a time of war, he's not necessarily arguing that he should.

So, where do we look for some sort of precedent regarding the limits of the powers of the Executive branch during a time of war? Is there some sort of direct contradiction of Yoo's arguments that we could find, or do we need to generate our own arguments against his? If the latter, I mean, I'm not Constitutional scholar, and it seems to me like we might want to requisition the aid of one.

Know anyone?

5:15 PM  
Blogger Winston Smith said...

Well, you've read the memos, right?

9:29 PM  
Blogger The Mystic said...

I read a large portion of one of them, but I can't recall which one.

If there's some obvious, easy point I'm missing, feel free to inform me in the most humiliating way possible, if necessary. I really just don't know what the argument is against Yoo's claims. I know from a moral standpoint why his claims suck, but not from a legal standpoint, and like I said, it seems the morality of the situation wasn't really the question he was answering.

4:19 PM  
Blogger Winston Smith said...

Well, one of my many reactions here is rather like yours. That is: what we really need are the best legal minds to go over this with a fine-toothed comb and give their opinions. But this has been done, and the conclusion is: Yoo was either so intellectually dishonest as to commit something like malpractice, or he was almost too close to doing so to tell the difference.

Which is exactly my reaction when reading the memos, and I'm surprised it isn't yours. He's straining so hard to reach what is clearly a fore-ordained conclusion that it's nauseating.

Now, the arguments probably deserve to be gone through one-by-one. I've thought of doing it here, but then thought: well, since it's already been done
here and, perhaps more importantly, here.

5:11 PM  
Anonymous Lewis Carroll said...

Not only is there ample evidence of first order crimes like the violation of the Convention Against Torture, to which the US is a signatory and violation of Title 18, Section 2340 of the US criminal code (read The Dark Side for voluminous evidence of this), but there is also ample evidence of conspiracy and multiple ethics violations, as well as mens rea (e.g. deleted emails):

8:42 AM  
Blogger Jim Bales said...

The Mystic asks WS "If there's some obvious, easy point I'm missing, feel free to inform me ..." While I am not WS, I would point anyone seeking an answer to this question to Brad DeLong's letter to his Chancellor at Berkeley. DeLong cites four reasons for dismissing Yoo from his professorship at Berkeley, despite DeLong's strong support for the academic freedom of tenured faculty.

(If you follow other, related, posts by DeLong, you will find that he bases his statement that the Youngstown case is an "essential part of any good-faith analysis of the war powers of the president" upon the considered opinion of experts in constitutional law, not upon DeLong's expertise as an economist!)

First. ... In his Office of Legal Counsel opinions on the commander-in-chief powers of the president that concluded the president has a legal right to order members of the U.S. armed forces to violate the Geneva Conventions to which the United States is a party and torture prisoners, Yoo failed to make any reference to the Korean War case of Youngstown, an essential part of any good-faith analysis of the war powers of the president. Yoo's failure is, I believe, a serious breach of professional ethics--misconduct in failing to fulfill his professional duty to provide his clients with a complete and truthful statement of the law. Writing legal arguments that flatly ignore controlling precedent is misconduct.

Second, ... I believe that the argumentative omissions and misrepresentations in the Torture Memo--the failure to meet the standards of practice required by the legal profession--amount to scholarly misconduct of a level equivalent to that of falsifying experimental results.

Third, Professor John Yoo was not just an advisor, informing ... the "deciders" ... his view of what the law was. Professor John Yoo was an implementer. The decision had already been made to torture detainees of low intelligence value and little culpability. Attorneys at the CIA and the Department of Defense were protesting that this policy of routine torture was illegal: contrary to U.S. and international law and treaty, and exposed them to potential criminal sanctions. Professor John Yoo was asked not to provide an opinion but to write a document to override objections to an already settled-upon course of action. He thus made use of the powers of the Department of Justice within the executive branch to silence lawyers who had correctly evaluated the legal framework ... Under treaties that are the law of the land here in the United States, an act of legal advice that materially contributes to the perpetration of acts of torture and cruel, inhuman, or degrading treatment is a criminal act if the doers knew that their conduct could possibly and forseeably lead to the commission of a crime. There is no requirement that they have known the exact specific torture that was to result.

I hope this helps illuminate the substantive arguments against Yoo’s claim.


8:35 AM  
Blogger Jim Bales said...

Following up on my prior comment: DeLong’s letter addresses the issue of academic freedom as well. After itemizing the concerns, he continues:

Universities exist so that skilled and experienced experts can say what they think and publish what they believe. If they are not in fact skilled and experienced experts--if their analyses are incompetent--that is not their fault, but is rather the fault of the university that gave them a place. And as long as they are saying and writing and publishing what they believe, they have a right to membership in and protection by the university. ... [For Example,] Professor Ernst Kantorowicz ...[resigned] from the Berkeley faculty in protest at being asked to sign a loyalty oath. [He] feared Marxist revolution, and defended the constitution of the United States against all enemies foreign and domestic. But he believed that any Berkeley faculty member whose intellectual inquiries led him or her to conclude that a Marxist revolution would be desirable and that the government of the United States should be overthrown by force and violence should be allowed to say so--and not be subject to pressure or threats of any kind to discourage him or her from saying what he or she believed.

But there is a problem with Professor John Yoo. The problem is that John Yoo is a weathervane. Yoo's Torture Memo of 2003 says that President Bush's commander-in-chief power is without limit save for impeachment itself--that no matter what treaties the United States has signed or laws the United States congress has passed it is unlawful for any member of the United States armed forces to disobey a presidential order to torture prisoners. But only three years before Professor Yoo sang a very different tune. In a 2000 article, "The Imperial President Abroad" , Professor John Yoo writes that President Clinton's commander-in-chief power is crabbed and restricted. Yoo states that President Clinton has exceeded their bounds: "accelerat[ing] disturbing trends in foreign policy that undermine democratic accountability and respect for the rule of law." How has he exceeded the bounds of his powers as commander-in-chief?

- By "render[ing] the [Congressional] War Powers Resolution a dead letter..."

- By using "troops... not to achieve total victory... but... more limited goals...whose long-term benefits for American security are unclear..."

- And by placing "American troops... under... non-American...commanders... threaten[ing] that basic principle of government accountability... [for] foreign officials have no obligation to pursue American policy, nor do they take an oath to uphold the Constitution..."

That Professor John Yoo could write "The Imperial President Abroad" in 2000 and the "Torture Memo" in 2003 demonstrates that he does not believe what he writes--at least not for any meaning of "believe" that any of us would recognize.

Academic freedom is a powerful and important principle. But I do not believe it provides a shield for weathervanes. I do not believe it shields those whose work is not the grueling intellectual labor of the scholar and the scientist but instead hackwork that is crafted to be convenient and pleasing to their political master of the day.

In short, having claimed in 2000 that the war powers of the President are insufficient to order US troops to serve under non-US commanders*, Yoo cannot in good faith argue in 2003 that the War Powers of the President sufficient to order US troops to torture prisoners in violation of the Geneva Convention (which, according to Article VI of the Constitution, is the Supreme Law of the Land).

* The US troops serving in Europe during WWII under the command of Lord Montgomery would have been surprised by Yoo’s claims here!

8:52 AM  

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