Category Archives: Informal Fallacies

Charles Krauthammer, Red Herring

Argumentum ad Farkam

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If you haven't seen Fark.com, you should take a look.  It's a kind of one-line news aggregator with one-word commentary: e.g., dumbass: Man insures his honeybees.  Often the observations on the events are hilarious.  But you wouldn't or shouldn't at least consider them serious news commentary.  But when it comes to the stimulus bill, worth something like a trillion dollars, this is the kind of discourse one is treated to.  Thus, Charles Krauthammer:

It's not just pages and pages of special-interest tax breaks, giveaways and protections, one of which would set off a ruinous Smoot-Hawley trade war. It's not just the waste, such as the $88.6 million for new construction for Milwaukee Public Schools, which, reports the Milwaukee Journal Sentinel, have shrinking enrollment, 15 vacant schools and, quite logically, no plans for new construction.

It's the essential fraud of rushing through a bill in which the normal rules (committee hearings, finding revenue to pay for the programs) are suspended on the grounds that a national emergency requires an immediate job-creating stimulus — and then throwing into it hundreds of billions that have nothing to do with stimulus, that Congress's own budget office says won't be spent until 2011 and beyond, and that are little more than the back-scratching, special-interest, lobby-driven parochialism that Obama came to Washington to abolish. He said.

Not just to abolish but to create something new — a new politics where the moneyed pork-barreling and corrupt logrolling of the past would give way to a bottom-up, grass-roots participatory democracy. That is what made Obama so dazzling and new. Turns out the "fierce urgency of now" includes $150 million for livestock (and honeybee and farm-raised fish) insurance.

Most of Krauthammer's piece is an argumentum ad Obamam–anything short of Jesus spells failure for the politics of hope, etc.  But the evidence for the old-school hope-crushing ways of Obama (with respect to the stimulus) from (a now suspicious of a fear-mongering government) Krauthammer is a couple of miniscule farkish examples: Honeybee insurance!  

It seems self-evident that there are philosophical differences between the two parties on the nature of the stimulus package–after all, ipse dixit!–and perhaps the readers of the Post could be favored with a discussion of those differences, rather than a series of childish and context-free examples of government waste and feigned disappointment at Obama's not being Jesus.  

Michael Gerson, Straw Man

For Some

Michael Gerson, Evangelical Christian who does not care even to mention the predictable and extensive collateral damage in Gaza, bravely faces down a straw man argument, and loses.  He writes:

While Israel's military operations didn't accomplish everything, they also didn't accomplish nothing. But the "force doesn't solve anything" argument runs so deep for some that real-world outcomes matter little. Military action by Israel is always counterproductive, because Israel must eventually negotiate with its most bitter enemies. The sooner the better.

Call it the Fallacy of the Eventual Answer. It is true that the solution to the Israeli-Palestinian conflict is two states living side by side in peace. But it is false to say that the fight against terrorists and the security of Israel have no part in achieving that goal.

Yes, of course there are pacifists, and of course there are SOME who never advocate military action, and of course military action sometimes achieves things which peaceful negotiation cannot (assignment: name three).  The question at hand, however, SOME would say, is whether this particular military action, with its costs in civilian casualties in Gaza and so forth, has strengthened Israel's ultimate position, increased its security, laid the groundwork for a durable peace, and so forth.  Maybe it has, maybe it hasn't.  But that's rather another discussion than the one Gerson wants to have here. 

But more fundamentally–and this is the loss to the straw man part–the straw man suggests a military action may not be the answer, but that does not entail that Israel (1) not fight terrorists; or (2) have no security.  It's military action, not security, that's at issue. 

Accident, Argument Analysis, Fallacies and Other Problems, General discussion, Informal Fallacies, Jonah Goldberg, Paul Krugman

I’m not an economist

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Since I'm not an economist, I can't easily judge the content of the Krugman's arguments against anti-stimulus arguments. But what makes Krugman stand head and shoulders above the rest of his fellow pundits, is that he makes arguments.

Next, write off anyone who asserts that it’s always better to cut taxes than to increase government spending because taxpayers, not bureaucrats, are the best judges of how to spend their money.

Here’s how to think about this argument: it implies that we should shut down the air traffic control system. After all, that system is paid for with fees on air tickets — and surely it would be better to let the flying public keep its money rather than hand it over to government bureaucrats. If that would mean lots of midair collisions, hey, stuff happens.

The point is that nobody really believes that a dollar of tax cuts is always better than a dollar of public spending. Meanwhile, it’s clear that when it comes to economic stimulus, public spending provides much more bang for the buck than tax cuts — and therefore costs less per job created (see the previous fraudulent argument) — because a large fraction of any tax cut will simply be saved.

This suggests that public spending rather than tax cuts should be the core of any stimulus plan. But rather than accept that implication, conservatives take refuge in a nonsensical argument against public spending in general.

Now to be fair, we can criticize the argument in a couple of ways–first, air traffic control involves a task of coordination and it isn't clear that priming the economic pump does in the same way. It isn't just that centralized air traffic control is more efficient than a "free market" equivalent. So we might ask whether the analogy holds.

Second, we might ask whether the claim that "taxpayer are the best judges of how to spend their money" (see last paragraph here) implies that all public spending should be replaced with private spending. A more moderate position might be to argue that when it comes to something like economic stimulus this principle holds true. However, Krugman is arguing against some of the simplistic and fallacious dismissals of stimulus spending, and so aims to free the discussion for substantive arguments from economists and policy makers rather than from the ideological hacks.

By the way, what is the fallacy in the argument he is attacking? Is it a fallacy? Accident, perhaps? Seems to involve the universalization of a principle that probably holds true in many cases (better to let me choose whether to spend my money on a Squeezebox Duet rather than a Sonos System, than have the government choose for me. Maybe something like "When there's no compelling public need, it is preferable to allow citizens to choose how to spend their money than have government choose." What counts as a compelling need is a political question–in the case of the stimulus plan Krugman makes the case that the public need is stimulating the economy and government spending is just much more effective than private spending in doing that.

The "fallacy" seems to work by arguing:

1. We accept principle x.

2. Principle x entails we should not do y.

3. Therefore we should not do y.

However, principle x is either a) not accepted as stated or b) when qualified does not apply to case y.

1. It is wrong to kill.

2. If it is wrong to kill then we should not use lethal force to defend ourselves.

3. Therefore we should not use lethal force to defend ourselves.

 But, either a) it is not wrong (always to kill) or b) it is only wrong to kill without justification.

The fallacy seems to arise when the principle is taken to be persuasive because on the surface it seems true.

General discussion, Michael Gerson, Straw Man, Things that are false

Childish Things

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Michael Gerson, George W. Bush's former speechwriter, reflects on the meaning of the inauguration.  First, he sees a double standard in comparing the hypothetical (liberal!!) media coverage of John McCain and George W.Bush versus the actual media coverage of Barack Obama.

This inaugural week included a massive achievement in American racial history, an outpouring of civic participation and a gracious executive transition on both sides. But amid the celebration one could detect double standards all around.

If the outcome had been different in November, would John McCain's inaugural coverage have been quite as worshipful as President Obama's — during which the "shiver" up the leg of journalists finally became full-fledged convulsions? Why were the biblical references in Obama's inaugural speech not considered a coded assault on the Constitution, as George W. Bush's were sometimes viewed? And I can only imagine the cascades of hilarity and derision that would have come had Bush messed up the inaugural oath, no matter the cause.

But a sense of victimhood is not attractive from any political perspective. And so, in honor of the "era of responsibility," I put aside such childish things.

The comparison is absolute crap, to put it mildly.  Gerson ought to go back to the coverage of most of Bush's tenure in office for a nauseatingly sycophantic and incurious media, eager to repeat the lamest of his lines, to faun over his heroic landing on an aircraft carrier, his plain-spoken, I-want-to-have-a-beer-with-him (but not that effete, fat, ambitious exaggerator Al Gore) qualities. 

It would have been far less childish of Gerson had he simply not mentioned this things at all.

Now on to Gerson's other childishness.

Any American with a sense of history should feel that sense of awe. Minorities of every background must feel it most deeply. As the father of multiracial children, I feel it deeply enough.

But there was a second, less sympathetic, Obama enthusiasm at work. In a Newsweek essay, Michael Hirsh mentioned Obama's racial achievement. But he went on to say that "there's something else that I'm even happier about — positively giddy. . . . What Obama's election means, above all, is that brains are back." Hirsh declared that the Obama era means the defeat of "yahooism" and "jingoism" and "flag-pin shallowness" and "religious zealotry" and "anti-intellectualism." Obama is a "guy who keeps religion in its proper place — in the pew."

I only wish what Hirsch said were true!  The "flag-pin shallowness" and the other things, however, are in part at least media-driven narratives that won't go away anytime soon.  But aside from that Gerson cannot possibly be serious, the candidate for Vice President on the Republican side openly questioned whether Obama, with his effete university pedigree and tenuous association with a former domestic terrorist (and radical African American preacher), loved America, or was from "real America."  Notice that this wasn't the fringe crazies on Fox News, or Rush Limbaugh, it was the candidate whom Obama defeated in the Presidential election. 

Anyway, Gerson will have forgotten this, because he'll seize upon the remark about religion and accuse Hirsch of arrogance.   

There is much to unpack here. Can it be that Hirsh is "even happier" about the advance of liberal arrogance than he is about the advance of racial justice? And would the civil rights movement have come at all if African American religion had stayed "in the pew"? But suffice it to say that some wish to interpret the Obama victory as a big push in the culture war — as an opportunity to attack their intellectual and cultural "inferiors."

Cheering that the era of Joe the Plumber, John McCain's ignorant and confused campaign prop does not make one guilty of "liberal arrogance."  Nor does cheering the arrival of a President with the pedigree of an intellectual.  Most of all, however, rejoicing at the political marginalization of the narrow-minded Christian zealots does not have anything to do with the civil rights movement.  To be against, in other words, one particularly virulent and ignorant brand of Christian fundamentalism having a role in shaping government policy does not mean one is against religion having any role at all in the private and public lives of citizens.  Those are really different claims–and "in the pew" is obviously a metaphor only the lack of charity or ignorant yahooism would interpret literally (and then radically misapply).  

This line, given the either-orness of the last administration is the kicker:

Most of us have witnessed this attitude, usually in college. The kids who employed contempt instead of argument, who shouted down speakers they didn't agree with, who thought anyone who contradicted them had a lower IQ, who talked of "reason" while exhibiting little of it. They were often not the brightest of bulbs. Most people recover from this childish affliction. Some do not.

You have got to be kidding me.  The People who employ contempt instead of argument and shout down people they don't agree with–or openly question their sanity, patriotism, honesty, sexuality, faith, and so forth–are not obviously the same people who praise the arrival of an intellectual President, who only nights before his inauguration sits down for a discussion with the opposition's leading "intellectuals."

Begging the Question, George Will

Inalienable

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Whatever one's view of gay marriage, one has to admit that many arguments in favor of it rest on some notion of basic rights.  Whether that claim is true is not my concern now.  However, in the interest of full disclosure, I think that it is.  Whatever one's conception of basic rights, in a constitutional democracy such as our own, such rights are guaranteed by the constitution's bill of rights at the federal level, and by state's constitutions at the state level.  The structure our constitutions guarantees that constitutional rights do not depend in the first instance on the whim of the people.  We cannot vote that some minority group be stripped of its constitutional rights.  Constitutional rights are guarantees, aren't they?  

Let's set the stage.  Here's aspiring legal scholar, George Will:

In November, 13,402,566 California voters expressed themselves for or against Proposition 8, which said that their state's Constitution should be amended to define marriage as a relationship between a man and a woman. The voters, confident that they had a right to decide this question by referendum, endorsed Proposition 8 by a margin of 52.3 to 47.7 percent

Well, that's the question isn't it–whether the voters were acting constitutionally (thinking you are, by the way, does not mean you are).  Do the voters get to decide which rights people have according to the constitution by constitutional referendum?  On the one hand, the constitution is malleable by referendum.  And good thing too.  But Will argues that this right has no boundaries.  But this power of referendum certainly cannot be infinite.  I mean, for instance, you can't have explicitly contradictory provisions.  That would mean legal chaos.  You cannot, in other words, answer every constitutional question by referendum.  This way we cannot have an election stripping Mormons of the right to vote, or women of the right to be physicists.  So, in other words, which rights are of this type is the question.  Does civil marriage constitute one such right?  Here's Jerry Brown (in the words of George Will):

Now comes California's attorney general, Jerry Brown — always a fountain of novel arguments — with a 111-page brief asking the state Supreme Court to declare the constitutional amendment unconstitutional. He favors same-sex marriages and says the amendment violates Article 1, Section 1, of California's Constitution, which enumerates "inalienable rights" to, among other things, liberty, happiness and privacy. 

And that's an interesting argument, I think.  If certain rights are inalienable, then it's constitutionally prohibited that they be alienable by referendum, even if that referendum was believed to be constitutional by the voters.  The proper place to answer such questions–that is, about the constitutionality of the questions–is also provided in our constitutions–the courts, whose job it is to interpret the law.  One needs generally to interpret documents whose meaning and provisions are sometimes unclear.  And this seems like an instance of that.  But not to George Will:

Brown's audacious argument is a viscous soup of natural-law and natural-rights philosophizing, utterly untethered from case law. It is designed to effect a constitutional revolution by establishing an unchallengeable judicial hegemony. He argues that:

The not-really-sovereign people cannot use the constitutionally provided amendment process to define the scope of rights enumerated in the Constitution; California's judiciary, although established by the state's Constitution, has the extra-constitutional right to supplement that enumeration by brooding about natural law, natural justice and natural rights, all arising from some authority somewhere outside the Constitution; the judiciary has the unchallengeable right to say what social policies are entailed by or proscribed by the state Constitution's declaration of rights and other rights discovered by judges.

What is natural justice? Learned and honorable people disagree. Which is why such consensus as can be reached is codified in a constitution. But Brown's reasoning would make California's Constitution subordinate to judges' flights of fancy regarding natural justice. Judges could declare unconstitutional any act of Constitution-revising by the people.

That's the constitutional role of the judiciary (as established by case law).  Their having this role does not mean the people of California are not "sovereign."  That misses the point of Brown's objection.  And it misses the point of our constitutional structure.  It's the constitutional job of the judiciary to interpret the law.  How do they do that?  You can't ask the law you're interpreting, because you have to interpret it.  What to do?  Antonin Scalia, for instance, uses a dictionary.  Clarence Thomas, get this, natural law–whatever that is.

Appeal to the People, Argument Analysis, Begging the Question, General discussion

Same sex marriage and begging the question

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This is a bit of a departure from our usual analysis of particular arguments in the media, but because these arguments are fairly common and because we've been hashing these issues out in the comments to the earlier post "5,000 Years," I thought I'd try to synthesize the analysis of the argument as I see it.

Is there a non-question begging (secular) argument for the following claim?

C: Same-sex relationships cannot be considered "marriage."

Setting aside certain circular arguments about tradition (like Rick Warren's which was originally being commented on), the best argument seems to rest on the premise:

P: A necessary condition of marriage is the biological possibility of procreation.

Here biological possibility has to be understood as satisfying the counter-factual condition:

BP: If the functional organs of procreation are working in a species typical way, procreation would be biologically possible.

This condition is meant to include infertile and older couples within the scope of the condition, while still excluding same sex couples. I am not, of course, endorsing this exclusion: the question is whether a good argument can be constructed for C, as a matter of logic, that could justify arguments against same-sex marriage. I am tempted to claim that there cannot be any such argument after considering the various arguments.

Because the argument is trading in essences and definitions it would seem to be deductive: That is, it argues for the impossibility of same-sex marriage by appeal to a definition/essence. It has the form of:

1. X is a necessary condition of Y.

2. Necessarily, Z does not have X.

3. Therefore, necessarily, Z is not Y.

Triangles must have straight sides. Necessarily, Circles do not have straight sides. Therefore, necessarily, circles are not Triangles. Or, Nougaty filling is a necessary condition of being a Three Musketeers bar. Necessarily, Toffee does not have a nougaty filling. Therefore, necessarily, toffee is not a Three Musketeer's bar.

As such this looks like a valid deductive argument. But, a critic might wonder whether P understood in the light of BP really says anything more the following implicit premise.

IP: Only heterosexual couples can be married.

If this is so, then the argument might reasonably be accused of begging the question. But determining when the question is begged needs to be handled carefully, since a begged question can always be resolved by appealing to some further argument that independently justifies the problematic premise.

So, the question then becomes, what independent reason can be provided for P/BP? What sort of "warrant" can be given to claim that marriage has an essential link to the biological possibility of procreation?

In the comments, we identified two distinct strategies:

a) Appeal to tradition/Generalization from past practices–this can range from some sort of descriptive anthropological claim, to some sort of generalization to a normative claim, or a most often a simple stipulation on the basis of past stipulation.

b) Appeal to social function of marriage as defining its essence (coupled with an argument that marriage is the best means for attaining the relevant goals).

It seems to me that (a) either begs the question if it appeals to tradition, or, fails to attain the universality that seems to be needed to underwrite P/BP (at most the generalization can show is that marriage has been understood to have an essential connection to the possibility of procreation, not that this is essential for it. And counter-examples are too many to make the universalization possible (old people getting married, infertile couples etc. And it's no good saying that marriage has just been socially constructed this way, since we are aiming for an essential connection.)

The appeal to tradition seems to me to beg the question insofar as it takes the following form: 

1.  Marriage has been understood (in the past) to require P/BP.

2. Therefore, P/BP

[I probably don't have the logic right here. I'm realizing as I write that I'm not quite clear on how "appeals to tradition" really work, though I think that they are typically bad arguments. I guess they're a sort of temporally dispersed ad populum.]

Even if we can avoid begging the question here, the problem with this argument is that insofar as it appeals to people's opinions about marriage, it relies on a convention, which doesn't seem to be able to underwrite a claim about essence. At most it underwrites a sort of stipulation which isn't adequate to the purposes of this argument.

The strategy of (b) fails for slightly different reasons. The argument seems to run something like this:

1. Marriages provide for stable procreative units.

2. Society has an interest in stable procreative units.

3. Therefore, Society has an interest in recognizing marriages that are means to stable procreative unit

and,

4. Therefore, Society does not have an interest in recognizing relationships as marriages that are not means to stable procreative units.

This is a fine argument as it stands, but it doesn't get close to showing that there is some sort of essential incoherence in the notion of a marriage for some other purpose (adoptive child-rearing for example). It needs to conclude something much stronger than this, something that would suggest that recognizing same-sex marriages is incoherent, since it aims at establishing P/BP. At most it has shown that from the perspective of society, whether there are same-sex marriages or not is a matter of ambivalence. I think typically the argument seems to succeed because it trades the elision of biological function and social function. A little dose of evolution seems to suggest that this necessity is somehow a species necessity, but I think those arguments are pretty empty. (That is, I don't think we can deduce the "right" social institutions from biology, though I certainly grant that there are lots of ways in which biological truths affect which institutions are desirable and which not). 

I'm not at all sure about much of this, and I'm sure there are strategies that I've missed. And certainly it is always open to the arguer to appeal to the Bible or personal communications with God to justify P/BP. But, as far as I can see, I cannot find a viable strategy to make the argument non-question begging. The problem is that the opponent of same-sex marriage must offer a very very strong argument that concludes impossibility if they want to trade on an putative "essence" of marriage. But, the arguments that would establish this putative "essence" of marriage seem to be either too weak to do so, or end up begging the question. The problem is that the "tradition" of heterosexual marriage might have arisen because it was socially useful (and perhaps still is) for managing procreation and the family, but that does not enail the necessary link between marriage and procreation. If this is so, then the whole strategy needs to be rethought, as it is doomed to failure. But, maybe I'm missing something obvious.

Richard Cohen, Straw Man

Implied messages

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Like so few in our liberal media, Richard Cohen has the balls to stand up to the enemies of Israel (in his print column).  But rather than doing the cowardly thing of engaging with an actually informed person, Cohen takes the bold step of making up an unnamed opponent with a weak argument.  This way Cohen sacrifices himself by making his own argument look weak, and himself like a cowardly jerk, while he is really just courageously distracting his readers from seeing the moral complexity of the current situation in Gaza.  He writes:

I get the impression that Israel is expected to put up with this. The implied message from demonstrators and some opinion columnists is that this is the price Israel is supposed to pay for being, I suppose, Israel. I am informed by a Palestinian journalist in a Post op-ed that Israel is trying to stop "amateur rockets from nagging the residents of some of its southern cities." In Sderot, I saw homes nagged to smithereens.

Yes, of course.  Those who think that Israel should sit back and do nothing while being bombed can raise their hands now.  Anyway, Cohen is such a vicariously belligerent dishonest dumbass that he cuts out the second part of the quote above.  Here it is:

In its efforts to stop amateur rockets from nagging the residents of some of its southern cities, Israel appears to have given new life to the fledging Islamic movement in Palestine. 

Not to be pedantic, but the point is that Israel has strengthened the hands of Hamas by responding in the way that it has.  But Cohen, who "gets the impression" and sees the "implied message," deprives his readers of the pleasure of seeing that "the politics by other means part" of the current war might not have been wisely thought out.  It takes, however, real courage to make up, and then face down, such hollow men.  People, after all, might think Cohen a superficial sort of thinker.

George Will, Plain Bad Arguments, Weak Analogy

You’re on your own

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It wasn't long ago that George Will called Obama's very catchy "you're on your own" line (from his acceptance speech) a straw man of the (discredited) Republican philosophy of government.  So I was struck when I read this encomium to being on one's own (creepy lines in bold).

When Medicare was created in 1965, America's median age was 28.4; now it is 36.6. The elderly are more numerous, and medicine is more broadly competent than was then anticipated. Leavitt says that Medicare's "big three" hospital procedure expenses today are hip and knee replacements and cardiovascular operations with stents, which were not on medicine's menu in 1965.

After being elected to three terms as Utah's governor, but before coming to HHS, Leavitt headed the Environmental Protection Agency. He came to consider it a public health agency because the surge in Americans' longevity in the last third of the 20th century correlated with cleaner air and fewer waterborne diseases. Longevity is, however, expensive, and demography is compounding the problem.

In the 43 years since America decided that health care for the elderly would be paid for by people still working, the ratio of workers to seniors has steadily declined. And the number of seniors living long enough to have five or more chronic conditions — 23 percent of Medicare beneficiaries — has increased. Many of those conditions could be prevented or managed by better decisions about eating, exercising and smoking. The 20 percent of Americans who still smoke are a much larger percentage of the 23 percent who consume 67 percent of Medicare spending. Furthermore, nearly 30 percent of Medicare spending pays for care in the final year of patients' lives.

If only we could find some kind of completely tone-deaf market analogy for how medicare should work:

Suppose, says Leavitt, buying a car were like getting a knee operation. The dealer would say he does not know the final cumulative price, so just select a car and begin using it. Then a blizzard of bills would begin to arrive — from the chassis manufacturer, the steering-wheel manufacturer, the seat and paint manufacturers. The dealership would charge for the time the car spent there, and a separate charge would cover the salesperson's time.

Leavitt says that until health-care recipients of common procedures can get, upfront, prices they can understand and compare, there will be little accountability or discipline in the system: "In the auto industry, if the steering-wheel maker charges an exorbitant price, the car company finds a more competitive supplier. In health care, if the medical equipment supplier charges an exorbitant price, none of the other medical participants care."

The auto industry?  The one with the huge bailout?  Anyway, back to the ice floe:

Rather than ruining the new year by dwelling on Medicare's unfunded liabilities of about $34 trillion (over a 75-year span), ruin it with this fact: In the next 50 years, Medicaid, the program for the poor — broadly, sometimes very broadly defined — could become a bigger threat than Medicare to the nation's prosperity.

This is partly because of the cost of long-term care for the indigent elderly, some of whom shed assets to meet Medicaid's eligibility standard — sometimes as high as income under 200 percent of the federal poverty level. And many states, eager to expand the ranks of the dependent with the help of federal Medicaid money, use "income disregards" to make poverty an elastic concept. For example, they say: A person who gets a raise that eliminates his eligibility can disregard the portion of his income that pays for housing or transportation.

Governments with powerful political incentives to behave this way will play an increasingly large role in health care. As is said, if you think health care is expensive now, just wait until it is free.

Indigent elderly, since you're a threat to our nation's prosperity, "you're on your own."

Ignoratio Elenchi, Ruth Marcus

Saddamy

The op-ed page at the New York Times is pretty bad, what with Dowd, Kristol and Friedman, but the op-ed page at the Washington Post is worse.  To end the year on a negative note, here's Ruth Marcus on why an Obama administration should not pursue criminal charges against Bush administration officials who broke the law.  The whole thing amounts to a classic ignoratio elenchi–none of Marcus's arguments prove or really even support the conclusion that criminal prosecution against Bush administration officials should not be pursued.  My comements in brackets.

First, criminal prosecution isn't the only or necessarily the most effective mechanism for deterrence. To the extent that they weigh the potential penalties for their actions, government officials worry as much about dealing with career-ruining internal investigations or being hauled before congressional committees. Criminal prosecution and conviction requires such a high level of proof of conscious wrongdoing that the likelihood of those other punishments is much greater. [deterrence isn't the only point of criminal prosecution].

Second, the looming threat of criminal sanctions did not do much to deter the actions of Bush administration officials. "The Terror Presidency," former Justice Department official Jack Goldsmith's account of the legal battles within the administration over torture and wiretapping, is replete with accounts of how officials proceeded despite their omnipresent concerns about legal jeopardy.

"In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls," Goldsmith writes. [Goldsmith's characterization only underscores the dubious legality of the actions of administration officials]

Third, punishment is not the only way to prevent wrongdoing. If someone is caught breaking into your house, by all means, press charges. But you might also want to consider installing an alarm system or buying stronger locks. Responsible congressional oversight, an essential tool for checking executive branch excesses, was lacking for much of the Bush administration. [This is the same as one.  It's also just irrelevant.]

Fourth, there is a cost to pursuing criminal charges. As appalling as waterboarding is, for example, it was pursued with the analysis and approval of lawyers who concluded, however wrongly, that it did not rise to the level of torture. If government officials cannot safely rely on legal advice, they will err on the side of excessive timidity. [All criminal defendants can find lawyers who can argue however erroneously that they're client did nothing illegal–this does not make it legal]

Fifth, focusing governmental energy on uncovering and punishing the actions of the past will inevitably drain energy and political capital from the new administration. It would be a better use of the administration's time to figure out how to close Guantanamo and deal with the remaining prisoners. [these are not mutually exclusive]

In a State of the Union address in 2003, Bush uttered the following words about Saddam:

The dictator who is assembling the world's most dangerous weapons has already used them on whole villages — leaving thousands of his own citizens dead, blind, or disfigured. Iraqi refugees tell us how forced confessions are obtained — by torturing children while their parents are made to watch. International human rights groups have catalogued other methods used in the torture chambers of Iraq: electric shock, burning with hot irons, dripping acid on the skin, mutilation with electric drills, cutting out tongues, and rape. If this is not evil, then evil has no meaning. (Applause.) 

Saddam's leaving thousands of Iraqis dead and obtaining false confessions through torture were lawlessness on a scale worthy of military invasion at the cost of thousands of lives of killed and wounded soldiers and civilians.  One would think that such things might be worthy of criminal investigation, and, perhaps, prosecution.

Inexplicable, Rick Warren, Slippery Slope, specious comparisons, Things that are false

5,000 years

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In the spirit of the season, let's reflect on the words of the Reverend Warren, a man noted for the fact that he, perhaps alone among right wing evangelicals, does not always blame the poor and the sick for their condition.  But that doesn't stop him from being a rather sorry thinker when it comes to homosexuality.  In an interview with Beliefnet.com, he says:

The issue to me, I’m not opposed to that as much as I’m opposed to redefinition of a 5,000 year definition of marriage. I’m opposed to having a brother and sister being together and calling that marriage. I’m opposed to an older guy marrying a child and calling that marriage. I’m opposed to one guy having multiple wives and calling that marriage.

[Question] Do you think those are equivalent to gays getting married?

Oh , I do. For 5,000 years, marriage has been defined by every single culture and every single religion – this is not a Christian issue. Buddhist, Muslims, Jews – historically, marriage is a man and a woman. And the reason I supported Proposition 8, is really a free speech issue. Because first the court overrode the will of the people, but second there were all kinds of threats that if that did not pass then any pastor could be considered doing hate speech if he shared his views that he didn’t think homosexuality was the most natural way for relationships, and that would be hate speech. We should have freedom of speech, ok? And you should be able to have freedom of speech to make your position and I should be able to have freedom of speech to make my position, and can’t we do this in a civil way.

In the interest of Christian charity, someone should point out that marriage has not been defined in every single culture as that between one man and one woman.  Sometimes, it turns out, that the Kings of Israel had to have many many many wives and then concubines beyond that (Lucky them, some might add).  Some cultures, get this, define marriage as that between one woman and many men–it's called polyandry–or marriage to many dudes.

Aside from picking and choosing which passages of the Bible to endorse and which cultural practices to remember, the Reverend Warren is confused about the nature of definitions and free speech.  In the first place, he can define marriage however he wants in his church.  No one would force him to recognize the marriage of a brother and a sister (which he considers by the way equivalent to gay marriage).  Recognizing the legal right of two unrelated adults to contract however they want does not entail any alteration in the fabric of the universe of definitions–in the world of Platonic forms, or the divine mind, or wherever these things exist.  Besides, as Warren points out, this particular definition of marriage, on his view, extends back only 5,000 years.  That number of years, even in the relatively short span of human history, is but a drop in the bucket (sidenote: why does Warren repeat "5,000 years"?  Is he a young earther?).

As for freedom of speech, the court "overriding" the will of the people does not ipso facto constitute a violation of freedom of speech.  Sometimes that's the court's job.  And Warren can continue to preach that Gayness can or shoudl be cured in his church.  He has, after all, a right to be wrong.  No one will take that away from him.