Rationalization #64, the eighty-first rationalization overall when you add up the sub-rationalizations on the Ethics Alarms Rationalizations List, is a major one, and should be near the top. (One of these days I’ll re-arrange and renumber them.) It is in evidence almost every day, and embodies the human fallacy of denial, as well as confirmation bias and contrived ignorance. Named after John Yoo, the Bush lawyer who wrote the infamous memo declaring that waterboarding, an “enhanced interrogation technique,” wasn’t technically torture, Rationalization #64, Yoo’s Rationalization or “It isn’t what it is,” is one of the most effective self-deceptions there is, a handy-dandy way to avoid logic, conscience, accountability and reality.*
I saw a prime example of it this morning, in former Homeland Security Secretary Janet Napolitano’s op-ed about the “Deferred Action For Childhood Arrivals Program,” a euphemism for “amnesty for illegal immigrants who arrived as kids with their parents, so they can grow up and vote Democratic.”
“This narrative about an initiative that has given temporary haven and work authorization to more than 700,000 undocumented minors, the so-called Dreamers, still has critics howling about presidential overreach, about brazen nose-thumbing at the rule of law and about encouraging others to breach the borders of the United States. But there’s a problem with this take on the program. It is dead wrong.”
What the program really is, she explains, is “prosecutorial discretion,” like the case by case discretion prosecutors have to use to avoid misusing resources. This is Rationalization #63.
The President signed an order directing a specific group in violation of a clear and unambiguous law, to be immune from prosecution. That’s not ethical prosecutorial discretion as I learned it in law school, or how anyone did. That’s Presidential over-reach, undermining the intent of Congress. It also is “brazen nose-thumbing at the rule of law,” by definition: the law says the group, nearly a million of them, is in continuing violation of the law, and the President says, “Forget the law.” It certainly encourages illegal immigrants to cross our borders illegally to acquire the benefits for their children this order ensures. It is not legitimate “prosecutorial discretion,” which never involves nullification, as in “Well, we’re just not enforcing this law, and that’s that.”
The entire effort to waive the law and the necessary penalties for living illegally within U.S. borders is built on #63, or, if you want to be unkind, lies. These aren’t illegal immigrants, advocates insist, they are “Dreamers.” You know, like in the American Dream! How can anyone want to do anything but hug Dreamers? Enthuses Napolitano:
“Dreamers, among other requirements, came to the United States as children, developed deep roots in the country and have become valuable contributors to their community. They must be in high school or have a diploma, or be a veteran, and they cannot have been convicted of a felony or major misdemeanor.”
Developing deep roots where you don’t belong and live illegally is called “making enforcement difficult.” In the middle of the 20th Century, there were instances of ambitious students attending elite colleges and professional schools without being admitted, joining study groups and clubs, taking exams, doing well, thoroughly embedding themselves in campus life, and then, when they were discovered, pointing to the fact that they had “deep roots” in the institution and not only that, had excelled. Some schools fell for it, and let the frauds stay. (My father had a friend who got into Harvard Law School that way.) Now they kick them right out, and right they are. Becoming “valuable contributors to the community” is a dodge: one who violates a nation’s laws is res ipsa loquitur a negative influence on the society and the culture. This “deep roots” argument isn’t persuasive when fugitives from justice start new lives under new names in new communities. Whatever they do after (or during) their violations of the law doesn’t erase or mitigate the violations. Going to high school under the false pretense of being legally in the country is wrong, not an act worthy of reward. Why should not breaking other laws justify the government ignoring the breach of the immigration requirements?
The entire argument for the “Deferred Action For Childhood Arrivals Program” is based on calling it something other than it is, and for its advocates, giving them the benefit of the doubt, really believing that it isn’t what it is.
Examples of this are everywhere. Paul Krugman, the wildly progressive economist and Times columnist, began his last column like this:
“Remember all the news reports suggesting, without evidence, that the Clinton Foundation’s fund-raising created conflicts of interest?”
The Clinton Foundation’s fundraising created a conflict of interest, by definition. For a non-profit organization, with family connections to either a current Secretary of State or a Presidential candidate, to accept money from any country, company or individual who has or might have interests that the Secretary or potential President can advance is a conflict. It’s indisputable. No further ‘evidence” is needed.”
How does Krugman, a Clinton enabler and apologist through and through, deal with this problem? Simple: he convinces himself that screaming conflicts aren’t what they are without “evidence,” by which he means “proof of a quid pro quo.” But a quid pro quo is bribery, not a conflict of interest. A conflict of interest might lead to bribery, but a conflict is created as soon as there is a tangible reason for an official’s loyalties to be divided.
Ah, but Krugman couldn’t make his unending claims that Hillary Clinton was as pure as Ivory Soap if he allowed himself to admit that she was buried in conflicts of interest. His solution is to retreat into the fantasy of Rationalization #63. “Conflicts of interest? Those weren’t conflicts of interest! I don’t see any conflicts of interest!”
Again, I am giving Krugman the benefit of a huge doubt, and assuming that he doesn’t know damn well that this was a conflict, and is deceiving himself rather than isn’t trying to mislead others. Knowing Krugman, this is difficult, but I’m a trusting guy.
Last week’s battles with defenders of the Hamilton cast’s unethical treatment of Mike Pence was what first caused me to realize that the absence of this rationalization left an inexcusably gaping hole in the list. Yoo’s Rationalization or “It isn’t what it is” was third, behind only #2 A. Sicilian Ethics, or “They had it coming” and #28. The Revolutionary’s Excuse: “These are not ordinary times” among the myriad rationalizations used to defend the “Hamilton ” cast’s ambush, and it could only be defended by rationalizations. There were no ethical defenses.
“Oh, no,” they said in unison, “this wasn’t harassment! Harassment isn’t polite.”
Harassment is making an individual feel uncomfortable in a place where the individual has a right to be, by unwarranted words, attitudes, treatment or attention. Constantly telling a particular employee or colleague that she is gorgeous, sexy, attractive or “hot” is harassment, no matter how nicely it is done. A waiter singling a diner out for criticism when he or she is trying to enjoy a meal, or a nearby diner politely pestering a celebrity for an autograph are both harassment. So was an entire cast singling out Pence for a “nice” political rant, in the midst of a an audience who had demonstrated its hostility by booing him.
“But this was just a conversation!” claimed the cast.
Again, I’ll generously assume for the sake of argument that the cast had convinced itself that a prepared speech, from the stage, made after a performance, in full costume, begun with a directive to “hear us,” with no opportunity for the target of the “conversation” to respond, was a conversation rather than what it was, a rude, unprecedented bullying of an audience member who expected, and who should have been allowed, to be treated like every other member of every other Broadway audience since shows started being produced there in the early 10th century.
So the actors weren’t lying. They were just deceiving themselves, by convincing themselves that what they did was not what they did.
Yoo’s Rationalization or “It isn’t what it is.”
And finally, it’s on the list.
*NOTE: I realize that #63 also could be named after Orwell’s “1984,” and called “Big Brother’s Rationalization” in homage to “War is Peace,” etc. But John Yoo deserves it.