Yoo’s Rationalization, or “It isn’t what it is,” was a relatively late addition to the Ethics Alarms Rationalizations List, arriving in November of 2016; indeed, it is numbered at #64. Because “It isn’t what it is” has become perhaps the most employed rationalization of all in political discourse in the weeks and months since then, it is remarkable that it took me, as a fanatic collector of rationalizations (or the lies we tell ourselves to make us feel ethical when we are not) to realize the importance of this one. It is also noteworthy when that fact dawned on me, for November 2016 was the month that Donald Trump was elected President, and the American Left decided to abandon its principles as well as “democratic norms”—irony there!—in order to destroy him, and, if possible, get him out of office without the bother of an election. That assault continues to this day, though now the focus had shifted to keeping him from being elected again, and, if possible putting him in prison.
Because putting political adversaries in prison is what democracies do...huh?
For convenience, allow me to re-publish the entirety of the entry for Rationalization #64:
64. Yoo’s Rationalization or “It isn’t what it is”
Named after John Yoo, the Bush Justice Department lawyer who wrote the infamous memo declaring waterboarding an “enhanced interrogation technique,” and not technically torture, #64 is one of the most effective self-deceptions there is, a handy-dandy way to avoid logic, conscience, accountability and reality.
Examples of this are everywhere. Paul Krugman, the progressive economist and Times columnist, began a 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 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.
Yoo’s Rationalization or “It isn’t what it is” turns up everywhere, and has since time began. A mother swears that her serial killer son “is a good boy,” so she doesn’t have to face that fact that he’s not. It is denial, it is lying, but it is lying to convince oneself, because the truth is unbearable, or inconvenient. It is asserting that the obvious is the opposite of what it is, hoping that enough people will be deluded, confused or corrupted to follow a fraudulent argument while convincing yourself as well. The Rationalization includes euphemisms, lawyerisms, and the logic of the con artist. Illegal immigration is just immigration. Oral sex isn’t sex, and so it’s not adultery, either. I didn’t steal the money from the treasury! I was just borrowing it!
And waterboarding isn’t torture.
#64 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.
In the article that announced the addition of #64, I cited another example:
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.”
She writes,
“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 #64.
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 #64, 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.
Both parties have employed the Orwellian tactic of #64; after all, John Yoo was a Bush administration lawyer who devised the elaborate legal doubletalk that led to the absurd conclusion that waterboarding and other “enhanced interrogation” techniques weren’t torture. However, the ascendant progressive movement has taken Yoo’s Rationalization to new heights (or depths) in ways that George Orwell would marvel at. Abortion is about “choice,” not the forfeited lives of the unborn. Defunding the police and not enforcing laws promotes “justice.” Discrimination on the basis of race and gender advances equality.
Most frightening of all, however, is the current effort to make the public believe that opposing single party dictated infringements of personal liberty and the Constitution is a “threat to democracy.”
That will be the focus of the second half of this post.
Ethics Alarms 
“Yoo” makes 64 sound like something from a character in “Winnie the Poo.”
One of my favorite recent uses of “it isn’t what it is” was describing the massive five trillion-dollar budget expansion as “the reconciliation bill.” Brilliant. Use the name for the legislation the arcane and inapplicable process by which you want to slip the socialist camel into the tent to describe what would better be described as “the lots of free stuff for certain voters paid for by other voters who don’t vote for us bill.” It is interesting to note that “reconciliation bill” seems to have been excised from more recent talking point memos and fallen out of use.
Prosecutorial discretion? Prosecutorial discretion is moving to dismiss a case because the evidence is weak and might not make it over the hump of reasonable doubt or there were procedural errors that might result in it getting kicked. It might also be dropping prosecutions because the law has changed or is about to change (i.e. the repeal of the Volstead Act). Like any discretion, though, it can be abused, and I’d say that wholesale refusals to enforce broad areas of the law constitute abuse of discretion. The point of being a prosecutor in the first place is to enforce the law by prosecuting offenders, not thwart the law by dismissing offenders.
The times were when this crap wasn’t tolerated. Waaay back in 1994 George Pataki was elected Governor of New York, denying Mario Cuomo the fourth term that now his son will also never get. He was elected partially on the promise to bring back the death penalty, which Cuomo steadfastly opposed. He did and was applauded for doing so by a fed-up populace. However, liberal “maverick ” (or so the media called him) Robert Johnson, then District Attorney of the Bronx, publicly declared that his office would not seek the death penalty under any circumstances. Inevitably, a case that was eligible came up, he declined to seek the penalty, and Pataki’s AG took the case away from him, which the courts later upheld, since District Attorney was an executive office and the governor was the head of the executive branch, although NY district attorneys are elected, not appointed by him like county prosecutors are in NJ. That said, I am metaphysically certain that there would have been no such case had the governor and the DA not been of different political parties. Even assuming the death penalty was already in place, and not a just-passed pet project of the governor, I am certain that a Democratic governor would have just said “prosecutorial discretion” and that would have been the end of it.
These days, it’s a pet project of the left to get control of DA offices. There is precedent for this in George Soros’ secretary of state project, in which he would finance favored candidates for that office, which typically counts and certifies votes at the state level. After all, as old Uncle Joe put it, it does not matter who CASTS the votes, it matters who COUNTS the votes. It also doesn’t matter who passes the laws, it matters who enforces them. It’s possibly beyond the left’s power to get control of all state legislatures, at least with any degree of speed, since there are just too many safe GOP districts and changing all of them, or even enough to tip the balance everywhere, is too daunting an undertaking. There are always going to be some states where the GOP holds the trifecta and can pass tough on crime laws. This even happens (or happened) in places like NY and NJ (after people got fed up with Jim Florio) at times. However, those passed laws mean nothing if the urban counties where most crime takes place have district attorneys elected by Democratic populations that just dismiss everything short of a multiple homicide. Likewise, whatever laws may have been passed by a GOP congress and signed into law by a GOP president mean nothing, even if the Democrats don’t quite have the numbers to wipe them off the books, if Democrat-appointed US Attorneys just won’t enforce them. Interestingly, most Democrats now loathe or ignore or deny the fact that the first major defiance of the judicial process by the executive was when Andrew Jackson, the first Democratic president (officially) sneered at the Supreme Court’s ruling in favor of native Americans against settlers in Worcester v. Georgia.
It’s all frankly a culture within the Democratic Party that the law is there to be worked within when it benefits them and worked around when it does not. That’s part of a larger culture within that party and the left generally that there is a presumption in favor of anything anyone who’s “in the club” or on their side does and a presumption against anything anyone who isn’t does. Once in a while someone in the club will have to be punished for going too far, but that’s the exception rather than the rule, and only to be invoked once that person is of no further value to the party and the left. Al Franken was jettisoned because he was easily replaceable and had ceased to have any value, and Andrew Cuomo was forced from office because he had become more liability than asset. Notably he still won’t face criminal charges thanks to those wonderful Democratic DAs. However, they closed ranks around Bill Clinton and will close ranks around Biden, because they are/were just too valuable and useful not to be protected, even though neither deserves/deserved to be protected. It remains to be seen if Kamala Harris will be protected from the consequences of her clear inability to do the job and, if so, for how long. The answer is probably also “until the minuses of protecting her outweigh the pluses,” and for now, she still has value as that face that can go on every little girl of color’s wall between Shirley Chisholm and Gabby Douglas to remind them that You Can Be Anything You Choose.
“It isn’t what it is” is a part of our lives from the first time your classmate pushes you down and lambastes you tripped over your own feet and not to be so clumsy, the first time your shiftless brother-in-law says he doesn’t mean to use up your whole day off cleaning his yard, the first time your boss says his decision to move you into a crappier assignment isn’t a demotion, and so forth. Each time you accept it, because there’s not much you can do about it. If you fly at your classmate, you’ll be the one who gets in trouble, if you tell your brother-in-law forget it, you’ll hear about it again at Thanksgiving and so will everyone else, and if you challenge your boss, he will just say he moved you there and he can also move you out the door. By the time we’re all adults we’ve just come to accept that people will lie about what they are doing just to make themselves and others be ok with all the crappy things they do and get away with. Your classmate will never say he was a budding asshole when he pushed you down, your brother-in-law will never admit he was taking advantage of you because you want a peaceful set of holidays, and your boss will never admit he stuck it to you because he could. It should come as no surprise that people much more powerful than your bullying classmate, POS brother-in-law, and petty tyrant boss will utilize the same rationalizations and lies, and you, the go-along-to-get-along, be-a-good-boy, don’t-cause-trouble all around nice guy, will put up with it, because you’re already so used to it. You fell right into this line of isn’t-what-it-is’s because if you don’t go along with it, you risk shrieking from the feminist harpies in your life, adverse consequences at work if tarred as a racist, or losing everything and even your life if BLM/Antifa puts you in the crosshairs. Now you’re going to fall right into line, at least for now, because right now the Democratic party and its minions have all the power and won’t hesitate to use it on you, while justifying it, and, as the Chicago PD put it, you might beat the rap, but you won’t beat the ride. In the Middle Ages it was hard to prove your innocence if you were swinging from a gibbet, and now it’s hard to prove your innocence if your bank accounts are frozen, your job lost, your house burned down, and you are either warming a prison cell or killed in a riot. Tyranny? Sure. But who’s going to call it tyranny if all it gets is good press and any bad press is either discredited as FOX noise or suppressed by Big Tech and no one sees it?
Sound like the old USSR? Sound like apartheid South Africa? Sound like Pink Tide South America? Nope, it’s worse (a lot of that predated the internet). This country could possibly be headed down the path to becoming like China if we keep going along with this. We’re not there yet, BUT don’t say it can never happen.
I rarely tire of reading your responses, and this is no exception.
Prolific and prodigious. Reminds me of a litigator in Phoenix known for his ability to turn out incredible work product literally overnight. He was affectionately and respectfully known as “Dial-A-Memo.”
One of my longtime Usenet allies made this point.
http://forum.pafoa.org/showthread.php?t=379059&p=4499368#post4499368
– Christopher Charles Morton, dba Deanimator
This can not happen soon enough.
After you lose hope, you lose fear.