Obsidian Wings is the voice of moderation. We seized the radio station. Check the motto.
We’re not all moderates, of course — indeed, it’s quite likely that none of us are (my eternal protest that I’m the middle of the ObWi five may, in fact, protest too much). But we all claim, on our good days, to value discussion and exchange. Discourse, yes — before the term was corrupted by English departments everywhere. Which is why I’m particularly proud that I managed to pick fights of a sort over the last few days with Pejman Yousefzadeh, on the smart right, and Professor Leiter, on the smart left.
The disputes are facially different. With Mr. Yousefzadeh, I contend that his defense of Professor Yoo’s “torture” memorandum is too facile. With Professor Leiter, I contend that calling Justice Thomas a “lunatic” for Thomas’s Establishment clause non-incorporation argument is a lunacy too far. These disparate disputes, however, reveal a common theme: Is there a point in which politics — point of view — dissolves, and we’re left with a basic understanding that a certain argument is, or is not, objectively defensible. Regardless of your preferences, are certain claims out of bounds?
(Objectivity is a dirty word. Use consensus instead. And aren’t you stretching? . . . .)
Heedless of the inner voice (and knowing I’ve probably bit off too much to chew), I sally forth: Yes.
My responses to Mr. Yousefzadah and Professor Leiter follow.
Professor Yoo, as a lawyer for the Executive branch, wrote a memorandum in which he argued, among other things, that (1) the Geneva convention and other rules do not apply to certain categories of unlawful combatants and (2) that the President has broad (one reading would be unlimited) powers to interrogate prisoners when acting in his capacity as commander in chief. The first proposition is arguable (and I think Yoo has the not-so-good side of it), but isn’t of prime concern. Of prime concern is proposition (2).
For this memorandum, a motley collection of protestors is demanding that Yoo be dismissed from his current job as a law professor at Berkeley. Yousefazadah, in a well-argued piece, contended that Yoo should stay put based on the concept of academic freedom: academics should be allowed to espouse unpopular views. I agree.
Then Yousefazadah went further. He claimed that Yoo really can’t be held responsible for the views expressed in his memorandum because, essentially, the memorandum didn’t express a view. It was, allegedly, a neutral exposition of the law. Like Magellan, all Yoo did was “discover” what was already there.
This is where I got off the bus. Here, I argue that Yoo absolutely can (and should) be held to the legal views expressed in his memorandum. He did the research, he reached a conclusion. The conclusion was that the President may (not “should,” not “will,” not “ought” to) torture certain prisoners. There was discussion, there was analysis, but that was his conclusion. His argument. It’s facile and false to contend otherwise. (Yoo wrote the memorandum, dammit!)
And if it’s a bad memorandum, if the analysis is faulty, if the advice is poor, do we judge Yoo based upon it? Do we say, “you’re wrong”? Do we hold him to account?
Absolutely. Or, as my least favorite expert witness put it, “abso-posi-tively!”
Of course, my least favorite expert witness was valuing a Delaware corporation (fortunately, for our opponents) at the time he made the remark, so maybe there’s some kind of distinction to be drawn.
Nah. Point holds.
Professor Leiter takes Justice Thomas to task for Thomas’s view that the Establishment Clause should not be applied to the states via the incorporation doctrine. That’s a fair point (I happen to think Thomas has a better argument than Professor Leiter gives him credit for, but, fair point). Like Yousefazadah, however, Leiter then takes that next step. He calls Thomas a “lunatic” for his views.
It is a step beyond a step too far. Thomas’s view is actually fairly supported by the history and text of the First Amendment. It may not be the only view, but it isn’t lunacy.
Leiter tried to clarify his point. He wrote:
[W]hen there are legal arguments on both sides of a question–say, whether the Establishment Clause applies to the states–to adopt the side that has repulsive moral and political consequences is lunatic.
But this still doesn’t cut it. “When there are legal arguments on both sides of a question” — it’s a meaningless standard. There are almost always “legal arguments” on both sides of an issue. The question is, are they any good?
Put it this way: Yoo presents a “legal argument” in favor of allowing the President to torture prisoners; does this mean that we need to weigh the moral consequences of having tortured someone to determine whether, as a matter of law, torture was legal? (Leave aside the defense of neecssity, which is, by definition, the exception and not the rule.)
No. Of course not. We don’t need a utilitarian abacus every time some lawyer somewhere can spit out a legal “argument”. Lawyers do that by rote. The question is, does the law work out? Is the argument any good? (Thomas’s is.)
Most importantly, is there support for the means — not merely the ends?
Leiter is choosing the result he wants (a result that I want too, incidentally) and reasoning backwards. That, however, is not how the law works: the law requires good process first, not last. It’s fundamental. It’s due process. It’s rule of law. I think Professor Leiter, fundamentally, agrees. But I think he let his personal preferences — good preferences, my preferences — get the better of him.
Justice Thomas’s opinion may be wrong, but it’s not lunacy. It’s wrong to say otherwise.*
von
*On this point, I agree with Navy Davy’s essential formulation in comments to my original post (which Leiter cites and criticizes). I should have added more flesh to the bones, I should have qualified (as I so often do); maybe I shoulda also played nicer. But Navy is right on this one.
Find this take on Leiter better, but still think you’re distorting his view by selective quoting (which his post’s, ahh, looseness admittedly lends itself to). Anyway, he should respond.
I hope ND responds re HIV.
Von,
I’m not sure where I come out, but I wonder if your position on Yoo isn’t, in some ways, more difficult than Yousefzadah’s, in one respect.
Yousefzadah says Yoo shouldn’t be held personally responsible for the memo, and therefore the protests against him are wrong. His conclusion seems to follow fairly easily from his premise.
You say (and I’d agree) that Yoo “abso-posi-tively” should be judged, and held to account, based on the memo. But then you criticize the Berkeley students who are, arguably, trying to hold him to account.
Your conclusion doesn’t flow automatically — it depends on the concept of academic freedom. I guess you would say that he can be judged in the world of ideas without being hounded out of the university.
I guess I’m wondering about how much we owe to the concept of academic freedom. Is there no point at which we can say, this person has advocated such bad ideas (not as a professor but as a high ranking public official) that we don’t want to associate with him? Or is it just that these memos don’t rise to that extraordinary level?
As I said, I’m not sure where I come out. I have a lot of respect for academic freedom but somehow this seems a little different (perhaps because Yoo is (arguendo) being criticized for his actions as an official and not his views) and I am pretty sure I’d prefer he not be a professor at any law school I was attending.
“I hope ND responds re HIV.”
I hope that he doesn’t. Leiter’s ad-hom was both obnoxious and (at best) clumsy*; it should be treated as one does a fart in a public place. To wit, smile woodenly and wait for the smell to recede.
Moe
*Conflating a blogger and a commenter when reacting to the former’s criticism is clumsy at best and dishonest at worst.
I guess I’m wondering about how much we owe to the concept of academic freedom. Is there no point at which we can say, this person has advocated such bad ideas (not as a professor but as a high ranking public official) that we don’t want to associate with him? Or is it just that these memos don’t rise to that extraordinary level?
You raise a good point, and you’re right to note that my position is, umm, more Kerry-esque, than Pejman’s. But in answer the question: (1) the Berkeley protestors are protesting Yoo for his politics, not his competence. It’s an important distinction. (2) With respect to Yoo’s fitness for teaching, one should consider the memorandum as a part — but only a part — of the mix.
“the Berkeley protestors are protesting Yoo for his politics, not his competence. It’s an important distinction.”
Hmm. I’m not sure I agree with that. For example, look at this quote from the petition, describing their views–
“We emphasize that this petition does not constitute an attack on academic freedom, as we fervently believe in a free and open discussion of ideas; rather, our position is a response to those governmental actions taken by Prof. Yoo in his official capacity as Deputy Assistant Attorney General that have caused severe damage to this nation, and the world.”
By the way, is “Kerry-esque” another way of saying “nuanced?”
It’s another way of saying ‘Gore was a liar in ’00’. It means you’ve given up trying to hold back the narrative that the Wurlitzer is desperately feeding you.
I retroactively apply smileys to last comment, as it turns out sounding more snarky and less funny than I intended.
Moe Lane: Leiter’s ad-hom was both obnoxious and (at best) clumsy;
It certainly was. As was Navy Davy’s ad hominem attack on Leiter in the original comments thread:
Navy Davy: I’m tempted to e-mail him and ask him, How many cases have you tried to verdict? The answer will (likely) be zero. That means (sigh), once again, we have the theoreticians groomin’ and teachin’ more theoreticians. [formatting condensed for brevity]
Obnoxious and clumsy (and, in this case, wholly unsubstantiated) personal attacks appear to be all the rage these days.
Yes, but Navy Davy wasn’t going after one of my cobloggers, so it’s obviously completely different. 🙂
“I hope ND responds re HIV.” (me)
“I hope that he doesn’t.” (Moe)
This is a hair-on-fire issue for me. The smell is stuck in my nose.
Rest assured, whatever Leiter does, it will be the most obnoxious of all possible responses.
That’s not ad hominem…it’s analysis. Not my fault if Leiter’s response to disagreement is to present himself as an…er, subject for ad hominem. 🙂
Rest assured, whatever Leiter does, it will be the most obnoxious of all possible responses.
Professor Leiter is frequently right, though. (Maybe I have a higher tolerance for those who do not suffer fools gladly.)
(Maybe I have a higher tolerance for those who do not suffer fools gladly.)
w00t!
But Navy is right on this one
This is an astute, cogent observation, that represents brilliant, insight by Von, a noted authority on critical matters, and, thus, should be repeated through out cyberville.:)
Rikefan says, “[HIV] is a hair-on-fire issue for me. The smell is stuck in my nose.”
Can I ask a real stupid question?
How on earth did HIV get interjected to this discussion on (a) 14th Amendment, (b) Justice Thomas’s view on incorporation doctine, (c) Brian Leiter’s obnoxious ways, and (d) my simplied comments on such matters?
Will some smart fellow lemme know:)
Leiter responded to von’s criticism re Thomas and lunacy by first confusing von’s comments with yours and then posting an update featuring commentary by a reader that called you a HIV-denier and linked you to David Icke, Navy Davy.
Moe
Moe,
Bizarre! Never heard of David Icke, nor am I an HIV denier. I’ll check it out. Thanks.
Moe,
Wow! These boys on the internet can be vicious mothers! Looks like they got my e-mail address, took a stab at googlin’ me to publish personal info. Kinda sleazy, if you ask me. But, I guess I gotta respond:
1. I am partner at law firm. I specialize in cancer cases. Very tragic. Have to deal with a lotta dyin’ folks, hence my over-compensated humor and goofiness on various blogs.
2. As a result, I’ve learned a lotta cancer science and medicine.
3. A few years ago, I represented a few HIV+ folks (pro bono), cuz’, Well, I’m a nice guy:)
4. As a result, I’ve reviewed a whole lot about HIV/ AIDS in the scientific literature, met several experts on that front. 90% of experts believe that HIV causes AIDS; remarkable to me, a small hold out, maybe 10% believe that AIDS is a muli-factoral disease, not simply caused by a virus. This includes 2 famous Nobel Prize Laureates, Walter Gilbert and Kary Mullis.
5. 3 or so years ago, barely after I even got e-mail, I debated a friend mine, Dr. JF, about HIV and AIDS. I took the difficult position of trying to argue that HIV did not cause AIDS. Dr. JF took the opposite view. I lost. The judges were 3 mutual friends of ours. It was completely a small, nerdy, e-mail deal among about 7 college friends of mine.
6. Someone must have sent my Opening Statement thru cyberland, where this fellow, David Icke, posted it;
7. Some idiot must have not liked a few of my “Navy Davy” posts, somewhere, so they got my e-mail address, googled my name, found the Icke post, conveyed it to Brian Leiter, who, like an idiot tried to slam me, personally.
(I guess I should change e-mail address, but I was operating under the Honor System, that one doesn’t try to personalize or publicize private matters. Here and at Tacitus, it operates great! Elsewhere, apparently it does not. My bad for being naive, though)
I think that’s about it.
Be happy to share some of my knowledge on HIV and AIDS with anyone (on a separate thread), but can’t imagine why anyone would want to.
But, Yes, open invitation to anyone to discuss cancer and AIDS. Fascinatin’ important scientific topics.
As for Brian Leiter, he’s lucky I don’t whip his ass:)
Not that you needed to explain any of that here, Navy, but we’ll see what we can do about an HIV thread.
I noted this on another ObWi thread, but think it’s worth repeating: blogs operate on an honor system whereby the degree of personal information one chooses to reveal should be respected. Some folks choose pseudonyms, some enter bogus email addresses, some change their names randomly to keep folks guessing. It’s no one’s right to question the rationale behind these decisions regardless of how much one disagrees with any opinions expressed.
Come to the party if you like, but stop short of going through the pockets of the coats stacked in the bedroom.
Edward,
I’m just curious, given what you’ve said, why is it that ObWi requires either an email or a URL to comment? Is it just a software requirement? In my very limited experience, it doesn’t seem like a very common requirement.
See, Eddie, that’s why we’re pals:)
Come to the party if you like, but stop short of going through the pockets of the coats stacked in the bedroom.
I agree with Ed & think we should put some variation of this in the posting rules. Moe, Katherine, Sebastian . . . . any thoughts?
I agree with Ed & think we should put some variation of this in the posting rules. Moe, Katherine, Sebastian . . . . any thoughts?
As it is, I apparently am beginning to get quite the reputation as the ObWi heavy* when it comes to Posting Rules violations and banning people, so maybe I should recuse myself from this one. 🙂
Moe
*Unapologetic about it, too.
No need for more rules –that just adds more bureacracy.
The reason Tacitus and Obsidian Wings are GREAT blogs, is because you all have attracted smart, honorable people to debate and discuss important issues, without any political litmus tests.
Sadly, this is getting rare.
Iromically, it is extremely rare in the ivory towers of academia.
But, there’s nothing to really stop a D*ckhead from trying to post personal information about a another person to derail a differing viewpoint.
The solution is to use pseudonyms and fake e-mails when posting or commenting. My bad for using a college nickname “Navy Davy” and a real e-mail address, where some industrious cyber-geek, could (feebly) try to post some dirt.
The good news is, there is not much harm. A mere blip in the road, as we veer back to debating ISSUES, not personalities.
My 2 cents.
IT HAD TO BE YOO . . .
Okay, lousy title, but I’m feeling puckish. Anyway . . . The kindly and learned Von responds here to this post of mine regarding Professor John Yoo and his memorandum on torture. Von restates his beef as follows: For this…
The solution is to use pseudonyms and fake e-mails when posting or commenting.
I couldn’t disagree more. Using pseudonyms and fake e-mails, in my experience, leads to people being even more willing to ignore the normal rules of politesse than they usually are online. If you want to make people behave, the only way to do that is to make them accountable. (Which you can do when they’re anonymous, but it’s more difficult.)
Josh,
Good point. Using a psuedonym to trash people is very bad form — but ya gotta play defend yourself from certain a-holes out there, as I have learned.
ND, I apologize if you took any offense at my concern based on a report resulting from what I take it the majority of posters consider a serious violation of your privacy (concern increased by a comment in the Placeholder thread from Anarch saying you had taken that position at tacitus.org, as well as some bad experiences on my part with people who happen to take your contrarian position about AZT [expressed in the thread Anarch pointed to – a thread where in my view you probably ought to have bowed to Arc‘s arguments by the by]). I think you’re being extremely generous to your side with your 90/10 division, but I’m not a frequent or careful enough reader of say Nature to come up with a counter-split off the top of my head. For my part I’m drawn to the non-prion view of vCJD, which might well represent just 1% of researchers – though of course I acknowledge it’s a view becoming increasingly tenuous.
Anyway, as stingy and linkpoor an apology as possible, but one nonetheless.
Edward, I disagree with your coatpocket analogy as one element is a crime, the other just extremely impolite.
This has come up before, IIRC, and might be worth adding to the posting rules. It’s nice to have consistent standards so you’re not just lecturing people in a vaccuum. And I’m sort of a stickler for this one, since I would prefer to remain no more google-able than I already am.
“Do not deliberate break someone’s anonymity or pseudonymity, or reveal more biographical or personal information about another poster than she chooses to reveal about herself”?
“Also, do not reveal Dick Cheney’s undisclosed location and do not taunt happy fun ball”?
Someone else can probably phrase it better–I’m too tired.
Ah, Rilkefan…I was quite pleased with my coat pocket analogy.
Maybe the other should be a crime.
“Do not deliberate break someone’s anonymity or pseudonymity, or reveal more biographical or personal information about another poster than she chooses to reveal about herself”?
Hmm; having suggested the idea, I’m now reconsidering. Perhaps the posting rules prohibition of ad hominem attacks is sufficient.
I dunno; I get the sense that maybe I’m lawyering this one a bit too much.
Rikefan,
Not a problem! Appreciate your being reasonable.
One minor clarification:
I think you’re being extremely generous to your side with your 90/10 division
This is not my side! Perhaps, the division is 99% – 1%, it’s just an estimate. But, that’s not the point. Unlike politics, I don’t have a side! Like most folks, my only interest is in treating AIDS patients and finding a cure.
Again, would be happy to give my opinion on AIDS and the drug treatments on the appropriate post. Contrary to all this mumbo-jumbo, triple-party, anonymous hearsay, it really isn’t very controversial.
Cheers, y’all.