Academic

Bad Analysis vs. Bad-Faith Analysis

By Cassandra Burke Robertson

The Associated Press is reporting that President Obama might be open to prosecuting the lawyers who wrote the memos authorizing torture.  Brian Tamanaha has also posted a very interesting take on the memos, entitled "How We Know that the OLC Torture Memos were Not Issued in 'Good Faith.'" Tamanaha writes that the OLC's unquestioning acceptance of the CIA's assessment of the detainees' suffering demonstrates bad faith: "This is manifestly bad faith analysis because, as these statements make clear, the OLC lawyers had no independent factual basis for rendering their legal opinion. The OLC legal opinion, to put it more bluntly, is grounded entirely upon the self-severing assertions of individuals potentially subject to criminal liability."

But does bad analysis--even really, really, bad, self-serving analysis that results in untold suffering--necessarily equate to bad faith?  In a recent article, I argue that cognitive bias and associated blind spots may better explain such lapses.  The memo authors' reliance on the CIA's own self-serving assessment seems to fit in with classic bias blind spot research.  If the memo authors were truly trying to provide legal cover for a pre-ordained result, they did an amazingly bad job of it--one would expect a truly bad-faith author to manufacture the appearance of more reliable data, not to openly rely on self-serving assessments.  It seems more likely that the authors were simply blind to how the rest of the world would view their analysis, and never thought to question the reliability of the CIA's assessment.

So how could such bad analysis have been offered in good faith?  My article argues that John Yoo, in particular, was pre-disposed to suffer from certain cognitive biases.  First, he had a very strong political identity that correlated with the Bush administration's objectives.  His partisan feelings may have blinded him to the types of criticism his conclusions would face outside the echo chamber.  In addition, he had significant policymaking responsibility inside the administration, and I argue that the policy role may have led him to place a decreased emphasis on legal analysis--essentially, I think he was trying to write a legal memo while wearing a policy hat.  As a more general matter, I think the Bush administration was very poorly served by trying to hire "true believers" to provide legal counsel.  It is a tough balance for clients, because they want a lawyer who is loyal, but they need a lawyer who can accurately predict how outsiders will assess a case.  Hiring a lawyer with the same worldview as the client suggests that lawyer and client may share the same blind spots as well, to the detriment of both.

Full post as published by The Faculty Lounge on April 22, 2009 (boomark / email).