Yves here. This piece is heated, but looking at Cass Sunstein’s work does that to people.
Cross-posted from Washington’s Blog.
Most people know that Cass Sunstein is a hack.
He’s the guy largely responsible for ensuring that torture and spying have gone unpunished.
And as Glenn Greenwald writes:
Harvard Law Professor Cass Sunstein, a close Obama adviser and the White House’s former head of the Office of Information and Regulatory Affairs, wrote a controversial paper in 2008 proposing that the US government employ teams of covert agents and pseudo-”independent” advocates to “cognitively infiltrate” online groups and websites, as well as other activist groups. [Background on Sunstein here and here.]
Sunstein also proposed sending covert agents into “chat rooms, online social networks, or even real-space groups” which spread what he views as false and damaging “conspiracy theories” about the government.
As shown below, Sunstein is also clueless about basic math and legal reasoning.
Sunstein Doesn’t Understand Basic Math
Sunstein has long been a pimp for genetically modified foods, even going so far as speaking out against even labeling GMO food so consumers have a choice. Famed risk expert Nassim Nicholas Taleb just shreded GMOs … and Sunstein. As Taleb and his co-authors write:
Cass Sunstein —a critic of the precautionary principle — claims (in a series of papers that are totally oblivious to, or unininformed of, the notion of fat tails) a ”false belief that nature is benign” on the part of agents. The entire method of analysis misses both the statistical significance of nature and the fact that it is not required to believe in the perfection of nature, or in the ”benign” attributes, rather, in its statistical power.
A “fat tail” is a statistical probability for moderate risk which is greater than most people would assume.
The “precautionary principle” is a basic principle that states that – if an action has a suspected risk of causing harm, and there is not yet scientific consensus on how harmful it may be – the burden of proof should be on those proposing the action. For example, if the government proposed scooping up samples of dust from the surface of the moon and dropping it from helicopters over major cities, the precautionary principle would say: “Uh, let’s look at what’s in it first”.
Often narrow models reveal biases that, in fact, turn out to be rational positions, except that it is the modeler who is using an incomplete representation. Often the modelers are not familiar of the dynamics of complex systems or use Gaussian statistical methods that do not take into account of fat-tails and make inferences that would not be acceptable under different classes of probability distributions. Many biases such as the ones used by Cass Sunstein about the overestimation of the probabilities of rare events in fact correspond to the testers using a bad probability model that is thin-tailed. See Silent Risk, Taleb (2014) for a deeper discussion. It became popular to claim irrationality for GMO and other skepticism on the part of the general public —not realizing that there is in fact an ”expert problem” and such skepticism is healthy and even necessary for survival. For instance, in The Rational Animal, the author pathologize people for not accepting GMOs although ”the World Health Organization has never found evidence of ill effects” a standard confusion of evidence of absence and absence of evidence. Such a pathologizing is similar to behavioral researchers labeling hyperbolic discounting as “irrational” when in fact it is largely the researcher who has a very narrow model and richer models make the ”irrationality” go away). These researchers fail to understand that humans may have precautionary principles against systemic risks, and can be skeptical of the untested for deeply rational reasons.
In other words, Sunstein doesn’t understand basic statistics. And this is the guy we’re supposed to trust as to food safety and health, torture, spying, and government corruption?
The Fat Tail of Conspiracies
Obviously – while many “conspiracy theories” are false, many are true.
Time Magazine’s financial columnist Justin Fox writes:
Some financial market conspiracies are real … Most good investigative reporters are conspiracy theorists, by the way.
Of course, there have been conspiracies of government leaders, as well. For example:
- One hundred and thirty thousand (130,000) people from the U.S., UK and Canada worked on the Manhattan Project. But it was kept secret for years
- A BBC documentary shows that:
There was “a planned coup in the USA in 1933 by a group of right-wing American businessmen . . . . The coup was aimed at toppling President Franklin D Roosevelt with the help of half-a-million war veterans. The plotters, who were alleged to involve some of the most famous families in America, (owners of Heinz, Birds Eye, Goodtea, Maxwell Hse & George Bush’s Grandfather, Prescott) believed that their country should adopt the policies of Hitler and Mussolini to beat the great depression”
Moreover, “the tycoons told General Butler the American people would accept the new government because they controlled all the newspapers.” Have you ever heard of this conspiracy before? It was certainly a very large one. And if the conspirators controlled the newspapers then, how much worse is it today with media consolidation?
- 7 out of the 8 giant, money center banks went bankrupt in the 1980′s during the “Latin American Crisis”, and the government’s response was to cover up their insolvency. That’s a cover up lasting several decades
- Governments have been covering up nuclear meltdowns for fifty years to protect the nuclear industry. Governments have colluded to cover up the severity of numerous other environmental accidents. For many years, Texas officials intentionally under-reported the amount of radiation in drinking water to avoid having to report violations
- The government’s spying on Americans began before 9/11 (confirmed here and here. And see this.) But the public didn’t learn about it until many years later. Indeed, the the New York Times delayed the story so that it would not affect the outcome of the 2004 presidential election
- The decision to launch the Iraq war was made before 9/11. Indeed, former CIA director George Tenet said that the White House wanted to invade Iraq long before 9/11, and inserted “crap” in its justifications for invading Iraq. Former Treasury Secretary Paul O’Neill – who sat on the National Security Council – also says that Bush planned the Iraq war before 9/11. And top British officials say that the U.S. discussed Iraq regime change one month after Bush took office. Dick Cheney apparently even made Iraqi’s oil fields a national security priority before 9/11. And it has now been shown that a handful of people were responsible for willfully ignoring the evidence that Iraq lacked weapons of mass destruction. These facts have only been publicly disclosed recently. Indeed, Tom Brokaw said, “All wars are based on propaganda.” A concerted effort to produce propaganda is a conspiracy
Moreover, high-level government officials and insiders have admitted to dramatic conspiracies after the fact, including:
(And as Famed whistleblower Daniel Ellsberg explains, most conspiracies are not discovered for many decades after the events.)
So what does all of this means statistically? Simply that conspiracies are fat-tailed events, which happen more than you think, and can have huge consequences.
How Judges Look at Conspiracy Theories
As a Harvard law school professor, you would think that Sunstein would know that that conspiracies are so common that judges are trained to look at conspiracy allegations as just another legal claim to be disproven or proven based on the specific evidence.
As we noted in 2009:
But let’s examine what the people trained to weigh evidence and reach conclusions think about “conspiracies”. Let’s look at what American judges think.
Searching Westlaw, one of the 2 primary legal research networks which attorneys and judges use to research the law, I searched for court decisions including the word “Conspiracy”. This is such a common term in lawsuits that it overwhelmed Westlaw. Specifically, I got the following message:
“Your query has been intercepted because it may retrieve a large number of documents.”
From experience, I know that this means that there were potentially millions or many hundreds of thousands of cases which use the term. There were so many cases, that Westlaw could not even start processing the request.
So I searched again, using the phrase “Guilty of Conspiracy”. I hoped that this would not only narrow my search sufficiently that Westlaw could handle it, but would give me cases where the judge actually found the defendant guilty of a conspiracy. This pulled up exactly 10,000 cases — which is the maximum number of results which Westlaw can give at one time.
In other words, there were more than 10,000 cases using the phrase “Guilty of Conspiracy” (maybe there’s a way to change my settings to get more than 10,000 results, but I haven’t found it yet).
Moreover, as any attorney can confirm, usually only appeal court decisions are published in the Westlaw database. In other words, trial court decisions are rarely published; the only decisions normally published are those of the courts which hear appeals of the trial. Because only a very small fraction of the cases which go to trial are appealed, this logically means that the number of guilty verdicts in conspiracy cases at trial must be much, much larger than 10,000.
Moreover, “Guilty of Conspiracy” is only one of many possible search phrases to use to find cases where the defendant was found guilty of a lawsuit for conspiracy. Searching on Google, I got 3,170,000 results (as of yesterday) under the term “Guilty of Conspiracy”, 669,000 results for the search term “Convictions for Conspiracy”, and 743,000 results for “Convicted for Conspiracy”.
Of course, many types of conspiracies are called other things altogether. For example, a long-accepted legal doctrine makes it illegal for two or more companies to conspire to fix prices, which is called “Price Fixing” (1,180,000 results).
Given the above, I would extrapolate that there have been hundreds of thousands of convictions for criminal or civil conspiracy in the United States.
Finally, many crimes go unreported or unsolved, and the perpetrators are never caught. Therefore, the actual number of conspiracies committed in the U.S. must be even higher.
In other words, conspiracies are committed all the time in the U.S., and many of the conspirators are caught and found guilty by American courts. Remember, Bernie Madoff’s Ponzi scheme was a conspiracy theory.
Indeed, conspiracy is a very well-recognized crime in American law, taught to every first-year law school student as part of their basic curriculum.
Telling a judge that someone has a “conspiracy theory” would be like telling him that someone is claiming that he trespassed on their property, or committed assault, or stole his car. It is a fundamental legal concept.
Obviously, many conspiracy allegations are false (if you see a judge at a dinner party, ask him to tell you some of the crazy conspiracy allegations which were made in his court).
Obviously, people will either win or lose in court depending on whether or not they can prove their claim with the available evidence. But not all allegations of trespass, assault, or theft are true, either.
Proving a claim of conspiracy is no different from proving any other legal claim, and the mere label “conspiracy” is taken no less seriously by judges.
But as attorney “Zver Muzhik” notes:
Under Federal law, a conspiracy is defined as merely a criminal agreement to commit some substantive underlying offense (e.g., me: “hey, let’s rob that store”, you: “hell yeah, sounds fun”, *start walking towards store*), or to defraud the US Government. Federal conspiracy cases range from penny ante stuff like conspiracy to rob the Kwik-e-mart to more complex schemes like bribery, financial manipulation, etc. But most of those cases are of the penny-ante variety, and thus not like high-level, widespread conspiracies that you discuss above.
A better way to look at it is to ask WHY we punish mere agreements to commit a crime (with one minor act in furtherance). The philosophical reasoning is that a criminal agreement represents a unique and significant threat, versus the ‘lone wolf’ criminal. Thus, we should always be on the look-out for wrongdoing by powerful groups in business or government, as their concerted efforts have the potential to be much more damaging than a single bad actor.
When Sunstein argues that allegations of government conspiracies are bad, he demonstrates little understanding of the concepts of the legal principles involved.
What Sunstein Really Means: Only Allegations of Corruption Against Currently Powerful People Are Bad
As we pointed out in 2010, Sunstein does not attack every conspiracy … only ones which allege corruption among the powerful:
Obama’s current head of the Office of Information and Regulatory Affairs – and a favored pick for the Supreme Court (Cass Sunstein) – previously:
Defined a conspiracy theory as “an effort to explain some event or practice by reference to the machinations of powerful people, who have also managed to conceal their role.”
Sunstein has admitted past conspiracies:
Of course some conspiracy theories, under our definition, have turned out to be true. The Watergate hotel room used by Democratic National Committee was, in fact, bugged by Republican officials, operating at the behest of the White House. In the 1950s, the Central Intelligence Agency did, in fact, administer LSD and related drugs under Project MKULTRA, in an effort to investigate the possibility of “mind control.” Operation Northwoods, a rumored plan by the Department of Defense to simulate acts of terrorism and to blame them on Cuba, really was proposed by high-level officials ….
He only wants to silence allegations of corruption by currently powerful people.
In other words, Sunstein is not only a dimwit when it comes to statistics and legal reasoning, but he is the ultimate bootlicker and defender of the powers-that-be.