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December 2012 & January 2013, No. 176, $6.00


A P u b l i c at i o n o f t h e H o ov e r I n s t i t u t i o n
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D ECEMBER 2012 & JANUARY 2013, No. 176

3 THE POLITICS OF TAX REFORM Getting the simpler, flatter, pro-growth code we need Tammy M. Frisby 15 NO EXIT STRATEGY Recalibrating missions, scaling back ambitions, sticking around Fen Osler Hampson & Tod Lindberg 35 LAW AND ETHICS FOR ROBOT SOLDIERS Autonomous systems and the laws of war Kenneth Anderson & Matthew Waxman 51 THE LIBERALISM OF EDMUND BURKE Navigating the waters between liberty and tradition Peter Berkowitz 69 THE CONTRADICTIONS OF PAIN THERAPY Patients, doctors, and the government at odds Ronald W. Dworkin 83 MISREADING LEO STRAUSS A misbegotten charge of Nazi sympathies Robert Howse

95 THE HARM IN HATE SPEECH LAWS Jacob Mchangama on The Harm in Hate Speech by Jeremy Waldron 102 OBAMAS FOREIGN POLICY David Shorr on The Obamians: The Struggle Inside the White House to Redefine American Power by James Mann and Confront and Conceal: Obamas Secret Wars and Surprising Use of American Power by David E. Sanger 108 ZHUKOV: THE SOVIET GENERAL Henrik Bering on Stalins General: The Life of Georgy Zhukov by Geoffrey Roberts 116 DEREGULATION, ITALIAN STYLE David R. Henderson on A Capitalism for the People: Recapturing the Lost Genius of American Prosperity by Luigi Zingales 121 A SWERVE TOO FAR Marshall Poe on The Swerve: How the World Became Modern by Stephen Greenblatt

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POLI CY Review
D e c e m b e r 2 0 1 2 & J a n ua ry 2 0 1 3 , N o . 1 7 6

Editor Tod Lindberg

Research Fellow, Hoover Institution

Consulting Editor Mary Eberstadt

Research Fellow, Hoover Institution

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Research Fellow, Hoover Institution

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The Politics of Tax Reform

By Tammy M. Frisby

he u.s. federal tax code is in desperate need of reform. In this years presidential election, both Republican nominee Mitt Romney and President Obama made corporate tax reform an issue in the campaigns, and it was one issue on which the candidates found more common ground than difference, with proposals for lower rates and a shift to or, in the presidents case, at least openness to a territorial corporate tax system. There is also broad agreement that the individual side of the U.S. tax code is in disarray. Setting aside the political arguments about who is or is not paying their fair share of income taxes, over the past decade, the U.S. has imposed on itself a regime of temporary tax policymaking. While a favorite statistic of would-be tax reformers is that there have been more than 15,000 changes to the tax code since the last overhaul of the
Tammy M. Frisby is a research fellow at the Hoover Institution. She studies American national politics and public policymaking and is currently working on a book about the politics of tax reform.
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federal income tax system in 1986,1 the defining characteristic of income tax policy in this country is captured by a 2011 publication from the Joint Committee on Taxation (jct). The jct document listed expiring federal tax provisions by year over the decade from 201020. Not including temporary disaster relief tax breaks, the three years beginning with 2010 saw the expiration of 31, 56, and 37 provisions of the federal tax code, respectively.2 Among the most perishable federal tax laws are the set of tax provisions, primarily affecting businesses, which have earned the moniker tax extenders because Congress habitually extends them year-byyear. The tax extenders sit alongside the centerpiece of temporary tax policy in the U.S.: our current marginal rates on earned income. Enacted as a 10-year policy in 2001 during the George W. Bush administration, modified in Among the 2003, and extended for two additional years in most perishable 2010 by President Obama and the Democratic federal tax laws 111th Congress, this tax policy has become a partisan flashpoint and a source of significant are the set of uncertainty for U.S. taxpayers. If the Bush (or Bush-Obama) tax rates are allowed to expire tax provisions under current law at the end of the 2012 calenextended by dar year, the marginal rates on earned income Congress yearwill increase from 25, 28, 33, 35 percent to 28, 31, 36, and 39.6 percent, and the 10 percent tax by-year. bracket will be reinstated. All this temporary tax policy making has culminated in more than three-dozen expiring tax provisions that form strata in what has come to be known as the fiscal cliff. The fiscal cliff is a set of federal fiscal policies, including tax increases, new taxes, and Medicare provider payment cuts enacted with the Affordable Care Act, along with impending cuts to national defense and discretionary spending enacted as part of the sequestration provisions of the Budget Control Act of 2012, that are scheduled to go into effect on January 1, 2013, or sometime during that year. In addition to the marquee increases in marginal income tax rates, the fiscal cliff is comprised of a spate of other expiring tax provisions, including: the American Opportunity Tax Credit, the doubled Child Tax Credit (now $1000, up from $500 per child), enhanced refundability of the Child Tax Credit, expansion of the Earned Income Tax Credit (eitc), elimination of phase-outs for itemized deductions and personal exemptions, reduction in the marriage penalty, lower capital gains rates (15 percent instead of 20 percent), 15 percent dividend tax rate rather than taxation as ordinary income,
1. The Presidents Economic Recovery Advisory Board, The Report on Tax Reform Options: Simplification, Compliance, and Corporate Taxation (August 2010).

2. Staff of the Joint Committee on Taxation, List of Expiring Federal Tax Provisions, 2010 2020, jcx2-11 (January 21, 2011).

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The Politics of Tax Reform

and the estate tax reduction from 35 percent over $5 million reverting to 55 percent over $1 million. Together, the cost of all income tax provisions will be $110 billion for 2013, $340 billion for 201314, and $2.8 trillion for the ten-year period 201322. Add to that the expiration of the 2 percent payroll tax holiday (2013 cost: $90 billion) and a set of tax extenders including the r&e tax credit and the alcohol fuel tax credit ($30 billion in 2013, $455 billion from 2013 to 2022).3 In total, if all fiscal cliff provisions are allowed to expire or take effect, the Congressional Budget Office (cbo) estimates that the U.S. economy could contract by 2 percent of gdp, causing a mild recession.4 That prospect aside, the inconvenient truth of contemporary U.S. tax policy is that the country is trying to create sustained economic growth using temporary tax laws. At the edge of At the edge of the fiscal cliff, there is a sense that the fiscal cliff, this is a rare moment of opportunity for major polithere is a sense cy change. In less lofty terms, there is the practical concern that building a legislative coalition for that this is a rare repair of any one part of this spit-and-baling-wire moment of tax code will require offering up changes to many other parts of the law; the only way forward is to opportunity for address the dysfunction of the entire tax code. And major policy then there is the current conventional wisdom on Capitol Hill that holds that avoiding the fiscal cliff, change. or even lessening the policy changes associated with it, will require coming up with a sidecar deal that is a framework for deficit reduction. That budget deal would include a target number for increased federal tax revenue, and members of Congress would approach raising that revenue with an eye to comprehensive tax reform. Most serious talk of comprehensive tax reform harkens to the last major overhaul of the U.S. tax code, the Tax Reform Act of 1986. The ensuing exercise in lessons learned tends toward a focus on bipartisanship and lawmakers who frustrated the efforts of lobbied interests. Yet, while a hagiographic legislative history of the 1986 law does provide us with useful lessons about the pursuit of major tax reform, there are important differences in todays economic and political circumstances that mean that another round of tax reform should not be approached as 1986 Tax Reform Act version 2.0. As a model for tax reform in 2013 or 2014, the lessons about what made 1986 work are as often cautionary as exemplary. As we look over the edge of the fiscal cliff to a second Obama administration and the
3. The Fiscal Impact of Policies that Expire or Activate in or After 2012, Committee for a Responsible Federal Budget.

4. Economic Effects of Reducing the Fiscal Restraint That Is Scheduled to Occur in 2013, Congressional Budget Office (May 2012), and Economic Effects of Policies Contributing to Fiscal Tightening in 2013, Congressional Budget Office (November 2012).

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113th Congress, todays economic conditions and politics mean that another round of tax reform will not just be different; it will probably be more difficult to achieve.

Revenue neutrality?
he highest hurdle to building a lawmaking coalition for comprehensive tax reform is that todays reformers do not begin their negotiations with a preexisting consensus on whether tax reform should raise additional revenue or be revenue neutral. To hew to the principle of revenue neutrality requires that the revised tax code bring in the same amount of revenue no more, no less as flowed to the U.S. Treasury under the earlier law. At the outset of the tax reform debate in 1985, the major players all signed on to the ultimate objective of revenue neutrality. Negotiations then proceeded within that set framework. The task ahead was how to redistribute the total tax burden.5 Today, the lines of argument are clear and largely, although not perfectly, partisan. Democrats on Capitol Hill have called for increased revenues to fund current spending levels, which drastically outstrip current revenues. Republicans, led by Senate Minority Leader Mitch McConnell and vocal members of the House Republican Conference, have assumed a public position that takes a hard line against additional revenue. The Republicans negotiating position became more complicated in the days following the reelection of President Obama when House Speaker John Boehner signaled willingness to raise some revenue by closing loopholes in the tax code. But the gops ability to move from its stated opposition to revenue increases is hampered by a political force that was not at play in the 1980s: the Americans for Tax Reform (atr) Taxpayer Protection Pledge, also referred to as the Grover Norquist (the head of atr) pledge. With the pledge, candidates and officeholders commit to oppose any and all tax increases. In the words of the pledge, members of the U.S. House and Senate will: One, oppose any and all efforts to increase the marginal income tax rates for individuals and/or businesses; and two, oppose any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates. According to atr, 258 members of the 113th Congress, including all Republicans save for Rep. Robert Andrews of New Jersey, have signed the pledge. Only sixteen House and six Senate Republicans have declined to sign the pledge to date. Norquist reinforces the pledge with repeated public assurances that members of Congress who cast votes that atr (read: Norquist) deems a tax increase will find themselves subject to election year campaign ads and
5. Jeffrey H. Birnbaum and Alan S. Murray, Showdown at Gucci Gulch: Lawmakers, Lobbyists, and the Unlikely Triumph of Tax Reform (Vintage Books, 1988).

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grassroots outreach that charge the lawmakers with breaking a promise on taxes. Although Norquists critics protest that the pledge binds legislators to Norquist rather than lawmakers to their constituents, the specter of atrs response to a pledge violation undoubtedly hangs over tax policy negotiations in Washington, D.C. The intensity of the disagreement about the importance of revenue neutrality versus the need for additional revenue is amplified by the scale of the budget deficits now run by the U.S. federal government. In the 1985 fiscal year, the federal budget deficit was $212 billion, that is, 5 percent of gdp.6 Contrast that with fiscal year 2012, in which the federal government ran a budget deficit of $1.1 trillion, 7 percent of gdp, and it was the fourth consecutive year that the federal budget deficit was more than $1 trillion dollars. As a percentage of gdp, the federal budget deficit declined from its 2011 level of 8.7 percent, but the 2012 deficit was the fourth highest share of gdp since 1946.7 Perhaps the more central political problem that impedes consensus building around the revenue target is the near extinction of the deficit hawks within the Republican party. Over the past several decades, and throughout the George W. Bush administrations (see: two rounds of tax cuts, creation of an entitlement program with the Medicare Part d prescription drug benefit, and two prolonged and unfunded wars in the Middle East), it is hard to find evidence of the effective efforts of deficit hawks in the gop. Within the gop, the party leadership role on tax policy has been assumed by the supply-siders, who prioritize using tax policy as a tool to promote economic growth over taxation as a means of generating revenue to fund government activities and programs. The core defense of the supply-side approach is that recent history has demonstrably proven that the U.S. federal government has what appears to be an insatiable appetite for tax revenue. Accordingly, the guiding first principle of taxation is to set tax rates at levels that increase the private income produced by the economy. Contrast this contemporary balance of power between supply-siders and deficit hawks with the history of tax policymaking during the first Reagan administration. When the first round of Reagan tax cuts, the Economic Recovery Tax Act, were passed in 1981, internal debates at the White House began shortly thereafter. Deficit hawks pushed back against the supplysiders, pointing to the most recent budget projections, post-tax cut, that showed increasing deficits. The legislative product of these Republican debates in the Reagan White House was the Tax Equity and Fiscal Responsibility Act (tefra) of 1982, which brought more tax revenue into the U.S. Treasury. The general approach with tefra was threefold. First, the tax collection
6. Office of Management and Budget, Fiscal Year 2013 Historical Tables, Budget of the U.S. Government.

7. Congressional Budget Office, Monthly Budget Review (November 2012).

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system was changed to bring more revenue into the Treasury by increasing compliance (e.g., tefra imposed withholding on interest and dividends, expanded information reporting, and increased penalties on non-compliance). Second, tax preferences were eliminated or their use was restricted (e.g., repeal of safe-harbor leasing, repeal of future acceleration of depreciation allowances, strengthening of individual minimum tax, and tightening of the completed contract accounting method of accounting rules). Third, some taxes were increased, including airport and airway trust fund taxes, cigarette and telephone excise taxes.8 None of this is to suggest, contrary to obvious fact, that the Reagan years were a model of fiscal restraint by the federal government. Instead, the unsettling conclusion is how far we have traveled even from the imperfection of 1980s fiscal policyOver the past making. several decades, There is certainly a story to be told about the disappearance of the deficit hawks among the it is hard to find Democrats and the dwindling of the Blue Dog memevidence of the bership in the Democratic Caucus. But the domieffective efforts nance of the supply-side way of thinking in the Republican Party has, by itself, fueled the process of of deficit hawks party polarization on taxation issues and created a in the gop . wide gulf between Republicans and Democrats. Another demonstration of supply-side influence is the growing adherence, on the Right, to dynamic scoring analysis of fiscal policy changes. As a consequence, it is arguable that the political Rights general approach to tax policy is further to the right than it was in the 1980s. Dynamic scoring refers to an approach to forecasting the fiscal impacts of legislation that takes into account a broader range of changes in individuals and firms incentives and behavior, with a view to longer-term response to changes to the status quo by the overall economy. Advocates of dynamic scoring argue that the method, when done correctly, produces more accurate predictions of systemic response to change than a more simplified static analysis. Under dynamic scoring, with its incorporation of broader economic effects, reductions in tax rates and the overall tax burden are usually forecast to produce higher rates of economic growth and, therefore, larger tax receipts than are estimated under more static methods of scoring. Because dynamic scoring shows lower tax rates can produce tax revenue equal to or exceeding at status quo levels, the practical effect on tax politics of choosing dynamic over static scoring is to move preferred tax rates lower. The effect of this, then, is to move the preferred tax rates of the political Right further away from the preferred tax rates of the Left, even if the two groups could manage to agree on a revenue target.
8. C. Eugene Steuerle, Contemporary U.S. Tax Policy (Urban Institute Press, 2004). .

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The Politics of Tax Reform

The politics are complicated further because, under current law, the cbo is required to score, or estimate the cost and fiscal impact of legislation, based on a method of analysis that does take into account change in individual and firm behavior but does not include estimates of macroeconomic feedbacks. In other words, the cbo does not forecast whether a change in fiscal policy would affect gdp growth, which would, in turn, affect tax revenues. As we approach the threshold of major tax reform, advocates of dynamic scoring must decide whether to agree to proceed with the current, less dynamic model. If they want the revenue enhancement that comes with more dynamic scoring, they must fight an internal legislative battle to change the law that governs cbo practice before tax reform begins. In February 2012, the House took a step in this direction by passing H.R. 3582, which would require the cbo and the Joint Committee on Taxation (jdt) to prepare scores of major legislation that would incorporate estimates of how changes in tax policy would impact the overall economy and affect the size of the economy as measured by gdp.

Writing tax law

greement on the objective of either revenue neutrality or increased total tax revenue leads to another briar patch of policy choices. For all the guidance that the 1986 reforms can provide, todays economic conditions, political debate, and changes in the tax code since 1986 have created circumstances markedly different from those leading up to the 1986 Tax Reform Act. Under these new circumstances, lawmakers do not enjoy the same flexibility to change rates, or modify or eliminate exemptions, exclusions, and deductions. When assessing the specific policy choices ahead in tax reform, the starting point should be a decision about the relationship between the corporate and individual sides of the tax code in that reform effort. If both corporate and individual taxes will be reformed at the same time, as they were in 1986, what are the revenue targets for each side of the code and how will those revenue targets be coordinated with one another? In practical terms, will tax cuts on one side of the code be paid for by revenue increases on the other? Taken by itself, reform of todays corporate tax code is relatively straightforward in terms of both policy and politics. There is a broad, bipartisan consensus among economists and politicians that U.S. corporate tax system makes the U.S. uncompetitive in the global marketplace, so the corporate tax burden in the U.S must, as a general rule, be lessened. But the often unacknowledged result of such reform to the corporate tax code is lower revenue on the corporate side, at least in the short run, as corporations enjoy a lower tax burden, including tax holidays for repatriated corporate income. The intended outcome of these lower rates is to produce stronger economic growth, which would produce higher tax receipts on
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both the corporate and individual side of the tax code under dynamic scoring. In at least the first few years of any cbo scoring estimates, however, it is most likely that corporate tax reform would generate less tax revenue than the existing corporate tax code. The question then confronting lawmakers is whether they will set out to achieve revenue neutrality or increase revenue across the entire tax code by offsetting the lost revenue on the corporate side with revenue increases on the individual side. The latter approach means that reforms to the individual side of the code would not be revenue neutral overall. If lawmakers have embraced the goal of increased revenues across the entire tax code, this would require an especially heavy burden on individuals and businesses that pay taxes through the individual side of the code. The dual treatment of the corporate and individThe question ual tax codes is a daunting challenge when assessed for lawmakers is as a snapshot in political history. But is even more whether theyll intimidating when one understands the approach taken in 1986. During the 1986 reforms, revenue set out to neutrality was sought across both halves of the tax achieve revenue code taken together. The result was that corporations were projected to take a $120 billion tax hit neutrality or over 5 years to help offset rate reductions on the increase revenue individual side.9 Given the political rhetoric surrounding international competitiveness and the need across the to reduce the corporate tax burden, it seems unlikely tax code. that we will see the same balance across the tax code today as 1986. The individual side of the tax code has its own political land mines, ones different from those of 1986. Four of the most difficult to legislate through or around are the capital gains rate, the home mortgage interest deduction (mid), the Alternative Minimum Tax (amt), and the Earned Income Tax Credit (eitc). First, one lucrative (in terms of tax revenue) and politically appealing option to Democrats for raising revenue is an increase in the capital gains tax rates. In 1986, Reagan, along with House and Senate Republicans, went along with a sizeable increase in the long-term capital gains top rate (jumping from 20 percent to 33 percent) in exchange for lower marginal rates on earned income. The blocking factor today comes from Republicans, who, by all accounts, consider an increase in capital gains rates anathema. Second, the prolonged downturn in the U.S. housing market has increased the financial stakes for the housing lobby, led by realtors and home construction and related industries, and current American homeowners. In the near-term, a significant reduction of the mortgage interest deduction would
9. James M. Poterba, Why Didnt the Tax Reform Act of 1986 Raise Corporate Taxes? nber Working Paper 3940 (December 1991).


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be expected to bring down home values as new buyers would no longer price the tax deduction into the total cost of the home. In an already weak housing market, the prospect of buyers being able to afford less and the general uncertainty produced will provide strong incentives for housingrelated industries to engage in Capital Hill lobbying and grassroots efforts to obstruct even a minor modification to the mid. One should not underestimate the challenge of reforming this provision in the tax code even under much better economic circumstances. During the 1986 reforms, the mid was pared back, but the restriction took only multiple vacation homes off the table; interest on first and second homes remained deductible. Third, the growing problem of the amt creeping downward to middle-income taxpayers, as it has The individual over two decades, constrains the ability of lawmakside of the tax ers to use revenues tapped by closing loopholes to offset lower marginal tax rates. Originally intended code has its to curb the extent to which high-income earners can own political use extensive deductions and exemptions to reduce their effective tax rate, the amt was never indexed land mines, ones for inflation. Congress has regularly passed amt different from patches to prevent the parallel tax rate system those of 1986 . from falling too far down in the middle-income ranges. But any measures taken to either repatch or permanently modify the reach of the amt will reduce revenue under current law, and that foregone tax revenue will need to be collected through other means. In the fiscal cliff negotiations, fully patching the amt to shield middle-income households consistent with current policy (prior practice by Congress) will cost $125 billion for 2013 relative to current law. Over the decade from 201322, the total cost would be $1.7 trillion. Fourth, after the 1986 reforms, Democrats were able to point to the expansion of the Earned Income Tax Credit (eitc) as one of their major legislative victories for the working poor. The 1986 tax reforms took millions of Americans off the tax rolls through the expansion of eitc eligibility. But it is difficult to imagine further expansion of the eitc program in 2013. The budgetary challenge is where to find the additional revenue for expansion when the pruning of eitc eligibility as well as the refundability of the tax credit will be eyed as sources of revenue. The low-hanging fruit of revenue generation would be to bring more Americans back onto the tax rolls through modifications to the tax code. That approach naturally follows from the rhetoric of many high-profile conservative and Tea Party leaders, who emphasize the fiscal burden of the high percentage of Americans who have paid no federal income tax in recent years. For some, calls to lower that percentage have taken on a sort of moral imperative. With these considerations in play, it seems highly unlikely that eitc expansion will be used to build the legislative majority for tax reform.
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The state fiscal mess

ax reform strategists will also need to take into account that the set of most-feasible policy choices are now determined, in part, by the budget woes of the U.S. states. The combination of unexpectedly low tax revenue as a result of the deep recession and slow recovery, along with increased demand for social services, especially Medicaid, and the public pension crisis, have led some state governments to pursue tax increases to address their budget shortfalls. At the federal level, one source of revenue would be the elimination or modification of the deduction of state income tax from adjusted gross income. The jct reports that in 2010, the federal governments total tax expenditure for state and local income, sales, and personal property tax deduction was more than $39 billion. jct estimates put foregone tax revenue from these deductions at $46 billion in 2012 and $54 billion for 2013.10 But if states also raise tax rates, the bite into state residents pocketbooks will be larger if state tax payments are no longer deductible. It seems reasonable to expect that members of Congress, especially those from high tax states, will be difficult to persuade on this aspect of tax reform.

The road ahead

s the strategic assessment of the political environment for tax reform continues, there are a set of questions that should shape our thinking about the likelihood of achieving comprehensive tax reform and what that reform could entail. Among them are: Legislative language and skin-in-the-game. Is the legislative groundwork as firm in 2012 as in 1986? And, if not, how will that matter, if at all? Todays tax reformers begin from the touchstone of the Simpson-Bowles deficit reduction plans, but beyond those proposals, little legislative language has been penned and dropped in the hopper. As of this essays publication, only Senator Ron Wyden (d-wy) has introduced a comprehensive tax reform bill. Co-sponsored by Senators Daniel Coats (r-in) and Mark Begich (d-ak), the Bipartisan Tax Fairness and Simplification Act of 2011 (S. 727) includes specific language about rates and the closing of loopholes. This bill stands in stark contrast to the pack of bills that have been introduced in the 112th House and Senate that are merely general calls for Congress to take up tax reform. Compare this to the two years before passage of the 1986 reforms, when
10. Joint Committee on Taxation, Estimates of Federal Tax Expenditures for Fiscal Years 20112015, jcs-1-12 (January 17, 2012).


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The Politics of Tax Reform

there were detailed plans from the Reagan Treasury department (the first plan, called Treasury I, was submitted to the president in late 1984) and five detailed reform bills from members of Congress of both parties. Although recent public attention during the 2012 presidential campaigns focused on the tax plan forwarded by Rep. Jack Kemp (r-ny) and Senator Robert Kasten (r-wi) as a model for the final 1986 reforms (that focus can be credited to the nomination of Kemp protg Rep. Paul D. Ryan of Wisconsin to the Republican vice presidential slot), the tax bills of Senator Bill Bradley (dnj) and Rep. Richard Gephardt (d-mo) also provided legislative language that was drawn on throughout the 19851986 reform debates. Just as important, if not more, is that Bradley and Gephardt had sought to build their reputations as leaders on tax reform and were motivated to work with the Reagan White House to bring a bill to the presidents desk. Divided and conquered. On the corporate side of the code, are the corporate lobbyists as divided today as they were in 1986? The success of the 1986 reforms was rooted in the division within industries, e.g. big oil vs. smaller producers, large banks vs. small banks. With the political momentum running in the direction of reducing the corporate tax burden, offsetting those reductions will be easier if there are soft targets among the corporate interests. Whos rich? On the individual side of the code, where will Senate Democrats fall on the question of where high earner status begins? Democrats who represent Blue states with very high-income areas and high costs of living (e.g., California, Washington State, New York, Connecticut, New Jersey) will be cross-pressured to move the high earner threshold above the current line of $200,000/individual and $250,000/household. If these Democrats form a coalition with Republicans to set the high-income marker at $500,000 or $1 million, that will make it more difficult for President Obama to issue a credible veto threat. The House Democrats who feel these same cross-pressures will be useful to House Speaker John Boehner if Democratic votes are needed to get final passage on tax reform in that chamber.

From lose-lose to win-win?

nlike in 1986, if tax reform happens in the next two years, it will likely be the revenue half of a larger budget deal that includes changes in discretionary spending growth and mandatory entitlement programs. The most important question ahead of us might be whether the prevailing view of a Grand Bargain on U.S fiscal policy can be shifted. Currently, the focus is on what both sides lose in the deal. Democrats would agree to modifications and spending reductions for entitlement programs while Republicans agree to tax increases. For all the concessions on all sides, the 1986 tax reform deal was one
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that, overall, left each side to walk away from the negotiating table with more than they arrived. Democrats, led in the negotiations by House Ways and Means Chairman Dan Rostenkowski, a Democrat from Illinois, won the expansion of the eitc and a tax code that made it more difficult for the highest earners to pay very low tax rates or no taxes at all. Republicans achieved the goal of lower rates and a broader tax base, even though some taxes, such as the capital gains rate, were increased. In these new negotiations, a Democratic White House could be crucial to bringing congressional Democrats, especially those in the Senate, on board for entitlement reforms. If the message out of the White House focuses on the preservation of these programs and the end to the intergenerational inequality perpetuated by their current design, then that side of the fiscal deal can be a victory for Democratic constituencies. President Obamas support for entitlement program restructuring that raises payroll taxes and reduces benefits for some recipients by raising the eligibility age and changing the formula for calculating benefits would, at a minimum, give congressional Democrats political cover for voting for changes to these programs cover that, it should be noted, would have been sorely absent from a Romney White House. Had Romney won the presidency, Democrats would have had strong incentive to play the role of obstructionist, teeing up a campaign issue for the midterm elections of 2014 and the 2016 White House run. The challenge for House and Senate Republicans is to refocus on the big win of a simpler, flatter, pro-growth tax code, instead of remaining stuck on retaining the current marginal tax rates on the highest earners. In the lame duck session of the 112th Congress, the negotiations over the tax burden for high earners offer Republicans an opportunity to voluntarily move away from the hard line defense of the top marginal tax rate. That said, if President Obama, Speaker John Boehner, and Senate Minority Leader McConnell can agree to keep the current highest marginal rate while reducing specific tax preferences or enacting a cap on total tax deductions at a level designed to affect the highest earners, that would signal that both sides are ready to enter the long process of major tax code reform with a central focus on interests rather than positions.


Policy Review

No Exit Strategy
By Fen Osler Hampson & Tod Lindberg

xit strategies are back in vogue. The Afghanistan campaign has not gone terribly well in the past several years and a deadline of sorts for withdrawal has been set for the mission in 2014. In the case of Iraq, the Obama administration declared that the combat mission was over following the successful surge strategy and removed U.S. troops by the end of 2011. These exit strategy deadlines were set against a background of continuing political instability and violence in both countries. Exit strategy is a term that originally comes from business.1 It is the method by which venture capitalists or the owners of a business shed an investment that they own. The concept gained currency in relation to military interventions in the 1980s and 1990s in what became known as the Weinberger-Powell Doctrine. In the aftermath of the disastrous bombing of the U.S. Marine barracks in Lebanon in October 1983, Secretary of Defense Caspar Weinberger outlined six conditions for the proper application of U.S. force: (1) U.S. vital interests at stake; (2) a clear commitment to achieving
Fen Osler Hampson is chancellors professor and director of the Norman Paterson School of International Affairs at Carleton University. Tod Lindberg is a research fellow at the Hoover Institution and editor of Policy Review.
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victory; (3) clear political and military objectives; (4) the level of military engagement matches the missions key objectives; (5) domestic and congressional support secured prior to the mission; and (6) use of force only as a last resort.2 The concept was refined and amplified by then-Chairman of the Joint Chiefs of Staff Colin Powell just prior to Operation Desert Storm in 1991. Fearing another Vietnam-style disaster if U.S. troops were deployed to oust the Iraqi forces that invaded Kuwait, Powell argued that the mission would only succeed if its objectives were clearly identified and attainable, the commitment to achieving those objectives was firm, political support was widespread, and force could be used quickly to overwhelm the enemy and with a minimum number of casualties. As Jeffrey Record notes, in the aftermath of the first Gulf War and the subsequent decade of U.S. military interventions in Africa, the Caribbean, and the Balkans, there [was] a rising clamor on Capitol Hill and within the Pentagon for clear exit strategies before resorting to force overseas.3 In 1996, U.S. National Security Adviser Anthony Lake stated that before the United States sends its troops into a foreign country we should know how and when were going to get them out.4 The concept of exit strategy has also had its critics. Gideon Rose, for example, argues that the concept should be jettisoned because it lumps together several important issues that are best handled separately. In any intervention, the key considerations are not just whether the blood and treasure are being used in endless futile attempts to impose order and create harmony but what interests are at stake, whether a stable order can be left behind, and whether overcommitment can be avoided . . . through selective intervention. Rose also believes that the challenge is one of handling unexpected developments through well-conceived contingency plans. Likewise, Record argues that the idea of a sure-fire, pre-hostilities road map to post-hostilities military extrication is a delusion. Having a concept of success is always good, but having a healthy appreciation of the difficulties of maintaining it in the face of wars vicissitudes is even better. We argue here in favor of eschewing exit-based strategies driven by political agendas and hastily drafted timetables for withdrawal. But we do so on somewhat different grounds from those that have traditionally been advanced, which focus either on the need to leave a stable order in place before foreign troops are extricated and/or to defeat insurgents so that a viable set of political institutions can be established by local authorities.
1. Carolin Decker and Thomas Mellewigt, Thirty Years After Michael E. Porter: What Do We Know About Business Exit? The Academy of Management Perspectives 21:2 (2007).

2. Kenneth J. Campbell, Once Burned, Twice Cautious: Explaining the Weinberger-Powell Doctrine, Armed Forces and Society 24:2 (1998). 3. Jeffrey Record, Exit Strategy Delusions, Parameters 31:4 (200102). 4. Gideon Rose, The Exit Strategy Delusion, Foreign Affairs 77:1 (1998).


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Instead, we argue that decisions about whether to keep a mission alive should be based on what some refer to as a real options perspective, which takes into account the uncertainties of the mission and the costs of both entry and exit. When there are major political uncertainties associated with the payoffs of an exit strategy, we argue that the wisest and most prudent course of action is to wait until there is more information available about the costs and benefits of departure. Persistence in the face of adversity even as one continues to incur losses may well be the rational (and right) course of action, especially if one isnt sure whether the situation is going to improve anytime soon if one hangs around or get a lot worse if one leaves. At the same time, staying put is not an argument for sticking with a military or political strategy that is failing to achieve its goals. An effective strategy should be flexible and A no exit resilient, and based on the achievement of specific, strategy doesnt clearly defined milestones rather than the clock. In military terms, the challenge, especially in a country automatically like Afghanistan, is not to look at the problem in look for the terms of winning the war or getting rid of the insurgents. Rather, the objective should be to battle insuremergency exit gents to a strategic stalemate where they can be held when smoke in check (while retaining a firm upper hand) and to fills the room. increase the incentives for insurgents to come to the negotiating table. That is, there is a clear bargaining element to such a strategy. At the same time, greater responsibility for containing the insurgency should be handed over to local authorities who have developed the requisite capabilities. Politically, such a strategy should also be directed at promoting a nationalist-based leadership that has the support of the people not just in the cities but also the countryside. A no exit strategy is a strategy that does not automatically look for the emergency exit when smoke fills the room and the house under construction seems to be on fire. It is a fire-fighting strategy that first seeks to gather information about the source of the fire, then to control it until the local fire brigade arrives and is ready to take over. A no exit strategy also recognizes that there may be times when intervention is necessary before it is possible to have a well-founded sense of what a successful outcome will look like. In the case of an intervention that topples a states political leadership, as in Iraq or Afghanistan, it may not be possible to gauge in advance what kind of successor regime can be stood up or how long it will take before the successor can take over security responsibilities. Likewise, it may not be possible to know in advance what the successor regimes view of the ongoing presence of U.S. forces is. In some instances, a complete U.S. departure might be desired. In others, an ongoing U.S. military presence may be a source of reassurance to the successor regime. That presence, in turn, may take any number of forms, from a military base relatively disengaged from the local population and local politics, to an ongoing trainDecember 2012 & January 2013 17

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ing mission engaging U.S. forces with local counterparts, to a more kinetic role for U.S. forces in support of counterinsurgency operations. While political leaders will want to ponder these questions before an intervention, it is hubris to assume that they can be definitively answered beforehand before, that is, the new facts on the ground created by and in response to the intervention have been assessed. Accordingly, an exit strategy is more hope than strategy. A no exit strategy, by contrast, focuses on what it is possible to achieve to further U.S. objectives at any given moment.

Sunk costs, exit, and uncertainty

hen is it prudent to dispose of a failing enterprise or investment, including an intervention that has turned sour? Common sense would suggest that an irreversible investment that is to say an investment the costs of which cannot be recouped should be abandoned when the costs of sustaining the investment are greater than the benefits that come with it. In other words, there is no point throwing good money after bad and the best thing to do is to ignore those sunk costs even if they involve substantial treasure and lives and focus on the benefits that will come with exit and expending those precious resources elsewhere. There is a substantial body of research indicating that decision-makers tend to be more preoccupied with costs (as opposed to the benefits) that come with a new course of action. This is because individuals are inherently risk averse. As Welch notes, elites will change policy not to secure gains but to avoid actual, impending, and painful losses. Further, change takes place when policy fails either repeatedly or catastrophically, or when leaders become convinced that it will imminently do so.5 In recent years, some economists and business scholars have also argued that uncertainty plays a critical role in decision-making and that when uncertainty about future payoffs is high it is entirely rational and indeed prudent not only to keep ones options open, but also to stay within the zone of persistence (i.e., not to suddenly or precipitously dispose of an asset or failing investment) until the fog lifts and the future becomes clearer.6 If there are no sunk costs or expenditures are minimal, there is no economic rationale for holding onto a losing asset or sticking with a strategy and accepting further losses. However, when significant sunk costs are present, it is entirely rational to persist and endure some amount of losses if there is some probability that conditions will improve.
5. David A. Welch, Painful Choices: A Theory of Foreign Policy Change (Princeton University Press, 2005), 46.

6. Jonathan OBrien and Timothy Folta, Sunk Costs, Uncertainty and Market Exit: A Real Options Perspective, Industrial and Corporate Change 18:5 (2009). Available at ~obriej8/Res/icc09.pdf (this and subsequent links accessed Nov. 5, 2012).


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This so-called real options perspective on exit choices also dictates that we should not ignore the value of sunk costs like so much spilled milk, as many economists would argue, because they allegedly have no bearing on net present value (npv). Rather, we should take into account in our decisions the value of persistence and the fact that exit is rational not when the net present value of remaining [with a given course of action] falls below zero, but when expected losses exceed the value of this option.7 In the real world of human events, sunk costs are not independent of the future. This is because the activities associated with those costs can change the trajectory of events moving forward. So it is with a military intervention directed at promoting stability and security. What you do now will have an impact on developments later. The relationship between the previous sunk costs of intervening in a conflict and the future costs of re-establishing yourself should you be forced to intervene again are therefore correlated. Consequently, as these costs rise for any future intervention in the same conflict, the probability (and desirability) of exiting now should fall if one is looking at these costs rationally. A number of corollaries flow from this argument. The first is that it is not just the expected value of future returns (or profitability) that matters, but the general distribution of any future costs and benefits. When there is greater uncertainty about the shape of that distribution, there is, by definition, a greater probability that things might turn around in the future (and if things do in fact get worse or a lot worse exit is always an option later on). The presence of high levels of uncertainty therefore should deter a decision to exit, especially when sunk costs are high. When sunk costs are appreciably lower or decline substantially with the passage of time exit may become a more attractive option. A second corollary is that exit becomes a more attractive option if one is able to transfer critical competencies to other military partners without incurring further major losses, especially if the sunk costs one has accumulated in the interim are relatively small. Although such transfers may take time, the inertia of sticking with a particular course of action is not crippling in the sense that the delay in getting ready to exit is a function of the need to prepare ones partners properly to assume core competencies.

unk costs and political uncertainty should be at the forefront of any strategic analysis of post-intervention extrication in Afghanistan (and by extension also Pakistan) and elsewhere. As one of the costliest withdrawals in the first half of the 20th century underscores the end of the British reign in Mesopotamia in 1932 a premature pullout can
7. OBrien and Folta, Sunk Costs. .

Iraq, Haiti, Afghanistan

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rapidly lead to a situation of escalating violence and the unravelling of all that one has been trying to achieve, as Rayburn puts it.8 The British occupation of Iraq was unquestionably costly. Thousands of lives were lost as the British tried to quell a Shiite-led revolt, and the mission was not at all popular with a public still weary from the First World War. British Colonial Secretary Leopold Avery was able to stave off attempts to scuttle the mission from the Conservative governments Labour critics and a succession of parliamentary challenges in 1925 and 1926. Following a factfinding mission in 1925, Avery declared that the British would reap a substantial return from their investment and that Iraq would soon be a model of development and democracy for the entire region.9 But his view was not shared by Sir Samuel Hoare, the head of the Air Ministry, who questioned the mounting costs of occupation and publicly announced, undoubtedly with Prime Minister Stanley Baldwins approval, that once a border dispute with Turkey was settled British troops would be pulled out. In March 1927, the Baldwin government withdrew its last battalion. Almost as soon as it had done so, however, the country was attacked by thousands of Wahhabi Ikhan brothers, a Salafi sect that sought to dominate the local Shiite population. The leader of Turkey, General Ataturk, who earlier in the decade had led an unsuccessful attack against Mosul, also began to whip up an insurgency against the Iraqi government. As Rayburn observes,
when the [British] mandate actually ended in 1932, Iraqs British-built institutions began, one by one, to collapse. With the occupiers gone, Iraqs Sunni Arab elite used the army not to defend the state against foreign invaders, but to suppress Iraqs Assyrians, Kurds, and Shiites . . . By 1939, Iraqs military rulers had become openly hostile to the United Kingdom. When war broke out in Europe, Baghdad opened back channels to the Axis powers, and it finally opened up the country to Hitler in 1941. Faced with the prospect of an Axis stronghold on their line of communication to India, the British were forced to invade Iraq once again. As British troops approached Baghdad, Iraqi soldiers and police carried out a final act of official butchery, slaughtering hundreds of Iraqi Jews. There followed a second British occupation of the country that lasted until 1948.

Rayburn concludes that had the United Kingdom stayed longer the first time around, much of this mayhem could have been avoided. Hindsight is 20-20, but the bigger lesson is clear. Had the British been less focused on what occupation was costing and more attentive to the future and what their departure might mean, they might have avoided tragedy and
8. Joel Rayburn, The Last Exit from Iraq, Foreign Affairs 85:2 (2006). 9. Quoted in Rayburn, Last Exit.


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the substantial costs that came with having to intervene in Iraq a second time around. A succession of U.S.-led and un-supported interventions in Haiti to restore peace and democracy points to some of the same lessons of the British exit from Iraq. In 1990, four years after the fall of the corrupt, despotic, and long-lived Duvalier regime, Haiti staged democratic elections. However, the newly elected populist but erratic president, Jean-Bertrand Aristide, was soon ousted by a military coup. After a number of abortive efforts to evict the military from power by negotiation and persuasion, the un Security Council passed a resolution authorizing the use of all necessary means to facilitate the departure from Haiti of the military leadership. The United States recruited nineteen countries to participate in a multinational force. Just prior to the U.S.-led and planned invasion, President Clinton dispatched forU.S.-supported mer President Jimmy Carter, Colin Powell, and Sam interventions in Nunn to negotiate a peaceful landing of the multinational troops and the departure of the military Haiti point to regime. Agreement was subsequently reached for a major un peacekeeping operation to stabilize the some of the same country and restore democracy in the period from lessons of the 1994 to 1996. British exit Both the U.S. operation and the un deployment were based on an approved exit strategy tied to from Iraq. restoration of democratic government, the establishment of a stable environment, and the conduct of free and fair elections in February 1996, which would mark the end of the mandate. Following the elections, the un presence was reduced to a small international peace force whose main role was to train the Haitian police and build up domestic capacity.10 In January 2000 all remaining U.S. soldiers were pulled out of the country against the background of a deteriorating security situation and mounting domestic violence. Follow-on un missions in the country were not supported by reliable funding arrangements and were saddled with impractically short mandates. Foreign assistance to Haiti was also shortlived and increasingly volatile. As Sebastian von Einsiedel and David Malone further observe, In the absence of any serious engagement between 2000 and 2004, the political stalemate [in the country] hardened, the economic situation remained dire, and the security and human rights situation continued to deteriorate.11 In 2004, much of the country was in open revolt against President Aristide, who was ruling by decree and using his henchmen to brutalize the
10. Kevin M. Benson and Christopher B. Thrash, Declaring Victory: Planning Exit Strategies for Peace Operations, Parameters 26:3 (1996).

11. Sebastian von Einsiedel and David M. Malone, Peace and Democracy for Haiti: A un Mission Impossible? International Relations 20:2 (2006).

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opposition. He was eventually forced to step down. On the same day he left Haiti, February 29, 2003, the un Security Council authorized the deployment of a 3,000 member Multinational Interim Force (mif), later replaced by a un peacekeeping mission, to restore order and stabilize the country. It was, in Einsiedel and Malones words, deja vu all over again. It was also quite clear that the earlier withdrawal had been premature relative to the scale of the challenge notwithstanding the difficulties the un had experienced dealing with Aristide and its inability to develop effective partnerships with other groups in Haitian society. Much of the current debate about the U.S./isaf mission in Afghanistan is based on contending assessments about the success of the mission not just in terms of its security components, but also its broader associated political, economic reconstruction, governance, and development assistance tasks. Although a full review of these debates is outside of the scope of this essay, it is worth noting that some of the major independent studies, which have looked at the mission in some detail, generally tend to share the view that the overall picture is mixed if not worse. Before exiting the highway to bypass a major accident, you need to know what alternative routes are available. And if you dont have gps, you need to look at a roadmap to figure out the options. Anthony Cordesman offered such a roadmap in a 2 0 1 0 report for the Center for Strategic and International Studies. Cordesman stated that there was no early-exit option for the Afghanistan mission if it was to have any chance of success notwithstanding the fact that he had serious misgivings about Afghanistan and Pakistans ultimate strategic importance to the United States. Any form of winning, he argued, including the near withdrawal of U.S. combat troops, means that the U.S. will have to help finance Afghan governance, development, and almost all of the costs of Afghan security forces for half a decade more into the future . . . For all the talk of foreign aid and development, it will be well over a decade before Afghanistan can hope to make serious progress with continued U.S. support and aid.12 Cordesman postulated that the situation in Afghanistan could evolve in four plausible but different ways, assigning a probability to each scenario. They were: (1) the Pangloss solution, where everything works out according to plan the Karzai government makes the necessary reforms to earn the support of the Afghan people and the Taliban insurgency is reversed (10 percent probability); (2) the implosion scenario where everything goes wrong, the Karzai government collapses, and the Taliban gain control of the entire country (20 percent); (3) the marginal improvement scenario where the government and Afghan National Security Forces remain weak and incapable of keeping the Taliban at bay without large doses of continuing U.S. support until those external security guarantees are eventually withdrawn
12. Anthony H. Cordesman, The Grand Strategy in the Afghan, Pakistan, and Iraq Wars: The End State Fallacy (Center for Strategic and International Studies, 2010).


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and the situation deteriorates (35 percent probability); and (4) the Afghanistan-muddles-through scenario under which regional power brokers wrest power and control from the Taliban, the Taliban are weakened but not defeated, and the central government maintains just enough authority and political legitimacy as a result of political reforms to keep on functioning (35 percent). In the fourth scenario, the U.S./Afghan government and Taliban are locked in a lengthy war of attrition. Cordesmans analysis underscored the enormous variability in potential outcomes and the challenge of making predictions in a highly volatile political and security environment. Especially interesting is that he did not rule out the probability that things might turn around if the mission continued. (There is an 80 percent combined probability of success with options 1, 3, and 4.) But he also foreExit strategies saw that sustaining the present U.S. strategy and are often driven military effort . . . over a period long enough to proby unrealistic duce meaningful results could easily raise the cost of the war effort . . . from a c rs [Congressional deadlines for the Research Service] estimate of $308.3 billion from completion of fy2002-fy2010 by another $632 billion between fy2011 and fy2020. Cordesman believed that these complex tasks costs may be worth paying if the new strategy proin the societies duces definitive indications of success during the coming year.13 in transition. When he revisited the subject in a report issued in February 2012, he again noted the uncertainty of progress based on available metrics and called for improved metrics to guide decision-making about Afghanistan in transition, force cuts, transition plans, and continuing the war. He warned that U.S. troop cuts are no longer condition-based. He noted serious difficulties in standing up the Afghan National Army, but observed that the problems could all be corrected with time, the needed number of foreign trainers and partners, and adequate funds but none may be available at the levels and duration required.14 As the above discussion indicates, exit strategies are often driven by unrealistic deadlines for the completion of complex tasks in the war-torn or violence-ridden environment of societies in transition. They are also driven by worries about the continuing costs of seemingly open-ended commitments. Before throwing in the towel, however, policymakers must also ask themselves what the likelihood of a bad outcome is. Although there are no crystal balls, if the answer is an outcome that is worse than staying, then the prudent course is not to stand down until the fog clears. To paraphrase Rabbi
13. Cordesman, Grand Strategy, 14. See also Anthony H. Cordesman, Two Winnable Wars, Washington Post (February 24, 2008).

14. Anthony H. Cordesman, Afghanistan: The Failed Metrics of Ten Years of War (Center for Strategic and International Studies, 2012).

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Teitelbaum, disengagement is no different from a giant boulder teetering on the side of a mountain. If it is dislodged and rolls down into rush hour traffic, the resulting explosion and devastation will be catastrophic.

Strategic resilience in the face of uncertainty

policy of staying the course is not an excuse to do so blindly. Confronted with strategic uncertainty, organizations can adapt to change, mitigate risks, reduce key vulnerabilities, and make midcourse corrections to deal with unpredictable changes in their environment. Sometimes, however, what is called for is a robust transformation, defined as a deliberately transient, episodic response to a new, yet fluid environmental condition; such a transformation involves a process of moving beyond immediate strategic effectiveness to reconfigure . . . strategy and organizational arrangements rapidly and radically to respond to uncertainty in a way that enhances future viability.15 Effective strategy in an environment of uncertainty is also not just about responding in an ad hoc, improvised way to each crisis that comes along. It is not about rebounding from setback. It is about continuously anticipating and adjusting to deep, secular trends . . . Its about having the capacity to change before the case for change becomes desperately obvious.16 The reduction of complexity in organizational routines and behaviours is crucial. The old adage keep it simple, stupid is especially germane to the competing pressures of innovation and efficiency in responding to a rapidly changing environment in which there is high uncertainty. As Lengnick-Hall and Beck note, strategies and structures must be designed to achieve specific outcomes. A well-defined adaptive and resilient policy structure typically contains three key elements; (1) it identifies the conditions necessary for the policy to succeed; (2) it identifies key vulnerabilities, including both uncertain and certain adverse consequences of the basic policy; and (3) it translates the necessary conditions for success into signposts that should be monitored in order to be certain that the underlying analysis remains valid, that implementation is proceeding on schedule and according to expectations, and that the necessary policy corrections or additional actions are taken in a timely and effective manner.17
15. Cynthia Lengnick-Hall, and Tammy E. Beck, Adaptive Fit Versus Robust Transformation: How Organizations Respond to Environmental Change, Journal of Management 31:5 (2005).

17. Warren E. Walker, Uncertainty: The Challenge for Policy Analysis in the 21st Century, rand Paper p-8051 (rand Corporation, 2000).

16. Gary Hamel, Leading the Revolution (Penguin Books, 2002); Gary Hamel and Lissa Vlikangas, The Quest for Resilience, Harvard Business Review (2003). Available at


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There is value to having clear signposts or markers of progress in the complex range of tasks associated with military interventions. At the same time, however, the achievement of specific tasks must be located within a broader strategic framework that highlights not only all the things that need to be done and the anticipated time to complete them, but also the key interdependencies and vulnerabilities in those activities as noted above. As we have seen repeatedly in successive interventions, if efforts to secure a stable security environment fail or are delayed by a growing insurgency, other functions such as the holding of parliamentary or presidential elections or the pursuit of specific development activities can be derailed. As projects take longer and longer to complete, the cumulative delay threatens to undermine the entire enterprise. There is no great mystery here. Much ink (not to If efforts to mention time in endless interagency meetings) has secure a stable been devoted to analyzing and discussing the myriad security problems of coordination and the failure to achieve coherence when the international community inter- environment fail venes.18 or are delayed The strategic challenge in these kinds of situations, however, is not simply to reach a consensus on by insurgency, key objectives and try to marshal resources and other functions bureaucratic and political will. Its much bigger. It entails, first, figuring out what the logical interdecan be derailed. pendencies of the overall enterprise actually are (among security stabilization, humanitarian assistance, economic reconstruction, administrative capacity building, promotion of good governance, etc.); second, identifying the resources required to complete each set of activities; third ascertaining where the potential bottlenecks to completion lie; and finally, assessing how disruption of one or more tasks will affect the entire chain. A critical path method explores these interdependencies with the aim of discovering the weakest link(s) and the kinds of bottlenecks and delays that will thwart or delay the completion of a mission.19 Realistic expectations are crucial to the analysis, as is accurate measurement of the impact of delays. Once these effects are better understood, it may be possible to address their root causes, revise schedules and the sequence of nation-building tasks, and develop new strategies. But if the overall sequence of tasks is too complicated and too vulnerable to disruptions, this may argue for scaling back the project, reducing ambitions, and concentrating on a few simple tasks
18. Robert B. Oakley, Developing a Strategy for Troubled States, Joint Force Quarterly 96:12 (1996); Roland Paris and Timothy D. Sisk, The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations (Routledge, 2009).

19. See, for example, Ted Klastorin, Project Management: Tools and Tradeoffs (Wiley, 2003); and Dragan Z. Milosevic, Project Management Toolbox: Tools and Techniques for the Practicing Project Manager (Wiley, 2003).

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that are executable and realistic given local conditions, resource availability, and the fluidity of the general environment. It also means zeroing in on the weakest links in the entire enterprise and focusing ones energies on fixing them. In Afghanistan, the weakest links that merit special attention as part of a no exit strategy are, first, meeting a difficult security situation with a military strategy that has clear, feasible objectives; second, dealing with neighboring countries playing a spoiler role; and third. coping with weak or ineffective leaders. We consider them in turn.

Security stabilization through stalemate

n countries like Iraq, East Timor, and Afghanistan, where societies are deeply divided by culture, ethnicity, or religion, nation-building efforts have been thrown into jeopardy by the failure of external actors to properly understand the impact that delays in managing a local security situation can have on other tasks and activities. Security stabilization, in other words, is the weakest link and typically the greatest source of uncertainty in the entire operation.20 Internationally-provided security guarantees are thus crucial to taming the security dilemma in ethnically or religiously divided failed states, and security stabilization must come first in the list of nation-building tasks.21 As Barbara Walter argues, third-party security guarantees, which protect different groups and ensure that promises are kept, are key to stabilizing war-torn societies. She distinguishes between weak, moderate, and strong security guarantees. Whereas weak guarantees involve only a political commitment to do something if the peace process breaks down, and moderate guarantees involve very modest troop deployments, strong guarantees typically consist of many thousands of troops that can provide unambiguous and indisputable demonstration of intent.22 Kimberly Marten likewise argues that effective security management is the paramount consideration in nation-building undertakings. Comparing recent peacekeeping and enforcement operations with those of occupying imperial powers in the colonial era, she argues that not only must robust peace operations [be] designed to provide security for the affected populations, but only when peoples security is assured is it possible for them to
20. Stephen John Stedman, Donald Rothchild, and Elizabeth M. Cousens, eds., Ending Civil Wars: The Implementation of Peace Agreements (Lynne Rienner, 2002).

22. Barbara F. Walter, The Critical Barrier to Civil War Settlement, International Organization 51:3 ( 1 9 9 7 ); see also Barbara F. Walter, Designing Transitions from Civil War: Demobilization, Democratization, and Commitments to Peace, International Security 24:1 (1999), and Barbara F. Walter, Committing to Peace: The Successful Settlement of Civil Wars (Princeton University Press, 2002).

21. Philip G. Roeder and Donald Rothchild, eds., Sustainable Peace: Powers and Democracy after Civil Wars (Cornell University Press, 2005).


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invest in the future that brings real ownership to peace process, not political change that is forced from the outside.23 Taking the argument one step further, Stephen Stedman argues that the security situation in conflict and post-conflict situations in failed states requires first and foremost effective strategies of spoiler management that is to say, strategies that deal with those extremist elements or groups in a conflict who have been radicalized, use violence to pursue their aims, are not interested in political compromise, and will, in fact, do anything to subvert the political process. Stedman argues that coercive strategies are required to deal with the total spoiler who sees the world in all-or-nothing terms. This involves measures that root out and destroy the spoiler and his bases of political support; such measures include the direct application of force, targeted sanctions, and other When resources kinds of penalties that raise the costs of noncooperaare scarce and tion and noncompliance.24 one confronts a In the case of Afghanistan, insurgents can cross borders freely. Both Afghanistan and Pakistan have whack-a-moleallowed each others opponents to use border areas style problem, as a sanctuary. The result is that counterinsurgency operations resemble the arcade game of whack-adecisive victory mole: Insurgents pop up, are suppressed, then pop is not a realistic up elsewhere. It is also unclear whether the Taliban, which has distinct factions and leaders, is a total option. or partial spoiler. Whereas partial spoilers can usually be bought off or coerced to the bargaining tables, total spoilers have to be suppressed and wiped out. When resources are scarce and one confronts a whack-a-mole-style problem, decisive victory is not a realistic option. Expectations about what is strategically and militarily feasible have to be lowered. But this does not mean that the only option is exit, retreat to avoid defeat. Rather, the goal should be to fight the other side to a draw or stalemate while retaining a firm upper hand. There is strong evidence that if a conflict reaches a plateau of hurting stalemate, warring parties will eventually come to the realization that they cannot use force to gain an advantage and will entertain other options. At this point, a conflict, to use William Zartmans phrase, is ripe for resolution, insofar as the parties perceive the costs and prospects for continued confrontation to be more burdensome than the costs and prospects of some sort of political settlement.25
23. Kimberly Zisk Marten, Enforcing the Peace: Learning From the Imperial Past (Columbia University Press, 2004).

25. William I. Zartman, Ripe for Resolution: Conflict and Intervention in Africa (Oxford University Press, 1985); William I. Zartman, Analyzing Intractability, in Chester A. Crocker, Fen Osler Hampson, and Pamela Aall, eds., Grasping the Nettle (United States Institute of Peace Press, 2004).

24. Stephen John Stedman, Spoiler Problems in Peace Processes, International Security 22:2 (1997).

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The goal of a hurting stalemate strategy is not to keep on fighting indefinitely but to exhaust the other side to the point it realizes that escalation dominance is not an option. (And where they feel the pain more than we do.) When insurgents come to this realization, they are more likely to go to the negotiating table of their own volition and without unrealistic preconditions. This could be characterized as a firm upper hand strategy, where the use of force is specifically tied to concrete bargaining objectives and eventually securing a negotiated political outcome to the conflict. In Afghanistan we are not there yet. The Afghan conflict is eleven if not 180 years old. Yet there is little evidence the war has reached a painful stalemate, at least for the Taliban. If anything, the Taliban have been emboldened by the prospect of a nato pullout. The Taliban are increasingly viewed as a force for national liberation among different tribal groupings. Much of the available evidence points to a troubling, escalatory dynamic. The absence of any kind of reasonably unified coalition among Taliban forces is another problem.26 The Taliban are a disparate, loosely affiliated, faction-ridden entity unlikely to prove a reliable negotiating partner. Peeling off moderates may hold out some hope for serious negotiations, but the presence of so many factions means there are also many potential spoilers who could easily wreck any kind of nascent peace process. isaf should therefore stay the course with a punishment strategy directed at creating a military stalemate conducive to sustainable negotiations. At the same time, the goal must also be to train Afghan security forces so that they can assume greater responsibility and eventually take ownership of counterinsurgency operations. isafs departure should only take place when the Afghan government and its defense forces are ready for a transfer of these critical core security competencies.

Engaging hostile neighbors

no exit strategy also must seek to get neighbors to play a constructive as opposed to spoiler role. The problem of engaging hostile, partisan, or indifferent neighbors in a diplomatic process to end conflict and stabilize a situation is not a new one, but it is never easy. It entails persuading rivals that that they do indeed have a common problem that can only be resolved together. The problem for Afghanistan is that Pakistan is interested in having a friendly and even Taliban-dominated government in Afghanistan, both to contain its own Pashtun question and to avoid a pro-Indian government in Kabul. Pakistan has not been on especially friendly terms with Hamid
26. Antonio Giustozzi, Negotiating with the Taliban: Issues and Prospects (The Century Foundation, 2010).


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Karzais government. Indias interest is the reverse, to eliminate Pakistans influence, principally by cooperating with the Northern Alliance. Irans interest lies less in Afghanistans form of government than in the elimination of the U.S.-nato presence there. Although Iran has never had a close relationship with the Sunni al-Qaeda, it has developed a strong link within Karzais government. Chinas interest lies in preventing a militant religious movement from controlling Afghanistan because of the danger it sees in increased influence of religious movements in its western provinces, and also in avoiding Indian dominance in the area. Tajikistans and Uzbekistans interests favor the Tajik and Uzbek elements in the Northern Alliance. The U.S. has an interest above all in destroying al-Qaeda and the Taliban, but also in securing the withdrawal of its troops (possibly mutually exclusive goals); democracy lies somewhere in its In Afghanistan, ideological vision but stability is more important, if much of the undefined. evidence points Forging a pact among these clear strategic rivals in the region seems an insuperable challenge. But to a troubling, such pacts have been forged before in other hot conescalatory flict zones. In the early 1990s, the five permanent members of the un Security Council plus the neighdynamic. The bouring countries of the Association of South East Taliban seemed Asian Nations (asean) had rather divergent and even contradictory interests over the future of emboldened. Cambodia.27 The U.S. skillfully brought these many countries together into an agreed solution. In much of the first decade of the 2000s, North Korea singlehandedly held off a group of world leaders as it pursued its nuclear security objectives. But the five most concerned nations, with often diametrically opposed interests, came together in the six-party talks organized by China and the United States. Though the North Korean nuclear problem persists, the six-party talks did produce some basic documents necessary for any further progress.28 In the 1960s, the leading countries of the old (colonial) and new (Cold War) world order managed to overcome their differences to negotiate a solution to the beleaguered position of Laos, albeit one that failed to last. Whatever happens inside Afghanistan, it will not be stable without a Great Jirga, a meeting of the surrounding and distant powers to consecrate an internal settlement and establish relations with it. However, given that the divergence of regional interests surpasses even those implicated in the cases of Cambodia, North Korea, or Laos, extraordinary diplomatic skill and leadership will be necessary.
27. Richard H. Solomon, Exiting Indochina: U.S. Leadership of the Cambodian Settlement and Normalization with Vietnam (United States Institute of Peace Press, 2000).

28. Charles L. Pritchard, Failed Diplomacy: The Tragic Story of How North Korea Got the Bomb (Brookings Institution Press, 2007).

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Cultivating leadership
uch attention has been devoted in recent years to promoting democracy, accountable political institutions, and economic development in war-torn societies. Under the Bush administration, the mission of U.S. military forces enlarged from war-fighting to postcombat stabilization and reconstruction. The apparent model of nationbuilding efforts in countries like Iraq was the successful rehabilitation of Japan and Germany following the Second World War. Under President Obama, however, much of this earlier ambition was scaled back, reflecting the reality that democratization is a process of slow cultural, social, and political development and does not simply revolve around the exercise of the franchise and the holding of free elections. It also involves the creation of a supportive civic culture, where citizens learn to become active and intelligent participants in society and the political life of their country, and a middle class. Further, democracy can only develop in a society with a strong and well-functioning administrative, police, and judicial apparatus that is responsive to the needs and welfare of the public and generally free of corruption and cronyism. It also requires leaders who can rise to the challenge of building new institutions while rallying the people around key nation-building tasks. The challenge of promoting and cultivating strong local leadership has figured less centrally in the attention of the international community and those doing the intervening than perhaps it should. To the extent that it does, it is a hidden preoccupation, the subject of hushed conversations and diplomatic murmurings behind closed doors (as the Wikileak revelations attest). No matter how flawed an electoral process is or how weak and incompetent those catapulted into high office are, publicly expression of the desire to change horses in the middle of a race going badly is generally considered bad form. Instigating leadership changes is even worse, widely seen as a relic of Cold War rivalry and a discredited era of U.S. foreign policy when the not-so-hidden hand of the cia was behind coups in the Middle East, Latin America, and Southeast Asia. However, there are other ways to promote local leadership short of doing away with those who are feckless, incompetent, uncooperative, or hostile. There are some important lessons from the era of decolonization where some successful handovers did occur. These handovers were accompanied by the emergence of strong, charismatic leaders who were able to unify the local populace, weather ensuing political storms, and build strong states. As Tony Smith, a careful observer of French and British decolonization processes, observes: For whatever their values, what Bourguiba, Ataturk, Sukarno, Nkrumah, Nyerere, Ho Chi Minh, Gandhi, and HouphouetBoigny all shared was their leadership at the moment of national indepen30 Policy Review

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dence over groupings both traditional and modern in values and structure with a scope so broad that the split between the countryside and the city was overcome.29 Such leadership proved crucial to securing political stability following the departure of colonial masters. When such leadership was absent, institutions were less resilient and less able to withstand the assault of minority and factional politics that tore many new nations apart.30 As the American experience with Ngo Dinh Diem and the series of military strongmen who ruled South Vietnam after his assassination illustrates, the U.S. was never able to find a reliable, credible, and legitimate partner in South Vietnam, which circumscribed options for the war effort. It also made Vietnamization an untenable strategy. The colonial powers were able to influence the process of strengthening local elites by their attention to grooming their successors. As Smith notes, For virtually every nationalist movement harbored a civil war whose divisions allowed the colonial authority a strong voice in local affairs. By deciding with whom they would negotiate, by what procedure they would institutionalize the transfer of power, and over what territory the new regime would rule, Paris and London decisively influenced the course of decolonization. More attention today needs to be paid to leadership development in countries where the international community has intervened. It will require negotiating with and cultivating those who show real political talent. This requires diplomatic flexibility and a willingness not to overcommit to one particular leader. Countries like Afghanistan need leaders who can bridge social and ethnic divisions and the urban-rural divide. Leadership grooming and succession are thus the necessary accompaniments to a strategy of institution-building, as the British and French clearly understood in some of their own earlier nation-building efforts.

Staying power and the power of staying

t is worth noting that in many successful cases of intervention, exit has not been a central imperative of the strategy. U.S. troops remain stationed in Germany and Japan more than 60 years after the conclusion of World War II. Their presence remains largely welcomed by the German and Japanese governments and populations. U.S. forces stayed as a stabilizing element through thin and thick: from the immediate postwar conditions of political and economic collapse to the extraordinary prosperity of
29. Tony Smith, A Comparative Study of French and British Decolonization, Comparative Studies in Society and History 20:1 (1978).

30. Joseph C. Miller, The Politics of Decolonization in Portuguese Africa, African Affairs 74:295 (1975); Gilbert M. Khadiagala, Negotiating Angolas Independence Transition: The Alvor Accords, International Negotiation 10 (2005).

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more recent times. It is tempting to view the reconstruction of Germany and Japan with hindsight as somehow foreordained. Yet at the time, uncertainty prevailed about what the future held for either country. The United States similarly kept forces in place in South Korea in support of the 1953 armistice. At the time and for decades subsequently, the South Korean government was authoritarian. Yet as the economy rebounded, conditions for a transition to democracy began to take hold. It was not knowable in 1953 that the South Korea of 2011 would be democratic and prosperous. But the United States, having invested blood and treasure in preventing the communist North from conquering the South, was rightly unwilling to look for a hasty exit. The presence of the United States as a steadfast ally surely encouraged positive political and economic Rushing to the developments. The United States also has a history of leaving exit can have when asked. Following the people power revolution in 198386 that brought an end to Ferdinand consequences Marcoss authoritarian government, the Philippines beyond those government support for an ongoing U.S. presence at merely local. the strategically valuable Clark Air Base declined, and the U.S. closed the base in 1991. The extensive Reputation presence of U.S. military forces in Saudi Arabia matters for in the decade following the 1991 liberation of Kuwait from Saddam Husseins military occupation states. became an ongoing political liability for the Saudi government, and the 2003 Iraq war provided an opportune pretext for their departure. Rushing to the exit can have consequences beyond those merely local. Reputation matters for states. A record of fecklessness will undermine the willingness of other governments to take risks in the interest of cooperation in areas of mutual interest. An impression of weakness or unwillingness to persist under adversity can embolden adversaries, rightly or wrongly. Miscalculation can be costly. A no exit strategy, by contrast, may discourage adversaries from continuing their resistance and instead bring them to the negotiating table. What is to be feared most in failed states where the international community has intervened is an outcome like Somalia a stateless piece of real estate where anarchy reigns in the truly Hobbesian sense. When things go wrong, such territories can becomes a breeding ground for terrorists, piracy, and other exportable ills for which there is no authority to hold accountable, and thus no one to punish for unacceptable behavior internationally. Today, there is a risk of more Somalias if the international community fearing the mounting costs of engagement decides to prematurely exit from Iraq, Afghanistan, and the Haitis of this world. These are territories that run the double risk of being both stateless and leaderless.
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Many lives have been lost and much treasure spent on what increasingly looks like mission impossible in countries like Afghanistan. After eleven years, it is still too early to say what the future holds. Nonetheless, as we have argued here, any decision to exit and finally disengage must be attentive to both the upside and the downside of withdrawal. At the same, we argue that the mission has to be recalibrated and ambitions scaled back. The formation of a stable democratic government is too stringent a requirement for a country like Afghanistan. So too is the notion that the Taliban can be decisively defeated. But there is a higher degree of probability that the Taliban can be fought to a draw given time, staying power, persistence, and patience. This in turn will help create the right conditions for negotiation and a political settlement. Such is the ultimate goal of a no exit strategy.

December 2012 & January 2013


Law and Ethics for Robot Soldiers

By Kenneth Anderson & Matthew Waxman

lethal sentry robot designed for perimeter protection, able to detect shapes and motions, and combined with computational technologies to analyze and differentiate enemy threats from friendly or innocuous objects and shoot at the hostiles. A drone aircraft, not only unmanned but programmed to independently rove and hunt prey, perhaps even tracking enemy fighters who have been previously painted and marked by military forces on the ground. Robots individually too small and mobile to be easily stopped, but capable of swarming and assembling themselves at the final moment of attack into a much larger weapon. These (and many more) are among the ripening fruits of automation in weapons design. Some are here or close at hand, such as the lethal sentry robot designed in South Korea. Others lie ahead in a future less and less distant. Lethal autonomous machines will inevitably enter the future battlefield but they will do so incrementally, one small step at a time. The combination
Kenneth Anderson is a law professor at American University. Matthew Waxman is a professor at Columbia Law School and adjunct senior fellow at the Council on Foreign Relations. Both are members of the Hoover Institution Task Force on National Security and Law.
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of inevitable and incremental development raises not only complex strategic and operational questions but also profound legal and ethical ones. Inevitability comes from both supply-side and demand-side factors. Advances in sensor and computational technologies will supply smarter machines that can be programmed to kill or destroy, while the increasing tempo of military operations and political pressures to protect ones own personnel and civilian persons and property will demand continuing research, development, and deployment. The process will be incremental because nonlethal robotic systems (already proliferating on the battlefield, after all) can be fitted in their successive generations with both self-defensive and offensive technologies. As lethal systems are initially deployed, they may include humans in the decision-making loop, at least as a fail-safe but as both the decision-making power of machines and the tempo of operations potentially increase, that human role will likely slowly diminish. Recognizing the inevitable but incremental evolution of these technologies is key to addressing the legal and ethical dilemmas associated with them; U.S. policy for resolving such dilemmas should be built upon these assumptions. The certain yet gradual development and deployment of these systems, as well as the humanitarian advantages created by the precision of some systems, make some proposed responses such as prohibitory treaties unworkable as well as ethically questionable. Those same features also make it imperative, though, that the United States resist its own impulses toward secrecy and reticence with respect to military technologies and recognize that the interests those tendencies serve are counterbalanced here by interests in shaping the normative terrain i.e., the contours of international law as well as international expectations about appropriate conduct on which the United States government and others will operate militarily as technology evolves. Just as development of autonomous weapon systems will be incremental, so too will development of norms about acceptable systems and uses be incremental. The United States must act, however, before international expectations about these technologies harden around the views of those who would impose unrealistic, ineffective, or dangerous prohibitions or those who would prefer few or no constraints at all.

Incremental automation of drones

he incremental march toward automated lethal technologies of the future, and the legal and ethical challenges that accompany it, can be illustrated by looking at todays drone aircraft. Unmanned drones piloted from afar are already a significant component of the United States arsenal. At this writing, close to one in three U.S. Air Force aircraft is remotely piloted (though this number also includes many tiny tactical surveillance drones). The drone proportion will only grow. Yet current drone
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military aircraft are not autonomous in the firing of weapons the weapon must be fired in real time by a human controller. So far there are no known plans or, apparently in the view of military, reasons to take the human out of the weapon firing loop. Nor are todays drones truly autonomous as aircraft. They require human pilots and flight support personnel in real time, even when they are located far away. They are, however, increasingly automated in their flight functions: self-landing capabilities, for example, and particularly automation to the point that a single controller can run many drone aircraft at once, increasing efficiency considerably. The automation of flight is gradually increasing as sensors and aircraft control through computer programming improves. Looking to the future, some observers believe that one of the next generations of jet fighter aircraft will Some believe no longer be manned, or at least that manned fighter that the next aircraft will be joined by unmanned aircraft. Drone generations aircraft might gradually become capable of higher speeds, torques, g-forces, and other stresses than of jet fighters those a human pilot can endure (and perhaps at a cheaper cost as well). Given that speed in every sense wont be manned. including turning and twisting in flight, reaction Or that manned and decision times is an advantage, design will emphasize automating as many of these functions as fighters will join possible, in competition with the enemys systems. with unmanned. Just as the aircraft might have to be maneuvered far too quickly for detailed human control of its movements, so too the weapons against other aircraft, drones, or anti-aircraft systems might have to be utilized at the same speeds in order to match the beyond-human speed of the aircrafts own systems (as well as the enemy aircrafts similarly automated counter-systems). In similar ways, defense systems on modern U.S. naval vessels have long been able to target incoming missiles automatically, with humans monitoring the systems operation, because human decision-making processes are too slow to deal with multiple, inbound, highspeed missiles. Some military operators regard many emerging automated weapons systems as merely a more sophisticated form of fire and forget self-guided missiles. And because contemporary fighter aircraft are designed not only for air-to-air combat, but for ground attack missions as well, design changes that reduce the role of the human controller of the aircraft platform may shade into automation of the weapons directed at ground targets, too. Although current remotely-piloted drones, on the one hand, and future autonomous weapons, on the other, are based on different technologies and operational imperatives, they generate some overlapping concerns about their ethical legitimacy and lawfulness. Todays arguments over the legality of remotely-piloted, unmanned aircraft in their various missions (especially targeted killing operations, and concerns that the United States is using technology to shift risk from its own personnel onto remote-area civilian populaDecember 2012 & January 2013 37

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tions) presage the arguments that already loom over weapons systems that exhibit emerging features of autonomy. Those arguments also offer lessons to guide short- and long-term U.S. policy toward autonomous weapons generally, including systems that are otherwise quite different.

Automated-arms racing?
hese issues are easiest to imagine in the airpower context. But in other battlefield contexts, too, the United States and other sophisticated military powers (and eventually unsophisticated powers and nonstate actors, as such technologies become commodified and offered for licit or illicit sale) will find increasingly automated lethal systems more and more attractive. Moreover, as artificial intelligence improves, weapons systems will evolve from robotic automation the execution of precisely pre-programmed actions or sequences in a well-defined and controlled environment toward genuine autonomy, meaning the robot is capable of generating actions to adapt to changing and unpredictable environments. Take efforts to protect peacekeepers facing the threat of snipers or ambush in an urban environment: Small mobile robots with weapons could act as roving scouts for the human soldiers, with intermediate automation the robot might be pre-programmed to look for certain enemy weapon signatures and to alert a human operator, who then decides whether or not to pull the trigger. In the next iteration, the system might be set with the human being not required to give an affirmative command, but instead merely deciding whether to override and veto a machine-initiated attack. That human decision-maker also might not be a soldier on site, but an offbattlefield, remote robot-controller. It will soon become clear that the communications link between human and weapon system could be jammed or hacked (and in addition, speed and the complications of the pursuit algorithms may seem better left to the machine itself, especially once the technology moves to many small, swarming, lightly armed robots). One technological response will be to reduce the vulnerability of the communications link by severing it, thus making the robot dependent upon executing its own programming, or even genuinely autonomous. Aside from conventional war on conventional battlefields, covert or special operations will involve their own evolution toward incrementally autonomous systems. Consider intelligence gathering in the months preceding the raid on Osama bin Ladens compound. Tiny surveillance robots equipped with facial recognition technology might have helped affirmatively identify bin Laden much earlier. It is not a large step to weaponize such systems and then perhaps go the next step to allow them to act autonomously, perhaps initially with a human remote-observer as a fail-safe, but with very little time to override programmed commands.
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These examples have all been stylized to sound precise and carefully controlled. At some point in the near future, however, someone China, Russia, or someone else will likely design, build, and deploy (or sell) an autonomous weapon system for battlefield use that is programmed to target something say a person or position that is firing a weapon and is positively identified as hostile rather than friendly. A weapon system programmed, that is, to do one thing: identify the locus of enemy fire and fire back. It thus would lack the ability altogether to take account of civilian presence and any likely collateral damage. Quite apart from the security and war-fighting implications, the U.S. government would have grave legal and humanitarian concerns about such a foreign system offered for sale on the international arms markets, let alone deployed and used. Yet the United States would then find itself in a peculiar situation potentially facing a weapon system on the battlefield that conveys significant advantages to its user, but which the United States would not deploy itself because (for reasons described below) it does not believe it is a legal weapon. The United States will have to come up with technological counters and defenses such as development of smaller, more mobile, armed robots able to hide as well as hunt on their own. The implication is that the arms race in battlefield robots will be more than simply a race for ever more autonomous weapons systems. More likely, it will mostly be a race for ways to counter and defend against them partly through technical means, but also partly through the tools of international norms and diplomacy, provided, however, that those norms are not overinvested with hopes that cannot realistically be met.

Legal and ethical requirements

he legal and ethical evaluation of a new weapons system is nothing new. It is a long-standing requirement of the laws of war, one taken seriously by U.S. military lawyers. In recent years, U.S. military judge advocates have rejected proposed new weapons as incompatible with the laws of war, including blinding laser weapons and, reportedly, various cutting edge cyber-technologies that might constitute weapons for purposes of the laws of war. But arguments over the legitimacy of particular weapons (or their legitimate use) go back to the beginnings of debate over the laws and ethics of war: the legitimacy, for example, of poison, the crossbow, submarines, aerial bombardment, antipersonnel landmines, chemical and biological weapons, and nuclear weapons. In that historical context, debate over autonomous robotic weapons the conditions of their lawfulness as weapons and the conditions of their lawful use is nothing novel. Likewise, there is nothing novel in the sorts of responses autonomous weapons systems will generate. On the one hand, emergence of a new weapon often sparks an insistence in some quarters that the weapon is ethiDecember 2012 & January 2013 39

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cally and legally abhorrent and should be prohibited by law. On the other hand, the historical reality is that if a new weapon system greatly advantages a side, the tendency is for it gradually to be adopted by others perceiving they can benefit from it, too. In some cases, legal prohibitions on the weapon system as such erode, as happened with submarines and airplanes; what survives is typically legal rules for the use of the new weapon, with greater or lesser specificity. In a few cases (including some very important ones), legal prohibitions on the weapon as such gain hold. The ban on poison gas, for example, has survived in one form or another with very considerable effectiveness throughout the 20th century. Where in this long history of new weapons and their ethical and legal regulation will autonomous robotic weapons fit? What are the features of autonomous robotic Where in the weapons that raise ethical and legal concerns? How long history of should they be addressed, as a matter of law and process? By treaty, for example, or by some other new weapons means? One answer to these questions is: wait and see. It and their ethical is too early to know where the technology will go, and legal so the debate over ethical and legal principles for robotic autonomous weapons should be deferred regulation will until a system is at hand. Otherwise it is just an autonomous exercise in science fiction and fantasy. robotic But that wait-and-see view is shortsighted and mistaken. Not all the important innovations in weapons fit? autonomous weapons are so far off. Some are possible now or will be in the near term, and some of them raise serious questions of law and ethics even at their current research and development stage. Moreover, looking to the long term, technology and weapons innovation does not take place in a vacuum. The time to take into account law and ethics to inform and govern autonomous weapons systems is now, before technologies and weapons development have become hardened in a particular path and their design architecture becomes difficult or even impossible to change. Otherwise, the risk is that technology and innovation alone, unleavened by ethics and law at the front end of the innovation process, let slip the robots of war. This is also the time before ethical and legal understandings of autonomous weapon systems likewise become hardened in the eyes of key constituents of the international system to propose and defend a framework for evaluating them that advances simultaneously strategic and moral interests. What might such a framework look like? Consider the traditional legal and ethical paradigm to which autonomous weapons systems must conform, and then the major objections and responses being advanced today by critics of autonomous weapons.
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A legal and ethical framework

he baseline legal and ethical principles governing the introduction of any new weapon are distinction (or discrimination) and proportionality. Distinction says that for a weapon to be lawful, it must be capable of being aimed at lawful targets, in a way that discriminates between military targets and civilians and their objects. Although most lawof-war concerns about discrimination run to the use of a weapon Is it being used with no serious care in aiming it? in extreme cases, a weapon itself might be regarded as inherently indiscriminate. Any autonomous robot weapon system will have to possess the ability to be aimed, or aim itself, at an acceptable legal level of discrimination. Proportionality adds that even if a weapon meets the test of distinction, any actual use of a weapon must also involve an evaluation that sets the anticipated military advantage to be gained against the anticipated civilian harm (to civilian persons or objects). The harm to civilians must not be excessive relative to the expected military gain. While easy to state in the abstract, this evaluation for taking into account civilian collateral damage is difficult for many reasons. While everyone agrees that civilian harm should not be excessive in relation to military advantages gained, the comparison is apples and oranges. Although there is a general sense that excess can be determined in truly gross cases, there is no accepted formula that gives determinate outcomes in specific cases; it is at bottom a judgment rather than a calculus. Nonetheless, it is a fundamental requirement of the law and ethics of war that any military operation undertake this judgment, and that must be true of any autonomous weapon systems programming as well. These are daunting legal and ethical hurdles if the aim is to create a true robot soldier. One way to think about the requirements of the ethical robot soldier, however, is to ask what we would require of an ethical human soldier performing the same function. Some leading roboticists have been studying ways in which machine programming might eventually capture the two fundamental principles of distinction and proportionality. As for programming distinction, one could theoretically start with fixed lists of lawful targets for example, programmed targets could include persons or weapons that are firing at the robot and gradually build upwards toward inductive reasoning about characteristics of lawful targets not already on the list. Proportionality, for programming purposes, is a relative judgment: Measure anticipated civilian harm and measure military advantage; subtract and measure the balance against some determined standard of excessive; if excessive, do not attack an otherwise lawful target. Difficult as these calculations seem to any experienced law-of-war lawyer, they are nevertheless the fundamental conditions that the ethicallydesigned and -programmed robot soldier would have to satisfy and therefore
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what a programming development effort must take into account. The ethical and legal engineering matter every bit as much as the mechanical or software engineering.

Four objections
f this is the optimistic vision of the robot soldier of, say, decades from now, it is subject already to four main grounds of objection. The first is a general empirical skepticism that machine programming could ever reach the point of satisfying the fundamental ethical and legal principles of distinction and proportionality. Artificial intelligence has overpromised before. Once into the weeds of the judgments that these broad principles imply, the requisite intuition, cognition, and judgment look ever more marvelous if not downright chimerical when attributed to a future machine. This skepticism is essentially factual, a question of how technology evolves over decades. Noted, it is quite possible that fully autonomous weapons will never achieve the ability to meet these standards, even far into the future. Yet we do not want to rule out such possibilities including the development of technologies of war that, by turning decision chains over to machines, might indeed reduce risks to civilians by making targeting more precise and firing decisions more controlled, especially compared to human soldiers whose failings might be exacerbated by fear, vengeance, or other emotions. It is true that relying on the promise of computer analytics and artificial intelligence risks pushing us down a slippery slope, propelled by the promise of future technology to overcome human failings rather than addressing them directly. If forever unmet, it becomes magical thinking, not technological promise. Even so, articulation of the tests of lawfulness that autonomous systems must ultimately meet helps channel technological development toward the law of wars protective ends. A second objection is a categorical moral one which says that it is simply wrong per se to take the human moral agent entirely out of the firing loop. A machine, no matter how good, cannot completely replace the presence of a true moral agent in the form of a human being possessed of a conscience and the faculty of moral judgment (even if flawed in human ways). In that regard, the title of this essay is deliberately provocative in pairing robot and soldier, because, on this objection, such a pairing is precisely what should never be attempted. This is a difficult argument to engage, since it stops with a moral principle that one either accepts or not. Moreover, it raises a further question as to what constitutes the tipping point into impermissible autonomy, given that the automation of weapons functions is likely to occur in incremental steps.
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The third objection holds that autonomous weapons systems that remove the human being from the firing loop are unacceptable because they undermine the possibility of holding anyone accountable for what, if done by a human soldier, might be a war crime. If the decision to fire is made by a machine, who should be held responsible for mistakes? The soldier who allowed the weapon system to be used and make a bad decision? The commander who chose to employ it on the battlefield? The engineer or designer who programmed it in the first place? This is an objection particularly salient to those who put significant faith in laws-of-war accountability by mechanisms of individual criminal liability, whether through international tribunals or other judicial mechanisms. But post-hoc judicial accountability in war is just one of many mechanisms for promoting and enforcing One objection compliance with the laws of war, and its global holds that effectiveness is far from clear. Devotion to individual autonomous criminal liability as the presumptive mechanism of accountability risks blocking development of weapons systems machine systems that would, if successful, reduce undermine the actual harm to civilians on or near the battlefield. Finally, the long-run development of autonomous possibility of weapon systems faces the objection that, by removholding anyone ing ones human soldiers from risk and reducing harm to civilians through greater precision, the disaccountable. incentive to resort to armed force is diminished. The result might be a greater propensity to use military force and wage war. As a moral matter, this objection is subject to a moral counter-objection. Why not just forgo all easily obtained protections for civilians or soldiers in war for fear that without holding these humans hostage, so to speak, political leaders would be tempted to resort to war more than they ought? Moreover, as an empirical matter, this objection is not so special to autonomous weapons. Precisely the same objection can be raised with respect to remotely-piloted drones and, generally, with respect to any technological development that either reduces risk to ones own forces or, especially perversely, reduces risk to civilians, because it invites more frequent recourse to force. These four objections run to the whole enterprise of building the autonomous robot soldier, and important debates could be held around each of them. Whatever their merits in theory, however, they all face a practical difficulty: the incremental way autonomous weapon systems will develop. After all, these objections are often voiced as though there was likely to be some determinate, ascertainable point when the human-controlled system becomes the machine-controlled one. It seems far more likely, however, that the evolution of weapons technology will be gradual, slowly and indistinctly eroding the role of the human in the firing loop. And crucially, the role of real-time human decision-making will be phased out in some military conDecember 2012 & January 2013 43

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texts in order to address some technological or strategic issue unrelated to autonomy, such as the speed of the systems response. Incrementality does not by itself render any of these universal objections wrong per se but it does suggest that there is another kind of discussion to be had about regulation of weapons systems undergoing gradual, step-by-step change.

International treaties and incremental evolution

ritics sometimes portray the United States as engaged in relentless, heedless pursuit of technological advantage whether in drones or other robotic weapons systems that will inevitably be fleeting as other countries mimic, steal, or reverse engineer its technologies. According to this view, if the United States would quit pursuing these technologies, the genie might remain in the bottle or at least emerge much more slowly and in any case under greater restraint. This is almost certainly wrong, in part because the technologies at issue drone aircraft or driverless cars, for example are going to spread with respect to general use far outside of military applications. They are already doing so faster than many observers of technology would have guessed. And the decision architectures that would govern firing a weapon are not so completely removed from those of, say, an elder-care robot engaged in home-assisted living programmed to decide when to take emergency action. Moreover, even with respect to militarily-specific applications of autonomous robotics advances, critics worrying that the United States is spurring a new arms race overlook just how many military-technological advances result from U.S. efforts to find technological fixes to successive forms of violation of the basic laws of war committed by its adversaries. A challenge for the United States and its allies is that it is typically easier and faster for nonstate adversaries to come up with new behaviors that violate the laws of war to gain advantage than it is to come up with new technological counters. In part because it is also easier and faster for states that are competitively engaged with the United States to deploy systems that are, in the U.S. view, ethically and legally deficient, the United States does have a strong interest in seeing that development and deployment of autonomous battlefield robots be regulated, legally and ethically. Moreover, critics are right to argue that even if U.S. abstention from this new arms race alone would not prevent the proliferation of new destructive technologies, it would nonetheless be reckless for the United States to pursue them without a strategy for responding to other states or actors use for military ends. That strategy necessarily includes a role for normative constraints. These observations and alarm at the apparent development of an arms
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race around these emerging and future weapons lead many today to believe that an important part of the solution lies in some form of multilateral treaty. A proposed treaty might be regulatory, restricting acceptable weapons systems or regulating their acceptable use (in the manner, for example, that certain sections of the Chemical Weapons Convention or Biological Weapons Convention regulate the monitoring and reporting of dual use chemical or biological precursors). Alternatively, a treaty might be flatly prohibitory; some advocacy groups have already moved to the point of calling for international conventions that would essentially ban autonomous weapons systems altogether, along the lines of the Ottawa Convention banning antipersonnel landmines. Ambitions for multilateral treaty regulation (of either kind) in this context are misguided for several reasons. To start with, limitations on autonomous military technologies, although quite likely to find wide superficial acceptance among nonfighting states and some nongovernmental groups and actors, will have little traction with states whose practice matters most, whether they admit to this or not. Israel might well be the first state to deploy a genuinely autonomous weapon system, but for strategic reasons not reveal it until actually used in battle. Some states, particularly Asian allies worried about a rising and militarily assertive China, may want the United States to be more aggressive, not less, in adopting the latest technologies, given that their future adversary is likely to have fewer scruples about the legality or ethics of its own autonomous weapon systems. Americas key Asian allies might well favor nearly any technological development that extends the reach and impact of U.S. forces or enhances their own ability to counter adversary capabilities. Even states and groups inclined to support treaty prohibitions or limitations will find it difficult to reach agreement on scope or workable definitions because lethal autonomy will be introduced incrementally. As battlefield machines become smarter and faster, and the real-time human role in controlling them gradually recedes, agreeing on what constitutes a prohibited autonomous weapon will likely be unattainable. Moreover, no one should forget that there are serious humanitarian risks to prohibition, given the possibility that autonomous weapons systems could in the long run be more discriminating and ethically preferable to alternatives. Blanket prohibition precludes the possibility of such benefits. And, of course, there are the endemic challenges of compliance the collective action problems of failure and defection that afflict all such treaty regimes.

Principles, policies, and processes

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e v e rt h e l e s s , t h e da n g e rs associated with evolving autonomous robotic weapons are very real, and the United States has a serious interest in guiding development in this context of

Kenneth Anderson & Matthew Waxman

international norms. By international norms we do not mean new binding legal rules only whether treaty rules or customary international law but instead widely-held expectations about legally or ethically appropriate conduct, whether formally binding or not. Among the reasons the United States should care is that such norms are important for guiding and constraining its internal practices, such as r&d and eventual deployment of autonomous lethal systems it regards as legal. They help earn and sustain necessary buy-in from the officers and lawyers who would actually use or authorize such systems in the field. They assist in establishing common standards among the United States and its partners and allies to promote cooperation and permit joint operations. And they raise the political and diplomatic costs to adversaries of developing, selling, or using autonomous lethal systems that run afoul of A better these standards. approach than A better approach than treaties for addressing these systems is the gradual development of internal treaties is the state norms and best practices. Worked out incregradual mentally, debated, and applied to the weapons development of development processes of the United States, they can be carried outwards to discussions with others internal state around the world. This requires long-term, sustained norms and best effort combining internal ethical and legal scrutiny including specific principles, policies, and processpractices. es and external diplomacy. To be successful, the United States government would have to resist two extreme instincts. It would have to resist its own instincts to hunker down behind secrecy and avoid discussing and defending even guiding principles. It would also have to refuse to cede the moral high ground to critics of autonomous lethal systems, opponents demanding some grand international treaty or multilateral regime to regulate or even prohibit them. The United States government should instead carefully and continuously develop internal norms, principles, and practices that it believes are correct for the design and implementation of such systems. It should also prepare to articulate clearly to the world the fundamental legal and moral principles by which all parties ought to judge autonomous weapons, whether those of the United States or those of others. The core, baseline principles can and should be drawn and adapted from the customary law-of-war framework: distinction and proportionality. A system must be capable of being aimed at lawful targets distinction but how good must that capability be in any particular circumstance? The legal threshold has historically depended in part upon the general state of aiming technology, as well as the intended use. Proportionality, for its part, requires that any use of a weapon must take into account collateral harm to civilians. This rules out systems that simply identify and aim at other
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weapons without taking civilians into account but once again, what is the standard of care for an autonomous lethal system in any particular proportionality circumstance? This is partly a technical issue of designing systems capable of discerning and estimating civilian harm, but also partly an ethical issue of attaching weights to the variables at stake. These questions move from overarching ethical and legal principles to processes that make sure these principles are concretely taken into account not just down the road at the deployment stage but much earlier, during the r&d stage. It will not work to go forward with design and only afterwards, seeing the technology, to decide what changes need to be made in order to make the systems decision-making conform to legal requirements. By then it may be too late. Engineering designs will have been set for both hardware and software; sigThe U.S. must nificant national investment into r&d already undertaken that will be hard to write off on ethical develop a set of or legal grounds; and national prestige might be in principles to play. This would be true of the United States but also other states developing such systems. Legal regulate and review by that stage would tend to be one of justifigovern advanced cation at the back end, rather than seeking best autonomous practices at the front end. The United States must develop a set of principles weapons. to regulate and govern advanced autonomous weapons not just to guide its own systems, but also to effectively assess the systems of other states. This requires that the United States work to bring along its partners and allies including nato members and technologically advanced Asian allies by developing common understandings of norms and best practices as the technology evolves in often small steps. Just as development of autonomous weapon systems will be incremental, so too will development of norms about acceptable systems and uses. Internal processes should therefore be combined with public articulation of overarching policies. Various vehicles for declaring policy might be utilized over time perhaps directives by the secretary of defense followed by periodic statements explaining the legal rationale behind decisions about r&d and deployment of weapon technologies. The United States has taken a similar approach in the recent past to other controversial technologies, most notably cluster munitions and landmines, by declaring commitment to specific standards that balance operational necessities with humanitarian imperatives. To be sure, this proposal risks papering over enormous practical and policy difficulties. The natural tendency of the U.S. national security community likewise that of other major state powers will be to discuss little or nothing, for fear of revealing capabilities or programming to adversaries, as well as inviting industrial espionage and reverse engineering of systems.
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Kenneth Anderson & Matthew Waxman

Policy statements will necessarily be more general and less factually specific than critics would like. Furthermore, one might reasonably question not only whether broad principles such as distinction and proportionality can be machine-coded at all but also whether they can be meaningfully discussed publicly if the relevant facts might well be distinguishable only in terms of digital ones and zeroes buried deep in computer code. These concerns are real, but there are at least two mitigating solutions. First, as noted, the United States will need to resist its own impulses toward secrecy and reticence with respect to military technologies, recognizing that the interests those tendencies serve are counterbalanced here by interests in shaping the normative terrain on which it and others will operate militarily as technology quickly evolves. The legitimacy of such inevitably controversial systems in the public and international view matters too. It is better that the United States work to set global standards than let other states or groups set them. Of course, there are limits to transparency here, on account of both secrecy concerns and the practical limits of persuading skeptical audiences about the internal and undisclosed decision-making capacities of rapidly evolving robotic systems. A second part of the solution is therefore to emphasize the internal processes by which the United States considers, develops, and tests its weapon systems. Legal review of any new weapon system is required as a matter of international law; the U.S. military would conduct it in any event. Even when the United States cannot disclose publicly the details of its automated systems and their internal programming, however, it should be quite open about its vetting procedures, both at the r&d stage and at the deployment stage, including the standards and metrics it uses. Although the United States cannot be too public about the results of such tests, it should be prepared to share them with its close military allies as part of an effort to establish common standards. Looking more speculatively ahead, the standards the United States applies internally in developing its systems might eventually form the basis of export control standards. As other countries develop their own autonomous lethal systems, the United States can lead in forging a common export control regime and standards of acceptable autonomous weapons available on international markets.

A traditional approach to a new challenge

n the end, one might still raise an entirely different objection altogether to these proposals: That the United States should not unnecessarily constrain itself in advance through a set of normative commitments, given vast uncertainties about the technology and future security environment. Better cautiously to wait, the argument might go, and avoid binding itself to one or another legal or ethical interpretation until it needs to. This fails to appreciate, however, that while significant deployment of
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highly-autonomous systems may be far off, r&d decisions are already upon us. Moreover, shaping international norms is a long-term process, and unless the United States and its allies accept some risk in starting it now, they may lose the opportunity to do so later. In the end, all of this is a rather traditional approach relying on the gradual evolution and adaptation of long-standing law-of-war principles. The challenges are scarcely novel. Some view these automated technology developments as a crisis for the laws of war. But provided we start now to incorporate ethical and legal norms into weapons design, the incremental movement from automation to genuine machine autonomy already underway might well be made to serve the ends of law on the battlefield.

December 2012 & January 2013


The Liberalism of Edmund Burke

By Peter Berkowitz

euding among american conservatives for the title True Conservative is nothing new. Ever since conservatism in America crystallized as a recognizable school in the 1950s, more than a few limited- government conservatives, or libertarians as they have come to be called, and more than a few social conservatives and their forebears, traditionalist conservatives have wanted to flee from or banish the other. To be sure, the passion for purity in politics is perennial. But the tension between liberty and tradition inscribed in modern conservatism has exacerbated the stress and strain in the contending conservative camps. Fortunately, a lesson of political moderation is also inscribed in the modern conservative tradition, and nowhere more durably or compellingly than at its beginning.

Peter Berkowitz is the Tad and Dianne Taube senior fellow at the Hoover Institution, Stanford University. His writings are posted at This essay is drawn from his book, Constitutional Conservatism, forthcoming this winter from Hoover Institution Press. The essay has its origins in Constitutional Conservatism, Policy Review 153 (Feb. & March 2009 ), available at 5580 . Its themes were developed in Burkes Words Should Hearten Dismayed Conservatives, Real Clear Politics, Feb. 25, 2012 , available at /burkes_words_should_hear ten_dismayed_conservatives_113248 .html.
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Moderating the tension between liberty, or doing as you please, and tradition, or doing as has been done in the past, is a hallmark of the speeches and writings of 18th-century British statesman Edmund Burke. While the conservative spirit is enduring and while some have always been more amply endowed with the inclination to preserve inherited ways and others more moved by the impulse to improve or supersede them, the distinctively modern form of conservatism emerged with Burkes 1790 polemic, Reflections on the Revolution in France. Writing as a friend of liberty and enlightenment, Burke eloquently exposed the brutality of the revolutionaries determination, inspired by a perverse understanding of liberty and enlightenment, to transform political life by upending and sweeping away tradition, custom, and the inherited moral order. Burkes conservatism operates within the broad contours of the larger liberal tradition and embraces much of the spirit of the 18th-century Enlightenment. It is distinguished by its determination to moderate the tendencies toward excess that mark both liberty and reason. Burkes devotion to a spirit of rational liberty1 drives the great reform efforts of his political career: conciliation with America, toleration for Irelands Catholics, and protection of the interests and rights of the people of India. But even if we had only the Reflections, he would still deserve to be counted among our preeminent teachers concerning the balance of principles that favors liberty. The causes to which Burke dedicated himself, and the well-wrought arguments he summoned in their behalf, teach that the paramount political task is to defend liberty. They also illustrate that while the purpose of politics is not to perfect man, securing the rights shared equally by all depends on tradition, religion, and community cultivating the virtues that fit citizens for freedom. And they clarify how the rival interests, multiplicity of groups and associations, and competing conceptions of happiness that characterize free societies make accommodation, balance, and calibration indispensable to the conservative mission. Burkes storied career demonstrates that political moderation is not only consistent with but essential to vindicating the principles of liberty.

Liberty and the French Revolution

urkes Reflections on the Revolution in France is the work of a Whig who cherished freedom and, in the name of individual liberty, sought throughout his long parliamentary career, in battles with the Tories as well as with fellow Whigs, to limit the political power of
1. Edmund Burke, Reflections on the Revolution in France, in The Works of the Right Honourable Edmund Burke III (John C. Nimmo, 1 8 8 7 ), 2 3 5 , available at files/15679/15679-h/15679-h.htm#REFLECTIONS (this and subsequent links accessed November 1, 2012).


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The Liberalism of Edmund Burke

throne and altar. But to limit is not to abolish, and can be consistent with cherishing, as it was in Burkes case. He saw that within proper boundaries, religious faith disciplined and elevated hearts and minds, and monarchy upheld the continuity of tradition, reflected the benefits of hierarchy and order, and provided energy and agility in government. Both institutions, in his assessment, encouraged virtues crucial to libertys preservation. Whereas for the sake of liberty Burke sought to limit the political power of the monarchy in Great Britain, he defended the throne of Louis XVI in France against what he regarded as the revolutionaries radical conception of freedom. Burke warned that the French Revolution presented a great crisis, not of the affairs of France alone, but of all Europe, perhaps of more than Europe. Indeed, he contended that all circumstances taken together, the French Revolution is the Liberty well most astonishing that has hitherto happened in the understood, world. The crux of the matter was that the revoluBurke argued, tionaries novel doctrine demanded more than a change of government; it required a total revolurecognizes the tion, one that would break from and cast aside power of established beliefs, practices, and institutions. In contrast, Burke championed a manly, moral, self-interest but regulated liberty. Liberty well understood, he emphasizes argued, recognizes the power of self-interest but emphasizes self-restraint. It values calculation, planself-restraint. ning, and ambitious state undertakings but attaches great significance to the steady development over centuries of sentiments, manners, and morals. Such liberty depends on a science of government of constructing, conserving, and reforming the state that involves a deep knowledge of human nature and human necessities, and of the things which facilitate or obstruct the various ends which are to be pursued by the mechanism of civil institutions. It recognizes that the little platoon we belong to in society family, religious community, village or town is the original source of public affections and furnishes the schools in which we develop a love to our country and to mankind. It rejects theoreticians and intellectuals definition of the rights of men, which legitimate license without limits. Instead, liberty well understood affirms the real rights of men, grounded in the advantages for which civil society was formed, including the right to live under the rule of law; to own and acquire property and to pass it on to ones children; and generally to live with ones family as one sees fit provided one does not trespass on the rights of others. The primary aim of government, which Burke characterized as a contrivance of human wisdom to provide for human wants, is to secure these rights. Just where the exercise of freedom passes over into a violation of anothers rights and how best to use ones freedom to live well could only be determined by prudent reflection on tradition and custom, because they embodied the nations accumulated wisdom concerning the organization and conduct of human affairs.
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Prudence, Burke famously observed, is the god of this lower world.2 It carefully considers circumstances, which give in reality to every political principle its distinguishing color and discriminating effect, and which render every civil and political scheme beneficial or noxious to mankind.3 Prudence serves political moderation by mediating between principle and practice. It guides the reconciliation of liberty with the requirements of tradition, order, and virtue by taking the measure of all and, to the extent possible in the fluid and murky world of politics, issuing in judgments and actions that give each its due. According to Burke, the French revolutionaries were immoderate in the extreme. By overthrowing monarchy and religion, they aimed to achieve emancipation from not merely a specific tradition or custom but the very authority of tradition and custom. Their goal, unreasonable in the extreme, was to establish an empire built on abstract reason alone. Prudent application of principle to circumstance would be unnecessary. Instead, they would mold circumstances to comply with pure reasons demands. Marching under the banner of the rights of man, they set out to deduce the structure of a society of free and equal citizens without regard to the beliefs and practices, the passions and interests, the attachments and associations that fashion character and form conduct. Rather than counting on education grounded in history, literature, and the sciences to discipline and elevate a recalcitrant human nature, the revolutionaries sought to remake human nature and society to fit reasons supposed revelations about citizens true wants and needs, rights, and obligations. The realization of the revolutionaries ambitions, Burke immediately discerned, would depend on the ruthless resort to violence. Anticipating not only Robespierre and the Reign of Terror but 20thcentury totalitarianism, Burke presciently argued that the determination to use the power of the state to create a new humanity would bring about the dehumanization of man. The quarrel between Burke and the French revolutionaries comes down not to whether liberty is good or is even the leading purpose of politics Burke thought it was both but to the material and moral conditions and the political institutions most conducive to securing, preserving, and extending it. The French revolutionaries put their faith in governments ability to set the people free by developing institutions that satisfy citizens sensibilities by aggressively transforming them. In contrast, Burke emphasized the moral and political benefits that flow to liberty from the time-tested beliefs, practices, and institutions beyond governments immediate purview that structure social life and cultivate manners and morals. The progressive side of the liberal tradition, the roots of which extend back to the French Revolution,
2. Edmund Burke, Letter to the Sheriffs of the City of Bristol, on the Affairs of America, in The Works of the Right Honourable Edmund Burke II (John C. Nimmo, 1887), 226, available at

3. Reflections on the Revolution in France, 239240.


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tends to view traditional understandings of order and virtue as obstacles to freedom. In contrast, the conservative side of the liberal tradition, in the spirit of Burke, sees in them pillars of freedom and seeks to conserve the nongovernmental institutions the family, religious faith, the voluntary associations of civil society that sustain them. Notwithstanding the veneration of the past and the excoriation of revolutionary innovation to which he gave expression in the Reflections, Burke was no reactionary, dogmatically clinging to the old and rejecting the new. He observed in the Reflections that because circumstances are constantly changing, a state without the means of some change is without the means of its conservation. Of course, the change in question must be prudent, wisely adapting enduring principles to the ordinary vicissitudes of politics. In extraordinary times, states must adjust to substantial shifts in circumstances, sentiment, and practice. Prudent change depends on combining and reconciling the two principles of conservation and correction. The balancing of a conserving that is mindful of the need to correct and a correcting that proceeds with an eye to what deserves to be conserved is, in a free society, not an unwelcome political necessity. Such prudence is inseparable from respect for tradition and custom, because tradition and custom typically present not a clear-cut path but a choice of inheritance. Since the right choice about tradition must be freely and reasonably made, and since the reasonable use of freedom depends on the virtues nourished by tradition, liberty and tradition are mutually dependent. This mutual dependence provides an opening to moderate the claims of liberty and tradition which, in a free society, frequently pull in opposing directions. To justly moderate, or harmonize, the competing claims of liberty and tradition, one must respect necessity without thoughtlessly acquiescing to what only appears necessary, and compromise in behalf of principle rather than compromise principle. Political moderation should not be confused with the absence of strong passion. It requires restraining the desire to vindicate immediately and completely a single principle and instead working to vindicate the whole family of rival and worthy principles on which the conservation and correction of liberty depends. As Burkes career as a reformer vividly demonstrates, political moderation is propelled by a passion to strike the most reasonable balance among worthy but incomplete ends for the sake of liberty. Political moderation is a crucial part of the government of the self on which self-government in a free society depends.

Liberty and reform

December 2012 & January 2013

he need for prudent reform to meet the changing requirements of liberty was the dominant theme of Burkes nearly 30-year political career in Great Britains Parliament in the late 1700s. Britain then

Peter Berkowitz
governed the largest empire the world had ever seen. The empire was distinguished not only by its reach but by the principle of liberty in which it was rooted. Burke believed that to conserve the empire, Britain had to recognize the convergence between its obligation to respect liberty and its interest in doing so a convergence that held not only at home but in all its far-flung possessions and undertakings. Even when it meant differing from his constituents and in his greatest moments Burke championed causes that many of his constituents strongly opposed he ardently defended libertys imperatives. In The Great Melody, a magisterial study of Burkes life and ideas, Conor Cruise OBrien adopted as his epigraph lines from Yeatss The Seven Sages:
American Colonies, Ireland, France, and India Harried, and Burkes great melody against it.4

Yeatss lines, OBrien showed, capture the unifying spirit of Burkes political labors, which involved steady opposition to that abuse of power that consisted in the disregard by government of the fundamental requirements of liberty. As a member of Parliament, Burke supported American self-government, toleration for Irelands Catholics, and ending Warren Hastingss corrupt and cruel administration of India. These reforms may seem at odds with Burkes ferocious criticism of the French revolutionaries. But both reflect the balance of principles, interests, and goods that underwrite libertys conservation and direct its correction. Burkes reform efforts rested on the conviction that what a legislator particularly owed his constituents was sound judgment. In November 1774, in a speech to his supporters upon his election to Parliament from Bristol, then Englands second largest city, Burke sought to dispel the popular misconception that representatives must obey their constituents explicit instructions and mandates.5 Representatives are obliged to vigorously advance their constituents interests, he readily acknowledged, but they are not obliged to accept their constituents understanding of those interests or their constituents opinions about the policies that would best advance them. Speaking with a high sense of purpose and uncommon frankness to those returning him to London, Burke explained that
4. Conor Cruise OBrien, The Great Melody: A Thematic Biography of Edmund Burke (University of Chicago Press, 1992).

5. Edmund Burke, Speech to the Electors of Bristol, on his being declared by the Sheriffs duly elected one of the Representatives in Parliament for that City, The Works of the Right Honourable Edmund Burke II (John C. Nimmo, 1887), 89, available at See also Burke, Speech at the Guildhall in Bristol, Previous to the Late Election in that City (1780), ibid., 382, available at Fourteen years later, James Madison similarly argued that the institution of representation, while rooted in the peoples will, works to refine that will and bring it in line with the peoples reason. See James Madison, Federalist Nos. 10, 49, 51, in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter, Introduction and Notes by Charles R. Kesler (Signet Classic, 2003).


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it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their high respect; their business unremitted attention. It is his duty to sacrifice his repose, his pleasure, his satisfactions, to theirs and above all, ever, and in all cases, to prefer their interest to his own. But, his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure no, nor from the law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment, and he betrays, instead of serving you, if he sacrifices it to your opinion.

The representatives responsibility to provide sound judgment stems not only from moral and religious duty but also from the division of labor in which modern representative self-government is grounded. It is the representative who is immersed in the issues of the day. It is the representative who has the opportunity to debate the fine points of legislation and to deliberate. And it is the representative who, from the perspective of the capital city, can look out beyond local purposes and prejudices to consider the long-term consequences of policy and the general good of the whole nation. The sound judgment that Burke champions differs greatly from the public reason from which todays professors of political theory and law purport to derive law and public policy. Public reason and its operation in deliberative democracy describe not the reason that citizens and public officials actually exercise, but rather a system of assumptions about human beings and a hierarchy of moral values that they ideally should accept. When applied to the issues of the day, the professors theories invariably yield results that correspond to progressive policy preferences.6 In contrast, Burke argued that sound judgment grows out of practice, is rooted in the rich soil of moral and political life, and balances conservation and correction. Keenly appreciative of the interests, institutions, and powers that representatives must reconcile, Burke urged his Bristol constituents to keep in mind that their bustling port city
is but a part of a rich commercialnation,the interests of which are various, multiform, and intricate. We are members for that greatnation,which, however, is itself but part of a greatempire,extend6. For an elaboration of these criticisms, see Peter Berkowitz, The Ambiguities of Rawlss Influence, Perspectives on Politics 4:1 (March 2006), available at; and Berkowitz, The Debating Society, The New Republic (Nov. 26, 1996), available at

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Peter Berkowitz
ed by our virtue and our fortune to the farthest limits of the East and of the West. All these wide-spread interests must be considered must be compared must be reconciled, if possible. We are members for afree country; and surely we all know that the machine of a free constitution is no simple thing, but as intricate and as delicate as it is valuable. We are members in a great and ancientmonarchy; and we must preserve religiously the true legal rights of the sovereign, which form the keystone that binds together the noble and well-constructed arch of our empire and our Constitution. A constitution made up of balanced powers must ever be a critical thing.

With the controversial positions he advocated for America, Ireland, and India, Burke sought to honor the representatives duty to preserve the balance under Britains constitutional government crucial to liberty. Burke delivered his Speech on Conciliation with the Colonies in the House of Commons on March 22, 1775.7 This was ten years to the day after Parliament passed the Stamp Act, which increased taxes on the American colonists while rejecting their demands for representation. And it was less than a month before the battles of Lexington and Concord would ignite the Revolutionary War, a dire outcome against which Burke had warned of for many years. With tensions mounting, Burke insisted on the need to formulate policy with a view to actual circumstances at home and in the colonies. He urged that deliberations should proceed on the basis of an appreciation of common interests and not according to our own imaginations, not according to abstract ideas of right, by no means according to mere general theories of government, the resort to which appears to me, in our present situation, no better than arrant trifling. The most important circumstance was the deeply rooted devotion to freedom Britain shared with America. This shared interest in freedom was crucially connected to their shared interest in prosperity. Over the previous 70 years, Englands trade with the colonies had increased no less than twelve-fold, and commerce with America had come to constitute more than one-third of Englands total worldwide trade. Americas rise and the resulting benefits to Britain were due in considerable part to Londons hands-off policy: through a wise and salutary neglect, a generous nature has been suffered to take her own way to perfection. Burke argued for maintaining this hands-off policy. He viewed American exuberance, even American obstreperousness, with generosity: I pardon something to the spirit of liberty. To preserve the colonies vital place in the empire given the violence breaking out across the Atlantic would require prudent management.
7. Edmund Burke, Speech on Conciliation with the Colonies, The Works of the Right Honourable Edmund Burke, II (John C. Nimmo, 1887), available at


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Force was to be avoided since it weakened when it did not ruin the object it subdued. It would be particularly counterproductive in dealing with America because liberty was the colonists lifeblood and the decisive factor in their vital contribution to the empire. Indeed, Burke asserted, a love of freedom is the predominating feature which marks and distinguishes the American character. Americas fierce spirit of liberty, which only increased with the growth in the colonies size and prosperity, arose from several sources. As descendants of Englishmen, Americans inherited the English notion that liberty depended on the right, exercised through representatives, to have a say in the taxes imposed upon them. The high degree of participation in the popular governments they established throughout the colonies further heightened Americans passion for Americas fierce liberty. Their Protestantism, which had sprung up spirit of liberty, in direct opposition to all the ordinary powers of the which only world, inclined Americans to make strong claims on behalf of natural liberty. In the south, the instiincreased as the tution of slavery paradoxically amplified slave owners attachment to freedom by reinforcing their iden- colonies grew and tification of it with nobility and high station. prospered, arose Throughout the land, avid reading and study, espefrom several cially of law, increased Americans sensitivity to abuses of power and honed their arguments on libsources. ertys behalf. And finally, the 3,000 miles of ocean separating America from Parliament thwarted responsible oversight by London and weakened the colonists willingness to submit to the central governments authority. These powerful and diverse sources nourishing the spirit of freedom in America, according to Burke, made it all but inevitable that arguments marshaled in London against colonists demands for greater representation including those arguments with respectable grounds in traditional British understandings and practice were bound to fall on deaf ears in America. Consequently, Britain had three choices: to remove the immediate cause of the dispute; to prosecute defiant Americans as criminals; or to recognize American demands for representation as unavoidable and reasonable in the circumstances and devise ways to satisfy them. To attempt to remove the immediate cause, which was rooted in the colonists love of liberty, would be worse than useless, contended Burke, since it would enrage the colonists and deprive England of Americas bounty. Prosecuting the colonists for acts of resistance was no more advisable. Taking a hard line was inconsistent with administering an empire which, grounded as it was in liberty, must allow for challenges to government policy. Crushing the colonists resistance to authority would teach them that the government against which a claim of liberty is tantamount to high treason is a government to which submission is equivalent to slavery.
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The prudent option was for Britain to accommodate American demands for greater self-government. Thus Burke favored granting the colonists limited representation in Parliament on questions of taxation, though not as a matter of right. With the question of right, he wished to have nothing at all to do. The legal question, for Burke, counted as less than nothing. Rather, the question with me is, not whether you have a right to render your people miserable; but whether it is not your interest to make them happy. Statesmanship went well beyond questions of strict legality, and it took into account much more than crude calculations of utility. I am not determining a point of law, Burke declared. I am restoring tranquility: and the general character and situation of a people must determine what sort of government is fitted for them. Appreciation of the spirit of liberty common to America and Britain prescribed granting the colonists a measure of representation. And a measure of representation advanced a surpassing British interest, which was to admit the people of our colonies into an interest in the Constitution. Such a policy involved a substantial concession. But it was a concession rooted, Burke asserted, in principles favoring the fortification of liberty and representative government that had consistently informed British government policy. Conciliation itself was the ancient constitutional policy of this kingdom. It reflected the very nature of politics:
All government, indeed every human benefit and enjoyment, every virtue and every prudent act, is founded on compromise and barter. We balance inconveniences; we give and take; we remit some rights, that we may enjoy others; and we choose rather to be happy citizens than subtle disputants.

In Burkes estimation, the balance of inconveniences involved in conciliation with America amounted to a particularly good deal for Britain. By allowing English liberties to flourish in the colonies, Britain would encourage the spirit of liberty that made both Britain and America prosperous, reinforce the spirit of liberty at home, and conserve English dominion on a long-term basis since liberty was also a dictate of justice. Five years later, in his 1780 speech at the Bristol Guildhall which marked the close of his career representing Bristol, Burke offered a trenchant defense of a bill intended to ease the significant disabilities Englands Penal Laws had imposed on Irish Catholics.8 This was a delicate matter for Burke. His father, Richard Burke, was a Protestant who, a few years before Edmund was born in 1729, almost certainly had converted from Catholicism so he could practice law. Burkes mother Mary Nagle was a Catholic, as was Burkes wife of 40 years, Jane. Throughout his career, Burke was highly cir8. Edmund Burke, Speech at the Guildhall in Bristol, Previous to the Late Election in that City, The Works of the Right Honourable Edmund Burke II (John C. Nimmo, 1887), p. 366, available at


Policy Review

The Liberalism of Edmund Burke

cumspect about his Catholic connections even as his political enemies regularly attacked him as a Catholic sympathizer, a damaging charge in 18thcentury British politics. Along with his support for free trade with Ireland and for easing penalties for debtors, Burkes vigorous advocacy of toleration of Catholics in Ireland caused the loss of his Bristol seat (he went on to represent Malton, a less powerful position). As OBrien observed in The Great Melody, Burkes defense of the rights of Catholics is all the more poignant for the personal interests it implicated and all the more impressive for the political costs it exacted. According to Burke, his critics believed that tolerance in Ireland recklessly pushed the demand for justice beyond what his constituents and Britain more generally could bear. In reply, he argued that the reforms he sought reflected the imperatives of liberty in light of the realities of British politics. The long view, Burke held, was relevant to the determination of the proper public policy concerning the freedom of those who belonged to the minority faith. Appealing to his constituents majority Protestant faith, Burke pointed out that the principle of toleration has roots in the Reformation, one of the greatest periods of human improvement. Nevertheless, pockets of intolerance in violation of Protestant principles of liberty persisted in Ireland long after the Reformation, not least in the form of the harsh restrictions imposed upon Catholics. In 1699, the Penal Laws made it a crime punishable by imprisonment to say Catholic Mass or to teach Catholicism. The Penal Laws also required Catholics to renounce their faith or forfeit their land, and set severe limits on professional advancement such as those faced by Burkes father. One did not have to rely only on distinctively Protestant principles, however, to condemn the wrongs inflicted on Catholics by the Penal Laws. Universal principles, Burke asserted, also condemned them. The Penal Laws attacked human nature, crippling in their targets the rights and feelings of humanity. They had a tendency to degrade and abase mankind, and to deprive them of that assured and liberal state of mind which alone can make us what we ought to be. So terrible was the indignity that Burke would have rather
put a man to immediate death for opinions I disliked, and so to get rid of the man and his opinions at once, than to fret him with a feverish being, tainted with the jail-distemper of a contagious servitude, to keep him above ground an animated mass of putrefaction, corrupted himself, and corrupting all about him.

The repeal of the Penal Laws was necessitated both by the religious principles held by the vast majority of Britons and by the common humanity all men shared. Other considerations, grounded in the events of the day, also counseled reform. With toleration gaining ground throughout Europe in Holland, Germany, Sweden, and France British toleration of Catholics would lend
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support abroad to Protestant claims to toleration in Catholic countries. And as Catholics were Britains best manufacturers, toleration advanced British commercial interests. But if toleration was so important, other critics asked, why did Burke support a bill that provided only partial relief from the Penal Laws rather than their outright repeal? Because, answered Burke, prudence so counseled. While outright repeal was not politically attainable, partial relief would provide a progressive experience. By means of incremental steps, the people would grow reconciled to toleration, when they should find, by the effects, that justice was not so irreconcilable an enemy to convenience as they had imagined. Still others objected that Parliament was acting with undue haste. Burke retorted that Parliament was proceeding too slowly, taking 80 years to undertake the repair of laws that never should have been implemented. And to those who insisted monarchs posed the true threat to freedom, Burke responded that freedom was threatened from many quarters. It could be imperiled just as much by the strongest faction, the tyranny of the majority, and indeed by the rage to rule over others that sometimes wears the mask of freedom:
It is but too true, that the love, and even the very idea, of genuine liberty is extremely rare. It is but too true that there are many whose whole scheme of freedom is made up of pride, perverseness, and insolence. They feel themselves in a state of thraldom, they imagine that their souls are cooped and cabined in, unless they have some man or some body of men dependent on their mercy.

Because liberty is subject to abuse in many ways and the true love of liberty is rare, the peoples will must be confined within the limits of justice, which impose toleration as a defining feature of a free society. In his 1783 speech on Foxs East India Bill, Burke once again pressed for reforms based on the conviction that honoring the claims of liberty abroad made liberty at home more secure.9 Attacking what he believed to be Britains gross malfeasance in India, the speech was a high point of the cause to which he devoted the greater part of the final decade of his parliamentary career. To his many critics, it seemed that he was consumed with the issue. In fact, Burke went to great lengths to bring to justice Warren Hastings, the first governor-general of Bengal, who effectively ruled India from 1773 until 1775. Burke led the 1787 impeachment of Hastings in the House of Commons and the eight-year prosecution of Hastings at the Bar of the House of Lords, which ended in acquittal in 1795. Even still, Burkes early entry into the controversy in his speech in support of Charles James Foxs
9. Edmund Burke, Speech on Mr. Foxs East India Bill, The Works of the Right Honourable Edmund Burke II (John C. Nimmo, 1887), available at


Policy Review

The Liberalism of Edmund Burke

East India Bill Fox was leader of the Whigs but Burke conceived and drafted the bill is a model of reasoned political analysis and advocacy. It is notable, as was Burkes call for conciliation with America and his insistence on tolerance for Irelands Catholics, for arguing that Britains interest in liberty and the morality of liberty converged, and therefore that reform was simultaneously demanded by humanity, by justice, and by every principle of true policy. Britains interest in robust commerce with India, Burke argued, was inseparable from the interest and well-being of the people of India. But the English East India Company established in 1600 by Queen Elizabeth I to promote trade had gravely abused its power and ruthlessly exploited its prerogatives. It trampled on native-born Indians rights and enervated the country. And in the process, the East India Company eroded British morals and undermined Britains national interest. Consequently, Burke believed that restoring Indians liberty was a requirement of British self-government: every means effectual to preserve India from oppression is a guard to preserve the British Constitution from its worst corruption. The bill Burke championed aimed to alter the charter that established the East India Companys status as a private company governing India. It would give Parliament responsibility for overseeing the company. Burkes refutation of the charge that the reform represented an attack on the chartered rights of men is of special interest because of its account of the political significance of natural rights and because of the analysis it leads to on the circumstances that justify fundamental alteration of an established institution of government. Burke contended that by invoking the East India Companys chartered rights to prevent government intervention, opponents of reform confused the rights created by government with the universal rights governments are established to secure:
The rights of men that is to say, the natural rights of mankind are indeed sacred things; and if any public measure is proved mischievously to affect them, the objection ought to be fatal to that measure, even if no charter at all could be set up against it. If these natural rights are further affirmed and declared by express covenants, if they are clearly defined and secured against chicane, against power and authority, by written instruments and positive engagements, they are in a still better condition: they partake not only of the sanctity of the object so secured, but of that solemn public faith itself which secures an object of such importance. Indeed, this formal recognition, by the sovereign power, of an original right in the subject, can never be subverted, but by rooting up the holding radical principles of government, and even of society itself.

Very much in keeping with the larger liberal tradition, Burke held that to be most politically effective, natural rights, which preexist and set standards for political life, require translation through legal codes into concrete guarantees.
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What are properly called the chartered rights of men are those natural rights that are explicitly affirmed in fundamental legal documents. The Magna Carta, a charter to restrain power, and to destroy monopoly, was for Burke an outstanding example. In contrast, The East India charter is a charter to establish monopoly and to create power. It worked to suspend the natural rights of mankind at large, allowing the company to administer, as if it were a state power, an enormous territory vital to the commercial interests of Britain as well as to manage the lives and fortunes of thirty millions of their fellow-creatures. However, the political power to rule over another is not a natural right. To the contrary, it is wholly artificial, and for so much a derogation from the natural equality of mankind at large, ought to be some way or other exercised ultimately for their benefit. The East India Company had enjoyed a trust. By betraying the lawful purposes that brought it into being, the company had nullified the trust. In view of the companys plenitude of despotism, tyranny, and corruption, Burke argued that Parliament was obliged to reassert its responsibility for the equitable and efficient administration of India, to provide a real chartered security for the rights of men that the company had cruelly violated. Burke recognized that the revision of the East India Companys charter he sought was drastic. He justified the drastic reform on the grounds that the East India Company had long persisted in drastic abuses. But the reform, he emphasized, was in no way based on an a priori argument against endowing a private company with the political power to administer a vast nation:
With my particular ideas and sentiments, I cannot go that way to work. I feel an insuperable reluctance in giving my hand to destroy any established institution of government, upon a theory, however plausible it may be.

Furthermore, no established institution of government should be repudiated for the mere existence of abuses in the exercise of its powers, because there are, and must be, abuses in all governments. Because of the wisdom embodied in established institutions, Burke held that sweeping change should be contemplated only as a last resort to protect the most basic individual rights and vital national interests.10 Accordingly, fundamental alteration of any established institution of government would have to meet exacting criteria:
1st, The object affected by the abuse should be great and important. 2nd, The abuse affecting this great object ought to be a great abuse. 3d, It ought to be habitual, and not accidental. 4th, It ought to be utterly incurable in the body as it now stands constituted.

10. Or, as he argues in distinguishing the English Revolution of 1688 from the French Revolution, sweeping change should be in response to a grave and overruling necessity and should be undertaken with infinite reluctance, as under that most rigorous of all laws. See Reflections on the Revolution in France, 267; see also 311312.


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The Liberalism of Edmund Burke

And the evidence concerning the object, greatness, regularity, and implacableness of the abuse must be as clear as the light of the sun. The bulk of Burkes speech on Foxs East India Bill delves into the nitty-gritty of the British administration of India, supplying ample evidence demonstrating that the conduct of the East India Company under the direction of GovernorGeneral Hastings represented an extreme abuse of power that obliged Parliament to implement far-reaching reforms. Burkes arguments in behalf of reform of British policy toward India are of a piece with those he puts forward in behalf of reform of British policy toward America and Ireland. They reflect the exacting standard of statesmanship devoted to liberty he espoused in the Reflections:
A disposition to preserve, and an ability to improve, taken together, would be my standard of a statesman. Everything else is vulgar in the conception, perilous in the execution.

And by this exacting standard, Burkes arguments in the name of liberty in favor of reform are of a piece with his arguments in the name of liberty against the revolution in France.

Liberty and political moderation

he need in free societies to combine and reconcile the principles of conservation and correction imposes formidable demands on the people and on office holders. To be sure, under government of all sorts, policy and law must constantly be adjusted, balanced, and calibrated in light of changing circumstances. But liberty guarantees that circumstances will always be changing, and in fact liberty tends to accelerate the pace of change. One manifestation of the larger challenge is the famous tension between conservatism and capitalism: Capitalisms constant quest for newer and better products and techniques of production to achieve ever greater profits, and the affluence and luxury that free markets bring, demote tradition, disrupt order, and weaken the virtues of mind and character such as self-restraint, industriousness, and thrift that support free markets and free political institutions. The larger challenge is rooted in the passions. Liberty excites the human love of novelty for how can I be free if I must submit to the same old routines? And it goads the human love of dominion for how can I be free if others defy my will? By simultaneously encouraging an aversion to authority and a desire for mastery, freedom also tends to provoke a backlash against freedom. The result in free societies is the generation of extreme and conflicting types: radicals who seek to extend governments rule over others in the name of equality while freeing themselves from rules, and reactionaries who strive to reinstate traditional forms of authority, not only on themselves
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but on the rest of society. Liberty unrestrained and undisciplined fosters immoderation. Consequently, a government devoted to conserving and correcting freedom will require particular prudence in the art of balancing, or political moderation.11 The virtue of political moderation is often mistaken for a compromise with virtue, a softening of belief, a diluting of passion, a weakening of will, even an outright vice. But those are examples not of political moderation but of the failure to achieve it. Moderation in politics is not a retreat from the fullness of life but an embrace of it. Political moderation is called into action by the awareness of the variety of enduring moral and political principles; the substantial limits on what we can know and how effectively and justly we can act; the range of legitimate individual interests; the multiplicity of valuable human undertakings and ends; and the quest to discern a common good in light of which we can make moral distinctions and establish political priorities.12 Political moderation underlies self-government understood as the individuals mastery of his own conduct and understood as a free peoples rule over itself. Nevertheless, the virtue of political moderation will always serve as an inviting target for demagogues who seek to exploit the passion for purity in politics. In the Reflections, Burke warned that one who supports a scheme of liberty soberly limited is likely to be accused of lacking fidelity to his cause. The purists attack on the appeal to reason and the exercise of restraint in behalf of freedom will not end there:
Moderation will be stigmatized as the virtue of cowards, and compromise as the prudence of traitors, until, in hopes of preserving the credit which may enable him to temper and moderate on some occasions, the popular leader is obliged to become active in propagating doctrines and establishing powers that will afterwards defeat any sober purpose at which he ultimately might have aimed.

Because of the perennial need to stand firmly against the common slander that political moderation is a feeble disguise for weak-kneed betrayal of principle, political moderation is inseparable from political courage. Since Burkes devotion to political moderation was hardly evident to all observers in his time and would have been disputed by many, he was compelled to clarify his beliefs about it. In the final paragraph of the Reflections, written 25 years after he was first elected to Parliament and four years before his retirement, Burke declared that he had been one almost the whole of whose public exertion has been a struggle for the liberty of others.
11. For further reflections on the paradox of freedom see Peter Berkowitz, The Liberal Spirit in America, Policy Review 120 (Aug. & Sept. 2003), available at

12. See Harvey Clor, On Moderation: Defending an Ancient Virtue in a Modern World (Baylor University Press, 2008).


Policy Review

The Liberalism of Edmund Burke

Aware that his attack on the French Revolution gave rise to the appearance of inconsistency, he made sense of the seeming contradictions by explaining the underlying reality. Invoking a classical image, he characterized his words and actions as those of a statesman
who would preserve consistency by varying his means to secure the unity of his end and, when the equipoise of the vessel in which he sails may be endangered by overloading it upon one side, is desirous of carrying the small weight of his reasons to that which may preserve its equipoise.

To conserve liberty at a time when the French revolutionaries made extravagant claims on its behalf, Burke fervently championed the claims of tradition, order, and virtue. And when his countrymen failed to grasp its imperatives in their affairs abroad in America, Ireland, and India, he passionately urged reforms that enlarged libertys sphere. The conservative sideof the larger liberal tradition displays variations on the political moderation contained in Burkes insistence on the importance of combining and reconciling the principles of conservation and correction. In 1776 in The Wealth of Nations, Burkes contemporary Adam Smith examined the mutual dependence of economic life and virtue. Smith saw that the market economy, which brought prosperity and nourished political liberty, both rewarded moral virtues rationality, industry, ingenuity, and self-discipline and corrupted workers character by condemning them to monotonous labor. He therefore insisted on the need for government to take action by, for example, providing education for workers and limiting the workplace demands imposed on them by manufacturers. In Democracy in America, the first volume of which appeared in 1835 and the second in 1840, Alexis de Tocqueville argued that in the modern era democracy had become necessary and just and that while it fostered a certain simplicity and straightforwardness in manners it also encouraged selfishness, envy, immediate gratification, and lazy acceptance of state authority. To secure liberty, which he believed essential for a well-lived life, it would be necessary to preserve within democracy those nongovernmental institutions family, religious faith, and civic associations of many sorts that counteracted democracys deleterious tendencies. Family, faith, and civic associations taught moral virtue, connected individuals to higher purposes, and broadened their appreciation of their self-interest to include their debts to forebears, bonds to fellow citizens, and obligations to future generations. John Stuart Mill, an admirer of Tocqueville whose voluminous writings feature conspicuously conservative and progressive dimensions, made the case in 1859 in On Liberty that liberty served the permanent interests of man as a progressive being. At the same time, he distinguished between the use and abuse of freedom; defended a rigorous education continuing through university and combining science and humanities to equip individuals for freedoms opportunities and demands; and favored political institutions that, while grounded in the consent of the governed, were designed to improve the likelihood that elections
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would bring individuals of outstanding moral and intellectual virtue to public office. If a liberal in the large sense is one who believes that the aim of politics is to secure liberty, then Smith, Tocqueville, and Mill are, like Burke, exemplary members of the liberal tradition. Because of their common appreciation that free societies expose individuals to influences that corrode moral and political order and enervate the virtues on which liberty depends, they belong on the conservative side of the liberal tradition. Because of their shared understanding that limits must be imposed on government to protect individual liberty, but that those limits must not sap the energy or impair the authority government needs to secure liberty, their account of self-government emphasizes striking a balance between competing and essential principles. Their political moderation is a reflection of their passion for freedom and their reasoned understanding of the complex conditions that sustain it. The Federalist, the masterpiece of American political thought, embraces the conservative brand of liberal self-government they epitomize and constitutionalizes it.


Policy Review

The Contradictions of Pain Therapy

By Ronald W. Dworkin

everal years ago I asked a leader in the Maryland pain community what percentage of Marylanders had enough chronic pain to deserve medical therapy. He replied matter-offactly, One hundred percent. I thought he was joking, but he quickly explained to me that everyone has chronic pain at some point, meaning pain lasting for more than three months. Because medical therapy is available, such pain is needless, he argued; therefore all Marylanders were candidates for chronic pain therapy. Although extreme, his position exemplifies the new and aggressive stance toward chronic pain in the country at large. The medical profession now estimates that 116 million Americans suffer from chronic pain and merit some kind of treatment more than a third of the entire population. This number doesnt even include sufferers of acute pain, or children. Already eight million Americans use drugs to manage this pain, representing a tenfold increase in the last fifteen years. Pain that a generation ago would have been overlooked as a natural part of everyday life now has the attention of
Ronald W. Dworkin, M.D., Ph.D., is a senior fellow at the Hudson Institute and teaches in the George Washington University Honors Program.
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physicians, leading to an enormous increase in both narcotic and nonnarcotic prescriptions, with narcotics now representing the most widely prescribed class of medications in the U.S. Indeed, $600 billion is spent annually on the chronic pain problem. As an anesthesiologist, I have observed a corresponding change in popular attitudes toward acute pain. All surgical patients hate pain, yet even as late as the 1970s, anesthesiologists typically ignored mild to moderate postoperative pain, not out of cruelty but because they were unconscious of the complaint. Had the public pressured anesthesiologists to change their ways, they might have done so. But the public did not. Some anesthesiologists saw postoperative pain as a useful respiratory stimulant to counteract the depressant effects of their anesthetic. Others worried (wrongly) that aggressively treating pain in the recovery room All surgical might lead to drug addiction. But most of the indifpatients hate ference toward pain was convention, among both doctors and patients, and the weight of a reigning pain, but even as convention is like the weight of the atmosphere it late as the 1970 s, is so universal that no one feels it. Today, such indifanesthesiologists ference would be considered poor practice if not typically ignored malpractice. Pediatric anesthesia exhibits the clearest trend. As mild to moderate late as the mid-1980s, anesthesiologists rarely anesthetized infants for surgery, in part because they postoperative worried about the effect of potent anesthetics on pain. sick babies, but mostly because they assumed infants didnt feel pain, a concept that grew out of 1940s research that showed newborns failed to pull their limbs away when pricked with a pin. Anesthesiologists simply paralyzed infants with muscle relaxants to keep them from moving while the surgeon cut. During my training in the mid-1980s, some of my professors would jam breathing tubes into awake and struggling infants, then, during surgery, administer a little nitrous oxide, a weak anesthetic. They were almost humane for their times. Today, this practice seems barbaric. Although the infants pain experience remains a mystery, since infants cant talk, the empathic sensibilities of both anesthesiologists and laypeople have been so aroused that letting a surgeon operate on an awake infant today would be inconceivable. Obstetrical anesthesia reveals the same trend. As late as the 1970s, many anesthesiologists and patients saw epidurals for pain relief during labor as a luxury. Although the labor epidural technique was established in 1942, and the equipment for continuous labor epidurals came into being in 1949, even as late as 1961 prominent anesthesiologists assumed the old, substandard method of pain relief during labor, including narcotics and nitrous oxide, would suffice for most women, and that only ten to twenty percent of laboring women would need epidurals. Today, American women expect epidurals. Sixty to 70 percent of American women get them; the rate approaches 90
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percent in some hospitals. Most anesthesiologists share in the new attitude. Indeed, I have often placed epidural catheters in women before their contractions have even started, in preparation for dosing the catheters at a later time, simply because the women wanted to be ready for the onslaught, which seemed reasonable to me. Our cultures heightened sensitivity toward acute pain is so profound as to confound medical practice. In the past, emergency room patients presenting with abdominal pain had to first be evaluated before being treated with narcotics, out of concern that narcotics would mask the pain symptom needed to make the diagnosis for example, in appendicitis. Today, patients in pain often demand narcotics immediately, and regulations compel emergency room staff to prescribe them, sometimes interfering with the surgeons exam. Our cultures Occasionally the heightened awareness of acute pain crosses over into the ridiculous. I once had a sensitivity patient whom I had to stick several times to secure toward an iv an uncommon event but not an extraordiacute pain is nary one. After surgery the patient asked me if there was a support group for people with a history of so profound difficult iv sticks that she might join. I told her I as to confound didnt know of any. Upon discharge, she kept calling me, asking me for the name of a support group. In medical the end I referred her to mental health services. practice. Although the management of both acute and chronic pain has changed significantly over the past few decades, the public focus has largely been on chronic pain. Treating acute surgical pain with narcotics, for example, does not lead to addiction. Nor does it strain state and federal budgets. Chronic pain is the problem, and on several fronts. First, the mass treatment of chronic pain is expensive. Yet not treating chronic pain incurs its own expense. The $600 billion figure quoted above includes the medical costs of pain therapy but also the economic costs related to disability days, such as lost wages and productivity. The lost productivity is significant. An estimated 42 million American adults report that pain disrupts their sleep at least a few nights a week. In one study, thirteen percent of workers lost productive time in a two-week period due to pain. Second, some doctors hesitate to treat chronic pain because they fear inciting drug addiction or other medical problems, resulting in the loss of their medical licenses. Both public opinion and government encourage doctors to treat chronic pain; at the same time, government zealously scrutinizes physician prescription habits, and stands ready to prosecute doctors who are outliers, even those doctors who prescribe in good faith. In Suffolk County, New York, for example, a grand jury recently blamed doctors for the epidemic of prescription-drug addiction over the past decade. Some physicians have abandoned their pain practices for this reason.
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Third, many chronic pain patients feel a stigma attached to their therapy. They fear some quarters of society view them as a bunch of drug fiends. They particularly resent being grouped with patients who take psychoactive drugs for everyday unhappiness. Masking unhappiness with psychoactive drugs risks leaving a person mired in bad life circumstances that need to be changed; in such cases, unhappiness needs to be felt. But what possible value can there be in pain? Why should pain be felt, ask chronic pain sufferers? The ensuing wall of silence infuriates these patients, and not only against their public critics, but also against doctors and government bureaucrats who seem resistant to doling out medical therapy. At the same time, government authorities do have a legitimate interest in how chronic pain is being treated. Drug diversion, in which opiates prescribed for a chronic pain patient end up in the hands of someone else, often for nonmedical use, has steadily increased over the past twenty years. In addition, deaths resulting from accidental overdose of opiates have tripled among chronic pain patients since 1999. The mass treatment of chronic pain is beset by doubts, recriminations, and resentment, but the word that best captures the treatment climate is confusion. Neither doctors nor patients nor government officials know where they stand. On the pain issue, each distrusts the other; indeed, each almost dislikes the other. To resolve this confusion, the first order of business must be to explain its origins, beginning with a recognition that trends in acute and chronic pain are of a piece. Indeed, although not a public policy concern in its own right, the acute pain experience sheds considerable light on the chronic pain problem.

Measuring pain
henever i roll a patient into the recovery room after surgery, the receiving nurse asks the patient, Do you have any pain? If the patient answers in the affirmative, the nurse follows up by asking the patient to estimate his or her pain, on a scale of one to ten, with ten being the worst pain of your life. The nurse does this to establish the patients pain score. If the number is high, I will invariably prescribe a pain medication, typically a narcotic. The pain score has become an essential feature of pain management, both in acute and chronic pain, so much so that it has been called the Fifth Vital Sign (after blood pressure, pulse, respirations, and temperature). The Joint Commission on Accreditation of Healthcare Organizations (jcaho) now requires doctors and nurses to ask patients to estimate their pain, whether in the form of a number, a verbal description, or a visual diagram (for example, on a scale ranging from a happy face, meaning no pain, to a frowning face, meaning a lot of pain). The estimate serves as a measure of patient discomfort to help guide therapy.
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At first glance, the pain score seems no different from any other medical measurement, such as blood sugar or hemoglobin. But it is different. Although often expressed as an objective number, the pain score is completely subjective. It captures how a patient feels, irrespective of whether that feeling is justified. Indeed, most of the pain assessment scales used in medicine today evolved from rating scales used in the 1950s in social science, public opinion polls, and marketing research. Unlike other measurements in medicine, the provenance of the pain score is decidedly nonscientific. When a patient declares a high pain score in the recovery room, many doctors and nurses react so strongly that its as if they had unlearned to think. It is an amazing spectacle. A patient emerges from anesthesia, he or she expresses a myriad of different feelings, and recovery room staff carefully scrutinize these feelings Why does a when making clinical decisions for example, complaint of when weighing complaints of breathlessness against pain, unlike of oxygen measurements that show normal lung status, or when weighing complaints of muscle weakness breathlessness or against nerve stimulators that show normal muscle strength. But when the patient complains of pain, all muscle weakness, discernment suddenly disappears. cause logic to I am as guilty as the next physician. A postoperasuddenly leave tive patient appears comfortable, his vital signs are stable, his facial expression suggests boredom but the room? when the nurse asks him to estimate his pain, he says its a ten. The nurse calls me to evaluate the patient. Are you sure your pain is the worst youve ever experienced? I ask, somewhat doubtful. With calm countenance he replies that it is. And in his mind, at that moment, in these circumstances, it does seem to him like the worst pain hes ever experienced, even though its probably not. Invariably I treat him with a narcotic. If the patient says his pain is the worst pain of his life, then its the worst pain of his life and I am compelled to treat it. Sometimes a postoperative patient complains of pain thats a ten before nodding off to sleep. The nurse hesitates to treat, since the complaint doesnt make sense. At such moments my faculty for discernment kicks in, and I hold off on therapy. But other doctors will prescribe a small dose of narcotic in such situations, just to cover themselves, in case the patient later complains that his or her pain wasnt attended to. Why does a complaint of pain, unlike a complaint of breathlessness or muscle weakness, cause logic to suddenly leave the room? Because when a patient complains of pain, it is no longer the patient speaking, it is his or her pain speaking, and when pain speaks today, it speaks authoritatively. Doctors and nurses today have great respect for pain perhaps somewhat too much. They fear getting into trouble if they respond too slowly to the complaint. Both jcaho and federal law command doctors to treat pain aggressively. The courts now recognize pain, standing alone and without any
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other physical injury, as a legitimate basis for a lawsuit. State medical boards increasingly reprimand doctors who neglect peoples pain. More than once Ive cut my fingers rushing to crack open a glass ampule of morphine in the effort to spare a patient an extra 30 seconds of pain. Pain has attained ideological status in American culture, making it similar to breast cancer and hiv other medical problems with political overtones. Activists speak of a right to pain relief. Doctors who hesitate to treat pain sit next to bankers and oil company executives in the cultures pantheon of evildoers. Doctors have the same responsibility to treat pain as they do breast cancer or aids, but unlike the latter two, they have no authority to diagnose the problem, or to say whether or not the problem even exists in a particular patient. Its an untenable position. To bridge the gap between themselves and their patients, doctors have spent more than two decades in search of a measure that will let them objectively measure a patients subjective experience of pain, thereby returning authority to them to sit alongside their responsibility. In the chronic pain field this dream measure is commonly referred to as the Holy Grail. It has never been found. That doctors dream of finding it is telling. Until then, and so long as pain remains a subjective experience, doctors will continue to view some chronic pain complaints with a tincture of distrust.

The science of pain

ll anesthesiologists learn the concept of mac (Minimum Alveolar Concentration), which is the fundamental concept in anesthesia science. mac is the concentration of anesthetic gas needed to keep 50 percent of patients motionless while being cut on. However, mac has no direct correlation with pain. At multiple levels of mac anesthesiologists cannot really say for sure what a patient feels; all they can say is whether or not a patient moves in response to a noxious stimulus. Indeed, one of the concepts founders joked that mac had been around long before he had discovered it, writing, Every time I give anesthesia and the patient moves, the surgeon says, Hey, mac! One would expect anesthesiology to have a rigorous scientific explanation for pain, but it doesnt. Its most fundamental concept is crude. Indeed, todays scientific explanations for pain hardly differ qualitatively from observations about pain made by scientists several centuries ago. Writing of a division between body and mind, Descartes concluded that pain is a hardwired, sensory experience: A noxious stimulus sends signals from the periphery to the brain, where pain is experienced; there is no mental, or psychological, contribution to the pain experience, he argued. This hardwired approach to pain remains a basic concept in pain science to this day, in the sense that a noxious stimulus is presumed to send a signal through specialized nerve fibers to the spinal cord and on to the brain.
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The major difference between Descartes and todays physicians is that todays physicians officially recognize the role of thoughts and emotions in modulating the pain experience. I say officially because some 19th-century doctors also recognized psychologys influence on pain, but their theories lost influence towards the end of the 1800s, and did not regain strength (and eventual ascendancy) until the mid-1960s. This short detour away from psychology sowed the seeds of even more distrust between doctors and patients. While doctors sometimes distrust their patients because pain has become a completely subjective experience, patients sometimes distrust their doctors because they vaguely recall a period spanning well into the 1960s when the subjective aspect of pain was ignored altogether, causing countless patients to suffer. To some degree, 19th-century doctors who ushAnesthesiology ered in this short-lived era were victims of a setup. Unlike other psychological experiences, pain typicaldoesnt have a ly has a connection with the body; therefore, unlike unhappiness or anxiety, it seemed reasonable for the rigorous scientific medical profession to absorb the pain problem. explanation for Indeed, the 19th-century tripartite division between pain. Its most acute pain, nonmalignant chronic pain, and pain fundamental resulting from terminal illness remains the general schema for organizing pain today. But the physical concept is crude. and the psychological in pain are inextricably intertwined; moreover, some recognized pain syndromes are associated with no obvious tissue pathology. For example, pain associated with dysfunctional sympathetic nervous system activity is real pain, as opposed to hysteria. Nevertheless, it lacks an obvious lesion. Thus, some pain experiences those associated with visible lesions conformed to the new physical, mechanistic approach to disease better than others, and there was no definite line dividing one from the other. Organized medicine had to draw a line somewhere, to separate what doctors wanted to acknowledge as true pain, but it could nowhere divide completely true pain from completely false pain, since the physical basis for pain was smeared over a continuum stretching from the visible to the invisible while pains psychological basis penetrated at odd points. The entire pain spectrum was (and remains) like a shade between white and black, and no matter where the line might be drawn it was impossible to get pure white. Still, organized medicine drew that line, consistent with the scientific approach of the day, and did it as well as it could. In drawing this line, organized medicine made two grave errors. First, to reject more emphatically the pain it did not accept as legitimate, and to give more weight to the pain it did accept, organized medicine put one general seal of infallibility on all that it approved. The notion that pain comes from a visible lesion and nothing more was taught in the nations medical schools. By this, organized medicine harmed all that it accepted, for having accepted
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the white, the less white, and the gray that is, the more or less pure teaching and having stamped it with a seal of infallibility, it deprived itself of the right to explore, innovate, and elucidate on true pain, hobbling medical research for many decades. Second, as a growing body of evidence showed that true pain could exist without a visible lesion, and that psychology affected pain, the line that doctors drew fell under siege. Having acknowledged the necessity of a visible lesion in pain, doctors had to justify everything, shut their eyes, hide, fall into contradictions, and, alas, often say what was not true when confronted with countervailing evidence. By the 1920s, the division between organic pain (pain associated with a tissue lesion) and functional pain (pain that is all in the head, and taken less seriously) had become canonical. Chronic pain sufferers without obvious lesions were considered deluded, or, worse, malingerers and potential drug abusers. The medical profession ignored them to preserve the integrity of their line. When that line collapsed in the 1960s, the previous attitude, in retrospect, seemed scandalous. The situation was not unlike what arose after the civil rights movement, when all that had been taken for granted for over a century was seen with new eyes. Doctors felt guilty. Chronic pain patients were angry, and henceforth sensitive to any whiff of doctors dismissing their troubles. The distrust that chronic pain patients feel towards the medical profession continues to this day.

everal years ago, I happened to be in the same room as an anesthesiologist was speaking on the phone with a dea official. The anesthesiologist had called the agency to ask an innocent question about his license renewal. All of a sudden, the anesthesiologist froze and even seemed to cower, then stood up with a jerk and darted off. He had entered a trap: The official on the other end of the line had demanded that he read some numbers off his license, even though he (the anesthesiologist) had been the one to initiate contact. If he couldnt produce his license, which, according to the official, should always be on his person or within view at work, there would be trouble, the official warned; they might even come for him. The anesthesiologist ran to his office and retrieved the necessary document (it was in his briefcase), then returned and spoke the numbers with a quiver, thereby saving himself. In the chronic pain world doctors and patients sometimes suspect each other, but so also do doctors and government officials, as the two groups have different goals and often work at cross purposes. Doctors want to treat pain (although, as noted above, what pain is can be hard to say), while some government officials want to clamp down on the illicit use of pain drugs (although other government officials work to implement the activist agenda
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The Contradictions of Pain Therapy

on pain treatment). The result is often confusion and suspicion, if not acute dislike. Many doctors consider government officials fools, bureaucrats, and petty tyrants who issue orders without once considering their viability in practice, while some officials look at doctors who aggressively prescribe opiates for chronic pain as if there were something of the underground about them, something illegal, that called for tighter surveillance. This mutual distrust arose, in part, from the anomalous method by which doctors gained control over opiates. Unlike most 20th-century prescription medications, which were created in tandem with the medical profession and to fight a particular disease, opiates had been around long before American physicians took over their sanctioned distribution; moreover, control was awarded not because of the biological problem of disease but because of the social problem of addicDoctors had tion. Laudanum, a mixture of opium and sherry, was been suspicious created in 1 6 8 0 . Morphine was invented in Germany in the 1820s, and introduced in the U.S. a of pain when decade later. In 1898, heroin was introduced as a unaccompanied cough remedy. Throughout much of the 19th century, opiates were sold over the counter in the form of by a lesion, and liquids, pills, and headache powders, leading to a even more serious addiction problem. By 1900, one in every 200 Americans was addicted to opium or cocaine. grudging about In response, the 1914 Harrison Act severely treating it. restricted opiate distribution in the U.S., while allowing doctors to dispense the drug in the course of their professional practice but not to addicts, since addiction in those days was considered to be a social malady and not a disease. Indeed, several doctors who prescribed opiates to addicts were thrown in jail. An expansion of federal police powers followed in 1970, with the passage of the Controlled Substances Act. Although the governments purpose in awarding doctors control over opiate distribution was to manage a social problem and not to fight disease, it was in sync with how doctors of the period viewed pain. As noted above, doctors had been suspicious of pain unaccompanied by a lesion, and even more grudging about treating such pain. Sexism also crept into the doctors calculations, as a majority of addicts were women self-treating for pain associated with womens problems, which, like pain without a visible lesion, were taken less seriously. When government awarded doctors control over opiates to restrict their use, doctors, for their own reasons, eagerly complied. The alliance broke up in the 1960s when pain became a subjective experience. Public opinion demanded that doctors aggressively treat chronic pain, while some activist government officials agreed. But those government officials in agencies charged with controlling the addiction problem, such as the dea, remained true to their purpose. As a result, doctors found themselves caught up in a dangerous, potentially career-threatening trap: On the one
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hand, they had to aggressively treat pain (which the patient, and not the doctor, now defined), or risk their licenses; on the other hand, they had to be careful about dispensing opiates to treat that pain, or risk their licenses. Indeed, the line that doctors treating chronic pain must walk is a truly narrow one, since addictive behavior (which is not the same as addiction) can be an unavoidable trade-off when treating chronic pain. In some cases the treating physician must ask himself or herself, What is a reasonable degree of addictive behavior in this patient, allowing the patient enough pain relief to function, but not so much that the addiction itself leads to problems? A narrow gulf can exist between adequate pain relief and addictive behavior. These nuances are often lost at the level of government, creating tension between doctors and officials. An example of this tension surfaced in 2011, when the fda wrote preliminary guidelines for doctors prescribing opiates for chronic pain that focused mostly on the risks of abuse and illegal drug trafficking. The American Pain Society complained, noting that the agency had ignored the salutary benefits of opiate use in chronic pain, as if chronic pain medicine had few redeeming qualities and barely sat on the right side of the law. The average chronic pain doctor can pretend to be in sync with government officials all he wants, he can make it appear that he shares their ideas fully, but even if he learns to speak to their language, he knows they will never trust him completely. If his patients sell their pain drugs illegally, he risks guilt by association. If rumors reach government officials that he is outside the norm in his opiate prescription patterns, even for legitimate reasons, federal agents can (and likely will) crash his office and scrutinize his files. Some government regulations command him to treat pain, while other regulations tell him to watch out. The doctor feels cribbed, cabined, and confined; he feels as if he were in a vicious circle where the quest for a plain and simple answer about how to practice is hopeless. The regulations reproach him, they put awkward questions to him, they try to hurt him, they ask him riddles and leave him without an answer. The typical pain doctor today treats his patients with the police sitting in the back of his mind. At the same time, he also observes that nothing bad has happened to him yet, in which case perhaps the regulations dont matter a straw, and he should just take care of his patients as he thinks appropriate. The doctor concludes he is safe for the time being and up to a point until the moment hes no longer safe, and his time has come.

Pain and culture

s an anesthesiologist, I can separate a patients rational consciousness from his individuality through intravenous drugs or regional blocks. During a regional block, for example, the patient
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can calmly hold a conversation with me while his anesthetized body part is being operated on. In other words, the patients individuality that side of him that desires and lives for happiness can be separated from his rational consciousness, which is not particularly inclined toward anything. When the block wears off, the two parts rational consciousness and individuality are suddenly thrust back together again, and the patient grows miserable with pain. The patient is miserable in part because of the physical experience of pain, but also because his mind, which had been at peace during the anesthetic, is suddenly plunged into a kind of civil war. When individuality and rational consciousness are forced back together, the patients individuality bids him to live and find happiness, while the patients rational consciousness tells him it is impossible to live and find happiness because he cant escape his pain. The Opiates do not patient feels the partition in his mind that runs along the line of my anesthetic. He feels cut in half, rid a person so to speak; the contradiction is horrible, and rends of pain so much his mind like torture. as they cause We experience a more general version of this tension in everyday life. Every person is composed of a person to two elements: one, individuality, which desires hapbecome piness; the other, rational consciousness, which knows that lasting happiness is impossible. People indifferent to desire happiness, they desire life, but life is filled his pain. with impediments to happiness, while whatever happiness people do attain all ends in one and the same thing in sickness, death, and annihilation. A man asks: How am I to live? What am I to do? But there is no reply; it is the fundamental contradiction of life. Still, it is necessary to live. A mans individuality bids him to live happily, his reason tells him it is impossible to live happily, and the man is painfully conscious that he has been parted in twain. Since the dawn of civilization two methods have existed for managing this contradiction. I, as an anesthesiologist, rely on one of them whenever that contradiction manifests itself in pain. The two methods are clouding a persons rational consciousness or clouding a persons individuality. Chemicals such as alcohol, laudanum, and opium cloud a persons rational consciousness. I use more refined chemicals in the operating room to manage the specific problem of surgical pain, but the principle is the same: I cloud a persons rational consciousness, sometimes to the point of unconsciousness, so that a person ceases to be aware of his futile search for happiness. Opiates, for example, dont rid a person of pain so much as they cause the person to become indifferent to his pain. The person is vaguely aware of his pain, but no longer cares about it, as if the pain belonged to someone else. Aloof toward his pain, the person ceases to feel the tension between what he desires in life and the limits of life. On the other side of the equation, religion clouds a persons individuality
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(which is not the same thing as clouding reality or a persons identity). Religions goal is not to deny the existence of the individual, but to stop a person from recognizing the existence of his individuality as life and happiness. The emphasis on individuality and personal happiness fuels the fundamental contradiction of life, says religion; therefore, put less emphasis on individuality and personal happiness. Occasionally, instead of stifling individuality, religion actually redefines individuality, such that a person finds happiness and self-expression in pain (for example, the Christian Flagellants or the Hindu Fakirs). Again, the purpose is to distract a person from his quest for conventional personal happiness. This is a secular age, an age that emphasizes individuality, self-expression, and personal happiness. After centuries of writers preaching the greatest happiness for the greatest An emphasis number, the importance of desire, and the uniqueon individuality ness of the inner voice, most Westerners today believe in personal happiness and individual fulfilltends to find ment as lifes purpose. They have for some time its way into and there is no turning back. Some ideas go in and all areas of life, out of fashion, but other ideas take the form of irreversible trends and signify a permanent departure including the from the past. Over the last three centuries the West has trended towards more equality. During this area of pain same period the West has also trended towards management. more individuality. An emphasis on individuality finds its way into all areas of life, including the area of pain management. It intensifies the fundamental contradiction of life, ever so slightly, but enough to produce a sea change in peoples attitudes and expectations regarding pain. People no longer accept chronic pain as their lot in life. Constantly reminded that personal happiness is not only desirable but also essential, they resent their pain and the fundamental contradiction of life that exacerbates it. They demand relief. A parallel change has occurred in peoples attitudes toward death. True, the fear of death is timeless and universal, yet it comes with subtle gradations that are amenable to change. There is the average human view of death, which varies little, as everyone fears death to one degree or another. There is the personal element that infuses individuals differently, giving them a more poignant interest, and bringing them closer to ourselves, while also making broad generalizations more difficult. Then there is the cultural attitude toward death, which is subject to the rumors of periods. Like the cultural attitude toward pain, the cultural attitude toward death has also changed. Historian Philippe Aris, in The Hour of Death, calls the new unease toward death manifested in Western culture Death Denied. According to Aris, contemporary Western culture tries to banish death from awareness.
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People avoid talking about death. They ship people off to hospitals and hospices to die out of sight. Adults clamor to join the youth culture, which pushes old age and death out of mind. Today, it would be considered impolite, if not morbid, to share ones thoughts about death during casual conversation. According to Aris, past centuries saw death as a normal part of life; today, death is more concealed than ever because the subject secretly terrifies people. Both pain and death bring to the fore the fundamental contradiction of life. In a culture where individuality constitutes the operational basis of all thought and action, that contradiction is felt more intensely, and pain and death are feared more. Pour the confusion that surrounds contemporary pain management over this red-hot contradiction, and the result is the chaos now gripping the pain More than 50 industry. percent of drug The field of chronic pain is at the beginning and diversion in not in the middle. Its not that more therapies have yet to be discovered, but that the force of a prochronic pain is found and irreversible cultural change is being felt for the first time a growing popular resentment someone getting toward chronic pain. That force will only grow, and the drug from regulatory agencies must adapt, starting with a a friend or stronger division within drug enforcement agencies between those officials who fight the drug war relative. and those who regulate the same drugs when applied to chronic pain. Currently, many officials involved in the drug war look upon the chronic pain field as a sideshow in the larger struggle against illegal drug use. True, drug diversion is a serious problem. Yet drug diversion patterns in chronic pain are not the same as in the larger drug war. More than 50 percent of drug diversion in chronic pain is the result of someone getting the drug for free from a friend or relative. Less than five percent involves someone buying the drug from a drug dealer or a stranger. Deaths resulting from drug overdose are also a serious problem. Indeed, both the absolute number of deaths and the recent rate of increase in the number of deaths are higher for prescription opiates than for illicit cocaine and heroin. Yet deaths resulting from prescription drug overdose usually originate in a different spirit of human motivation not the urge to play or get high, but the desire to control pain. An altogether different, and culturally significant, trend is emerging in the mass use of narcotics. That trend cries out for institutional recognition and a new bureaucratic division. Too often, for example, legitimate medical findings in chronic pain become grist for the larger crackdown on all opiate use, both legal and illegal. For example, recent epidemiological evidence suggests that long-term opiate use actually may be counterproductive. Not only does it increase the risk of hormonal dysfunction, immune system suppression,
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and heart disease, but in many cases results in less pain control and worse function. In 2011, these findings inspired Washington State to implement more restrictive regulations regarding opiate prescription. Yet almost immediately, and not without some justification, critics of the new policy feared that it would give government authorities a chance to crack down harder on drug use, as part of the drug war, thereby risking return to the days when chronic pain was grudgingly treated. Such fears need to be factored out of the equation when setting chronic pain policy, starting with an institutional separation between chronic pain (and even drug diversion within chronic pain) and the drug war. It is possible that the pendulum swing toward greater use of narcotics in chronic pain will move back toward neutral. Pain doctors increasingly recognize the importance of cognitive/behavioral therapy in managing pain. Pain patients often have better outcomes when learning coping behaviors and changing maladaptive ones. Indeed, many pain drug studies show that opiates can be effective, but that a placebo is usually almost as effective. Yet in order for this pendulum swing to occur, policy decisions surrounding chronic pain must be separated from those involving the war on drugs. Without separation, even some doctors will resist the swing toward neutral. The outpouring of legitimate demand for pain medications over the past two decades is an outpouring of discontent, one that expresses a deep change within Western culture. Confusion overlies that discontent, and exacerbates it, rooted in rival understandings of what pain is and how it should be treated. Each group of actors in the chronic pain field patients, doctors, and government officials simultaneously paralyzes the other two with its power. To the degree that policymakers can take command of this issue, their goal should be to sort out the confusion, especially the distrust between doctors and government. But the underlying contradiction fueling the growth of the pain industry will remain in force.


Policy Review

Misreading Leo Strauss

By Robert Howse

ccording to william altmans The German Stranger, Leo Strauss concocted a radical critique of liberal democracy that is a synthesis of the thought of Carl Schmitt and Martin Heidegger, two cowardly, utterly repulsive, and lapel pin-wearing Nazi philosophers. Strauss could not join the party due to his Jewish blood, but he did what no mere Nazi could have done or dreamed of doing: he boldly brought his anti-liberal project to the United States, the most fearsome of his homelands Western enemies and the greatest and most powerful liberal democracy that has ever been. Strausss project is primarily destructive: it was the theoretical foundation of liberal democracy in general that he sought to annihilate, not some new form of totalitarianism he aimed to erect. Leo Strauss was born into an observant Jewish home in Germany at the end of the 19th century. As a young man he participated in the Zionist movement; he studied philosophy in several German universities, encountered Husserl and Heidegger as well as the academic philosophy of the neoKantian school, and began his scholarly career as a researcher in Jewish Studies in Berlin in the 1920s. Strauss left Germany on a fellowship to
Robert Howse teaches international law and legal and political philosophy at nyu Law School. He is the author of articles on Leo Strauss, Carl Schmitt, and Alexandre Kojve, and is writing a book on Strausss views on war and peace.
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Cambridge in 1932 and did not return after Hitler came to power. He lived in England and France for a number of years before moving to the New School in New York, where he obtained a regular faculty position in 1941. Later, Strauss accepted a professorship at the University of Chicago, where he wrote the works that have made him famous, such as Natural Right and History, the City and Man, and Thoughts on Machiavelli. He is best known in America, at least by those who have taken the trouble to study carefully his writings, for his critique of the roots of modernity based on a perspective that is largely drawn from pre-modern philosophy Greek, Jewish, and Islamic. Altman is aware of the many statements of Strauss against Nazism, often worded in strong, passionate terms. He knows that Strauss said many things that could be taken to support liberal democracy, including that liberal democracy was the best possible political alternative in his own time. According to Altman, these explicit statements are lies, designed to conceal the true nature of Strausss project from unsuspecting, innocent Americans. Strauss had claimed that the great philosophers of the past wrote exoterically in such a manner as to conceal their true teaching from all but a few understanding readers. According to Strauss these thinkers did so to avoid persecution, and also the harm to themselves and society that could come from the innocent and not-so-innocent misappropriation of their ideas. Writing in this way between the lines entails burying in a work with an innocuous external teaching various statements that guide the reader toward the authors true intent. Altman believes that Strauss himself practiced exotericism. According to Altman, once we assume this we will find many statements in Strausss writing that modify those which attack Nazism and support liberal democracy. While often ambiguous, these statements, Altman maintains, are decisive hints of Strausss hidden Nazi-inspired attack on liberalism.

Reading with suspicion

ven if it is were true that Strauss wrote between the lines, this does not establish that all explicit statements of Strauss are misleading or false accounts of his views. Altman would still have to show that the particular statements in question in favor of liberal democracy or against Nazism are lies. This depends on interpreting the ambiguous statements as anti-liberal and pro-Nazi. But ambiguous statements by definition permit of more than one meaning. On the basis of what principle ought we to resolve the ambiguity in favor of a pro-Nazi or anti-liberal meaning? The principle Altman asserts is that of reading with suspicion. But where does such suspicion come from? A small shelf of books (mostly) dedicated to discrediting Strauss and his scholarship. The first of these, Shadia Drurys The Political Ideas of Leo Strauss, accused Strauss of being a
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Machiavellian, a Nietzschean, a nihilist, and many other things he could not possibly be all at the same time. Later, in the Anatomy of Anti-Liberalism, a much more serious work than the others, Stephen Holmes read Strausss remark about the need for a horizon beyond liberalism as a demand for an anti-liberal philosophy of the right; in a book that was otherwise perceptive about anti-liberalism, Holmes nevertheless didnt consider the meaning of a horizon beyond liberalism in the context of Strausss subsequent writing, including his most relevant work on the subject, Liberalism Ancient and Modern. In the wake of the Iraq War, Anne Norton, in Leo Strauss and the Politics of American Empire, resorted to the dubious method of discerning Strausss thought from the views of a handful of students and admirers on the American right; she thus excused herself from the task of coming to grips with what Strauss actualAltman knows ly wrote and taught. he can succeed Altman knows that he can succeed in his indictment of Strauss only on the basis of a prior suspi- in his indictment cion that Strauss is an enemy of the American of Strauss only regime of liberal democracy. Strauss must be guilty until proven innocent. So Altman depends on the on the basis of reader having already been influenced by attacks on prior suspicions Strauss by critics like Drury, Norton, and Holmes; as about Strauss with Socratess situation as he presents it in the Platonic Apology, Altmans prosecution of Strauss and liberal can work only on the basis of a prejudice aroused democracy. against him by the earlier accusers. Altman exhorts the reader: we must entertain the suspicion that [Strauss] is not offering us the all-American apple pie we like and that, moreover, he knows full well that we like. Therefore, we must not assume that he sees things as we do unless he makes it unambiguously clear that he does so (emphasis added). The we to whom Altman is referring here are those Americans who regard certain truths as self-evident namely, the truths embodied in the Declaration of Independence and the United States Constitution. Altman is tempted to say that these documents are the most perfect products of Enlightenment Rationalism. It is the truths of the Declaration of Independence and the Constitution that set the standard for what Americans or thoughtful Americans find it natural to believe. Strauss neither unambiguously embraces positions that we find natural nor unambiguously repudiates ones we find abhorrent. At least in the mouth of a German stranger, the slightest hesitation or nuance in affirming the selfevident truths of the American regime is evidence of treason. This is a test for anti-Americanism that is far more elastic and dangerous to free thought than anything proposed in the McCarthy era. Altman says that he will rely on [his] readers to know Nazism whey they see it. But they will do so only if they adopt Altmans own definition of
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Nazism in the first place: national pride and the solidarity of all Germans, regardless of class. A German is defined here by Altman as anyone born as a citizen of the Second Reich. Thus, incredibly, according to Altman, antiSemitism and even Aryanism are not connected to the core of Nazism but mere accidental features of it. Be that as it may, this definition has the crucial benefit to Altman that it allows him to set the bar of proof for his thesis very low indeed. For any statement that does not unambiguously repudiate nationalism or patriotism, however liberal (i.e., including a citizen-based concept of the nation) then becomes an affirmation of the core of Nazism. Bizarrely, Altman presents his own project as essentially motivated by American patriotism for the sake of my native land, which demands something better than our best from those who love her. It appears that only in America, or perhaps The intellectual only in the soul of Altman, is love of country not tainted by Nazism. witch hunt Although Altman claims he is following Strausss entailed in own principles for reading between the lines, the Altmans reading intellectual witch hunt entailed in Altmans reading with suspicion with suspicion is antithetical to Strausss method. Strauss writes in Persecution and the Art of is antithetical to Writing that reading between the lines is strictly Strausss method. prohibited in all cases where it would be less exact than not doing so. Only such reading between the lines as starts from an exact consideration of the explicit statements of the author is legitimate. Thus, one must not start from suspicion that the explicit statements of the author are untrue, but rather the reverse. Only where these explicit statements contradict one another, or contain errors of fact or blunders of logic, can one have recourse to reading between the lines. And reading between the lines entails discerning the plan or design of the work by a careful consideration of the work as a whole all of its disparate elements. While all of Strausss reading between the lines of older thinkers entails an intricate examination of individual works as wholes and a concern with reconciling the details with the plan or the design of the work, Altman moves free form between many different writings of Strauss entire books, posthumously published lectures and drafts, private correspondence. He strings together snippets from all this material, each quotation taken out of context to display Strausss hatred of liberalism. I imagine that if one were clever enough with this technique one could make any major thinker out to be fascist, probably even Kant. After telling us he will provide an exposition of Persecution and the Art of Writing, Altman makes a move that will be repeated every other time in The German Stranger when he promises to provide a careful reading of a work of Strauss that will uncover Strausss hidden teaching. Instead of a systematic interpretation, Altman cites a few isolated sentences or phrases from
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the work in question, then goes on to divert the reader with a dazzling but disorganized display of erudition. For instance:
Although Hegels 1817 review of Jacobis collected writings has not yet been translated, it is only a question of time before the decisive impact Jacobi had on Hegel is recognized: both German and American scholars are now doing important work on this subject. The trick, then, is not to illustrate the continuity between Hegel and Hamann or Hegel and Jacobi but use them to reveal the link between the apparently Christian Hegel and the openly anti-Christian Nietzsche. Naturally this project can only be sketched here: the train of thought that links Hamann, Jacobi, Spinoza, Hegel, Nietzsche, Heidegger, and Strauss. But an awareness of this link is extremely important for catching Strauss. [Emphasis added; footnotes omitted]

Note Altmans strategy. He first of all tells the reader that there is a link that is important for catching Strauss. But then he confesses that, in his 600-page book, he has no space to prove it. He can only sketch it. Sketch means that Altman insinuates the link while indicating to the reader that he would need to do forbidding scholarly footwork either to prove or refute it. In effect, the reader is invited to defer to Altmans mere assertion of the existence of the link, fortified by a mass of pedantic footnotes. After all, if he were to challenge Altmans sketch he would need to read a book review by Hegel that Altman makes very clear has not been translated into English, and as well as to have a competent grasp of the work of Hamann, Jacobi, Spinoza, Hegel, Nietzsche, and Heidegger. Better to trust secret agent Altman with his linguistic skills and his arcane researches behind enemy lines. This is the sleight of hand by which, again and again, Altman seeks to induce the assent of the reader in the absence of proof. Another example that illustrates this strategy is Altmans claim that Strauss had discovered esotericism well before he began to study with care the medieval Jewish and Islamic philosophers. Here Altman directs the reader to Strausss doctoral dissertation, written in his early twenties, where Strauss discusses the final footnote in an obscure work of the antiEnlightenment thinker Jacobi. Altman tells us the footnote is too lengthy for him to translate. He never does walk the reader through Strausss actual analysis of the footnote, or explain why it shows awareness of esotericism. After torturing and teasing us for pages about the footnote, he finally admits that obscure footnotes cant tell us that much about whether Strauss recognized Jacobis esotericism. Instead we have to rely on Altmans own judgment that Strauss, whose ability to spot such things cannot be doubted, was too smart not to realize it. But why should we believe Altmans hunch that Strauss had some uncanny gift or knack for uncovering hidden truths, rather than Strausss own claim that his rediscovery of esotericism was due to the painstaking study of earlier thinkers like Maimonides and Farabi?
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Horizon beyond liberalism

espite all the insinuations and the grandiose claims that he has finally managed to catch or nail Strauss, the substance of Altmans allegations against Strauss doesnt differ that much from the attacks of Drury, Norton, and Holmes. A great deal of the focus is on Strausss association with Carl Schmitt and his admiration for Heidegger and Nietzsche (in fairness to critics like Holmes there are scholars sympathetic to Strauss, like Heinrich Meier and Laurence Lampert, who also greatly overstate, for different purposes, Strausss affinity with thinkers of the German right like Schmitt). In the case of Schmitt, Altman breaks no new ground but revisits Strausss familiar criticism that Schmitts attack on liberalism operated nevertheless within liberalisms assumptions or horizon, while according to Strauss what was required was a horizon beyond liberalism. Like Holmes and others, Altman offers this as evidence that Strauss is a much more thoroughgoing or extreme antiliberal than even the (at that time proto-Nazi) Schmitt. As I have shown at length elsewhere, Strauss meant something entirely different when he called for a horizon beyond liberalism. He thought it inadequate to reject the philosophical premises of liberalism on account of dissatisfaction with the liberal world in which he and Schmitt lived. Rather, one must look beyond the world that liberalism created and wrestle with the philosophical premises of liberalism on their own terms. One must not assume that the decadence, weakness, and bourgeois emptiness of Weimar are the inevitable result of liberalism. To understand the force of the original premises of liberalism one must return to the beginnings of modernity, where liberalism was born in opposition to the pre-liberal, pre-modern world. Liberalisms basis must be judged through an understanding of the pre-liberal world to which liberalism opposed itself. Was liberalism a justified or necessary response to the evils or shortcomings of that world? Strauss wrote in his intellectual autobiography that his encounter with Schmitt was the beginning of a change in orientation. But the change in orientation is not the one that Altman and other critics believe. As Strauss indicates in the 1965 German edition of his early Hobbes book, Schmitts influence sent him back to the study of Hobbes, but in a different manner than Schmitt himself had studied Hobbes i.e., with an adequate awareness of the pre-liberal horizon in which and against which Hobbes established his political teaching. Thus, the horizon beyond liberalism to which Strauss refers in his remarks on the Concept of the Political is the horizon within which, and against which, Hobbes founded liberalism, not a new antiliberal horizon to be constructed by Strauss. As Strauss put it in his intellectual biography, he had believed a return to pre-modern thought impossible. What changed this belief was the discovery that the core of Hobbess political
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teaching was not derived from, or the result of, modern science or modern biblical criticism. Rather, Hobbes based his political thought on a radical and willful change in moral orientation from premodern thought. To question the superiority of this moral orientation to that characteristic of premodern thought did not depend on rehabilitating premodern science or on a return to the horizon of faith in the premodern world. For Strauss, a true philosophical interrogation of liberalism could not be achieved through a decision of the will against liberalism. Both liberal and antiliberal ideology stood in the way of an adequate investigation of the foundations of liberalism. Critique had to be based on dispassionate understanding rather than polemical opposition. What thus followed from Strausss change of orientation was the continuous and simultaneous study, throughout the rest of his The remarks life, of both modern and premodern thought, with that Altman an emphasis on the foundational works of modernity. This was the precise sense in which Strauss misrepresents as sought an horizon beyond liberalism. This differStrausss views entiates Strauss sharply from the antiliberalism of Nietzsche, Schmitt, and Heidegger. occur precisely Altman takes passages where clearly Strauss is where Strauss is interpreting the intent of Schmitt and passes them off as statements of Strausss own views. When summarizing Strauss refers to polemics against liberalism as only Schmitts position. the preparatory step for the decisive battle between the spirit of technology and the opposed spirit or faith that does not yet have a name, he does so in a paragraph that is intended to prove the proposition that antiliberal polemics cannot be Schmitts last word, in the sense that he has failed to articulate in the name of what alternative it is worth battling liberalism. The remarks that Altman misrepresents as Strausss views occur precisely where Strauss is summarizing Schmitts position for purposes of critiquing it. As Strauss had noted in the previous paragraph, decisionism cannot articulate or defend what the decision is for and thus is as relativistic as the kind of liberalism that Schmitt despises. In this sense, Strauss saves liberalism from the consequences of its own turn toward relativism, while indicating why that turn opens the door to decisionism and why at the same time Schmitts brand of antiliberalism would have little purchase against a nonrelativistic form of liberalism that is able and willing to defend its principles as true. Strauss pointedly notes: the liberal respects and tolerates all honestly held convictions, so long as these respect the legal order or acknowledge the sanctity of peace, whoever affirms the political as such, respects and tolerates all serious convictions, in other words, all decisions leading up to the real possibility of war. Strauss brilliantly discloses the inadequacy of warrior morality as a political orientation by challenging Schmitt to say in the name of what understanding of the order of human things warrior morality
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Robert Howse
itself is worth fighting for. It is not enough to remain at the level of polemics and say that one is fighting against liberalism. Where Altman most differs from the other misreadings is by proposing a psychological basis for Strausss purported endorsement of warrior morality; according to Altman, like Schmitt and Heidegger Strauss had to expurgate his guilt or shame for having not fought in World War I by adopting a particularly virulent form of militarism. Typical for Altman, this theory it is presented as something very clever and original has a dubious basis. Strauss was younger than Heidegger and Schmitt and only fifteen at the outbreak of the First World War, yet Strauss did indeed serve in the German army from July 1917 until the end of the war.

The smoking gun

ltman, like most of the recent critics, views a letter that Strauss wrote to his friend the philosopher Karl Lwith in 1933 as convincing and damning evidence of Strausss sympathy with Nazism. The overall context of the letter is Strausss explanation to Lwith why he cannot imagine returning to Germany now that Hitler is in power. Strauss writes:
I will never be able to write other than in German, even if I must write in another language. On the other hand, I see no acceptable possibility of living under the swastika, i.e., under a symbol that says nothing more to me than: you and your ilk, you are physei [by nature] subhumans and therefore justly pariahs.

It would be very hard to take this explanation of why Strauss cannot return to German as an indication of sympathy with Nazism. But then Strauss goes on to write:
To the contrary: only from the principles of the right, that is from fascist, authoritarian, and imperial principles, is it possible with seemliness, that is, without resort to the ludicrous and despicable appeal to the droits imprescriptibles de lhomme [inalienable rights of man] to protest against the shabby abomination . . . There is no reason to crawl to the cross, neither to the cross of liberalism, as long as somewhere in the world there is a glimmer of the spark of the Roman thought. And even then: rather than any cross, Ill take the ghetto.1
1. Here I have relied on the translation by Scott Horton. It must be admitted that the original German is quite difficult and legitimate different renderings of some of the expressions are certainly possible. This makes it both easy and also problematic to treat the letter as a smoking gun. It is likely that postal censorship was already being practiced by the Nazi regime (Lwith was apparently still in Germany at the time Strauss sent the letter) and this may account for some of Strausss rather odd turns of phrase and reversions to non-German words.


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Misreading Leo Strauss

It requires only a little care, and remembering the context of the letter, to understand that Strauss is not here affirming as true the principles of the right but rather he is suggesting that they are the only effective basis on which Hitler (the shabby abomination) could be opposed in the present circumstances. Given what Germany had become by 1933, an appeal to liberalism would be ridiculous and contemptible; it would amount to giving oneself up for crucifixion. Better to live in exile, even in the ghetto, than to sacrifice oneself for a liberalism that had already proven impotent against Nazi thugs. Unlike most of the other critics of Strauss, who assume that shabby abomination (meskine Unwesen) refers to Nazism, Altman, based on a suggestion of Michael Zank, argues that meskine Unwesen refers to libertarian or laissez-faire capitalism in Germany. Thus, Altman would have it that Strauss was suggesting only the extreme right could counter the excesses of capitalism. The trouble with Altmans reading is that the letter in question was drafted after Hitler came into power. The relevant political issue then was not capitalism. Thus, as noted, the preceding sentence of the letter makes it clear that what is unbearable is Hitler, not capitalism. Altman assumes that meskine as used by Strauss is a Germanization of the French mesquin, one of the meanings of which is stingy or ungenerous (sometimes employed in French anti-Semitic caricatures of Jews, as Altman notes). However, Altmans philology is inadequate. Meskine is ultimately derived not from mesquin but rather a Semitic word (it has both Arabic and Hebrew variants) for impoverished or bereft. Both mesquin and meskine appear in German literary writing in the 19th and 20th centuries. There is no reason why Strauss would use meskine if he intended the shades of meaning evoked by the French mesquin.

Strausss view of liberalism

he lack of foundation for Altmans stance on Strauss as an antiliberal should not blind us to the important criticisms or doubts that Strauss expressed concerning liberal democracy. The best writing on Strausss relation to liberal democracy is by Straussians responding to irresponsible polemics like those of Drury and Norton (here I think particularly of Catherine and Michael Zuckert). This work, though on many points very instructive, sometimes takes on the character of apologetics and blunts the edges of Strausss negative views concerning aspects of liberal democracy. In particular, there is a tendency to overstate the extent to which Strauss came to admire the American regime or thought of it as a political model. Actually, Strauss does have a radical critique of liberal democracy but not radical in the way that critics like Altman use the word. The critique is radical in that it goes to the roots of liberal thought, and indeed the roots of the political problem as such.
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Robert Howse
The deepest source of Strausss critique is a questioning of the moral orientation at the root of liberalism, and indeed of modernity which, as Strauss puts it in Thoughts on Machiavelli, he regards as a great impoverishment or narrowing of perspective. That moral orientation is one that gives primacy if not exclusivity to secure and comfortable self-preservation as the goal of political life; man is not oriented toward anything higher. Man does not have any justified aspirations that transcend the realm of ordinary human concern. The tendency is to regarding a concern in politics for human excellence or perfection as inherently incompatible with the secure protection of each individuals self-preservation under law. Strauss does not deny that the concern with stable social peace is a legitimate and indispensable goal of political life. Using classical Strauss writes political philosophy as a model, he asks why the best political order could not balance or combine that there are the concern for order and the concern for perfecelements of the tion or excellence, which in its highest forms liberal ideal that requires an openness to a whole that is greater than man, and accessible to him as an individual in ways are compatible not possible through collective, including political, with the concern existence. Strauss accepts that the founders of liberalism had some good reasons for narrowing the for human goals of politics for liberalism emerged in the perfection or context of religious wars, where competing concepts of human salvation divided communities in excellence. ways that were often fatal to stable social peace. But why could we not today, under different conditions, reconsider this basic normative choice of liberalism? In Liberalism Ancient and Modern, Strauss makes the case that, whatever good reasons might have existed for the original moral orientation of liberalism, there are elements of the liberal ideal that are compatible with the concern for human perfection or excellence. Many liberals value freedom not only for the sake of security of the person and of property, but also as essential to the individuals quest for self-knowledge and self-development. In addition, as noted, for Strauss the highest human experiences (above all, philosophy) that connect man to the whole are achieved by individuals, not collectivities, and through thought and dialogue rather than will and decision. This kind of rationalist individualism has a closer affinity with liberalism than any ideology of the political right. Another plane of Strausss critique of liberal democracy is that of Jewish philosophy. Strauss insists that liberal democracy is not a fully adequate solution to the destiny of Jews as a people who are charged with maintaining a collective existence in a largely non-Jewish world. Liberal democracy provides for the tolerance of traditional Judaism but it also awards large social, cultural, and economic prizes for assimilation. In the ghetto, as Strauss observes, Jews were only a stones throw away from brutal persecu92 Policy Review

Misreading Leo Strauss

tion; but they also maintained a rich sense of collective existence, of Jewish spiritual life. Liberal democracy thus offers new challenges, and not only advantages, for the survival of Judaism as a viable collective way of life. Political Zionism does not solve the problem either: For it poses the difficulty, with which so many controversies in Israel today are fraught, of what it can mean for Israel to be both committed to the idea of a Jewish state and to liberal democracy. Finally, and perhaps most radical and also most troubling in Strausss critique of liberal democracy, is the notion that liberal democracy ultimately depends on Christianity, or, more precisely, a transformed understanding of religious belief and its relationship to politics or the public sphere, which supposes a Protestant, reformed, or secularized Christianity as the model for the nature of religious Events unfolding commitment within liberal democracies. Here today show Strauss is not saying that liberal democratic tolerthat Strausss ance requires members of other faiths to pledge public or external allegiance to a Christian-inspired civil objection to religion, though some early modern thinkers veered liberal in that direction. Rather he is claiming that liberal democracy entrenches a prejudice in favor of a way democratic of looking at religion that is much more favorable to triumphalism a certain kind of Christianity than to other faiths. According to Strauss, for Jews to link their destiny has real bite. as a people to the future of liberal democracy rather than to a past of struggle for the survival of tradition in a world hostile to democracy, is to accept the unacceptable the spiritual dependence of Judaism on Christianity. In Strausss view, neither liberal democracy nor the version of Christianity favorable to liberal democracy offers a definitive solution to the struggle between belief and unbelief that constitutes the vitality and perpetual challenge of civilization. Events as they unfold day by day, whether in Afghanistan or Tahrir Square, suggest that Strausss objection to liberal democratic triumphalism has real bite. Strauss is one of the few late-modern thinkers who offer any kind of wisdom as to how one could go about thinking of what other kinds of political solution could offer reasonable answers to the theological-political problem: Reasonable in that these solutions offer the possibility of reconciling, to the extent possible within the limits of a given situation, order which is not oppression with freedom which is not license. Once we realize that the American approach to the separation of church and state is not workable in many places in our time nor for that matter is French lacit, we are mostly left at sea by contemporary liberal democratic theory. John Rawls recognized this problem late in life, when he wrote The Law of Peoples. Rawls mooted the notion that there could be decent societies that nevertheless do not strictly follow the principles or practices of liberal democracy as they are understood at Harvard.
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Robert Howse
A further aspect of Strausss critique of liberal democracy is pessimism about mass democracy, and concern that liberal democracy can exhibit the worst features of mass politics in some settings. In Why We Remain Jews, Strauss recounts a childhood premonition of the possibility of mass violence against Jews in Germany, after encountering refugees from Russian pogroms in his fathers house. Prior to that intuition, Strauss recounts, he had not imagined that it could happen in Germany: We Jews there lived in profound peace with our non-Jewish neighbors. There was a government, perhaps not in every respect admirable, but keeping an admirable order everywhere; and such things as pogroms would have been absolutely impossible. Strauss openly admired the traditional, authoritarian regime of old Germany, which he perceived to be run by basically honorable and realistic aristocrats, advised by educated and enlightened civil servants. He had no illusion that such a polity approximated liberalism. And yet we have to face the fact that, for some considerable period of time, that regime kept under control the violent hatred that Weimar liberal democracy would prove unable to control. Of course Strauss was aware of the many economic and political forces that would lead to the old regime becoming impracticable, and recognized the abuses and injustices that went along with its better qualities. In that sense, he was not a nostalgic. Contrary to Altman, he did not set out to destroy liberal modernity; instead he sought to articulate what would be the most reasonable political options given the character of the times as well as the abiding nature of the theological-political problem. The profundity of Strausss understanding of the sources and limits of liberalism, combined with his insight into the permanent problems of politics, led him to support moderation in political life, and therefore ultimately brought him back to a more positive assessment of liberal democracys worth than he had as a young man.


Policy Review

Books The Harm in Hate Speech Laws

By Jacob Mchangama
Jeremy Waldron. The Harm in Hate Speech. Harvard University Press. 304 Pages. $26.95. n the harm in Hate Speech, New York University Professor Jeremy Waldron sets out to defend hate speech laws (or group defamation laws, as he prefers to label them) against critiques based on kneejerk American First Amendment exceptionalism. Yet Waldrons defense of hate speech laws is based on a purely abstract and ultimately flawed harm principle that is at odds with modern realities. The harm principle proposed by Waldron thus leads to a utilitarian calculus which reduces the freedoms of conscience and expression to dubious

Jacob Mchangama is director of legal affairs at Danish think tank cepos , managing director of the Freedom Rights Project, and external lecturer of international human rights law at the University of Copenhagen.
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empirical disputations based on evidence that is vast and contradictory. Waldrons abstract thesis leads him to dismiss some very weighty arguments against hate speech laws without investigating real examples of how they impact individuals and political debates and lead to arbitrary outcomes difficult to reconcile with the rule of law. The books central premise is that hate speech undermines the equal dignity of individual members of vulnerable minorities. For Waldron, The ultimate concern is what happens to individuals when defamatory imputations are associated with shared characteristics such as race, ethnicity, religion, gender, sexuality and national origin. As examples, Waldron invokes the history of systematic racism and segregation in the U.S. and the lethal legacy of Nazism in Europe. Manifestations of hate speech intimate a return to the all-toofamiliar circumstances of murderous injustice that people or their parents or grandparents experienced, which a well ordered society should not tolerate. Accordingly, hate speech can be restricted as a means of assurance to the targeted groups. Waldron explicitly rejects the idea that hate speech should constitute a clear and present danger before being prohibited by comparing hate speech with environmental harms such as automobile exhaust. Since we know that exhaust can result in lead poisoning, it is justified to require each automobile owner to fit an emission control on the exhaust pipe, even if we cannot show a direct link between the individual car owner and those afflicted by pollution. To Waldron the harm in hate speech outweighs the many objections to hate speech laws, such as the
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restrictions on autonomy and freedom of conscience, the interference with the political decision-making process, the often vague and imprecise language of hate speech codes, and the risk of political abuse. The objective of seeking to reassure all members of society that they will not suffer persecution based on their dangers of tolerating extreme speech have little factual basis. There is arguably no better way to gauge an ethnically diverse societys level of tolerance and commitment to equality than to look at interracial marriages prohibited in sixteen states until the Supreme Court struck down Virginias miscegenation law in 1967. The statistics on American attitudes toward interracial marriages reveal a startling development. According to a 2011 Gallup survey, only four percent of Americans approved of interracial marriages in 1958. But in 2011 86 percent of Americans had no problem with such marriages. Among Americans aged 18 to 29, a full 97 percent approve of interracial marriages, suggesting that race relations will only continue to improve. Not only are Americans more approving of interracial marriages, they also tie the knot across racial lines. According to a 2012 Pew survey, about fifteen percent of all new marriages in the United States in 2010 were between persons of different races, more than double the share in 1980 of 6.7 percent. A couple of examples vividly demonstrate the development in race relations. When I visited Little Rock Central High in 2010 I was met by black and white teenagers mingling in the hallways and classrooms. A far cry from 1 9 5 7 when The Little Rock Nine were met by hateful white protestors and had to be escorted to school by armed troops. In 1967, Virginias miscegenation law was declared unconstitutional. In 2 0 0 8 a majority of Virginians voted for a mixed-race presidential candidate. What about actual hate crimes where the offender is motivated by the
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There is arguably no better way to gauge an ethnically diverse societys level of tolerance and commitment to equality than to look at interracial marriages illegal in 16 states until the Supreme Court struck down Virginias law on miscegenation in 1967 .
race, religion, ethnicity, etc. is one on which virtually all can agree. No one can deny the very real and horrific consequences of Jim Crow and lynchings in America, or of Kristallnacht and the Holocaust in Europe. Even the most principled defender of the First Amendment would surely allow for further restrictions on free speech if indeed it could be shown that hate speech creates a significant risk of a return to violent racial persecution. But nothing suggests that Americas increasingly isolated position on the protection of free speech has led to increasing racial tensions. While there is likely no scientific method of accurately gauging the relationship between free speech and extremism, numerous surveys on race relations suggest that the putative

victims race, religion, sexual orientation, ethnicity/national origin, or disability? According to fbi statistics, The total number of U.S. hate crime incidents decreased from 8,759 in 1996 to 6,628 in 2010. In per capita terms hate crime incidents declined from 3.25 incidents per 100,000 people in 1996 to 2.15 in 2010. Supporters of hate speech laws may argue that these developments have occurred despite the First Amendments protection of hate speech. But there is little evidence that Europe, with its hate speech laws, is doing better. For instance, the AntiDefamation Leagues surveys of antiSemitism suggest significantly higher levels of anti-Semitism in all surveyed European countries than in the United States. Whereas hate crimes in the U.S. have decreased, a report from the eu Fundamental Rights Agency shows that hate crimes have increased between 2000 and 2009 in eleven out of fourteen surveyed eu countries. While differences in methodology preclude direct comparisons between each of the relevant eu countries as well as between these and the U.S., this trend does not suggest that hate speech laws are an effective tool against racism and intolerance in Europe. It is also in Europe, not the U.S., where extremist parties with openly racist or bigoted views are resurgent and have gained seats in parliaments and local councils. Whereas racial and religious minorities in the U.S. have held positions including president, secretary of state, and national security advisor, minorities in the highest level of offices are rare in most European countries. Waldron demands that defenders of current First Amendment protections answer the question of
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whether the targets of abuse can [lead their lives], can their children be brought up, can their hopes be maintained and their worst fears dispelled, in a social environment polluted by [hate speech]? The answer seems to be an emphatic yes. These facts demonstrate the fundamental flaw in Waldrons analogy with environmental harm. While we know for certain that the cumulative effect of automobile exhaust causes harmful pollution that can be averted with emission controls, we cannot with any degree of certainty know that the cumulative effect of hate speech results in environmental harm avoidable by restricting free speech. And whereas emission control devices do not impact the ability to drive, hate speech laws by definition limit the individual autonomy of those convicted as well as the public debate. The fact that Waldron includes a brief discussion of First Amendment history should have made him more suspicious of relying on such an abstract harm principle for restricting free speech. Waldron himself mentions that in the 19th and 20th centuries several highly questionable state and federal laws were enacted targeting sedition, abolitionists, civil rights advocates, atheists, communists and war opponents, several of which were upheld by state and federal courts. It was only in 1969 that the Supreme Court decided in Brandenburg v. Ohio that what we call hate speech may generally only be prohibited when it is directed at inciting or producing imminent lawless action and it is likely to incite or produce such action. If one delves further into the history of free speech, the dangers of accepting

abstract and theoretical harm principles as justifications for suppressing this right becomes vividly clear. In 1676, blasphemy became an essentially secular crime thought to undermine the social cohesion of English society. This happened when Lord Chief Justice Hale declared blasphemy part of the English Common Law in his condemnation of the notorious blasphemer Richard Taylor:
such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the laws, State and Government, and therefore punishable in this court. For, to say religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved, and that Christianity is parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law. by the Christian religion . . . When such terrible productions are put into the hands of those who unlike the rich, the informed, and the powerful, are unable to draw distinctions between ingenious though mischievous arguments, and divine truth the consequences are too frightful to be contemplated.

This line of reasoning would survive into the 20th century albeit with important liberal modifications. Thus early19th-century England saw a number of trials against deists, atheists, and freethinkers, the most prominent of whom was Richard Carlile, who sold copies of Tom Paines Age of Reason and Rights of Man. The prosecutions argument against Carlile was astonishing: Prosecutions for blasphemy were necessary for the public good, not for the sake of religion. The purpose was
protecting the lower and illiterate classes from having their faith sapped and their minds divested from those principles of morality, which are so powerfully inculcated

In other words, prosecuting blasphemy was a way to maintain the social equilibrium in a hierarchical English society. In hindsight it seems clear that however important the role of faith, allowing satire and rejection or criticism of Christianity did not in fact corrode the fabric of English society. Nor did the activities of civil rights advocates or the propaganda of seditionists, atheists, Marxists, and anti-draft advocates entail any real or immediate danger for 19th- or 20th-century America. No advocate of hate speech laws would defend the rationale for restricting free speech in these cases. hese historical examples of restrictions of free speech differ from contemporary hate speech laws in important ways. But they also share a key trait, namely that they were adopted based on a highly abstract and theoretical harm principle, which a political majority thought sufficient to justify restrictions on an unpopular minoritys free speech, without demonstrating the reality of the supposed danger. One may counter that contrary to the provisions mentioned above, hate speech laws aim to protect minorities against majorities. But even assuming that hate speech laws pursue legitimate aims, flaws in
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their application may well outweigh such legitimate aims, particularity when seen in the light of unproven harm caused by hate speech. Since we cannot know for sure which forms of speech are beneficial for humankind and which are not, it is suspect to restrict speech on the basis of such purely speculative assessments. The shortcomings of Waldrons theoretical harm principle are compounded by his superficial treatment of how hate speech laws have originated and operate in practice. Waldron finds it significant that hate speech laws have a basis in international human rights conventions such as the International Covenant on Civil and Political Rights (iccpr). However, Waldron does not mention that most Western states, led by such champions of international human rights as Eleanor Roosevelt, were opposed to the inclusion of a prohibition against hate speech in the iccpr. Nor does he mention that these provisions were advocated by the Soviet Union and its allies during the Cold War. We can safely assume that the Soviet bloc did not champion hate speech provisions out of regard for the deeper values of dignity, respect, equality, democracy and social peace Waldron emphasizes. Waldron insists that all advanced democracies have adopted hate speech laws and by and large this legislation is administered responsibly, and he specifically rejects the charge that these laws exclude people from the political process. That is an especially bold conclusion given that Waldron, with the superficial exception of Canada, neglects to expend any ink on discussing case law from the very countries whose hate speech laws he praises.
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Numerous cases from European democracies show that the concerns about the arbitrariness of hate speech laws and their impact on political debate cannot simply be dismissed as hysteria. Take the United Kingdom with its 1986 Public Order Act, which in practice has come to function as a hate speech law. It has been used to convict both a religious campaigner holding up a sign condemning homosexuality as a sin and an atheist campaigner who left offensive caricatures in an airport prayer room. Earlier this year a university student was sentenced to 56 days imprisonment for drunken racist Tweets. In Germany the prohibition against Holocaust denial has led to three months imprisonment of a person who in a private letter denied Hitlers involvement in the Holocaust (but not the Holocaust itself). In France a journalist was fined for stating that the majority of criminals are blacks and Arabs. A French cartoonist was also fined for publishing a cartoon praising the attack on 9/11 and a mayor fined for advocating a boycott of Israel. In the Netherlands a politician was convicted for stating that we will abolish the multicultural society. In neighboring Belgium a politician was convicted for hate speech against immigrants and banned from political office for a period of ten years. However loathsome or controversial the views of these persons may be, their convictions surely make highly questionable Waldrons insistence that hate speech laws are administered responsibly and do not exclude people from the political process. Thus, while Waldrons own harm principle rests on flimsy grounds, the harm involved in restricting free speech is

very real, while the putative benefits are very uncertain. Several of these European cases have been tried by the European Court of Human Rights (echr), which not only has accepted hate speech laws as a permissible restriction on freedom of expression, but has exempted hate speech from the protection of freedom of expression altogether as an abuse of rights. In 2012, the echr went so far as to identify a wholly new human right not to be subjected to negative stereotypes under the right to privacy. Not only do hate speech laws have serious consequences for public debate on important issues, the inherent vagueness of these laws frequently leads to seemingly arbitrary results that turn on legal niceties, which might not be appreciated by those minorities whom Waldron wants to protect. For instance, Dutch politician Geert Wilders was acquitted on hate speech charges after comparing Islam with terrorism and railing against Muslim immigration. Yet a Dutch Muslim association was convicted for publishing a cartoon questioning the Holocaust. In Denmark members of a political youth party were convicted for publishing a poster with a picture of blonde Danish girls and three foreigners holding a blood soaked Koran claiming that mass rape, violence, insecurity, forced marriages, oppression of women and gang crime would be the result of a multiethnic society. However, members of another political party were acquitted for pamphlets asking Danes whether they too were afraid of the future with all the crime and rapes, which foreigners, not least Muslims have caused. If we accept Waldrons premise that hate speech is harmful,

then these examples suggest that an efficient response to hate speech would require even more draconian laws and enforcement thereof. As for Denmark, this would be in line with recommendations by human rights bodies at both the Council of Europe and the un, which have criticized Denmark for its supposedly lax enforcement of its hate speech provision. To be fair, Waldron distinguishes between dignity (a group members standing in society) and offense (subjective feelings, including shock, hurt, and anger). Only the former is to be protected since it is not the function of hate speech laws to protect against hurt feelings. Waldron grudgingly concedes that the Danish director of prosecution was probably right for deciding not to charge the editors of Danish newspaper Jyllands-Posten for having published cartoons of the Prophet Muhammad. But it is often very difficult to distinguish between offense and hate speech in the form of group defamation. And Waldron himself blurs the lines by repeatedly referring to the nebulous concept of Islamophobia, which is frequently used to describe those who are very critical of Islam but not (necessarily) bigoted against Muslims. A good example of how one mans offense is anothers hate speech is an initial statement issued by the U.S. State Department on the Mohammed Cartoons: We all fully recognize and respect freedom of the press and expression, but it must be coupled with press responsibility. Inciting religious or ethnic hatreds in this manner is not acceptable. Courts also have problems distinguishing. In Denmark a person was convicted for stating that Islam is
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not a religion but a terrorist organization intent on world domination. That is certainly a harsh critique of Islam, but it is not clear that it is targeting all Muslims. If so then presumably someone quoting Nietzsches The Antichrist would also be engaging in hate speech since it includes the following attack on Christianity: I call Christianity the one great curse, the one great innermost corruption, the one great instinct of revenge, for which no means is poisonous, stealthy, subterranean, small enough I call it the one immortal blemish of mankind. Martin Luthers vicious diatribe against Jews and Judaism in The Jews and Their Lies could also be labeled as hate speech, and one could mention several Koranic verses that seemingly incite hatred against non-Muslims. As we have seen, during the days of slavery and later segregation, laws suppressing free speech were often aimed at abolitionists and civil rights advocates, not at slave owners or Jim Crow advocates. This reflected social and political power in local states and communities where attitudes towards race were very different than today. Accordingly, when minority groups are weak, despised, or feared by the majority, they are unlikely to obtain protection through hate speech laws. Such protection will only become a realistic prospect when the relevant minority group is sufficiently accepted by mainstream society. Protected status therefore will often depend on prior social change in attitudes, and at the point in time when a particular group is sufficiently uncontroversial or accepted, it arguably no longer needs such protection. One of the latest groups afforded protection in a number of European
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countries is homosexuals. Well into the 20th century homosexual practices were criminalized in numerous Western countries and homosexuals were stigmatized. However, much of the stigma attached to homosexuality, both legal and social, has disappeared and, particularly in Europe, openly gay politicians can serve in government with no con-

It is often very difficult to distinguish between offense and hate speech in the form of group defamation. Waldron himself blurs the lines by repeatedly referring to the nebulous concept of Islamophobia.
troversy. Homosexuals can live in the open and in some places even marry. Yet even as society became much more tolerant of homosexuality, countries like Denmark, Sweden, and the Netherlands added sexual orientation to their hate speech laws. Whereas in 1979 a Christian woman in Britain succeeded in having a homosexual magazine fined for blasphemy, today British homosexuals have successfully brought complaints against Christians and Muslims for offensive anti-homosexual expressions. It is precisely because homosexuality has become accepted and homophobia a social faux pas in many places in the West that homosexuals have been able to persuade political elites that they deserve specific legal protection. On the other hand, numerous Eastern European states including

Russia and Lithuania have yet to undergo the same changes in attitudes towards homosexuality. Rather than adopt laws protecting homosexuals from hate speech they have enacted laws prohibiting, for instance, the promotion of homosexuality or gay parades. If Danish and Dutch homosexuals were still a vulnerable and marginalized minority persecuted by the state and other citizens, they would be very unlikely to obtain special recognition. Without a principled defense of freedom of expression no group is more than a political majority away from being the target rather than the beneficiary of hate speech laws. h e r e i s a l s o something deeply disturbing about a society where the ultimate recognition for previously persecuted groups is the ability to silence those opponents whose views have already become marginalized through social change. No minority group whose members know the pain and humiliation of intolerance should wish to be afforded respect and recognition through limiting the freedom of expression of others. Surely it would have tainted the accomplishment of the U.S. Civil Rights movement if in its hour of triumph it had convinced Congress and the Supreme Court that the bigots defeated through the appeal to freedom and equality should also be sanctioned through legal means. The Harm in Hate Speech has been hailed by both proponents and opponents of hate speech laws as offering a deeply challenging argument and as certain to give even free speech absolutists pause. In his book Waldron insists that where there are fine lines

to be drawn the law should generally stay on the liberal side of them. If Waldron was serious about erring on the side of liberty, he would have written a very different book.

Obamas Foreign Policy

James Mann. The Obamians: The Struggle Inside the White House to Redefine American Power. Viking. 416 Pages. $26.95. Dav i d E . Sa n g e r . Confront and Conceal: Obamas Secret Wars and Surprising Use of American Power. Crown. 496 Pages. $28. o pa r a p h r a s e Mario Cuomos dictum about political campaigns, we debate foreign policy in poetry and implement it in prose. The political discourse on foreign policy wrestles with the big questions facing America as a global power. Campaigns serve as crucial settings for those debates, but not the only ones. The broader public square includes journals, op-ed pages, the blogosphere, Twitter any arena where contrasting viewpoints contend with each other. For foreign policys prosaic side, the scene of the action is the governmental apparatus that the United States, as a David Shorr is a career-long analyst and commentator on national security affairs and U.S. foreign policy. He blogs at
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By David Shorr

global power, has developed for its dealings with the rest of the world. The standard jaded view of the effect of politics on foreign policy bemoans its distorting influence, which can be counterproductive indeed. Yet politics, properly understood, is integral to the process. Foreign-policy-making is political to the extent that the issues are controversial either in domestic politics or the specialist debates that parallel governmental decisions. The large number of politically appointed officials in the American system, compared with other governments, is a nod to this reality. At the same time, the appointees who serve at the pleasure of the president work alongside career officers responsible for every aspect of diplomacy, development, warfare, and intelligence and the bureaucracys levers for decision-making and implementation. This foreign policy civics lesson is offered as background for a pair of election-year books about President Obamas national security record thus far. James Mann and David Sanger are among the most sure-handed journalists on that particular beat. In their accounts of Obama foreign policy, they approach the subject from opposite sides of the political-technocratic divide. The books subtitles hint at the authors shared questions of interest but also their divergent styles and methods. Sangers book is about Obamas surprising use of American power, whereas Mann focuses on a struggle to redefine American power. Sanger, who is the New York Times chief Washington correspondent, takes readers more deeply into the workings of national security policy execution; he watches President Obama and his advisers preside over the machinery of
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statecraft. The revelations that have earned the book buzz as well as controversy the cyberwarfare used to sabotage Irans uranium enrichment centrifuges are the fruits of this method. While Sanger delves into the Obama teams exertion of American power to discern a policy style, James Mann is interested in their deliberate efforts to

In his administrations first months, Obama doubled the U.S. military presence from 34,000 to 68,000 troops. Even after these increases, though, he saw the need later that year for a three-month-long intensive policy review.
devise a foreign policy framework matching their view of 21st-century realities. He wants to know whether they could bring about a new American relationship with the world, one that was less unilateral in approach and less reliant on American military power. Applying the same approach as his earlier book about President George W. Bushs foreign policy team (The Vulcans), Mann focuses on the perspectives and ideas that policymakers bring with them into government. Mann sees Barack Obama as a president confronted with the legacies of the two Georges. He would inherit not only the problems left by his predecessor (Iraq, Afghanistan, Iran, North Korea), but also the lingering association of the Democratic Partys brand with the antiwar constituency that gave George McGovern the nomination 35

years earlier. Rather than overcompensating for this stereotype with a me-too hawkish stance, Obama and the rising generation of Democratic foreign policy hands try to approach questions of military force with calm prudence believing force should be used because of compelling circumstances, not strained arguments or figments. President Obamas prescient 2002 opposition to the Iraq War was an early instance of this instinct. While the eventual political payoff for this stance is well known, the speech Obama gave as an Illinois state senator is also interesting as a preview of his administrations policy. The speech not only warns against invading Iraq as dumb and rash, but draws a contrast with Afghanistan and the need to keep pursuing Osama Bin Laden and al-Qaeda. Later during the presidential primaries, Obama used a policy address at the Wilson Center to pledge a shift of forces and focus away from Iraq, and instead taking the fight to the terrorists in Afghanistan and Pakistan. But the candidate followed his own counterterror logic even farther than the conventional wisdom would go unilaterally into Pakistani territory, without the consent or cooperation of its government. Four years before ordering the Navy seal mission to take out bin Laden, President Obama basically said how he would respond to such a situation. Where Mann situates the Obamians within contemporary domestic politics, Sanger distills the presidents use of military into one pillar of an Obama doctrine:
When confronted with a direct threat to American security, Obama

has shown he is willing to act unilaterally in a targeted, get-inand-get-out fashion, that avoids, at all costs, the kind of messy ground wars and lengthy occupations that have drained Americas treasury and spirit for the past decades.

By the time Obama took office, U.S. and other nato troops had been in Afghanistan for more than seven years well past the point of surgically getting in and getting out. He was eager to give the Afghanistan effort the commitment and resources that for years had been shunted to Iraq, yet this raised the question of what could be achieved with those resources, and on what timeline? In his administrations first months, President Obama doubled the U.S. military presence from 34,000 to 68,000 troops. Even after these increases, though, he saw the need later that year for a three-month-long intensive policy review. The review was spurred by the debacle of Afghani President Hamid Karzais stolen election and a simmering internal debate over the administrations strategy with some favoring a counterinsurgency campaign to stabilize the country, others a more modest operation targeted against terrorist forces. The military doctrine of counterinsurgency aims to gain enough of local citizens trust that they will help find rebel fighters and build governance structures, especially security services, loyal to the central government. As it happened, two of the doctrines leading exponents, General David Petraeus and General Stanley McChrystal, were Obamas senior commanders at the time. Sanger describes the policy review as
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focusing on the question of what it would take to reverse the momentum [of Taliban gains] in Afghanistan and then get out a strategy called escalate and exit inside the White House. While the president was keenly interested in whatever progress an enhanced nato operation could attain, he was also leery of letting it drag out for years on end. (Both Sanger and Mann note that in the summer of 2009 Obama and many of his aides had been reading Gordon Goldsteins Lessons in Disaster: McGeorge Bundy and the Path to War in Vietnam about the difficulty of trying to finely tailor wartime decisions.) Meanwhile, McChrystal amplified his views through press leaks and public remarks, basically angling for the largest and longest operation he could get. At the conclusion of the review in late-2009, President Obama decided to send 3 0 , 0 0 0 more troops to Afghanistan, thereby tripling the troop level he inherited. With an augmented force, military commanders said they could sweep Taliban insurgents from significant swaths of the country. To keep the operation from bogging down, nato would hand off responsibility for the areas they had taken to Afghan forces. And while the added troops would be put on the ground as quickly as possible, following the template of President Bushs Iraq War surge, forces would be cut to pre-surge levels within two years. From the Afghan side, President Karzai announced that by 2014 his government would no longer need nato. When the time came to start preparing the drawdown in detail, however, US military leaders clearly assumed they would work with the White
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House on revising the timeline rather than sticking to the agreed plan. This despite the clear commitment to the timetable the generals gave President Obama during the policy review. One administration official shared with Sanger the assessment hed given the president: The Pentagon went along with the deadline believing they could ultimately get it extended. The official recalled the president responding, Well, Im not going to give them more time. Nor did it help matters when a Rolling Stone profile on McChrystal reported an unconcealed disdain in his camp for its political masters; the disregard for the principle of civilian control of the military compelled Obama to remove McChrystal from his command. (Rolling Stone reporter Michael Hastingss book on the war in Afghanistan, The Operators, is an important and troubling document of the sense of untouchability felt by some officers and the often Sisyphean nature of the mission.) Rather than let the issue be reopened, Obama relied on a tight circle of close advisers to help orchestrate the drawdown of troops and prioritize achievable objectives sharing the plan with the entire national security team once it was ready. Last May the administration concluded a partnership agreement as a roadmap for U.S.Afghan cooperation extending at least ten years beyond the 2014 departure of the last American forces.

or some issues, the Sanger and Mann books complement one another by offering different pieces of the puzzle. Their accounts of the Iranian nuclear controversy mesh especially well. For the Obamians

themselves, Iran was a challenge they anticipated during the 2008 campaign and recognized as a test of their approach. And since judgments of the administrations national security record often hinge on its handling of Iran, the policy warrants a closer examination than the partisan debates give it. One passage from Sangers book, quoting Secretary of State Hillary Clinton, gets to the heart of the Obama strategy of engaging Iran or any government with which the United States has serious problems:
Washington would no longer regard sitting down to talk with an adversary as a sign of national weakness. Not because we thought it would necessarily work, as Clinton later said, but because we knew that without trying wed never get the allies to sign on to a much, much tougher approach.

Going the extra mile to seek an agreeable solution actually helps gain the upper hand. In terms of the substance of guaranteeing Iran does not conduct a military nuclear program, it tests the other sides sincerity to see if there is a solid basis for negotiations. Yet there is value in probing for compromise even if nothing materializes because it shapes perceptions in the rest of the onlooking world. Other nations are just as much the diplomatic targets as Iran itself. Their support is vital to keep pressure on Iran in between attempts at negotiation, and the key to winning that support is to show clearly which party is reasonable and which is uncooperative. Therein lie some answers to Manns question about a new Obamian relationship

with the rest of the world. The strategy says that trying engagement first can ultimately yield more pressure. It emphasizes the importance of other players the swing voters of international politics in exerting that pressure, whether the target is Iran or China. Think of it as diplomatic jiujitsu or the moral authority of the other guy looking like a jerk. And the policy toward Iran has played out just as Clinton indicated. One pivotal moment came in October 2009 when Iranian and international negotiators sketched an agreement to remove the majority of Irans enriched uranium from the country in exchange for civilian nuclear fuel. Tehrans abandonment of the deal coming just weeks after President Obamas news conference at a g - 2 0 summit to uncloak a secret nuclear facility in Iran made many key governments much less patient with Iranian leaders. Which is how the Obama administration built support, including from China and Russia, for a new un sanctions resolution several months later. Indeed, the inconvenient fact for critics of Obamas Iran policy is that he has imposed much tougher sanctions on Iran than his predecessor. But while the diplomatic success traces to the Obamian style of U.S. international leadership, the working level implementation of the sanctions has roots (and authorship) in the Bush administration. For the tactics of pressuring Iran, Mann explains, Obama owed thanks to a Republican lawyer who in 2000 worked on the Bush v. Gore case and the Florida recount. Stuart Levey is also a bureaucratic innovator who used the Treasury Departments Office of Terrorism and
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Financial Intelligence, which he headed since its creation in 2004, to devise a new method of turning the financial screws on other countries. The key was the offices access to information the intelligence community collected about financial transactions and flows. Armed with this information, Levey
would approach a particular bank and explain how the money that flowed through it was being used for illicit or improper activities North Korean counterfeiting, for example, or Irans nuclear and missile programs. When bankers claimed, as they often did, that they had no knowledge of these activities, Levey would show them the detailed evidence. . . . The implicit threat was that if a bank continued to do business in the same way, its reputation was at risk. It might be publicly exposed. In the worst case, the bank might be subjected to further sanctions and lose its ability to operate in the United States or elsewhere around the world.

Since all routes of the international financial system run through the U.S., for a bank to be prohibited from doing business in America is a severe constraint. Last summers ratcheting up of sanctions on oil and gas imports from Iran works similarly, by clamping down on institutions conducting such transactions through the Central Bank of Iran. Other nations dependence on such imports not only energy-hungry China but close America allies such as Japan and Korea make a total cutoff impractical, but their reduced purchases have shown their good faith and pushed down the price of Iranian energy as well as the associated revDecember 2012 & January 2013 107

enue. The other recent dynamic has been the threat of an Israeli military strike against Irans nuclear facilities, and the Sanger book details President Obamas effort to avert a rush to war. As Mann and Sanger try pick out the distinguishing features of Obama foreign policy, both portray the administration as recalculating American leverage and factoring constraints into the equation. This raises the issues of economic realities and the charge popular among the presidents political opponents that he views America as a declining power. Mann recounted interviews in which administration officials spoke in identical terms about the investment and aid resources Saudi Arabia and China were both spreading around their regions: they sure do have a lot of money to throw around. Mann noted that it was an observation others used to make about the United States in decades past. In the same vein, the limits Obama put on the American role in n at o s Operation Unified Protector in Libya substantially reduced the cost to the U.S. On the issue of American decline, Mann makes the essential point about how Bush foreign policy diminished U.S. influence:
The impact of the Iraq War had been such that foreign leaders in countries like France and Germany were unwilling to collaborate with the United States overseas and found that even when they wanted to do so, they faced determined and vociferous opposition at home. That was the situation Obamas less arrogant approach was designed to change as a way of

increasing Americas power, not reducing it.

Many parts of Manns books draw on his close and perceptive reading of President Obamas key policy speeches (an interesting contrast with Sangers critique that Obama has lacked a consistent message). One theme he discerns is an appeal for other nations to shoulder greater international responsibilities, because the United States cannot keep doing it all. But there is another rationale core to the Obamian outlook and under-noticed in analyses of Obama foreign policy for wanting others to step up: The point is not merely to spread the burden but also the ownership. One dimension of American exceptionalism is the claim that its foreign policy is less self-serving than the role traditional great powers have played. U.S. power has served as a foundation for a stable and relatively peaceful and prosperous international order. As President Obama put it in his Nobel Peace Prize lecture, The United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms. In essence, the fundamental aims of American foreign policy are universal rather than particular to our own country. Returning to the Iranian example, other nations should help bring pressure not because America asked them to or they could be cut off from the U.S. banking system, but because Tehran is flouting an essential international norm. The same goes for other global challenges like economic growth or climate change: They should share similar concerns because all of us will live with the consequences.

Now that President Obama has won re-election, these two excellent books will be especially useful for those seeking a deeper understanding of his approach to foreign policy in his second term.

Zhukov: The Soviet General

Geoffrey Roberts. Stalins General: The Life of Georgy Zhukov. Random House. 400 Pages. $30. oviet marshals were known for their fondness for outsize hats and a chest load of decorations, and on this point of military splendor, Marshal Zhukov, the man who had crushed Hitlers panzers and conquered Berlin, was in a class all by himself. In his memoir Berlin Command Frank Howley, who later became U.S. commandant of the city, provides a portrait of Zhukov from the Allied victory parade in Berlin on September 7, 1945, which combines close observation with sly satire:
Marshal Georgi Zhukov was there in all his glory. He wore robins egg blue trousers, with yellow stripes, topped off with a dark green blouse and a bright red sash. Across his chest, and almost down below his hips, hung so many decorations

By Henrik Bering

Henrik Bering is a writer and critic.

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that a special brass plate had to be worn to house this immense collection, giving the impression of being riveted to the Russians chest. The decorations included the highest order of the Soviet Union, as well as many from the Allies. Zhukov was a big man, with a big, broad chest, but there was no room left. In an emergency, he had hung one decoration, a gold saucer affair, on his right hip.

By contrast, George Patton, standing in for Eisenhower and normally not known for his modesty, on this occasion clearly operated on the principle that less is more: Patton was dressed in a simple battle jacket, with a few ribbons, but his gleaming boots and polished helmet outshone all of Zhukovs medals. As far as I can remember, nobody else attracted the slightest attention, wrote Howley. Zhukovs attendance in the Berlin parade had followed the immense victory parade in Moscow on June 24, 1945, where Zhukov took the salute riding on a white Arab charger, and where Soviet soldiers flung Nazi banners and regimental standards before the Kremlin Wall, just as Marshal Kutuzovsforces had done in 1812 with Napoleons beaten standards. But favor was fleeting in Stalins Russia: Shortly after having been appointed commander in chief of the Soviet ground forces, Zhukov found himself relegated to the sticks, posted to the Odessa military district in the Crimea, and accused of a host of evils: of unworthy and harmful conduct, of corruption, and of disrespect towards Stalin by passing himself off as the chief architect of the Soviet victory.
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After which followed a reputational rollercoaster for Zhukov: After Stalins death, he was back in favor under Khrushchev, only to be discarded again, until finally being resurrected under Brezhnev. Today, in nationalist Russia, he is a cult figure, and hailed as the greatest military figure in the nations history. As Geoffrey Roberts makes clear in his biography Stalins General, a variety of views exist on Zhukov. One end of the scale is represented by the late John Erickson of the University of Edinburgh, who rated Zhukov The greatest soldier so far produced by the 20th century. On the simplest reckoning, he is the general who never lost a battle. The counterview sees him as a primitive brute who commanded by fear andthreats and to whom the lives of his troops were as expendable as metal washers. He certainly stunned Eisenhower by revealing that his way of clearing minefields was to let infantry run through them. As Roberts explains in his introduction, when setting out, it had been his intention to write a critical biography, exploding the myths that had grown up around Zhukov and to serve as a corrective to earlier assessments of Zhukov in English. Like Ericksons, they have tended towards the panegyric by leaning too heavily on Zhukov memoirs, which, through invaluable due to their access to the war archives, are heavily biased. As Roberts got deeper into the material, this approach was scrapped in favor of a more balanced one of weighing the marshals strengths and his weaknesses.Zhukov was neither the unblemished hero of legend nor the unmitigated villain depicted by his detractors, he writes.

Which is fine, as it is the purpose of military biography to deliver a coolly analytical appraisal of its subjects military abilities, be he German, Soviet, or Japanese, while never forgetting what kind of regime he represented. Roberts doesnt: While his victories over the Nazis served humanity well, they also helped to buttress a system that was itself highly authoritarian and harshly repressive. was recalled from the east to command the Kiev district, the largest in the Soviet Union, and charged with coordinating the regions role in the revision of nations war plan, in which Germany figured as the main enemy. And because of Zhukovs success in war games, Stalin made him chief of the general staff in January 1 9 4 0 , though Zhukov himself had pointed out his lack of experience for this job. Operation Barbarossa, Hitlers invasion of the Soviet Union, caught Stalin off guard, as he had long hypnotized himself into believing that he could remain on the sidelines and build up his army while the capitalist nations exhausted themselves against each other. To avoid furnishing Hitler with the slightest pretext for invasion, he refused to put the border forces on alert, let alone order a full mobilization, stubbornly ignoring the reports of the German troop movements. Mobilization means war, was Stalins message to Zhukov. The result of Stalins miscalculation was devastating: Because of the Soviet failure to disperse their aircraft, almost 4,000 were destroyed in the first three days, and whole armies were cut off and swallowed up in what the Germans call Kesselschlacht, cauldron battles. The question here is how much of the blame for this catastrophe attaches to Zhukov: Stalins 1937 purge of the military had decapitated the Red Army, not a brilliant move given that Hitler in Mein Kampf had made plain his intention of enslaving the Slavs. The prime target of the purge was Marshal Tukhachevsky, the Red Armys commander in chief. According to Robertss figures, altogether 34,000 officers were purged, many of whom were shot or
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y scattering old power structures, revolutions open possibilities for ambitious men. As had been the case with the French Revolution, which paved the way for Napoleon and his marshals, so it was with the Russian Revolution and a generation of Soviet commanders. Of modest peasant stock, Zhukov had been conscripted into the Tsarist army and promoted to nco. In 1918, he had joined the newly formed Red Army; he was decorated for bravery in the war against the Whites, and had risen steadily in the ranks. His reputation was made in defending Mongolia against the Japanese northward expansion. In the battle of Khalkhin Gol in August 1939, through canny use of misinformation,he pulled off a double envelopment of the Japanese forces like the one achieved by Hannibal against the Romans at Cannae,every commanders dream. As Roberts notes, his victory had consequences for the U.S.: together with Molotov-Ribbentrop Pact, it contributed to the Japanese shift to a southern strategy, ending in the attack on Pearl Harbor. In a reshuffle following the Red Armys less than impressive win over the Finns in the 193940 war, Zhukov

died in prison; 11,500 were later reinstated. There is no evidence that Tukhachevsky was plotting against Stalin.But as Tukhachevskys biographer Thomas G. Butson aptly noted in the Tsars Lieutenant, in Stalins mind, real threats and imagined ones tended to coalesce. To him, opportunity equaled intent. The effects on Soviet planning were disastrous. Tukhachevsky had been the proponent of an offensive doctrine of combined arms operations in depth, along similar lines as those considered by German Panzer generals. As Condoleezza Rice points out in her essay Soviet Strategy, after Tukhachevskys removal, further development of his ideas stopped, but attack remained the order of the day, despite the fact that in their first offensive against the Finns in the 193940 war, Soviet troops demonstrated their lack of mastery of the cooperation of arms. Predictably, in the opening phase of World War II, Red Army attacks were ineffective, and they proved equally inept at defensive maneuvering, many remaining in place when about to be overrun. Those that did retreat did so head over heels and with staggering losses. While he did not believe that Soviet forces could have stopped the Germans in the initial stage of the war, and though the published version of Zhukovs memoirs remains guarded on the subject, Zhukov was more honest than most in accepting a share of responsibility, writes Roberts. He was also perceptive enough to see that the origins of the error lay deep in the Red Armys history and culture. In an unexpurgated passage from the memoirs quoted here, Zhukov notes that at that time, our military theoretical
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science generally did not consider the profound problems of strategic defense, mistakenly considering it not so important. As a result, says Rice, the Red Army field regulations of 1942, though still emphasizing offensive action as the war winner, now proclaimed defense a normal form of combat, but it had to be a flexible and mobile defense, not what Stalin correctly characterized as stupid and pernicious linear tactics. Among further consequences of the catastrophe Roberts cites the return of political commissars with veto powers over military decisions and the use of so-called blocking detachments, whose task it was to shoot on the spot anyone turning tail. As Stalin later told Admiral King at Yalta, It takes a very brave man not to be a hero in the Soviet army. number of Soviet generals paid for the disaster with their lives, but Stalin chose not to hold it against Zhukov, particularly since he proved his aggressiveness at Yelnya in the Smolensk area by furiously counterattacking the German invaders. Hitlers initial intent had been to capture Leningrad and then on to Moscow. Holding the nations second city, with its symbolic significance as the cradle of the Revolution was vital, says Roberts, as its capture would allow the Germans to mount a flanking attack on Moscow from the north, and Stalin dispatched Zhukov to do the job. The Russian and German forces in the area were roughly equal, just under half a million men each, but the Germans had two tank divisions and they owned the air.

Zhukovs message to his troops, if not exactly inspirational, had the virtue of clarity: All commanders, political workers, and soldiers who abandon the indicated line without written order from the front or military council will be shot immediately. By organizing a deep, echeloned defense of the city with dense minefields, he managed to stabilize the front. In less than a month, Zhukov had mastered the gravest crisis, organized an effective defense, and repaired morale, as well as restoring discipline which had crumpled disastrously before his arrival, Roberts quotes Erickson as saying. The American military historian David Glantz spoke of the miracle on the Neva. Among the less euphoric voices heard in the book is Russian historian Vladimir Beshanov, who recalls that Zhukovs mission had been to lift the blockade but that that took another three years, by which time over a million soldiers were dead, and a million civilians had died of starvation and forced evacuations. Though Zhukovs feat at Leningrad wasnt quite what it was cracked up to be by the Zhukov myth, Roberts deems it relatively successful nevertheless: Zhukovs achievements compared well with the disasters suffered elsewhere by the Red Army. What Leningrad also did, he reminds us, was to tie down about a third of the German forces in 1941. s t h e g o i n g got tough around Leningrad, Hitler switched targets, opting for Moscow while leaving Leningrad besieged. For Zhukov, who had been named commander of the western

front, the challenge was now to mount the defense of Moscow, where panic was imminent. To calm the fears, it was announced that Stalin remained in the city, and that Zhukov was in charge of the capitals defense. Both The Red Star, the armys newspaper, and Pravda, carried his photo, the first time that had occurred for a front commander. Having only some 90,000 soldiers at his disposal, his recipe for the defense of Moscow was similar to that of Leningrad, Roberts writes: Draconian disciple; no surrender and no retreat; counterattack wherever and whenever possible. Pour encourager les autres a couple of commanders were executed, punishment for having ordered an unauthorized retreat. Zhukov was himself forced to pull back to new defensive positions, says Roberts, but through constant counterpunches and last minute withdrawals he sapped the strength of the German troops. A German decision to regroup allowed Zhukov to bring in an extra 100,000 troops, 300 tanks, and 2,000 pieces of artillery, and the Russians felt confident enough to celebrate the anniversary of the Bolshevik revolution with a parade in Red Square, where Stalin reeled off the names of the great Russian military heroes who in the past had saved the motherland from foreign invaders. At the end of November, after Zhukov had received additional reserves, the German advance finally ground to a halt just outside Moscows suburbs. In his memoirs, Zhukov praises Stalin for having saved Moscow: By his strict exactingness Stalin achieved, one can say, the near impossible. But he also strives to portray himself as his
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own man, distancing himself from some of Stalins blunders. However, reading Zhukovs orders, edicts, and records of conversation during the battle of Moscow, he comes across mainly as a general willing to execute the orders of his superiors without demur and who expected the same of those serving under him, writes Roberts. It was, above all, Zhukovs disciplined attitude that endeared him to Stalin, not his supposed forthrightness or insubordination. is advance on Moscow having run out of steam, Hitler once again changed direction, this time heading for the southern oilfields of Baku to cut off the Stalins energy supply. However, instead of a single thrust towards Baku, Hitler, in order to protect his flank, chose to divide his offensive to capture Stalingrad, and the task of defending the city bearing Stalins name again fell on Zhukov. In the three-month battle, the city saw some of the most desperate fighting of the war, sucking in men and materiel. At one point the German Sixth Army held 90 percent of the city, but in Zhukovs counteroffensive, 300,000 German and Axis troops were encircled. The Luftwaffes attempts to keep them supplied from the air proved unsuccessful, and the 90,000 German survivors surrendered, including Paulus, their commander, making this the key turning point of the war. Total Axis casualties at Stalingrad amounted to 1.5 million, and 2.5 million for the Russians. As a reward, Zhukov became Stalins deputy. As Erickson notes At a stroke Zhukov was transformed from
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visiting fireman to threatened fronts into the chief engineer of the Soviet military machine. Significantly, the political commissars were abolished during the battle of Stalingrad, to convey the message that Stalin now had confidence in his military. After the Wehrmachts Erich von Manstein, with his famous backhand blow, had recaptured Kharkov, Ukraines second city, Zhukovs intuition told him that the next German move would be to strike in the direction of Kursk, salient to shorten their defense line. Roberts details his preparations, an in-depth defense of some 200 to 250 miles riddled with antitank strong points, and mustering 3,489 tanks, 1 9 , 7 9 4 artillery pieces, and 2,650 aircraft, and with another 1,500 tanks kept in strategic reserve. In Zhukovs words, the goal was to wear the enemy out in defensive action, destroy his tanks, and then . . . by going over to an all-out offensive we will finish off the enemys main grouping. In this, the greatest tank battle the world had ever seen, quantity trumped quality: One on one, the German Panther and Tiger tanks were superior to the Russian t-34s, but there werent enough of them: The Russians lost more tanks, writes Roberts, but they could afford it, and Hitler was forced to call off the attack. Following Kursk, it was now the time for the great Russian offensives, and Roberts lays out the battles for Ukraine, followed by the offensive in Belorussia, codenamed Bagration, then Warsaw, and then on to Berlin via Poznan. Enjoying a 5.5-to-1 advantage in manpower, 7 . 8 in tanks, 5 . 7 in armor, and 1 7 . 6 in aircraft, Soviet forces covered the distance from

Warsaw to Poszan, 120 miles further west, in just one week. Among Zhukovs tactical preferences Roberts mentions his inclination to hold back his armor until day two or three of an offensive, letting his artillery and air force soften up the German defenders, and then unleash his tanks en masse to wreak havoc. A bit more on Zhukovs tactics here would have been welcome. Acutely aware of its political significance, Stalin was determined to capture Berlin, irrespective of costs, and encouraged a race to Berlin between marshals Zhukov and Konev, with Marshal Rokossovsky protecting their flank. The Germans, fearing payback for their savagery in Russia, were stubbornly defending their homeland and were by now experts at fighting retreats. Accordingly, says Roberts, the casualties suffered by the Red Army were proportionally greater than at any other time since the catastrophic opening phase of the war. As had been the case with Stalingrad, Berlin had been turned into a fortress, with three defensive zones, 30 miles deep. In a favorite method, says Roberts, the Russians would fire the artillery shells straight into buildings, collapsing them with the defenders inside. The butchers bill for the drive to Berlin came to over 350,000 Russian casualties, with some 80,000 dead, which Roberts compares to the 25,000 casualties suffered by the U.S. at Iwo Jima. Though Zhukov had to share in the taking of Berlin with Konev, it was his troops who hoisted the Soviet flag over the Reichstag on April 30, 1945, and it was he who accepted the German surrender on his masters behalf on May 9.

erving under the Stalin, the man of steel, had certainly required nerves of steel titanium, rather but while delivering victories to Stalin, Zhukov had been reasonably safe; with the war over, Stalin now perceived him as a threat. As had been the case with Tukhachevsky, Roberts notes, there is no sign of disloyalty on Zhukovs part, but again, that is beside the point, and packed off to Odessa he was. To cope, he tried to carry on as if nothing was amiss, but In 1947, I feared arrest every day, and I had a bag ready with my underwear in it, Zhukov wrote. After Stalins death in 1953, the task of arresting Lavrentiy Beria, Stalins kgb chief, fell on Zhukov, and must have been particularly gratifying. A collective leadership followed, consisting of Khrushchev, Molotov, and Bulganin, but triumvirates have a way of not lasting; in the internal power struggle, Zhukov backed Khrushchev. Only you could do it. I will never forget that, Khrushchev gushed. In recognition, Zhukov was appointed Minster of Defense in February 1955, and planned the suppression of the Hungarian Revolution the following year. But Khrushchevs gratitude proved short-lived. Having themselves gained power by force, Soviet leaders were always wary of Bonapartism, the prospect that a popular general would take over, and like Stalin, Khrushchev feared Zhukovs popularity. The sneak attack came on a Central Committee meeting in October of 1 9 5 7 , with Mikhail Suslov, the partys ideologue in chief, acting as the lead attack dog. The charges were the by now familiar ones: that Zhukov was seeking to weaken
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the partys control of the army and that he was hogging the limelight for the World War II victory, to which were added new accusations that he was hoarding power and that he had failed to prepare for the German attack. As Roberts notes, fellow officers were lining up to denounce him: He quotes Marshal Rokossovsky: His way of commanding was literally obscene; we heard nothing but continuous cursing and swearing mixed with threat to shoot people. His close friend Ivan Bagramyan dismissed him as simply a sick man. Self aggrandizement is in his blood,while Konev, the man whom he raced to Berlin, was busy taking shots at his war record in Pravda. For me personally, the word of the party was always law, Zhukov later responded. He was not disputing the partys leading role but, according to Roberts, what he did believe was that political officers should restrict themselves to a propaganda mission, and butt out of the military decisions. In Zhukovs view, the guarantee of party control was that the commanders would or should be dedicated communists themselves, writes Roberts. But, while no Bonapartist, Roberts certainly sees him as guilty of political navet and personal hubris. As was the Soviet way, having been put through the wringer, he was written out of World War II, while Khrushchevs role in the defense of Stalingrad was magnified to an absurd degree. He came to consider Khrushchevs betrayal of him in 1957 as greater than Stalins in 1946, writes Roberts. Thus when he started writing his memoirs during this period, he was writing for the table and for history.
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A gradual rehabilitation occurred under Brezhnev, and after a battle with the censors, his memoirs were published. Prodded by his wife, Zhukov had performed the requisite groveling for Brezhnev, in one place stating that he wished he had consulted with then Colonel Brezhnev on some issue. As Roberts notes, the idea that a field marshal should consult a lowly political commissar is absurd, but as Zhukov noted, the wise will understand. His funeral in 1974 was the biggest show in town since Stalins, and, says Roberts, marked the beginning of the Zhukov cult. He now has his equestrian statue at the entrance to Red Square, two military decorations bear his name, and a host of biographies have been written. c c o r d i n g t o Roberts, though a well-read man, Zhukov was no intellectual or great conceptual thinker. He did have operations that failed. His military moves may have lacked the finesse, say, of those of von Manstein, but he knew how to handle huge masses of men and materiel. His talent was for deployment, not for creative innovation or imaginative flair in battle, writes Roberts. Thus, while Zhukov did not excel as the best ever in any one field of military endeavor, he was the best all-round general of the Second World War. Regarding his command style, the way a commander commands is in many ways dependent on the kind of army he heads, which is why military experience does not always translate from one army to another. As Roberts notes, the great part of the Soviet Army

was made up of poorly educated peasant conscripts, many of whom were not particularly warmly disposed towards a regime that was responsible for the forced collectivization in the countryside in the 1930s. And they were up against the best trained and most brutally efficient army Europe had ever seen. It is difficult to envisage how such an army could have been held together in the terrifying conditions of the ferocious fighting that obtained during the Soviet German war except by a regime of harsh discipline and exemplary punishment, Roberts writes. According to Robertss figures, some 158,000 Soviet soldiers were executed during the war, while others were packed off to penal battalions which only offered a man an even chance of survival. There is no hint that Zhukov ever regretted or even had second thoughts about any of the harsh measures he authorized. But as for his willingness to sacrifice his troops, says Roberts, though by temperament offensively minded, experience taught him how to withdraw when necessary and also how to conserve his troops. And though his losses were high, they do not seem to exceed those of his colleagues. Certainly the troops under Zhukov suffered no greater casualty rates than those of other generals, including those such as Rokossovsky, who had the reputation of being a more benign commander. What distinguished Zhukov was his exceptional will to win, concludes Roberts. Zhukovs reliance more on energy and vigor than on imagination to achieve his goals was consonant with the prevailing ethos of the Soviet system. So a particular component of

Zhukovs great success was that he was a Soviet general, and it is unlikely that he would have been effective in any other army.

Deregulation, Italian Style

By David R. Henderson
Luigi Zingales. A Capitalism for the People: Recapturing the Lost Genius of American Prosperity. Basic Books. 287 Pages. $27.99. h e n m i lto n Friedman retired from the University of Chicago in 1 9 7 7 , I feared the school would become more focused on technical economics and lose the passionate profree-market edge that Friedman represented. To some extent, that has happened. Also, I wondered who in the next generation would replace him. Although many of us aspire to be like Milton, unfortunately no one can replace Friedmans exquisite mix of technical expertise, ability to write clearly for the public (much of which he owed to his editor and wife, Rose

David R. Henderson is a Hoover Institution research fellow and an associate professor of economics at the Graduate School of Business and Public Policy at the Naval Postgraduate School. He blogs at
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Friedman), and warm openness in debate. Still, as we economists like to say, there are substitutes for everything and everybody. In some important respects, one substitute for the late Milton Friedman is Luigi Zingales. Zingales, an immigrant from Italy, is an economics professor in the University of Chicagos Graduate School of Business, a strong technical economist and a passionate defender of free markets. Hes also an excellent writer. In his latest book, A Capitalism for the People, he makes a case for freer markets and warns people in his adopted nation not to go the way of the country he left. He sees disturbing signs that the United States is heading in that direction. Thus the books subtitle: Recapturing the Lost Genius of American Prosperity. Zingales brings a refreshing touch to many of the issues he discusses, especially the ethics of the market and the dangers of cronyism. He draws on his own and others scholarly research, plus his detailed knowledge of financial markets, to make his case for freer markets more than just a theoretical one. Unfortunately, he gets some important parts of U.S. economic history wrong. Also, although he lays out many ways in which financial regulation has gone wrong, his own proposals are either for only modest deregulation or for new regulation. And despite brilliantly analyzing the incentives of financial regulators that cause them to harm the economy, he advocates his own set of regulations that would still require regulators we can trust. No man is a prophet in his own land goes the saying, and one reason why Zingaless message is fresh is that, coming from a country with a great
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deal of cronyism, he sees just how stultifying cronyism can be. Zingales contrasts Italian cronyism with U.S. meritocracy. He points out that the way to get ahead in Italy is to carry the bag of an established person. Even emergency room doctors are chosen, he writes, based mainly on political affiliation rather than on skill. By contrast, in the United States, many more people get ahead based on their merit. Zingales tells the story of a young colleague walking in the rain with a senior professor. The senior professor told the junior one, In Europe, the young assistant professors carry the umbrella for the senior ones. The young professor shot back, Why dont you go to Europe? But Zingales sees all of America going in Europes direction. He gives many examples of U.S. influence peddling. One of the most striking examples, because of the prominence of the person involved, is that of Robert Rubin. When Rubin was Treasury secretary under President Bill Clinton, Citigroup acquired the Travelers insurance company. That move was illegal, but Travelers c e o Sandy Weil explained that he had had enough discussions with the Treasury and the Federal Reserve Board to believe this will not be a problem. Rubin lobbied for a change in the law to make Citigroups action legal after the fact, and in July 1 9 9 9 , the House of Representatives passed the law. The next day Rubin quit as Treasury secretary. Just three months later, Citigroup hired Rubin at a salary of $15 million, without, writes Zingales, any operating responsibility. It soon became clear, though, what was part of Rubins responsibility: to

play an inside game with the Treasury bureaucracy to benefit his new employer. In 2001, following revelations of accounting irregularities at Enron, Citigroup, a major holder of Enrons bonds, would have lost a lot of money had Enrons bonds been downgraded. So Rubin lobbied Peter Fisher, undersecretary of the Bush Treasury, to advise the bond-rating agencies not to immediately downgrade Enrons debt. And in 2 0 0 8 , the Wall Street Journal reported that Rubin had been critical to securing the latest federal bailout of Citi. The bailout included two equity infusions totaling $45 billion and a government guarantee on most of the risk in a $306 billion asset portfolio. This is cronyism writ large. Zingaless expertise is in finance, and that fact is apparent throughout the book. He tells, for example, of a tiny section of the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act that destroyed Lehman Brothers. Under the law, when Lehman went bankrupt, it couldnt simply, as it could have before the 2005 law, pay holders of derivatives as much as possible with its assets. Instead, it had to give a derivative holder a contract identical to the one it had signed with Lehman, but with a different counterparty. Lehman would have to pay the transaction cost of the new contract. A typical such cost is about 0.15 percent of the contracts total value. That doesnt sound like much until you realize that when it went bankrupt, the face value of Lehmans derivative contracts was $35 trillion! So the transactions costs alone were $ 5 2 . 5 billion. Thats why Lehmans bonds paid only 8.625 cents on the dollar.

o r t h o s e w h o still think that corporate boards of directors, outside auditors, or financial regulators do a good job of detecting corporate fraud, Zingales has news: Its nobodys job to detect fraud (his italics). He tells of a friend, a board member of a large company, who once asked the head of purchasing what prevented him from overpaying for an item and having part of the difference rebated to a secret Swiss bank account. A lawyer on the board responded that board members were responsible for making sure that procedures existed, not that they were effective! Boards of directors, notes Zingales, rely on external auditors to detect fraud. It turns out, though, that external auditors do not view fraud detection as their responsibility. He notes that accountants have deemphasized fraud detection and instead focus on adherence to formal rules. Zingales tells of a study he co-authored in which he found that external auditors were responsible for only ten percent of fraud detection. Well, then, surely financial regulators are set up to detect fraud, arent they? Not quite. When Zingales presented his findings on fraud detection at the Securities and Exchange Commission, he was told that it is not the secs job to detect fraud. True to its word, the sec accounts for only seven percent of total fraud detected. In seventeen percent of the cases that Zingales and his coauthors studied, single employees at firms had blown the whistle, often at high personal cost. So, what should be done about fraud? Zingales advocates appointing
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board members who are accountable to the shareholders. He argues that this is not possible today because of regulation introduced by the sec during the Vietnam War era, but does not specify what that regulation was. I was disappointed that Zingales didnt address other regulations that promote fraud in companies two in particular. Section 13(d) of the Williams Act of 1968, for example, requires that investors who garner five percent or more of the shares of a company must announce that fact within ten days. That one law makes it virtually impossible for an entity that wants to take over another company to do so cheaply. Once it is known that an investor has over five percent, the price of the companys shares rises because there is now a higher probability of a takeover attempt. The increase in share prices of the target company discourages people from attempting takeovers in the first place. Also, a slew of state antitakeover laws passed in the 1980s also make takeovers harder. Why does this matter? Because takeovers and threatened takeovers are a way of disciplining firms that are destroying shareholder value, fraudulently or otherwise. Surprisingly, Zingales also advocates increased regulation. Although he only hints at it in the book, he has, more recently, explicitly advocated the forced separation between investment banking and commercial banking along the lines of Glass-Steagall. Zingales realizes that the 1999 Gramm-LeachBliley Acts repeal of that forced separation was not a cause of the 2008 financial crisis. He points out that the major financial institutions that failed during the crisis were either pure investment banks such as Lehman Brothers, Bear
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Stearns, and Merrill Lynch, or purely commercial banks such as Wachovia and Washington Mutual. So, what is Zingaless case for reintroducing Glass-Steagall? He hints at a reason: A mandatory separation would undercut the financial industrys lobbying clout a clout that I agree has been, on net, bad. In a recent op-ed, Zingales gave another reason. He admitted that a better way to deal with excessive risk-taking by banks is to remove deposit insurance. His only argument against doing so is that he doubts that commercial banks are ready for that. But so what? Does Zingales, who is an outspoken enemy of cronyism, advocate that we cave to the banking lobby? Moreover, even if we worry, as he does, about political feasibility, theres another way to make banks and depositors bear more risk from banks bad lending decisions: Leave the depositor with some of the risk. Marc Joffe and Anthony Randazzo of the Reason Foundation, for example, advocate adding a 10 percent co-insurance feature to fdic insurance for deposits above $10,000. Under their proposal, depositors with $11,000 in a failed bank would receive $10,900, and those with a $250,000 balance would get $ 2 2 6 , 0 0 0 . That would give depositors an incentive they have virtually none now to monitor the banks that hold their deposits. h e n i t c o m e s to what business schools should teach about ethics, Zingaless book is a breath of fresh air. Business schools should be the churches of the meritocratic creed. They should lead the way, he argues, in

promoting norms that discourage behavior that is purely opportunistic even if highly profitable. A way to do so is to award prizes to outstanding alumni who adhere to economically useful norms. Zingales has a beef with the two main ways that ethics classes are currently taught at most business schools. One is to raise ethical dilemmas without taking a position on what people should do. That, he says, is like presenting the pros and cons of racial segregation, leaving [people] to decide the answers for themselves. The other way is to hide behind corporate social responsibility, which, he points out, ignores individual responsibility. To those who wonder why a business school should teach ethics, Zingales asks a beautiful rhetorical question: Why are economists happy to say what the optimal laws are from an economic standpoint but afraid to say what the optimal social norms are for a successful economy? In a chapter entitled Responsibilities of the Intellectuals, Zingales gives an excellent explanation and some striking examples of how biases can creep in and distort the perceptions of even very smart people. One reason for the biases, he writes, is the pressure that academics feel from people or companies with large stakes in the outcomes of their research. His best example is of a young finance professor who found that people who traded stocks on regional exchanges got a worse deal than those who traded on the New York Stock Exchange. It turns out that some market makers were paying brokers a penny a share to route orders to them. But then a senior colleague called the young researcher into his office, where he was confronted by a large

market maker who berated him. The young assistant professor was intimidated into dropping that research. The identity of the market maker who intimidated the researcher? Bernard Madoff. Ironically, one interesting piece of evidence for Zingaless idea that even a smart ethical person can let biases creep in is a section of this very chapter in which Zingales himself pulls his punches. He quotes a Federal Reserve governor who, in December 2006, poohpoohed housing-price data on the grounds that such data, because theyre imperfect, are not very useful. Zingales does not name the Fed governor, but does footnote the web site where one can find out. It was Randall Kroszner. Why is that demurral significant? Because Kroszner is one of Zingaless colleagues. Zingales is a master of the metaphor. In discussing Bushs Troubled Asset Relief Program, for example, he points out that he doesnt necessarily reject government action but objects to the way it is done. When a drug addict is undergoing withdrawal, he notes, one shouldnt do nothing, but one also should not give the addict a full years supply of drugs, which is roughly equivalent to what the U.S. government opted for with the bailout. He also compares subsidizing businesses to feeding wild animals. When he ventures outside his expertise, though, Zingales sometimes makes important mistakes. For example, he states that the antitrust law was passed in the late 19th century to increase competition. But Loyola University economics professor Thomas DiLorenzo, in some pathbreaking research in the 1980s, showed the opposite. Between
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1880 and 1890, he found, while real gross domestic product rose 24 percent, real output in the allegedly monopolized industries for which data were available rose 175 percent, seven times the economys growth rate. In six of those seven industries, inflation-adjusted prices fell, which is strong evidence against the view that the large firms were monopolizing. DiLorenzo shows that a key faction lobbying for antitrust laws were small firms that had trouble competing with big firms with large economies of scale, and these small firms wanted less competition, not more. Its still true today that some of the main bringers of antitrust suits are companies suing their competitors. They dont want their competitors to charge even lower prices. In discussing government policy, Zingales reminds us of what ucla and former University of Chicago economist Harold Demsetz calls the Nirvana Fallacy, although he mistakenly attributes it to Ronald Coase. The Nirvana Fallacy is to see a problem with the free market and then to assume that the government can solve it. Demsetz advocated comparing actual markets and actual governments. Zingales does a good job of applying the Demsetzian thinking to other peoples proposals for government policy, but not as good a job at applying it to his own. For example, he advocates timely intervention of the regulator when regulators observe a sizeable drop in the price of a traded security. But he doesnt tell us why regulators will be motivated to act. The vast majority of readers will learn a lot from A Capitalism for the People. Im glad that Luigi Zingales wrote it. I only wish that he had more
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seriously considered a wider range of deregulatory moves that would help steer the United States away from the dangerous path down which he and I agree its moving.

Stephen Greenblatt. The Swerve: How the World Became Modern. W.W. Norton and Company. 356 Pages. $26.95. tephen greenblatts The Swerve: How the World Became Modern attracted me for a number of reasons. First, I live in the modern world. Most people dont. Theyre dead and so live somewhere else, at least according to some. But I live in the here-and-now, so I want to know what the here-and-now is, existentially speaking. Second, Ive spent much of my career trying to figure out how the world became modern. For good or ill, most historians dont worry too much about this question. Its too big, and it certainly wont win you a job in a well-balkanized history department. But I read Marx with too much enthusiasm in my youth and thereby acquired a professionally unhealthy desire to know how most of us got Marshall Poe teaches history at the University of Iowa. He is also the editor of the New Books Network (

By Marshall Poe

A Swerve Too Far

from nasty, brutish, and short to pleasant, cultivated, and long. Finally, I really want to win a prestigious award for my book-writing efforts. Most humble authors dont, or at least say they dont. But I do, probably because my mother didnt love enough or some such. I thought that by reading The Swerve, which won the National Book Award, I might learn how to write a book that would make my mother love me. Now that Ive read The Swerve, I can say this. I did not learn what the modern world is, nor did I learn how it became modern. I did, however, gain some insight into how to win the National Book Award. Allow me to explain. The Swerve tells the story of how an Italian manuscript-hunter found an ancient Latin text Lucretiuss On the Nature of Things (De rerum natura) in 1 4 1 7 , how that text was passed around over the next several hundred years, and how it helped the world become what Greenblatt thinks it is today. In short, its a story about the origins of something. The something in question is the modern or modernity. If you havent spent a lot of time in humanities seminars at prestigious universities, you probably have no idea what these words mean in the sense intended by Greenblatt and all the other seminarists. Websters Dictionary tells us that the primary meaning of modern is of, relating to, or characteristic of the present or the immediate past. But that strictly temporal sense of modern is not at all what Greenblatt and his colleagues mean by modern. Id like to tell you exactly what they do mean, but I cant. Thats because they themselves dont know what they mean. The term is, as they

say in the land of LitCrit, a site of anxiety, which is to say people who do what Greenblatt does fight a lot about what it means. Greenblatt never tells us what his understanding of modernity is. He does, however, say that key elements of it are found in the Lucretiuss 2,000year-old poem. What are those key elements, you ask? Well, its a long poem, and its full of all kinds of strange things that no modern person in his or her right mind would believe. But the part that stands out for Greenblatt is Lucretiuss materialism, in the philosophical sense. According to this theory, you, me, and everything else is made of the same, lifeless stuff. Over time, that stuff randomly combines in various ways and new things appear, only to disappear over more time. There is no beginning or end, no plan or planner, no blueprint and no builder. Lucretiuss universe, therefore, has no meaning, at least in the religious sense. But Greenblatt tells us that he personally found great meaning in the poem when he discovered it as a young man. He writes, breathlessly:
In a universe so constituted, Lucretius argued, there is no reason to think that the earth or its inhabitants occupy a central place, no reason to set humans apart from all other animals, no hope of bribing or appeasing the gods, no place for religious fanaticism, no call for ascetic self-denial, no justification for dreams of limitless power or perfect security, no rationale for wars of conquest or self-aggrandizement, no possibility of triumphing over nature, no escape from the constant making and unmaking
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and remaking of forms. On the other side of anger at those who either peddled false versions of security or incite irrational fears of death, Lucretius offered a feeling of liberation and the power to stare down what had once seemed so menacing. What human beings can and should do, he wrote, is to conquer their fears, accept the fact that they themselves and all things they encounter are transitory, and embrace the beauty and pleasure of the world. I marveled I continue to marvel that these perceptions were fully articulated in a work written more than two thousand years ago.

abandoned self-righteous atheism for a kind of whatever agnosticism. But not Greenblatt. He came to believe that Lucretius did have all the answers to lifes big questions or, as he puts it, offered an astonishingly convincing account of the way things actually are. Thats right, the way things actually are. One of those ways is that there is no God, just stuff. Having received the Truth on the matter, Greenblatt never looked back. t is not at all uncommon for humans, egoists that we are, to think that my experience is everyones experience. And so it is with Greenblatt. As a tormented underclassman, he found the Truth in Lucretius and it freed him from the bonds of superstition and the fear it engendered. Just so our world, according to Greenblatt, for it too found the Truth in Lucretius and was thereby freed from the bonds of superstition and the fear it engendered. Lucretius made Greenblatt modern and Lucretius made the world modern. I have no reason to doubt that Lucretius helped make Greenblatt modern in the sense of believing that there is no God, only stuff. But I do wonder how he can believe that Lucretius did the same for the entire world when the vast majority of it believes God made all the stuff. The numbers are striking. Lets take the United States, admittedly a more religious nation than most of its peers. Over 90 percent of Americans believe in God. Over 80 percent identify with a major religious denomination. Almost 60 percent pray weekly. Around 40 percent attend church at least once a week.1 Now, if you accept Greenblatts

This burning-bush encounter with Lucretius, Greenblatt reports, enabled him to overcome his fear of his mothers death and to accept that her passing is natural part of life. Greenblatt is hardly alone having converted, if I may, to atheism as an undergraduate. I did the same, though my godlessness came from Lennon rather than Lucretius.
Imagine theres no heaven Its easy if you try No hell below us Above us only sky Imagine all the people Living for today

Greenblatt is, however, somewhat unusual in persisting in his empty-sky faith. For my part, I figured out pretty quickly that Lennon and those like him did too many drugs to have all the answers to lifes big questions. So I
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premise that religion and modernity are antithetical, then you must conclude that most modern Americans are not modern. That, of course, is nonsense on two counts. First, even the students in Greenblatts seminar would probably admit that the United States is a modern country in the nontemporal sense. Americans invented, or at least perfected, popcorn, pop tarts, and pop rocks those are all very modern things. Second, unless one is clumsily equivocating, something cant be modern and not-modern at the same time. Thats the Law of the Excluded Middle, and as far as I know it holds. Perhaps Greenblatt doesnt believe that the United States, with its masses of superstitious believers, is modern. And perhaps he doesnt believe the laws of logic hold in the postmodern age. I dont know. But I do know his definition of modernity is not terribly sound. The empirical fact of the matter is that most modern people in the temporal sense are religious. This being so, its hardly logical to exclude them from the definition of modernity in the nontemporal sense. Admitting that modern religious people are modern would not only have allowed Greenblatt to avoid the above-mentioned nonsenses, but it also would have permitted him to ask a really important question: How has religion helped make the world modern? But Greenblatt has no interest in this question because he thinks religious people are essentially ignorant throwbacks to the bad old days when superstitious bumpkins were easily conned by corrupt priests who peddled false versions of security or incite irrational fears of death.

In fact, Greenblatt is not really concerned with how the world became modern at all. Rather, hes interested in how the Truth was revealed to his modern people, which is to say people just like him. Who are they? Well, they tend to live and work in wellknown zip codes in the American Academic Archipelago, for example, 02138 (Cambridge, Massachusetts), 06520 (New Haven, Connecticut), and 94720 (Berkeley, California). Greenblatt has spent a lot of time in each of these places. As it happens, so have I. And I can tell you that many and perhaps most of their residents are very modern in Greenblatts sense. They do in fact have Lucretius, Lennon, and even Lenin rattling around in their heads. They are not religious in any traditional sense. And they cannot understand how any really reasonable person can be religious in any traditional sense. For them, the antithesis of religion and modernity is an article of faith, part of their very sense of self. They cannot admit the way things actually are namely, that religion is part of modernity for to do so would be to admit that their Truth might not be the truth. Happily, they dont have to consider this scary possibility because they live among modern people who all believe in the Truth, that is, in 02138, 06520, and 94720. So how does Greenblatt do explaining How People Just Like Me Became Modern in My Peculiar Narrow Sense? Not very well. The story Greenblatt tells about the origins of modernity is not very original. In fact, it looks a lot like the one the Renaissance humanists told about themselves so many centuries ago. It
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goes like this. There were the Greeks and Romans. They were pagans, but they were also really smart and wrote all kinds of good things. Then there were the fanatical Christians. They received the Gospel, but they were really mean and suppressed most of the good things the Greeks and Romans had written. Then there were the daring humanists. They fought the evil clerics and recovered all the good stuff. Thus was Western Civilization re-born and the march to modernity begun. Now this is a fine tale, and part of it is even true. But its pathetically stilted. The Renaissance humanists and their followers had, well, an agenda. They wanted to investigate things Roman manuscripts, the orbits of the planets, the foundations of law that the many ecclesiastical authorities wanted left alone. First they argued that the Churchs rules on speculative endeavors might not apply to them because they were just good Christians in search of Gods truth. Think about Galileo. That tactic worked up to a point. But eventually they proposed that the Churchs rules on speculative endeavors should be changed so most of them wouldnt apply to anyone. Think about Locke. That, too, worked up to a point. And finally they said the Church did nothing but oppress ignorant people. Think about Marx and Greenblatt. What does this story of light triumphing over darkness miss? Primarily the role of the Church itself. According to Greenblatts tale, church hierarchs are almost always the bad guys. They destroy ancient texts, excommunicate wandering minds, and burn a lot of people at the stake. Indeed, they did all these things, as Greenblatts intellectual forebears the humanists,
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philosophes, free thinkers, radical socialists, and university professors groped toward the Truth found in Lucretius. But Christian leaders did a lot more, much of which contributed to the eventual formation of the mindset of the American Academic Archipelago. Most significantly, they actively adapted to changing intellectual circumstances and thereby helped create Greenblatts modern mindset. There can be no better example than Martin Luther. Luther was a very devout, totally God-fearing Augustinian monk. He was also a deadly serious thinker armed with a quiver full of humanist arrows. He knew as much as anyone about ancient, medieval scholastic, and modern philosophy. It was by reading this material that he arrived at a theological doctrine that would essentially open the door for modern science to flourish in much of Europe. Luther said that all knowledge is revealed by the senses and that the only knowledge of God that had been so revealed was the Scripture. The only way to know God, he proposed, is to know the actual words of God, that is the Holy Writ; empirical investigation of anything else was for the most part irrelevant from a religious point of view. This doctrine (sola scriptura) created a reasonably clear and very important distinction between theology and all the other disciplines: The former focuses on Scripture, while the latter focuses on man, the natural world, and the universe itself. Luthers doctrine spread until it was accepted in one form or another, implicitly or explicitly, by nearly every Christian faith, even the Catholic Church. Every scholar in 02138, 06520, and 94720 owes the Augustinian monk a debt of gratitude.

You wont read about any of this in The Swerve. Greenblatt mentions Luther in passing three times in over 300 pages. No, his attention is fixed on how Lucretiuss worldview was transmitted by the plucky humanists to later generations of modern thinkers. But even here he falls down. Greenblatt tells us that more than fifty 15th-century copies of On the Nature of Things exist. This, he says, is a startlingly large number. Maybe it is, maybe its not. How can we know when he gives us no point of comparison? He tells us that Once Gutenbergs clever technology was commercially established, printed editions [of Lucretius] quickly followed. He fails, however, to reveal exactly when On the Nature of Things was first printed or how many editions were produced over the next several hundred years. He tells us the book was translated, but he doesnt relate how often or into what languages. He mentions 30 people (I counted) in the 15th through 18th centuries who were purportedly touched by the book. Some owned it, some wrote about it, some seem to have knowledge of what was in it. Some are famous (Montaigne), some are not (Thomas Creech). If, after careful investigation, this is the only evidence Greenblatt could find of Lucretiuss influence, one has to wonder how he reached the conclusion that On the Nature of Things was crucial for the birth of modernity as he understands it. And lets be clear, thats what he says: A random fire, an act of vandalism, a decision to snuff out the last trace of views judged to by heretical, and the course of modernity would have been different. Had Greenblatt said this about the writings of Plato or Aristotle, he would have an arguable

point. But Lucretius? Poor, forgotten, neglected, and almost entirely unread Lucretius? I dont buy it. he folks at the prestigious National Book Awards, however, did buy it. They gave The Swerve the prize for the best nonfiction book of 2011. Bear in mind that thousands of serious nonfiction books are published each year. Many represent years of work by excellent writers, researchers, and scholars. Many are published by top-notch presses and win acclaim in peer-reviewed publications. I read a lot of them. And so I can tell you in all sincerity that many, many of them are better than The Swerve on almost any measure of quality you like. How, then, did The Swerve end up taking home the big prize? The answer has several parts. First, Greenblatts book was published by a big New York trade press. In each year from 2001 to 2011, the big New York houses managed to publish the best nonfiction book in the nation. Perhaps this remarkable run was just luck. Or perhaps the New York presses just publish the best books. Or perhaps the fact that the heads of big New York houses run the foundation that sponsors the National Book Awards has something to do with it. Im not at all sure. But one has to wonder why nobody else ever wins. Some university press in the hinterlands has to occasionally print a nonfiction book worthy of consideration, right? Or is it the case that any press can publish a book that wins a National Book Award as long as its a New York trade press? Second, Greenblatt is famous within the New York smart set. Most Americans, of course, have never heard
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of Greenblatt and never will. But if you are a member of the nation that reveres the New York Times, worships the New Yorker, and either lives or hopes to live in Manhattan (below 110th Street, of course), then you may just know who Greenblatt is and think hes a genius. In each year from 2001 to 2011, darlings of the New York intelligentsia like Greenblatt have managed to write the best nonfiction book in the nation. Again, this astounding winning streak could just be good fortune, an odd concentration of talent, or the fact that people in the New York smart set run the National Book Awards. I dont know. But why is it that authors from the provinces almost never win? Someone in flyover country has to be writing excellent nonfiction, right? Or is it the case that any author, anywhere, can win a National Book Award for nonfiction so long as they are in, around, or of New York? Finally, Greenblatt wrote a book that appealed to the judges. Who are they? Well, theyre the kind of people who win the National Book Award: people who were educated in the upper reaches of the Academic Archipelago (Harvard, Yale, etc.); who live in New York or someplace like 02138, 06520, and 94720; and who have received a certain notoriety by writing books that appeal to the New York smart set. The year The Swerve was covered in glory the judges were Alice Kaplan, Yunte Huang, Jill Lepore, and Barbara Savage. Kaplan teaches at Yale; Huang taught at Harvard before moving to Santa Barbara; Lepore heads the same Harvard program that Greenblatt used to run and she also writes for the New Yorker; Savage got her Ph.D. at Yale and now teaches at Penn. These are
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Greenblatts people. Theres a fair chance that he knew all of them before they crowned him with laurels. Whether he knew them or not, we can be sure that they are very modern in Greenblatts sense and therefore loved the underlying message of The Swerve: We the rational, left-leaning, traditional-religion-loathing humanists of the Academic Archipelago know the Truth about the universe, while they the superstitious, right-leaning, traditionally faithful do not. Apparently in order to win a National Book Award for nonfiction Im going to have to have to make a lot of changes. Ill need to move to New York, become a darling of the New York smart set, get a contract with a big New York publishing house, and write a book that says something the New York intelligentsia wants to hear, like there is no God, only stuff. I wouldnt mind doing the first three of these things: New York is nice, Id love the attention, and I need the money. Im not, however, going to do the fourth because I have given up on patronizing, knee-jerk, academic anticlericalism. I confess that kicking the habit was hard; I want to think Im smarter than the next guy as much as the next guy. But as concerns the most fundamental questions of human existence, Im not and neither is Stephen Greenblatt. I dont know whether there is a God or not. I do know, however, what stridently claiming there is no God has done over the past century or so. It has offended, alienated, and confused countless believers. It has created a huge gulf between intellectuals and the people they claim to serve. And, most significantly, it has fueled at least one fanatical political movement that

resulted in the oppression and murder of millions of completely innocent religious people. Thats a bad record. And what has been won in the hundred-year academic attack on religion? I imagine Greenblatt would say those who abandoned their faith gained liberation and the power to stare down what had once seemed so menacing. If thats what Greenblatt got, Im happy for him. But its very hard for me to understand how rejecting the idea of an all-loving God is going to bring freedom and comfort in the face of death to most folks. If atheism could work that magic, then people would be disavowing their religious traditions in droves. They arent, and the reason is clear: Even modern people need answers to lifes most basic questions and a community in which to consider them. If we werent questioning, social animals, perhaps we could get by in Lucretiuss meaningless, material universe. But we are questioning, social animals; our religious impulse is an evolved characteristic, like bipedalism or consciousness. And just as we can live without walking or even waking, we can live without spiritual beliefs. But, having lost these things, we generally dont do very well for very long. Eventually we want to walk and we want to wake, and eventually we want to understand why we are here and to believe that there is a special place for us in the universe. And once we do these things, we begin to do better. Religion is not, as Greenblatt and company claim, a passing phase out of which that humanity should and will grow. It is a part of human nature itself.

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