Policy Review - October & November 2011, No. 169

POLICYReview
October & November 2011, No. 169, $6.00
DEBT: THE SHAME OF CITIES AND STATES MORTON KELLER THE ACCOMMODATOR: OBAMAS FOREIGN POLICY COLIN DUECK RATIFYING WOMENS RIGHTS KAVITA N. RAMDAS & KATHLEEN KELLY JANUS CAN IRAN BE DETERRED? RON TIRA ALSO: ESSAYS AND REVIEWS BY AMY L. WAX, PETER H. SCHUCK, PETER BERKOWITZ, HENRIK BERING, DAVID R. HENDERSON
A P u b l i c a t i o n o f t h e H o ov e r I n s t i t u t i o n
stanford university
the hoover institution was established at Stanford

University in 1919 by Herbert Hoover, a member of Stanfords pioneer graduating class of 1895 and the thirty-first president of the United States. Since 1919 the Institution has evolved from a library and repository of documents to an active public policy research center. Simultaneously, the Institution has evolved into an internationally recognized library and archives housing tens of millions of books and documents relating to political, economic, and social change. The Hoover Institutions overarching purposes are: To collect the requisite sources of knowledge pertaining to economic, political, and social changes in societies at home and abroad, as well as to understand their causes and consequences To analyze the effects of government actions relating to public policy To generate, publish, and disseminate ideas that encourage positive policy formation using reasoned arguments and intellectual rigor, converting conceptual insights into practical initiatives judged to be beneficial to society To convey to the public, the media, lawmakers, and others an understanding of important public policy issues and to promote vigorous dialogue Ideas have consequences, and a free flow of competing ideas leads to an evolution of policy adoptions and associated consequences affecting the well-being of a free society. The Hoover Institution endeavors to be a prominent contributor of ideas having positive consequences. In the words of President Hoover: This Institution supports the Constitution of the United States, its Bill of Rights, and its method of representative government. Both our social and economic systems are based on private enterprise from which springs initiative and ingenuity. . . . The Federal Government should undertake no governmental, social or economic action, except where local government, or the people, cannot undertake it for themselves. . . . The overall mission of this Institution is . . . to recall the voice of experience against the making of war, and . . . to recall mans endeavors to make and preserve peace, and to sustain for America the safeguards of the American way of life. . . . The Institution itself must constantly and dynamically point the road to peace, to personal freedom, and to the safeguards of the American system.
POLICY Review
O CTOBER & N OVEMBER 2011, No. 169
Features
3 DEBT: THE SHAME OF CITIES AND STATES Can they reject their long history of fiscal irresponsibility? Morton Keller 13 THE ACCOMMODATOR: OBAMAS FOREIGN POLICY Conceding much up front, garnering little in return Colin Dueck 29 RATIFYING WOMENS RIGHTS Why the U.S. should endorse cedaw Kavita N. Ramdas & Kathleen Kelly Janus 39 CAN IRAN BE DETERRED? On nukes, the theory is not reassuring Ron Tira 49 INCOME INTEGRATION AT SCHOOL An unwise policy of social engineering Amy L. Wax 63 POLICYMAKERS IN THE DOCK The wisdom of protecting public officials from liability Peter H. Schuck
Books
79 RELIGION IN AMERICA Peter Berkowitz on American Grace: How Religion Divides and Unites Us by Robert D. Putnam and David E. Campbell, with the assistance of Shaylyn Romney Garrett 85 THE CONGO NIGHTMARE Henrik Bering on Dancing in the Glory of Monsters: The Collapse of the Congo and the Great War of Africa by Jason K. Stearns 91 THE ROARING THIRTIES David R. Henderson on A Great Leap Forward: 1930s Depression and U.S. Economic Growth by Alexander J. Field
A P u b l i c a t i o n o f t h e H o ov e r I n s t i t u t i o n
stanford university
POLI CY Review
O c t o b e r & N ov e m b e r 2 0 1 1 , N o . 1 6 9
Editor Tod Lindberg

Research Fellow, Hoover Institution
Consulting Editor Mary Eberstadt

Managing Editor Liam Julian

Office Manager Sharon Ragland
Policy Review (issn 0146-5945) is published bimonthly by the Hoover Institution, Stanford University. For more information, write: The Hoover Institution, Stanford University, Stanford ca 94305-6010. Or visit www.hoover.org. Periodicals postage paid at Washington dc and additional mailing offices. POSTMASTER: Send address changes to Policy Review, Subscription Fulfillment, P.O. Box 3 7 0 0 5 , Chicago, il 6 0 6 3 7 - 0 0 0 5 . The opinions expressed in Policy Review are those of the authors and do not necessarily reflect the views of the Hoover Institution, Stanford University, or their supporters. E d i t o r i a l a n d b u s i n e s s o f f i c e s : Policy Review, 21 Dupont Circle n w , Suite 310, Washington, d c 20036. Telephone: 202-466-3121. Email: polrev@hoover.stanford.edu. Website: www.policyreview.org. Subscription information: For new orders, call or write the subscriptions department at Policy Review, Subscription Fulfillment, P.O. Box 37005, Chicago, il 60637. Order by phone Monday through Friday, 8 a.m. to 5 p.m. Central Time, by calling (773) 753-3347, or toll-free in the U.S. and Canada by calling (877) 705-1878. For questions about existing orders please call 1-800935-2882. Single back issues may be purchased at the cover price of $6 by calling 1-800-935-2882. Subscription rates: $36 per year. Add $10 per year for foreign delivery. Copyright 2011 by the Board of Trustees of the Leland Stanford Junior University.
Debt: The Shame of Cities and States

By Morton Keller
century ago, americas states and cities faced a crisis in government. A number of commonwealths California, New York, New Jersey, Wisconsin, and Illinois conspicuous among them as well as cities across the land labored under the heavy weight of costly and corrupt misrule. This state of affairs was generally blamed on an unholy triple alliance of large corporations (the trusts) and other business interests, party bosses and machines, and compliant legislators and officials. Lincoln Steffens, the most prominent muckraking journalist of the day, scathingly described the results in influential magazine articles, gathered together in his 1906 books The Shame of the Cities and The Struggle for Self-Government. Since then the clock of time has completed a circuit of 100 years and more, and the nations states and municipalities again face a crisis in government. A number of commonwealths yes, California, New York, New Jersey, Wisconsin, and Illinois still conspicuous among them as well as a number of counties and cities, labor under a heavy weight of debt, deficits, and future obligations. This state of affairs is generally blamed on an Iron
Morton Keller is Spector Professor of History emeritus at Brandeis University, and chairs Hoovers Working Group on Critical Junctures in Government and Politics. His most recent book is The Unbearable Heaviness of Government: The Obama Administration in Historical Perspective (Hoover Press, 2010).
October & November 2011 3 Policy Review
Morton Keller
Triangle of public employee unions, compliant governors and legislators, and a complaisant electorate. The current crisis is the product not of contracts, graft, and patronage the mothers milk of early-20th-century state and local politics but of sweetheart salary, pension, and health insurance deals secured by public employee unions: the mothers milk of early-21st-century politics. The parlous state of American state and local government circa 1900 may properly be seen as a consequence of the in many other respects admirable rise of a democratic party politics over the course of the preceding century. The fiscal-deficit crisis of the past several years may properly be seen as a consequence of the in many other respects admirable rise of the welfare state. Progressivism, the movement that rose in reaction to state and local malfeasance a century or so ago, was defined by the dictates of party politics; the clash of social, ideological, and economic interest groups; and the federalism of American government. It both reflected and reinforced the growing legitimacy of the administrative and social welfare state, and a rising discontent with boss-machine-party politics. There are signs that a reaction is taking shape comparable in its scale and impact to progressivism but this time aimed at the excesses rather than the insufficiencies of American government. A hundred years ago a generation of governors undertook (with varying degrees of intensity) to combat the unsavory corporate-political machine combines of their time. Among the more conspicuous were Republicans Robert La Follette in Wisconsin, Hiram Johnson in California, Theodore Roosevelt and Charles Evans Hughes in New York, and Democratic Woodrow Wilson in New Jersey. Their counterparts today focus, with varying degrees of intensity, on the fiscal consequences of overgenerous pension and health care arrangements for public employees. Among them: Republicans Scott Walker in Wisconsin, Chris Christie in New Jersey, and Mitch Daniels in Indiana, and Democrats Jerry Brown in California and Andrew Cuomo in New York. Insofar as they see themselves engaged in an effort to change policies that stem from an abuse of government power and threaten the well-being of the polity, they are very much the descendants of their counterparts a century and more ago. They are contesting the spend-and-tax conventional wisdom of past decades, much as their progressive equivalents took on the reigning assumptions of Gilded Age machine politics.
The crisis
he core problem is the massive, rapidly growing fiscal burden of current debt and future obligations spawned by public employee pensions and health care. It has become a touchstone public issue. In June 2 0 1 1 , the Hoover Institutions David Brady and Michael McConnell convened a State and Municipal Fiscal Default Workshop,
4 Policy Review

designed to subject the crisis to concentrated, expert examination. Participants included leading bankruptcy and contract law-school professors, political scientists and historians, and a number of professionals who manage state and local government finance. The crisis stems from the rise of pension and health care provisions for public employees. In the past, these were commonly seen as fringe benefits. Today they are most often regarded as entitlements. There is a wealth of political and governmental meaning in that verbal shift. The United States was long notable for its failure to provide such benefits for employees of any sort, private or public. They were more common in Europe, the product of old feudal and new socialist influence. As in so much modern American history, the Great Depression and the Second World War was the great divide. The debt Widespread private-pension and health care covercrisis stems age came with the war. In the decades after 1945, these provisions grew from inexpensive fringe benefrom the rise fits to ever more costly entitlements in the public as of pension and well as the private sector. Out of this emerged the present crisis. health care Social Security required the pension recipient, the provisions for employer, and the state to contribute to what was defined as a form of paid-for insurance: and hence a public vested interest. Wartime wage freezes, tax breaks, employees. and the need to woo scarce workers spurred companies to make entitlements part of their employment contracts, and postwar growth and prosperity, favorable tax breaks, and powerful unions turned them into normal components of employment. But private sector unions steadily shrank in size and clout during the late 20th century. By the early 2000s, only about eight percent of the private workforce was unionized. When, in the 1980s, the prevailing defined benefit pension plans began to pose a fiduciary threat, firms began to switch to defined contribution plans. The change was helped along by the creation of 401(k) pension plans, the decline of private employee unions, increasing employee mobility, and a mutual fund industry that has been called the sales force of the defined contribution revolution. And when the cost of health care rose steeply with the introduction of Medicare/Medicaid, government bore the brunt of the increase. The public sector was another story. State and local public employee unions won collective bargaining rights in the late 1950s and early 1960s. As their membership grew to 40 percent of the public workforce, so did their political clout. Public sector union leaders, much like party bosses in an earlier time, secured benefits for their constituents and thus added to their political power. The result was a coral-like growth of ever-sweeter employment, health care, and pension provisions, extracted from acquiescent governors and legOctober & November 2011 5
Morton Keller
islators in return for financial support and union members helping in elections. Some 88 percent of public sector workers still had defined benefit pensions in the first decade of the 21st century, compared to about eighteen percent in the private sector. By 2008 there was an estimated $3.35 trillion gap between the states resources and their pension and health care commitments. Many towns, cities, and school districts were committed to wages and benefits consuming 70 to 80 percent of their budgets. The complexity of the system, along with popular and media disinterest, contributed to the growing overhang. Then the financial collapse of late 2008 and the consequent recession turned a future threat into a current crisis.
The response
s with any major issue in American life, the politys response to the fiscal crisis takes a variety of forms: legal, governmental, political. The Hoover workshop focused on the default-bankruptcy option: so far, more potential than pervasive. The relevance of default and its close relation to bankruptcy are heightened by the rampant growth of current debt and future obligations, and by the specter of sovereign default looming over several European nations. One of the workshops concerns was the legal status of default. Our progressive predecessors had to deal with the then-prevailing view of the Constitution as a check on the active state and a safeguard of the sanctity of contract. A strikingly similar condition exists today, and poses a question: How to deal with the contractual and other safeguards that encase public employee pension and health care entitlements? These guarantees can claim a high degree of legal sanctity. But there is little in American law, and life, that is immune to challenge, as the dismantling of legalized racial discrimination so vividly demonstrated. Finley Peter Dunnes progressive-era comic character Mr. Dooley observed that what looks like a stone wall to the ordinary man is an arch to the lawyer. In Home Building & Loan Association v. Blaisdell (1934), the Supreme Court, with an opinion written by the far-from-radical Chief Justice Charles Evans Hughes, upheld a state law that delayed the enforcement of home and farm foreclosures. The Great Depression was the setting for this blow to the sanctity of contract and boost to the police power of the states, and conservatives then and since have criticized the decision. But they seem ready now to accept comparable fixes to the growing state and local fiscal crisis. The states police power to assure the health, safety, and welfare of the people fits more readily into the present tenor of constitutional law than does a strict interpretation of the sanctity of contract. How to prevent default and bankruptcy figured more largely in the workshop than did their potential consequences. This reflected the historical reality that default (to say nothing of bankruptcy) by states or municipalities is a
6 Policy Review

Black Swan in the annals of American public finance: notable when it happens because it happens so rarely. The only conspicuous outbreak of state default (there is no instance of state bankruptcy) came in the 1840s, when eight commonwealths and a territory chose not to pay the interest or principal on their canal and railroad bonds. The consequence of this action was minimized by several factors. The bondholders were overwhelmingly foreign, and primarily British, which hardly added to the unpopularity of the states action. The Eleventh Amendment prevented foreign bondholders from suing for recovery in the federal courts. And most of the defaulting states eventually met their obligations. Nevertheless the states have been notably reluctant to have recourse to default. Why? However The relevance of temporary, there are likely costs in the form of more default and its difficult, and more expensive, access to the credit market. Modern state indebtedness is much more close relation to likely to include a substantial in-state creditor base, bankruptcy are with consequent political pressure to avoid default. And a vastly expanded, and more activist, national heightened by the government suggests that the prospect of bailout rampant growth from above is commensurately greater. While state default has not recurred since the of debt and future 1840s, default by cities and thousands of other obligations. minor civil divisions is not infrequent. During the Great Depression more than 2,000 towns, counties, and cities went into default. More than fifty counties fell in arrears on debt retirement in the 1980s and 1990s. And the current perfect storm of a depressed economy and rising government obligations makes default a clear and present danger. Yet the prevailing view of the Hoover workshop participants was that the threat of default, like the threat of bankruptcy, had its chief value in its sobering impact on the interested parties: unions, employees, officials, voters. Bankruptcy has long been a familiar feature in American commercial law. Congress passed a series of short-lived laws in the 19th century, in response to economic downturns. A more permanent federal law of bankruptcy came into being in 1898. In accord with the widespread national belief in the social utility of encouraging a new start after a setback, modern American bankruptcy law, more than in other nations, favors debtor survival and restoration over creditor recovery. The widespread assumption was that the Eleventh Amendment, which prohibits suits against a state by citizens of different commonwealths, made state bankruptcy a constitutional nonstarter. But the Depression, and the default of so many lesser civil divisions, induced Congress to add Chapter 9, which enabled local governments to declare insolvency, to the bankruptcy code. The Supreme Court at first found this to be beyond the
October & November 2011 7
Morton Keller
constitutional pale. In its late New Deal reincarnation as an enabler of rather than an obstacle to active government, it accepted a revised version of the law. But municipal bankruptcy has been a rarely adopted way out of fiscal crisis since the Depression. In 1991, a federal court held that Bridgeport, Connecticut, had not sufficiently demonstrated its insolvency, and rejected the citys bankruptcy filing. The recent bankruptcy of Vallejo, California, is notable for its uniqueness. Rob Stout, that citys financial director at the time, reported to the workshop on his experience. Its cost ($11 million in lawyers fees alone) was not trivial, nor was the length and difficulty of the negotiations to secure the consent of the unions and other interested parties. Still, Stout thought it beneficial in makWould state ing the parties more amenable to compromise. bankruptcy Advocates of state bankruptcy fasten on this advantage, and question the widely held belief that today turn out it is unconstitutional. Federalism is not a zero-sum to be an effective game, as the debate over jurisdiction in the realms of immigration and marriage demonstrate. Penn Law way of getting Professor and Hoover workshop participant David the parties Skeel is a prominent advocate of state bankruptcy, to take up and the idea has won the support of politicians Jeb Bush and Newt Gingrich. compromise? The most germane historical analogue involves corporate, not personal, insolvency. This was the outburst of railroad receiverships in the late 19th century. A sixth of the nations railroad mileage was in receivership in 1893. The federal judges overseeing the process turned out to be not taskmasters, but benign collaborators to the stricken lines. Court-appointed receivers almost always came from the previous management, however culpable it may have been. And when railroad unions threatened to strike, the federal judges crafted a new and effective form of labor injunction. Would state bankruptcy today turn out to be an effective way of getting the parties public employee unions and their members, politicians, taxpayers to give up deadlock and take up compromise? Would these judges, thrust into the sensitive role of deciding on matters of state taxation, borrowing, and spending, stir up fresh torrents of political and ideological controversy? Or would the overseeing (often elected) state judges, with their own pensions to worry about, serve the interests of their political bedfellows? And what would be the effect of a states bankruptcy on bond markets and the cost of its ensuing debt? The historical record (such as it is) is not encouraging. Railroad receiverships provided rich fodder to populist and progressive critics. There is small reason to think that state bankruptcy today would have a less politically destabilizing effect.
8 Policy Review

There is a record of other ways of dealing with a budgetary-fiscal crisis. Ours is, after all, a political culture in which the desire to constrain government is as deeply embedded as the readiness to savor the goodies it can provide. Sinking funds in the 19th century were designed to limits the states spending capacity. State financial control boards that oversee (and check) the expenditure of municipalities might be more widely applied. Off-budget enterprises can be a way of obscuring a states budgetary obligations. The states police power can as readily be used to justify budgetary cutbacks as to justify budgetary largesse. But as the workshop discussion wore on, it appeared that the implicit, and increasingly the explicit, bottom line was that the current crisis and its resolution fit into the classic setting of American public issues: That is, resolution lay primarily in the interplay of politics and public policy.
The Madisonian moment
he most relevant framework of the political dimension of the fiscal-budgetary crisis was provided by Founder James Madison: That public policy was best served by a broad rather than a narrow spectrum of competing interests; and that political compromises emerging from the interplay of interests and the facts on the ground was the best route to a viable resolution. How well does the state-municipality fiscal crisis fit this framework? Surely the multitude-of-interests condition is very much present, and growing. Consider this list (far from exhaustive) of interests currently at play: States versus states: e.g., Indiana and Wisconsin wooing employers from tax-upping Illinois; Arizona, Nevada, and Utah doing the same to California. States versus municipalities: the recent Massachusetts Senate vote to curtail the collective bargaining power of public employee unions was due in part to the concern of legislators that the cities and towns they represented would pay for pensions and health care with teacher, police, and fireman jobs. Employees versus retirees: the potential conflict between resources aimed at Medicare/Medicaid and resources aimed at salaries and pensions. Private versus public workers: widespread and growing resentment by workers in the private sector, whose pensions tend to be based on the less fruitful defined contribution system, of those in the public sector, whose pensions consist overwhelmingly of the more favorable defined benefits system. This advantage is compounded by smaller or no public
October & November 2011
Morton Keller
employee contributions compared to their private counterparts, sweetheart arrangements such as topping-up the final years salary on which the defined benefit pension often is based, and in some cases risibly early retirement ages. Tension between the pension-holding upper half of the population and the nonpensioned lower half. Taxation versus economic growth: conflict between those in the public sector and their liberal supporters, who seek the greater social welfare that relies on greater tax revenue, and those in the private sector and their business-conservative supporters, who seek the economic growth that derives from a more favorable (lower-taxed) state environment. Short-term versus long-term agendas: e.g., political incumbents enamored of the benefits that the immediate distribution of benefits can bring to them, versus challengers attracted by the negative electoral effect of reduced spending on those incumbents; or the claims of current job-and-pension holders against those still on the ladder, or seeking to get on it. Intrastate strife: teachers, policemen, firemen, and other public employees jousting over fixed or declining expenditure. This Madisonian play of interests is unfolding in a variety of states and their idiosyncratic political cultures. Illinois and Connecticut have been inclined to tackle their fiscal problems by favoring revenue enhancement (higher taxes) over supply-side management (cutting entitlements). At the beginning of 2011, Illinois Democratic Governor Pat Quinn faced a $13 billion deficit, half as large as the general fund budget. With a solidly Democratic legislature behind him, he secured a set of fixes that ranged from heavy borrowing to more casinos, and most notably a 75 percent increase in the state income tax, from 3 percent to 5.25 percent. This was followed by a budget for the new fiscal year that reduced state expenditures by a far-from-urgency-driven 1.5 percent. The distance in time to the next election, and the fact that departing Democratic members could vote for new taxes without political cost, help explain this unusual outcome, achieved just before a new, less-Democraticdominated legislature took office. But the game is far from over. The systemic sources of the states financial hole unsustainable pension and health care commitments, a still-struggling state economy are very much present. And there is tension between Governor Quinn and House Speaker and Illinois State Party Chair Michael J. Madigan, who is arguably the most powerful Democrat in the state and is inclined to appeal to the growing public sense that cuts in spending are inescapable. Connecticuts Democratic governor conjoined tax increases with substantial spending cuts and state employee union concessions on benefit cuts. But
10 Policy Review

while a majority of the states workers approved, there was enough opposition from the unions (most notably afscme) to scotch the deal. As of midsummer, attempts to patch up a compromise continued. The governor threatened large-scale layoffs, the unions hung tough. But the political class remained hopeful: I just see theres a deal there. Theres got to be a deal there, the speaker of the House plaintively observed. Other Democratic states march to different drummers. Andrew Cuomo of New York and Jerry Brown of California are sons of former governors, and ran similar campaigns in which their awareness of their states financial troubles and a readiness to take on public employees entitlements were front and center. Yet differences between their states political cultures and their political personalities have so far rendered different results. The California story, which figured prominently in the Hoover workshop, has captured national attention. This is due to its size and importance. If any state can be said to be modern America writ small, this is it. Illinois is the most prominent example of a state still under the sway of the old Democratic machine politics; California is least subject to that traditional template. Its politics is highly personal, driven by the media, television, and advocacy groups. Its politics is strongly influenced by those classic progressive-era instruments of direct democracy (tempered by special interests and big money): the initiative, the referendum, and the occasional recall. In essence, Californias fiscal crisis is much like those of other states: a hard-to-support burden of pension, health care, and other commitments to public employees, combined with a strong popular resistance to revenue enhancement. Current Governor Jerry Brown, in the course of his long political career no slouch at embodying conflicting popular positions, has responded to the fiscal crisis with a mix of budgetary belt-tightening and taxation bucket-dipping. He hoped to deal with half the shortfall by budget cuts, and half by a five-year extension of a cluster of supposedly temporary taxes currently on the books. The legislatures response was a budget bill that Brown found inadequate, and he vetoed it. That action won a round of applause from the far from Democratic-leaning Hoover workshop participants. But soon after he changed his mind, and agreed to a budget replete with the short-term stop-gaps and without the tax extensions to which he had committed himself. Cuomo, meanwhile, came up with a balanced budget that had few gimmicks and no new taxes. Brown was unable to get needed Republican support for his initial program. Cuomo, in a state with more of the old, traditional politics, got the gop support he needed. The Wall Street Journal summed it up: Cuomo Is Sailing and Brown Becalmed. There are a number of other differentiating factors. Californias deficit as a percentage of the budget is larger than New Yorks; the rise and fall in its revenue intake is greater. And environmentalism has a much more conspicuous place in the Golden State than the Empire State. The bottom line is that the endless variety of political culture, economic situation, and leadership
Morton Keller
capacity makes for varying responses to the same systemic problem: deficits born of entitlement commitments that exceed revenue capacity. There is a third category to be considered: Republican-led states. Mitch Daniels in Indiana, Chris Christie in New Jersey, Scott Walker in Wisconsin, and John Kasich in Ohio have pushed similar agendas of deficit reduction, constraints on public employee unions, and resistance to business-discouraging tax hikes. Again, their political fortunes have varied, depending on a complex mix of each states political culture and the governors political skills and opportunities. Daniels and Christie have been the most successful, Walker the most beleaguered, Kasich somewhere in between. A critical mass of willing student cannon fodder, union stridency, and a state tradition of political progressivism is by far the strongest in Wisconsin; less so in Ohio; least so in Indiana and New Jersey. New Jersey, like New York, has strong local political leaders, who have backed Cuomo and Christie in fighting rising labor costs. Indeed, Cuomo has spoken of Christies policies as a model.
The future: Does it work?

uckraker lincoln steffens famously reported after a 1921 visit to the Soviet Union: I have been over into the future, and it works. What about the future of the fiscal/budgetary crisis engulfing so many of Americas states and cities? Will they be able to cope? If so, how? Or to put it another way: As units of government, do they still work? One thing seems clear: None of the devices previously employed to contain state and local debt default and bankruptcy (the major topics of the Hoover workshop), sinking funds, review boards, off-budget enterprises, judicial loosening of contract sanctity offer the hope of a solution. Some or all might be useful; none is a panacea, or likely to be widely adopted. The answer if answer there be appears, instead, to reside in the hoariest of American political realities: the Madisonian play of interests, the political equivalent of Adam Smiths vision of social good emerging from the pursuit of private gain. And there is the no less venerable tradition of American federalism. The idea that states (and, by implication, municipalities) can, through the fecundity of their differing political cultures and socioeconomic conditions, act as the laboratories of democracy that Justice Brandeis said they were, is alive and well. Already they are showing considerable adaptability, in contrast to the rigidities of the response of the president and Congress to the national fiscal crisis. And one advantage of Madisonian politics is that time usually works for rather than against a resolution. Is this a form of policymaking at odds with the strongly national, highly ideological governing model so favored nowadays by advocacy groups and the media? One can only hope so.
12 Policy Review
The Accommodator: Obamas Foreign Policy

By Colin Dueck
l m o s t t h r e e y e a r s into his administration, observers continue to debate the nature of President Obamas overall foreign policy approach. What is the Obama doctrine? Some say it is a policy of international engagement. Some point to Libya, and suggest that the Obama doctrine is one of humanitarian intervention multilaterally and at minimal cost. Some look to todays fiscal constraints and say that it is all about insolvency. Some describe the Obama doctrine as a version of traditional great power realism, coming after the crusading idealism of the Bush years. Others respond that Obama has no foreign policy strategy at all that he is simply making it up as he goes along. Each interpretation has a certain kernel of truth, but each is also seriously flawed and incomplete. Barack Obama does in fact have an overarching foreign policy strategy, going back several years in spite of recent upheavals, but its basic organizing principle is neither engagement, nor intervention, nor insolvency, nor realism per se. The centerpiece of Obamas overall forColin Dueck is associate professor at the Department of Public and International Affairs, George Mason University, and the author of Hard Line: The Republican Party and U.S. Foreign Policy since World War II (Princeton, 2010).
Colin Dueck
eign policy strategy is the concept of accommodation. Specifically, the president believes that international rivalries can be accommodated by American example and by his own integrative personal leadership. The problem is not that Obama has no grand strategy. The problem is that it is not working.
Obamas grand strategy

ny grand strategy or overall foreign policy strategy does several things. First, it specifies certain national goals or ends. Second, it identifies the policy instruments or means by which national goals will be pursued. These instruments might include, for example, diplomatic commitments, military intervention, foreign aid, and/or economic sanctions. Any viable strategy must ensure that means and ends are well matched. Commitments must not exceed capabilities. Yet strategy unlike say, sculpture also recognizes that our targets are animate objects, with the ability to respond, make choices, and fight back. Consequently, effective foreign policy strategists must and do strike a fine balance. On the one hand, they need to know what they want. On the other, they must be flexible as to how exactly they pursue it, given the inevitable surprises resulting from pushback by other actors within the international system. The primary ends and means of Obamas foreign policy strategy can be inferred from both his actions and his words, which have been broadly consistent since his election to the White House. To begin, his chief policy interest is not in the international realm at all, but in the domestic. Obamas leading motivation for becoming president, as he himself has said, was not simply to get elected, much less to focus on foreign affairs, but to remake America. He aims at and has already achieved dramatic liberal or progressive reforms in numerous domestic policy areas such as health care and financial regulation. This focus on liberal domestic reform has several implications for American grand strategy, as Obama well knows. First, it means that resources must be shifted in relative terms from national security spending to domestic social and economic spending a shift clearly visible in recent federal budgets. Second, it means steering clear of partisan political fights over national security that might detract from Obamas overall political capital. Third, it means that potentially costly new international entanglements must for the most part be avoided. Sometimes these three imperatives are in tension with one another. For example, in the autumn of 2009, Obama was tempted to begin winding down Americas military engagement in Afghanistan, yet at the same time wanted to avoid appearing weak on terrorism. So he settled on an approach that called for temporary U.S. escalation in Afghanistan, resolved by subsequent disengagement beginning in July 2011. That approach was hardly optimal militarily, but it was the least bad policy for Obama in domestic political terms given his overarching priori14 Policy Review

ties. As with some previous presidents, such as Richard Nixon, an overall shift toward American strategic retrenchment is masked by temporary or short-term military escalations. So it is with Obama. The current presidents central reason for international retrenchment, however, is not really Americas economic insolvency per se, since he has actually added to that insolvency in dramatic fashion, but rather the concern that foreign commitments and national security disputes might detract money, time, and attention from his very ambitious domestic reform agenda. Again, the main implication of such concerns in Obamas case is an overall emphasis on international and military retrenchment, although one tempered by the desire to pre-empt domestic criticism from foreign policy hawks. The domestic political arguments for international retrenchment are matched and supplemented, in The primary ends Obamas mind, by a genuine philosophical case for a and means of more accommodating American stance abroad. By all appearances Obama sincerely believes, and has Obamas foreign certainly said repeatedly over the years, that the policy strategy United States should be more accommodating can be inferred toward potential adversaries and rivals overseas accommodating of their interests, their perspectives, from both his and their wishes. The reason is that through accomactions and his modation, these potential rivals can be turned, if not into friends, then at least into something other than words. adversaries. At least this is what Obama believes. He can certainly be cold-blooded when making short-term or tactical calculations in relation to clear, existing U.S. enemies. After all, this is a president who hunted down Osama Bin Laden, and has escalated the use of unmanned drone strikes basically targeted killings against suspected terrorists in Pakistan. So there are clearly certain international or transnational actors who in Obamas view are irreconcilable to core American values and interests. But this category is very small, and it never seems to rise to the level of state actors. The assumption appears to be that virtually any nation-state can be successfully engaged, regardless of regime type. Even the Taliban, we are told by numerous administration officials, is chock full of people who can be peeled off through diplomatic negotiation and accommodated to American designs if only we have the courage to try. This faith in the endless possibilities of diplomatic engagement reflects a deeper conviction on the part of the president and his supporters. At heart, Obama does not really believe that conflict is at the essence of world politics. On the contrary, he believes that genuine and overarching international cooperation is possible, if apparent adversaries can learn to listen to and accommodate one another. Moreover he has a very specific and characteristic formula for promoting such cooperation a style he seems to have first fully developed as a community organizer in Chicago. It is not through traditional American and classical liberal mechanisms such as the bold promoOctober & November 2011 15
Colin Dueck
tion of democracy or economic interdependence overseas. Rather, it is through the mutual accommodation of interests, led by American example. What this means is that in the case of partially adversarial or even hostile relationships with other countries, the United States under Obama reaches out and makes some initial concession or accommodation, in the expectation of reciprocal concession. In such cases, American leadership or leading by example means essentially taking the lead in making concessions. Similarly, in the case of friendly or allied relationships, the United States under Obama frequently proposes multiple new regimens or collective concessions sometimes on the part of democratic allies, sometimes on the part of the U.S. in order to catalyze broad processes of international accommodation on specific issue areas such as arms control, counterterrorism, or climate change. Either Obamas way, the expectation is one of progressive agreeassumption ment, reduced conflict, and increased cooperation internationally, based upon mutual accommodation, appears to be and sparked by American example. And insofar as that virtually any the president views Americas world power as being nation-state can in relative and perhaps inevitable decline, that only reinforces the argument for an accommodationist be successfully approach overseas. engaged, The regional and practical implications of this strategy of accommodation have been clear and regardless of quite deliberate since Obama entered the White regime type. House. On the issue of climate change, the U.S. went into the Copenhagen conference of December 2009 offering to make significant cuts in American carbon emissions, in the hope that this position would trigger similar concessions from other leading industrial powers such as China. On the issue of nuclear arms control, the Obama administration offered an even more striking set of accommodationist proposals: The U.S. would work toward the ratification of a comprehensive nuclear test ban treaty, negotiate a new Strategic Arms Reduction Treaty (start) with Russia, and even embrace the goal of nuclear zero, or the eventual abolition of nuclear weapons worldwide, in the hopes of triggering similar efforts toward nuclear disarmament in cases such as North Korea and Iran. Obama understood that there were certain trade-offs with such an approach, and he was willing to make them. For example, if the top American priority in relation to Iran was to negotiate the termination of that countrys illicit nuclear weapons program, then concerns regarding democracy promotion inside Iran could not be allowed to trump efforts toward a negotiated settlement with the existing regime. Similarly, if a top American priority in relation to Russia was to secure Moscows help on nuclear nonproliferation, then Obama would hold off on antagonizing Moscow over other issues such as Georgia, missile defense, or human rights within Russia.
16 Policy Review

On the issue of terrorism, Obama has made clear his expectation that a series of significant American and allied gestures would help to ease transnational counterterror efforts, while undercutting support within the Muslim world for violent extremist groups like al Qaeda. The U.S. would withdraw militarily from Iraq; end torture; close detention facilities at Guantanamo Bay; engage in public outreach toward Muslims worldwide; and press for a peace agreement between Israel and the Palestinians, on the assumption that such measures in combination help to undercut anti-American sentiments internationally. In the case of Israel, it was not so much the United States but the Israelis themselves who were expected to help kick-start peace negotiations by imposing a freeze on the construction of new Jewish settlements in the West Bank and Jerusalem. To be sure, Obama has simultaneously authorized The regional some aggressive counterterrorism efforts such as the and practical 20092010 escalation in Afghanistan, the tracking implications of Bin Laden, and increased drone strikes overseas. But the overall tone, compared to that of the Bush of Obamas administration, has been more accommodating toward international criticism of U.S. counterterror accommodation practices. Indeed Obama made it abundantly clear, strategy have especially when first running for president in been clear and 200708, that he agreed with much of this international criticism, and viewed the Bush administration deliberate. itself as a major source of American foreign policy problems. On the issue of counterterrorism, as on others, Obama stated repeatedly that the United States lost much of its international reputation and moral standing under George W. Bush, and that a different set of policies as well as a different leader could regain that standing and reputation with a more conciliatory approach. Obama himself would be especially well-suited to this role, his supporters suggested, not only because of his status as the first African American president, but because of his international background, his charisma, and his proven ability to bring people together across cultural, ethnic, and political divides. There is little doubt that Obama shares this ambitious view of his own personal possibilities as a history-making figure. This leads us to one final, striking feature of Obamas overall foreign policy strategy as it relates to questions of process and procedure. Obama understands that when it comes to foreign policy, the presidents role is absolutely crucial. Presidents play the leading role in shaping overall U.S. foreign policy choices and priorities whether they want to or not. Inevitably, these choices and priorities involve domestic political and policy tradeoffs. Obama is therefore determined to keep the central foreign policy decisions in his own hands, and to make them with care. To say that he prides himself on his analytical and decision-making capabilities would be an understatement. He has tremendous confidence in his ability to personally dissect,
Colin Dueck
articulate, and manage various stages of the foreign policy process. He does not really believe that he needs one or more big-picture foreign policy strategists in the room when he is making the crucial decisions. He is determined to play that role himself. Under this system, Secretary of State Clinton is the public face of American diplomacy, a role she plays well, but she does not appear to be at the true center of decision-making on multiple issues Obama deems vital. Robert Gates was exceptionally effective as secretary of defense, and predominated within his bailiwick, but he did so in part by recognizing Obamas overall policy goals. His successor Leon Panetta will no doubt grant Obama at least as much deference. The presidents first national security advisor, James Jones, was neither suited nor permitted to play the role of coordinator and honest broker between various agencies and departments. Joness successor, Thomas Donilon, was brought in to help organize and rationalize the foreign policy process, precisely because he is sensitive to the presidents political needs, and not because he is expected to play the role of grand strategist. Obama is his own grand strategist, and whatever tactical adjustments he makes on either process or substance, he is not about to relinquish that role. To sum up, despite widespread criticisms to the contrary, Obama does have an overarching foreign policy strategy, one which predates the Arab Spring and has outlasted it. This strategy simply does not fit neatly into the usual categories by which the subject traditionally operates. Obama speaks sincerely of the need for peaceful settlement of disputes abroad, but he hunts down Bin Laden and escalates militarily in Afghanistan and Pakistan. He is unsentimental about bargaining with hardened autocrats, but he expects patterns of international cooperation to spiral upward as a result of U.S. diplomatic outreach. Consequently he is not easily categorized as a realist or an idealist, a hawk or a dove, because he has points of similarity and points of disagreement with each school of thought. And to say that he is an internationalist, as opposed to an isolationist, is true as far as it goes, but still presents the question: Exactly what sort of internationalist? The answer is, one who believes in expanding possibilities for mutual accommodation between nation-states, sparked by American example, and in the potentially integrative qualities of his own personal leadership on the world stage all of which is intended not only to encourage international cooperation, but above all to permit a refocusing on progressive domestic reforms within the United States.
The failure of accommodation
t has now been almost three years since Obama entered the White House plenty of time to assess the effectiveness of his foreign policy strategy. And it must be said that in important respects his strate18 Policy Review

gy of accommodation has failed. Obamas personal leadership has not really altered the basic dynamics of leading international or transnational conflicts and disputes. Nor have American outreach, accommodation, and diplomatic concessions triggered significantly greater international cooperation on issues such as nonproliferation. To some extent, of course, Obama has been constrained in the implementation of his strategy by domestic political criticism or pushback on many of these issues. Yet the failures appear to involve international pushback as well. On climate change, for example, the administration went into the 2009 Copenhagen conference offering significant reductions in U.S. carbon emissions. Chinas response was essentially a refusal to make any comparable reductions in absolute terms, and the conference achieved virtually nothing of practical import. It must be Intellectually honest environmentalists admit that said that in Obamas international climate initiatives are now important dead in the water. On nuclear nonproliferation, the administration respects bent over backwards to accommodate Moscow, Obamas partly in the hopes of triggering meaningful progress in relation to Iran. Specifically, the U.S. signed a strategy of New Strategic Arms Reduction Treaty that gave Moscow most of what it wanted, including appar- accommodation ently an informal understanding on missile defenses. has failed. Russia responded by helping to ratchet up un sanctions on Iran a notch. But these sanctions show no sign of altering the Iranian regimes basic determination to build nuclear weapons while simultaneously denying that it is doing so. Indeed, Iran has become the leading case of failed attempted accommodation. Obama has made it abundantly clear through a variety of public and private messages that he is willing to negotiate in earnest over Irans nuclear weapons program. Iran is obviously not interested. The only notable responses forthcoming from Tehran have been downright mendacious, misleading, and uncompromising. The current U.S. strategy of outreach and accommodation has had almost three years to draw some sort of minimally constructive response from Iran, and it has not worked. The accommodationist elements within Obamas initial counterterrorism approach have faced a similar fate. Most of his early proposals on detention and interrogation have been dialed back at least partway, the end result of which has been consternation and confusion all around. To be sure, the finding and killing of Osama Bin Laden this past spring was a great success, for which congratulations are in order, but that very success was due to the fact that in this particular case Obama ignored accommodationist pieties throughout the operation. The strike against Bin Ladens secret compound was a unilateral American military operation launched inside of Pakistan without the permission of that country, based upon intelligence gathered
Colin Dueck
aggressively over a period of years dating back to the Bush administration, and without excessive concern for absurdly legalistic objections. On the other hand, there is no indication that those sympathetic to al Qaeda are especially impressed by Obamas personality or by his halting efforts to pressure Israel while partially reforming U.S. detention and interrogation of suspected terrorists. Attempted home-grown attacks by radicalized Islamists within the United States have only increased since 2009. Nobody can reasonably say that Obama is primarily responsible for these attempts, but it is just as unreasonable to suggest that support for terrorism between 2001 and 2008 was primarily due to the policies of George W. Bush. The point is that anti-American terrorists plot their attacks without being appeased by particular U.S. policy concessions or presidents. The radical Islamist hatred of American influence continThe radical ues regardless of specific administrations, and it is Islamist hatred profoundly solipsistic to think otherwise. The problem with Obamas strategy of accommoof American dation therefore goes beyond specific case-by-case influence frustrations. The problem is more fundamental and inherent to his approach. As a general rule, foreign continues governments or transnational actors do not feel regardless of obliged to alter their basic policy preferences or to make unwanted concessions of their own simply specific administrations. because an American president is accommodating or charismatic. This is not how international politics works. If the interests, goals, and priorities of other national governments align with those of the United States on specific issues, then those governments will cooperate with Washington on those issues. If not, they wont. Either way, whether we like it or not, the goals and priorities of foreign governments are defined by those governments, and not by the president of the United States. Any American president can alter the costs and benefits for other countries to cooperate with the U.S. on specific matters, by offering specific incentives or disincentives, but he cannot literally redefine how other governments view their own vital interests, and it is delusional to think that he can. If Washington offers a particular policy concession to another government in exchange for some concrete, reciprocal concession of real interest to the U.S., then that is one thing. Such negotiations are at the heart of international diplomacy. But to make the concession beforehand unilaterally, as it were or to offer it up broadly to the entire planet as a whole in the hopes of unspecified reciprocity from particular countries, is to ignore the normal workings of international relations. Look at how Obamas strategy of accommodation has played out in relation to four categories of foreign governments: 1) those essentially hostile to the United States, 2) those who pursue a mixture of strategic rivalry and cooperation, 3) genuine American allies, and 4) Arab governments of varying allegiance.
20 Policy Review

The first category, of regimes basically hostile to the United States, includes the governments of Iran, North Korea, Cuba, and Venezuela, to name only four of the most notable. Each of these governments has literally defined itself at a fundamental level by violent opposition to America. To think that a conciliatory tone, a preliminary concession, or a well-intentioned desire for better relations on the part of a U.S. president by itself will transform that hostility is simply nave. In the case of Cuba, for example, the Obama administration began by lifting certain economic sanctions, in the hope of seeing some reciprocal concessions from the Castro brothers: political liberalization, an easing of anti-American hostility, anything at all of significance. No such concessions have been made. The case of Iran has already been discussed Obama reached out to Tehran with great fanfare in 2009, and has received in To make effect a slap in the face. Both Venezuelas Hugo concessions Chavez and North Koreas Kim Jong Il are likewise unilaterally, as just as hostile and provocative toward the United States today as they were when George W. Bush was it were, is to Americas president. This is because the fundamental ignore the barrier to friendly U.S. relations with those regimes was never George W. Bush. The fundamental barrier normal workings to friendly relations with these regimes is the fact of international that they are bitterly hostile to the United States. The kinds of concessions that Washington would have to relations. offer to win their genuine accommodation would be so sweeping, massive, and unacceptable, from the point of view of any likely U.S. president that they will not be made and certainly not by Barack Obama. Any smaller concessions from Washington, therefore, are simply pocketed by a hostile regime, which continues along in its basic antipathy toward the United States. The second category, of regimes that pursue a mixture of rivalry and cooperation with America, includes major autocratic powers such as China and Russia. These governments continue to view the United States under Obama as a strategic threat to their stature and integrity, but they pursue cooperation with Washington in certain areas such as trade and arms control while simultaneously pursuing geopolitical competition with the U.S. Their common interests with Washington are more extensive, and their hostility toward the U.S. less profound, than is the case with Iran or North Korea. Nevertheless the governments of China and Russia, like most governments overseas, are largely indifferent to Obamas personal charms. They are interested in whether he concedes to their interests and priorities, not in his personal background as such, or in any vision he might have for a more liberal international order. In cases where Obama gives Moscow or Beijing most of what they want, as he did for instance in the 200910 New start negotiations with Russia, then naturally they are happy to accept the concession, and even to offer a modest quid pro quo. But in cases where he offers
Colin Dueck
accommodating or hopeful gestures, yet runs up against the perceived vital national interests of either power, then they simply decline to offer any reciprocal and proportionate accommodation. Neither power, for example, has any intention of surrendering its nuclear arsenal, no matter what Obama says or does in relation to his goal of nuclear zero. Nor has either power offered truly serious cooperation with regard to Iranian or North Korean nuclear proliferation. Chinese and Russian leaders are not especially impressed by Obama. If anything, they are encouraged by the implication of long-term U.S. strategic withdrawal under his leadership, because it leaves them stronger within their own neighborhoods. In this case, as in many others, American strategic disengagement is not interpreted as transformational benevolence, but as a sign of weakness. The third category, of genuine American allies, If anything, includes longstanding strategic and democratic Chinese and friendly partners of the United States such as Great Russian leaders Britain, Germany, and Japan. These are often the countries where Obamas popularity on the street find encouraging as a substitute for George W. Bush is the greatest. the implication Even so, this popularity has not really translated into meaningful policy concessions in areas where of long-term the U.S. and its allies differ. In relation to the war in Afghanistan, for example, Americas European U.S. strategic friends are no more enthusiastic or helpful to the withdrawal. United States than they were when Bush was president. Nor have leading European governments actually altered other core foreign policy preferences in response to Obamas popularity. France, for example, is not about to abandon its nuclear arsenal simply because the U.S. embraces the concept of nuclear abolition. Indeed American allies are sometimes unnerved by Obamas instinctive refusal to divide the world into friends and enemies. This is certainly true of Israel, and also of numerous European governments. Obama sets a rather cool, distant tone in relation to traditional U.S. friends like Great Britain. Americas allies in countries such as Poland, Colombia, and Israel do not understand why Obama reaches out to hostile governments in Cuba and Iran, while often maintaining a studied detachment from clearly democratic and close U.S. partners. Part of the answer is that Obama expects allies such as Israel, Poland, and Georgia to mimic and line up behind his own strategy of international accommodation. In effect he would like to outsource the strategy of accommodation to Americas allies where possible. Israel, for example, is expected to accommodate Palestinian demands. Georgia and Poland are expected to accommodate Russia. Fortunately Obamas willingness to pressure U.S. allies into accommodating their own adversaries has its limits. In any case, the United States will continue to cooperate with its core democratic allies in many ways on trade, counterterrorism, and nonproliferation, as it already was cooperating
22 Policy Review

under Bush. The overall pattern here is much more one of continuity over the past five years or so than of change. The last category, deserving of special mention given the upheavals over the last year, consists of Arab governments with varying allegiances in relation to the United States. The Arab Spring of 2011 presented the Obama administration with a classic U.S. foreign policy dilemma of whether to bolster or pressure American allies in response to indigenous popular pressures. One can certainly sympathize with the need to balance U.S. national security imperatives with democratic aspirations, and to use a case-by-case approach, but Obamas accommodationist foreign policy assumptions led him to make some strange choices. Specifically, the failure to make a clear distinction between Americas allies and its adversaries led him to be too hard on some of its allies In the case of and too easy on some of its enemies within the Arab Egypts Hosni world. Mubarak, In the case of Egypts Hosni Mubarak, the Obama administration publicly and abruptly aban- Obama publicly doned a longstanding U.S. ally, with little indication and abruptly that any successor would be friendlier to U.S. interests on vital issues such as counterterrorism. There is abandoned a a strong possibility that the bitterly anti-Western longstanding Muslim Brotherhood will assume increased power in Egypt, but this does not seem to especially bother U.S. ally. Obama, who likes to distinguish between radical Islamists like Osama Bin Laden and radical Islamists amenable to reason and accommodation. In the case of Syrias Bashar al-Assad, the Obama administration went remarkably easy for quite some time on the regimes violent crackdown against peaceful protestors, under the premise that the U.S. needed Syria on a range of regional issues such as peace negotiations with Israel. Again, the mistake was in a failure to recognize that the Syrian government is in fact a staunch adversary of Israel, the United States, and U.S. interests within the Middle East. But for an American president unwilling to think in these stark terms, no such clarifying distinctions are necessary or constructive, since they supposedly divert from possibilities for fruitful cooperation. Finally, in the case of Libya, as Muammar el-Qaddafi launched a crackdown of his own, Obama made the strangest choice of all, settling on an incoherent policy of extremely circumspect humanitarian intervention under the strictest possible limitations. Whether one was a robust humanitarian, a realist, or a foreign policy hawk, the painfully half-hearted manner of Obamas Libyan intervention made no sense whatsoever. It made sense only in purely domestic political terms or to those who believe that asking the permission of the Arab League when sending U.S. armed forces into battle is intrinsically important. Then again, Obama and many of his core supporters view multilateralism in foreign policy as not only useful, but as an end in
Colin Dueck
itself, since it indicates American goodwill and humility. They therefore judge an intervention like that in Libya primarily on whether it is done in a circumspect, shared, and multilaterally approved fashion. This is an amazing primary criterion on which to launch and conduct armed combat, but apparently it looks perfectly reasonable to the president and his inner circle. Throughout the events of the Arab Spring, Obama seemed to want autocratic regional governments however friendly or unfriendly to the United States to accommodate popular uprisings with at least some token liberal reforms. Arab governments that failed to cooperate in this minimal way tended to lose Obamas support. Yet here as elsewhere, expectations of mutual accommodation triggered by American instruction proved unrealistic. On the contrary, the failure to distinguish clearly and accurately between U.S. allies and U.S. adversaries in the Middle East left the administration without a reliable compass, floundering and out of its depth.
The Obama doctrine, revisited

bama is smart, well-intentioned, and methodical, but he is working on the basis of some deeply flawed assumptions about international politics, and it shows. When he ran for president several years ago, he suggested that most U.S. foreign policy problems abroad were due to Americas own policies under George W. Bush, and that if only the United States adopted a more accommodating approach there could be dramatic progress toward international cooperation on a wide variety of issues. In truth this was a profoundly self-centered argument, both in relation to the United States and to Obama himself. Violent or intractable transnational and international conflicts and rivalries on a whole host of issues are not actually unusual in world politics. They existed long before Obama was president, and will continue to do so. The international system possesses far less moral unity and collective police power than a single stable city, state, or country. The challenges of world politics are therefore not analogous to community organization at the local level. U.S. presidents do not hover over the international arena as disinterested assemblers and observers, nor should they. The task of an American president is not to play the role of un Secretary-General or Pope. The task of an American president is to promote U.S. national interests overseas, guided to be sure by a sense of both prudence and justice. Obama is for many Americans a kind of inspirational personal bridge between races, as well as a bridge between his own countrys past, present, and future. This is fine, but any desired projection on to the international realm is mistaken, not to mention pretentious. Obama may be a bridge for many Americans; he is not and cannot be a bridge between nations. In one case after another, conciliatory or accommodating gestures and concessions by the Obama administration toward various international tar24 Policy Review

gets have not resulted in much concrete reciprocity. This is not because the strategy of accommodation needs more time. It is because the strategy is misconceived to begin with. Broad processes of international cooperation and accommodation on issues such as proliferation, climate change, and counterterrorism cannot be kick-started by American concession if other important international players do not see it as being in their own interest. Preliminary American concessions on economic sanctions do not impress the Cuban government. U.S. diplomatic overtures do not impress the Iranian government. American proposals on climate change do not impress the Chinese government. Calls for nuclear abolition do not impress the North Korean government. Proposed revision of U.S. detention and interrogation practices does not impress Islamist radicals. So who is supposed to be the target audience The challenges here? The true audience and for that matter the ultimate source of these various conciliatory policy ini- of world politics tiatives is essentially a small, transnational, North are not Atlantic class of bien pensant opinion who already share Obamas core policy priorities in any case. analogous to They have rewarded him with their support, as well community as with the Nobel Peace Prize. Others internationalorganization at ly are less impressed. And in the meantime, we may have lost something, in terms of the ability to serithe local level. ously prepare for certain looming security challenges. A primary and continuing emphasis on diplomatic engagement after Iran has repeatedly rebuffed the United States does not help us to prepare for the possibility of a nuclear-armed Iran. A declared commitment to nuclear abolition does nothing to convince other nuclear powers to abandon their own arsenals, and may even be counterproductive in the sense that it deludes important segments of opinion into believing that such declarations actually help to keep the peace. Obama has said from the beginning that the purpose of his more conciliatory foreign policy approach was to bolster American standing in the world, but the definition of international standing has actually been highly self-referential in the direction of aforementioned transatlantic liberal opinion. In many cases overseas, from the perspective of other governments, Obamas well-intentioned conciliatory gestures are read as a sign of weakness, and consequently undermine rather than bolster American standing. In one way, however, Obama has already achieved much of what he desired with his strategy of accommodation, and that is to re-orient American national resources and attention away from national security concerns and toward the expansion of domestic progressive reforms. He appears to sincerely believe that these liberal domestic initiatives in areas such as health care and finance will also bolster American economic power and competiveness. Actually they will do no such thing, since heavy-handed and constantly changing federal regulations tend to undermine investor conOctober & November 2011 25
Colin Dueck
fidence as well as long-term U.S. economic growth. But either way, Obamas vision of a more expansive government role in American society is well on its way to being achieved, without from his point of view debilitating debates over major national security concerns. In that sense, especially if he is reelected in 2012, several of his major strategic priorities will have been accomplished. Any good strategy must incorporate the possibility of pushback or resistance from unexpected quarters. As they say in the U.S. military, the enemy gets a vote. So, for that matter, do other countries, whether friendly or not. When things do not go exactly according to plan, any decent strategy and any capable leader adapt. Indeed any decent foreign policy strategy begins with the recognition for backup plans, since Obama believes inevitably things will not go exactly according to plan. Other countries rarely respond to our initial that liberal strategic moves in precisely the way we might wish. The question then becomes: What is plan B? domestic Obama is tactically very flexible, but at the level initiatives will of grand strategy he seems to have no backup plan. bolster American There is simply no recognition of the possibility that world politics might not operate on the posteconomic Vietnam liberal assumptions he has imbibed and represented over the years. Obamas critics often power and competitiveness. describe him as providing no strong foreign policy leadership. They underestimate him. Actually he has a very definite idea of where he wants to take the United States. His guiding foreign policy idea is that of international accommodation, sparked by American example. He pursues that overarching concept with great tactical pliability but without any sign of ideological or basic revision since coming into office. Yet empirically, in one case after another, the strategy is not working. This is a kind of leadership, to be sure, but leadership in the wrong direction. How can the Obama administration adapt and adjust to the failures of its strategy of accommodation? It can admit that the attempted diplomatic engagement of Iran has failed, and shift toward a strategy of comprehensive pressure against that regime. It can make it abundantly clear to both the Taliban and al Qaeda that the United States will not walk away from Afghanistan, despite the beginning drawdown. It can start treating Russia as a geopolitical rival, which it is, rather than simply as a diplomatic partner. It can strengthen U.S. missile defenses as a form of insurance against nuclear proliferators. There is a long list of policy recommendations that can be made on specific regional and functional matters, but the prior and most important point is the need for a change in mentality. President Obama needs to stop working on the assumption that U.S. foreign policy concessions or gestures directed at the gallery of elite transatlantic opinion whether on nuclear arms control, counterterrorism, or climate change
26 Policy Review

will somehow be reciprocated by specific foreign governments in the absence of some very hard bargaining. He needs to grasp that U.S. strategic disengagement from specific regional theaters, whether promised or underway, is taken as a sign of weakness in those regions and not simply as a sign of benevolent restraint. He needs to recognize that Americas international reputation consists not only of working toward his own definition of the moral high ground, but also very much of a reputation for strength, and specifically of a reputation for the willingness to use force. He needs to stop operating on the premise that past American foreign policy decisions are the ultimate source of much violent discord in the world today. He needs to be willing to divide the international system conceptually and operationally into friends and enemies, as they actually exist, and to support Americas friends while pressuring and opposing its Obama needs enemies relentlessly. Finally, he needs to admit the to be willing limited effect of his own personal charisma on the foreign policies of other governments. The president to support of the United States is not an international community organizer. If the conceptual framework that Americas friends underpins Obamas foreign policy strategy is altered, while pressuring then better policies will flow on a wide range of speand opposing cific issues. Admittedly, there is little chance that Obama will its enemies concede any of this. One of the things we know relentlessly. from historical example is that presidents tend to keep operating on their own inbuilt foreign policy assumptions, even as contrary evidence piles up. It usually takes either a dramatic external shock, or a new administration altogether, to bring about a major revaluation of existing assumptions. Curiously, this resistance to contrary evidence in foreign policy appears to be even truer of highly educated, self-confident, and intelligent people with core ideological convictions a description that certainly fits President Obama. Obama is malleable on tactics, and he takes great care to project an aura of sensible calm, but in truth he is a conviction president powered by certain core ideological beliefs and vaulting policy ambitions. His characteristic response when these core beliefs and ambitions are truly tested by opponents or events is not to bend, but to bristle. He is therefore particularly unlikely to admit or even perceive that a foreign policy strategy based upon faulty assumptions of international accommodation is failing or has failed. Nor is it politically convenient for him to do so. More likely, he will continue along his chosen path, offering nothing more than tactical adjustments, until some truly dramatic event occurs which brings his whole foreign policy strategy into question an Iranian nuclear test, for example. If Iran were to test a nuclear device in open defiance of the United States, then we might well see a serious internal rethinking of this administrations accommodationist foreign policy assumptions, for a wide variety of very
Colin Dueck
good reasons. By that time, of course, it would be too late to prevent Iranian acquisition of nuclear weapons. Indeed Obama may view Irans rise and Americas disengagement regionally as inevitable over the long run. But at the very least, after an Iranian nuclear test, he would be forced to take a much tougher approach toward Iran. He would probably announce new U.S. military deployments in the Persian Gulf region, toughened economic sanctions, and increased support for Irans opposition Green movement. He might even declare publicly, in terms similar to those used by previous presidents such as Harry Truman, Dwight Eisenhower, and Jimmy Carter, that the United States will support any allies within the Middle East against aggression from a hostile power. And then this hard line declaration, ironically, would become known to history as the Obama doctrine thus ending debate once and for all over the meaning of that term.
28
Policy Review
Ratifying Womens Rights

By Kavita N. Ramdas and Kathleen Kelly Janus
he convention on the Elimination of All Forms of Discrimination Against Women (cedaw) has been one of the most broadly supported international treaties since its adoption by the United Nations 30 years ago. Since its inception, 186 un member states have ratified the convention, showing their commitment to achieving gender equality worldwide. It remains a mystery to many, therefore, that, to date, the United States remains one of a small minority of countries that have not ratified this treaty designed to ensure equality between women and men and advance womens rights across the world. The U.S. ratification of cedaw has historically faced significant challenges from the American right, led by the late Senator Jesse Helms and conservative organizations who rallied support by claiming that the treaty would result in demanding abortion and decriminalizing prostitution.
Kavita N. Ramdas is executive director of the Ripples to Waves Program on Social Entrepreneurship and Development at Stanford Universitys Center on Democracy, Development, and Rule of Law (CDDRL) and the former president and CEO of the Global Fund for Women. Kathleen Kelly Janus teaches International Womens Human Rights at Stanford Law School and is a cofounder of Spark.
Kavita N. Ramdas and Kathleen Kelly Janus

However, in the past, prominent Republicans including Orrin Hatch, John McCain, and Colin Powell have supported ratification. Recently, the Obama administration has demonstrated a renewed interest in cedaw, with prominent support coming from President Obama, Vice President Joe Biden, Secretary of State Hillary Clinton, and Legal Counsel to the State Department Harold Koh, in addition to key senators such as Barbara Boxer and John Kerry. For many advocates of womens rights, these seem like hopeful indicators that the Senate Foreign Relations Committee will consider ratification of the convention again in the near future, which we believe would be a positive step for the United States and for women across the globe. These revitalized efforts to ratify cedaw have also been met with renewed opposition from the Conservative right. Conservative arguments in opposition to opponents of cedaw are rooted in American exceptionalism, misinterpretations of the treaty itself, and a glorifiCEDAW rely cation of womens traditional roles as mothers, on an intense wives, and caregivers. They rely on an intense dose of fear-mongering about the potential destructive dose of fear-mongering impact of c e daw , which conservatives argue threatens family life in the United States with radical about its sexual egalitarianism. Furthermore, in making these arguments, conservatives stir latent xenophopotential bia, warning us that the cedaw periodic reviews by impact. a body of foreign experts cannot be better at meeting the moral challenges of equity than our own democratic institutions. And they seem most appalled at cedaws Article 5(a), which seeks to achieve the elimination of prejudices and customary and all other practices which are based on the inferiority or superiority of either of the sexes or on stereotyped roles for men and women. Conservatives believe this to be particularly harmful because it risks eradicating gender roles altogether, which they view as a threat to the fiber of our society even if it is these very roles which threaten the well-being not only of women but everyone. These types of arguments against cedaw have also been prominent among the religious right, such as the D.C.-based Family Research Council and groups like Concerned Women for America, whose mission is to protect and promote Biblical values among all citizens and whose vision is for women and like-minded men, from all walks of life, to come together and restore the family to its traditional purpose. Opposition to U.S. ratification of cedaw has not only surfaced from the right. Opponents have also come from the left, albeit to a lesser degree. For example, opponents from the left fear that signing cedaw will be a symbolic gesture that would amount to sweeping the problem under the carpet instead of creating meaningful change for women in the U.S. who experience discrimination on the basis of sex. Other liberals oppose the U.S. ratification
30 Policy Review

of cedaw because they claim that the equality framework on which the treaty was developed is outdated. For example, feminist theorists pose the paradox of a rights-based approach that, by working specifically to address womens subordination, in some ways further entrenches womens subordinate positions as opposed to liberating them. Thus, these liberals claim that the problem with cedaw is that it fails to adequately address gender equality because its scope remains limited to women. As David Rosenblum writes in a forthcoming paper
cedaws focus on women enshrines an understanding of sex as a binary of men/women with a perpetrator/victim relationship. Instead of focusing on women as part of a binary, cedaw should seek the elimination of the categories themselves. cedaws very title is its mistaken diagnosis. Its focus on the category women reifies rather than undermines gender disparities.
While we recognize these concerns and acknowledge that cedaw is not the perfect answer to achieving gender equity in the U.S. or anywhere else in the world, we believe that the ratification of cedaw allows nations to take an important step on the path towards creating greater equality of both opportunity and outcome for women and men. What we have chosen to address in this article are arguments against the ratification of cedaw from the right, which are grounded more in fear than in reality. As feminists of different generations from different cultures, we support cedaws goal to eliminate prejudice and discrimination against both women and men. Ratifying cedaw helps all human beings, regardless of their sex (or other distinguishing physical characteristics), achieve their inalienable rights to life, liberty, bodily integrity, and dignity. The primary arguments that cedaw opponents from the right have leveraged to block the U.S. ratification of the treaty are based on misleading arguments about the treatys object and purpose, and we discuss each in turn.
Celebrating a diversity of gender roles
irst, the conservative fear that cedaw would eliminate gender roles in this country incorrectly conflates the concepts of sex and gender. Gender, as feminists have worked hard to explain over the years, refers to the socially constructed belief systems and internalized understanding of roles that reside inside peoples brains. Those attitudes and resultant behaviors are developed within the prevailing norms of culture, tradition, religion, and power relations. Women and men make choices not in circumstances of their own choosing, but rather within broader historic, socioeconomic, and political contexts. In fact, one of the less-discussed but deeply important reasons to adopt cedaw is that it offers a profoundly liberating framework for men, many of whom already are remarkable care31

givers and parents, in addition to being successful businessmen, lawyers, and physicians. For men, cedaw affirms the right to share the joys and pleasures, as well as the responsibilities of raising children, within a variety of family settings, not merely those based on the heterosexual norm. Thus, while conservative critics claim that by ratifying cedaw the United States would be demeaning the concept of a womans femininity, in fact, the treaty says nothing whatsoever about femininity or its conventions. Notions of femininity and masculinity, like cultures, are inherently fluid and constantly reshaping themselves in societies across the globe, but cedaw does not seek to define those terms. cedaw does nothing to obliterate gender roles; it simply refuses to condone discrimination and violence against women in the name of religion, tradition, and culture. In fact, cedaw does the opposite, acknowledging the importance of womens obligations within the family, while simultaneously establishing new norms for the participation of both women and men in all dimensions of public and private life.
cedaw as inspiration
econd, conservatives have suggested that cedaw would have a dramatic impact on American laws and practices. They fault feminist activists for promoting this treaty as an opportunity for American women to secure rights the U.S. Constitution has not delivered. But if, in fact, our Constitution has failed to deliver basic rights to American women, is this not a valid cause for concern? cedaw is an important legal stepping stone to buttress existing efforts to access basic rights for women such as the right to receive equal pay in the workplace, to be free from domestic violence, or to obtain access to family planning. As an international treaty, cedaw in and of itself would not enact these changes or supersede domestic law. Instead, as in Roper v. Simmons, in which the Supreme Court relied on the U.N. Convention on the Rights of the Child and the International Covenant on Civil and Political Rights in support of its own conclusion to overturn the juvenile death penalty, ratifying cedaw would provide additional support for gender equality claims both in courts and legislatures throughout the country. As expressed in the first report by un Women, the new un entity for gender equality and the empowerment of women, where it is successful, strategic litigation can have groundbreaking results. By identifying gaps or changing laws that violate constitutional or human rights principles, such cases can motivate government to provide for citizens, guarantee the equal rights of minorities or stop discrimination. But strategic litigation is toothless when it is not supported by a legal framework to challenge injustices. Ratifying cedaw in the U.S. would present an important legal mechanism to ensure that the rights of the U.S. Constitution are delivered equally to men and women alike.
32 Policy Review
Enabling a more evenhanded U.S. foreign policy
hird, while conservatives broadly agree that the U.S. should stand with the oppressed women of the world, they argue that rather than relying on a treaty such as cedaw, Americans should use the instruments of foreign aid and private philanthropy to express such solidarity. But it is precisely this type of reliance on aid money, reinforced by military intervention, as the only means by which this country is willing to support women around the world, that reinforces an image of the U.S. as a neocolonial power. Iraq and Afghanistan are both U.S.-led wars where justification for the invasions and for the continued presence of U.S. troops was and still is made, in part, on the basis of securing womens rights. How we seek to advance womens rights globally is as important as our stated commitment to those rights. Global Fund for Women and Spark advisors like Sakena Yacoobi, founder of the Afghan Institute for Learning, and Sima Samar, who served as vice chair and minister of womens affairs in Afghanistan and is the current chair of the Human Rights Commission, have long argued that U.S. support for cedaw would significantly strengthen its power as a tool for women worldwide to help themselves. After the 2001 overthrow of the Taliban, Samar wrote a letter to Senator Barbara Boxer describing how U.S. ratification would help women in Afghanistan secure human rights as they rebuild their country. In her words,
if the U.S. ratifies cedaw, the treaty will then truly be the international measure of rights that any country should guarantee to its women. We will be able to refer to its terms and guidelines in public debates over what laws should say. Your advisors to many of our leaders here will be able to cite its provisions in their recommendations. And perhaps we women will achieve full human rights.
Ratifying cedaw would be an important step in standing with women leaders like Yacoobi and Samar, showing that as the most powerful nation in the world, the U.S. is willing to lead by example and critically examine potential shortcomings in its own laws as opposed to simply preaching to others. Ratifying cedaw would also be a pragmatic step toward supporting these U.S. foreign policy objectives. In the aftermath of the U.S. invasion of Iraq, when women leaders feared that womens rights would take a back seat in the development of a new constitution, the Womens Alliance for a Democratic Iraq was able to promote Iraqs legal obligation under cedaw (which it had ratified in 1986) to include women in the constitutional drafting process, eventually successfully arguing for a 25 percent quota for

women in Parliament, where women now hold 70 out of 275 seats in the National Assembly. Iraqi women were able to count on the Global Justice Center, a U.S.-based ngo, as an ally in this effort to use cedaw to promote gender equality in a post-conflict setting, but they did not have U.S. government support for their efforts. If the U.S. were to ratify cedaw, it would allow the American government to more directly advance gender equality, thereby strengthening and lending more credibility to its foreign policy objectives around the world. If the U.S. is committed to encouraging other countries to become more open, tolerant and democratic, signing cedaw creates the credibility necessary for such efforts to bear fruit. There are countless examples that demonstrate the potential for cedaw, the only global treaty on womens rights, to enhance the ongoing There are effort to advance womens rights globally. Whether countless it is through the Global Fund for Women, Spark, or in our work at Stanford, we have seen firsthand just examples that how powerful cedaw can be for women who are demonstrate the struggling for a better future in their communities. We know that activists use cedaw regularly to fight potential for for very basic rights, such as property, inheritance, CEDAW to and even the right to vote. As Amartya Sen and othadvance ers have so eloquently argued, providing women womens rights with basic rights is a fundamental step in the movement to eradicate poverty, and cedaw is being used globally. as an important pressure point in providing women that agency. Women in countries like Mongolia have used cedaw as a tool to survive what was probably the worlds most abrupt switch from communism to capitalism. Mongolia has not only become a place where people are beginning to build civil society, but one where the most dynamic of these groups are run not by men the traditional rulers of society but by women. And they have become driving forces of social change. Over the years the Global Fund for Women grantee partners included organizations such as the Liberal Womens Brain Pool, Gender Equality Center, and Women for Social Progress. They are key players in a web of independent citizens groups that act as democracys roots in Mongolia, and they have used Mongolias ratification of cedaw to build something of which they have no real experience: genuine gender equality at all levels of their traditional nomadic culture. They have used cedaw to ensure active participation in the political process by women and consistently pressured their government to strengthen its commitment to womens equality by researching arenas of continued discrimination or injustice and highlighting these challenges in what are termed Shadow reports, which are presented to balance the reports of governments to the un cedaw committees. Most impressively, numerous other independent women-led ngos in Mongolia have come together to form a
34 Policy Review

coalition known as the cedaw Watch Network, which coordinates and monitors over implementation of cedaw Convention. Similarly, last year, in a precedent-setting case that was widely hailed by womens groups around the globe, another Global Fund for Women grantee partner, the Womens Legal Bureau of the Philippines, in collaboration with several other womens groups in the Philippines and across the Asia-Pacific region, used the Optional Protocol of cedaw to appeal a rape case in which the survivor had been denied justice. Karen Vertido argued that her rights as a survivor of sexual violence were violated because the court arrived at its decision based on gender-based myths and stereotypes. She asserted, I claim every inalienable right and every right this country promised to me as its citizen, from protection of my body, my livelihood, to protection of my honor. I claim restitution for having been violated first by one depraved man, and then later by a society that says it is okay to rape women. The Philippine government must now implement the recommendations made by cedaw, including ensuring immediate measures in rape cases and impartial and fair legal procedures. The un cedaw committee also urged the government to review its definition of rape and to train its judges, lawyers, law enforcement officers, and medical personnel in a gender-sensitive manner to understand crimes of rape and other sexual offenses. In Morocco, womens groups successfully lobbied the government of King Mohamed VI to make significant revisions to the Moudawana, or Family Code, which was introduced following independence in 1957 and made wives legally subordinate to their husbands. In 2004, using Article 16 of cedaw as a guide, the code gave women greater equality and protection for their human rights within marriage and divorce. Husbands and wives now have joint responsibility for their families, the legal age of marriage has been raised from fifteen to eighteen, and important changes to marriage, divorce, and polygamy laws have been implemented. In December 2008, King Mohammed VI publicly banned discrimination against women and officially lifted all Moroccos reservations on cedaw. Numerous other examples of how cedaw has been used to advance an agenda of equality are cited in a 2010 report by the International Center for Research on Women. In sum, if the U.S. were to ratify cedaw, it could work side-by-side with other countries to promote these types of important shifts toward open and democratic societies, leveraging its aid money and private philanthropy to help make more meaningful and lasting social change.
Ensuring that equality begins at home

onservative opponents of cedaw talk out of both sides of their mouth, invoking American exceptionalist arguments to claim that the U.S. should not have to respond to the periodic reviews that cedaw requires, arguing in essence that it is fine for lesser nations to

be held accountable by a group of 23 elected representatives, but not the United States. Citing Article 5(a) regarding the modification of the social and cultural patterns of conduct, conservatives are willing to promote cultural change when it involves some of the more sensationalist practices of other cultures (child marriage, dowry burnings, genital cutting, etc.), while failing to recognize entrenched practices in our own country that inhibit gender equality. For example, opponents of cedaw are quick to point out the oppression of women in the Global South, while failing to acknowledge the ways in which women experience inequality in the U.S., claiming instead that our society has already achieved gender equality. And yet, U.S. statistics show: One out of every six American women has been the victim of an
attempted or completed rape in her lifetime.
One in three women has been beaten, coerced into sex, or otherwise
abused during her lifetime.
On average, more than three women a day are murdered by their

husbands or boyfriends in the United States.
Every nine seconds, a woman is beaten in the United States. Women represent only 3.1 percent of ceos, 14.9 percent of board of directors members, and 12.5 percent of executive officers, while women make up 40.9 percent of the industrial labor force. Women earned just 77 percent as much as men in 2009 , based on
the median annual earning for full-time, year-round workers.
Clearly, the United States still has a long way to go toward achieving a state where women live can live free of discrimination or violence. Culturally, conservatives might claim that gender equality should not be a goal at all, that men and women are different and should be free to accept different roles within society. Indeed, conservatives argue that American women inherently prefer to play traditional roles as caregivers, claiming that while women want the same rights and opportunities as men, few make the same choices as men. However, this fails to take into account the deeply entrenched social norms that still define womens roles or the practical limitations in the work environment within which such choices are made. For starters, we live in an unequal world where white women still only make 77 cents on every dollar earned for the same job by a man, and where African American and Latina women make even less 65 cents and 55 cents respectively. A recent study, The College Payoff: Education, Occupation and Lifetime Earnings, released this month by Georgetown Universitys Center on Education and the Workforce and based on data from the U.S. Census Bureau, provides evidence of significant earnings gaps for women and minorities. The report refers to gender
36 Policy Review

and race as wild cards that matter more than education or occupation in determining earnings. Women earn less money than men over a lifetime at every level of education. At the median, a man with some college but no degree earns nearly as much as a woman with a bachelors degree, and a woman must hold a Ph.D. or professional degree to surpass what a man makes with a bachelors. As these statistics show, women who are not making the same choices as men may be doing so because those choices are not actually available to them. If, consistent with the terms of cedaw, men and women in the U.S. received equal wages for equal work, it is highly conceivable that both women and men might choose options that gave them greater time and flexibility with their families. In the same vein, c e daw critics ignore the fact that most women in the U.S. live in a Women still world where paternity leave is practically nonexismake a mere tent. This forces most women who start families to step out of the workplace in order to be full-time 77 cents on parents and penalizes men who might have wanted every dollar to make that choice resulting in the inequalities that we see across corporate America and a further earned by a limitation of choices for both women and men. man who does The disparities between choices available to the same job. men and women are noticeable from very early on in their careers, as we see quite evidently from our work with students at Stanford. In law school, for example, Catalyst has released statistics showing that while women law students make up 44 percent of J.D. candidates, and women make up nearly one of every two law firm associates, women make up only one out of six equity partners and 99 percent of law firms reported that their highest paid lawyer was a man. While one in eight women lawyers work part-time, only one in 50 men lawyers do, and nearly half as many men lawyers as women lawyers (44 percent versus 84 percent) have a spouse that is employed full-time. Law students faced with these daunting statistics illustrating the prospect of lower chances of making partner, potential discrimination based on being disproportionately part-time, and lower wages than their male counterparts are undoubtedly influenced in the choices that they make starting in law school. Similarly, male law students are under pressure to earn a high salary, potentially discouraging public interest careers, which pay significantly less and are traditionally chosen by women at a much higher rate. A Harvard study on gender experiences in law school showed that women are more likely to choose a career that is helping others (41 percent versus 26 percent) and advancing ideological goals (24 percent versus 15 percent), and less likely to choose high salary (32 percent versus 44 percent) as a priority. The study also showed that mens choices seem to change during law school, where second- and third-year male law students were significantly less likely to choose helping others as a career than first-year law students.

The highly gendered nature of career choices for men and women law students is a microcosm of many other industries in the U.S. where paternity leave is mostly unavailable (and/or culturally seen as unacceptable) and equal pay is impossible for women to obtain. While legal frameworks like cedaw are not a silver bullet to achieve change in entrenched norms, they can help to create a broader global framework for gender equality, within which we may be more effective at transforming these trends. cedaw does not deny that in most parts of the world today men and women play different roles in society. It reminds us, however, that the choice to play such roles may actually be determined in long-held cultural, religious, and other belief systems, which are gradually being challenged by individuals, civil society resistance, and the law. Far from feeling excluded by the process, women from every continent participated in drafting this treaty in the belief that it would buttress their own acts of resistance and transformation, while affording them more opportunity to use the law to offer them greater voice in the key decisions that affect their lives. Nothing in cedaw requires any woman to give up her chosen role as mother, spouse, or caregiver, but it does ensure that girls are not forced to aspire to those roles simply by virtue of being born female. It also upholds the rights of boys and men to aspire to be caregivers, loving parents, and spouses, as well as protecting the rights of those individuals who choose not to marry, not to bear children, or assume caretaker roles. Those seem like values grounded in the principles of freedom, liberty, and choice that conservatives should readily embrace. By encouraging the U.S. government to ratify cedaw, conservatives can help advance the freedom of women and human rights for all we hope they make the choice to join with us and the rest of the world to do so.
38
Policy Review
Can Iran be Deterred?

By Ron Tira
he possibility of Iran acquiring nuclear weapons leads some experts to suggest that such a development may be containable. They argue that a stable balance of deterrence can be achieved with Iran, akin to the nuclear equilibrium between the U.S. and the Soviet Union during the Cold War. I will argue that this is an erroneous proposition, as the levels of instability and risk involved in nuclear armament in the Middle East are incalculably higher. My view is based, among other considerations, on the working assumption that a nuclear Iran will lead to the development of a nuclear capability by other regional players, such as Saudi Arabia, Egypt, and Turkey. Certain models from game theory are important here. These models were part of the basis on which U.S. strategy during the Cold War was conceived and formulated, and for the concepts developed by Robert McNamara, the
Lieutenant Colonel Ron Tira (Res.), a former fighter pilot in the Israeli Air Force, is the author of the book The Nature of War: Conflicting Paradigms and Israeli Military Effectiveness. Tira has over 25 years of experience in intelligence and military affairs and is currently a businessman and a reservist at the Israeli Air Forces Campaign Planning Department.
Ron Tira
Rand Corporation, and others.1 These models have a unique status in the realm of strategy because, in the nuclear field, there is hardly any empirical experience capable of providing a better source of knowledge than such models.2 The analysis of nuclear strategy on which I will focus refers to the core era of the Cold War, from the mid-1960s to the mid-1980s. The formative idea of this core era was mutual nuclear deterrence based on second-strike retaliation capability. Both sides benefited from enormous nuclear redundancy, so that even if one side was to initiate a nuclear attack, the other side would still possess sufficient residual nuclear capability to completely destroy the initiating side with a retaliatory strike. Accordingly, the nuclear destruction of both sides was assured (Mutually Assured Destruction, or mad), and nuclear weapons became the resource not to be used. The period preceding this core era was characterized by learning and adapting to the new weapons strategic rationale, which gave rise to the massive retaliation strategy of the 1950s, eventually abandoned as impractical, and the Cuban Missile Crisis, which led to the development of agreed rules for the nuclear game. After the core era the Reagan administration attempted to replace the nuclear deterrence paradigm with the concept of prevailing in a nuclear war, e.g., making use of the sdi project. Even during the core era there were some notions deviating from mad, such as the use of tactical nuclear weapons, nuclear strikes against military assets only (counterforce), gradual nuclear escalation, or nuclear demonstration attack, but these did not become the central principle of nuclear strategy.
A poor mans mad?

he mad concept depends on the survivability of nuclear capability, which enables a second-strike retaliation even after sustaining the initiators nuclear strike. Such survivability is achieved in two ways. The first is numerical superfluity. Indeed, during the core era the superpowers maintained thousands of nuclear warheads. The second way is highly survivable launch platforms, such as deep-water nuclear submarines able to loiter under the polar icecap, a fleet of bombers continuously airborne around the globe, and silo-based or mobile ground-launched ballistic missiles. These means ensured two basic conditions: Intelligence would not be able to locate all platforms at any given moment, and even if a platform was located it could prove difficult to destroy.
1. For a general background on game theory and nuclear strategy see, e.g., Thomas S. Schelling, The Strategy of Conflict (Harvard University Press, 1980); Lawrence Freedman, Deterrence (Polity Press, 2005); Herman Kahn, Thinking About the Unthinkable (Horizon Press, 1962). 2. Henry Kissinger, Diplomacy (Simon & Schuster, 1994).
40
Policy Review

The U.S. and the Soviet Union learned that there were additional conditions to be met in order to support a second strike, first among them that the two sides must be geographically removed from each other. The Cuban crisis was partially due to the fact that positioning of missiles in such proximity to the U.S. could shorten early warning time and limit U.S. retaliation (at least in respect of command and control and retaliation from the continental U.S.). The second condition was identification of attack. In the case of superpowers, only massive launching of thousands of weapons could potentially destroy nuclear capability. Such massive launching would have a noticeable signature and hence give rise to timely warning by sophisticated and costly space-based and other sensors. But what happens when the sides are regional players lacking the aforesaid size and resources? Is In the case of m a d a possibility for states of meager nuclear superpowers, resources? Consider a hypothetical situation in which two only massive regional players have crossed the nuclear threshold launching of and each of them possesses a single nuclear bomb. thousands of This bomb is not being carried by an expensive nuclear submarine lurking under the arctic icecap, weapons could but kept in a bunker in the middle of the country. potentially Thus, obtaining intelligence regarding the location of the opponents single bomb becomes an achievdestroy nuclear able task, and its destruction in a first strike (therecapability. by disabling the opponents second strike) becomes feasible. Each side must then consider the possibility that the enemy has identified the location of its bomb and might strike first, so that it must beat the enemy to the draw.3 This game is known as use it or lose it. In this game there is an incentive to strike first and a path of escalation emerges.4 Ironically, the game tends to stabilize when each side has 50 nuclear submarines and a first strike is not a realistic option, but it is unstable when each side has a bunker with just a few bombs and first strike is feasible.5 In the Middle Eastern circumstances the geographic spacing needed to sustain retaliation may not always exist, e.g., between Iran and Saudi Arabia (at least from the aspect of the attackers proximity to the attacked states command and control centers and launching a retaliatory strike from the territory of the attacked country). First Strike need not necessarily be carried out from the territory of the attacking country but can be carried out from a failed state bordering the country to be attacked, e.g., an Iranian attack on
3. Scott Douglas Sagan, Moving Targets: Nuclear Strategy and National Security (Princeton Press, 1989), 32. 4. Austin Long, Deterrence From Cold War to Long War (Rand, 2008), 26. 5. Robert Ayson, Thomas Schelling and the Nuclear Age (Routledge, 2004), 6768.
41
Ron Tira
Saudi Arabia launched from post-withdrawal Iraq, from the Sudan against Egypt, or an Iranian attack from Lebanon against Israel. The command and control centers and the nuclear weapons of a country having only an embryonic nuclear capability may be destroyed by attacking a very small number of targets. Therefore, in contrast to a superpower that can only be attacked by launching thousands of missiles and bombers in an industrial fashion, in the case of a country of limited nuclear capability, a first strike might also be possible by unorthodox means, which will not enable early identification of the attack and thus reduce the ability to retaliate. Thus, hypothetically, even a state actor could launch a first strike from a civilian ship close to the coast of the attacked country (the Russian missile Club k was designed for such use) or by a suitcase bomb, or a container bomb.
The multilateral challenge

he so-called chicken game is a model based on the idea of two drivers driving their cars on a collision course, with the first to swerve aside losing, and the one who continues after his opponent has given way winning. Hence the game encourages collaboration, enabling both of them to turn aside at the same time (as in the Cuban Missile Crisis). But what about a situation where five drivers are speeding from different directions and converging on the same intersection? And what if we do not know whether some of them are acting in concert? In this situation it is more difficult to analyze each drivers strategy and reach equilibrium. Now let us combine meager nuclear resources with multilateralism: Take five players, where each player possesses four nuclear bombs kept in a bunker in the middle of his modestly-sized country. To reach equilibrium, each player must conclude that none of the other four players assesses (rightly or wrongly) that he is capable of, or interested in, launching a first strike on some or all of the other players. This means that each of the five players must make a subjective assessment of the quality of intelligence, of the capabilities, and of the strategies of the other four (based on incomplete information), and accordingly determine his own strategy. This gives rise to at least 25 different strategy assessments, each single one of which must lead to the conclusion that nuclear weapons should not be used. This situation is termed a Bayesian game. Game theory teaches that it is difficult to achieve equilibrium in a Bayesian game based on subjective assessments of other players strategies, particularly when the game is dynamic and multilateral. From the moment a player decides to launch a strike against another player, there is a concern that additional players will become involved in the nuclear exchange even if they intended not to enter the fray. Let me explain: Suppose Iran assesses (rightly or wrongly) that it has identified the
42 Policy Review

location of Saudi Arabias handful of nuclear weapons or its command and control centers, and that it can attack from geographic proximity or by unorthodox means, so that the Saudis cannot retaliate; i.e., Iran considers that it is able to launch a first strike. If the stricken and dazed Saudis nonetheless still retain some residual nuclear capability, it is difficult to conclude how they will use it. It cannot be ruled out that in this situation Saudi Arabia would react against all other participating players, either due to a genuine difficulty in detecting who attacked it in the first place (e.g., due to the use of unorthodox means of attack or the lack of sophisticated spacebased sensors able to track the attacker), or due to more complex strategies whereby a player already hit by a nuclear weapon will seek to equally weaken the other players in the game. Moreover, if we take a nuclear player who is supposedly neutral In the case of towards an Iranian attack on Saudi Arabia, such as, a country of say, Turkey, then this players decision-making will not be easy to anticipate. What will Turkeys situalimited nuclear tion awareness be? Who attacked the Saudis and under what strategy? Will Turkish intelligence capability, a first assume that this is an isolated act or part of a broad- strike might also er regional offensive? How will the Turks evaluate be possible by the intelligence, capabilities, and intentions of the unorthodox other players? The assessment and decisions will be taken under pressure, without sufficient information means. and possibly within minutes, leaving much room for miscalculation. The multilateral game becomes more complex as we also take account of non-nuclear players. The U.S. could try to stop the proliferation of nuclear weapons by offering a nuclear umbrella to countries that do not go nuclear, it is possible that regional players who do go nuclear, such as Egypt and Saudi Arabia, would offer such cover to players such as Kuwait, Bahrain, and Yemen. A nuclear umbrella is an arrangement of questionable reliability, however, and the experience gained during the Cold War with such countries as West Germany teaches that objective assurances are needed to confirm that the provider of the nuclear umbrella and the country sheltering under it are indeed in the same boat, i.e., that the nuclear-umbrella provider will keep its word. The assurance perceived as most reliable was the deployment of nuclear weapons in the territory of the country sheltering under the umbrella, e.g., of U.S. nuclear weapons in Germany. A Soviet threat to West Germany thus became a threat to a U.S. nuclear stockpile, providing objective support to the reliability of the American nuclear commitment to Germany. Thus, the non-nuclear players might cause dangerous consequences: From a military aspect, for instance, the pre-deployment of nuclear weapons on their soil. And politically, they could create a system of defense alliances resembling those of pre-World War I Europe, which may give rise to a
Ron Tira
nuclear exchange escalating uncontrollably out of a local incident of lesser global importance. The behavior of the non-nuclear players might also change. For instance, Syria sees today the chemical weaponry in its possession as the highest level of escalation a sort of doomsday weapon. Therefore, and for fear of Israeli retaliation, Syria has refrained from using chemical weapons even in grave situations, but should Syria shelter under an Iranian nuclear umbrella, it might conclude (rightly or wrongly) that there are higher levels of escalation than that of chemical weapons, and these higher levels will restrain Israels reaction should Syria make some use of chemical weapons. This could increase the likelihood of the use of chemical or radiological weapons. This calculation also holds true for nuclear countries, which might conclude that they have more levels of freedom for the use of chemical and radiological weapons, due to the existence of higher escalation levels which curb the opponents reaction.
The French experience

rance was not at ease with the nuclear umbrella the U.S. offered to Europe, as it could not believe that the U.S. would make good its promise and voluntarily move itself closer to the brink of a nuclear holocaust. According to France, it would not make sense for a country to deliberately engage in nuclear war just because of its promise to another country. France therefore wanted to deter the Soviet Union on its own, but owing to the lack of symmetry between the two countries, France could not achieve a mad parity. The alternative approach it developed was that of Sufficient Destruction.6 The idea was that since the Soviet interest in France was limited, it would be sufficient for France to be able to inflict damage offsetting the potential interest of the ussr in France. The assumption was that the ability to strike at several major cities in the ussr would deter it from threatening the very existence of France or its supreme interests (deterrence of the strong by the weak). Could Iran develop such a capability against the U.S.? Would the ability to hit a handful of cities guarantee that the U.S. would not take action against Iran in a manner similar to what it did in Kosovo and in Iraq? Would Iran possess sufficient nuclear capability to make American clinical analysis indicate it would not be worthwhile for the U.S. to risk direct military intervention in conflicts of which Iran was part? It should be emphasized that in order to deter the U.S., Iran does not need advanced intercontinental ballistic capability. A threat to a small number of U.S. targets can be provided by weapons launched from commercial vessels
6. See e.g., Alain Peyrefitte, Cetait de Gaulle (Fayard, 1994). .
44
Policy Review

or carried in a suitcase or in a container. One should also remember the growing presence of Hezbollah in South America and Mexico.
The black swan vs. Nash

nash equilibrium is a solution concept in which each player is familiar with the strategy of the other players, and his conclusion is that, in view of the strategies of the others, he should stick to his present strategy. All players reach this conclusion and stick to their present strategies, thus creating continual stability. Nash equilibrium was actually the strategic conceptual basis of the nuclear Cold War. Indeed, while the Soviets made little use of the term mad, they shared a common paradigm with the Americans as to the meaning of nuclear weapons.7 In fact, the Cold War equilibrium was based on a paradigm partnership between the antagonists: Both had to believe in a kind of mad for mad to exist. Both parties saw nuclear weapons as the doomsday weapon, which should not be used in any other, non-doomsday circumstances, and thus were of very limited usefulness. Not only did both superpowers hold that there was nothing to be gained from a nuclear war, but after the Cuban Missile Crisis neither of them attempted to seriously develop a strategy for indirectly leveraging nuclear weapons (without actual utilization) as a tool to gain the upper hand in a conventional crisis. After Cuba, the nuclear superpowers mostly refrained from directly challenging each other, and the violent friction of the Cold War was routed to the Third World. The two opponents also recognized that strategic transparency was essential between them and, hence, that they must have direct communication with one another. The MoscowWashington hotline was accordingly set up. Indeed, in the period from Cuba to the development of sdi one can count very few incidents which threatened the Nash equilibrium. When they occurred, they resulted from one player misunderstanding the strategy of the other, or escalation due to new developments (these incidents included the Able Archer 83 exercise, which the Soviets suspected to be American preparations for a nuclear attack, as well as the Yom Kippur War). But, there always remains the black swan possibility. A black swan when a dynamic and adaptable foe develops a conflict concept not foreseen by the opponent is essentially the opposite of Nash equilibrium, as it involves undermining the opponents paradigm instead of paradigm-sharing between the two opponents. Iran has excelled in producing black swans. Thus, for example, the Western security concept speaks on the one hand of contending with oppos7. See e.g., Lawrence Freedman, The Evolution of Nuclear Strategy (Palgrave Macmillan, 2003), 154, 156, 159160, 163165.
45
Ron Tira
ing state actors armed with stockpiles of top hardware, and on the other hand of nonstate opponents able to operate small groups armed with light weapons. Hezbollah is a black swan: a nonstate organization without statelike vulnerabilities, but armed with prime ballistic hardware in quantities exceeding the corresponding stockpiles of most nato members. Iran challenged our war paradigm by introducing a proxy that enjoys the advantages of not being a state (such as the possibility of disappearance) but is capable of strategic fire with an intensity that most industrialized nations cannot match. Indeed, Iran does not tend to be a paradigm-sharing partner of its opponents, but exercises strategies that counteract opponents paradigms. This is done by series of crises and brinkmanship, defiant behavior that passes the escalation buck to the A black swan opponent (the rational and responsible oppooccurs when a nent sometimes acquiesces to the defiant act to prevent escalation), deliberate creation of vague indynamic and between situations, operation outside the spectrum adaptable foe of the opponents plans and concepts, deliberate ambiguity concerning Iranian positions, frequent develops a changes of stance, undermining the opponents conflict concept determination and strategic credibility, use of proxnot foreseen by ies, etc. Iran specializes in creating lines of operation not necessarily identifiable by its opponents. An the opponent. example is Irans near victory in its eight-year struggle with the U.S. on the hegemony of Iraq, essentially a war of an indirect and multi-dimensional nature which made many officials in the U.S. fail to admit that it was taking place. According to the American paradigm, war is an exercise in weaponry, defined in time and space, relying on organization, resources, and logistics. For the Iranians the war on Iraq is an open-ended marathon undertaken in order to wear down the political and public will of the U.S., and to break apart, intimidate, and bring closer the Iraqi system by a gamut of unconventional and indirect means. How a nuclear Iran would behave is not easy to know, since everything seems to be possible and no contention can be proven. But from observing the way Iran manages its affairs, it is not certain that it is a natural candidate for paradigm-sharing in a Cold War style. One must at least take into account the possibility that Iran will become a serial producer of nuclear black swans. Iran resembles a sumo wrestler, constantly shoving his adversary, exerting pressure at various points, always looking for an opportunity to take another small step forward, to give another push and to throw the adversary offbalance, even momentarily. The incessant friction with the adversary, as an end in itself, gives Iran an advantage, in that it can identify and take advantage of occasional opportunities that emerge to wear down the adversary
46 Policy Review

wear down its strength and erode its will. In this, Iran is thinking out of the box and making use of all national means of power. For a Politburo bureaucrat, Cuba may have been a disappointment, but an Iranian could have found a cumulative strategic-political advantage in a series of Cuba-like crises irrespective of the particular outcome of each individual crisis. In view of this Iranian behavior pattern, it is possible that Iran will find original ways of utilizing nuclear weapons as a strategic tool for promoting its interests, even if it would not be the first to launch a nuclear attack. Iran is not a natural candidate for viewing nuclear weapons as a tool of all-or-nothing application. Its natural inclination is to create gray areas and to practice brinkmanship, to be defiant here and give way there. The Iranians are very creative and they will certainly find original ways to leverage nuclear weapons. For example, Iran could utilize nuclear weapons by making declarations or preparations to strike at critical times. It could unhinge its opponents through a series of crises involving nuclear brinkmanship. It could influence crises by conducting a nuclear test on its own territory during a crisis, or setting off a nuclear device outside the atmosphere over a crisis space. If its forces become involved in conventional warfare, Iran might deploy nuclear weapons to the battlefield and thus raise the stakes for a foreign power that was contemplating intervention, for fear that the foreign power itself might inadvertently hit a nuclear device. Indeed, one should consider whether the U.S. could have repeated an operation similar to the one it carried out to liberate Kuwait if a nuclear bomb had been kept in Kuwaits urban area. Nuclear weapons could thus serve as a passive shield for conventional action, while, if Iran turns nuclear, it might become more daring and direct in less-than-nuclear engagements. A nuclear umbrella might create conditions permitting some use of chemical and radiological weapons, and even permitting the far-reaching yet still-restrained step of launching a nuclear weapon against an uninhabited area of an opponent country. Nuclear brinkmanship might have two opposite results: one, that a crisis might escalate out of control and deteriorate into a nuclear exchange. The other, its reverse, that the higher risks involved in a crisis would make Israel and the U.S., as reasonable and responsible countries, back off from challenges. The prevailing view at the relevant time might be that the specific interest at the center of a particular crisis is not worth the risk of a nuclear showdown. Iran, again, has a long procession of satellite states and nonstate actors under varying degrees of control; they are sufficiently distant for Iran not to be held accountable for their actions, but close enough to be of service to Iranian interests. Transfer of nuclear weapons to a foreign entity is quite a bold measure, but Iran knows how to conceal its own command of a proxy. In a nuclear game, the transfer of chemical or radiological weapons to a proxy could be subjected to lesser restraints. Indeed, it is possible that Iran (rightly or wrongly) would assess that the use of a nonstate proxy might lead to an unconventional event for which there is no return address.
Ron Tira
The nuclear black swan

ot only were the U.S. and the Soviet Union nuclear antagonists, they were nuclear partners. They were paradigmatic partners, thinking inside the box, usually within similar, welldefined boxes. Both saw mainly two sides to the game. Both acknowledged a dichotomy: It was all or nothing, either nuclear peace or full-scale nuclear war. Therefore, they both agreed that nuclear weapons were in effect unusable. And after the Cuban crisis, they both realized the importance of transparency and mutual understanding. India turned nuclear as a mature democracy. When Pakistan went nuclear, it was given (willingly or not) a tough, occasionally arm-twisting American tutoring. North Korea went nuclear under harsh Chinese restraint, and with modest regional aspirations. But if Iran goes nuclear it will do it alone, and in its own way. If Iran goes nuclear, and especially if other regional players follow suit and also become nuclear, a new kind of game will ensue, the like of which we have not yet seen. There is no sense in comparing the two superpowers during the Cold War with a multilateral system combining several regional players possessing rudimentary nuclear capability. There is also no sense in comparing the American-Soviet paradigmatic partnership with an Iranian black swan. All this on top of the other tensions characteristic of the Middle East, such as unstable regimes and the danger of nuclear weapons falling into the hands of revolutionary groups, state actors characterized by internal tensions resulting in incoherent behavior, and issues of civilian control of the military. Just imagine Qaddafis Libya but with a few nuclear bombs. Another critical aspect stems from the fact that in the Middle East an existential threat may not be to a country, but rather to a regime. Much like the Pakistani nuclear strategy, a threat to the regime of a nuclear country or large-scale subversion might be declared a nuclear casus belli.8 With nuclear umbrella agreements and questions of regime stability might come a scenario in which Iranian subversion directed at the regime of a non-nuclear country would give rise to complex problems for its nuclear protector. This, when the threatened regime has an interest in aggravating the crisis to black or white alternatives, since a situation of gray might cause the umbrella to evaporate. Therefore, if Iran becomes nuclear, the combination of increased instability and lack of certainty could produce one of the most dangerous chapters in human history.
8. The Evolution of Nuclear Strategy, 300.
48
Policy Review
Income Integration at School

By Amy L. Wax
ames Ryan, a prominent and learned law professor at the University of Virginia (and a former colleague of mine there), has produced a scholarly, well-written, and exhaustively researched book on education policy, Five Miles Away, A World Apart (Oxford). The narrative is polished, lucid, informative, and revealing. The style comes across as impartial and evenhanded. Ryans vision for school reform has immediate appeal. The entire impression is one of sweet reason. Yet this book is fatally flawed. The problem, quite simply, is that Ryan ignores reality. A clearer example of educational romanticism to use Charles Murrays evocative phrase would be hard to imagine. Ryan asserts that the continued separation of urban and suburban students has been the most dominant and important theme in education law and policy for the last fifty years. Because demography tracks geography, that division translates into schools stratified by income, class, and race. Ryan sees this pattern as a formula for inequality. His goal is income inteAmy L. Wax, the Robert Mundheim Professor of Law at the University of Pennsylvania Law School, teaches remedies and social welfare law. She is the author of Race, Wrongs, and Remedies: Group Justice in the 21st Century (Rowman and Littlefield, 2009).
Amy L. Wax
gration: to educate rich and poor students alike, equally and together in the same schools. Because racial minorities and especially blacks are disproportionately low-income, income integration will increase racial diversity as well. For Ryan, this is devoutly to be wished. Ryans tale of two schools provides a vivid trope for his central theme and an occasion to review the long, fascinating history of school reform efforts on many fronts. Freeman High, in suburban Henrico County near Richmond, Virginia, is predominantly white and largely middle class. Test scores exceed the state average, and the school has a full complement of honors and AP classes. It is orderly and serene, with few disciplinary problems. Most students graduate on time and go to college. Thomas Jefferson High School, or Teejay, located in the city of Richmond, is demographically nearly the mirror Class mixing opposite of Freeman, with blacks comprising 82 has been percent of its student body. The atmosphere is tense, championed by with metal detectors at the door and police in the halls. Students skirmish frequently and fights are reformers for not uncommon. Although most students score prosome time as a ficient on the (admittedly undemanding) statewide tests, fewer than half take the sat and only 15 perrearguard action cent are enrolled in Advanced Placement courses. against the Fewer still receive top scores on the exams. Dropout failure of racial rates are higher and college attendance rates far lower than at Freeman. integration. Although these schools are five miles apart as the crow flies, they represent for Ryan two contrasting educational worlds that have defeated every effort to unite them. What accounts for this separation and what maintains it? Here Ryan is at his best, weaving the complex threads of legal, social, and cultural trends into the picture we see today. A large part of the story and an oft-told one involves race. The push for racial integration in the wake of the landmark 1954 decision in Brown v. Board of Education met staunch resistance and accelerated white flight to the suburbs and private academies. As the legal barriers to integration crumbled, residential separation fueled by selfselection, discrimination, neighborhood school assignment, and local control impeded racial mixing in schools. Attempts to integrate through busing foundered on political opposition and collapsed in the wake of the Supreme Courts decision in Milliken v. Bradley perhaps the most important since Brown itself which sharply limited judges power to order remedial busing across school district lines. Increasing suburbanization, stoked by rising affluence, the desire to escape urban disorder, and the sheer mobility of American life, meant that too few whites remained in urban districts to achieve anything like meaningful integration. A dramatic push then ensued for school quality: More money, new programs and curricula, better teachers, upgraded facilities, and school finance reform would solve the
50 Policy Review

problems of minority students. Integration became a sideshow pursued through the carrot rather than the stick: Choice programs, vouchers, charter and magnet schools were proposed and occasionally tried. Some school districts Seattle, and Louisville, Kentucky, for example adopted racial balancing plans. The Supreme Court clipped their wings, too, by ruling in the Seattle and Louisville school cases that, except as a remedy for prior discrimination, school districts could not mandate racially diverse schools through race-based school assignments. A few districts, such as Wake County, North Carolina, adopted plans to integrate schools by income, with mixed success. Such programs remain limited in scope, and some have been shut down. These efforts have made little headway against the polarization of schools by race and class. And none has closed or even narrowed the yawning gaps in achievement that are It is critical currently observed. It is these divisions that Ryan to Ryans seeks to address through more aggressive integration of schools by income. Ryans goal does not originate plan that with him, as class mixing has been championed by all schools reformers for some time as a rearguard action against the failure of racial integration. What do should remain these advocates hope to achieve? Although Ryan predominantly claims that integrating schools by income will premiddle class. pare students to be better citizens, he devotes far more attention to a more pragmatic goal: improving educational outcomes for disadvantaged children by placing them among more affluent peers. In schools, as in other communities, most participants tend to conform to the dominant culture. And in well-off suburban schools, Ryan claims, the culture is often one of rigor, order, and achievement. Because the school environment is contagious, placement in these schools will tend to raise the aspirations and motivation of poor students. But Ryan doesnt rest solely on the improvements expected from school culture. Middle-income parents are vocal and politically influential. As a result of their clout, suburban schools have better facilities, teachers, and offerings and are managed more effectively. Less privileged students will benefit from being placed in these superior institutions. It is critical to Ryans plan that all schools should remain predominantly middle class. The key is a school that embraces high expectations. Beyond that, Ryans proposal rests on four key elements. First, he believes that schools dominated by middle-income children are more likely to be quality schools, whereas those with mostly poor students are destined to be deficient; second, he acknowledges the existence of average differences by race and class in achievement, attitudes, and behavior; third, he advances a peculiar theory of social contagion by immersion, which assumes that placing disadvantaged students into a mainstream environment will yield more uplift and improvement than rival school reforms; and, finally, he is convinced that well-off suburbanites have an obligation to diversify their
Amy L. Wax
schools, but also that having poor classmates wont compromise their childrens education. Ryans most important task is to convince us that the enormous disruption entailed by widespread income integration, assuming it could be implemented at all, will yield enough benefits to justify the scheme. Will this really improve the prospects of disadvantaged children and more so than possible alternatives? Unfortunately, Ryan fails to persuade on these critical counts. He states that all students benefit from attending majority middleincome schools, and that poor students in particular benefit from doing so. These are sweeping claims. But they rest on the thin reed of a handful of social science studies, which are summarized in about a page and a half in this 383-page book. Only one of the papers he refers to specifically examines the results of balancDoes the ing schools by socioeconomic status. The rest report disruption on small and relatively short-lived initiatives that placed minority urban students into mostly white entailed by suburban schools. This evidence is deficient in qualiwidespread ty and quantity and lacking in critical detail. No one income will be persuaded who is not already a true believer. integration yield In addition, as with too many reform proposals, there is no serious cost-benefit analysis, no attention enough benefits to the magnitude of observed effects, and no systematic comparisons to alternatives like more rigorous to justify the school curricula, novel teaching methods, longer scheme? school days or school years, upgrades in teacher quality, reductions in class size, or intensive and comprehensive initiatives, such as the Knowledge is Power Program (kipp) Academies, that seek actively to inculcate middle-class mores and behaviors. Ryans back-of-the-hand treatment of the downsides of income integration is even shallower than his analysis of the benefits. What are the costs to well-off suburbanites of attending schools with a significant number of urban, minority, or disadvantaged students? Ryan asserts confidently that income integration doesnt hurt the achievement of better-off students unless poor children predominate. But the evidence is threadbare at best. Astonishingly, he devotes even less attention precisely one paragraph in a 383-page book to the data on potential costs than to the evidence on benefits. The research he refers to is either dated (including the James Coleman study of 1966), of only tangential relevance (in examining the influence of neighborhood, not school, composition), or was done abroad (Scotland). All the studies involve very small samples, fail to control for selection, focus mostly on race rather than economic status, and rely on minimal measures of academic competence rather than on the full spectrum of achievement. In short, his authorities fall far short of supporting his confident reassurance that changes in a schools demography should not worry suburban parents. A careful and lengthy dissection of the social science data
52 Policy Review

on the potential negative effects of income integration, rather than a boilerplate paragraph followed by a string of see generally citations, should be the centerpiece of a proposal for such a radical and intrusive change. That Ryan does not provide this renders his case fatally weak. Although Ryan does not call wary suburban parents racist, elitist, or just plain selfish, he dismisses resistance to system-wide integration as irrational and unfounded. The innuendo of base motives is present at every turn, expressed by the clipped phrase with which he summarizes the theme of decades of school reform politics: Save the Cities, Spare the Suburbs. In maneuvering to spare themselves by avoiding the diversification of their schools, affluent suburbanites are somehow getting away with something. Yet the issue of how demographic jiggering will affect well-functioning schools is absolutely central to the merits and the realpolitik of his proposal, and well-off suburbanites fear of compromising their childrens education is clearly a pivotal impediment to his proposals adoption. His cavalier treatment of this urgent topic is by far the weakest part of this book.
What parents want

he real failure, however, is that Ryans focus on academic consequences is far too narrow, and disingenuously so. Although suburban parents care about learning, they also care about milieu. They demand order, safety, and decorum, and they know that these aspects of school climate are critical to learning. But there is more at stake than academic achievement. The main reason educated middle-income parents avoid schools with lots of poor and minority students is the fear of those childrens antisocial attitudes and disruptive behaviors. Ryan is virtually oblivious to this concern. Although he admits to gaps by race and class in outlook and socialization, his approach to these differences is riddled with blind spots, denials, and internal contradictions. In minimizing the importance of these cultural divisions, he pays no attention to the broader social developments that have fueled academic and behavioral disparities by race and class. The differences are pronounced, and are growing. Urban minorities and, increasingly, less-educated whites suffer from chaotic families and dislocations occasioned by low achievement, high unemployment, and poor socialization. As Brad Wilcox and Don Peck have recently noted, even the white middle class has fractured into segments defined by education. An alarming fault line has emerged between white college graduates and those without a degree, with the latter increasingly resembling high school dropouts in their rising rates of financial distress, family disintegration, single parenting, partner conflict, and behaviorally troubled children. Well-off, better-educated suburbanites, despite embracing the ethos of tolerance and diversity, mostly stick to the 1950s script. Their lives are characterized by family stability, low rates of criminality, and a devotion to work
Amy L. Wax
and schooling. Despite the depredations of popular culture, their standards of decorum remain relatively strict and they do a good job of socializing their children. In the end, Ryan cannot avoid confronting the fact that, as developmental psychologist Richard Nisbett states in Intelligence and How to Get It, lower ses [socioeconomic status] children are more likely to have behavior problems, which are disruptive to one degree or another for all who have to deal with such children. And indeed Ryan does concede, albeit skittishly, that disadvantaged students are more likely to hold dysfunctional attitudes or display disruptive behaviors. He refers, for example, to black adolescents opposition to conventional middle class white values, and to the problems of dealing with loud, obnoxious, poorly behaved, low income African American students. But Ryan Ryan does knows that frank talk of such behavioral deficits concede, albeit indulges stereotypes and fits uneasily with the liberal zeitgeist. Not surprisingly, his approach to the topic skittishly, that is riddled with mea culpas, disclaimers, contradicdisadvantaged tions, and evasions. He simultaneously deplores the students are prejudice against urban schools as expressed in stereotypical assumptions about urban minorities more likely and relies on those very stereotypes and the functo hold tional superiority of the bourgeois folkways that characterize predominantly white suburban schools dysfunctional to justify his income integration project. On how attitudes. schools should actually deal with gaps between poor and middle-income students, Ryan takes refuge in banal bromides or deploys the weasel word challenging but he never says how the challenges presented by disorderly conduct and dysfunctional norms should be met. Instead, he repeatedly denies that he is blaming the victim. Indeed, he devotes more attention to establishing his bien pensant bona fides than to confronting the inevitable disruptions that arise from bringing students together across wide social divides. One would never know from this book that addressing these difficulties is crucial to the success of his vision. Nor does he acknowledge the role these concerns might play in suburban parents trepidation about sending their children to socially or racially integrated schools, let alone hint that their reluctance might be justified. Ryans dismissal of parents fears contains an important proviso: There is nothing to worry about provided that the school culture remains one of high expectations. That condition is the crux of the matter. He repeatedly assures us that high expectations will persist as long as the number of poor students is kept down. But he waffles on how many poor children is too many. With a nod to the social science of tipping (the rapid change that occurs when rival norms or demographics become a significant presence) he suggests an upper limit of 25 to 40 percent a number that will strike
54 Policy Review

many suburban parents as alarmingly high. But common sense observation reveals that significant dislocations can occur far short of that, and that a few bad apples can damage the interests of everyone. A handful of disorderly, disrespectful, or seriously deficient students can paralyze a classroom, drain teacher attention and energy, and distract students who want to learn. One or two violent incidents can destroy school order and serenity, gum up the works with expensive security measures, and make everyone feel unsafe. Dealing with even a few serious and recidivist troublemakers diverts time and resources away from academics, enrichment, and extracurricular pursuits. Above all, disruptive and poorly socialized students threaten teachers authority, which is central to the respectable climate that Ryan so depends on and values. An obscenity hurled at a teacher can change everything and, unless dealt with decisively, can drive superior teachers away. To be sure, there are bad apples (and good kids) from every race and class. But the key question is how many. By resisting an influx of children lower down on the class scale, middle-income suburban parents are just playing the odds. Ryan is also naive about the fragility of middle-class mores and the dynamics of contagion. He relies heavily on improving disadvantaged students by exposing them to better-off youths on uplift by osmosis, if you will but he barely mentions the prospect of reverse contagion. He assumes that the less fortunate will adopt the values of the privileged, but never considers that students from rough backgrounds can pull others down. Unfortunately, children, and especially teenagers, are an impressionable lot, are easily tempted to take risks, and are swayed in unpredictable ways by the company they keep. Having classmates born outside of wedlock or with close relatives in prison may lead children to accept those conditions or find them less objectionable. A few influential adolescents can draw others into bad habits and anti-social behaviors including petty crime, profane language, contempt for authority, early sexual promiscuity, violence and academic indifference. If the ecology of bourgeois mores is less robust than Ryan assumes, bringing in classmates who dont accept those norms could well backfire. The propinquity designed to impart middle-class standards may end up by placing those very standards under assault.
The self-defeating cult of diversity

erhaps the greatest flaw of this book lies in Ryans refusal to confront strong cultural currents that, whether or not he endorses them (and he seems to accede to some), threaten to subvert his plans effectiveness. The largest threat by far is from an ethos of diversity that frowns on distinctions based on background, sees all cultures as equivalently valuable, and hesitates to condemn even dysfunctional lifestyles. Proper bourgeois parents once refused to apologize for protecting their children from bad influences. Their advice towards troubled classOctober & November 2011 55
Amy L. Wax
mates was stay away from them. Now, the very notion of respectability is suspect and misplaced tolerance reigns. Parents hesitate to inveigh against the dangers of rough company, especially if class and race differences are involved. Yet conscientious parents remain preoccupied with their offsprings conduct and values. Reverse contagion dare not speak its name, so its far easier just to keep poor and minority students away. The dogma of diversity also threatens school order and academic integrity. Although Ryan disclaims class mixing as a panacea and asserts that his project is merely meliorist, he forgets that magical thinking takes over on the ground. The attitude that differences must be denied or eliminated transforms the quest for equal opportunity into a demand for equal results. Once students from divergent backgrounds come The attitude that together, the idea that no gaps in achievement, discipline, or anything else can be tolerated threatens differences must to take over. The attack on rigor and ranking, heavily larded with progressive ed-school cant, generates be denied or regular calls to eliminate tracking, dismantle honors eliminated classes, dumb down or diversify the curriculum, revise and water down the grading system, impletransforms the ment trendy teaching methods, and shoehorn marquest for equal ginal students into honors and Advanced Placement opportunity into classes. Strict discipline and exacting standards are suspect. If poor or minority students more often a demand for make trouble, proper behavior must be redefined equal results. and discipline rethought in line with progressive thinking about differing cultural styles. High expectations are recast as noxious forms of cultural hegemony imposed by an arrogant ruling class. Examples of this phenomenon abound. Affluent Fairfax County, Virginia, one of the countrys best school districts, has hatched plans to eliminate high school honors classes because too few minority students enroll and because, oddly, those classes seem to discourage black students from signing up for Advanced Placement courses. A September 2010 speech by Thomas E. Perez, head of the Civil Rights Division of the Justice Department, called for drastic action to eliminate racial disparities in student discipline. A New York Times editorial published in June echoed that call, and disparaged arguments that suspending black youths at higher rates was justified by worse behavior. Reports have appeared nationwide deploring racial disparities in rates of school suspensions and expulsions in Oregon, Texas, and New York, with indignant vows to reform the system to equalize penalties for blacks and whites. These developments, although completely in keeping with the zeitgeist, are perverse. Not only do they threaten to undermine the very school culture needed to accomplish Ryans uplift project, but they also drive away middle-income families that are essential to maintaining a desirable milieu.
56 Policy Review

That less-well-off students more often behave badly is a fact conveniently forgotten in the haze of misplaced tolerance. Behavioral disparities, like gaps in academic achievement, are seen as primarily a failure of the school, which must make those gaps go away. And school officials (and parents) are simply too cowed, befuddled, and conflicted to resist the muddled edicts of these trendy ideas. Emblematic of the failure of cultural confidence is the explanation offered in a New York Times Magazine article by a newly minted Bronx middle school teacher, fresh out of Brown, for his inability to control his class. Who am I, he asks, this 24-year-old white kid from the Upper West Side, to tell a bunch of kids from a very different background how theyre supposed to behave and act? Who, indeed? With friends like this, Ryans proposal doesnt need enemies. If the well-educated son of the Upper West The KIPP model Side hesitates to tell kids from a different backis less hobbled ground how to act, how will an average teacher, with less cultural capital and academic acumen, by political manage to do so? Can middle-class mores really be correctness in effectively transmitted by teachers and administrators who dont believe in them and are unwilling to tackling the defend them? In the face of such dithering, its not surprising that parents do not trust school authori- stubborn realities ties to deal firmly and decisively with the disrupof cultural tions entailed by a significant influx of the disaddysfunction. vantaged. And everyone knows that pushing against the received wisdom risks accusations of racism, class prejudice, and nefarious motives. Why, then, would sensible parents vote to enter the Orwellian world of denial and doublespeak that inevitably accompanies diversity? The passage that most tellingly reveals the fatal tension between improvement and inclusiveness is one in which Ryan compares his income integration proposal to the Knowledge is Power Program Academies, where disadvantaged children are actively socialized to middle-class norms and comprehensively scripted in all aspects of behavior. While praising the kipp model and acknowledging its effectiveness, Ryan baldly disavows kipp as a template for the economically integrated schools he envisions. Why? In predominantly middle-class schools, disadvantaged students would resent being picked out of the crowd for criticism or correction. In other words, active socialization is off limits, because any implication that poor students are deficient and need improvement demeans them. Yet the whole reason to embark on the grand experiment of system-wide income integration is to reform the habits, attitudes, and behaviors of less privileged children. Nonetheless, Ryan implies that, in the name of inclusiveness and avoiding bad feelings, any direct pursuit of this goal is forbidden. We might well wonder how well the uplift program can be expected to work under these restrictive conditions. At the very least, Ryans odd disclaimer should make
Amy L. Wax
us reject income integration in favor of the kipp model, which is less hobbled by political correctness in tackling the stubborn realities of cultural dysfunction. That intensive socialization is not part of his scheme is no problem for Ryan, however, because class mixing is premised on the belief that uplift will occur automatically. In fleshing out his project, Ryan stresses the structural and institutional over the culturally prescriptive sources of remediation. Once low-income and minority students are put in the right schools, surrounded by ample resources, pushy and influential parents, high-quality teachers, and good values, they will just spontaneously adopt the folkways of the educated, suburban class. Poor habits and attitudes will fade, profanity, insolence, and disruptive behavior will decline, learning will improve, and scores will magically rise. The belief Firm discipline, explicit censure, public correction, in uplift by low grades, punishments, and suspensions will prove unnecessary. The belief in uplift by immersion immersion allows Ryan to avoid the judgmentalism inherent in allows Ryan to openly endorsing a clear set of values. And it obviates the need for teachers and administrators confiavoid the judgmentalism dent enough to defend and impose those values even in the teeth of stubborn differences in outcome by of openly race and class. endorsing a clear But what if improvement by osmosis doesnt work? If Ryan is wrong and kipp is right if disset of values. advantaged children must be taught explicitly how to act and think, and relentlessly instructed in proper behavior then income integration will fail. If laggards cant be brought up, the only option is defining deviancy down. But not before we create an elaborate menu of expensive new services and programs which, notwithstanding Ryans insistence that no one gets hurt, inevitably means less money for middle-income childrens enrichment. Suburban parents know that scarcity exists and that resources are limited. Whats spent on the elusive, and ultimately futile, quest for strict equality of results wont be spent on what they want for their children and, in many cases, have worked hard to give them. In the end, Ryans disregard of the cultural contradictions inherent in his plan, and his anxious deference to a code of political correctness, virtually guarantee that his project will neither sell nor succeed. Ryans ambivalence extends even to a central proviso of his scheme: Most children in most schools must be relatively well off. But insisting on this demographic balance risks giving offense. Poor and minority parents do not want to be told that their access must be limited or that a schools quality depends on their children being kept out. Ryans account of Richmonds public magnet Governors School illustrates this dilemma. With a mostly white and heavily Asian student body carefully controlled to draw in middle-class children from nearby districts, the school was resented by
58 Policy Review

Richmonds black families, including those enrolled in a public school housed in the same building, who felt excluded from its academically intensive programs. Ryan is at pains to sympathize with the public school parents by noting the comparatively unequal status of their nonmagnet schools. But there is not a word about how school districts should handle these complaints as they struggle to preserve the predominantly white and middle-class demographic that Ryan touts as the key to success. If poor and minority parents object to limits on their numbers, resisting their demands could prove awkward and politically costly. But if they are allowed to veto balancing plans, how can Ryans project ever get off the ground? Unless someone is willing to push back and make it stick and Ryan leaves doubt about whether he himself would be his vision of income integration is untenable. Ryans failure to face this Experiments thorny issue forthrightly makes his proposal virtualin income ly useless to the hapless parents and schools who must grapple with reality and make it all work. integration So how is the optimal student body to be mainthat have been tained? In the wake of the failure of judicially manvoluntarily dated racial integration, the question looms as to whether class mixing can be accomplished in just the adopted have right balance, and how stability can be achieved in ultimately the face of parental prerogatives and volatile demographics. Here Ryan pulls his punches yet again. foundered. Inexplicably, he touts the expansion of school choice and vouchers as an aid in income integration. Yet he freely admits that middle-income parents game the system and relentlessly gravitate to people just like themselves. The only way to square this circle is to limit school choice. So school choice isnt really school choice after all. The fact is that its almost impossible for school districts to maintain the necessary student profile without ironclad, centralized control and constant tinkering with school composition. This often requires telling parents they cant send their children to the schools they want, or that their children must switch schools. The few experiments in income integration that have been voluntarily adopted most notably, in Wake County, North Carolina have ultimately foundered on the constant upheavals and reassignments needed to keep the schools in balance. Even Ryan concedes that educated, middle-class parents wont put up with this. If there is one thing they staunchly resist, it is their children being moved around like pieces on a chess board in the service of some grand scheme. They know that constant mobility erodes the stable bonds, enduring ties, and continuity that are essential to quality schools. And they reserve the right to judge their own childrens individual needs, and to give those needs priority over societal imperatives. In light of these prerogatives, Ryans failure to address how income integration would be accomplished system-wide is a major shortcoming. He focuses almost exclusively on moving poor children into high-functioning
Amy L. Wax
suburban schools while barely discussing the far more intractable task of luring middle-class children into subpar institutions in dangerous and decrepit neighborhoods. Yet the project of income integration cannot be accomplished just by shifts from inner city to suburbs. Movement in the opposite direction will, of course, never happen. The notion that suburban families will flock to the citys core on anything like the scale necessary is, quite simply, a fantasy. It is certainly a no-go in Philadelphia, where I live, and where the specter of flash mobs, mean streets, rampant school violence, faked tests results, and gross mismanagement have suburban parents shaking their heads in dismay. And shake them they should. All conscientious parents strive to do whats best for their children. For most suburbanites, this is defined as shielding them from troubled city The notion that schools and neighborhoods. As Ryan quotes one suburban parent, the whole point of moving to the suburban families suburbs was to get away from the problems of will flock to the urban systems. The very parental vigilance Ryan hopes to harness for his approved purposes is bound citys core on to scuttle his grand scheme. anything like the Finally, Ryan ignores a fertile source of opposition to forced integration of any kind, whether by race or scale necessary class which is that well-off families choice of is, quite simply, schools is a notorious bastion of hypocrisy, replete with rules for thee but not for me. The privileged a fantasy. elites somehow manage to opt out of the educational schemes they confidently, and arrogantly, foist on others. President Obama sends his children to Sidwell Friends, one of the toniest private schools in Washington, where students are hand-picked, diversity carefully managed, and rule-breakers ejected. The story of school integration in this country is that of the rank and file citizens and minorities left to fight it out, while the people in charge remain safely ensconced on the sidelines, far removed from the battle zone. This is a fertile source of political resentment and of continuing opposition to proposals like Ryans. But what of children stuck in inadequate urban schools? Dont we care about them, and shouldnt they have a chance to escape? Although Ryans main tactic is to deny his proposal has any downsides, his ace in the hole is a claim of justice. In disparaging the dominant mantra of Save the City, Spare the Suburbs, he contrasts the natural desire of individuals to do the best they can for their own children, to whats good for everyone. The implication is clear. Suburban reluctance shows a selfish disregard for the compelling claims of others. Thus, even if equal opportunity requires some sacrifice, resistance deserves no quarter. Here, once again, Ryan makes life easy for himself. He assumes without argument that suburban parents desire to maintain the status quo must give way, and that their duty is to welcome everyone, including those who might disrupt their schools. But its far from clear where that obligation comes
60 Policy Review

from. Ryan admits that the sustained efforts of caring, dedicated, vigilant parents, and the proper socialization of children, are essential to school success. He concedes that the values of students and parents go a long way towards making schools what they are and keeping them that way. But what is the source of those attributes and how are they maintained? Here Ryan waffles as it serves his purposes. He repeatedly asserts that norms and attitudes are key, and resources and money secondary. But he also talks as if school quality flows from above, and that an atmosphere conducive to learning is somehow conferred by government and propped up by undue favoritism and political clout. The implication is that middle-income suburbanites enjoy privileges that are unearned and even illegitimate. Because they dont entirely deserve their pleasant communities or well-functioning schools, they have no right to keep them to themselves. It follows that they are obliged to share. And that obligation extends even to people who dont hold the same priorities and who threaten to compromise them. It should come as no surprise that not everyone embraces this point of view. Ryans effort to paint good values as a resource that present holders owe to all comers slights an important insight. Orderly neighborhoods and excellent schools are built and maintained from the bottom up, through the hard work, restraint, planning, prudence, and rectitude of ordinary citizens. Good schools depend on strong norms, which do not operate in isolation. They feed off the efforts of like-minded people who support one another in a common endeavor. But mutual cooperation is always provisional and never assured. Because those who come together to create excellent institutions are always on sufferance with one another, inclusion can never be an entitlement and must be continuously earned. Ryan implicitly writes off the ladder view of neighborhoods and communities, whereby access to higher rungs is achieved through striving, sacrifice, and playing by the rules, and where people who dont show they honor those rules are unwelcome. On this view, although well-off suburbanites might support and be willing to help pay for improving education for the disadvantaged, they dont see themselves as obliged to open their untroubled, well-functioning schools to students who might disrupt them. And they dont see themselves as owing entry to children whose parents dont care as much as they do or dont do as good a job. Even if the cities should be saved, the suburbs should be spared.
Without voice, theres always exit
ltimately, ryans project founders on the fact that people cannot be forced to live and go to school with those who threaten or undermine their values at least not in the country we currently occupy. The very vigilant and self-protective attitudes on which Ryan depends for his projects success lead well-heeled parents to remove
61
Amy L. Wax
their kids from schools that, in their opinion, dont work. And, for better or worse, the schools that work best are filled with people like them. Parents may lose their voice in the din of multicultural orthodoxy, but they always have exit. When it comes to their children, they will exercise it if they can. Although residential choice has been relentlessly tarred as white flight, it also is an enforcer of standards and the last bastion of freedom. And theres always private school. Whatever ill-conceived schemes educrats devise, determined parents will find a way around them. They will find a way to vote with their feet. The bottom line is that income integration is more zero-sum than winwin. For less-advantaged children in malfunctioning schools, or with parents who just dont care, the only viable option is to reduce the need to escape. Far better to improve education where its happening than to lean on strengths found elsewhere. If parents and community leaders want good schools, they have no choice but to create them. Unfortunately, it is not enough to will the ends. They also have to will the means. School quality depends on children who behave well, work hard, and want to learn and who are prepared to do so. Schools cannot create good students. Only parents can. There is no substitute for building them from the bottom up. The end of Ryans book is upbeat, if oddly deflationary. While admitting that middle-class parents desire for control has so far stymied income integration on anything like the scale he desires, he insists that diverse schools are the wave of the future. Rising numbers of immigrants and minorities, as well as complex shifts in urban and suburban populations, will chip away at monolithic schools. Demography is destiny. To which one can only respond: Bring it on. But give it time. Here patient gradualism is preferable to utopian zeal. Although its tempting to force things, we should resist. When it comes to diversity, heavy-handed social engineering is the enemy of progress. How much better to just let it happen.
62
Policy Review
Policymakers in the Dock

By Peter H. Schuck
ort suits actions for money damages due to personal injuries of one kind or another are ubiquitous in American life and law. Most tort cases concern claims brought against drivers, health care providers, homeowners, product distributors, other businesses, and other private actors whose allegedly faulty conduct injured the claimant. But society has a special interest in tort cases seeking to impose liability on government entities or officials (public tort law) because such cases sometimes implicate important public policies, institutional values, and constitutional principles. Although private and public tort law are similar systems for the most part, the key difference the legal immunity from suit that is sometimes available to public officials and entities lies at the heart of our governmental system. Americans need to understand the justifications and limitations of official immunity.
Peter H. Schuck is a professor at Yale Law School. His most recent book is Understanding America: The Anatomy of an Exceptional Nation (Public Affairs, 2008), co-edited with James Q. Wilson. A slightly different and fully footnoted version of this article is forthcoming in the University of St. Thomas Law Journal.
Peter H. Schuck
Let us begin with the similarities between private and public tort law. Both systems share two conventional goals: deterring socially undesirable conduct, and compensating the victims of such conduct. Some other social goals, however, constrain the pursuit of deterrence and compensation. First, both public and private tort systems should affirm, or at least not contradict, the dominant moral values of the community. This is not to say that those values are stable; in a dynamic, restless society like ours, they are subject to change. (Consider, for example, public attitudes toward smoking, seatbelt use, and homosexuality.) Second, both systems should be cost-effective, with costs and benefits defined very broadly. (Many legal experts seriously doubt whether the private tort law system can pass this test.) Now for some of the dissimilarities. Government, Government, as taxpayers and plaintiffs lawyers know, has the deepest pockets of all. This means that judgments as taxpayers against it will definitely be paid, which is not the and plaintiffs case with private tort judgments unless the defendant is wealthy or adequately insured. This differlawyers know, has the deepest ence probably contributes to certain features of government liability statutes like the Federal Tort pockets of all. Claims Act: its preclusion of juries and punitive Judgments will damages, and its restrictions on plaintiffs legal fees (which presumably, and in my view improperly, also definitely limits their access to the courts). The public fisc, so the argument goes, is simply so tempting a litigation be paid. target that access to it must be constrained like a honeypot guarded by nettlesome bees. But perhaps the most important difference between private and public tort law the one that I shall emphasize here concerns the importance of the goal of encouraging vigorous decision making, including appropriate risk taking. (Appropriate, of course, is a question-begging word, and properly so in this context.) Vigorous decision making the avoidance of undue timidity is socially desirable in both domains, but especially in the public sphere, for several reasons. If a private firm decides that the legal risk of having to compensate potential victims is low enough compared with the actions potential benefits to the firm, it will undertake the action for example, manufacturing a product, undertaking a medical intervention, driving a car, or buying machinery for the workplace. Such decisions will have some effects on third parties, of course the product will be available for other consumers to purchase, the medical treatment may improve (or impair) the lives of the patients family members, the car may injure others, and so forth. But the effects of those actions, and of the adjudication of rights and damages that may result, will largely be internalized to the two parties. In that sense, the only public value implicated by such disputes is the social desire to remedy the wrong suffered by the victim. If the private tort rules induce the potential injurer not to act not to produce a widget
64 Policy Review

or take that car trip it is largely a matter of indifference to the rest of us. (To be sure, if the product is not a widget but a potentially life-saving drug, or the car trip is to the hospital or voting place, the social effects of the action will of course be that much greater and the difference between public and private stakes in the decision that much less.) Ordinarily, the social calculus will be quite different when the putative actor is a government official, especially the kind that political scientist Michael Lipsky aptly termed street-level bureaucrats: police officers on the beat, schoolteachers, social workers, drug enforcement agents, and the like. These officials must make difficult decisions with large effects on the public, little time for reflection, and inadequate information. (This is not always the case, of course; deciding whether to issue a parking ticket is neither a tough call nor of great The public fisc, social moment.) If street-level officials are to act, so the argument their actions will often involve coercion (and occagoes, is simply sionally violence), which increases the risk that they will violate someones legal rights and risk vehement so tempting a complaint, bureaucratic discipline, or litigation. litigation target Such an individual official, like her private sector counterparts, will consider the costs and benefits of that access to her two choices: whether or not to act, and, if she it must be will act, whether to act in one way rather than another. As citizens, we should want the official who constrained. makes this assessment to consult not her selfish interests but primarily her official duties, her responsibilities to the public, her professional norms, and so forth. But suppose that the government official chooses inaction. Here is the central difference between her situation and that of her private counterpart that should most concern us: If she fails to act when she should act, significant public interests are sacrificed, whereas if her private counterpart chooses inaction, the risks of that choice ordinarily fall only on the private entity alone. (Again, there are exceptions, as with the failure to make and market life-saving drugs.) Some public functions are governmental monopolies, others provide collective goods that only government can supply, and still others involve special duties of protection that discourage private substitutes. If the official fails to act as she should in these situations, no one else can or will. When, then, should she act? In general, the answer is: when she either is under a duty to act, as in the case of a police officer who has reason to believe that a crime is afoot, or when discretionary action would advance the public interest, as in the case of a police officer who must decide whether to drive the squad car down a particularly crime-prone block instead of continuing down the safer main avenue. Two other differences between private and public tort law also affect vigorous decision making: the set of incentives that shape the individuals behavior, and the choices that are available to her. The most important
Peter H. Schuck
incentive differential is that private actors can be compensated for taking on additional, profit-increasing risk, while public officials ordinarily cannot. This difference mainly reflects the difference between private and public compensation systems, which in turn reflect a somewhat different mix of goals and constraints. Private systems, at least in principle, are flexible enough to reward employees who take risks that advance the firms interests. Public systems, however, tend to be far more rigid and categorical, which prevents street-level officials from appropriating for themselves any of the social value that may flow from their greater risk-taking: Indeed, such appropriation might be thought undesirable or even corrupt. For such officials, then, taking greater risks in pursuit of the public good is essentially all pain and no gain. If public officials have fewer self-interested incenOfficials who tives to act boldly in the public interest than their face asymmetric private counterparts do, they also have more risks of criticism options for avoiding such action or minimizing the risks that action might entail largely because they and liability may are generally less closely supervised and monitored than their private counterparts. First, officials can have enough simply refrain from acting in situations where they discretion to should act, especially if they think that neither their choose relatively superiors nor those harmed by their passivity will observe their inaction. Second, they can delay their riskless actions. decisions for example, by seeking their superiors approval or more information before they act. Third, they can retreat to formalism and its cognates, legalism and ritualism; they can comply with a rule in a way that simplifies their task and reduces their personal exposure but that often defeats the rules underlying purpose. Finally and most important, officials who face asymmetric risks of criticism and liability may have enough discretion to choose relatively riskless actions over relatively risky ones, even if this choice is socially perverse. Consider a social worker who faces the difficult choice of removing a child from a troubled home, or leaving him with his parents in hopes of preserving the family. Assume that she is more likely to be criticized (or sued) if she leaves the child with his parents who then abuse him, than she would be if she placed the child in foster care. In close cases, and at the margin, her selfinterested motive might outweigh (ambiguous) professional norms and be decisive in the removal, even if not removing the child would be in his best interests. Such asymmetric risk structures are very common in life, especially in the public service. These differences in incentives, choices, and monitoring make it easier for the low-level official to finesse her duty and protect her self-interest by not acting vigorously than it is for her private-sector counterpart. In addition, the substantive criterion for deciding what to do the content of her duty, if you will is much more opaque than in the private sector, where profit
66 Policy Review

maximization is the lodestar. (I am not suggesting that the profit criterion is always clear enough to dictate specific actions, only that it is much clearer than that of order maintenance, public safety, sound education, and other public law goals.) This ambiguity provides greater scope for officials to make self-protective choices that compromise the public interest in vigorous decision making and appropriate risk taking.
The difference 9/11 has made

his concern about official self-protection is greatly heightened in a post-9/11 world. In this world, the need for bold, aggressive official action to avert serious threats is greater than ever, yet it is also a world in which officials have more reason than ever to fear that they will be severely criticized, arraigned before the court of public opinion, and sued for damages or even prosecuted criminally if they make a decision that was arguably wrong or that may seem wrong with the benefit of the hindsight afforded by a calmer, less dangerous, more leisurely time. Officials can also anticipate that if they are indeed sued over such a decision, they may well face ruinous personal and financial costs even if the government agrees to defend (which is not always assured) them and even if they ultimately prevail. Why are such suits more likely in todays heated political and legal climate than they were in the past? First, the stakes are higher. Because we face a constant threat to public safety, we must significantly rely for better and for worse on public officials to protect us. This reliance is simply a fact of life; it does not depend on ones views about how to combat terror, the scope of human rights, or the limits of governmental power. Second, national security demands that many official decisions be veiled for some period of time. Transparency is almost always a virtue in a democracy, but occasionally it must yield to secrecy although one hopes that this exception is only narrow and temporary. Yet secrecy, once unveiled, seems, and sometime is, sinister and invites legal challenge of the underlying action. Third, the legal standards that are supposed to govern official conduct in this area for example, torture, material assistance, threat are often maddeningly murky. Judicial interpretations of the relevant phrases often deepen, rather than dispel, this murkiness. This legal uncertainty also means that both sides can usually muster respectable legal arguments for their positions. Fourth, courts are more likely to be uncomfortable with officials conduct of the war on terrorists, which often involves practices preventive detention, interrogation, isolation, rendition, secret evidence, special tribunals, limits on counsel, Guantanamo, and so forth that go right up to the line of legality, as conventionally understood, and that arguably may have
Peter H. Schuck
crossed that line. The fact that Congress often supports the presidency in the national security setting would affect the courts in different ways. Judges may be more inclined to defer to the other branches greater political responsibilities, but it may also increase judges sense of isolation, perhaps intensifying their felt duty to rein in the other two branches in the name of the Constitution. This latter dynamic may have influenced the Supreme Courts decision in its post-9/11 rulings on these national security issues. Finally, the empirical issues (e.g., costs, benefits, degree of effectiveness) and the normative tradeoffs (e.g., security, liberty, diplomacy) that are raised by controversial national security policies and practices are always difficult and deeply controversial, but their salience and weights vary over time. This is especially true today, a decade after 9/11, when the publics fear of violent attack has receded considerably. With the ostensible abatement of the emergency, both the public and the courts tend to give greater weight to the temporarily subordinated but usually dominant rule-of-law values as conventionally understood, which a liberty-loving public reveres and of which the courts conceive themselves to be the primary institutional guardians. Taken together, then, these post-9/11 developments magnify officials already significant anxieties about the risks of being punished in one way or another for decisions that they made or influenced earlier when they were participants in the war against terrorists. Are these anxieties well-founded, or are they merely pretenses enabling officials to avoid responsibility for their misconduct? I believe, first, that these litigation anxieties are indeed often well-founded, and second, that even or especially if officials exaggerate the risk of such sanctions, it can greatly harm the polity.
The case of Padilla v. Yoo et al.

he tortuous path of the torture memos is a long and winding road that shows no signs of reaching its destination. These legal analyses, initially requested by the Central Intelligence Agency, were prepared in 2002 as the Bush administration developed new detention and interrogation policies regarding suspected Taliban and al Qaeda terrorists captured abroad. The memos, prepared by lawyers in the Justice Departments Office of Legal Counsel (olc), concluded that prolonged detention, isolation, and a wide range of harsh interrogation techniques (including waterboarding, most notoriously) that the cia wanted to use on a small number of enemy combatants (three waterboardings, as it turned out) were legally permissible. The memos were also forwarded to the attorney general, other senior Justice Department officials, and senior White House staff who, along with the cia, presumably relied on them in framing their policies. The principal drafter of the early memos was John Yoo. A graduate of Harvard College and Yale Law School and a former Senate staffer, U.S.
68 Policy Review

Supreme Court clerk, prolific scholar on issues of separation of powers, international law, and the law of war and national security law, and professor at Boalt Hall School of Law at the University of California, Berkeley, Yoo is a leading exponent of broad presidential powers in wartime, subject to limited or no judicial review. (Disclosure: Yoo was my student at Yale in the early 1990s, and I consider him a friend.) The memos were reviewed and signed by Jay Bybee, his boss and the head of the olc at the time. The memos aroused enormous controversy from the moment the first one was leaked in June 2004; the Obama administration published them in 2009 and harsh criticism from many quarters continues unabated to this day. Some attack the memos legal analysis, others the Bush administrations policy decisions to engage in the authorized practices, and still others the bureaucratic politics and secrecy The lawsuit, surrounding the documents. and Judge On June 12, 2009, Judge Jeffrey White of the federal district court in San Francisco issued an Whites decision opinion refusing to dismiss a lawsuit against Yoo brought by Jose Padilla, a U.S. citizen who was con- upholding it, are victed in 2007 of aiding terrorists and sentenced to ill-conceived for more than seventeen years. Padilla (and his mother, at least three who also sued) had sought nominal damages and a declaration that Yoo violated Padillas constitutional distinct reasons. rights by rendering opinions and formulating policies that allegedly set in motion Padillas illegal interrogation and detention. Yoo has appealed Judge Whites decision to the U.S. Court of Appeals for the Ninth Circuit, which held the case in abeyance pending the Supreme Courts decision in Ashcroft v. al-Kidd on the scope of immunity from Bivens lawsuits (damage claims against individual public officials for constitutional violations). On March 2, 2011, the Supreme Court decided the alKidd case, which involved an allegedly pretextual use of the material witness statute by former Attorney General John Ashcroft to detain a citizen who never was called to testify. For reasons that I shall now explain, I believe that the Ninth Circuit should, and will, reject the claims against Yoo at the threshold. (If I am right, of course, it follows that officials like Yoo should not be prosecuted criminally, where the standard of proof and the necessity of showing the requisite mens rea would be much higher, and the sanctions more severe.) This lawsuit, and Judge Whites decision upholding it, are ill-conceived for at least three distinct reasons: legal principles, public policy, and professional ethics. I take this view even though I am willing to concede for purposes of my argument here the main criticisms leveled at Yoos memos: that they got the law wrong at key points, were sometimes sloppily and superficially reasoned, and were intended to justify a desired outcome in the sense that, as when lawyers counsel clients in the typical case, the clients ask how close they can get to the legal line without transgressing it.
Peter H. Schuck
Legal Principles. Even assuming that these criticisms of the memos are correct, the long-standing law of official immunity requires that Yoo be protected from civil liability unless the court finds that the governing law on the particular issue was so clearly established that in giving the contrary advice, that he should or must have known that his contrary advice was erroneous and would violate the plaintiffs legal rights. As the Supreme Court recently explained in al-Kidd, this clearly established law standard is designed to give officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects all but the plainly incompetent or those who knowingly violate the law. This standard, which the Court has worked out over decades, may sometimes be difficult to apply in particular cases The Supreme in hard cases, legal clarity is in the eye of the Court held two beholder but it does strike roughly the correct balance between the competing public and private years ago that interests. For Padilla to overcome Yoos immunity assumed facts do claim, then, he must do much more than demonstrate that Yoos legal conclusion (not just his reanot suffice, soning) was wrong and violated his legal rights, without more, although even this will be exceedingly difficult to do. He must also show that (1) Yoo could not reato advance a sonably have believed that his legal advice was corplaintiffs claims rect because the law was so clearly to the contrary, and (2) this erroneous advice was the proximate to trial. cause of Padillas alleged torture. Padilla cannot meet this standard. His legal obstacles begin with the insufficiency of his complaint. In considering Yoos motion to dismiss, Judge White had to assume the truth of Padillas factual allegations. But the Supreme Court held two years ago in Bell Atlantic v. Twombly that assumed facts do not suffice, without more, to advance a plaintiffs claims to trial. To avoid dismissal, a plaintiff must show that the link between his alleged facts and his legal theory is more than conceivable; it must be plausible on its face. Then, only three weeks before Judge Whites decision in Padilla v. Yoo, the Supreme Court reaffirmed Twombly in the case of Ashcroft v. Iqbal, which dismissed a complaint alleging, as Padilla does against Yoo, unconstitutional detention and interrogation after 9/11. (Justice Souter and three others dissented.) As in its other official immunity decisions, the Court reiterated the need to head off burdensome discovery and trial unless a plaintiff can make a plausible threshold showing of possible liability. Judge White, however, did not even bother to distinguish Iqbal. Even with the benefit of discovery, however, Padilla would be unable to make the requisite showing. Consider the evidentiary obstacles he would face quite apart from having to overcome Yoos strong immunity defense (discussed again below). He would have to prove that Yoo, rather than Bybee (not a defendant and now a federal appeals court judge), was
70 Policy Review

responsible for the allegedly wrong advice in the memos; that Yoo did not reasonably rely on information provided to him by the cia about the techniques; that the layers of Yoos superiors (all fine lawyers) who reviewed and transmitted the advice upward did not endorse it and take the responsibility on themselves (i.e., did not become a supervening cause of what ensued); and that Yoos advice was the actual and proximate cause of the policy decisions that Padilla challenges rather than the many other factors that must have influenced President George W. Bush and his military, intelligence, and political advisers in the decision to use the challenged techniques. In order to establish these things, moreover, Padilla would presumably have to take depositions of President Bush, the attorney general, and their top staff members and subPadilla would poena their internal deliberative documents, which have to prove would surely be privileged. Judge White brushed aside these and other legal obstacles, reasoning that that Yoo, rather all of them were matters to be developed through discovery, even though the Court in a suit against than Bybee, was the director of the Federal Bureau of Prisons decided responsible for in 1980 had rejected precisely this reasoning, statthe allegedly ing: It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be wrong advice in weeded out early in the discovery process through the memos. careful case management given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side. Assuming that Padilla could somehow hurdle these threshold legal obstacles, he would face three other formidable ones. First, he must show that the tight restrictions that the Court has long imposed on the right to bring Bivens actions should be relaxed in this case. But in the four decades of Bivens actions, the Court has allowed such claims to proceed in two situations, none since Carlson v. Green in 1980 and neither of which is remotely like the claims in Yoo. It is also noteworthy that although Congress has legislated twice on the treatment of detainees since 9/11 and the disclosures about detainee mistreatment at Abu Ghraib and elsewhere, it has never created a tort remedy of this kind. (In the Intelligence Authorization Act of 2008, Congress did seek to limit interrogation techniques available to the cia to only those contained in the U.S. Army Field Manual, which does not allow waterboarding. President Bush vetoed the bill because of this provision, and Congress sustained his veto.) Moreover, the standard that a Bivens plaintiff must satisfy that there are no special factors counseling hesitation in allowing a damage remedy against an individual official rather than suing under the Federal Tort Claims Act cannot be met in a case like Yoo, in which serious legal and factual difficulties abound. Once again, Judge White waved this case law
Peter H. Schuck
aside, dismissing in one sentence the closest precedent a recent D.C. Circuit decision denying a Bivens remedy to plaintiffs with claims similar to Padillas simply because those plaintiffs were detained abroad while Padilla was detained here an irrelevant distinction in the case against Yoo. Second, Padilla must show that Yoos memos were wrong as a matter of law. Given the ambiguity of international instruments, domestic statutes, and judicial precedents on this point at that time (and even now), this will be a challenging, though not impossible, task. Although some legal scholars disparage Yoos analysis and conclusion, others some liberal, some more conservative accept Yoos conclusion while disputing some of Yoos legal analysis. Notably, Congress has refused on several Critics say many occasions to define and prohibit waterboarding as torture, and at least one circuit court has defined nasty things torture under the Convention Against Torture in a way that likely would exclude waterboarding from about Yoo and the definition. Again, the point is not that Yoos conhis views, but clusion on this question was ultimately correct I express no opinion here on that question but few assert that only that it was genuinely arguable at the time and he did not even now. believe in the The third and most important obstacle is official immunity, discussed briefly above. The Court has principles he insisted both on protecting officials good faith avowed. decisions even when erroneous (if they were not erroneous, of course, they would not need the immunity), and on ensuring in immunity-worthy cases that this shield operates at the threshold that is, before the official is subjected to the burdens of discovery, the financial costs and trauma of litigation, the risks of potential liability, and the temptation to reduce those risks by testifying in ways that compromise legitimate governmental secrets (graymail). The Courts reason for granting such protection is certainly not any judicial solicitude for the individual official. Rather, the Courts concern is for the publics interest in fearless, vigorous decision making, especially by officials who must exercise often delicate judgment under highly constrained conditions. Thus, to overcome the immunity claim, Padilla must prove not just that Yoo violated his legal rights but that the violated right was clearly established as a matter of law, implying either that Yoo wrote his memos in bad faith or that he was so obtuse that he failed to reach a legal conclusion that was obvious to all. Even if some of Yoos legal analysis turns out to be wrong, how can Padilla possibly show that Yoo did not believe in the truth of his own analysis and indeed knew that it was manifestly wrong? Critics say many nasty things about Yoo and his views, but few assert that he did not believe in the principles he avowed or that he eschewed the rule of law. He simply inter72 Policy Review

preted the law differently than they do and in their view, wrongly. On this point, consider the context in which Yoo worked, as described by former federal judge and Attorney General Michael Mukasey:
The difficulty and novelty of the legal questions these lawyers confronted is scarcely mentioned; indeed, the vast majority of the criticism is unaccompanied by any serious legal analysis. In addition, it is rarely acknowledged that those public servants were often working in an atmosphere of almost unimaginable pressure, without the academic luxury of endless time for debate. Equally ignored is the fact that, by all accounts I have seen or heard, including but not limited to Jack Goldsmiths book, those lawyers reached their conclusions in good faith based upon their best judgments of what the law required.
Consider also the findings of an analysis by New York Times reporters Scott Shane and David Johnston, published in June 2009. They wrote that many Justice Department lawyers reviewing the legal arguments for the harsh interrogation techniques in 2005, including Deputy Attorney General James Comey, who strongly opposed using them as a matter of policy, concluded that the techniques were lawful. (Comey is widely praised for his integrity and professionalism for example, his conduct in the infamous, unseemly effort by White House officials to pressure the then-hospitalized attorney general, John Ashcroft, to reauthorize President Bushs domestic surveillance program.) The Times article also detailed how later olc directors Jack Goldsmith and Daniel Levin, while withdrawing Yoos memo, accepted the legality of those techniques (including, in Levins case, waterboarding), even as they opposed their use on policy grounds and found some of Yoos earlier analysis to be sloppy. These techniques, it seems, yielded a great deal of valuable information that surely saved the lives of many Americans and others. Judge/General Mukasey again:
We learned a great deal through the cia program. In fact, you can focus on only three of the detainees Abu Zubaydah, Khalid Sheikh Mohammed, and Abdel Rahim al Nashiri and see a huge trove of valuable information . . . Not only did [Khalid Sheikh Mohammed] disclose general information on how Al-Qaeda moved money and people, but also specific information that helped disrupt other plots, including one involving airplanes, this one directed against the library tower in Los Angeles that was to be carried out by a south Asian group. . . . Other information received from ksm resulted in the capture of people involved in a plan to develop a biological weapons capability in the United States, and on and on.
Whether the clear life-saving value of these techniques is or should be relevant to their legality whether Kantian or consequentialist assessments
Peter H. Schuck
should control our legal definition of torture is a hard and important question that deserves robust public debate. For present purposes, the key point is that this question clearly was an open one when the memos were written and perhaps even today. On February 18 of this year, a district court in South Carolina held that Defense Secretary Robert Gates and other officials, but not including Yoo (who was not a defendant), were entitled to immunity because the illegality of their actions regarding Padilla was not clearly established at the relevant time. For the reasons I have given, and especially in light of al-Kidd, I expect the Ninth Circuit to agree. Public Policy. There is a good reason why the Supreme Court insists on broad immunity for all but clearly established and Lawyers should knowing violations of law and this reason is not an exception to the rule of law but is an essential not be severely element of it. Society depends on mid-level officials punished for like Yoo to give their superiors (and us) their best writing arguably judgment on difficult issues without having to worry about being dragged into court or disbarred if they sloppy or faulty turn out to be wrong or (in the case of criminal memos or being prosecution) when a new administration arrives in Washington. The public interest is compromised on the wrong when such officials pull their analytical punches in anticipation of having to defend possible Bivens side of history. actions. Immunity in these circumstances benefits us; if it also benefits officials like Yoo, that is incidental. Given the punchpulling alternative, it is simply the lesser of two evils. The legal immunity to which I believe Yoo is entitled in this case, of course, cannot immunize him from other more informal sanctions and costs. The Justice Department, having perceived a potential conflict of interest in representing him, ceased doing so, agreeing instead to pay a private lawyer for Yoo at an hourly rate far below what the best of them charge, especially in the hothouse legal environment of Washington, D.C. Fortunately for Yoo, a conservative legal eminence, Miguel Estrada, offered to represent him pro bono. Otherwise, Yoos defense costs could have been financially ruinous even if Yoo were to win his case. Yoo is lucky to have Estrada in his corner, of course, but how many officials can count on pro bono representation by a top lawyer who is prepared to take up the heavy burden simply in order to vindicate a principle? Putting officials at risk of personal bankruptcy whether or not they later prevail in court is not only manifestly unfair to them; more important, it will tend to discourage top-flight lawyers from going into public service and giving necessary but controversial advice. Professional Ethics. There has been much talk among Yoos critics of disbarring him and other officials who gave legal advice that some other lawyers and lay people find abhorrent. Some of these critics claim that his client was the nation, not the president as if this would make a difference,
74 Policy Review

given that the president speaks for the nation. In reality, this is an effort to find scapegoats for Bush administration policies that many Americans fervently opposed and that contributed to his party being driven from office in the 2008 elections. (That the Obama administration has reinstituted most of these policies, though not waterboarding, is only one of the many ironies of this episode.) Lawyers should not be severely punished for writing arguably sloppy or faulty memos, much less for being on the wrong side of history which in this case, of course, has not yet been finally written. Obamas doj leadership was right to reject the idea of seeking professional sanctions against Yoo. It is one thing to disagree strenuously with a lawyers view of the law, quite another to say that he has traduced the rule of law and must be banished from its precincts. A professional ethic worthy of the name knows the difference. Protecting officials from being sued personally over good faith legal and policy disagreements does not place them above the law. Rather, it preserves the fine line between law and politics, between legal sanctions and legitimate disagreement about law and policy, that is so necessary for the integrity and vitality of each. If government lawyers advice turns out to be wrong or illegal, they will suffer the obloquy, fairly or unfairly, of having rendered it, as well as the reputational, professional, and other sanctions that may follow it. In Yoos case, he has been constantly harassed and his classes picketed since he returned to Boalt Law School to teach six years ago, while many faculty and students at the university have publicly demanded his ouster. They have a perfect right to do so, of course, but such harassment can only increase officials disincentives to engage in the kinds of vigorous decision making and appropriate risk taking that are needed to protect vital public interests. One response to this disturbing reality is to say that this demonization simply comes with the territory, that to borrow from Harry Truman, if government lawyers cant take the heat, they should stay out of the kitchen. But this response is too easy; it will simply encourage our government lawyers to serve up pabulum instead of more piquant and controversial recipes. A better answer is for those who criticize the lawyers decision to continue to vigorously argue their positions, but to make their arguments in public deliberative fora with a decent respect for the difficulty of such legal questions in short, to turn on the light but turn down the heat.
The future
overnment officials are risk-averse like almost everyone else maybe even more so. Other things being equal, and given the asymmetric incentives faced by those who must make controversial decisions or recommendations, even a small risk of being sued or prosecuted (and if a lawyer, disbarred) over those decisions or recommendations would tend to induce rational officials to hunker down, cover their rears,
75
Peter H. Schuck
hedge their bets, and pull their punches. Encouraging timorous self-protection on the part of officials to whom we entrust the most delicate balancing of our vital interests and values is the last thing that a sound legal system should do. As it happens, we have been there before. Professor and former olc director Jack Goldsmith traces what he calls cycles of timidity and aggression in official and public attitudes toward the intelligence community and its work. Political leaders, he writes:
pressure the community to engage in controversial action at the edges of the law and then fail to protect it from recriminations when things go awry. This leads the community to retrench and become risk averse, which invites complaints by politicians that the community is fecklessly timid. Intelligence excesses of the 1960s led to the Church committee reproaches and reforms of the 1970s, which led to complaints that the community had become too risk-averse, which led to the aggressive behavior under William Casey in the 1980s that resulted in the IranContra and related scandals, which led to another round of intelligence purges and restrictions in the 1990s that deepened the culture of risk aversion and once again led (both before and after 9/11) to complaints about excessive timidity.
As Mukasey notes, that pendulum is now swinging back once again. This is to be expected in a society like ours, committed to both security and liberty. We must look to the law to regulate and adjust the tension between them in light of current realities, social needs, and imperishable values. There is much room for reasonable, professional, and patriotic disagreement about where the balance should be struck and which legal forms that balance should take. For example, if we conclude that detainees like Padilla deserve a monetary damage remedy for wrongful treatment in detention, it may be better to create such a remedy against the United States under the Federal Tort Claims Act or some special statute, so long as the government retains a properly-designed defense for good-faith discretionary policy judgments that turn out to be erroneous. A remedy directly against the United States would strike a better balance between the compensation and optimal deterrence goals than would a Bivens remedy against individual officials like Yoo. If we are primarily concerned with setting the record straight and assessing official conduct rather than providing a monetary remedy, then appointing a governmental investigative body or a private blue-ribbon factfinding commission may be appropriate. The precise form that the responses to particular instances of alleged official misconduct should take, of course, is an important question that deserves more careful assessment than I can give it here. The law of governmental and official liability is the fulcrum of that necessary, delicate balance. One hallmark of a banana republic is that officials realistically fear that they will face criminal prosecution and exile if and
76 Policy Review

when the opposing party gains office. (This is one reason, of course, why autocratic leaders so desperately hang on to power.) Fear of personal ruin, however, can do great damage to the polity even in a genuine democracy like ours. At the margin, where good and evil inevitably do their work, even a small risk of serious personal sanctions against officials can be enough to deform our democracy, unleashing a new cycle not just of timidity and aggression but also of personal destruction that we cannot readily control. Except in cases of demonstrable criminality, let us reserve our reprisals, principled as well as vengeful, for elections.
77
Ne New from Hoover Instit tion Press m Hoo er Institution P I

Conservin Liberty Conserving Liberty ng
By Mark Blitz Mark
Originating in Hoover Institution discussions under the Originating in Hoover Institution discussions under the e auspices of the Boyd and Jill Smith Task Force on Virtues of auspices of the Boyd and Jill Smith Task Force on Vir tues of a Free Society, Conserving Liberty defends the principles of Free Society, Conserving Liber ty defends the principles of y e American conser vatism, clarifying many of the narrow or American conservatism, clarifying many of the narrow or mistaken views that have arisen from both its friends and its mistaken views that have arisen from both its friends and its foes. Author Mark Blitz asser ts that individual liberty is the foes. Author Mark Blitz asserts that individual liber ty is the most powerful, reliable, and true standpoint from which to most power ful, reliable, and true standpoint from which to clarify and secure conservatismbut that individual freedom y clarify and secure conser vatismbut that individual freedom alone cannot produce happiness. He shows that, to fully alone cannot produce happiness. He shows that, to fully grasp conser vatisms merits, must grasp conservatisms merits, we must we also understand also understand the substance of responsibility, toleration and other virtues, the substance of responsibility, toleration and other vir tues, traditional institutions, individual excellence, and selftraditional institutions, individual excellence, and selfgovernment. government. Blitz rst sketches the elements of conservatism that appeal Blitz rst sketches the elements of conser vatism that appeal to individuals, reminding us that to consider ourselves rst as to individuals, reminding us that to consider ourselves rst as free individuals, not in group, class, racial, or gender terms, is free individuals, not in group, class, racial, or gender terms, is the hear t of American conservatisms strength. He then shows the heart of American conser vatisms strength. He then shows t h at need certain virtues to secure our rights and use them that we need cer tain vir tues to secure our rights and use them successfullyresponsibility being chief among them. The successfullyresponsibility being chief among them. The author also explains how institutional authority works, why it is author also explains how institutional authority works, why it is necessar y, and where it supports the intellectually and morally e necessary, and where it suppor ts the intellectually and morally excellent. He clari es how natural rights and their associated excellent. He clari es how natural rights and their associated vir tues can be base from which to secure and preserve e virtues can be a base from which to secure and preser ve necessar y institutions. necessary institutions. Mark is the Fletcher Jones Professor of Political Philosophy e Mark Blitz is the Fletcher Jones Professor of Political Philosophy at Claremont McKenna College in Claremont, California. fo at Claremont McKenna College in Claremont, California.
July 2011, 137 pages pages 978-0-8179 9-1424-0 ISBN: 978-0-8179-1424-0 $19.95, cloth 978-0-817 79-1426-4 eISBN: 978-0-8179-1426-4 $10.00, epub
To order, call 800.621.2736 o order, call 800.621.2736

Hoover Institution Press, Stanford University, Stanford, California 94305-6010 Hoover Institution Press, Stanford University, Stanford, California 94305-6010 www.ho verpress.org w.hoo oo www.hooverpress.org
Books Religion in America

By Peter Berkowitz
Robert D. Putnam and David E. Campbell, with the assistance of Shaylyn Romney Garrett. American Grace: How Religion Divides and Unites Us. Simon and Schuster. 688 Pages. $30.00.
o the detriment of its pedagogical and scholarly mission, political science has increasingly circumscribed its domain. At the center of the discipline today one finds ever more elaborate formal modeling of politics, and ever more technical measurement and manipulation of data. At the same time, political science models grow ever more remote from politics and ever less accessible to even engaged citizens and thoughtful office holders. And the investigations that dominate the work of political scientists increasingly focus on methodological issues and statistical puzzles for their own sake. Indeed, with every
Peter Berkowitz is the Tad and Dianne Taube Senior Fellow at the Hoover Institution, Stanford University. His writings are posted at www.PeterBerkowitz.com.
year it becomes more difficult to find in our leading political science departments courses for undergraduates that examine such basic matters of common concern as Congress, the presidency, and the courts. Our universities have turned out to be a fertile breeding ground of a new kind of political scientist who is not interested in politics. Or not interested in politics as ordinarily understood. Of course there are honorable counterexamples and encouraging opposing trends, but it is astonishing how little time and energy the typical political scientist devotes to such topics as, say, the foundations of liberty, democracy, and capitalism, and the virtues on which they depend; the principles and design of good government; the change in political ideas and institutions over time; the use and abuse of political rhetoric; the conduct of diplomacy and war; and debates over the national interest and the crafting of policies and laws to advance it. Whereas every White House is staffed with economics professors who provide economics expertise, and law professors who provide legal expertise, rare is the political scientist these days on whom an administration calls to provide political expertise. Religion is particularly neglected by political science. Here and there one finds distinguished exceptions. University of Akron professor John C. Green has done major work examining religious attitudes and opinions in America. And Jean Bethke Elshtain, a professor at the University of Chicago Divinity School trained in political theory, has clarified the contribution of religiously-inspired political actors and has brought to bear on the dilemmas of contemporary political life concepts
Policy Review
Books
and categories drawn from theology and faith. But by and large and notwithstanding the centrality of religion to human affairs and, over the past several decades, its renewed political significance at home and abroad American political scientists neglect it. In these circumstances, the publication of American Grace is a big event. It identifies, and applies sophisticated social science analysis to answer, important questions about religion in America. It hearkens back to an older kind of scholarship, in the spirit of hall of fame political scientists Robert Dahl, James Q. Wilson, and Samuel Huntington, who, different as their areas of expertise are, produced bodies of work which demonstrated that serious and systematic study that built on empirical research without fetishizing method could shed light on questions of interest to scholars, citizens, and officeholders alike. American Grace is a collaborative work by rising star David Campbell, a professor of political science at the University of Notre Dame and author of Why We Vote: How Schools and Communities Shape our Civic Life, and the distinguished senior scholar Robert Putnam, a professor at Harvards Kennedy School of Government. It is very much in the spirit of Putnams earlier writings, particularly Making Democracy Work: Civic Traditions in Modern Italy (1 9 9 3 ) and the bestselling Bowling Alone: The Collapse and Revival of American Community (1996). In the former, Putnam examined Italian society and politics, focusing on how forming and maintaining civic associations generated social capital the norms of trust and reciprocity that arise out of social networks
80
which, he argued, is a crucial ingredient of democratic self-government. In the latter, he explored changes in the propensity to associate in the United States, the resulting changes in the stocks of social capital, and the consequences for American democracy. In American Grace, Putnam and Campbell team up to assess how religion, in the words of their subtitle, divides and unites us. That anodyne formulation, however, conceals the striking overall finding of the book: Contrary to the common wisdom among professors and pundits, religion in these polarizing times does far more to unite Americans than to divide us. The authors are accomplished empirical researchers, and their findings are primarily based on data derived from The Faith Matters Survey, which they themselves designed, implemented, and analyzed. Their data analysis is enriched by an impressive appreciation of American history, culture, and society. In addition, their book provides three long chapters of what they call vignettes thick descriptions, in anthropologist Clifford Geertzs famous formulation crafted by their colleague Shalyn Romney Garret, which vividly and sympathetically portray a variety of Protestant, Catholic, Jewish, and Mormon religious communities. The books precisely etched accounts of the men and women who worship in these varied congregations is smoothly woven into the authors overall data-driven argument about the social and political effects, mostly salutary, of religion in America. Their rare facility with both quantitative and qualitative analysis enhances the authors handling of both.
Policy Review
Books
Putnam and Campbell proceed from the observation that religion in America has long been exceptional, and in two striking respects: Religious devotion is greater in America than in any other advanced liberal democracy, and so is religious pluralism. Since the 1960s, however, America has witnessed a growth in religious polarization:
Americans are increasingly concentrated at opposite ends of the religious spectrum the highly religious at one pole, and the avowedly secular at the other. The moderate religious middle is shrinking. Contrast todays religious landscape with America in the decades following the Second World War, when moderate or mainline religion was booming. In the past, there were religious tensions, but they were largely between religions (Catholic v. Protestant most notably), rather than between the religious and irreligious. Today, America remains, on average, a highly religious nation, but that average obscures a growing secular swath of the population.
All: What Americans Really Think About God, Country, Family, Racism, Welfare, Immigration, Homosexuality, Work, the Right, the Left and each Other, and in the last decade those from political scientists Morris P. Fiorina, Samuel J. Abrams, and Jeremy C. Pope in Culture War? The Myth of a Polarized America. Both of these books showed that when one moves beyond elite discourse and examines ordinary Americans lives and opinions, one discovers a majority of Americans with live-and-let-live habits and attitudes. Similarly, according to Putnam and Campbell, when one turns away from the dire pronouncements by intellectuals and politicians about the polarizing effects of religious faith and
looks instead at how Americans of different religious backgrounds interact, the United States hardly seems like a house divided against itself. America peacefully combines a high degree of religious devotion with tremendous religious diversity including growing ranks of the nonreligious. Americans have a high degree of tolerance for those of (most) other religions, including those without any religion in their lives.
Given the growing divide in America between the religious and the secular, one might expect a flaring up of a culture war. And indeed, as Putnam and Campbell ruefully note, the conviction that America is rent by religiously driven culture war is determinedly propounded by leading social and political commentators and bestselling authors. But the data tell a different story. And not only Putnam and Campbells data. Their findings are consistent with those from the mid-1990s by sociologist Alan Wolfe in One Nation, After
The puzzle for Putnam and Campbell is how America can combine exceptional religious devotion with exceptional religious diversity and nevertheless achieve exceptional toleration. They proceed by setting the puzzle in historical context. The religious polarization of the present, they contend, is the result of one great shock and two aftershocks generated by the social and political tumult of the 1960s. The great shock was the sexual
Books
revolution, set in motion in no small measure by the appearance in the mid1960s of a cheap and reliable birth control pill. The authors report that the fraction of all Americans believing that premarital sex was not wrong doubled from 24 percent to 47 percent in the four years between 1969 and 1973 and then drifted upward through the 1970s to 62 percent in 1982. This stunning reevaluation of established norms, accompanied and accelerated by the swift routinization of cohabitation before marriage and nofault divorce, precipitated a crisis in confidence for all forms of established authority, including religious authority. It also resulted in two aftershocks. The first, felt already in the 1970s, was a resurgence of religious faith. It is no accident, the authors point out, that in 1 9 7 6 America elected its first avowedly born again president. The next two decades witnessed a marked rise in religiosity, with politically conservative Americans turning in large numbers to evangelical Protestant denominations, and evangelical Protestants entering politics as a significant force. The second aftershock, triggered by the first, hit in the 1990s. With the rise to political prominence of the Religious Right, many, especially among the young, rejected religion because, according to Putnam and Campbell, they increasingly tended to see it as judgmental, homophobic, hypocritical, and too political. Between 1990 and 2010, the number of Americans who had no religious preference rose from about 7 percent to about 17 percent, with the most dramatic increases among twenty-somethings. These three shocks and the religious polarization that has resulted provide
82
the backdrop against which Putnam and Campbell explore the changing faces of religion in post-1 9 6 0 s America. Across religions, the propensity of children to follow the faith of their parents has declined while intermarriage has risen. This has resulted in a significant increase in the importance of individual choice in determining religious affiliation, which in turn has spurred growth in congregation shopping among worshippers and the emergence of religious entrepreneurs among the clergy. As women have moved into the marketplace and won equal treatment under law, religious men and women have tended to remain more traditionalist about gender roles than their contemporaries who are not in the pews, but they are less traditionalist than their religious counterparts had been a generation ago. As the gaps between social and economic classes have widened, among the American upper middle classes, those who are religiously observant are more likely to report friendship and social interaction with people on welfare or manual workers than comparably placed secular Americans. But this has not, the authors note with regret, translated into concerted religiously inspired efforts to close the gap. And as ethnic diversity, fueled by immigration from Asia and Latin America, has increased, the data show that religion and ethnicity often reinforce one another. This is especially true of black Protestant churches which, breaking the stereotype, unite intense traditional faith with strong allegiance to the Democratic Party. At the same time, the authors stress, Americans of all religions and all levels of religiosity have become more racially tolerant.
Policy Review
Books
As for politics, Putnam and Campbell show that while there is a good deal of church in our politics, there is relatively little politics in our churches. They confirm, consistent with common observation, that with the notable exception of black Protestants the highly religious tend to be Republican, and the intensely secular Democratic. Of particular interest is their finding that the Republicans coalition of the religious is grounded in sex and family issues like abortion and same sex marriage. Because views on gay rights are liberalizing across the religious spectrum and abortion attitudes, which have shifted slightly in a conservative direction in recent years, seem to have become less a function of religion, the authors cautiously speculate that the conservative coalition of the religious may be vulnerable. Meanwhile, and contrary to most progressive intellectuals, the authors find in churches that there is little overt politicking over Americas pulpits and, to the extent it happens, it is more common on the political left than the right. Nor are churches active in organizing their congregants for partisan politics. But Putnam and Campbell do report that religious teachings especially in relation to sex and family matters have political implications that tend to be reinforced through religiously based friendships and associations and come to influence believers political opinions. In the final chapters, Putnam and Campbell argue that religion yields substantial indirect benefits to democracy in America. What George Washington claimed was true of America in the 18th century remains, in the authors account, true today:
Religion provides a vital support of democracy in America. Putnam and Campbell note that their findings contradict the popular claims of the new atheists, polemically summed up in the subtitle of Christopher Hitchenss bestselling God is Not Great, that religion poisons everything. In fact, the authors convincingly demonstrate that religious Americans are generally more generous neighbors and more conscientious citizens than their secular counterparts. Religious Americans volunteer more, give more money to charitable organizations, and are more likely to give money directly to strangers, family, and friends. In addition, religious Americans are more likely to belong to community organizations, lead community organizations, take part in local social and political life, and press for local social and political reform. Strangely, Putnam and Campbell discount the role of belief in making the religious better neighbors and citizens. Indeed, they are uncharacteristically emphatic in insisting that beliefs are utterly irrelevant to explaining the religious edge in good neighborliness. Instead, they maintain that their data show that the key factor is religiouslybased social ties. But their distinction cannot be sustained because religious friendships and communities are in part constituted and preserved by religious beliefs. Indeed it is hard to understand how the authors can simultaneously argue that religious beliefs about sex and family matters have practical, if indirect, political consequences while maintaining that religious beliefs for example, the foundational belief in both Christianity and Judaism, that all human beings are created in Gods
Books
image have no bearing whatsoever on religious peoples propensity to be better neighbors and citizens. Religious toleration, according to the authors, is generally on the rise in the United States. Yet while relations between Protestants, Catholics, and Jews have never been better, not all interreligious tensions have been dissolved. Putnam and Campbell emphasize that one interreligious division, with implications for the 2012 elections, remains particularly potent the tendency among evangelicals to hold negative views of Mormons. More generally, the authors report, Three groups stand out for their unpopularity Mormons, Buddhists, and Muslims. et when all is said and done, America is far from a house divided. Indeed, given Americas exceptional religious devotion and diversity, the degree of unity the country exhibits is remarkable. One factor, according to the authors, is civil religion or the generally nondenominational view, inscribed in the Declaration of Independence, that individual liberty and human equality are rooted in Gods creation. Another is the Constitution, the First Amendment of which both prohibits an establishment of religion and protects its free expression, thereby providing believers of all faiths wide latitude, consistent with laws binding on all citizens, to worship as they deem appropriate. A third factor flows from the political institutionalization of toleration which, by bringing people of different faiths and no faith at all together, encourages habits of heart and mind that reinforce the spirit of toleration. Putnam and
84
Campbell call this religious bridging, or the common practice in contemporary America of spending time with people of different faiths or nonbelievers. Multiple strands of evidence point in the same direction, they argue. When Americans associate with people of religions other than their own or people with no religion at all they become more accepting of other religions. And this has served the interests of liberal democracy in America: Interreligious mixing, mingling, and marrying have kept Americas religious melting pot from boiling over. Putnam and Campbells book is that all-too-uncommon achievement for practicing political scientists a superb work of scholarship that engages, invigorates, and refines the public debate. Their ability to resist the typical bias against religion among social scientists and largely set aside partisan political predilections enables them to shed light on the ways in which religion is consistent with democracy in America and cultivates, to use a term they avoid, the virtues on which liberty depends. At the same time, because they assume, in the spirit of Deweyan progressivism, that the more democratic a religion is the more it supports democracy, they overlook crucial dimensions of the relationship between religion, liberty, and democracy. In particular, they neglect religions role in providing a counterweight and corrective to democratic tendencies that impair democracys long-term interests. Tocqueville, for example, argued based on acute observation of American society and politics, study of the fundamental character of democracy, and reflection on the intricacies of
Policy Review
Books
human nature that the preservation of freedom depended in part on faith because religious belief fortified fixed moral principles that democratic equality tended to attenuate or dissolve. This striking opinion is deeply rooted in the history of political philosophy, has significant implications for public policy, and is subject to empirical verification. To carry forward the work of understanding religion in America to which Putnam and Campbell have made a major contribution, it would be necessary to expand the disciplines on which they draw to include political philosophy. Baanga Mpongo, God has sent a great prophet, our prestigious Guide Mobutu. This prophet is our liberator, our Messiah. Our Church is the mpr. Its chief is Mobutu. We respect him like one respects a Pope. Our gospel is Mobutuism. That is why the crucifixes must be replaced by the image of our Messiah. With guidance like this, Western notions of pluralism and a multiparty system were neither necessary nor desirable, and besides, as Mobutu himself pointed out, they were wholly alien to African custom. In our African tradition there are never two chiefs . . . That is why we Congolese, in the desire to conform to the traditions of our continent, have resolved to group all the energies of the citizens of our country under the banner of a single national party. In reality, of course, Mobutu was the embodiment of the third world kleptocrat for whom the state coffers have become the property of himself and his henchmen, to squander as they see fit. Throughout the Cold War, Mobutos regime had been propped up by the U.S., not with any great enthusiasm, but because Africa was a zerosum game: A loss of a Western ally would automatically mean a gain for the communists. So for the U.S. policymakers, it was a matter of holding their noses, because the alternative, a hostile revolutionary regime, was worse. But when the Cold War ended, U.S. pressures for reform grew, while the fate of Mobutus fellow dictator Nicolae Ceausescu of Romania gave the African leader acute cause for anxiety. The beginning of the end for Mobutu came in 1996, when forces from neighboring Rwanda invaded his
85
The Congo Nightmare

By Henrik Bering
Jason K. Stearns. Dancing in the Glory of Monsters: The Collapse of the Congo and the Great War of Africa. P u b l i c A f f a i r s . 3 8 0 Pa g e s . $28.99
o r t h r e e d e c a d e s on Zaires evening news, the stern features of President Mobutu Sese Seko would emerge from the heavens to inspire his lowly subjects. Resorting to such grandiose imagery only came natural for the founder of Mobutuism, which was designed to replace Christianity as the spiritual foundation of the country. In the words of Interior Minister Engulu
Henrik Bering is a writer and critic.

Books
country; this invasion, Mobutus fall, and the renewed fighting under his successor Laurent Kabila is the topic of Jason Stearnss impressive and unsettling Dancing in the Glory of Monsters: The Collapse of the Congo and the Great War of Africa. The conflict to this day has cost an estimated five million dead, four million of whom have died not from fighting itself but from disease and malnutrition resulting from being uprooted. Yet the suffering has never commanded the headlines like the genocides in neighboring Rwanda or in Darfur, where the Sudanese government has supported Arab militias in their ethnic cleansing efforts against black Africans. Unlike these two tragedies, the fighting in the Congo does not lend itself to neat simplification; it has many causes and many actors, involving nine countries and some twenty different rebel groups: Proxies armed by the main actors have kept splintering into local factions and fiefdoms much along the lines of Goethes The Sorcerers Apprentice, Stearns notes. Thus Stearns quotes the New York Times columnist Nicholas Kristofs reasons for devoting less attention to the Congo than to the genocide in Darfur, an argument that rests on the ideological motivation of the latter: Dafur is a case of genocide, while Congo is a tragedy of war and poverty . . . I grant that the suffering is greater in the Congo, but our compass is also moved by human evil, and that is greater in Darfur. Theres no greater crime than genocide, and that is Sudans specialty. To the Congolese dead and their families, such distinctions are unlikely to be of much comfort.
86
In the book, Stearns describes in detail the nightmare of a failed state, a Hobbesian universe of utter lawlessness. As one of his sources tells him, to survive in this kind of environment, we all have to be a bit corrupt, a bit ruthless. That is the system here. That is just the reality of things. Even you, if you were thrown into this system, you would do the same. Or sink. The war devastation he compares to that experienced by Europe back in the Thirty Years War. Stearns is usually reticent in his descriptions of the horrors, the effect of which is to make them hit harder when they do appear. Thus in the massacre at Kasika, a village 100 miles west of the Rwandan border, where rival proxies had been at work, survivors tell Stearns how the dead for fun had been twisted into origami figures, including a case where the killers had made a slit on each side of the belly of a corpse and buried the victims hands in them: They had made him look like he was wearing a suit. The book is based on interviews with ex-ministers, generals, former child soldiers, and victims, and separating fact from fiction is no easy task. Writes Stearns, Sometimes it seems that by crossing into the Congo one abandons any sort of Archimedean perspective on truth and becomes caught in a web of rumors and allegations. As he notes, conspiracy theory is the traditional way of the powerless to give meaning to an existence bereft of it. h e 1 9 9 6 i n v a s i o n of Zaire was the result of the spillover of the civil war in neighboring Rwanda. Since 1990, the majority Hutu government of
Policy Review
Books
President Juvenal Habyarimana had been fighting the Tutsi rebel movement, the Rwandan Patriotic Front. A ceasefire had been broken by the downing of Habyarimanas plane in Kigali in April of 1994. The massacre of 800,000 Tutsis over a three-month period followed, before the rebels under the leadership of Paul Kagame took control of the country, with Kagame becoming vice president and minister of defense. In what they regarded as a tactical retreat, 3 0 , 0 0 0 Hutu soldiers and thousands of militiamen fled into Mobutus Zaire. With them fled masses of Hutu civilians who feared for their lives under the new regime. Thus the refugee camps in Zaire held about a million people, civilians plus Hutu genocidaires, with the latter in control. A u n proposal to separate the two groups came to nothing. So from here the Hutu commanders set about planning a guerilla offensive, named Operation Insecticide, reflecting their view of the Tutsis as cockroaches to be exterminated. This represented a threat that the Rwandans could not ignore, and in October 1996, the so-called Alliance of Democratic Forces for the Liberation of Congo-Zaire invaded. Thus, in Stearnss view, a case can be made for seeing round one in this great African war as one of self-defense, a just war. And not only had Mobutu allowed the Hutu killers in Zaire but, in his desire to be the regional powerbroker, he also managed to upset his other neighbors, the Ugandans and the Angolans, by hosting rebel groups on his soil, with the result that they joined in a coalition against him, making this a regional conflict: Africas World War, in
Stearnss words, with each side having local proxies. Being in an advanced state of disintegration, Mobutus army was not up to the challenge. Mobutos main preoccupation was always staying in power, and his way of governing was classic divide and rule. Having himself couped his way to power, Stearns notes, he
Sometimes it seems that by crossing into the Congo one abandons any sort of Archimedean perspective on truth and becomes caught in a web of rumors and allegations, Stearns writes.
kept a watchful eye on the military: He executed some of his most competent officers, bought off others, and established parallel lines of command. His Presidential Guard and Civil Guard got the lions share of the money; the rest of his military were left to improvise as Mobutu had urged them to: You have guns. You dont need a salary. And improvise they did. One way was setting up roadblocks. Another was to sell spare parts and weapons to those prepared to pay, including the very forces they were now fighting. The unintended side effect of this cannibalization was to weaken the army to the point of uselessness when it was needed. When you invade another country, it is a well-established practice to look for some local front man to make the oper-
Books
ation look homegrown, which is what the Ugandans advised Kagame to do: The choice was Laurent Kabila, a veteran Congolese rebel leader living in obscurity in Dar es Salaam, from where he ordered the occasional bandit raid back in Zaire. A physically imposing man who painted his toenails black, Kabila had earned a brutal sobriquet as a warlord back in 1964: the one who cuts cows teats. The Cuban revolutionary Che Guevara, who spent seven months in the Congo in 1965 in a futile attempt to foment revolution, assessed Kabila as a man with certain leadership abilities but somewhat lacking in the ideology department. Sick from malnutrition, Che left the country in disgust, as Marxism failed to fire up the rural population: Stearns quotes the first sentence of Ches diary, This is the history of a failure. Kabila may not have been everyones idea of the ideal frontman, but for the present purpose he would do. The invading alliance consisted of Rwandan regulars and Kabilas local forces, which included child soldiers down to twelve years old, recruited among street children and boy scouts. The advantage of child soldiers, notes Stearns, is that they have little sense of their own mortality, which makes them useful as cannon fodder. They also have little respect for human life. As part of their mental conditioning, they were forced to watch and take part in executions, and the severed head of a prisoner would be passed around to get them used to the idea. In the attack on the camps, half a million refugees returned to Rwanda, while 400,000 fled into the jungle. Before them, the invaders drove the
88
Hutu refugees on a 1,000-mile trek through dense rainforest, with people dying in the thousands. In a startling image, Stearns cites a refugees description of how swarms of white and blue butterflies would settle on the corpses, feeding off the salt and moisture. According to Sterns, the Congolese greeted Kabilas troops as liberators, and the death of Hutu refugees was none of their business. Throughout, Mobutu himself was in poor shape. At the start of the war, he was in Switzerland for a prostate operation. Stearns reports the contradictory rumors circulating in Kinshasa: Some claimed that the treatment had swelled his penis to monstrous proportions, others that he had been castrated. In fact, he left for the cancer treatment too late and had to go back for another operation. Meanwhile, the situation was daily deteriorating. In a futile attempt to tame inflation, a new bank note was issued which became known as the Prostate, because it behaved in much the same way as Mobutus. Both the South Africans and the Americans tried to convince Mobutu that it was time to call it quits, but he hesitated. Only when his generals informed him that his safety could no longer be ensured was he finally persuaded to leave the country. In a mocking gesture, a solitary 50 franc note had been left in a drawer in the central bank for the invaders to find. s the countrys nominal new ruler, Kabila was described by one of his ministers as a well-read man with some strange ideas. I remember in one cabinet meeting he asked us out of the
Policy Review
Books
blue if we thought Sartre would have agreed with some policy we were discussing. To mark the change, Kabila named the country the Democratic Republic of the Congo. Politically, Kabila was stuck in 1960s rhetoric. He promised reforms, taunting his countrymen for their meek submission to Mobutu. One such Kabila quote provides the book with its title. Who has not been Mobutuist in this country? Three quarters of this country became part of it. We saw you all dancing in the glory of the monster. However, Kabilas chosen instruments of reform seemed ill-suited: His minister for regional aid had left Tennessee in a hurry, escaping a $300,000 fine for fraud, which meant he could have no dealings with the Americans, while his justice minister had spent eight months locked up in Belgium for illegally tapping into the power grid. And it did not take long for Kabila to revert to classic African Big Man behavior and to steal a page from Mobutus playbook, relying on the twin tools of coercion and corruption. He also inherited Mobutus paranoia. Fearing that his Rwandan backers and the Congolese Tutsis would remove him from power, Kabila fell out with the Rwandans a little over a year later, demanding that the Rwandan troops leave the country. It is ironic, notes Stearns that Kabila, having first come to power on Rwandan bayonets, came to be seen as a bulwark against Tutsi aggression. His new course appealed to discontented army officers who resented having the Rwandans and local Tutsis ordering them about; there was general resentment among the inhabitants of
Kinshasa of the arrogant manners of the Rwandans, who had accused them of dressing like prostitutes. Kabilas soldiers were under orders to shoot any Tutsi found with a weapon. In their search for persons with high cheekbones, the going definition of a Tutsi, his troops invaded a U.S. embassy compound, but disappeared
Kabilas chosen instruments of reform seemed ill-suited: His minister for regional aid had left Tennessee in a rush, escaping a $300,000 fine for fraud, which meant he could have no dealings with the Americans.
again after having helped themselves to petty cash. The Rwandans responded by establishing an airlift to Kitona, strategically located near the Inga Dam, which gave them a stranglehold on the electricity supply to Kinshasa. According to Stearns, they also prepositioned loyal units and weapons in eastern Congo. As the Rwandans were by far the more competent fighters, Kabila was forced to flee. But the momentum shifted when the Zimbabweans and the Angolans intervened, providing thousands of troops equipped with attack helicopters, armored personal carriers, and MiG fighter-bombers. This intervention enabled Kabila to return to the capital, though fighting continued in the provinces.
Books
Safely back in Kinshasa, Kabila nonetheless grew more jittery. Stearns quotes a former minister: We would go to him with elaborate plans for the economy, but he would say, Two years! I will be dead in two years. Bring me policies that can bring us cash in two weeks. Accordingly, Kabila signed over the diamond market to a foreigner for a mere $20 million a year. A former general auditor describes the way the country was administered as a private trust run by people close to Kabila, but entirely created with state assets. In 2001, Kabilas fears came true: He was assassinated by one of his bodyguards. It is not known who was behind it, Stearns says, but there were plenty of people who had had enough of him. Kabila is like a man who starts six fires when he has only got one fire extinguisher, says a Zimbabwean official. As just one example cited, he continued to let the Angolan rebel Jonas Savimbi trade diamonds through Lebanese dealers in Kinshasa, and Savimbi guerillas were again present in the Congo, which was the very thing that had made the Angolans support the anti- Mobuto forces in the first war. h e m a n b e s t placed to take over was Laurent Kabilas son Joseph, who had been his fathers defense minister. Kabila fils proved himself to be a pragmatist whose main achievement was the peace deal that ended the second war in June 2 0 0 3 . His slogan was Joseph Kabila, the bearer of eggs. He doesnt squabble, he doesnt fight, thereby managing to put his rivals and their Rwandan and the Ugandan back90
ers on the defensive. A deal was hammered out in South Africa that amounted to a sharing of spoils among the leading players. Impunity and corruption were to a certain extent holding the fragile peace together, writes Stearns. Thus, unlike the situations in Liberia and Sierra Leone, where warlords were prevented from standing for public office, the agreement kept some unsavory characters in place. And what Stearnss sources call the informalization of government still goes on, with stuffed envelopes being passed around. To provide quick cash, the government held a fire sale of mining rights. According to a World Bank internal memo, the lack of transparency was complete. In time-honored fashion, Kabila keeps a strong presidential guard, and the rest of the army weak. He has refrained from mass arrests, Stearns notes, as he prefers to sideline people, but discontent in Kinshasa is growing: Mobuto used to steal with a fork. At least some crumbs would fall between the cracks and trickle down to the rest of us. But Kabila steals with a spoon. He spoons the plate clean. He does not leave anything for the poor. Some see him as a Tutsi Manchurian Candidate. And there is still an insurgency smoldering in the Western part of the country, amounting to a situation of neither war nor peace. hile the first Congo war was motivated by security concerns, the second war was strictly business, Stearns notes. While neither Rwanda nor Uganda have diamonds, Ugandan exports of diamonds grew tenfold durPolicy Review
Books
ing the second war, and Rwandan and the Ugandan forces clashed furiously in the streets of Kisangani in 1999, ending their alliance. He cites the conclusion of a un report to the effect that Rwanda and Uganda were plundering Eastern Congo for personal enrichment and in order to finance the war. And so was everyone else. While in some circles it is a reflex to blame Western firms for all of Africas woes, Stearns does not buy this idea. The notion that the war was fuelled by international mining capital eager to get its hands on Congos wealth does not hold water; the war slowed down privatization for a decade. Getting involved with the rebels was far too risky for large public-owned corporations. Only small pirate outfits made a killing, but they were unable to provide the billions needed for infrastructure and investment. Stearns is unable to offer much hope for the future: Unlike in Europe, where the Thirty Years War made people realize the need for the nation-state, there is little prospect for that happening in the Congo: Since independence, the story of political power . . . has been about staying in power, not about creating a strong nation-state. The only way to mobilize popular support is along ethnic lines, he notes, but every group is only pursuing its own narrow interest. And despite the countrys incredible riches, says one of Stearnss Congolese friends, the all-pervasive corruption ensures the reverse Midas effect: Anything touched by politics in the Congo turns to [excrement]. Throughout the book, a tension exists between the authors wish to avoid reinforcing traditional caricatures and stereotypes of the corrupt brutal
warlord with his savage soldiers raping and looting the country and the need to tell it like it is out of an obligation to the victims. The latter wins out. The tragedy of the Congo is that the caricature represents reality. This is the land of horrors. And there is no Goethes sorcerer to break the spell.
The Roaring Thirties

By David R. Henderson
Alexander J. Field. A Great Leap Forward: 1930s Depression and U.S. Economic Growth. Ya l e U n i v e rs i t y P r e s s . 3 8 7 pag e s . $45.00.
uring which decade did the United States make the greatest advance in technology? Perhaps the 1990s, when the huge technical advances in computing changed the way we did so many things, from writing to banking to manufacturing? Not a bad guess, but its wrong. Heres a hint: The decade that took the biggest strides in technology is the one you would be least likely
David R. Henderson is a research fellow with the Hoover Institution and an associate professor of economics at the Graduate School of Business and Public Policy at the Naval Postgraduate School. He blogs at www.econlog.econlib.org.
Books
to guess: the 1930s, the same decade during which the United States experienced the Great Depression. If you think thats counterintuitive, well, so did I. But now, having read A Great Leap Forward, Im convinced. Santa Clara University economist Alexander J. Fields book on the decade of the 1930s will probably be one of the most important technical economics books of this decade. Whats Fields evidence? The big-picture evidence is that in 1941 about as many people were working and about as much capital was employed as in 1929, the last boom year before the Great Depression. Yet real output was 33 to 40 percent higher in 1941 than in 1929. (The range from 33 to 40, rather than a specific number, is due to the fact that there are various methods to compare output over time; the bigger number comes from a computational method called the chain index method.) This implies a growth in the productivity of labor and capital averaging 2.3 to 2.8 percent annually over those twelve years. In no other twelve-year period during the 20th century did the United States have such a high average growth of productivity. Of course, there were periods of higher economic growth: After all, as noted, the 1930s was the decade of the Great Depression. But that growth came from an increase in the amount of labor and capital as well as an increase in productivity. As noted above, the amount of capital and labor being used in 1941 was pretty much the same as in 1929. You might think that if Fields claim about the 1930s is true, it would have been discovered much earlier than now. I wondered about that too. But
92
early in the book, Field digs carefully into the data to show why other economists who studied the U.S. economys growth got it wrong. His treatment is highly technical and difficult to summarize in this space. Suffice it to say that one of the scholars whose work he criticized, Robert J. Gordon of Northwestern University, gives the book a glowing blurb in which he says, among other things, This book will change forever standard views of which decades growth was most dynamic, and why. Fields care reminds me of the care taken by Milton Friedman and Anna J. Schwartz in their monumental and path-breaking 1 9 6 3 book, A Monetary History of the United States, 18671960. It was hard to read the Friedman/Schwartz book and come away unconvinced that monetary policy was key to understanding the performance of the U.S. economy over that 94-year period. Similarly, it is hard to come away from Alexander Fields book and not be convinced that the 1930s had substantial technological improvements that made the United States so much more productive. Field bolsters his case by going beyond economy-wide numbers on productivity to see what were the major technological improvements of the 1930s. In instance after instance, he had this reader saying, I didnt know that. New chemical processes were introduced that increased the percentage of sugar extracted from beets during refining and comparable innovations occurred in mining. Topping techniques in electricity generation using exhaust steam from high-pressure boilers to heat lower-pressure boilers raised capacPolicy Review
Books
ity by 40 to 90 percent with virtually no increase in the cost of fuel or labor. New treatments increased the life of railroad ties from eight to twenty years. With new paints, the time for paint to dry on cars fell from three weeks (!) to a few hours. Adding heft to his innovation story, Field notes that total r&d employment in 1940 was 2 7 , 7 7 7 , up from 1 0 , 9 1 8 in 1933. But one of the most important technological improvements was not innovation per se: It was a countrywide network of roads. We are used to thinking of America as a country without serious roads until Dwight Eisenhowers Interstate Highway System that started in the mid-1950s. But remember that Ike got the idea after seeing how long it took to get an Army convoy across the country in 1 9 1 9 . A lot happened between 1919 and 1941. Field points out that the Interstate systems routes were typically built alongside or on top of highways already completed. Think of i-95 and the old U.S. Route 1, for example. These roads were built primarily in the 1930s. Roads plus the earlier innovation of pneumatic tires led to a huge expansion of the trucking industry. That mattered because, notes Field, trucking was much more flexible than railroads, not just in routes but also in shipment sizes. What about the idea that technological improvements in World War II were responsible for much of the improvement in the U.S. economys productivity? Field drives a truck through that argument. First, he points out, improvements during World War II cannot explain the tremendous increase in productivity from 1929 to 1941. Recall that the United States
didnt enter World War II until the last month of 1941. Combined Army and Navy spending in 1940 and 1941 was only 3 . 2 percent of cumulative Army/Navy spending from 1940 to 1946. Its true that the United States had moved into war production before entering the war because Franklin Roosevelt was itching to help out his ally, Great Britain, and did so with Lend-Lease. (Lend-Lease was a U.S. government program, begun in 1941, to violate U.S. neutrality by supplying goods, including weapons, to the British Empire and China.) But Field points out that even with a broader measure of spending that includes Lend-Lease and the governments Defense Plan Corporation, a subsidiary of the Reconstruction Finance Corporation, spending in 1940 and 1 9 4 1 was only five percent of the cumulative defense spending that occurred between 1940 and 1945. Second, notes Field, productivity growth slowed during the war. Field estimates it at 1.29 percent per year from 1941 to 1948. (His explanation for why he goes three years beyond the war is persuasive but complicated.) This was down from the earlier lowend estimate of 2.3 percent from 1929 to 1941. The huge increases in output were due to more people being employed, not to large increases in productivity. Finally, argues Field, the war effort diverted attention from innovation for the private market into innovation in producing the instruments of war. This was costly in two ways. First, much of the innovation was irrelevant to peacetime. Second, producers had to learn the arcane rules of dealing with the federal government. Field writes:
Books
When scientists and engineers devoted their time to producing atom bombs, when businessmen were preoccupied with learning new administrative rules, and when success was measured by ones ability to produce large quantities of ordnance quickly in an environment of cost-plus contracts, it is scarcely surprising that the overall rate of commercially relevant innovative activity slowed down.
Field points out that there were few technological improvements during World War II that made the postwar peacetime economy more productive. Its almost the reverse. It was the tremendous increase in underlying productivity of the U.S. economy before the war that allowed the U.S. economy to be so productive during the war. He writes that there was not a single combat aircraft produced during the Second World War and seeing major service that was not already on the drawing boards before the war began. One other myth Field dispels about World War II, probably one of the most widely-believed myths, even by economists, is that World War II ended the Great Depression. Field notes that unemployment was falling rapidly in 1941 and that the unemployment rate for the last quarter of 1941 (the government did not collect monthly data back then) was down to 6.3 percent. I wish Field had discussed more what I called, in a study for the Mercatus Center, The U.S. Postwar Miracle. During the war, Keynesians such as Paul Samuelson and Gunnar Myrdal predicted another great depression if the U.S. government demobi94
lized quickly. The U.S. government did demobilize quickly and the United States enjoyed a boom in which the unemployment rate never went above 4 percent. Although many readers will find parts of the book too technical to follow, Field does have an ability to coin a phrase. He refers to Kenneth Arrows idea of the learning curve during World War II as the view that the economy was one large c-47 factory. In heading off the idea that maybe depressions are good for an economy because, as Nietzsche said, that which doesnt kill you makes you stronger, Field replies, Its just that sometimes it kills you. He also points out, With or without the depression, Wallace Carothers would have invented nylon. h e o n e w e a k chapter in this twelve-chapter book is on the financial crisis of 2007 to 2009. Whereas in most of the rest of the book Field makes a tight, data-intensive case for his claims, in this chapter he does not. The big question to which most readers would probably want to know the answer is: Had George W. Bush not pushed through the Troubled Asset Relief Program, would the economy be in better or worse shape today than it is? My gut feel as an economist is that the economy would be in better shape. Had Bush, contrary to the Senates will, not used the tarp funds to bail out General Motors, then Obama would not have had as much ease in continuing the bailout and inserting the federal government into the auto industry. Then the adjustment in the auto industry would likely have happened more quickly. This is just one example.
Policy Review
Books
Other evidence for my gut feel comes from the stock market. The Dow Jones Industrial Average, one important indicator of economic health, did decline by about five percent (from about 1 1 , 0 0 0 to about 10,500) during the twenty minutes on September 29, 2008, when it became clear that the House of Representatives would reject the bailout. This would suggest that the bailout would have been good for the economy. But in the seven days following the second vote for the bailout, the one that was successful, the Dow fell from about 10,500 to about 8,000, a drop of about 2 4 percent. Certainly, if the 2008 bailout was good for the economy, participants in the stock market didnt think so. As I said, I dont know that the bailout was good for the economy: I strongly suspect that it was bad. But whether Im right or wrong, an economist who wants to persuade those of us who are undecided must make a case. Instead, Field simply makes assertions. In the introduction to his book, for example, Field writes, The United States was fortunate at this juncture [between 2007 and 2010] to have had a Federal Reserve chair (Ben Bernanke) and a chair of the Presidents Council of Economic Advisers (Christina Romer) who were both serious students of economic history and of this period. Really? Why? It must be because Field thinks Bernanke and Romer advocated good policies that made the economy stronger than otherwise. But Romers own research showed that countercyclical fiscal policy, which her boss, President Obama, implemented, was unlikely to be effective. As I wrote
in a January 7, 2009, Forbes.com article titled Will the Real Christina Romer Please Stand Up?:
The Romers research actually undercuts the Keynesian approach in a more fundamental way. They find that tax cuts to offset a recession are ineffective, but their reasoning would also apply to government spending increases to offset a recession. In other words, if she believes her own research, Christina Romer should be a strong critic of her new bosss policies.
Furthermore, writes Field, Massive monetary and fiscal interventions undertaken by the Federal Reserve and Treasury arrested what otherwise could have been a terrifying free fall. Of course, adding the word could does hedge Fields statement. Just pages later, though, the hedge is gone. Field writes that the only thing preventing a cataclysm was massive intervention by both the fiscal and monetary authorities. All of this was abundantly clear from the vantage point of 2010. Field also drops his careful methodology in addressing George W. Bushs tax policy. Field writes that Bushs 2001 tax cuts allowed disproportionate reductions in taxes to upper-income households. The author seems to imply disproportionately high, and he confirmed in an e-mail that this is what he means. In fact, though, for all the Bush tax cuts (in 2001, 2002, and 2003) combined, the percentage reduction in taxes for upper-income households was less than the percentage reduction for lower-income households. The second-lowest quintile, for exam-
Books
ple, had its taxes cut by 17.6 percent whereas the highest quintile had its taxes cut by about 11 percent. I dont have data for the 2001 tax cut alone, which is what Fields claim is about. But because the 2002 and 2003 tax cuts were aimed disproportionately at high-income people, it follows that the 2001 cut alone had to have been even more tilted to lower-income people than the above percentages suggest. Why do so many people, including Field, think differently about this important issue? My guess is that its because the media emphasized the absolute size of the tax cuts that higher-income people got. In a progressive tax system, with higher marginal tax rates for higher incomes, a given percentage tax cut will cut taxes of the people who pay a lot in taxes much more than it cuts taxes for people who pay only a little. Field also calls the increase in inequality of income in the last quarter of the 20th century redistribution. Its not. Most people in the United States, including most lower-income people, were better off in 2000 than they were in 1975, and most of them by a lot. To be sure, that is not evidence enough against the claim of redistribution; possibly they would have been even better off had not high-income people taken, that is, redistributed, their income. But heres what Paul Krugman wrote about that issue in 1990:
Old-line leftists, if there are any left, would like to make it a single story the rich becoming richer by exploiting the poor. But thats just not a reasonable picture of America in the 1 9 8 0 s. For one thing, most of our very poor dont work, which makes it hard to exploit them. For another, the poor had so little to start with that the dollar value of the gains of the rich dwarfs that of the losses of the poor.
Still, these are just a few weaknesses in an otherwise very strong book. Alexander Field should be, and probably is, proud of his accomplishment.
96
Policy Review
Ne New from Hoover Institution Press m Hoo er I Instit tion P

S P E C I A L I N T R O D U C TO RY O F F E R !
Questions andess and the United States Congr Answers States Congress d United about Intelligence Community g Issues That Intelligence Community Matter
By Amy B. Zegart Amy B. Zeg t gar
Eyes on Eyes on Spies
What lies ahead and how will we get there? Read about it in the Hoover Digest.
Ten years after Ten years after 9/11, the least reformed part of Americas ft , reformed part Am icas f mer intelligence system S Congress. intelligence system is not the CIA or FBI but the US Congress. In Eyes Spies, Amy Zegart examines In Eyes on Spies, Amy Zegart examines the weaknesses of s, weakne esses US intelligence oversight and why those de ciencies have intelligence oversight why cienc have cies persisted, despite th unprecedented importance intelligence he persisted, despite the unprecedented importance of intelligence today s environment. en in todays environme t. She argues that many of the biggest argues that many the oversight problems Congressthe ess the ution, ution oversight problems lie with Congressthe institution, not the parties personalit tiesshowing how Congress has collectively parties or personalitiesshowing how Congress h collectively persistently d own overseeing intelligence. and persistently tied its own hands in overseeing intelligence.
Supporting lo ic og extensive data, uthor Supporting sound logic with extensive data, the author o ers comparative analysis oversight activities intelligence y a comparative analysis of oversight activities of intelligence The Hoover Digest challenges the informed policy are to show that Congress eas ot overseeing with other policy areas to show that Congress is not overseeing reader with lively writingnearly as much andtelligence as in other policy domains.. about nearly war in intelligence in peace, policy do omains poverty and wealth, history and theentives, she reveals,, explain why.. Zegart also Electoral inc future. reveals ar Electoral incentives, Catch explain why Zega t up on national and worldti affairs with the weaknesses: one,, the rules,, iden identi es two key institutional weaknesses: one th rules two institutional he proc the pr of tha development procedures, and practices that have hindered magazine that showcases edures, ideasacticesthet have hindered the development legthe nations most islative experti ise intelligence and, two, co ommittee of legislative expertise in intelligence and, two, committee Hoover Institution, one of jurisdictions ong jurisdictions and policies that have fragmented Congresss policies that have fragmented Co resss renowned think tanks. budgetary power over executive branch intelligence agencies.. budgetary power over executive branch intelligen e agencies nc concludes that, unfortunately, electoral incentives for y She concludes that, unfortunately, electoral incentives on zero-sum nature committee power e the outside and the zero-sum nature of committee power on Each issue features articles by the nations provide powerful reasons for Congress to continue the inside provide power ful reasons for Congress to continue most respected names hobbling its own oversight capabilities.. in academia and capabilities own oversight
journalism.
Free Issue
Amy B. Zegart i Amy B. Zegart is a senior fellow at the Hoover In i i and i fellow at h Hoover Institution d fello ll H nstitution
an a liated faculty m liated faculty member at the Center for International at Center for International
Secur y and Cooperation, Stanford University. From Security Cooperation, r f om to We would be pleased to sendityou one free Stanford University. Fro 1999 to 2011, she was prDigest public policy at UCLAs Luskin School was professor of ofes fessor ssor policy at UCLAs Luskin School copy of the latest issue of the Hoover Public airs. e featured National Journal as of Public A airs. She has been featured in the Nati fea ional Journal without obligation. one of the ten most in uential experts in intelligen e reform. ten uential experts intelligence reform. nc f
Or Subscribe
Receive four quarterly issues at the special introductory rate of $20.
September 2011, September 2011 130 pages 1, ISBN: 978-0-8179-1284-0 $19.95, cloth 978-0-8179 9-1284-0 , eISBN: 987-0-8179-1286-4 $10.00, epub 987-0-817 79-1286-4 b
To order, call 800.621.2736 o order, call 800.621.2736
Orderernow!resCalld University,, Stanford,, Californiaa 94305-6010 877.705.1878 Hoov Institution P s, Stanfor Hoover Institution Press, Stanford University Stanford Californi 94305-6010 www.ho verpress.org www.hooverpress.org w.hoo oo or visit www.hooverdigest.org
Hoover Institution Press, Stanford University, Stanford, CA 94305-6010 fax: 650.723.8626

Policy Review - October &amp; November 2011, No. 169

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Policy Review - October &amp; November 2011, No. 169

Transféré par

Droits d'auteur :

Formats disponibles

POLICYReview

October & November 2011, No. 169, $6.00

the hoover institution was established at Stanford

Editor Tod Lindberg

Consulting Editor Mary Eberstadt

Managing Editor Liam Julian

Office Manager Sharon Ragland

Debt: The Shame of Cities and States

Debt: The Shame of Cities and States

Debt: The Shame of Cities and States

Debt: The Shame of Cities and States

The Madisonian moment

October & November 2011

Debt: The Shame of Cities and States

The future: Does it work?

The Accommodator: Obamas Foreign Policy

Obamas grand strategy

The Accommodator: Obamas Foreign Policy

The Accommodator: Obamas Foreign Policy

The failure of accommodation

The Accommodator: Obamas Foreign Policy

The Accommodator: Obamas Foreign Policy

The Accommodator: Obamas Foreign Policy

The Obama doctrine, revisited

The Accommodator: Obamas Foreign Policy

The Accommodator: Obamas Foreign Policy

Ratifying Womens Rights

Kavita N. Ramdas and Kathleen Kelly Janus

Ratifying Womens Rights

Celebrating a diversity of gender roles

October & November 2011

Kavita N. Ramdas and Kathleen Kelly Janus

Ratifying Womens Rights

Enabling a more evenhanded U.S. foreign policy

Kavita N. Ramdas and Kathleen Kelly Janus

Ratifying Womens Rights

Ensuring that equality begins at home

Kavita N. Ramdas and Kathleen Kelly Janus

On average, more than three women a day are murdered by their

Ratifying Womens Rights

Kavita N. Ramdas and Kathleen Kelly Janus

Can Iran be Deterred?

A poor mans mad?

Can Iran be Deterred?

October & November 2011

The multilateral challenge

Can Iran be Deterred?

The French experience

Can Iran be Deterred?

The black swan vs. Nash

October & November 2011

Can Iran be Deterred?

The nuclear black swan

8. The Evolution of Nuclear Strategy, 300.

Income Integration at School

Income Integration at School

Income Integration at School

What parents want

Income Integration at School

The self-defeating cult of diversity

Income Integration at School

Income Integration at School

Income Integration at School

Without voice, theres always exit

Policy Review - October & November 2011, No. 169

Policy Review - October & November 2011, No. 169