Professional Documents
Culture Documents
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
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
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.
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).
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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,
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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
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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.
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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
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
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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.
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).
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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.
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.
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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.
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
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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.
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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
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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.
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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
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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.
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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.
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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.
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
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.
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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
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One in three women has been beaten, coerced into sex, or otherwise
abused during her lifetime.
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
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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.
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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.
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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.
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.
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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
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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).
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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
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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
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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.
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
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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
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
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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,
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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,
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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
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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
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.
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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
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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
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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.
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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
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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
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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
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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.
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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:
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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
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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
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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
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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
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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
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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.
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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
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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
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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-
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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
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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
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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
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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.
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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
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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
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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.
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.
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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
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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
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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
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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:
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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.
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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
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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-
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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.
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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
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.
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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
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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
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