policy review - october & november 2011, no. 169

DEBT: THE SHAME OF CITIES AND STATESMORTON KELLER

THE ACCOMMODATOR: OBAMA’SFOREIGN POLICY

COLIN DUECK

RATIFYING WOMEN’S RIGHTSKAVITA N. RAMDAS &

KATHLEEN KELLY JANUS

CAN IRAN BE DETERRED?RON TIRA

ALSO: ESSAYS AND REVIEWS BYAMY L. WAX, PETER H. SCHUCK,

PETER BERKOWITZ, HENRIK BERING,DAVID R. HENDERSON

October & November 2011, No. 169, $6.00

POLICYReview

A Publ icat ion of the Hoover Inst i tut ionstanford un ivers i ty

the hoover institution was established at StanfordUniversity in 1919 by Herbert Hoover, a member of Stanford’spioneer graduating class of 1895 and the thirty-first president ofthe United States. Since 1919 the Institution has evolved from alibrary and repository of documents to an active public policyresearch center. Simultaneously, the Institution has evolved into aninternationally recognized library and archives housing tens ofmillions of books and documents relating to political, economic,and social change.

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Ideas have consequences, and a free flow of competing ideas leadsto an evolution of policy adoptions and associated consequencesaffecting the well-being of a free society. The Hoover Institutionendeavors to be a prominent contributor of ideas having positiveconsequences.

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POLICYReviewOCTOBER & NOVEMBER 2011, No. 169

Features3 DEBT: THE SHAME OF CITIES AND STATES

Can they reject their long history of fiscal irresponsibility?Morton Keller

13 THE ACCOMMODATOR: OBAMA’S FOREIGN POLICYConceding much up front, garnering little in returnColin Dueck

29 RATIFYING WOMEN’S RIGHTSWhy the U.S. should endorse cedawKavita N. Ramdas & Kathleen Kelly Janus

39 CAN IRAN BE DETERRED?On nukes, the theory is not reassuringRon Tira

49 INCOME INTEGRATION AT SCHOOLAn unwise policy of social engineeringAmy L. Wax

63 POLICYMAKERS IN THE DOCKThe wisdom of protecting public officials from liabilityPeter H. Schuck

Books79 RELIGION IN AMERICA

Peter Berkowitz on American Grace: How Religion Divides and UnitesUs by Robert D. Putnam and David E. Campbell, with the assistance ofShaylyn Romney Garrett

85 THE CONGO NIGHTMAREHenrik Bering on Dancing in the Glory of Monsters: The Collapse of theCongo and the Great War of Africa by Jason K. Stearns

91 THE ROARING THIRTIESDavid R. Henderson on A Great Leap Forward: 1930s Depression andU.S. Economic Growth by Alexander J. Field

A Publ icat ion of the Hoover Inst i tut ionstanford un ivers i ty

POLICYReview

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October & November 2011 , No. 169

EditorTod Lindberg

Research Fellow, Hoover Institution

Consulting EditorMary Eberstadt


Managing EditorLiam Julian


Office ManagerSharon Ragland

Acentury ago, america’s states and cities faceda crisis in government. A number of common-wealths — California, New York, New Jersey,Wisconsin, and Illinois conspicuous among them —as well as cities across the land labored under theheavy weight of costly and corrupt misrule. This

state of affairs was generally blamed on an unholy triple alliance of largecorporations (“the trusts”) and other business interests, party bosses andmachines, and compliant legislators and officials. Lincoln Steffens, the mostprominent muckraking journalist of the day, scathingly described the resultsin influential magazine articles, gathered together in his 1906 books TheShame 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 nation’s states and municipalities again face a crisis in govern-ment. A number of commonwealths — yes, California, New York, NewJersey, Wisconsin, and Illinois still conspicuous among them — as well as anumber 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

Debt: The Shame ofCities and StatesByMorton Keller

Morton Keller is Spector Professor of History emeritus at Brandeis University,and chairs Hoover’s Working Group on Critical Junctures in Government andPolitics. His most recent book is The Unbearable Heaviness of Government: TheObama Administration in Historical Perspective (Hoover Press, 2010).

October & November 2011 3 Policy Review

4 Policy Review

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 mother’s milk of early-20th-century state and local politics — but ofsweetheart salary, pension, and health insurance deals secured by publicemployee unions: the mother’s milk of early-21st-century politics. The par-lous state of American state and local government circa 1900 may properlybe seen as a consequence of the in many other respects admirable rise of ademocratic party politics over the course of the preceding century. The fis-cal-deficit crisis of the past several years may properly be seen as a conse-quence 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 poli-tics; the clash of social, ideological, and economic interest groups; and thefederalism of American government. It both reflected and reinforced thegrowing legitimacy of the administrative and social welfare state, and a ris-ing 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 theinsufficiencies of American government. A hundred years ago a generationof governors undertook (with varying degrees of intensity) to combat theunsavory corporate-political machine combines of their time. Among themore conspicuous were Republicans Robert La Follette in Wisconsin, HiramJohnson in California, Theodore Roosevelt and Charles Evans Hughes inNew York, and Democratic Woodrow Wilson in New Jersey. Their counter-parts today focus, with varying degrees of intensity, on the fiscal conse-quences of overgenerous pension and health care arrangements for publicemployees. Among them: Republicans Scott Walker in Wisconsin, ChrisChristie in New Jersey, and Mitch Daniels in Indiana, and Democrats JerryBrown 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 thepolity, they are very much the descendants of their counterparts a centuryand more ago. They are contesting the spend-and-tax conventional wisdomof past decades, much as their progressive equivalents took on the reigningassumptions of Gilded Age machine politics.

The crisis

The core problem is the massive, rapidly growing fiscal burdenof current debt and future obligations spawned by public employeepensions and health care. It has become a touchstone public issue.

In June 2011 , the Hoover Institution’s David Brady and MichaelMcConnell convened a State and Municipal Fiscal Default Workshop,

Morton Keller

designed to subject the crisis to concentrated, expert examination.Participants included leading bankruptcy and contract law-school profes-sors, political scientists and historians, and a number of professionals whomanage state and local government finance. The crisis stems from the rise of pension and health care provisions for

public employees. In the past, these were commonly seen as fringe benefits.Today they are most often regarded as entitlements. There is a wealth ofpolitical and governmental meaning in that verbal shift.The United States was long notable for its failure to provide such benefits

for employees of any sort, private or public. They were more common inEurope, the product of old feudal and new socialist influence. As in so muchmodern American history, the Great Depression andthe Second World War was the great divide.Widespread private-pension and health care cover-age came with the war. In the decades after 1945,these provisions grew from inexpensive fringe bene-fits to ever more costly entitlements in the public aswell as the private sector. Out of this emerged thepresent crisis. Social Security required the pension recipient, the

employer, and the state to contribute to what wasdefined as a form of paid-for insurance: and hence avested interest. Wartime wage freezes, tax breaks,and the need to woo scarce workers spurred compa-nies to make entitlements part of their employmentcontracts, and postwar growth and prosperity, favorable tax breaks, andpowerful unions turned them into normal components of employment. But private sector unions steadily shrank in size and clout during the late

20th century. By the early 2000s, only about eight percent of the privateworkforce was unionized. When, in the 1980s, the prevailing defined bene-fit pension plans began to pose a fiduciary threat, firms began to switch todefined contribution plans. The change was helped along by the creation of401(k) pension plans, the decline of private employee unions, increasingemployee mobility, and a mutual fund industry that has been called the salesforce of the defined contribution revolution. And when the cost of healthcare rose steeply with the introduction of Medicare/Medicaid, governmentbore the brunt of the increase. The public sector was another story. State and local public employee

unions won collective bargaining rights in the late 1950s and early 1960s.As their membership grew to 40 percent of the public workforce, so didtheir political clout. Public sector union leaders, much like party bosses in anearlier time, secured benefits for their constituents and thus added to theirpolitical power. The result was a coral-like growth of ever-sweeter employment, health

care, and pension provisions, extracted from acquiescent governors and leg-

October & November 2011 5

Debt: The Shame of Cities and States

The debt crisis stems

from the rise of pension and

health care provisions for

public employees.

6 Policy Review

islators in return for financial support and union members helping in elec-tions. Some 88 percent of public sector workers still had defined benefitpensions in the first decade of the 21st century, compared to about eighteenpercent in the private sector. By 2008 there was an estimated $3.35 trilliongap between the states’ resources and their pension and health care commit-ments. Many towns, cities, and school districts were committed to wagesand benefits consuming 70 to 80 percent of their budgets. The complexityof the system, along with popular and media disinterest, contributed to thegrowing overhang. Then the financial collapse of late 2008 and the conse-quent recession turned a future threat into a current crisis.

The response

A s with any major issue in American life, the polity’s responseto the fiscal crisis takes a variety of forms: legal, governmental,political. The Hoover workshop focused on the default-bankrupt-

cy option: so far, more potential than pervasive. The relevance of default andits close relation to bankruptcy are heightened by the rampant growth ofcurrent debt and future obligations, and by the specter of sovereign defaultlooming over several European nations. One of the workshop’s concerns was the legal status of default. Our pro-

gressive predecessors had to deal with the then-prevailing view of theConstitution as a check on the active state and a safeguard of the sanctity ofcontract. A strikingly similar condition exists today, and poses a question:How to deal with the contractual and other safeguards that encase publicemployee pension and health care entitlements? These guarantees can claim a high degree of legal sanctity. But there is lit-

tle in American law, and life, that is immune to challenge, as the dismantlingof legalized racial discrimination so vividly demonstrated. Finley PeterDunne’s progressive-era comic character Mr. Dooley observed that whatlooks 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 CharlesEvans Hughes, upheld a state law that delayed the enforcement of home andfarm foreclosures. The Great Depression was the setting for this blow to thesanctity of contract and boost to the police power of the states, and conserv-atives then and since have criticized the decision. But they seem ready nowto accept comparable fixes to the growing state and local fiscal crisis. Thestates’ police power to assure the health, safety, and welfare of the people fitsmore readily into the present tenor of constitutional law than does a strictinterpretation of the sanctity of contract. How to prevent default and bankruptcy figured more largely in the work-

shop than did their potential consequences. This reflected the historical reali-ty that default (to say nothing of bankruptcy) by states or municipalities is a

Morton Keller

Black Swan in the annals of American public finance: notable when it hap-pens because it happens so rarely.The only conspicuous outbreak of state default (there is no instance

of state bankruptcy) came in the 1840s, when eight commonwealthsand a territory chose not to pay the interest or principal on their canaland railroad bonds. The consequence of this action was minimized byseveral factors. The bondholders were overwhelmingly foreign, and pri-marily British, which hardly added to the unpopularity of the states’action. The Eleventh Amendment prevented foreign bondholders fromsuing for recovery in the federal courts. And most of the defaultingstates eventually met their obligations.Nevertheless the states have been notably reluc-

tant to have recourse to default. Why? Howevertemporary, there are likely costs in the form of moredifficult, and more expensive, access to the creditmarket. Modern state indebtedness is much morelikely to include a substantial in-state creditor base,with consequent political pressure to avoid default.And a vastly expanded, and more activist, nationalgovernment suggests that the prospect of bailoutfrom above is commensurately greater.While state default has not recurred since the

1840s, default by cities and thousands of otherminor civil divisions is not infrequent. During theGreat Depression more than 2,000 towns, counties,and cities went into default. More than fifty counties fell in arrears on debtretirement in the 1980s and 1990s. And the current perfect storm of adepressed economy and rising government obligations makes default a clearand present danger. Yet the prevailing view of the Hoover workshop partici-pants was that the threat of default, like the threat of bankruptcy, had itschief value in its sobering impact on the interested parties: unions, employ-ees, officials, voters.Bankruptcy has long been a familiar feature in American commercial law.

Congress passed a series of short-lived laws in the 19th century, in responseto economic downturns. A more permanent federal law of bankruptcy cameinto being in 1898. In accord with the widespread national belief in thesocial utility of encouraging a new start after a setback, modern Americanbankruptcy law, more than in other nations, favors debtor survival andrestoration over creditor recovery.The widespread assumption was that the Eleventh Amendment, which

prohibits suits against a state by citizens of different commonwealths,made state bankruptcy a constitutional nonstarter. But the Depression,and the default of so many lesser civil divisions, induced Congress to addChapter 9, which enabled local governments to declare insolvency, to thebankruptcy code. The Supreme Court at first found this to be beyond the



The relevance ofdefault and its

close relation tobankruptcy are

heightened by therampant growth

of debt and futureobligations.

8 Policy Review

constitutional pale. In its late New Deal reincarnation as an enabler ofrather than an obstacle to active government, it accepted a revised versionof the law. But municipal bankruptcy has been a rarely adopted way out of fiscal cri-

sis since the Depression. In 1991, a federal court held that Bridgeport,Connecticut, had not sufficiently demonstrated its insolvency, and rejectedthe city’s bankruptcy filing. The recent bankruptcy of Vallejo, California, is notable for its unique-

ness. Rob Stout, that city’s financial director at the time, reported to theworkshop 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 interest-ed parties. Still, Stout thought it beneficial in mak-ing the parties more amenable to compromise.Advocates of state bankruptcy fasten on this

advantage, and question the widely held belief thatit is unconstitutional. Federalism is not a zero-sumgame, as the debate over jurisdiction in the realms ofimmigration and marriage demonstrate. Penn LawProfessor and Hoover workshop participant DavidSkeel is a prominent advocate of state bankruptcy,and the idea has won the support of politicians JebBush and Newt Gingrich. The most germane historical analogue involves

corporate, not personal, insolvency. This was theoutburst of railroad receiverships in the late 19th century. A sixth of thenation’s railroad mileage was in receivership in 1893. The federal judgesoverseeing the process turned out to be not taskmasters, but benign collabo-rators to the stricken lines. Court-appointed receivers almost always camefrom the previous management, however culpable it may have been. Andwhen railroad unions threatened to strike, the federal judges crafted a newand 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, tax-payers — to give up deadlock and take up compromise? Would these judges,thrust into the sensitive role of deciding on matters of state taxation, bor-rowing, and spending, stir up fresh torrents of political and ideological con-troversy? Or would the overseeing (often elected) state judges, with theirown pensions to worry about, serve the interests of their political bedfel-lows? And what would be the effect of a state’s bankruptcy on bond mar-kets and the cost of its ensuing debt?The historical record (such as it is) is not encouraging. Railroad receiver-

ships provided rich fodder to populist and progressive critics. There is smallreason to think that state bankruptcy today would have a less politicallydestabilizing effect.

Morton Keller

Would statebankruptcy today turn out to be an effectiveway of gettingthe parties to take up compromise?

There is a record of other ways of dealing with a budgetary-fiscal crisis.Ours is, after all, a political culture in which the desire to constrain govern-ment is as deeply embedded as the readiness to savor the goodies it can pro-vide. Sinking funds in the 19th century were designed to limits the states’spending capacity. State financial control boards that oversee (and check) theexpenditure of municipalities might be more widely applied. Off-budgetenterprises can be a way of obscuring a state’s budgetary obligations. Thestates’ police power can as readily be used to justify budgetary cutbacks asto justify budgetary largesse. But as the workshop discussion wore on, it appeared that the implicit,

and increasingly the explicit, bottom line was that the current crisis and itsresolution fit into the classic setting of American public issues: That is, reso-lution lay primarily in the interplay of politics and public policy.

The Madisonian moment

The most relevant framework of the political dimension of thefiscal-budgetary crisis was provided by Founder James Madison:That public policy was best served by a broad rather than a nar-

row spectrum of competing interests; and that political compromises emerg-ing from the interplay of interests and the facts on the ground was the bestroute 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, andgrowing. Consider this list (far from exhaustive) of interests currently atplay:

• States versus states: e.g., Indiana and Wisconsin wooing employersfrom tax-upping Illinois; Arizona, Nevada, and Utah doing the same toCalifornia.

• States versus municipalities: the recent Massachusetts Senate vote tocurtail the collective bargaining power of public employee unions wasdue in part to the concern of legislators that the cities and towns theyrepresented would pay for pensions and health care with teacher,police, and fireman jobs.

• Employees versus retirees: the potential conflict between resourcesaimed at Medicare/Medicaid and resources aimed at salaries and pen-sions.

• Private versus public workers: widespread and growing resentment byworkers in the private sector, whose pensions tend to be based on theless fruitful defined contribution system, of those in the public sector,whose pensions consist overwhelmingly of the more favorable definedbenefits system. This advantage is compounded by smaller or no public



employee contributions compared to their private counterparts, sweet-heart arrangements such as topping-up the final year’s salary on whichthe defined benefit pension often is based, and in some cases risiblyearly retirement ages.

• Tension between the pension-holding upper half of the population andthe nonpensioned lower half.

• Taxation versus economic growth: conflict between those in the publicsector and their liberal supporters, who seek the greater social welfarethat relies on greater tax revenue, and those in the private sector andtheir business-conservative supporters, who seek the economic growththat derives from a more favorable (lower-taxed) state environment.

• Short-term versus long-term agendas: e.g., political incumbents enam-ored of the benefits that the immediate distribution of benefits canbring to them, versus challengers attracted by the negative electoraleffect of reduced spending on those incumbents; or the claims of cur-rent job-and-pension holders against those still on the ladder, or seek-ing to get on it.

• Intrastate strife: teachers, policemen, firemen, and other public employ-ees jousting over fixed or declining expenditure.

This Madisonian play of interests is unfolding in a variety of states andtheir idiosyncratic political cultures.Illinois and Connecticut have been inclined to tackle their fiscal problems

by favoring revenue enhancement (higher taxes) over supply-side manage-ment (cutting entitlements). At the beginning of 2011, Illinois DemocraticGovernor Pat Quinn faced a $13 billion deficit, half as large as the generalfund budget. With a solidly Democratic legislature behind him, he secured aset of fixes that ranged from heavy borrowing to more casinos, and mostnotably a 75 percent increase in the state income tax, from 3 percent to5.25 percent. This was followed by a budget for the new fiscal year thatreduced 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, helpexplain this unusual outcome, achieved just before a new, less-Democratic-dominated legislature took office. But the game is far from over. The sys-temic sources of the state’s financial hole — unsustainable pension andhealth care commitments, a still-struggling state economy — are very muchpresent. And there is tension between Governor Quinn and House Speakerand Illinois State Party Chair Michael J. Madigan, who is arguably the mostpowerful Democrat in the state and is inclined to appeal to the growing pub-lic sense that cuts in spending are inescapable. Connecticut’s Democratic governor conjoined tax increases with substan-

tial spending cuts and state employee union concessions on benefit cuts. But

Morton Keller

10 Policy Review

while a majority of the state’s workers approved, there was enough opposi-tion from the unions (most notably afscme) to scotch the deal. As of mid-summer, attempts to patch up a compromise continued. The governorthreatened large-scale layoffs, the unions hung tough. But the political classremained hopeful: “I just see there’s a deal there. There’s got to be a dealthere,” the speaker of the House plaintively observed. Other Democratic states march to different drummers. Andrew Cuomo of

New York and Jerry Brown of California are sons of former governors, andran similar campaigns in which their awareness of their state’s financial trou-bles and a readiness to take on public employees’ entitlements were frontand center. Yet differences between their states’ political cultures and theirpolitical personalities have so far rendered different results. The California story, which figured prominently in the Hoover workshop,

has captured national attention. This is due to its size and importance. If anystate can be said to be modern America writ small, this is it. Illinois is the most prominent example of a state still under the sway of

the old Democratic machine politics; California is least subject to that tradi-tional template. Its politics is highly personal, driven by the media, televi-sion, and advocacy groups. Its politics is strongly influenced by those classicprogressive-era instruments of direct democracy (tempered by special inter-ests and big money): the initiative, the referendum, and the occasional recall. In essence, California’s fiscal crisis is much like those of other states: a

hard-to-support burden of pension, health care, and other commitments topublic employees, combined with a strong popular resistance to revenueenhancement. Current Governor Jerry Brown, in the course of his long polit-ical career no slouch at embodying conflicting popular positions, hasresponded to the fiscal crisis with a mix of budgetary belt-tightening andtaxation bucket-dipping. He hoped to deal with half the shortfall by budgetcuts, and half by a five-year extension of a cluster of supposedly temporarytaxes currently on the books. The legislature’s response was a budget billthat Brown found inadequate, and he vetoed it. That action won a round ofapplause from the far from Democratic-leaning Hoover workshop partici-pants. But soon after he changed his mind, and agreed to a budget repletewith the short-term stop-gaps and without the tax extensions to which hehad committed himself. Cuomo, meanwhile, came up with a balanced budget that had few gim-

micks and no new taxes. Brown was unable to get needed Republican sup-port for his initial program. Cuomo, in a state with more of the old, tradi-tional politics, got the gop support he needed. The Wall Street Journalsummed it up: “Cuomo Is Sailing and Brown Becalmed.”There are a number of other differentiating factors. California’s deficit as

a percentage of the budget is larger than New York’s; the rise and fall in itsrevenue intake is greater. And environmentalism has a much more conspicu-ous place in the Golden State than the Empire State. The bottom line is thatthe endless variety of political culture, economic situation, and leadership



12 Policy Review

capacity makes for varying responses to the same systemic problem: deficitsborn 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-discourag-ing tax hikes. Again, their political fortunes have varied, depending on acomplex mix of each state’s political culture and the governors’ politicalskills and opportunities. Daniels and Christie have been the most successful,Walker the most beleaguered, Kasich somewhere in between. A critical massof willing student cannon fodder, union stridency, and a state tradition ofpolitical 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 stronglocal political leaders, who have backed Cuomo and Christie in fighting ris-ing labor costs. Indeed, Cuomo has spoken of Christie’s policies as a model.

The future: Does it work?

M uckraker lincoln steffens famously reported after a1921 visit to the Soviet Union: “I have been over into thefuture, and it works.” What about the future of the fiscal/bud-

getary crisis engulfing so many of America’s states and cities? Will they beable to cope? If so, how? Or to put it another way: As units of government,do they still work?One thing seems clear: None of the devices previously employed to con-

tain state and local debt — default and bankruptcy (the major topics of theHoover workshop), sinking funds, review boards, off-budget enterprises,judicial loosening of contract sanctity — offer the hope of a solution. Someor all might be useful; none is a panacea, or likely to be widely adopted.The answer — if answer there be — appears, instead, to reside in the

hoariest of American political realities: the Madisonian play of interests, thepolitical equivalent of Adam Smith’s vision of social good emerging from thepursuit of private gain. And there is the no less venerable tradition ofAmerican federalism. The idea that states (and, by implication, municipali-ties) can, through the fecundity of their differing political cultures andsocioeconomic conditions, act as the laboratories of democracy that JusticeBrandeis said they were, is alive and well. Already they are showing consid-erable adaptability, in contrast to the rigidities of the response of the presi-dent and Congress to the national fiscal crisis. And one advantage ofMadisonian politics is that time usually works for rather than against a reso-lution. Is this a form of policymaking at odds with the strongly national, highly

ideological governing model so favored nowadays by advocacy groups andthe media? One can only hope so.

Morton Keller

Almost three years into his administration,observers continue to debate the nature of PresidentObama’s overall foreign policy approach. What is the“Obama doctrine”? Some say it is a policy of interna-tional engagement. Some point to Libya, and suggest

that the Obama doctrine is one of humanitarian intervention multilaterallyand at minimal cost. Some look to today’s fiscal constraints and say that it isall about insolvency. Some describe the Obama doctrine as a version of tra-ditional great power realism, coming after the crusading idealism of theBush 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 seriouslyflawed and incomplete. Barack Obama does in fact have an overarching for-eign 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 Obama’s overall for-

The Accommodator:Obama’s Foreign PolicyBy Colin Dueck

Colin Dueck is associate professor at the Department of Public and InternationalAffairs, George Mason University, and the author of Hard Line: The RepublicanParty and U.S. Foreign Policy since World War II (Princeton, 2010).


14 Policy Review

eign policy strategy is the concept of accommodation. Specifically, the presi-dent believes that international rivalries can be accommodated by Americanexample and by his own integrative personal leadership. The problem is notthat Obama has no grand strategy. The problem is that it is not working.

Obama’s grand strategy

A ny grand strategy or overall foreign policy strategy doesseveral things. First, it specifies certain national goals or ends.Second, it identifies the policy instruments or means by which

national goals will be pursued. These instruments might include, for exam-ple, diplomatic commitments, military intervention, foreign aid, and/or eco-nomic sanctions. Any viable strategy must ensure that means and ends arewell matched. Commitments must not exceed capabilities. Yet strategy —unlike say, sculpture — also recognizes that our targets are animate objects,with the ability to respond, make choices, and fight back. Consequently,effective foreign policy strategists must and do strike a fine balance. On theone hand, they need to know what they want. On the other, they must beflexible as to how exactly they pursue it, given the inevitable surprises result-ing from pushback by other actors within the international system.

The primary ends and means of Obama’s foreign policy strategy can beinferred from both his actions and his words, which have been broadly con-sistent since his election to the White House. To begin, his chief policy inter-est is not in the international realm at all, but in the domestic. Obama’s lead-ing motivation for becoming president, as he himself has said, was not sim-ply to get elected, much less to focus on foreign affairs, but to “remakeAmerica.” He aims at and has already achieved dramatic liberal or progres-sive reforms in numerous domestic policy areas such as health care andfinancial regulation.

This focus on liberal domestic reform has several implications forAmerican grand strategy, as Obama well knows. First, it means thatresources must be shifted in relative terms from national security spending todomestic social and economic spending — a shift clearly visible in recentfederal budgets. Second, it means steering clear of partisan political fightsover national security that might detract from Obama’s overall political cap-ital. Third, it means that potentially costly new international entanglementsmust for the most part be avoided. Sometimes these three imperatives are intension with one another. For example, in the autumn of 2009, Obama wastempted to begin winding down America’s military engagement inAfghanistan, yet at the same time wanted to avoid appearing weak on ter-rorism. So he settled on an approach that called for temporary U.S. escala-tion in Afghanistan, resolved by subsequent disengagement beginning in July2011. That approach was hardly optimal militarily, but it was the least badpolicy for Obama in domestic political terms given his overarching priori-

Colin Dueck

ties. As with some previous presidents, such as Richard Nixon, an overallshift toward American strategic retrenchment is masked by temporary orshort-term military escalations. So it is with Obama. The current president’scentral reason for international retrenchment, however, is not reallyAmerica’s economic insolvency per se, since he has actually added to thatinsolvency in dramatic fashion, but rather the concern that foreign commit-ments and national security disputes might detract money, time, and atten-tion from his very ambitious domestic reform agenda. Again, the mainimplication of such concerns in Obama’s case is an overall emphasis oninternational and military retrenchment, although one tempered by thedesire to pre-empt domestic criticism from foreign policy hawks.

The domestic political arguments for internation-al retrenchment are matched and supplemented, inObama’s mind, by a genuine philosophical case for amore accommodating American stance abroad. Byall appearances Obama sincerely believes, and hascertainly said repeatedly over the years, that theUnited States should be more accommodatingtoward potential adversaries and rivals overseas —accommodating of their interests, their perspectives,and their wishes. The reason is that through accom-modation, these potential rivals can be turned, if notinto friends, then at least into something other thanadversaries. At least this is what Obama believes. Hecan certainly be cold-blooded when making short-term or tactical calcula-tions in relation to clear, existing U.S. enemies. After all, this is a presidentwho hunted down Osama Bin Laden, and has escalated the use ofunmanned drone strikes — basically targeted killings — against suspectedterrorists in Pakistan. So there are clearly certain international or transna-tional actors who in Obama’s view are irreconcilable to core American val-ues and interests. But this category is very small, and it never seems to rise tothe level of state actors. The assumption appears to be that virtually anynation-state can be successfully engaged, regardless of regime type. Even theTaliban, we are told by numerous administration officials, is chock full ofpeople who can be peeled off through diplomatic negotiation and accommo-dated to American designs if only we have the courage to try.

This faith in the endless possibilities of diplomatic engagement reflects adeeper conviction on the part of the president and his supporters. At heart,Obama does not really believe that conflict is at the essence of world poli-tics. On the contrary, he believes that genuine and overarching internationalcooperation is possible, if apparent adversaries can learn to listen to andaccommodate one another. Moreover he has a very specific and characteris-tic formula for promoting such cooperation — a style he seems to have firstfully developed as a community organizer in Chicago. It is not through tra-ditional American and classical liberal mechanisms such as the bold promo-


The Accommodator: Obama’s Foreign Policy

The primary endsand means of

Obama’s foreignpolicy strategycan be inferredfrom both hisactions and his

words.

16 Policy Review

tion of democracy or economic interdependence overseas. Rather, it isthrough the mutual accommodation of interests, led by American example.

What this means is that in the case of partially adversarial or even hostilerelationships with other countries, the United States under Obama reachesout and makes some initial concession or accommodation, in the expecta-tion of reciprocal concession. In such cases, “American leadership” or “lead-ing by example” means essentially taking the lead in making concessions.Similarly, in the case of friendly or allied relationships, the United Statesunder Obama frequently proposes multiple new regimens or collective con-cessions — sometimes on the part of democratic allies, sometimes on thepart of the U.S. — in order to catalyze broad processes of international

accommodation on specific issue areas such as armscontrol, counterterrorism, or climate change. Eitherway, the expectation is one of progressive agree-ment, reduced conflict, and increased cooperationinternationally, based upon mutual accommodation,and sparked by American example. And insofar asthe president views America’s world power as beingin relative and perhaps inevitable decline, that onlyreinforces the argument for an accommodationistapproach overseas.

The regional and practical implications of thisstrategy of accommodation have been clear andquite deliberate since Obama entered the WhiteHouse. 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 thehope that this position would trigger similar concessions from other leadingindustrial powers such as China. On the issue of nuclear arms control, theObama administration offered an even more striking set of accommodation-ist proposals: The U.S. would work toward the ratification of a comprehen-sive nuclear test ban treaty, negotiate a new Strategic Arms Reduction Treaty(start) with Russia, and even embrace the goal of “nuclear zero,” or theeventual abolition of nuclear weapons worldwide, in the hopes of triggeringsimilar efforts toward nuclear disarmament in cases such as North Koreaand Iran. Obama understood that there were certain trade-offs with suchan approach, and he was willing to make them. For example, if the topAmerican priority in relation to Iran was to negotiate the termination ofthat country’s illicit nuclear weapons program, then concerns regardingdemocracy promotion inside Iran could not be allowed to trump effortstoward a negotiated settlement with the existing regime. Similarly, if a topAmerican priority in relation to Russia was to secure Moscow’s help onnuclear nonproliferation, then Obama would hold off on antagonizingMoscow over other issues such as Georgia, missile defense, or human rightswithin Russia.

Colin Dueck

Obama’sassumptionappears to bethat virtually anynation-state canbe successfullyengaged, regardless ofregime type.

On the issue of terrorism, Obama has made clear his expectation that aseries of significant American and allied gestures would help to ease transna-tional counterterror efforts, while undercutting support within the Muslimworld for violent extremist groups like al Qaeda. The U.S. would withdrawmilitarily from Iraq; “end torture”; close detention facilities at GuantanamoBay; engage in public outreach toward Muslims worldwide; and press for apeace agreement between Israel and the Palestinians, on the assumption thatsuch measures in combination help to undercut anti-American sentimentsinternationally. In the case of Israel, it was not so much the United States butthe Israelis themselves who were expected to help kick-start peace negotia-tions by imposing a freeze on the construction of new Jewish settlements inthe West Bank and Jerusalem.

To be sure, Obama has simultaneously authorizedsome aggressive counterterrorism efforts such as the2009–2010 escalation in Afghanistan, the trackingof Bin Laden, and increased drone strikes overseas.But the overall tone, compared to that of the Bushadministration, has been more accommodatingtoward international criticism of U.S. counterterrorpractices. Indeed Obama made it abundantly clear,especially when first running for president in2007–08, that he agreed with much of this interna-tional criticism, and viewed the Bush administrationitself as a major source of American foreign policyproblems. On the issue of counterterrorism, as on others, Obama statedrepeatedly that the United States lost much of its international reputationand moral standing under George W. Bush, and that a different set of poli-cies as well as a different leader could regain that standing and reputationwith a more conciliatory approach. Obama himself would be especiallywell-suited to this role, his supporters suggested, not only because of his sta-tus as the first African American president, but because of his internationalbackground, his charisma, and his proven ability to bring people togetheracross cultural, ethnic, and political divides. There is little doubt that Obamashares this ambitious view of his own personal possibilities as a history-mak-ing figure.

This leads us to one final, striking feature of Obama’s overall foreign poli-cy strategy as it relates to questions of process and procedure. Obamaunderstands that when it comes to foreign policy, the president’s role isabsolutely crucial. Presidents play the leading role in shaping overall U.S.foreign policy choices and priorities whether they want to or not. Inevitably,these choices and priorities involve domestic political and policy tradeoffs.Obama is therefore determined to keep the central foreign policy decisionsin his own hands, and to make them with care. To say that he prides himselfon his analytical and decision-making capabilities would be an understate-ment. He has tremendous confidence in his ability to personally dissect,



The regional and practicalimplications of Obama’s

accommodationstrategy have been clear and

deliberate.

18 Policy Review

articulate, and manage various stages of the foreign policy process. He doesnot really believe that he needs one or more big-picture foreign policy strate-gists in the room when he is making the crucial decisions. He is determinedto play that role himself.

Under this system, Secretary of State Clinton is the public face ofAmerican diplomacy, a role she plays well, but she does not appear to be atthe true center of decision-making on multiple issues Obama deems vital.Robert Gates was exceptionally effective as secretary of defense, and pre-dominated within his bailiwick, but he did so in part by recognizingObama’s overall policy goals. His successor Leon Panetta will no doubtgrant Obama at least as much deference. The president’s first national secu-rity advisor, James Jones, was neither suited nor permitted to play the role ofcoordinator and honest broker between various agencies and departments.Jones’s successor, Thomas Donilon, was brought in to help organize andrationalize the foreign policy process, precisely because he is sensitive to thepresident’s political needs, and not because he is expected to play the role ofgrand strategist. Obama is his own grand strategist, and whatever tacticaladjustments he makes on either process or substance, he is not about torelinquish that role.

To sum up, despite widespread criticisms to the contrary, Obama doeshave an overarching foreign policy strategy, one which predates the ArabSpring and has outlasted it. This strategy simply does not fit neatly into theusual categories by which the subject traditionally operates. Obama speakssincerely of the need for peaceful settlement of disputes abroad, but he huntsdown Bin Laden and escalates militarily in Afghanistan and Pakistan. He isunsentimental about bargaining with hardened autocrats, but he expectspatterns of international cooperation to spiral upward as a result of U.S.diplomatic outreach. Consequently he is not easily categorized as a realist oran idealist, a hawk or a dove, because he has points of similarity and pointsof disagreement with each school of thought. And to say that he is an inter-nationalist, as opposed to an isolationist, is true as far as it goes, but stillpresents the question: Exactly what sort of internationalist?

The answer is, one who believes in expanding possibilities for mutualaccommodation between nation-states, sparked by American example, andin the potentially integrative qualities of his own personal leadership on theworld stage — all of which is intended not only to encourage internationalcooperation, but above all to permit a refocusing on progressive domesticreforms within the United States.

The failure of accommodation

I t has now been almost three years since Obama entered the WhiteHouse — plenty of time to assess the effectiveness of his foreign poli-cy strategy. And it must be said that in important respects his strate-

Colin Dueck

gy of accommodation has failed. Obama’s personal leadership has not reallyaltered the basic dynamics of leading international or transnational conflictsand disputes. Nor have American outreach, accommodation, and diplomaticconcessions triggered significantly greater international cooperation onissues such as nonproliferation. To some extent, of course, Obama has beenconstrained in the implementation of his strategy by domestic political criti-cism or pushback on many of these issues. Yet the failures appear to involveinternational pushback as well.

On climate change, for example, the administration went into the 2009Copenhagen conference offering significant reductions in U.S. carbon emis-sions. China’s response was essentially a refusal to make any comparablereductions in absolute terms, and the conferenceachieved virtually nothing of practical import.Intellectually honest environmentalists admit thatObama’s international climate initiatives are nowdead in the water.

On nuclear nonproliferation, the administrationbent over backwards to accommodate Moscow,partly in the hopes of triggering meaningful progressin relation to Iran. Specifically, the U.S. signed aNew Strategic Arms Reduction Treaty that gaveMoscow most of what it wanted, including appar-ently an informal understanding on missile defenses.Russia responded by helping to ratchet up un sanc-tions on Iran a notch. But these sanctions show no sign of altering theIranian regime’s basic determination to build nuclear weapons while simul-taneously denying that it is doing so.

Indeed, Iran has become the leading case of failed attempted accommoda-tion. Obama has made it abundantly clear through a variety of public andprivate messages that he is willing to negotiate in earnest over Iran’s nuclearweapons program. Iran is obviously not interested. The only notableresponses forthcoming from Tehran have been downright mendacious, mis-leading, and uncompromising. The current U.S. strategy of outreach andaccommodation has had almost three years to draw some sort of minimallyconstructive response from Iran, and it has not worked.

The accommodationist elements within Obama’s initial counterterrorismapproach have faced a similar fate. Most of his early proposals on detentionand interrogation have been dialed back at least partway, the end result ofwhich has been consternation and confusion all around. To be sure, the find-ing and killing of Osama Bin Laden this past spring was a great success, forwhich congratulations are in order, but that very success was due to the factthat in this particular case Obama ignored accommodationist pietiesthroughout the operation. The strike against Bin Laden’s secret compoundwas a unilateral American military operation launched inside of Pakistanwithout the permission of that country, based upon intelligence gathered



It must be said that inimportantrespects Obama’s

strategy of accommodation

has failed.

aggressively over a period of years dating back to the Bush administration,and without excessive concern for absurdly legalistic objections. On theother hand, there is no indication that those sympathetic to al Qaeda areespecially impressed by Obama’s personality or by his halting efforts to pres-sure Israel while partially reforming U.S. detention and interrogation of sus-pected terrorists. Attempted home-grown attacks by radicalized Islamistswithin the United States have only increased since 2009. Nobody can rea-sonably say that Obama is primarily responsible for these attempts, but it isjust as unreasonable to suggest that support for terrorism between 2001and 2008 was primarily due to the policies of George W. Bush. The point isthat anti-American terrorists plot their attacks without being appeased by

particular U.S. policy concessions or presidents. Theradical Islamist hatred of American influence contin-ues regardless of specific administrations, and it isprofoundly solipsistic to think otherwise.

The problem with Obama’s strategy of accommo-dation therefore goes beyond specific case-by-casefrustrations. The problem is more fundamental andinherent to his approach. As a general rule, foreigngovernments or transnational actors do not feelobliged to alter their basic policy preferences or tomake unwanted concessions of their own simplybecause an American president is accommodating orcharismatic. This is not how international politicsworks. 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. Ifnot, they won’t. Either way, whether we like it or not, the goals and priori-ties of foreign governments are defined by those governments, and not bythe president of the United States. Any American president can alter thecosts and benefits for other countries to cooperate with the U.S. on specificmatters, by offering specific incentives or disincentives, but he cannot literal-ly redefine how other governments view their own vital interests, and it isdelusional to think that he can. If Washington offers a particular policy con-cession to another government in exchange for some concrete, reciprocalconcession of real interest to the U.S., then that is one thing. Such negotia-tions are at the heart of international diplomacy. But to make the concessionbeforehand — unilaterally, as it were — or to offer it up broadly to theentire planet as a whole in the hopes of unspecified reciprocity from particu-lar countries, is to ignore the normal workings of international relations.

Look at how Obama’s strategy of accommodation has played out in rela-tion to four categories of foreign governments: 1) those essentially hostile tothe United States, 2) those who pursue a mixture of strategic rivalry andcooperation, 3) genuine American allies, and 4) Arab governments of vary-ing allegiance.

Colin Dueck

The radicalIslamist hatred of Americaninfluence continues regardless of specific administrations.

20 Policy Review

The first category, of regimes basically hostile to the United States,includes the governments of Iran, North Korea, Cuba, and Venezuela, toname only four of the most notable. Each of these governments has literallydefined itself at a fundamental level by violent opposition to America. Tothink that a conciliatory tone, a preliminary concession, or a well-inten-tioned desire for better relations on the part of a U.S. president by itself willtransform that hostility is simply naïve. In the case of Cuba, for example, theObama administration began by lifting certain economic sanctions, in thehope of seeing some reciprocal concessions from the Castro brothers: politi-cal liberalization, an easing of anti-American hostility, anything at all of sig-nificance. No such concessions have been made. The case of Iran has alreadybeen discussed — Obama reached out to Tehranwith great fanfare in 2009 , and has received ineffect a slap in the face. Both Venezuela’s HugoChavez and North Korea’s Kim Jong Il are likewisejust as hostile and provocative toward the UnitedStates today as they were when George W. Bush wasAmerica’s president. This is because the fundamentalbarrier to friendly U.S. relations with those regimeswas never George W. Bush. The fundamental barrierto friendly relations with these regimes is the factthat they are bitterly hostile to the United States. Thekinds of concessions that Washington would have tooffer to win their genuine accommodation would beso sweeping, massive, and unacceptable, from the point of view of any likelyU.S. president that they will not be made — and certainly not by BarackObama. Any smaller concessions from Washington, therefore, are simplypocketed by a hostile regime, which continues along in its basic antipathytoward the United States.

The second category, of regimes that pursue a mixture of rivalry andcooperation with America, includes major autocratic powers such as Chinaand Russia. These governments continue to view the United States underObama as a strategic threat to their stature and integrity, but they pursuecooperation with Washington in certain areas such as trade and arms con-trol while simultaneously pursuing geopolitical competition with the U.S.Their common interests with Washington are more extensive, and their hos-tility toward the U.S. less profound, than is the case with Iran or NorthKorea. Nevertheless the governments of China and Russia, like most govern-ments overseas, are largely indifferent to Obama’s personal charms. Theyare interested in whether he concedes to their interests and priorities, not inhis personal background as such, or in any vision he might have for a moreliberal international order. In cases where Obama gives Moscow or Beijingmost of what they want, as he did for instance in the 2009–10 New startnegotiations with Russia, then naturally they are happy to accept the conces-sion, and even to offer a modest quid pro quo. But in cases where he offers



To make concessions

unilaterally, as it were, is toignore the

normal workingsof international

relations.

22 Policy Review

accommodating or hopeful gestures, yet runs up against the perceived vitalnational interests of either power, then they simply decline to offer any recip-rocal and proportionate accommodation. Neither power, for example, hasany intention of surrendering its nuclear arsenal, no matter what Obamasays or does in relation to his goal of nuclear zero. Nor has either poweroffered truly serious cooperation with regard to Iranian or North Koreannuclear proliferation. Chinese and Russian leaders are not especiallyimpressed by Obama. If anything, they are encouraged by the implication oflong-term U.S. strategic withdrawal under his leadership, because it leavesthem stronger within their own neighborhoods. In this case, as in many oth-ers, American strategic disengagement is not interpreted as transformational

benevolence, but as a sign of weakness.The third category, of genuine American allies,

includes longstanding strategic and democraticfriendly partners of the United States such as GreatBritain, Germany, and Japan. These are often thecountries where Obama’s popularity on the streetas a substitute for George W. Bush is the greatest.Even so, this popularity has not really translatedinto meaningful policy concessions in areas wherethe U.S. and its allies differ. In relation to the war inAfghanistan, for example, America’s Europeanfriends are no more enthusiastic or helpful to theUnited States than they were when Bush was presi-dent. Nor have leading European governments

actually altered other core foreign policy preferences in response toObama’s popularity. France, for example, is not about to abandon itsnuclear arsenal simply because the U.S. embraces the concept of nuclearabolition. Indeed American allies are sometimes unnerved by Obama’sinstinctive refusal to divide the world into friends and enemies. This is cer-tainly true of Israel, and also of numerous European governments. Obamasets a rather cool, distant tone in relation to traditional U.S. friends likeGreat Britain. America’s allies in countries such as Poland, Colombia, andIsrael do not understand why Obama reaches out to hostile governments inCuba and Iran, while often maintaining a studied detachment from clearlydemocratic and close U.S. partners. Part of the answer is that Obamaexpects allies such as Israel, Poland, and Georgia to mimic and line upbehind his own strategy of international accommodation. In effect hewould like to outsource the strategy of accommodation to America’s allieswhere possible. Israel, for example, is expected to accommodate Palestiniandemands. Georgia and Poland are expected to accommodate Russia.Fortunately Obama’s willingness to pressure U.S. allies into accommodat-ing their own adversaries has its limits. In any case, the United States willcontinue to cooperate with its core democratic allies in many ways ontrade, counterterrorism, and nonproliferation, as it already was cooperating

Colin Dueck

If anything,Chinese andRussian leadersfind encouragingthe implication of long-term U.S. strategicwithdrawal.

under Bush. The overall pattern here is much more one of continuity overthe past five years or so than of change.

The last category, deserving of special mention given the upheavals overthe last year, consists of Arab governments with varying allegiances in rela-tion to the United States. The Arab Spring of 2011 presented the Obamaadministration with a classic U.S. foreign policy dilemma of whether to bol-ster or pressure American allies in response to indigenous popular pressures.One can certainly sympathize with the need to balance U.S. national securityimperatives with democratic aspirations, and to use a case-by-caseapproach, but Obama’s accommodationist foreign policy assumptions ledhim to make some strange choices. Specifically, the failure to make a cleardistinction between America’s allies and its adver-saries led him to be too hard on some of its alliesand too easy on some of its enemies within the Arabworld.

In the case of Egypt’s Hosni Mubarak, theObama administration publicly and abruptly aban-doned a longstanding U.S. ally, with little indicationthat any successor would be friendlier to U.S. inter-ests on vital issues such as counterterrorism. There isa strong possibility that the bitterly anti-WesternMuslim Brotherhood will assume increased powerin Egypt, but this does not seem to especially botherObama, who likes to distinguish between radicalIslamists like Osama Bin Laden and radical Islamists amenable to reasonand accommodation. In the case of Syria’s Bashar al-Assad, the Obamaadministration went remarkably easy for quite some time on the regime’sviolent crackdown against peaceful protestors, under the premise that theU.S. needed Syria on a range of regional issues such as peace negotiationswith Israel. Again, the mistake was in a failure to recognize that the Syriangovernment is in fact a staunch adversary of Israel, the United States, andU.S. interests within the Middle East. But for an American president unwill-ing to think in these stark terms, no such clarifying distinctions are necessaryor constructive, since they supposedly divert from possibilities for fruitfulcooperation.

Finally, in the case of Libya, as Muammar el-Qaddafi launched a crack-down of his own, Obama made the strangest choice of all, settling on anincoherent policy of extremely circumspect humanitarian intervention underthe strictest possible limitations. Whether one was a robust humanitarian, arealist, or a foreign policy hawk, the painfully half-hearted manner ofObama’s Libyan intervention made no sense whatsoever. It made sense onlyin purely domestic political terms — or to those who believe that asking thepermission of the Arab League when sending U.S. armed forces into battle isintrinsically important. Then again, Obama and many of his core supportersview multilateralism in foreign policy as not only useful, but as an end in



In the case ofEgypt’s Hosni

Mubarak, Obama publicly

and abruptly abandoned alongstanding

U.S. ally.

24 Policy Review

itself, since it indicates American goodwill and humility. They thereforejudge an intervention like that in Libya primarily on whether it is done in acircumspect, shared, and multilaterally approved fashion. This is an amazingprimary criterion on which to launch and conduct armed combat, butapparently it looks perfectly reasonable to the president and his inner circle.

Throughout the events of the Arab Spring, Obama seemed to want auto-cratic regional governments — however friendly or unfriendly to the UnitedStates — to accommodate popular uprisings with at least some token liberalreforms. Arab governments that failed to cooperate in this minimal waytended to lose Obama’s support. Yet here as elsewhere, expectations ofmutual accommodation triggered by American instruction proved unrealis-tic. On the contrary, the failure to distinguish clearly and accurately betweenU.S. allies and U.S. adversaries in the Middle East left the administrationwithout a reliable compass, floundering and out of its depth.

The Obama doctrine, revisited

O bama is smart, well-intentioned, and methodical, but he is work-ing on the basis of some deeply flawed assumptions about interna-tional politics, and it shows. When he ran for president several years

ago, he suggested that most U.S. foreign policy problems abroad were due toAmerica’s own policies under George W. Bush, and that if only the UnitedStates adopted a more accommodating approach there could be dramaticprogress toward international cooperation on a wide variety of issues. Intruth this was a profoundly self-centered argument, both in relation to theUnited States and to Obama himself. Violent or intractable transnationaland international conflicts and rivalries on a whole host of issues are notactually unusual in world politics. They existed long before Obama waspresident, and will continue to do so. The international system possesses farless moral unity and collective police power than a single stable city, state, orcountry. The challenges of world politics are therefore not analogous tocommunity organization at the local level. U.S. presidents do not hover overthe international arena as disinterested assemblers and observers, nor shouldthey. The task of an American president is not to play the role of unSecretary-General or Pope. The task of an American president is to promoteU.S. national interests overseas, guided to be sure by a sense of both pru-dence and justice. Obama is for many Americans a kind of inspirational per-sonal bridge between races, as well as a bridge between his own country’spast, present, and future. This is fine, but any desired projection on to theinternational realm is mistaken, not to mention pretentious. Obama may bea bridge for many Americans; he is not and cannot be a bridge betweennations.

In one case after another, conciliatory or accommodating gestures andconcessions by the Obama administration toward various international tar-

Colin Dueck

gets have not resulted in much concrete reciprocity. This is not because thestrategy of accommodation needs more time. It is because the strategy ismisconceived to begin with. Broad processes of international cooperationand accommodation on issues such as proliferation, climate change, andcounterterrorism cannot be kick-started by American concession if otherimportant international players do not see it as being in their own interest.Preliminary American concessions on economic sanctions do not impress theCuban government. U.S. diplomatic overtures do not impress the Iraniangovernment. American proposals on climate change do not impress theChinese government. Calls for nuclear abolition do not impress the NorthKorean government. Proposed revision of U.S. detention and interrogationpractices does not impress Islamist radicals.

So who is supposed to be the target audiencehere? The true audience and for that matter the ulti-mate source of these various conciliatory policy ini-tiatives is essentially a small, transnational, NorthAtlantic class of bien pensant opinion who alreadyshare Obama’s core policy priorities in any case.They have rewarded him with their support, as wellas with the Nobel Peace Prize. Others international-ly are less impressed. And in the meantime, we mayhave lost something, in terms of the ability to seri-ously prepare for certain looming security chal-lenges. A primary and continuing emphasis ondiplomatic engagement after Iran has repeatedly rebuffed the United Statesdoes not help us to prepare for the possibility of a nuclear-armed Iran. Adeclared commitment to nuclear abolition does nothing to convince othernuclear powers to abandon their own arsenals, and may even be counter-productive in the sense that it deludes important segments of opinion intobelieving that such declarations actually help to keep the peace. Obama hassaid from the beginning that the purpose of his more conciliatory foreignpolicy approach was to bolster American standing in the world, but the defi-nition of international standing has actually been highly self-referential inthe direction of aforementioned transatlantic liberal opinion. In many casesoverseas, from the perspective of other governments, Obama’s well-inten-tioned conciliatory gestures are read as a sign of weakness, and consequentlyundermine rather than bolster American standing.

In one way, however, Obama has already achieved much of what hedesired with his strategy of accommodation, and that is to re-orientAmerican national resources and attention away from national security con-cerns and toward the expansion of domestic progressive reforms. Heappears to sincerely believe that these liberal domestic initiatives in areassuch as health care and finance will also bolster American economic powerand competiveness. Actually they will do no such thing, since heavy-handedand constantly changing federal regulations tend to undermine investor con-



The challenges of world politics

are notanalogous tocommunity

organization atthe local level.

26 Policy Review

fidence as well as long-term U.S. economic growth. But either way, Obama’svision of a more expansive government role in American society is well onits way to being achieved, without from his point of view debilitatingdebates over major national security concerns. In that sense, especially if heis reelected in 2012, several of his major strategic priorities will have beenaccomplished.

Any good strategy must incorporate the possibility of pushback or resis-tance from unexpected quarters. As they say in the U.S. military, the enemygets 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 andany capable leader adapt. Indeed any decent foreign policy strategy begins

with the recognition for backup plans, sinceinevitably things will not go exactly according toplan. Other countries rarely respond to our initialstrategic moves in precisely the way we might wish.The question then becomes: What is plan B?

Obama is tactically very flexible, but at the levelof grand strategy he seems to have no backup plan.There is simply no recognition of the possibility thatworld politics might not operate on the post-Vietnam liberal assumptions he has imbibed andrepresented over the years. Obama’s critics oftendescribe him as providing no strong foreign policyleadership. They underestimate him. Actually he hasa very definite idea of where he wants to take the

United States. His guiding foreign policy idea is that of international accom-modation, sparked by American example. He pursues that overarching con-cept with great tactical pliability but without any sign of ideological or basicrevision 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 lead-ership in the wrong direction.

How can the Obama administration adapt and adjust to the failures of itsstrategy of accommodation? It can admit that the attempted diplomaticengagement of Iran has failed, and shift toward a strategy of comprehensivepressure against that regime. It can make it abundantly clear to both theTaliban and al Qaeda that the United States will not walk away fromAfghanistan, despite the beginning drawdown. It can start treating Russia asa geopolitical rival, which it is, rather than simply as a diplomatic partner. Itcan strengthen U.S. missile defenses as a form of insurance against nuclearproliferators. There is a long list of policy recommendations that can bemade on specific regional and functional matters, but the prior and mostimportant point is the need for a change in mentality. President Obamaneeds to stop working on the assumption that U.S. foreign policy conces-sions or gestures directed at the gallery of elite transatlantic opinion —whether on nuclear arms control, counterterrorism, or climate change —

Colin Dueck

Obama believesthat liberaldomestic initiatives willbolster American economic power and competitiveness.

will somehow be reciprocated by specific foreign governments in the absenceof some very hard bargaining. He needs to grasp that U.S. strategic disen-gagement from specific regional theaters, whether promised or underway, istaken as a sign of weakness in those regions and not simply as a sign ofbenevolent restraint. He needs to recognize that America’s international rep-utation consists not only of working toward his own definition of the moralhigh ground, but also very much of a reputation for strength, and specifical-ly of a reputation for the willingness to use force. He needs to stop operatingon the premise that past American foreign policy decisions are the ultimatesource of much violent discord in the world today. He needs to be willing todivide the international system conceptually and operationally into friendsand enemies, as they actually exist, and to supportAmerica’s friends while pressuring and opposing itsenemies relentlessly. Finally, he needs to admit thelimited effect of his own personal charisma on theforeign policies of other governments. The presidentof the United States is not an international commu-nity organizer. If the conceptual framework thatunderpins Obama’s foreign policy strategy is altered,then better policies will flow on a wide range of spe-cific issues.

Admittedly, there is little chance that Obama willconcede any of this. One of the things we knowfrom historical example is that presidents tend tokeep operating on their own inbuilt foreign policyassumptions, even as contrary evidence piles up. It usually takes either a dra-matic external shock, or a new administration altogether, to bring about amajor revaluation of existing assumptions. Curiously, this resistance to con-trary evidence in foreign policy appears to be even truer of highly educated,self-confident, and intelligent people with core ideological convictions — adescription that certainly fits President Obama. Obama is malleable on tac-tics, and he takes great care to project an aura of sensible calm, but in truthhe is a conviction president powered by certain core ideological beliefs andvaulting policy ambitions. His characteristic response when these core beliefsand ambitions are truly tested by opponents or events is not to bend, but tobristle. He is therefore particularly unlikely to admit or even perceive that aforeign policy strategy based upon faulty assumptions of internationalaccommodation is failing or has failed. Nor is it politically convenient forhim to do so. More likely, he will continue along his chosen path, offeringnothing more than tactical adjustments, until some truly dramatic eventoccurs which brings his whole foreign policy strategy into question — anIranian nuclear test, for example.

If Iran were to test a nuclear device in open defiance of the United States,then we might well see a serious internal rethinking of this administration’saccommodationist foreign policy assumptions, for a wide variety of very



Obama needs to be willing to support

America’s friendswhile pressuring

and opposing its enemies relentlessly.

28 Policy Review

good reasons. By that time, of course, it would be too late to prevent Iranianacquisition of nuclear weapons. Indeed Obama may view Iran’s rise andAmerica’s disengagement regionally as inevitable over the long run. But atthe very least, after an Iranian nuclear test, he would be forced to take amuch tougher approach toward Iran. He would probably announce newU.S. military deployments in the Persian Gulf region, toughened economicsanctions, and increased support for Iran’s opposition Green movement. Hemight even declare publicly, in terms similar to those used by previous presi-dents such as Harry Truman, Dwight Eisenhower, and Jimmy Carter, thatthe United States will support any allies within the Middle East againstaggression from a hostile power. And then this hard line declaration, ironi-cally, would become known to history as the Obama doctrine — thus end-ing debate once and for all over the meaning of that term.

Colin Dueck

The convention on the Elimination of All Forms ofDiscrimination Against Women (cedaw) has been one ofthe most broadly supported international treaties since itsadoption by the United Nations 30 years ago. Since itsinception, 186 un member states have ratified the conven-

tion, showing their commitment to achieving gender equality worldwide. Itremains a mystery to many, therefore, that, to date, the United Statesremains one of a small minority of countries that have not ratified this treatydesigned to ensure equality between women and men and advance women’srights across the world.

The U.S. ratification of cedaw has historically faced significant chal-lenges from the American right, led by the late Senator Jesse Helms and con-servative organizations who rallied support by claiming that the treatywould result in “demanding abortion” and “decriminalizing prostitution.”

Ratifying Women’sRightsBy Kavita N. Ramdas and Kathleen Kelly Janus

Kavita N. Ramdas is executive director of the Ripples to Waves Program onSocial Entrepreneurship and Development at Stanford University’s Center onDemocracy, Development, and Rule of Law (CDDRL) and the former presidentand CEO of the Global Fund for Women. Kathleen Kelly Janus teachesInternational Women’s Human Rights at Stanford Law School and is a co-founder of Spark.


30 Policy Review

However, in the past, prominent Republicans including Orrin Hatch, JohnMcCain, and Colin Powell have supported ratification. Recently, the Obamaadministration has demonstrated a renewed interest in cedaw, with promi-nent support coming from President Obama, Vice President Joe Biden,Secretary of State Hillary Clinton, and Legal Counsel to the StateDepartment Harold Koh, in addition to key senators such as Barbara Boxerand John Kerry. For many advocates of women’s rights, these seem likehopeful indicators that the Senate Foreign Relations Committee will consid-er ratification of the convention again in the near future, which we believewould be a positive step for the United States and for women across theglobe.

These revitalized efforts to ratify cedaw havealso been met with renewed opposition from theright. Conservative arguments in opposition tocedaw are rooted in American exceptionalism,misinterpretations of the treaty itself, and a glorifi-cation of women’s traditional roles as mothers,wives, and caregivers. They rely on an intense doseof fear-mongering about the potential destructiveimpact of cedaw , which conservatives arguethreatens family life in the United States with radical“sexual egalitarianism.” Furthermore, in makingthese arguments, conservatives stir latent xenopho-bia, warning us that the cedaw periodic reviews bya body of foreign experts cannot be better at meet-ing the moral challenges of equity than our own

democratic institutions. And they seem most appalled at cedaw’s Article5(a), which seeks to “achieve the elimination of prejudices and customaryand all other practices which are based on the inferiority or superiority ofeither of the sexes or on stereotyped roles for men and women.”Conservatives believe this to be particularly harmful because it risks eradi-cating gender roles altogether, which they view as a threat to the fiber of oursociety even if it is these very roles which threaten the well-being not only ofwomen but everyone. These types of arguments against cedaw have alsobeen prominent among the religious right, such as the D.C.-based FamilyResearch Council and groups like Concerned Women for America, whosemission is “to protect and promote Biblical values among all citizens” andwhose vision is “for women and like-minded men, from all walks of life, tocome together and restore the family to its traditional purpose.”

Opposition to U.S. ratification of cedaw has not only surfaced from theright. Opponents have also come from the left, albeit to a lesser degree. Forexample, opponents from the left fear that signing cedaw will be a symbol-ic gesture that would amount to sweeping the problem under the carpetinstead of creating meaningful change for women in the U.S. who experiencediscrimination on the basis of sex. Other liberals oppose the U.S. ratification

Kavita N. Ramdas and Kathleen Kelly Janus

Conservativeopponents ofCEDAW rely on an intensedose of fear-mongeringabout its potential impact.

of cedaw because they claim that the equality framework on which thetreaty was developed is outdated. For example, feminist theorists pose theparadox of a rights-based approach that, by working specifically to addresswomen’s subordination, in some ways further entrenches women’s subordi-nate positions as opposed to liberating them. Thus, these liberals claim thatthe problem with cedaw is that it fails to adequately address gender equali-ty because its scope remains limited to women. As David Rosenblum writesin a forthcoming paper

cedaw’s focus on women enshrines an understanding of sex as a binaryof men/women with a perpetrator/victim relationship. Instead of focus-ing on “women” as part of a binary, cedaw should seek the eliminationof the categories themselves. cedaw’s very title is its mistaken diagnosis.Its focus on the category “women” reifies rather than undermines gen-der disparities.

While we recognize these concerns and acknowledge that cedaw is notthe perfect answer to achieving gender equity in the U.S. or anywhere else inthe world, we believe that the ratification of cedaw allows nations to takean important step on the path towards creating greater equality of bothopportunity and outcome for women and men.

What we have chosen to address in this article are arguments against theratification of cedaw from the right, which are grounded more in fear thanin reality. As feminists of different generations from different cultures, wesupport cedaw’s goal to eliminate prejudice and discrimination againstboth women and men. Ratifying cedaw helps all human beings, regardlessof their sex (or other distinguishing physical characteristics), achieve theirinalienable rights to life, liberty, bodily integrity, and dignity. The primaryarguments that cedaw opponents from the right have leveraged to blockthe U.S. ratification of the treaty are based on misleading arguments aboutthe treaty’s object and purpose, and we discuss each in turn.

Celebrating a diversity of gender roles

F irst, the conservative fear that cedaw would eliminate gen-der roles in this country incorrectly conflates the concepts of sexand gender. Gender, as feminists have worked hard to explain over

the years, refers to the socially constructed belief systems and internalizedunderstanding of roles that reside inside people’s brains. Those attitudes andresultant behaviors are developed within the prevailing norms of culture,tradition, religion, and power relations. Women and men make choices notin circumstances of their own choosing, but rather within broader historic,socioeconomic, and political contexts. In fact, one of the less-discussed butdeeply important reasons to adopt cedaw is that it offers a profoundly lib-erating framework for men, many of whom already are remarkable care-


Ratifying Women’s Rights

32 Policy Review

givers and parents, in addition to being successful businessmen, lawyers, andphysicians. For men, cedaw affirms the right to share the joys and plea-sures, as well as the responsibilities of raising children, within a variety offamily settings, not merely those based on the heterosexual norm.

Thus, while conservative critics claim that by ratifying cedaw the UnitedStates would be demeaning the concept of a woman’s femininity, in fact, thetreaty says nothing whatsoever about femininity or its conventions. Notionsof femininity and masculinity, like cultures, are inherently fluid and con-stantly reshaping themselves in societies across the globe, but cedaw doesnot seek to define those terms. cedaw does nothing to obliterate genderroles; it simply refuses to condone discrimination and violence againstwomen in the name of religion, tradition, and culture. In fact, cedaw doesthe opposite, acknowledging the importance of women’s obligations withinthe family, while simultaneously establishing new norms for the participa-tion of both women and men in all dimensions of public and private life.

cedaw as inspiration

S econd, conservatives have suggested that cedaw wouldhave a dramatic impact on American laws and practices. They faultfeminist 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 impor-tant legal stepping stone to buttress existing efforts to access basic rights forwomen such as the right to receive equal pay in the workplace, to be freefrom domestic violence, or to obtain access to family planning. As an inter-national treaty, cedaw in and of itself would not enact these changes orsupersede domestic law. Instead, as in Roper v. Simmons, in which theSupreme Court relied on the U.N. Convention on the Rights of the Childand the International Covenant on Civil and Political Rights in support of itsown conclusion to overturn the juvenile death penalty, ratifying cedawwould provide additional support for gender equality claims both in courtsand legislatures throughout the country.

As expressed in the first report by un Women, the new un entity for gen-der equality and the empowerment of women, “where it is successful, strate-gic litigation can have groundbreaking results. By identifying gaps or chang-ing laws that violate constitutional or human rights principles, such casescan motivate government to provide for citizens, guarantee the equal rightsof minorities or stop discrimination.” But strategic litigation is toothlesswhen it is not supported by a legal framework to challenge injustices.Ratifying cedaw in the U.S. would present an important legal mechanismto ensure that the rights of the U.S. Constitution are delivered equally tomen and women alike.


Enabling a more evenhanded U.S.foreign policy

Third, while conservatives broadly agree that the U.S.should stand with the oppressed women of the world, they arguethat rather than relying on a treaty such as cedaw, Americans

should use the instruments of foreign aid and private philanthropy toexpress such solidarity. But it is precisely this type of reliance on aid money,reinforced by military intervention, as the only means by which this countryis willing to “support” women around the world, that reinforces an imageof the U.S. as a neocolonial power. Iraq and Afghanistan are both U.S.-ledwars where justification for the invasions and for the continued presence ofU.S. troops was and still is made, in part, on the basis of securing women’srights.

How we seek to advance women’s rights globally is as important as ourstated commitment to those rights. Global Fund for Women and Spark advi-sors like Sakena Yacoobi, founder of the Afghan Institute for Learning, andSima Samar, who served as vice chair and minister of women’s affairs inAfghanistan and is the current chair of the Human Rights Commission, havelong argued that U.S. support for cedaw would significantly strengthen itspower as a tool for women worldwide to help themselves. After the 2001overthrow of the Taliban, Samar wrote a letter to Senator Barbara Boxerdescribing how U.S. ratification would help women in Afghanistan securehuman rights as they rebuild their country. In her words,

if the U.S. ratifies cedaw, the treaty will then truly be the internationalmeasure of rights that any country should guarantee to its women. Wewill be able to refer to its terms and guidelines in public debates overwhat laws should say. Your advisors to many of our leaders here will beable to cite its provisions in their recommendations. And perhaps wewomen will achieve full human rights.

Ratifying cedaw would be an important step in standing with women lead-ers like Yacoobi and Samar, showing that as the most powerful nation in theworld, the U.S. is willing to lead by example and critically examine potentialshortcomings in its own laws as opposed to simply preaching to others.

Ratifying cedaw would also be a pragmatic step toward supportingthese U.S. foreign policy objectives. In the aftermath of the U.S. invasion ofIraq, when women leaders feared that women’s rights would take a backseat in the development of a new constitution, the Women’s Alliance for aDemocratic Iraq was able to promote Iraq’s legal obligation under cedaw(which it had ratified in 1986) to include women in the constitutional draft-ing process, eventually successfully arguing for a 25 percent quota for



34 Policy Review

women in Parliament, where women now hold 70 out of 275 seats in theNational Assembly. Iraqi women were able to count on the Global JusticeCenter, a U.S.-based ngo, as an ally in this effort to use cedaw to promotegender equality in a post-conflict setting, but they did not have U.S. govern-ment support for their efforts. If the U.S. were to ratify cedaw, it wouldallow the American government to more directly advance gender equality,thereby strengthening and lending more credibility to its foreign policyobjectives around the world.

If the U.S. is committed to encouraging other countries to become moreopen, tolerant and democratic, signing cedaw creates the credibility neces-sary for such efforts to bear fruit. There are countless examples that demon-

strate the potential for cedaw , the only globaltreaty on women’s rights, to enhance the ongoingeffort to advance women’s rights globally. Whetherit is through the Global Fund for Women, Spark, orin our work at Stanford, we have seen firsthand justhow powerful cedaw can be for women who arestruggling for a better future in their communities.We know that activists use cedaw regularly to fightfor very basic rights, such as property, inheritance,and even the right to vote. As Amartya Sen and oth-ers have so eloquently argued, providing womenwith basic rights is a fundamental step in the move-ment to eradicate poverty, and cedaw is being usedas an important pressure point in providing womenthat agency.

Women in countries like Mongolia have used cedaw as a tool to survivewhat was probably the world’s most abrupt switch from communism tocapitalism. Mongolia has not only become a place where people are begin-ning to build civil society, but one where the most dynamic of these groupsare run not by men — the traditional rulers of society — but by women.And they have become driving forces of social change. Over the years theGlobal Fund for Women grantee partners included organizations such as theLiberal Women’s Brain Pool, Gender Equality Center, and Women for SocialProgress. They are key players in a web of independent citizens’ groups thatact as democracy’s roots in Mongolia, and they have used Mongolia’s ratifi-cation of cedaw to build something of which they have no real experience:genuine gender equality at all levels of their traditional nomadic culture.They have used cedaw to ensure active participation in the political processby women and consistently pressured their government to strengthen itscommitment to women’s equality by researching arenas of continued dis-crimination or injustice and highlighting these challenges in what are termed“Shadow reports,” which are presented to balance the reports of govern-ments to the un cedaw committees. Most impressively, numerous otherindependent women-led ngos in Mongolia have come together to form a


There are countless examples thatdemonstrate thepotential forCEDAW toadvance women’s rightsglobally.

coalition known as the cedaw Watch Network, which coordinates andmonitors over implementation of cedaw Convention.

Similarly, last year, in a precedent-setting case that was widely hailed bywomen’s groups around the globe, another Global Fund for Women granteepartner, the Women’s Legal Bureau of the Philippines, in collaboration withseveral other women’s groups in the Philippines and across the Asia-Pacificregion, used the Optional Protocol of cedaw to appeal a rape case in whichthe survivor had been denied justice. Karen Vertido argued that her rights asa survivor of sexual violence were violated because the court arrived at itsdecision based on gender-based myths and stereotypes. She asserted, “Iclaim every inalienable right and every right this country promised to me asits citizen, from protection of my body, my livelihood, to protection of myhonor. I claim restitution for having been violated first by one depravedman, and then later by a society that says it is okay to rape women.”

The Philippine government must now implement the recommendationsmade by cedaw, including ensuring immediate measures in rape cases andimpartial and fair legal procedures. The un cedaw committee also urgedthe government to review its definition of rape and to train its judges,lawyers, law enforcement officers, and medical personnel in a gender-sensi-tive manner to understand crimes of rape and other sexual offenses.

In Morocco, women’s groups successfully lobbied the government of KingMohamed VI to make significant revisions to the Moudawana, or FamilyCode, which was introduced following independence in 1957 and madewives legally subordinate to their husbands. In 2004, using Article 16 ofcedaw as a guide, the code gave women greater equality and protection fortheir human rights within marriage and divorce. Husbands and wives nowhave joint responsibility for their families, the legal age of marriage has beenraised from fifteen to eighteen, and important changes to marriage, divorce,and polygamy laws have been implemented. In December 2008 , KingMohammed VI publicly banned discrimination against women and officiallylifted all Morocco’s reservations on cedaw. Numerous other examples ofhow cedaw has been used to advance an agenda of equality are cited in a2010 report by the International Center for Research on Women. In sum, ifthe U.S. were to ratify cedaw, it could work side-by-side with other coun-tries to promote these types of important shifts toward open and democraticsocieties, leveraging its aid money and private philanthropy to help makemore meaningful and lasting social change.

Ensuring that equality begins at home

C onservative opponents of cedaw talk out of both sides oftheir mouth, invoking American exceptionalist arguments to claimthat the U.S. should not have to respond to the periodic reviews

that cedaw requires, arguing in essence that it is fine for “lesser” nations to



be held accountable by a group of 23 elected representatives, but not theUnited States. Citing Article 5(a) regarding the modification of the socialand cultural patterns of conduct, conservatives are willing to promote cul-tural change when it involves some of the more sensationalist practices ofother cultures (child marriage, dowry burnings, genital cutting, etc.), whilefailing to recognize entrenched practices in our own country that inhibit gen-der equality. For example, opponents of cedaw are quick to point out theoppression of women in the Global South, while failing to acknowledge theways in which women experience inequality in the U.S., claiming insteadthat our society has already achieved gender equality. And yet, U.S. statisticsshow:

• One out of every six American women has been the victim of anattempted or completed rape in her lifetime.

• One in three women has been beaten, coerced into sex, or otherwiseabused during her lifetime.

• On average, more than three women a day are murdered by theirhusbands or boyfriends in the United States.

• Every nine seconds, a woman is beaten in the United States.

• Women represent only 3.1 percent of ceos, 14.9 percent of boardof directors members, and 12.5 percent of executive officers, whilewomen make up 40.9 percent of the industrial labor force.

• Women earned just 77 percent as much as men in 2009, based onthe median annual earning for full-time, year-round workers.

Clearly, the United States still has a long way to go toward achieving astate where women live can live free of discrimination or violence.

Culturally, conservatives might claim that gender equality should not bea goal at all, that men and women are different and should be free toaccept different roles within society. Indeed, conservatives argue thatAmerican women inherently prefer to play traditional roles as caregivers,claiming that while women want the same rights and opportunities asmen, few make the same choices as men. However, this fails to take intoaccount the deeply entrenched social norms that still define women’s rolesor the practical limitations in the work environment within which such“choices” are made. For starters, we live in an unequal world where whitewomen still only make 77 cents on every dollar earned for the same job bya 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 byGeorgetown University’s Center on Education and the Workforce andbased on data from the U.S. Census Bureau, provides evidence of signifi-cant earnings gaps for women and minorities. The report refers to gender


36 Policy Review

and race as “wild cards that matter more than education or occupation indetermining earnings.”

Women earn less money than men over a lifetime at every level of educa-tion. At the median, a man with some college but no degree earns nearly asmuch as a woman with a bachelor’s degree, and a woman must hold a Ph.D.or professional degree to surpass what a man makes with a bachelor’s. Asthese statistics show, women who are not making the same choices as menmay be doing so because those choices are not actually available to them. If,consistent with the terms of cedaw, men and women in the U.S. receivedequal wages for equal work, it is highly conceivable that both women andmen might choose options that gave them greater time and flexibility withtheir families. In the same vein, cedaw criticsignore the fact that most women in the U.S. live in aworld where paternity leave is practically nonexis-tent. This forces most women who start families tostep out of the workplace in order to be full-timeparents and penalizes men who might have wantedto make that choice — resulting in the inequalitiesthat we see across corporate America and a furtherlimitation of choices for both women and men.

The disparities between “choices” available tomen and women are noticeable from very early onin their careers, as we see quite evidently from ourwork with students at Stanford. In law school, for example, Catalyst hasreleased statistics showing that while women law students make up 44 per-cent of J.D. candidates, and women make up nearly one of every two lawfirm associates, women make up only one out of six equity partners and 99percent of law firms reported that their highest paid lawyer was a man.While one in eight women lawyers work part-time, only one in 50 menlawyers do, and nearly half as many men lawyers as women lawyers (44percent versus 84 percent) have a spouse that is employed full-time. Lawstudents faced with these daunting statistics illustrating the prospect of lowerchances of making partner, potential discrimination based on being dispro-portionately part-time, and lower wages than their male counterparts areundoubtedly influenced in the choices that they make starting in law school.

Similarly, male law students are under pressure to earn a high salary,potentially discouraging public interest careers, which pay significantly lessand are traditionally chosen by women at a much higher rate. A Harvardstudy on gender experiences in law school showed that women are morelikely to choose a career that is “helping others” (41 percent versus 26 per-cent) and “advancing ideological goals” (24 percent versus 15 percent), andless likely to choose “high salary” (32 percent versus 44 percent) as a priori-ty. The study also showed that men’s choices seem to change during lawschool, where second- and third-year male law students were significantlyless likely to choose “helping others” as a career than first-year law students.



Women still make a mere 77 cents on every dollarearned by a

man who does the same job.

38 Policy Review

The highly gendered nature of career choices for men and women lawstudents is a microcosm of many other industries in the U.S. where paternityleave is mostly unavailable (and/or culturally seen as unacceptable) andequal pay is impossible for women to obtain. While legal frameworks likecedaw are not a silver bullet to achieve change in entrenched norms, theycan help to create a broader global framework for gender equality, withinwhich we may be more effective at transforming these trends.cedaw does not deny that in most parts of the world today men and

women play different roles in society. It reminds us, however, that the“choice” to play such roles may actually be determined in long-held cultural,religious, and other belief systems, which are gradually being challenged byindividuals, civil society resistance, and the law. Far from feeling excluded bythe process, women from every continent participated in drafting this treatyin the belief that it would buttress their own acts of resistance and transfor-mation, while affording them more opportunity to use the law to offer themgreater voice in the key decisions that affect their lives.

Nothing in cedaw requires any woman to give up her chosen role asmother, spouse, or caregiver, but it does ensure that girls are not forced toaspire to those roles simply by virtue of being born female. It also upholdsthe rights of boys and men to aspire to be caregivers, loving parents, andspouses, as well as protecting the rights of those individuals who choose notto marry, not to bear children, or assume caretaker roles. Those seem likevalues grounded in the principles of freedom, liberty, and choice that conser-vatives should readily embrace. By encouraging the U.S. government to rati-fy cedaw, conservatives can help advance the freedom of women andhuman rights for all — we hope they make the choice to join with us andthe rest of the world to do so.


The possibility of Iran acquiring nuclear weapons leadssome experts to suggest that such a development may becontainable. They argue that a stable balance of deterrencecan be achieved with Iran, akin to the nuclear equilibriumbetween the U.S. and the Soviet Union during the Cold

War. I will argue that this is an erroneous proposition, as the levels of insta-bility and risk involved in nuclear armament in the Middle East are incalcu-lably higher. My view is based, among other considerations, on the workingassumption that a nuclear Iran will lead to the development of a nuclearcapability by other regional players, such as Saudi Arabia, Egypt, andTurkey.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 conceivedand formulated, and for the concepts developed by Robert McNamara, the

Can Iran be Deterred?By Ron Tira

Lieutenant Colonel Ron Tira (Res.), a former fighter pilot in the Israeli AirForce, is the author of the book The Nature of War: Conflicting Paradigms andIsraeli Military Effectiveness. Tira has over 25 years of experience in intelligenceand military affairs and is currently a businessman and a reservist at the IsraeliAir Force’s Campaign Planning Department.


40 Policy Review

Rand Corporation, and others.1 These models have a unique status in therealm of strategy because, in the nuclear field, there is hardly any empiricalexperience capable of providing a better source of knowledge than suchmodels.2

The analysis of nuclear strategy on which I will focus refers to the “coreera” of the Cold War, from the mid-1960s to the mid-1980s. The formativeidea of this core era was mutual nuclear deterrence based on second-strikeretaliation capability. Both sides benefited from enormous nuclear redundan-cy, so that even if one side was to initiate a nuclear attack, the other sidewould still possess sufficient residual nuclear capability to completely destroythe initiating side with a retaliatory strike. Accordingly, the nuclear destruc-tion of both sides was assured (Mutually Assured Destruction, or mad), andnuclear 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 themassive retaliation strategy of the 1950s, eventually abandoned as impracti-cal, and the Cuban Missile Crisis, which led to the development of agreedrules 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 weresome notions deviating from mad , such as the use of tactical nuclearweapons, nuclear strikes against military assets only (“counterforce”), grad-ual nuclear escalation, or nuclear demonstration attack, but these did notbecome the central principle of nuclear strategy.

A poor man’s mad?

The mad concept depends on the survivability of nuclear capa-bility, which enables a second-strike retaliation even after sustain-ing the initiator’s nuclear strike. Such survivability is achieved in

two ways. The first is numerical superfluity. Indeed, during the core era thesuperpowers maintained thousands of nuclear warheads. The second way ishighly survivable launch platforms, such as deep-water nuclear submarinesable to loiter under the polar icecap, a fleet of bombers continuously air-borne around the globe, and silo-based or mobile ground-launched ballisticmissiles. These means ensured two basic conditions: Intelligence would notbe able to locate all platforms at any given moment, and even if a platformwas located it could prove difficult to destroy.

Ron Tira

1. For a general background on game theory and nuclear strategy see, e.g., Thomas S. Schelling, TheStrategy of Conflict (Harvard University Press, 1980); Lawrence Freedman, Deterrence (Polity Press,2005); Herman Kahn, Thinking About the Unthinkable (Horizon Press, 1962).

2. Henry Kissinger, Diplomacy (Simon & Schuster, 1994).

The U.S. and the Soviet Union learned that there were additional condi-tions to be met in order to support a second strike, first among them that thetwo sides must be geographically removed from each other. The Cuban crisiswas partially due to the fact that positioning of missiles in such proximity tothe U.S. could shorten early warning time and limit U.S. retaliation (at leastin respect of command and control and retaliation from the continentalU.S.). The second condition was identification of attack. In the case ofsuperpowers, only massive launching of thousands of weapons could poten-tially destroy nuclear capability. Such massive launching would have anoticeable signature and hence give rise to timely warning by sophisticatedand costly space-based and other sensors.But what happens when the sides are regional

players lacking the aforesaid size and resources? Ismad a possibility for states of meager nuclearresources?Consider a hypothetical situation in which two

regional players have crossed the nuclear thresholdand each of them possesses a single nuclear bomb.This bomb is not being carried by an expensivenuclear submarine lurking under the arctic icecap,but kept in a bunker in the middle of the country.Thus, obtaining intelligence regarding the locationof the opponent’s single bomb becomes an achiev-able task, and its destruction in a first strike (there-by disabling the opponent’s second strike) becomesfeasible. Each side must then consider the possibility that the enemy has identified

the location of its bomb and might strike first, so that it must “beat theenemy to the draw.”3 This game is known as “use it or lose it.” In this gamethere is an incentive to strike first and a path of escalation emerges.4

Ironically, the game tends to stabilize when each side has 50 nuclear sub-marines and a first strike is not a realistic option, but it is unstable wheneach side has a bunker with just a few bombs and first strike is feasible.5

In the Middle Eastern circumstances the geographic spacing needed tosustain retaliation may not always exist, e.g., between Iran and Saudi Arabia(at least from the aspect of the attacker’s proximity to the attacked state’scommand and control centers and launching a retaliatory strike from theterritory of the attacked country). First Strike need not necessarily be carriedout from the territory of the attacking country but can be carried out from afailed state bordering the country to be attacked, e.g., an Iranian attack on


Can Iran be Deterred?

3. Scott Douglas Sagan, Moving Targets: Nuclear Strategy and National Security (Princeton Press,1989), 32.

4. Austin Long, Deterrence — From Cold War to Long War (Rand, 2008), 26.

5. Robert Ayson, Thomas Schelling and the Nuclear Age (Routledge, 2004), 67–68.

In the case ofsuperpowers,only massivelaunching ofthousands of

weapons couldpotentially

destroy nuclearcapability.

42 Policy Review

Saudi Arabia launched from post-withdrawal Iraq, from the Sudan againstEgypt, 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 attackinga very small number of targets. Therefore, in contrast to a superpower thatcan only be attacked by launching thousands of missiles and bombers “in anindustrial fashion,” in the case of a country of limited nuclear capability, afirst strike might also be possible by unorthodox means, which will notenable early identification of the attack and thus reduce the ability to retali-ate. Thus, hypothetically, even a state actor could launch a first strike from acivilian 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 containerbomb.

The multilateral challenge

The so-called “chicken game” is a model based on the idea oftwo drivers driving their cars on a collision course, with the first toswerve aside losing, and the one who continues after his opponent

has given way winning. Hence the game encourages collaboration, enablingboth of them to turn aside at the same time (as in the Cuban Missile Crisis).But what about a situation where five drivers are speeding from differentdirections and converging on the same intersection? And what if we do notknow whether some of them are acting in concert? In this situation it ismore difficult to analyze each driver’s strategy and reach equilibrium.Now let us combine meager nuclear resources with multilateralism: Take

five players, where each player possesses four nuclear bombs kept in abunker in the middle of his modestly-sized country. To reach equilibrium,each player must conclude that none of the other four players assesses (right-ly or wrongly) that he is capable of, or interested in, launching a first strikeon some or all of the other players. This means that each of the five playersmust make a subjective assessment of the quality of intelligence, of the capa-bilities, and of the strategies of the other four (based on incomplete informa-tion), and accordingly determine his own strategy. This gives rise to at least25 different strategy assessments, each single one of which must lead to theconclusion that nuclear weapons should not be used.This situation is termed a “Bayesian game.” Game theory teaches that it

is difficult to achieve equilibrium in a Bayesian game based on subjectiveassessments of other players’ strategies, particularly when the game isdynamic and multilateral.From the moment a player decides to launch a strike against another

player, there is a concern that additional players will become involved in thenuclear exchange — even if they intended not to enter the fray. Let meexplain: Suppose Iran assesses (rightly or wrongly) that it has identified the

Ron Tira

location of Saudi Arabia’s handful of nuclear weapons or its command andcontrol centers, and that it can attack from geographic proximity or byunorthodox means, so that the Saudis cannot retaliate; i.e., Iran considersthat it is able to launch a first strike. If the stricken and dazed Saudisnonetheless still retain some residual nuclear capability, it is difficult to con-clude how they will use it. It cannot be ruled out that in this situation SaudiArabia would react against all other participating players, either due to agenuine difficulty in detecting who attacked it in the first place (e.g., due tothe use of unorthodox means of attack or the lack of sophisticated space-based sensors able to track the attacker), or due to more complex strategieswhereby a player already hit by a nuclear weapon will seek to equally weak-en the other players in the game. Moreover, if wetake a nuclear player who is supposedly neutraltowards an Iranian attack on Saudi Arabia, such as,say, Turkey, then this player’s decision-making willnot be easy to anticipate. What will Turkey’s situa-tion awareness be? Who attacked the Saudis andunder what strategy? Will Turkish intelligenceassume that this is an isolated act or part of a broad-er regional offensive? How will the Turks evaluatethe intelligence, capabilities, and intentions of theother players? The assessment and decisions will betaken under pressure, without sufficient informationand possibly within minutes, leaving much room formiscalculation.The multilateral game becomes more complex as we also take account of

non-nuclear players. The U.S. could try to stop the proliferation of nuclearweapons by offering a nuclear umbrella to countries that do not go nuclear,it is possible that regional players who do go nuclear, such as Egypt andSaudi Arabia, would offer such cover to players such as Kuwait, Bahrain,and Yemen. A nuclear umbrella is an arrangement of questionable reliability,however, and the experience gained during the Cold War with such coun-tries as West Germany teaches that objective assurances are needed to con-firm that the provider of the nuclear umbrella and the country shelteringunder it are indeed in the same boat, i.e., that the nuclear-umbrella providerwill keep its word. The assurance perceived as most reliable was the deploy-ment of nuclear weapons in the territory of the country sheltering under theumbrella, e.g., of U.S. nuclear weapons in Germany. A Soviet threat to WestGermany thus became a threat to a U.S. nuclear stockpile, providing objec-tive support to the reliability of the American nuclear commitment toGermany.Thus, the non-nuclear players might cause dangerous consequences: From

a military aspect, for instance, the pre-deployment of nuclear weapons ontheir soil. And politically, they could create a system of defense alliancesresembling those of pre-World War I Europe, which may give rise to a



In the case of a country of

limited nuclearcapability, a firststrike might alsobe possible byunorthodox

means.

44 Policy Review

nuclear exchange escalating uncontrollably out of a local incident of lesserglobal 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 levelof escalation — a sort of doomsday weapon. Therefore, and for fear ofIsraeli retaliation, Syria has refrained from using chemical weapons even ingrave situations, but should Syria shelter under an Iranian nuclear umbrella,it might conclude (rightly or wrongly) that there are higher levels of escala-tion than that of chemical weapons, and these higher levels will restrainIsrael’s reaction should Syria make some use of chemical weapons. Thiscould increase the likelihood of the use of chemical or radiological weapons.This calculation also holds true for nuclear countries, which might concludethat they have more levels of freedom for the use of chemical and radiologi-cal weapons, due to the existence of higher escalation levels which curb theopponent’s reaction.

The French experience

F rance was not at ease with the nuclear umbrella the U.S.offered to Europe, as it could not believe that the U.S. would makegood its promise and voluntarily move itself closer to the brink of a

nuclear holocaust. According to France, it would not make sense for a coun-try to deliberately engage in nuclear war just because of its promise toanother country.France therefore wanted to deter the Soviet Union on its own, but owing

to the lack of symmetry between the two countries, France could notachieve a mad parity. The alternative approach it developed was that of“Sufficient Destruction.”6 The idea was that since the Soviet interest inFrance was limited, it would be sufficient for France to be able to inflictdamage offsetting the potential interest of the ussr in France. The assump-tion was that the ability to strike at several major cities in the ussr woulddeter it from threatening the very existence of France or its supreme inter-ests (“deterrence of the strong by the weak”). Could Iran develop such acapability against the U.S.? Would the ability to hit a handful of cities guar-antee that the U.S. would not take action against Iran in a manner similarto what it did in Kosovo and in Iraq? Would Iran possess sufficient nuclearcapability to make American clinical analysis indicate it would not beworthwhile for the U.S. to risk direct military intervention in conflicts ofwhich Iran was part? It should be emphasized that in order to deter the U.S., Iran does not need

advanced intercontinental ballistic capability. A threat to a small number ofU.S. targets can be provided by weapons launched from commercial vessels

Ron Tira

6. See e.g., Alain Peyrefitte, C’etait de Gaulle (Fayard, 1994). .

or carried in a suitcase or in a container. One should also remember thegrowing presence of Hezbollah in South America and Mexico.

The black swan vs. Nash

A nash equilibrium is a solution concept in which each playeris familiar with the strategy of the other players, and his conclu-sion is that, in view of the strategies of the others, he should

stick to his present strategy. All players reach this conclusion and stick totheir present strategies, thus creating continual stability. Nash equilibriumwas actually the strategic conceptual basis of the nuclear Cold War.Indeed, while the Soviets made little use of the term mad, they shared a

common paradigm with the Americans as to the meaning of nuclearweapons.7 In fact, the Cold War equilibrium was based on a paradigm part-nership between the antagonists: Both had to believe in a kind of mad formad to exist. Both parties saw nuclear weapons as the doomsday weapon,which should not be used in any other, non-doomsday circumstances, andthus were of very limited usefulness.Not only did both superpowers hold that there was nothing to be gained

from a nuclear war, but after the Cuban Missile Crisis neither of themattempted to seriously develop a strategy for indirectly leveraging nuclearweapons (without actual utilization) as a tool to gain the upper hand in aconventional crisis. After Cuba, the nuclear superpowers mostly refrainedfrom directly challenging each other, and the violent friction of the Cold Warwas routed to the Third World. The two opponents also recognized thatstrategic transparency was essential between them and, hence, that theymust have direct communication with one another. The Moscow-Washington hotline was accordingly set up. Indeed, in the period from Cubato the development of sdi one can count very few incidents which threat-ened the Nash equilibrium. When they occurred, they resulted from oneplayer misunderstanding the strategy of the other, or escalation due to newdevelopments (these incidents included the Able Archer 83 exercise, whichthe Soviets suspected to be American preparations for a nuclear attack, aswell as the Yom Kippur War).But, there always remains the black swan possibility. A black swan —

when a dynamic and adaptable foe develops a conflict concept not foreseenby the opponent — is essentially the opposite of Nash equilibrium, as itinvolves undermining the opponent’s paradigm instead of paradigm-sharingbetween the two opponents.Iran has excelled in producing black swans. Thus, for example, the

Western security concept speaks on the one hand of contending with oppos-



7. See e.g., Lawrence Freedman, The Evolution of Nuclear Strategy (Palgrave Macmillan, 2003), 154,156, 159–160, 163–165.

ing state actors armed with stockpiles of top hardware, and on the otherhand of nonstate opponents able to operate small groups armed with lightweapons. Hezbollah is a black swan: a nonstate organization without state-like vulnerabilities, but armed with prime ballistic hardware in quantitiesexceeding the corresponding stockpiles of most nato members. Iran chal-lenged our war paradigm by introducing a proxy that enjoys the advantagesof not being a state (such as the possibility of disappearance) but is capableof strategic fire with an intensity that most industrialized nations cannotmatch.Indeed, Iran does not tend to be a paradigm-sharing partner of its oppo-

nents, but exercises strategies that counteract opponents’ paradigms. This isdone by series of crises and brinkmanship, defiantbehavior that passes the escalation buck to theopponent (the “rational” and “responsible” oppo-nent sometimes acquiesces to the defiant act to pre-vent escalation), deliberate creation of vague “in-between” situations, operation outside the spectrumof the opponent’s plans and concepts, deliberateambiguity concerning Iranian positions, frequentchanges of stance, undermining the opponent’sdetermination and strategic credibility, use of prox-ies, etc. Iran specializes in creating lines of operationnot necessarily identifiable by its opponents. Anexample is Iran’s near victory in its eight-year strug-gle with the U.S. on the hegemony of Iraq, essential-

ly a war of an indirect and multi-dimensional nature which made many offi-cials in the U.S. fail to admit that it was taking place. According to theAmerican paradigm, war is an exercise in weaponry, defined in time andspace, relying on organization, resources, and logistics. For the Iranians thewar on Iraq is an open-ended marathon undertaken in order to wear downthe political and public will of the U.S., and to break apart, intimidate, andbring closer the Iraqi system by a gamut of unconventional and indirectmeans.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 observingthe way Iran manages its affairs, it is not certain that it is a natural candidatefor paradigm-sharing in a Cold War style. One must at least take intoaccount the possibility that Iran will become a serial producer of nuclearblack swans.Iran resembles a sumo wrestler, constantly shoving his adversary, exerting

pressure at various points, always looking for an opportunity to take anoth-er small step forward, to give another push and to throw the adversary off-balance, even momentarily. The incessant friction with the adversary, as anend in itself, gives Iran an advantage, in that it can identify and take advan-tage of occasional opportunities that emerge to wear down the adversary —

Ron Tira

A black swanoccurs when adynamic andadaptable foedevelops a conflict conceptnot foreseen bythe opponent.

46 Policy Review

wear down its strength and erode its will. In this, Iran is thinking out of thebox and making use of all national means of power. For a Politburo bureau-crat, Cuba may have been a disappointment, but an Iranian could havefound a cumulative strategic-political advantage in a series of Cuba-likecrises — irrespective of the particular outcome of each individual crisis. Inview of this Iranian behavior pattern, it is possible that Iran will find originalways of utilizing nuclear weapons as a strategic tool for promoting its inter-ests, even if it would not be the first to launch a nuclear attack.Iran is not a natural candidate for viewing nuclear weapons as a tool of

all-or-nothing application. Its natural inclination is to create gray areas andto practice brinkmanship, to be defiant here and give way there. The Iraniansare very creative and they will certainly find original ways to leverage nuclearweapons. For example, Iran could utilize nuclear weapons by making decla-rations or preparations to strike at critical times. It could unhinge its oppo-nents through a series of crises involving nuclear brinkmanship. It couldinfluence crises by conducting a nuclear test on its own territory during a cri-sis, or setting off a nuclear device outside the atmosphere over a crisis space.If its forces become involved in conventional warfare, Iran might deploynuclear weapons to the battlefield and thus raise the stakes for a foreignpower that was contemplating intervention, for fear that the foreign poweritself might inadvertently hit a nuclear device. Indeed, one should considerwhether the U.S. could have repeated an operation similar to the one it car-ried out to liberate Kuwait if a nuclear bomb had been kept in Kuwait’surban area. Nuclear weapons could thus serve as a passive shield for conven-tional action, while, if Iran turns nuclear, it might become more daring anddirect in less-than-nuclear engagements. A nuclear umbrella might createconditions permitting some use of chemical and radiological weapons, andeven permitting the far-reaching yet still-restrained step of launching anuclear weapon against an uninhabited area of an opponent country.Nuclear brinkmanship might have two opposite results: one, that a crisis

might escalate out of control and deteriorate into a nuclear exchange. Theother, its reverse, that the higher risks involved in a crisis would make Israeland the U.S., as “reasonable and responsible” countries, back off from chal-lenges. The prevailing view at the relevant time might be that the specificinterest at the center of a particular crisis is not worth the risk of a nuclearshowdown.Iran, again, has a long procession of satellite states and nonstate actors

under varying degrees of control; they are sufficiently distant for Iran not tobe held accountable for their actions, but close enough to be of service toIranian interests. Transfer of nuclear weapons to a foreign entity is quite abold measure, but Iran knows how to conceal its own command of a proxy.In a nuclear game, the transfer of chemical or radiological weapons to aproxy could be subjected to lesser restraints. Indeed, it is possible that Iran(rightly or wrongly) would assess that the use of a nonstate proxy might leadto an unconventional event for which there is no “return address.”



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The nuclear black swan

N ot only were the U.S. and the Soviet Union nuclear antago-nists, they were nuclear partners. They were paradigmatic part-ners, thinking “inside the box,” usually within similar, well-

defined boxes. Both saw mainly two sides to the game. Both acknowledgeda dichotomy: It was all or nothing, either nuclear peace or full-scale nuclearwar. Therefore, they both agreed that nuclear weapons were in effect unus-able. And after the Cuban crisis, they both realized the importance of trans-parency and mutual understanding.India turned nuclear as a mature democracy. When Pakistan went nuclear,

it was given (willingly or not) a tough, occasionally arm-twisting Americantutoring. North Korea went nuclear under harsh Chinese restraint, and withmodest regional aspirations. But if Iran goes nuclear it will do it alone, andin its own way.If Iran goes nuclear, and especially if other regional players follow suit

and also become nuclear, a new kind of game will ensue, the like of whichwe have not yet seen. There is no sense in comparing the two superpowersduring the Cold War with a multilateral system combining several regionalplayers possessing rudimentary nuclear capability. There is also no sense incomparing the American-Soviet paradigmatic partnership with an Iranianblack swan.All this on top of the other tensions characteristic of the Middle East,

such as unstable regimes and the danger of nuclear weapons falling into thehands of revolutionary groups, state actors characterized by internal ten-sions resulting in incoherent behavior, and issues of civilian control of themilitary. Just imagine Qaddafi’s Libya but with a few nuclear bombs. Another critical aspect stems from the fact that in the Middle East an

existential threat may not be to a country, but rather to a regime. Much likethe Pakistani nuclear strategy, a threat to the regime of a nuclear country orlarge-scale subversion might be declared a nuclear casus belli.8 With nuclearumbrella agreements and questions of regime stability might come a sce-nario in which Iranian subversion directed at the regime of a non-nuclearcountry would give rise to complex problems for its nuclear protector. This,when the threatened regime has an interest in aggravating the crisis to blackor white alternatives, since a situation of gray might cause the umbrella toevaporate.Therefore, if Iran becomes nuclear, the combination of increased instabili-

ty and lack of certainty could produce one of the most dangerous chaptersin human history.

Ron Tira

8. The Evolution of Nuclear Strategy, 300. .

J ames Ryan, a prominent and learned law professor at theUniversity of Virginia (and a former colleague of mine there),has produced a scholarly, well-written, and exhaustivelyresearched book on education policy, Five Miles Away, A WorldApart (Oxford). The narrative is polished, lucid, informative,

and revealing. The style comes across as impartial and evenhanded. Ryan’svision for school reform has immediate appeal. The entire impression is oneof sweet reason. Yet this book is fatally flawed. The problem, quite simply, isthat Ryan ignores reality. A clearer example of “educational romanticism”— to use Charles Murray’s evocative phrase — would be hard to imagine.Ryan asserts that “the continued separation of urban and suburban stu-

dents has been the most dominant and important theme in education lawand 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 inte-

Income Integration at SchoolBy Amy L. Wax

Amy L. Wax, the Robert Mundheim Professor of Law at the University ofPennsylvania Law School, teaches remedies and social welfare law. She is theauthor of Race, Wrongs, and Remedies: Group Justice in the 21st Century(Rowman and Littlefield, 2009).


50 Policy Review

gration: to educate “rich and poor students alike, equally and together in thesame schools.” Because racial minorities — and especially blacks — are dis-proportionately low-income, income integration will increase racial diversityas well. For Ryan, this is devoutly to be wished. Ryan’s “tale of two schools” provides a vivid trope for his central theme

and an occasion to review the long, fascinating history of school reformefforts on many fronts. Freeman High, in suburban Henrico County nearRichmond, Virginia, is predominantly white and largely middle class. Testscores exceed the state average, and the school has a full complement ofhonors and AP classes. It is orderly and serene, with few disciplinary prob-lems. Most students graduate on time and go to college. Thomas Jefferson

High School, or “Teejay,” located in the city ofRichmond, is demographically “nearly the mirroropposite” of Freeman, with blacks comprising 82percent of its student body. The atmosphere is tense,with metal detectors at the door and police in thehalls. Students skirmish frequently and fights arenot uncommon. Although most students score “pro-ficient” on the (admittedly undemanding) statewidetests, fewer than half take the sat and only 15 per-cent are enrolled in Advanced Placement courses.Fewer still receive top scores on the exams. Dropoutrates are higher and college attendance rates farlower than at Freeman. Although these schools are five miles apart as the

crow flies, they represent for Ryan two contrastingeducational worlds that have defeated every effort to unite them. Whataccounts for this separation and what maintains it? Here Ryan is at his best,weaving the complex threads of legal, social, and cultural trends into thepicture 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 landmark1954 decision in Brown v. Board of Education met staunch resistance andaccelerated “white flight” to the suburbs and private academies. As the legalbarriers to integration crumbled, residential separation — fueled by self-selection, discrimination, neighborhood school assignment, and local control— impeded racial mixing in schools. Attempts to integrate through busingfoundered on political opposition and collapsed in the wake of the SupremeCourt’s decision in Milliken v. Bradley — perhaps the most important sinceBrown itself — which sharply limited judges’ power to order remedial bus-ing across school district lines. Increasing suburbanization, stoked by risingaffluence, the desire to escape urban disorder, and the sheer mobility ofAmerican life, meant that too few whites remained in urban districts toachieve anything like meaningful integration. A dramatic push then ensuedfor “school quality”: More money, new programs and curricula, betterteachers, upgraded facilities, and school finance reform would solve the

Amy L. Wax

Class mixing has been championed byreformers forsome time as arearguard actionagainst the failure of racialintegration.

problems of minority students. Integration became a sideshow pursuedthrough the carrot rather than the stick: Choice programs, vouchers, charterand magnet schools were proposed and occasionally tried. Some school dis-tricts — Seattle, and Louisville, Kentucky, for example — adopted racial bal-ancing plans. The Supreme Court clipped their wings, too, by ruling in theSeattle and Louisville school cases that, except as a remedy for prior discrim-ination, school districts could not mandate racially diverse schools throughrace-based school assignments. A few districts, such as Wake County, NorthCarolina, adopted plans to integrate schools by income, with mixed success.Such programs remain limited in scope, and some have been shut down. These efforts have made little headway against the polarization of schools

by race and class. And none has closed or even nar-rowed the yawning gaps in achievement that arecurrently observed. It is these divisions that Ryanseeks to address through more aggressive integrationof schools by income. Ryan’s goal does not originatewith him, as class mixing has been championed byreformers for some time as a rearguard actionagainst the failure of racial integration. What dothese advocates hope to achieve? Although Ryanclaims that integrating schools by income will “pre-pare students to be better citizens,” he devotes farmore attention to a more pragmatic goal: improvingeducational outcomes for disadvantaged children by placing them amongmore affluent peers. In schools, as in other communities, most participantstend to “conform to the dominant culture.” And in well-off suburbanschools, Ryan claims, the culture is often one of rigor, order, and achieve-ment. Because “the school environment is contagious,” placement in theseschools will tend to “raise the aspirations and motivation of poor students.”But Ryan doesn’t rest solely on the improvements expected from school cul-ture. Middle-income parents are vocal and politically influential. As a resultof their “clout,” suburban schools have better facilities, teachers, and offer-ings and are managed more effectively. Less privileged students will benefitfrom being placed in these superior institutions.It is critical to Ryan’s plan that all schools should remain predominantly

middle class. The key is a school that embraces high expectations. Beyondthat, Ryan’s proposal rests on four key elements. First, he believes thatschools dominated by middle-income children are more likely to be “quali-ty” schools, whereas those with mostly poor students are destined to be defi-cient; second, he acknowledges the existence of average differences by raceand class in achievement, attitudes, and behavior; third, he advances a pecu-liar theory of “social contagion” by immersion, which assumes that placingdisadvantaged students into a mainstream environment will yield moreuplift and improvement than rival school reforms; and, finally, he is con-vinced that well-off suburbanites have an obligation to diversify their


Income Integration at School

It is critical to Ryan’s plan that

all schools should remain predominantlymiddle class.

52 Policy Review

schools, but also that having poor classmates won’t compromise their chil-dren’s education.Ryan’s most important task is to convince us that the enormous disrup-

tion entailed by widespread income integration, assuming it could be imple-mented at all, will yield enough benefits to justify the scheme. Will this reallyimprove the prospects of disadvantaged children — and more so than possi-ble alternatives? Unfortunately, Ryan fails to persuade on these criticalcounts. He states that “all students benefit from attending majority middle-income 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 ofsocial science studies, which are summarized in about a page and a half in

this 383-page book. Only one of the papers herefers to specifically examines the results of balanc-ing schools by socioeconomic status. The rest reporton small and relatively short-lived initiatives thatplaced minority urban students into mostly whitesuburban schools. This evidence is deficient in quali-ty and quantity and lacking in critical detail. No onewill be persuaded who is not already a true believer.In addition, as with too many reform proposals,there is no serious cost-benefit analysis, no attentionto the magnitude of observed effects, and no system-atic comparisons to alternatives like more rigorousschool curricula, novel teaching methods, longerschool days or school years, upgrades in teacherquality, 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.Ryan’s back-of-the-hand treatment of the downsides of income integra-

tion is even shallower than his analysis of the benefits. What are the costs towell-off suburbanites of attending schools with a significant number ofurban, minority, or disadvantaged students? Ryan asserts confidently thatincome integration doesn’t hurt the achievement of better-off students unlesspoor children predominate. But the evidence is threadbare at best.Astonishingly, he devotes even less attention — precisely one paragraph in a383-page book — to the data on potential costs than to the evidence onbenefits. The research he refers to is either dated (including the JamesColeman study of 1966), of only tangential relevance (in examining theinfluence of neighborhood, not school, composition), or was done abroad(Scotland). All the studies involve very small samples, fail to control forselection, focus mostly on race rather than economic status, and rely on min-imal measures of academic competence rather than on the full spectrum ofachievement. In short, his authorities fall far short of supporting his confi-dent reassurance that changes in a school’s demography should not worrysuburban parents. A careful and lengthy dissection of the social science data

Amy L. Wax

Does the disruptionentailed by widespreadincome integration yieldenough benefitsto justify thescheme?

on the potential negative effects of income integration, rather than a boiler-plate paragraph followed by a string of “see generally” citations, should bethe centerpiece of a proposal for such a radical and intrusive change. ThatRyan does not provide this renders his case fatally weak.Although Ryan does not call wary suburban parents racist, elitist, or just

plain selfish, he dismisses resistance to system-wide integration as irrationaland unfounded. The innuendo of base motives is present at every turn,expressed by the clipped phrase with which he summarizes the theme ofdecades of school reform politics: “Save the Cities, Spare the Suburbs.” Inmaneuvering to “spare” themselves by avoiding the diversification of theirschools, affluent suburbanites are somehow getting away with something.Yet the issue of how demographic jiggering will affect well-functioningschools is absolutely central to the merits and the realpolitik of his proposal,and well-off suburbanites’ fear of compromising their children’s education isclearly a pivotal impediment to his proposal’s adoption. His cavalier treat-ment of this urgent topic is by far the weakest part of this book.

What parents want

The real failure, however, is that Ryan’s focus on academicconsequences is far too narrow, and disingenuously so. Althoughsuburban parents care about learning, they also care about milieu.

They demand order, safety, and decorum, and they know that these aspectsof school climate are critical to learning. But there is more at stake than aca-demic achievement. The main reason educated middle-income parents avoidschools with lots of poor and minority students is the fear of those children’santisocial attitudes and disruptive behaviors. Ryan is virtually oblivious to this concern. Although he admits to gaps by

race and class in outlook and socialization, his approach to these differencesis riddled with blind spots, denials, and internal contradictions. In minimiz-ing the importance of these cultural divisions, he pays no attention to thebroader social developments that have fueled academic and behavioral dis-parities by race and class. The differences are pronounced, and are growing.Urban minorities and, increasingly, less-educated whites suffer from chaoticfamilies and dislocations occasioned by low achievement, high unemploy-ment, and poor socialization. As Brad Wilcox and Don Peck have recentlynoted, even the white middle class has fractured into segments defined byeducation. An alarming fault line has emerged between white college gradu-ates and those without a degree, with the latter increasingly resembling highschool dropouts in their rising rates of financial distress, family disintegra-tion, single parenting, partner conflict, and behaviorally troubled children.Well-off, better-educated suburbanites, despite embracing the ethos of toler-ance and diversity, mostly stick to the 1950s script. Their lives are charac-terized by family stability, low rates of criminality, and a devotion to work



54 Policy Review

and schooling. Despite the depredations of popular culture, their standardsof decorum remain relatively strict and they do a good job of socializingtheir 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 behaviorproblems, which are disruptive to one degree or another for all who have todeal with such children.” And indeed Ryan does concede, albeit skittishly,that disadvantaged students are more likely to hold dysfunctional attitudesor 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 Ryanknows that frank talk of such behavioral deficitsindulges stereotypes and fits uneasily with the liberalzeitgeist. Not surprisingly, his approach to the topicis riddled with mea culpas, disclaimers, contradic-tions, and evasions. He simultaneously deplores the“prejudice” against urban schools as expressed in“stereotypical assumptions about urban minorities”and relies on those very stereotypes — and the func-tional superiority of the bourgeois folkways thatcharacterize predominantly white suburban schools— to justify his income integration project. On howschools should actually deal with gaps between poorand middle-income students, Ryan takes refuge in

banal bromides or deploys the weasel word “challenging” — but he neversays how the challenges presented by disorderly conduct and dysfunctionalnorms should be met. Instead, he repeatedly denies that he is “blaming thevictim.” Indeed, he devotes more attention to establishing his bien pensantbona fides than to confronting the inevitable disruptions that arise frombringing students together across wide social divides. One would neverknow from this book that addressing these difficulties is crucial to the suc-cess of his vision. Nor does he acknowledge the role these concerns mightplay in suburban parents’ trepidation about sending their children to sociallyor racially integrated schools, let alone hint that their reluctance might bejustified. Ryan’s dismissal of parents’ fears contains an important proviso: There is

nothing to worry about “provided that the school culture remains one ofhigh expectations.” That condition is the crux of the matter. He repeatedlyassures us that high expectations will persist as long as the number of poorstudents is kept down. But he waffles on how many poor children is toomany. With a nod to the social science of “tipping” (the rapid change thatoccurs when rival norms or demographics become a significant presence) hesuggests an upper limit of 25 to 40 percent — a number that will strike

Amy L. Wax

Ryan does concede, albeitskittishly, that disadvantagedstudents are more likely to hold dysfunctionalattitudes.

many suburban parents as alarmingly high. But common sense observationreveals that significant dislocations can occur far short of that, and that afew “bad apples” can damage the interests of everyone. A handful of disor-derly, disrespectful, or seriously deficient students can paralyze a classroom,drain teacher attention and energy, and distract students who want to learn.One or two violent incidents can destroy school order and serenity, gum upthe works with expensive security measures, and make everyone feel unsafe.Dealing with even a few serious and recidivist troublemakers diverts timeand resources away from academics, enrichment, and extracurricular pur-suits. Above all, disruptive and poorly socialized students threaten teachers’authority, which is central to the respectable climate that Ryan so dependson and values. An obscenity hurled at a teacher can change everything —and, unless dealt with decisively, can drive superior teachers away. To besure, there are “bad apples” (and good kids) from every race and class. Butthe key question is how many. By resisting an influx of children lower downon the class scale, middle-income suburban parents are just playing the odds.Ryan is also naive about the fragility of middle-class mores and the

dynamics of contagion. He relies heavily on improving disadvantaged stu-dents by exposing them to better-off youths — on uplift by osmosis, if youwill — but he barely mentions the prospect of reverse contagion. Heassumes that the less fortunate will adopt the values of the privileged, butnever considers that students from rough backgrounds can pull othersdown. Unfortunately, children, and especially teenagers, are an impression-able lot, are easily tempted to take risks, and are swayed in unpredictableways by the company they keep. Having classmates born outside of wedlockor with close relatives in prison may lead children to accept those conditionsor find them less objectionable. A few influential adolescents can draw oth-ers into bad habits and anti-social behaviors — including petty crime, pro-fane language, contempt for authority, early sexual promiscuity, violenceand academic indifference. If the ecology of bourgeois mores is less robustthan Ryan assumes, bringing in classmates who don’t accept those normscould well backfire. The propinquity designed to impart middle-class stan-dards may end up by placing those very standards under assault.

The self-defeating cult of diversity

P erhaps the greatest flaw of this book lies in Ryan’s refusalto confront strong cultural currents that, whether or not heendorses them (and he seems to accede to some), threaten to sub-

vert his plan’s effectiveness. The largest threat by far is from an ethos ofdiversity that frowns on distinctions based on “background,” sees all cul-tures as equivalently valuable, and hesitates to condemn even dysfunctionallifestyles. Proper bourgeois parents once refused to apologize for protectingtheir children from “bad influences.” Their advice towards troubled class-



mates was “stay away from them.” Now, the very notion of respectability issuspect and misplaced tolerance reigns. Parents hesitate to inveigh againstthe dangers of rough company, especially if class and race differences areinvolved. Yet conscientious parents remain preoccupied with their offspring’sconduct and values. Reverse contagion dare not speak its name, so it’s fareasier just to keep poor and minority students away. The dogma of diversity also threatens school order and academic integri-

ty. Although Ryan disclaims class mixing as a panacea and asserts that hisproject is merely meliorist, he forgets that magical thinking takes over onthe ground. The attitude that differences must be denied or eliminatedtransforms the quest for equal opportunity into a demand for equal results.

Once students from divergent backgrounds cometogether, the idea that no gaps in achievement, dis-cipline, or anything else can be tolerated threatensto take over. The attack on rigor and ranking, heav-ily larded with progressive ed-school cant, generatesregular calls to eliminate tracking, dismantle honorsclasses, dumb down or “diversify” the curriculum,revise and water down the grading system, imple-ment trendy teaching methods, and shoehorn mar-ginal students into honors and Advanced Placementclasses. Strict discipline and exacting standards aresuspect. If poor or minority students more oftenmake trouble, proper behavior must be redefinedand discipline rethought in line with progressivethinking about differing “cultural styles.” High

expectations are recast as noxious forms of cultural hegemony imposed byan arrogant ruling class. Examples of this phenomenon abound. Affluent Fairfax County,

Virginia, one of the country’s best school districts, has hatched plans to elim-inate high school honors classes because too few minority students enrolland because, oddly, those classes seem to discourage black students fromsigning up for Advanced Placement courses. A September 2010 speech byThomas E. Perez, head of the Civil Rights Division of the JusticeDepartment, called for drastic action to eliminate racial disparities in studentdiscipline. A New York Times editorial published in June echoed that call,and disparaged arguments that suspending black youths at higher rates wasjustified by worse behavior. Reports have appeared nationwide deploringracial disparities in rates of school suspensions and expulsions in Oregon,Texas, and New York, with indignant vows to “reform” the system toequalize penalties for blacks and whites. These developments, although com-pletely in keeping with the zeitgeist, are perverse. Not only do they threatento undermine the very school culture needed to accomplish Ryan’s upliftproject, but they also drive away middle-income families that are essential tomaintaining a desirable milieu.

Amy L. Wax

The attitude thatdifferences mustbe denied oreliminated transforms thequest for equalopportunity intoa demand forequal results.

56 Policy Review

That less-well-off students more often behave badly is a fact convenientlyforgotten in the haze of misplaced tolerance. Behavioral disparities, likegaps in academic achievement, are seen as primarily a failure of the school,which must make those gaps go away. And school officials (and parents)are simply too cowed, befuddled, and conflicted to resist the muddlededicts of these trendy ideas. Emblematic of the failure of cultural confidenceis the explanation offered in a New York Times Magazine article by anewly minted Bronx middle school teacher, fresh out of Brown, for hisinability to control his class. “Who am I,” he asks, “this 24-year-old whitekid from the Upper West Side, to tell a bunch of kids from a very differentbackground how they’re supposed to behave and act?” Who, indeed? Withfriends like this, Ryan’s proposal doesn’t need ene-mies. If the well-educated son of the Upper WestSide hesitates to “tell kids from a different back-ground how to act,” how will an average teacher,with less cultural capital and academic acumen,manage to do so? Can middle-class mores really beeffectively transmitted by teachers and administra-tors who don’t believe in them and are unwilling todefend them? In the face of such dithering, it’s notsurprising that parents do not trust school authori-ties to deal firmly and decisively with the disrup-tions entailed by a significant influx of the disad-vantaged. And everyone knows that pushing againstthe received wisdom risks accusations of racism,class prejudice, and nefarious motives. Why, then, would sensible parentsvote to enter the Orwellian world of denial and doublespeak that inevitablyaccompanies “diversity?” The passage that most tellingly reveals the fatal tension between improve-

ment and “inclusiveness” is one in which Ryan compares his income inte-gration proposal to the Knowledge is Power Program Academies, where dis-advantaged children are actively socialized to middle-class norms and com-prehensively scripted in all aspects of behavior. While praising the kippmodel and acknowledging its effectiveness, Ryan baldly disavows kipp as atemplate for the economically integrated schools he envisions. Why? In pre-dominantly middle-class schools, disadvantaged students would resent“being picked out of the crowd” for criticism or correction. In other words,active socialization is off limits, because any implication that poor studentsare deficient and need improvement demeans them. Yet the whole reason toembark on the grand experiment of system-wide income integration is toreform the habits, attitudes, and behaviors of less privileged children.Nonetheless, Ryan implies that, in the name of “inclusiveness” and avoidingbad feelings, any direct pursuit of this goal is forbidden. We might well won-der how well the uplift program can be expected to work under theserestrictive conditions. At the very least, Ryan’s odd disclaimer should make



The KIPP modelis less hobbled

by political correctness intackling the

stubborn realitiesof cultural

dysfunction.

58 Policy Review

us reject income integration in favor of the kipp model, which is less hob-bled by political correctness in tackling the stubborn realities of cultural dys-function. 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 willoccur automatically. In fleshing out his project, Ryan stresses the structuraland institutional over the culturally prescriptive sources of remediation.Once low-income and minority students are put in the right schools, sur-rounded by ample resources, pushy and influential parents, high-qualityteachers, and good values, they will just spontaneously adopt the folkwaysof the educated, suburban class. Poor habits and attitudes will fade, profani-

ty, insolence, and disruptive behavior will decline,learning will improve, and scores will magically rise.Firm discipline, explicit censure, public correction,low grades, punishments, and suspensions willprove unnecessary. The belief in uplift by immersionallows Ryan to avoid the judgmentalism inherent inopenly endorsing a clear set of values. And it obvi-ates the need for teachers and administrators confi-dent enough to defend and impose those values evenin the teeth of stubborn differences in outcome byrace and class.But what if improvement by osmosis doesn’t

work? If Ryan is wrong and kipp is right — if dis-advantaged children must be taught explicitly howto act and think, and relentlessly instructed in prop-

er behavior — then income integration will fail. If laggards can’t be broughtup, the only option is defining deviancy down. But not before we create anelaborate menu of expensive new services and programs which, notwith-standing Ryan’s insistence that no one gets hurt, inevitably means lessmoney for middle-income children’s enrichment. Suburban parents knowthat scarcity exists and that resources are limited. What’s spent on the elu-sive, and ultimately futile, quest for strict equality of results won’t be spenton what they want for their children and, in many cases, have worked hardto give them. In the end, Ryan’s disregard of the cultural contradictionsinherent in his plan, and his anxious deference to a code of political correct-ness, virtually guarantee that his project will neither sell nor succeed.Ryan’s ambivalence extends even to a central proviso of his scheme: Most

children in most schools must be relatively well off. But insisting on thisdemographic balance risks giving offense. Poor and minority parents do notwant to be told that their access must be limited or that a school’s qualitydepends on their children being kept out. Ryan’s account of Richmond’spublic magnet Governor’s School illustrates this dilemma. With a mostlywhite and heavily Asian student body carefully controlled to draw in mid-dle-class children from nearby districts, the school was resented by

Amy L. Wax

The belief in uplift byimmersion allows Ryan toavoid the judgmentalism of openly endorsing a clearset of values.

Richmond’s black families, including those enrolled in a public schoolhoused in the same building, who felt excluded from its academically inten-sive programs. Ryan is at pains to sympathize with the public school parentsby noting the comparatively “unequal status” of their nonmagnet schools.But there is not a word about how school districts should handle these com-plaints as they struggle to preserve the predominantly white and middle-classdemographic that Ryan touts as the key to success. If poor and minority par-ents object to limits on their numbers, resisting their demands could proveawkward and politically costly. But if they are allowed to veto balancingplans, how can Ryan’s project ever get off the ground? Unless someone iswilling to push back and make it stick — and Ryan leaves doubt aboutwhether he himself would be — his vision of incomeintegration is untenable. Ryan’s failure to face thisthorny issue forthrightly makes his proposal virtual-ly useless to the hapless parents and schools whomust grapple with reality and make it all work. So how is the optimal student body to be main-

tained? In the wake of the failure of judicially man-dated racial integration, the question looms as towhether class mixing can be accomplished in just theright balance, and how stability can be achieved inthe face of parental prerogatives and volatile demo-graphics. Here Ryan pulls his punches yet again.Inexplicably, he touts the expansion of school choiceand vouchers as an aid in income integration. Yet he freely admits that mid-dle-income parents game the system and relentlessly gravitate to people justlike themselves. The only way to square this circle is to limit school choice.So school choice isn’t really school choice after all. The fact is that it’s almostimpossible for school districts to maintain the necessary student profile with-out ironclad, centralized control and constant tinkering with school compo-sition. This often requires telling parents they can’t send their children to theschools they want, or that their children must switch schools. The fewexperiments in income integration that have been voluntarily adopted —most notably, in Wake County, North Carolina — have ultimatelyfoundered on the constant upheavals and reassignments needed to keep theschools in balance. Even Ryan concedes that educated, middle-class parentswon’t put up with this. If there is one thing they staunchly resist, it is theirchildren being moved around like pieces on a chess board in the service ofsome grand scheme. They know that constant mobility erodes the stablebonds, enduring ties, and continuity that are essential to quality schools.And they reserve the right to judge their own children’s individual needs,and to give those needs priority over societal imperatives.In light of these prerogatives, Ryan’s failure to address how income inte-

gration would be accomplished system-wide is a major shortcoming. Hefocuses almost exclusively on moving poor children into high-functioning



Experiments in income integration

that have beenvoluntarily

adopted have ultimatelyfoundered.

60 Policy Review

suburban schools while barely discussing the far more intractable task ofluring middle-class children into subpar institutions in dangerous anddecrepit neighborhoods. Yet the project of income integration cannot beaccomplished just by shifts from inner city to suburbs. Movement in theopposite direction will, of course, never happen. The notion that suburbanfamilies will flock to the city’s 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 shak-ing their heads in dismay. And shake them they should. All conscientiousparents strive to do what’s best for their children. For most suburbanites,

this is defined as shielding them from troubled cityschools and neighborhoods. As Ryan quotes onesuburban parent, the whole point of moving to thesuburbs was to “get away from the problems ofurban systems.” The very parental vigilance Ryanhopes to harness for his approved purposes is boundto scuttle his grand scheme. Finally, Ryan ignores a fertile source of opposition

to forced integration of any kind, whether by race orclass — which is that well-off families’ choice ofschools is a notorious bastion of hypocrisy, repletewith rules for thee but not for me. The privilegedelites somehow manage to opt out of the educationalschemes they confidently, and arrogantly, foist on

others. President Obama sends his children to Sidwell Friends, one of thetoniest private schools in Washington, where students are hand-picked,diversity carefully managed, and rule-breakers ejected. The story of schoolintegration in this country is that of the rank and file citizens and minoritiesleft to fight it out, while the people in charge remain safely ensconced on thesidelines, far removed from the battle zone. This is a fertile source of politicalresentment and of continuing opposition to proposals like Ryan’s.But what of children stuck in inadequate urban schools? Don’t we care

about them, and shouldn’t they have a chance to escape? Although Ryan’smain tactic is to deny his proposal has any downsides, his ace in the hole is aclaim of justice. In disparaging the dominant mantra of “Save the City,Spare the Suburbs,” he contrasts “the natural desire of individuals to do thebest they can for their own children,” to “what’s good for everyone.” Theimplication is clear. Suburban reluctance shows a selfish disregard for thecompelling claims of others. Thus, even if equal opportunity requires somesacrifice, 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 giveway, and that their duty is to welcome everyone, including those who mightdisrupt their schools. But it’s far from clear where that obligation comes

Amy L. Wax

The notion thatsuburban familieswill flock to thecity’s core onanything like thescale necessary is, quite simply, a fantasy.

from. Ryan admits that the sustained efforts of caring, dedicated, vigilantparents, and the proper socialization of children, are essential to school suc-cess. He concedes that the values of students and parents go a long waytowards making schools what they are and keeping them that way. But whatis the source of those attributes and how are they maintained? Here Ryanwaffles as it serves his purposes. He repeatedly asserts that norms and atti-tudes are key, and resources and money secondary. But he also talks as ifschool quality flows from above, and that an atmosphere conducive tolearning is somehow conferred by government and propped up by unduefavoritism and political “clout.” The implication is that middle-income sub-urbanites enjoy privileges that are unearned and even illegitimate. Becausethey don’t entirely deserve their pleasant communities or well-functioningschools, they have no right to keep them to themselves. It follows that theyare obliged to “share.” And that obligation extends even to people whodon’t hold the same priorities and who threaten to compromise them. It should come as no surprise that not everyone embraces this point of

view. Ryan’s effort to paint “good values” as a “resource” that present hold-ers owe to all comers slights an important insight. Orderly neighborhoodsand excellent schools are built and maintained from the bottom up, throughthe hard work, restraint, planning, prudence, and rectitude of ordinary citi-zens. Good schools depend on strong norms, which do not operate in isola-tion. They feed off the efforts of like-minded people who support one anoth-er in a common endeavor. But mutual cooperation is always provisional andnever assured. Because those who come together to create excellent institu-tions are always on sufferance with one another, inclusion can never be anentitlement and must be continuously earned. Ryan implicitly writes off the“ladder” view of neighborhoods and communities, whereby access to higherrungs is achieved through striving, sacrifice, and playing by the rules, andwhere people who don’t show they honor those rules are unwelcome. Onthis view, although well-off suburbanites might support and be willing tohelp pay for improving education for the disadvantaged, they don’t seethemselves as obliged to open their untroubled, well-functioning schools tostudents who might disrupt them. And they don’t see themselves as owingentry to children whose parents don’t care as much as they do or don’t do asgood a job. Even if the cities should be “saved,” the suburbs should be“spared.”

Without voice, there’s always exit

U ltimately, ryan’s project founders on the fact that peoplecannot be forced to live and go to school with those who threat-en or undermine their values — at least not in the country we

currently occupy. The very vigilant and self-protective attitudes on whichRyan depends for his project’s success lead well-heeled parents to remove



62 Policy Review

their kids from schools that, in their opinion, don’t work. And, for better orworse, the schools that work best are filled with people like them. Parentsmay lose their voice in the din of multicultural orthodoxy, but they alwayshave exit. When it comes to their children, they will exercise it if they can.Although residential choice has been relentlessly tarred as “white flight,” italso is an enforcer of standards and the last bastion of freedom. And there’salways private school. Whatever ill-conceived schemes educrats devise,determined parents will find a way around them. They will find a way tovote with their feet.The bottom line is that income integration is more zero-sum than win-

win. For less-advantaged children in malfunctioning schools, or with parentswho just don’t care, the only viable option is to reduce the need to escape.Far better to improve education where it’s happening than to lean onstrengths found elsewhere. If parents and community leaders want goodschools, they have no choice but to create them. Unfortunately, it is notenough to will the ends. They also have to will the means. School qualitydepends on children who behave well, work hard, and want to learn — andwho are prepared to do so. Schools cannot create good students. Only par-ents can. There is no substitute for building them from the bottom up.The end of Ryan’s book is upbeat, if oddly deflationary. While admitting

that middle-class parents’ desire for control has so far stymied income inte-gration on anything like the scale he desires, he insists that diverse schoolsare the wave of the future. Rising numbers of immigrants and minorities, aswell as complex shifts in urban and suburban populations, will chip away atmonolithic schools. Demography is destiny. To which one can only respond:Bring it on. But give it time. Here patient gradualism is preferable to utopianzeal. Although it’s tempting to force things, we should resist. When it comesto diversity, heavy-handed social engineering is the enemy of progress. Howmuch better to just let it happen.

Amy L. Wax

Tort suits — actions for money damages due to per-sonal injuries of one kind or another — are ubiquitous inAmerican life and law. Most tort cases concern claimsbrought against drivers, health care providers, homeown-ers, product distributors, other businesses, and other pri-

vate actors whose allegedly faulty conduct injured the claimant. But societyhas a special interest in tort cases seeking to impose liability on governmententities or officials (“public tort law”) because such cases sometimes impli-cate important public policies, institutional values, and constitutional princi-ples. Although private and public tort law are similar systems for the mostpart, the key difference — the legal immunity from suit that is sometimesavailable to public officials and entities — lies at the heart of our govern-mental system. Americans need to understand the justifications and limita-tions of official immunity.

Policymakers in the DockBy Peter H. Schuck

Peter H. Schuck is a professor at Yale Law School. His most recent book isUnderstanding America: The Anatomy of an Exceptional Nation (Public Affairs,2008), co-edited with James Q. Wilson. A slightly different and fully footnotedversion of this article is forthcoming in the University of St. Thomas LawJournal.


64 Policy Review

Let us begin with the similarities between private and public tort law.Both systems share two conventional goals: deterring socially undesirableconduct, and compensating the victims of such conduct. Some other socialgoals, 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 thosevalues are stable; in a dynamic, restless society like ours, they are subject tochange. (Consider, for example, public attitudes toward smoking, seatbeltuse, and homosexuality.) Second, both systems should be cost-effective, withcosts and benefits defined very broadly. (Many legal experts seriously doubtwhether the private tort law system can pass this test.)

Now for some of the dissimilarities. Government,as taxpayers and plaintiffs’ lawyers know, has thedeepest pockets of all. This means that judgmentsagainst it will definitely be paid, which is not thecase with private tort judgments unless the defen-dant is wealthy or adequately insured. This differ-ence probably contributes to certain features of gov-ernment liability statutes like the Federal TortClaims Act: its preclusion of juries and punitivedamages, and its restrictions on plaintiffs’ legal fees(which presumably, and in my view improperly, alsolimits their access to the courts). The public fisc, sothe argument goes, is simply so tempting a litigationtarget 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 importanceof the goal of encouraging vigorous decision making, including appropriaterisk taking. (“Appropriate,” of course, is a question-begging word, andproperly so in this context.) Vigorous decision making — the avoidance ofundue timidity — is socially desirable in both domains, but especially in thepublic sphere, for several reasons. If a private firm decides that the legal riskof having to compensate potential victims is low enough compared with theaction’s potential benefits to the firm, it will undertake the action — forexample, manufacturing a product, undertaking a medical intervention, dri-ving a car, or buying machinery for the workplace. Such decisions will havesome effects on third parties, of course — the product will be available forother consumers to purchase, the medical treatment may improve (orimpair) 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 ofrights and damages that may result, will largely be internalized to the twoparties. In that sense, the “only” public value implicated by such disputes isthe social desire to remedy the wrong suffered by the victim. If the privatetort rules induce the potential injurer not to act — not to produce a widget

Peter H. Schuck

Government, as taxpayers and plaintiffs’lawyers know,has the deepestpockets of all.Judgments willdefinitely be paid.

or take that car trip — it is largely a matter of indifference to the rest of us.(To be sure, if the product is not a widget but a potentially life-saving drug,or the car trip is to the hospital or voting place, the social effects of theaction will of course be that much greater and the difference between publicand private stakes in the decision that much less.)Ordinarily, the social calculus will be quite different when the putative

actor is a government official, especially the kind that political scientistMichael Lipsky aptly termed “street-level bureaucrats”: police officers onthe beat, schoolteachers, social workers, drug enforcement agents, and thelike. These officials must make difficult decisions with large effects on thepublic, little time for reflection, and inadequate information. (This is notalways the case, of course; deciding whether to issuea parking ticket is neither a tough call nor of greatsocial moment.) If street-level officials are to act,their actions will often involve coercion (and occa-sionally violence), which increases the risk that theywill violate someone’s legal rights and risk vehementcomplaint, bureaucratic discipline, or litigation.Such an individual official, like her private sectorcounterparts, will consider the costs and benefits ofher two choices: whether or not to act, and, if shewill act, whether to act in one way rather thananother. As citizens, we should want the official whomakes this assessment to consult not her selfishinterests but primarily her official duties, her responsibilities to the public,her professional norms, and so forth. But suppose that the government official chooses inaction. Here is the

central difference between her situation and that of her private counterpartthat should most concern us: If she fails to act when she “should” act, signif-icant public interests are sacrificed, whereas if her private counterpart choos-es inaction, the risks of that choice ordinarily fall only on the private entityalone. (Again, there are exceptions, as with the failure to make and marketlife-saving drugs.) Some public functions are governmental monopolies, oth-ers provide collective goods that only government can supply, and still othersinvolve special duties of protection that discourage private substitutes. If theofficial fails to act as she should in these situations, no one else can or will.When, then, should she act? In general, the answer is: when she either isunder a duty to act, as in the case of a police officer who has reason tobelieve that a crime is afoot, or when discretionary action would advancethe public interest, as in the case of a police officer who must decide whetherto drive the squad car down a particularly crime-prone block instead of con-tinuing down the safer main avenue.Two other differences between private and public tort law also affect vig-

orous decision making: the set of incentives that shape the individual’sbehavior, and the choices that are available to her. The most important


Policymakers in the Dock

The public fisc, so the argumentgoes, is simply so tempting a

litigation targetthat access to

it must be constrained.

66 Policy Review

incentive differential is that private actors can be compensated for taking onadditional, profit-increasing risk, while public officials ordinarily cannot.This difference mainly reflects the difference between private and publiccompensation systems, which in turn reflect a somewhat different mix ofgoals and constraints. Private systems, at least in principle, are flexibleenough to reward employees who take risks that advance the firm’s interests.Public systems, however, tend to be far more rigid and categorical, whichprevents street-level officials from appropriating for themselves any of thesocial value that may flow from their greater risk-taking: Indeed, suchappropriation might be thought undesirable or even corrupt. For such offi-cials, then, taking greater risks in pursuit of the public good is essentially all

pain and no gain. If public officials have fewer self-interested incen-

tives to act boldly in the public interest than theirprivate counterparts do, they also have moreoptions for avoiding such action or minimizing therisks that action might entail — largely because theyare generally less closely supervised and monitoredthan their private counterparts. First, officials cansimply refrain from acting in situations where theyshould act, especially if they think that neither theirsuperiors nor those harmed by their passivity willobserve their inaction. Second, they can delay theirdecisions — 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 reducestheir personal exposure but that often defeats the rule’s underlying purpose. Finally and most important, officials who face asymmetric risks of criti-

cism and liability may have enough discretion to choose relatively risklessactions over relatively risky ones, even if this choice is socially perverse.Consider a social worker who faces the difficult choice of removing a childfrom a troubled home, or leaving him with his parents in hopes of preserv-ing the family. Assume that she is more likely to be criticized (or sued) if sheleaves the child with his parents who then abuse him, than she would be ifshe placed the child in foster care. In close cases, and at the margin, her self-interested motive might outweigh (ambiguous) professional norms and bedecisive in the removal, even if not removing the child would be in his bestinterests. Such asymmetric risk structures are very common in life, especiallyin 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 notacting 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

Peter H. Schuck

Officials whoface asymmetricrisks of criticismand liability mayhave enough discretion tochoose relativelyriskless actions.

maximization is the lodestar. (I am not suggesting that the profit criterion isalways clear enough to dictate specific actions, only that it is much clearerthan that of “order maintenance,” “public safety,” “sound education,” andother public law goals.) This ambiguity provides greater scope for officialsto make self-protective choices that compromise the public interest in vigor-ous decision making and appropriate risk taking.

The difference 9/11 has made

This concern about official self-protection is greatly height-ened in a post-9/11 world. In this world, the need for bold, aggres-sive official action to avert serious threats is greater than ever, yet it

is also a world in which officials have more reason than ever to fear thatthey will be severely criticized, arraigned before the court of public opinion,and sued for damages or even prosecuted criminally if they make a decisionthat was arguably wrong or that may seem wrong with the benefit of thehindsight afforded by a calmer, less dangerous, more leisurely time. Officialscan also anticipate that if they are indeed sued over such a decision, theymay well face ruinous personal and financial costs — even if the governmentagrees to defend (which is not always assured) them and even if they ulti-mately prevail. Why are such suits more likely in today’s heated political and legal cli-

mate than they were in the past? First, the stakes are higher. Because we facea constant threat to public safety, we must significantly rely — for better andfor worse — on public officials to protect us. This reliance is simply a fact oflife; it does not depend on one’s views about how to combat terror, the scopeof human rights, or the limits of governmental power. Second, national security demands that many official decisions be veiled

for some period of time. Transparency is almost always a virtue in a democ-racy, but occasionally it must yield to secrecy — although one hopes thatthis exception is only narrow and temporary. Yet secrecy, once unveiled,seems, and sometime is, sinister and invites legal challenge of the underlyingaction.Third, the legal standards that are supposed to govern official conduct in

this area — for example, “torture,” “material assistance,” “threat” — areoften maddeningly murky. Judicial interpretations of the relevant phrasesoften deepen, rather than dispel, this murkiness. This legal uncertainty alsomeans that both sides can usually muster respectable legal arguments fortheir positions. Fourth, courts are more likely to be uncomfortable with officials’ conduct

of the war on terrorists, which often involves practices — preventive deten-tion, interrogation, isolation, rendition, secret evidence, special tribunals,limits on counsel, Guantanamo, and so forth — that go right up to the lineof legality, as conventionally understood, and that arguably may have



68 Policy Review

crossed that line. The fact that Congress often supports the presidency in thenational security setting would affect the courts in different ways. Judgesmay be more inclined to defer to the other branches’ greater political respon-sibilities, but it may also increase judges’ sense of isolation, perhaps intensi-fying their felt duty to rein in the other two branches in the name of theConstitution. This latter dynamic may have influenced the Supreme Court’sdecision 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 raisedby controversial national security policies and practices are always difficultand deeply controversial, but their salience and weights vary over time. Thisis especially true today, a decade after 9/11, when the public’s fear of violentattack has receded considerably. With the ostensible abatement of the emer-gency, both the public and the courts tend to give greater weight to the tem-porarily subordinated but usually dominant rule-of-law values as conven-tionally understood, which a liberty-loving public reveres and of which thecourts 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 oranother for decisions that they made or influenced earlier when they wereparticipants in the war against terrorists. Are these anxieties well-founded,or are they merely pretenses enabling officials to avoid responsibility fortheir misconduct? I believe, first, that these litigation anxieties are indeedoften well-founded, and second, that even — or especially — if officialsexaggerate the risk of such sanctions, it can greatly harm the polity.

The case of Padilla v. Yoo et al.

The tortuous path of the “torture memos” is a long and wind-ing road that shows no signs of reaching its destination. These legalanalyses, initially requested by the Central Intelligence Agency,

were prepared in 2002 as the Bush administration developed new detentionand interrogation policies regarding suspected Taliban and al Qaeda terror-ists captured abroad. The memos, prepared by lawyers in the JusticeDepartment’s Office of Legal Counsel (olc), concluded that prolongeddetention, isolation, and a wide range of harsh interrogation techniques(including waterboarding, most notoriously) that the cia wanted to use ona small number of “enemy combatants” (three waterboardings, as it turnedout) were legally permissible. The memos were also forwarded to the attor-ney general, other senior Justice Department officials, and senior WhiteHouse staff who, along with the cia, presumably relied on them in framingtheir policies. The principal drafter of the early memos was John Yoo. A graduate of

Harvard College and Yale Law School and a former Senate staffer, U.S.

Peter H. Schuck

Supreme Court clerk, prolific scholar on issues of separation of powers,international law, and the law of war and national security law, and profes-sor at Boalt Hall School of Law at the University of California, Berkeley,Yoo is a leading exponent of broad presidential powers in wartime, subjectto limited or no judicial review. (Disclosure: Yoo was my student at Yale inthe early 1990s, and I consider him a friend.) The memos were reviewedand signed by Jay Bybee, his boss and the head of the olc at the time. Thememos aroused enormous controversy from the moment the first one wasleaked in June 2004; the Obama administration published them in 2009and harsh criticism from many quarters continues unabated to this day.Some attack the memos’ legal analysis, others the Bush administration’s poli-cy decisions to engage in the authorized practices,and still others the bureaucratic politics and secrecysurrounding the documents. On June 12, 2009, Judge Jeffrey White of the

federal district court in San Francisco issued anopinion refusing to dismiss a lawsuit against Yoobrought by Jose Padilla, a U.S. citizen who was con-victed in 2007 of aiding terrorists and sentenced tomore than seventeen years. Padilla (and his mother,who also sued) had sought nominal damages and adeclaration that Yoo violated Padilla’s constitutionalrights by rendering opinions and formulating poli-cies that allegedly set in motion Padilla’s illegal interrogation and detention.Yoo has appealed Judge White’s decision to the U.S. Court of Appeals forthe Ninth Circuit, which held the case in abeyance pending the SupremeCourt’s decision in Ashcroft v. al-Kidd on the scope of immunity fromBivens lawsuits (damage claims against individual public officials for consti-tutional violations). On March 2, 2011, the Supreme Court decided the al-Kidd case, which involved an allegedly pretextual use of the material witnessstatute by former Attorney General John Ashcroft to detain a citizen whonever was called to testify. For reasons that I shall now explain, I believe thatthe Ninth Circuit should, and will, reject the claims against Yoo at thethreshold. (If I am right, of course, it follows that officials like Yoo shouldnot be prosecuted criminally, where the standard of proof and the necessityof showing the requisite mens rea would be much higher, and the sanctionsmore severe.)This lawsuit, and Judge White’s decision upholding it, are ill-conceived

for at least three distinct reasons: legal principles, public policy, and profes-sional ethics. I take this view even though I am willing to concede for pur-poses of my argument here the main criticisms leveled at Yoo’s memos: thatthey got the law wrong at key points, were sometimes sloppily and superfi-cially reasoned, and were intended to justify a desired outcome — in thesense that, as when lawyers counsel clients in the typical case, the clients askhow close they can get to the legal line without transgressing it.



The lawsuit, and Judge

White’s decision upholding it, are ill-conceived for

at least three distinct reasons.

Legal Principles. Even assuming that these criticisms of the memos arecorrect, the long-standing law of official immunity requires that Yoo beprotected from civil liability — unless the court finds that the governinglaw on the particular issue was so clearly established that in giving the con-trary advice, that he should or must have known that his contrary advicewas erroneous and would violate the plaintiff’s legal rights. As the SupremeCourt recently explained in al-Kidd, this “clearly established law” standardis designed to give officials “breathing room to make reasonable but mis-taken judgments about open legal questions. When properly applied, it pro-tects ‘all but the plainly incompetent or those who knowingly violate thelaw.’” This standard, which the Court has worked out over decades, may

sometimes be difficult to apply in particular cases— in hard cases, legal clarity is in the eye of thebeholder — but it does strike roughly the correctbalance between the competing public and privateinterests. For Padilla to overcome Yoo’s immunityclaim, then, he must do much more than demon-strate that Yoo’s legal conclusion (not just his rea-soning) was wrong and violated his legal rights,although even this will be exceedingly difficult todo. He must also show that (1) Yoo could not rea-sonably have believed that his legal advice was cor-rect because the law was so clearly to the contrary,and (2) this erroneous advice was the proximatecause of Padilla’s alleged torture.

Padilla cannot meet this standard. His legal obstacles begin with theinsufficiency of his complaint. In considering Yoo’s motion to dismiss,Judge White had to assume the truth of Padilla’s factual allegations. But theSupreme Court held two years ago in Bell Atlantic v. Twombly thatassumed facts do not suffice, without more, to advance a plaintiff’s claimsto trial. To avoid dismissal, a plaintiff must show that the link between hisalleged facts and his legal theory is more than conceivable; it must be“plausible on its face.” Then, only three weeks before Judge White’s deci-sion in Padilla v. Yoo, the Supreme Court reaffirmed Twombly in the caseof Ashcroft v. Iqbal, which dismissed a complaint alleging, as Padilla doesagainst Yoo, unconstitutional detention and interrogation after 9/11 .(Justice Sou ter and three others dissented.) As in its other official immunitydecisions, the Court reiterated the need to head off burdensome discoveryand trial unless a plaintiff can make a plausible threshold showing of possi-ble 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 wouldface — quite apart from having to overcome Yoo’s strong immunitydefense (discussed again below). He would have to prove that Yoo, ratherthan Bybee (not a defendant and now a federal appeals court judge), was

Peter H. Schuck

The SupremeCourt held twoyears ago thatassumed facts donot suffice, without more, to advance a plaintiff’s claimsto trial.

70 Policy Review

responsible for the allegedly wrong advice in the memos; that Yoo did notreasonably rely on information provided to him by the cia about thetechniques; that the layers of Yoo’s superiors (all fine lawyers) whoreviewed and transmitted the advice upward did not endorse it and takethe responsibility on themselves (i.e., did not become a “superveningcause” of what ensued); and that Yoo’s advice was the actual and proxi-mate cause of the policy decisions that Padilla challenges rather than themany other factors that must have influenced President George W. Bushand his military, intelligence, and political advisers in the decision to usethe challenged techniques. In order to establish these things, moreover, Padilla would presumably

have to take depositions of President Bush, the attor-ney general, and their top staff members and sub-poena their internal deliberative documents, whichwould surely be privileged. Judge White brushedaside these and other legal obstacles, reasoning thatall of them were matters to be developed throughdiscovery, even though the Court in a suit againstthe director of the Federal Bureau of Prisons decidedin 1980 had rejected precisely this reasoning, stat-ing: “It is no answer to say that a claim just shy of aplausible entitlement to relief can, if groundless, beweeded out early in the discovery process throughcareful case management given the common lamentthat the success of judicial supervision in checkingdiscovery abuse has been on the modest side.” Assuming that Padilla could somehow hurdle these threshold legal obsta-

cles, he would face three other formidable ones. First, he must show that thetight restrictions that the Court has long imposed on the right to bringBivens actions should be relaxed in this case. But in the four decades ofBivens actions, the Court has allowed such claims to proceed in two situa-tions, none since Carlson v. Green in 1980 and neither of which is remotelylike the claims in Yoo. It is also noteworthy that although Congress has leg-islated twice on the treatment of detainees since 9/11 and the disclosuresabout detainee mistreatment at Abu Ghraib and elsewhere, it has never cre-ated a tort remedy of this kind. (In the Intelligence Authorization Act of2008, Congress did seek to limit interrogation techniques available to thecia to only those contained in the “U.S. Army Field Manual,” which doesnot allow waterboarding. President Bush vetoed the bill because of this pro-vision, and Congress sustained his veto.) Moreover, the standard that a Bivens plaintiff must satisfy — that there

are no “special factors counseling hesitation” in allowing a damage remedyagainst an individual official rather than suing under the Federal TortClaims Act — cannot be met in a case like Yoo, in which serious legal andfactual difficulties abound. Once again, Judge White waved this case law



Padilla wouldhave to prove

that Yoo, ratherthan Bybee, wasresponsible forthe allegedly

wrong advice inthe memos.

72 Policy Review

aside, dismissing in one sentence the closest precedent — a recent D.C.Circuit decision denying a Bivens remedy to plaintiffs with claims similar toPadilla’s — simply because those plaintiffs were detained abroad whilePadilla was detained here — an irrelevant distinction in the case againstYoo.Second, Padilla must show that Yoo’s 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 bea challenging, though not impossible, task. Although some legal scholars dis-parage Yoo’s analysis and conclusion, others — some liberal, some moreconservative — accept Yoo’s conclusion while disputing some of Yoo’s legal

analysis. Notably, Congress has refused on severaloccasions to define and prohibit waterboarding astorture, and at least one circuit court has definedtorture under the Convention Against Torture in away that likely would exclude waterboarding fromthe definition. Again, the point is not that Yoo’s con-clusion on this question was ultimately correct — Iexpress no opinion here on that question — butonly that it was genuinely arguable at the time andeven now.The third and most important obstacle is official

immunity, discussed briefly above. The Court hasinsisted both on protecting officials’ good faithdecisions even when erroneous (if they were noterroneous, of course, they would not need the

immunity), and on ensuring in immunity-worthy cases that this shield oper-ates at the threshold — that is, before the official is subjected to the bur-dens of discovery, the financial costs and trauma of litigation, the risks ofpotential liability, and the temptation to reduce those risks by testifying inways that compromise legitimate governmental secrets (“graymail”). TheCourt’s reason for granting such protection is certainly not any judicialsolicitude for the individual official. Rather, the Court’s concern is for thepublic’s interest in fearless, vigorous decision making, especially by officialswho must exercise often delicate judgment under highly constrained condi-tions. Thus, to overcome the immunity claim, Padilla must prove not justthat Yoo violated his legal rights but that the violated right was “clearlyestablished” as a matter of law, implying either that Yoo wrote his memosin bad faith or that he was so obtuse that he failed to reach a legal conclu-sion that was obvious to all. Even if some of Yoo’s legal analysis turns out to be wrong, how can

Padilla possibly show that Yoo did not believe in the truth of his own analy-sis and indeed knew that it was manifestly wrong? Critics say many nastythings about Yoo and his views, but few assert that he did not believe in theprinciples he avowed or that he eschewed the rule of law. He simply inter-

Peter H. Schuck

Critics say manynasty thingsabout Yoo andhis views, butfew assert that he did not believe in theprinciples heavowed.

preted the law differently than they do — and in their view, wrongly. On thispoint, consider the context in which Yoo worked, as described by formerfederal judge and Attorney General Michael Mukasey:

The difficulty and novelty of the legal questions these lawyers confront-ed is scarcely mentioned; indeed, the vast majority of the criticism isunaccompanied by any serious legal analysis. In addition, it is rarelyacknowledged that those public servants were often working in anatmosphere of almost unimaginable pressure, without the academic lux-ury of endless time for debate. Equally ignored is the fact that, by allaccounts I have seen or heard, including but not limited to JackGoldsmith’s book, those lawyers reached their conclusions in good faithbased upon their best judgments of what the law required.

Consider also the findings of an analysis by New York Times reportersScott Shane and David Johnston, published in June 2009. They wrote thatmany Justice Department lawyers reviewing the legal arguments for theharsh interrogation techniques in 2005, including Deputy Attorney GeneralJames Comey, who strongly opposed using them as a matter of policy, con-cluded that the techniques were lawful. (Comey is widely praised for hisintegrity and professionalism — for example, his conduct in the infamous,unseemly effort by White House officials to pressure the then-hospitalizedattorney general, John Ashcroft, to reauthorize President Bush’s domesticsurveillance program.) The Times article also detailed how later olc direc-tors Jack Goldsmith and Daniel Levin, while withdrawing Yoo’s memo,accepted the legality of those techniques (including, in Levin’s case, water-boarding), even as they opposed their use on policy grounds and found someof Yoo’s 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/GeneralMukasey again:

We learned a great deal through the cia program. In fact, you can focuson only three of the detainees — Abu Zubaydah, Khalid SheikhMohammed, and Abdel Rahim al Nashiri —and see a huge trove ofvaluable information . . . Not only did [Khalid Sheikh Mohammed] dis-close general information on how Al-Qaeda moved money and people,but also specific information that helped disrupt other plots, includingone involving airplanes, this one directed against the library tower in LosAngeles that was to be carried out by a south Asian group. . . . Otherinformation received from ksm resulted in the capture of peopleinvolved in a plan to develop a biological weapons capability in theUnited States, and on and on.

Whether the clear life-saving value of these techniques is or should be rele-vant to their legality — whether Kantian or consequentialist assessments



74 Policy Review

should control our legal definition of torture — is a hard and importantquestion that deserves robust public debate. For present purposes, the keypoint is that this question clearly was an open one when the memos werewritten — 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 illegalityof their actions regarding Padilla was not “clearly established” at the rele-vant time. For the reasons I have given, and especially in light of al-Kidd, Iexpect 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 andknowing violations of law — and this reason is notan exception to the rule of law but is an essentialelement of it. Society depends on mid-level officialslike Yoo to give their superiors (and us) their bestjudgment on difficult issues without having to worryabout being dragged into court or disbarred if theyturn out to be wrong or (in the case of criminalprosecution) when a new administration arrives inWashington. The public interest is compromisedwhen such officials pull their analytical punches inanticipation of having to defend possible Bivensactions. Immunity in these circumstances benefits us;

if it also benefits officials like Yoo, that is incidental. Given the punch-pulling 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 inrepresenting him, ceased doing so, agreeing instead to pay a private lawyerfor Yoo at an hourly rate far below what the best of them charge, especiallyin the hothouse legal environment of Washington, D.C. Fortunately for Yoo,a conservative legal eminence, Miguel Estrada, offered to represent him probono. Otherwise, Yoo’s 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 bya top lawyer who is prepared to take up the heavy burden simply in order tovindicate a principle? Putting officials at risk of personal bankruptcy —whether or not they later prevail in court — is not only manifestly unfair tothem; more important, it will tend to discourage top-flight lawyers fromgoing into public service and giving necessary but controversial advice. Professional Ethics. There has been much talk among Yoo’s critics of dis-

barring him and other officials who gave legal advice that some otherlawyers and lay people find abhorrent. Some of these critics claim that hisclient was the nation, not the president — as if this would make a difference,

Peter H. Schuck

Lawyers shouldnot be severelypunished forwriting arguablysloppy or faultymemos or beingon the wrongside of history.

given that the president speaks for the nation. In reality, this is an effort tofind scapegoats for Bush administration policies that many Americans fer-vently opposed — and that contributed to his party being driven from officein the 2008 elections. (That the Obama administration has reinstitutedmost of these policies, though not waterboarding, is only one of the manyironies of this episode.) Lawyers should not be severely punished for writingarguably sloppy or faulty memos, much less for being on the wrong side ofhistory — which in this case, of course, has not yet been finally written.Obama’s doj leadership was right to reject the idea of seeking professionalsanctions against Yoo. It is one thing to disagree strenuously with a lawyer’sview of the law, quite another to say that he has traduced the rule of law andmust be banished from its precincts. A professional ethic worthy of the nameknows the difference.Protecting officials from being sued personally over good faith legal and

policy disagreements does not place them above the law. Rather, it preservesthe fine line between law and politics, between legal sanctions and legitimatedisagreement about law and policy, that is so necessary for the integrity andvitality of each. If government lawyers’ advice turns out to be wrong or ille-gal, they will suffer the obloquy, fairly or unfairly, of having rendered it, aswell as the reputational, professional, and other sanctions that may followit. In Yoo’s case, he has been constantly harassed and his classes picketedsince he returned to Boalt Law School to teach six years ago, while manyfaculty and students at the university have publicly demanded his ouster.They have a perfect right to do so, of course, but such harassment can onlyincrease officials’ disincentives to engage in the kinds of vigorous decisionmaking and appropriate risk taking that are needed to protect vital publicinterests. One response to this disturbing reality is to say that this demoniza-tion simply comes with the territory, that to borrow from Harry Truman, ifgovernment lawyers can’t take the heat, they should stay out of the kitchen.But this response is too easy; it will simply encourage our governmentlawyers to serve up pabulum instead of more piquant and controversialrecipes. A better answer is for those who criticize the lawyer’s decision tocontinue to vigorously argue their positions, but to make their arguments inpublic deliberative fora with a decent respect for the difficulty of such legalquestions — in short, to turn on the light but turn down the heat.

The future

G overnment officials are risk-averse like almost everyone else— maybe even more so. Other things being equal, and given theasymmetric incentives faced by those who must make controversial

decisions or recommendations, even a small risk of being sued or prosecut-ed (and if a lawyer, disbarred) over those decisions or recommendationswould tend to induce rational officials to hunker down, cover their rears,



76 Policy Review

hedge their bets, and pull their punches. Encouraging timorous self-protec-tion on the part of officials to whom we entrust the most delicate balancingof our vital interests and values is the last thing that a sound legal systemshould do. As it happens, we have been there before. Professor and former olc

director Jack Goldsmith traces what he calls “cycles of timidity and aggres-sion” in official and public attitudes toward the intelligence community andits work. Political leaders, he writes:

pressure the community to engage in controversial action at the edges ofthe law and then fail to protect it from recriminations when things goawry. This leads the community to retrench and become risk averse,which invites complaints by politicians that the community is fecklesslytimid. Intelligence excesses of the 1960s led to the Church committeereproaches and reforms of the 1970s, which led to complaints that thecommunity had become too risk-averse, which led to the aggressivebehavior under William Casey in the 1980s that resulted in the Iran-Contra and related scandals, which led to another round of intelligencepurges and restrictions in the 1990s that deepened the culture of riskaversion and once again led (both before and after 9/11) to complaintsabout 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 andliberty. We must look to the law to regulate and adjust the tension betweenthem in light of current realities, social needs, and imperishable values.There is much room for reasonable, professional, and patriotic disagreementabout where the balance should be struck and which legal forms that bal-ance should take. For example, if we conclude that detainees like Padilladeserve a monetary damage remedy for wrongful treatment in detention, itmay be better to create such a remedy against the United States under theFederal Tort Claims Act or some special statute, so long as the governmentretains a properly-designed defense for good-faith discretionary policy judg-ments that turn out to be erroneous. A remedy directly against the UnitedStates would strike a better balance between the compensation and optimaldeterrence goals than would a Bivens remedy against individual officials likeYoo. If we are primarily concerned with setting the record straight andassessing official conduct rather than providing a monetary remedy, thenappointing a governmental investigative body or a private blue-ribbon fact-finding commission may be appropriate. The precise form that the responsesto particular instances of alleged official misconduct should take, of course,is an important question that deserves more careful assessment than I cangive it here. The law of governmental and official liability is the fulcrum of that neces-

sary, delicate balance. One hallmark of a banana republic is that officialsrealistically fear that they will face criminal prosecution and exile if and

Peter H. Schuck

when the opposing party gains office. (This is one reason, of course, whyautocratic leaders so desperately hang on to power.) Fear of personal ruin,however, can do great damage to the polity even in a genuine democracy likeours. At the margin, where good and evil inevitably do their work, even asmall risk of serious personal sanctions against officials can be enough todeform our democracy, unleashing a new cycle — not just of timidity andaggression but also of personal destruction — that we cannot readily con-trol. Except in cases of demonstrable criminality, let us reserve our reprisals,principled as well as vengeful, for elections.



Hoover Institution Press, Stanford University, Stanford, California 94305-6010www.hooverpress.org

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Religionin America

By Peter Berkowitz

Robert D. Putnam and David E.Campbell, with the assistanceof Shaylyn Romney Garrett .American Grace: How ReligionDivides and Unites Us. Simon andSchuster. 688 Pages. $30.00.

To the detriment of itspedagogical and scholarlymission, political science has

increasingly circumscribed its domain.At the center of the discipline todayone finds ever more elaborate formalmodeling of politics, and ever moretechnical measurement and manipula-tion of data. At the same time, politicalscience models grow ever more remotefrom politics and ever less accessible toeven engaged citizens and thoughtfuloffice holders. And the investigationsthat dominate the work of political sci-entists increasingly focus on method-ological issues and statistical puzzlesfor their own sake. Indeed, with every

year it becomes more difficult to find inour leading political science depart-ments courses for undergraduates thatexamine such basic matters of commonconcern as Congress, the presidency,and the courts. Our universities haveturned out to be a fertile breedingground of a new kind of political scien-tist who is not interested in politics.

Or not interested in politics as ordi-narily understood. Of course there arehonorable counterexamples andencouraging opposing trends, but it isastonishing how little time and energythe typical political scientist devotes tosuch topics as, say, the foundations ofliberty, democracy, and capitalism, andthe virtues on which they depend; theprinciples and design of good govern-ment; the change in political ideas andinstitutions over time; the use andabuse of political rhetoric; the conductof diplomacy and war; and debatesover the national interest and the craft-ing of policies and laws to advance it.Whereas every White House is staffedwith economics professors who provideeconomics expertise, and law profes-sors who provide legal expertise, rare isthe political scientist these days onwhom an administration calls to pro-vide political expertise.

Religion is particularly neglected bypolitical science. Here and there onefinds distinguished exceptions.University of Akron professor John C.Green has done major work examiningreligious attitudes and opinions inAmerica. And Jean Bethke Elshtain, aprofessor at the University of ChicagoDivinity School trained in political the-ory, has clarified the contribution ofreligiously-inspired political actors andhas brought to bear on the dilemmas ofcontemporary political life concepts


B o o k s

Peter Berkowitz is the Tad and DianneTaube Senior Fellow at the HooverInstitution, Stanford University. His writings are posted atwww.PeterBerkowitz.com.

80 Policy Review

and categories drawn from theologyand faith. But by and large — andnotwithstanding the centrality of reli-gion to human affairs and, over thepast several decades, its renewed politi-cal significance at home and abroad —American political scientists neglect it.

In these circumstances, the publica-tion of American Grace is a big event.It identifies, and applies sophisticatedsocial science analysis to answer,important questions about religion inAmerica. It hearkens back to an olderkind of scholarship, in the spirit of hallof fame political scientists Robert Dahl,James Q. Wilson, and SamuelHuntington, who, different as theirareas of expertise are, produced bodiesof work which demonstrated that seri-ous and systematic study that built onempirical research without fetishizingmethod could shed light on questionsof interest to scholars, citizens, andofficeholders alike.

American Grace is a collaborativework by rising star David Campbell, aprofessor of political science at theUniversity of Notre Dame and authorof Why We Vote: How Schools andCommunities Shape our Civic Life, andthe distinguished senior scholar RobertPutnam, a professor at Harvard’sKennedy School of Government. It isvery much in the spirit of Putnam’s ear-lier writings, particularly MakingDemocracy Work: Civic Traditions inModern Italy (1993 ) and the best-selling Bowling Alone: The Collapseand Revival of American Community(1996). In the former, Putnam exam-ined Italian society and politics, focus-ing on how forming and maintainingcivic associations generated social capi-tal — “the norms of trust and reciproc-ity that arise out of social networks” —

which, he argued, is a crucial ingredientof democratic self-government. In thelatter, he explored changes in thepropensity to associate in the UnitedStates, the resulting changes in thestocks of social capital, and the conse-quences for American democracy. InAmerican Grace, Putnam andCampbell team up to assess how reli-gion, in the words of their subtitle,“divides and unites us.” That anodyneformulation, however, conceals thestriking overall finding of the book:Contrary to the common wisdomamong professors and pundits, religionin these polarizing times does far moreto unite Americans than to divide us.

The authors are accomplishedempirical researchers, and their find-ings are primarily based on dataderived from “The Faith MattersSurvey,” which they themselves“designed, implemented, and ana-lyzed.” Their data analysis is enrichedby an impressive appreciation ofAmerican history, culture, and society.In addition, their book provides threelong chapters of what they callvignettes — “thick descriptions,” inanthropologist Clifford Geertz’sfamous formulation — crafted by theircolleague Shalyn Romney Garret,which vividly and sympathetically por-tray a variety of Protestant, Catholic,Jewish, and Mormon religious commu-nities. The book’s precisely etchedaccounts of the men and women whoworship in these varied congregationsis smoothly woven into the authors’overall data-driven argument about thesocial and political effects, mostly salu-tary, of religion in America. Their rarefacility with both quantitative andqualitative analysis enhances theauthors’ handling of both.

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Putnam and Campbell proceed fromthe observation that religion inAmerica has long been exceptional, andin two striking respects: Religiousdevotion is greater in America than inany other advanced liberal democracy,and so is religious pluralism.

Since the 1960s, however, Americahas witnessed a growth in religiouspolarization:

Americans are increasingly con-

centrated 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 shrink-

ing. Contrast today’s religious land-

scape 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.

Given the growing divide in Americabetween the religious and the secular,one might expect a flaring up of a cul-ture war. And indeed, as Putnam andCampbell ruefully note, the convictionthat America is rent by religiously dri-ven culture war is determinedly pro-pounded by leading social and politicalcommentators and bestselling authors.

But the data tell a different story.And not only Putnam and Campbell’sdata. Their findings are consistent withthose from the mid-1990s by sociolo-gist Alan Wolfe in One Nation, After

All: What Americans Really ThinkAbout God, Country, Family, Racism,Welfare, Immigration, Homosexuality,Work, the Right, the Left and eachOther, and in the last decade thosefrom political scientists Morris P.Fiorina, Samuel J. Abrams, and JeremyC. Pope in Culture War? The Myth of aPolarized America. Both of these booksshowed that when one moves beyondelite discourse and examines ordinaryAmericans’ lives and opinions, one dis-covers a majority of Americans withlive-and-let-live habits and attitudes.Similarly, according to Putnam andCampbell, when one turns away fromthe dire pronouncements by intellectu-als and politicians about the polarizingeffects 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.

The puzzle for Putnam and Campbell ishow America can combine exceptionalreligious devotion with exceptional reli-gious diversity and nevertheless achieveexceptional toleration.

They proceed by setting the puzzlein historical context. The religiouspolarization of the present, they con-tend, is the result of one great shockand two aftershocks generated by thesocial and political tumult of the1960s. The great shock was the sexual


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82 Policy Review

revolution, set in motion in no smallmeasure by the appearance in the mid-1960s of a cheap and reliable birthcontrol pill. The authors report that“the fraction of all Americans believingthat premarital sex was ‘not wrong’doubled from 24 percent to 47 percentin the four years between 1969 and1973 and then drifted upward throughthe 1970s to 62 percent in 1982 .”This stunning reevaluation of estab-lished norms, accompanied and acceler-ated by the swift routinization ofcohabitation before marriage and no-fault divorce, precipitated a crisis inconfidence for all forms of establishedauthority, including religious authority.

It also resulted in two aftershocks.The first, felt already in the 1970s, wasa resurgence of religious faith. It is noaccident, the authors point out, that in1976 “America elected its firstavowedly born again president.” Thenext two decades witnessed a markedrise in religiosity, with politically conser-vative Americans turning in large num-bers to evangelical Protestant denomi-nations, and evangelical Protestantsentering politics as a significant force.The second aftershock, triggered by thefirst, hit in the 1990s. With the rise topolitical prominence of the ReligiousRight, many, especially among theyoung, rejected religion because,according to Putnam and Campbell,they increasingly tended to see it as“judgmental, homophobic, hypocritical,and too political.” Between 1990 and2010, the number of Americans whohad no religious preference rose fromabout 7 percent to about 17 percent,with the most dramatic increasesamong twenty-somethings.

These three shocks and the religiouspolarization that has resulted provide

the backdrop against which Putnamand Campbell explore the changingfaces of religion in post-1960 sAmerica. Across religions, the propen-sity of children to follow the faith oftheir parents has declined while inter-marriage has risen. This has resulted ina significant increase in the importanceof individual choice in determining reli-gious affiliation, which in turn hasspurred growth in “congregation shop-ping” among worshippers and theemergence of “religious entrepreneurs”among the clergy. As women havemoved into the marketplace and wonequal treatment under law, religiousmen and women have tended to“remain more traditionalist about gen-der roles than their contemporarieswho are not in the pews, but they areless traditionalist than their religiouscounterparts had been a generationago.” As the gaps between social andeconomic classes have widened,“among the American upper middleclasses, those who are religiously obser-vant are more likely to report friend-ship and social interaction with peopleon welfare or manual workers thancomparably placed secular Americans.”But this has not, the authors note withregret, translated into concerted reli-giously inspired efforts to close the gap.And as ethnic diversity, fueled by immi-gration from Asia and Latin America,has increased, the data show “that reli-gion and ethnicity often reinforce oneanother.” This is especially true ofblack Protestant churches — which,breaking the stereotype, unite intensetraditional faith with strong allegianceto the Democratic Party. At the sametime, the authors stress, “Americans ofall religions and all levels of religiosityhave become more racially tolerant.”

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As for politics, Putnam andCampbell show that while there is agood deal of church in our politics,there is relatively little politics in ourchurches. They confirm, consistentwith common observation, that withthe notable exception of blackProtestants the highly religious tend tobe Republican, and the intensely secu-lar Democratic. Of particular interest istheir finding that the Republicans’“coalition of the religious” is groundedin “sex and family issues like abortionand same sex marriage.” Because viewson gay rights are liberalizing across thereligious spectrum and abortion atti-tudes, which have shifted slightly in aconservative direction in recent years,seem to have become less a function ofreligion, the authors cautiously specu-late that the conservative coalition ofthe religious may be vulnerable.Meanwhile, and contrary to most pro-gressive intellectuals, the authors findin churches “that there is little overtpoliticking over America’s pulpits and,to the extent it happens, it is more com-mon on the political left than theright.” Nor are churches active in orga-nizing their congregants for partisanpolitics. But Putnam and Campbell doreport that religious teachings — espe-cially in relation to sex and family mat-ters — have political implications thattend to be reinforced through religious-ly based friendships and associationsand come to influence believers’ politi-cal opinions.

In the final chapters, Putnam andCampbell argue that religion yieldssubstantial indirect benefits to democ-racy in America. What GeorgeWashington claimed was true ofAmerica in the 18th century remains,in the authors’ account, true today:

Religion provides a vital support ofdemocracy in America. Putnam andCampbell note that their findings con-tradict the popular claims of the “newatheists,” polemically summed up inthe subtitle of Christopher Hitchens’sbestselling God is Not Great, that“religion poisons everything.” In fact,the authors’ convincingly demonstratethat religious Americans are generally“more generous neighbors and moreconscientious citizens than their secularcounterparts.” Religious Americansvolunteer more, give more money tocharitable organizations, and are morelikely to give money directly tostrangers, family, and friends. In addi-tion, religious Americans are more like-ly to belong to community organiza-tions, lead community organizations,take part in local social and politicallife, and press for local social and polit-ical reform.

Strangely, Putnam and Campbelldiscount the role of belief in makingthe religious better neighbors and citi-zens. Indeed, they are uncharacteristi-cally emphatic in insisting that beliefsare “utterly irrelevant to explaining thereligious edge in good neighborliness.”Instead, they maintain that their datashow that the key factor is “religiously-based social ties.” But their distinctioncannot be sustained because religiousfriendships and communities are in partconstituted and preserved by religiousbeliefs. Indeed it is hard to understandhow the authors can simultaneouslyargue that religious beliefs about sexand family matters have practical, ifindirect, political consequences whilemaintaining that religious beliefs — forexample, the foundational belief inboth Christianity and Judaism, that allhuman beings are created in God’s


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84 Policy Review

image — have no bearing whatsoeveron religious people’s propensity to bebetter neighbors and citizens.

Religious toleration, according tothe authors, is generally on the rise inthe United States. Yet while relationsbetween Protestants, Catholics, andJews have never been better, not allinterreligious tensions have been dis-solved. Putnam and Campbell empha-size that one interreligious division,with implications for the 2012 elec-tions, remains particularly potent —the tendency among evangelicals tohold negative views of Mormons. Moregenerally, the authors report, “Threegroups stand out for their unpopularity— Mormons, Buddhists, andMuslims.”

Y et when all is said anddone, America is far from ahouse divided. Indeed,

given America’s exceptional religiousdevotion and diversity, the degree ofunity the country exhibits is remark-able. One factor, according to theauthors, is civil religion or the generallynondenominational view, inscribed inthe Declaration of Independence, thatindividual liberty and human equalityare rooted in God’s creation. Another isthe Constitution, the First Amendmentof which both prohibits an establish-ment of religion and protects its freeexpression, thereby providing believersof all faiths wide latitude, consistentwith laws binding on all citizens, toworship as they deem appropriate. Athird factor flows from the politicalinstitutionalization of toleration which,by bringing people of different faithsand no faith at all together, encourageshabits of heart and mind that reinforcethe spirit of toleration. Putnam and

Campbell call this “religious bridging,”or the common practice in contempo-rary America of spending time withpeople of different faiths or nonbeliev-ers. “Multiple strands of evidence pointin the same direction,” they argue.“When Americans associate with peo-ple of religions other than their own —or people with no religion at all — theybecome more accepting of other reli-gions.” And this has served the inter-ests of liberal democracy in America:“Interreligious mixing, mingling, andmarrying have kept America’s religiousmelting pot from boiling over.”

Putnam and Campbell’s book is thatall-too-uncommon achievement forpracticing political scientists — asuperb work of scholarship thatengages, invigorates, and refines thepublic debate. Their ability to resist thetypical bias against religion amongsocial scientists and largely set asidepartisan political predilections enablesthem to shed light on the ways inwhich religion is consistent withdemocracy in America and cultivates,to use a term they avoid, the virtues onwhich liberty depends.

At the same time, because theyassume, in the spirit of Deweyan pro-gressivism, that the more democratic areligion is the more it supports democ-racy, they overlook crucial dimensionsof the relationship between religion,liberty, and democracy. In particular,they neglect religion’s role in providinga counterweight and corrective todemocratic tendencies that impairdemocracy’s long-term interests.Tocqueville, for example, argued —based on acute observation ofAmerican society and politics, study ofthe fundamental character of democra-cy, and reflection on the intricacies of

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human nature — that the preservationof freedom depended in part on faithbecause religious belief fortified fixedmoral principles that democratic equal-ity tended to attenuate or dissolve. Thisstriking opinion is deeply rooted in thehistory of political philosophy, has sig-nificant implications for public policy,and is subject to empirical verification.

To carry forward the work of under-standing religion in America to whichPutnam and Campbell have made amajor contribution, it would be neces-sary to expand the disciplines on whichthey draw to include political philosophy.

The CongoNightmare

By Henrik Bering

Jason K. Stearns. Dancing in theGlory of Monsters: The Collapse of theCongo and the Great War of Africa.Publ icAffa irs . 380 Pages .$28.99

F or three decades onZaire’s evening news, thestern features of President

Mobutu Sese Seko would emerge fromthe heavens to inspire his lowly sub-jects. Resorting to such grandioseimagery only came natural for thefounder of Mobutuism, which wasdesigned to replace Christianity as thespiritual foundation of the country. Inthe words of Interior Minister Engulu

Baanga Mpongo, “God has sent a greatprophet, our prestigious GuideMobutu. This prophet is our liberator,our Messiah. Our Church is the mpr.Its chief is Mobutu. We respect him likeone respects a Pope. Our gospel isMobutuism. That is why the crucifixesmust be replaced by the image of ourMessiah.”

With guidance like this, Westernnotions of pluralism and a multipartysystem were neither necessary nordesirable, and besides, as Mobutu him-self pointed out, they were wholly aliento African custom. “In our African tra-dition there are never two chiefs . . .That is why we Congolese, in the desireto conform to the traditions of our con-tinent, have resolved to group all theenergies of the citizens of our countryunder the banner of a single nationalparty.” In reality, of course, Mobutuwas the embodiment of the third worldkleptocrat for whom the state coffershave become the property of himselfand his henchmen, to squander as theysee fit.

Throughout the Cold War,Mobuto’s regime had been propped upby the U.S., not with any great enthusi-asm, but because Africa was a zero-sum game: A loss of a Western allywould automatically mean a gain forthe communists. So for the U.S. policy-makers, it was a matter of holding theirnoses, because the alternative, a hostilerevolutionary regime, was worse. Butwhen the Cold War ended, U.S. pres-sures for reform grew, while the fate ofMobutu’s fellow dictator NicolaeCeausescu of Romania gave theAfrican leader acute cause for anxiety.

The beginning of the end forMobutu came in 1996, when forcesfrom neighboring Rwanda invaded his


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Henrik Bering is a writer and critic.

86 Policy Review

country; this invasion, Mobutu’s fall,and the renewed fighting under his suc-cessor Laurent Kabila is the topic ofJason Stearns’s impressive and unset-tling Dancing in the Glory of Monsters:The Collapse of the Congo and theGreat War of Africa. The conflict tothis day has cost an estimated five mil-lion dead, four million of whom havedied not from fighting itself but fromdisease and malnutrition resulting frombeing uprooted.

Yet the suffering has never com-manded the headlines like the geno-cides in neighboring Rwanda or inDarfur, where the Sudanese govern-ment has supported Arab militias intheir ethnic cleansing efforts againstblack Africans. Unlike these twotragedies, the fighting in the Congodoes not lend itself to neat simplifica-tion; it has many causes and manyactors, involving nine countries andsome twenty different rebel groups:Proxies armed by the main actors havekept splintering into local factions andfiefdoms much along the lines ofGoethe’s “The Sorcerer’s Apprentice,”Stearns notes.

Thus Stearns quotes the New YorkTimes columnist Nicholas Kristof’s rea-sons for devoting less attention to theCongo than to the genocide in Darfur,an argument that rests on the ideologi-cal motivation of the latter: “Dafur is acase of genocide, while Congo is atragedy of war and poverty . . . I grantthat the suffering is greater in theCongo, but our compass is also movedby human evil, and that is greater inDarfur. There’s no greater crime thangenocide, and that is Sudan’s specialty.”To the Congolese dead and their fami-lies, such distinctions are unlikely to beof much comfort.

In the book, Stearns describes indetail the nightmare of a failed state, aHobbesian universe of utter lawless-ness. As one of his sources tells him, tosurvive in this kind of environment,“we all have to be a bit corrupt, a bitruthless. That is the system here. Thatis just the reality of things. Even you, ifyou were thrown into this system, youwould do the same. Or sink.”

The war devastation he compares tothat experienced by Europe back in theThirty Years’ War. Stearns is usuallyreticent in his descriptions of the hor-rors, the effect of which is to makethem hit harder when they do appear.Thus in the massacre at Kasika, a vil-lage 100 miles west of the Rwandanborder, where rival proxies had been atwork, survivors tell Stearns how thedead for fun had been “twisted intoorigami figures,” including a casewhere the killers had made a slit oneach side of the belly of a corpse andburied the victim’s hands in them:“They had made him look like he waswearing a suit.”

The book is based on interviewswith ex-ministers, generals, formerchild soldiers, and victims, and separat-ing fact from fiction is no easy task.Writes Stearns, “Sometimes it seemsthat by crossing into the Congo oneabandons any sort of Archimedean per-spective on truth and becomes caughtin a web of rumors and allegations.”As he notes, conspiracy theory is thetraditional way of the powerless to givemeaning to an existence bereft of it.

The 1996 invas ion ofZaire was the result of thespillover of the civil war in

neighboring Rwanda. Since 1990, themajority Hutu government of

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President Juvenal Habyarimana hadbeen fighting the Tutsi rebel move-ment, the Rwandan Patriotic Front. Aceasefire had been broken by thedowning of Habyarimana’s plane inKigali in April of 1994. The massacreof 800,000 Tutsis over a three-monthperiod followed, before the rebelsunder the leadership of Paul Kagametook control of the country, withKagame becoming vice president andminister of defense.

In what they regarded as a tacticalretreat, 30,000 Hutu soldiers andthousands of militiamen fled intoMobutu’s Zaire. With them fled massesof Hutu civilians who feared for theirlives under the new regime. Thus therefugee camps in Zaire held about amillion people, civilians plus Hutugenocidaires, with the latter in control.A un proposal to separate the twogroups came to nothing. So from herethe Hutu commanders set about plan-ning a guerilla offensive, namedOperation Insecticide, reflecting theirview of the Tutsis as cockroaches to beexterminated.

This represented a threat that theRwandans could not ignore, and inOctober 1996, the so-called Allianceof Democratic Forces for the Liberationof Congo-Zaire invaded. Thus, inStearns’s view, a case can be made forseeing round one in this great Africanwar as one of self-defense, a just war.And not only had Mobutu allowed theHutu killers in Zaire but, in his desireto be the regional powerbroker, he alsomanaged to upset his other neighbors,the Ugandans and the Angolans, byhosting rebel groups on his soil, withthe result that they joined in a coalitionagainst him, making this a regionalconflict: “Africa’s World War,” in

Stearns’s words, with each side havinglocal proxies.

Being in an advanced state of disin-tegration, Mobutu’s army was not upto the challenge. Mobuto’s main preoc-cupation was always staying in power,and his way of governing was classicdivide and rule. Having himself coup-ed his way to power, Stearns notes, he

kept a watchful eye on the military: Heexecuted some of his most competentofficers, bought off others, and estab-lished parallel lines of command.

His Presidential Guard and CivilGuard got the lion’s share of themoney; the rest of his military were leftto improvise as Mobutu had urgedthem to: “You have guns. You don’tneed a salary.” And improvise they did.One way was setting up roadblocks.Another was to sell spare parts andweapons to those prepared to pay,including the very forces they were nowfighting. The unintended side effect ofthis cannibalization was to weaken thearmy to the point of uselessness when itwas needed.

When you invade another country, itis a well-established practice to look forsome local front man to make the oper-


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“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.

88 Policy Review

ation look homegrown, which is whatthe Ugandans advised Kagame to do:The choice was Laurent Kabila, a veter-an Congolese rebel leader living inobscurity in Dar es Salaam, from wherehe ordered the occasional bandit raidback in Zaire. A physically imposingman who painted his toenails black,Kabila had earned a brutal sobriquet asa warlord back in 1964: “the one whocuts cows’ teats.”

The Cuban revolutionary CheGuevara, who spent seven months inthe Congo in 1965 in a futile attemptto foment revolution, assessed Kabilaas a man with certain leadership abili-ties but somewhat lacking in the ideol-ogy department. Sick from malnutri-tion, Che left the country in disgust, asMarxism failed to fire up the rural pop-ulation: Stearns quotes the first sen-tence of Che’s diary, “This is the historyof a failure.”

Kabila may not have been every-one’s idea of the ideal frontman, but forthe present purpose he would do. Theinvading alliance consisted of Rwandanregulars and Kabila’s local forces,which included child soldiers down totwelve years old, recruited among streetchildren and boy scouts. The advantageof child soldiers, notes Stearns, is thatthey have little sense of their own mor-tality, which makes them useful as can-non fodder.

They also have little respect forhuman life. As part of their mental con-ditioning, they were forced to watchand take part in executions, and the sev-ered head of a prisoner would be passedaround to get them used to the idea.

In the attack on the camps, half amillion refugees returned to Rwanda,while 400,000 fled into the jungle.Before them, the invaders drove the

Hutu refugees on a 1,000-mile trekthrough dense rainforest, with peopledying in the thousands. In a startlingimage, Stearns cites a refugee’s descrip-tion of how swarms of white and bluebutterflies would settle on the corpses,feeding off the salt and moisture.According to Sterns, the Congolesegreeted Kabila’s troops as liberators,and the death of Hutu refugees wasnone of their business.

Throughout, Mobutu himself wasin poor shape. At the start of the war,he was in Switzerland for a prostateoperation. Stearns reports the contra-dictory rumors circulating in Kinshasa:Some claimed that the treatment hadswelled his penis to monstrous propor-tions, others that he had been castrat-ed. In fact, he left for the cancer treat-ment too late and had to go back foranother operation. Meanwhile, the sit-uation was daily deteriorating. In afutile attempt to tame inflation, a newbank note was issued which becameknown as “the Prostate,” because itbehaved in much the same way asMobutu’s.

Both the South Africans and theAmericans tried to convince Mobututhat it was time to call it quits, but hehesitated. Only when his generalsinformed him that his safety could nolonger be ensured was he finally per-suaded to leave the country. In a mock-ing gesture, a solitary 50 franc notehad been left in a drawer in the centralbank for the invaders to find.

A s the country’s nomi-nal new ruler, Kabila wasdescribed by one of his

ministers as “a well-read man withsome strange ideas. I remember in onecabinet meeting he asked us out of the

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blue if we thought Sartre would haveagreed with some policy we were dis-cussing.” To mark the change, Kabilanamed the country the DemocraticRepublic of the Congo.

Politically, Kabila was stuck in1960s rhetoric. He promised reforms,taunting his countrymen for their meeksubmission to Mobutu. One suchKabila quote provides the book with itstitle. “Who has not been Mobutuist inthis country? Three quarters of thiscountry became part of it. We saw youall dancing in the glory of the mon-ster.” However, Kabila’s chosen instru-ments of reform seemed ill-suited: Hisminister for regional aid had leftTennessee in a hurry, escaping a$300,000 fine for fraud, which meanthe could have no dealings with theAmericans, while his justice ministerhad spent eight months locked up inBelgium for illegally tapping into thepower grid.

And it did not take long for Kabilato revert to classic African Big Manbehavior and to steal a page fromMobutu’s playbook, relying on thetwin tools of coercion and corruption.He also inherited Mobutu’s paranoia.Fearing that his Rwandan backers andthe Congolese Tutsis would removehim from power, Kabila fell out withthe Rwandans a little over a year later,demanding that the Rwandan troopsleave the country. “It is ironic,” notesStearns “that Kabila, having first cometo power on Rwandan bayonets, cameto be seen as a bulwark against Tutsiaggression.”

His new course appealed to discon-tented army officers who resented hav-ing the Rwandans and local Tutsisordering them about; there was generalresentment among the inhabitants of

Kinshasa of the arrogant manners ofthe Rwandans, who had accused themof dressing like prostitutes. Kabila’ssoldiers were under orders to shootany Tutsi found with a weapon. Intheir search for persons with highcheekbones, the going definition of aTutsi, his troops invaded a U.S.embassy compound, but disappeared

again after having helped themselves topetty cash.

The Rwandans responded by estab-lishing an airlift to Kitona, strategicallylocated near the Inga Dam, which gavethem a stranglehold on the electricitysupply to Kinshasa. According toStearns, they also prepositioned loyalunits and weapons in eastern Congo.As the Rwandans were by far the morecompetent fighters, Kabila was forcedto flee. But the momentum shiftedwhen the Zimbabweans and theAngolans intervened, providing thou-sands of troops equipped with attackhelicopters, armored personal carriers,and MiG fighter-bombers. This inter-vention enabled Kabila to return to thecapital, though fighting continued inthe provinces.


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Kabila’s chosen instruments of reformseemed ill-suited: His

minister for regional aidhad left Tennessee in a

rush, escaping a $300,000fine for fraud, whichmeant he could have no dealings with the

Americans.

90 Policy Review

Safely back in Kinshasa, Kabilanonetheless grew more jittery. Stearnsquotes a former minister: “We wouldgo to him with elaborate plans for theeconomy, but he would say, ‘Twoyears! I will be dead in two years. Bringme policies that can bring us cash intwo weeks.’” Accordingly, Kabilasigned over the diamond market to aforeigner for a mere $20 million a year.A former general auditor describes theway the country was administered as“a private trust run by people close toKabila, but entirely created with stateassets.”

In 2001, Kabila’s fears came true:He was assassinated by one of hisbodyguards. It is not known who wasbehind it, Stearns says, but there wereplenty of people who had had enoughof him. “Kabila is like a man whostarts six fires when he has only gotone fire extinguisher,” says aZimbabwean official. As just oneexample cited, he continued to let theAngolan rebel Jonas Savimbi trade dia-monds through Lebanese dealers inKinshasa, and Savimbi guerillas wereagain present in the Congo, which wasthe very thing that had made theAngolans support the anti- Mobutoforces in the first war.

The man best placed totake over was LaurentKabila’s son Joseph, who had

been his father’s defense minister.Kabila fils proved himself to be a prag-matist whose main achievement wasthe peace deal that ended the secondwar in June 2003 . His slogan was“Joseph Kabila, the bearer of eggs. Hedoesn’t squabble, he doesn’t fight,”thereby managing to put his rivals andtheir Rwandan and the Ugandan back-

ers on the defensive. A deal was ham-mered out in South Africa that amount-ed to a sharing of spoils among theleading players. “Impunity and corrup-tion were to a certain extent holdingthe fragile peace together,” writesStearns.

Thus, unlike the situations in Liberiaand Sierra Leone, where warlords wereprevented from standing for publicoffice, the agreement kept some unsa-vory characters in place. And whatStearns’s sources call the “informaliza-tion of government” still goes on, withstuffed envelopes being passed around.To provide quick cash, the governmentheld a fire sale of mining rights.According to a World Bank internalmemo, the lack of transparency wascomplete.

In time-honored fashion, Kabilakeeps a strong presidential guard, andthe rest of the army weak. He hasrefrained from mass arrests, Stearnsnotes, as he prefers to sideline people,but discontent in Kinshasa is growing:“Mobuto used to steal with a fork. Atleast some crumbs would fall betweenthe cracks and trickle down to the restof us. But Kabila steals with a spoon.He spoons the plate clean. He does notleave anything for the poor.” Some seehim as “a Tutsi ManchurianCandidate.” And there is still an insur-gency smoldering in the Western partof the country, amounting to a situa-tion of “neither war nor peace.”

W hile the first Congowar was motivated bysecurity concerns, the sec-

ond war was strictly business, Stearnsnotes. While neither Rwanda norUganda have diamonds, Ugandanexports of diamonds grew tenfold dur-

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ing the second war, and Rwandan andthe Ugandan forces clashed furiously inthe streets of Kisangani in 1999, end-ing their alliance. He cites the conclu-sion of a un report to the effect that“Rwanda and Uganda were plunderingEastern Congo for personal enrichmentand in order to finance the war.” Andso was everyone else.

While in some circles it is a reflex toblame Western firms for all of Africa’swoes, Stearns does not buy this idea.“The notion that the war was fuelledby international mining capital eager toget its hands on Congo’s wealth doesnot hold water; the war slowed downprivatization for a decade.” Gettinginvolved with the rebels was far toorisky for large public-owned corpora-tions. Only small pirate outfits made akilling, but they were unable to providethe billions needed for infrastructureand investment.

Stearns is unable to offer much hopefor the future: Unlike in Europe, wherethe Thirty Years’ War made peoplerealize the need for the nation-state,there is little prospect for that happen-ing in the Congo: “Since independence,the story of political power . . . hasbeen about staying in power, not aboutcreating a strong nation-state.” Theonly way to mobilize popular supportis along ethnic lines, he notes, but everygroup is only pursuing its own narrowinterest. And despite the country’sincredible riches, says one of Stearns’sCongolese friends, the all-pervasivecorruption ensures “the reverse Midaseffect: Anything touched by politics inthe Congo turns to [excrement].”

Throughout the book, a tensionexists between the author’s wish toavoid reinforcing traditional caricaturesand stereotypes of “the corrupt brutal

warlord with his savage soldiers rapingand looting the country” and the needto tell it like it is out of an obligation tothe victims. The latter wins out. Thetragedy of the Congo is that the carica-ture represents reality. This is the landof horrors. And there is no Goethe’ssorcerer to break the spell.

The RoaringThirtiesBy David R.Henderson

Alexander J. Field. A Great LeapForward: 1930s Depression and U.S.Economic Growth. YaleUniversity Press . 387 pages .$45.00.

D uring which decade didthe United States make thegreatest advance in tech-

nology? Perhaps the 1990s, when thehuge technical advances in computingchanged the way we did so manythings, from writing to banking tomanufacturing? Not a bad guess, butit’s wrong. Here’s a hint: The decadethat took the biggest strides in technol-ogy is the one you would be least likely


Books

David R. Henderson is a research fel-low with the Hoover Institution andan associate professor of economicsat the Graduate School of Businessand Public Policy at the NavalPostgraduate School. He blogs atwww.econlog.econlib.org.

92 Policy Review

to guess: the 1930s, the same decadeduring which the United States experi-enced the Great Depression.

If you think that’s counterintuitive,well, so did I. But now, having read AGreat Leap Forward, I’m convinced.Santa Clara University economistAlexander J. Field’s book on the decadeof the 1930s will probably be one ofthe most important technical econom-ics books of this decade.

What’s Field’s evidence? The big-pic-ture evidence is that in 1941 about asmany people were working and aboutas much capital was employed as in1929, the last boom year before theGreat Depression. Yet real output was33 to 40 percent higher in 1941 thanin 1929. (The range from 33 to 40,rather than a specific number, is due tothe fact that there are various methodsto compare output over time; the big-ger number comes from a computa-tional method called the chain indexmethod.) This implies a growth in theproductivity of labor and capital aver-aging 2.3 to 2.8 percent annually overthose twelve years.

In no other twelve-year period dur-ing the 20th century did the UnitedStates have such a high average growthof productivity. Of course, there wereperiods of higher economic growth:After all, as noted, the 1930s was thedecade of the Great Depression. Butthat growth came from an increase inthe amount of labor and capital as wellas an increase in productivity. As notedabove, the amount of capital and laborbeing used in 1941 was pretty muchthe same as in 1929.

You might think that if Field’s claimabout the 1930s is true, it would havebeen discovered much earlier thannow. I wondered about that too. But

early in the book, Field digs carefullyinto the data to show why other econ-omists who studied the U.S. economy’sgrowth got it wrong. His treatment ishighly technical and difficult to sum-marize in this space. Suffice it to saythat one of the scholars whose work hecriticized, Robert J. Gordon ofNorthwestern University, gives thebook a glowing blurb in which he says,among other things, “This book willchange forever standard views ofwhich decade’s growth was mostdynamic, and why.”

Field’s care reminds me of the caretaken by Milton Friedman and Anna J.Schwartz in their monumental andpath-breaking 1963 book, AMonetary History of the United States,1867–1960. It was hard to read theFriedman/Schwartz book and comeaway unconvinced that monetary poli-cy was key to understanding the perfor-mance of the U.S. economy over that94-year period. Similarly, it is hard tocome away from Alexander Field’sbook and not be convinced that the1930s had substantial technologicalimprovements that made the UnitedStates so much more productive.

Field bolsters his case by goingbeyond economy-wide numbers onproductivity to see what were themajor technological improvements ofthe 1930s. In instance after instance,he had this reader saying, “I didn’tknow that.” New chemical processeswere introduced that “increased thepercentage of sugar extracted frombeets during refining” and comparableinnovations occurred in mining.“Topping” techniques in electricitygeneration — using exhaust steamfrom high-pressure boilers to heatlower-pressure boilers — raised capac-

Books

ity by 40 to 90 percent with virtuallyno increase in the cost of fuel or labor.New treatments increased the life ofrailroad ties “from eight to twentyyears.” With new paints, the time forpaint to dry on cars fell from threeweeks (!) to a few hours. Adding heftto his innovation story, Field notesthat total r&d employment in 1940was 27 ,777 , up from 10 ,918 in1933.

But one of the most important tech-nological improvements was not inno-vation per se: It was a countrywide net-work of roads. We are used to thinkingof America as a country without seri-ous roads until Dwight Eisenhower’sInterstate Highway System that startedin the mid-1950s. But remember thatIke got the idea after seeing how long ittook to get an Army convoy across thecountry in 1919 . A lot happenedbetween 1919 and 1941. Field pointsout that the Interstate system’s routeswere typically built alongside or on topof highways already completed. Thinkof i-95 and the old U.S. Route 1, forexample. These roads were built pri-marily in the 1930s. Roads plus theearlier innovation of pneumatic tiresled to a huge expansion of the truckingindustry. That mattered because, notesField, trucking was much more flexiblethan railroads, not just in routes butalso in shipment sizes.

What about the idea that technolog-ical improvements in World War IIwere responsible for much of theimprovement in the U.S. economy’sproductivity? Field drives a truckthrough that argument. First, he pointsout, improvements during World WarII cannot explain the tremendousincrease in productivity from 1929 to1941 . Recall that the United States

didn’t enter World War II until the lastmonth of 1941. Combined Army andNavy spending in 1940 and 1941 wasonly 3 .2 percent of cumulativeArmy/Navy spending from 1940 to1946. It’s true that the United Stateshad moved into war production beforeentering the war because FranklinRoosevelt was itching to help out hisally, Great Britain, and did so withLend-Lease. (Lend-Lease was a U.S.government program, begun in 1941,to violate U.S. neutrality by supplyinggoods, including weapons, to theBritish Empire and China.) But Fieldpoints out that even with a broadermeasure of spending that includesLend-Lease and the government’sDefense Plan Corporation, a subsidiaryof the Reconstruction FinanceCorporation, spending in 1940 and1941 was only five percent of thecumulative defense spending thatoccurred between 1940 and 1945.

Second, notes Field, productivitygrowth slowed during the war. Fieldestimates it at 1.29 percent per yearfrom 1941 to 1948. (His explanationfor why he goes three years beyond thewar is persuasive but complicated.)This was down from the earlier low-end estimate of 2.3 percent from 1929to 1941. The huge increases in outputwere due to more people beingemployed, not to large increases in pro-ductivity.

Finally, argues Field, the war effortdiverted attention from innovation forthe private market into innovation inproducing the instruments of war. Thiswas costly in two ways. First, much ofthe innovation was irrelevant to peace-time. Second, producers had to learnthe arcane rules of dealing with the fed-eral government. Field writes:


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94 Policy Review

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 one’s abil-

ity to produce large quantities of

ordnance quickly in an environ-

ment of cost-plus contracts, it is

scarcely surprising that the overall

rate of commercially relevant inno-

vative activity slowed down.

Field points out that there were fewtechnological improvements duringWorld War II that made the postwarpeacetime economy more productive.It’s almost the reverse. It was thetremendous increase in underlying pro-ductivity of the U.S. economy beforethe war that allowed the U.S. economyto be so productive during the war. Hewrites that “there was not a singlecombat aircraft produced during theSecond World War and seeing majorservice that was not already on thedrawing boards before the warbegan.”

One other myth Field dispels aboutWorld War II, probably one of the mostwidely-believed myths, even by econo-mists, is that World War II ended theGreat Depression. Field notes thatunemployment was falling rapidly in1941 and that the unemployment ratefor the last quarter of 1941 (the gov-ernment did not collect monthly databack then) was down to 6.3 percent.

I wish Field had discussed morewhat I called, in a study for theMercatus Center, “The U.S. PostwarMiracle.” During the war, Keynesianssuch as Paul Samuelson and GunnarMyrdal predicted another great depres-sion if the U.S. government demobi-

lized quickly. The U.S. government diddemobilize quickly and the UnitedStates enjoyed a boom in which theunemployment rate never went above 4percent.

Although many readers will findparts of the book too technical to fol-low, Field does have an ability to coin aphrase. He refers to Kenneth Arrow’sidea of the learning curve during WorldWar II as the view “that the economywas one large c-47 factory.” In head-ing off the idea that maybe depressionsare good for an economy because, asNietzsche said, that which doesn’t killyou makes you stronger, Field replies,“It’s just that sometimes it kills you.”He also points out, “With or withoutthe depression, Wallace Carotherswould have invented nylon.”

The one weak chapter inthis twelve-chapter book ison the financial crisis of

2007 to 2009. Whereas in most of therest of the book Field makes a tight,data-intensive case for his claims, inthis chapter he does not. The big ques-tion to which most readers wouldprobably want to know the answer is:Had George W. Bush not pushedthrough the Troubled Asset ReliefProgram, would the economy be in bet-ter or worse shape today than it is? Mygut feel as an economist is that theeconomy would be in better shape.Had Bush, contrary to the Senate’s will,not used the tarp funds to bail outGeneral Motors, then Obama wouldnot have had as much ease in continu-ing the bailout and inserting the federalgovernment into the auto industry.Then the adjustment in the auto indus-try would likely have happened morequickly. This is just one example.

Books

Other evidence for my gut feelcomes from the stock market. TheDow Jones Industrial Average, oneimportant indicator of economichealth, did decline by about five per-cent (from about 11,000 to about10,500) during the twenty minutes onSeptember 29, 2008, when it becameclear that the House of Representativeswould reject the bailout. This wouldsuggest that the bailout would havebeen good for the economy. But in theseven days following the second votefor the bailout, the one that was “suc-cessful,” the Dow fell from about10,500 to about 8,000 , a drop ofabout 24 percent. Certainly, if the2008 bailout was good for the econo-my, participants in the stock marketdidn’t think so.

As I said, I don’t know that thebailout was good for the economy: Istrongly suspect that it was bad. Butwhether I’m right or wrong, an econo-mist who wants to persuade those of uswho are undecided must make a case.Instead, Field simply makes assertions.In the introduction to his book, forexample, Field writes, “The UnitedStates was fortunate at this juncture[between 2007 and 2010] to have hada Federal Reserve chair (Ben Bernanke)and a chair of the President’s Councilof Economic Advisers (ChristinaRomer) who were both serious stu-dents of economic history and of thisperiod.”

Really? Why? It must be becauseField thinks Bernanke and Romeradvocated good policies that made theeconomy stronger than otherwise. ButRomer’s own research showed thatcountercyclical fiscal policy, which herboss, President Obama, implemented,was unlikely to be effective. As I wrote

in a January 7, 2009, Forbes.com arti-cle titled “Will the Real ChristinaRomer Please Stand Up?”:

The Romers’ research actually

undercuts the Keynesian approach

in a more fundamental way. They

find that tax cuts to offset a reces-

sion are ineffective, but their rea-

soning would also apply to govern-

ment 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 boss’s policies.

Furthermore, writes Field, “Massivemonetary and fiscal interventionsundertaken by the Federal Reserve andTreasury arrested what otherwise couldhave been a terrifying free fall.” Ofcourse, adding the word “could” doeshedge Field’s statement.

Just pages later, though, the hedge isgone. Field writes that “the only thingpreventing a cataclysm was massiveintervention by both the fiscal andmonetary authorities. All of this wasabundantly clear from the vantagepoint of 2010.”

Field also drops his careful method-ology in addressing George W. Bush’stax policy. Field writes that Bush’s2001 tax cuts “allowed disproportion-ate reductions in taxes to upper-incomehouseholds.” The author seems toimply disproportionately high, and heconfirmed in an e-mail that this is whathe means. In fact, though, for all theBush tax cuts (in 2001 , 2002 , and2003) combined, the percentage reduc-tion in taxes for upper-income house-holds was less than the percentagereduction for lower-income households.The second-lowest quintile, for exam-


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96 Policy Review

ple, had its taxes cut by 17.6 percentwhereas the highest quintile had itstaxes cut by about 11 percent. I don’thave data for the 2001 tax cut alone,which is what Field’s claim is about.But because the 2002 and 2003 taxcuts were aimed disproportionately athigh-income people, it follows that the2001 cut alone had to have been evenmore tilted to lower-income peoplethan the above percentages suggest.

Why do so many people, includingField, think differently about this impor-tant issue? My guess is that it’s becausethe media emphasized the absolute sizeof the tax cuts that higher-income peo-ple got. In a progressive tax system,with higher marginal tax rates for high-er incomes, a given percentage tax cutwill cut taxes of the people who pay alot in taxes much more than it cuts taxesfor people who pay only a little.

Field also calls the increase ininequality of income in the last quarterof the 20th century “redistribution.”It’s not. Most people in the UnitedStates, including most lower-incomepeople, were better off in 2000 than

they were in 1975, and most of themby a lot. To be sure, that is not evidenceenough against the claim of redistribu-tion; possibly they would have beeneven better off had not high-incomepeople taken, that is, redistributed,their income. But here’s what PaulKrugman wrote about that issue in1990:

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 that’s

just not a reasonable picture of

America in the 1980s. For one

thing, most of our very poor don’t

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 weaknessesin an otherwise very strong book.Alexander Field should be, and proba-bly is, proud of his accomplishment.

Books

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Amy B. Zegart is a senior fellow at the Hoover Institution and an a�liated faculty member at the Center for International Security and Cooperation, Stanford University. From 1999 to 2011, she was professor of public policy at UCLA’s Luskin School of Public A�airs. She has been featured in the National Journal as one of the ten most in�uential experts in intelligence reform.

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policy review - october & november 2011, no. 169

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