Renee and five of her friends went out trick or treating. Renee came back with 23 (!?) pounds of candy. But she and her friends cleaned up because there did not seem to be many kids out in Spring Valley in upper NW DC this year. Don't know why - beautiful night, clear but not cold at all, actually one of the most beautiful days this year. Well, quite the hunter-gatherer of high fructose corn syrup and sugar.
The American Society of International Law (ASIL) hosted a lunch discussion today in which Martin Scheinin, the Finnish human rights scholar, and UN HRC special rapporteur on counterterrorism and human rights, presented the recent findings of his mission to the United States. I'll post up the links later on. I was the commentator, and found it to be a useful discussion - I hope he did as well. ASIL has been doing an increasing number of these under its new executive director Elizabeth Andersen, and I think they are a successful and useful format for discussion. A number of old friends were there - Edwin Williamson, Roy Gutman, Cristina Cerna, Michael Noone, numbers of people from DOS - the audience had many good questions. I'll post something later on this post about the substance; I'm about to fall over asleep.
The canons of political correctness of France of 1830:
So long as you did not speak lightly of God, or of the clergy, or of the King, or of the men in power, or of the artists patronised by the court, or of anything established; so long as you did not say anything good of Berenger, or of the opposition press, or of Voltaire, or of Rousseau, or of anything that allowed itself the liberty of a little freedom of speech; so long, above all, as you did not talk politics, you could freely discuss anything you pleased.
There is no income of a hundred thousand crowns, no blue riband that can prevail against a drawing-room so constituted. The smallest living idea seemed an outrage. Despite good tone, perfect manners, the desire to be agreeable, boredom was written on every brow. the young men who came to pay their respects, afraid to speak of anythng that might lead to their being suspected of thinking, afraid to reveal some forbidden reading, became silent after a few elegantly phrased sentences on Rossini and the weather.
(The Red and the Black, Part II, Chapter 34, "The Hotel de La Mole.")
I got back last night from Guatemala, where I was attending the MDLF media forum and also a board meeting. I want publicly to thank Jose Ruben Zamora, editor of El Periodico newspaper, and a longtime client of MDLF, for the extraordinary kindnesses he and his staff showed to all the participants in the media forum, who came from around the world to discuss conditions of independent journalism.
The last night of the conference, El Periodico hosted a wonderful reception, concert, and dinner in Antigua. An excellent string quartet, the Guatemalan Contemporary Quartet, played for the guests. They did some 19th century Guatemalan music, some contemporary pieces by the cellist in the group, and an 18th century classical piece. It was lovely, and then they followed that up by an unusual film, with them playing the soundtrack on the film, but then accompanying the soundtrack with additional tracks live on stage. The film covered a number of highland Guatemalan scenes, places I have been in the past but haven't seen in many years - Sacatepequez, for example. That was followed by a terrific dinner, in which I had very interesting conversations with journalists from Bolivia and Columbia. And I am pleased to say that they complimented me on my Spanish! - not the pronunciation, to be sure, but my "excelencia de expresion." Quite so, I'm sure.
I came back with gifts for the girls. Black jade earrings for Jean-Marie, and a large selection of magazines and newspapers in Spanish to use with her classes - she teaches high school boys at St Alban's in DC, so I figured she couldn't go wrong with sports and sex - Maxim in Spanish. A necklace for Renee, but I had spent so much money on her birthday - Daddy compensation for missing her 15th birthday last week - that I thought I really shouldn't. (The vintage designer dress from 1960 and the 1972 onesie - well, it okay, she doesn't really need college - I understood all of a sudden exactly what it must be like to be a divorced Dad trying to dump material love on a teenage kid.) And coffee - vast quantities of Antigua coffee and coffee from Jose Ruben's coffee farm. Even I, coffee novice, could taste how low acid and sweet it is. Roasted at a little place in Antigua, it is great.
I think Peggy Noonan gets it right both on The New Republic's Scott Thomas scandal, at this incisive comment in the Wall Street Journal, here: http://www.opinionjournal.com/columnists/pnoonan/?id=110010780. As she says about the narrative TNR's editors chose uncritically to accept, it was precisely what you would expect if your view of war, the US military, etc., etc. was formed by Vietnam era movies. I didn't think very much about the diarist stories although a very longtime TNR subscriber - I doubt I got more than two sentences into them before deciding I wasn't very much interested in some writerly take on Iraq - like so many other people, for a long, long time I have had no idea what to think of the strategic situation in Iraq, just as a factual matter.
I could believe the NYT, but then I know, from the political subjects that I do know about, that the Times specializes in narrative reporting - better described as writing artful lawyers' briefs, in which crucial facts are left out and others deliberately shaded and colored in ways that shift the perception of the story - eg, its coverage of the Duke lacrosse case. Apart from the great John Burns, I simply don't take seriously Times' reporting on Iraq because my experience in many other areas is that the coverage is so agenda driven that you simply don't have confidence in it. There is no news that won't be painted a bad news if the Times wants it that way.
On the other hand, the cheerleading of the Bush administration from the very beginning has meant that I have had no confidence in its reporting, either.
I take seriously independent journalists in Iraq like Michael Yon - and if you don't send these brave freelancers money, ou should, because they represent something genuinely new in journalism, the citizen journalist blogger who does not simply analyze and comment on what other people have factually reported, but actually goes out there and covers the story and develops the new facts. But the reality is also that their perceptions are generally a ground level one, tactical and not always the strategic view. That is what it means for them to be able to offer actual facts on the ground, that's what makes them good. And in certain moments, the tactical view is the strategic view - that is, at this moment, you can determine whether the Petraeus strategy is working by looking to ground level retail indicators. But there are other situations - the death corridor, whatever it was called, back in the invasion itself, that was regarded by reporters embedded there as proof that the war was lost, whereas seen from the birdseye strategic situation, it was hell for those there but not a big deal strategically (as the generals said repeatedly to American reporters seeing, yet again, quagmire and Vietnam at every turn in the road but then, once completed, effortlessly dismissed as no big deal). It is also true with journalism generally that the safest position is cautious pessmism - wrongly predicting victory is seen as more foolish than wrongly predicting defeat, and if your narrative says that defeat is good, which is alas a largely unavoidable conclusion regarding the New York Times, then the reinforcement is overwhelming.
Anyway, that's why I didn't bother reading writerly accounts that smelled to me from a mile off as someone looking to do - well, Thomas said Hemingway, my reaction Oliver Stone - get a little literary mileage out of something that matters only with respect to the facts, the genuine facts on the ground. I'm not interested in fiction writers' accounts of the war, I'm not interested in Hollywood's accounts of the war - and that would be true even if they were pro-US, I'm interested in what is actually happening, thanks.
But Peggy Noonan does catch my reaction exactly. When I finally did pick up the magazine and read it, the account of the burned female soldier, I thought, well, first off, the number of female American soldiers scarred by IEDs in Iraq is not unlimited, it should not be hard for any editor to verify whether there even was such a person in the Middle East at that time. And, second, it seemed immediately beyond belief that someone who had been scarred in that way would still be in either Kuwait or Iraq - either they were being taken out to some hospital, or else they would be somewhere getting plastic surgery, etc. It didn't seem to me that the US was so desperate for soldiers that it would need to send someone already seriously scarred by an IED back into Iraq. If that's what occured to me after 10 seconds of reading, why didn't that occur to someone at TNR? Etc. Noonan captures the lack of thought among the editors, and why, exactly.
But much more important is what she has to say about the background of the new wave of journalists. Excerpted below. I'd add to that one thing.
The new wave of journalists and editors that Noonan describes have huge difficulty separating truth from narrative; moreover, their educational training has led them to believe that there is no principled difference. Noonan is kind enough to say that instead of reading Dostoevsky, they deconstructed him - but she is being generous; most of them, even from the elite schools, didn't read Dostoevsky or deconstruct him, but instead the hip, multiculturally correct contemporary canon. But in any case, the inability to separate out truth from narrative is a homologue to the definition of narcissism. Narcissism is not, as Jackson Lears movingly wrote in an obituary essay on Christopher Lasch (in, of all places, TNR!), a matter of self love as such. Narcissism is, rather, the inability to separate self from world - to see what is real and what is reflection in the contemporary hall of mirrors in this image-saturated society. At bottom, the inability to separate out truth from narrative is a symptom of narcissism. (At the media forum, where I am currently in Guatemala, I remarked to someone that for what it was worth, Edward Murrow was wrong when he called for a new kind of television to educate; television is about images and therefore about affect, not about thought and analysis.)
(Scott Thomas, by the way, does not fit Noonan's pattern precisely - he did not come from an elite school. He came from a midwestern state college of no special academic account. He was a young man eager to make a mark - in fiction, but since he couldn't tell the difference, why not call it reporting? He was an unscrupulous young man but also a very unsophisticated one - because only an unsophisticated provincial would dream of being a new Hemingway. Hemingway? Good lord.)
*** Excerpt:
I'll jump here, or lurch I suppose, to something I am concerned about that I think I am observing accurately. It has to do with what sometimes seems to me to be the limited lives that have been or are being lived by the rising generation of American professionals in the arts, journalism, academia and business. They have had good lives, happy lives, but there is a sense with some of them that they didn't so much live it as view it. That they learned too much from media and not enough from life's difficulties. That they saw much of what they know in a film or play and picked up all the memes and themes.
In terms of personal difficulties, they seem to have had less real-life experience, or rather different experiences, than their rougher predecessors. They grew up affluent in a city or suburb, cosseted in material terms, and generally directed toward academic and material success. Their lives seem to have been not crowded or fearful, but relatively peaceful, at least until September 2001, which was very hard.
But this new leadership class, those roughly 35 to 40, grew up in a time when media dominated all. They studied, they entered a top-tier college, and then on to Washington or New York or Los Angeles. But their knowledge, their experience, is necessarily circumscribed. Too much is abstract to them, or symbolic. The education establishment did them few favors. They didn't have to read Dostoevsky, they had to read critiques and deconstruction of Dostoevsky.
I'm not sure it's always good to grow up surrounded by stability, immersed in affluence, and having had it drummed into you that you are entitled to be a member of the next leadership class. To have this background in the modern era is to come from a ghetto, the luckiest ghetto in the world, a golden ghetto beyond whose walls it can be hard to see. There's much to be said for suffering, for being on the outside or the bottom, for having to have fought yourself up and through. It can leave you grounded. It can give you real knowledge not only of the world and of other men but of yourself. In some ways it can leave you less cynical. (Not everything comes down to money.) And in some ways it leaves you just cynical enough.
Journalistically, I was lucky enough to work at CBS News when it was still shaped by the influence of the Murrow boys. They knew and taught that "everyone is entitled to his own opinions"--and they had them--"but not his own facts." And I miss the rough old boys and girls of the front page, who'd greet FDR with "Snappy suit, Mr. President," who'd bribe the guard to tell them what the prisoner said on the way to the chair, and who were not rich and important but performed an extremely important social function.
They found out who, what, where, when, why. And they would have looked at the half-baked, overcooked junior Hemingway of Scott Thomas Beauchamp and said, "That sounds like a buncha hooey."
***
(And let me add one last quite different thought. This is to switch gears completely, but not completely, the young journalists of today reflect that lack of basic common sense most often in their inability to comprehend numbers. I will here grossly generalize, but I spend lots of time with journalists and this is one consistent impression I have. A certain basic math sense means, for example, to ask really basic questions about orders of magnitude when faced with data that requires interpretation and analysis. It might sound merely like a technical failing, but it's not. My sense of young journalists is that, with the exception of those that have deliberately gone the business journalism route (a good one), journalists become journalists today in part because they are scared of math and don't want to have to think that way. Strikingly, the almost entirely non-American journalists at this media forum have loads of that common sense - the environments in which they work, hostile governments, lots of hostile groups all around them, force them early on to a certain common sense in their journalism and, anyway, they almost all have had better math education than the Americans who go into journalism. But the kind of math we're talking about here is just common sense arithmetic - another way of asking the question, could that possibly be right, orders of common sense magnitude. To have a sense of arithmetic that leads to skeptical common sense is another way of saying truth over narrative - a highly prosaic one and one that Peggy Noonan's old style journalists wouldn't have even thought worth mentioning because it was built into the skeptical DNA. Whereas too many young journalists today prefer the narrative, follow the narrative in herds and packs because in herds and packs like safety, and so embark on careers of, well, what? Path dependency, I suppose you might call it.)
Must read article in the Sunday, October 28, 2007 Washington Post Outlook section by Matthew Waxman, formerly of the State Department, Defense Department, and NSC over the years of the Bush administration, and now a professor at Columbia Law School and my good friend and co-member of the Hoover Institution's new task force on national security and law. Here at the Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2007/10/26/AR2007102601761.html. (I'll have to fix the link later - this is the right URL, but for some reason I'm not able to embed the link.)
Matt offers a sober assessment of what can be considered for future detention policy for the United States. He sees a way forward to get beyond Guantanamo but, unlike the activist community and pretty much the whole academic community, understands perfectly well that there are people that the US government cannot and will not release, nor can it try them in regular criminal courts - and it does not matter whether it is a Republican or Democratic administration - moreover, the policy issues include not merely the "legacy" prisoners currently at Guantanamo, but the fact that the United States will detain people in the future that it will not release but willl not try in ordinary criminal courts. Matt is one of a handful of people - many of them on the Hoover task force, but rapidly expanding across many political and policy lines - trying to figure out something that represents the right balance between liberties and security. This is the kind of realistic, forward-looking thinking that is urgently needed now for figuring out what counterterrorism policy should look like in a new presidential administration. This is a highly, highly recommended article.
***
Excerpts:
President Bush has said publicly that he would like to see Guantanamo Bay closed, if he could do so without putting Americans in greater danger. He can, and he should. My experience advising former defense secretary Donald H. Rumsfeld and Secretary of State Condoleezza Rice on these issues has convinced me that there's a way out, but it will take some painful truth-telling to get there. For even if Guantanamo Bay could be defended in legal or moral terms, it still hurts us more than it helps us in battling al-Qaeda.
I'm not trying to challenge the improvised decision to create Guantanamo Bay's detention site in 2002. Rather, I want to challenge its continued operation in 2007. Fair-minded people can differ over whether the Bush administration was justified in sending suspected al-Qaeda fighters there immediately after Sept. 11, 2001, but as time wears on, it's almost impossible to argue that the prison is keeping us safer.
To solve our Gitmo problem, we need to understand it better. Unfortunately, amid all the rhetorical heat, Guantanamo Bay's defenders and detractors have gotten carried away. For example, the soothing notion among some critics that everyone at the prison is an innocent bystander erroneously swept up in post-9/11 dragnets is a fantasy. But so is the Bush administration's dogged insistence that all the detainees there are the "worst of the worst." Some of them should never have been there (including several supposed jihadists turned over for bounty based on assertions that later proved flimsy), and such imprisonments have had tragic and dangerous consequences.
Likewise, the administration's critics are wrong to assert that we no longer gain valuable intelligence at Guantanamo Bay. But we should not exaggerate the value of the current information-gathering there either, which often comes from detainees who haven't been involved in terrorist plotting for years now. And while the improved general conditions I repeatedly saw are humane by the standards of U.S. and European prisons, Guantanamo Bay's defenders hurt their own credibility when they refuse to acknowledge the well-documented abuse that has occurred there.
***
What to do? It's easy to demand that the prison be closed, but it's hard to figure out what to do with the most dangerous detainees there, such as Khalid Sheik Mohammed, the mastermind of the 9/11 plot. And even if we agree that we shouldn't use Guantanamo Bay as a long-term detention site, we still need to work out what sort of system could hold large numbers of terrorist operatives rolled up in ongoing or future campaigns against al-Qaeda.
Simply returning all the detainees to their home countries (such as Yemen, Syria, Egypt and Pakistan) is no answer. Some of these nations won't take them; some would probably mistreat them; others might even release dangerous militants.
Prosecuting the Gitmo detainees for crimes in U.S. courts isn't a panacea either. Criminal prosecutions should be carried out whenever possible, but the evidence against a particular suspect often can't be presented in open civilian court without compromising intelligence sources and methods. Or the evidence may not be admissible under U.S. criminal law rules.
So the best way to close Guantanamo Bay lies somewhere in between: transferring many of the detainees to their home countries, sending some to third countries and bringing the remainder -- including those who would be prosecuted for war crimes -- to secure facilities in the United States. They would be held in military facilities, like those that already kept suspected American terrorists such as Jose Padilla, or in ultra-secure federal prisons such as the one that holds Ramzi Yousef, the architect of the 1993 World Trade Center bombing.
***
Still, Guantanamo Bay is only the immediate manifestation of a much larger problem. For the foreseeable future, the United States and its partners will continue to capture suspected operatives of al-Qaeda and other terrorist groups. We need a durable, long-term framework for handling detainees -- one that lets us hold the most dangerous individuals and collect intelligence from them (including through lawful interrogation), but also (unlike Guantanamo Bay) has rules and procedures that are politically, legally and diplomatically sustainable. Neither U.S. criminal law nor the international laws of war were built to deal with networks of terrorists stretching across continents and bent on appalling carnage. So the United States, along with its closest democratic allies, ought to craft rules that are.
To get there, we should move beyond the debate between those who say that only traditional habeas corpus rights to a fair hearing can sort out these cases and those who say that noncitizen enemy fighters captured abroad in wartime have never been entitled to their day in court. We'd all be better off forging a broad agreement about the minimum acceptable conditions for any long-term detention process, firmly within the rule of law. These should include periodic reviews by an independent judge of the factual bases for a detention, under clearly legislated standards, and meaningful chances to challenge those premises with the assistance of lawyers. It's almost impossible to perform judicial review in combat zones, so we may have to make careful exemptions there. But any system without these features will lack legitimacy at home and abroad.
Both of these proposals -- shutting Guantanamo Bay and establishing robust judicial review of detentions -- carry risks. But those risks should kick-start the discussion, not end it. Detention policy is not about eliminating dangers, but about balancing and managing competing dangers. And keeping Gitmo open -- sapping U.S. prestige, alienating our allies and handing al-Qaeda a propaganda tool -- carries downsides, too ...
The Media Development Loan Fund, whose board I chair, holds every other year a media forum, where our clients and some other invitees, including some funder organizations, some media people, etc., gather to discuss the conditions and directions and challenges for independent media around the world. This year we decided to hold it in Guatemala - because in part we would like to have a better and more visible presence in Latin America, and partly because our client in Guatemala, El Periodico newspaper, faces many political pressures and we thought it might contribute a little bit if it were known that it has friends outside of Guatemala. The country is undergoing enormous pressures from exploding common crime, and has a presidential election next week in which the billboards for one party say, "Confronting violence intelligently" and for the other party say, "Mano dura." The Salvardoran journalists who came here for the meeting told me that after having been carjacked on the Pan American highway last year, they thought they were lucky to be alive and preferred to take the 4 hour bus rather than the 2 1/2 hour car ride - if the highway gangs see Salvadoran license plates, they know there must be some money, they said. But although Guatemala is not easy to get to from Asia, Africa, or much of Europe, we have people here from all over. It is a humbling experience to be with people who manage to keep a media business going despite such enormous pressures from governments, gangs, mafia, competition, you name it.
The conference is being held in the safe and secure tourist town, Antigua, not far outside the capital, a beautiful mountain town in the shadow of the volcano. It is really lovely, always has been. We are staying at the Hotel Casa Santo Domingo, a former convent turned hotel. It is much more beautiful than one could hope for, really lovely. My wife Jean-Marie, who spent many years here in Guatemala, shook her head when I mentioned the hotel and said, well, it's not so much a business hotel as a honeymoon hotel. Well, that's fine by me, it has internet in the rooms, and it is lovely - wish she and Renee were here.
Renee turns 15 tomorrow (!), and her daddy is not at home for her birthday, for the first time in I can't remember -maybe always. I hope she has a lovely birthday, notwithstanding the biology test coming on top of her three other tests this week. I got her some gifts that I hope she likes - you might say that daddy overcompensated and decided to shower her with presents. For the first time, I understand what a divorced father must feel like who buys his daughter to make up for feeling guilty for not being there.
In return for canceling the midterm, I invited (ordered) my students to post something to the class discussion board showing they understood the concept of moral hazard. I suggested that Moral Hazard might be a rather good name for a Bond girl, and invited responses on how a 007 movie might do that. This is one student's response:
Since I consider Vesper Lynd to be an ugly Bond girl name, I am already inclined to vote for Moral Hazard as the next Bond girl name.
However, if one were to consider James Bond as the preeminent insurance provider for the British Government, perhaps the program’s name should be changed from MI6 to MH6 since the British Government may be more inclined to do reckless things, say, I don't know, like for example, putting millions of dollars at stake in a poker game in the hopes that Bond (with full information at his disposal) will not only win it back, but act appropriately to catch the villain in his save-the-day-wilst-sipping-martinis-without-breaking-a-sweat-fashion that we all know and love.
Then again, the British Government’s proclivity to provide money power and an obscene amount of weaponry to 007s may lead to questionable, even morally hazardous financial and ethical behavior by Bond, who doesn’t have to fully pay for the consequences of his actions. (See Casino Royale – scene where Bond loses millions of government dollars to a creepy-weepy-eyed-villain because of ego, testosterone, and unmediated arrogance). But I digress.
Yes, this Bond movie would have greatly benefited from the wittiness and subtle irony of a Bond Girl named Moral Hazard. A Bond girl who had sole control over the funds to be used in a high stakes poker game, who had sole access to the account number to which the funds would be returned, who then went solo to the bank in romantic Venice to “transfer the funds” back to the British Government. Hrmm. Let’s see.
Vespa – Let’s call her Ms. Hazard - is in a financial bind. One can characterize her as a borrower. She needs money to invest in the return of her captured beau. She sees an opportunity to get a boatload of money which is essentially at her disposal. Ms. Moral hazard is faced with a choice and ultimately may not act prudently when she decides to invest the funds recklessly in this risky albeit romantically admirable gesture, knowing that she will not have to bear full losses of the investment if it turns out badly. (Unless you consider paying with her life the equivalent of normally accepted currency). (See Casino Royale – scene where Bond girl hands over millions of dollars to ‘bad guys’).
In sum, Moral Hazard arises through the British government insulating Bond from risk, through Bond insulating the British Government from risk, and through Moral Hazard herself, using and abusing an unchecked financial system at her disposal to wreak havoc on a man on a mission.
***
Another student's response, re Casino Royale:
There once was a man: Ian Fleming
Whose thrillers were always best selling.
James Bond loves to bet
And bought sub-prime debt
"The market has tanked!" He is yelling.
Now the Fed needs to give it a whirl
With a woman to make his toes curl.
Buy a put on Bernanke,
He loves Hanky Panky
Moral Hazard's the name of his bond girl.
***
And then this:
In Casino Royal, the Bond girl, Vesper actually did face a moral hazard. After James lost the $10m in poker to Mr. Bleeding Eye, she had the opportunity to buy in another $5m. On the train she reminded him that if he lost, the government would, in effect, be funding international terrorism. She had a choice to make whether to provide addition funds after 007 lost. She said NO. It was the good Yankee CIA agent who fronted the money for James to stay in the game, not Vesper. So it may be an apt comparison for what the British and the Americans do when faced with such a moral hazard.
If you are a chocolate fanatic like me, then this is a must read article in the New Yorker. Abstract is here, it is not available online apparently.
Schilling was still trying to make each of his chocolate bars by hand in 2001, and how his family got involved in the business. In 2002, the company made its first million in sales; by the end of 2003, sales had tripled.
Then Schilling had a “visitation” from Xochiquetzal, a Mesoamerican goddess of cacao, in a waking dream; he broke up with Holderman, saying he “couldn’t be unfaithful.”
Last year, on October 19th, Schilling had another vision that he would try to buy the land of the ruined tropics and replant it with cacao. That night, he sold his company to Hershey’s for $17 million. He spent the next month defending himself from charges made by organic colleagues that he was a “sellout.”
I finished reading today Malise Ruthven's excellent review essay in the New York Review of Books on books on Islam, particularly Islam and war and just war. Very fine essay. I have read one of the books in his review, Olivier Roy's new book, Secularism Confronts Islam, and thought it also well worth reading, although I think Roy uses "multiculturalism" in a way that is not exactly what it means in American or UK ideology (more on that later). I look forward especially to reading the books on Islam and war. The review essay itself is elegant as Ruthven's essays always are. Highly recommended. Here at the NYRB.
(Update. How to embarrass yourself! I've been reading Ruthven's essays in the TLS for years and never realized Malise is a man's name. Thank you Scott in the comments, and I've corrected it above.)
In response to my required posting to the class blog on moral hazard in lieu of the international business transactions midterm, one of my very esteemed students - a clear standout, and I'll identify him if he says it's okay - posted the following limerick:
There once was a banker named Lazard
Whose sale of houses became a bit laggard
Bernanke said, "Great!
I'll lower the rate!"
And created a big Moral Hazard.
Well. Automatic A in the class or not? I really do have some remarkable law students. He has since added two more:
There once was a man: Ian Fleming
Whose thrillers were always best selling.
James Bond loves to bet
And bought sub-prime debt
"The market has tanked!" He is yelling.
Now the Fed needs to give it a whirl
With a woman to make his toes curl.
Buy a put on Bernanke,
He loves Hanky Panky
Moral Hazard's the name of his bond girl.
Professor Erik Jensen, Case Western, has posted a much discussed essay on SSRN, here, addressing that vital question of the law professor dress code or dress non-code. It has elicited some comment among the law professoriat, including this rather decisive thumbs-down from Professor Stephen Bainbridge, UCLA, here, and a more agnostic referral over to the apparently even worse dressing among philosophers by Professor Larry Solum, Illinois, here. And Althouse, here.
Well. I am afraid that I live a few blocks from my law school, often ride my bike, almost always walk back and forth between my campus and office a couple of times each day ... and when I'm not teaching class, I do indeed frequently show up in shorts and a T-shirt. In the classroom, I usually wear nice denim and a button down shirt or a polo shirt. I have tried experimenting this year with a sports coat to see if the students are somehow more respectful of my age and experience - well, they are still basically surfing the internet, so answer is no. My dean once told me years ago, only partly tongue in cheek, that I had singlehandedly lowered dress standards at the law school. It is often hot and muggy in DC - today it is over 80 degrees on October 22, though the humidity is low - especially if you grew up with the humidities on the West Coast that are currently contributing to the burn-down of southern California, and rather than scruffy, I regard myself as environmentally correct by walking and biking to school. So there. Of course, even if I didn't have environmental virtue to fall back on, I'm sure I would do exactly the same thing anyway.
But as to the question of neckties ... well, I was reminded of this passage from The Red and the Black. Julien has been on a secret mission for his employer, the Marquis de La Mole, to London, and is on his way back via Strasbourg, when he runs into his old friend, the Russian Prince Korasoff - I will post bits of their charming conversation over time, but for the moment, a special midweek Stendhal post - per neckties, which began their sartorial existence as cravats:
"Come into this shop," the Prince said, "look at that charming black cravat; you would say it was made by John Anderson of Burlington Street; do me the pleasure of buying it, and throwing right away that dreadful black rope which you have round your neck."
***
The Russians imitate French ways, but always at a distance of fifty years. They have now reached the days of Louis XV.
(The Red and the Black, part II, Chapter 54, Strasbourg.)
(The last quoted bit about the Russians is, naturally, directed at the Volokhs - all of them! Even the ungenetically-linked co-Conspirators!)
ps. I fully understand Althouse's and Jensen's Tom Wolfe description:
[H]e had worn a plaid cotton shirt and pants -- nothing remarkable about that. The shirt had had long sleeves, and the pants had been long pants. But this morning he had on a short-sleeved shirt that showed too much of his skinny, hairy arms, and denim shorts that showed too much of this gnarly, hairy legs. He looked for all the world like a seven-year-old who at the touch of a wand had become old, tall, bald on top, and hairy everywhere else, an ossified seven-year-old...
Quite right and likely applies to me, ossified seven year old. And yet, when it comes to some level of comfort ... I just can't seem to much care. Probably I have a certain circuit loose - my older brother the neuropsychiatrist points out that a sign of senility and dementia, and depression, is lack of attention to personal appearance, a loss of vital interaction with the world and an awareness of how the world sees you. But the fact is, I was never able to write a comprehensible word in a suit, back in law practice - all of it waited, or a whole lot of it waited, until I got home and was able to change into something comfortable and get out of the suit and actually write. I have no idea why.
Althouse mentions comfort in a suit. I pulled down Hollander's two superb books on fashion, Seeing Through Clothes and Sex and Suits. Hollander talks about how suits look great and are comfortable and all that. Hmm. Possibly if you not an overweight middle age guy with a paunchy stomach. They do indeed make you look better than a lot of other clothing, true. But I don't find them comfortable.
However, more interesting to me is that suits, and semi formal, uniform clothing for men homogenize in a different way - they make younger men look older and older men look younger. They equalize the underdevelopment of youth and the coming decrepitude of age, in each case by covering them up with the same standard uniform, and therefore convey a certain equality of power across generations.
Watching the decline of shares in the New York Times company raises, for me along with many other observers, no doubt, a question as to how low the shares should go before becoming undervalued and a bargain. Lacking voting rights, how much should they be worth? The market has pretty clearly judged that the long-term bargain of American newspaper families - you don't have voting rights, but we will run the business side of the paper as if you did, and exercise the voting rights only for purposes of maintaining editorial control - is dead at the Times and that the family is fiscally incompentent, fiscally imprudent, and rapacious at the expense of shareholders. All that in the context of the deep crisis of the business model of American newspapers. The question is, is there any level at which the shares become worth holding?
Another way of putting that question is whether there is any alignment of interest between family shareholders, or some important part of them, and nonvoting public shareholders. Or whether the cost of capital becomes sufficiently high that some accommodation with public shareholders must be made. Are there any scenarios for actually taking the company private, and would those scenarios work to the benefit of someone who bought in late, and at what price?
Heck if I know. Sorry if you read this post thinking I would say something about that by way of an answer to my question. But I would be very curious about what sophisticated media market observers think.
My French friend, who doubtless would prefer not to be named, finds the coverage of France by the New York Times insipid and infuriating. "Does the Times think we are children?" he asked me (I paraphrase from memory) back at the time of the election. "America's leading newspaper seems unaware there are serious issues of economics, politics, state policy, and all its Paris correspondent thinks about is making cliched comparisons between France and the United States about women, divorce, affairs by politicians. Does she know anything else? New York liberals think we are Disneyland. At least American conservatives want to talk about real things."
I was flattered that the "conservatives" he meant included me. I am highly francophilic, although I can't speak French - I have taken enough classes in order to be able to read Stendhal, Char, Cendrars, and Camus in the original with a dictionary, but that's more or less it - and this friend tells me that I am not so much a conservative as the American cognate of a center-right Gaullist, which is also highly flattering and in its way very astute. He describes himself as a center-left Gaullist - but what matters, he says, is the Gaullist part. French Gaullists and American Gaullists clash, he says, because what they share is that neither one is in the least bit apologetic for speaking for the interests of his country and, more importantly, its honor. He adds, still annoyed, that the "best way America and France could immediately improve relations would be for the Times to replace Elaine Sciolino with someone who understood more finance and less fashion." Banish her, he said, to where she really belongs, in the "Style section and Travel."
I doubt he has yet seen today's Week in Review in the Times, in which Sciolino has a major front page story on - the reform of the French economy? Non. The impending strike and its consequences? Non. Olivier Roy's new book on Islam and French secularism? Non. It is, instead, yet more cultural trivialities about Sarkozy and divorce - always the same shtick - the sophistication of the French versus the vulgarity and prudishness of the Americans. "L'Amour Has Little to Do With l'Etat." We might add that "L'Times's Coverage Has Little to Do with L'Real Issues of France But That L'Times Doesn't Seem to L'Notice or L'Care." The justification at the offices of the Times, I suppose, is that it has calculated, probably correctly, that this blather is what its Manhattan readership, and its cognates across American cities, want to read over Sunday brunch.
So when I quote Stendhal in the post below, "I crave leave to slander France," well, it's not me I'm talking about. I rarely jump onto the criticize-the-Times bandwagon; I have many close friends there, now and in the past (and, anyway, at some point I will think its stock price, even sans voting rights, will be low enough to warrant buying). When the Times wants to do something serious on Western Europe, it can always call on Christopher Caldwell or David Rieff, over at the NYT Magazine. But I thought my French friend should have some voice on what he regards as the thoughtless liberal American slander of France.
(Thanks, Glenn, for the Instalanche and welcome Instapunditeers!)
(ps. Continuing the Times's preference for trivialities regarding France, today's Week in Review, Sunday, November 4, 2007, has an article by someone or other on names of children in France. It mentions immigration issues and names, and tries to glue on something of weighty social significance of class and identity, but as the article itself says, there is a "lighter side" to French baby names, and the essay gives a good thousand words to it.)
(From On Love, Chapter 42.)
I crave leave to slander France a little more.
(On my reason for this quotation, being in fact highly francophilic myself, see the above post.)
As I have mentioned occasionally on this blog, I serve as the board chair of the Media Development Loan Fund, a nonprofit private equity fund that supports independent media around the world. We've been around for a little more than a decade, and starting from zero, we now have a portfolio of about $50 million. We have assisted newspapers, radio stations, TV stations, and internet news operations in places ranging from Serbia to Malaysia to Guatemala. More information at MDLF. I have long known that MDLF is one of the cutting edge venture philanthropy organizations in the world, the coolest of the cool. I am delighted to see that others are starting to notice, too, including being named as one of three finalists in this prestigious New York Executive Council competition:
***
MDLF has been selected as one of three Finalists for the Executive Council of New York's "Ten Award" for Best Non-Profit, apparently out of hundreds of nominees. The winner will be announced at the Ten Awards Gala to be held November 5 at Cipriani Wall Street, a famed New York banquet hall in the former NewYork Stock Exchange. The keynote speakers will be former Treasury SecretaryPaul O'Neill and Donny Deutsch, Chairman of the Deutsch Inc. advertising agency and host of a show on CNBC. The New York Ten Awards are billed as "the Academy awards of New York Business." Its goal is "to act as an annual milestone highlighting extraordinary leadership and innovation in the New York business community.
The Ten Awards is an annual selection of ten individuals in the greater NewYork business community who lead national and multi-national companies whohave, through their innovation, significantly impacted their organization and industry." One award is for Best Non-Profit and the remaining 9 awards are all for commercial business leaders. The Non-Profit Award is "presented by Saatchi & Saatchi." The judges for the awards include journalists from the Financial Times, Institutional Investor, Crain's and The Deal.
It is expected that 500 business leaders will attend the gala on November 5, where the winners will be announced. They represent "the executive teams of many of the largest organizations in New York, as well as the new and emerging leaders of the city." There will also be a special "Ten Awards NASDAQ Market Closing" with the winners & keynote speaker. Sponsors of the Ten Awards include Accenture, American Express, AT&T, Business Week, Cushman & Wakefield, EDS, Ernst & Young, Flexjet, Fortune, Google, IBM, Loews Hotels, Marsh, Microsoft, NASDAQ, Philips, The Ritz-Carlton Club, JetBlue, Sentient Jet, SoftBank, Sprint, TIME, UPS, and Zagat Survey.
More information can be found at: http://www.execcouncil.org/TenAwards/2007/index.html
(I sometimes write capsule reviews - really short, just the facts ma'am summaries - of new books for specialist and technical journals. This is the early draft of one - it's still too long, needs to be down to about 700 words - but thought I would post up this draft review of Judge Richard Posner's trilogy of books on counterterrorism, written for a Hoover Institution public policy series published by Rowman & Littlefield. I may make some more changes on this here.)
***
Richard A. Posner
Preventing Surprise Attacks:
Intelligence Reform in the Wake of 9/11
(Rowman and Littlefield 2005)
Uncertain Shield:
The U.S. Intelligence System in the Throes of Reform
(Rowman and Littlefield 2006)
Countering Terrorism:
Blurred Focus, Halting Steps
(Rowman and Littlefield 2007)
Richard A. Posner is perhaps the best-known and unquestionably the academically best-regarded judge in the United States who is not already a justice of the US Supreme Court. Leader exponent of the law and economics movement at the University of Chicago before joining the bench, he is a brilliant, wide-ranging jurist-academic who, after 9/11, turned his attention to counterterrorism. Between 2005-7, he produced three short books in a policy series from the Hoover Institution (on whose Task Force on National Security and Law Posner and I both serve) devoted to the problems of bureaucratic reform of US counterterrorism agencies. On evidence of this triptych, Posner’s pragmatic, economics-driven instrumentalism provides an astute lens by which to examine bureaucracies and institutions of domestic intelligence from within, focusing on their incentives and disincentives to undertake reform. The books are technically detailed, especially in the notes, yet are readable across the fields of security studies, political science, economics, law, and organizational theory. This is policy rather than academic literature; the purpose is entirely practical and instrumental, and the books’ audience is policymakers, government officials, legislators, and the analysts, academics, and others who advise them on how to improve US government counterterrorism programs. The focus is limited to counterterrorism and US domestic intelligence in particular.
The first book, Preventing Surprise Attacks, analyzes the Report of the 9/11 Commission and the Intelligence Reform Act of 2004 that resulted from it. Posner examines the analysis that led to the Commission’s conclusions, set against a brief but powerful historical, strategic, and comparative review of successful and unsuccessful surprise attacks, including Pearl Harbor, the Tet offensive, and the Yom Kippur war. He concludes that successful surprise attacks “follow a tried-and-true pattern, one that a reorganization of our intelligence system is unlikely to be able to disrupt.” (PSA, p. 13).
What is that pattern? Posner identifies characteristics to which surprise attacks generally have a family resemblance:
For some student responses to the post below, see here.
I wound up canceling my midterms in both corporate finance and international business transactions - idiotic problems getting the relevant book in the bookstore and other silly stuff. In lieu of the midterm, however, I informed the two classes that I wanted them to post to the class discussion board a response to one of the following questions:
1. By canceling the midterm, have I created moral hazard or not? Explain, in relation to this class, future classes, and the final exam.
2. I have occasionally expressed the view, after seeing the last Bond movie, Casino Royale, that "Moral Hazard" would be a great name for a Bond Girl. Regardless of what you think of that idea, can you construct a Bond plot in which Moral Hazard is not just cute flirtation, but becomes a true pun by also having a financial meaning within the story? Tell me the proposed Bond movie plot.
3. We have discussed in class the so-called Greenspan put and the so called Bernanke put - the moral hazard situation created by figuring out that the Fed will take away your risks at the last moment and insure you against losses - you are able to "put" your risks to the Fed. Very well. My midterm has a very special grading mechanism - it is graded, but with the following conditions.
Because it is a finance terminology midterm, using multiple choice questions to test finance vocabulary questions taken from the finance dictionary and basic business concepts taken from the Hamilton Business Basics book, designed to induce students who didn't study business or economics to learn about these subjects in a "safe space," performance on the midterm can help you but cannot hurt you in the final grade. However, it only helps you at the lower end of the grade scale - it will raise your C to a B- or even a B, but it will not raise your B+ to an A- or an A. It is an insurance policy to give you confidence that you won't clobber your GPA in a class in which you are not on an even playing field with students who studied this subject as undergrads.
(This is hugely important given grade compression/inflation at law school - a single B+ may be enough to knock you out of the top 15%, for example, and so induces extraordinarily risk averse behavior among law students. Separate topic of discussion, but quite important in understanding law student behavior these days.)
Query: given that I have canceled the midterm but, out of consideration for those students who might actually have studied for it by now, I am giving full credit to everyone for it - ie, giving the benefit of this insurance policy. Could this be described, on analogy to the Fed, as the "Anderson put"? Why or why not?
(Update, October 22. Two thoughts from the responses my students have so far given me. The first is that the students tend to think of moral hazard as resulting in irrational behavior - they don't seem to understand that the point of moral hazard is that it shifts the margin for rational behavior outwards to encompass stuff that otherwise would have been irrational but now is not. The second is that the best response anyone has given to the question of whether my canceling the midterm has resulted in moral hazard - and given that I said that posting to the discussion board was mandatory in lieu of the midterm - was the student who said, Professor Anderson likely won't know whether he has created moral hazard or not, because the best evidence that he has created moral hazard will be the students who, notwithstanding that he said posting was mandatory, figure it's really not and don't bother to post at all. The proof of moral hazard will be the students who figure that there are no mandatory midterm requirements anymore and hence little disincentive to not posting. Hmm.)
I feel like going to bed. It's past eleven pm, on a Wednesday night, I have to teach classes tomorrow morning, and anyway, I'm tired. But I am sitting here still working away because my kid is still slaving away down at her desk in the basement. I feel like there's something wrong with my quitting work before she does. Especially when she gets up earlier than I do. Call it my expression of solidarity. Actually, it's just guilt. Should I feel guilty about knocking off before she does?
Oh well, it has enabled me to make much more progress on my UN-US relations manuscript. And I'm about a thousand words into a short, just-the-facts review of Judge Posner's three books for Rowman and Littlefield on counterterrorism - I'm going to see if the Journal of Terrorism and Political Violence would like to run it at 1200 words.
And here's the current draft table of contents for my very short UN essay book (25-30,000 words) in the same Rowman and Littlefield series as Judge Posner's (all very much subject to revision, as it's very possible I might change my mind about this whole structure and do something more conventional) (also, if someone could tell me the Latin for perpetual immobility, that would be useful):
Where I just spent, um, 160 dollars on books. Most of them were supersale books, ok, ok, ok, ok, ok, ok. Now I am sitting in the coffeeshop, looking around at my fellow aging boomers, on our laptops, feeling very coffeehouse like. Anyone with any sense and the functional hips and knees would be outside on a bike on a day as nice as this. We feel so gentle, genteel, birkesnstoccky and ... old. We're all people, one way or another, in the "helping professions." We're practicing for our French class in one corner, and drafting a document for the senior nursing staff of the nursing facility, describing how we're going to reduce falls and mistaken meds rates, in another. We're virtuous and we drink expensive coffee, dress schlumpy and badly, but in an understated way. I've fallen into a David Brooks' comic sociology! Upstairs in the bookstore, the Utne Reader (God, it still exists?!) had a cover article on how baby boomers, as elders, can save the world ... again! I myself wasn't aware we had saved it the first time around.
I came to pick up some books for my kid's 15th birthday at the end of the month. I'm not quite sure why - her old school, by dint of so much busywork due the next morning, pretty much drove out of her any desire to read anything not absolutely required. She doesn't read, she watches Buffy the Vampire Slayer - my goodness, how we've fallen from a family that for many years really didn't watch TV or DVDs to one that can't get by without them; and, truth, truth, truth, I'm happy to accompany her, because reading is even less social with your offspring than watching Buffy. But she does tend to read teen girl angst novels once in a while, so I thought I'd get her a novel reviewed in the New York Times, Jenny Downham's Before I Die. Sixteen year old girl dying of leukemia, review said it was pretty funny, and even if it's not, it should have the requisite adolescent girl angst. It could be good. Anyway, it's teen rather than adult fiction, so can't be that demanding a read. Naturally it wasn't yet in bookstores, so I overcompensated and bought things for ... me!
Gregory Clark's A Farewell to Alms; Bjorn Lomborg's Cool It; Gary Taubes' Good Calories, Bad Calories, Olivier Roy's new book on Islam in Europe, and so much more!
Julien was now a dandy and understood the art of life in Paris. He greeted Mademoiselle de La Mole with perfect coolness. He appeared to remember nothing of the time when she asked him so gaily to tell her all about his way of falling gracefully from his horse.
Mademoiselle de La Mole found him taller and paler. There was no longer anything provincial about his figure or his attire; not so with his conversation: this was still perceptibly too serious, too positive. In spite of these sober qualities, and thanks to his pride, it conveyed no sense of inferiority; one felt merely that he still regarded too many things as important. But one saw that he was a man who would stand by his word.
"He is wanting in lightness of touch, but not in intelligence," Mademoiselle de La Mole said to her father, as she teased him over the Cross he had given Julien. "My brother has been asking you for it for the last eighteen months, and he is a La Mole!"
"Yes; but Julien has novelty. That has never been the case with the La Mole you mention."
(The Red and the Black, chapter 38, "What is the decoration that confers distinction?")
I have been going round and round on it for days, finally had a day with few other commitments, got up at 6 am and stayed at the computer at it, breaking for a meeting at school, then back again and just finished the draft at 10 pm. It has many problems, but the biggest problem is that it is 5,000 words where it can only be, max, 3000 and preferably 2500. Normally I would throw myself onto my editor and ask him to zap it, but he has some family things going on, and I have decided that blogging tends to make my writing weak and lazy - undisciplined - both in the sense of writing short little unargued blips, and in the sense of writing too long and not editing down. So I am going to do it myself. Just not tonight.
(Update. So, I have cut it down to just over 3500 words - not short enough yet, but I have to say it is a much stronger piece for the cutting. I have left in a couple of sentences of baroque complexity that would probably seem way over the top to most readers, but that's a deliberately aesthetic decision, not just lack of discipline. Maybe. I will rework it some more, cut it some more, and send it on Sunday night.)
I have been reading, albeit not too attentively, the discussion on the legacy of the German law theorist Hans Kelsen at Larry Solum's legal theory blog and the links there to Brian Leiter and Michael Green. I am no Kelsen expert; once upon a time, when my German reading skills were much better, I read some bits of him, and back as a philosophy student, I read quite a lot of Kelsen in translation - some of my professors had connections to him at Berkeley (Larry and I were at UCLA). Later on, while involved with the critical theory journal Telos in the 1980s, I had numbers of long discussions that referred to Kelsen and the European literature that arose out of his stuff. And Charles Fried at Harvard had some very interesting comments on Kelsen in the philosophy of law course he gave in the mid 1980s. I agree with Larry that Kelsen can be read in translation, and I also agree with Larry, for whatever it is worth, that his neo-Kantian commitments require pretty heroic assumptions to make it all work. That said, and not being a professional philosopher or a jurisprudentialist, I have found, in my own comparative work, that it is pretty hard to understand where important parts of the mind-set of European law comes from without understanding Kelsen. I wouldn't suggest that it is actually derived from Kelsen, although parts surely are, but that the approach that Kelsen brought to law are very much present in the fundamental structure of the Continental and especially, of course, German approach to law. That seems to me true, for example, when reading this very fine article on German-American comparativism, that Larry also cites in another post. Whatever might or might not be true of Kelsen's work as a jurisprudential project, there is an intellectual history reason to read him, a matter of comparative intellectual history in law. I'm not sure how much that urges one to read of Kelsen, however.
Benjamin Wittes, in his outstanding Policy Review article on counterterrorism and law, here, begins by saying that if you are serious - serious, mind you, not just someone reciting a verbal formula - about counterterrorism, you have to accept tradeoffs of security and liberties. And if you are a civil libertarian who does not, well, congratulations on the purity of your principles, but this article and national policy really can't engage with you.
Jack Goldsmith's The Terror Presidency starts from a somewhat similar assumption - not saying that his book won't engage with you, but beginning with the assumption that people will instinctively understand and empathize with the position of national leaders who are indeed concerned for constitutional liberties and order, but must grapple from day to day with threat assessments, daily intelligence briefings offering parades of possible but uncertain horribles, and an enormous sense of responsibility to ensure that our national, state, and local governments do not back into the complacency of the years leading up to 9-11. To make sure, as Bush told Ashcroft, that this never happens again, period.
What The Terror Presidency does not address - it mentions, but does not really answer - is the increasingly common view among American (and other global) elites that the United States has elevated the threat from terrorism far above its actual value. Jack mentions James Fallows and others who remark that the automobile death rate in the US is something like 40,000 annually, so what's the big deal about terrorism? The Terror Presidency remarks on that view toward the end of the book, and notes that as Americans generally become more complacent about terrorism - ironically and dangerously, free to become individually complacent because they believe that government is not being complacent - this purely pragmatic, by the numbers argument becomes more and more conventional wisdom among elites. But the background assumption of The Terror Presidency is that the book's readers will understand and think it right that American officials will be in a "harrowing" position of seeking ways under incomplete information for keeping America safe, and that this inevitably result in actions based around false positives.
Like Ben's article, if you don't share that assumption - either on the Kantian purist rights argument that, though the heavens shall fall, etc., no tradeoffs, or on the by the numbers consequentialist position that we're overinvested in counterterrorism - the book will have trouble reaching you on its core, most fundamental point about counterterrorism necessarily as tradeoffs. You will have many other reasons for finding it fascinating and insightful, and a great narrative read about life inside the Bush administration on the core issue at a key historical moment - but the fundamental argument of the book won't actually engage you. This seems peculiar to me - a deep indictment, in fact, of our elites, frankly - but I think it is where we are at currently. Counterterrorism as intelligence work let alone as war is in the position, once again, of having to justify, not its existence but certainly its place at the top of the many priorites of government.
To be careful in putting this. The by the numbers argument is sometimes offered as a truly naive position that essentially says, as long as there is some other thing - automobiles, malaria, inner city murder, etc. - which on the margin produces more deaths or reasonably anticipated deaths than terrorism, then we are overinvested in counterterrorism. This, of course, is not very bright and smart people don't hold that position. But the serious position of overinvestment in counterterrorism is that the proper level of investment is ... that which matches the level of seriousness as measured in the "market," so to speak, of bad things we seek to prevent that involve human intention and agency, viz., criminal law. Counterterrorism should be proportionate to the threat, and the threat is essentially no more than other kinds of serious forms of organized crime leading to murder and destruction. It deserves the serious attention, in other words, of a very devoted and well funded and well organized criminal law effort - the devoted attention of prosecutors, police, FBI, etc. and even perhaps some special criminal laws to get at these kinds of crimes - but anything more, in the way of wars, surveillance that alters existing rights regimes, etc., is in fact disproportionate to the threat and represents overinvestment in counterterrorism.
Note that these are two different kinds of objections to the tradeoffs in counterterrorism; one is Kantian morality and the other pragmatism. Much of the argument so far has centered on the former, but it is the latter that, I think, is gradually gaining ascendency. Interestingly, although Judge Posner calls for a "probabalistic" analysis of the tradeoffs between security and liberty in the calculus of policy, he does not directly take on the claim that going beyond the criminal justice model inside the United States is disproportionate to the probable threat. (This is in his new book, Counter Terrorism: Blurred Focus, Halting Steps, Rowman and Littlefield, 2007, in the Hoover policy series.) He clearly would not accept the claim, since the argument of much of the book is that we are overinvested in judicialization of counterterrorism, at the disastrous cost of not having sufficient resources in intelligence gathering domestically. But the book does not address the more radical skepticism, that we're overinvested in counterterrorism, period, if one really looks hard at what the threat presents. I don't think this is how the American public sees things; it is probably in the position I mention above - ironically complacent about terrorism precisely because it believes government is being proactive - but I do think it represents the emerging view of elites.
But policy positions on counterterrorism will increasingly, I believe, have to address the pragmatic overinvestment argument. There are ways to do so, of course, and someone like Judge Posner would likely consider them too obvious to require mentioning. It is not simply that terrorism is not deterrable by the threats posed by the criminal justice system or that the criminal justice model offers a far higher level of protection to criminals who pose only modest risks to larger society that we do not think are constitutionally required or prudent to offer to criminal terrorists who threaten undeterrable and graver damage. Those and other objections to the primacy of the criminal justice system as counterterrorism do not get at the depth of the skepticism here - the skepticism is to doubt that terrorism creates risks that are in fact so very different from those of ordinary criminals - certainly not "existential" in the sense of the country as a whole. The most obvious existential threat lies in terrorism employing weapons of mass destruction but there is little, so the argument goes, evidence that WMD is that easy to get or to use, and so the real threat is "ordinary" terrorism. Even 9-11 did not cause the national heavens to fall, just a couple of large towers in one city, and a couple of thousand dead. Even if you add in Madrid, London, Bali, etc., it doesn't amount to something worth changing our lives over - globalization and mobility of people in the 21st century produce these costs, and they simply have to be managed. They can't be defeated in any case. In a word, the Western European attitude toward terrorism - management. Only very foolish right wing Americans would think it can be defeated, and it has defeated us if we have to change our lives in relation to it.
I don't think this is at all right. It does not take into account the indirect costs of terrorism - which in the case of terrorism always are more important than the direct effects, and that is the point, to leverage violence and its threat across a whole population. I suppose one can tell the population that some small percentage of airplanes fall out of the sky anyway, and adding terrorism to the list of causes isn't very significant; air travel is still pretty darn safe. Don't be irrational in your risk assessments. But it does succeed in changing people's lives, and in altering the economy, and in altering their perceptions of government - the response from government is, our problem is not to keep you safe, but to educate you in understandng that your personal risk is very small? Moreover, from the standpoint of ordinary Americans, what changed their lives was not our response to terrorism, but terrorism itself, and they want government to change it back. The pragmatist argument has the weird effect - altogether common in any treatment of Islamism - of treating the problem as entirely what we do, rather than what they do or did to us. The dangerous and narcissistic self absorbed consumers of advanced democracies, as Mark Steyn has repeatedly noted; hey, but enough about those crazy jihadi terrorist guys, let's talk about me!
And this is strategically dangerous - a large reason transnational jihad has got where it has got is from the strategic blindness toward dealing with it early on. The pragmatic approach, precisely because adopts a view that seems "efficient" because it operates on the margin, turns out to be dangerously "tactical" and shortsighted in its approach. It fails to take a "strategic" and long view of what actions on the margin do in relation to the jihadists' calculations of the long term. It has already been noted that they think long term while we think short term; they think strategically while we, whatever we actually think, act tactically; our thinking is always about us rather than about them in the sense that game theory might tell us to look at their strategies and not merely think about ourselves. We might have a different sense of strategy than merely serial actions taken as though independent of each other exclusively on the margin if we thought about how they interpret our supposedly efficient margin-based actions. (There's nothing new about this argument, either the argument or the response, of course - it's just put here in a little bit of efficiency lingo.)
Walzer noted that a crucial moral feature of war is that aggression by one side coerces the other side to act other than how it would; this is the tyranny of war. The same, of course, is true of terrorism - and it is the coerciveness which is its strategic point. The tradeoff for a political system is to tell its citizens that as best as possible they should not alter their lives in relation to the terrorist threat - but that the state will deal with the threat.
(If one believes, as a factual matter, that the threat cannot be defeated, well, that is another argument - also a pragmatic skepticism, but a somewhat different one from the "you're taking it too seriously" argument, although the two feed into one another.)
There are, in other words, important responses to the pragmatist argument. Jack's book starts from the assumptions of the vast majority of Americans, complacent though we may be. Dick Posner's book deals pragmatically, but does not go back that far into skeptical pragmatism. But I think that increasingly the sophisticated argument for quietism will come from a pragmatic, rather than moral rights, kind of argument.
After several months of application kept up at every moment, Julien still had the air of a thinker. His way of moving his eyes and opening his lips did not reveal an implicit faith ready to believe everything and to uphold everything, even by martyrdom. It was with anger that Julien saw himself surpassed in this respect by the most boorish peasants. They had good reasons for not having the air of thinkers.
(The Red and the Black, Part One, Chapter 26, "The World, or What the Rich Lack")
... while re-reading (blue pen, red pen, yellow highlighter, and post-it plastic tabs) Jack Goldsmith's utterly engaging The Terrorism Presidency and Judge Richard A. Posner's sober and sobering Countering Terrorism:
Domenico Scarlatti, Keyboard Sonatas, 1685-1757 (Mikhail Pletnev, piano). Like a broken string of pearls scattering across a polished floor, as I seem to remember one Scarlatti contemporary describing them.
Handel, Suites for Keyboard (Keith Jarrett, piano). This is by far my favorite album of piano music, ever, I think. Partly it is the music - I have the Ur-text editions and often play along with the bass line on my cello, to the household's great unhappiness. But it is also Keith Jarrett's delicate, moving without ever getting schmaltzy, reading of the pieces. I've listened to the CD hundreds of times.
There is, all said and done, one capital of everything.
It also happens to have the best tasting water - straight from the tap - compared to any bottled water I have ever tasted. Is it bottled by some enterprising soul and sold? I would buy it.
I'm only here 24 hours, for meetings of the nonprofit development fund whose board I chair. And I have other work that has to be done. No time to play!
