Just Following Orders

Today’s Washington Times features an opinion piece by GEN  Michael Hayden, whose most recent two gigs were as head of the CIA and the NSA. Given that background, it’s probably not much of a surprise that his op-ed blasts the Obama administration for its plan to release another cache of documents relating to the CIA’s “enhanced interrogation” practices. (Say what you want about the program, but I loathe the euphemism. Aren’t we adult enough to simply argue over whether certain forms of torture ought to be permitted? It’s a legitimate question, but we shouldn’t paper over its seriousness with comfortable euphemisms. </rant>)

I’m going to leave aside all questions about the legality/morality of the actual practices. If you’re really curious, you can go to Amazon and buy War, Morality and Ethics; the collection includes an essay on torture with which I agree 100 percent.

I want to focus instead on one of Gen. Hayden’s particular arguments:

The second task is to explain to the intelligence work force that the government still has its back. This too is a tough sell, especially when the work force reads in a Newsweek cover story that, in supporting the release of the first set of DOJ memos, the leadership of the Department of Justice calculated that “if the public knew the details, … there would be a groundswell of support for an independent probe,” and that when the decision to release those memos had been made, the DOJ leadership “celebrated quietly, and waited for the national outrage to begin.”

Now, in one of those neato coincidences, I happened to attend an event this morning at which Gen. Hayden and former DHS Secretary Michael Chertoff spoke about private contractors in the intelligence community. (Don’t be too impressed by this; mostly it involved getting up absurdly early, putting on a tie and going to the 13th floor of my own building. Tell people you’re a reporter and they’ll let you into pretty much anything. Especially at 8 a.m. in a city that everyone with any sense leaves in August.) At any rate, several people asked Gen. Hayden to elaborate on his op-ed. Hayden explained that he was worried that investigating rank-and-file CIA operatives who were simply following directives handed down by the president and approved by DOJ and the CIA chief would prevent them from “pushing the line” and encourage “timidity.”

This, to me, is a puzzling response, particularly coming from a retired general. [ed — I was going to put an Air Force joke here, but it seemed too easy.] In the military, “I was just following orders” isn’t a legitimate defense. Indeed, chapter 8 of Army FM 27-10, The Law of Land Warfare, has an entire section (IV if you’re wondering) dealing with “Defenses Not Available” to those soldiers accused of war crimes, the very first paragraph of which reads:

a. The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful.

The rest of the section goes on to say that following orders might be considered mitigating, and that courts martial should take into account the fact that soldiers are expected to obey orders. There’s a lot of leeway. But there is also an expectation that soldiers actually pay attention to whether or not they are being ordered to break the law.

It’s curious, then that Gen. Hayden wants to hold CIA operatives to a lower standard than the one that applies to a 19-year-old fresh from AIT.

Again, this is all separate from asking whether or not any CIA operative ought to go to jail. Even if we apply something like the Law of Land Warfare standard to CIA operatives, there’s a good case to be made that they still ought not go to jail. After all, an opinion from DOJ that something is legal (however shoddy the reasoning) is still prima facie evidence that the act really is legal. Whether we should hold a CIA operative morally accountable for accepting John Yoo’s legal advice is a judgment call (Professor Yoo now teaches at Berkeley’s law school, so the “he’s obviously incompetent” line is going to be a tough sell).

Still, Gen. Hayden’s argument isn’t that we shouldn’t convict CIA operatives of wrongdoing. It’s that we shouldn’t even be investigating them, since doing so may make them less good at their jobs. This is an argument that we ought not even consider the possibility that CIA employees may be individually guilty for following bad orders. It’s hard to see a principled reason why the CIA should be held to lower standards than the Army.

Politics and Attitudes

I’ve already commented (very briefly) on Julian Sanchez’s post imploring people to spend some time trying to understand other people’s views rather than just demonizing them as “the other.” Today, Matt Yglesias adds his two cents. I don’t disagree with anything Matt says, really. But I’m actually far more interested in what Matt’s response says about his attitudes toward politics. Here’s a (slightly longish) snippet:

At the same time, I’ve come to be increasingly baffled by the high degree cynicism and immorality displayed in big-time politics. For example, Senators who genuinely do believe that carbon dioxide emissions are contributing to a global climate crisis seem to think nothing of nevertheless taking actions that endanger the welfare of billions of people on the grounds that acting otherwise would be politically problematic in their state. In other words, they don’t want to do the right thing because their self-interest points them toward doing something bad. But it’s impossible to imagine these same Senators stabbing a homeless person in a dark DC alley to steal his shoes. And what’s more, the entire political class would be (rightly!) shocked and appalled by the specter of a Senator murdering someone for personal gain. Yet it’s actually taken for granted that “my selfish desires dictate that I do x” constitutes a legitimate reason to do the wrong thing on important legislation.

Now as a moral and political theorist whose sympathies are broadly utilitarian, I’m pretty sympathetic to Matt’s conclusion that it’s worthwhile to pay more attention to the moral dimensions of political actions. That said, I’m unconvinced of the wisdom of basing any sort of positive program on the premise that it’ll work just as soon as we convince political agents to ignore their self-interest and work for the greater good.

The fact is, humans are mostly just self-interested. No, I’m not signing on to the psychological egoist’s claim that all actions are self-interested. It seems relatively uncontroversial to say that many actions are (at least partly) motivated by altruistic concerns. Still, it seems equally uncontroversial to say that for most of us, we mostly act in self-interested ways.

So when I put on my moral theorist hat, I try to encourage people to act less self-interestedly and more like good utilitarians. Or at least more like good rule-utilitarians. The question, however, is whether I should do the same thing when I put on my political theorist hat.

When I’m designing political systems, I have two basic approaches. I can (a) design a system that will work well when people behave the way that they ought to behave or (b) design a system that will work well when people behave as they in fact behave. Capitalism, quite famously, is said to take the second approach. Most collectivist systems take the former. Welfare capitalist approaches (aka, what most of the western world is, to varying degrees) more-or-less split the differences, allowing markets to work their wonders and then splitting the proceeds according to some notion of justice.

The U.S. Constitution is likewise (IMO) premised upon something like (b), with various mechanisms in place (see Electoral College, judicial review, and the Senate) to prevent the populace’s baser elements (see Representatives, House of) from running wild. Or, more specifically, the Constitution takes advantage of people’s natural provincialism (i.e., local self-interest) to protect individual rights by making it structurally difficult to pass any sort of radical agenda.

What the Framers didn’t foresee, however, was that people who get elected to office don’t suddenly stop having self-interested feelings. Nor will they cease acting on those feelings simply by virtue of having been given a lot of power. (Indeed, I’m hard pressed to think of an instance in which someone has suddenly Gone Humble With Power!)

So, to come back to the original point, I think that Matt is right to notice that political actors frequently act in narrowly self-interested ways. Indeed, he and I actually share rather a lot of first-order commitments. But I think that a lot of the reason why Matt ends up calling himself a progressive while I end up flirting with the libertarian label is that Matt thinks it’s possible to reform the political system in such a way as to encourage political actors to be less self-interested. I think that’s pretty much a pipe dream.

That ends up leading us to very different places wrt various policy issues. I am inclined toward the view that programs designed and maintained by political agents will inherently end up corrupted, given that those powerful interests most affected will have incentive for rent-seeking while those in charge will have incentive to accept money/power/influence from those looking to profit from regulatory capture. Matt, OTOH, seems optimistic that well-meaning technocrats can construct good programs, if only we have the political will to let them.

And that, I think, is really one of the main hurdles to a liberaltarian alliance. Thoughtful liberals like Yglesias (not, obviously, his commenters) and (on his good days) Klein don’t really start from premises that are radically different from those of a lot of libertarians (Wilkinson, Sanchez or McArdle, say). But we have fundamentally different conceptions of the best method for realizing our shared prior commitments.

Nation-Building on the Cheap

Spencer Ackerman has a post today laying out the argument for abandoning the war in Afghanistan. According to Ackerman:

It’s perfectly coherent to assert that the U.S. has interests in Country X that are worth pursuing — at acceptable cost. Setting out a test for whether they’re achievable at Cost-Value Y, measured in time, blood and treasure, is rational. So is deciding at the end of the test that the resources necessary to achieve that interest exceed the acceptable cost. And in this case, it’s not that the U.S. fights for just 12-to-18 months. Eighteen months from now is January 2011, which will make the Afghanistan war nearly a decade old, an often overlooked point. No nation has interests that are worth limitless cost short of survival.

That last point is obviously true enough. But I’m struck by the…well, impatience now on display in much of the liberal blogosphere regarding Afghanistan.

Recall that a few months ago, the main criticism of then-President Bush is that he had diverted resources from a just war in Afghanistan to a totally unnecessary (and probably unwinnable) war in Iraq. I’m pretty much on board with that assessment, though I’d add “blatantly unjust” to the description of the Iraq war. But now, a few months and one serious commitment to Afghanistan later, there seems to be a growing desire to cut our losses and get out of Afghanistan.

This strikes me as problematic on a couple of different levels.

First, just from a purely moral perspective, there’s a very real sense in which the mess in Afghanistan is our fault. We armed and trained a bunch of lunatics because they happened to hate the same people we hated at the time. We did not, however, give much thought to the fact that those lunatics hated us only slightly less than they hated the Soviets. Moreover, once the lunatics had run off the Soviets, we pretty much just left them to rot in their totally devastated country. We continued to turn a blind eye when the lunatics helped take over the country and began killing anyone who didn’t pray to the right imaginary being and abusing the half of the population that didn’t pee standing up. In fact, we didn’t pay any attention at all until some of those lunatics helped crash some airplanes into some buildings.

The U.S. (rightly enough) sent troops in with the dual mission of (a) removing the lunatics and (b) stabilizing and rebuilding the country so that the lunatics couldn’t come back. We did a pretty good job of (a). Not so much on (b).

But here’s the thing: nation building takes a lot of time. It takes even more time when the nation in question is mostly rubble, has no real sense of “nationhood” and is populated by lots of people who haven’t yet realized that we had this Enlightenment thingy a few hundred years ago. It’s naive to think that we can simply kill off the lunatics and expect Afghanistan to instantly morph into Sweden.

Look, say what you will about colonialism (or “nation building” if you prefer the modern terminology), but in those few instances where it has (arguably) been successful, it has generally taken a long damn time. Japan needed decades after WWII to transform into a liberal democracy. The Brits were in India for more than a century. NATO troops still patrol Kosovo and Bosnia more than a decade after intervention (and those were already post-Enlightenment civilizations).

We can certainly argue about the wisdom of attempting to impose liberal democracy anywhere. I’ve argued in favor of a limited colonialism in failed states, and it’s pretty hard to see Afghanistan as anything but a failed state. There is, of course, a difference between saying that X is morally permitted and Y ought to do X. We can still argue about whether the U.S. ought to attempt any sort of nation building in Afghanistan. But, to the extent that we think we ought to undertake such an attempt, we should be aware that it’s a costly and extremely long-term endeavor. One that may well be measured in decades.

Public Choice as Implied Space

So, as part of my rot-your-brain-with-SF summer marathon, I recently checked out Walter Jon Williams’ Implied Spaces from the good folks at the Arlington County Public Library). As a novel, it was more-or-less on par with Williams’ other novels — entertaining hard SF that is absorbing enough to fill out a lunch hour but generally pretty forgettable 10 minutes after finishing.

Except that in this case, the central metaphor of the book has a staying power that (for me anyway) has transcended the rest of the book.

See, Williams’ protagonist, a 1000-year-old computer-programmer turned philosopher-king, bills himself as “a scholar of the implied spaces.” So what exactly does that mean? Well, as Aristide explains it, it’s all about the squinch.

Look, it's a squinch! Now you know.

Look, it's a squinch! Now you know.

For those of you who have no idea what “squinch” means, it’s an architectural term. Specifically, it’s a reference to the support structure that you’ll any time you have a dome that’s built on top of a square building. See, you can’t just stick a circle on top of a square. Or, well, you can, but only if you’re happy with big holes in the ceiling at all four corner. If you’d like an actual enclosed building, though, you have to do something to fill in the corners. That filling (which can take lots of different forms) is called a squinch.

Now, as Aristide points out, no one ever sets out to build a squinch. No architect says, “Hey, it’d be really cool to design a building with 18 squinches!”  But people do set out to design buildings with domes sitting atop square bases. Interestingly, though, any design that incorporates domes atop squares contains squinches by implication. Hence the central conceit of the novel: squinches are implied spaces. Aristide spends his time studying features that aren’t designed but that must exist by implication given the things that are designed. (In Aristide’s world, where humans design and build pocket universes, this means looking at the parts of the world that weren’t explicitly designed but that are implied by features that were explicitly designed.)

So why the fascination with the metaphor?

Well, besides the fact that “implied spaces” is a much cooler term than “squinch,” I also think it serves as an interesting metaphor for public choice theory.

See, there’s long been a tendency to think of governments (or at least the governments of Western liberal democracies) as being staffed largely by public-spirited technocrats who design and administer laws with an eye toward the overall public good. J.S. Mill famously contrasts bureaucracy with democracy, holding that the virtues of the former could be used to counteract the vicissitudes of the latter. This view held sway, particularly among liberals (broadly understood), until the middle of the 20th C, when economists first began positing that bureaucrats, like everyone else, are subject to incentives.

And so it was that the public choice school began paying real attention to things like rent seeking. That is, we began asking, “What happens when we combine capitalism, a regulatory system, and representative democracy?” The answer: we get businesses seeking to manipulate the regulatory structure by playing on the various incentives of politicians (by, say, offering money for reelection) and of bureaucrats (by, say, offering lucrative post-government gigs to the people responsible for crafting and/or enforcing regulations).

In short, public choice theorists study the implied spaces of our regulatory-capitalist-democratic structure.

And, on an only slightly-related note, apropos the recent Crooked Timber discussion about the relative standing of philosophy and economics within the humanities, I wonder whether public choice economists would be more or less welcomed by other humanists had they chosen to call themselves “scholars of the implied spaces”?

Thoughts on Iraq, Cont.

It’s post Valentine’s Day blogging! Now that the bottle of white Burgundy (that’s just so much fun to write) has worn off, the coffee has kicked in and the morning run has cleared out the cobwebs, maybe I can say something semi-coherent. Or as semi-coherent as anything that I write here ever really gets.

Anyway, in my last post, I mentioned John Edwards’ new proposal for Iraq. I said a few things about the proposal, mostly just making stuff up as I went. Oddly, however, a couple of people took it seriously enough to write about, so I guess that I should say something in response. Matt, writes in favor of setting a timetable for withdrawal arguing that

1. Do what the Iraqis want us to do. Not only is this our responsibility as an occupying force, but it’s the only thing we should care about if we’re doing this to “help” the Iraqis. 70% of all Iraqis think we should set a solid timetable for withdrawal regardless of the security situation. Um… so what exactly do we have to argue about?

Scott then points out that it would make a paternalist of anyone not on board with Matt’s suggestion. As Matt is objecting to my post, I guess that’s Scott’s roundabout way of calling me a paternalist.

I find the criticism odd, as paternalism is hardly what I intended. Indeed, I meant to be pretty much endorsing the same point that Matt makes. I’m in favor of phased withdrawals from Iraq. So when I wrote

If the options really are
  • A: Low-level civil war for 12-18 months followed by bloody civil war.


  • B: Low-level civil war for more than 18 months followed by bloody civil war.

Then I’d say that (A) is better.

what I meant was that a plan for withdrawal seems better than what we have right now. Maybe it would actually clarify things a bit if I included more detail. And more options.

  1. The George Bush Plan: Continue with the status quo. Maybe add a few more troops. Wait for liberal democracy to break out. Or at least for a new election.
  2. The Hillary Clinton/John McCain Plan: Continue with the status quo. Maybe add a few more troops. Add a stronger, more competent President. Wait for liberal democracy to break out.
  3. The Still Waiting for a Prominent Sponsor Plan: Set a timeline for withdrawal. Show the Iraqis you’re serious by reducing troop levels immediately. Tie reductions to specific benchmarks.
  4. The John Edwards Plan: Set a timeline for withdrawal. Show the Iraqis you’re serious by reducing troop levels immediately. Set an absolute leave-by date up front.
  5. The Dennis Kucinich Plan. Get out now. Withdraw the troops as quickly as is consistent with maintaining their safety.

I think that pretty much everyone is in agreement that (1) is a pretty lousy option. Unless GWB has a hidden supply of fairy dust somewhere, the gap between “continue what we’re doing” and “wait for liberal democracy to break out” seems unsurmountable. And we all know how GWB feels about fairies, so that’s really not too likely. I’m thinking that (2) doesn’t really seem all that much better. Certainly I’d prefer McCain or Clinton to Bush in the Oval Office, but I don’t think that their mere presence there will really make all that much of a difference.

At this point, I’m not sure how much difference there is, really, between (4) and (5), at least not in the specific incarnations I mention above. Massive redeployments (military speak for “Retreat!”) do require some time if they are to be done safely. Lining everyone up to wait for helicopters courts trouble. Besides which, given the recent track record of our helicopters in Iraq, it’s not clear that helicopter evacuation is all that much safer than dodging IEDs in a Humvee.

So really the only question is whether we ought to say, “All troops absolutely to be home by X” or “All troops home once Iraq has met condition Y.”

Now Matt and Scott may well be correct that the latter is paternalistic, particularly if (as happens to be the case right now) polls show that huge numbers of Iraqis are saying, “Thanks so much for coming by. Let’s do this again sometime, really. Maybe at your place next time.” Okay, actually, they aren’t saying that last part. Gotta be careful or the Office of Special Plans will decide that my blog post constitutes evidence for another invasion. Still, the point is that Iraqis want us to leave. And not just some of them. A lot of them. Shouldn’t that, as Matt says, be an argument for leaving pretty much right now?

Honestly, I don’t think that I know enough about the specifics of Iraq at the moment to say for certain about that particular case. But I can answer the more general form of the question, namely, if most of the people in a country want a foreign military to leave, does that not imply that the foreign military ought to leave? And the answer is a resounding…usually. But not always.

The sorts of cases that I have in mind are those generally known as armed humanitarian intervention. Yes, I know that’s something of an oxymoron. “Hey, we’re here for humanitarian reasons, and we brought an ass-load of tanks with us.” Still, in some cases it’s appropriate. Such as those cases in which a sizable minority of the population is being slaughtered by the majority. Darfur, say. Or Rwanda. Oh, hell, a large percentage of Africa. If a nation is intervening to stop genocide, then it’s justified in staying until the threat of genocide has passed. And, I think, it’s justified in staying even if most of the residents of the country would prefer the soldiers to leave. Because in this sort of instance, the majority wants the soldiers to leave so that it can get back to the business of genocide. That’s democracy in action. But it’s not a morally legitimate use of democracy. So, in that sort of case, it’s not paternalism at all to refuse to do the will of the majority.

I’m not at all claiming that our presence in Iraq is all that prevents genocide. My point is only that the will of the people is not an automatic trump card. Nor is rejecting the will of the people automatically paternalistic. One must first show that the thing that people are demanding is something that they are morally entitled to demand. And that’s why I think that Matt’s analysis is too simple. If our leaving Iraq really would lead to the systematic slaughter of a whole people, then we should stick around regardless of what Iraqis want. I don’t know the truth of that conditional, though. Until I feel pretty certain that Iraq won’t end up in a genocidal horror, then I’m not all that concerned about what ordinary Iraqis want.

If that seems paternalistic, then so be it. I don’t think that it really is; after all, paternalism is forcing people to do something for their own good. I think that staying might be justified if it’s about forcing people not to harm others. I’m pretty sure that liberalism allows that.

(NB: I don’t favor an open-ended commitment; I lean more toward the benchmarks option. But it seems to me that 18 months might well be a reasonable time-frame for relevant benchmarks.)

Taking Sovereignty by the Horn

So after a couple of lame warm-up posts where I take on really important tasks like calling John McCain names and writing about the best show on Television, I suppose that it’s time to return to Serious Blogging.

Via Matt Yglesias, I came across John Judis’ article at TNR Online (free registration required) about American involvement in the Horn of Africa. For those of you who were too busy scarfing down turkey to notice, on Christmas day, the supposedly-Christian Ethiopia (though how abstract entities like states are supposed to be Christian…or Muslim…or anything else really…I’m not quite sure) invaded the tropical paradise that is the Islamic (help, I’m doing it again) nation of Somalia. In and of itself, that wouldn’t really be all that newsworthy, I suppose (unless, of course, you happen to live somewhere around the Horn of Africa, in which case it’s probably pretty damn noteworthy). What makes the news hit somewhat closer to home is that the Ethiopians were — allegedly — aided in their attack by American Special Forces.

I’m not going to get into the specifics of that allegation, other than to say that it’s not being made by a bunch of lefty anti-war types, but by the right-wing blogger/reporter Daveed Garstenstein-Ross. What seems beyond dispute is that an American gunship attacked a target that may or may not have housed some al-Qaeda terrorists, but which did, whether by coincidence or design, happen to be the location of a high-level Somali military official. A cynic might well conclude that Americans were actually supporting an Ethiopian invasion of a sovereign state. I’m not actually making such a claim myself. Personally, I would need some evidence before I would believe that the United States would ever participate in an unprovoked and ill-advised invasion of a sovereign state whose military was staying within its own borders.

Yglesias and Judis both denounce American involvement as unjust, even possibly criminal. Without knowing more, I prefer to withhold judgment, but if pressed, I would likely be inclined to agree with their assessment. What I don’t much buy are their arguments; Judis’ claims, in particular, read like a good conclusion desperately in search of an argument. This particular passage very much gets at my worry:

Meanwhile, in Somalia, the Islamic Courts replaced a weak transitional regime that was unable to control the warlords, who, since 1991, have turned the countryside into a Hobbesian jungle. The new government had brought a harsh Islamic justice and order to Somalia, which, for all its own injustice, was preferable to the chaos that had prevailed.

Judis’ argument here is surprisingly conservative — indeed, it’s actually very similar to the one that Hobbes himself offers for accepting the supremacy of the Leviathan. Hobbes reasons that, since life in the state of nature really, really sucks, then pretty much anything that the Leviathan could demand of us would be better than that. Thus, for Hobbes, rebellion against the Leviathan is never going to be justified. Hume takes a fairly similar line in the Treatise. The problem here is that this sort of reasoning would seem to prohibit internal revolution, too. After all, if the orderliness of “harsh Islamic justice” is good enough reason to prevent Ethiopia from invading, why isn’t it a good enough reason to prevent Somalis from rebelling, too?

One might attempt to argue here, as Michael Walzer does, that a set of reasons might sufficiently provide a justification for a nation’s citizens to rebel while not counting as sufficient justification for external interference. Perhaps, then, Judis’ argument really is something more like:

1. The Islamic Courts Movement (i.e., the group that had wrested control of Somalia from the warlords) has instituted order across the majority of Somalia.
2. Any entity that institutes order across most of the area within a particular state counts as the government of that state.
3. States with a functioning government are entitled to sovereignty.
4. Thus the ICU is entitled to sovereignty.

That is perhaps a better (or at least a more charitable) reading of Judis’ argument. It has the advantage of not coming across as quite so anti-revolutionary. Unfortunately, it has the disadvantage of being false.

I would argue that premise (3) is just flatly false. Plenty of states have functioning governments that very much ought to be interfered with. Cambodia under Pol Pot. East Pakistan back in the early 1970s. Bosnia and Kosovo in the early 1990s. Or Afghanistan back in 2000. You know, the sorts of places that have governments that very efficiently and very thoroughly abuse and often kill their own citizens. Places whose governments systematically violate their citizens’ most fundamental rights.

Does the ICU fall into that category? To be honest, I don’t know enough about Somalia to say. I can tell you that phrases like “harsh Islamic justice” give me some pause. The last time we saw a group of religious extremists take over a nation ravaged by better than 15 years of Hobbesian anarchy, the results weren’t all that great. Is the ICU another al-Qaeda proxy state? I dunno. Is there some evidence that it might be? Again, I dunno. An unfortunate byproduct of the whole Iraq WMD fiasco is that it’s a bit difficulty to know whether or not the Executive Branch is, well, making shit up.

What is clear right now is that (a) Somalia hadn’t invaded anyone, and (b) that Ethiopia did. If the U.S. did in fact support Ethiopia’s invasion, then that’s probably a bad thing. The badness of the act, though, turns on just how bad the ICU really is and on how bad it would have to be to justify humanitarian intervention. Drawing that line is way beyond the scope of a blog post, though. Good thing I’m currently writing a book on it, eh?