Barry Eisler

Thursday, December 17, 2009

It's Good to Be The King

President Obama's Nobel acceptance speech has been praised by a number of people I admire. I wish I could agree with them. In fact, even apart from the "War is Peace" elements inherent in a man accepting the Nobel Peace Prize immediately after escalating one of the three wars he is waging, I thought the speech was insidious and appalling.

The speech is fulsome in its praise of the law, and in its call that nations that break the law be punished. "Those who claim to respect international law cannot avert their eyes when those laws are flouted," for example. So far, so good. But then Obama says this:

Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America's commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. (Applause.) And we honor -- we honor those ideals by upholding them not when it's easy, but when it is hard.


This paragraph is pleasant on the surface, and poisonous underneath. Obama has no more power to prohibit torture than Bush had to permit it. Torture is illegal in America. The law, not the president, is what prohibits torture. What would you make of it if the president said, "That is why I prohibited murder. That is why I prohibited rape. That is why I prohibited embezzlement, and mail fraud, and tax evasion." And the point applies equally to Obama's order to close Guantanamo (which, in any event, is nothing more than classic Obama sleight of hand) and his reaffirmation of the Geneva Conventions.

In America, the president doesn't make the law, nor does he rescind it. The president executes the law -- which is why Article 2 of the Constitution is called "The Executive Branch." Presidents who make and rescind laws at will are more commonly known as kings.

While we're on the subject of the Constitution, that increasingly quaint document, former Harvard Chicago Law Constitutional Law Professor Obama also said this: "But as a head of state sworn to protect and defend my nation...". There is no such oath in the Constitution. Rather, Article 2, Section 1 of the Constitution provides that the president will take the following oath: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

See if you can spot the difference between the oath Obama now says he took and the one he actually took. President Bush and Vice President Cheney didn't know the difference, either. That, or one or more of these men knows better, but finds distorting the nature of his oath politically expedient.

I suppose Obama felt there was no way around his speech's non-sequitur theme of "We must uphold the law, so I prohibited torture." Because he refuses to prosecute torture (the insane bromide "we have to look forward, not backward" is the real Obama Doctrine), he can't acknowledge torture is a crime. If it's not a crime, it must be just a policy difference. And, indeed, the implication of Obama's benevolent prohibition on torture and refusal to prosecute it is that a less enlightened future president might re-implement the "policy" of torture as easily as Obama rescinded it.

It's good to be the king.
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Tuesday, December 01, 2009

What Happens When a War Isn't Winnable?

Foreword:

I wrote the following piece over four years ago for Confessions of an Idiosyncratic Mind and the Philadelphia City Paper. On the eve of President Obama's announcement of a major escalation in Afghanistan, it's sadly timely. I hope there won't be cause to reprint it four years hence.

Remember when Blockbuster Video charged three dollars for a two-night video rental, and one dollar per night if you were late? They made most of their profits from late charges. Why? Because if you didn't get a chance to watch the movie during the first two nights and returned it at that point, you had to pay three dollars for nothing. If you kept it just one more night and watched it, you'd pay four dollars for something -- not as good as what you were originally planning, but a much better deal than the three dollars for nothing you were facing instead. Except... something came up on that third night, too. Now you're four dollars in the hole and still nothing to show for it. But if you hold on for just one more night, you can get what you originally hoped for five dollars, rather than nothing for four. Strong incentive to hang in for just one more night and turn the whole thing around.

By the tenth night, you were kicking yourself for having rented the damn thing in the first place. Even if you watched it tonight, you paid much more than it was worth, and you knew it. But there was nothing you could do to get that ten dollars back. If you could just watch the movie, at least you'd have something to show for the whole sorry enterprise.

But you didn't watch it that night. And maybe after two weeks, when you were down fifteen bucks in exchange for no value, you finally decided you were never going to watch it, it wasn't worth even a dollar more, it was time to cut your losses and just return the movie. And you did. You had nothing to show for the exercise, but at least you stopped the bleeding.

The example is trivial, I know. But dynamics at work for small things tend to apply to big ones, too.

Here's what I said over four years ago.

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I've been thinking about what happens when a society goes to war for a limited objective but then comes to face what seems to be an unlimited cost.

The more blood and treasure a society spends on such a war, the harder it becomes to acknowledge that it can't be won. After spending so much, a retreat would be painful: The society would have to acknowledge that the entire enterprise — the lives lost, the money spent — was a waste (worse than a waste, really, because of opportunity costs and unintended consequences).

Any society would want to avoid the pain inherent in such acknowledgment. It would prefer to believe there is still some chance of winning. If victory is possible, even if securing it turns out to be costlier than first believed, at least the society would have something to show for what it paid.

If you were a member of the administration that launched such a war, and you understood these dynamics, what would you do? Even if you knew, up front or deep down, that the war couldn't be won, would you bring the troops home?

Not likely. You would have to take the entire blame for the failure, with no room for face-saving or rationalization. Most people wouldn't be able to face such an unarguable personal failure. Instead, consciously or unconsciously, such an administration would seek to defer the withdrawal to a successor. Doing so would obscure the administration's personal and historical culpability for the war: Members would always be able to say, "We could have won if our successors hadn't lost their nerve." And who could "prove" them wrong?

I expect such an administration would continue the war, trying to keep U.S. casualties close to levels the public had already proven willing to accept. Periodically, the administration would announce "turning points," the achievement of which would imply that the nation is indeed on the road to victory. As each previously declared turning point is reached and revealed to have no effect on the course of the war, the administration would articulate a new one, thereby maintaining the public's hope that there is still some purpose to the enterprise — that the war can still be won. Simultaneously, the sunk costs of the war would be increasing, deepening the society's need to win, somehow, if only to justify the increasing costs.

This is a potent political combination: undiminishing casualty levels, constant infusion of new hope, increasing sunk costs. Because this combination is relatively stable while the pain of a "we can't win" acknowledgment gets worse the longer the war drags on, the status quo would prevail for a long time. Eventually, the war could be passed on to the next administration. Blame for losing it could be passed on as well, or at least shared and obscured.

At some point, during the tenure of the administration that launched the war or of one of its successors, the war will have dragged on long enough to force the conclusion that victory isn't possible. It's not so much that the pain of what has been spent becomes overwhelming; it's the sense of nothing but further pain ahead, for no possible gain, that would bring about a new consensus on the war. Vietnam illustrates the point. I don't think what happened was, "We've lost 58,000 Americans and that's enough." It was more like, "We've lost 58,000, and even with another 58,000 I still don't see how we can win this." In other words, the pain of acknowledging failure was finally outweighed by the prospect of more pain for no gain. When a society reaches this point, it abandons the war.

In trying to articulate these dynamics, I've deliberately avoided mention of current events. Sometimes you can see more clearly by taking a step back from the matter at hand. But obviously I do think what I've described above applies to the Bush administration and Iraq. Maybe the question isn't just, "Is the war winnable?" but rather, "Even if it's not winnable, what will the administration and our society do then?" It's that second question that's important to answer.
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