Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

31 May 2013

Playing Chess with Putin, Syria and Iran


Introduction
Russia’s Interests in Syria and Iran
Russia’s Interests in Assad
The Winds of Change
What should we do?
Coda: A Short Story of Baba Ghannouj

Introduction

The Jerusalem Post recently reported that Russia will not sell advanced S-300 air-defense missile systems to Assad. At least Russia’s foreign minister, Sergei Lavrov, says Russia won’t. This essay analyzes what, if anything, Russia would have to gain from such a sale and what our response should be if it occurs.

To answer the first question—of Russia’s interests—we first have to ask why Russia supports Assad in the first place. The most likely answer is inertia and little more.

Russia’s Interests in Syria and Iran

For some time, Syria has been Russia’s client state. It buys Russian arms, receives Russian military folk, and generally is friendly to Russia. Iran is Syria’s patron, and Russia has a similar relationship with Iran. So another reason for Russia supporting Syria is its longtime support for Iran.

It’s not easy to understand why Russia is interested in either Iran or Syria. The weapons sales may help prop up Russia’s arms industry, and therefore its barely competitive aerospace and high-tech industries. That’s certainly a plus for Russia. But Russia can make far more money far more quickly selling its oil and gas to the West or China. And presumably Russia has other arms and energy buyers throughout the former Soviet states and developing world.

In any event, it’s hard to see where Syria gets the money to buy all that military hardware. It has no oil. Its chief exports are terrorism and military-political control of Lebanon. Sales of dates and lamb hardly support the purchase of big-ticket weapons.

So it seems as if Russia and Iran prop up Syria with money as well as arms. If that’s so, Syria is much like Castro’s Cuba during the height of the Cold War: a “strategic partner” that doubles as a world-class troublemaker and requires massive subsidies. Syria is hardly a commercial prize, whether as client state or customer. Maybe a new government would be both more tractable and more profitable for Russia.

A second reason Russia is patronizing Syria might be local geopolitics. Russia has been fighting Islamic peoples on, near and inside its southern borders for about two centuries. It has suffered two devastating terrorist attacks in recent years, the Beslan massacre of 300 children and the near-massacre (stopped by Russian sleep gas) at the Nord-Ost theater in Moscow. Both attacks were attributed to militant Chechens, who are mostly Sunni.

So Russia may be patronizing Syria as a largely secular Muslim state unlikely to propagate Islamic extremism. The problem with that theory is Assad himself. A brutal and crude dictator like him tends to spawn Islamic extremism whenever he is no longer able to suppress it with state terror. Saddam was an instructive example.

Different considerations apply to Iran. While Iran is also a state sponsor of terrorism, it is strongly Shiite, and the terrorism it sponsors is directed almost entirely at Israel and us. So Russia likely sees Iran as a potential buffer—and perhaps even an ally—in fighting Sunni terrorism on Russia’s southern border. Iran is, after all, also a target of Sunni/Al Qaeda terrorism. Russia may simply have concluded that the enemy of its enemy is a friend.

Russia’s Interests in Assad

The situation in Syria is even more confused. Assad and his coterie are Alewites—members of a tiny minority that is nominally Shiite. But the vast majority of Syrians are Sunni. These facts explain both why Iran is so eager for Assad to prevail (so that Syria will continue to serve as a buffer against other Sunni regimes), and part of what motivates the mostly Sunni Syrian rebels. It also explains, in part, why the rebels welcome and harbor Al Qaeda in their struggle. Al Qaeda is exclusively and virulently Sunni.

So both Russia’s and Iran’s sponsorships of Assad’s brutality arise from outmoded Metternichian thinking, in two ways. First, both nations want buffer states against danger, no matter how weak, disorganized or even chaotic those states may be, and no matter how shaky their future. Here Russia should entertain serious second thoughts: how effective was Stalin’s devastation of Poland and the Ukraine in protecting Soviet Russia against Hitler? The goal for both us and Russia is not any particular government in Syria, but a viable, peaceful state that does not export terror.

Second, both Russia and Iran apparently adhere to the principle that the enemy of my enemy is my friend. Both Russia and Iran are no friends of Sunnis, let along Sunni terrorists.

The same facts also help explain why Russia supports Assad so strongly. If he loses and goes (whether on a plane or in a box), Syria may turn sharply Sunni and become a safe haven for Al Qaeda and other Sunni jihadis. That wouldn’t be good for Russia, for us, for Israel, or for the rest of the Middle East. But neighboring Sunni states might support the change out of simple naiveté or neglect.

So Russia’s interest in propping up Assad is hardly a vital national interest and hardly clear. At best, it’s a confused, ambiguous and costly policy, based on Metternichian and medieval thinking. Yet at the moment, supporting Assad may be the best of several bad options for Russia. It also has the weak virtue of continuity: “staying the course” is a phrase with which we Yanks ought to be familiar.

The Winds of Change

But change is coming to the region, willy nilly. It’s hard to see how Assad can maintain a viable state for the long term by killing a large fraction of his people and displacing most of the rest. The atrocities he has perpetrated already have likely passed a point of no return, in which the vast majority of Syria’s people will never forget them, or forgive him, wherever they may be living now.

Sunnis in general, and Al Qeada in particular, have long memories. They never give up. The Russians ought to know that from their own failed adventure in Afghanistan and their two-century-long struggle with Islamic regimes on their borders.

Yet there are two important differences between Afghanistan and Syria. First, we’ve learned our own lessons about the fickleness of jihadis, so we will not be giving them Stingers in Syria. We don’t want those weapons used to terrorize Israel or Western airports. Second, the Russians have not committed their own forces in Syria, except perhaps clandestine ground advisors. So Russian pilots will not die if Syrian rebels down Assad’s planes, or if we do.

So how strong is Russia’s motivation to give Assad S-300s? Not very. Assad has been reckless, stupid and bloodthirsty. He may have left himself no way out but death, surrender, or a long and bloody Pyrrhic victory that leaves his once-stable country a basket case for generations. Already, the most capable and richest Syrians have fled. The Russians are smart enough to know this and therefore probably smart enough not to tempt further counterproductive slaughter by giving Assad potent air defenses.

In the medium term, Iran is also a wild card. Although Iranians still hate us (and with good reason), they know much about the outside world and yearn to be part of it. Iran’s most likely new patron is China, which needs its oil. Russia and Iran are competitors in oil sales, and China will likely jump at business with Iran as soon as sanctions are lifted. Being farther away from Iran than Russia, China will have a less complex relationship with Iran: mostly business, perhaps with some arms sales.

Elections in Iran are also coming up late this summer. It is possible that the Ayatollah will be able, or will try, to steal them again.

But surprises in Iran are more than possible. Except for a few unusual street demonstrations, nothing important in Iran happens in the open, where we can see it. Most everything that matters happens in closed or secret meetings of the elite.

So we will no more be able to predict significant change in Iran than we were able to predict Russia shedding its confining skin of Communism and dissolving the old Soviet Union. Surprises in connection with Iran’s late summer elections could change its foreign policy for the better, albeit probably not toward us. Harsh rhetoric toward Israel undoubtedly will not change, because it is the means by which Iran reduces the motivation for conflict with the more rational of its Sunni neighbors and gets them to help fund its own weapons development.

If push comes to shove, Iran may find some face-saving way to finesse the nuclear issue and end sanctions. As soon as that happens, Russia may no longer be Iran’s only major patron. (Maybe that’s a reason why Russia has never seemed particularly eager to see sanctions end.)

So the future of Russia’s influence in Iran and Syria is uncertain, to say the least. Equally uncertain are Iran’s and Syria’s value to Russia. Yet Russia doesn’t want to alienate Shiite Iran by supporting Sunni rebels in Syria. It certainly doesn’t want Syria to become an Al Qaeda haven, any more than we do. But, like us, it is acutely aware that, as the war and its atrocities drag on, a jihadi victory becomes increasingly likely.

What should we do?

So what should we do? As strange as it may seem, we should work closely with Russia. Except for the arms sales, we have almost the same interests. Neither Russia nor we want Syria to become a failed state or an Al Qaeda haven. We differ from Russia in that we want Assad out now. But we’re not going to convince Russia to help us accomplish that goal unless and until we have a viable and credible alternative that Russia believes will win the civil war at acceptable cost. So far, we don’t.

So at the moment, the best we can do is convince the Russians to let us stop Assad’s air attacks on civilians and cities, or even to help us. Assad’s atrocities are just plain stupid: primitive, savage and counterproductive in every respect. They accomplish nothing but fomenting more Syrian, Sunni and global outrage. The Russians are not stupid; they would prefer a whole and viable, non-terrorist Syrian state—secular, if possible—no matter who ends up on top.

If the Russians refuse to help us, or to allow us to stop the atrocities, then we should follow Colin Powell’s sage advice: the so-called “Pottery Barn” rule. You break it; you own it.

We have direct experience with that rule in Iraq. We suffered 4,488 deaths and spent about a trillion dollars there. Although perhaps not irrevocably, that “investment” is now literally exploding before our eyes. After all we have spent to make Iraq a modern state, it is heartbreaking to see Iran’s future going up in flames before our eyes.

Some things our species learns only by hard experience. It took centuries of ceaseless war for Protestants and Catholics to learn to get along. Maybe the suffering and exhaustion of war is the best teacher, for Christians and Muslims alike. If so, it’s best that war happen before nuclear arms enter the region. (This is also good reason for Israel to sit on the sidelines and be as neutral as Sweden in World War II.)

Russia has far less an investment in Syria that we did (and do) in Iraq. But the principle is the same. An Al Qaeda takeover in Syria, followed inevitably by a Russian exit, would be too close to the Russian experience in Afghanistan for comfort. Russians must consider that, if they support Assad too strongly and he loses, they will be outside Syria looking in.

Russia will always be closer to Syria than we, in geography if nothing else. But Syria has no oil, and Russia has plenty. Assad and his Alewites have likely burned their bridges to everyone else in Syria. So in the end, we and the Russians have much the same interests in Syria: a moderate, preferably secular Sunni government of international realists, who recognize that Al Qeada is as alien to their long-term interests as to ours and Russia’s.

After all that has happened, anything resembling “democracy” in Syria is a pipe dream. But Russia needs to find a new, more viable client government, and we want to see a viable non-terrorist state focused on its own economic development, not spreading terror or destroying Israel. Those goals are not incompatible.

Yet if Russia insists on going it alone and refusing to help or permit our effort to stop Assad’s atrocities, then the Pottery Barn rule should come into play. We are not going to go to war with Russia to pacify Syria or to prevent Syrian casualties. If Russia gives us that stark choice, then we can only disengage and leave Russia to deal alone with Israel, Turkey, Syria’s other neighbors, and whatever monstrosity of a government emerges in Syria after the long civil war.

Some in Russia may seek that end. They may support the old, Metternichian imperial view that the whole region is part of Russia's “sphere of influence.” If so, they would have to bear all the consequences alone, under Powell’s Pottery Barn rule.

But I think the Russians in general, and Putin in particular, are smarter than that. Already, they have been very smart in assisting our effort in Afghanistan, despite the risk of domestic political backlash [search for “extraordinary step”].

Putin was smart to support our effort in Afghanistan because Russians would have gained both ways. If we had pacified the whole country, they would be much more secure. If we had left with our tail between our legs, they would have have had little fear of our future meddling in their back yard.

As it happened, they got a little of both. We learned how hard and dangerous Russia's back yard is, and we are not eager to remain. Yet our drones, ninjas and regular military operations decimated Al Qaeda there, to Russia’s immediate benefit. No doubt close sharing of intelligence helped both countries realize their local objectives.

The Cold War is over. We and Russia have many common objectives, including supressing terrorism and forging a stable, peaceful and productive Middle East. Our cooperation in Aghanistan was to our mutual benefit—how much so we probably won’t know for years. (We are still learning secrets about World War II and the Cold War decades later.)

So we should expect that Russia—albeit slowly and with conditions—might support humanitarian efforts in Syria. It might even support protecting Syria’s civilians and cities from massive, senseless air attacks. Less likely, for the moment, is Russia supporting easing Assad out.

If Russia supports none of the above, our only sane option is to disengage and let Russia learn the wisdom of Colin Powell’s rule. Israel can take care of itself, and in any case a basket case of a state, like Libya today, is not much of a threat to Israel.

Russia’s recent announcement about the S-300s is a sign that the door to cooperation is still open. And Assad’s ambiguous statement yesterday suggests that he does not yet have the S-300s. It’s now time to forget the Cold War and press the “reset” button in earnest. We and Russia have every reason to cooperate and few to balk. If Russia insists on going it alone, it’s going to have to bear the consequences alone, right in its own back yard.

Coda: A Short Story of Baba Ghannouj

Baba Ghannouj (also spelled, more phonetically, “Baba Ghanoush”) is a Middle Eastern dish made of pureed roasted eggplant, lemon juice and spices. It’s not as popular here—yet—as hummus. But it tastes better and has fewer calories. For people like my wife and me, who enjoy eggplant in any form, it’s a delight.

Recently we found ourselves in a hotel in Cleveland. The hotel wasn’t bad. But its restaurant was like many second- and third-rank eateries in Northeast Ohio. Most of the food was unhealthy and tasteless.

When I mentioned Baba Ghannouj to the waitress, her eyes lit up. She said the the new chef was a woman from Syria, and her native dishes were superb. So we tried it. It was the best I had had.

This story is a metaphor for how we got strong. The smartest and most talented people from all over the world came (and still come) here for peace, tranquility, economic opportunity and the chance to practice their various religions without fear.

I didn’t get to meet the chef. So I don’t know when and why her family immigrated. But her mere presence suggests that, at some time, she or her relatives made the difficult decision to leave their native land and seek a better life.

Talented people like this unnamed chef enrich our nation and make us stronger. That’s why we need to fix our immigration laws soon. Every time there’s a cataclysm abroad—like Syria’s civil war—we get a trickle (or an avalanche) of talented immigrants who just want to live free from fear. The only reason we got nuclear weapons first was that all the great European physicists, including Albert Einstein, fled the Nazi scourge and came here.

At the same time, countries like Syria lose their talent. Those who can, leave. Many of those who stay die or are changed forever by the type of meat grinder that Syria has become. The result is a diminished Syria, a more fragile Middle East, and a stronger, more diverse, and happier America.

We should never forget—nor should Syrians or Russians—that Steve Jobs was the biological offspring of a Syrian immigrant. Keep the Syrian meat grinder running, and a psychopath doctor in power, and we just get stronger. Meanwhile, the Syrian buffer state gets weaker and more explosive, just like Poland and the Ukraine about a century ago.

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23 May 2013

How the Bankers Got Away, and How to Stop Them Next Time


Introduction
The problem of criminal sanctions in business
The crux of the matter
Conclusion
Postscript

Introduction

As faithful readers know, this blog proposes solutions to problems. It doesn’t just lament them.

A recent post bewailed the fact that not a single high-level Wall Street executive has gone to jail for causing the Crash of 2008, which destroyed the global economy and, with it, so many lives. Among the tragic ripples from that catastrophic event is a 300% jump in the suicide rate of not-quite-retired oldsters who are still unemployed.

That post was a rare lament. This one offers a new solution, in addition to breaking up the big banks.

This new solution involves criminal sanctions. As we will see, they have some advantages over purely structural, economic solutions like breakups. There is no reason Congress couldn’t adopt both solutions at the same time.

The problem of criminal sanctions in business

If there is a credible reason so many high-level rogue bankers escaped jail, it is this. White-collar criminal cases are hard to prove.

This is so for both legal and historical reasons. The question before us is whether those reasons are still valid today, and, if not, what we can do about it.

    The standard of proof
One reason why white-collar criminal cases are hard to prove applies to all criminal cases. The legal standard of proof is higher in criminal cases than in civil cases. A criminal prosecutor must prove a crime “beyond a reasonable doubt.” In contrast, a plaintiff in a civil case must prove fault only by a “preponderance of the evidence.” That means, roughly, getting a jury to believe that fault was “more likely than not.”

We impose the higher standard of proof in criminal cases to keep from throwing people in jail or (in death-penalty states) executing them for reasons that later turn out to be wrong. Late-life conviction reversals are embarrassing to the government. They shake the people’s faith in the justice system they themselves are supposed to run. In addition, lost years and lost lives are hard to return or replace.

The higher standard of proof helped O.J. Simpson in his notorious case. A jury acquitted him of murder, but he later lost a civil suit on much the same facts.

So the standard of proof matters, and it matters much in real life. But its’s hardly the whole story. What sometimes matters even more is what the standard of proof applies to. In O.J. Simpson’s case, the prosecution had to remove any reasonable doubt that Simpson had actually killed the victims. His defense attorneys created reasonable doubt, so Simpson walked.

    The intent element
But the O.J. Simpson case never got to an issue that weighs much more heavily in financial cases: criminal intent. One doesn’t usually slash people to death without some sort of intent. So in Simpson’s case, the big issue was whether he did it, not what was in his mind. Yet the opposite is often true of white-collar crime.

With very few exceptions, the law requires a criminal state of mind for criminal liability. Accidental or other unintended acts are not generally criminal, however awful their consequences may be.

As every first-year law student knows, lawyers use Latin to describe this criminal state of mind. The term is “mens rea,” Latin for “guilty mind.” It comes in four general flavors. From worst to better, they are: (1) purpose or deliberation, (2) knowledge, (3) recklessness, and (4) negligence. If you don’t have one of these guilty states of mind—or if the prosecutor can’t prove that you do beyond a reasonable doubt—you don’t go to jail.

In cases of white-collar crime, the intent element is the biggee. Why? Because white-collar crime is nearly always abstract. High-level executives don’t actually do the bad deeds; their less-well-paid minions do. So prosecutors have to prove that they ordered, coerced, instructed, cajoled or encouraged their minions to do wrong, and that they intended their minions to do so. And prosecutors have to prove all this beyond a reasonable doubt.

Even with positron-emission tomography, we can’t yet read minds. And even if we could, another feature of criminal law would prevent us from doing so. Courts can’t even force a criminal defendant to take a lie-detector test because our Constitution prohibits anyone from being “compelled in any criminal case to be a witness against himself[.]”

So, in essence, white collar crime cases require showing a jury that a high-level executive somehow communicated with a guilty underling, that the communication motivated criminal behavior, and that the high executive intended it to have that effect. And the jury must so believe beyond a reasonable doubt.

Do you begin to understand why the poorly paid peons go to jail and the guys (they are nearly all guys) with the obscene salaries, stock options, big bonuses and private jets get to walk?

    Circumstantial evidence
We can’t get direct evidence of a guilty mind because we can’t read minds. We can’t force the defendant to testify against himself because doing so would violate our Constitution. And even if we later develop technology to read minds reliably, we can’t use it on criminal defendants against their will, for the same reason.

So the only practical way to prove high executives’ involvement or complicity in financial and business crimes is to prove a communication with someone else. In most cases, the communication is unclear or ambiguous, so we also have to prove its meaning and interpretation. And we have to prove both its existence and interpretation beyond a reasonable doubt.

Wiretaps and other electronic means of eavesdropping are helpful in more brutal kinds of organized crime. If, for example, Murder, Inc., sets up shop in your neighborhood, a good prosecutor can get a search warrant and a wiretap against future murders.

But financial crimes are different. By the time anyone in authority realizes they are crimes—let alone crimes that could take down our economy—wiretaps are too late. Once the disastrous effects of financial crime become known, the relevant communications are all past tense. You would have to have a time machine to get a useful wiretap. All prosecutors can do is comb written records, and interview all relevant witnesses, for traces of past guilty communications. In so doing, they become a bit more like criminologists or archaeologists than police.

Criminal law has a couple of hand tools to help them do that. Normally, so-called “hearsay” rules prevent one person from testifying to what another said. But there are exceptions for proving state of mind and a pattern of criminal behavior, among others. So even without a writing that they can trace back to the defendant, prosecutors can rely on the testimony of people receiving the guilty communication as to its existence and meaning. Oral statements are not necessarily out of bounds.

But oral statements are problematic in practice for two reasons. First, good lawyers can destroy the credibility of almost any live witness testifying to an earlier oral communication, at least enough to raise a reasonable doubt. Second, the person receiving the guilty communication is usually an actual or potential criminal defendant, too.

Prosecutors can induce their testimony by offering the hearer a favorable “plea bargain,” i.e., a reduced sentence without trial. But if the two parties to the private communication agree to a thieves’ code of silence, there is very little any prosecutor can do. In most cases, diligent investigation won’t even reveal that a guilty communication ever occurred. And the parties have every incentive to keep silent; if they both shut up, neither will go to jail. Neither will even have to sit in the dock.

The advent of e-mail made proving white-collar crime a little easier. Financial criminals had been very careful about what they wrote in the old days, when they had to have their secretaries transcribe a paper letter and then read and sign it themselves. But now, with e-mail, they often write their own communications, sometimes in haste and without much circumspection. A single slip can support a successful criminal prosecution.

But rare slips on the part of high executives are pretty thin reeds on which to support a criminal shield against massive financial crime. They certainly won’t protect our whole economy from collapse. The Masters of the Universe didn’t get where they are by being careless or lacking in circumspection.

In the years leading up to the Crash of 2008, the whole banking culture was rotten to the core. From the bankers’ perspective, “everyone was doing it.” And everyone was getting rich doing so. If you were in the business of mortgage-backed securities, you had to be a fool to stay honest and poor, or so it seemed.

In that environment, the thieves were thick, and the code of silence was strong. It still is. The best federal prosecutors could hope for was making a few examples with cases built on circumstantial evidence and argued well to intelligent juries. More’s the pity, our federal chief prosecutor apparently decided that the effort was not worth the reward, or that it might impair our recovering global economy.

The crux of the matter

But all this is necessary background. We still haven’t gotten to the crux of the matter. Now we do.

The best case against our rogue bankers was criminal fraud. Bankers made thousands of loans that wouldn’t be paid back, and they knew that. Then they packaged them as mortgage-backed securities and sold the securities to investors. At the time they sold those securities, they knew they were junk, but they sold them with lots of promotion and razzle-dazzle. So they defrauded their investors, causing the Crash when the whole house of cards inevitably collapsed.

Proving almost all of this would have been easy. The banks massively violated their own credit policies in making the loans. Any idiot would have known that the resulting loans were risky, if not worthless. But the banks sold them to investors anyway. All that seems easy to establish, even beyond a reasonable doubt.

But the sticky part is intent. Did high executives actually know what was going on beneath them, and did they intend to defraud their investors? Their excuses are that: (1) everyone was doing it, and (3) the credit-rating agencies rated their securities as investment-grade. (Let’s leave aside for the moment the fact that their banks paid the rating agencies for their ratings.) Did they intend to defraud anyone when the whole industry was doing the same thing and the rating agencies, in essence, blessed it?

But we still haven’t gotten to the crux of the law. What is the standard of intent? Remember the four flavors of mens era or criminal intent from the Model Penal Code: (1) purpose or deliberation, (2) knowledge, (3) recklessness and (4) negligence.

In financial cases, only the first two flavors apply to criminal fraud, as distinguished from civil fraud. That’s a fine distinction, but it’s vital.

If you run over a pedestrian in a crosswalk, you can’t escape either a civil suit for damages or a prosecution for criminal negligence by proving you didn’t see her. Even proving that you were distracted while texting on your cell phone won’t help you; it will only dig you in deeper. You will still be liable for negligence, or even for recklessness, which might subject you to punitive as well as compensatory damages, or a stiffer criminal sentence.

But your case is different because it involved death or personal injury. The same rules just don’t apply to economic crimes. In all but a few cases, they don’t even apply to civil suits for economic injury alone.

They guy who built and maintained the factory that recently collapsed in Bangladesh, killing over a thousand workers, could be liable for criminal negligence or even recklessness. He probably will be. But the people who destroyed the global economy by absolutely corrupt and rotten practices leading up to the Crash of 2008 can go to jail only if a prosecutor can prove beyond a reasonable doubt that they purposely intended to defraud their investors or did so knowingly.

The very corrupt and rotten banking culture in which they operated makes their legal defense formidable. It goes something like this:
“How can you accuse us of purposely or knowingly intending to defraud our investors? They were our customers. Defrauding them would ruin our business. We just did what everyone else in the industry was doing, and what the rating agencies had blessed. We might have been negligent, or even reckless, but we just didn’t know.”
Thus does “everybody was doing it” become a credible defense to a charge of financial crime.

That defense didn’t work at Nuremburg. Accused there of killing six million Jews, top Nazi leaders couldn’t walk by saying “everyone was killing Jews.” Yet our bankers got away with destroying the global economy with a similar defense. They didn’t even have to actually put it on; they just got their lawyers to convince Justice Department lawyers it would work.

If there is any rational difference, it is the distinction between direct murder and more abstract financial crimes. Yet thousands of unemployed not-quite-retired workers have committed suicide—and more undoubtedly will yet—due to causes that the rogue bankers set in motion. Financial crimes, too, have consequences. They can cause death as surely as gas chambers.

Conclusion

What this post reveals is a fundamental flaw in our law. “Everbody was doing it” was no defense at Nuremburg, and it’s no defense to most crimes. But it is a defense to financial crimes on the issue of criminal intent.

If the whole industry was doing what you’re doing, and if the only watchdogs on the block (the rating agencies) blessed it, how can you be accused of purposely or knowingly intending to defraud your customers?

No rational businessman seeks to defraud his customers, for fear of losing them. But you can’t lose them if everybody else in the industry is doing the same thing. They have nowhere else to go.

So in this instance defrauding customers for profit may have been the rational, self-interested thing to do. Juries with ninth-grade education would have been hard-pressed to apply this abstract line of reasoning and infer actual knowledge or purpose in defrauding. A good defense lawyer could put them in the bankers’ position and evoke a strange sort of sympathy. Maybe that’s precisely what the wimpy Lanny Breuer feared.

Thus does the standard of intent for financial crimes, coupled with the requirement for proof beyond a reasonable doubt, permit a corrupt banking culture to destroy the global economy, and then allow bankers to evade personal responsibility because everybody (in their exalted circles) was doing it. Our legal system let the law of the rotten crowd prevail over justice.

In such cases, negligence would be a much better standard of intent. Under a negligence standard, it doesn’t matter what you actually know. What matters is what you “should have known.” Notwithstanding their corrupt culture, their competitors’ mutual idiocy, and the blessing of good paid-for credit ratings, any rational banker should have known that massively violating his bank’s own credit standards was not a good idea.

If you negligently kill someone, you can go to jail for negligent homicide, aka manslaughter. That’s probably what will happen to the Bangladeshi owner of that collapsed garment factory. The same is true if you negligently injure someone. But if you destroy a whole economy, you can’t go to jail unless the prosecutor can prove you purposely intended to do so, or knew that would happen. Does the difference make sense?

This difference in standards of intent exists largely for historical reasons. In the old days, financial transactions had little reach. They were often just deals between two gentlemen. They were private matters. Their consequences in the larger society were small and unexplored.

Today we are more civilized and informed. We know that rogue financial transactions can destroy whole economies, throw millions out of work, deprive millions more of their homes, cause massive increases in suicides, and even motivate wars. The last century’s great cataclysms, including the two great wars, had economic motivations, if not economic causes. The Great Depression, which helped cause the greatest war in human history, started with a banking “innovation” much like today’s derivatives: buying stock on margin.

So today we know from painful, recent history that massive economic crimes are not victimless. In fact, they can have victims far more numerous than any other crime save genocide.

Does that mean that every economic fault should be a crime, with a standard of negligence? Probably not. Doing that would impair ordinary business and subject every business decision to second-guessing in a court of law. We should reserve the negligence standard for banking and financial transactions that threaten economic stability.

After all is said and done, banking and finance differ from other businesses. They are more abstract. Their raw material is money, so they tend to attract people whose sole or primary motivation is getting rich. More to the point, they have been responsible, directly or indirectly, for every economic crash, panic, depression and “great recession” in history.

Have you ever heard of a general economic collapse caused, for example, by copper mining companies, electronics companies, railroads, or steel? Finance needs stricter rules because it is the lifeblood of any capitalist economy. If it fails, we all fail, no matter how well or even brilliantly we do our jobs.

So we should hold bankers to a general standard of reasonable care, and we should do so by criminal sanctions, just to make sure we have their attention. We should not let bankers, ever again, take our economy down with self-evidently rotten and corrupt practices and then walk free by arguing that everybody was doing it and it was “blessed” by private for-profit businesses with obvious conflicts of interest.

If we want to introduce a criminal negligence standard by degrees, we should start with transactions that have significant financial effects. When Robert Rubin was Chairman of Citibank, he apparently received that e-mail from a senior vice president reporting massive and systematic violations of Citibank’s own credit standards. As he later testified, he thought he saw the e-mail and he thought he sent it to some unnamed minion for handling.

You have only to view his testimony [set timer to 28:00 and enjoy!] to understand how little the whole thing meant to him. (He probably didn’t really remember the e-mail at all; his lawyers probably advised him not to say he didn’t receive or read it, for fear of later contradiction by computerized records.) Some time later, our government invested $25 billion in Citibank, and Citibank accepted it, in order to avoid a general financial meltdown.

Even to someone of Rubin’s exalted status, $25 billion is sum of money worth remembering. Once he got that e-mail, he should have been smart enough to see a problem of that size coming. If not, he should have been retired and on the lecture circuit, rather than purportedly running a bank whose size made it a linchpin of our national economy.

We don’t have to hold every business, let alone small businesses, to a standard of criminal negligence in their ordinary business operations. But we ought to do that for big bankers. If we hold them to a negligence standard for big things, a lot more Robert Rubins well be a lot more careful in the future. Our economy will be safer, and so will we all.

Of one thing we can be certain. If we don’t do that, and if we don’t break the too-big-to-fail banks up, something like the Crash of 2008 will happen again. The only question is when, not if. Having a legal system that allows bankers to escape criminal sanctions by creating a rotten culture and then claiming “everybody does it” and “the rating agencies we paid said we could” is a sure invitation to disaster.

No rational parent would let a naughty child get away with such excuses. So why should we let our big bankers?


Postscript: One other point is well worth making. Under a legal standard of purposeful or knowing action, the bankers’ defense on the issue of intent is entirely credible. Even I don’t think their primary purpose, or even an important purpose, was defrauding their customers.

Their primary purpose was to make money any way they could. The rotten culture they had helped build said they could sell their securities backed by rotten mortgages. Their competitors said they could, and actually did. The ratings agencies gave their blessing. So it is entirely possible for a jury to believe that the bankers had no criminal intent or knowledge, i.e., that, in modern terms, the devastation to our nation’s and the global economies was just “collateral damage.”

Defense attorneys could not so bamboozle a jury under a negligence standard. Why? In a negligence case, the jury determines (subject to control by the judge) both what the standard of care for avoiding negligence is and whether the defendant met it. In legal terms, the standard of care is a mixed issue of law and fact.

So a criminal negligence case would go as follows: the defense attorney would argue that selling securities backed by mortgages that massively violate the bank’s own credit standards is “reasonable care,” as long as other banks do the same thing and rating agencies bless the process. The prosecutor would argue the contrary.

We all know how juries would rule, and how many rogue bankers would be in jail, under those circumstances. The key difference between crimes involving negligence and crimes involving higher intent is that the jury determines the standard of care, based on expert testimony and subject to control by the judge for basic reasonableness and conformity with precedent.

No Fed Chairman or regulator can possibly imagine all the things that bankers may one day do, or how those things may affect our global economy. So laws that prohibit specific practices, or that depend on proof of evil intent beyond a reasonable doubt, are useless in protecting our economy. They are analogues to our military leaders preparing to fight the last war.

Only a general standard of reasonable care, applied after the fact by twelve men and women, good and true, can keep our bankers careful, circumspect and honest, despite the enormous temptations that their profession puts before them daily. It would be not only substantial justice, by poetic justice as well, for the people who make that decision to be precisely the ordinary folk who must suffer the “collateral damage” of bankers’ experimental effort to enrich themselves.

Two things would prevent juries from second-guessing and micromanaging all bankers’ business decisions. First, they would only get to judge real cases in which bad decisions had already caused massive economic failure. Second, as judges always do, the judge would throw out unreasonable verdicts based on passion, prejudice, or neglect of substantial evidence. The bankers would have a good chance—with the best lawyers that money can buy—to make their own case in court. But that case would be about whether what they did was reasonable and prudent for modern bankers to do, not what was in their minds.

Helping to decide such issues is what our juries do, and why they lay claim to being parts of the world’s fairest and most people-oriented system of justice. Let’s bring them back and help them save our economy from the myriad unknown risks that our once and future bankers may force us all, unwittingly and unwillingly, to take.

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22 May 2013

Can Justice do justice?


[For brief analysis of yesterday’s bad news from Iran, click here.]

Inscribed in stone on our Supreme Court building is a four-word credo: “equal justice under law.”

Those words capture the essence of our form of government. They meld the rule of law that is supposed to govern all of us with Thomas Jefferson’s ideal that we are all created equal.

Words in stone do not change. But people and cultures do. Time and chance happeneth to us all. So do laxity, timidity and corruption. This evening’s (repeated) feature of “Frontline” describes just how much.

The subject has nothing to do with Benghazi or IRS blunders. It’s much, much more important than that. It explains why not a single high-level Wall Street banker has ever been convicted for criminal conduct leading to the Crash of 2008.

I won’t spoil the program by reviewing it in detail. Every citizen should watch the whole thing, carefully, in doleful silence. But I will summarize the key facts that the program substantiates through interviews with live witnesses.

First, since the events leading up to the Crash of 2008, over a thousand small fry have gone to jail for the same type of mortgage fraud that led to the Crash. So far, not a single high Wall Street executive has.

Second, the banks that perpetrated this disaster on us (and the world) relied on contract “due diligence” labor to review loans to be packaged into mortgage-backed securities. Witnesses engaged in this occasional work said that many loan applications appeared fraudulent, but they were forbidden to use the word “fraud” and told to fund the loans.

Third, a whistleblower testified that, long before the Crash, he e-mailed four top executives of Citibank about massive noncompliance with the bank’s own credit standards. The noncompliance began at 60% and later reached over 80%. This man, Richard Bown, was hardly a peon. He was a senior vice president of Citibank, responsible for credit quality compliance. His e-mail was labeled “URGENT.”

Fourth, Former Treasury Secretary Robert Rubin, who was then Chairman of Citibank, was asked about this e-mail at a hearing. He said he thought he remembered it and and he thought he had forwarded it to someone for action, as if it involved a minor matter.

Fifth and finally, a man (if you can call him a man) named Lanny Breuer was in charge of the Justice Department’s Criminal Division from the outset of the Obama Administration until this March. He was supposed to be responsible for making criminal cases against the rogue bankers. But he brought none. Not a single indictment of a high-level Wall Street exec, in four years on the job.

“Why not?” you might ask. Well, Breuer himself says that white-collar criminal cases are hard to make. So he decided not to make them. But no less a witness than “superlawyer” David Boies opined that allegations in a recent civil complaint would, if proved beyond a reasonable doubt, suffice to show criminal fraud.

Other Frontline witnesses had different ideas. One says Breuer didn’t want to lose. (Many self-centered lawyers arrange their lives so that they can say they never lost a case. Maybe he’s one.) That of course means he wouldn’t take any difficult cases, no matter how much is at stake. It also means that he put his personal career above both his job description and the public welfare.

But Breuer later himself gave another, more plausible excuse. He said he worried that indicting those high and mighty bankers might upset their financial counterparties and bring down the economy. This worry, he said, kept him up at night.

So in the end, the main reason why no high-level rogue banker has ever been indicted boils down to the same reason why we bailed them all out, instead of their innocent victims. The bankers got to Breuer.

Not only did they convince him their banks were too big to fail. They convinced him that they personally were too big to prosecute. That’s just what every democracy needs: personal immunity from prosecution by reason of wealth and power. Let’s just call it “blackmail by the rich and famous.”

Just last week we remembered the Watergate scandal. In it, we ultimately proved that even our president was not above the law. But that was four decades ago. Now we won’t even indict bankers. Is that consistent with “equal justice under law”? I don’t think so.

But that’s not all. Since 2008, legions of whistleblowers, ashamed at their parts in destroying the world’s economy (and our own) have come forward. Massive civil cases have been filed. An amateur movie maker found whistleblowers galore and made an independent movie about them. Yet in all that time, the head of our Criminal Division of the Department of Justice came up with nothing.

I won’t even mention how Breuer presented himself. You have to see for yourself. Any solicitousness you might feel for how hard our nations’ top lawyers’ jobs are vanishes when you watch him.

He makes Uriah Heep look like a straight-talking hero. After watching him for just a few minutes, I wanted to take a shower. After watching the whole show, I could barely restrain myself from throwing a glass through my big screen.

How could an oily, unctuous, c.y.a. coward like this end up in charge of the criminal side of our Department of Justice for four years?

Criminal cases are indeed harder to prove than civil cases. But that doesn’t mean they shouldn’t be brought, even at a risk of losing. A prosecutor is not supposed to be a judge; I believe that’s called the “separation of powers.”

A good Criminal Division head would have spent the last four years investigating the hell out of all the plausible suspects. Now he or she would be reading mass indictments, just at the beginning of Obama’s second term. Even if half or more of them failed, the mere effort would constrain bankers’ rampant gambling and swindling for at least a decade. And juries would do the rest.

We are slowly losing our Republic, drop by drop. We are increasingly willing to give up our liberty for security in the face of terror. We spy on ourselves incessantly, forfeit our privacy, and allow ourselves to be treated like cattle on airlines—all because we lost less than 4,000 to terrorism. We lose more than eight times that number in traffic every year.

Now we refuse even to indict the high-level bankers that crashed the global economy, while prosecuting and jailing the small fry. Why? Apparently because we’re afraid of losing our less-than-perfect win record, or because we fear that the bankers’ self-serving propaganda might be right. We are becoming living proof of Jefferson’s observation: a nation that values security over liberty deserves neither. Our Greatest Generation, which is now passing from the scene, must be in despair, if not depression.

Whatever this is, it is not political or moral courage. And it is certainly not equal justice under law. It is a once-great nation in danger of losing its bearings and its soul. Meanwhile, bankers are hard at work diluting post-Crash regulation and erecting yet another financial house of cards, whose fall will shake the global economy again.

We can only hope that Breuer’s replacement will be more dynamic, less conscious of his or her record, and more focused on advancing our nation’s basic values. We need a new Eliot Spitzer, or we need to break up the big banks into pieces small enough to fail (and small enough to prosecute criminal executives).

Some Bad News from Tehran

Iran’s Guardian Council has barred Iran’s former president, Ayatollah Ali Akbar Hashemi Rafsanjani, from running for president of Iran again. If this decision stands, it is not good news.

You can get a good idea of who Rafsanjani is and what he stands for by perusing his own English Website. The Website’s mere existence is a signal of his modernity and international outlook. He is also an experienced businessman, perhaps the most powerful in Iran. If any single person can be considered a leader of Iran’s fractured and oppressed business community, it is he. He has been a power to reckon with in Iran’s national politics and business for at least a generation.

So what does the decision mean? It means that the battle lines have been drawn. The Supreme Leader won’t let go of power without a fight. And he probably doesn’t intend to have fair elections, at least with candidates who can win.

Does that mean the battle is over? Not hardly. The political battle has just begun.

The battle is highly unlikely to result in civil war. Iran is not like that. It works by mass meetings, private meetings, personal influence and intrigue. Nearly all the politics that matter in Iran lie below the surface. Iran is not like Syria; among many other differences Iran is much more ethnically homogeneous.

So what does this development mean for us? If it stands, it means that we are less likely than before to understand what is happening in this cycle of Iran’s elections. It also means that forces favoring the status quo are more likely to prevail.

For most outsiders Iran is a closed book. We won’t be able to read it until after the late-summer elections. So it is still, in my view, a bad idea to make threats, tighten sanctions, or start a war before the outcome of those elections becomes clear. Doing so, or supporting any candidate, would virtually insure a result we won’t like.

Footnote 1: Iran is unlikely ever to have a real civil war. Even its 1979 Islamic revolution was relatively bloodless. Estimates of deaths range from a low of 8,000 to a high of 70,000, although it’s unclear whether the higher figure includes all of the Shah’s 26-year rule. Out of a 1979 population of 34.5 million, that’s between 0.023 and 0.2 and percent. In comparison, our Civil War dead comprised between 2% and 2.4% of our 1860 population, and Russia’s 1917 revolution, by a median estimate, killed about 9 million of its 100 million 1917 population [Figure 1], or 9%.

Footnote 2: For a useful list of approved candidates, click here.

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14 May 2013

Parsing Iran’s Goals and Intentions


Introduction
Why Iran hates us
Why Iran seems to hate Israel
Those maddening threats
Iran’s weapons proving grounds
Conclusion

Introduction

Among all the oceans of ink spilled about Iran and its nuclear program, there has been far too little about the most important element. Pundit after pundit has focused on uranium enrichment and nuclear weapons technology—which most of them understand about as well as they do astrophysical cosmology.

Neglected in all this uninformed speculation is Iran itself. What is Iran really like? What do its people think? What are their goals? What motivates them? Is Iran really a nation of religious fanatics eager to begin nuclear Armageddon with Israel so that the Twelfth Imam will return?

Many Americans think so. But some smart and well-informed people don’t. Here, verbatim, is a direct quote from Efraim Halevy, a former director of Israel’s highly respected intelligence agency, Mossad:
“The [Iranians] are not demonic, and they are not messianic. They are very, very cool calculators when it comes to their direct interests. When you have the shotgun right next to your temples, sometimes, clarity emerges.”
Threats are inherently a combination of capabilities and intentions. We and Israel have obsessed incessantly about Iran’s capabilities in missiles and nuclear weapons.

Those are valid concerns. Iran does have a missile program, and it gives Hezbollah and Hamas missiles to strike Israel. The number of centrifuges Iran has installed for nuclear-fuel enrichment does seem too large for just an electric power industry. Add to that the fact that uranium-plutonium power plants have proved themselves unsafe, and you have to consider the likelihood that Iran is really after nuclear weapons, not electric power.

But what are Iran’s other intentions? What are its motivations? Is it really eager to nuke Israel the first chance it gets? Before we send out our own planes and missiles and start a war, we at least ought to do some serious analysis.

In answering those questions, many Americans and Israelis have taken inflammatory statements of Iran’s leaders at face value. They are understandably frightened and outraged. But do those statements reflect what Iran will actually do, now, in the future, or even in a crisis?

We cannot yet read minds. But we can read facts and history. We can put ourselves in Iran’s position. And by doing so we can calculate what is most likely. This essay tries to do that, based not on Iran’s leaders’ words but on deeds and historical facts.

Why Iran hates us

We must begin our analysis with history. Why does Iran hate us so? It has not been a belligerent, aggressive or expansionist power since the early Middle Ages. It has certainly not been a war mongering state. It is nothing like North Korea.

But it’s easy to see why Iran hates us. In 1953, our CIA, together with Britain’s spooks, engineered a coup that deposed Iran’s duly elected and moderate leader, Prime Minister Mohammad Mosaddegh. In his place we installed the last Shah of Iran, Mohammad Reza Pahlavi.

The Shah started out as a constitutional monarch but quickly became a harsh dictator. He ruled Iran with an elegant, smiling, and obsequious face to the West but an iron fist inside. His secret police, the Savak, were renowned for their “efficiency,” ruthlessness and brutality.

So once-democratic Iran became a totalitarian state without freedom or law. The only law was the Shah and the Western interests he represented. That state of affairs lasted until the Islamic Revolution overthrew the Shah in 1979.

What was the trigger for this massive Western interference in Iran’s internal politics and sovereignty, which turned a democracy into a dictatorship? You guessed it: oil. Iran was the first Middle-Eastern country to nationalize its oil resources, then mostly British. It did so by democratic action in its elected parliament in 1951.

Now, for a moment, fast forward to today. Greater Arabia has long ago nationalized its Western oil companies, once called the “Seven Sisters.” It even, for a time, used oil embargoes to play politics. But now that it is strictly business, we allow its cartel creation, OPEC, to set global oil prices and milk the world. Our former president, Dubya, even walked hand in hand with the Saudi King.

Can you begin to see why Iranians might feel unfairly treated and despise us?

But that’s not all. Far from it. When Iranian revolutionaries deposed the Shah, they captured our and Canada’s embassies in Tehran.

They took over 60 Americans hostage. They could have imprisoned the hostages as “spies,” with plausible excuse. (Every embassy in the world has intelligence agents working out of it.) They could have held Stalinist show trials and executed them publicly, as Fidel Castro did his enemies after he had won his revolution. If they were really brutal and uncivilized, they could have beheaded the hostages and circulated videos of their beheading, as Al Qaeda leader Khalid Sheikh Mohammed did (much later) with reporter Daniel Pearl.

But the Iranian revolutionaries did none of these things. They bargained and postured for 444 days and then returned the hostages unharmed.

So what did we do in return? We incited Saddam’s Iraq to attack Iran, which it did in 1980. The resulting war went on for eight long years, killing an estimated one million people in Iran.

At the time, that loss amounted to 2% of Iran’s population—the equivalent of six million Americans today. Besides that tragic loss, the war accomplished nothing. No territory changed hands, and Iran and Iraq remained wary enemies.

Do you begin to see why Iran doesn’t like us? Actions have consequences. Iran’s hatred of us did not come from Islam, from the Qur’an, from Allah, or from the Twelfth Imam. It was a natural consequence of our own acts.

Why Iran seems to hate Israel

I write “seems to” because Iran’s enmity to Israel is as hard to explain as its hatred of us is easy. Iran has no border with Israel. Except by proxy, through Lebanon, Gaza, and Syria, Israel has never fought Iran. And Iran has no history of anti-Semitism. On the contrary, Iran in its Persian guise harbored Jewish scholars, artisans and merchants in peace for centuries.

Like most of the great Islamic Empires, ancient Persia had a quarrel with crusading Christians, not Jews. And the extent of the enmity has been greatly exaggerated. When Moors captured the Christain Spanish Kingdom or Granada, for example, there was no climactic, bloody battle. The Moors had an army, to be sure. But they simply offered the Granadans a better deal than had the Spanish Kingdoms of Castille and Aragon to the north, which had been Granada’s rivals for centuries. So the Moors just walked in, invited, and remained there until crusaders kicked them out centuries later.

In a proper world, Iran and Israel would be trading partners and allies. Apart from Turkey, they are by far the most advanced nations in the Middle East. Both are resourceful, industrious nations with a well-educated elite. If they cooperated, they could make the desert bloom from the Alborz Mountains to the Gulf of Aqaba.

But they are not allies. They are enemies. And it’s fruitless to analyze who started the enmity. What matters more is how little sense it makes.

If you think really hard, you can find only three reasons that make any sense at all. The first and strongest is that Iran hates us and Israel is our creation. Iran can’t get back at us because we are too far away and too powerful. So it displaces its hatred of us onto Israel because Israel is closer, smaller, and less powerful. For the sins of its fathers (us), Israel must pay.

A second plausible reason for Iran’s enmity toward Israel is territorial. Israel is a creation of the US and the West—a belated attempt to atone for the Holocaust. It just happens to be on land that Muslims have occupied since the Jewish diaspora after the fall of Rome. So Iran feels sympathy for the Palestinian refugees—fellow Muslims—and for the plight of people who have legitimate grievances but (they think) no way to redress those grievances except perpetual, senseless violence.

The third reason for Iran’s hatred of Israel is indeed religion. But that reason is the weakest of the three and a relatively recent development. Neither Iran nor its predecessor (Persia) has been particularly religious since the collapse of the great Islamic empires centuries ago. Neither has ever been anti-Semitic, at least until the territorial dispute with Israel arose.

Iran was a thriving, secular democracy before we helped install the Shah in 1953. Most of its educated elite are secular even today. (That’s one reason for constant internal conflict.) Iran turned to religion only because religion was the only political force in Iran strong enough to depose the Shah and set Iran free. So religion in Iran, as in much of the Islamic world, is bound up with politics.

Iran’s “Supreme Leader” Ayatollah Ali Khamenei epitomizes the religious-based hatred that grew out of Iran’s Islamic Revolution. He is a bitter old man. He spent much of his life as an exile during the Shah’s brutal reign. He is an ivory tower thinker immersed in scripture, with little experience in politics before the Revolution he helped start. His cloistered thinking and his old man’s hatreds are dangerous, to be sure. But his actions so far have been cautious.

Those maddening threats

With these facts and history in mind, we can now put Iran’s leaders’ outrageous statements in perspective. But first we must acknowledge them. It does no good to bury your head in the sand.

Both the Supreme Leader and Iran’s current President Ahmadinejad have questioned Israel’s right to exist and have expressed a wish for its destruction. In addition, Ahmadinejad has questioned the reality of the Holocaust. (To my knowledge, neither man has called for Iran to become the instrument of Israel’s destruction. Although nonetheless troubling, their statements were abstract, general, and long term.)

These are not encouraging statements, especially to descendants of the Holocaust and their few remaining survivors.

But people don’t always mean exactly what they say. Far less do they always act on what they say.

In 1960, Soviet leader Nikita Sergeyevich Khrushchev banged his shoe on the podium at the United Nations. He said, “We will bury you.” At that time, he was the second most powerful man in the world, with a nuclear arsenal able to extinguish our species. He was not a physically attractive man, and his ugly face, twisted in anger, became a visual metaphor for the Soviet menace.

Two years later, during the Cuban Missile Crisis, this selfsame Khrushchev made a deal with our president Jack Kennedy, to avoid nuclear Armageddon. A year after that, after Kennedy was assassinated, Khrushev reportedly wept on hearing the news.

So before we start a war that equates Iran’s leaders’ statements with Hitler’s Mein Kampf, perhaps we ought at least to spend a few moments analyzing them. Who was their audience? What were these maddening statements intended to achieve? Politicians—even Islamic ones—do not act at random. They usually have specific goals in mind, and those goals usually involve motivating specific people to do (or not do) this or that.

It is unlikely that Israel was the intended audience for those remarks. You do not threaten an enemy with genocide, particularly one as touchy as Israel (with as good reason!), or one as well equipped and trained militarily. If you really want to destroy an enemy as well prepared as Israel, you don’t announce your intention in advance. You keep it secret and mount a sneak attack, as Japan did at Pearl Harbor, or as Hitler did in signing the Molotov-Ribbentrop non-aggression pack and later invading the Soviet Union.

You don’t have to be a brilliant politician or strategist to understand these points. You just have not to be stupid. However full of hate they may seem, Iran’s leaders are not stupid.

So who was the intended audience, and what was the message?

The first audience was undoubtedly these pols’ primary and usual audience: the Iranian people themselves. The Islamic Revolution has not been good for Iran’s economy. It hasn’t been as bad as Communism was for Russia because it didn’t come along with a made-up, counterfactual economic theory. Private markets and private initiative remained possible in Iran.

But just like the old Soviet Union (and perhaps like any similar dictatorship), Iran has become a kleptocracy. Iran’s religious and military leaders have taken over most of Iran’s basic industry and controlled or influenced much of its business.

You don’t have to have a silly economic theory like Communism to destroy a well-functioning economy. All you have to have is a political loyalty test for economic activity. Put basic industry in the hands of your political cronies. Disadvantage or suppress others’ free enterprise. Give your cronies government handouts and permits and the best (or only) higher education at state universities.

Then, slowly but surely, meritocracy, innovation, private initiative and economic health will wither as a weakening economy slips into your corrupt hands. You will own a diminished nation, but it will be yours and your cronies’. That has been the story for most of human history, until the global revolution that Anglo-American business culture has wrought. (That’s one reason why the modern business corporation has been one of the most economically liberating developments in human history. It separates economic activity from politics.)

That’s what was (and still is) happening in Iran. So what did Iran’s leaders do? They pointed their fingers abroad, at Israel and the US. “See,” they said, “look what those nasty Jews are doing, at the Great Satan’s bidding. You must suffer economically as we become like Sparta to redress the Palestinians’ grievances. The Jews and Yanks are the villains, not we. Stick with us and we can defeat them. Isn’t that worth a little suffering?”

All the while, the Supreme Leader and his minion were thinking, but not saying, something quite different. “The more they hate Israel and the US, the less they’ll notice how bad our economic management has been. We can keep our power and our wealth, no matter how badly we abuse them, as long as we keep hate strong.”

Pointing the finger at external villains is not new. It was old when Caesar did it. It almost worked in our own last two presidential elections, although we presume to be far more sophisticated a people than Iran’s. If you want to know when pols are trying to distract your attention from their own thievery or pathetic mismanagement, just be mindful when they urge you to hate or attack a nation that hasn’t attacked yours.

The second audience and reason for Iran’s leaders’ threats are bit more subtle, and unique to Islam. As you may have noticed, Islam is in schism. There are many sects, including Sufis, Salafists and Wahhabis. But the two main ones are the Sunni and Shiites.

Iran is a Shiite nation. So is most of Iraq. Almost all the rest of Greater Arabia is Sunni. So is Al Qaeda.

All Qaeda and its jihadists hate Shiites almost as much as they hate Israel and the US. They have bombed numerous Shiite mosques, shrines, weddings and funerals, in Iraq and increasingly in Afghanistan and Pakistan.

So far, Iran hasn’t seemed to notice. It hasn’t gone to the ramparts, except perhaps in Iraq, where its proxies increasingly target Sunni jihadis and sometimes (by accident?) Sunni civilians. Instead, Iran’s leaders have tried to defuse the conflict, in much the same way that they have misdirected justified anger at their economic mismanagement. They have pointed their accusing fingers abroad.

“The Jews and hated Yanks are your enemies, not we,” they say. “See what horrible things they are doing in Palestine. We Iranian Shiites are your brothers. We would never do anything like that! So direct your anger at our true common enemies, not at us.”

That plea is not gaining much traction, but for a different reason. Iran is also playing a very different game, which has nothing to do with religion and everything to do with pragmatic, selfish, secular self-interest.

Iran’s weapons proving grounds

What is the only state on Earth today that has its chief weapons proving grounds in foreign countries? What is the only state on Earth for which foreigners suffer and die to test its weapons in real combat?

You guessed it. The answer is the Islamic Republic of Iran.

Iran learned some lessons from its Pyrrhic “victory” in the eight-year war with Saddam—if you can call losing about 2% of your population and gaining nothing a “victory.” It learned that wars are safest when fought by proxy, by foreign soldiers on others’ territory. And that’s what Iran has done ever since.

What are Iran’s chief weapons proving grounds? Lebanon and Gaza. Iran has cleverly exploited Hamas’ and Hezbollah’s hatred for Israel to get them to test Iran’s weapons under real combat conditions.

Hamas and Hezbollah supply the soldiers and manpower. They do the fighting and dying. They fire missiles into Israel and report where and how they strike (if the Israeli and international press doesn’t do a better job). Then they suffer retaliatory strikes by Israel’s Air Force, testing how easy the weapons are to move and hide, and how well they survive aerial bombardment. You couldn’t ask for a better, more realistic proving ground.

But that’s not all. Who finances these willing foreigners in their deadly testing of Iran’s weapons? Iran itself finances some of it, but so do others. A vast amount of funding comes from rich donors throughout the Sunni Islamic world, including Saudi Arabia, who consider jihad against Israel a “charity.”

So here’s the plan. Politically, Iran points the finger at Jews and Yanks, saying that they are the enemy, and that Muslims should all cooperate, Shiite and Sunni alike. At the same time, it recruits willing testers of its advanced weapons in Lebanon and Gaza (and maybe soon, Syria), who will fight and die proving and improving Iran’s weapon designs. And all the while, Iran relies on rich Sunni donors to help finance this effort in the common cause of “Islamic jihad.” These same weapons whose development Sunni donors are financing may some day be turned against the Sunnis themselves, if the schism and Al Qaeda’s provocations ever turn into war.

A brilliant strategy? You bet. You can’t get much more brilliant than having your enemies—present or potential—help pay for your own weapons development.

Iran is far from North Korea, and not just in geography. North Korea is all of 59 years old. Iran, in its Persian guise, is nearly as old as China. It has an ancient and proud culture, skilled in the arts of bargaining, subtlety, intrigue and diplomacy.

A critical mass of Iran’s elite apparently think all this is necessary and desirable. Why? Because the West has given Iran’s neighbors and potential Sunni enemies advanced weapons to protect their oil (and in the Saudis’ case, their twisted medieval monarchy). Iran doesn’t trust the West, with good reason, as described above. So after being a nonaggressive regional power for several centuries, Iran has decided to pursue a path of armament. In doing so, it has ruthlessly exploited other people in the region and exacerbated regional tension with Israel.

Conclusion

Like most people with a touch of paranoia (including us, during the Cold War), Israelis who want war with Iran exaggerate Israel’s prominence in Iran’s thinking. Yet in making his most recent threat toward Israel, Iran’s Supreme Leader described Israel as “not big enough to stand out among the Iranian nation’s enemies.”

That was an odd assertion, with more than a touch of paranoia. Perhaps the Ayatollah was referring to us Yanks. But we are far away and, after our near-debacle in Iraq, no longer in such a belligerent mood. More likely, he was also referring to Iran’s Sunni neighbors, who are numerous, rich, endowed with modern Western arsenals, and getting richer yet on the profits from their oil, while Iran suffers our oil boycott.

There are people inside Iran who want to change this state of affairs. They are not our friends. Few, if any, in Iran are now our friends, after all we have done or helped do to Iran. But there are many educated realists and pragmatists who desperately want Iran to become a normal country again. Some are skilled in business. Others are educators, scientists and economists. Many are skilled and experienced pols. All are Muslims, but none is a fundamentalist or jihadi. They are well-educated, largely secular, modern people who happen to have been born in Iran.

These people are not isolated and obsequious sycophants of their Supreme Leader, like North Korea’s people of Kim Jong Un. They have satellite dishes, cell phones and the Internet. They have been biding their time for over a generation. They supported the Islamic Revolution only to get rid of the Shah and Savak. Now they want their country back. Some may be running for president in the next election this fall. Others will be running for Iran’s parliament.

These veterans of Iran’s cataclysmic changes are not alone. Demographically, Iran is a young country, like most other nations in the region. Its youth, at least in the cities, spend as much time on the Internet and their cell phones as they do in mosques. They are not interested in their parents’ grievances, however justified they may be. They look forward to a golden future when people in their region start cooperating and trading and stop hating. It was these youth, not the aging political warriors, who fueled the abortive Green Revolution four years ago.

That’s why this fall’s elections are so important. The Ayatollah is slowly losing his grip on power. His selfish mismanagement of Iran’s economy is becoming more apparent to more people, and he’s not getting any younger. He may be unwilling—or unable—to steal another election.

In any event, we must understand that Mahmoud Ahmadinejad is Iran’s Sarah Palin. He rose to national power on the votes of uneducated, religious country people, just as Sarah Palin tried to do. His highest office before becoming Iran’s president was mayor of Tehran. He knew nothing about foreign policy or international affairs. All he knew was how to manipulate his own people with demagoguery, external consequences be damned. And unlike Sarah Palin on Russia, he couldn’t even pretend to see us or Israel from his porch.

Whatever happens, Ahmadinejad will be gone in about three months. That’s the blessing of term limits, even in a theocracy. Replacing him will be the best chance to change Iran’s direction, for its own betterment and the world’s, since the Islamic Revolution.

People who are running could do a much better job. I don’t want to mention their names for a simple reason. Iran doesn’t need or want the advice of any Yank, even one who, like me, is not unsympathetic toward Iran’s current condition because of the historic damage we have done it.

Any support by us or by Israel, whether direct or indirect, open or clandestine, would be the kiss of death for any Iranian electoral candidate. I’m even afraid to know their names, although I suspect who some of them are.

The best we and the Israelis can do for ourselves and the world for the next three months is to sit on the sidelines and shut up. No war-mongering. No threats. No red lines. Just silence and patience. We can maintain economic sanctions, but we shouldn’t tighten them, gloat about them or discuss them.

We have meddled in Iran’s internal affairs quite enough. So now we ought to stand aside and let Iran heal itself, if it can. There is a chance it will soon restore the democracy that our engineered coup stole from it in 1953.

On the other hand, the Ayatollah may steal another election and get away with doing so again. Or legitimate elections may produce results we don’t like. If so, there will be plenty of time to bluster, threaten and draw red lines afterward. But not now.

Our President, I think, understands this in his bones. He is a brilliant and patient man, with enormous emotional intelligence. He no longer has to seek re-election—another of the great blessings of term limits. So he can do what’s right.

I have little doubt he will do so. He will resist enormous pressure from the Israel lobby here at home, from Israel abroad, and from all our Sunni Arab allies who fear an armed Iran. But his legacy will be far surer as a peacemaker than as the man who, through negligent threats and bluster, caused a needless or premature war with Iran that might destroy the still-fragile global economy yet again.

Sometimes we yanks are anti-intellectual and anti-expert. We yearn to shoot from the hip. We ignore our better leaders. But when we do so, we often shoot ourselves in the foot.

Woodrow Wilson was a former professor just like our President. He advised the victorious allies not to punish a beaten Germany collectively after World War I. If they had taken his advice, World War II—the most horrible conflict in human history—might never have happened.

As did happen, Harry Truman advised against the coup in Iran that toppled Mossadegh, but as former president. Ike went ahead. The result is the Islamic Republic we see today. Rash decisions have consequences that cannot be reversed.

Today our President can make his own decision and be his own man. He can be wise and right despite the inevitable massive pressure to do wrong. We should support him in his lonely wisdom. Starting a premature war before we know where Iran is really headed would be a strategic and moral blunder worthy of Kim Jong Un.

Footnote 1: Sometimes truth is stranger than fiction. I have seen the video of Dubya walking hand-in-hand with King Abdullah. I have even linked it in one of my posts. Yet today the video is “unavailable.”

That sounds like some Soviet commissar erasing history, doesn’t it? But it’s easy to do in a free market with enforceable copyright law. Some rich donor to the GOP offers the copyright owner a price he can’t refuse. It might even be Dubya himself, or his family. Then the purchaser-new copyright owner has YouTube take the video down.

Erasing history? You bet. A figment of my imagination? Not hardly. I taught copyright law for 26 years. I used to teach the case of Rosemont Enterprises, Inc. v. Random House, Inc., in which the late mogul Howard Hughes used precisely these tactics to suppress an unauthorized biography. The Second Circuit Court of Appeals, in New York, refused to support the suppression. But today the suppression of the Dubya-with-Abdullah video is an accomplished fact, unless and until Google or someone else with money comes forward to contest it in court.

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06 May 2013

Rx for Syria: Stopping Air Attacks on Civilians and Cities


[For a very recent post on where our human morality comes from, click here. It, too, has something to say about Syria, albeit indirectly. But the Syrian question is more pressing, to say the least.]

The time is long past to talk of civilian slaughter and displacement in Syria.

Estimates of civilian deaths in Syria’s civil war were approaching 70,000 in early April and no doubt exceed that number now. About a million were external refugees even in March, with “millions more displaced internally.” To say all this suffering is an unnecessary tragedy would be an understatement of Obamanian proportions.

Three things are holding us back from saving more Syrian civilians. First, we don’t want to arm, or even help, the wrong rebels. Various reports suggest that the strongest and best organized rebel fighters are jihadis. We don’t want to give our arms and support to, or to put our stamp on, a new Syrian government that might be a cousin of the Taliban. That’s understandable.

The second thing holding us back is the Russians. Syria is their client state and a big buyer of their arms and munitions. While both those facts are throwbacks to the last century, we don’t want to push the Russians too far.

Their current leaders have been helpful to us in our struggle with terrorists, even to the point of risking enraged Russian public opinion [search for “extraordinary step”]. They haven’t gotten nearly as much back from us in the so-called “reset” in relations since the Cold War’s end. We owe them—although few of us know it—and we can’t give them major offense.

Finally, we are worried about evidence. The President is right to go slow on the limited, small-scale use of sarin gas that has emerged in the news lately. Sarin gas is not hard to make, or to smuggle (in small quantities) from states that have it. These events could easily have been attempts to manipulate our intervention, or parts of a many-sided internecine struggle for which Assad is not responsible.

More to the point, we have a reputation to repair. We can never forget the devastation to our national credibility wreaked by our invasion of Iraq on false pretenses (Saddam’s alleged WMD). And we should never forget who wreaked it: Dubya.

American credibility in matters of life and death is priceless. It served us well in the Cuban Missile Crisis—the single most important event in human history [search for “hard wired”]. The President is right to fret over it and to worry that another mistake in Syria would only damage it further.

But nerve gas is not the only atrocity going on in Syria. Whatever the merits of Assad’s side of the war—and they seem scant—there is no excuse for wholesale killing of one’s own people.

Wasn’t that what the Nazis did in the Holocaust? After less than seventy years, it ill behooves the rest of the world, let alone us Yanks, to stand idly by while a new Holocaust and genocide in Syria tarnishes a human civilization still recovering slowly from the atrocities of World War II.

And then there’s the small matter of housing, shops, businesses, and hospitals. There is no excuse for such wanton destruction of urban habitat. All those displaced people will need somewhere to live (and to heal) when the civil war is finally over and they come home.

If Assad’s minions want supremacy that badly, let them fight for it like men, not by bombing and strafing unarmed civilians and empty buildings from the air. And if they want to extricate bands of rebels, let them do so the hard way, not by reducing a city or suburb to rubble in order to “save” it.

Viewed from this perspective, a viable policy to stop the Syrian Holocaust-genocide becomes clear. Use superior NATO air power to shoot down any Syrian plane attacking civilian targets or Syrian cities.

We don’t need to stop tanks, or even air attacks on rebel-captured tanks maneuvering outside cities. Brave foot soldiers with modern weapons and IEDs can face tanks, as Iraqis proved to our own dismay recently.

The Russians shouldn’t object to this, at least not too strongly. Whoever wins will need people and cities to rule. Empty desert and rubble don’t make much of a nation.

If NATO does this, any real “air war” likely will be short. After a few planes fall, Assad will likely take the rational course and ground most of them, reserving the remainder for emergencies, such as attacking rebel-captured tanks heading toward Damascus, or helping Assad, his family and backers flee. It is possible that the mere announcement of NATO policy will change the behavior of Assad’s air force and spare Syrian civilians and cities. We won’t know until we try.

In short, we don’t really need to “take sides” decisively in the civil war. Let’s just keep Assad’s forces from using one of the most glorious accomplishments of our species—controlled flight—to slaughter innocent civilians and destroy cities.

We could use our drones or ninjas to kill Assad and his inner circle personally, just as we did bin Laden. Both for stopping the slaughter and for imposing individual responsibility on the guilty, that would be lovely.

By waging the last century’s “total war” and genocide against his own people, Assad has proved himself a brutal throwback. For that, he and his inner circle deserve quick execution. As in bin Laden’s case, there is no question of his responsibility. He has not only admitted it; he has reveled in it and tried to justify it.

But our species is still in transition between a regime of bloody brute force for which so-called “legitimate” leaders often escape personal responsibility, to a regime of individual responsibility with the Nuremberg Trials as precedent. So maybe we have to let Assad go, for a while. But we don’t have to let so many innocent civilians die, so many more become refugees, and so much of Syria’s urban landscape become rubble.

We have the power. We have right, history and the precedent of Nuremberg on our side. We have let the slaughter go on far too long. The lives of innocent civilians and the rules of civilized behavior are worth a limited intervention, even if every last one of the rebels is not.

The longer we wait, the more helpless Syrians will become radicalized, and the more likely a jihadi victory will become. Neither the Russians nor we—nor the Syrian people—would benefit from that.

Nor will anyone benefit from the Israel’s military involvement, which could inflame the entire Middle East. In contrast, a limited NATO intervention, for the sole purposes of saving civilians and cities and enforcing minimum norms of civilized behavior, would likely evoke grudging acceptance from the entire Arab-Muslim world.

Let’s act.

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04 May 2013

Whence Morality?


[For a recent post on the physics and economics of solar panels, click here.]
    This above all: to thine own self be true.” William Shakespeare
Where does our human morality come from?

Isn’t that the key question? Does it come from God? from the Bible? from something within us? or from understanding who we are and where we’ve been? You can’t mine the gold until you find the vein.

Recently an online commenter accused me of favoring frauds and thieves like Bernie Madoff. Why? Because I didn’t agree with his take on Christ’s probable view of gay marriage. That nonsequitur was quite a leap. But it got me thinking.

That commenter is hardly alone. Many people “reason” like him. Abandon the Bible and God, or refuse to accept Christ as the Son of God, they think, and we would all be morally at sea. We would be weathervanes in a tornado, pointing in any and every direction—maybe even whirling around in a self-destructive spiral. We would have no guidance or guideposts.

But is that so? I respect the Bible, but as a work of early literary genius, not the Word of God. I believe that Jesus Christ was the greatest political genius in human history. But I don’t see him as the son of God.

Yet still I know that killing, stealing and fraud are wrong. I know this without resort to God, the Bible or Jesus. I think I know and even feel the wrongness as strongly as any man.

Why is that? There are many reasons, including (of course) my upbringing. An important reason is how I view our human world. I see our human life as a precarious balance between our animal instincts and our delicate civilization.

When someone cuts me off in traffic, I feel the same rage as the next guy. The cutoff affronts my personal pride. Sometimes is also startles me or even endangers my physical safety. So my rage has a valid evolutionary basis: personal safety and survival.

But then I think. We couldn’t even have traffic, let alone automobiles, without the intense cooperation, complex rules and complex culture that distinguish us from all other creatures on this planet. So I control my road rage and back off, knowing I am just one driver in the ceaseless flow of freeway traffic that today sadly defines our civilization. (Here the humility that comes with age helps a bit.)

Our entire civilization, including the traffic in which I flow, depends on our ability to suppress our unhelpfully primitive individual instincts. That truth holds especially strong in sexual relations and mate selection. So if we want to have all the delights of modern civilization—or any civilization—we have to observe the forms of civilization and the rules of roadway etiquette, even in the face of provocation.

Did I dream up this worldview myself? No, I was taught.

Over sixty years ago, I was a kid on a playground. I had quite a temper. At one point, I was apparently sitting on top of another kid banging his head into the pavement. (I don’t remember that, just being told about it later.)

After the other kids and the teachers dragged me off, I found myself being instructed by a female teacher, who towered above me. Now cooled down, I knew I had done wrong and feared some sort of punishment, maybe even corporal punishment.

But my teacher did me one better. She patiently explained to me how our human society—our civilization—depends on suppressing the rage that caused me to pound that kid’s head into the ground.

Then she explained that what I had done might have caused serious injury. (Fortunately, it didn’t.) She asked me if I intended that. Of course I didn’t, and I felt a little regret. The emotion of empathy—also a strong part of our civilization!—made me embarrassed at my rage.

Although my parents weren’t religious, they introduced me to the Bible at a young age: the Golden Book version, I think. Later, as I was growing up, I read the real thing, in a course on world literature. But what stuck with me most after all those years was my teacher’s simple explanation.

Everything we have we owe to our precarious, delicate balance between individual animal drives and civilization. Only by cooperating can we produce all that makes our lives easy and a joy—from modern medicine, through the cars, highways and air traffic that let us go anywhere we like, to the huge movie theaters where we can see Life of Pi in 3D. It takes tens of thousands of people, all working together, to build an airplane or run an airline. We owe it all—all our species’ extraordinary collective prowess—to the perennial tension between our biological and social evolution. (Much more on that tension later.)

Through social and biological evolution, we even have “civilizing” emotions. When we transgress the bounds of civilization and harm our fellow humans, we feel guilt, shame or embarrassment. These emotions, which rise unbidden at the proper times, reflect internalization of our civilized norms.

In today’s lax and dissipated capitalist culture, we don’t feel these emotions very often. But we should. For they are part of the yin and yang that keep us in balance. They are woven deeply into our very nature. At the level of individual consciousness, they define the delicate balance between that consciousness and collective cooperation.

To understand this point, you should watch a recent episode of PBS’ marvelous series “Secrets of the Dead.” It tells an extraordinary true story, which has been kept secret for well over half a century.

The Brits fought World War II most effectively with their brains. I have already described how they used a top-secret roomful of mathematicians to break the Nazis’ “Enigma” code, generated by an early mechanical digital computer. But what they did in this instance was equally extraordinary. They kept some German prisoners of war in a comfortable country estate, in relative luxury. Then, through electronic bugs everywhere, even in trees, they listened to and recorded every conversation. They even had an MI19 intelligence agent simulate a British lord, with supposed ties to royalty, to make their German prisoners feel privileged, respected and comfortable enough to talk.

And talk they did. This superb exercise in non-violent espionage produced tens of thousands of pages of transcripts in German, translated into English, revealing deep secrets of the Nazis’ culture, organization, and contradictions.

These transcripts are an invaluable cultural-historical treasure. Apparently they have only recently been declassified. Historians, social scientists and even psychologists will find in them a priceless vein of moral gold to mine.

For our purposes now, the most important vein is the “civilizing” emotions, guilt, shame and embarrassment. The Nazi prisoners of war felt them, just like everyone else. The one who felt them most was a general descended from German nobility. He had never joined the Nazi Party, and he hated Hitler, although serving under his totalitarian rule. But as the war dragged on, Nazi atrocities became impossible to deny, and it became clear that Germany was losing. Then all the high-level prisoners felt these emotions. Even the Prussian general who had been the most avid Nazi partisan did.

We will have lots more digging to do in this rich vein of moral gold. But for now, suffice it to pose a single question. If the Nazis who felt these civilizing emotions, but only weakly and late, had felt them more strongly and earlier, would the Holocaust never have happened?

To understand the emotion that drove the Nazis’ rise to power and aggression, you needn’t even speak German. All you need do is listen to the tone of one of Hitler’s pre-war tirades to German youth. Despite several references to “peace,” the rage is so clear and strong that no language barrier can conceal it. It brings chills to the spine even today.

So there we have it. My own childish rage on the playground, from some long-forgotten insult, caused me to bash another kid’s head into the ground. Just so, the Nazis’ collective rage over collective punishment after World War I, which resulted in the Weimar Inflation (the worst in history), motivated Germans to start the most horrible war in history and later the Holocaust. In both cases, guilt, shame and embarrassment came too little and too late.

As Jew myself, I write this not to excuse the Nazis’ aggression and their unspeakable crimes, but to explain them. Consequences—cause and effect—have not traditionally been a part of moral philosophy. But they should be. After the end of the second senseless, monstrous war in just a few decades, we Yanks acted quite differently from the European victors in World War I. The consequences of our more rational and less instinctive acts were infinitely better.

Today, in our own country, every single justice of our Supreme Court is either a Catholic or a Jew. Why is that? Is it just an interesting coincidence, or does it tell us something about ourselves?

Catholicism and Judaism stand out among the world’s great religions and cultures. They both have strong foundations in guilt and shame. There is virtually no emphasis on these emotions in Eastern religions, such as Buddhism and Hinduism, and little in Islam. Yet they are such defining characteristics of Catholicism and Judaism that they have become grist for popular humor.

Law is the written expression of civilization. It is the rules that make our civilization run. Today it is the product of centuries of intense abstract thought. Our law borrows elements from every great past civilization, from the Greeks and Romans, through medieval England (the Magna Carta), to the so-called Mongol Hordes (in diplomatic immunity).

So why does every one of our current “high priests” of this entirely rational endeavor come from the two American cultures that most rely on—and most value—guilt, shame and embarrassment? I submit it is no coincidence. Rather, it is cause and effect. Law is the public, written and rational expression of civilization. Guilt, shame and embarrassment are the internal, emotional ones. They are civilization’s internal engines.

All our strong emotions have obvious evolutionary purposes. Fear and rage help us survive individually. Love and its cruder cousin, lust, help us propagate our species and insure our collective survival. Guilt, shame and embarrassment help us preserve and propagate our civilization, without which we would be just like every other animal. When properly socialized growing up, we feel these emotions nearly as strongly as fear, rage and love. We neglect or ignore them at our species’ peril.

So today we no longer need gods or scripture to tell us what is right, as long as we understand ourselves. Through science and accurate history, have detailed knowledge of our own selves as individuals and as a species. More important, we have an understanding of consequences, cause and effect. Most important of all, we are beginning to understand the evolutionary basis of our emotions: how they support our civilization and mediate between our individual drives for individual survival and our species’ collective needs.

So maybe now we no longer need to tell ourselves so many clever fictional stories. Instead, real self-knowledge provides grist for moral reflection. Maybe all we really need to do now is to follow the ancient Greeks’ (and Shakespeare’s!) sage advice: know thyself.

As individuals, we are hard-wired so that rage begets rage, violence violence, murder more murder, and war more war. Rage and revenge are in our nature (but, fortunately, only part of it). If we want to save ourselves and our complex and delicate civilization from our own worst instincts, we must suppress that rage, and we must do so without yet more violence.

Our self-reinforcing rage almost extinguished our species in October 1962. Then we came within hours, if not minutes, of nuclear Armageddon.

Had that happened, the consequent nuclear winter might have extinguished all higher life on Earth, including us. We might have produced our very own evolutionary cataclysm, like the huge meteor that extinguished the dinosaurs 65 million years ago. We might, in short, have done ourselves in—all of us. At very least, we would have bombed our fragile species back into the Stone Age, with the added agony of ubiquitous radioactivity.

We avoided that fate by the slimmest of margins, and by the grace of three men’s cool judgment under unimaginable pressure. Our avoiding immediate self-extinction was undoubtedly the single most important moment in our species’ history so far (which is why I keep harping on it in this blog). Every schoolchild should study that fortunate near-miss in detail and in depth, for as long as we have schools.

Yet like most stories, that story is not all bad. It reveals another side of our human nature—the side that makes our civilization possible and maintains all its delights. That side, of which guilt and shame are only a part, is the subject of the next essay in this series.

Footnote 1: The transcripts also revealed the depths of (and widespread responsibility for) the horrors and atrocities that we now know as the Holocaust. They would have provided superb evidence at the Nuremberg Trials. But British intelligence declined to use them as such, preferring to keep this extraordinary espionage technique secret, for possible use against the Soviets.

Footnote 2: Genghis Khan invented the “custom” of diplomatic immunity. He did so by utterly annihilating cities and towns whose inhabitants killed his emissaries. He slaughtered every man, woman and child in them. He often destroyed the walls and buildings, too. Whether the resulting custom arose from knowledge of this practice, from simple consequential reasoning (“If we do it to them, they’ll do it to us”), or from natural selection, history does not record.

Footnote 3: For today’s child immersed in video, the best sources for learning about this near-cataclysm are two one-hour video features on PBS. They are: "Cuban Missile Crisis—Three Men Go to War,” which will rebroadcast on June 4, 2013, and “The Man Who Saved the World,” a story about a Soviet submarine flotilla commander whose restraint and coolness under fire avoided nuclear Armageddon. The Three men whose cool judgment saved our species were that Soviet flotilla commander, Vasiliy Aleksandrovich Arkhipov, and the then leaders of our nation and the Soviets, John Fitzgerald Kennedy and Nikita Sergeyevitch Khrushchev.

The June 4 rebroadcast would be a good thing to show every high school student before graduating. Doing that might take a small step toward a world in which self-extinction events become less likely.

Students also can enjoy a fictionalized but historically accurate version of the most critical period, by renting the year-2000 movie Thirteen Days.

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