an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
All signs seem to indicate that we are going to war with Iraq, very soon. I’m all for disarming Saddam, but I’ve long been a skeptic of the Bush policy toward Iraq, thinking that it’s a dangerous gamble that will plunge us into a series of armed conflicts for a long time to come. That’s why at one point I called Bush
the most dangerous person on earth.
Bush has played his hand pretty well up to now– his speech to the United Nations on September 12th brilliantly challenged the U.N. to get behind him, and he has managed to get grudging acquiescence, if not wholesale support from the U.N. But it has become quite clear, to me at least, that he means to attack whether or not anybody else is with him. And that’s the dangerous element in the game he is playing.
Saddam is no choirboy: he’s a brutal, ruthless tyrant, and, all other things being equal, it would be a good thing for us to rid the world of brutal ruthless tyrants, and if we can’t get rid of this character, we need to disarm him.
The major problem, as I see it, is that we really don’t know how long the war will last, how many people will be killed and dislocated, how many refugees we will create, how many lives we will shorten through sickness and famine, whether we will destabilize other regimes in the Middle East, and whether America’s enemies will use our preoccupation to gain advantages elsewhere in the world (think about North Korea, for example).
In addition we don’t know whether we will be stuck in an ongoing military occupation of two states with predominantly Muslim populations, first Afghanistan and now Iraq. The more Muslim states we end up occupying, the more convinced other Muslims will be that we are essentially imperialists and do not act in the best interests of Islam. Believe me, that can’t be a good thing.
And then there’s the little problem of Osama bin Laden, who is still at large. Americans tend to get mixed up about who their enemies are; apparently lots of people polled actually think that Iraqis were involved in 9-11. They weren’t. And spending all our time on Iraq distracts us from a little thing called the War on Terrorism. Perhaps it’s good politically for President Bush and Karl Rove to engage in this little bait and switch game, but I don’t think it’s necessarily good for the country’s long term strategic interests.
Faced with uncertainty, one nevertheless must decide. And decision about the right strategy must come soon, because as the months drag on, weather conditions are less amenable to an American-led assault, and the cost of keeping large numbers of troops poised for battle will become prohibitive.
So in order to resolve this question, I did what any sane person would do.
I asked the I Ching.
For those of you unfamiliar with the I Ching (or Book of Changes), it is a Bronze Age Diviner’s manual used by the Zhou Dynasty Kings in ancient China, which was later reinterpreted into a profound work of ethical philosophy and made into one of the Confucian Classics. One consults it by asking a question and then using a random method (like tossing coins or dividing yarrow stalks) to point to a place in the text that provides an answer.
The I Ching does not predict the future. All it does is give you something to chew on, stimulate your unconscious mind. There is absolutely no evidence that randomly throwing coins predicts future events. But reading selected passages from the book itself is quite good at shaking up your accustomed patterns of thought. And sometimes it can be eerily on point, in part because the reader brings his or her own unconscious thoughts and desires to the reading of a text that is by nature ambiguous and subject to multiple interpretations. (Note and shameless self-promotion. I’ve just published a new translation of the I Ching with commentaries, called "The Laws of Change." All quotations are taken from this version).
So I asked the I Ching, “What will happen if the United States attacks Iraq?” And this is what I got. Seriously. I am not making this up.
Hexagram 24 (Fu, Return), line 6 moving:
Six at the top:
Returning in confusion.
There is blunder and disaster.
If one sends armies marching,
In the end one will suffer a great defeat,
With misfortune for the country's ruler.
For ten years
It will not be possible to start out again.
Here is the commentary on the line:
“Returning in confusion” means missing the right time for return. The confusion is internal; it stems from a misunderstanding of the outside world. Obstinacy and bad judgment lead a person to mischaracterize the situation and hence to miss opportunities for reform. Hence the text says “blunder and disaster,” meaning both misfortune from external causes and from one’s ignorance or mistake in dealing with the situation. The text analogizes the situation to warfare. In conducting a campaign timing is essential. If one delays attacking when one should move forward or attacks at the wrong time, the result is certain defeat. The ruler wastes lives and resources and must wait “ten years”-- metaphorically the length of a complete cycle-- for circumstances to improve.
Either through stubbornness or neglect, you have refused to see that change was necessary. As a result you have missed the opportunity to make a turn for the better. If you try to strike out boldly now you will simply make things worse. Instead you must be patient and wait until a new opportunity presents itself.
Woooooh! Sounds pretty bad for the U.S. and for Bush if we attack.
But here’s the thing about oracles. They always have multiple meanings. Who’s to say that the “country’s ruler” isn’t Saddam? Those of you who know the famous story of King Croesus remember that he asked the Oracle at Delphi whether he should cross the Halys river and attack the Persian army. The Oracle is said to have responded, "If Croesus crosses the Halys, a great power will be destroyed." Thinking this referred to the Persian empire, Croesus crossed the river and attacked. Unfortunately, his own great army was annihilated. The oracle, it seems, would have been right either way.
So putting aside the question of prediction, which a random coin toss, I once again emphasize, cannot decide, we might ask whether we can draw any ethical or practical lessons from the text.
There is one lesson we might draw. The theme of this hexagram is the need for reform and for returning to the right path after a long period of strife and confusion. We may be looking at this crisis the wrong way. For the President and most of his advisors, the issue is simple: Saddam is a threat, or may soon become one. We need to strike at him preemptively, whether with our friends or standing alone. Too much is at stake not to act.
However, it may be that attacking Saddam directly is not the best way to disarm him or get rid of him. We do not yet understand everything that is going on in this situation, and we may be confused about what is in our best interests and the world’s. If we wait a bit longer, we may build a case that isolates Saddam in the world community and makes our unilateral action unnecessary. The great military strategist Sun Tzu once said that the greatest general is one who never has to go to war. Such a general arranges his alliances and shapes the terrain of battle so effectively that his foes dare not attack him, but instead act according to his wishes because they have no better strategic alternative.
My advice would be to wait, not because waiting is not acting, but because waiting is the best method of acting, the best way of reforming ourselves and our own ways of thinking. Right now, when so much hangs in the balance, we need to avoid a mindset in which war is inevitable. We need flexibility and imagination. For once we cry havoc and let slip the dogs of war, they will not easily be recalled. And we may have hell to pay for many years to come.