Journal of Political Risk, Vol. 4, No. 7, July 2016

Jeremiah S. Pam

Remarks at a symposium on ISIS: Navigating Conflict with Non-State Actors / The University of Texas School of Law, 15 April 2016

I. Introduction

In considering this conference’s subject of how the international community should respond to the challenge of ISIS, I suspect we can all agree that it is imperative that we be informed by our recent experiences with interventions in Iraq and Afghanistan. Of course, the difficult question is how those experiences should inform us. Given my own time in Iraq and Afghanistan, it is perhaps not surprising that I have a few observations from those cases that strike me as potentially relevant, to which I will turn very briefly in a moment.

But as I’ve already written elsewhere about some of these, what really interests me in the context of this conference is what might be called the meta question of how, in general, we should learn from and integrate past experience in thinking about how best to respond to pressing present-day international challenges such as ISIS – and to big questions of international strategy defined more broadly – while at the same time giving due consideration for the likely future consequences of such decisions.

Put simply, this is the question of prudence. While prudence has something of an archaic ring to it today and is not used as often as it once was – with the important but technical exception of the bank regulatory context – I think its essence is both simple and of continuing relevance. My favorite description of what it entails can be seen in a wonderful 16^th Century painting by the Italian Renaissance master Titian that hangs in the National Gallery in London. As described by the art historian Erwin Panofsky, in the painting we see “the countenance of a middle-aged man in full face, the profile to left of an old man, and the profile to right of a youth.” Above each of the conjoined partial portraits there is a corresponding inscription in Latin, which translated reads, “[Learning] from yesterday, today acts prudently, lest by his action he spoil tomorrow.” The title of the painting is “An Allegory of Prudence.”

In these brief remarks, I will make (or at least gesture towards) three points.

First, although the general quality of prudence has long been loosely associated with lawyers, I want to suggest that for a discrete period of time in American history (roughly the first two-thirds of the 20^th century), one of the most distinctive contributions of a certain type of lawyer (which I will refer to in shorthand as the ‘New York lawyer-statesman’ for historical reasons that will shortly become clear) was the application of prudence not to the practice of law as such but to the broader domain of U.S. international strategy and policy. Accordingly, in the historical part of my account I focus not on the narrow lawyer’s question of how ‘lawful’ was understood, but rather on what was distinctively ‘lawyerly’ in these lawyer-statesmen’s contributions to international strategy – what I will call the quality of ‘lawyerly prudence.’

Second, the circumstances that shaped, allowed and even encouraged such contributions to international strategy by these lawyers had largely run their course by the last third of the 20^th century. While other types of prominent lawyers have obviously remained extremely important in public and private affairs – for example, the Washington lawyer-statesman, or the lawyer’s lawyer found in many cities – the specific phenomenon of New York lawyer-statesmen contributing their lawyerly prudence to international strategy that I’m describing here more or less ended as a distinctive, socially reproducing tradition, during this time. However we feel about it, my argument goes, that ship has sailed.

Third, international strategy nonetheless remains as much in need of prudence now as ever before – arguably more so because of the absence from the scene for the last couple of generations of the lawyerly prudent type. But because New York lawyers can no longer serve as the primary exemplars of lawyerly prudence in this context, we now have no choice but to unpack the elements of the old lawyerly prudence and encourage their self-conscious adoption by a broader group of citizen-statespeople who have accumulated the kind of direct and relevant experience with what does and does not work in international strategy that is the necessary (but not sufficient) requirement to develop and exercise prudence of the old lawyerly kind, even though many or most of such people will not be lawyers.

In short, I want to establish the need for a new kind of ‘post-lawyerly’ prudence in international strategy. Fortunately, the international events of the last fifteen or so years have left us with a significant pool of people with experiences that make them potential candidates to exercise this post-lawyerly prudence.

II. Three Personal But Possibly Illustrative Data Points About International Strategy

Since one of the subjects of this conference is the future of Western intervention in response to ISIS, I will begin with the briefest possible account of three observations from my own experience related to Iraq and Afghanistan. My intention here is not to shift the focus from today and ISIS to the past and other conflicts, but simply to provide illustrative examples of the kind of experience that I think the concept of  prudence demands that we consciously integrate, along with future considerations, in deciding how to act today in response to relevant major international strategic challenges – three data points, if you will. In the interest of time I will cut to the chase and simply set out my three observations.

In 2004-5, as a lawyer in private practice with an international firm in New York, I helped advise the government of Iraq on the restructuring of Iraq’s sovereign debt. The result was international agreement to cancel 80% of the country’s Saddam Hussein-era debt, ultimately saving Iraq approximately $100 billion. The debt restructuring was achieved, first, through international negotiations with country creditors, then through international negotiations with private creditors. (And then, through yet more international negotiations with other country creditors.) By most accounts, the debt deal was a rare success of the Iraq effort. However, it is important to note that it was carried out largely outside Iraq – apart from government decisions made at pivotal junctures in Baghdad, much of the work involved took place in locations like Paris and London and Dubai and Amman, rather than on the ground in Iraq.

Not long after, while working for the U.S. Treasury Department as the Financial Attaché for Iraq at the U.S. Embassy in Baghdad in 2006-7, I worked with others to shift Iraqi and Coalition attention away from spending U.S. money through U.S. parallel structures and towards Iraq spending Iraq’s money through Iraqi institutions and processes. This could only be considered a success in that it involved us walking back an approach that was clearly unsustainable. However, as the current situation in Iraq underscores, it did not sufficiently strengthen Iraqi governance for Iraq to fully function as an effective state

Third and finally, in 2010-12 while working for the U.S. State Department as Embassy Kabul’s Governance Policy Chief, I worked with others to shift Afghan and international governance efforts from a scattershot approach pursuing a wide variety of governance objectives at many levels of governance – from tens of thousands of villages to hundreds of districts to 34 provinces – to a more focused approach centered around strengthening the budgetary-governance interface between Afghanistan’s central ministries and their provincial institutions. Again, this could only be considered a success in that it walked back international governance objectives that could not be achieved or sustained even at the height of the surge, and certainly couldn’t be sustained after the drawdown. And here too, it was probably too little, too late, as it currently appears that Afghan governance has not been sufficiently strengthened for Afghanistan to fully function as an effective state either.

With those contemporary points of reference in mind, let me now take a step back in history, to the early and mid-20^th century.

III. The Rise of Lawyerly Prudence in International Strategy

In some respects this is a story that has been well told elsewhere, perhaps most famously in Walter Isaacson’s and Evan Thomas’ book The Wise Men. Pictured on the cover of that book are Robert Lovett, John McCloy, Averell Harriman, Charles Bohlen, George Kennan and Dean Acheson: two financiers, two diplomats, two lawyers (McCloy and Acheson). But the preface establishes at the outset that the tradition originated before them, with McCloy and Lovett’s mentor New York lawyer Henry Stimson, and with Stimson’s mentor, New York lawyer Elihu Root. In 1899, President McKinley famously called Root to leave his practice as a very successful corporate lawyer in New York doing things like railroad reorganizations in order to come down to Washington and serve as McKinley’s Secretary of War following the conclusion of the Spanish-American War and America’s acquisition of the territories of Puerto Rico, Cuba and the Philippines.

But while the ‘wise men’ story is well known, two things about it have attracted less attention. First, why were so many lawyers playing prominent roles in what were clearly policy and strategy decisions? And second, what is the significance of all except Acheson having been not native to Washington, and based instead in New York – not just originally but for the rest of their careers?

There are some obvious historical factors that must immediately be mentioned: Elite lawyers possessed a disproportionately large share of social/professional capital at the time; New York was the most international city in the US; and Washington was not very developed prior to the New Deal and World War II. I have no doubt that each of these played a role. But there were also at least four further elements that I think were also very important.

First, sophisticated corporate lawyers had notable experience working with complexity in the real world: large, far-flung undertakings that involved dealing with multiple and competing agendas and interests, such as continental railroad mergers and reorganizations, an experience base obviously relevant to America’s new global role in the 20^th century.

Second and relatedly, corporate lawyers had some familiarity with the uncertainty inherent in undertakings with many moving parts, which interact with each other and periodically produce unintended, emergent effects.

Third, I think one can argue that well-educated lawyers were better prepared than many of their contemporaries in the policy elite to have some self-conscious appreciation of at least recent history as something that necessarily influences, and constrains the forms of, political change. This is one of the fundamental lessons of common law training: precedents are relevant.

Fourth, the figures happened to live in an extraordinarily eventful time in which to gather lessons of experience – the demands of the period and the norms of the time conspired to provide them with an extraordinary store of direct experience.

These days, when we look back historically at pivotal periods of the 20^th century we tend to focus most on World War II, the creation of the post-war order and institutions, and the so-called Greatest Generation involved in these accomplishments. But I would argue that the key factor that gave rise to the tradition of lawyers acquiring and exercising prudence regarding international strategy actually started earlier, and lay with the contingent historical fact that key individual figures were the right age to be active during the two world wars (as well as during the profound economic challenges of the interwar period).

This point can be illustrated by just the most skeletal account of three central figures. By the time of World War I, Henry Stimson (born in 1867) had already been both Secretary of State and Secretary of War, and of course he went on to serve during World War II as Secretary of War again, when he was in his mid-70s. Stimson’s mentor Elihu Root was too old to be involved in both wars, but Root’s son Elihu Root, Jr. (born in 1881), fifteen years younger than Stimson and co-founder of the storied New York law firm Root Clark, served full-time in the WWI effort as a 35-year old established lawyer, and during WWII, in his 60s, played an important role advising the Army Air Force on strategy for the European offensive. John McCloy, born in 1895, interrupted his time at Harvard Law School to serve as an artillery officer in the Allied Expeditionary Force during WWI, and then 25 years later (after a successful corporate law career in New York) served during WWII as one of Stimson’s key deputies in the War Department, and played further important roles during the 1950s and into the ‘60s.

The key point here is less about what these three New York lawyer-statesmen did than it is about when they did it. They were born in precisely the right narrow window of time – 1867-1895 – that enabled them to see more, do more, and learn more from direct experience about what does and does not work in truly consequential international strategy than lawyer-statesmen before or since.

IV. The Fall of Lawyerly Prudence in International Strategy

It’s true that one can see some continuing, partly second-hand, echoes of this rare experience in the next generation of lawyers who learned at the feet of the ‘double world war’ generation, and consequently one can argue that the influence continued with people born during the first decade or two of the 20^th century. But my sense is that the influence of hard-earned lawyerly prudence became more uneven by the time we got to the generation whose direct experience was limited to WWII.

I want to avoid psychoanalyzing these figures, so I will leave my comment on the WWII generation at this: perhaps it was possible for someone to have one ‘good’ world war – one in which things seemed to go more or less the right way (eventually). But from my study of the experience of the double world war generation (consistent with my own lesser experience), it seems exponentially harder to have had two ‘good’ world wars. From what I have found, that degree of experience seemed to have almost inevitably underscored the difficulty of fully predicting the consequences of large-scale international actions, and to have underscored the power of not only intended but also unintended consequences.

In any case, by the 1960s many other social factors that had supported a special role for lawyerly prudence in international strategy had changed. First was the rise of new competitors in the policy elite with their own claims to special expertise on international matters, most notably economists and political scientists. Second, Washington developed as an economic and even cultural ecosystem in its own right. While Washington didn’t necessarily become less dependent on importing talented lawyers (and other professionals) from New York and other major cities, the growth of the Washington economy made it both less necessary and less attractive for those imported professionals to return to where they came from after they had invested time and effort learning how government and Washington worked – in short, what had been a ‘two-way ticket’ into the 1960s now increasingly became a ‘one way’ ticket.

Third, partly in response to the previous two factors, New York and other non-Washington lawyers tactically began to cede the territory of international policy as such to Washington, and to instead focus their public interested efforts on issues with a more obvious legal dimension, such as international human rights law and international humanitarian law. Finally, particularly in New York, the financial sector became such a large and lucrative market that it increasingly demanded all of the attention of the lawyers practicing there, leaving little time to straddle the Northeast corridor except on client business.

The result of all this, I want to suggest, was that by the 1980s the tradition of lawyerly prudence in international strategy had largely faded away. John McCloy died in 1989.

V. The Future of Prudence in International Strategy: From Lawyerly to Post-Lawyerly

Let me close by returning to the specific context for the question of the contemporary utility of prudence in international strategy presented by this conference: how we should best learn from our relevant recent experiences with interventions in Iraq, Afghanistan and elsewhere in the region in deciding a current strategy for responding to the challenge of  ISIS, while giving due consideration for the future. My argument is that while the tradition of ‘lawyerly prudence’ in international strategy has now largely been overtaken by events, the elements of it are still valuable, and can be cultivated in a broader group of citizen-statespeople who have acquired relevant, comparably intense experience.

To elaborate on this, recall the qualities of the historical lawyerly prudence described earlier: familiarity with complexity and inherent uncertainty (and following from both, a certain humility); a self-conscious sensitivity to the continuing influence of at least recent history; a professional perspective broader than Washington alone; a store of direct experience in truly consequential international affairs.

In fact, it was a contemporary parallel to this last point about experience that partly inspired my inquiry here: the contingent historical fact that the generations active in public and private life today – the baby boom generation still on the public stage, Generation X, even the older members of the next generation – have, by merit of living when we have, accumulated an unusual store of experience during the tumultuous international events of the last fifteen years. While we haven’t had two world wars, we have had two fairly large-scale regional interventions, as well as many smaller interventions. (And this is to say nothing of the international financial crises since 2007.)  My question is, can we take advantage of that experience?

So far, the record has not been particularly encouraging. As a final personal data point, eight years ago I gave a talk at New York Law School based on my experiences in Iraq to that point on what I thought were the mistakes and lessons of (the civilian side) of the Iraq intervention. Nonetheless, just a couple of years later, I found myself in Afghanistan trying to undo some strategy mistakes that sometimes seemed eerily similar.

Nonetheless, I think a concluding summary of my argument leaves us in at least a potentially optimistic place. On the one hand, reviving the key elements of what I’ve called lawyerly prudence seems like a feasible and useful way of taking very seriously past experience while avoiding the pitfall of thinking that present or future challenges will necessarily take the same form. On the other hand, the principal historical vehicle for lawyerly prudence – namely lawyers of the particular type described here – have for many reasons become, over the most recent couple of generations, unable to bear the same responsibility for exemplifying it that they did 100 and 75 and 50 years ago. Therefore, if we think it is valuable to preserve the substance of lawyerly prudence in international strategy going forward, it will be necessary to reconceive it in ‘post-lawyerly’ terms.

About the Author: 

During 2015-16, Jeremiah S. Pam was in residence at the Massachusetts Institute of Technology as a Sloan Fellow in Innovation and Global Leadership, a program founded in 1931 and based at MIT’s Sloan School of Management for a select group of international mid-career executives. He also continued as a research scholar at the Saltzman Institute of War and Peace Studies at Columbia University. From 2010-2012, he worked for the State Department at the U.S. Embassy in Kabul, where he was the Embassy’s Governance Policy Chief. From 2007-10, he was an international strategy consultant based at the U.S. Institute of Peace, and during this period he helped lead strategic assessments of international policies in the Middle East and Central Asia for U.S. civilian and military agencies. From 2006-7 he worked for the Treasury Department at the U.S. Embassy in Baghdad, where he was the Financial Attaché for Iraq. Previously, he was an international finance lawyer at Cleary Gottlieb Steen & Hamilton in New York from 2000-2006, where he specialized in sovereign debt restructuring and advised the governments of Uruguay, Dominica, Iraq, and other countries on international strategy, negotiations, and transactions during debt and financial crises. Early in his career, Pam served for four years as an officer in the U.S. Air Force and through a graduate internship program served three months on the U.S. National Security Council staff. Pam holds an M.B.A. degree from MIT’s Sloan School of Management, a J.D. degree and a certificate in international and comparative law from Columbia Law School, an M.A. degree in Political Science from Columbia University, and an A.B. degree in Social Studies from Harvard College.

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