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After 9/11, the U.S. Got Almost Everything Wrong

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On the Friday after 9/11, President George W. Bush visited the New York City site that the world would come to know as Ground Zero. After rescue workers shouted that they couldn’t hear him as he spoke to them through a bullhorn, he turned toward them and ad-libbed. “I can hear you,” he shouted. “The whole world hears you, and when we find these people who knocked these buildings down, they’ll hear all of us soon.” Everybody roared. At a prayer service later that day, he outlined the clear objective of the task ahead: “Our responsibility to history is already clear: to answer these attacks and rid the world of evil.”

Appearing on NBC’s Meet the Press two days later, Vice President Dick Cheney offered his own vengeful promise. “We also have to work, though, sort of the dark side, if you will,” he told the host, Tim Russert. “We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful.” He added, “That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal.”

In retrospect, Cheney’s comment that morning came to define the U.S. response to the 2001 terrorist attacks over the next two decades, as the United States embraced the “dark side” to fight what was soon dubbed the “Global War on Terror” (the “GWOT” in gov-speak)—an all-encompassing, no-stone-unturned, whole-of-society, and whole-of-government fight against one of history’s great evils.

It was a colossal miscalculation.

The events of September 11, 2001, became the hinge on which all of recent American history would turn, rewriting global alliances, reorganizing the U.S. government, and even changing the feel of daily life, as security checkpoints and magnetometers proliferated inside buildings and protective bollards sprouted like kudzu along America’s streets.

[George Packer: 9/11 was a warning of what was to come]

I am the author of an oral history of 9/11. Two of my other books chronicle how that day changed the FBI’s counterterrorism efforts and the government’s doomsday plans. I’ve spent much of this year working on a podcast series about the lingering questions from the attacks. Along the way, I’ve interviewed the Cassandra-like FBI agents who chased Osama bin Laden and al-Qaeda before the attacks; first responders and attack survivors in New York, Washington, and Pennsylvania; government officials who hid away in bunkers under the White House and in the Virginia countryside as the day unfolded; the passengers aboard Air Force One with the president on 9/11; and the Navy SEALs who killed bin Laden a decade later. I’ve interviewed directors of the CIA, FBI, and national intelligence; the interrogators in CIA black sites; and the men who found Saddam Hussein in that spider hole in Iraq.

As we approach the 20th anniversary of 9/11 on Saturday, I cannot escape this sad conclusion: The United States—as both a government and a nation—got nearly everything about our response wrong, on the big issues and the little ones. The GWOT yielded two crucial triumphs: The core al-Qaeda group never again attacked the American homeland, and bin Laden, its leader, was hunted down and killed in a stunningly successful secret mission a decade after the attacks. But the U.S. defined its goals far more expansively, and by almost any other measure, the War on Terror has weakened the nation—leaving Americans more afraid, less free, more morally compromised, and more alone in the world. A day that initially created an unparalleled sense of unity among Americans has become the backdrop for ever-widening political polarization.

The nation’s failures began in the first hours of the attacks and continue to the present day. Seeing how and when we went wrong is easy in hindsight. What’s much harder to understand is how—if at all—we can make things right.

As a society, we succumbed to fear.

The most telling part of September 11, 2001, was the interval between the first plane crash at the World Trade Center, at 8:46 a.m., and the second, at 9:03. In those 17 minutes, the nation’s sheer innocence was on display.

The aftermath of the first crash was live on the nation’s televisions by 8:49 a.m. Though horrified, many Americans who saw those images still went on about their morning. In New York, the commuter-ferry captain Peter Johansen recalled how, afterward, he docked at the Wall Street Terminal and every single one of his passengers got off and walked into Lower Manhattan, even as papers and debris rained down from the damaged North Tower.

[Read: Bush’s 9/11 classroom reaction was meant to project ‘calm’]

At the White House, National Security Adviser Condoleezza Rice called Bush, who was in Florida. They discussed the crash and agreed it was strange. But Rice proceeded with her 9 a.m. staff meeting, as previously scheduled, and Bush went into a classroom at the Emma E. Booker Elementary School to promote his No Child Left Behind education agenda. At the FBI, the newly arrived director, Robert Mueller, was actually sitting in a briefing on al-Qaeda and the 2000 bombing of the USS Cole when an aide interrupted with news of the first crash; he looked out the window at the bright blue sky and wondered how a plane could have hit the World Trade Center on such a clear day.

Those muted reactions seem inconceivable today but were totally appropriate to the nation that existed that September morning. The conclusion of the Cold War a decade earlier had supposedly ended history. To walk through Bill Clinton’s presidential library in Little Rock today is to marvel at how low-stakes everything in the 1990s seemed.

But after that second crash, and then the subsequent ones at the Pentagon and in the fields outside Shanksville, Pennsylvania, our government panicked. There’s really no other way to say it. Fear spread up the chain of command. Cheney, who had been hustled to safety in the minutes after the second crash, reflected later, “In the years since, I’ve heard speculation that I’m a different man after 9/11. I wouldn’t say that. But I’ll freely admit that watching a coordinated, devastating attack on our country from an underground bunker at the White House can affect how you view your responsibilities.”

The initial fear seemed well grounded. Experts warned of a potential second wave of attack and of al-Qaeda sleeper cells across the country. Within weeks, mysterious envelopes of anthrax powder began sickening and killing people in Florida, New York, and Washington. Entire congressional office buildings were sealed off by government officials in hazmat suits.

The world suddenly looked scary to ordinary citizens—and even worse behind the closed doors of intelligence briefings. The careful sifting of intelligence that our nation’s leaders rely on to make decisions fell apart. After the critique that federal law enforcement and spy agencies had “failed to connect the dots” took hold, everyone shared everything—every tip seemed to be treated as fact. James Comey, who served as deputy attorney general during some of the frantic post-9/11 era, told me in 2009 that he had been horrified by the unverified intelligence landing each day on the president’s desk. “When I started, I believed that a giant fire hose of information came in the ground floor of the U.S. government and then, as it went up, floor by floor, was whittled down until at the very top the president could drink from the cool, small stream of a water fountain,” Comey said. “I was shocked to find that after 9/11 the fire hose was just being passed up floor by floor. The fire hose every morning hit the FBI director, the attorney general, and then the president.”

According to one report soon after 9/11, a nuclear bomb that terrorists had managed to smuggle into the country was hidden on a train somewhere between Pittsburgh and Philadelphia. This tip turned out to have come from an informant who had misheard a conversation between two men in a bathroom in Ukraine—in other words, from a terrible global game of telephone. For weeks after, Bush would ask in briefings, “Is this another Ukrainian urinal incident?”

Even disproved plots added to the impression that the U.S. was under constant attack by a shadowy, relentless, and widespread enemy. Rather than recognizing that an extremist group with an identifiable membership and distinctive ideology had exploited fixable flaws in the American security system to carry out the 9/11 attacks, the Bush administration launched the nation on a vague and ultimately catastrophic quest to rid the world of “terror” and “evil.”

At the time, some commentators politely noted the danger of tilting at such nebulous concepts, but a stunned American public appeared to crave a bold response imbued with a higher purpose. As the journalist Robert Draper writes in To Start a War, his new history of the Bush administration’s lies, obfuscations, and self-delusions that led from Afghanistan into Iraq, “In the after-shocks of 9/11, a reeling America found itself steadied by blunt-talking alpha males whose unflappable, crinkly-eyed certitude seemed the only antidote to nationwide panic.”

[Amy Zegart: None of my students remember 9/11]

The crash of that second plane at 9:03, live on millions of television sets across the country, had revealed a gap in Americans’ understanding of our world, a gap into which anything and everything—caution and paranoia, liberal internationalism and vengeful militarism, a mission to democratize the Middle East and an ever more pointless campaign amid a military stalemate—might be poured in the name of shared national purpose. The depth of our leaders’ panic and the amorphousness of our enemy led to a long succession of tragic choices.

We chose the wrong way to seek justice.

Before 9/11, the United States had a considered, constitutional, and proven playbook for targeting terrorists: They were arrested anywhere in the world they could be caught, tried in regular federal courts, and, if convicted, sent to federal prison. The mastermind of the 1993 World Trade Center bombing? Arrested in Pakistan. The 1998 embassy bombers? Caught in Kenya, South Africa, and elsewhere. In Sweden on the very morning of 9/11, FBI agents had arrested an al-Qaeda plotter connected to the attack on the USS Cole. The hunt for the plotters of and accomplices to the new attacks could have been similarly handled in civilian courts, whose civil-liberties protections would have shown the world how even the worst evils met with reasoned justice under the law.

Instead, on November 13, 2001, President Bush announced in an executive order that those rounded up in the War on Terror would be treated not as criminals, or even as prisoners of war, but as part of a murky category that came to be known as “enemy combatants.”

While civil libertarians warned of a dark path ahead, Americans seemed not only to shrug off the new approach but also to embrace the no-holds-barred response. In an odd case of geopolitical life imitating Hollywood, the Kiefer Sutherland counterterrorism fantasy vehicle 24 premiered just as Bush drew his new lines on the War on Terror. The show’s ticking-clock drama and line-crossing protagonist taught Americans that stopping evil meant doing evil, that torturing suspects got results and saved lives. The Fox show was a huge hit, its graphic violence and torture a key selling point to audiences.

The CIA actually adopted the Sutherland approach within weeks of the show’s premiere. The agency set up “black sites” around the world to hold terror suspects and force them to talk. Defense Secretary Donald Rumsfeld created and publicly celebrated the prison at Guantánamo, arguing that the sliver of Cuban soil was beyond the reach of U.S. courts, habeas corpus, and due process. The government cut experienced FBI interrogators out of the mix and replaced them with young, untrained military and CIA interrogators. The spy agency hired outside psychologists who designed brutal and scientifically unsound techniques—including beatings, forced nudity, dietary manipulation, sensory deprivation, chaining prisoners in stress positions for hours at a time, confining them in mock coffins, depriving them of sleep, throwing them against a wall, and waterboarding them—that the U.S. called “enhanced interrogation.” Everyone else would call it torture. None of it was conducted under the ticking-clock scenario celebrated by 24; most of these sessions began months and in some cases years after a prisoner was first detained.

Twenty years after 9/11, it’s unclear whether a single meaningful piece of intelligence came out of the torture program, which a U.S. Senate investigation later determined was deployed against dozens of detainees in CIA custody. We tortured CIA detainees and “enemy combatants” in Gitmo whether they seemed useful or not. Similar abuses occurred in the Abu Ghraib prison in Iraq, where guards sexually abused and humiliated prisoners. The moral stain from this era was so obvious that al-Qaeda in Iraq, the group that morphed into the brutal ISIS, later used the imagery against us—parading its own prisoners around in the orange jumpsuits from Gitmo. And yet American leaders continued to embrace the approach anyway. Mitt Romney ran for president promising to “double Guantánamo.” And no senior official, in either the military or the CIA, has ever been held accountable for the deaths, degradations, and abuses inflicted in our name. Quite the opposite: President Donald Trump even promoted Gina Haspel, who had overseen a black site in Thailand, to director of the CIA.

Meanwhile, removing the terror cases from traditional federal courts and sending them to military tribunals has still produced no closure for the families of 9/11 victims. So far, none of the alleged 9/11 plotters sitting in Guantánamo have faced trial. Military-commission proceedings for Khalid Sheikh Mohammed, allegedly a mastermind of the attacks, and four co-defendants are still in a pretrial phase. The trial might start next year—or sometime further in the future. In the meantime, the U.S. military is paying millions of dollars a year to maintain a prison in Cuba housing middle-aged and elderly terror suspects—and in a sign that the military recognizes justice won’t come soon, it has made plans to bring in nursing-home and hospice care in the years ahead. In contrast, the traditional federal courts have repeatedly proved successful in the years since at trying terrorism suspects, including Zacarias Moussaoui—the only person convicted of being a conspirator in the 9/11 plot.

At home, we reorganized the government the wrong way.

Within hours after the 9/11 attacks, serious government failures began to come into focus. The CIA, NSA, and FBI had all overlooked pieces of the plot; bureaucratic inertia and interagency jealousy had prevented the sharing of intelligence that might have disrupted the looming attacks; the CIA had even known that two of the hijackers, known al-Qaeda operatives, were inside the United States. The following March, the Immigration and Naturalization Service notified a Florida flight school that it had approved visas for two of the 9/11 hijackers, including the ringleader Mohamed Atta. That America’s intelligence, counterterrorism, and law-enforcement systems needed an overhaul had become obvious. Following some initial reluctance, the Bush administration embraced a top-to-bottom reorganization of the federal government around “homeland security,” a phrase with little presence in American life before the attacks.

Certain aspects of the reorganization proved successful. The structure of the Office of the Director of National Intelligence, the National Counterterrorism Center, and the Justice Department’s newly created National Security Division have all been net positives inside the government. But the biggest change, the creation of the Department of Homeland Security, the largest government reorganization since World War II, has consistently proved to be a mistake.

[Ben Rhodes: The 9/11 era is over]

Congress shoehorned politically charged immigration and border-security agencies into the same department with uncontroversial emergency-management programs—a setup that left the latter neglected. But beyond its flawed bureaucratic structure and organizational chart, the DHS has the wrong DNA. Unlike the Justice Department, it has no institutional culture rooted in respect for the rule of law. Unsteeped in America’s traditions of freedom and openness, the new department was built to view everything through a lens of “Can it hurt us?” This corrosive mindset became particularly visible on immigration and border-control issues, as a culture of welcoming new citizens and families shifted to one of questioning and suspicion—especially if you happened to have dark skin.

Homeland Security has helped set up scores of so-called state fusion centers, little-scrutinized entities that ostensibly promote intelligence sharing among multiple levels of government but, in practice, have targeted people, such as members of antiwar groups, who do not remotely qualify as terrorists. The department has also accelerated the militarizing of local and state police departments, which recast themselves as potential front-line responders to terror attacks on the American homeland. Billions of DHS dollars have flooded into America’s cities and small towns and, coupled with programs from the Pentagon, provided police officers with weapons of war—heavily armored military vehicles, rifles, grenade launchers, and other tactical gear. It doesn’t take much of a leap to conclude that the transformation of our nation’s police from local guardians to GWOT warriors created more distance between officers and the communities they patrol, and exacerbated the tensions that led to the Black Lives Matter movement. (Similarly, the aggressive, politicized enforcement efforts by the immigration and customs agency forged after 9/11 have prompted a counterreaction in the form of “Abolish ICE.”)

Only the shock of that moment at 9:03 a.m. one Tuesday morning two decades ago can explain why America cobbled together a Frankenstein Cabinet department to fend off terrorists. One DHS section, the newly formed Customs and Border Protection, experienced a surge of growth so poorly executed that the agency became a major corruption threat in the region near the border with Mexico. New agents and officers were sent into the field before background checks were completed. (“We made some mistakes,” one CBP commissioner told me in 2015. “We found out later that we did, in fact, hire cartel members.”)

Even today, the CBP refers to its mission as “keeping terrorists and their weapons out of the U.S. while facilitating lawful international travel and trade.” But its agents primarily find themselves working what amounts to a humanitarian mission on the southern border as migrants flee violence in Central America. This mismatch of resources, training, and personnel helps explain why morale among DHS employees is far lower than in the federal government as a whole.

Last summer, DHS agents and officers ran amok across the country following the protests around the murder of George Floyd. Federal officers snatched citizens off the street in Portland, Oregon, and hustled them into unmarked rental vans. Such episodes reveal all too starkly the danger of creating a new law-enforcement bureaucracy at a moment of national anxiety, effectively enshrining fear into law forever.

Abroad, we squandered the world’s goodwill.

A rare bright spot in the period just after 9/11 was that people around the world reacted to an attack on us as if it had been an attack on them, too. But nearly every step the U.S. pursued in the War on Terror from that point forward cost us friends.

The military and diplomatic mistakes that America made in Afghanistan and Iraq are so obvious in hindsight and have been so thoroughly chronicled by others that they need little recounting here. Afghanistan, at the start, appeared set to be a remarkable victory. Within weeks of our invasion, in the fall of 2001, the U.S. was winning a limited, focused war, yet the Bush administration turned to invade Iraq, starting a war of choice loosely justified through the same bad intelligence and fear-mongering that underlay so many of the government’s other decisions. The Iraq debacle led to defeat in Afghanistan, too, despite trillions of dollars in spending and far too much bloodshed in both countries.

In an embrace of cynicism and realpolitik, we relied on allies—most notably Egypt, Pakistan, and Saudi Arabia—that made our fight more bloody and more costly. Their own officials funded and even harbored the very terror networks we were fighting. These countries’ brutal and corrupt governments were so morally bankrupt that they became recruiting posters for future Islamic extremists.   

In Afghanistan, we made common cause with awful men—warlords and corrupt politicians who pillaged communities, laundered and stole American taxpayer money, trafficked drugs, and made back-room deals with the people we were supposed to be fighting. After the brother of Afghanistan’s president was assassinated in 2011, The Guardian eulogized the southern Afghanistan “mafia don” as “corrupt, treacherous, lawless, paradoxical, subservient and charming”—and that’s not even the brother whom U.S. prosecutors actively investigated for alleged corruption. We condoned child rape. We propped up a government that never reflected the will of the people and that looked so illegitimate to its own citizens that it collapsed in days as American forces withdrew this summer. Its leaders were among the first to flee.

We picked the wrong enemies.   

President Bush, it’s worth remembering, worked hard initially to ensure that the fight against al-Qaeda wasn’t seen as a war on Islam. “The enemy of America is not our many Muslim friends,” he said in a national address before a joint session of Congress on September 20, 2001. “It is not our many Arab friends. Our enemy is a radical network of terrorists and every government that supports them.” But he also broadened the fight to include the defeat of “every terrorist group of global reach” and flattened it into a conflict of cultural values. In an address to the American people, he declared, “Americans are asking, ‘Why do they hate us?’ They hate what they see right here in this chamber: a democratically elected government. Their leaders are self-appointed. They hate our freedoms: our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other.”

Time, along with more fiery rhetoric from Christian evangelical leaders and conservative politicians alike, muddied the message that the U.S. wasn’t at war with Islam, especially as the American success against al-Qaeda morphed into a longer-running battle against offshoots such as al-Qaeda in the Arabian Peninsula and ISIS. Xenophobia quickly overcame leaders’ better angels, particularly on the right. A war that began against an identifiable ideological group—one condemned by others around the world and whose membership likely numbered only about a hundred hard-core adherents—morphed into a larger fight against “terror” broadly, where extra suspicion would fall on tens of thousands and then hundreds of thousands.

Even as the War on Terror rapidly curtailed the ability of any Islamic extremist group to carry out a major, spectacular attack like 9/11, the mentality it created poisoned America and its politics. Hate crimes against Muslims jumped—as did hate crimes against Sikhs, from people too lazy or filled with animosity to bother to understand the difference. In the years ahead, Islamophobic trainings would proliferate inside the FBI and the military, at least until they were exposed in the press. In 2008, GOP speakers insinuated falsely that Barack Obama was a closet Muslim—as if that mere faith, practiced by a billion people around the planet, should be disqualifying for a candidate.

That demonization of Muslims helped give rise to the “birtherism” that Donald Trump embraced to wend his way into the hearts and minds of the Republican Party base, win the GOP’s presidential nomination, and—using a platform that stoked fears of immigrants, ISIS, and terrorists—win the White House.

Meanwhile, for all the original talk of banishing evil from the world, the GWOT’s seemingly exclusive focus on Islamic extremism has led to the neglect of other threats actively killing Americans. In the 20 years since 9/11, thousands of Americans have succumbed to mass killers—just not the ones we went to war against in 2001. The victims have included worshippers in churches, synagogues, and temples; people at shopping malls, movie theaters, and a Walmart; students and faculty at universities and community colleges; professors at a nursing school; children in elementary, middle, and high schools; kids at an Amish school and on a Minnesota Native American reservation; nearly 60 concertgoers who were machine-gunned to death from hotel windows in Las Vegas. But none of those massacres were by the Islamic extremists we’d been spending so much time and money to combat. Since 9/11, more Americans have been killed by domestic terrorists than by foreign ones. Political pressure kept national-security officials from refocusing attention and resources on the growing threat from white nationalists, armed militias, and other groups energized by the anti-immigrant, anti-Muslim strains of the War on Terror.

That 17-minute delay between the two plane crashes—the brief period during which commuters looked up at the smoke rising from the North Tower and still went about their day—epitomized a New York and an America utterly unrecognizable today. Contrast it with this image: a video of a motorcycle backfiring in Times Square in the summer of 2019. Crowds flee; thousands run for their lives at the mere sound of a long bang. After the choices we made after 9/11 corrupted our national psyche and our politics, we are a fearful and divided country. The fear exacerbates the division. Gun sales have soared.

Ironically, we find ourselves in another fight against a shadowy, shape-shifting foe. The coronavirus has killed the equivalent of the 9/11 death toll every three days for the past 18 months. The total death toll surpasses the entire population of Wyoming. At least one part of the U.S. government’s response has been exemplary: Innovative and effective disease-defeating vaccines have been developed, approved, and administered to the majority of American adults for free at a truly impressive speed. Yet rather than pulling us together, the COVID-19 crisis has pushed Americans even further apart. Historians someday will study this moment and wonder how our society was so fragmented as to fumble a crisis that, in technical terms, we were well equipped to handle.

The answer, unfortunately, will be simple: We are confronting the current crisis with little of the hope, goodwill, and unity that 9/11 initially created, and that reality is inseparable from the fear and suspicion that came to dominate America’s reaction to the 2001 attacks—and yielded a long succession of tragic consequences, cynical choices, and poisonous politics. Looking back after two decades, I can’t escape the conclusion that the enemy we ended up fighting after 9/11 was ourselves.


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istoner
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I See What Pregnancy Does to the Body. Texas Lawmakers Don’t.

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Once again, politicians and judges are limiting abortion without any understanding of what pregnancy can, and often does, ask of the human body. To conservative legislators in Texas, a new law banning abortion after about six weeks of gestation is a ploy to subvert Roe v. Wade. But to doctors like me, the measure reveals how thoughtless its designers are and how willing they are to let pregnant patients suffer and die.

I’m an obstetrician who specializes in high-risk cases. Last month, I saw a woman whose water broke 19 weeks into a long-desired pregnancy. This patient, who had conceived after a previous miscarriage, was eager to have a child. When she came to the hospital, my colleagues and I told her the truth: Without an intact amniotic sac, she and her fetus were extraordinarily vulnerable to bacteria from the outside world. She might stay pregnant for the time being. But her chances of getting to 23 weeks—the point at which a baby might be able to survive outside her body, albeit with extensive, lifelong medical problems—were almost zero. While waiting to deliver, she faced a high probability of infection in her uterus, despite the antibiotics that we would give her. She was very likely to develop a serious infection, even sepsis, which could require a hysterectomy or, though unlikely, lead to death.

[Mary Ziegler: The deviousness of Texas’s new abortion law]

We told her that she could watch and wait, despite the risks. Medical standards also dictated that my patient be offered a termination of pregnancy right away, before she could become sick. We outlined ways to terminate her pregnancy: a procedure to evacuate her uterus in the operating room or an induction of labor with the understanding that the newborn would not survive.

This situation comes up at my hospital at least a few times a month, every month. Working with high-risk patients means I need to be able to discuss, recommend, and perform abortions somewhat regularly. This is not because I want to kill babies or end desired pregnancies. It is because, in many cases, I am walking patients and their families through a nightmare. Sometimes, abortion turns out to be the least terrible of all the progressively terrible options they face.

My patient last month thought about her choices for 12 hours and then asked us to induce labor—an option that would keep her safe but allow her to hold her baby’s body. We administered the same medications used for all medical abortions. A few hours later, she delivered a baby quietly, weeping the whole time. She held her baby for the four minutes of its life in this world, and our team wept with her.

[Chavi Eve Karkowsky: I found the outer limits of my pro-choice beliefs]

I practice in New York, where I can offer patients the choices they need. But in Texas, a new law, Senate Bill 8, prohibits abortion after a fetal heartbeat is detected—generally about six weeks into a pregnancy. People who perform or even assist in an abortion after that point can be sued by any person for a minimum of $10,000. Under this law, a medical team would have been taking an enormous risk by offering my patient any option besides waiting. But by the time a patient develops a fever and chills, and their heart rate goes up and their blood pressure goes down, they might be too sick for doctors to help anymore. In the tragic case of Savita Halappanavar in Ireland in 2012, a medical team refused to terminate a pregnancy as long as a fetal heartbeat was detectable. The shock of Halappanavar’s death led to far-reaching reform of Irish laws.

Although S.B. 8 makes an exception when the health of a pregnant patient is at stake, doctors who perform an abortion in such a case would be gambling that they’d be safe from the punitive intent of the law. The threat of litigation inevitably changes the practice of medicine. To feel safe from legal jeopardy in my patient’s case, we might have waited until she’d become febrile or showed other signs of infection before concluding that her health was in jeopardy. That point might have come too late to save her uterus, or her.

If putting patients and doctors in that situation sounds cruel and stupid, that’s because it is.

[Laura Bassett: All of those ‘hysterical’ women were right]

Every week, I see examples of morally necessary pregnancy terminations that, under the Texas law, could put doctors in legal jeopardy. In one case, a 14-year-old with brain damage had been raped by a caregiver. In another, my diagnostic ultrasound 15 weeks into a patient’s pregnancy showed that her fetus had developed an empty space where a brain should be and would not survive more than a few hours past birth. In another case, a patient, whose heart had become weak during her previous pregnancy and had never fully recovered, sought an abortion so she could live to care for her toddler.

If I worked in Texas, anyone could sue me under the new law. But not just me. Anybody could also sue you, should you be the secretary who made the appointment; or the neighbor who watched other kids to make the appointment possible; or the Uber driver who took the patient to the clinic. The payout is at minimum $10,000 per defendant, with no upper limit.

In this way, the law creates a mercenary and adversarial relationship between a community and its medical providers. Reproductive health care depends entirely on trust. You must feel free to talk with doctors like me about postpartum depression, sexual dysfunction, abusive boyfriends, or the occasional cigarettes you still smoke when stressed. And doctors must be able to honestly discuss the options, including pregnancy termination, that could save your life. If your doctor has to worry that any conversation could lead to a patient, or their disgruntled partner or disapproving relative, filing a report in order to make $10,000, that doctor may not be able to keep practicing.

Who would provide complex pregnancy care in such a setting? About half of U.S. counties already lack an obstetrics-and-gynecology provider. I cannot imagine why a newly trained obstetrician would agree to work in Texas under the current law.

[David A. Graham: The strange, sudden silence of conservative abortion foes]

And yet when the law took effect, and when the Supreme Court declined to block it, I couldn’t feel any outrage, or surprise; all I have left is a familiar deadening sadness. The United States has been heading in this direction for years, or even decades, as small and large legal actions have chipped away at abortion access by requiring ultrasounds that serve no medical need, and inappropriate but legally mandated counseling, and waiting periods that exist purely to add another logistical barrier for people who have already made up their mind to end a pregancy. Eighty-seven percent of counties in the U.S. already do not have an abortion provider; many of the ones that do have a doctor flown in one day a week, at considerable personal risk. Getting an abortion in most of the United States is already generally the privilege of people who are wealthy or who live in the right jurisdiction, or both.

This is true despite the fact that most Americans think Roe v. Wade should not be overturned; a significant majority of Americans support some level of legal abortion. Texas has enacted just another poorly thought-out law—an extreme measure, like the ones banning pandemic-control precautions and promoting the proliferation of guns, that most Americans do not support but somehow find themselves living with. If allowed to stand, the Texas abortion law will be replicated in other states—further steps in constructing a world that endangers patients like mine, that most of us don’t want to live in, and that we certainly do not want to hand off to our children.

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istoner
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The Deviousness of Texas’s New Abortion Law

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Last night, the Supreme Court faced an unprecedented emergency application. Unless the Court acted, abortion would be functionally illegal in Texas.

In May, the state had adopted a version of a “heartbeat bill” that went into effect today. So-called heartbeat bills prohibit abortions once a physician can detect fetal cardiac activity, usually around the sixth week of pregnancy, before most people know that they are pregnant. Texas lawmakers had considered such a bill before but balked at the prospect of a possible loss in court—and the thought of forking over legal fees to Planned Parenthood. S.B. 8, the law that now prevails, promised to give conservative lawmakers everything they wanted: the ability to ban abortion with none of the risk.

The key, as Texas lawmakers saw it, was not to criminalize abortions. Instead, the state has authorized private citizens in the state—quite literally any private citizen—to file lawsuits against anyone who performs or “knowingly … aids or abets” an abortion after the sixth week of pregnancy. When plaintiffs in these suits succeed—and many inevitably will—they will receive at least $10,000 from defendants and an injunction preventing a provider from performing any more abortions after six weeks of pregnancy.

Relying on individual activists to flood the courts with lawsuits might seem riskier for anti-abortion-rights lawmakers (the state would need to find a supply of willing plaintiffs rather than doing the job itself) than an outright ban, but the opposite is true. Texas designed its bill to make it nearly impossible to challenge in court.

That’s because state lawmakers and judges can shield themselves using a doctrine called “sovereign immunity,” which typically prevents someone seeking to block a state law from suing the state itself. The Supreme Court created an exception to that rule in a 1908 case called Ex parte Young: Someone challenging the constitutionality of a law can sue the state officer charged with enforcing it. But in Texas, there arguably is no such officer because only private citizens can sue to enforce the law. Abortion providers could wait to get deluged in court, find themselves buried under $10,000 damage awards, and argue that those penalties are unconstitutional. But virtually no doctor seems ready to do that—the state’s providers have responded to the law by no longer offering abortion after the sixth week of pregnancy.

[Mary Ziegler: The abortion fight has never been about just ‘Roe v. Wade’]

The idea of using lawsuits to end abortion emerged decades ago. Unsurprisingly, it first gained steam in Texas. In the 1990s, Mark Crutcher, an anti-abortion-rights activist from the Dallas metroplex, tried to create a self-help industry for members of his movement. He put out instructions on how to write letters to the editor and how to stay on message in debates. But he was convinced that civil lawsuits could gut Roe v. Wade. He sent out “Spies for Life” to gather evidence on whether providers in the state were doing anything wrong. And he provided lawyers across the country with a 79-page manual detailing how to sue abortion doctors for medical malpractice. The result, he hoped, would be skyrocketing insurance rates for abortion clinics and legal bills that most doctors would be unwilling to pay.

Crutcher’s strategy was quite clever: eliminate abortion access without the kind of fanfare that a major Court decision would spur, mobilizing the opposition and risking a backlash. “Right now,” Crutcher wrote, “the future of abortion in America is in serious jeopardy simply because access to abortion is evaporating.”

Activists tried to run with Crutcher’s idea in the years that followed. Most focused on patients who claimed that they had not given informed consent to an abortion (Louisiana passed a law authorizing these suits, which the conservative Fifth Circuit upheld). But interest dried up because most anti-abortion-rights leaders had no interest in slipping under the radar. They wanted to attack Roe directly, secure a decision overruling it, and lay the groundwork for a decision recognizing fetal personhood under the Fourteenth Amendment and thereby making abortion unconstitutional.

S.B. 8 is the signal achievement of strategies like Crutcher’s. With this law, Texas focused on eliminating abortion, not repudiating Roe, and the Supreme Court’s response last night—or, more accurately, the lack thereof—spoke volumes. A district court had blocked the law from going into effect (concluding that state judges were the officials charged with enforcement), but the Fifth Circuit Court of Appeals issued a temporary stay of all proceedings in the lower court, including those involving efforts to block the law from going into effect. Providers filed an emergency appeal with the Supreme Court, and the clock began to run; the Court had until midnight yesterday to act before Texas’s ban went into effect.

When the clock struck midnight, the justices had done precisely nothing. There was no order allowing the law to go into effect or preventing its enforcement. As of this morning, the justices had still not spoken a word.

Some will hesitate to read too much into the Court’s silence—after all, Texas designed its law to be difficult to challenge. And the Court already has a major abortion decision coming up: Next summer, the justices will hand down a decision on a quite different abortion law—one that criminalizes abortion after the 15th week of pregnancy. Mississippi, unlike Texas, invited a constitutional challenge because state lawmakers are gunning for abortion rights. There is no guarantee that the justices will be willing to declare the end of abortion rights for the world to see, regardless of what they do or don’t say about S.B. 8. There is also no telling whether the Court may yet rule on Texas providers’ emergency requests.

[Read: Hell for abortion providers]

But the Court’s silence is revealing. Imagine if Massachusetts had mandated vaccines for those with bona fide religious objections and allowed private citizens to use litigation to enforce that decree. Or if California had outlawed the private ownership of handguns. For decades, the Court has written that abortion is so divisive because it touches people’s most deeply held beliefs about life in the womb, the rights of women, equality between the sexes, and the role of doctors. Whatever else one could say about the Court’s abortion jurisprudence, the justices seemed to take these clashing beliefs seriously. Not anymore. The message from the High Court was one of stunning indifference. The Supreme Court looked at the prospect of a functional ban on abortion and saw no emergency at all.

In the 1990s, Mark Crutcher predicted that the path to ending abortion might be civil lawsuits. If the Supreme Court’s inaction is any indication, he just might have been right.

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istoner
17 days ago
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"Imagine if Massachusetts had mandated vaccines for those with bona fide religious objections and allowed private citizens to use litigation to enforce that decree. Or if California had outlawed the private ownership of handguns."

It is so easy to imagine scenarios like this that I am struggling to understand why Republicans seem completely unperturbed by them. The only explanations I've thought of so far:

1. They are so completely disengaged from any abstract thinking about the social value of the rule of law that they somehow haven't considered scenarios like these, even though every mainstream media article on SB 8 lists a few of them.

2. They are so completely sure they will be on top of the pile forever they can't even imagine being the victims of this kind of monstrous abuse of the legal system, and so they don't give a shit.

Both of those explanations are BRUTALLY uncharitable to the Republicans implementing and supporting these laws. Is there a charitable explanation?
Saint Paul, MN, USA
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Fossil fuels are dead (and here's why)

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So, I'm going to talk about Elon Musk again, everybody's least favourite eccentric billionaire asshole and poster child for the Thomas Edison effect—get out in front of a bunch of faceless, hard-working engineers and wave that orchestra conductor's baton, while providing direction. Because I think he may be on course to become a multi-trillionaire—and it has nothing to do with cryptocurrency, NFTs, or colonizing Mars.

This we know: Musk has goals (some of them risible, some of them much more pragmatic), and within the limits of his world-view—I'm pretty sure he grew up reading the same right-wing near-future American SF yarns as me—he's fairly predictable. Reportedly he sat down some time around 2000 and made a list of the challenges facing humanity within his anticipated lifetime: roll out solar power, get cars off gasoline, colonize Mars, it's all there. Emperor of Mars is merely his most-publicized, most outrageous end goal. Everything then feeds into achieving the means to get there. But there are lots of sunk costs to pay for: getting to Mars ain't cheap, and he can't count on a government paying his bills (well, not every time). So each step needs to cover its costs.

What will pay for Starship, the mammoth actually-getting-ready-to-fly vehicle that was originally called the "Mars Colony Transporter"?

Starship is gargantuan. Fully fuelled on the pad it will weigh 5000 tons. In fully reusable mode it can put 100-150 tons of cargo into orbit—significantly more than a Saturn V or an Energiya, previously the largest launchers ever built. In expendable mode it can lift 250 tons, more than half the mass of the ISS, which was assembled over 20 years from a seemingly endless series of launches of 10-20 ton modules.

Seemingly even crazier, the Starship system is designed for one hour flight turnaround times, comparable to a refueling stop for a long-haul airliner. The mechazilla tower designed to catch descending stages in the last moments of flight and re-stack them on the pad is quite without precedent in the space sector, and yet they're prototyping the thing. Why would you even do that? Well,it makes no sense if you're still thinking of this in traditional space launch terms, so let's stop doing that. Instead it seems to me that SpaceX are trying to achieve something unprecedented with Starship. If it works ...

There are no commercial payloads that require a launcher in the 100 ton class, and precious few science missions. Currently the only clear-cut mission is Starship HLS, which NASA are drooling for—a derivative of Starship optimized for transporting cargo and crew to the Moon. (It loses the aerodynamic fins and the heat shield, because it's not coming back to Earth: it gets other modifications to turn it into a Moon truck with a payload in the 100-200 ton range, which is what you need if you're serious about running a Moon base on the scale of McMurdo station.)

Musk has trailed using early Starship flights to lift Starlink clusters—upgrading from the 60 satellites a Falcon 9 can deliver to something over 200 in one shot. But that's a very limited market.

So what could pay for Starship, and furthermore require a launch vehicle on that scale, and demand as many flights as Falcon 9 got from Starlink?

Well, let's look at the way Starlink synergizes with Musk's other businesses. (Bear in mind it's still in the beta-test stage of roll-out.) Obviously cheap wireless internet with low latency everywhere is a desirable goal: people will pay for it. But it's not obvious that enough people can afford a Starlink terminal for themselves. What's paying for Starlink? As Robert X. Cringely points out, Starlink is subsidized by the FCC—cablecos like Comcast can hand Starlink terminals to customers in remote areas in order to meet rural broadband service obligations that enable them to claim huge subsidies from the FCC: in return they get to milk the wallets of their much easier-to-reach urban/suburban customers. This covers the roll-out cost of Starlink, before Musk starts marketing it outside the USA.

So. What kind of vertically integrated business synergy could Musk be planning to exploit to cover the roll-out costs of Starship?

Musk owns Tesla Energy. And I think he's going to turn a profit on Starship by using it to launch Space based solar power satellites. By my back of the envelope calculation, a Starship can put roughly 5-10MW of space-rate photovoltaic cells into orbit in one shot. ROSA—Roll Out Solar Arrays now installed on the ISS are ridiculously light by historic standards, and flexible: they can be rolled up for launch, then unrolled on orbit. Current ROSA panels have a mass of 325kg and three pairs provide 120kW of power to the ISS: 2 tonnes for 120KW suggests that a 100 tonne Starship payload could produce 6MW using current generation panels, and I suspect a lot of that weight is structural overhead. The PV material used in ROSA reportedly weighs a mere 50 grams per square metre, comparable to lightweight laser printer paper, so a payload of pure PV material could have an area of up to 20 million square metres. At 100 watts of usable sunlight per square metre at Earth's orbit, that translates to 2GW. So Starship is definitely getting into the payload ball-park we'd need to make orbital SBSP stations practical. 1970s proposals foundered on the costs of the Space Shuttle, which was billed as offering $300/lb launch costs (a sad and pathetic joke), but Musk is selling Starship as a $2M/launch system, which works out at $20/kg.

So: disruptive launch system meets disruptive power technology, and if Tesla Energy isn't currently brainstorming how to build lightweight space-rated PV sheeting in gigawatt-up quantities I'll eat my hat.

Musk isn't the only person in this business. China is planning a 1 megawatt pilot orbital power station for 2030, increasing capacity to 1GW by 2049. Entirely coincidentally, I'm sure, the giant Long March 9 heavy launcher is due for test flights in 2030: ostensibly to support a Chinese crewed Lunar expedition, but I'm sure if you're going to build SBSP stations in bulk and the USA refuses to cooperate with you in space, having your own Starship clone would be handy.

I suspect if Musk uses Tesla Energy to push SBPS (launched via Starship) he will find a way to use his massive PV capacity to sell carbon offsets to his competitors. (Starship is designed to run on a fuel cycle that uses synthetic fuels—essential for Mars—that can be manufactured from carbon dioxide and water, if you add enough sunlight. Right now it burns fossil methane, but an early demonstration of the capability of SBPS would be using it to generate renewable fuel for its own launch system.)

Globally, we use roughly 18TW of power on a 24x7 basis. SBPS's big promise is that, unlike ground-based solar, the PV panels are in constant sunlight: there's no night when you're far enough out from the planetary surface. So it can provide base load power, just like nuclear or coal, only without the carbon emissions or long-lived waste products.

Assuming a roughly 70% transmission loss from orbit (beaming power by microwave to rectenna farms on Earth is inherently lossy) we would need roughly 60TW of PV panels in space. Which is 60,000 GW of panels, at roughly 1 km^2 per GW. With maximum optimism that looks like somewhere in the range of 3000-60,000 Starship launches, at $2M/flight is $6Bn to $120Bn ... which, over a period of years to decades, is chicken feed compared to the profit to be made by disrupting the 95% of the fossil fuel industry that just burns the stuff for energy. The cost of manufacturing the PV cells is another matter, but again: ground-based solar is already cheaper to install than shoveling coal into existing power stations, and in orbit it produces four times as much electricity per unit area.

Is Musk going to become a trillionaire? I don't know. He may fall flat on his face: he may not pick up the gold brick that his synergized businesses have placed at his feet: any number of other things could go wrong. I find the fact that other groups—notably the Chinese government—are also going this way, albeit much more slowly and timidly than I'm suggesting, is interesting. But even if Musk doesn't go there, someone is going to get SBPS working by 2030-2040, and in 2060 people will be scratching their heads and wondering why we ever bothered burning all that oil. But most likely Musk has noticed that this is a scheme that would make him unearthly shitpiles of money (the global energy sector in 2014 had revenue of $8Tn) and demand the thousands of Starship flights it will take to turn reusable orbital heavy lift into the sort of industry in its own right that it needs to be before you can start talking about building a city on Mars.

Exponentials, as COVID19 has reminded us, have an eerie quality to them. I think a 1MW SBPS by 2030 is highly likely, if not inevitable, given Starship's lift capacity. But we won't have a 1GW SBPS by 2049: we'll blow through that target by 2035, have a 1TW cluster that lights up the night sky by 2040, and by 2050 we may have ended use of non-synthetic fossil fuels.

If this sounds far-fetched, remember that back in 2011, SpaceX was a young upstart launch company. In 2010 they began flying Dragon capsule test articles: in 2011 they started experimenting with soft-landing first stage boosters. In the decade since then, they've grabbed 50% of the planetary launch market, launched the world's largest comsat cluster (still expanding), begun flying astronauts to the ISS for NASA, and demonstrated reliable soft-landing and re-flight of boosters. They're very close to overtaking the Space Shuttle in terms of reusability: no shuttle flew more than 30 times and SpaceX lately announced that their 10 flight target for Falcon 9 was just a goalpost (which they've already passed). If you look at their past decade, then a forward projection gets you more of the same, on a vastly larger scale, as I've described.

Who loses?

Well, there will be light pollution and the ground-based astronomers will be spitting blood. But in a choice between "keep the astronomers happy" and "climate oopsie, we all die", the astronomers lose. Most likely the existence of $20/kg launch systems will facilitate a new era of space-based astronomy: this is the wrong decade to be raising funds to build something like ELT, only bigger.

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istoner
17 days ago
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Saint Paul, MN, USA
denubis
17 days ago
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LeMadChef
15 days ago
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Surprising optimism from Charlie here.
Denver, CO

When does the Supreme Court lose its legitimacy?

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And what does that mean?  Now is a good time to ask.  The Court has let stand a 5th Circuit decision upholding a Texas law that is plainly unconstitutional under current SCOTUS jurisprudence (it bans abortion at 6 weeks) and involves an enforcement mechanism that comes straight from Stalin’s playbook (it allows individuals to sue people they suspect of assisting a woman of obtaining an abortion).  This piece on Vox runs through how deeply perverse the Texas law in question in, how thoroughly Trump has corrupted the 5th Circuit, and how alarming SCOTUS inaction is.

In Planned Parenthood v. Casey – which, along with Roe is apparently being overruled in Texas without a hearing and without a reasoned opinion – the Court favorably cites earlier opinion to the effect that the Court is supposed to give reasons when it overturns its precedent:

"A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve"

Justice O’Connor adds:

“The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands.  The underlying substance of this legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court's opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation” (emphasis added)

O’Connor adds that if “the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe” that “only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance.”

The Court’s so-called “shadow docket” – consequential decisions rendered in orders for cases not heard, as for example prioritizing religious claims over public health – has been on the rise over the last couple of years, and commentators have worried about the damage this does to the rule of law as an institution.  In the case of abortion, the Court has a case on the docket that would give it the opportunity to overturn Roe; it could have waited until then (and avoided the need to validate Texas’ enforcement mechanism).  You could argue that the Court didn’t “decide” anything last night, but it was faced with a clearly erroneous 5th Circuit decision that it let stand.  I don’t see how last night’s failure to enjoin the Texas law doesn’t utterly gut its legitimacy in the sense articulated in Casey.  Texas just banned abortion, and SCOTUS offered no justification at all in letting the law stand.

Again, Casey: “to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.”  Court legitimacy is important:

“It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.”

So much for Justice Roberts’ efforts to preserve the Court as an institution.

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istoner
17 days ago
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Saint Paul, MN, USA
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On the Discontents of ‘Strategic Patience’

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I’ve been working on a piece about critiques of the American people’s lack of “strategic patience” as evidenced by our withdrawal from Afghanistan. Then I got this note from TPM Reader PT and thought, yes, that’s exactly what I was thinking.

I suspect that you, like me, have seen at least some commentators who argue that the Taliban “won” in Afghanistan by simply waiting us out, or that this demonstrates to other nations that consider an adversarial stance towards the US that we’re a paper tiger now that they know that even if we do take military action against them, all they have to do is wait for us to withdraw, which we inevitably will. I have a different perspective that I’d like to offer, starting with an analogy:

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istoner
23 days ago
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Saint Paul, MN, USA
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