OT agreements. Other transaction agreements, sometimes referred to as other transaction authority, offer one such contractual approach. In contrast to the standard federal procurement laws and regulations, OTs enable speed and flexibility in structuring agreements.15 They are particularly useful in government consortiums, and were commonly used by Warp Speed. Hepburn observes, “darpa has been using them for a very long time. HHS could use them but the DoD has been the best at using them.”
A Government Accountability Office (GAO) study explains their appeal: “To attract innovative companies that may not traditionally do business with DOD, the department can use flexible agreements known as ‘other transactions.’ Other transactions are not subject to certain federal contract laws and requirements.”16
But there are potential risks, even controversies, related to OTs. They bring reduced transparency, and some exemptions from regulations designed to protect taxpayers. Specifically, the concern around OWS is that OTs might have allowed pharma companies to circumvent the Bayh-Dole Act,17 which provides the public with rights in intellectual property arising out of federally funded research, including march-in rights.18
EUA. Emergency Use Authorization (EUA) is a mechanism to allow use of medical products without full FDA approval during a health emergency, such as a pandemic. Traditional FDA approval for a vaccine can take years, whereas an EUA is much quicker, though it still involves rigorous evaluation by the FDA. As the FDA notes, “efforts to speed vaccine development to address the ongoing Covid-19 pandemic have not sacrificed scientific standards, integrity of the vaccine review process, or safety.”19
The GAO, however, was slightly critical in its report assessing the use of EUAs during the pandemic. Its study in no way argued that the authorized medicines weren’t safe, but rather that “the FDA does not uniformly disclose its scientific review of safety and effectiveness data for EUAs,” as it does for traditional approvals.20
DPA. The Defense Production Act (DPA) expedites the supply of services and materials needed for national defense. Hepburn says, “the Defense Production Act is great for an emergency and prioritizing the vaccines in a portfolio but not great because it is encroaching upon traditional vaccine manufacturing. We used the Defense Production Act in Warp Speed and it was a good thing, but it had potential costs.” OWS had to make sure its use of the Defense Production Act did not impinge upon flu vaccine production, which is where the issue of supply chain management comes in.
A benchmark for using these types of expedited contracts, or rather not using them, is the experience of the European Commission.21 The Commission, which had no particular expertise in emergency vaccine procurements, haggled for months in contract negotiations with pharma companies. As a result, the EU was able to obtain slightly cheaper vaccines,22 but this achievement was only notional because it also resulted in almost no supply. The Commission’s solution was to use what it termed a “vaccine export transparency mechanism” to block exports to the UK and to keep vaccines for itself. This was for the “global common good,” said Commission president Ursula von der Leyen.23
A western army marches to within sixty kilometers of Baghdad. Their leader, the youngest son of a great ruler, has gathered them to oust the current regime. They face a large irregular force. A pitched battle is fought. The result is inconclusive. The rudderless army suffers greatly as it attempts to extricate itself from the conflict and find its way home. Perhaps this sounds like something we’ve recently lived through, but it’s not. It’s Xenophon’s Anabasis — the title loosely translates as The March Up Country.
This book — written around 370 B.C., almost thirty years after the events it relates — chronicles an expedition of 10,000 Greek mercenaries under the command of Cyrus against his brother the Persian King Artaxerxes II between 401 and 399 B.C. Arguably the first soldier-turned-author, Xenophon was an Athenian of noble birth, but one who had little taste for the hectic and cosmopolitan life of fifth-century Athens. He had a predilection for war and was an admirer of the Spartans, then ruling the Hellespont after the humiliating Athenian defeat in the Peloponnesian Wars.
The Anabasis opens when Xenophon’s old friend Proxenus, a Theban mercenary serving as a general in the army gathering under Cyrus, invites him to participate in the campaign. Unsure whether or not to join the march, Xenophon consults with the philosopher Socrates who advises him to ask the Oracle at Delphi for guidance. “Xenophon went and put the question to Apollo, to which of the gods he must pray and do sacrifice, so that he might best accomplish his intended journey and return in safety, with good fortune.” The oracle tells Xenophon that he should pray to Apollo, but when he reports this to Socrates, the philosopher is quick to point out that Xenophon asked the wrong question. Rather than inquiring as to whether or not he should go on the campaign or stay at home in the first place, he instead only asked whom he should pray to so that he would achieve the best result once he left.
It seems asking the wrong question in the run-up to war isn’t just a 21st-century phenomenon.
One last time, to see the “value of the speech” as only from the reader’s perspective is just to say that you’re not interested in whether it is language at all, and thus cannot be interested in it as “speech.” But the fact that the linchpin of Robotica’s argument turns out to be the precedent of commercial advertising is entirely fitting, albeit beyond what I can develop here. Long before Citizens United and Robotica, late nineteenth and early twentieth-century jurisprudence and legal theory on corporations began to understand commercial speech fundamentally as money, and had to formulate a degraded theory of language to support it. Their degraded theory was committed to the materiality of signs—a commitment that became known, to literary scholars, as a fundamental premise of deconstruction or what Knapp and Michaels call “theory.” This is part of a much longer story, one I develop in Modernism and the Meaning of Corporate Persons.32 We are still living with legal scholars’ solutions from over a century ago, as they tried to resolve the difficulty in living with and interpreting the writing of collective corporate persons of which it was frequently difficult or impossible to figure out an intention. That Collins and Skover find so much support for their position in the literary theories of the 1980s is, from that perspective, just an unhappy accident.
In retrospect it is easier to see that intellectual conformity was never in the first place a problem confined to particular political regimes. It was never a problem that was going to be solved by regime change. It is rather a problem of modernity and globalism. Both Communists and liberal democrats were committed to their forms of modernity and hostile to tradition, or to any thinking deemed insufficiently modern. Communists believed that the political system needed to extirpate traditional ways of thought, while liberal democrats of the secular sort thought they could be tolerated—for now—because, with the march of history, non-liberal ways of thought would inevitably be trodden underfoot. U.S. Senator Patrick Moynihan used to call this attitude “the liberal expectancy,” and until recently this was also the attitude of the Chinese Communist Party (CCP) toward traditional religions in China. But in recent decades, progressives have become impatient. The politics that claims to be liberal has become far more dominant in the realm of culture and has therefore become narrower, more dogmatic, more determined to impose a vision of the good on those who do not share it.
Globalization, too, has narrowed the circle of approved ideas—an apparent paradox. But in fact the type of intolerance displayed by global corporations, international institutions, and many NGOs has its own internal logic. It is a rule of logic that the more things are denoted the fewer are connoted: we are able to make generalizations only by bracketing particulars. Thus, in the realm of ideology, the more universal power becomes, the less it can tolerate the particular—deviations from accepted ideas. Worldwide commercial brands monopolize glamour and degrade the appeal of local producers. Many human rights crusaders are similarly bent on destroying local ways of life. Advocacy of human rights sounds irreproachably high-minded until one starts inquiring about which human rights are in question, imposed on whom, by whom, and using what sanctions. If we are advocating, say, gay rights in Russia or Iran, digital rights in China, transgender rights in Pakistan, animal rights in sub-Saharan Africa, feminism among the Zulu, or reproductive rights in Catholic hospitals, one may properly ask whether advocates are really according respect to the diverse opinions and beliefs of others. A global regime empowered to enforce human rights inevitably must suppress deviant local beliefs. Strict modernists will argue that global values are the right ones and local ones primitive or backward, but even if one grants that premise, the conclusion still stands: the imposition of values on a global scale requires a certain conformity of thought. Global concentrations of economic and political power have an inherent tendency to reify, harden, and instrumentalize ideas as elements of ideological systems.
This was the moment when America’s devout belief in the free market ran up against reality in Afghanistan. You can’t exaggerate the rigid faith in The Market which possessed the US elite around the Millennium. The Market would solve all problems; that was obvious to everyone.
Thomas Friedman, high priest of elite stupidity, had a famous epiphany: No two countries with McDonald’s franchises had ever gone to war. Or, he suggested, ever could go to war. Bomb Kabul with prefab golden arches and watch peace’n’prosperity break out.
The trouble was — well, first of all, “the free market” doesn’t exist and never has. Quoting from the WaPo’s Afghanistan Papers:
“In developing countries, ‘the idea that there are perfectly functioning markets without subsidies is pure fiction, fantasy,’ Rubin, a New York University professor and leading academic on Afghanistan, told government interviewers. ‘Every late-developing country happened by government picking winners.’“
There were trained people ready to transform Afghanistan. But they were socialists — commies, in the US view.
“There was a solid pool of educated, enthusiastic, honest Afghans with bureaucratic experience. But they wanted to recreate the socialist society of Afghanistan’s ‘Golden Era’ of the mid-20th century.
“…several U.S. officials told government interviewers it quickly became apparent that people who would make up the Afghan ruling class were too set in their ways to change.”
“’These people went to the communist school,” said Finn, the former ambassador. A common Afghan fear, he recalled, was ‘if you allow capitalism, these private companies would come in and make profit.‘”
As the US occupation of Iraq went from bad to worse around 2005, there was even less energy in DC to worry about the pattern of stagnation in Afghanistan.
By 2007, the NYT was already doing post-mortems with titles like “Afghanistan: How A ‘Good’ War Went Bad,” detailing the complete failure of the ludicrous “Afghan Marshall Plan”:
“When it came to reconstruction, big goals were announced, big projects identified. Yet in the year Mr. Bush promised a ‘Marshall Plan’ for Afghanistan, the country received less assistance per capita than did post-conflict Bosnia and Kosovo, or even desperately poor Haiti, according to a RAND Corporation study. Washington has spent an average of $3.4 billion a year reconstructing Afghanistan, less than half of what it has spent in Iraq, according to the Congressional Research Service.”
All remaining investment in Afghanistan went to the war, not development.
“…[A] senior American commander said that even as the military force grew…he was surprised to discover that ‘I could count on the fingers of one or two hands the number of U.S. government agricultural experts’ in Afghanistan, where 80 percent of the economy is agricultural. A $300 million project authorized by Congress for small businesses was never financed.”
For 20 years America built a Potemkin village and called it Afghanistan. Now this cardboard democracy has been trampled down in a matter of days by the Taliban. The speed and comprehensiveness of the rout cannot be explained by Joe Biden’s blunders. The war has drawn to a humiliating end not because of a weak president’s missteps in the final weeks but because the entire project was misconceived. Afghanistan was not ready for democracy and trillions of dollars in American aid could not even begin to change that fact.
With US and allied forces providing security, the Afghan government did not even have to fulfill the most basic function of any state. The Afghan government lived off charity – foreign money, foreign arms. How can anyone be the slightest bit surprised what happens the moment the money and arms (and the troops bearing them) disappear?
Yet Americans cherish illusions. Our country is a worldwide imperial power that is also an invincibly self-righteous liberal democracy. This means it is both inept as an imperialist and hypocritical as a humanitarian force.
Perhaps this is a saving grace: an effectively imperial America would be truly terrifying, and as the old saying goes: if we didn’t have hypocritical values we would have none at all.
The Afghans are not all that worse off for having had a 20-year hiatus from Taliban rule, at least the ones who survived the conflict aren’t. America is worse off for the trillions wasted and thousands of its contractors’ and soldiers’ lives lost. But America is large and rich enough that few have felt the pain.
A cavalcade of generals lied to the public for two decades about the readiness of the Afghan forces they had been training all those years. But there are Americans who live by lies, not only in the Pentagon or the White House but in the media, the think tanks, and among the parts of the public who are sufficiently moved to have feelings about the plight of Afghanistan but not sufficiently interested to do any serious thinking about it.
The new lie that has swiftly replaced the old one about readiness – as swiftly as the Taliban have replaced the US-backed regime – is that the price America paid for an open-ended occupation could be afforded forever. What’s a few trillion? Don’t the soldiers and contractors know that they’re signing up to risk their lives? Isn’t it noble if they die for Afghan women’s rights?
The people who drug themselves with these comforting thoughts – comforting in that they affirm their own righteousness and power – are poor students of political psychology and history. A lost war does less damage to a country like the United States than a war that cannot be won. Losing in Vietnam, the humiliation of evacuating the embassy in 1975, was a shame that Americans quickly overcame. Vietnam still haunted the America of the Reagan years, but the memory spurred the country to rebuild its morale, as well as its military.
In 1905, Frank Lloyd Wright made his first trip to Japan, where he observed with his own eyes the architecture and landscape that had deeply influenced his practice for nearly two decades. Like any eager tourist, he carried with him a camera to document his surroundings. The resulting snapshots are rarely seen records, having been published only through a title that’s out of print, but they are now available for public perusal through a new website launched by the Frank Lloyd Wright Trust.
Donated by Wright’s son, David, the collection of 40 photographs offers views of temples, shrines, and gardens in cities from Kyoto to Okayama. An interactive map on the website traces Wright’s route, which began and ended at Yokohama port. Accompanied by his clients Ward and Cecilia Willits, and by his wife, Wright had arrived via steamship from Vancouver Harbor after taking a train north from Chicago.
By the time of this trip, the American architect was already an avid collector of ukiyo-e prints, and the journey through Japan, in his words, was made “in pursuit of the print.” Wright’s general understanding of Japanese life came from these pictures of the “floating world,” and his 1905 photographs reveal a keenness to witness these scenes in real life.
But if living a good life cannot be had without loving, Sigmund Freud was also surely right in saying, “We are never so defenseless against suffering as when we love.” C. S. Lewis, though a radical critic of Freud, agreed with him about this matter. Lewis wrote,
To love at all is to be vulnerable. Love anything and your heart will be wrung and possibly broken. If you want to make sure of keeping it intact you must give it to no one, not even an animal. Wrap it carefully round with hobbies and little luxuries; avoid all entanglements. Lock it up safe in the casket or coffin of your selfishness. But in that casket, safe, dark, motionless, airless, it will change. It will not be broken; it will become unbreakable, impenetrable, irredeemable. The alternative to tragedy, or at least to risk of tragedy, is damnation. The only place outside Heaven where you can be perfectly safe from all the dangers and perturbations of love is Hell.
Not only does loving expose a person to suffering, but suffering for someone can augment love. The “IKEA effect” is the psychological finding that people value their IKEA furniture (which they had to toil to construct) more than furniture that did not require assembly. We love what we have worked for, toiled over, and suffered for. If these insights are correct, suffering and enjoying a good human life are not set in zero-sum opposition. Through their connection in love, to live well and to suffer are not mutually exclusive but mutually implicative.
We can perhaps better see the connection between flourishing and suffering by considering the nature of love. In his book One Body, Alexander Pruss proposed that love involves willing the good of the other person as other, appreciating the good of the one who is loved, and seeking unity with the one who is loved. Love’s first characteristic, then, is to will the good of other persons as other, to desire the good for them for their own sake. Thus love of enemies is a paradigm case of authentic love, for in loving one’s enemies there is no reasonable expectation that they will give us something back in return.
The second characteristic of love, according to Pruss, is appreciation. Willing the good of the other as other is not sufficient for the fullness of love. Love involves appreciation of the reality of what is good about an individual. If we “do good” for others but hold them in contempt as if they were human garbage, we fail to love them. To love people is to choose an intentional focus in appraising them. “Whatever is true, whatever is honorable, whatever is just, whatever is pure, whatever is lovely, whatever is gracious, if there is any excellence and if there is anything worthy of praise, think about these things” (Phil. 4:8). This focus is compatible with, indeed demands, a responsiveness to reality. I am not really loving my mother if I appreciate her as Prince George of England.
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