On May 16, I got into a Twitter argument with Campbell Brown of The 74, an education website.  She released a video on Slate giving advice to the next president.  The video begins: “Without question, to me, the issue is education. Two out of three eighth graders in this country cannot read or do math at grade level.”  I study student achievement and was curious.  I know of no valid evidence to make the claim that two out of three eighth graders are below grade level in reading and math.  No evidence was cited in the video.  I asked Brown for the evidentiary basis of the assertion.  She cited the National Assessment of Educational Progress (NAEP).

NAEP does not report the percentage of students performing at grade level.  NAEP reports the percentage of students reaching a “proficient” level of performance.  Here’s the problem. That’s not grade level. 

In this post, I hope to convince readers of two things:

1.  Proficient on NAEP does not mean grade level performance.  It’s significantly above that.
2.  Using NAEP’s proficient level as a basis for education policy is a bad idea.

Before going any further, let’s look at some history.

NAEP history 

NAEP was launched nearly five decades ago.  The first NAEP test was given in science in 1969, followed by a reading test in 1971 and math in 1973.  For the first time, Americans were able to track the academic progress of the nation’s students.  That set of assessments, which periodically tests students 9, 13, and 17 years old and was last given in 2012, is now known as the Long Term Trend (LTT) NAEP. 

It was joined by another set of NAEP tests in the 1990s.  The Main NAEP assesses students by grade level (fourth, eighth, and twelfth) and, unlike the LTT, produces not only national but also state scores.  The two tests, LTT and main, continue on parallel tracks today, and they are often confounded by casual NAEP observers.  The main NAEP, which was last administered in 2015, is the test relevant to this post and will be the only one discussed hereafter.  The NAEP governing board was concerned that the conventional metric for reporting results (scale scores) was meaningless to the public, so achievement standards (also known as performance standards) were introduced.  The percentage of students scoring at advanced, proficient, basic, and below basic levels are reported each time the main NAEP is given.

Does NAEP proficient mean grade level? 

The National Center for Education Statistics (NCES) states emphatically, “Proficient is not synonymous with grade level performance.” The National Assessment Governing Board has a brochure with information on NAEP, including a section devoted to myths and facts.  There, you will find this:

Myth: The NAEP Proficient level is like being on grade level.

 

Fact: Proficient on NAEP means competency over challenging subject matter.  This is not the same thing as being “on grade level,” which refers to performance on local curriculum and standards. NAEP is a general assessment of knowledge and skills in a particular subject.

Equating NAEP proficiency with grade level is bogus.  Indeed, the validity of the achievement levels themselves is questionable.  They immediately came under fire in reviews by the U.S. Government Accountability Office, the National Academy of Sciences, and the National Academy of Education.[1]  The National Academy of Sciences report was particularly scathing, labeling NAEP’s achievement levels as “fundamentally flawed.”

Despite warnings of NAEP authorities and critical reviews from scholars, some commentators, typically from advocacy groups, continue to confound NAEP proficient with grade level.  Organizations that support school reform, such as Achieve Inc. and Students First, prominently misuse the term on their websites.  Achieve presses states to adopt cut points aligned with NAEP proficient as part of new Common Core-based accountability systems.  Achieve argues that this will inform parents whether children “can do grade level work.” No, it will not.  That claim is misleading.

How unrealistic is NAEP proficient? 

Shortly after NCLB was signed into law, Robert Linn, one of the most prominent psychometricians of the past several decades, called ”the target of 100% proficient or above according to the NAEP standards more like wishful thinking than a realistic possibility.”  History is on the side of that argument.  When the first main NAEP in mathematics was given in 1990, only 13 % of eighth graders scored proficient and 2 % scored advanced.  Imagine using “proficient” as synonymous with grade level—85 % scored below grade level! 

The 1990 national average in eighth grade scale scores was 263 (see Table 1).  In 2015, the average was 282, a gain of 19 scale score points.

Table 1.  Main NAEP Eighth Grade Math Score, by achievement levels, 1990-2015

Year	Scale Score Average	Below Basic (%)	Basic	Proficient	Advanced	Proficient and Above
2015	282	29	38	25	8	33
2009	283	27	39	26	8	34
2003	278	32	39	23	5	28
1996	270	39	38	20	4	24
1990	263	48	37	13	2	15

That’s an impressive gain.  Analysts who study NAEP often use 10 points on the NAEP scale as a back of the envelope estimate of one year’s worth of learning.  Eighth graders have gained almost two years.  The percentage of students scoring below basic has dropped from 48%  in 1990 to 29% in 2015.  The percentage of students scoring proficient or above has more than doubled, from 15% to 33%.  That’s not bad news; it’s good news.

But the cut point for NAEP proficient is 299.  By that standard, two-thirds of eighth graders are still falling short.  Even students in private schools, despite hailing from more socioeconomically advantaged homes and in some cases being selectively admitted by schools, fail miserably at attaining NAEP proficiency.  More than half (53 percent) are below proficient. 

Today’s eighth graders have made it about half-way to NAEP proficient in 25 years, but they still need to gain almost two more years of math learning (17 points) to reach that level.  And, don’t forget, that’s just the national average, so even when that lofty goal is achieved, half of the nation’s students will still fall short of proficient.  Advocates of the NAEP proficient standard want it to be for all students.  That is ridiculous.  Another way to think about it: proficient for today’s eighth graders reflects approximately what the average twelfth grader knew in mathematics in 1990.   Someday the average eighth grader may be able to do that level of mathematics.  But it won’t be soon, and it won’t be every student.

In the 2007 Brown Center Report on American Education, I questioned whether NAEP proficient is a reasonable achievement standard.[2]  That year, a study by Gary Phillips of American Institutes for Research was published that projected the 2007 TIMSS scores on the NAEP scale.  Phillips posed the question: based on TIMSS, how many students in other countries would score proficient or better on NAEP?  The study’s methodology only produces approximations, but they are eye-popping.

Here are just a few countries:

Table 2.  Projected Percent NAEP Proficient, Eighth Grade Math

Singapore was the top scoring nation on TIMSS that year, but even there, more than a quarter of students fail to reach NAEP proficient.  Japan is not usually considered a slouch on international math assessments, but 43% of its eighth graders fall short.  The U.S. looks weak, with only 26% of students proficient.  But England, Israel, and Italy are even weaker.  Norway, a wealthy nation with per capita GDP almost twice that of the U.S., can only get 9 out of 100 eighth graders to NAEP proficient.

Finland isn’t shown in the table because it didn’t participate in the 2007 TIMSS.  But it did in 2011, with Finland and the U.S. scoring about the same in eighth grade math.  Had Finland’s eighth graders taken NAEP in 2011, it’s a good bet that the proportion scoring below NAEP proficient would have been similar to that in the U.S.  And yet articles such as “Why Finland Has the Best Schools,” appear regularly in the U.S. press.[3]

Why it matters

The National Center for Education Statistics warns that federal law requires that NAEP achievement levels be used on a trial basis until the Commissioner of Education Statistics determines that the achievement levels are “reasonable, valid, and informative to the public.”  As the NCES website states, “So far, no Commissioner has made such a determination, and the achievement levels remain in a trial status.  The achievement levels should continue to be interpreted and used with caution.”

Confounding NAEP proficient with grade-level is uninformed.  Designating NAEP proficient as the achievement benchmark for accountability systems is certainly not cautious use.  If high school students are required to meet NAEP proficient to graduate from high school, large numbers will fail. If middle and elementary school students are forced to repeat grades because they fall short of a standard anchored to NAEP proficient, vast numbers will repeat grades.    

On NAEP, students are asked the highest level math course they’ve taken.  On the 2015 twelfth grade NAEP, 19% of students said they either were taking or had taken calculus.   These are the nation’s best and the brightest, the crème-de la crème of math students.  Only one in five students work their way that high up the hierarchy of American math courses.  If you are over 45 years old and reading this, the proportion who took calculus in high school is less than one out of ten.  In the graduating class of 1990, for instance, only 7% of students had taken calculus.[4] 

Unsurprisingly, calculus students are also typically taught by the nation’s most knowledgeable math teachers.  The nation’s elite math students paired with the nation’s elite math teachers: if any group can prove NAEP proficient a reasonable goal and succeed in getting all students over the NAEP proficiency bar, this is the group. 

But they don’t.  A whopping 30% score below proficient on NAEP.  For black and Hispanic calculus students, the figures are staggering.  Two-thirds of black calculus students score below NAEP proficient.  For Hispanics, the figure is 52%.  The nation’s pre-calculus students also fair poorly (69% below proficient). Then the success rate falls off a cliff.  In the class of 2015, more than nine out of ten students whose highest math course was Trigonometry or Algebra II fail to meet the NAEP proficient standard.

Table 3.  2015 NAEP Twelfth Grade Math, Proficient by Highest Math Course Taken

Highest Math Course Taken	Percentage Below NAEP Proficient
Calculus	30
Pre-calculus	69
Trig/Algebra II	92

Source: NAEP Data Explorer

These data defy reason; they also refute common sense.  For years, educators have urged students to take the toughest courses they can possibly take.  Taken at face value, the data in Table 3 rip the heart out of that advice.  These are the toughest courses, and yet huge numbers of the nation’s star students, by any standard aligned with NAEP proficient, would be told that they have failed.  Some parents, misled by the confounding of proficient with grade level, might even mistakenly believe that their kids don’t know grade level math.

Conclusion 

NAEP proficient is not synonymous with grade level.  NAEP officials urge that proficient not be interpreted as reflecting grade level work.  It is a standard set much higher than that.  Scholarly panels have reviewed the NAEP achievement standards and found them flawed.  The highest scoring nations of the world would appear to be mediocre or poor performers if judged by the NAEP proficient standard.  Even large numbers of U.S. calculus students fall short.

As states consider building benchmarks for student performance into accountability systems, they should not use NAEP proficient—or any standard aligned with NAEP proficient—as a benchmark.  It is an unreasonable expectation, one that ill serves America’s students, parents, and teachers--and the effort to improve America’s schools.

       

Editor's note: This post originally appeared in the New England Journal of Medicine's Perspective online series on April 22, 2015.

Congress has finally euthanized the sustainable growth rate formula (SGR). Enacted in 1997 and intended to hold down growth of Medicare spending on physician services, the formula initially worked more or less as intended. Then it began to call for progressively larger and more unrealistic fee cuts — nearly 30% in some years, 21% in 2015. Aware that such cuts would be devastating, Congress repeatedly postponed them, and most observers understood that such cuts would never be implemented. Still, many physicians fretted that the unthinkable might happen.

Now Congress has scrapped the SGR, replacing it with still-embryonic but promising incentives that could catalyze increased efficiency and greater cost control than the old, flawed formula could ever really have done, in a law that includes many other important provisions. How did such a radical change occur?  And why now?

The “how” was logrolling — the trading of votes by legislators in order to pass legislation of interest to each of them. Logrolling has become a dirty word, a much-reviled political practice. But the Medicare Access and CHIP (Children’s Health Insurance Program) Reauthorization Act (MACRA), negotiated by House leaders John Boehner (R-OH) and Nancy Pelosi (D-CA) and their staffs, is a reminder that old-time political horse trading has much to be said for it.

The answer to “why now?” can be found in the technicalities of budget scoring. Under the SGR, Medicare’s physician fees were tied through a complex formula to a target based on caseloads, practice costs, and the gross domestic product. When current spending on physician services exceeded the targets, the formula called for fee cuts to be applied prospectively. Fee cuts that were not implemented were carried forward and added to any future cuts the formula might generate. Because Congress repeatedly deferred cuts, a backlog developed. By 2012, this backlog combined with assumed rapid future growth in Medicare spending caused the Congressional Budget Office (CBO) to estimate the 10-year cost of repealing the SGR at a stunning $316 billion.

For many years, Congress looked the costs of repealing the SGR squarely in the eye — and blinked. The cost of a 1-year delay, as estimated by the CBO, was a tiny fraction of the cost of repeal. So Congress delayed — which is hardly surprising.

But then, something genuinely surprising did happen. The growth of overall health care spending slowed, causing the CBO to slash its estimates of the long-term cost of repealing the SGR. By 2015, the 10-year price of repeal had fallen to $136 billion. Even this number was a figment of budget accounting, since the chance that the fee cuts would ever have been imposed was minuscule. But the smaller number made possible the all-too-rare bipartisan collaboration that produced the legislation that President Barack Obama has just signed.

The core of the law is repeal of the SGR and abandonment of the 21% cut in Medicare physician fees it called for this year. In its place is a new method of paying physicians under Medicare. Some elements are specified in law; some are to be introduced later. The hard-wired elements include annual physician fee updates of 0.5% per year through 2019 and 0% from 2020 through 2025, along with a “merit-based incentive payment system” (MIPS) that will replace current incentive programs that terminate in 2018. The new program will assess performance in four categories: quality of care, resource use, meaningful use of electronic health records, and clinical practice improvement activities. Bonuses and penalties, ranging from +12% to –4% in 2020, and increasing to +27% to –9% for 2022 and later, will be triggered by performance scores in these four areas. The exact content of the MIPS will be specified in rules that the secretary of health and human services is to develop after consultation with physicians and other health care providers.

Higher fees will be available to professionals who work in “alternative payment organizations” that typically will move away from fee-for-service payment, cover multiple services, show that they can limit the growth of spending, and use performance-based methods of compensation. These and other provisions will ramp up pressure on physicians and other providers to move from traditional individual or small-group fee-for-service practices into risk-based multi-specialty settings that are subject to management and oversight more intense than that to which most practitioners are yet accustomed.

Both parties wanted to bury the SGR. But MACRA contains other provisions, unrelated to the SGR, that appeal to discrete segments of each party. Democrats had been seeking a 4-year extension of CHIP, which serves 8 million children and pregnant women. They were running into stiff head winds from conservatives who wanted to scale back the program. MACRA extends CHIP with no cuts but does so for only 2 years.  It also includes a number of other provisions sought by Democrats: a 2-year extension of the Maternal, Infant, and Early Childhood Home Visiting program, plus permanent extensions of the Qualified Individual program, which pays Part B Medicare premiums for people with incomes just over the federal poverty thresholds, and transitional medical assistance, which preserves Medicaid eligibility for up to 1 year after a beneficiary gets a job.

The law also facilitates access to health benefits. MACRA extends for two years states’ authority to enroll applicants for health benefits on the basis of data on income, household size, and other factors gathered when people enroll in other programs such as the Supplemental Nutrition Assistance Program, the National School Lunch Program, Temporary Assistance to Needy Families (“welfare”), or Head Start. It also provides $7.2 billion over the next two years to support community health centers, extending funding established in the Affordable Care Act.

Elements of each party, concerned about budget deficits, wanted provisions to pay for the increased spending. They got some of what they wanted, but not enough to prevent some conservative Republicans in both the Senate and the House from opposing final passage. Many conservatives have long sought to increase the proportion of Medicare Part B costs that are covered by premiums. Most Medicare beneficiaries pay Part B premiums covering 25% of the program’s actuarial value. Relatively high-income beneficiaries pay premiums that cover 35, 50, 65, or 80% of that value, depending on their income. Starting in 2018, MACRA will raise the 50% and 65% premiums to 65% and 80%, respectively, affecting about 2% of Medicare beneficiaries. No single person with an income (in 2015 dollars) below $133,501 or couple with income below $267,001 would be affected initially. MACRA freezes these thresholds through 2019, after which they are indexed for inflation. Under previous law, the thresholds were to have been greatly increased in 2019, reducing the number of high-income Medicare beneficiaries to whom these higher premiums would have applied. (For reference, half of all Medicare beneficiaries currently have incomes below $26,000 a year.)

A second provision bars Medigap plans from covering the Part B deductible, which is now $147. By exposing more people to deductibles, this provision will cause some reduction in Part B spending. Everyone who buys such plans will see reduced premiums; some will face increased out-of-pocket costs. The financial effects either way will be small.

Inflexible adherence to principle contributes to the political gridlock that has plunged rates of public approval of Congress to subfreezing lows. MACRA is a reminder of the virtues of compromise and quiet negotiation. A small group of congressional leaders and their staffs crafted a law that gives something to most members of both parties. Today’s appalling norm of poisonously polarized politics make this instance of political horse trading seem nothing short of miraculous.

      

The eurozone has three problems: national debt obligations that cannot be met, medium-term imbalances in trade competitiveness, and long-term structural flaws.

The short-run problem requires more of the monetary easing that Germany has, with appalling shortsightedness, been resisting, and less of the near-term fiscal restraint that Germany has, with equally appalling shortsightedness, been seeking. To insist that Greece meet all of its near-term current debt service obligations makes about as much sense as did French and British insistence that Germany honor its reparations obligations after World War I. The latter could not be and were not honored. The former cannot and will not be honored either.

The medium-term problem is that, given a single currency, labor costs are too high in Greece and too low in Germany and some other northern European countries. Because adjustments in currency values cannot correct these imbalances, differences in growth of wages must do the job—either wage deflation and continued depression in Greece and other peripheral countries, wage inflation in Germany, or both. The former is a recipe for intense and sustained misery. The latter, however politically improbable it may now seem, is the better alternative.

The long-term problem is that the eurozone lacks the fiscal transfer mechanisms necessary to soften the effects of competitiveness imbalances while other forms of adjustment take effect. This lack places extraordinary demands on the willingness of individual nations to undertake internal policies to reduce such imbalances. Until such fiscal transfer mechanisms are created, crises such as the current one are bound to recur.

Present circumstances call for a combination of short-term expansionary policies that have to be led or accepted by the surplus nations, notably Germany, who will also have to recognize and accept that not all Greek debts will be paid or that debt service payments will not be made on time and at originally negotiated interest rates. The price for those concessions will be a current and credible commitment eventually to restore and maintain fiscal balance by the peripheral countries, notably Greece.

      

The American people deserve to have a federal government that is both responsive and effective. That simply isn’t the case for more than 1 million people who are awaiting the adjudication of their applications for disability benefits from the Social Security Administration.

Washington can and must do better. This gridlock harms applicants either by depriving them of much-needed support or effectively barring them from work while their cases are resolved because having any significant earnings would immediately render them ineligible. This is unacceptable.

Within the next month, the Government Accountability Office, the nonpartisan congressional watchdog, will launch a study on the issue. More policymakers should follow GAO’s lead. A solution to this problem is long overdue. Here’s how the government can do it.

Congress does not need to look far for an example of how to reduce the SSA backlog. In 2013, the Veterans Administration cut its 600,000-case backlog by 84 percent and reduced waiting times by nearly two-thirds, all within two years. It’s an impressive result.

Why have federal officials dealt aggressively and effectively with that backlog, but not the one at SSA? One obvious answer is that the American people and their representatives recognize a debt to those who served in the armed forces. Allowing veterans to languish while a sluggish bureaucracy dithers is unconscionable. Public and congressional outrage helped light a fire under the bureaucracy. Administrators improved services the old-fashioned way — more staff time. VA employees had to work at least 20 hours overtime per month.

Things are a bit more complicated at SSA, unfortunately. Roughly three quarters of applicants for disability benefits have their cases decided within about nine months and, if denied, decide not to appeal. But those whose applications are denied are legally entitled to ask for a hearing before an administrative law judge — and that is where the real bottleneck begins.

There are too few ALJs to hear the cases. Even in the best of times, maintaining an adequate cadre of ALJs is difficult because normal attrition means that SSA has to hire at least 100 ALJs a year to stay even. When unemployment increases, however, so does the number of applications for disability benefits. After exhausting unemployment benefits, people who believe they are impaired often turn to the disability programs. So, when the Great Recession hit, SSA knew it had to hire many more ALJs. It tried to do so, but SSA cannot act without the help of the Office of Personnel Management, which must provide lists of qualified candidates before agencies can hire them. SSA employs 85 percent of all ALJs and for several years has paid OPM approximately $2 million annually to administer the requisite tests and interviews to establish a register of qualified candidates. Nonetheless, OPM has persistently refused to employ legally trained people to vet ALJ candidates or to update registers. And when SSA sought to ramp up ALJ hiring to cope with the recession challenge, OPM was slow to respond.

In 2009, for example, OPM promised to supply a new register containing names of ALJ candidates. Five years passed before it actually delivered the new list of names. For a time, the number of ALJs deciding cases actually fell. The situation got so bad that the president’s January 2015 budget created a work group headed by the Office of Management and Budget and the Administrative Conference of the United States to try to break the logjam. OPM promised a list for 2015, but insisted it could not change procedures. Not trusting OPM to mend its ways, Congress in October 2015 enacted legislation that explicitly required OPM to administer a new round of tests within the succeeding six months.

These stopgap measures are inadequate to the challenge. Both applicants and taxpayers deserve prompt adjudication of the merits of claims. The million-person backlog and the two-year average waits are bad enough. Many applicants wait far longer. Meanwhile, they are strongly discouraged from working, as anything more than minimal earnings will cause their applications automatically to be denied. Throughout this waiting period, applicants have no means of self-support. Any skills applicants retain atrophy.

The shortage of ALJs is not the only problem. The quality and consistency of adjudication by some ALJs has been called into question. For example, differences in approval rates are so large that differences among applicants cannot plausibly explain them. Some ALJs have processed so many cases that they could not possibly have applied proper standards. In recognition of both problems, SSA has increased oversight and beefed up training. The numbers have improved. But large and troubling variations in workloads and approval rates persist.

For now, political polarization blocks agreement on whether and how to modify eligibility rules and improve incentives to encourage work by those able to work. But there is bipartisan agreement that dragging out the application process benefits no one. While completely eliminating hearing delays is impossible, adequate administrative funding and more, better trained hearing officers would help reduce them. Even if OPM’s past record were better than it is, OPM is now a beleaguered agency, struggling to cope with the fallout from a security breach that jeopardizes the security of the nation and the privacy of millions of current and past federal employees and federal contractors. Mending this breach and establishing new procedures will — and should — be OPM’s top priority.

That’s why, for the sake of everyone concerned, responsibility for screening candidates for administrative law judge positions should be moved, at least temporarily, to another agency, such as the Administrative Conference of the United States. Shortening the period that applicants for disability benefits now spend waiting for a final answer is an achievable goal that can and should be addressed. Our nation’s disabled and its taxpayers deserve better.

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Editor's note: This piece originally appeared in Politico.

       

One cannot help feeling a bit silly taking seriously the policy proposals of a person who seems not to take policy seriously himself. Donald Trump's policy positions have evolved faster over the years than a teenager's moods. He was for a woman's right to choose; now he is against it. He was for a wealth tax to pay off the national debt before proposing a tax plan that would enrich the wealthy and balloon the national debt. He was for universal health care but opposed to any practical way to achieve it.

Based on his previous flexibility, Trump's here-today proposals may well be gone tomorrow. As a sometime-Democrat, sometime-Republican, sometime-independent, who is now the leading candidate for the Republican presidential nomination, Trump has just issued his latest pronouncements on health care policy. So, what the hell, let's give them more respect than he has given his own past policy statements.

Perhaps unsurprisingly, those earlier pronouncements are notable for their detachment from fact and lack of internal logic. The one-time supporter of universal health care now joins other candidates in his newly-embraced party in calling for repeal of the only serious legislative attempt in American history to move toward universal coverage, the Affordable Care Act. Among his stated reasons for repeal, he alleges that the act has "resulted in runaway costs," promoted health care rationing, reduced competition and narrowed choice.

Each of these statements is clearly and demonstrably false. Health care spending per person has grown less rapidly in the six years since the Affordable Care Act was enacted than in any corresponding period in the last four decades. There is now less health care rationing than at any time in living memory, if the term rationing includes denial of care because it is unaffordable. Rationing because of unaffordability is certainly down for the more than 20 million people who are newly insured because of the Affordable Care Act. Hospital re-admissions, a standard indicator of low quality, are down, and the health care exchanges that Trump now says he would abolish, but that resemble the "health marts" he once espoused, have brought more choice to individual shoppers than private employers now offer or ever offered their workers.

Trump's proposed alternative to the Affordable Care Act is even worse than his criticism of it. He would retain the highly popular provision in the act that bars insurance companies from denying people coverage because of preexisting conditions, a practice all too common in the years before the health care law. But he would do away with two other provisions of the Affordable Care Act that are essential to make that reform sustainable: the mandate that people carry insurance and the financial assistance to make that requirement feasible for people of modest means.

Without those last two provisions, barring insurers from using preexisting conditions to jack up premiums or deny coverage would destroy the insurance market. Why? Because without the mandate and the financial aid, people would have powerful financial incentives to wait until they were seriously ill to buy insurance. They could safely do so, confident that some insurer would have to sell them coverage as soon as they became ill. Insurers that set affordable prices would go broke. If insurers set prices high enough to cover costs, few customers could afford them.

In simple terms, Trump's promise to bar insurers from using preexisting conditions to screen customers but simultaneously to scrap the companion provisions that make the bar feasible is either the fraudulent offer of a huckster who takes voters for fools, or clear evidence of stunning ignorance about how insurance works. Take your pick.

Unfortunately, none of the other Republican candidates offers a plan demonstrably superior to Trump's. All begin by calling for repeal and replacement of the Affordable Care Act. But none has yet advanced a well-crafted replacement.

It is not that the Affordable Care Act is perfect legislation. It isn't. But, as the old saying goes, you can't beat something with nothing. And so far as health care reform is concerned, nothing is what the Republican candidates now have on offer.

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Editor's note: This piece originally appeared in U.S. News and World Report.

       

       

       

       

       

       

       

Far too many people reach their advanced years without planning for how they want their lives to end. The result too often is needless suffering, reduced dignity and autonomy, and agonizing decisions for family members.

Addressing these end-of-life issues is difficult. Most of us don’t want to confront them for ourselves or our family members. And until recently, many people resisted the idea of reimbursing doctors for end-of-life counselling sessions. In 2009, Sarah Palin labelled such sessions as the first step in establishing “death panels.” Although no such thing was contemplated when Representative Earl Blumenauer (D- Oregon) proposed such reimbursement, the majority of the public believed that death panels and euthanasia were just around the corner. Even the Obama Administration subsequently backed away from efforts to allow such reimbursement.

Fortunately, this is now history. In the past year or two the tenor of the debate has shifted toward greater acceptance of the need to deal openly with these issues. At least three developments illustrate the shift.

First, talk of “death panels” has receded, and new regulations, approved in late 2015 to take effect in January of this year, now allow Medicare reimbursement for end of life counselling. The comment period leading up to this decision was, according to most accounts, relatively free of the divisive rhetoric characterizing earlier debates. Both the American Medical Association and the American Hospital Association have signaled their support.

Second, physicians are increasingly recognizing that the objective of extending life must be balanced against the expressed priorities of their patients which often include the quality and not just the length of remaining life. Atal Gwande’s best-selling book, Being Mortal, beautifully illustrates the challenges for both doctors and patients. With well-grounded and persuasive logic, Gwande speaks of the need to de-medicalize death and dying.

The third development is perhaps the most surprising. It is a bold proposal advanced by Governor Jeb Bush before he bowed out of the Presidential race, suggesting that eligibility for Medicare be conditioned on having an advanced directive. His interest in these issues goes back to the time when as governor of Florida he became embroiled in a dispute about the removal of a feeding tube from a comatose Terry Schiavo. Ms. Schiavo’s husband and parents were at odds about what to do, her husband favoring removal and her parents wishing to sustain life. In the end, although the Governor sided with the parents, the courts decided in favor of the husband and allowed her to die. If an advanced directive had existed, the family disagreement along with a long and contentious court battle could have been avoided.

The point of such directives is not to pressure people into choosing one option over another but simply to insure that they consider their own preferences while they are still able. Making this a requirement for receipt of Medicare would almost surely encourage more people to think seriously about the type of care they would like toward the end of life and to talk with both their doctors and their family about these views. However, for many others, it would be a step too far and might reverse the new openness to advanced planning. A softer version nudging Medicare applicants to address these issues might be more acceptable. They would be asked to review several advance directive protocols, to choose one (or substitute their own). If they felt strongly that such planning was inappropriate, they could opt out of the process entirely and still receive their benefits.

Advanced care planning should not be linked only to Medicare. We should encourage people to make these decisions earlier in their lives and provide opportunities for them to revisit their initial decisions. This could be accomplished by implementing a similar nudge-like process for Medicaid recipients and those covered by private insurance.

Right now too few people are well informed about their end-of-life options, have talked to their doctors or their family members, or have created the necessary documents. Only about half of all of those who have reached the age of 60 have an advanced directive such as a living will or a power of attorney specifying their wishes. Individual preferences will naturally vary. Some will want every possible treatment to forestall death even if it comes with some suffering and only a small hope of recovery; others will want to avoid this by being allowed to die sooner or in greater comfort. Research suggests that when given a choice, most people will choose comfort care over extended life.

In the absence of advance planning, the choice of how one dies is often left to doctors, hospitals, and relatives whose wishes may or may not represent the preferences of the individual in their care. For example, most people would prefer to die at home but the majority do not. Physicians are committed to saving lives and relatives often feel guilty about letting a loved one “go.”

The costs of prolonging life when there is little point in doing so can be high. The average Medicare patient in their last year of life costs the government $33,000 with spending in that final year accounting for 25 percent of all Medicare spending. Granted no one knows in advance which year is “their last” so these data exaggerate the savings that better advance planning might yield, but even if it is 10% that represents over $50 billion a year. Dr. Ezekiel Emanuel, an expert in this area, notes that hospice care can reduce costs by 10 to 20 percent for cancer patients but warns that little or no savings have accompanied palliative care for heart failure or emphysema patients, for example. This could reflect the late use of palliative care in such cases or the fact that palliative care is more expensive than assumed.

In the end, Dr. Emanuel concludes, and I heartily agree, that a call for better advance planning should not be based primarily on its potential cost savings but rather on the respect it affords the individual to die in dignity and in accordance with their own preferences.

---

Editor's note: This piece originally appeared in Inside Sources.

      

Senior Fellows Ron Haskins and Isabel Sawhill are the first joint recipients of the Daniel Patrick Moynihan Prize from the American Academy of Political and Social Science (AAPSS). The prize is awarded each year to a leading policymaker, social scientist, or public intellectual whose career focuses on advancing the public good through social science. It was named after the late senator from New York and renowned sociologist Daniel Patrick Moynihan. The pair accepted the award May 12 at a ceremony in Washington, DC. 

In their joint lecture delivered at the ceremony, Haskins and Sawhill emphasized the importance of evidence-based public policy, highlighting Sawhill’s latest work in her book, Generation Unbound (Brookings, 2014). Watch their entire speech here:

“Marriage is disappearing and more and more babies are born outside marriage,” Sawhill said during the lecture. “Right now, the proportion born outside of marriage is about 40 percent. It’s higher than that among African Americans and lower than that among the well-educated. But it’s no longer an issue that just affects the poor or minority groups.”

Download Sawhill's slides » | Download Ron Haskins' slides »

The power of evidence-based policy is finally being recognized, Haskins added. “One of the prime motivating factors of the current evidence-based movement,” he said, “is the understanding, now widespread, that most social programs either have not been well evaluated or they don’t work.” Haskins continued:

Perhaps the most important social function of social science is to find and test programs that will reduce the nation’s social problems. The exploding movement of evidence-based policy and the many roots the movement is now planting, offer the best chance of fulfilling this vital mission of social science, of achieving, in other words, exactly the outcomes Moynihan had hoped for.

He pointed toward the executive branch, state governments, and non-profits implementing policies that could make substantial progress against the nation’s social problems.

Richard Reeves, a senior fellow at Brookings and co-director, with Haskins, of the Center on Children and Families (CCF), acknowledged Haskins and Sawhill’s “powerful and unique intellectual partnership” and their world-class work on families, poverty, opportunity, evidence, parenting, work, and education.

Haskins and Sawhill were the first to be awarded jointly by the AAPSS, which recognizes their 15-year collaboration at Brookings and the Center on Children and Families, which they established. In addition to their work at CCF, the two co-wrote Creating an Opportunity Society (Brookings 2009) and serve as co-editors of The Future of Children, a policy journal that tackles issues that have an impact on children and families.

Haskins and Sawhill join the ranks of both current and past Brookings scholars who have received the Moynihan Prize, including Alice Rivlin (recipient of the inaugural prize), Rebecca Blank, and William Julius Wilson along with other distinguished scholars and public servants.

Want to learn more about the award’s namesake? Read Governance Studies Senior Fellow and historian Steve Hess’s account of Daniel Patrick Moynihan’s time in the Nixon White House in his book The Professor and the President (Brookings, 2014).

       

Employment among lower-income men has declined by 11 percent since 1980 and has remained flat among lower-income women. Men and women in the top and middle of the income distribution, on the other hand, have been working as much or more since 1980, creating a growing “work gap” in labor market income between haves and have-nots.   

This paper simulates the effect of five labor market interventions (higher high school graduation rate, minimum wage increases, maintaining full employment, seeing all household heads work full time, and virtual marriages between single mothers and unattached men) on the average incomes of the poorest one-third of American households. They find that the most effective way to increase average incomes of the poorest Americans would be for household heads to work full time, whereas the least effective intervention would be increasing education.

In terms of actual impact on incomes, the simulation of all household heads working full time at their expected wage increased average household earnings by 54 percent from a baseline of $12,415 to $19,163. The research also suggests that even if all household heads worked just some—at expected wages or hours—average earnings would still increase by 16 percent.

The least effective simulation was increasing the high school graduation rate to 90 percent and having half of those “newly” graduated go on to receive some form of post-secondary education. The authors note that the low impact of increasing education on mobility is likely because only one in six of bottom-third adults live in a household in which someone gains a high school degree via the intervention.

Because single parents are disproportionately represented among low-income families, Sawhill and coauthors also explored the impact of adding a second earner to single-parent families through a simulation that pairs low-income, single-mother household heads with demographically similar but unrelated men. That simulation increased the average household earnings of the bottom-third only modestly, by $508, or about 4 percent.

Efforts to increase employment among heads of the poorest households must take into consideration why those household heads aren’t working, they note. According to data from the 2015 Census, the most cited reason for women not working is “taking care of home and family” and for men it is being “ill or disabled.”  

Downloads

• Download "One third of a nation: Strategies for helping working families"

       

Introduction

It was 2025 when Facebook decided to post live feeds from public and private surveillance cameras, so they could be searched online. The decision hardly came as a surprise. Ever since Facebook passed the 500 million-member mark in 2010, it found increasing consumer demand for applications that allowed users to access surveillance cameras with publicly accessible IP addresses. (Initially, live feeds to cameras on Mexican beaches were especially popular.) But in the mid-2020s, popular demand for live surveillance camera feeds were joined by demands from the U.S. government that an open circuit television network would be invaluable in tracking potential terrorists. As a result, Facebook decided to link the public and private camera networks, post them live online, and store the video feeds without restrictions on distributed servers in the digital cloud.

Once the new open circuit system went live, anyone in the world could log onto the Internet, select a particular street view on Facebook maps and zoom in on a particular individual. Anyone could then back click on that individual to retrace her steps since she left the house in the morning or forward click on her to see where she was headed in the future. Using Facebook’s integrated face recognition app, users could click on a stranger walking down any street in the world, plug her image into the Facebook database to identify her by name, and then follow her movements from door-to-door. Since cameras were virtually ubiquitous in public and commercial spaces, the result was the possibility of ubiquitous identification and surveillance of all citizens virtually anywhere in the world—and by anyone. In an enthusiastic launch, Mark Zuckerberg dubbed the new 24/7 ubiquitous surveillance system “Open Planet.”

Open Planet is not a technological fantasy. Most of the architecture for implementing it already exists, and it would be a simple enough task for Facebook or Google, if the companies chose, to get the system up and running: face recognition is already plausible, storage is increasing exponentially; and the only limitation is the coverage and scope of the existing cameras, which are growing by the day. Indeed, at a legal Futures Conference at Stanford in 2007, Andrew McLaughlin, then the head of public policy at Google, said he expected Google to get requests to put linked surveillance networks live and online within the decade. How, he, asked the audience of scholars and technologists, should Google respond?

If “Open Planet” went live, would it violate the Constitution? The answer is that it might not under Supreme Court doctrine as it now exists—at least not if it were a purely-private affair, run by private companies alone and without government involvement. Both the First Amendment, which protects free speech, and the Fourth Amendment, which prohibits unreasonable searches and seizures, only restrict actions by the government. On the other hand, if the government directed Open Planet’s creation or used it to track citizens on government-owned, as well as private-sector, cameras, perhaps Facebook might be viewed as the equivalent of a state actor, and therefore restricted by the Constitution.

At the time of the framing of the Constitution, a far less intrusive invasion of privacy – namely, the warrantless search of private homes and desk drawers for seditious papers – was considered the paradigmatic case of an unreasonable and unconstitutional invasion of privacy. The fact that 24/7 ubiquitous surveillance may not violate the Constitution today suggests the challenge of translating the framers’ values into a world in which Google and Facebook now have far more power over the privacy and free speech of most citizens than any King, president, or Supreme Court justice. In this essay, I will examine four different areas where the era of Facebook and Google will challenge our existing ideas about constitutional protections for free speech and privacy: ubiquitous surveillance with GPS devices and online surveillance cameras; airport body scanners; embarrassing Facebook photos and the problem of digital forgetting; and controversial YouTube videos. In each area, I will suggest, preserving constitutional values requires a different balance of legal and technological solutions, combined with political mobilization that leads to changes in social norms.

Let’s start with Open Planet, and imagine sufficient government involvement to make the courts plausibly consider Facebook’s program the equivalent of state action. Imagine also that the Supreme Court in 2025 were unsettled by Open Planet and inclined to strike it down. A series of other doctrines might bar judicial intervention. The Court has come close to saying that we have no legitimate expectations of privacy in public places, at least when the surveillance technologies in question are in general public use by ordinary members of the public.[1]  As mobile camera technology becomes ubiquitous, the Court might hold that the government is entitled to have access to the same linked camera system that ordinary members of the public have become accustomed to browsing. Moreover, the Court has said that we have no expectation of privacy in data that we voluntarily surrender to third parties.[2] In cases where digital images are captured on cameras owned by third parties and stored in the digital cloud—that is, on distributed third party servers--we have less privacy than citizens took for granted at the time of the American founding. And although the founders expected a degree of anonymity in public, that expectation would be defeated by the possibility of 24/7 surveillance on Facebook.

The doctrinal seeds of a judicial response to Open Planet, however, do exist. A Supreme Court inclined to strike down ubiquitous surveillance might draw on recent cases involving decisions by the police to place a GPS tracking device on the car of a suspect without a warrant, tracking his movements 24/7. The Supreme Court has not yet decided whether prolonged surveillance, in the form of “dragnet-type law enforcement practices” violates the Constitution.[3] Three federal circuits have held that the use of a GPS tracking device to monitor someone’s movements in a car over a prolonged period is not a search because we have no expectations of privacy in our public movements.[4] But in a visionary opinion in 2010, Judge Douglas Ginsburg of the U.S. Court of Appeals disagreed. Prolonged surveillance is a search, he recognized, because no reasonable person expects that his movements will be continuously monitored from door to door; all of us have a reasonable expectation of privacy in the “whole” of our movements in public. [5] Ginsburg and his colleagues struck down the warrantless GPS surveillance of a suspect that lasted 24 hours a day for nearly a month on the grounds that prolonged, ubiquitous tracking of citizen’s movements in public is constitutionally unreasonable. “Unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil,” Ginsburg wrote. Moreover, “That whole reveals more – sometimes a great deal more – than does the sum of its parts.”[6] Like the “mosaic theory” invoked by the government in national security cases, Ginsburg concluded that “Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.  These types of information can each reveal more about a person than does any individual trip viewed in isolation.”[7] Ginsburg understood that 24/7 ubiquitous surveillance differs from more limited tracking not just in degree but in kind – it looks more like virtual stalking than a legitimate investigation – and therefore is an unreasonable search of the person.

Because prolonged surveillance on “Open Planet” potentially reveals far more about each of us than 24/7 GPS tracking does, providing real time images of all our actions, rather than simply tracking the movements of our cars, it could also be struck down as an unreasonable search of our persons. And if the Supreme Court struck down Open Planet on Fourth Amendment grounds, it might be influenced by the state regulations of GPS surveillance that Ginsburg found persuasive, or by Congressional attempts to regulate Facebook or other forms of 24/7 surveillance, such as the Geolocational Privacy and Surveillance Act proposed by Sen. Ron Wyden (D-OR) that would require officers to get a warrant before electronically tracking cell phones or cars.[8]

The Supreme Court in 2025 might also conceivably choose to strike down Open Planet on more expansive grounds, relying not just on the Fourth Amendment, but on the right to autonomy recognized in cases like Casey v. Planned Parenthood and Lawrence v. Texas. The right to privacy cases, beginning with Griswold v. Connecticut and culminating in Roe v. Wade and Lawrence, are often viewed as cases about sexual autonomy, but in Casey and Lawrence, Justice Anthony Kennedy recognized a far more sweeping principle of personal autonomy that might well protect individuals from totalizing forms of ubiquitous surveillance. Imagine an opinion written in 2025 by Justice Kennedy, still ruling the Court and the country at the age of 89. “In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence,” Kennedy wrote in Lawrence. “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”[9] Kennedy’s vision of an “autonomy of self” that depends on preventing the state from becoming a “dominant presence” in public as well as private places might well be invoked to prevent the state from participating in a ubiquitous surveillance system that prevents citizens from defining themselves and expressing their individual identities. Just as citizens in the Soviet Union were inhibited from expressing and defining themselves by ubiquitous KGB surveillance, Kennedy might hold, the possibility of ubiquitous surveillance on “Open Planet” also violates the right to autonomy, even if the cameras in question are owned by the private sector, as well as the state, and a private corporation provides the platform for their monitoring.  Nevertheless, the fact that the system is administered by Facebook, rather than the Government, might be an obstacle to a constitutional ruling along these lines. And if Kennedy (or his successor) struck down “Open Planet” with a sweeping vision of personal autonomy that didn’t coincide with the actual values of a majority of citizens in 2025, the decision could be the Roe of virtual surveillance, provoking backlashes from those who don’t want the Supreme Court imposing its values on a divided nation.

Would the Supreme Court, in fact, strike down “Open Planet” in 2025? If the past is any guide, the answer may depend on whether the public, in 2025, views 24/7 ubiquitous surveillance as invasive and unreasonable, or whether citizens have become so used to ubiquitous surveillance on and off the web, in virtual space and real space, that the public demands “Open Planet” rather than protesting against it. I don’t mean to suggest that the Court actually reads the polls. But in the age of Google and Facebook, technologies that thoughtfully balance privacy with free expression and other values have tended to be adopted only when companies see their markets as demanding some kind of privacy protection, or when engaged constituencies have mobilized in protest against poorly designed architectures and demanded better ones, helping to create a social consensus that the invasive designs are unreasonable.

The paradigmatic case of the kind of political mobilization on behalf of constitutional values that I have in mind is presented by my second case: the choice between the naked machine and the blob machine in airport security screening. In 2002, officials at Orlando International airport first began testing the millimeter wave body scanners that are currently at the center of a national uproar. The designers of the scanners at Pacific Northwest Laboratories offered U.S. officials a choice: naked machines or blob machines? The same researchers had developed both technologies, and both were equally effective at identifying contraband. But, as their nicknames suggest, the former displays graphic images of the human body, while the latter scrambles the images into a non-humiliating blob.[10]

Since both versions of the scanners promise the same degree of security, any sane attempt to balance privacy and safety would seem to favor the blob machines over the naked machines. And that’s what European governments chose. Most European airport authorities have declined to adopt body scanners at all, because of persuasive evidence that they’re not effective at detecting low-density contraband such as the chemical powder PETN that the trouser bomber concealed in his underwear on Christmas day, 2009. But the handful of European airports that have adopted body scanners, such as Schiphol airport in Amsterdam, have opted for a version of the blob machine. This is in part due to the efforts of European privacy commissioners, such as Germany’s Peter Schaar, who have emphasized the importance of designing body scanners in ways that protect privacy.

The U.S. Department of Homeland Security made a very different choice. It deployed the naked body scanners without any opportunity for public comment—then appeared surprised by the backlash. Remarkably, however, the backlash was effective. After a nationwide protest inspired by the Patrick Henry of the anti-Naked Machines movement, a traveler who memorably exclaimed “Don’t Touch my Junk,” President Obama called on the TSA to go back to the drawing board. And a few months after authorizing the intrusive pat downs, in February 2011, the TSA announced that it would begin testing, on a pilot basis, versions of the very same blob machines that the agency had rejected nearly a decade earlier. According to the latest version, to be tested in Las Vegas and Washington, D.C, the TSA will install software filters on its body scanner machines that detects potential threat items and indicates their location on a generic, blob like outline of each passenger that will appear on a monitor attached to the machine. Passengers without suspicious items will be cleared as “OK,” those with suspicious items will be taken aside for additional screening. The remote rooms in which TSA agents view images of the naked body will be eliminated. According to news reports, TSA began testing the filtering software in the fall of 2010 – precisely when the protests against the naked machines went viral. If the filtering software is implemented across the country, converting naked machines into blob machines, the political victory for privacy will be striking.

Of course, it’s possible that courts might strike down the naked machines as unreasonable and unconstitutional, even without the political protests. In a 1983 opinion upholding searches by drug-sniffing dogs, Justice Sandra Day O’Connor recognized that a search is most likely to be considered constitutionally reasonable if it is very effective at discovering contraband without revealing innocent but embarrassing information.[11] The backscatter machines seem, under O'Connor's view, to be the antithesis of a reasonable search: They reveal a great deal of innocent but embarrassing information and are remarkably ineffective at revealing low-density contraband.

It’s true that the government gets great deference in airports and at the borders, where routine border searches don’t require heightened suspicion. But the Court has held that non-routine border searches, such as body cavity or strip searches, do require a degree of individual suspicion.  And although the Supreme Court hasn't evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that "a particular airport security screening search is constitutionally reasonable provided that it 'is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.'"[12]

It’s arguable that since the naked machines are neither effective nor minimally intrusive – that is, because they might be designed with blob machine like filters that promise just as much security while also protecting privacy – that courts might strike them down. As a practical matter, however, both lower courts and the Supreme Court seem far more likely to strike down strip searches that have inspired widespread public opposition – such as the strip search of a high school girl wrongly accused of carrying drugs, which the Supreme Court invalidated by a vote of 8-1,[13] then they are of searches that, despite the protests of a mobilized minority, the majority of the public appears to accept.

The tentative victory of the blob machines over the naked machines, if it materializes, provides a model for successful attempts to balance privacy and security: government can be pressured into striking a reasonable balance between privacy and security by a mobilized minority of the public when the privacy costs of a particular technology are dramatic, visible, widely distributed, and people experience the invasions personally as a kind of loss of control over the conditions of their own exposure.

But can we be mobilized to demand a similarly reasonable balance when the threats to privacy come not from the government but from private corporations and when those responsible for exposing too much personal information about us are none other than ourselves? When it comes to invasions of privacy by fellow citizens, rather than by the government, we are in the realm not of autonomy but of dignity and decency. (Autonomy preserves a sphere of immunity from government intrusion in our lives; dignity protects the norms of social respect that we accord to each other.) And since dignity is a socially constructed value, it’s unlikely to be preserved by judges--or by private corporations--in the face of the expressed preferences of citizens who are less concerned about dignity than exposure.

This is the subject of our third case, which involves a challenge that, in big and small ways, is confronting millions of people around the globe: how best to live our lives in a world where the Internet records everything and forgets nothing—where every online photo, status update, Twitter post and blog entry by and about us can be stored forever.[14] Consider the case of Stacy Snyder. Four years ago, Snyder, then a 25-year-old teacher in training at Conestoga Valley High School in Lancaster, Pa., posted a photo on her MySpace page that showed her at a party wearing a pirate hat and drinking from a plastic cup, with the caption “Drunken Pirate.” After discovering the page, her supervisor at the high school told her the photo was “unprofessional,” and the dean of Millersville University School of Education, where Snyder was enrolled, said she was promoting drinking in virtual view of her under-age students. As a result, days before Snyder’s scheduled graduation, the university denied her a teaching degree. Snyder sued, arguing that the university had violated her First Amendment rights by penalizing her for her (perfectly legal) after-hours behavior. But in 2008, a federal district judge rejected the claim, saying that because Snyder was a public employee whose photo didn’t relate to matters of public concern, her “Drunken Pirate” post was not protected speech.[15]

When historians of the future look back on the perils of the early digital age, Stacy Snyder may well be an icon. With Web sites like LOL Facebook Moments, which collects and shares embarrassing personal revelations from Facebook users, ill-advised photos and online chatter are coming back to haunt people months or years after the fact.

Technological advances, of course, have often presented new threats to privacy. In 1890, in perhaps the most famous article on privacy ever written, Samuel Warren and Louis Brandeis complained that because of new technology — like the Kodak camera and the tabloid press — “gossip is no longer the resource of the idle and of the vicious but has become a trade.”[16] But the mild society gossip of the Gilded Age pales before the volume of revelations contained in the photos, video and chatter on social-media sites and elsewhere across the Internet. Facebook, which surpassed MySpace in 2008 as the largest social-networking site, now has more than 500 million members, or 22 percent of all Internet users, who spend more than 500 billion minutes a month on the site. Facebook users share more than 25 billion pieces of content each month (including news stories, blog posts and photos), and the average user creates 70 pieces of content a month.

Today, as in Brandeis’s day, the value threatened by gossip on the Internet – whether posted by us our by others – is dignity. (Brandeis called it an offense against honor.) But American law has never been good at regulating offenses against dignity – especially when regulations would clash with other values, such as protections for free speech. And indeed, the most ambitious proposals in Europe to create new legal rights to escape your past on the Internet are very hard to reconcile with the American free speech tradition.

The cautionary tale here is Argentina, which has dramatically expanded the liability of search engines like Google and Yahoo for offensive photographs that harm someone’s reputation. Recently, an Argentinean judge held Google and Yahoo liable for causing “moral harm” and violating the privacy of Virginia Da Cunha, a pop star, by indexing pictures of her that were linked to erotic content. The ruling against Google and Yahoo was overturned on appeal in August, but there are at least 130 similar cases pending in Argentina to force search engines to remove or block offensive content. In the U.S., search engines are protected by the Communications Decency Act, which immunizes Internet service providers from hosting content posted by third parties. But as liability against search engines expands abroad, it will seriously curtain free speech:  Yahoo says that the only way to comply with injunctions about is to block all sites that refer to a particular plaintiff.[17]

In Europe, recent proposals to create a legally enforceable right to escape your past have come from the French. The French data commissioner, Alex Turc, who has proposed a right to oblivion – namely a right to escape your past on the Internet. The details are fuzzy, but it appears that the proposal would rely on an international body – say a commission of forgetfulness – to evaluate particular take down requests and order Google and Facebook to remove content that, in the view of commissioners, violated an individuals’ dignitary rights.

From an American perspective, the very intrusiveness of this proposal is enough to make it implausible: how could we rely on bureaucrats to protect our dignity in cases where we have failed to protect it on our own? Europeans, who have less of a free speech tradition and far more of a tradition of allowing people to remove photographs taken and posted against their will, will be more sympathetic to the proposal. But from the perspective of most American courts and companies, giving people the right selectively to delete their pasts from public discourse would pose unacceptably great threats to free speech.

A far more promising solution to the problem of forgetting on the Internet is technological. And there are already small-scale privacy apps that offer disappearing data. An app called TigerText allows text-message senders to set a time limit from one minute to 30 days, after which the text disappears from the company’s servers, on which it is stored, and therefore, from the senders’ and recipients’ phones. (The founder of TigerText, Jeffrey Evans, has said he chose the name before the scandal involving Tiger Woods’s supposed texts to a mistress.)[18]

Expiration dates could be implemented more broadly in various ways. Researchers at the University of Washington, for example, are developing a technology called Vanish that makes electronic data “self-destruct” after a specified period of time. Instead of relying on Google, Facebook or Hotmail to delete the data that is stored “in the cloud” — in other words, on their distributed servers — Vanish encrypts the data and then “shatters” the encryption key. To read the data, your computer has to put the pieces of the key back together, but they “erode” or “rust” as time passes, and after a certain point the document can no longer be read. The technology doesn’t promise perfect control — you can’t stop someone from copying your photos or Facebook chats during the period in which they are not encrypted. But as Vanish improves, it could bring us much closer to a world where our data don’t linger forever.

Facebook, if it wanted to, could implement expiration dates on its own platform, making our data disappear after, say, three days or three months unless a user specified that he wanted it to linger forever. It might be a more welcome option for Facebook to encourage the development of Vanish-style apps that would allow individual users who are concerned about privacy to make their own data disappear without imposing the default on all Facebook users.

So far, however, Zuckerberg, Facebook’s C.E.O., has been moving in the opposite direction — toward transparency, rather than privacy. In defending Facebook’s recent decision to make the default for profile information about friends and relationship status public, Zuckerberg told the founder of the publication TechCrunch that Facebook had an obligation to reflect “current social norms” that favored exposure over privacy. “People have really gotten comfortable not only sharing more information and different kinds but more openly and with more people, and that social norm is just something that has evolved over time,” [19] he said.

It’s true that a German company, X-Pire, recently announced the launch of a Facebook app that will allow users automatically to erase designated photos. Using electronic keys that expire after short periods of time, and obtained by solving a Captcha, or graphic that requires users to type in a fixed number combinations, the application ensures that once the time stamp on the photo has expired, the key disappears.[20] X-Pire is a model for a sensible, blob-machine-like solution to the problem of digital forgetting. But unless Facebook builds X-Pire-like apps into its platform – an unlikely outcome given its commercial interests – a majority of Facebook users are unlikely to seek out disappearing data options until it’s too late. X-Pire, therefore, may remain for the foreseeable future a technological solution to a grave privacy problem—but a solution that doesn’t have an obvious market.

The courts, in my view, are better equipped to regulate offenses against autonomy, such as 24/7 surveillance on Facebook, than offenses against dignity, such as drunken Facebook pictures that never go away. But that regulation in both cases will likely turn on evolving social norms whose contours in twenty years are hard to predict.

Finally, let’s consider one last example of the challenge of preserving constitutional values in the age of Facebook and Google, an example that concerns not privacy but free speech.[21]

At the moment, the person who arguably has more power than any other to determine who may speak and who may be heard around the globe isn’t a king, president or Supreme Court justice. She is Nicole Wong, the deputy general counsel of Google, and her colleagues call her “The Decider.” It is Wong who decides what controversial user-generated content goes down or stays up on YouTube and other applications owned by Google, including Blogger, the blog site; Picasa, the photo-sharing site; and Orkut, the social networking site. Wong and her colleagues also oversee Google’s search engine: they decide what controversial material does and doesn’t appear on the local search engines that Google maintains in many countries in the world, as well as on Google.com. As a result, Wong and her colleagues arguably have more influence over the contours of online expression than anyone else on the planet.

At the moment, Wong seems to be exercising that responsibility with sensitivity to the values of free speech. Google and Yahoo can be held liable outside the United States for indexing or directing users to content after having been notified that it was illegal in a foreign country. In the United States, by contrast, Internet service providers are protected from most lawsuits involving having hosted or linked to illegal user-generated content. As a consequence of these differing standards, Google has considerably less flexibility overseas than it does in the United States about content on its sites, and its “information must be free” ethos is being tested abroad.

For example, on the German and French default Google search engines, Google.de and Google.fr, you can’t find Holocaust-denial sites that can be found on Google.com, because Holocaust denial is illegal in Germany and France. Broadly, Google has decided to comply with governmental requests to take down links on its national search engines to material that clearly violates national laws. But not every overseas case presents a clear violation of national law. In 2006, for example, protesters at a Google office in India demanded the removal of content on Orkut, the social networking site, that criticized Shiv Sena, a hard-line Hindu political party popular in Mumbai. Wong eventually decided to take down an Orkut group dedicated to attacking Shivaji, revered as a deity by the Shiv Sena Party, because it violated Orkut terms of service by criticizing a religion, but she decided not to take down another group because it merely criticized a political party. “If stuff is clearly illegal, we take that down, but if it’s on the edge, you might push a country a little bit,” Wong told me. “Free-speech law is always built on the edge, and in each country, the question is: Can you define what the edge is?”

Over the past couple of years, Google and its various applications have been blocked, to different degrees, by 24 countries. Blogger is blocked in Pakistan, for example, and Orkut in Saudi Arabia. Meanwhile, governments are increasingly pressuring telecom companies like Comcast and Verizon to block controversial speech at the network level. Europe and the U.S. recently agreed to require Internet service providers to identify and block child pornography, and in Europe there are growing demands for network-wide blocking of terrorist-incitement videos. As a result, Wong and her colleagues worry that Google’s ability to make case-by-case decisions about what links and videos are accessible through Google’s sites may be slowly circumvented, as countries are requiring the companies that give us access to the Internet to build top-down censorship into the network pipes.

It is not only foreign countries that are eager to restrict speech on Google and YouTube. In May, 2006, Joseph Lieberman who has become the A. Mitchell Palmer of the digital age, had his staff contacted Google and demanded that the company remove from YouTube dozens of what he described as jihadist videos. After viewing the videos one by one, Wong and her colleagues removed some of the videos but refused to remove those that they decided didn’t violate YouTube guidelines. Lieberman wasn’t satisfied. In an angry follow-up letter to Eric Schmidt, the C.E.O. of Google, Lieberman demanded that all content he characterized as being “produced by Islamist terrorist organizations” be immediately removed from YouTube as a matter of corporate judgment — even videos that didn’t feature hate speech or violent content or violate U.S. law. Wong and her colleagues responded by saying, “YouTube encourages free speech and defends everyone’s right to express unpopular points of view.” Recently, Google and YouTube announced new guidelines prohibiting videos “intended to incite violence.”

That category scrupulously tracks the Supreme Court’s rigorous First Amendment doctrine, which says that speech can be banned only when it poses an imminent threat of producing serious lawless action. Unfortunately, Wong and her colleagues recently retreated from that bright line under further pressure from Lieberman. In November, 2010, YouTube added a new category that viewers can click to flag videos for removal: “promotes terrorism.” There are 24 hours of video uploaded on YouTube every minute, and a series of categories viewers can use to request removal, including “violent or repulsive content” or inappropriate sexual content. Although hailed by Senator Lieberman, the new “promotes terrorism category” is potentially troubling because it goes beyond the narrow test of incitement to violence that YouTube had previously used to flag terrorism related videos for removal. YouTube’s capitulation to Lieberman shows that a user generated system for enforcing community standards will never protect speech as scrupulously as unelected judges enforcing strict rules about when speech can be viewed as a form of dangerous conduct.

Google remains a better guardian for free speech than internet companies like Facebook and Twitter, which have refused to join the Global Network Initiative, an industry-wide coalition committed to upholding free speech and privacy. But the recent capitulation of YouTube shows that Google’s “trust us” model may not be a stable way of protecting free speech in the twenty-first century, even though the alternatives to trusting Google – such as authorizing national regulatory bodies around the globe to request the removal of controversial videos – might protect less speech than Google’s “Decider” model currently does.

I’d like to conclude by stressing the complexity of protecting constitutional values like privacy and free speech in the age of Google and Facebook, which are not formally constrained by the Constitution. In each of my examples – 24/7 Facebook surveillance, blob machines, escaping your Facebook past, and promoting free speech on YouTube and Google -- it’s possible to imagine a rule or technology that would protect free speech and privacy, while also preserving security—a blob-machine like solution. But in some areas, those blob-machine-like solutions are more likely, in practice, to be adopted then others. Engaged minorities may demand blob machines when they personally experience their own privacy being violated; but they may be less likely to rise up against the slow expansion of surveillance cameras, which transform expectations of privacy in public. Judges in the American system may be more likely to resist ubiquitous surveillance in the name of Roe v. Wade-style autonomy than they are to create a legal right to allow people to edit their Internet pasts, which relies on ideas of dignity that in turn require a social consensus that in America, at least, does not exist. As for free speech, it is being anxiously guarded for the moment by Google, but the tremendous pressures, from consumers and government are already making it hard to hold the line at removing only speech that threatens imminent lawless action.

In translating constitutional values in light of new technologies, it’s always useful to ask: What would Brandeis do? Brandeis would never have tolerated unpragmatic abstractions, which have the effect of giving citizens less privacy in the age of cloud computing than they had during the founding era. In translating the Constitution into the challenges of our time, Brandeis would have considered it a duty actively to engage in the project of constitutional translation in order to preserve the Framers’ values in a startlingly different technological world. But the task of translating constitutional values can’t be left to judges alone: it also falls to regulators, legislators, technologists, and, ultimately, to politically engaged citizens. As Brandeis put it, “If we would guide by the light of reason, we must let our minds be bold.”

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Executive Summary

In recent years, growth in demand for wireless services has sparked a boom in the mobile phone and wireless data sector.[i] During the past four years, the number of mobile phone subscribers tripled,[ii] and the number of jobs in the telecommunications field has nearly quintupled.[iii] New, better, and faster mobile devices, such as tablets and smartphones, have created multi-billion dollar industries of their own, such as Google Android and the Apple iOS “app stores.”[iv] And those technologies have contributed to the dawning of an always-on, always-connected culture.

But this growing demand for mobile Internet access requires a growing amount of wireless radio spectrum, portending serious problems for the future. At the moment, the United States has designated 547 MHz of spectrum to wireless broadband services, but the Federal Communications Commission (FCC) predicts a need for 637 MHz of spectrum by 2013, and 822 MHz of spectrum by 2014.[v] Without more spectrum allocated to wireless Internet connectivity, America risks short-circuiting the mobile broadband revolution.

The National Broadband Plan proposes a solution. It sets forth a detailed plan to make 300 MHz of spectrum available for wireless broadband use within the next five years, and another 200 MHz in the five years after that.[vi] It seeks to achieve this freeing of spectrum by auctioning unused spectrum, lifting burdensome regulations to enable wireless broadband service in certain spectrum ranges, and reallocating spectrum from other services – notably broadcast television – to enable such spectrum to be used for wireless broadband.[vii] Though many of these provisions are controversial, the FCC has already done serious work to achieve these goals. If the FCC can achieve its goals to enable the growth of wireless broadband, America will be able to unlock the full potential of the wireless broadband revolution and realize the potential of a new wave of American innovation.

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Event Information

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On April 10 and 11, 2015, the Seventh Summit of the Americas will bring together the heads of state and government of every country in the Western Hemisphere for the first time. Recent efforts by the United States to reform immigration policy, re-establish diplomatic relations with Cuba, and reform our approach to drug policies at home and abroad have generated greater optimism about the future of inter-American relations. This Summit provides an opportunity to spark greater collaboration on development, social inclusion, democracy, education, and energy security.

However, this Summit of the Americas is also convening at a time when the hemisphere is characterized by competing visions for economic development, democracy and human rights, and regional cooperation through various institutions such as the Organization of American States, the Union of South American Nations, and the Community of Latin American and Caribbean States.

On Friday, April 3, the Latin America Initiative at Brookings hosted Assistant Secretary of State Roberta S. Jacobson for a discussion on the Seventh Summit of the Americas and what it portends for the future of hemispheric relations.

Join the conversation on Twitter using #VIISummit

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Last week’s Seventh Summit of the Americas in Panama will be remembered for the historic handshakes and broad smiles shared by Presidents Barack Obama and Raúl Castro—the first sit-down meeting of leaders from the two nations since Fidel Castro marched triumphantly into Havana in early 1959. But this memorable encounter was merely the most visible piece of a much broader Cuban strategy at the Panama Summit.

The large Cuban delegation took full advantage of the several forums that comprise the complex Summit process. These periodic inter-American conclaves feature meetings among heads of state and foreign ministers, a CEO Summit for corporate executives, and a Civil Society Forum for representatives of nongovernmental organizations (NGOs). The Cubans seized all three opportunities and fielded strong teams to advance their interests: to engage with the multi-level inter-American system, and to send clear signals back home of where government policy is headed.

Face-to-face diplomacy

In addition to the Obama-Castro encounter, foreign ministers John Kerry and Bruno Rodriguez held a lengthy bilateral. Since Obama and Castro publicly announced their intention to renew relations on December 17 of last year, negotiations have dragged on. Cuba is reluctant to grant American diplomats unrestricted travel throughout the island to engage with Cuban citizens, including political dissidents. This is the norm in international diplomacy, the United States argues, whereas the Cubans remain fearful that U.S. diplomats will provide encouragement and assistance to activists advocating for political pluralism. The Cubans want to be removed from the U.S. list of state sponsors of terrorism, a designation which automatically invokes economic sanctions. The White House is withholding that relief as a bargaining chip in the negotiations.

In his opening plenary remarks, President Castro spoke passionately and at length, impressing the audience with his heartfelt remarks even as he came across as an elder statesman indulging in the memories and glories of his youth. Yet, Castro was also sending signals to the stalwarts in the Communist Party back home that he had not forgotten their sacrifices and was not abandoning their values. His engagement with the United States would not be allowed to endanger their tight control of Cuban society. Still, most significantly, Castro kept the door open to engagement with the United States by dramatically addressing President Obama, tossing him compliments: “President Obama is an honest man…I have read his two memoirs and I believe he is a man who has remained faithful to his humble origins.”

By lauding Obama, holding a private bilateral, and appearing with a broad smile at a press opportunity, Castro reaffirmed his commitment to improving relations with the United States. He also may have been nudging his negotiators to wrap up the talks to allow the mutual re-opening of embassies. The Cubans are aware that not all of Washington favors improved relations, and that they must consolidate the process of diplomatic normalization while Obama commands the White House.

The CEO and Civil Society Forums

Presumably, the main Cuban motivation for engaging the United States is economic: to attract more tourists, financial remittances, and eventually productive investments from the United States and the rest of the world, and to extract a relaxation of sanctions, particularly those impeding international financial transactions. Cuban Minister of Trade and Investment Rodrigo Malmierca led a commercial delegation that included top executives from state-owned enterprises, as well as leadership from the new Mariel Development Zone. At the CEO Summit, Malmierca was granted one of the few time slots for a keynote address. But rather than take advantage of this unique opportunity, the Cuban minister rushed through an uninspired text, offering nothing that could not be found in previous government press releases and official documents. More than two years after the passage of a much-heralded foreign investment law and over a year after the official opening of the Mariel Development Zone, very few new investments have earned official authorization.  

While potentially interested in Cuban markets, executives I spoke with remain cautious, skeptical that the government has yet created a sufficiently business-friendly environment to warrant the risk. They speculate as to why so few new foreign ventures are underway: is it opposition from well-placed hard-liners, bureaucratic inertia, or lack of financing or other necessary business inputs? In private conversations, Malmierca hinted at a political obstacle: many Cubans identify the revolution with nationalizations of private property, so it will be difficult to explain to them why foreign investment is now so welcome.

The Cubans also fielded a significant presence at the Civil Society Forum. The dominant group represented government-affiliated “non-governmental” organizations (GONGOS) such as the official trade union or Confederation of Cuban Women, while opposition NGOs marshalled about a dozen persons. At a pre-Summit speech in Caracas, Castro had ominously labelled these opposition NGOs “mercenaries” in the pay of foreign intelligence services. Following that lead, the government-affiliated group staged aggressive, noisy demonstrations denouncing the opposition representatives and accusing them of harboring infamous terrorists. The GONGOS threatened to boycott the Forum (although some did eventually participate), and disrupted the Forum’s working group on democratic governance. Here again, the message being telegraphed back home was clear: the Cuban government does not consider these opposition voices to be legitimate actors and loyal Cuban citizens should not associate with them.

Discernable signals

Altogether, at the three forums the Cubans demonstrated their strong interest in participating actively in hemispheric affairs and institutions. The Cubans are capable of fielding smart, disciplined delegations with well-scripted strategies and messages. Once again, the high-quality Cuban diplomacy demonstrated that it has few peers in Latin America and the Caribbean.

The messages transmitted at the Panama Summit were subtle but decodable. In the diplomatic sphere, Castro wants to move forward, to take advantage of Obama’s tenure to relax U.S.-Cuban tensions and gain some economic advantages. In the business sphere, Malmierca reaffirmed Castro’s oft-repeated admonitions that economic change on the island will be very gradual and socialist planning will not be discarded under his watch. In the political sphere, the Cuban Communist Party intends to maintain its absolute hegemony—political pluralism outside the Party is definitely not yet on the policy agenda.

Read more about the Summit with Richard Feinberg's post on how the United States came out of the Panama Summit of the Americas.

      

At the previous Summit of the Americas in Cartagena, Colombia in April 2012, President Barack Obama was badly roughed up by his Latin American counterparts (and embarrassed by his Secret Service for entertaining sex workers). Happily, the president and his entourage did much better at last week’s Summit in Panama, but the United States still has a way to go before the Summits once again become the productive vehicle for U.S. foreign policy that they once were, at their founding in Miami in 1994.

In Cartagena, leader after leader criticized the United States for allegedly heavy-handed counter-narcotics policies; oppressive treatment of immigrants; a weak response to crime and poverty in Central America; and monetary policies that supposedly harmed their economies. Most pointedly, speakers denounced the decades-old economic sanctions against Cuba. But given the upcoming Congressional elections, Obama and his Secretary of State Hillary Clinton did not want to do anything to endanger their Democratic Party’s chances. Obama was reduced to affirming, uncharacteristically, “I am here to listen, but our policies will not change.”

Once the November 2012 mid-term elections were over, policies did, in fact, change as the United States took a more relaxed approach to counternarcotics; the administration announced immigration policy reforms, including negotiating agreements with Central American nations to reduce the outflow of children and promote economic growth and jobs at home; and Vice President Joseph Biden met repeatedly with Central American leaders, and offered $1 billion in economic and security assistance.

In Cartagena, the Latin Americans threatened to boycott the Panama Summit if Cuba was not invited. But last December 17, President Obama and Cuban President Raúl Castro announced their agreement to negotiate the normalization of diplomatic relations, and in one blow, the United States transformed a thorn in relations with Latin America into a triumph of inter-American diplomacy that significantly enhanced U.S. prestige in the region.

So in Panama, most of the Latin American and Caribbean leaders, rather than berate the U.S. president, praised him for his courage and generally treated him with courtesy and respect. The three leaders of Central America’s Northern Tier (Guatemala, Honduras, and El Salvador—whose president is a former guerrilla commander) were effusive in their praise. The president of Brazil, Dilma Rousseff, who in Cartagena had sharply criticized U.S. monetary policies and had cancelled a visit to the White House to protest NSA spying, was pleased to announce that her visit had been rescheduled for this June. 

Obama’s own performance was more spirited than it had been in Cartagena. In response to a harsh polemic by Ecuadorean President Rafael Correa, Obama shot back: “The U.S. may be a handy excuse for diverting attention from domestic political problems, but it won’t solve those problems.” After listening politely through Raúl Castro’s extended remarks—during which Castro praised him as a man of honesty and authenticity—Obama departed to avoid having to sit through the predictable harangues of Argentine President Cristina Kirchner and Bolivian leader Evo Morales. Few could blame him.

At the parallel CEO Summit of business executives, Obama delivered thoughtful responses to questions posed by several entrepreneurs including Facebook founder Mark Zuckerberg, distinguishing himself from the facile rhetorical answers of the other presidents on the panel. At a Civil Society Forum where delegates affiliated with Cuban government organizations engaged in disruptive tactics, Obama lectured firmly on the virtues of civility and tolerance. Together with two other presidents (Tabaré Vasquez of Uruguay and Guillermo Solis of Costa Rica), Obama met privately with a dozen leaders of nongovernmental organizations, took notes, and incorporated at least one of their suggestions into his later public remarks.

But Obama’s Panama experience was marred by an inexplicable misstep by his White House aides a month earlier—the very public sanctioning of seven Venezuelan officials for alleged human rights violation and corruption, and the declaration that Venezuela was a “threat to U.S. national security.” To Latin American ears, that language recalled Cold War-era justifications for CIA plots and military coups. The State Department claims it warned the White House against Latin American blowback, but perhaps not forcefully enough. Once Latin American anger become apparent, the White House tried to walk the “national security” language back, saying it was just a formality required by U.S. legislation, but the damage was done. Speaker after speaker condemned the “unilateral sanctions” and called for their repeal.

The ill-timed sanctions announcement provided Venezuelan President Nicolás Maduro and his populist allies with a ready stick to beat the United States. For whileObama’s diplomacy had managed to peel off most of the Central Americans and win over or at least diminish the antagonism of other leaders, it had not found a way to tranquilize the rejectionist states (Ecuador, Bolivia, Nicaragua, Argentina) tied to Venezuela in an “anti-imperialist” alliance. Although a relatively small minority, these spoilers seriously disrupt plenary meetings with long and vituperative monologues, and small minorities of “veto” players can block the signing of otherwise consensus documents such that in Panama, as in Cartagena, no consensus declaration was issued; rather the host leader signed brief “mandates for action” that lacked full legitimacy.

The problem of the rejectionist minority will be partially alleviated when Kirchner is shortly replaced, likely by a more moderate government in Argentina, and political turnover will eventually come in Venezuela, but the hemisphere needs new rules that protect majority rights to get things done. Some simple procedural innovations, such as a more forceful chair, or even the simple system of red-yellow-green lights that alert speakers to their time limits, would help.

Notwithstanding the misstep on Venezuela sanctions and the disruptive tactics of the rejectionist minority, the overall mood in Panama was upbeat, even celebratory. Leaders made reference to the xenophobic violence and religious intolerance plaguing other continents, and remarked with some pride that, in comparison, Latin America was a zone of peace that was also making progress, however inadequate, on human rights, poverty alleviation, and clean energy. With some procedural fixes, favorable political winds, and continued progress on concrete issues of mutual interest, inter-American relations could well continue their upward trajectory.

Read more about the Summit with Richard Feinberg's post on Cuba's multi-level strategy at the Seventh Summit of the Americas.

      

In advance of President Obama’s historic trip to Cuba and Argentina, three Brookings scholars participated in a media roundtable to offer context and outline their expectations for the outcomes of the trip. Richard Feinberg and Ted Piccone discussed Cuba–including developments in the U.S.-Cuba relationship, the Cuban economy, and human rights on the island–and Harold Trinkunas offered insight on Argentina, inter-American relations, and the timing of the visit.

Read the transcript (PDF) »

Richard Feinberg:

The idea is to promote a gradual incremental transition to a more open, pluralistic and prosperous Cuba integrated into global markets of goods, capital, and ideas. It is a long-term strategy. It cannot be measured by quarterly reports.

Ted Piccone:

...the key [is] to unlock a whole set of future changes that I think will be net positive for the United States, but it is going to take time, and it is not going to happen overnight.

Harold Trinkunas:

Cuba is really about moving, among other things, a stumbling block to better relations with Latin America, and Argentina is about restoring a positive relationship with a key swing state in the region that was once one of our most important allies in the region.

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Editors' Note: Brookings Nonresident Senior Fellow Richard Feinberg reports from Havana on President Obama's historic visit to the island. 

Havana is abuzz at the sheer weight of the president of the United States arriving in Cuba. In the hours before President Obama’s arrival, astonished Cubans told tales of planeloads of black limousines and massive Suburbans, of heavily armed security personnel, of sunglass-sporting secret service officers arriving at the airport and making their way through the city.

Cubans have anticipated the arrival of the Obama family with considerable joyfulness, but the festive mood is colored by a certain reticence, a deep-seated fear of, once again, being overwhelmed by the Colossus from the North. 

The government has bargained hard with Obama’s advance team to hem him in, to limit his direct contact with the Cuban people. There will be no large outdoor speech—rather on Tuesday morning Obama will address a hand-picked audience in the newly renovated Grand Theatre with its limited seating capacity—although the Cuban government agreed to live television coverage. The U.S. president will also meet with local entrepreneurs, but in a constricted venue, and ditto for his meeting with independent civil society and political dissidents.

On Tuesday afternoon the president will be the guest of honor at an exhibition game between the visiting Tampa Bay Rays (their chance selection was by lottery) and the Cuban national team. The White House has hinted that he will throw out the first ball, but this could not be confirmed. On a prior occasion, Jimmy Carter did indeed throw out the first ball, but that was during a visit long after his presidency.

Putting the lanky, athletic Obama on the mound would run a certain risk for the Cubans. Suppose the excited crowd begins to cheer, “Obama, Obama…” Even more dangerous, imagine if the exuberant Cubans follow with, “USA, USA, USA…”

Back home, critics of the Obama administration say he’s made too many concessions to the Cuban government without reciprocity. Cuba is no closer to a liberal democracy, they argue, than it was on December 17, 2014, when Barack Obama and Raúl Castro announced their decision to normalize diplomatic relations. But these skeptics miss this vital point: By befriending the president of the United States, the president of Cuba and first secretary of the Cuban Communist Party (PCC) has exploded his regime’s long-standing national security paradigm organized around the imminent danger posed by a hostile empire. The rationale for the state-of-siege mentality, the explanation for the poor economic performance, no longer resonates. The ruling political bureau of the PCC stands exposed before the Cuban people.

Hence, the government is working hard to persuade the people that it has not forsaken its nationalist credentials: the PCC’s daily newspaper, Gramna, ran a fierce editorial warning for Obama not to try to step on their little island, not to intervene in its internal affairs; rather, he must arrive as a classic Greek suitor bearing gifts. But no Trojan horses, the Cubans are too wary to be fooled so easily.

Venezuelan President Nicolás Maduro, passing through Havana this week, pointedly remarked: “The hearts of the Cuban and Venezuelan people are warm and true. Not like others who come with smiles but hide a clenched fist.”

In truth, most Cubans very much want the trip to succeed. They want more tourists, more remittances from Cuban-Americans living in Florida and New Jersey. They would welcome more trade, more access to famous U.S. consumer brands. Many would even welcome U.S. investment—with the promise of good jobs and better wages. All would love to be able to travel freely between their island and the outside world, especially to the nearby United States. In short, they yearn for normality.

And savvy Cubans sense the link between the more relaxed diplomatic atmosphere and the gradual opening of political space so evident on the island. While not yet living in a fully open society, Cubans are now more willing to express their views openly, to foreigners and among themselves. Some are even forming proto-civil society groupings, to advance gender equality, environmental stewardship, religious freedom, and human rights.

Bathing in these new liberties, Cubans worry that something, anything, could go wrong during the visit. In such a highly scrutinized setting, one misstep, one awkward phrase, one misinterpretation of Cuban history, would give ammunition to hardliners to set the clock back and to restore the old national security paradigm.

Raúl Castro has pinned his own legacy too closely to the young U.S. president to allow any stumbles during this historic visit, to stand idly by while the visit was twisted by his internal opponents. And Raúl and his confidants retain control over the mass media in Cuba, and the PCC will loyally pass along the party line, as set by the political bureau and echoed all along the chain of command, down to the district and village level.

So the visit will be declared a success. Most likely, it will truly be a marvelous moment, because Obama is just the right person to stretch out the U.S. hand to the long-aggrieved Cuban people. The very traits for which Obama is so often criticized at home will serve him well in Cuba: his humility, his respectfulness, his sense of irony—these are just what Cubans have been harking for from the United States for so many decades.

The Cubans will also love Michelle Obama and the two teenage Obama daughters, especially if Sasha and Malia are freed to wander forth and meet their contemporaries at one of Havana’s clubs where young people gather—the Cuban media and public will bask in the respect being paid to Cuban music and dance, to “Cubanismo.”

Obama and Castro share some goals, and conflict on others. Both wish for a peaceful transition to a more prosperous Cuba, more open to the world and to global commerce. But they differ on the endgame: Obama would like to see a more liberal, pluralistic polity, while Castro presumably wants to see his Communist Party retain its grip on power. But that chess match will be waged later, by their successors. 

For Barack Obama and Raúl Castro, today their interests are convergent. Hence, we can predict that, most likely, the visit will be a great success, a historic legacy for which both statesmen will be justly proud.

       

Professor Riek Machar, former vice president of South Sudan and now leader of the rebel group that is fighting the government of South Sudan for control of the apparatus of the government, has publicly threatened to capture and take control of both the capital city of Juba and the oil-producing regions of the country. Branding South Sudan’s president, Salva Kiir, a “dictator” and arguing that he does not recognize the need to share power, Professor Machar stated that the present conflict, which has lasted for more than five months and resulted in the killing of many people and the destruction of a significant amount of property, will not end until Kiir is chased out of power.

Violent mobilization by groups loyal to Machar against the government in Juba began in December 2013. It was only after bloody confrontations between the two parties that targeted civilians based on their ethnicity had resulted in the deaths of many people (creating a major humanitarian crisis) that a cease-fire agreement was signed in Addis Ababa on January 23, 2014, with the hope of bringing to an end the brutal fighting. The cease-fire, however, was seen only as the first step towards negotiations that were supposed to help the country exit the violent conflict and secure institutional arrangements capable of guaranteeing peaceful coexistence.

If Machar and his supporters have the wherewithal to carry out the threats and successfully do so, there is no guarantee that peace would be brought to the country. For one thing, any violent overthrow of the government would only engender more violence as supporters of Kiir and his benefactors are likely to regroup and attempt to recapture their lost political positions. What South Sudan badly needs is an institutionalization of democracy and not a government led by political opportunists. In fact, an effective strategy to exit from this incessant violence must be centered around the election of an inclusive interim government—minus both Kiir and Machar—that would engage all of the country’s relevant stakeholders in negotiations to create a governing process that adequately constrains the state, establishes mechanisms for the peaceful resolution of conflict, enhances peaceful coexistence, and provides an enabling environment for the rapid creation of the wealth needed to deal with poverty and deprivation.

On March 9, 2012, less than a year after South Sudan gained independence, then-Vice President Machar met with several Brookings scholars, including myself, in New York City. The meeting was part of the new country’s efforts to seek assistance from its international partners to address complex and longstanding development challenges, including critical issues such as the effective management of the country’s natural resource endowments, gender equity, the building of government capacity to maintain law and order, the provision of other critical public goods and services, and poverty alleviation. Among participants in this critical consultation were Mwangi S. Kimenyi, senior fellow and director of the Africa Growth Initiative (AGI) at the Brookings Institution; Witney Schneidman, AGI nonresident fellow and former deputy assistant secretary of state for African Affairs; and me. The vice president, who appeared extremely energetic and optimistic about prospects for sustainable development in the new country, requested an analysis of the commitments and achievements that the government of South Sudan had made since independence and suggestions for a way forward. The scholars, working in close collaboration with their colleagues at Brookings, produced a policy report requested by the vice president. The report entitled, South Sudan: One Year After Independence—Opportunities and Obstacles for Africa’s Newest Country, was presented at a well-attended public event on July 28, 2012. Panelists included Peter Ajak, director of the Center for Strategic Analyses and Research in Juba; Ambassador Princeton Lyman, U.S. special envoy for South Sudan and Sudan; Nada Mustafa Ali scholar at the New School for Social Research; Mwangi S. Kimenyi and me.

The report provided a comprehensive review of the policy issues requested by the vice president—the provision of basic services; future engagement between South Sudan and the Republic of Sudan; efficient and equitable management of natural resources; ethnic diversity and peaceful coexistence; federalism; eradication of corruption; and the benefits of regional integration. Most important is the fact that the report placed emphasis on the need for the government of South Sudan to totally reconstruct the state inherited from the Khartoum government through democratic constitution making and produce a governing process that (i) guarantees the protection of human and fundamental rights, including those of vulnerable groups (e.g., women, minority ethnic groups); (ii) adequately constrains the government (so that impunity, corruption and rent seeking are minimized); (iii) enhances entrepreneurial activities and provides the wherewithal for wealth creation and economic growth; and (iv) establishes mechanisms for the peaceful resolution of conflict and creates an environment within which all of the country’s diverse population groups can coexist peacefully.

Unfortunately, when the report was completed, members of the ruling Sudan People’s Liberation Movement were already embroiled in a brutal power struggle that eventually led to President Kiir sacking his entire cabinet, including the vice president. The collapse of the government raised the prospects of violent and destructive mobilization by groups that felt the president’s actions were marginalizing them both economically and politically. The ensuing chaos created an environment that was hardly conducive to the implementation of policies such as those presented in the Brookings report.

The government of Sudan has failed to engage in the type of robust institutional reforms that would have effectively prevented President Kiir and his government from engaging in the various opportunistic policies that have been partly responsible for the violence that now pervades the country. South Sudan’s diverse ethnic groups put forth a united front in their war against Khartoum for self-determination. Following independence, the new government engaged in state formation processes that did not provide mechanisms for all individuals and groups to compete fairly for positions in the political and economic systems. Instead, the government’s approach to state formation politicized ethnic cleavages and made the ethnic group the basis and foundation for political, and to a certain extent, economic participation. This approach has created a "sure recipe for breeding ethnic antagonism," and has led to the crisis that currently consumes the country.

While the most important policy imperative in South Sudan today is the need to make certain that the cease-fire continues to hold, long-term prospects for peaceful coexistence and development call for comprehensive institutional reforms to provide the country with a governing process that guarantees the rule of law. Hence, both the opposition and the government—the two sides in the present conflict—should take advantage of the cease-fire and start putting together the framework that will eventually be used to put the state back together. A new interim government, without the participation of the two protagonists—Kiir and Machar—should be granted the power to bring together all of the country’s relevant stakeholders to reconstitute and reconstruct the state, including negotiating a permanent constitution.

      

On Monday, March 23, 2015, leaders of Egypt, Ethiopia, and Sudan met in the Sudanese capital Khartoum to sign an agreement that is expected to resolve various issues arising out of the decision by Ethiopia to construct a dam on the Blue Nile. The Khartoum declaration, which was signed by the heads of state of the three countries—Abdel Fattah al-Sisi (Egypt), Omar al-Bashir (Sudan), and Halemariam Desalegn (Ethiopia), has been referred to  as a “Nile Agreement,” and one that helps resolve conflicts over the sharing of the waters of the Nile River. However, this view is misleading because the agreement, as far we know, only deals with the Blue Nile’s Grand Ethiopian Renaissance Dam project (GERDP) and does not tackle the broader, still contentious issues of sharing of the Nile River waters among all riparian states. Thus, the new agreement does leave the conflict over the equitable, fair, and reasonable allocation and utilization of the waters of the Nile River unresolved.

As we celebrated Earth Day recently, it is important that we reflect upon the importance of natural resources such as the Nile and gain an understanding of why they are so important, especially for Africa and its long-term development. In fact, 160 million people rely on the waters of this important river for their livelihoods. Thus, preserving, maintaining, and using the waters and resources of the Nile River efficiently and sustainably is a goal shared by all.

History of the Nile Waters Agreements

These disagreements over the use of the Nile are not recent and, in fact, have a long history because of these countries’ high dependence on the waters of the Nile. In 1929, an agreement was concluded between Egypt and Great Britain regarding the utilization of the waters of the Nile River—Britain was supposedly representing its colonies in the Nile River Basin. [1] The Anglo-Egyptian Treaty covered many issues related to the Nile River and its tributaries. Of particular relevance to the present discussion is that it granted Egypt an annual water allocation of 48 billion cubic meters and Sudan 4 billion cubic meters out of an estimated average annual yield of 84 billion cubic meters. In addition, the 1929 agreement granted Egypt veto power over construction projects on the Nile River or any of its tributaries in an effort to minimize any interference with the flow of water into the Nile.

In 1959, Egypt and an independent Sudan signed a bilateral agreement, which effectively reinforced the provisions of the 1929 Anglo-Egyptian Treaty. The 1959 agreement increased water allocations to both Egypt and Sudan—Egypt’s water allocation was raised from 48 billion cubic meters to 55.5 billion cubic meters and Sudan’s from 4 billion cubic meters to 18.5 billion cubic meters, leaving 10 billion cubic meters to account for seepage and evaporation. Finally, the agreement stipulated that in the case of an increase in average water yield, the increased yield should be shared equally between the two downstream riparian states (i.e., Egypt and Sudan). The 1959 agreement, like the 1929 Anglo-Egyptian Treaty, did not make any allowance for the water needs of the other riparian states, including even Ethiopia, whose highlands supply more than 80 percent of the water that flows into the Nile River.

Over the years, especially as the populations of the other countries of the Nile River Basin have increased, and these countries have developed the capacity to more effectively harvest the waters of the Nile River for national development, disagreements have arisen over the fact that Egypt has insisted that the water rights it acquired through the 1929 and 1959 agreements (collectively referred to as the Nile Waters Agreements) be honored and that no construction project be undertaken on the Nile River or any of its tributaries without prior approval from Cairo. In fact, various Egyptian leaders have threatened to go to war to protect these so-called “acquired rights.” Upstream riparian states such as Kenya, Tanzania, Uganda, and Ethiopia, have argued that they are not bound by these agreements because they were never parties to them. In fact, shortly after independence from Great Britain in 1961, Tanganyika’s (now Tanzania, after union with Zanzibar in 1964) new leader, Julius Nyerere, argued that the Nile Waters Agreements placed his country and other upstream riparian states at Egypt’s mercy, forced them to subject their national development plans to the scrutiny and supervision of Cairo, and that such an approach to public policy would not be compatible with the country’s status as a sovereign independent state. All the upstream riparian states have since argued in favor of a new, more inclusive legal framework for governing the Nile River Basin.

Hope for a new accord: The Cooperative Framework Agreement

In 1999, the Nile River riparian states, [1] except Eritrea, signed the Nile Basin Initiative (NBI) in an effort to enhance cooperation on the use of the “common Nile Basin water resources.” Under the auspices of the NBI, the riparian states began work on developing what they believed would be a permanent legal and institutional framework for governing the Nile River Basin. The Cooperative Framework Agreement (CFA), as this agreement is called, formally introduced the concept of equitable water allocation into discussions about Nile governance, as well as a complicating concept called “water security.”

The CFA was ready for signature beginning May 10, 2010; Burundi, Ethiopia, Kenya, Rwanda, Tanzania, and Uganda have signed it; and the Ethiopian parliament has ratified it. However, arguing that their “acquired rights” to the waters of the Nile River would not be protected, Egypt and Sudan immediately registered their intention not to sign the agreement because they objected to the wording of Article 14(b): “Nile Basin States therefore agree, in a spirit of cooperation: . . . (b) not to significantly affect the water security of any other Nile Basin State.” They then proposed an alternative wording for Article 14(b): “Nile Basin States therefore agree, in a spirit of cooperation: . . . (b) not to significantly affect the water security and current uses and rights of any other Nile Basin State,” (emphasis added). This wording was rejected by the upstream riparian states, who argue that “the current uses and rights” phrasing would entrench the concept of prior rights, including those created by the Nile Waters Agreements and effectively retain the inequity and unfairness that has characterized the allocation and utilization of water in the Nile River Basin since the 1920s.

On April 2, 2011, then-prime minister of Ethiopia, Meles Zenawi, laid the foundation for the construction of the Grand Ethiopia Renaissance Dam. The dam is located on the Blue Nile, in the Benishangul-Gumuz region of the country. Shortly after the announcement, authorities in Cairo immediately launched a campaign of words against what they believed was an attempt by Addis Ababa to interfere with Egypt’s water needs. Then Egyptian president, Mohamed Morsi, angrily stated that while he was not “calling for war” with Ethiopia, “Egypt’s water security cannot be violated at all,” that “all options are open,” and that Egyptians would not accept any projects on the Nile River that threatened their livelihood.

Then what happened in March 2015?

The 2015 agreement between Egypt, Ethiopia, and Sudan—with Sudan acting as an intermediary—represents an important but predictable shift in Cairo’s approach to the Nile River—that those colonial agreements are unsustainable. About 85 percent of the water that flows into the Nile River comes from the Ethiopian highlands through the Blue Nile; the rest comes from the White Nile. It was simply unrealistic and untenable for Egypt to believe that it could continue to prevent Ethiopia from using water resources located within its boundaries to meet the needs of its people. While it is true that Egyptians rely totally on the waters of the Nile River for all their needs, they must be sensitive to the development needs of the upstream riparian states, especially given the fact that the latter, particularly Ethiopia, are in a position to cause significant harm to the quantity and quality of water that flows into the Nile. Hence, the practical and more accommodating attitude taken by Egyptian leaders in their decision to endorse Addis Ababa’s Grand Ethiopian Renaissance Dam project (GERDP), should be welcomed. However, Cairo needs to go further and sign and ratify the CFA without insisting on changes to Article 14(b) to guarantee Egypt the rights created by the Nile Waters agreements. With the CFA in place, all 11 riparian states can negotiate in good faith to agree an allocation formula that is acceptable to all of them and considered fair, equitable, and reasonable. As Africa becomes more and more affected by climate change, the continent’s various groups must agree to cooperate in the development of institutional structures that can enhance their ability to live together peacefully and allocate their natural resources, including water, in a fair and sustainable manner.

Further reading

Mwangi S. Kimenyi & John Mukum Mbaku, Governing the Nile River Basin: The Search for a New Legal Regime (Washington, D.C.: The Brookings Institution, 2015).

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[1] Ethiopia was not one of those colonies. The British colonies then included Kenya, Uganda, Tanganyika, and what was known as Anglo-Egyptian Sudan (a condominium under the control of Britain).

[2] The Nile River riparian states are Burundi, Democratic Republic of Congo, Egypt, Eritrea, Ethiopia, Kenya, Rwanda, South Sudan, Sudan (Republic of), Tanzania, and Uganda. Egypt, Sudan, and South Sudan are downstream riparian states. South Sudan, however, has indicated that it does not recognize the 1959 bilateral agreement between Egypt and Sudan.

       

Professor Mwangi S. Kimenyi, senior fellow and former director of the Africa Growth Initiative (AGI), passed away on Saturday, June 6, 2015, in Baltimore, Maryland.

Professor Kimenyi was the heart and soul of the Africa Growth Initiative, something that all of us care about. He believed very much in AGI’s mission, its work, and perhaps, more importantly, its people. His scholarship and work ethic were only matched by his dedication to the AGI team and the issues that we were (and are) striving to accomplish.

Professor Kimenyi not only cared about the right things, but he was also keen about addressing them and doing so in the right way, no matter how difficult or challenging. In many ways, if the world worked like this, the world would be a much better place for all of us to live. In all AGI activities, Professor Kimenyi tried to bring people together, help colleagues advance their careers, and nurture the expertise that is needed in the long term.

Professor Kimenyi dedicated himself to utilizing the resources and prestige of the Brookings Institution to enhance governance, peaceful coexistence, the protection of human rights—especially those of vulnerable groups—and economic and human development in Africa. During his short tenure at AGI and the Brookings Institution, he achieved a lot. Through his leadership and thanks to the generosity of the Brookings Institution, AGI has contributed significantly to the improvement of the policy environment in Africa, as well as to a better understanding of African issues by U.S. policymakers.

Professor Kimenyi was an accomplished man: Before he came to AGI and Brookings, Professor Kimenyi was a professor at the University of Mississippi and the University of Connecticut. He was the founding executive director of the Kenya Institute for Public Policy Research and Analysis (KIPPRA, 1999-2005); a resource person with the African Economic Research Consortium (AERC); and a research associate with the Center for the Study of African Economies, University of Oxford. Professor Kimenyi earned his undergraduate degree from the University of Nairobi (Kenya), and completed graduate work at Ohio University and George Mason University. He received a Ph.D. in economics  from the Center for Study of Public Choice at George Mason University in 1986.

Through his research, he sought to enhance governance and economic development in Africa. He was especially interested in poverty reduction, pro-poor economic growth, and peaceful coexistence on the continent. He authored or co-edited eight books, many policy monographs, and several chapters in edited volumes. He also published many papers in refereed journals.

Professor Kimenyi was also the recipient of many honors and awards, including the Outstanding Research Award (2001) from the Global Development Network, and the Georgescu-Roegen Prize in Economics (1991). He was recognized by the Senate and House of Representatives of the State of Mississippi for his work on the public transit system. In 1994, Professor Kimenyi was named by Policy Review (Washington, D.C.) among the top 10 young market economists in the United States. During his tenure as the executive director of KIPPRA, the institute was ranked the top policy institution in Africa and was recognized as an international center of excellence.

At KIPPRA, he believed in and promoted excellence, leading the institute from its founding in 1999 to Africa’s premier research and policy institution by the time he left in 2005. KIPPRA remains an important and influential source of policy advice for Kenya and the region, thanks to the solid foundation laid by Professor Kimenyi.

He was not afraid to criticize or be controversial when he believed that something important needed to be said. In many of the blogs that he wrote about policy issues in Africa, for example, he challenged President Obama and his administration to take a more active part in Africa. He rebuked the government of South Sudan for its decision to ban all foreign workers from the country and replace them with nationals—a decision that Professor Kimenyi argued would undermine badly needed foreign investment. Nevertheless, in seeking to hold governments accountable, Professor Kimenyi was professional, respectful, and polite.

Despite his extraordinary professional and academic accomplishments, Professor Kimenyi was humble, extremely kind, and loyal to his friends and colleagues. I have worked very closely with Professor Kimenyi on projects in Africa since 1986, and have often been taken aback by the patient and kind manner in which Professor Kimenyi treated young scholars who approached him and asked him to help them further their education or research.

I can recall a particularly memorable incident at Mount Kenya in 2002: We were at the Mount Kenya Lodge to consult with then-vice president of Kenya, Professor George Saitoti, who was working on his vision for holistic development in Africa. While we were eating breakfast, a couple of young people recognized Professor Kimenyi and came to talk to him about their plans for graduate school. He patiently talked to each one of them, gathered as much information from them, gave each person that he talked to his business card, and promised to contact them once he had an opportunity to research their issues further. Despite the fact that his breakfast was going cold, he calmly advised these young people and told them that it was important that they remained hopeful because they held the future of Kenya in their hands. He was truly inspiring. Of course, during nearly 30 years of friendship with me, he remained a loyal and supportive friend to me and my family.

There is no question that Professor Kimenyi was a talented and well-regarded economist. Nevertheless, his colleagues, students, and the many people whom he worked with and whose lives he touched will remember him more for his kindness, warmth, and willingness to mentor younger scholars.

Professor Kimenyi’s untimely passing is a great loss, not only to his colleagues and friends at AGI, but also to the many scholars whom he has mentored in Africa and around the world. He will be greatly missed, not only at AGI, but also at the many institutions that he has worked with to improve economic and human development in Africa.

Our thoughts and prayers are with his family. May his soul rest in peace.

       

       

Since May 2010’s Mavi Marmara incident, which resulted in the killing of nine Turkish activists from Israel Defense Forces’ fire, relations between Turkey and Israel have been suspended. Two major regional developments in 2012, the lingering Syrian crisis and Israel’s Operation Pillar of Defense in Gaza, have underscored the lack of a senior-level dialogue between Israel and Turkey. However, in the wake of the latest Gaza crisis, officials on both sides have confirmed press reports detailing recent bilateral contacts between senior Turkish and Israeli officials in Cairo and Geneva, possibly signaling a shift in the relationship.

Since 1948, Israeli-Turkish relations have been through periods of disagreement and tension, as well as periods of cooperation and understanding. Relations developed gradually over the years and eventually reached their peak in the 1990’s when the two countries forged a strategic partnership, supported and strengthened by the United States. During those years, the Turkish general staff and the Israeli defense establishment were the main proponents for an enhanced relationship between the two countries. Military cooperation and coordination with Israel fit the broader world view of the secularist Turkish defense establishment. Turkey’s military structure and posture was NATO and Mediterranean oriented, and within this framework Israel was naturally viewed as an ally. From the Israeli perspective, Israel’s defense establishment recognized Turkey’s geostrategic importance and the potential that existed for defense collaboration.

Positive relations between the two countries continued well into the first decade of the 21st century but began to slow down when Turkey experienced a new social transformation and political Islamists became the dominant political force in Turkey. The clash that ensued between the new Turkish leadership and the military elite eroded the military’s standing, coupled with a major shift in Turkish foreign policy, inevitably led to a souring in the relationship between Turkey and Israel. With the launch of Israel’s Operation Cast Lead in December 2008, relations began to seriously weaken, as Turkey expressed clear disapproval of Israel’s actions. Despite its efforts, the United States was not able to repair relations between the two countries. The Mavi Marmara incident in 2010 led to further decline of relations between the two.

Two and a half years have passed since the incident on board the Turkish passenger vessel, and relations between Turkey and Israel remain strained, with the two countries locked into their positions. Turkish Prime Minister Recep Tayyib Erdoğan insists that if Israel wishes to normalize relations, it must accept three conditions: issue a formal apology over the incident; compensate the families of the nine Turks (one of them an American citizen) killed on board; and lift the naval blockade of Gaza. Not surprisingly, Israeli Prime Minister Binyamin Netanyahu is reportedly not willing to meet the three Turkish demands.

In recent months, Israel has made several attempts, both directly and through third parties, to find a formula that will restore the dialogue between Jerusalem and Ankara, but to no avail. Erdoğan publicly rejected these Israeli diplomatic approaches, reiterating the need to address the three conditions before further talks can ensue. As a result, bilateral ties, excluding trade, are practically at a standstill, with low level (second secretary) diplomatic representation in respective embassies in both Ankara and Tel Aviv.

Over the past year and a half, the upheaval in the Arab world has occupied the top of the Turkish foreign policy agenda. Thus, the relationship with Israel has not been a priority for the Turks, pushing Israel to invest greater efforts in developing its ties with Turkey’s rivals and neighbors, including Greece, Cyprus, Bulgaria, and Romania. Moreover, Turkey, previously an Israeli vacation hotspot, has experienced a substantial decline in the number of Israeli tourists.

The Turkish-Israeli relationship was not a high priority on the U.S. administration’s foreign policy agenda in the months leading up to the U.S. presidential elections. While the United States did previously engage in efforts to bridge the gap between the two countries, recently, other issues, including the 9/11 attack on the U.S.’s mission in Benghazi, Libya, the Syria crisis, and Iran’s nuclear program, have consumed the attention of U.S. policy makers dealing with the Middle East.

Against this backdrop, Erdoğan’s willingness to allow his head of intelligence to meet the head of Mossad in Cairo, and his foreign ministry’s director general to meet with Israeli Senior Envoy Ciechanover in Geneva, may seem surprising, especially considering Erdoğan’s own harsh rhetoric against Israel during the initial phases of Operation Pillar of Defense. Turkish Foreign Minister Ahmet Davutoğlu explained that the meetings were aimed at finding an end to the Gaza crisis and that there would be no discussion of reconciliation so long as Israel did not address Turkey’s three previously stated conditions. Israeli officials confirmed that while the discussion in Cairo focused on Gaza, the meeting in Geneva went beyond the Gaza issue, and Israel’s envoy Ciechanover did in fact suggest possible options to address Turkey’s three stipulations.

What does all this mean?

Turkey’s recent moves can be attributed to a growing realization that it has hurt its interests and hampered its diplomatic efforts by not maintaining dialogue and open channels with Israel. This move has allowed the Muslim Brotherhood-led Egypt to take center stage and orchestrate, together with the United States, the ceasefire between Israel and Hamas. Turkey, which takes pride in facilitating diplomacy in the Middle East (as demonstrated in the 2008 Turkish-brokered Syrian-Israeli proximity peace talks), was marginalized in the latest round of negotiations on Gaza simply for having damaged its relationship with Israel.

Furthermore, as Turkey’s involvement in the Syrian crisis deepens, and as it prepares to deploy Patriot missiles on the Turkish-Syrian border, Turkey most certainly will aspire to improve intelligence cooperation with Israel. With regards to Syria, there is very little disagreement, if any, between Turkey and Israel, and cooperating on this issue could prove to be very useful and beneficial for both countries.

The possible cooperation on Syria does not mean that Turkey will drop its insistence on Israel meeting the three conditions, but it may indicate a greater inclination to show flexibility with regard to the actual wording and terms of those conditions.

Israel may be willing to be more forthcoming toward Turkey in respect to the three conditions, so long as it receives assurances that Turkey will not just pocket an Israeli apology and compensation and revert to its anti-Israel mode. Israel has its own concerns, and feels more isolated than ever before in a volatile Middle East region. Its need to rely solely on Egyptian President Mohamed Morsi’s mediating efforts last week certainly left Israeli decision makers uneasy. Israel will likely continue to reach out to Turkey in the coming weeks, but a final decision, which may include compromises, will possibly wait until after the Israeli elections in January 2013.

One must not lose sight of the fact that the Turkey-Israel relationship has deteriorated to a low point not only because of disagreement on political issues but also because of the clash of personalities between leaders on both sides. Officials on both sides will face tough decisions in the coming year, and will likely have to go against their own constituencies and popular public sentiments in order to repair relations.

The distrust between both countries is deep and the level of animosity at the leadership level is high. While it is encouraging that they are finally communicating with one another, undoubtedly progress will require a third party presence and involvement. In this respect, the Obama administration has an important role to play. Unquestionably, a rapprochement between Turkey and Israel will serve U.S. global and regional strategic interests. The strong rapport between U.S. President Barak Obama and Erdoğan and what seems in the aftermath of the Gaza crisis as more frequent consultations between Obama and Netanyahu, can contribute to a U.S.-brokered deal between the two sides. If successful, this deal will address not only the Mavi Marmara incident and Turkish demands, but it will also lay out guidelines and a “code of conduct” for interaction between the two sides in times of war and peace and sponsor a Turkish-Israeli dialogue on regional developments and issues of mutual concern. After a long disconnect between the parties, recent interactions between the two regarding the latest Gaza crisis signal that both sides are predisposed to take another look at seriously engaging with each other again, and the United States can help make this a reality.

Perhaps this could be one of Secretary of State Hillary Clinton’s last missions before leaving office.

       

A 2010 publication of the U.S. Geological Survey caused major excitement in Cyprus, an island that at the time was suffering from the economic collapse of its neighbor and major trading partner, Greece. According to the publication, the seabed of the Eastern Mediterranean could contain up to 120 trillion cubic feet (tcf) of natural gas.3 Three years later, the Cypriot administration has high hopes that natural gas exports may get Cyprus—the third smallest European Union member state—back on its feet, after its own financial collapse in 2012. Unfortunately for the Cypriots, the reality on the ground is sobering, and it is currently unclear whether Cyprus will become a producer, or an exporter, of natural gas. Around Cyprus, other countries hope to benefit from the energy potential as well, including Israel, Lebanon and the Palestinian Authority. In the Israeli Exclusive Economic Zone (EEZ), in particular, substantial reserves of natural gas have been found, though the verdict is out whether these will in fact all be produced.

Exploration of Cyprus’s offshore concessions is at an early stage. Energy majors such as ENI and Total are among the first to explore possible gas (and oil) reserves and they expect results not before 2015. To date, only two test wells have been drilled by Houston-based Noble Energy. Proven reserves have been downgraded since and are currently estimated to be between 3 and 5 tcf. At this level of reserves, investing in a natural gas liquefaction terminal, which the Cypriot administration has supported, is not economically viable. A better alternative would be to construct a pipeline to Turkey, which has a large and rapidly growing market for natural gas.

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• Politics Trump Economics in the Complex Game of Eastern Mediterranean Hydrocarbons

       

Are Turkey and Israel on the verge of signing a normalization agreement, after a six-year hiatus? Comments in recent days by senior officials in both countries suggest so. A senior Israeli official, quoted in the Times of Israel, stated that “95% of the agreement is completed,” while Turkish Foreign Minister Mevlüt Çavuşoğlu said the parties are “one or two meetings away” from an agreement.

Media outlets in both countries have revealed that a meeting between senior Turkish and Israeli officials is expected to be held in Turkey on June 26—and that shortly after, an agreement is likely to be signed and go into effect. 

For two of America’s closest allies in the Middle East to bury the hatchet, reinstate ambassadors, and resume senior-level dialogue would surely be a boost for U.S strategic interests in the region. It would contribute to greater cohesion in dealing with the Syrian crisis, for example, and in the fight against the Islamic State. 

A quick recap

Let’s first recall how the crisis between the two former strategic allies developed, when in the aftermath of the Mavi Marmara incident (May 31, 2010)—resulting in the deaths of 9 Turks—Turkey recalled its ambassador in Tel Aviv and suspended nearly all defense and strategic ties with Israel. Israel also called back its ambassador in Ankara. At the time, Turkey set three conditions for resuming dialogue with Israel: a formal apology, compensation for the families of the victims, and a removal of Israel’s Gaza naval blockade. Relations came to a practical standstill, except in the economic sphere: trade between the two countries exceeded $5 billion in 2014, an unprecedented level. 

Israel formally apologized to Turkey in 2013 and in 2014 committed to paying compensation to the families of the victims. But the Gaza naval blockade has not been lifted. Turkey further demands greater access and presence in Gaza. For its part, Israel demands that Turkey not allow Hamas operative Salah al-Arouri, who resides in Istanbul, to coordinate terrorist operations against Israeli targets in the West Bank. Israel also wants Ankara to pressure Hamas to return the remains of two Israeli soldiers killed in the 2014 war in Gaza. 

Since the flotilla incident, Turkey was not always convinced that repairing relations with Israel actually served its interests. As the Arab Spring unfolded, Turkey hoped to assume a leadership role in the Arab and Muslim worlds—having good relations with Israel did not serve that purpose. And as Turkey went through periods of some unrest in the political arena (whether during the Gezi Park protests in 2013 or the hotly contested local and national elections), many in the ruling AKP party saw restoring relations with Israel as a potential liability in domestic politics. Israel, for its part, was mostly in a reactive mode: sometimes it tried to initiate contacts with Turkey, and sometimes it denounced Turkish anti-Israeli or anti-Semitic rhetoric.

The times they are a-changing

Now, however, new developments have prompted Turkey to seek a rapprochement with Israel. One key factor is the crisis in the Turkish-Russian relationship—in the aftermath of the suspension of the Turkish Stream natural gas pipeline project, Israeli natural gas is viewed as a possible substitute in the medium term for some of Turkey’s natural gas imports from Russia. And as the impact of the war in Syria on Turkey (including the refugee crisis and terrorist attacks) has made clear to Turkey that it must enhance its intelligence capabilities, and Israel can help. Israel, meanwhile, is searching for an export destination for its natural gas (Israeli Energy Minister Steinitz stated recently that “Turkey is a huge market for gas…they need our gas and we need this market”). Israeli leaders also know that resuming a political and military dialogue with Turkey may contribute to a more comprehensive view of the challenges Israel faces in the region. 

Five years after Israel’s formal request to open a representation office at NATO’s Brussels headquarters, Israeli Prime Minister Benjamin Netanyahu announced last month that NATO has approved the Israeli request. Turkey had opposed it, blocking progress, since NATO decisions are adopted by consensus. In a move seen signaling a thawing of relations, Turkey recently removed its objection to Israel’s request, paving the way to NATO’s decision. Israel continues to be a partner in NATO’s Mediterranean Dialogue along with Egypt, Algeria, Tunisia, Jordan, Mauritania and Morocco. 

At a time when Turkish President Recep Tayyip Erdoğan is attempting to strengthen his country’s regional strategic position and enhance its economic opportunities, a rapprochement with Israel makes sense. Bilateral negotiations are in the final stretch, as they have reached a compromise on the complex issue of Gaza and Hamas (Turkey will reportedly not demand the full lifting of Israel’s naval blockade on Gaza, settling for greater access and presence in Gaza. Israel will acquiesce to continued Hamas political activities in Turkey and will not demand the removal of Hamas operative al-Arouri from Turkey, but will get Turkish assurances that al-Arouri’s involvement in terror will cease.)

Fixing the troubled Turkish-Israeli relationship has been a mighty task for senior negotiators on both sides over the last few years, and although an agreement seems around the corner, the experience of recent years suggests that there can be last minute surprises. Israel’s Prime Minister had to jump over several hurdles, holding off pressure from Russia and Egypt not to seek rapprochement with Turkey, and ensuring support of the deal with Turkey from his newly appointed Defense Minister Avigdor Liberman, a known opponent of a deal. On the Turkish side, it seems that President Erdoğan wants a rapprochement with Israel, and feels that he needs it. This is tied directly to the Turkish domestic arena: Erdoğan has recently completed his consolidation of power, ousting Prime Minister Ahmet Davutoğlu and paving the way to the election of his trusted confidant, Binali Yıldırım, as prime minister. In addition, his new allies—the military-judicial establishment—are in favor of mending ties with Israel. One caveat is that Erdoğan’s top priority is establishing a presidential system, and so if he feels at any point that reaching an agreement with Israel will somehow undermine those efforts, he may opt for maintaining the status quo.